[Deschler's Precedents, Volume 3, Chapters 10 - 14]
[Chapter 14. Impeachment Powers]
[From the U.S. Government Publishing Office, www.gpo.gov]
[Page 1939-1943]
CHAPTER 14
Impeachment Powers
[[Page 1939]]
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Commentary and editing by Peter D. Robinson. J.D.
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A. Generally
Sec. 1. Constitutional Provisions; House and Senate Functions
Sec. 2. Who May Be Impeached; Effect of Resignation
Sec. 3. Grounds for Impeachment; Form of Articles
Sec. 4. Effect of Adjournment
B. Investigation and Impeachment
Sec. 5. Introduction and Referral of Charges
Sec. 6. Committee Investigations
Sec. 7. Committee Consideration; Reports
Sec. 8. Consideration and Debate in the House
Sec. 9. Presentation to Senate; Managers
Sec. 10. Replication; Amending Adopted Articles
C. Trial in the Senate
Sec. 11. Organization and Rules
Sec. 12. Conduct of Trial
Sec. 13. Voting; Deliberation and Judgment
D. History of Proceedings
Sec. 14. Charges Not Resulting in Impeachment
Sec. 15. Impeachment Proceedings Against President Nixon
Sec. 16. Impeachment of Judge English
Sec. 17. Impeachment of Judge Louderback
Sec. 18. Impeachment of Judge Ritter
Appendix
DESCHLER'S PRECEDENTS
deschler's precedents
Ch. 14
Ch. 14
[[Page 1940]]
INDEX TO PRECEDENTS
Adjournment sine die, effect on impeachment proceedings
authority of managers following expiration of Congress, Sec. 4.2
impeachment in one Congress and trial in the next, Sec. 4.1
investigation in one Congress and impeachment in the next,
Sec. Sec. 4.3, 4.4
Amending articles of impeachment
privilege of resolution reported by managers, Sec. 10.5
procedure, Sec. Sec. 10.4-10.6
right to amend articles reserved by House, Sec. 10.1
Senate notified of amendments, Sec. 10.6
Censure as related to impeachment, Sec. 1.3
Charges not resulting in impeachment
Agnew, Spiro, Vice President, request for investigation not acted
upon, Sec. 14.17
Alschuler, Samuel, judge, adverse report by investigating
committee, Sec. 14.7
committee reports as to discontinuation of impeachment,
Sec. Sec. 7.8-7.10
Douglas, William, Supreme Court Justice, investigation of charges
and adverse report, Sec. Sec. 14.14-14.16
Federal Reserve Board members, charges not acted on, Sec. 14.5
Hoover, Herbert, President, charges not acted on, Sec. 14.3
Johnson Albert, judge, charges not acted on, Sec. 14.10
Lowell, James, judge, adverse report by investigating committee,
Sec. 14.4
Mellon, Andrew, Secretary of the Treasury, investigation
discontinued following resignation, Sec. 14.2
Molyneaux, Joseph, judge, charges not acted on, Sec. 14.6
Perkins, Frances, Secretary of Labor, adverse report by committee,
Sec. 14.9
Truman, Harry, President, charges not acted on, Sec. Sec. 14.11,
14.12
Watson, Albert, judge, charges not acted on, Sec. 14.10
Committee consideration and report
broadcast of committee meeting, Sec. 7.3
order of business, Sec. 7.2
report submitted without resolution of impeachment, Sec. 7.7
reports as to discontinuation of impeachment, Sec. Sec. 7.8-7.10
reports authorizing investigations as privileged, Sec. Sec. 5.8,
6.2, 6.3
reports recommending impeachment, calendaring and printing of,
Sec. 7.6
resolution and articles of impeachment considered together,
Sec. 7.1
Committee investigations
evidence in impeachment inquiry, Sec. Sec. 6.7-6.10
hearing procedures, Sec. Sec. 6.5, 6.6
privilege of House as to impeachment evidence, Sec. 6.13
resolutions authorizing, consideration of, Sec. 6.2
resolutions authorizing, referral of, Sec. 6.1
resolutions authorizing, reported by investigating committee,
Sec. 6.2
subcommittee, creation and powers of, Sec. 6.11
subpenas, failure to comply with, Sec. 6.12
witnesses, interrogation of, Sec. Sec. 6.3, 6.4
Committee jurisdiction
Judiciary Committee, over resolutions proposing impeachment,
Sec. 5.10
Rules Committee, over resolutions authorizing investigations,
Sec. 5.11
[[Page 1941]]
Consideration and debate
as to resolution and articles of impeachment, Sec. Sec. 8.5-8.10
broadcast of proceedings, Sec. 8.11
control of time for, Sec. 8.1
division of the question, Sec. 8.10
motion for previous question, Sec. 8.8
privilege for consideration of committee reports, Sec. 8.2
question of consideration, Sec. 5.12
question of privilege to present charges, Sec. Sec. 5.6, 5.7
resolution and articles of impeachment considered together,
Sec. 8.1
unanimous-consent agreements governing, Sec. 8.1
voting, excuse or disqualification from, Sec. 13.4
Courts and the power of impeachment, Sec. Sec. 1.1, 1.2
Dismissal of proceedings in Senate pursuant to House request, Sec. 2.2
English, George, judge, impeachment of
consideration and debate in House, Sec. 16.2
impeachment by the House, Sec. Sec. 16.1-16.4
motion to recommit resolution, Sec. 16.3
report by investigating committee recommending impeachment,
Sec. 16.1
separate vote on articles, Sec. 16.3
trial discontinued following resignation of respondent, Sec. 16.4
Grounds for impeachment and form of articles
cumulative and duplicatory articles, Sec. Sec. 3.3-3.5
form of resolutions and articles of impeachment, Sec. Sec. 3.1, 3.2
judges, federal, grounds for impeachment of, Sec. Sec. 3.9-3.13
offenses not committed during term of office, Sec. 3.14
President, grounds for impeachment of, Sec. Sec. 3.6-3.8
Judgment
division of the question, Sec. 13.8
notification of, to House, Sec. 13.12
order of, not debatable, Sec. 13.7
removal from office after conviction, Sec. 13.9
Louderback, Harold, judge, impeachment of
committee report adverse to impeachment, Sec. 17.1
consideration in the House and adoption of substitute resolution of
impeachment, Sec. Sec. 17.1, 17.2
continuation of proceedings into next Congress, Sec. 17.4
election of managers, Sec. 17.3
Managers to conduct trial on part of House
answer of respondent referred to managers, Sec. 10.2
appearance in Senate to present articles, Sec. Sec. 9.5, 11.4
appointed by resolution, Sec. Sec. 9.1, 9.3
authority of, following expiration of Congress, Sec. 4.2
authority to prepare and submit replication, Sec. 10.3
composition and number of, Sec. 9.2
excused from attending House sessions, Sec. 9.4
jurisdiction of, over related matters, Sec. Sec. 9.6, 9.7
powers and funds granted by resolution, Sec. 9.1
supplemental Senate rules referred to, Sec. 10.2
withdrawal of, while Senate deliberates, Sec. 13.1
Motions relating to impeachment proposals
for the previous question, Sec. 8.8
[[Page 1942]]
to discharge, Sec. 8.3
to lay on table or to refer, Sec. Sec. 5.12, 5.13
to recommit, Sec. 8.9
Nixon, Richard M., President, proceedings against
authority for investigation by Committee on Judiciary, Sec. 15.2
broadcasting House and Senate proceedings, resolutions authorizing,
Sec. Sec. 15.10, 15.11
confidentiality of inquiry materials, Sec. 15.3
consideration by committee of articles of impeachment, Sec. 15.7
consideration by House of articles of impeachment, Sec. 15.12
evidence in House inquiry, subpenaed by court, Sec. 15.14
introduction of impeachment charges, Sec. 15.1
pardon following resignation, Sec. 15.15
procedures for presenting evidence and examining witnesses,
Sec. 15.6
report of committee, acceptance by House, Sec. 15.13
report of committee following resignation of President, Sec. 15.13
reports by inquiry staff, Sec. Sec. 15.4, 15.5
resignation of President, Sec. 15.13
Senate review of impeachment trial rules, Sec. 15.8
Senate select committee, evidence released by, Sec. 15.9
Presentation of articles to Senate
appearance of managers to present articles, Sec. Sec. 9.5, 11.4
date for, messaged to House from Senate, Sec. 9.5
managers authorized to present articles to Senate, Sec. 9.1
Privilege of impeachment propositions
charges and resolutions directly impeaching, Sec. Sec. 5.1-5.3
questions incidental to impeachment, Sec. Sec. 5.8, 5.9
Resignation of accused, discontinuance of proceedings, Sec. Sec. 2.1-
2.3
Ritter, Halsted, judge, impeachment of
amendment of articles by the House, Sec. Sec. 18.10, 18.11
answer of respondent, Sec. 18.15
appearance of respondent before the Senate, Sec. 18.8
conduct of trial, Sec. 18.16
consideration of resolution and articles by the House, Sec. 18.4
conviction of, Sec. 18.17
deliberation of Senate behind closed doors, Sec. 18.17
election of managers and their authority, Sec. 18.5
final arguments, Sec. 18.16
House notified of order and judgment, Sec. 18.18
judgment ordered, Sec. 18.17
motions to strike articles and specifications, Sec. Sec. 18.12-
18.14
organization of Senate for trial, Sec. Sec. 18.6, 18.7
presentation of articles to Senate, Sec. 18.7
replication to respondent's answer, Sec. 18.15
report of Judiciary Committee recommending impeachment, Sec. 18.3
Trial in the Senate
appearance of managers to present articles, Sec. 11.4
appearance of respondent, Sec. 11.9
debate on organizational questions, Sec. 11.11
deliberation behind closed doors, Sec. 13.1
House notified of order and judgment, Sec. 13.12
[[Page 1943]]
oath and organization, Sec. Sec. 11.5, 11.6
opinions of individual Senators, filing of, Sec. 13.11
presiding officer, appointment of, Sec. 11.12
privileges of Senate floor during, Sec. 11.13
Trial procedure
evidence, presiding officer rules on admissibility of, Sec. 12.7
evidence returned at close of trial, Sec. 12.9
exhibits offered in evidence, Sec. 12.8
final arguments, Sec. 12.12
motions to strike articles, Sec. Sec. 12.2-12.4
opening arguments, Sec. 12.1
rules for trial, nature and amendment of, Sec. Sec. 11.1-11.3
supplemental rules to govern, Sec. Sec. 11.7, 11.8
suspension of trial for messages and legislative business,
Sec. Sec. 12.5, 12.6
witness, respondent as, Sec. 12.11
Voting on conviction and judgment
excuse or disqualification from, Sec. 13.4
majority vote for judgment of disqualification, Sec. 13.10
on removal following conviction, Sec. 13.9
orders governing, Sec. 13.2
pairs not recognized, Sec. 13.3
points of order against vote on conviction, Sec. Sec. 13.5, 13.6
putting the question, Sec. 13.2
two-thirds vote required for conviction Sec. 13.5
[[Page 1945]]
CHAPTER 14
Impeachment Powers
A. GENERALLY
Sec. 1. Constitutional Provisions; House and Senate Functions
The impeachment power is delineated and circumscribed by several
provisions of the U.S. Constitution. They state:
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. Article II, Section 4.
. . . and [the House of Representatives] shall have the sole
Power of Impeachment. Article I, Section 2, clause 5.
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 I, Section 3, clause 6.
Judgment in Cases of Impeachment shall not extend further than
to removal from Office, and disqualification to hold and enjoy any
Office of honor, Trust or Profit under the United States: but the
Party convicted shall nevertheless be liable and subject to
Indictment, Trial, Judgment and Punishment, according to Law.
Article I, Section 3, clause 7.
Two other sections of the U.S. Constitution also mention
impeachment:
The President . . . shall have Power to grant Reprieves and
Pardons for Offences against the United States, except in Cases of
Impeachment. Article II, section 2, clause 1.
The Trial of all Crimes, except in Cases of Impeachment, shall
be by Jury. . . . Article III, section 2, clause 3.
Since the First Congress of the United States, the House of
Representatives has impeached 13 officers of the United States, of whom
10 were federal judges, one was a cabinet officer, one a U.S. Senator,
and one the President of the United States.
Conviction has been voted by the Senate in four cases, all
involving federal judges. The judges so convicted were John Pickering
in 1804, West H. Humphreys in 1862, Robert W. Archbald in 1912, and
Halsted L. Ritter in 1936.
On numerous other occasions, the impeachment process has
[[Page 1946]]
been initiated in the House as to civil officers and judges but has not
resulted in consideration by the House of a report recommending
impeachment. In the two most recent cases where investigations have
been conducted by the Committee on the Judiciary and its subcommittees,
in relation to Supreme Court Associate Justice William O. Douglas in
1970 and in relation to President Richard M. Nixon in 1974, the
proceedings have occasioned intense congressional and national debate
as to the scope of the impeachment power, the grounds for impeachment
and for conviction, the analogy if any between the impeachment process
and the judicial criminal process, and the amenability of the
impeachment process to judicial review.
It should be noted at this point that of the four judges convicted
and removed from office, none has directly sought to challenge through
the judicial process his impeachment by the House and conviction by the
Senate. Judge Halsted L. Ritter, convicted by the Senate in 1936,
indirectly challenged his conviction by filing suit for back salary in
the U.S. Court of Claims, where he alleged that the Senate had tried
him on grounds not constituting impeachable offenses under the
Constitution. The Court of Claims dismissed the claim for want of
jurisdiction, holding that the Senate's power to try impeachments was
exclusive under the Constitution. The court cited the Supreme Court
case of Mississippi v Johnson, wherein Chief Justice Samuel Chase had
stated in dictum that the impeachment process was not subject to
judicial review.(1) The Court of Claims opinion read in
part:
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1. Ritter v United States, 84 Ct. Cls. 293 (1936), cert. denied, 300
U.S. 668 (1937), citing Mississippi v Johnson, 71 U.S. (4
Wall.) 475, 501 (1867).
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While the Senate in one sense acts as a court on the trial of
an impeachment, it is essentially a political body and in its
actions is influenced by the views of its members on the public
welfare. The courts, on the other hand, are expected to render
their decisions according to the law regardless of the
consequences. This must have been realized by the members of the
Constitutional Convention and in rejecting proposals to have
impeachments tried by a court composed of regularly appointed
judges we think it avoided the possibility of unseemly conflicts
between a political body such as the Senate and the judicial
tribunals which might determine the case on different
principles.(2)
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2. Ritter v United States, 84 Ct. Cls. 293, 300 (1936).
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Cross References
Discussions of the impeachment process generally, see Sec. Sec. 3.6-
3.14 and appendix, infra.
[[Page 1947]]
High privilege of impeachment propositions, see Sec. Sec. 5, 8, infra.
Pardon of officer who has resigned before his impeachment by the House,
see Sec. 15.15. infra.
Collateral References
For early precedents on the impeachment power and process, see the
following chapters in Hinds' Precedents: Ch. 63 (Nature of
Impeachment); Ch. 64 (Function of the House in Impeachment); Ch. 65
(Function of the Senate in Impeachment); Ch. 66 (Procedure of the
Senate in Impeachment); Ch. 67 (Conduct of Impeachment Trials); Ch.
68 (Presentation of Testimony in an Impeachment Trial); Ch. 69
(Rules of Evidence in an Impeachment Trial); Ch. 70 (Impeachment
and Trial of William Blount); Ch. 71 (Impeachment and Trial of John
Pickering); Ch. 72 (Impeachment and Trial of Samuel Chase); Ch. 73
(Impeachment and Trial of James H. Peck); Ch. 74 (Impeachment and
Trial of West H. Humphreys); Ch. 75 (First Attempts to Impeach the
President); Ch. 76 (Impeachment and Trial of President Andrew
Johnson); Ch. 77 (Impeachment and Trial of William W. Belknap); Ch.
78 (Impeachment and Trial of Charles Swayne); Ch. 79 (Impeachment
Proceedings not Resulting in Trial).
See also the following chapters in Cannon's Precedents: Ch. 193
(Nature of Impeachment); Ch. 194 (Function of the House in
Impeachment); Ch. 195 (Function of the Senate in Impeachment); Ch.
196 (Procedure of the Senate in Impeachment); Ch. 197 (Conduct of
Impeachment Trials); Ch. 198 (Presentation of Testimony in an
Impeachment Trial); Ch. 199 (Rules of Evidence in an Impeachment
Trial); Ch. 200 (Impeachment and Trial of Robert W. Archbald); Ch.
201 (Impeachment and Trial of Harold Louderback); Ch. 202
(Impeachment Proceedings not Resulting in Trial).
The impeachment power under parliamentary law, see House Rules and
Manual Sec. Sec. 601-620 (Jefferson's Manual) (1973).
Impeachment, Selected Materials, Committee on the Judiciary, H. Doc.
No. 93-7, 93d Cong. 1st Sess., Oct. 1973 (constitutional provisions
and historical precedents and debate).
Impeachment, Selected Materials on Procedure, Committee on the
Judiciary, Committee Print, 93d Cong. 2d Sess., Jan. 1974 (relevant
extracts from Hinds' and Cannon's Precedents of the House of
Representatives). -------------------
Impeachment and the Federal Courts
Sec. 1.1 The Speaker laid before the House a communication from the
Clerk, informing the House of the receipt of a summons and
complaint naming the House as a defendant in a civil action,
instituted in a U.S. District Court, seeking to enjoin impeachment
proceedings pending in the House.
On May 28, 1974, Speaker Carl Albert, of Oklahoma, laid before the
House a communication from the Clerk, advising of his receipt
[[Page 1948]]
of a summons and complaint issued by the U.S. District Court for the
Eastern District of Virginia, in connection with Civil Action No. 74-
54-NN, The National Citizens' Committee for Fairness to the President v
United States House of Representatives.(3)
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3. 120 Cong. Rec. 16496, 93d Cong. 2d Sess.
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Parliamentarian's Note: The plaintiff in this action sought to
enjoin the impeachment proceedings pending in the House against
President Richard M. Nixon. The Clerk did not request representation by
the appropriate U.S. Attorney, under 2 USC Sec. 118, because the House
has the sole power of impeachment under the U.S. Constitution and
because of the application of the doctrine under the Constitution of
the separation of powers of the executive, legislative, and judicial
branches of government.
Sec. 1.2 Where a federal court subpenaed in a criminal case certain
evidence gathered by the Committee on the Judiciary in an
impeachment inquiry, the House adopted a resolution granting such
limited access to the evidence, except executive session materials,
as would not violate the privileges of the House or its sole power
of impeachment under the U.S. Constitution.
On Aug. 22, 1974,(4) Speaker Carl Albert, of Oklahoma,
laid before the House certain subpenas issued by a U.S. District Court
in a criminal case, requesting certain evidence gathered by the
Committee on the Judiciary and its subcommittee on impeachment, in the
inquiry into the conduct of President Richard Nixon. The House adopted
House Resolution 1341, which granted such limited access to the
evidence as would not violate the privileges or constitutional powers
of the House. The resolution read as follows:
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4. 120 Cong. Rec. 30026, 93d Cong. 2d Sess.
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H. Res. 1341
Whereas in the case of United States of America against John N.
Mitchell et al. (Criminal Case No. 74-110), pending in the United
States District Court for the District of Columbia, subpenas duces
tecum were issued by the said court and addressed to Representative
Peter W. Rodino, United States House of Representatives, and to
John Doar, Chief Counsel, House Judicial Subcommittee on
Impeachment, House of Representatives, directing them to appear as
witnesses before said court at 10:00 antemeridian on the 9th day of
September, 1974, and to bring with them certain and sundry papers
in the possession and under the control of the
[[Page 1949]]
House of Representatives: Therefore be it
Resolved, That by the privileges of this House no evidence of a
documentary character under the control and in the possession of
the House of Representatives can, by the mandate of process of the
ordinary courts of justice, be taken from such control or
possession but by its permission; be it further
Resolved, That the House of Representatives under Article I,
Section 2 of the Constitution has the sole power of impeachment and
has the sole power to investigate and gather evidence to determine
whether the House of Representatives shall exercise its
constitutional power of impeachment; be it further
Resolved, That when it appears by the order of the court or of
the judge thereof, or of any legal officer charged with the
administration of the orders of such court or judge, that
documentary evidence in the possession and under the control of the
House is needful for use in any court of justice, or before any
judge or such legal officer, for the promotion of justice, this
House will take such action thereon as will promote the ends of
justice consistently with the privileges and rights of this House;
be it further
Resolved, That when said court determines upon the materiality
and the relevancy of the papers and documents called for in the
subpenas duces tecum, then the said court, through any of its
officers or agents, have full permission to attend with all proper
parties to the proceeding and then always at any place under the
orders and control of this House and take copies of all memoranda
and notes, in the files of the Committee on the Judiciary, of
interviews with those persons who subsequently appeared as
witnesses in the proceedings before the full Committee pursuant to
House Resolution 803, such limited access in this instance not
being an interference with the Constitutional impeachment power of
the House, and the Clerk of the House is authorized to supply
certified copies of such documents and papers in possession or
control of the House of Representatives that the court has found to
be material and relevant (except that under no circumstances shall
any minutes or transcripts of executive sessions, or any evidence
of witnesses in respect thereto, be disclosed or copied) and which
the court or other proper officer thereof shall desire, so as,
however, the possession of said papers, documents, and records by
the House of Representatives shall not be disturbed, or the same
shall not be removed from their place of file or custody under any
Members, officer, or employee of the House of Representatives; and
be it further
Resolved, That a copy of these resolutions be transmitted to
the said court as a respectful answer to the subpenas
aforementioned.
Censure of Federal Civil Officers
Sec. 1.3 In the 72d Congress, the House amended a resolution abating
impeachment proceedings against a federal judge where the committee
report censured him for improper conduct, and voted to
[[Page 1950]]
impeach him by adopting the resolution as amended.
On Feb. 24, 1933, a resolution (H. Res. 387) was called up by Mr.
Thomas D. McKeown, of Oklahoma, at the direction of the Committee on
the Judiciary; the resolution stated that the evidence against U.S.
District Court Judge Harold Louderback did not warrant impeachment. The
committee report (H. Rept. No. 2065), censured the judge as follows:
The committee censures the judge for conduct prejudicial to the
dignity of the judiciary in appointing incompetent receivers, for
the method of selecting receivers, for allowing fees that seem
excessive, and for a high degree of indifference to the interest of
litigants in receiverships.(5)
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5. 76 Cong. Rec. 4913, 4914, 72d Cong. 2d Sess. See, generally, 6
Cannon's Precedents Sec. 514, and Sec. Sec. 17.1, 17.2, infra.
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The House rejected the recommendation of the committee by adopting
an amendment in the nature of a substitute impeaching the judge for
misdemeanors in office. During debate on the resolution, Mr. Earl C.
Michener, of Michigan, addressed remarks to the power of censure in
relation to civil officers under the United States:
Mr. Michener: Mr. Speaker, in answer to the gentleman from
Alabama, let me make this observation. The purpose of referring a
matter of this kind to the Committee on the Judiciary is to
determine whether or not in the opinion of the Committee on the
Judiciary there is sufficient evidence to warrant impeachment by
the House. If the Committee on the Judiciary finds those facts
exist, then the Committee on the Judiciary makes a report to the
House recommending impeachment, and that undoubtedly is privileged.
However, a custom has grown up recently in the Committee on the
Judiciary of including in the report a censure. I do not believe
that the constitutional power of impeachment includes censure. We
have but one duty, and that is to impeach or not to impeach. Today
we find a committee report censuring the judge. The resolution
before the House presented by a majority of the committee is
against impeachment. The minority members have filed a minority
report, recommending impeachment. I am making this observation with
the hope that we may get back to the constitutional power of
impeachment.
Parliamentarian's Note: On several past occasions, the resolution
reported to the House by the committee investigating impeachment has
proposed the censure of the officer involved.(6) Such resolu
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6. See, for example, 3 Hinds' Precedents Sec. Sec. 2519, 2520.
When a subcommittee report recommended against the
impeachment of Associate Judge William O. Douglas in the 91st
Congress, the minority views of Mr. Edward Hutchinson (Mich.)
indicated the view that Justice Douglas could have been
censured or officially rebuked for misconduct by the House (see
Sec. 14.16, infra).
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[[Page 1951]]
tions were not submitted as privileged and were not considered by the
House. Although censure of a Member by the House is a privileged
matter,(7) censure of an executive official has not been
held privileged for consideration by the House and has on occasion been
held improper.(8)
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7. See 3 Hinds' Precedents Sec. Sec. 2649-2651.
Members of the House are not subject to impeachment under
the Constitution (see Sec. 2, infra) but are subject to
punishment for disorderly behavior. See U.S. Const. art. I,
Sec. 5, clause 2.
8. See 2 Hinds' Precedents Sec. Sec. 1569-1572.
The issue whether a proposition to censure a federal civil
officer would be germane to a proposition for his impeachment
has not arisen, but it is not in order to amend a pending
privileged resolution by adding or substituting a matter not
privileged and not germane to the original proposition. 5
Hinds' Precedents Sec. 5810.
See 6 Cannon's Precedents Sec. 236 for the ruling that a
proposition to censure a Member of the House is not germane to
a proposition for his expulsion. Speaker Frederick H. Gillett
(Mass.) ruled in that instance that although censure and
expulsion of a Member were both privileged propositions, they
were ``intrinsically'' different.
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CHAPTER 14
Impeachment Powers
A. GENERALLY
Sec. 2. Who May Be Impeached; Effect of Resignation
Article II, section 4 of the U.S. Constitution subjects the
President, Vice President, and all civil officers of the United States
to impeachment, conviction, and removal from office. It has been
settled that a private citizen is not subject to the impeachment
process except for offenses committed while a civil officer under the
United States.(9)
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9. 3 Hinds' Precedents Sec. Sec. 2315, 2007.
A commissioner of the District of Columbia was held not to
be a civil officer subject to impeachment under the
Constitution. 6 Cannon's Precedents Sec. 548.
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In one case, it was determined by the Senate that a U.S. Senator
(William Blount [Tenn.]) was not a civil officer under article II,
section 4, and the Senate disclaimed jurisdiction to try
him.(10)
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10. 3 Hinds' Precedents Sec. Sec. 2310, 2316.
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In view of the fact that the Constitution provides not only for
automatic removal of an officer upon impeachment and conviction, but
also for the disqualification from holding further office under the
United States (art. I, Sec. 3, clause 7), the House and Senate have
affirmed their respective power to impeach and try an accused who has
resigned.(11)
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11. The question whether the House may impeach a civil officer who has
resigned is a constitutional issue for the House and not the
Chair to decide (see Sec. 2.4, infra).
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[[Page 1952]]
The latter question first arose in the Blount case, where the
Senate expelled Senator Blount after his impeachment by the House but
before articles had been drafted and before his trial in the Senate had
begun. The House proceeded to adopt articles, and it was conceded in
the Senate that a person impeached could not escape punishment by
resignation; the Senate decided that it had no jurisdiction, however,
to try the former Senator since he had not been a civil officer for
purposes of impeachment.(12)
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12. 3 Hinds' Precedents Sec. Sec. 2317, 2318.
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William W. Belknap, Secretary of War, resigned from office before
his impeachment by the House and before his trial in the Senate. The
House and Senate debated the power of impeachment at length and
determined that the former Secretary was amenable to impeachment and
trial; at the conclusion of trial the respondent was acquitted of all
charges by the Senate.(13)
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13. 3 Hinds' Precedents Sec. Sec. 2007, 2467.
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Cross References
Members of Congress not subject to impeachment but to punishment,
censure, or expulsion, see Ch. 12, supra.
Powers of the House as related to the executive generally, see Ch. 13,
supra. -------------------
Impeachment Proceedings Following Resignation
Sec. 2.1 President Richard Nixon having resigned following the decision
of the Committee on the Judiciary to report to the House
recommending his impeachment, the report without an accompanying
resolution of impeachment was submitted to the House, and further
proceedings were discontinued.
On Aug. 20, 1974, Peter W. Rodino, Jr., of New Jersey, Chairman of
the Committee on the Judiciary, submitted a privileged report (H. Rept.
No. 93-1305) recommending the impeachment of President Nixon, following
a full investigation by the committee, and after its consideration and
adoption of articles of impeachment.
The committee had previously (in July 1974) decided to recommend
articles of impeachment against President Nixon. The President resigned
his office shortly thereafter--on Aug. 9, 1974--by submitting his
written resignation to the office of the Secretary of State.
(14)
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14. 3 USC Sec. 20 provides that the only evidence of the resignation of
the office of the President of the United States shall be an
instrument in writing, signed, and delivered into the office of
the Secretary of State.
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[[Page 1953]]
Upon submission of the report of the Committee on the Judiciary,
Speaker Carl Albert, of Oklahoma, ordered it referred to the House
Calendar. No separate accompanying resolution of impeachment was
reported to the House.
The House adopted without debate a resolution (H. Res. 1333),
offered by Mr. Thomas P. O'Neill, Jr., of Massachusetts, under
suspension of the rules on Aug. 20, accepting the report. No further
action was taken on the proposed impeachment of the President.
(15)
---------------------------------------------------------------------------
15. 120 Cong. Rec. 29361, 29362, 93d Cong. 2d Sess. For the text of H.
Res. 1333 and the events surrounding its adoption, see
Sec. 15.13, infra.
For a memorandum prepared for Senate Majority Leader
Michael J. Mansfield (Mont.) and inserted in the Record,
concluding that Congress could impeach and try the President
after he had resigned, see 120 Cong. Rec. 31346-48, 93d Cong.
2d Sess., Sept. 17, 1974.
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Sec. 2.2 A federal judge having resigned from the bench pending his
impeachment trial in the Senate, the House adopted a resolution
instructing the managers to advise the Senate that the House
declined to further prosecute charges of impeachment, and the
Senate dismissed the impeachment proceedings.
On Dec. 11, 1926, the House adopted the following resolution in
relation to the impeachment proceedings against Judge George W.
English:
Resolved, That the managers on the part of the House of
Representatives in the impeachment proceedings now pending in the
Senate against George W. English, late judge of the District Court
of the United States for the Eastern District of Illinois, be
instructed to appear before the Senate, sitting as a court of
impeachment in said cause, and advise the Senate that in
consideration of the fact that said George W. English is no longer
a civil officer of the United States, having ceased to be a
district judge of the United States for the eastern district of
Illinois, the House of Representatives does not desire further to
urge the articles of impeachment heretofore filed in the Senate
against said George W. English.(16)
---------------------------------------------------------------------------
16. 68 Cong. Rec. 297, 69th Cong. 2d Sess.
---------------------------------------------------------------------------
On Dec. 13, 1926, the Senate adjourned sine die as a court of
impeachment after agreeing to the following order, which was messaged
to the House:
Ordered, That the impeachment proceedings against George W.
English, late judge of the District Court of the United States for
the Eastern District of Illinois, be and the same are, duly
dismissed.(17)
---------------------------------------------------------------------------
17. Id. at p. 344.
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[[Page 1954]]
Sec. 2.3 The House discontinued further investigation and proceedings
of impeachment against a cabinet official who had resigned his
post, after his nomination and confirmation to hold another
governmental position.
On Feb. 13, 1932, the House adopted House Resolution 143 offered by
Hatton W. Sumners, of Texas, Chairman of the Committee on the
Judiciary. The resolution, which discontinued certain impeachment
proceedings due to resignation of the officer charged, read as follows:
Whereas Hon. Wright Patman, Member of the House of
Representatives, filed certain impeachment charges against Hon.
Andrew W. Mellon, Secretary of the Treasury, which were referred to
this committee; and
Whereas pending the investigation of said charges by said
committee, and before said investigation had been completed, the
said Hon. Andrew W. Mellon was nominated by the President of the
United States for the post of ambassador to the Court of St. James
and the said nomination was duly confirmed by the United States
Senate pursuant to law, and the said Andrew W. Mellon has resigned
the position of Secretary of the Treasury: Be it
Resolved by this committee, That the further consideration of
the said charges made against the said Andrew W. Mellon, as
Secretary of the Treasury, be, and the same are hereby,
discontinued.
Minority Views
We cannot join in the majority views and findings. While we
concur in the conclusions of the majority that section 243 of the
Revised Statutes, upon which the proceedings herein were based,
provides for action in the nature of an ouster proceeding, it is
our view that the Hon. Andrew W. Mellon, the former Secretary of
the Treasury, having removed himself from that office, no useful
purpose would be served by continuing the investigation of the
charges filed by the Hon. Wright Patman. We desire to stress that
the action of the undersigned is based on that reason alone,
particularly when the prohibition contained in said section 243 is
not applicable to the office now held by Mr. Mellon.(18)
---------------------------------------------------------------------------
18. 75 Cong. Rec. 3850, 72d Cong. 1st Sess.
---------------------------------------------------------------------------
Fiorello H. LaGuardia.
Gordon Browning.
M. C. Tarver.
Francis B. Condon.
Sec. 2.4 Where a point of order was raised that a resolution of
impeachment was not privileged because it called for the
impeachment of persons no longer civil officers under the United
States, the Speaker stated that the question was a constitutional
issue for the House and not the Chair to decide.
On May 23, 1933, Mr. Louis T. McFadden, of Pennsylvania, rose to a
question of constitutional
[[Page 1955]]
privilege and offered a resolution (H. Res. 158) impeaching numerous
members and former members of the Federal Reserve Board. During the
reading of the resolution, a point of order against it was raised by
Mr. Carl E. Mapes, of Michigan:
I wish to submit the question to the Speaker as to whether or
not a person who is not now in office is subject to impeachment?
This resolution of the gentleman from Pennsylvania refers to
several people who are no longer holding any public office. They
are not now at least civil officers. The Constitution provides that
the ``President, Vice President, and all civil officers shall be
removed from office on impeachment'', and so forth. I have had no
opportunity to examine the precedents since this matter came up,
but it occurs to me that the resolution takes in too much territory
to make it privileged.
Speaker Henry T. Rainey, of Illinois, ruled as follows:
That is a constitutional question which the Chair cannot pass
upon, but should be passed upon by the House.
The resolution was referred on motion to the Committee on the
Judiciary.(19)
---------------------------------------------------------------------------
19. 77 Cong. Rec. 4055, 73d Cong. 1st Sess.
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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)
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
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)
---------------------------------------------------------------------------
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)
---------------------------------------------------------------------------
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)
---------------------------------------------------------------------------
7. See Sec. Sec. 3.9-3.12, infra.
---------------------------------------------------------------------------
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)
---------------------------------------------------------------------------
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:
---------------------------------------------------------------------------
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
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
7. 119 Cong. Rec. 31368, 93d Cong. 1st Sess.
---------------------------------------------------------------------------
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).
CHAPTER 14
Impeachment Powers
A. GENERALLY
Sec. 4. Effect of Adjournment
Under parliamentary law, as stated in Jefferson's Manual, ``an
impeachment is not discontinued by the dissolution of Parliament, but
may be resumed by the new Parliament.'' (8) Both Judge John
Pickering and Judge Harold Louderback were impeached by the House in
one Congress and tried by the Senate in the next.(9) The
practice at the time of the Pickering impeachment was to present a
resolution of impeachment to the Senate and then to prepare and adopt
articles of impeachment for presentation to the Senate. In that case,
impeachment proceedings begun in the 7th Congress were resumed by the
House in the 8th Congress.(10)
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8. House Rules and Manual Sec. 620 (Jefferson's Manual) (1973).
9. See 3 Hinds' Precedents Sec. Sec. 2319, 2320, for the presentation
of the resolution impeaching Judge Pickering, and Sec. 4.1,
infra, for the presentation to the Senate of the resolution
impeaching Judge Louderback.
10. See 3 Hinds' Precedents Sec. 2321. For the later practice of
presenting to the Senate a resolution together with articles of
impeachment, see Sec. 8.1, infra.
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The question arose in the 73d Congress whether the appointment in
the 72d Congress of House managers to conduct impeachment proceedings
against Judge Louderback was such as to permit them to act in that
function in the 73d Congress without a further grant of authority. The
House adopted in the 73d Congress a resolution filling vacancies,
making reappointments, and vesting the managers with powers and
granting them funds.(11)
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11. See Sec. 4.2, infra.
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In the case of Judge Halsted L. Ritter, the House authorized and
the Committee on the Judiciary conducted an impeachment investigation
in the 73d Congress, with
[[Page 2016]]
the resolution and articles of impeachment being reported and adopted
in the 74th Congress. Charges of impeachment were offered and referred
anew to the Committee on the Judiciary in the 74th Congress, but the
resolution reported and adopted by the House specifically referred to
the evidence gathered during the 73d Congress as the basis for
impeachment.(12)
---------------------------------------------------------------------------
12. See Sec. Sec. 4.3, 4.4, infra.
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Cross References
Adjournments generally and their effect on business, see Ch. 40, infra.
Resumption of business in a new Congress, see Ch. 1, supra.
Resumption of committee investigation into conduct of Judge Ritter, see
Sec. 18, infra.
Resumption of proceedings against Judge Louderback in succeeding
Congress, see Sec. 17,
infra. -------------------
Impeachment in One Congress and Trial in the Next
Sec. 4.1 The managers on the part of the House presented articles of
impeachment against Judge Harold Louderback on the final day of the
72d Congress, and the Senate organized for and conducted the trial
in the 73d Congress.
On Mar. 3, 1933, the last day of the 72d Congress, the managers on
the part of the House in the Louderback impeachment proceeding appeared
before the Senate and read the resolution and articles of impeachment.
The Senate adopted a motion that the proceedings be made a special
order of business on the first day of the first session of the 73d
Congress.(13)
---------------------------------------------------------------------------
13. 6 Cannon's Precedents Sec. 515.
---------------------------------------------------------------------------
The only other occasion where impeachment proceedings continued
into a new Congress occurred in 1803-04, the resolution of impeachment
of Judge John Pickering being carried to the Senate by a House
committee of two members on Mar. 3, 1803, the final day of the 7th
Congress. The Senate organized for and conducted the trial in the 8th
Congress.(14)
---------------------------------------------------------------------------
14. 3 Hinds' Precedents Sec. Sec. 2319, 2320. Managers had not been
appointed nor articles considered in the House by the end of
the 7th Congress.
---------------------------------------------------------------------------
It should be noted that in neither the Louderback nor Pickering
impeachments did the trial in the Senate begin before the adjournment
sine die of the Congress. The issue whether the Senate could conduct a
bifurcated trial, part in one Congress and part in the next, has not
been presented.(15)
---------------------------------------------------------------------------
15. For a memorandum as to whether an impeachment trial begun in one
Congress could be continued into the next, see 120 Cong. Rec.
31346-48, 93d Cong. 2d Sess., Sept. 17, 1974 (insertion by
Michael J. Mansfield [Mont.], Majority Leader of the Senate).
Under parliamentary law, an impeachment is not discontinued
by the dissolution of Parliament but may be resumed by the new
Parliament. See House Rules and Manual Sec. 620 (Jefferson's
Manual) (1973).
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[[Page 2017]]
Authority of Managers Following Expiration of Congress
Sec. 4.2 Where the House had impeached Judge Louderback in the 72d
Congress but the Senate did not organize for or conduct the trial
until the 73d Congress, the House in the 73d Congress adopted
resolutions (1) appointing Members to fill vacancies for managers
not re-elected and reappointing managers elected in the 72d
Congress and (2) granting the managers powers and funds.
On Mar. 9, 1933, the first day of the 73d Congress, the Senate
sitting as a Court of Impeachment for the trial of Judge Harold
Louderback met at 2 p.m., articles of impeachment having been presented
in the Senate on the last day of the 72d Congress. On Mar. 13, the
managers on the part of the House, being those Members appointed in the
72d Congress to conduct the inquiry and re-elected to the 73d Congress,
appeared for the proceedings of the Senate sitting as a Court of
Impeachment.(16)
---------------------------------------------------------------------------
16. 6 Cannon's Precedents Sec. 516.
---------------------------------------------------------------------------
On Mar. 22, the House adopted a resolution electing successors for
those managers elected in the 72d Congress who were no longer Members
of the House, and reappointing the former managers. The House discussed
the power of the House to appoint managers to continue in office in
that capacity after the expiration of the term to which elected to the
House.(17)
---------------------------------------------------------------------------
17. 6 Cannon's Precedents Sec. 517.
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Investigation in One Congress and Impeachment in the Next
Sec. 4.3 The Committee on the Judiciary determined in the 74th Congress
that its authority to report out a resolution impeaching a federal
judge expired with the termination of the Congress in which the
resolution containing charges was introduced and referred to the
committee.
On Mar. 2, 1936, in the 74th Congress, the House was considering a
resolution and articles of
[[Page 2018]]
impeachment, reported by the Committee on the Judiciary, against Judge
Halsted L. Ritter, an investigation of his conduct having been made in
the 73d Congress. Mr. William V. Gregory, of Kentucky, a member of the
committee, remarked on the effect, in the 74th Congress, of an
authorizing resolution passed in the 73d Congress: (18)
---------------------------------------------------------------------------
18. 80 Cong. Rec. 3089, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. Gregory: Mr. Speaker, in view of the statement made by the
gentleman from Florida [Mr. Wilcox], and more recently by the
gentleman from New York [Mr. Hancock], with reference to what
happened in committee, I think it proper I should make a statement
at this time.
The first proceedings in this matter were instituted in the
Seventy-third Congress. A simple resolution of investigation was
introduced by the gentleman from Florida [Mr. Wilcox]. No one
during that session of Congress attempted by resolution or upon his
own authority on the floor of the House to prefer impeachment
charges against the judge. The Seventy-third Congress died, and the
gentleman from Florida [Mr. Green] came before the Seventy-fourth
Congress and wanted some action taken upon the resolution which had
been introduced in the Seventy-third Congress. I took the position
before the Committee--and I think others agreed with me--that with
the passing of the Seventy-third Congress it had no power over the
resolution of investigation which had been introduced any more than
it did in connection with any other bill or resolution that might
have been introduced in a previous Congress. Therefore, when the
question came up as to voting impeachment charges upon a resolution
which was introduced in the Seventy-third Congress, I voted against
such action, and I think other Members voted the same way. But when
the matter was properly presented at this session of Congress and
impeachment charges were made on this floor on the responsibility
of the gentleman from Florida [Mr. Green], the matter came before
the committee again in regular and proper form, and I then voted to
report out this resolution of impeachment.
I want the Members of the House to understand that the
Committee on the Judiciary has not changed its position on this
proposition at any time. These are the facts.
Sec. 4.4 Where the Committee on the Judiciary investigated charges of
impeachable offenses against a federal judge in one Congress and
reported to the House a resolution of impeachment in the next, the
resolution indicated that impeachment was warranted by the evidence
gathered in the investigation conducted in the preceding Congress.
On Feb. 20, 1936, the Committee on the Judiciary submitted a
privileged report (H. Rept. No. 74-2025) on the impeachment of
[[Page 2019]]
District Judge Halsted L. Ritter to the House. The report and the
accompanying resolution recited that the evidence taken by the
Committee on the Judiciary in the prior Congress, the 73d Congress,
pursuant to authorizing resolution, sustained articles of impeachment
(the charges of impeachable offenses had been presented anew in the
74th Congress and referred to the committee):
The Committee on the Judiciary, having had under consideration
charges of official misconduct against Halsted L. Ritter, a
district judge of the United States for the Southern District of
Florida, and having taken testimony with regard to the official
conduct of said judge under the authority of House Resolution 163
of the Seventy-third Congress, report the accompanying resolution
of impeachment and articles of impeachment against Halsted L.
Ritter to the House of Representatives with the recommendation that
the same be adopted by the House and presented to the Senate.
[H. Res. 422, 74th Cong., 2d sess. (Rept. No. 2025)]
Resolution
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 House
Resolution 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: . . .(19)
---------------------------------------------------------------------------
19. 80 Cong. Rec. 2528, 74th Cong. 2d Sess. (report submitted); 80
Cong. Rec. 3066, 74th Cong. 2d Sess., Mar. 2, 1936 (report
considered in the House).
For detailed discussion of committee consideration and
report in the Ritter impeachment proceedings, see
Sec. Sec. 18.1-18.4, infra.
---------------------------------------------------------------------------
Parliamentarian's Note: No resolution was adopted in the 74th
Congress to specifically authorize an investigation in that Congress by
the Committee on the Judiciary of charges of impeachment against Judge
Ritter, the investigation apparently having been completed in the 73d
Congress but not reported on to the House. Charges were introduced in
the 74th Congress against Judge Ritter and referred to the committee,
since the committee could not report resolutions and charges referred
in the 73d Congress, all business expiring in the House with a
Congress.(20)
---------------------------------------------------------------------------
20. For introduction of charges and a resolution impeaching Judge
Ritter in the 74th Congress, see Sec. Sec. 18.2, 18.3, infra.
---------------------------------------------------------------------------
[[Page 2020]]
CHAPTER 14
Impeachment Powers
B. INVESTIGATION AND IMPEACHMENT
Sec. 5. Introduction and Referral of Charges
In the majority of cases, impeachment proceedings in the House have
been initiated either by introducing resolutions of impeachment by
placing them in the hopper, or by offering charges on the floor of the
House under a question of constitutional privilege. Resolutions dropped
in the hopper were used to initiate impeachment proceedings against
Associate Justice William O. Douglas and President Richard M. Nixon.
Where such resolutions have directly impeached federal civil officers,
they have been referred by the Speaker to the Committee on the
Judiciary, which has jurisdiction over federal judges and presidential
succession; where they have called for an investigation into such
charges by the Committee on the Judiciary or by a select committee they
have been referred by the Speaker to the Committee on Rules, which has
had jurisdiction over resolutions authorizing investigations by
committees of the House.(1)
---------------------------------------------------------------------------
1. See Sec. Sec. 5.10, 5.11, infra. In the case of Justice Douglas,
the Committee on the Judiciary authorized a special
subcommittee to investigate the charges, without the adoption
by the House of a resolution specifically authorizing an
investigation (see Sec. 6.11, infra). In the case of President
Nixon, the Committee on the Judiciary reported a resolution
which was adopted by the House, specifically conferring on the
committee the power to investigate the charges (see Sec. 6.2,
infra).
---------------------------------------------------------------------------
Where a Member raises a question of constitutional privilege to
present impeachment proceedings on the floor of the House, he must in
the first instance offer a resolution, which resolution must directly
call for impeachment, rather than call for an
investigation.(2)
---------------------------------------------------------------------------
2. See Sec. 5.4, infra. But see Sec. 18.2, infra, for one occasion
where a Member gained the floor under a question of privilege
and offered charges but not a resolution of impeachment.
---------------------------------------------------------------------------
Impeachment proceedings in the House have been set in motion by
memorial or petition, (3) and on one occasion by message
from the President.(4) In the 93d Congress the Vice
President sought to initiate an investigation by the House into charges
pending
[[Page 2021]]
against him in the courts, but no action was taken on his request (by
letter to the Speaker).(5)
---------------------------------------------------------------------------
3. 3 Hinds' Precedents Sec. Sec. 2364, 2469 (memorial from state
legislature initiating proceedings against Judge Charles
Swayne, resulting in his impeachment), 2491, 2494, 2496; 6
Cannon's Precedents Sec. 552.
4. 3 Hinds' Precedents Sec. 2294 (Senator William Blount).
5. See Sec. 5.14, infra, for Vice President Spiro T. Agnew's request
and for a discussion of other cases where federal civil
officers have sought to initiate investigations into charges
against them.
---------------------------------------------------------------------------
Cross References
Initiation of specific impeachment proceedings, see Sec. Sec. 15-18,
infra.
Jurisdiction of House committees generally, see Ch. 17, infra.
Privilege for consideration of amendments to articles of impeachment,
see Sec. 10, infra.
Privilege of reports on impeachment, see Sec. 8, infra.
Questions of privilege of the House, raising and substance of, see Ch.
11, supra.
Resolutions, petitions and memorials generally, see Ch. 24,
infra. -------------------
Privilege of Impeachment Charges and Resolutions
Sec. 5.1 A proposition impeaching a federal civil officer is privileged
when offered on the floor of the House.
On Jan. 6, 1932,(6) Mr. Wright Patman, of Texas, rose to
a question of constitutional privilege, impeached Secretary of the
Treasury Andrew W. Mellon, and offered a resolution authorizing an
investigation:
---------------------------------------------------------------------------
6. 75 Cong. Rec. 1400, 72d Cong. 1st Sess.
---------------------------------------------------------------------------
Impeachment of Andrew W. Mellon, Secretary of the Treasury
Mr. Patman: Mr. Speaker, I rise to a question of constitutional
privilege. On my own responsibility as a Member of this House, I
impeach Andrew William Mellon, Secretary of the Treasury of the
United States, for high crimes and misdemeanors, and offer the
following resolution:
Whereas . . .
Resolved, That the Committee on the Judiciary is authorized
and directed, as a whole or by subcommittee, to investigate the
official conduct of Andrew W. Mellon, Secretary of the
Treasury, to determine whether, in its opinion, he has been
guilty of any high crime or misdemeanor which, in the
contemplation of the Constitution, requires the interposition
of the constitutional powers of the House. Such committee shall
report its findings to the House, together with such resolution
of impeachment or other recommendation as it deems proper.
Sec. 2. For the purposes of this resolution, the committee is
authorized to sit and act during the present Congress at such times
and places in the District of Columbia or elsewhere, whether or not
the House is sitting, has recessed, or has adjourned, to hold such
hearings, to employ such experts, and such clerical, stenographic,
and other assistants, to require the attendance of such witnesses
and the production of such books, papers, and documents, to take
such testimony, to have such printing and binding done, and to make
such expenditures not exceeding $5,000, as it deems necessary.
[[Page 2022]]
Sec. 5.2 Although a resolution of impeachment is privileged, it may not
be called up in the House while another Member has the floor and
does not yield for that purpose, but it may be introduced for
reference through the hopper at the Clerk's desk.
On Apr. 15, 1970, Mr. Louis C. Wyman, of New Hampshire, had the
floor for a special-order speech and yielded to Mr. Andrew Jacobs, Jr.,
of Indiana:
Mr. Jacobs: Mr. Speaker, will the gentleman yield for a three-
sentence statement?
Mr. Wyman: I yield to the gentleman from Indiana.
Mr. Jacobs: Mr. Speaker, the gentleman from Michigan has stated
publicly that he favors impeachment of Justice Douglas.
He, therefore, has a duty to this House and this country to
file a resolution of impeachment.
Since he refuses to do so and since he raises grave questions,
the answers to which I do not know, but every American is entitled
to know, I introduce at this time the resolution of impeachment in
order that a proper and dignified inquiry into this matter might be
held.
Mr. Jacobs then introduced his resolution (H. Res. 920) through the
hopper and it was subsequently referred to the Committee on the
Judiciary.(7)
---------------------------------------------------------------------------
7. 116 Cong. Rec. 11942, 91st Cong. 2d Sess.
---------------------------------------------------------------------------
The Speaker Pro Tempore: (8) The gentleman from New
Hampshire has the floor.
---------------------------------------------------------------------------
8. Charles M. Price (Ill.).
---------------------------------------------------------------------------
Mr. Wyman: I did not yield for that purpose.
The Speaker Pro Tempore: The gentleman from Indiana has
introduced a resolution.(9)
---------------------------------------------------------------------------
9. 116 Cong. Rec. 11920, 91st Cong. 2d Sess.
---------------------------------------------------------------------------
Sec. 5.3 The Speaker ruled that whether or not a resolution of
impeachment was privileged was a constitutional question for the
House and not the Chair to decide, where the resolution included
charges against former civil officers.
On May 23, 1933, Mr. Louis T. McFadden, of Pennsylvania, rose to a
question of constitutional privilege and offered House Resolution 158,
impeaching numerous members and former members of the Federal Reserve
Board. During the reading of the resolution Mr. Carl E. Mapes, of
Michigan, made a point of order against the resolution:
I wish to submit the question to the Speaker as to whether or
not a person who is not now in office is subject to impeachment?
This resolution of the gentleman from Pennsylvania refers to
several people who are no longer holding any public office. They
are not now at least civil officers. The Constitution
[[Page 2023]]
provides that the ``President, Vice President, and all civil
officers shall be removed from office on impeachment'', and so
forth. I have had no opportunity to examine the precedents since
this matter came up, but it occurs to me that the resolution takes
in too much territory to make it privileged.
Speaker Henry T. Rainey, of Illinois, ruled as follows:
That is a constitutional question which the Chair cannot pass
upon, but should be passed upon by the House.
The resolution was referred on motion to the Committee on the
Judiciary.(10)
---------------------------------------------------------------------------
10. 77 Cong. Rec. 4055, 73d Cong. 1st Sess.
---------------------------------------------------------------------------
Initiation of Impeachment Charges by Motion or Resolution
Sec. 5.4 In impeaching an officer of the United States as a matter of
constitutional privilege, a Member must in the first instance
present a motion or resolution.
On Jan. 18, 1933, Mr. Louis T. McFadden, of Pennsylvania, attempted
to impeach President Herbert Hoover by presenting a question of
constitutional privilege. Speaker John N. Garner, of Texas, ruled that
a resolution or motion must first be presented: (11)
---------------------------------------------------------------------------
11. 76 Cong. Rec. 2041, 2042, 72d Cong. 2d Sess.
---------------------------------------------------------------------------
Question of Privilege
Mr. McFadden: Mr. Speaker, I rise to a question of
constitutional privilege.
The Speaker: The gentleman will state it.
Mr. McFadden: Mr. Speaker, on December 13, 1932----
Mr. [Robert] Luce [of Massachusetts: Mr. Speaker, a point of
order.
The Speaker: The gentleman will state it.
Mr. Luce: Mr. Speaker, the raising of a question of
constitutional privilege must be preceded by a resolution or motion
The Speaker: As the Chair understands it, the gentleman is
stating his constitutional question. Has the gentleman a
resolution?
Mr. McFadden: I am trying to communicate to the House what I
propose to do here, Mr. Speaker.
Mr. Luce: I insist on the point of order, Mr. Speaker.
The Speaker: The rules of the House provide that the gentleman
must send a resolution to the Clerk's desk in raising a question of
constitutional privilege.
Mr. McFadden: If the Speaker will permit, I am attempting to
make a privileged statement to the House, and I believe I am within
my rights in doing this.
The Speaker: In order for the gentleman to have the right to
make such a statement to the House, he must send a resolution to
the Clerk's desk and have it read, on which the House may then act.
The gentleman would then have one hour in which to address the
House, if he presented a
[[Page 2024]]
question of constitutional privilege. That is the only way the
gentleman can obtain the floor.
Mr. McFadden: Mr. Speaker, I believe under the rules I am
entitled to make a statement.
The Speaker: Not prior to the submission of a resolution.
Mr. McFadden: If the Speaker will pardon me, I have not offered
a resolution. I rise to a question of constitutional privilege, and
I believe I have the right to communicate to the House a
constitutional privilege.
Mr. [Thomas L.] Blanton [of Texas]: Mr. Speaker, I make the
point of order that if the integrity of the gentleman has been
impugned in any way by anyone, this would give him a constitutional
privilege, and he has the right to rise to that privilege and state
it without offering a resolution.
The Speaker: That is true of a question of personal privilege,
but the gentleman rises to a question of constitutional privilege.
This can only be done, as the Chair understands it, by the
presentation of a resolution upon which the constitutional question
is based. A mere statement by the gentleman does not comply with
the rules of the House. If the gentleman has no resolution
involving a constitutional question, the Chair thinks he is not
entitled to recognition.
Mr. McFadden: May I point out, Mr. Speaker, that impeachment
proceedings are brought by other ways than formal whereases. It has
been done at times by a memorial. I insist, Mr. Speaker, I am
within my rights in communicating my statement to the House of
Representatives.
The Speaker: The Chair wants to give the gentleman all the
privileges he is entitled to under the rules of the House, but at
the same time it is the duty of the Chair to maintain the rules,
and it is the impression of the Chair from observation during the
last 20 years that whenever a Member states a question of
constitutional privilege it must be done in the form of a
resolution. If a Member raises a question of personal privilege,
the Member may then state the question of personal privilege and is
entitled to an hour. Questions of personal privilege are on a
different footing from a constitutional question of privilege.
Mr. McFadden: Mr. Speaker, I am still of the opinion that I am
within my constitutional rights and am entitled to communicate a
statement to the House of Representatives.
The Speaker: The Parliamentarian has just called the attention
of the Chair to a decision by Speaker Longworth, of February 16,
1929 (70th Cong., 2d sess., Record, p. 3602), in which he says:
In presenting a question of the privilege of the House a
Member, in the first instance, must present a motion or
resolution. Of course, this rule does not apply to a Member
rising to a question of personal privilege.
This is a decision of Speaker Longworth, rendered in 1929,
which is on all fours with this situation. The gentleman is not
presenting a question of personal privilege but a question of
constitutional privilege, and, in the instance referred to,
following a number of precedents, it was held that the Member must
present a resolution in the first instance on which to base his
statement to the House, and then would be entitled to one hour.
[[Page 2025]]
Mr. McFadden: Mr. Speaker, I again call attention to the fact
that impeachments may be brought by memorials and by other methods
than that which has been stated in the decision referred to.
The Speaker: When such memorials and petitions are presented to
the House they are referred to the committee having jurisdiction of
the particular subject. If a Member of the House bases his question
of privilege on a memorial or petition, the memorial or petition
must first be reported by the Clerk, and then the House may take
such action as it sees fit.
Mr. McFadden: May not a Member of the House, under the right
given him by the Constitution, present a communication to the House
of Representatives which might later result in an impeachment?
The Speaker: If the gentleman has a communication of that
character, let him send it to the Clerk's desk and the Clerk will
report it. Then the House can take such action as it deems proper.
The Chair wants to be perfectly frank, and if the gentleman from
Pennsylvania is undertaking to address the House for one hour, the
Chair has no objection to that; but the Chair must maintain the
rules and precedents of the House as the Chair finds them, and the
gentleman can not get the floor under the proposition he has
presented at the present time unless he sends up a resolution or
motion.
Offering Articles of Impeachment
Sec. 5.5 In presenting impeachment charges as privileged, a Member need
not offer articles of impeachment, which are prepared by the
appropriate committee.
On May 7, 1935,(12) Mr. Everett M. Dirksen, of Illinois,
rose to a question of constitutional privilege and impeached Judge
Samuel Alschuler; he offered House Resolution 214, authorizing an
investigation by the Committee on the Judiciary. During his remarks,
Speaker Joseph W. Byrns, of Tennessee, upheld the privileged nature of
the charges:
---------------------------------------------------------------------------
12. 79 Cong. Rec. 7081-86, 74th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Donald C.] Dobbins [of Illinois]: Mr. Speaker, a point of
order. I have heard no articles of impeachment read. As I have
listened to the matter presented by the gentleman from Illinois
[Mr. Dirksen], it is nothing more nor less than a resolution asking
for an inquiry, and not articles of impeachment. It seems to me
that it is not a privileged matter, and the gentleman is not
entitled to occupy the time of the House in this manner. The
gentleman has not offered any articles of impeachment.
The Speaker: The gentleman has offered no articles of
impeachment. He is simply making charges.
Mr. Dobbins: I assumed he had finished. There have been no
articles of impeachment presented.
The Speaker: Charges of impeachment; not articles of
impeachment.
Mr. Dobbins: I have heard no articles of impeachment read.
[[Page 2026]]
Mr. Dirksen: It seems to me this was in its entirety articles
of impeachment.
Mr. Dobbins: It is nothing more that a resolution of inquiry.
Mr. Dirksen: Perhaps the gentleman did not hear the first part
of my remarks. I will read the first paragraph of this report:
Samuel Alschuler, justice of the Circuit Court of Appeals,
Seventh Circuit, is impeached for high crimes and misdemeanors
in said office upon the following specific charges.
Mr. Dobbins: As I understand articles of impeachment, Mr.
Speaker, that does not amount to an impeachment at all.
The Speaker: The gentleman does not prepare articles of
impeachment. That is done by the committee.
Mr. Dobbins: It is simply a resolution of inquiry such as we
have offered here every day, and is not a privileged matter.
The Speaker: The Chair can only state what the gentleman said
when he took the floor; that is, that he was preferring charges of
impeachment against a certain United States circuit judge.
Mr. Dobbins: But there have been no such charges; simply a
resolution of inquiry.
The Speaker: The gentleman is making his charges now.
Debate on Question of Privilege to Present Impeachment Charges
Sec. 5.6 A Member recognized on a question of privilege to present
impeachment charges against an officer of the government is
entitled to an hour for debate.
On Jan. 14, 1936, Mr. Robert A. Green, of Florida, rose to a
question of constitutional privilege and presented charges of
impeachment against Judge Halsted L. Ritter. During the course of his
remarks, Speaker Joseph W. Byrns, of Tennessee, ruled as follows on
recognition and time for debate:
The Speaker: The Chair will state to the gentleman from
Michigan [Mr. Carl E. Mapes] that the gentleman from Florida having
raised a question of privilege and having made these charges is
entitled to 1 hour on the charges. The gentleman has been
recognized and may use all or any portion of the hour he sees
fit.(13)
---------------------------------------------------------------------------
13. 80 Cong. Rec. 404, 406, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
Sec. 5.7 In presenting impeachment charges as privileged, a Member is
not necessarily confined to a bare statement of the facts but may
supplement them with argumentative statements.
On May 7, 1935, Mr. Everett M. Dirksen, of Illinois, rose to a
question of constitutional privilege and impeached Circuit Judge Samuel
Alschuler. He was recognized for an hour and during his remarks Speaker
Joseph W. Byrns, of Ten
[[Page 2027]]
nessee, overruled a point of order against the content of his remarks:
(14)
---------------------------------------------------------------------------
14. 79 Cong. Rec. 7081-86, 74th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Hatton W.] Sumners of Texas: I am not familiar with the
precedents, but I have the impression that in preferring charges of
impeachment, argumentative statements should be avoided as much as
possible. If I am wrong in that statement with reference to what
the precedents and custom have established, I of course withdraw
the observation.
Mr. Dirksen: Mr. Speaker, I have no desire to violate the
precedents, and if I have done so it is only because I have not had
an opportunity to examine them thoroughly, but if the objection is
well taken, I should prefer not to present argumentative matters to
the House.
Mr. Sumners of Texas: I am sure the gentleman does not propose
to violate the precedents, and unfortunately I do not know about
the matter myself. I am not advised as to what the precedents
establish, but without looking them up, merely from the standpoint
of what would seem to be proper procedure, it occurs to me that all
argumentative statements be omitted in preferring impeachment
charges.
Mr. Dirksen: Mr. Speaker, there are two more pages of
explanatory matter which perhaps I should not present to the House
at this time if the point is well taken. I would, however, like to
put them into the Record as elaborating the statement of specific
charges that have been made.
The Speaker: The Chair thinks it is entirely up to the
gentleman from Illinois so far as the propriety of his statement is
concerned.
Mr. Dirksen: I do not want to violate any of the proprieties of
the House, Mr. Speaker.
Mr. Sumners of Texas: I do not know what they are myself.
The Speaker: The gentleman from Illinois is making his
statement on his own responsibility as a Member of the House.
On Jan. 14, 1936, Mr. Robert A. Green, of Florida, rose to a
question of constitutional privilege and presented charges of
impeachment against Judge Halsted L. Ritter. During the course of his
remarks, Speaker Byrns overruled a point of order against the personal
nature of Mr. Green's remarks: (15)
---------------------------------------------------------------------------
15. 80 Cong. Rec. 404, 406, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Carl E.] Mapes [of Michigan]: Mr. Speaker, as I
understand, the gentleman has made his impeachment charges, and for
the last 10 minutes has been proceeding almost entirely with an
argument and a personal statement which I do not think are in order
under the circumstances. I think I will make the point of order,
Mr. Speaker.
The Speaker: The Chair will state to the gentleman from
Michigan that the gentleman from Florida having raised a question
of privilege and having made these charges is entitled to 1 hour on
the charges. The gentleman has been recognized and may use all or
any portion of the hour he sees fit.
Mr. Mapes: Is the gentleman entitled during that hour to engage
in a general discussion of the charges?
[[Page 2028]]
The Speaker: He is, under all the precedents with which the
Chair is familiar.
Privilege of Questions Incidental to Impeachment
Sec. 5.8 Where privileged resolutions for the impeachment of a federal
civil officer have been referred to a committee, that committee may
report and call up as privileged resolutions incidental to
consideration of the impeachment question, including those
pertaining to subpena authority and funding of an investigation.
On Feb. 6, 1974, Peter W. Rodino, Jr., of New Jersey, Chairman of
the Committee on the Judiciary, called up as privileged House
Resolution 803, authorizing that committee to investigate the
sufficiency of grounds for impeachment of President Richard Nixon.
Various resolutions of impeachment of the President had previously been
referred to the committee.(16)
---------------------------------------------------------------------------
16. 120 Cong. Rec. 2349, 2350, 93d Cong. 2d Sess. For the events
leading up to the presentation and adoption of H. Res. 803, and
the reasons for its presentation, see Sec. 15, infra.
---------------------------------------------------------------------------
Parliamentarian's Note: Resolutions authorizing a committee to
conduct investigations with subpena power and resolutions funding such
investigations from the contingent fund of the House are normally only
privileged when respectively reported and called up by the Committee on
Rules or the Committee on House Administration.(17) But a
committee to which resolutions of impeachment have been referred may
report and call up as privileged resolutions incidental to the
consideration of the impeachment question. For example, charges of
impeachable offenses were referred to the Committee on the Judiciary in
1927, in relation to the conduct of District Judge Frank Cooper. The
Committee on the Judiciary subsequently called up as privileged a
resolution authorizing an investigation by the committee and funding
such investigation from the contingent fund of the House. In response
to a parliamentary inquiry, Speaker Nicholas Longworth, of Ohio, ruled
that the resolution was privileged ``because it relates to impeachment
proceedings.'' (18) If, however, such a
---------------------------------------------------------------------------
17. See Rule XI clause 22, House Rules and Manual Sec. 726 (1973),
giving privileged status to reports of the Committee on House
Administration on matters of expenditure of the contingent
fund.
18. 6 Cannon's Precedents Sec. 549. For other occasions where the
Committee on the Judiciary has reported and called up as
privileged resolutions authorizing the committee to conduct
impeachment investigations, see 3 Hinds' Precedents Sec. 2029
and 6 Cannon's Precedents Sec. Sec. 498, 528.
--------------------------------------------------------------------------
[[Page 2029]]
resolution is offered on the floor by a Member on his own initiative
and not reported from the committee to which the impeachment has been
referred, it is not privileged for immediate consideration, since not
directly calling for impeachment.(19)
--------------------------------------------------------------------------
19. 6 Cannon's Precedents Sec. 468.
---------------------------------------------------------------------------
Sec. 5.9 Resolutions proposing the discontinuation of impeachment
proceedings are privileged for immediate consideration when
reported from the committee charged with the investigation.
On Feb. 13, 1932, Mr. Hatton W. Sumners, of Texas, offered House
Report No. 444 and House Resolution 143, discontinuing impeachment
proceedings against Secretary of the Treasury Andrew W. Mellon. He
offered the report as privileged and it was immediately considered and
adopted by the House.(20)
---------------------------------------------------------------------------
20. 75 Cong. Rec. 3850, 72d Cong. 1st Sess.
---------------------------------------------------------------------------
On Feb. 24, 1933, Speaker John N. Garner, of Texas, held that a
resolution reported from the Committee on the Judiciary, proposing the
discontinuance of an impeachment proceeding, was privileged for
immediate consideration: (1)
---------------------------------------------------------------------------
1. 76 Cong. Rec. 4913, 72d Cong. 2d Sess. (also cited at 6 Cannon's
Precedents Sec. 514).
---------------------------------------------------------------------------
The Speaker: The Clerk will report the resolution.
The Clerk read the resolution, as follows:
House Resolution 387
Resolved, That the evidence submitted on the charges
against Hon. Harold Louderback, district judge for the northern
district of California, does not warrant the interposition of
the constitutional powers of impeachment of the House.
Mr. [Bertrand H.] Snell [of New York]: Mr. Speaker, when they
report back a resolution of that kind, is it a privileged matter?
The Speaker: It is not only a privileged matter but a highly
privileged matter.
Mr. [Leonidas C.] Dyer [of Missouri]: Mr. Speaker, this is the
first instance to my knowledge, in my service here, where the
committee has reported adversely on an impeachment charge.
The Speaker: The gentleman's memory should be refreshed. The
Mellon case was reported back from the committee, recommending that
impeachment proceedings be discontinued.
Mr. Snell: Was that taken up on the floor as a privileged
matter?
The Speaker: It was.
On Mar. 24, 1939, Mr. Sam Hobbs, of Alabama, called up a re
[[Page 2030]]
port of the Committee on the Judiciary on House Resolution 67, which
report recommended against the impeachment of Secretary of Labor
Frances Perkins. The report was called up as privileged and the House
immediately agreed to Mr. Hobbs' motion to lay the report on the
table.(2)
---------------------------------------------------------------------------
2. 84 Cong. Rec. 3273, 76th Cong. 1st Sess.
---------------------------------------------------------------------------
Referral of Resolutions Introduced Through Hopper
Sec. 5.10 Resolutions introduced through the hopper under Rule XXII
which directly called for the impeachment or censure of President
Richard Nixon in the 93d Congress were referred by the Speaker to
the Committee on the Judiciary, while resolutions calling for an
investigation by that committee or by a select committee with a
view toward impeachment were referred to the Committee on Rules.
On Oct. 23, 1973, resolutions relating to the impeachment of
President Nixon were introduced (placed in the hopper pursuant to Rule
XXII clause 4) and severally referred as follows: (3)
---------------------------------------------------------------------------
3. 119 Cong. Rec. 34873, 93d Cong. 1st Sess. See also 116 Cong. Rec.
11941, 11942, 91st Cong. 2d Sess., Apr. 15, 1970 (resolution
impeaching Associate Justice William O. Douglas of the Supreme
Court, referred to the Committee on the Judiciary). See also
House Rules and Manual Sec. 854 (1973) .
---------------------------------------------------------------------------
By Mr. Long of Maryland:
H. Con. Res. 365. Concurrent resolution of censureship without
prejudice to impeachment; to the Committee on the Judiciary.
By Ms. Abzug:
H. Res. 625. Resolution impeaching Richard M. Nixon, President
of the United States, for high crimes and misdemeanors; to the
Committee on the Judiciary.
By Mr. Ashley:
H. Res. 626. Resolution directing the Committee on the
Judiciary to investigate whether there are grounds for the
impeachment of Richard M. Nixon; to the Committee on Rules.
By Mr. Bingham:
H. Res. 627. Resolution directing the Committee on the
Judiciary to inquire into and investigate whether grounds exist for
the impeachment of Richard M. Nixon; to the Committee on Rules.
By Mr. Burton (for himself, Ms. Abzug, Mr. Anderson of
California, Mr. Aspin, Mr. Bergland, Mr. Bingham, Mr.
Brasco, Mr. Brown of California, Mr. Boland, Mr.
Brademas, Mrs. Chisholm, Mr. Culver, Mr. Conyers, Mr.
Dellums, Mr. Drinan, Mr. Eckhardt, Mr. Edwards of
California, Mr. Evans of Colorado, Mr. Fascell, Mr.
Fauntroy, Mr. Foley, Mr. William D. Ford, Mr. Fraser,
Mr. Giaimo, and Ms. Grasso):
[[Page 2031]]
H. Res. 628. Resolution directing the Committee on the
Judiciary to inquire into and investigate whether grounds exist for
the impeachment of Richard M. Nixon; to the Committee on Rules. . .
.
By Mr. Hechler of West Virginia:
H. Res. 631. Resolution that Richard M. Nixon, President of the
United States, is impeached of high crimes and misdemeanors; to the
Committee on the Judiciary.
By Mrs. Heckler of Massachusetts:
H. Res. 632. Resolution to appoint a Special Prosecutor; to the
Committee on the Judiciary. . . .
By Mr. McCloskey:
H. Res. 634. Resolution of inquiry; to the Committee on the
Judiciary.
H. Res. 635. Resolution for the impeachment of Richard M.
Nixon; to the Committee on the Judiciary.
By Mr. Mazzoli:
H. Res. 636. Resolution: an inquiry into the existence of
grounds for the impeachment of Richard M. Nixon, President of the
United States; to the Committee on Rules.
By Mr. Milford:
H. Res. 637. Resolution providing for the establishment of an
Investigative Committee to investigate alleged Presidential
misconduct; to the Committee on Rules.
By Mr. Mitchell of Maryland (for himself, Mr. Burton, and
Mr. Fauntroy):
H. Res. 638. Resolution impeaching Richard M. Nixon, President
of the United States, of high crimes and misdemeanors; to the
Committee on the Judiciary.
Sec. 5.11 The Committee on Rules has jurisdiction of resolutions
authorizing the Committee on the Judiciary to investigate the
conduct of federal officials and directing said committee to report
its findings to the House ``together with such resolutions of
impeachment as it deems proper.''
On Feb. 22, 1966,(4) a resolution (H. Res. 739)
``authorizing the Committee on the Judiciary to conduct certain
investigations'' was referred to the Committee on Rules. The resolution
called for an investigation into the official conduct of Federal
District Court Judges Alfred P. Murrah, Stephen S. Chandler, and Luther
Bohannon, in Oklahoma, and directed the Committee on the Judiciary to
report its findings to the House ``together with such resolutions of
impeachment as it deems proper.''
---------------------------------------------------------------------------
4. 112 Cong. Rec. 3665, 89th Cong. 2d Sess.
---------------------------------------------------------------------------
Motions to Lay on the Table or to Refer
Sec. 5.12 The motion to lay on the table applies to resolutions
proposing impeachment and may deprive a Member who has offered such
a resolution of recognition for debate thereon.
[[Page 2032]]
On Jan. 17, 1933,(5) Speaker John N. Garner, of Texas,
held that the motion to table applied to resolutions of impeachment and
could deprive the proponent of debate on such a resolution:
---------------------------------------------------------------------------
5. 76 Cong. Rec. 1965-68, 72d Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Louis T.] McFadden [of Pennsylvania]: On my own
responsibility, as a Member of the House of Representatives, I
impeach Herbert Hoover, President of the United States, for high
crimes and misdemeanors.
The Speaker: The Clerk will report the resolutions.
Mr. McFadden: Mr. Speaker, a parliamentary inquiry.
The Speaker: The gentleman will state it.
Mr. McFadden: Am I not entitled to an hour to discuss the
resolution?
The Speaker: The gentleman is entitled to an hour, but first
the Clerk must report the resolution of impeachment.
Mr. McFadden: I offer the following resolution.
The Speaker: The Clerk will report the resolution.
The Clerk read as follows: . . .
Mr. [Robert] Luce [of Massachusetts] (interrupting the reading
of the resolution): Mr. Speaker, a parliamentary inquiry.
The Speaker: The gentleman will state it.
Mr. Luce: On a previous occasion charges apparently of the same
purport were laid on the table by the House. Is it within the
province of any Member to evade the rules and to take a matter from
the table by proceeding with a second movement of the same sort?
The Speaker: The Chair, of course, has not heard the resolution
read. Probably if it was identical with the resolution submitted
some time ago and laid on the table there would be some question
whether or not a second impeachment could be had. But the President
can be impeached, or any person provided for by the Constitution, a
second time, and the Chair thinks the better policy would be to
have the resolution read and determine whether or not it is the
same.
Mr. [Fred A.] Britten [of Illinois]: Mr. Speaker, a
parliamentary inquiry.
The Speaker: The gentleman will state it.
Mr. Britten: Would a motion be in order at this time?
The Speaker: No. The Chair would not recognize any Member to
make a motion until the resolution is read.
Mr. Britten: Mr. Speaker, I ask unanimous consent that the
resolution be considered as having been read.
The Speaker: The Chair thinks the resolution should be read.
Mr. McFadden (again interrupting the reading of the
resolution): Mr. Speaker, a parliamentary inquiry.
The Speaker: The gentleman will state it.
Mr. McFadden: I understand that at the completion of the
reading of this resolution it is planned----
The Speaker: That is not a parliamentary inquiry. That is a
statement.
Mr. McFadden: I am attempting to state a parliamentary inquiry,
Mr. Speaker.
[[Page 2033]]
The Speaker: The gentleman will state it. The Chair will hear
the gentleman.
Mr. McFadden: During the opening I addressed the Speaker to
ascertain whether or not I would be protected in one hour time for
debate. I am prepared to debate. I understand a certain motion will
be made which will deprive me of that right.
The Speaker: The Chair can not control 434 Members of the House
in the motions they will make. The Chair must recognize them and
interpret the rules as they are written. That is what the Chair
intends to do. The gentleman from Pennsylvania would have an
opportunity to discuss this matter for an hour under the rules of
the House, if some gentleman did not take him off his feet by a
proper motion. [Applause.]
Mr. McFadden: That is what I was attempting to ascertain.
The Clerk concluded the reading of the resolution.
Mr. [Henry T.] Rainey [of Illinois]: Mr. Speaker, I move to lay
the resolution of impeachment on the table.
The Speaker: The gentleman from Illinois moves to lay the
resolution of impeachment on the table.
May the Chair be permitted to make a statement with reference
to the rule applying to that motion? The Parliamentarian has
examined the precedents with reference to the motion. Speaker Clark
and Speaker Gillette, under identical conditions, held that a
motion to lay on the table took a Member off the floor of the
House, although the general rules granted him one hour in which to
discuss the resolution of impeachment or privileges of the House.
Therefore the motion is in order.
Mr. [Bertrand H.] Snell [of New York]: Mr. Speaker, I demand
the yeas and nays.
Parliamentarian's Note: Under Rule XVI clause 4, the motion to lay
on the table may be offered while a question is under debate, including
a question of privilege, and is not debatable. The motion to refer is
also in order under the rule and is debatable within narrow limits. The
question of consideration may also be raised under Rule XVI clause 3;
it is not debatable, but may be demanded before debate on the pending
question, and may be raised against a question of the highest
privilege.(6)
---------------------------------------------------------------------------
6. See Rule XVI clauses 3, 4 and notes thereto, House Rules and Manual
Sec. Sec. 778-787 (1973).
---------------------------------------------------------------------------
Sec. 5.13 Resolutions authorizing investigations into charges of
impeachment have been referred, on motion, to the Committee on the
Judiciary.
On Jan. 24, 1939,(7) a Member declared his impeachment
of certain officials of the executive branch, including Secretary of
Labor Frances Perkins:
---------------------------------------------------------------------------
7. 84 Cong. Rec. 702-11, 76th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [J. Parnell] Thomas of New Jersey: Mr. Speaker, on my own
responsibility as a Member of the House
[[Page 2034]]
of Representatives, I impeach Frances Perkins, Secretary of Labor
of the United States; James L. Houghteling, Commissioner of the
Immigration and Naturalization Service of the Department of Labor;
and Gerard D. Reilly, Solicitor of the Department of Labor, as
civil officers of the United States, for high crimes and
misdemeanors in violation of the Constitution and laws of the
United States, and I charge that the aforesaid Frances Perkins,
James L. Houghteling, and Gerard D. Reilly, as civil officers of
the United States, were and are guilty of high crimes and
misdemeanors in office in manner and form as follows, to wit: . . .
Mr. Thomas offered a resolution authorizing an investigation of
charges, which resolution was referred, on motion, to the Committee on
the Judiciary:
Resolved, That the Committee on the Judiciary be and is hereby
authorized and directed, as a whole or by subcommittee, to
investigate the official conduct of Frances Perkins, Secretary of
Labor; James L. Houghteling, Commissioner of Immigration and
Naturalization Service, Department of Labor; and Gerard D. Reilly,
Solicitor, Department of Labor, to determine whether, in its
opinion, they have been guilty of any high crimes or misdemeanors
which, in the contemplation of the Constitution, requires the
interposition of the constitutional powers of the House. Such
committee shall report its findings to the House together with such
articles of impeachment as the facts may warrant.
For the purposes of this resolution the committee is authorized
and directed to sit and act, during the present session of
Congress, at such times and places in the District of Columbia, or
elsewhere, whether or not the House is sitting, has recessed, or
has adjourned; to hold hearings; to employ such experts and such
clerical, stenographic and other assistance; and to require the
attendance of such witnesses and the production of such books,
papers, and documents; and to take such testimony and to have such
printing and binding done; and to make such expenditures not
exceeding $10,000, as it deems necessary. . . .
Mr. [Sam] Rayburn [of Texas]: Mr. Speaker, I move that the
resolution be referred to the Committee on the Judiciary of the
House and upon that I desire to say just a word. A great many
suggestions have been made as to what should be done with this
resolution, but I think this would be the orderly procedure so that
the facts may be developed. The resolution will come out of that
committee or remain in it according to the testimony adduced.
I therefore move the previous question on my motion to refer,
Mr. Speaker.
The previous question was ordered.
The motion was agreed to.
On Jan. 6, 1932,(8) a privileged resolution proposing an
investigation directed towards impeachment, offered as privileged on
the floor, was on motion referred to the Committee on the Judiciary:
---------------------------------------------------------------------------
8. 75 Cong. Rec. 1400, 72d Cong. 1st Sess.
---------------------------------------------------------------------------
Impeachment of Andrew W. Mellon, Secretary of the Treasury
Mr. [Wright] Patman [of Texas]: Mr. Speaker, I rise to a
question of
[[Page 2035]]
constitutional privilege. On my own responsibility as a Member of
this House, I impeach Andrew William Mellon, Secretary of the
Treasury of the United States for high crimes and misdemeanors, and
offer the following resolution: . . .
Resolved, That the Committee on the Judiciary is authorized
and directed, as a whole or by subcommittee, to investigate the
official conduct of Andrew W. Mellon, Secretary of the
Treasury, to determine whether, in its opinion, he has been
guilty of any high crime or misdemeanor which, in the
contemplation of the Constitution, requires the interposition
of the constitutional powers of the House. Such committee shall
report its findings to the House together with such resolution
of impeachment or other recommendation as it deems proper.
Sec. 2. For the purposes of this resolution, the committee
is authorized to sit and act during the present Congress at
such times and places in the District of Columbia or elsewhere,
whether or not the House is sitting, has recessed, or has
adjourned, to hold such hearings, to employ such experts and
such clerical, stenographic, and other assistants, to require
the attendance of such witnesses and the production of such
books, papers, and documents, to take such testimony, to have
such printing and binding done, and to make such expenditures
not exceeding $5,000, as it deems necessary.
Mr. [Joseph W.] Byrns [of Tennessee]: Mr. Speaker, I move that
the articles just read be referred to the Committee on the
Judiciary, and upon that motion I demand the previous question.
The previous question was ordered.
The Speaker: (9) The question is on the motion of
the gentleman from Tennessee, that the articles be referred to the
Committee on the Judiciary. The motion was agreed to.
---------------------------------------------------------------------------
9. John N. Garner (Tex.).
---------------------------------------------------------------------------
Initiation of Investigation by Accused
Sec. 5.14 The Vice President sought to initiate an investigation by the
House of certain charges brought against him, but the House took no
action on the request.
On Sept. 25, 1973,(10) Speaker Carl Albert, of Oklahoma,
laid before the House a communication from Vice President Spiro T.
Agnew requesting that the House investigate charges which might
``assume the character of impeachable offenses'' made against him by a
U.S. Attorney in the course of a criminal investigation. The House took
no action on the request by motion or otherwise.
---------------------------------------------------------------------------
10. 119 Cong. Rec. 31368, 93d Cong. 1st Sess.
---------------------------------------------------------------------------
Parliamentarian's Note: Several resolutions were introduced on
Sept. 26, 1973, to authorize investigations into the charges referred
to, both by the Committee on the Judiciary and by a select committee.
The resolutions were referred to the Committee on Rules.(11)
---------------------------------------------------------------------------
11. See H. Res. 566 and H. Res. 567, 93d Cong. 1st Sess.
---------------------------------------------------------------------------
The Vice President cited in his letter a request made by Vice
[[Page 2036]]
President John C. Calhoun in 1826 and discussed at 3 Hinds' Precedents
Sec. 1736. On that occasion, the alleged charges related to the Vice
President's former tenure as Secretary of War. The communication 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.
Vice President Agnew did not cite a precedent occurring in 1873,
however, where the Committee on the Judiciary reported that a civil
officer--Vice President Schuyler Colfax--could not be impeached for
offenses allegedly committed prior to his term of office as a civil
officer under the United States. The committee had investigated at his
request whether Vice President Colfax had, during his prior term as
Speaker of the House, been involved in bribes of Members. As reported
in 3 Hinds' Precedents Sec. 2510, the committee concluded as follows in
its report to the House:
But we are to consider, taking the harshest construction of the
evidence, whether the receipt of a bribe by a person who afterwards
becomes a civil officer of the United States, even while holding
another official position, is an act upon which an impeachment can
be grounded to subject him to removal from an office which he
afterwards holds. To elucidate this we first turn to the
precedents.
Your committee find that in all cases of impeachment or
attempted impeachment under our Constitution there is no instance
where the accusation was not in regard to an act done or omitted to
be done while the officer was in office. In every case it has been
heretofore considered material that the articles of impeachment
should allege in substance that, being such officer, and while in
the exercise of the duties of his office, the accused committed the
acts of alleged inculpation.
The report was never finally acted upon by the House.
CHAPTER 14
Impeachment Powers
B. INVESTIGATION AND IMPEACHMENT
Sec. 6. Committee Investigations
The conduct of impeachment investigations is governed by those
portions of Rule XI relating to committee investigatory and hearing
procedure, and by any rules and special procedures adopted by the
committee for the inquiry.(12) An investigatory subcommittee
charged with an impeachment inquiry is limited to the powers expressly
authorized by the committee.(13)
---------------------------------------------------------------------------
12. See Sec. Sec. 6.3 et seq.
13. See Sec. 6.11, infra, for the creation of a subcommittee to
investigate and to report to the Committee on the Judiciary on
charges against Justice William O. Douglas. No authorizing
resolution for a committee investigation had been adopted by
the House, but resolutions of impeachment had been referred to
the committee.
---------------------------------------------------------------------------
[[Page 2037]]
Forms
Form of resolution authorizing an investigation of the sufficiency
of grounds for impeachment (of President Richard Nixon) and conferring
subpena power and authority to take testimony: (14)
---------------------------------------------------------------------------
14. 120 Cong. Rec. 2349, 2350, 93d Cong. 2d Sess., Feb. 6, 1974.
---------------------------------------------------------------------------
H. Res. 803
Resolved, That the Committee on the Judiciary, acting as a
whole or by any subcommittee thereof appointed by the chairman for
the purposes hereof and in accordance with the rules of the
committee, is authorized and directed to investigate fully and
completely whether sufficient grounds exist for the House of
Representatives to exercise its constitutional power to impeach
Richard M. Nixon, President of the United States of America. The
committee shall report to the House of Representatives such
resolutions, articles of impeachment, or other recommendations as
it deems proper.
Sec. 2. (a) For the purpose of making such investigation, the
committee is authorized to require--
(1) by subpena or otherwise--
(A) the attendance and testimony of any person (including at a
taking of a deposition by counsel for the committee); and
(B) the production of such things; and
(2) by interrogatory, the furnishing of such information;
as it deems necessary to such investigation.
(b) Such authority of the committee may be exercised--
(1) by the chairman and the ranking minority member acting
jointly, or, if either declines to act, by the other acting alone,
except that in the event either so declines, either shall have the
right to refer to the committee for decision the question whether
such authority shall be so exercised and the committee shall be
convened promptly to render that decision; or
(2) by the committee acting as a whole or by subcommittee.
Subpenas and interrogatories so authorized may be issued over the
signature of the chairman, or ranking minority member, or any
member designated by either of them, and may be served by any
person designated by the chairman, or ranking minority member, or
any member designated by either of them. The chairman, or ranking
minority member, or any member designated by either of them (or,
with respect to any deposition, answer to interrogatory, or
affidavit, any person authorized by law to administer oaths) may
administer oaths to any witness. For the purposes of this section,
``things'' includes, without limitation, books, records,
correspondence, logs, journals, memorandums, papers, documents,
writings, drawings, graphs, charts, photographs, reproductions,
recordings, tapes, transcripts, printouts, data compilations from
which informa
[[Page 2038]]
tion can be obtained (translated if necessary, through detection
devices into reasonably usable form), tangible objects, and other
things of any kind.
Sec. 3. For the purpose of making such investigation, the
committee, and any subcommittee thereof, are authorized to sit and
act, without regard to clause 31 of rule XI of the Rules of the
House of Representatives, during the present Congress at such times
and places within or without the United States, whether the House
is meeting, has recessed, or has adjourned, and to hold such
hearings, as it deems necessary.
Sec. 4. Any funds made available to the Committee on the
Judiciary under House Resolution 702 of the Ninety-third Congress,
adopted November 15, 1973, or made available for the purpose
hereafter, may be expended for the purpose of carrying out the
investigation authorized and directed by this resolution.
Form of resolution authorizing a committee to investigate whether a
judge (Halsted Ritter) has been guilty of high crimes or misdemeanors
requiring impeachment: (15)
---------------------------------------------------------------------------
15. H. Res. 163, 77 Cong. Rec. 4784, 4785, 73d Cong. 1st Sess., June 1,
1933.
---------------------------------------------------------------------------
House Resolution 163
Resolved, That the Committee on the Judiciary is authorized and
directed, as a whole or by subcommittee, to inquire into and
investigate the official conduct of Halsted L. Ritter, a district
judge for the United States District Court for the Southern
District of Florida, to determine whether in the opinion of said
committee he has been guilty of any high crime or misdemeanor which
in the contemplation of the Constitution requires the interposition
of the Constitutional powers of the House. Said committee shall
report its findings to the House, together with such resolution of
impeachment or other recommendation as it deems proper.
Sec. 2. For the purpose of this resolution, the committee is
authorized to sit and act during the present Congress at such times
and places in the District of Columbia and elsewhere, whether or
not the House is sitting, has recessed, or has adjourned, to hold
such hearing, to employ such clerical, stenographic, and other
assistance, to require the attendance of such witnesses and the
production of such books, papers, and documents, and to take such
testimony, to have such printing and binding done, and to make such
expenditures, not exceeding $5,000, as it deems necessary.
With the following committee amendments:
Page 2, line 5, strike out the words ``to employ such clerical,
stenographic, and other assistance''; and in line 9, on page 2,
strike out ``to have such printing and binding done, and to make
such expenditures, not exceeding $5,000.''
Form of subpena issued by the Committee on the Judiciary (to
President Richard Nixon) in the course of its impeachment inquiry:
(16)
---------------------------------------------------------------------------
16. Impeachment of Richard Nixon, President of the United States, H.
Rept. No. 93-1305, p. 234 (see pp. 234-78), Committee on the
Judiciary, printed in the Record at 120 Cong. Rec. 29282, 93d
Cong. 2d Sess., Aug. 20, 1974. For complete text of H. Rept.
No. 93-1305, see id. at pp. 29219-361.
---------------------------------------------------------------------------
[[Page 2039]]
By Authority of the House of Representatives of the Congress of the
United States of America
To Benjamin Marshall, or his duly authorized representative:
You are hereby commanded to summon Richard M. Nixon, President
of the United States of America, or any subordinate officer,
official or employee with custody or control of the things
described in the attached schedule, to be and appear before the
Committee on the Judiciary of the House of Representatives of the
United States, of which the Hon. Peter W. Rodino, Jr. is chairman,
and to bring with him the things specified in the schedule attached
hereto and made a part hereof, in their chamber in the city of
Washington, on or before April 25, 1974, at the hour of 10:00 a.m.
then and there to produce and deliver said things to said
Committee, or their duly authorized representative, in connection
with the Committee's investigation authorized and directed by H.
Res. 803, adopted February 6, 1974.
Herein fail not, and make return of this summons.
Cross References
House inquiries and the executive branch, see Ch. 15, infra.
Power of the House to punish for contempt, see Ch. 13, supra.
Referral of charges and resolutions authorizing investigations, see
Sec. 5, supra. -------------------
Referral of Resolutions Authorizing Impeachment Investigations
Sec. 6.1 Resolutions introduced which directly called for the
impeachment or censure of President Richard Nixon in the 93d
Congress were referred by the Speaker to the Committee on the
Judiciary, whereas resolutions calling for an investigation by that
committee or by a select committee with a view toward impeachment
were referred to the Committee on Rules.
On Oct. 23, 1973, several resolutions relating to the impeachment
of President Nixon were introduced and referred. Examples of those
referrals are as follows: (17)
---------------------------------------------------------------------------
17. 119 Cong. Rec. 34873, 93d Cong. 1st Sess. For a comprehensive
listing, see Sec. Sec. 5.10, supra (resolutions authorizing
investigations referred to Committee on Rules) and 5.13, supra
(resolutions authorizing investigations referred, on motion, to
the Committee on the Judiciary).
By Mr. Long of Maryland:
H. Con. Res. 365. Concurrent resolution of censureship without
prejudice to impeachment; to the Committee on the Judiciary.
By Ms. Abzug:
[[Page 2040]]
H. Res. 625. Resolution impeaching Richard M. Nixon, President
of the United States, for high crimes and misdemeanors; to the
Committee on the Judiciary.
By Mr. Ashley:
H. Res. 626. Resolution directing the Committee on the
Judiciary to investigate whether there are grounds for the
impeachment of Richard M. Nixon; to the Committee on Rules.
Report and Consideration of Resolutions Authorizing Impeachment
Investigations
Sec. 6.2 Although the House had adopted a resolution authorizing the
Committee on the Judiciary to conduct investigations within its
area of jurisdiction as defined in Rule XI clause 13, and although
the House had adopted a resolution intended to fund expenses of the
Richard Nixon impeachment inquiry by the committee, the Committee
on the Judiciary reported and called up as privileged a subsequent
resolution specifically mandating an impeachment investigation and
continuing the availability of funds, in order to confirm the
delegation of authority from the House to that committee to conduct
the investigation.
On Feb. 6, 1974, Peter W. Rodino, Jr., of New Jersey, Chairman of
the Committee on the Judiciary, called up for immediate consideration
House Resolution 803, authorizing the Committee on the Judiciary to
investigate the sufficiency of grounds for the impeachment of President
Nixon, which resolution had been reported by the committee on Feb. 1,
1974. The resolution read as follows: (18)
---------------------------------------------------------------------------
18. 120 Cong. Rec. 2349-51, 93d Cong. 2d Sess.
---------------------------------------------------------------------------
H. Res. 803
Resolved, That the Committee on the Judiciary, acting as a
whole or by any subcommittee thereof appointed by the chairman for
the purposes hereof and in accordance with the rules of the
committee, is authorized and directed to investigate fully and
completely whether sufficient grounds exist for the House of
Representatives to exercise its constitutional power to impeach
Richard M. Nixon, President of the United States of America. The
committee shall report to the House of Representatives such
resolutions, articles of impeachment, or other recommendations as
it deems proper.
Sec. 2. (a) For the purpose of making such investigation, the
committee is authorized to require--
(1) by subpena or otherwise--
(A) the attendance and testimony of any person (including at a
taking of a deposition by counsel for the committee); and
[[Page 2041]]
(B) the production of such things; and
(2) by interrogatory, the furnishing of such information;
as it deems necessary to such investigation.
(b) Such authority of the committee may be exercised--
(1) by the chairman and the ranking minority member acting
jointly, or, if either declines to act, by the other acting alone,
except that in the event either so declines, either shall have the
right to refer to the committee for decision the question whether
such authority shall be so exercised and the committee shall be
convened promptly to render that decision; or
(2) by the committee acting as a whole or by subcommittee.
Subpenas and interrogatories so authorized may be issued over the
signature of the chairman, or ranking minority member, or any
member designated by either of them, and may be served by any
person designated by the chairman, or ranking minority member, or
any member designated by either of them. The chairman, or ranking
minority member, or any member designated by either of them (or,
with respect to any deposition, answer to interrogatory, or
affidavit, any person authorized by law to administer oaths) may
administer oaths to any witness. For the purposes of this section,
``things'' includes, without limitation, books, records,
correspondence, logs, journals, memorandums, papers, documents,
writings, drawings, graphs, charts, photographs, reproductions,
recordings, tapes, transcripts, printouts, data compilations from
which information can be obtained (translated if necessary, through
detection devices into reasonably usable form), tangible objects,
and other things of any kind.
Sec. 3. For the purpose of making such investigation, the
committee, and any subcommittee thereof, are authorized to sit and
act, without regard to clause 31 of rule XI of the Rules of the
House of Representatives, during the present Congress at such times
and places within or without the United States, whether the House
is meeting, has recessed, or has adjourned, and to hold such
hearings, as it deems necessary.
Sec. 4. Any funds made available to the Committee on the
Judiciary under House Resolution 702 of the Ninety-third Congress,
adopted November 15, 1973, or made available for the purpose
hereafter, may be expended for the purpose of carrying out the
investigation authorized and directed by this resolution.
Chairman Rodino and Mr. Edward Hutchinson, of Michigan, ranking
minority member of the Committee on the Judiciary, explained the
purpose of the resolution, which had been adopted unanimously by the
committee, as follows:
Mr. Rodino: Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, the English statesman Edmund Burke said, in
addressing an important constitutional question, more than 200
years ago:
We stand in a situation very honorable to ourselves and
very useful to our country, if we do not abuse or
[[Page 2042]]
abandon the trust that is placed in us.
We stand in such a position now, and--whatever the result--we
are going to be just, and honorable, and worthy of the public
trust.
Our responsibility in this is clear. The Constitution says, in
article I, section 2, clause 5:
The House of Representatives, shall have the sole power of
impeachment.
A number of impeachment resolutions were introduced by Members
of the House in the last session of the Congress. They were
referred to the Judiciary Committee by the Speaker.
We have reached the point when it is important that the House
explicitly confirm our responsibility under the Constitution.
We are asking the House of Representatives, by this resolution,
to authorize and direct the Committee on the Judiciary to
investigate the conduct of the President of the United States, to
determine whether or not evidence exists that the President is
responsible for any acts that in the contemplation of the
Constitution are grounds for impeachment, and if such evidence
exists, whether or not it is sufficient to require the House to
exercise its constitutional powers.
As part of that resolution, we are asking the House to give the
Judiciary Committee the power of subpena in its investigations.
Such a resolution has always been passed by the House. The
committee has voted unanimously to recommend that the House of
Representatives adopt this resolution. It is a necessary step if we
are to meet our obligations. . . .
Mr. Hutchinson: Mr. Speaker, the first section of this
resolution authorizes and directs your Judiciary Committee to
investigate fully whether sufficient grounds exist to impeach the
President of the United States. This constitutes the first explicit
and formal action in the whole House to authorize such an inquiry.
The last section of the resolution validates the use by the
committee of that million dollars allotted to it last November for
purposes of the impeachment inquiry. Members will recall that the
million dollar resolution made no reference to the impeachment
inquiry but merely allotted that sum of money to the committee to
be expended on matters within its jurisdiction. All Members of the
House understood its intended purpose.
But the rule of the House defining the jurisdiction of
committees does not place jurisdiction over impeachment matters in
the Judiciary Committee. In fact, it does not place such
jurisdiction anywhere. So this resolution vests jurisdiction in the
committee over this particular impeachment matter, and it ratifies
the authority of the committee to expend for the purpose those
funds allocated to it last November, as well as whatever additional
funds may be hereafter authorized.
Parliamentarian's Note: Prior to the passage of House Resolution
803, the Committee on the Judiciary had been conducting an
investigation into the charges of impeachment against President Nixon
under its general investigatory authority, as extended by resolution
(H. Res. 74) of the House
[[Page 2043]]
on Feb. 28, 1973. House Resolution 74 authorized the Committee on the
Judiciary to conduct investigations, and to issue subpenas during such
investigations, within its jurisdiction ``as set forth in clause 13 of
Rule XI of the Rules of the House of Representatives'' [House Rules and
Manual Sec. 707 (1973)]. That clause did not specifically mention
impeachments as within the jurisdiction of the Committee on the
Judiciary. The House had provided for payment, from the contingent
fund, of further expenses of the Committee on the Judiciary in
conducting investigations, following the introduction and referral to
the committee of various resolutions proposing the impeachment of
President Nixon. Debate on those resolutions and the reports of the
Committee on House Administration, which had reported them to the
House, indicated that the additional funds for the investigations of
the Committee on the Judiciary were intended in part for use in
conducting an impeachment inquiry in relation to the
President.(19)
---------------------------------------------------------------------------
19. See H. Res. 702, 93d Cong. 1st Sess., Nov. 15, 1973, and H. Res.
1027, 93d Cong. 2d Sess., Apr. 29, 1974, and H. Rept. No. 93-
1009, Committee on House Administration, to accompany the
latter resolution. The report included a statement by Chairman
Rodino, of the Committee on the Judiciary, on the status of the
impeachment investigation and on the funds required to defray
the expenses and salaries of the impeachment inquiry staff.
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Interrogations and Depositions of Witnesses
Sec. 6.3 The House agreed to a resolution authorizing the counsel to
the Committee on the Judiciary to take depositions of witnesses in
an impeachment investigation when authorized by the chairman and
ranking minority member of the committee, notwithstanding a House
rule requiring at least two committee members to be present during
the taking of testimony at a formal committee hearing.
On Feb. 6, 1974, the House agreed to House Resolution 803, called
up as privileged by the Committee on the Judiciary, authorizing it to
investigate the sufficiency of grounds for the impeachment of President
Richard Nixon. The resolution authorized the taking of depositions as
follows: (1)
---------------------------------------------------------------------------
1. 120 Cong. Rec. 2349, 2350, 93d Cong. 2d Sess.
---------------------------------------------------------------------------
Sec. 2. (a) For the purpose of making such investigation, the
committee is authorized to require--
[[Page 2044]]
(1) by subpena or otherwise--
(A) the attendance and testimony of any person (including at a
taking of a deposition by counsel for the committee); and
(B) the production of such things; and
(2) by interrogatory, the furnishing of such information as it
deems necessary to such investigation.
(b) Such authority of the committee may be exercised--
(1) by the chairman and the ranking minority member acting
jointly, or, if either declines to act, by the other acting alone,
except that in the event either so declines, either shall have the
right to refer to the committee for decision the question whether
such authority shall be so exercised and the committee shall be
convened promptly to render that decision; or
(2) by the committee acting as a whole or by subcommittee.
In explanation of the provisions of the resolution, Chairman Peter
W. Rodino, Jr., of New Jersey, of the Committee on the Judiciary,
stated that the taking of depositions by counsel was intended to
expedite the proceedings and investigation.
Parliamentarian's Note: Rule XI clause 27(h) House Rules and Manual
Sec. 735 (1973), provided that each committee may fix the number of its
members to constitute a quorum for taking testimony and receiving
evidence, which shall not be less than two.
Sec. 6.4 The House in the 93d Congress failed to suspend the rules and
agree to a resolution authorizing the Committee on the Judiciary,
in holding hearings in its impeachment inquiry into the conduct of
President Richard Nixon, to proceed without regard to the House
rule requiring the application of the five-minute rule in the
interrogation of witnesses.
On July 1, 1974, Chairman Peter W. Rodino, Jr., of New Jersey,
moved to suspend the rules and sought agreement to a resolution
governing the Committee on the Judiciary in hearings conducted in its
impeachment inquiry against President Nixon:
H. Res. 1210
Resolved, That in conducting hearings held pursuant to House
Resolution 803, 93d Congress, the Committee on the Judiciary is
authorized to proceed without regard to the second sentence of
clause 27(f) (4) of rule XI of the rules of the House.
Mr. Rodino explained the purpose of the resolution:
Mr. Rodino: Mr. Speaker, this is a simple resolution which was
voted by the House Committee on the Judiciary by an overwhelming
vote of 31 to 6. The committee is attempting to meet its
responsibilities and to exercise its responsibilities under House
Resolution 803 with an eye toward achieving two objectives:
conducting the fairest and most thorough inquiry, and arriv
[[Page 2045]]
ing at the same time at a prompt conclusion to that inquiry as is
consistent with our responsibility.
I believe this resolution authorizing the committee to proceed
without regard to the 5-minute rule in the interrogation of
witnesses would greatly facilitate the achievement of those
objectives. It would permit both probing and orderly examination of
witnesses and still provide great flexibility to Members seeking
answers to specific relevant questions.
Mr. David W. Dennis, of Indiana, also of the Committee on the
Judiciary, demanded a second on the motion and opposed it on the ground
that abrogating the five-minute rule for witness interrogation
derogated the privileges and duties of the individual Members of the
House.
On a recorded vote, two-thirds did not vote in favor of the motion
to suspend the rules, and it was rejected.(2)
---------------------------------------------------------------------------
2. 120 Cong. Rec. 21849-55, 93d Cong. 2d Sess.
---------------------------------------------------------------------------
Evidentiary Hearing Procedures
Sec. 6.5 The Committee on the Judiciary adopted procedures in the 93d
Congress for presenting evidence and holding hearings in its
inquiry into the conduct of President Richard Nixon.
On May 2, 1974, the Committee on the Judiciary unanimously adopted
procedures for presenting evidentiary materials to the committee in
hearings during its inquiry into charges of impeachable conduct against
President Nixon: (3)
---------------------------------------------------------------------------
3. See H. Rept. No. 93-1305, at p. 8, Committee on the Judiciary, 93d
Cong. 2d Sess., reported Aug. 20, 1974.
---------------------------------------------------------------------------
Impeachment Inquiry Procedures
The Committee on the Judiciary states the following procedures
applicable to the presentation of evidence in the impeachment
inquiry pursuant to H. Res. 803, subject to modification by the
Committee as it deems proper as the presentation proceeds.
A. The Committee shall receive from Committee counsel at a
hearing an initial presentation consisting of (i) a written
statement detailing, in paragraph form, information believed by the
staff to be pertinent to the inquiry, (ii) a general description of
the scope and manner of the presentation of evidence, and (iii) a
detailed presentation of the evidentiary material, other than the
testimony of witnesses.
1. Each Member of the Committee shall receive a copy of (i) the
statement of information, (ii) the related documents and other
evidentiary material, and (iii) an index of all testimony, papers,
and things that have been obtained by the Committee, whether or not
relied upon in the statement of information.
2. Each paragraph of the statement of information shall be
annotated to related evidentiary material (e.g., documents,
recordings and transcripts
[[Page 2046]]
thereof, transcripts of grand jury or congressional testimony, or
affidavits). Where applicable, the annotations will identify
witnesses believed by the staff to be sources of additional
information important to the Committee's understanding of the
subject matter of the paragraph in question.
3. On the commencement of the presentation, each Member of the
Committee and full Committee staff, majority and minority, as
designated by the Chairman and the Ranking Minority Member, shall
be given access to and the opportunity to examine all testimony,
papers and things that have been obtained by the inquiry staff,
whether or not relied upon in the statement of information.
4. The President's counsel shall be furnished a copy of the
statement of information and related documents and other
evidentiary material at the time that those materials are furnished
to the Members and the President and his counsel shall be invited
to attend and observe the presentation.
B. Following that presentation the Committee shall determine
whether it desires additional evidence, after opportunity for the
following has been provided:
1. Any Committee Member may bring additional evidence to the
Committee's attention.
2. The President's counsel shall be invited to respond to the
presentation, orally or in writing as shall be determined by the
Committee.
3. Should the President's counsel wish the Committee to receive
additional testimony or other evidence, he shall be invited to
submit written requests and precise summaries of what he would
propose to show, and in the case of a witness precisely and in
detail what it is expected the testimony of the witness would be,
if called. On the basis of such requests and summaries and of the
record then before it, the Committee shall determine whether the
suggested evidence is necessary or desirable to a full and fair
record in the inquiry, and, if so, whether the summaries shall be
accepted as part of the record or additional testimony or evidence
in some other form shall be received.
C. If and when witnesses are to be called, the following
additional procedures shall be applicable to hearings held for that
purpose:
1. The President and his counsel shall be invited to attend all
hearings, including any held in executive session.
2. Objections relating to the examination of witnesses or to
the admissibility of testimony and evidence may be raised only by a
witness or his counsel, a Member of the Committee, Committee
counsel or the President's counsel and shall be ruled upon [by] the
Chairman or presiding Member. Such rulings shall be final, unless
overruled by a vote of a majority of the Members present. In the
case of a tie vote, the ruling of the Chair shall prevail.
3. Committee Counsel shall commence the questioning of each
witness and may also be permitted by the Chairman or presiding
Member to question a witness at any point during the appearance of
the witness.
4. The President's counsel may question any witness called
before the Committee, subject to instructions from the
[[Page 2047]]
Chairman or presiding Member respecting the time, scope and
duration of the examination.
D. The Committee shall determine, pursuant to the Rules of the
House, whether and to what extent the evidence to be presented
shall be received in executive session.
E. Any portion of the hearings open to the public may be
covered by television broadcast, radio broadcast, still
photography, or by any of such methods of coverage in accord with
the Rules of the House and the Rules of Procedure of the Committee
as amended on November 13, 1973.
F. The Chairman shall make public announcement of the date,
time, place and subject matter of any Committee hearing as soon as
practicable and in no event less than twenty-four hours before the
commencement of the hearing.
G. The Chairman is authorized to promulgate additional
procedures as he deems necessary for the fair and efficient conduct
of Committee hearings held pursuant to H. Res. 803, provided that
the additional procedures are not inconsistent with these
Procedures, the Rules of the Committee, and the Rules of the House.
Such procedures shall govern the conduct of the hearings, unless
overruled by a vote of a majority of the Members present.
H. For purposes of hearings held pursuant to these rules, a
quorum shall consist of ten Members of the Committee.
Sec. 6.6 In its impeachment inquiry into the conduct of President
Richard Nixon, the Committee on the Judiciary held hearings in
executive session for the presentation of statements of information
and supporting evidentiary material by the inquiry staff and for
the presentation of materials by the President's counsel.
In its final report recommending the impeachment of President Nixon
in the 93d Congress, the Committee on the Judiciary summarized the
proceedings of the committee which had been conducted in executive
session: (4)
---------------------------------------------------------------------------
4. H. Rept. No. 93-1305, at p. 9, Committee on the Judiciary, 93d
Cong. 2d Sess., reported Aug. 20, 1974, printed at 120 Cong.
Rec. 29221, 93d Cong. 2d Sess., Aug. 20, 1974.
---------------------------------------------------------------------------
From May 9, 1974 through June 21, 1974, the Committee
considered in executive session approximately six hundred fifty
``statements of information'' and more than 7,200 pages of
supporting evidentiary material presented by the inquiry staff. The
statements of information and supporting evidentiary material,
furnished to each Member of the Committee in 36 notebooks,
presented material on several subjects of the inquiry: the
Watergate break-in and its aftermath, ITT, dairy price supports,
domestic surveillance, abuse of the IRS, and the activities of the
Special Prosecutor. The staff also presented to the Committee
written reports on President Nixon's income taxes, presidential
impoundment of funds appropriated by Congress, and the bombing of
Cambodia.
[[Page 2048]]
In each notebook, a statement of information relating to a
particular phase of the investigation was immediately followed by
supporting evidentiary material, which included copies of documents
and testimony (much of it already on public record), transcripts of
presidential conversations, and affidavits. A deliberate and
scrupulous abstention from conclusions, even by implication, was
observed.
The Committee heard recordings of nineteen presidential
conversations and dictabelt recollections. The presidential
conversations were neither paraphrased nor summarized by the
inquiry staff. Thus, no inferences or conclusions were drawn for
the Committee. During the course of the hearings, Members of the
Committee listened to each recording and simultaneously followed
transcripts prepared by the inquiry staff.
On June 27 and 28, 1974, Mr. James St. Clair, Special Counsel
to the President made a further presentation in a similar manner
and form as the inquiry staff's initial presentation. The Committee
voted to make public the initial presentation by the inquiry staff,
including substantially all of the supporting materials presented
at the hearings, as well as the President's response.
Evidence in Impeachment Inquiries
Sec. 6.7 During an investigation into charges of impeachable offenses
against a Supreme Court Justice, the Committee on the Judiciary
authorized its subcommittee to request and inspect federal tax
data, and the President promulgated an executive order permitting
such inspection.
On May 26, 1970, the Committee on the Judiciary authorized by
resolution a subcommittee investigation of federal tax records of
Justice William O. Douglas and others:
Resolution for Special Subcommittee to Consider House Resolution
920
Resolved, That the Special Subcommittee to consider H. Res.
920, a resolution impeaching William O. Douglas, Associate Justice
of the Supreme Court of the United States, of high crimes and
misdemeanors in office, hereby is authorized and directed to obtain
and inspect from the Internal Revenue Service any and all materials
and information relevant to its investigation in the files of the
Internal Revenue Service, including tax returns, investigative
reports, or other documents, that the Special Subcommittee to
consider H. Res. 920 determines to be within the scope of H. Res.
920 and the various related resolutions that have been introduced
into the House of Representatives.
The Special Subcommittee on H. Res. 920 is authorized to make
such requests to the Internal Revenue Service as the Subcommittee
determines to be appropriate, and the Subcommittee is authorized to
amend its requests to designate such additional persons, taxpayers,
tax returns, investigative reports, and other documents as the
Subcommittee determines to be appro
[[Page 2049]]
priate during the course of this investigation.
The Special Subcommittee on H. Res. 920 may designate agents to
examine and receive information from the Internal Revenue Service.
This resolution specifically authorizes and directs the Special
Subcommittee to obtain and inspect from the Internal Revenue
Service the documents and other file materials described in the
letter dated May 12, 1970, from Chairman Emanuel Celler to the
Honorable Randolph Thrower. The tax returns for the following
taxpayers, and the returns for such additional taxpayers as the
Subcommittee subsequently may request, are included in this
resolution:
Associate Justice William O. Douglas, Supreme Court of the
United States, Washington, D.C. 20036.
Albert Parvin, 1900 Avenue of the Stars, Suite 1790,
Century City, Calif. 90067.
Albert Parvin Foundation, c/o Arnold & Porter, 1229 19th
Street, N.W., Washington, D.C. 20036.
The Center for the Study of Democratic Institutions, Box
4068, Santa Barbara, Calif. 93103.
Fund for the Republic, 136 East 57th Street, New York, N.Y.
10022.
Parvin-Dohrmann Corp. (Now Recrion Corp.), 120 N. Robertson
Blvd., Los Angeles, Calif. 90048.
On June 12, 1970, President Richard Nixon promulgated Executive
Order No. 11535 to allow such inspection:
Inspection of Tax Returns by the Committee on the Judiciary, House
of Representatives
By virtue of the authority vested in me by sections 55(a) and
1604(c) of the Internal Revenue Code of 1939, as amended (26 U.S.C.
(1952 Ed.) 55(a), 1604(c)), and by sections 6103(a) and 6106 of the
Internal Revenue Code of 1954, as amended (26 U.S.C. 6103(a),
6106), it is hereby ordered that any income, excess-profits,
estate, gift, unemployment, or excise tax return, including all
reports, documents, or other factual data relating thereto, shall,
during the Ninety-first Congress, be open to inspection by the
Committee on the Judiciary, House of Representatives, or any duly
authorized subcommittee thereof, in connection with its
consideration of House Resolution 920, a resolution impeaching
William O. Douglas, Associate Justice of the Supreme Court of the
United States. Whenever a return is open to inspection by such
Committee or subcommittee, a copy thereof shall, upon request, be
furnished to such Committee or subcommittee. Such inspection shall
be in accordance and upon compliance with the rules and regulations
prescribed by the Secretary of the Treasury in Treasury Decisions
6132 and 6133, relating to the inspection of returns by committees
of the Congress, approved by the President on May 3,
1955.(5)
---------------------------------------------------------------------------
5. See first report by the special subcommittee on H. Res. 920 of the
Committee on the Judiciary, committee print, 91st Cong. 2d
Sess., June 20, 1970, at pp. 14-20.
---------------------------------------------------------------------------
Sec. 6.8 During an impeachment investigation in the House into the
conduct of the President, the Senate adopted a resolution releasing
records
[[Page 2050]]
of a Senate select committee on Presidential campaign activities to
congressional committees and other persons and agencies with a
legitimate need therefore.
On July 29, 1974,(6) Senator Samuel J. Ervin, Jr., of
North Carolina, offered in the Senate a resolution (S. Res. 369),
relative to the records of a Senate select committee. The Senate
adopted the resolution following Senator Ervin's explanation as to the
needs and requests of the Committee on the Judiciary of the House:
---------------------------------------------------------------------------
6. 120 Cong. Rec. 25392, 25393, 93d Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. Ervin: Mr. President, under its present charter, the Senate
Select Committee on Presidential Campaign Activities has 90 days
after the 28th day of June of this year in which to wind up its
affairs. This resolution is proposed with the consent of the
committee, and its immediate consideration has been cleared by the
leadership on both sides of the aisle.
The purpose of this resolution is to facilitate the winding up
of the affairs of the Senate Select Committee. The resolution
provides that all of the records of the committee shall be
transferred to the Library of Congress which shall hold them
subject to the control of the Senate Committee on Rules and
Administration.
It provides that after these records are transferred to the
Library of Congress the Senate Committee on Rules and
Administration shall control the access to the records and either
by special orders or by general regulations shall make the records
available to courts, congressional committees, congressional
subcommittees, Federal departments and agencies, and any other
persons who may satisfy the Senate Committee on Rules and
Administration that they have a legitimate need for the records.
It provides that the records shall be maintained intact and
that none of the original records shall be released to any agency
or any person.
It provides further that pending the transfer of the records to
the Library of Congress and the assumption of such control by the
Senate Committee on Rules and Administration, that the Select
Committee, acting through its chairman or through its vice
chairman, can make these records available to courts or to
congressional committees or subcommittees or to other persons
showing a legitimate need for them.
I might state this is placed in here because of the fact that
we have had many requests from congressional committees for the
records. We have had requests from the Special Prosecutor and from
the courts. . . .
I might state in the past the committee has made available some
of the records to the House Judiciary Committee, at its request,
and to the Special Prosecutor at his request. The resolution also
provides that the action of the committee in doing so is ratified
by the Senate.
Sec. 6.9 In its inquiry into charges of impeachable of
[[Page 2051]]
fenses against President Richard Nixon, the Committee on the
Judiciary adopted procedures which ensured the confidentiality of
impeachment inquiry materials and which limited access to such
materials.
On Feb. 22, 1974, the Committee on the Judiciary unanimously
adopted a set of procedures to preserve the confidentiality of
evidentiary and other materials compiled in its impeachment inquiry
relating to the conduct of President Nixon: (7)
---------------------------------------------------------------------------
7. See H. Rept. No. 93-1305, at p. 8, Committee on the Judiciary,
printed in the Record at 120 Cong. Rec. 29219, 29221, 93d Cong.
2d Sess., Aug. 20, 1974, for brief discussion of the adoption
of the procedures.
The House had authorized the printing of additional copies
of the procedures for handling impeachment inquiry materials.
See H. Res. 1072, 93d Cong. 2d Sess., May 23, 1974.
---------------------------------------------------------------------------
Procedures for Handling Impeachment Inquiry Material
1. The chairman, the ranking minority member, the special
counsel, and the counsel to the minority shall at all times have
access to and be responsible for all papers and things received
from any source by subpena or otherwise. Other members of the
committee shall have access in accordance with the procedures
hereafter set forth.
2. At the commencement of any presentation at which testimony
will be heard or papers and things considered, each committee
member will be furnished with a list of all papers and things that
have been obtained by the committee by subpena or otherwise. No
member shall make the list or any part thereof public unless
authorized by a majority vote of the committee, a quorum being
present.
3. The special counsel and the counsel to the minority, after
discussion with the chairman and the ranking minority member, shall
initially recommend to the committee the testimony, papers, and
things to be presented to the committee. The determination as to
whether such testimony, papers, and things shall be presented in
open or executive session shall be made pursuant to the rules of
the House.
4. Before the committee is called upon to make any disposition
with respect to the testimony or papers and things presented to it,
the committee members shall have a reasonable opportunity to
examine all testimony, papers, and things that have been obtained
by the inquiry staff. No member shall make any of that testimony or
those papers or things public unless authorized by a majority vote
of the committee, a quorum being present.
5. All examination of papers and things other than in a
presentation shall be made in a secure area designated for that
purpose. Copying, duplicating, or removal is prohibited.
6. Any committee member may bring additional testimony, papers,
or things to the committee's attention.
7. Only testimony, papers, or things that are included in the
record will be reported to the House; all other testi
[[Page 2052]]
mony, papers, or things will be considered as executive session
material.
Rules for the Impeachment Inquiry Staff
1. The staff of the impeachment inquiry shall not discuss with
anyone outside the staff either the substance or procedure of their
work or that of the committee.
2. Staff offices on the second floor of the Congressional Annex
shall operate under strict security precautions. One guard shall be
on duty at all times by the elevator to control entry. All persons
entering the floor shall identify themselves. An additional guard
shall be posted at night for surveillance of the secure area where
sensitive documents are kept.
3. Sensitive documents and other things shall be segregated in
a secure storage area. They may be examined only at supervised
reading facilities within the secure area. Copying or duplicating
of such documents and other things is prohibited.
4. Access to classified information supplied to the committee
shall be limited by the special counsel and the counsel to the
minority to those staff members with appropriate security
clearances and a need to know.
5. Testimony taken or papers and things received by the staff
shall not be disclosed or made public by the staff unless
authorized by a majority of the committee.
6. Executive session transcripts and records shall be available
to designated committee staff for inspection in person but may not
be released or disclosed to any other person without the consent of
a majority of the committee.
Parliamentarian's Note: On June 21, 1974, a Member, John N.
Erlenborn, of Illinois, took the floor to allege that he was being
denied permission to study files and records gathered by the Committee
on the Judiciary in its impeachment inquiry into the conduct of the
President, in violation of Rule XI clause 27(c) of the House
rules.(8) Rule XI clause 27(c) provided that committee
hearings and records are to be kept separate from the records of the
committee chairman and that all Members of the House have access to
such records. Other provisions of the rule require that a committee may
receive testimony or evidence in executive session, and that the
proceedings of such sessions may not be released unless the committee
so determines. And non-committee Members of the House are not permitted
to attend executive committee sessions.(9)
---------------------------------------------------------------------------
8. 120 Cong. Rec. 20624, 93d Cong. 2d Sess.
9. Although Jefferson's Manual states that any Member may be present
at ``any select committee'' (House Rules and Manual Sec. 410
[1973]), a select committee appointed in 1834 held that its
proceedings should be confidential, not to be attended by any
person not invited or required. 3 Hinds' Precedents Sec. 1732.
See also 4 Hinds' Precedents Sec. 4540 for the principle that
committees may make their sessions executive and exclude
persons not members thereof.
---------------------------------------------------------------------------
[[Page 2053]]
Sec. 6.10 The Speaker laid before the House a communication from the
Chairman of the Committee on the Judiciary, submitting to the House
a ``statement of information'' concerning the income tax returns of
President Richard Nixon examined by that committee in executive
session during its impeachment inquiry, in order to comply with a
Treasury Department regulation requiring submission of Internal
Revenue Service files to the House prior to public release.
On July 25, 1974, Speaker Carl Albert, of Oklahoma, laid before the
House a communication from Chairman Peter W. Rodino, Jr., of New
Jersey, of the Committee on the Judiciary: (10)
---------------------------------------------------------------------------
10. 120 Cong. Rec. 25306, 25307, 93d Cong. 2d Sess.
---------------------------------------------------------------------------
Communicatton From the Chairman of the Committee on the Judiciary
The Speaker laid before the House the following communication
from the chairman of the Committee on the Judiciary:
Washington, D.C., July 26, 1974.
Hon. Carl Albert,
Speaker, House of Representatives, Washington, D.C.
Dear Mr. Speaker: On February 6, 1974, the House of
Representatives adopted H. Res. 803, which authorized and
directed the Committee on the Judiciary to investigate fully
and completely whether sufficient grounds exist for the House
of Representatives to exercise under Article I, Section 2 of
the Constitution, its power to impeach President Richard M.
Nixon.
In carrying out its responsibility under H. Res. 803, the
Judiciary Committee investigated allegations regarding
President Nixon's income tax returns. The Committee requested
access to the President's returns and reports on those returns
in the files of the Internal Revenue Service. This access was
granted by the President in Executive Order 11786, dated June
7, 1974, and information from the returns and IRS documents was
subsequently presented to the Committee in executive session.
The Committee is now publicly debating whether to report
various articles of impeachment to the House. In the course of
this debate reference will surely be made to income tax
information regarding the President. Under the Constitution and
H. Res. 803, it is appropriate, indeed necessary, to refer to
this information in a debate which is of the highest
Constitutional significance.
Commissioner Donald Alexander of the Internal Revenue
Service has requested that before information from IRS files is
released publicly it be submitted to the House, thus complying
with Treasury Department regulations. While this procedure is
undoubtedly unnecessary in view of this Committee's
Constitutional responsibility and the authority granted it by
H. Res. 803, in consideration of the Commissioner's position, I
am herewith submitting the enclosed Statement of Information,
Book X. This Book will be part of the Committee's record when
it makes its recommendation to the House.
Sincerely,
[[Page 2054]]
Peter W. Rodino, Jr.,
Chairman.
Subcommittee Procedures
Sec. 6.11 The Committee on the Judiciary authorized a special
subcommittee to investigate and report on charges of impeachable
offenses against a federal judge.
On June 20, 1970, a special subcommittee of the Committee on the
Judiciary, investigating charges of impeachment against Associate
Justice William O. Douglas, made an interim report to the committee as
to its authority and procedures: (11)
---------------------------------------------------------------------------
11. First report of the special subcommittee on H. Res. 920 of the
Committee on the Judiciary, committee print, 91st Cong. 2d
Sess., June 20, 1970.
---------------------------------------------------------------------------
I. Authority
On April 21, 1970, the Committee on the Judiciary adopted a
resolution to authorize the appointment of a Special Subcommittee
on H. Res. 920, a resolution impeaching William O. Douglas,
Associate Justice of the Supreme Court of the United States, of
high crimes and misdemeanors in office. Pursuant to this
resolution, the following members were appointed: Emanuel Celler
(New York), Chairman; Byron G. Rogers (Colorado); Jack Brooks
(Texas); William M. McCulloch (Ohio); and Edward Hutchinson
(Michigan).
The Special Subcommittee on H. Res. 920 is appointed and
operates under the Rules of the House of Representatives. Rule XI
13(f) empowers the Committee on the Judiciary to act on all
proposed legislation, messages, petitions, memorials, or other
matters relating to ``. . . Federal courts and judges.'' In the
91st Congress, Rule XI has been implemented by H. Res. 93, February
5, 1969. H. Res. 93 authorizes the Committee on the Judiciary,
acting as a whole or by subcommittee, to conduct full and complete
investigations and studies on the matters coming within its
jurisdiction, specifically ``. . . (4) relating to judicial
proceedings and the administration of Federal courts and personnel
thereof, including local courts in territories and possessions''.
H. Res. 93 empowers the Committee to issue subpenas, over the
signature of the Chairman of the Committee or any Member of the
Committee designated by him. Subpenas issued by the Committee may
be served by any person designated by the Chairman or such
designated Member.
On April 28, 1970, the Special Subcommittee on H. Res. 920 held
its organization meeting, appointed staff, and adopted procedures
to be applied during the investigation. Although the power to issue
subpenas is available, and the Subcommittee is prepared to use
subpenas if necessary to carry out this investigation, thus far all
potential witnesses have been cooperative and it has not been
necessary to employ this investigatory tool. The Special
Subcommittee operates under procedures established in paragraph 27,
Rules of Committee Procedure, of Rule XI of the House of
Representatives. These procedures will be followed until additional
rules are adopted, which, on the basis
[[Page 2055]]
of precedent in other impeachment proceedings, are determined by
the Special Subcommittee to be appropriate.
Issuance of Subpenas; Effect of Noncompliance
Sec. 6.12 The Committee on the Judiciary determined in the 93d Congress
that a federal civil officer could be impeached for failing to
comply with duly authorized subpenas issued by the committee in the
course of its investigation into impeachment charges against him.
On Aug. 20, 1974, the Committee on the Judiciary submitted to the
House a report (H. Rept. No. 93-1305) recommending the impeachment of
President Richard Nixon on three articles of impeachment, without an
accompanying resolution of impeachment, the President having resigned.
Article III, adopted by the committee on July 30, 1974, impeached the
former President for failing without lawful cause or excuse to comply
with subpenas issued by the committee for things and papers relative to
the impeachment inquiry.(12)
---------------------------------------------------------------------------
12. H. Rept. No. 93-1305, Committee on the Judiciary, 93d Cong. 2d
Sess., Aug. 20, 1974, printed in full in the Record at 120
Cong. Rec. 29219-361, 93d Cong. 2d Sess., Aug. 20, 1974. For
the articles impeaching President Nixon, see Sec. 3.1, supra.
The minority views challenge such a refusal to comply with a
subpena as grounds for impeachment (see Sec. 3.8, supra).
---------------------------------------------------------------------------
Parliamentarian's Note: The House has in the past considered the
question whether a federal civil officer was subject to contempt
proceedings for declining to honor a subpena issued in the course of an
impeachment investigation or investigation directed toward impeachment.
In 1879, a committee of the House was conducting an investigation, as
authorized by the House, into the conduct of the then Minister to
China, George Seward. In the course of its impeachment inquiry, the
committee issued subpenas to Mr. Seward commanding him to produce
papers in relation to the inquiry. Upon his refusal, he was arraigned
at the bar of the House for contempt. The contempt charge was referred
to the investigating committee, which concluded in its report (not
considered by the House) that an official threatened with impeachment
was not in contempt for declining to be sworn as a witness or to
produce documentary evidence.(13) Likewise, in 1837, a
committee was investigating expenditures in cer
[[Page 2056]]
tain executive departments, with a view towards impeachment (of heads
of departments or of President Andrew Jackson). The committee adopted a
resolution requesting papers from the President, who declined to
produce them and submitted a letter criticizing the committee for
requesting that he and the department heads ``become our own
accusers.'' The committee laid on the table resolutions censuring the
President for such action and the committee report concluded that there
was no privilege of the House to compel public officers to furnish
evidence against themselves.(14)
---------------------------------------------------------------------------
13. 3 Hinds' Precedents Sec. Sec. 1699, 1700.
14. 3 Hinds' Precedents Sec. 1737.
---------------------------------------------------------------------------
Court Access to Committee Evidence
Sec. 6.13 Where a federal court subpenaed in a criminal case certain
evidence gathered by the Committee on the Judiciary in an
impeachment inquiry, the House adopted a resolution granting such
limited access to the evidence as would not violate the privileges
of the House or its sole power of impeachment under the United
States Constitution.
On Aug. 22, 1974,(15) Speaker Carl Albert, of Oklahoma,
laid before the House subpenas issued by a federal district court in a
criminal case, requesting certain evidence gathered by the Committee on
the Judiciary and its subcommittee on impeachment, in the inquiry into
the conduct of President Richard Nixon. The House adopted a resolution
(H. Res. 1341) which granted such limited access to the evidence as
would not violate the privileges or constitutional powers of the House.
The resolution read as follows:
---------------------------------------------------------------------------
15. 120 Cong Rec. 30026, 93d Cong. 2d Sess.
---------------------------------------------------------------------------
H. Res. 1341
Whereas in the case of United States of America against John N.
Mitchell et al. (Criminal Case No. 74-110), pending in the United
States District Court for the District of Columbia, subpenas duces
tecum were issued by the said court and addressed to Representative
Peter W. Rodino, United States House of Representatives, and to
John Doar, Chief Counsel, House Judicial Subcommittee on
Impeachment, House of Representatives, directing them to appear as
witnesses before said court at 10:00 antemeridian on the 9th day of
September, 1974, and to bring with them certain and sundry papers
in the possession and under the control of the House of
Representatives: Therefore be it
Resolved, That by the privileges of this House no evidence of a
documentary character under the control and in the possession of
the House of Representatives can, by the mandate of process of the
ordinary courts of justice, be taken from such control or pos
[[Page 2057]]
session but by its permission; be it further
Resolved, That the House of Representatives under Article I,
Section 2 of the Constitution has the sole power of impeachment and
has the sole power to investigate and gather evidence to determine
whether the House of Representatives shall exercise its
constitutional power of impeachment; be it further
Resolved, That when it appears by the order of the court or of
the judge thereof, or of any legal officer charged with the
administration of the orders of such court or judge, that
documentary evidence in the possession and under the control of the
House is needful for use in any court of justice, or before any
judge or such legal officer, for the promotion of justice, this
House will take such action thereon as will promote the ends of
justice consistently with the privileges and rights of this House;
be it further
Resolved, That when said court determines upon the materiality
and the relevancy of the papers and documents called for in the
subpenas duces tecum, then the said court, through any of its
officers or agents, have full permission to attend with all proper
parties to the proceeding and then always at any place under the
orders and control of this House and take copies of all memoranda
and notes, in the files of the Committee on the Judiciary, of
interviews with those persons who subsequently appeared as
witnesses in the proceedings before the full Committee pursuant to
House Resolution 803, such limited access in this instance not
being an interference with the Constitutional impeachment power of
the House, and the Clerk of the House is authorized to supply
certified copies of such documents and papers in possession or
control of the House of Representatives that the court has found to
be material and relevant (except that under no circumstances shall
any minutes or transcripts of executive sessions, or any evidence
of witnesses in respect thereto, be disclosed or copied) and which
the court or other proper officer thereof shall desire, so as,
however, the possession of said papers, documents, and records by
the House of Representatives shall not be disturbed, or the same
shall not be removed from their place of file or custody under any
Members, officer, or employee of the House of Representatives; and
be it further
Resolved, That a copy of these resolutions be transmitted to
the said court as a respectful answer to the subpenas
aforementioned.
CHAPTER 14
Impeachment Powers
B. INVESTIGATION AND IMPEACHMENT
Sec. 7. Committee Consideration; Reports
Under Rule XI, the rules of the House are the rules of its
committees and subcommittees where applicable.(1)
Consideration by committees of impeachment propositions to be reported
to the House is therefore generally governed by the principles of
consideration and debate that are normally followed in taking up any
proposition. Thus, in the 93d Congress, the
---------------------------------------------------------------------------
1. Rule XI clause 27(a), House Rules and Manual Sec. 735 (1973).
---------------------------------------------------------------------------
[[Page 2058]]
Committee on the Judiciary adopted a resolution for the consideration
of articles impeaching President Richard Nixon, providing for general
debate, and permitting amendment under the five-minute
rule.(2)
---------------------------------------------------------------------------
2. See Sec. 7.2. infra.
---------------------------------------------------------------------------
Cross References
Committee consideration and reports generally, see Ch. 17, infra.
Committee powers and procedures as to impeachment investigations, see
Sec. 6, supra.
Committee procedure generally, see Ch. 17, infra.
Committee reports on grounds for impeachment, see Sec. 3, supra.
Management by reporting committee of impeachment propositions in the
House, see Sec. 8, infra.
Collateral References
Debates on Articles of Impeachment, Hearings of the Committee on the
Judiciary pursuant to H. Res. 803, July 24, 25, 26, 27, 29, and 30,
1974, 93d Cong. 2d Sess.
Impeachment of Richard M. Nixon, President of the United States, H.
Rept. No. 93-1305, Committee on the Judiciary, 93d Cong. 2d Sess.,
Aug. 20, 1974.
Associate Justice William O. Douglas, final report by the Special
Subcommittee on H. Res. 920, Committee on the Judiciary, 91st Cong.
2d Sess., Sept. 17
1970. -------------------
Consideration of Resolution and Articles of Impeachment
Sec. 7.1 Under the modern practice, the Committee on the Judiciary may
report to the House, when recommending impeachment, both a
resolution and articles of impeachment, to be considered together
by the House.
On July 8, 1912, Mr. Henry D. Clayton, of Alabama, of the Committee
on the Judiciary reported to the House a resolution (H. Res. 524)
impeaching Judge Robert Archbald. The resolution not only impeached but
set out articles of impeachment which the resolution stated were
sustained by the evidence.(3) A similar procedure was
followed in the impeachment of certain other judges--George
English,(4) Harold Louderback,(5) and Halsted
Ritter. The resolution of impeachment in the Ritter case incorporated
the articles (the articles themselves which followed the text below
have been omitted): (6)
---------------------------------------------------------------------------
3. 48 Cong. Rec. 8697, 8698, 62d Cong. 2d Sess. (report and resolution
printed in full in the Record).
4. 67 Cong. Rec. 6280, 69th Cong. 1st Sess., Mar. 25, 1926.
5. 76 Cong. Rec. 4913, 4914, 72d Cong. 2d Sess., Feb. 24, 1933.
6. 80 Cong. Rec. 3066, 74th Cong. 2d Sess., Mar. 2, 1936.
---------------------------------------------------------------------------
[[Page 2059]]
[H. Res. 422, 74th Cong., 2d Sess. (Rept. No. 2025)]
Resolution
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 House
Resolution 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.
Resolutions for Committee Consideration
Sec. 7.2 The Committee on the Judiciary adopted in the 93d Congress a
resolution governing its consideration of a motion to report to the
House a resolution and articles impeaching President Richard Nixon;
the resolution provided for general debate on the resolution,
reading the articles for amendment under the five-minute rule, and
considering the original motion as adopted should any article be
agreed to.
On July 23, 1974, the Committee on the Judiciary adopted a
resolution providing that on July 24 the committee should commence
general debate on reporting to the House a resolution and articles of
impeachment against President Nixon; the resolution provided for
general debate and reading of the articles for amendment under the
five-minute rule: (7)
---------------------------------------------------------------------------
7. H. Rept. No. 93-1305, at p. 10, Committee on the Judiciary, 93d
Cong. 2d Sess., reported Aug. 20, 1 1974.
---------------------------------------------------------------------------
Resolved, That at a business meeting on July 24, 1974, the
Committee shall commence general debate on a motion to report to
the House a Resolution, together with articles of impeachment,
impeaching Richard M. Nixon, President of the United States. Such
general debate shall consume no more than ten hours, during which
time no Member shall be recognized for a period to exceed 15
minutes. At the conclusion of general debate, the proposed articles
shall be read for amendment and Members shall be recognized for a
period of five minutes to speak on each
[[Page 2060]]
proposed article and on any and all amendments thereto, unless by
motion debate is terminated thereon. Each proposed article, and any
additional article, shall be separately considered for amendment
and immediately thereafter voted upon as amended for recommendation
to the House. At the conclusion of consideration of the articles
for amendment and recommendation to the House, if any article has
been agreed to, the original motion shall be considered as adopted
and the Chairman shall report to the House said Resolution of
impeachment, together with such articles as have been agreed to, or
if no article is agreed to, the Committee shall consider such
resolutions or other recommendations as it deems proper.
Broadcasting Committee Meetings During Consideration of Impeachment
Sec. 7.3 The House in the 93d Congress amended Rule XI of the rules of
the House to provide for broadcasting of meetings, as well as
hearings, of committees, thereby permitting radio and television
coverage of the consideration by the Committee on the Judiciary of
a resolution and articles of impeachment against President Richard
Nixon.
On July 22, 1974, Mr. B.F. Sisk, of California, called up by
direction of the Committee on Rules a resolution (H. Res. 1107)
amending the rules of the House.(8)
---------------------------------------------------------------------------
8. 120 Cong. Rec. 24436, 93d Cong. 2d Sess.
---------------------------------------------------------------------------
Debate on the resolution indicated that it was intended to clarify
the rules of the House to permit all committees to allow broadcasting
of their meetings as well as hearings by majority vote, but that its
immediate purpose was to allow the broadcasting of the proceedings of
the Committee on the Judiciary in considering a resolution and articles
of impeachment against President Nixon (to commence on July 24, 1974).
The House discussed the advisability of, and procedures for, televising
the proceedings of the Committee on the Judiciary, and adopted the
resolution.(9)
---------------------------------------------------------------------------
9. Speaker Carl Albert (Okla.) overruled a point of order against
consideration of the resolution and held that the question
whether a committee meeting was properly called was a matter
for the committee and not the House to consider. 120 Cong. Rec.
24437, 93d Con. 2d Sess.
---------------------------------------------------------------------------
Privilege of Reports on Impeachment Questions
Sec. 7.4 The reports of a committee to which has been referred
resolutions for the impeachment of a federal civil officer are
privileged for immediate consideration.
[[Page 2061]]
Resolutions impeaching federal civil officers, or resolutions
incidental to an impeachment question, are highly privileged under the
U.S. Constitution (Sec. 5, supra); reports thereon are likewise
considered as privileged.(10)
---------------------------------------------------------------------------
10. Rule XI clause 27 (d) (4), House Rules and Manual Sec. 735 (1973)
requires that, with certain exceptions, a measure not be
considered in the House until the third calendar day on which
the report thereon has been available to Members. However, on
July 13, 1971, Speaker Carl Albert (Okla.) held that a
committee report relating to the refusal of a witness to
respond to a subpena was not subject to the three-day rule. See
117 Cong. Rec. 24720-23, 92d Cong. 1st Sess. (H. Rept. No. 92-
349). The Speaker held in that case that ``the report is of
such high privilege under the inherent constitutional powers of
the House and under Rule IX that the provisions of clause 27(d)
(4) of Rule XI are not applicable.''
See also the dicta of Speaker Frederick H. Gillett (Mass.),
at 6 Cannon's Precedents Sec. 48, that impeachment charges were
privileged for immediate consideration due to their
particularly privileged status under the U.S. Constitution.
These arguments seem persuasive with respect to impeachment
cases when reported.
---------------------------------------------------------------------------
Privilege of Reports as to Discontinuance of Impeachment Proceedings
Sec. 7.5 Reports proposing discontinuance of impeachment proceedings
are privileged for immediate consideration when reported from the
Committee on the Judiciary.
On Feb. 13, 1932, Mr. Hatton W. Sumners, of Texas, offered House
Report No. 444 and House Resolution 143, discontinuing impeachment
proceedings against Secretary of the Treasury Andrew Mellon. He offered
the report as privileged and it was immediately considered and adopted
by the House.(11)
---------------------------------------------------------------------------
11. 75 Cong. Rec. 3850, 72d Cong. 1st Sess.
---------------------------------------------------------------------------
On Mar. 24, 1939, Mr. Sam Hobbs, of Alabama, called up a privileged
report of the Committee on the Judiciary on House Resolution 67, which
report recommended against the impeachment of Secretary of Labor
Frances Perkins. The report was called up as privileged and the House
immediately agreed to Mr. Hobbs' motion to lay the report on the
table.(12)
---------------------------------------------------------------------------
12. 84 Cong. Rec. 3273, 76th Cong. 1st Sess.
---------------------------------------------------------------------------
Calendaring and Printing of Impeachment Reports
Sec. 7.6 Reports of the Committee on the Judiciary recommending
impeachment of civil officers and judges of
[[Page 2062]]
the United States are referred to the House Calendar and ordered
printed.
A committee report on the impeachment of a federal civil officer is
referred to the House Calendar, ordered printed, and may be printed in
full in the Record either by resolution or pursuant to a unanimous
consent request.(13)
---------------------------------------------------------------------------
13. 48 Cong. Rec. 8697, 8698, 62d Cong. 2d Sess., July 8, 1912 (Judge
Robert Archbald); see also H. Rept. No. 653, 67 Cong. Rec.
6280, 69th Cong. 1st Sess., Mar. 25, 1926 (Judge George
English), printed in full in the Record by unanimous consent;
H. Rept. No. 2025, 80 Cong. Rec. 2528, 74th Cong. 2d Sess.,
Feb. 20, 1936 (Judge Halsted Ritter); H. Rept. No. 1305, 120
Cong. Rec. 29219, 93d Cong. 2d Sess., Aug. 20, 1974 (President
Richard Nixon), printed in full in the Record pursuant to H.
Res. 1333, 120 Cong. Rec. 29361, 29362.
---------------------------------------------------------------------------
Report Submitted Without Resolution of impeachment
Sec. 7.7 President Richard Nixon having resigned following the decision
of the Committee on the Judiciary to report to the House
recommending his impeachment, the committee's report, without an
accompanying resolution, was submitted to and accepted by the
House.
The Committee on the Judiciary considered proposed articles of
impeachment against President Nixon and adopted articles, as amended,
on July 27, 29, and 30, 1974. Before the committee report with articles
of impeachment were reported to the House, the President resigned his
office. The committee's report was therefore submitted to the House
without an accompanying resolution of impeachment. The report
summarized in detail the evidence against the President and the
committee's investigation and consideration of impeachment charges, and
included supplemental, additional, separate, dissenting, minority, and
concurring views as to the separate articles, the evidence before the
committee and its sufficiency for impeachment, and the standards and
grounds for impeachment of federal and civil officers.
The committee's recommendation read as follows:
The Committee on the Judiciary, to whom was referred the
consideration of recommendations concerning the exercise of the
constitutional power to impeach Richard M. Nixon, President of the
United States, having considered the same, reports thereon pursuant
to H. Res. 803 as follows and recommends that the House exercise
its constitutional power to impeach Richard M. Nixon, President of
the United States, and that articles of impeachment be exhibited to
the Senate as follows: . . .(14)
---------------------------------------------------------------------------
14. H. Rept. No. 93-1305, at p. 1, Committee on the Judiciary, printed
in the Record at 120 Cong. Rec. 29219, 93d Cong. 2d Sess.,
Aug. 20, 1974. For complete text of H. Rept. No. 93-1305, see
id. at pp 29219-361.
---------------------------------------------------------------------------
[[Page 2063]]
The report was referred by the Speaker to the House Calendar, and
accepted and ordered printed in full in the Record pursuant to the
following resolution, agreed to under suspension of the rules, which
acknowledged the intervening resignation of the President:
H. Res. 1333
Resolved, That the House of Representatives
(1) takes notice that
(a) the House of Representatives, by House Resolution 803,
approved February 6, 1974, authorized and directed the Committee on
the Judiciary to investigate fully and completely whether
sufficient grounds existed for the House of Representatives to
exercise its constitutional power to impeach Richard M. Nixon,
President of the United States of America; and
(b) the Committee on the Judiciary, after conducting a full and
complete investigation pursuant to House Resolution 803, voted on
July 27, 29, and 30, 1974 to recommend Articles of impeachment
against Richard M. Nixon, President of the United States of
America; and
(c) Richard M. Nixon on August 9, 1974 resigned the Office of
President of the United States of America;
(2) accepts the report submitted by the Committee on the
Judiciary pursuant to House Resolution 803 (H. Rept. 93-1305) and
authorizes and directs that the said report, together with
supplemental, additional, separate, dissenting, minority,
individual and concurring views, be printed in full in the
Congressional Record and as a House Document; and
(3) commends the chairman and other members of the Committee on
the Judiciary for their conscientious and capable efforts in
carrying out the Committee's responsibilities under House
Resolution 803.(15)
---------------------------------------------------------------------------
15. 120 Cong. Rec. 29361, 93d Cong. 2d Sess., Aug. 20, 1974.
---------------------------------------------------------------------------
Reports Discontinuing Impeachment Proceedings
Sec. 7.8 The Committee on the Judiciary unanimously agreed to report
adversely a resolution authorizing an impeachment investigation
into the conduct of the Secretary of Labor.
On Mar. 24, 1939,(16) a privileged report of the
Committee on the Judiciary was presented to the House; the report was
adverse to a resolution (H. Res. 67) authorizing an investigation of
impeachment charges against Secretary of Labor Frances Perkins and two
other officials of the Labor Department:
---------------------------------------------------------------------------
16. 84 Cong. Rec. 3273, 76th Cong. 1st Sess.
---------------------------------------------------------------------------
Impeachment Proceedings--Frances Perkins
Mr. [Sam] Hobbs [of Alabama]: Mr. Speaker, by direction of the
Committee
[[Page 2064]]
on the Judiciary I present a privileged report upon House
Resolution 67, which I send to the desk.
The Speaker: (17) The Clerk will report the
resolution.
---------------------------------------------------------------------------
17. William B. Bankhead (Ala.).
---------------------------------------------------------------------------
The Clerk read House Resolution 67.
Mr. Hobbs: Mr. Speaker, this is a unanimous report from the
Committee on the Judiciary adversing this resolution. I move to lay
the resolution on the table.
The Speaker: The question is on the motion of the gentleman
from Alabama to lay the resolution on the table.
The motion was agreed to.
Sec. 7.9 Where an impeachment resolution was pending before the
Committee on the Judiciary, and the official charged resigned, the
committee reported out a resolution recommending that the further
consideration of the charges be discontinued.
On Feb. 13, 1932,(18) the Committee on the Judiciary
reported adversely on impeachment charges and its resolution was
adopted by the House:
---------------------------------------------------------------------------
18. 75 Cong. Rec. 3850, 72d Cong. 1st Sess.
---------------------------------------------------------------------------
Impeachment Charges--Report From Committee on the Judiciary
Mr. [Hatton W.] Sumners of Texas: Mr. Speaker, I offer a report
from the Committee on the Judiciary, and I would like to give
notice that immediately upon the reading of the report I shall move
the previous question.
The Speaker: (19) The gentleman from Texas offers a
report, which the Clerk will read.
---------------------------------------------------------------------------
19. John N. Garner (Tex.).
---------------------------------------------------------------------------
The Clerk read the report, as follows:
House of Representatives--Relative to the Action of the
Committee on the Judiciary With Reference to House Resolution
92
Mr. Sumners of Texas, from the Committee on the Judiciary,
submitted the following report (to accompany H. Res. 143):
I am directed by the Committee on the Judiciary to submit
to the House, as its report to the House, the following
resolution adopted by the Committee on the Judiciary indicating
its action with reference to House Resolution No. 92 heretofore
referred by the House to the Committee on the Judiciary:
Whereas Hon. Wright Patman, Member of the House of
Representatives, filed certain impeachment charges against Hon.
Andrew W. Mellon, Secretary of the Treasury, which were
referred to this committee; and
Whereas pending the investigation of said charges by said
committee, and before said investigation had been completed,
the said Hon. Andrew W. Mellon was nominated by the President
of the United States for the post of ambassador to the Court of
St. James and the said nomination was duly confirmed by the
United States Senate pursuant to law, and the said Andrew W.
Mellon has resigned the position of Secretary of the Treasury:
Be it
Resolved by this committee, That the further consideration
of the said charges made against the said Andrew W. Mellon, as
Secretary of the Treasury, be, and the same are hereby
discontinued.
[[Page 2065]]
Minority Views
We can not join in the majority views and findings. While
we concur in the conclusions of the majority that section 243
of the Revised Statutes, upon which the proceedings herein were
based, provides for action in the nature of an ouster
proceeding, it is our view that the Hon. Andrew W. Mellon, the
former Secretary of the Treasury, having removed himself from
that office, no useful purpose would be served by continuing
the investigation of the charges filed by the Hon. Wright
Patman. We desire to stress that the action of the undersigned
is based on that reason alone, particularly when the
prohibition contained in said section 243 is not applicable to
the office now held by Mr. Mellon.
Fiorello H. LaGuardia.
Gordon Browning.
M. C. Tarver.
Francis B. Condon.
Mr. Sumners of Texas: Mr. Speaker I think the resolution is
fairly explanatory of the views held by the different members of
the committee. No useful purpose could be served by the consumption
of the usual 40 minutes, so I move the previous question.
The previous question was ordered.
The Speaker: The question is on agreeing to the resolution.
The resolution was agreed to.
Sec. 7.10 On one occasion, the Committee on the Judiciary reported
adversely on impeachment charges, finding the evidence did not
warrant impeachment, but the House rejected the report and voted
for impeachment.
On Feb. 24, 1933, the House considered House Resolution 387 (H.
Rept. No. 2065) from the Committee on the Judiciary, which included the
finding that charges against Judge Harold Louderback did not warrant
impeachment. Under a previous unanimous-consent agreement, an amendment
in the nature of a substitute, recommended by the minority of the
committee and impeaching the accused, was offered. The previous
question was ordered on the amendment and it was adopted by the
House.(20)
---------------------------------------------------------------------------
20. 76 Cong. Rec. 4913-25, 72d Cong. 2d Sess. For analyses of the
Louderback proceedings in the House, see Sec. Sec. 17.1-17.4,
infra, and 6 Cannon's Precedents Sec. 514.
---------------------------------------------------------------------------
CHAPTER 14
Impeachment Powers
B. INVESTIGATION AND IMPEACHMENT
Sec. 8. Consideration and Debate in the House
Reports on impeachment are privileged for immediate consideration
in the House.(1) Unless the House otherwise provides by
special order, propositions of impeachment are considered under
[[Page 2066]]
the general rules of the House applicable to other simple House
resolutions. Since 1912, the House has considered together the
resolution and articles of impeachment, although prior practice was to
adopt a resolution of impeachment and later to consider separate
articles of impeachment.(2)
---------------------------------------------------------------------------
1. See Sec. 8.2, infra, for the privilege of impeachment reports and
Sec. 7.6, supra, for their referral to the House Calendar.
Impeachment reports have usually been printed in full in the
Congressional Record and have laid over for a period of days
before consideration by the House, so that Members could
acquaint themselves with the contents of the reports.
2. See Sec. 8.1, infra.
---------------------------------------------------------------------------
The House has typically considered the resolution and articles
under unanimous-consent agreements, providing for a certain number of
hours of debate, equally divided and controlled by the proponents and
opposition, at the conclusion of which the previous question was
considered as ordered. In one case, an amendment was specifically made
in order under the unanimous-consent agreement governing consideration
of the resolution.(3)
---------------------------------------------------------------------------
3. Sec. Sec. 8.1, 8.4, infra.
---------------------------------------------------------------------------
The motion for the previous question and the motion to recommit are
applicable to a resolution and articles of impeachment being considered
in the House, and a separate vote may be demanded on substantive
propositions contained in the resolution.(4)
---------------------------------------------------------------------------
4. See Sec. Sec. 8.8-8.10, infra.
---------------------------------------------------------------------------
Cross References
Amendments generally, see Ch. 27, infra.
Consideration in the House of amendments to articles, see Sec. 10,
infra.
Consideration of resolutions electing managers, granting them powers
and funds, and notifying the Senate, see Sec. 9, infra.
Consideration and debate in Committee of the Whole generally, see Ch.
19, infra.
Consideration and debate in the House generally, see Ch. 29, infra.
Division of the question for voting, see Ch. 30, infra.
Privileged questions and reports interrupting regular order of
business, see Ch. 21, infra.
Summary of House consideration of specific impeachment resolutions, see
Sec. Sec. 14-18,
infra. -------------------
Controlling Time for Debate
Sec. 8.1 Under the later practice, resolutions and articles of
impeachment have been considered together in the House pursuant to
unanimous-consent agreements fixing the time for and control of
debate.
On Mar. 2, 1936, the House considered House Resolution 422,
impeaching Judge Halsted Ritter, pursuant to a unanimous-consent
agreement propounded by Chairman Hatton W. Sumners, of Texas, of the
Committee on the Judiciary, who had called up the report:
(5)
---------------------------------------------------------------------------
5. 80 Cong. Rec. 3066, 3069, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
[[Page 2067]]
The Speaker: (6) The gentleman from Texas asks
unanimous consent that debate on this resolution be continued for
4\1/2\ hours, 2\1/2\ hours to be controlled by himself and 2 hours
by the gentleman from New York [Mr. Hancock]; and at the expiration
of the time the previous question shall be considered as ordered.
Is there objection?
---------------------------------------------------------------------------
6. Joseph W. Byrns (Tenn.).
---------------------------------------------------------------------------
There was no objection.
On Feb. 24, 1933, House Resolution 387, recommending against the
impeachment of Judge Harold Louderback, was considered pursuant to a
unanimous-consent agreement, propounded by Mr. Thomas D. McKeown, of
Oklahoma, who called up the resolution, to allow a substitute amendment
recommending impeachment to be offered: (7)
---------------------------------------------------------------------------
7. 76 Cong. Rec. 4914, 72d Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. McKeown: Mr. Speaker, I ask unanimous consent that the time
for debate be limited to two hours to be controlled by myself, that
during that time the gentleman from New York [Mr. La Guardia] be
permitted to offer a substitute for the resolution and at the
conclusion of the time for debate the previous question be
considered as ordered.
The Speaker: (8) Then the Chair submits this: The
gentleman from Oklahoma asks unanimous consent that debate be
limited to two hours, to be controlled by the gentleman from
Oklahoma, that at the end of that time the previous question shall
be considered as ordered, with the privilege, however, of a
substitute resolution being offered, to be included in the previous
question. Is there objection?
---------------------------------------------------------------------------
8. John N. Garner (Tex.).
---------------------------------------------------------------------------
Mr. [William B.] Bankhead [of Alabama]: Mr. Speaker, reserving
the right to object for the purpose of getting the parliamentary
situation clarified before we get to the merits, is there any
question in the mind of the Speaker, if it is fair to submit such a
suggestion, as to whether or not the substitute providing for
absolute impeachment would be in order as a substitute for this
report?
The Speaker: That is the understanding of the Chair, that the
unanimous-consent agreement is, that the gentleman from New York
[Mr. LaGuardia] may offer a substitute, the previous question to be
considered as ordered on the substitute and the original resolution
at the expiration of the two hours. Is there objection?
There was no objection.
On Mar. 30, 1926, the House by unanimous consent agreed to a
procedure for the consideration of a resolution impeaching Judge George
English; the request was propounded by Chairman George S. Graham, of
Pennsylvania, of the Committee on the Judiciary:
The Speaker: (9) The gentleman from Pennsylvania
[Mr. Graham] asks unanimous consent that during today the debate be
equally divided between the affirmative and the negative, and that
he control one-half of the time and
---------------------------------------------------------------------------
9. Nicholas Longworth (Ohio).
---------------------------------------------------------------------------
[[Page 2068]]
that the other half be controlled by the gentleman from Alabama
[Mr. Bowling].(10)
--------------------------------------------------------------------------
10. 67 Cong. Rec. 6585-90, 69th Cong. 1st Sess. New agreements were
obtained on each succeeding day during debate on the
resolution.
---------------------------------------------------------------------------
In earlier practice, resolutions and articles were considered
separately, the articles being considered in the Committee of the Whole
on occasion. For example, the articles of impeachment against Justice
Samuel Chase were considered in the Committee of the Whole and were
read for amendment, although the resolution to impeach was earlier
considered in the House.(11) Again, during proceedings
against President Andrew Johnson, the House adopted a resolution which
provided for consideration and amendment of the articles in the
Committee of the Whole under the five-minute rule, at the conclusion of
general debate.(12)
---------------------------------------------------------------------------
11. 3 Hinds' Precedents Sec. Sec. 2343, 2344.
12. 3 Hinds' Precedents Sec. 2414.
---------------------------------------------------------------------------
The resolution and the articles of impeachment against Judge
Charles Swayne (1904, 1905) were considered separately but were both
considered in the House.(13)
---------------------------------------------------------------------------
13. 3 Hinds' Precedents Sec. Sec. 2472, 2474.
---------------------------------------------------------------------------
In the impeachment of Judge Robert Archbald (1912) the House
instituted the modern practice of considering the resolution and the
articles of impeachment together in the House, as opposed to the
Committee of the Whole.(14)
---------------------------------------------------------------------------
14. 6 Cannon's Precedents Sec. Sec. 499, 500.
---------------------------------------------------------------------------
Reports Privileged for Immediate Consideration
Sec. 8.2 Resolutions of impeachment, resolutions proposing abatement of
proceedings, and resolutions incidental to the question of
impeachment are privileged for immediate consideration when
reported from the committee to which propositions of impeachment
have been referred
On Mar. 2, 1936, Chairman Hatton W. Sumners, of Texas, of the
Committee on the Judiciary, called up as privileged House Resolution
422, impeaching Judge Halsted Ritter, and the House proceeded to its
immediate consideration.(15)
---------------------------------------------------------------------------
15. 80 Cong. Rec. 3066, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
On Feb. 24, 1933, Speaker John N. Garner, of Texas, held that a
resolution reported from the Committee on the Judiciary, proposing
discontinuance of impeachment proceedings, was privileged for immediate
consideration:
The Speaker: The Clerk will report the resolution.
The Clerk read the resolution, as follows:
[[Page 2069]]
House Resolution 387
Resolved, That the evidence submitted on the charges against
Hon. Harold Louderback, district judge for the northern district of
California, does not warrant the interposition of the
constitutional powers of impeachment of the House.
Mr. [Bertrand H.] Snell [of New York]: Mr. Speaker, when they
report back a resolution of that kind, is it a privileged matter?
The Speaker: It is not only a privileged matter but a highly
privileged matter.
Mr. [Leonidas C.] Dyer [of Missouri]: Mr. Speaker, this is the
first instance to my knowledge, in my service here, where the
committee has reported adversely on an impeachment charge.
The Speaker: The gentleman's memory should be refreshed. The
Mellon case was reported back from the committee, recommending that
impeachment proceedings be discontinued.
Mr. Snell: Was that taken up on the floor as a privileged
matter?
The Speaker: It was.(16)
---------------------------------------------------------------------------
16. 76 Cong. Rec. 4913, 72d Cong. 2d Sess. (See also 6 Cannon's
Precedents Sec. 514.)
---------------------------------------------------------------------------
On Mar. 24, 1939, Mr. Sam Hobbs, of Alabama, called up a report of
the Committee on the Judiciary, which report was adverse to House
Resolution 67, on the impeachment of Secretary of Labor Frances
Perkins. The report was called up as privileged and the House
immediately agreed to Mr. Hobbs' motion to lay the resolution on the
table.(17)
---------------------------------------------------------------------------
17. 84 Cong. Rec. 3273, 76th Cong. 1st Sess.
---------------------------------------------------------------------------
On Feb. 6, 1974, Chairman Peter W. Rodino, Jr., of New Jersey, of
the Committee on the Judiciary, called up as privileged House
Resolution 803, authorizing that committee to investigate the
sufficiency of grounds for impeachment of President Richard Nixon,
various resolutions of impeachment having been referred to the
committee. The House proceeded to its immediate
consideration.(18)
---------------------------------------------------------------------------
18. 120 Cong. Rec. 2349-63, 93d Cong. 2d Sess. For additional
discussion as to high privilege for consideration of
impeachment resolutions notwithstanding the normal application
of House rules, and of other resolutions incidental to
impeachment called up by the investigating committee, see
Sec. 7.4, supra.
---------------------------------------------------------------------------
Motion to Discharge Committee From Consideration of Impeachment
Proposal
Sec. 8.3 A Member announced his filing of a motion to discharge the
Committee on the Judiciary from further consideration of a
resolution proposing impeachment of the President.
[[Page 2070]]
On June 17, 1952,(19) a Member made an announcement
relating to impeachment charges against President Harry S. Truman:
---------------------------------------------------------------------------
19. 98 Cong. Rec. 7424, 82d Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Paul W.] Shafer [of Michigan]: Mr. Speaker, on April 28 of
this year I introduced House Resolution 614, to impeach Harry S.
Truman, President of the United States, of high crimes and
misdemeanors in office. This resolution was referred to the
Committee on the Judiciary, which committee has failed to take
action thereon.
Thirty legislative days having now elapsed since introduction
of this resolution, I today have placed on the Clerk's desk a
petition to discharge the committee from further consideration of
the resolution.
In my judgment, developments since I introduced the Resolution
April 28 have immeasurably enlarged and strengthened the case for
impeachment and have added new urgency for such action by this
House.
First. Since the introduction of this resolution, the United
States Supreme Court, by a 6-to-3 vote, has held that in his
seizure of the steel mills Harry S. Truman, President of the United
States, exceeded his authority and powers, violated the
Constitution of the United States, and flouted the expressed will
and intent of the Congress--and, in so finding, the Court gave
unprecedented warnings against the threat to freedom and
constitutional government implicit in his act.
Second. Despite the President's technical compliance with the
finding of the Court, prior to the Court decision he reasserted his
claim to the powers then in question, and subsequent to that
decision he has contemptuously called into question ``the intention
of the Court's majority'' and contemptuously attributed the limits
set on the President's powers not to Congress, or to the Court, or
to the Constitution, but to ``the Court's majority.''
Third. The Court, in its finding in the steel case, emphasized
not only the unconstitutionality of the Presidential seizure but
also stressed his failure to utilize and exhaust existing and
available legal resources for dealing with the situation, including
the Taft-Hartley law.
Fourth. The President's failure and refusal to utilize and
exhaust existing and available legal resources for dealing with the
emergency has persisted since the Court decision and in spite of
clear and unmistakable evidences of the will and intent of Congress
given in response to his latest request for special legislation
authorizing seizure or other special procedures.
The discharge petition did not gain the requisite number of
signatures for its consideration by the House.
Amendment of Resolution and Articles
Sec. 8.4 A resolution with articles of impeachment, being considered in
the House under a unanimous-consent agreement fixing control of
debate, is not subject to amend
[[Page 2071]]
ment unless the agreement allows an amendment to be offered, or the
Member in control offers an amendment or yields for amendment.
On Apr. 1, 1926, the House was considering a resolution impeaching
Judge George English. Pursuant to a unanimous-consent agreement, the
time for debate was being controlled by two Members. Following the
ordering of the previous question on the resolution, Speaker Nicholas
Longworth, of Ohio, answered a parliamentary inquiry propounded by Mr.
Tom T. Connally, of Texas:
Under the rules of the House would not this resolution be
subject to consideration under the five-minute rule for amendment?
The Speaker: The Chair thinks not.(20)
---------------------------------------------------------------------------
20. 67 Cong. Rec. 6733, 69th Cong. 1st Sess.
---------------------------------------------------------------------------
In the Harold Louderback impeachment proceedings in the House, the
resolution reported by the Committee on the Judiciary recommended
against impeachment, but the minority of the committee proposed a
resolution impeaching Judge Louderback. The substitute impeaching the
accused was offered and adopted by the House, pursuant to a unanimous-
consent agreement which fixed control and time of debate, but
specifically allowed the substitute resolution to be offered and voted
upon.(1)
---------------------------------------------------------------------------
1. 76 Cong. Rec. 4913, 4914, 72d Cong. 2d Sess., Feb. 24, 1933. For a
complete analysis of the procedure followed for consideration
of the Louderback impeachment, see Sec. Sec. 17.1 et seq.,
infra.
---------------------------------------------------------------------------
In the Charles Swayne impeachment, Mr. Henry W. Palmer, of
Pennsylvania, of the Committee on the Judiciary called up the
resolution of impeachment and controlled the time thereon. Before
moving the previous question, he offered an amendment to the resolution
of impeachment, to add clarifying and technical changes. The amendment
was agreed to.(2)
---------------------------------------------------------------------------
2. 39 Cong. Rec. 248, 58th Cong. 3d Sess., Dec. 13, 1904.
---------------------------------------------------------------------------
Debate on Impeachment Resolutions and Articles
Sec. 8.5 In debating articles of impeachment, a Member may refer to the
political, social, and family background of the accused.
On Mar. 2, 1936,(3) the House was debating articles of
impeachment against Judge Halsted Ritter. Mr. Louis Ludlow, of Indiana,
had the floor, and Speaker Joseph W. Byrns, of Tennessee, overruled
[[Page 2072]]
a point of order based on the irrelevancy of his remarks. The
proceedings were as follows:
---------------------------------------------------------------------------
3. 80 Cong. Rec. 3069, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. Ludlow: . . . I feel there is imposed upon me today a duty
and a responsibility to raise my voice in this case if for no other
purpose than to present myself as a character witness--a duty which
I could not conscientiously avoid and which I am very glad to
perform. Judge Ritter was born in Indianapolis, Ind. He springs
from a long and honored Hoosier ancestry, rooted in the pioneer
life of our Commonwealth. There are no better people than those who
comprised his ancestral train. People do not come any better
anywhere on this globe. Rugged honesty, outspoken truthfulness, and
high ideals are characteristics of his family. His father, Col. Eli
F. Ritter, was a man of outstanding character and personality, one
of the most public-spirited men I ever have known, a lawyer of
distinction, ranking high in a bar of great brilliancy that
included such stellar lights as Thomas A. Hendricks, Joseph E.
McDonald, and Benjamin Harrison, an unofficial advocate of the
people's cause in many a fight against vice and privilege, for whom
even those who felt his steel had a wholesome respect because of
his militant ardor on the side of right and civic virtue.
Mr. [Malcolm C.] Tarver [of Georgia]: Mr. Speaker, I rise to a
point of order.
The Speaker Pro Tempore: The gentleman will state it.
Mr. Tarver: The gentleman is endeavoring to read into the
Record a statement with regard to the progenitors of the gentleman
against whom these impeachment proceedings are pending. He is
referring to something that should not affect the judgment of the
House one way or the other, and, in my judgment, it is highly
improper, and the gentleman should not be allowed to continue.
The Speaker Pro Tempore: The chairman understands the gentleman
is proceeding under the order of the House, which provided for two
hours and a half on one side and 2 hours on the other. Of course,
the Chair cannot dictate to the gentleman just how he shall proceed
in his discussion of this resolution.
Mr. Tarver: It is then the ruling of the Speaker that during
the time for general debate Members may address themselves to
whatever subject they desire.
The Speaker: Members must address themselves to the resolution.
Mr. Ludlow: That is what I am trying to do, Mr. Speaker.
The Speaker: The gentleman will proceed in order.
Sec. 8.6 During debate on a resolution of impeachment, the Speaker
ruled that unparliamentary language, even if a recitation of
testimony or evidence, could not be used in debate.
On Mar. 30, 1926, during debate on the resolution and articles of
impeachment against Judge George English, Speaker Nicholas Longworth,
of Ohio, delivered a ruling on the use of unparliamentary language in
debate, and the House discussed his decision:
[[Page 2073]]
The Speaker: The Chair desires to make a statement. The Chair
has been in doubt on one or two occasions this afternoon whether he
should permit the use of certain language even by way of quotation.
The Chair at the time realized, of course, that the members of the
majority of the committee might think the use of this language
would be material in describing an individual. The Chair hopes that
it will not be used further during this debate and suggests also
that those words be stricken from the Record. [Applause.]
Mr. [John N.] Tillman [of Arkansas]: I think the Speaker will
remember I stated when I put the speech in the Record that I
intended to strike out those words.
The Speaker: There were other occasions besides that to which
the gentleman refers.
Mr. [Edward J.] King [of Illinois]: Mr. Speaker, a
parliamentary inquiry.
The Speaker: The gentleman will state it.
Mr. King: Will the language also be stricken out of the
evidence in the case and in the report of the committee?
The Speaker: The Chair does not think that has anything to do
with the use of language on the floor of the House.
Mr. [Tom T.] Connally of Texas: Mr. Speaker, a parliamentary
inquiry.
The Speaker: The gentleman will state it.
Mr. Connally of Texas: Without taking any exception to the
Chair's views as to striking from the printed Record what has
already happened, it seems to me the Chair ought to make clear his
ruling so that we may know as to how far it shall be regarded as a
precedent in the future. The House, as I understand it, at the
present moment is proceeding as an inquisitorial body, somewhat as
a grand jury, as in a semijudicial proceeding; and if we have
unpleasant matters in court, the court can not avoid its duty
because they are unpleasant, and if it becomes necessary in this
Chamber for Members to properly present this case or to quote the
testimony in the record to use unpleasant and offensive language to
establish the truth, I think the House ought to hear it. It is
neither wise nor safe to censor the evidence. We must hear it, good
or bad, because it is the evidence. If it is suppressed or colored,
it is no longer the true evidence in the case. I sympathize with
the Chair's position, and I know he is prompted by the best
motives, by a sense of delicacy and consideration for the
galleries. I think it is well for the House and Chair now to
understand that the ruling of the Chair ought not to be regarded as
a precedent in the future which might operate to exclude competent
evidence, because when we are dealing with a matter of this kind,
serious and important as it is, we want to know the truth, whatever
it may be, and those who come here to hear these proceedings of
course do so at their own risk. [Laughter.]
The Speaker: The Chair thinks his ruling ought to be regarded
as a precedent as far as these proceedings in the House are
concerned. If the Chair should be officially advised that the use
of this language is actually necessary, he might order the
galleries cleared.
Mr. [Fiorello H.] LaGuardia [of New York]: Mr. Speaker, a
parliamentary inquiry.
[[Page 2074]]
The Speaker: The gentleman will state it.
Mr. LaGuardia: The Chair's ruling, as I understand it, is that
under the rules of the House language that is not parliamentary
should not be used; but that does not prevent the consideration of
whether or not a particular judge whose case we are trying used the
language or not?
The Speaker: Not at all. It is simply the use of certain
language on the floor of the House.
Mr. [Charles R.] Crisp [of Georgia]: Mr. Speaker, I want to
enter my approval of the course the Speaker has taken. Members of
this House, if they desire to know what the language is, can read
the record, and I thoroughly endorse the course the Speaker
pursued.
Sec. 8.7 During debate in the House objection was made to extensions of
remarks in the Congressional Record in order that an accurate
record of impeachment proceedings be preserved.
In April 1926,(4) the House was considering a resolution
impeaching Judge George English. When a Member asked unanimous consent
to revise and extend his remarks in the Record, Mr. C. William
Ramseyer, of Iowa, objected stating that his object was to ``have the
Record, preceding the vote, show exactly what transpired and what was
said.'' He indicated that no objection would be made to the extension
of remarks after the vote had occurred on the resolution of
impeachment.(5)
---------------------------------------------------------------------------
4. 67 Cong. Rec. 6602, 69th Cong. 1st Sess.
5. Id. at p. 6717.
---------------------------------------------------------------------------
Motion for Previous Question
Sec. 8.8 The motion for the previous question is applicable to a
resolution of impeachment.
On Dec. 13, 1904, the House was considering a resolution impeaching
Judge Charles Swayne of high crimes and misdemeanors. The manager of
the resolution, Mr. Henry W. Palmer, of Pennsylvania, moved the
previous question on the resolution at the conclusion of debate
thereon. Mr. Richard Wayne Parker, of New Jersey, made a point of order
against the offering of the motion, on the ground that the previous
question should not be directly ordered upon a question of high
privilege such as impeachment. Speaker Joseph G. Cannon, of Illinois,
ruled that under the precedents the previous question was in
order.(6)
---------------------------------------------------------------------------
6. 39 Cong. Rec. 248, 58th Cong. 3d Sess.
---------------------------------------------------------------------------
Motion to Recommit
Sec. 8.9 After the previous question has been ordered on a
[[Page 2075]]
resolution of impeachment, a motion to recommit, with or without
instructions, is in order, but is not debatable.
On Apr. 1, 1926, the House was considering House Resolution 195,
impeaching Judge George English, United States District Judge for the
Eastern District of Illinois. After the previous question was ordered,
a motion was offered to recommit the resolution with instructions. The
instructions directed the Committee on the Judiciary to take the
testimony of certain persons and authorized the committee to send for
persons and papers, administer oaths, and report at any time.
The motion was rejected on a yea and nay vote.(7)
---------------------------------------------------------------------------
7. 67 Cong. Rec. 6734, 69th Cong. 1st Sess.
---------------------------------------------------------------------------
Parliamentarian's Note: A motion to recommit, with or without
instructions, on a resolution of impeachment, is not debatable. Rule
XVI clause 4, House Rules and Manual Sec. 782 (1973), amended in the
92d Congress to allow debate on certain motions to recommit with
instructions, does not apply to simple resolutions but only to bills or
joint resolutions.(8)
---------------------------------------------------------------------------
8. See Ch. 23, infra, for the motion to recommit and debate thereon.
---------------------------------------------------------------------------
Division of the Question
Sec. 8.10 A separate vote may be demanded on any substantive
proposition contained in a resolution of impeachment, when the
question recurs on the resolution.
On Mar. 30, 1926, the House was considering a resolution and
articles of impeachment against Judge George English. Mr. Charles R.
Crisp, of Georgia, inquired whether, under Rule XVI clause 6, a
separate vote could be demanded on any substantive proposition
contained in the resolution of impeachment. Speaker Nicholas Longworth,
of Ohio, responded in the affirmative.(9)
---------------------------------------------------------------------------
9. 67 Cong. Rec. 6589, 6590, 69th Cong. 1st Sess. See House Rules and
Manual Sec. 791 (1973).
---------------------------------------------------------------------------
When the vote recurred on the resolution of impeachment, on Apr. 1,
1926, a separate vote was demanded on Article I. The House rejected the
motion to strike the article.(10)
---------------------------------------------------------------------------
10. 67 Cong. Rec. 6734, 69th Cong. 1st Sess.
---------------------------------------------------------------------------
Parliamentarian's Note: A division of the question may be demanded
at any time before the question is put on the resolution. During the
Judge English proceedings, the Speaker put the question on the
resolution and announced that it was adopted. A Member objected that he
had meant to ask for a separate vote and the Speaker allowed such a
[[Page 2076]]
demand (thereby vacating the proceedings by unanimous consent) because
of confusion in the Chamber, although he stated that the demand was
untimely.(11)
---------------------------------------------------------------------------
11. Id. at pp. 6734, 6735.
---------------------------------------------------------------------------
Broadcasting House Proceedings
Sec. 8.11 The House adopted a resolution in the 93d Congress
authorizing television, radio, and photographic coverage of
projected House consideration of a resolution impeaching President
Richard Nixon, thereby waiving rulings of the Speaker prohibiting
such coverage of House proceedings.
On Aug. 7, 1974,(12) Mr. Ray J. Madden, of Indiana,
called up by direction of the Committee on Rules House Resolution 802,
with committee amendments, for the broadcasting of House proceedings on
the impeachment of President Nixon, the Committee on the Judiciary
having decided on July 27, 29, and 30 to report to the House
recommending the President's impeachment. The House agreed to the
resolution as amended by the committee amendments:
---------------------------------------------------------------------------
12. 120 Cong. Rec. 27266-69, 93d Cong. 2d Sess.
---------------------------------------------------------------------------
That, notwithstanding any rule, ruling, or custom to the
contrary, the proceedings in the Chamber of the House of
Representatives relating to the resolution reported from the
Committee on the Judiciary, recommending the impeachment of Richard
M. Nixon, President of the United States, may be broadcast by radio
and television and may be open to photographic coverage, subject to
the provisions of section 2 of this resolution.
Sec. 2. A special committee of four members, composed of the
majority and minority leaders of the House, and the majority and
minority whips of the House, is hereby authorized to arrange for
the coverage made in order by this resolution and to establish such
regulations as they may deem necessary and appropriate with respect
to such broadcast or photographic coverage: Provided, however, That
any such arrangements or regulations shall be subject to the final
approval of the Speaker; and if the special committee or the
Speaker shall determine that the actual coverage is not in
conformity with such arrangements and regulations, the Speaker is
authorized and directed to terminate or limit such coverage in such
manner as may protect the interests of the House of
Representatives.
The House briefly debated the resolution before adopting it, and
discussed suitable restrictions on broadcast coverage as well as the
broadcasting of the Committee on the Judiciary meetings on the
resolution and articles of impeachment pursuant to House Resolution
1107, adopted on July 18, 1974.(13)
---------------------------------------------------------------------------
13. See Sec. 7.3, Supra, for the adoption of H. Res. 1107, amending the
rules of the House.
---------------------------------------------------------------------------
[[Page 2077]]
Parliamentarian's Note: The Speaker of the House has consistently
ruled that coverage of House proceedings, either by radio, television
or still photography, was prohibited under the rules and precedents of
the House. See for example, the statements of Speaker Sam Rayburn, of
Texas, on Feb. 25, 1952, and on Jan. 24, 1955.(14)
---------------------------------------------------------------------------
14. 98 Cong. Rec. 1334, 1335, 82d Cong. 2d Sess.; 101 Cong. Rec. 628,
629, 84th Cong. 1st Sess.
---------------------------------------------------------------------------
CHAPTER 14
Impeachment Powers
B. INVESTIGATION AND IMPEACHMENT
Sec. 9. Presentation to Senate; Managers
Following the adoption of a resolution and articles of impeachment,
the House proceeds to the adoption of privileged resolutions (1)
appointing managers to conduct the trial on the part of the House and
directing them to present the articles to the Senate; (2) notifying the
Senate of the adoption of articles and appointment of managers; and (3)
granting the managers necessary powers and funds.(15)
---------------------------------------------------------------------------
15. See Sec. 9.1, infra.
In former Congresses, managers were elected by ballot or
appointed by the Speaker pursuant to an authorizing resolution
(see Sec. 9.3, infra).
---------------------------------------------------------------------------
The managers have jurisdiction over the answer of the respondent to
the articles impeaching him, and may prepare the replication of the
House to the respondent's answer. The replication has not in the last
two impeachment cases been submitted to the House for
approval.(16)
---------------------------------------------------------------------------
16. See Sec. 10, infra.
---------------------------------------------------------------------------
In the Harold Louderback proceedings, where the accused was
impeached in one Congress and tried in the next, the issue arose as to
the authority of the managers beyond the expiration of the Congress in
which elected. In that case, the resolution authorizing the managers
powers and funds was not offered and adopted until the succeeding
Congress.(17)
---------------------------------------------------------------------------
17. See Sec. 4.2, supra.
---------------------------------------------------------------------------
Forms
Form of resolution appointing managers to conduct an impeachment
trial: (18)
---------------------------------------------------------------------------
18. 80 Cong. Rec. 3393, 74th Cong. 2d Sess., Mar. 6, 1936.
---------------------------------------------------------------------------
House Resolution 439
Resolved, That Hatton W. Sumners, Randolph Perkins, and Sam
Hobbs, Members of this House, be, and they are hereby, appointed
managers to conduct the impeachment against Halsted L. Ritter,
United States district judge for the southern district of Florida;
that said managers are hereby instructed to appear before the
Senate of the United States and at the bar thereof in the name of
the House of Rep
[[Page 2078]]
resentatives and of all the people of the United States to impeach
the said Halsted L. Ritter of high crimes and misdemeanors in
office and to exhibit to the Senate of the United States the
articles of impeachment against said judge which have been agreed
upon by this House; and that the said managers do demand that the
Senate take order for the appearance of said Halsted L. Ritter to
answer said impeachment, and demand his impeachment, conviction,
and removal from office.
Form of resolution notifying the Senate of the adoption of articles
and the appointment of managers: (19)
---------------------------------------------------------------------------
19. Id.
---------------------------------------------------------------------------
House Resolution 440
Resolved, That a message be sent to the Senate to inform them
that this House has impeached for high crimes and misdemeanors
Halsted L. Ritter, United States District Judge for the southern
district of Florida, and that the House adopted articles of
impeachment against said Halsted L. Ritter, judge as aforesaid,
which the managers on the part of the House have been directed to
carry to the Senate, and that Hatton W. Sumners, Randolph Perkins,
and Sam Hobbs, Members of this House, have been appointed such
managers.
Form of resolution empowering managers: (20)
---------------------------------------------------------------------------
20. Id. at p. 3394.
---------------------------------------------------------------------------
House Resolution 441
Resolved, That the managers on the part of the House in the
matter of the impeachment of Halsted L. Ritter, United States
district judge for the southern district of Florida, be, and they
are hereby, authorized to employ legal, clerical, and other
necessary assistants and to incur such expenses as may be necessary
in the preparation and conduct of the case, to be paid out of the
contingent fund of the House on vouchers approved by the managers,
and the managers have power to send for persons and papers, and
also that the managers have authority to file with the Secretary of
the Senate, on the part of the House of Representatives, any
subsequent pleadings which they shall deem necessary: Provided,
That the total expenditures authorized by this resolution shall not
exceed $2,500.
Cross References
Arguments and conduct of trial by managers, see Sec. 12, infra.
Effect of adjournment on managers' authority, see Sec. 4, supra.
Managers' appearance and functions in the Senate sitting as a Court of
Impeachment, see Sec. Sec. 11-13, infra.
Managers' jurisdiction over replication and amendments to articles, see
Sec. 10, infra. -------------------
Electing and Empowering Managers; Notifying the Senate
Sec. 9.1 After the House has adopted a resolution and articles of
impeachment, the House considers resolutions appointing managers to
ap
[[Page 2079]]
pear before the Senate, notifying the Senate of the adoption of
articles and election of managers, and authorizing the managers to
prepare for and conduct the trial in the Senate, to employ
assistants, and to incur expenses payable from the contingent fund
of the House.
On Feb. 27, 1933, the House having adopted articles of impeachment
against Judge Harold Louderback on Feb. 24, Mr. Hatton W. Sumners, of
Texas, offered resolutions electing managers and notifying the Senate
of House action:
Impeachment of Judge Harold Louderback
Mr. Sumners of Texas: Mr. Speaker, I offer the following
privileged report from the Committee on the Judiciary, which I send
to the desk and ask to have read, and ask its immediate adoption.
The Clerk read as follows:
House Resolution 402
Resolved, That Hatton W. Sumners, Gordon Browning, Malcolm
C. Tarver, Fiorello H. LaGuardia, and Charles I. Sparks,
Members of this House, be, and they are hereby, appointed
managers to conduct the impeachment against Harold Louderback,
United States district judge for the northern district of
California; and said managers are hereby instructed to appear
before the Senate of the United States and at the bar thereof
in the name of the House of Representatives and of all the
people of the United States to impeach the said Harold
Louderback of misdemeanors in office and to exhibit to the
Senate of the United States the articles of impeachment against
said judge which have been agreed upon by the House; and that
the said managers do demand the Senate take order for the
appearance of said Harold Louderback to answer said
impeachment, and demand his impeachment, conviction, and
removal from office.
The Speaker Pro Tempore: The question is on agreeing to the
resolution. . . .
The resolution was agreed to.
A motion to reconsider the vote by which the resolution was
agreed to was laid on the table.
Mr. Sumners of Texas: Mr. Speaker, I desire to present a
privileged resolution.
The Clerk read as follows:
House Resolution 403
Resolved, That a message be sent to the Senate to inform
them that this House has impeached Harold Louderback, United
States district judge for the Northern District of California,
for misdemeanors in office, and that the House has adopted
articles of impeachment against said Harold Louderback, judge
as aforesaid, which the managers on the part of the House have
been directed to carry to the Senate, and that Hatton W.
Sumners, Gordon Browning, Malcolm C. Tarver, Fiorello H.
LaGuardia, and Charles I. Sparks, Members of this House, have
been appointed such managers.
The resolution was agreed to.(1)
---------------------------------------------------------------------------
1. 76 Cong. Rec. 5177, 5178, 72d Cong. 2d Sess.
---------------------------------------------------------------------------
On Mar. 6, 1936, Mr. Sumners offered three resolutions relating
[[Page 2080]]
to the impeachment proceedings against Judge Halsted Ritter, the House
having adopted articles of impeachment on Mar. 2. The resolutions
elected managers, informed the Senate that articles had been adopted
and managers appointed, and gave the managers powers and funds:
(2)
---------------------------------------------------------------------------
2. 80 Cong. Rec. 3393, 3394, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
Impeachment of Halsted L. Ritter
Mr. Sumners of Texas: Mr. Speaker, I send to the desk the three
resolutions which are the usual resolutions offered when an
impeachment has been voted by the House, and I ask unanimous
consent that they may be read and considered en bloc. . . .
House Resolution 439
Resolved, That Hatton W. Sumners, Randolph Perkins, and Sam
Hobbs, Members of this House, be, and they are hereby,
appointed managers to conduct the impeachment against Halsted
L. Ritter, United States district judge for the southern
district of Florida; that said managers are hereby instructed
to appear before the Senate of the United States and at the bar
thereof in the name of the House of Representatives and of all
the people of the United States to impeach the said Halsted L.
Ritter of high crimes and misdemeanors in office and to exhibit
to the Senate of the United States the articles of impeachment
against said judge which have been agreed upon by this House;
and that the said managers do demand that the Senate take order
for the appearance of said Halsted L. Ritter to answer said
impeachment, and demand his impeachment, conviction, and
removal from office.
House Resolution 440
Resolved, That a message be sent to the Senate to inform
them that this House has impeached for high crimes and
misdemeanors Halsted L. Ritter, United States district judge
for the southern district of Florida, and that the House
adopted articles of impeachment against said Halsted L. Ritter,
judge as aforesaid, which the managers on the part of the House
have been directed to carry to the Senate, and that Hatton W.
Sumners, Randolph Perkins, and Sam Hobbs, Members of this
House, have been appointed such managers.
House Resolution 441
Resolved, That the managers on the part of the House in the
matter of the impeachment of Halsted L. Ritter, United States
district judge for the southern district of Florida, be, and
they are hereby, authorized to employ legal, clerical, and
other necessary assistants and to incur such expenses as may be
necessary in the preparation and conduct of the case, to be
paid out of the contingent fund of the House on vouchers
approved by the managers, and the managers have power to send
for persons and papers, and also that the managers have
authority to file with the Secretary of the Senate, on the part
of the House of Representatives, any subsequent pleadings which
they shall deem necessary: Provided, That the total
expenditures authorized by this resolution shall not exceed
$2,500.
Mr. [Bertrand H.] Snell [of New York]: Mr. Speaker, may I ask
the gentleman from Texas one further question? Is this exactly the
procedure that has always been followed by the House under similar
conditions?
[[Page 2081]]
Mr. Sumners of Texas: Insofar as I know, it does not vary from
the procedure that has been followed since the beginning of the
Government.
Mr. Snell: If that is true, while, of course, I think the House
made a mistake, I have no desire to delay carrying out the will of
the majority of the House in the matter.
Mr. [Thomas L.] Blanton [of Texas]: Mr. Speaker, will the
gentleman yield?
Mr. Sumners of Texas: I yield to the gentleman from Texas.
Mr. Blanton: The only difference between this and other such
cases is that our colleague from Texas has asked only for $2,500,
which is very small in comparison with amounts heretofore
appropriated under such conditions.
The resolutions were agreed to.
Composition and Number of Managers
Sec. 9.2 Managers elected by the House, or appointed by the Speaker,
have always been Members of the House and have always constituted
an odd number.(3)
---------------------------------------------------------------------------
3. For a summary of the composition of managers from the William
Blount impeachment in 1797 through the Robert Archbald
impeachment in 1912, see 6 Cannon's Precedents Sec. 467.
---------------------------------------------------------------------------
In 1933, in the Harold Louderback impeachment five managers were
elected by resolution--all from the Committee on the Judiciary--three
from the majority party and two from the minority party.(4)
In the Halsted Ritter impeachment in 1936, three managers were elected
from the Committee on the Judiciary, two from the majority party and
one from the minority party.(5) In both the Louderback and
Ritter impeachments, the Chairman of the Committee on the Judiciary,
Hatton W. Sumners, of Texas, was elected as a manager. Ordinarily, the
managers are chosen from among those Members who have voted for the
resolution and articles of impeachment.(6)
---------------------------------------------------------------------------
4. Cannon's Precedents Sec. 514.
5. 80 Cong. Rec. 3393, 74th Cong. 2d Sess.
6. During the Belknap proceedings, it was proposed to elect a minority
Member to fill a vacancy created when a manager was excused
from service. The House discussed the principle that managers
should be in accord with the sentiments of the House. 3 Hinds'
Precedents Sec. 2448.
---------------------------------------------------------------------------
Appointment of Managers by Resolution
Sec. 9.3 In the later practice, managers on the part of the House to
conduct impeachment trials have been appointed by resolution.
On Mar. 6, 1936, the House adopted a resolution offered by
[[Page 2082]]
Hatton W. Sumners, of Texas, Chairman of the Committee on the
Judiciary, appointing Members of the House to serve as managers in the
impeachment trial of Judge Halsted Ritter:
House Resolution 439
Resolved, That Hatton W. Sumners, Randolph Perkins, and Sam
Hobbs, Members of this House, be, and they are hereby, appointed
managers to conduct the impeachment against Halsted L. Ritter,
United States district judge for the southern district of Florida;
that said managers are hereby instructed to appear before the
Senate of the United States and at the bar thereof in the name of
the House of Representatives and of all the people of the United
States to impeach the said Halsted L. Ritter of high crimes and
misdemeanors in office and to exhibit to the Senate of the United
States the articles of impeachment against said judge which have
been agreed upon by this House; and that the said managers do
demand that the Senate take order for the appearance of said
Halsted L. Ritter to answer said impeachment, and demand his
impeachment, conviction, and removal from office.(7)
---------------------------------------------------------------------------
7. 80 Cong. Rec. 3393, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
This method, of appointing managers by House resolution, was also
used in 1912 in the Robert Archbald impeachment, in 1926 in the George
English impeachment, and in 1933 in the Harold Louderback
impeachment.(8)
---------------------------------------------------------------------------
8. 6 Cannon's Precedents Sec. Sec. 500, 514, 545. Managers for the
trial of former Secretary of War William Belknap were also
chosen by resolution. See 3 Hinds' Precedents Sec. 2448.
---------------------------------------------------------------------------
On two occasions, in the Charles Swayne and West Humphreys
impeachments, managers were appointed by the Speaker pursuant to
authorizing resolution.(9)
---------------------------------------------------------------------------
9. 3 Hinds' Precedents Sec. Sec. 2388, 2475.
---------------------------------------------------------------------------
In other impeachments, managers were elected by ballot, a procedure
largely obsolete in the House, its last use having been for the
election of managers in the Andrew Johnson impeachment. In that case,
the motion adopted by the House providing for the consideration of the
articles against President Johnson provided that in the event any
articles were adopted, the House was to proceed by ballot to elect
managers.(10)
---------------------------------------------------------------------------
10. 3 Hinds' Precedents Sec. 2414.
---------------------------------------------------------------------------
Managers, Excused From Attending House Sessions
Sec. 9.4 Managers on the part of the House to conduct impeachment
proceedings may be excused from attending the sessions of the House
by unanimous consent.
On Apr. 10, 1933, Mr. Hatton W. Sumners, of Texas, one of the
managers on the part of the House for impeachment pro
[[Page 2083]]
ceedings against Judge Harold Louderback, made a unanimous-consent
request: (11)
---------------------------------------------------------------------------
11. 77 Cong. Rec. 1449, 73d Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. Sumners of Texas: Mr. Speaker, I ask unanimous consent that
the managers on the part of the House in the Louderback impeachment
matter be excused from attending upon the sessions of the House
during this week.
The Speaker: (12) Is there objection to the request
of the gentleman from Texas?
---------------------------------------------------------------------------
12. Henry T. Rainey (Ill.).
---------------------------------------------------------------------------
There was no objection.
Appearance of Managers in Senate
Sec. 9.5 The managers on the part of the House appear in the Senate for
the opening of an impeachment trial on the date messaged by the
Senate.
On Mar. 9, 1936,(13) the Senate messaged to the House
the date the Senate would be ready to receive the managers on the part
of the House for the impeachment trial of Judge Halsted Ritter:
---------------------------------------------------------------------------
13. 80 Cong. Rec. 3449, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
A message from the Senate, by Mr. Horne, its enrolling clerk,
announced that the Senate had--
Ordered, That the Secretary inform the House of
Representatives that the Senate is ready to receive the
managers appointed by the House for the purpose of exhibiting
articles of impeachment against Halsted L. Ritter, United
States district judge for the southern district of Florida,
agreeably to the notice communicated to the Senate, and that at
the hour of 1 o'clock p.m. on Tuesday, March 10, 1936, the
Senate will receive the honorable managers on the part of the
House of Representatives, in order that they may present and
exhibit the said articles of impeachment against the said
Halsted L. Ritter, United States district judge for the
southern district of Florida.(14)
---------------------------------------------------------------------------
14. For the proceedings in the Senate upon the appearance of the
managers for the presentation of articles, see Sec. 11.4, infra
(Ritter proceedings).
---------------------------------------------------------------------------
Jurisdiction of Managers Over Related Matters
Sec. 9.6 Where the House has empowered its managers in an impeachment
proceeding to take all steps necessary in the prosecution of the
case, the managers may report to the House a resolution proposing
to amend the original articles of impeachment.
On Mar. 30, 1936,(15) Mr. Hatton W. Sumners, of Texas,
one of the managers on the part of the House to conduct the impeachment
trial against Judge Halsted Ritter, reported House Resolution 471,
which amended the articles
---------------------------------------------------------------------------
15. 80 Cong. Rec. 4597-99, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
[[Page 2084]]
originally voted by the House on Mar. 2, 1936. Mr. Sumners discussed
the power and jurisdiction of the managers to consider and report
amendments to the original articles:
Mr. [Bertrand H.] Snell [of New York]: Mr. Speaker, will the
gentleman yield?
Mr. Sumners of Texas: Yes.
Mr. Snell: I may not be entirely familiar with all this
procedure, but as I understand, what the gentleman is doing here
today, is to amend the original articles of impeachment passed by
the House.
Mr. Sumners of Texas: That is correct.
Mr. Snell: The original articles of impeachment came to the
House as a result of the evidence before the gentleman's committee.
Has the gentleman's committee had anything to do with the change or
amendment of these charges?
Mr. Sumners of Texas: No; just the managers.
Mr. Snell: As a matter of procedure, would not that be the
proper thing to do?
Mr. Sumners of Texas: I do not think it is at all necessary,
for this reason: The managers are now acting as the agents of the
House, and not as the agents of the Committee on the Judiciary. Mr.
Manager Perkins and Mr. Manager Hobbs have recently extended the
investigation made by the committee.
Mr. Snell: Mr. Speaker, will the gentleman yield further?
Mr. Sumners of Texas: Yes.
Mr. Snell: Do I understand that the amendments come because of
new information that has come to you as managers that never was
presented to the Committee on the Judiciary?
Mr. Sumners of Texas: Perhaps it would not be true to answer
that entirely in the affirmative, but the changes are made largely
by reason of new evidence which has come to the attention of the
committee, and some of these changes, more or less changes in form,
have resulted from further examination of the question. This is
somewhat as lawyers do in their pleadings. They often ask the
privilege of making an amendment.
Mr. Snell: And the gentleman's position is that as agents of
the House it is not necessary to have the approval of his
committee, which made the original impeachment charges?
Mr. Sumners of Texas: I have no doubt about that; I have no
doubt about the accuracy of that statement.(16)
---------------------------------------------------------------------------
16. See also 6 Cannon's Precedents Sec. 520 (amendment to articles of
impeachment against Judge Harold Louder back prepared and
called up by House managers).
---------------------------------------------------------------------------
Parliamentarian's Note: After articles of impeachment had been
adopted against President Andrew Johnson in 1868, the managers on the
part of the House reported to the House, as privileged, an additional
article of impeachment. A point of order was made that the managers
could not so report, their functions being different from those of a
standing committee. Speaker Schuyler Colfax,
[[Page 2085]]
of Indiana, overruled the point of order on two grounds: (1) the answer
of the respondent is always, when messaged to the House, referred to
the managers, who then prepare a replication to the House and (2) any
Member of the House, whether a manager or not, may propose additional
articles of impeachment.(17)
---------------------------------------------------------------------------
17. 3 Hinds' Precedents Sec. 2418.
For preparation of the replication in the later practice
see Sec. 10.3, infra.
---------------------------------------------------------------------------
Sec. 9.7 The answer of the respondent to articles of impeachment, and
supplemental rules to govern the trial, are messaged to the House
by the Senate and referred to the managers on the part of the
House.
On Apr. 6, 1936, the answer of respondent Judge Halsted Ritter to
the articles of impeachment against him, and supplemental Senate rules,
were messaged to the House by the Senate and referred to the managers
on the part of the House.(18)
---------------------------------------------------------------------------
18. See 110.2, infra.
---------------------------------------------------------------------------
CHAPTER 14
Impeachment Powers
B. INVESTIGATION AND IMPEACHMENT
Sec. 10. Replication; Amending Adopted Articles
The replication is the answer of the House to the respondents'
answer to the articles of impeachment. In recent instances, the
managers on the part of the House have submitted the replication to the
Senate on their own initiative, without the House voting
thereon.(19)
---------------------------------------------------------------------------
19. See Sec. 10.3, infra.
---------------------------------------------------------------------------
The House has always reserved the right to amend the articles of
impeachment presented to the Senate and has frequently so amended the
articles pursuant to the recommendations of the managers on the part of
the House.(20)
---------------------------------------------------------------------------
20. See Sec. 10.1, infra, for the reservation of the right to amend
articles and Sec. Sec. 10.4-10.6, infra, for the procedure in
so amending them.
---------------------------------------------------------------------------
Cross References
Managers and their powers generally, see Sec. 9, supra.
Motions to strike articles of impeachment in the Senate, see Sec. 12,
infra.
Respondent's answer filed in the Senate, see Sec. 11,
infra. -------------------
Reservation of Right to Amend Articles
Sec. 10.1 In the later practice, the reservation by the House of the
right to amend articles of impeachment presented to the Senate has
been delivered orally in the Senate by the House managers, and has
[[Page 2086]]
not been included in the resolution of impeachment.
On Mar. 10, 1936, the managers on the part of the House to conduct
the trial of impeachment against Judge Halsted Ritter appeared in the
Senate. After the articles of impeachment adopted by the House had been
read to the Senate, Manager Hatton W. Sumners, of Texas, orally
reserved the right of the House to further amend or supplement them:
Mr. Manager Sumners: Mr. President, the House of
Representatives, by protestation, saving themselves the liberty of
exhibiting at any time hereafter any further articles of accusation
or impeachment against the said Halsted L. Ritter, district judge
of the United States for the southern district of Florida, and also
of replying to his answers which he shall make unto the articles
preferred against him, and of offering proof to the same and every
part thereof, and to all and every other article of accusation or
impeachment which shall be exhibited by them as the case shall
require, do demand that the said Halsted L. Ritter may be put to
answer the misdemeanors in office which have been charged against
him in the articles which have been exhibited to the Senate, and
that such proceedings, examinations, trials, and judgments may be
thereupon had and given as may be agreeable to law and justice.
Mr. President, the managers on the part of the House of
Representatives, in pursuance of the action of the House of
Representatives by the adoption of the articles of impeachment
which have just been read to the Senate, do now demand that the
Senate take order for the appearance of the said Halsted L. Ritter
to answer said impeachment, and do now demand his impeachment,
conviction, and removal from office.(1)
---------------------------------------------------------------------------
1. 80 Cong. Rec. 3488, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
A similar procedure had been followed in the Robert Archbald and
Harold Louderback impeachment proceedings, with the managers orally
reserving in the Senate the right of the House to amend articles,
without such reservation being included in the resolution and articles
of impeachment.(2)
---------------------------------------------------------------------------
2. 6 Cannon's Precedents Sec. Sec. 501, 515.
---------------------------------------------------------------------------
Prior to the Archbald impeachment, language reserving the right of
the House to amend articles was voted on by the House and included at
the end of the articles presented to the Senate. For example, the House
in the Andrew Johnson impeachment agreed to a reservation-of-amendment
clause by unanimous consent following the adoption of articles against
the President, and it was included in the formal articles presented to
the Senate.(3)
---------------------------------------------------------------------------
3. 3 Hinds' Precedents Sec. 2416.
---------------------------------------------------------------------------
Answer of Respondent and Replication of House
Sec. 10.2 The answer of the respondent in impeachment
[[Page 2087]]
proceedings is messaged by the Senate to the House together with
any supplemental Senate rules therefore, and are referred to the
managers on the part of the House.
On Apr. 6, 1936,(4) the answer of respondent Judge
Halsted Ritter to the articles of impeachment against him and the
supplemental rules adopted by the Senate for the trial were messaged to
the House by the Senate and referred to the managers on the part of the
House:
---------------------------------------------------------------------------
4. 80 Cong. Rec. 5020, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
Impeachment of Halsted L. Ritter
The Speaker laid before the House the following order from the
Senate of the United States:
In the Senate of the United States sitting for the trial of the
impeachment of Halsted L. Ritter, United States district judge for
the southern district of Florida
April 3, 1936.
Ordered, That the Secretary of the Senate communicate to
the House of Representatives an attested copy of the answer of
Halsted L. Ritter United States district judge for the southern
district of Florida, to the articles of impeachment, as
amended, and also a copy of the order entered on the 12th
ultimo prescribing supplemental rules for the said impeachment
trial.
The answer and the supplemental rules to govern the impeachment
trial were referred to the House managers and ordered printed.
Sec. 10.3 In the Halsted Ritter and Harold Louderback impeachments, the
managers on the part of the House prepared the replication of the
House to the respondent's answer; in contrast to earlier practice,
the replication was submitted to the Senate without being voted on
by the House.
On Apr. 6, 1936, Mr. Hatton W. Sumners, of Texas, one of the
managers on the part of the House in the impeachment trial of Judge
Ritter, filed in the Senate the replication of the House to the answer
filed by the respondent, the answer having been referred in the House
to the managers. The replication had been prepared and submitted to the
Senate by the managers alone, and it was not reported to or considered
by the House for adoption.(5)
---------------------------------------------------------------------------
5. 80 Cong. Rec. 4971, 4972, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
Similarly, the replication in the impeachment of Judge Louderback
was filed in the Senate by the managers without being reported to or
considered by the House.(6) In the impeachment trial of
Judge Robert Archbald in
[[Page 2088]]
1912, however, the replication was reported by the managers to the
House where it was considered and adopted.(7)
---------------------------------------------------------------------------
6. 6 Cannon's Precedents Sec. 522.
7. 6 Cannon's Precedents Sec. 506.
---------------------------------------------------------------------------
Procedure in Amending Articles of Impeachment
Sec. 10.4 Articles of impeachment which have been exhibited to the
Senate may be subsequently modified or amended by the adoption of a
resolution in the House.
On Mar. 30, 1936,(8) a resolution (H. Res. 471) was
offered in the House by Mr. Hatton W. Sumners, of Texas, a manager on
the part of the House for the impeachment trial against Judge Halsted
Ritter. The resolution amended the articles voted by the House against
Judge Ritter on Mar. 2, 1936, by adding three new articles. The House
agreed to the resolution after a discussion by Mr. Sumners of the
nature of the changes and of the power of the managers to report
amendments to the articles. Mr. Sumners summarized the changes as
follows:
---------------------------------------------------------------------------
8. 80 Cong. Rec. 4597-99, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. Sumners of Texas: Mr. Speaker, the resolution which has
just been read proposes three new articles. The change is not as
important as that statement would indicate. Two of the new articles
deal with income taxes, and one with practicing law by Judge
Ritter, after he went on the bench. In the original resolution, the
charge is made that Judge Ritter received certain fees or
gratuities and had written a letter, and so forth. No change is
proposed in articles 1 and 2. In article 3, as stated, Judge Ritter
is charged with practicing law after he went on the bench. That
same thing, in effect, was charged, as members of the committee
will remember, in the original resolution, but the form of the
charge, in the judgment of the managers, could be improved. These
charges go further and charge that in the matter connected with
G.R. Francis, the judge acted as counsel in two transactions after
he went on the bench, and received $7,500 in compensation. Article
7 is amended to include a reference to these new charges. There is
a change in the tense used with reference to the effect of the
conduct alleged. It is charged, in the resolution pending at the
desk, that the reasonable and probable consequence of the alleged
conduct is to injure the confidence of the people in the courts--I
am not attempting to quote the exact language--which is a matter of
form, I think, more than a matter of substance.(9)
---------------------------------------------------------------------------
9. For discussion of the power of the managers on the part of the
House to prepare amendments to the articles and to report them
to the House, see Sec. 9, supra.
---------------------------------------------------------------------------
Sec. 10.5 A resolution reported by the managers proposing amendments to
the articles of impeachment previously adopted by the House is
privileged.
[[Page 2089]]
On Mar. 30, 1936,(10) Mr. Hatton W. Sumners, of Texas,
one of the managers on the part of the House for the Halsted Ritter
impeachment trial, offered as privileged a resolution amending the
articles of impeachment that had been adopted by the
House.(11)
---------------------------------------------------------------------------
10. 80 Cong. Rec. 4597, 74th Cong. 2d Sess.
11. For a discussion of the power of the managers to prepare and report
to the House amendments to the articles of impeachment, see
Sec. 9, supra.
---------------------------------------------------------------------------
Sec. 10.6 Where the House agrees to an amendment to articles of
impeachment it has adopted, the House directs the Clerk by
resolution to so inform the Senate.
On Mar. 30, 1936,(12) the House adopted amendments to
the articles previously adopted in the impeachment of Judge Halsted
Ritter. Mr. Hatton W. Sumners, of Texas, offered and the House adopted
a privileged resolution informing the Senate of such action:
---------------------------------------------------------------------------
12. 80 Cong. Rec. 4601, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. Sumners of Texas: Mr. Speaker, I offer the following
privileged resolution.
The Clerk read as follows:
House Resolution 472
Resolved, That a message be sent to the Senate by the Clerk
of the House informing the Senate that the House of
Representatives has adopted an amendment to the articles of
impeachment heretofore exhibited against Halsted L. Ritter,
United States district judge for the southern district of
Florida, and that the same will be presented to the Senate by
the managers on the part of the House.
And also, that the managers have authority to file with the
Secretary of the Senate, on the part of the House any
subsequent pleadings they shall deem necessary.
The resolution was agreed to.
CHAPTER 14
Impeachment Powers
C. TRIAL IN THE SENATE
Sec. 11. Organization and Rules
The standing Senate rules governing procedure in impeachment trials
originally date from 1804 and continue from Congress to Congress unless
amended; the rules are set forth in the Senate Manual as ``Rules of
Procedure and Practice in the Senate When Sitting on Impeachment
Trials.'' (13) The last amendment to the impeachment trial
rules was
---------------------------------------------------------------------------
13. See Senate Manual Sec. Sec. 100-126 (1973). The rules are set out
in full below.
For adoption of rules to govern impeachment trials in 1804,
see 3 Hinds' Precedents Sec. 2099.
--------------------------------------------------------------------------
[[Page 2090]]
adopted in 1935, to allow the appointment of a committee to receive
evidence (Rule XI). Amendments to the rules were also reported in the
93d Congress, pending impeachment proceedings in the House in relation
to President Richard Nixon, but the Senate did not formally consider
them.(14) The Senate has also, when commencing a particular
impeachment trial, adopted supplemental rules governing pleadings,
requests, stipulations, and motions.(15)
14. See Sec. 11.2, infra.
15. See Sec. Sec. 11.7, 11.8, infra.
---------------------------------------------------------------------------
When the Senate is notified by the House of the adoption of a
resolution and articles of impeachment, the Senate messages to the
House, pursuant to Rule I of the impeachment trial rules, its readiness
to receive the managers for the presentation of articles; Rule II
provides the procedure for the appearance of the managers and
exhibition of the articles to the Senate.(16)
---------------------------------------------------------------------------
16. See Sec. 111.4, infra.
---------------------------------------------------------------------------
Rules VIII through X of the rules for impeachment trials provide
that a summons be issued to the person impeached, that the summons be
returned, and that the respondent appear and answer the articles
against him. Under Rules VIII and X, the trial proceeds as on a plea of
not guilty if the respondent does not appear either in person or by
attorney.(17)
---------------------------------------------------------------------------
17. See Sec. Sec. 11.5, 11.9, infra, for the summons and its return. As
indicated in Sec. 11.9, the respondent has not always appeared
in person before the Senate sitting as a Court of Impeachment.
---------------------------------------------------------------------------
Under Rule III, the Senate proceeds to consider the articles of
impeachment on the day following the presentation of articles.
Organizational questions arising before the actual commencement of an
impeachment trial have been held debatable and not subject to Rule XXIV
of the rules for impeachment trials, which prohibits debate except when
the doors of the Senate are closed for deliberation.(18)
---------------------------------------------------------------------------
18. See Sec. 11.11, infra.
---------------------------------------------------------------------------
Senate Rules for Impeachment Trials
Senate Manual Sec. Sec. 100-126 (1973). For amendments to the rules for
impeachment trials, reported in the 93d Congress but not considered
by the Senate, see Sec. 11.2, infra.
I. Whensoever the Senate shall receive notice from the House of
Representatives that managers are appointed on their part to
conduct an impeachment against any person and are directed to carry
articles of impeachment to the Senate, the Secretary of the Senate
shall immediately inform the House of Representatives that the
[[Page 2091]]
Senate is ready to receive the managers for the purpose of
exhibiting such articles of impeachment, agreeably to such notice.
II. When the managers of an impeachment shall be introduced at
the bar of the Senate and shall signify that they are ready to
exhibit articles of impeachment against any person, the Presiding
Officer of the Senate shall direct the Sergeant at Arms to make
proclamation, who shall, after making proclamation, repeat the
following words, viz: ``All persons are commanded to keep silence,
on pain of imprisonment, while the House of Representatives is
exhibiting to the Senate of the United States articles of
impeachment against ------ ------'': after which the articles shall
be exhibited, and then the Presiding Officer of the Senate shall
inform the managers that the Senate will take proper order on the
subject of the impeachment, of which due notice shall be given to
the House of Representatives.
III. Upon such articles being presented to the Senate, the
Senate shall, at 1 o'clock afternoon of the day (Sunday excepted)
following such presentation, or sooner if ordered by the Senate,
proceed to the consideration of such articles and shall continue in
session from day to day (Sundays excepted) after the trial shall
commence (unless otherwise ordered by the Senate) until final
judgment shall be rendered, and so much longer as may, in its
judgment, be needful. Before proceeding to the consideration of the
articles of impeachment, the Presiding Officer shall administer the
oath hereinafter provided to the members of the Senate then present
and to the other members of the Senate as they shall appear, whose
duty it shall be to take the same.
IV. When the President of the United States or the Vice
President of the United States, upon whom the powers and duties of
the office of President shall have devolved, shall be impeached,
the Chief Justice of the Supreme Court of the United States shall
preside; and in a case requiring the said Chief Justice to preside
notice shall be given to him by the Presiding Officer of the Senate
of the time and place fixed for the consideration of the articles
of impeachment, as aforesaid, with a request to attend; and the
said Chief Justice shall preside over the Senate during the
consideration of said articles and upon the trial of the person
impeached therein.
V. The Presiding Officer shall have power to make and issue, by
himself or by the Secretary of the Senate, all orders, mandates,
writs, and precepts authorized by these rules or by the Senate, and
to make and enforce such other regulations and orders in the
premises as the Senate may authorize or provide.
VI. The Senate shall have power to compel the attendance of
witnesses, to enforce obedience to its orders, mandates, writs,
precepts, and judgments, to preserve order, and to punish in a
summary way contempts of, and disobedience to, its authority,
orders, mandates, writs, precepts, or judgments, and to make all
lawful orders, rules, and regulations which it may deem essential
or conducive to the ends of justice. And the Sergeant at Arms,
under the direction of the Senate, may employ such aid and
assistance as may be necessary to enforce, execute, and carry into
effect the law
[[Page 2092]]
ful orders, mandates, writs, and precepts of the Senate.
VII. The Presiding Officer of the Senate shall direct all
necessary preparations in the Senate Chamber, and the Presiding
Officer on the trial shall direct all the forms of proceedings
while the Senate is sitting for the purpose of trying an
impeachment, and all forms during the trial not otherwise specially
provided for. And the Presiding Officer on the trial may rule all
questions of evidence and incidental questions, which ruling shall
stand as the judgment of the Senate, unless some member of the
Senate shall ask that a formal vote be taken thereon, in which case
it shall be submitted to the Senate for decision; or he may at his
option, in the first instance, submit any such question to a vote
of the members of the Senate. Upon all such questions the vote
shall be without a division, unless the yeas and nays be demanded
by one-fifth of the members present, when the same shall be taken.
VIII. Upon the presentation of articles of impeachment and the
organization of the Senate as hereinbefore provided, a writ of
summons shall issue to the accused, reciting said articles, and
notifying him to appear before the Senate upon a day and at a place
to be fixed by the Senate and named in such writ, and file his
answer to said articles of impeachment, and to stand to and abide
the orders and judgments of the Senate thereon; which writ shall be
served by such officer or person as shall be named in the precept
thereof, such number of days prior to the day fixed for such
appearance as shall be named in such precept, either by the
delivery of an attested copy thereof to the person accused, or if
that can not conveniently be done, by leaving such copy at the last
known place of abode of such person, or at his usual place of
business in some conspicuous place therein; or if such service
shall be, in the judgment of the Senate, impracticable, notice to
the accused to appear shall be given in such other manner, by
publication or otherwise, as shall be deemed just; and if the writ
aforesaid shall fail of service in the manner aforesaid, the
proceedings shall not thereby abate, but further service may be
made in such manner as the Senate shall direct. If the accused,
after service, shall fail to appear, either in person or by
attorney, on the day so fixed therefore as aforesaid, or,
appearing, shall fail to file his answer to such articles of
impeachment, the trial shall proceed, nevertheless, as upon a plea
of not guilty. If a plea of guilty shall be entered, judgment may
be entered thereon without further proceedings.
IX. At 12:30 o'clock afternoon of the day appointed for the
return of the summons against the person impeached, the legislative
and executive business of the Senate shall be suspended, and the
Secretary of the Senate shall administer an oath to the returning
officer in the form following, viz: ``I, ------ ------, do solemnly
swear that the return made by me upon the process issued on the --
---- day of ------, by the Senate of the United States, against --
---- ------, is truly made, and that I have performed such service
as therein described: So help me God.'' Which oath shall be entered
at large on the records.
X. The person impeached shall then be called to appear and
answer the articles of impeachment against him. If
[[Page 2093]]
he appear, or any person for him, the appearance shall be recorded,
stating particularly if by himself, or by agent or attorney, naming
the person appearing and the capacity in which he appears. If he do
not appear, either personally or by agent or attorney, the same
shall be recorded.
XI. That in the trial of any impeachment the Presiding Officer
of the Senate, upon the order of the Senate, shall appoint a
committee of twelve Senators to receive evidence and take testimony
at such times and places as the committee may determine, and for
such purpose the committee so appointed and the chairman thereof,
to be elected by the committee, shall (unless otherwise ordered by
the Senate) exercise all the powers and functions conferred upon
the Senate and the Presiding Officer of the Senate, respectively,
under the rules of procedure and practice in the Senate when
sitting on impeachment trials.
Unless otherwise ordered by the Senate, the rules of procedure
and practice in the Senate when sitting on impeachment trials shall
govern the procedure and practice of the committee so appointed.
The committee so appointed shall report to the Senate in writing a
certified copy of the transcript of the proceedings and testimony
had and given before such committee, and such report shall be
received by the Senate and the evidence so received and the
testimony so taken shall be considered to all intents and purposes,
subject to the right of the Senate to determine competency,
relevancy, and materiality, as having been received and taken
before the Senate, but nothing herein shall prevent the Senate from
sending for any witness and hearing his testimony in open Senate,
or by order of the Senate having the entire trial in open Senate.
XII. At 12:30 o'clock afternoon of the day appointed for the
trial of an impeachment, the legislative and executive business of
the Senate shall be suspended, and the Secretary shall give notice
to the House of Representatives that the Senate is ready to proceed
upon the impeachment of ------ ------, in the Senate Chamber, which
chamber is prepared with accommodations for the reception of the
House of Representatives.
XIII. The hour of the day at which the Senate shall sit upon
the trial of an impeachment shall be (unless otherwise ordered) 12
o'clock m.; and when the hour for such thing shall arrive, the
Presiding Officer of the Senate shall so announce; and thereupon
the Presiding Officer upon such trial shall cause proclamation to
be made, and the business of the trial shall proceed. The
adjournment of the Senate sitting in said trial shall not operate
as an adjournment of the Senate; but on such adjournment the Senate
shall resume the consideration of its legislative and executive
business.
XIV. The Secretary of the Senate shall record the proceedings
in cases of impeachment as in the case of legislative proceedings,
and the same shall be reported in the same manner as the
legislative proceedings of the Senate.
XV. Counsel for the parties shall be admitted to appear and be
heard upon an impeachment.
XVI. All motions made by the parties or their counsel shall be
addressed to the Presiding Officer, and if he, or any Senator,
shall require it, they shall be
[[Page 2094]]
committed to writing, and read at the Secretary's table.
XVII. Witnesses shall be examined by one person on behalf of
the party producing them, and then cross-examined by one person on
the other side.
XVIII. If a Senator is called as a witness, he shall be sworn,
and give his testimony standing in his place.
XIX. If a Senator wishes a question to be put to a witness, or
to offer a motion or order (except a motion to adjourn), it shall
be reduced to writing, and put by the Presiding Officer.
XX. At all times while the Senate is sitting upon the trial of
an impeachment the doors of the Senate shall be kept open, unless
the Senate shall direct the doors to be closed while deliberating
upon its decisions.
XXI. All preliminary or interlocutory questions, and all
motions, shall be argued for not exceeding one hour on each side,
unless the Senate shall, by order, extend the time.
XXII. The case, on each side, shall be opened by one person.
The final argument on the merits may be made by two persons on each
side (unless otherwise ordered by the Senate upon application for
that purpose), and the argument shall be opened and closed on the
part of the House of Representatives.
XXIII. On the final question whether the impeachment is
sustained, the yeas and nays shall be taken on each article of
impeachment separately; and if the impeachment shall not, upon any
of the articles presented, be sustained by the votes of two-thirds
of the members present, a judgment of acquittal shall be entered;
but if the person accused in such articles of impeachment shall be
convicted upon any of said articles by the votes of two-thirds of
the members present, the Senate shall proceed to pronounce
judgment, and a certified copy of such judgment shall be deposited
in the office of the Secretary of State.
XXIV. All the orders and decisions shall be made and had by
yeas and nays, which shall be entered on the record, and without
debate, subject, however, to the operation of Rule VII, except when
the doors shall be closed for deliberation, and in that case no
member shall speak more than once on one question, and for not more
than ten minutes on an interlocutory question, and for not more
than fifteen minutes on the final question, unless by consent of
the Senate, to be had without debate; but a motion to adjourn may
be decided without the yeas and nays, unless they be demanded by
one-fifth of the members present. The fifteen minutes herein
allowed shall be for the whole deliberation on the final question,
and not on the final question on each article of impeachment.
XXV. Witnesses shall be sworn in the following form, viz:
``You, ------ ------, do swear (or affirm, as the case may be) that
the evidence you shall give in the case now pending between the
United States and ------ ------, shall be the truth, the whole
truth, and nothing but the truth: So help you God.'' Which oath
shall be administered by the Secretary, or any other duly
authorized person.
Form of a subpena be issued on the application of the managers of
the impeachment, or of the party impeached, or of his counsel
To ------ ------, greeting:
You and each of you are hereby commanded to appear before the
Senate of
[[Page 2095]]
the United States, on the ------ day of ------, at the Senate
Chamber in the city of Washington, then and there to testify your
knowledge in the cause which is before the Senate in which the
House of Representatives have impeached ------ ------.
Fail not.
Witness ------ ------, and Presiding Officer of the Senate, at
the city of Washington, this ------ day of ------, in the year of
our Lord ------, and of the Independence of the United States the
------.
------ ------,
Presiding Officer of the Senate.
Form of direction for the service of said subpena
The Senate of the United States to ------ ------, greeting:
You are hereby commanded to serve and return the within subpena
according to law.
Dated at Washington, this ------ day of ------, in the year of
our Lord ------, and of the Independence of the United States the
------.
------ ------,
Secretary of the Senate.
Form of oath to be administered to the members of the Senate
sitting in the trial of impeachments
``I solemnly swear (or affirm, as the case may be) that in all
things appertaining to the trial of the impeachment of ------ ----
--, now pending, I will do impartial justice according to the
Constitution and laws: So help me God.''
Form of summons to be issued and served upon the person impeached
The United States of America, ss:
The Senate of the United States to ------ ------, greeting:
Whereas the House of Representatives of the United States of
America did, on the ------ day of ------, exhibit to the Senate
articles of impeachment against you, the said ------ ------, in the
words following:
[Here insert the articles]
And demand that you, the said ------ ------, should be put to
answer the accusations as set forth in said articles, and that such
proceedings, examinations, trials, and judgments might be thereupon
had as are agreeable to law and justice.
You, the said ------ ------, are therefore hereby summoned to
be and appear before the Senate of the United States of America, at
their Chamber in the city of Washington, on the ------ day of ----
--, at 12:30 o'clock afternoon, then and there to answer to the
said articles of impeachment, and then and there to abide by, obey,
and perform such orders, directions, and judgments as the Senate of
the United States shall make in the premises according to the
Constitution and laws of the United States.
Hereof you are not to fail.
Witness ------ ------, and Presiding Officer of the said
Senate, at the city of Washington, this ------ day of ------, in
the year of our Lord ------, and of the Independence of the United
States the ------.
------ ------,
Presiding Officer of the Senate.
Form of precept to be indorsed on said writ of summons
The United States of America, ss:
The Senate of the United States to ------ ------, greeting:
You are hereby commanded to deliver to and leave with ------ --
----, if
[[Page 2096]]
conveniently to be found, or if not, to leave at his usual place of
abode, or at his usual place of business in some conspicuous place,
a true and attested copy of the within writ of summons, together
with a like copy of this precept; and in whichsoever way you
perform the service, let it be done at least ------ days before the
appearance day mentioned in the said writ of summons.
Fail not, and make return of this writ of summons and precept,
with your proceedings thereon indorsed, on or before the appearance
day mentioned in the said writ of summons.
Witness ------ ------, and Presiding Officer of the Senate, at
the city of Washington, this ------ day of ------, in the year of
our Lord ------, and of the Independence of the United States the
------.
------ ------,
Presiding Officer of the Senate.
All process shall be served by the Sergeant at Arms of the
Senate, unless otherwise ordered by the court.
XXVI. If the Senate shall at any time fail to sit for the
consideration of articles of impeachment on the day or hour fixed
therefor, the Senate may, by an order to be adopted without debate,
fix a day and hour for resuming such consideration.
Cross References
Functions of the Senate in impeachment generally, see Sec. 1, supra.
House-Senate relations generally, see Ch. 32, infra.
Senate notified of adoption of impeachment resolution and election of
managers by the House, see Sec. 9, supra.
Collateral References
Functions and practice of the Senate in impeachments, see Riddick,
Senate Procedure 495-504, S. Doc. No. 93-21, 93d Cong. 1st Sess.
(1973); Riddick, Procedure and Guidelines for Impeachment Trials in
the United States Senate, S. Doc. No. 93-102, 93d Cong. 2d Sess.
(1974).
Standing rules of the Senate generally, see Riddick, Senate Procedure
774-779, S. Doc. No. 93-21, 93d Cong. 1st Sess.
(1973). -------------------
Senate Rules for Impeachment Trials
Sec. 11.1 After impeachment proceedings had been instituted in the
House against President Richard Nixon, the Senate adopted a
resolution for the study and review of Senate rules and precedents
applicable to impeachment trials.
On July 29, 1974,(19) during the pendency of an
investigation in the House of alleged impeachable offenses committed by
President Nixon, the Senate adopted a resolution related to its rules
on impeachment:
---------------------------------------------------------------------------
19. 120 Cong. Rec. 25468, 93d Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Michael J.] Mansfield [of Montana]: Mr. President, I have
at the desk a resolution, submitted on behalf of the distinguished
Republican leader, the Senator from Pennsylvania (Mr. Hugh Scott),
the assistant majority leader, the distinguished Senator from
[[Page 2097]]
West Virginia (Mr. Robert C. Byrd), the assistant Republican
leader, the distinguished Senator from Michigan (Mr. Griffin), and
myself, and I ask that it be called up and given immediate
consideration.
The Presiding Officer: (20) The clerk will state the
resolution.
---------------------------------------------------------------------------
20. Jesse Helms (N.C.).
---------------------------------------------------------------------------
The legislative clerk read as follows:
S. Res. 370
Resolved, That the Committee on Rules and Administration is
directed to review any and all existing rules and precedents
that apply to impeachment trials with a view to recommending
any revisions, if necessary, which may be required if the
Senate is called upon to conduct such a trial.
Resolved further, That the Committee on Rules and
Administration is instructed to report back no later than 1
September 1974, or on such earlier date as the Majority and
Minority Leaders may designate, and
Resolved further, That such review by that Committee shall
be held entirely in executive sessions.
The Presiding Officer: Without objection, the Senate will
proceed to its immediate consideration.
The question is on agreeing to the resolution.
The resolution (S. 370) was agreed to.
Parliamentarian's Note: The Senate, unlike the House, is a
continuing legislative body. Therefore, the standing rules of the
Senate, including the rules for impeachment trials, continue from
Congress to Congress unless amended.(21)
---------------------------------------------------------------------------
21. See Rule XXXII, Senate Manual Sec. 32.2 (1973).
---------------------------------------------------------------------------
Sec. 11.2 The Senate having directed its Committee on Rules and
Administration to review Senate rules and precedents applicable to
impeachment trials (pending impeachment proceedings in the House
against President Richard Nixon), the committee reported back
various amendments to those Senate rules, which amendments were not
considered in the Senate.
On July 29, 1974, during the pendency of an investigation in the
House of alleged impeachable offenses committed by President Nixon, the
Senate adopted Senate Resolution 370, directing its Committee on Rules
and Administration to review any and all existing rules and precedents
that apply to impeachment trials, with a view to recommending any
necessary revisions.
The Committee on Rules and Administration reported (S. Rept. No.
93-1125) on Aug. 22, 1974, a resolution (S. Res. 390) amending the
Rules of Procedure and Practice in the Senate when Sitting on
Impeachment Trials. The resolution was not considered by the Senate.
The amendments provided: (1) that the Chief Justice, when presiding
over impeachment trials of
[[Page 2098]]
the President or Vice President, be administered the oath by the
Presiding Officer; (2) that the term ``person accused'' in reference to
the respondent, be changed in all cases to ``person impeached''; (3)
that the Presiding Officer rule on all questions of evidence
``including, but not limited to, questions of relevancy, materiality,
and redundancy,'' such decision to be voted upon on demand ``without
debate'' and such vote to be ``taken in accordance with the Standing
Rules of the Senate''; (4) that a committee of 12 Senators may receive
evidence ``if the Senate so orders'' the appointment of such a
committee by the Presiding Officer; (5) that the Senate may order
another hour than 12:30 m. o'clock for commencing impeachment
proceedings; and other clarifying changes. Other amendments proposed
certain rules governing the trial and procedures for voting on the
articles: (1)
---------------------------------------------------------------------------
1. S. Res. 390, 120 Cong. Rec. 29811-13, 93d Cong. 2d Sess., Aug. 22,
1974.
---------------------------------------------------------------------------
XVI. All motions, objections, requests, or applications whether
relating to the procedure of the Senate or relating immediately to
the trial (including questions with respect to admission of
evidence or other questions arising during the trial) made by the
parties or their counsel shall be addressed to the Presiding
Officer only, and if he, or any Senator, shall require it, they
shall be committed to writing, and read at the Secretary's table. .
. .
XIX. If a Senator wishes a question to be put to a witness, or
to a manager, or to counsel of the person impeached, or to offer a
motion or order (except a motion to adjourn), it shall be reduced
to writing, and put by the Presiding Officer. The parties or their
counsel may interpose objections to witnesses answering questions
propounded at the request of any Senator and the merits of any such
objection may be argued by the parties or their counsel. Ruling on
any such objection shall be made as provided in Rule VII. It shall
not be in order for any Senator to engage in colloquy.
XX. At all times while the Senate is sitting upon the trial of
an impeachment the doors of the Senate shall be kept open, unless
the Senate shall direct the doors to be closed while deliberating
upon its decisions. A motion to close the doors may be acted upon
without objection, or, if objection is heard, the motions shall be
voted on without debate by the yeas and nays, which shall be
entered on the record.
XXI. All preliminary or interlocutory questions, and all
motions, shall be argued for not exceeding one hour (unless the
Senate otherwise orders) on each side. . . .
XXIII. An article of impeachment shall not be divisible for the
purpose of voting thereon at any time during the trial. Once voting
has commenced on an article of impeachment, voting shall be
continued until voting has been completed on all articles of
impeachment unless the Senate adjourns for a period not to exceed
one day or ad
[[Page 2099]]
journs sine die. On the final question whether the impeachment is
sustained, the yeas and nays shall be taken on each article of
impeachment separately; and if the impeachment shall not, upon any
of the articles presented, be sustained by the votes of two-thirds
of the members present, a judgment of acquittal shall be entered;
but if the person impeached shall be convicted upon any such
article by the votes of two-thirds of the members present, the
Senate may proceed to the consideration of such other matters as
may be determined to be appropriate prior to pronouncing judgment.
Upon pronouncing judgment, a certified copy of such judgment shall
be deposited in the office of the Secretary of State. A motion to
reconsider the vote by which any article of impeachment is
sustained or rejected shall not be in order.
Form of Putting the Question on Each Article of Impeachment
The Presiding Officer shall first state the question;
thereafter each Senator, as his name is called, shall rise in his
place and answer: guilty or not guilty.
XXIV. All the orders and decisions may be acted upon without
objection, or, if objection is heard, the orders and decisions
shall be voted on without debate by yeas and nays, which shall be
entered on the record, subject, however, to the operation of Rule
VII, except when the doors shall be closed for deliberation, and in
that case no member shall speak more than once on one question, and
for not more than ten minutes on an interlocutory question, and for
not more than fifteen minutes on the final question, unless by
consent of the Senate, to be had without debate; but a motion to
adjourn may be decided without the yeas and nays, unless they be
demanded by one-fifth of the members present. The fifteen minutes
here in allowed shall be for the whole deliberation on the final
question, and not on the final question on each article of
impeachment.
Sec. 11.3 The Senate amended its rules for impeachment trials in the
74th Congress to allow a committee of 12 Senators to receive
evidence and take testimony.
On May 28, 1935, the Senate considered and agreed to a resolution
(S. Res. 18) amending the rules of procedure and practice in the Senate
when sitting on impeachment trials. The resolution added a new rule
relating to the reception of evidence by a committee appointed by the
Presiding Officer:
Resolved, That in the trial of any impeachment the Presiding
Officer of the Senate, upon the order of the Senate, shall appoint
a committee of twelve Senators to receive evidence and take
testimony at such times and places as the committee may determine,
and for such purpose the committee so appointed and the chairman
thereof, to be elected by the committee, shall (unless otherwise
ordered by the Senate) exercise all the powers and functions
conferred upon the Senate and the Presiding Officer of the Senate,
respectively, under the rules of procedure and practice in the
Senate when sitting on impeachment trials.
[[Page 2100]]
Unless otherwise ordered by the Senate, the rules of procedure
and practice in the Senate when sitting on impeachment trials shall
govern the procedure and practice of the committee so appointed.
The committee so appointed shall report to the Senate in writing a
certified copy of the transcript of the proceedings and testimony
had and given before such committee, and such report shall be
received by the Senate and the evidence so received and the
testimony so taken shall be considered to all intents and purposes,
subject to the right of the Senate to determine competency,
relevancy, and materiality, as having been received and taken
before the Senate, but nothing herein shall prevent the Senate from
sending for any witness and hearing his testimony in open Senate,
or by order of the Senate having the entire trial in open
Senate.(2)
---------------------------------------------------------------------------
2. 79 Cong. Rec. 8309, 8310, 74th Cong. 1st Sess.
---------------------------------------------------------------------------
Appearance of Managers
Sec. 11.4 The managers on the part of the House appear in the Senate to
exhibit the articles of impeachment at the time messaged for that
purpose by the Senate.
On Mar. 9, 1936,(3) the Senate messaged to the House its
readiness to receive the managers on the part of the House to present
articles of impeachment against U.S. District Judge Halsted Ritter at a
specified time:
---------------------------------------------------------------------------
3. 80 Cong. Rec. 3449, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
A message from the Senate, by Mr. Horne, its enrolling clerk,
announced that the Senate had--
Ordered, That the Secretary inform the House of
Representatives that the Senate is ready to receive the
managers appointed by the House for the purpose of exhibiting
articles of impeachment against Halsted L. Ritter, United
States district judge for the southern district of Florida,
agreeably to the notice communicated to the Senate and that at
the hour of 1 o'clock p.m. on Tuesday, March 10, 1936, the
Senate will receive the honorable managers on the part of the
House of Representatives, in order that they may present and
exhibit the said articles of impeachment against the said
Halsted L. Ritter, United States district judge for the
southern district of Florida.
On Mar. 10, the managers on the part of the House appeared in the
Senate pursuant to the order and the following proceedings took place:
The Vice President: (4) Will the Senator from North
Carolina suspend in order to permit the managers on the part of the
House of Representatives in the impeachment proceedings to appear
and present the articles of impeachment?
---------------------------------------------------------------------------
4. John N. Garner (Tex.).
---------------------------------------------------------------------------
Mr. [Josiah W.] Bailey [of North Carolina]: Mr. President, may
I take my seat with the right to resume at the end of the
impeachment proceedings?
The Vice President: The Senator will have the floor when the
Senate resumes legislative session.
[[Page 2101]]
Impeachment of Halsted L. Ritter
At 1 o'clock p.m. the managers on the part of the House of
Representatives of the impeachment of Halsted L. Ritter appeared
below the bar of the Senate, and the secretary to the majority,
Leslie L. Biffle, announced their presence, as follows:
I have the honor to announce the managers on the part of the
House of Representatives to conduct the proceedings in the
impeachment of Halsted L. Ritter, United States district judge in
and for the southern district of Florida.
The Vice President: The managers on the part of the House will
be received and assigned their seats.
The managers, accompanied by the Deputy Sergeant at Arms of the
House of Representatives, William K. Weber, were thereupon escorted
by the secretary to the majority to the seats assigned to them in
the area in front and to the left of the Chair.
The Vice President: The Chair understands the managers on the
part of the House of Representatives are ready to proceed with the
impeachment. The Sergeant at Arms will make proclamation.
The Sergeant at Arms, Chesley W. Jurney, made proclamation, as
follows:
Hear ye! Hear ye! Hear ye! All persons are commanded to keep
silent, on pain of imprisonment, while the House of Representatives
is exhibiting to the Senate of the United States articles of
impeachment against Halsted L. Ritter, United States district judge
in and for the southern district of Florida.
Mr. [Joseph T.] Robinson [of Arkansas]: I suggest the absence
of a quorum.
The Vice President: The clerk will call the roll.
The legislative clerk (Emery L. Frazier) galled the roll, and
the following Senators answered to their names. . . .
The Vice President: Eighty-six Senators have answered to their
names. A quorum is present. The managers on the part of the House
will proceed.
Mr. Manager [Hatton W.] Sumners [of Texas]: Mr. President, the
managers on the part of the House of Representatives are here
present and ready to present the articles of impeachment which have
been preferred by the House of Representatives against Halsted L.
Ritter, a district judge of the United States for the southern
district of Florida.
The House adopted the following resolution, which, with the
permission of the Senate, I will read:
House Resolution 439
In the House
of Representatives,
March 6, 1936.
Resolved, That Hatton W. Sumners, Randolph Perkins, and Sam
Hobbs, Members of this House, be, and they are hereby,
appointed managers to conduct the impeachment against Halsted
L. Ritter, United States district judge for the southern
district of Florida; that said managers are hereby instructed
to appear before the Senate of the United States and at the bar
thereof in the name of the House of Representatives and of all
the people of the United States to impeach the said Halsted L.
Ritter of high crimes and misdemeanors in office and to exhibit
to the Senate of the United States the articles of impeachment
[[Page 2102]]
against said judge which have been agreed upon by this House;
and that the said managers do demand that the Senate take order
for the appearance of said Halsted L. Ritter to answer said
impeachment, and demand his impeachment, conviction, and
removal from office.
Joseph W. Byrns,
Speaker of the
House of Representatives.
Attest:
South Trimble, Clerk.
[Seal of the House of Representatives.]
Mr. President, with the permission of the Vice President and
the Senate, I will ask Mr. Manager Hobbs to read the articles of
impeachment.
The Vice President: Mr. Manager Hobbs will proceed, and the
Chair will take the liberty of suggesting that he stand at the desk
in front of the Chair, as from that position the Senate will
probably be able to hear him better.
Mr. Manager Hobbs, from the place suggested by the Vice
President, said:
Mr. President and gentlemen of the Senate:
Articles of Impeachment Against Halsted L. Ritter
House Resolution 422, Seventy-fourth Congress, second session,
Congress of the United States of America
[Mr. Hobbs read the resolution and articles of impeachment].
Mr. Manager Sumners: Mr. President, the House of
Representatives, by protestation, saving themselves the liberty of
exhibiting at any time hereafter any further articles of accusation
or impeachment against the said Halsted L. Ritter, district judge
of the United States for the southern district of Florida, and also
of replying to his answers which he shall make unto the articles
preferred against him, and of offering proof to the same and every
part thereof, and to all and every other article of accusation or
impeachment which shall be exhibited by them as the case shall
require, do demand that the said Halsted L. Ritter may be put to
answer the misdemeanors in office which have been charged against
him in the articles which have been exhibited to the Senate, and
that such proceedings, examinations, trials, and judgments may be
thereupon had and given as may be agreeable to law and justice.
Mr. President, the managers on the part of the House of
Representatives, in pursuance of the action of the House of
Representatives by the adoption of the articles of impeachment
which have just been read to the Senate, do now demand that the
Senate take order for the appearance of the said Halsted L. Ritter
to answer said impeachment, and do now demand his impeachment,
conviction, and removal from office.
The Vice President: The Senate will take proper order and
notify the House of Representatives.(5)
---------------------------------------------------------------------------
5. 80 Cong. Rec. 3485-89, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
Organization of Senate as Court of Impeachment
Sec. 11.5 Following the appearance of the managers and their
presentation of the articles of impeachment to the Senate, the oath
is adminis
[[Page 2103]]
tered, the Senate organizes for the trial of impeachment and
notifies the House thereof, the articles are printed for the use of
the Senate, a summons is issued for the appearance of the
respondent, and provision is made for payment of trial expenses.
On Mar. 10, 1936,(6) immediately following the
presentation of articles of impeachment against Judge Halsted Ritter by
the managers on the part of the House to the Senate, the following
proceedings took place in the Senate:
---------------------------------------------------------------------------
6. 80 Cong. Rec. 3488, 3489, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Henry F.] Ashurst [of Arizona]: Mr. President, I move that
the senior Senator from Idaho [Mr. Borah], who is the senior
Senator in point of service in the Senate, be now designated by the
Senate to administer the oath to the Presiding Officer of the Court
of Impeachment.
The motion was agreed to; and Mr. Borah advanced to the Vice
President's desk and administered the oath to Vice President Garner
as Presiding Officer, as follows:
You do solemnly swear that in all things appertaining to
the trial of the impeachment of Halsted L. Ritter, United
States district judge for the southern district of Florida, now
pending, you will do impartial justice according to the
Constitution and laws. So help you God.
Mr. Ashurst: Mr. President, at this time the oath should be
administered to all the Senators, but I should make the observation
that if any Senator desires to be excused from this service, now is
the appropriate time to make known such desire. If there be no
Senator who desires to be excused, I move that the Presiding
Officer administer the oath to the Senators, so that they may form
a Court of Impeachment.
The Vice President: (7) Is there objection? The
Chair hears none, and it is so ordered. Senators will now be sworn.
---------------------------------------------------------------------------
7. John N. Garner (Tex.).
---------------------------------------------------------------------------
Thereupon the Vice President administered the oath to the
Senators present, as follows:
You do each solemnly swear that in all things appertaining
to the trial of the impeachment of Halsted L. Ritter, United
States district judge for the southern district of Florida, now
pending, you will do impartial justice according to the
Constitution and laws. So help you God.
The Vice President: The Sergeant at Arms will now make
proclamation that the Senate is sitting as a Court of Impeachment.
The Sergeant at Arms: Hear ye! Hear ye! Hear ye! All persons
are commanded to keep silence on pain of imprisonment while the
Senate of the United States is sitting for the trial of the
articles of impeachment exhibited by the House of Representatives
against Halsted L. Ritter, United States district judge for the
southern district of Florida.
Mr. Ashurst: Mr. President, I send to the desk an order, which
I ask to have read and agreed to.
The Vice President: The clerk will read.
[[Page 2104]]
The Chief Clerk (John C. Crockett) read as follows:
Ordered, That the Secretary notify the House of
Representatives that the Senate is now organized for the trial
of articles of impeachment against Halsted L. Ritter, United
States district judge for the southern district of Florida.
The Vice President: Without objection, the order will be
entered.
Mr. Ashurst: Mr. President, I send another proposed order to
the desk, and ask for its adoption.
The Vice President: The clerk will read the proposed order.
The Chief Clerk read as follows:
Ordered, That the articles of impeachment presented against
Halsted L. Ritter, United States district judge for the
southern district of Florida, be printed for the use of the
Senate.
The Vice President: Without objection, the order will be
entered.
Mr. Ashurst: Mr. President, I send a further order to the desk,
and ask for its adoption.
The Vice President: The clerk will read the proposed order.
The Chief Clerk read as follows:
Ordered, That a summons to the accused be issued as
required by the rules of procedure and practice in the Senate,
when sitting for the trial of the impeachment against Halsted
L. Ritter, United States district judge for the southern
district of Florida, returnable on Thursday, the 12th day of
March 1936, at 1 o'clock in the afternoon.
The Vice President: Is there objection? Without objection, the
order will be entered.
Mr. [Charles L.] McNary [of Oregon]: Mr. President, permit me
to make an inquiry.
The Vice President: The Senator will make it.
Mr. McNary: What record is being made of the Senators who have
taken their oaths as jurors?
The Vice President: No record has been made so far as the Chair
knows; but the Chair assumes that any Senator who was not in the
Senate Chamber at the time the oath was administered to Senators en
bloc will make the fact known to the Chair, so that he may take the
oath at some future time.
Mr. Ashurst: The Chair is correct in his statement in that any
Senator who was not I resent when the oath was taken en bloc, and
who desires to take the oath, may do so at any time before the
admission of evidence begins.
Mr. McNary subsequently said: Mr. President, I am advised that
the able Senator from New Jersey [Mr. Barbour] will be absent from
the city on next Thursday, and would like to be sworn at this time.
The Vice President: The Senator from Oregon asks unanimous
consent that the Senator from New Jersey may take the oath at this
time as a juror in the impeachment trial of Halsted L. Ritter.
Mr. [Ellison D.] Smith [of South Carolina]: Mr. President, in
order to save time, I ask the same privilege. I was absent when
Senators were sworn as jurors en bloc.
The Vice President: If there are any other Senators in the
Senate Chamber at the moment who did not take their oaths as jurors
when Senators were sworn en bloc, it would be advisable that they
make it known; and, if agreeable to the Senate, they may all be
sworn as jurors at one time.
[[Page 2105]]
Mr. Ashurst: The Senator from Texas [Mr. Sheppard], who was not
present when other Senators were sworn, is now present, and wishes
to be sworn.
The Vice President: Is there objection to such action being
taken at this time? The Chair hears none. Such Senators as are in
the Chamber at this time who were not present when Senators were
sworn en bloc as jurors will raise their right hands and be sworn.
Mr. Barbour, Mr. Overton, Mr. Sheppard, Mr. Smith, and Mr.
Townsend rose, and the oath was administered to them by the Vice
President.
Mr. Ashurst: Mr. President, I move that the Senate, sitting as
a Court of Impeachment, adjourn until Thursday next at 1 p.m.
The motion was agreed to; and (at 1 o'clock and 50 minutes
p.m.) the Senate, sitting as a Court of Impeachment, adjourned
until Thursday, March 12, 1936, at 1 p.m.
Impeachment of Halsted L. Ritter--Expenses of Trial
Mr. [James F.] Byrnes [of South Carolina]: From the Committee
to Audit and Control the Contingent Expenses of the Senate, I
report back favorably, without amendment, Senate Resolution 244,
providing for defraying the expenses of the impeachment proceedings
relative to Halsted L. Ritter. I ask unanimous consent for the
present consideration of the resolution.
The Vice President: The resolution will be read.
The Chief Clerk read Senate Resolution 244, submitted by Mr.
Ashurst on the 9th instant, and it was considered by unanimous
consent and agreed to, as follows:
Resolved, That not to exceed $5,000 is authorized to be
expended from the appropriation for miscellaneous items,
contingent expenses of the Senate, to defray the expenses of
the Senate in the impeachment trial of Halsted L. Ritter.
Sec. 11.6 Senators who have not taken the oath following the
commencement of the trial take the oath not in legislative session
but while the Senate is sitting as a Court of Impeachment, and the
Journal Clerk maintains records of those Senators who have taken
the oath.
On Mar. 12, 1936, the Senate was conducting legislative business
before resolving itself into a Court of Impeachment for further
proceedings in the trial of Judge Halsted L. Ritter. When a Senator who
had not yet taken the oath for the impeachment trial indicated he
wished to be sworn at that time, Vice President John N. Garner, of
Texas, ruled as follows:
The Vice President: After a thorough survey of the
situation, the best judgment of the Chair is that Senators who
have not heretofore taken the oath as jurors of the court
should take it after the Senate resolves itself into a court;
all Senators who have not as yet taken the oath as jurors will
take the oath at that time.(8)
---------------------------------------------------------------------------
8. 80 Cong. Rec. 3641, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
Later on the same day, it was announced that the Journal Clerk
[[Page 2106]]
had the duty to record the names of those Senators already having taken
the oath, there being no other record thereof.(9)
---------------------------------------------------------------------------
9. Id. at p. 3646.
---------------------------------------------------------------------------
Supplemental Rules for Trial
Sec. 11.7 For the Halsted Ritter impeachment trial, the Senate sitting
as a Court of Impeachment adopted supplemental rules similar to
those in the Harold Louderback trial.
On Mar. 12, 1936, the Court of Impeachment in the impeachment trial
of Judge Ritter adopted supplemental rules:
Mr. [Henry F.] Ashurst [of Arizona]: . . . Mr. President, in
order that Senators, sitting as judges and jurors, may have an
opportunity to study this matter, I ask for the adoption, after it
shall have been read, of the order which I send to the desk. This
is in haec verba the same order that was adopted in the Louderback
case.
The Vice President: (10) The clerk will read.
---------------------------------------------------------------------------
10. John N. Garner (Tex.).
---------------------------------------------------------------------------
The Chief Clerk read as follows:
Ordered, That in addition to the rules of procedure and
practice in the Senate when sitting on impeachment trials,
heretofore adopted, and supplementary to such rules, the
following rules shall be applicable in the trial of the
impeachment of Halsted L. Ritter, United States judge for the
southern district of Florida:
1. In all matters relating to the procedure of the Senate,
whether as to form or otherwise, the managers on the part of
the House or the counsel representing the respondent may submit
a request or application orally to the Presiding Officer, or,
if required by him or requested by any Senator, shall submit
the same in writing.
2. In all matters relating immediately to the trial, such
as the admission, rejection, or striking out of evidence, or
other questions usually arising in the trial of causes in
courts of justice, if the managers on the part of the House or
counsel representing the respondent desire to make any
application, request, or objection, the same shall be addressed
directly to the Presiding Officer and not otherwise.
3. It shall not be in order for any Senator, except as
provided in the rules of procedure and practice in the Senate
when sitting on impeachment trials, to engage in colloquy or to
address questions either to the managers on the part of the
House or to counsel for the respondent, nor shall it be in
order for Senators to address each other; but they shall
address their remarks directly to the Presiding Officer and not
otherwise.
4. The parties may, by stipulation in writing filed with
the Secretary of the Senate and by him laid before the Senate
or presented at the trial, agree upon any facts involved in the
trial; and such stipulation shall be received by the Senate for
all intents and purposes as though the facts therein agreed
upon had been established by legal evidence adduced at the
trial.
5. The parties or their counsel may interpose objection to
witnesses answering questions propounded at the request of any
Senator, and the merits of any such objection may be argued by
the parties or their counsel; and the Presiding Officer may
rule on any such objection, which ruling
[[Page 2107]]
shall stand as the judgment of the Senate, unless some Member
of the Senate shall ask that a formal vote be taken thereon, in
which case it shall be submitted to the Senate for decision; or
he may, at his option, in the first instance submit any such
question to a vote of the Members of the Senate. Upon all such
questions the vote shall be without debate and without a
division, unless the ayes and nays be demanded by one-fifth of
the Members present, when the same shall be
taken.(11)
---------------------------------------------------------------------------
11. 80 Cong. Rec. 3648, 3649, 74th Cong. 2d Sess. For the adoption of
identical supplemental rules in the Louderback case, see 6
Cannon's Precedents Sec. 519.
---------------------------------------------------------------------------
Sec. 11.8 Supplemental rules adopted by the Senate for an impeachment
trial are messaged to the House and referred to the managers on the
part of the House.
On Apr. 6, 1936,(12) there was laid before the House a
message from the Senate informing the House of the adoption of
supplemental rules to govern the impeachment trial against Judge
Halsted Ritter. They were referred to the managers:
---------------------------------------------------------------------------
12. 80 Cong. Rec. 5020, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
The Speaker laid before the House the following order from the
Senate of the United States:
In the Senate of the United States sitting for the trial of the
impeachment of Halsted L. Ritter, United States district
judge for the southern district of Florida
April 3, 1936.
Ordered, That the Secretary of the Senate communicate to
the House of Representatives an attested copy of the answer of
Halsted L. Ritter, United States district judge for the
southern district of Florida, to the articles of impeachment,
as amended, and also a copy of the order entered on the 12th
ultimo prescribing supplemental rules for the said impeachment
trial.
The answer and the supplemental rules to govern the impeachment
trial were referred to the House managers and ordered printed.
Appearance and Answer of Respondent
Sec. 11.9 When and if the respondent appears before the Court of
Impeachment, the return of the summons by the Sergeant at Arms is
presented and the respondent files an entry of appearance.
On Mar. 12, 1936,(13) the following proceedings took
place before the Court of Impeachment in the Halsted Ritter case:
---------------------------------------------------------------------------
13. 80 Cong. Rec. 3646, 3647, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
The Vice President: (14) . . . The Secretary will
read the return of the Sergeant at Arms.
---------------------------------------------------------------------------
14. John N. Garner (Tex.).
---------------------------------------------------------------------------
The Chief Clerk read as follows:
Senate of the United States,
Office of the
Sergeant at Arms.
The foregoing writ of summons addressed to Halsted L.
Ritter and the
[[Page 2108]]
foregoing precept, addressed to me, were duly served upon the
said Halsted L. Ritter by me by delivering true and attested
copies of the same to the said Halsted L. Ritter at the Carlton
Hotel, Washington, D.C., on Thursday, the 12th day of March
1936, at 11 o'clock in the forenoon of that day.
Chesley W. Jurney,
Sergeant at Arms,
United States Senate.
The Vice President: The Secretary of the Senate will administer
the oath to the Sergeant at Arms.
The Secretary of the Senate, Edwin A. Halsey, administered the
oath to the Sergeant at Arms, as follows:
You, Chesley W. Jurney, do solemnly swear that the return
made by you upon the process issued on the 10th day of March
1936 by the Senate of the United States against Halsted L.
Ritter, United States district judge for the southern district
of Florida, is truly made, and that you have performed such
service as therein described. So help you God.
The Vice President: The Sergeant at Arms will make
proclamation.
The Sergeant at Arms made proclamation as follows:
Halsted L. Ritter! Halsted L. Ritter! Halsted L. Ritter! United
States district judge for the southern district of Florida, appear
and answer to the articles of impeachment exhibited by the House of
Representatives against you.
The respondent, Halsted L. Ritter, and his counsel, Frank P.
Walsh, Esq., of New York City, N.Y., and Carl T. Hoffman, Esq., of
Miami, Fla., entered the Chamber and were conducted to the seats
assigned them in the space in front of the Secretary's desk, on the
right of the Chair.
The Vice President: Counsel for the respondent are advised that
the Senate is now sitting for the trial of articles of impeachment
exhibited by the House of Representatives against Halsted L.
Ritter, United States district judge for the southern district of
Florida.
Mr. Walsh (of counsel): May it please you, Mr. President, and
honorable Members of the Senate, I beg to inform you that, in
response to your summons, the respondent, Halsted L. Ritter, is now
present with his counsel and asks leave to file a forma1 entry of
appearance.
The Vice President: Is there objection? The Chair hears none,
and the appearance will be filed with the Secretary, and will be
read.
The Chief Clerk read as follows:
In the Senate of the United States of America Sitting as a
Court of Impeachment
March 12, 1936.
The United States of America v. Halsted L. Ritter
The respondent, Halsted L. Ritter, having this day been
served with a summons requiring him to appear before the Senate
of the United States of America in the city of Washington,
D.C., on March 12, 1936, at 1 o'clock afternoon to answer
certain articles of impeachment presented against him by the
House of Representatives of the United States of America, now
appears in his proper person and also by his counsel, who are
instructed by this respondent to inform the Senate that
respondent stands ready to file his pleadings to such articles
of impeachment within such reasonable period of time as may be
fixed.
Dated March 12, 1936.
[[Page 2109]]
Halsted L. Ritter,
Respondent.
Carl T. Hoffman,
Frank P. Walsh,
Counsel for Respondent.
Parliamentarian's Note: The respondent has not appeared in all
cases before the Senate. In this century, Judges Ritter, Harold
Louderback, and Robert Archbald appeared in person, but Judge Charles
Swayne appeared by attorney. President Andrew Johnson did not appear in
1868. Pursuant to Rule X of the Rules of Procedure and Practice in the
Senate when Sitting on Impeachment Trials, the respondent may appear by
attorney, and if neither the respondent or his counsel appear, the
trial proceeds as upon a plea of not guilty, under Rule VIII.
Sec. 11.10 The answer of the respondent in an impeachment proceeding is
messaged to the House and referred to the managers on the part of
the House.
On Apr. 6, 1936,(15) the answer of Judge Halsted Ritter
to the articles of impeachment against him was messaged by order from
the Senate to the House.
---------------------------------------------------------------------------
15. 80 Cong. Rec. 5020, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
The answer was referred to the managers on the part of the House
and ordered printed.
Debate on Organizational Questions
Sec. 11.11 Where the Senate is sitting as a Court of Impeachment,
organizational questions arising prior to trial are debatable.
On May 5, 1926, Vice President Charles G. Dawes, of Illinois, held
that debate was in order on a motion to fix the opening date of an
impeachment trial (of Judge George English), notwithstanding Rule XXIII
(now Rule XIV), precluding debate during impeachment trials:
The Chair will state that in impeachment trials had heretofore
such questions have been considered as debatable, and that Rule
XXIII, which refers to the decision of questions without debate,
has been held to apply after the trial has actually commenced. The
Senate has always debated the question of the time at which the
trial should start, and the Chair is inclined to hold that debate
is in order on a question of this sort.(16)
---------------------------------------------------------------------------
16. 67 Cong. Rec. 8725, 69th Cong. 1st Sess.
---------------------------------------------------------------------------
Likewise, the rule on debate was held not applicable to an
organizational question preceding the trial of President Andrew
Johnson.(17)
---------------------------------------------------------------------------
17. 3 Hinds' Precedents Sec. 2100.
---------------------------------------------------------------------------
On Mar. 3, 1933, however, following the presentation to the
[[Page 2110]]
Senate of articles of impeachment against Judge Harold Louderback by
the managers on the part of the House, the Vice President, Charles
Curtis, of Kansas, held that a motion to defer further consideration of
the impeachment charges was not debatable.(18)
---------------------------------------------------------------------------
18. 76 Cong. Rec. 5473, 72d Cong. 2d Sess.
---------------------------------------------------------------------------
Appointment of Presiding Officer
Sec. 11.12 The Senate adopted in the Harold Louderback impeachment
trial an order authorizing the Vice President or President pro
tempore to name a Presiding Officer to perform the duties of the
Chair.
On May 15, 1933, in the Senate sitting as a Court of Impeachment
for the trial of Judge Louderback, the following order was adopted:
Ordered, That during the trial of the impeachment of Harold
Louderback, United States district judge for the northern district
of California, the Vice President, in the absence of the President
pro tempore, shall have the right to name in open Senate, sitting
for said trial, a Senator to perform the duties of the Chair.
The President pro tempore shall likewise have the right to name
in open Senate, sitting for said trial, or, if absent, in writing,
a Senator to perform the duties of the Chair; but such substitution
in the case of either the Vice President or the President pro
tempore shall not extend beyond an adjournment or recess, except by
unanimous consent.(19)
---------------------------------------------------------------------------
19. 77 Cong. Rec. 3394, 73d Cong. 1st Sess.
---------------------------------------------------------------------------
Floor Privileges
Sec. 11.13 The Senate sitting as a Court of Impeachment may allow floor
privileges during the trial to assistants and clerks, to the
managers, and to the respondent's counsel.
On Apr. 8, 1936, requests were made in the Senate, sitting as a
Court of Impeachment in the trial of Judge Halsted Ritter, to allow
certain assistants and others the privilege of the Senate floor. By
unanimous consent, the Senate extended floor privileges to the clerk of
the House Committee on the Judiciary, a special agent of the FBI, and
an assistant to the respondent's counsel.(20)
---------------------------------------------------------------------------
20. 80 Cong. Rec. 5132, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
In the Louderback trial, requests were made by the House managers
that the clerk of the House Committee on the Judiciary and a member of
the bar be permitted to sit with the managers during the trial. The
Senate voted to allow the requests, after the Presiding Officer of the
Senate
[[Page 2111]]
indicated he wished to submit the question to the Senate.(1)
---------------------------------------------------------------------------
1. 6 Cannon's Precedents Sec. 522.
---------------------------------------------------------------------------
Parliamentarian's Note: In an impeachment trial, the managers on
the part of the House and counsel for the respondent have the privilege
of the Senate floor under the Senate rules for impeachment trials.
CHAPTER 14
Impeachment Powers
C. TRIAL IN THE SENATE
Sec. 12. Conduct of Trial
The conduct of an impeachment trial is governed by the standing
rules of the Senate on impeachment trials and by any supplemental rules
or orders adopted by the Senate for a particular trial.(2)
---------------------------------------------------------------------------
2. For the text of the rules for impeachment trials, see Sec. 11,
supra. For supplemental rules adopted by the Senate, see
Sec. Sec. 11.7, 11.8, supra. For examples of orders adopted
during or for the trial, see Sec. Sec. 11.12, supra
(appointment of Presiding Officer), 12.1, infra (opening
arguments), 12.9, infra (return of evidence), and 12.12, infra
(final arguments).
---------------------------------------------------------------------------
An impeachment trial is a full adversary proceeding, and counsel
are admitted to appear, to be heard, to argue on preliminary and
interlocutory questions, to deliver opening and final arguments, to
submit motions, and to present evidence and examine and cross-examine
witnesses.(3)
---------------------------------------------------------------------------
3. See Rules XV-XXII of the rules for impeachment trials set out in
Sec. 11, supra.
---------------------------------------------------------------------------
The Presiding Officer rules on questions of evidence and on
incidental questions subject to a demand for a formal vote, or may
submit questions in the first instance to the Senate under Rule VII of
the rules for impeachment trials.(4)
---------------------------------------------------------------------------
4. See Sec. 12.7, infra, for rulings on admissibility of evidence and
Sec. Sec. 12.3, 12.4, infra, for rulings on motions to strike
articles.
---------------------------------------------------------------------------
The trial may be temporarily suspended for the transaction of
legislative business or for the reception of messages.(5)
---------------------------------------------------------------------------
5. See Sec. Sec. 12.5, 12.6, infra. Rule XIII of the rules for
impeachment trials provides that the adjournment of the Senate
sitting as a Court of Impeachment shall not operate to adjourn
the Senate, but that the Senate may then resume consideration
of legislative and executive business.
---------------------------------------------------------------------------
Collateral Reference
Riddick, Procedure and Guidelines for Impeachment Trials in the United
States Senate, S. Doc. No. 93-102 93d Cong. 2d Sess.
(1974). -------------------
Opening Arguments
Sec. 12.1 The Senate sitting as a Court of Impeachment customarily
adopts an order providing for opening arguments to be made by one
person on behalf of the man
[[Page 2112]]
agers and one person on behalf of the respondent.
On Apr. 6, 1936, the Senate sitting as a Court of Impeachment for
the trial of Judge Halsted L. Ritter adopted the following order on
opening arguments:
Ordered, That the opening statement on the part of the managers
shall be made by one person, to be immediately followed by one
person who shall make the opening statement on behalf of the
respondent.(6)
---------------------------------------------------------------------------
6. 80 Cong. Rec. 4971, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
Identical orders had been adopted in past impeachment
trials.(7)
---------------------------------------------------------------------------
7. See, for example, 6 Cannon's Precedents Sec. 524 (Harold
Louderback); 6 Cannon's Precedents Sec. 509 (Robert Archbald).
---------------------------------------------------------------------------
Motions to Strike
Sec. 12.2 During an impeachment trial, the managers on the part of the
House made and the Senate granted a motion to strike certain
specifications from an article of impeachment.
On Apr. 3, 1936,(8) the following proceedings occurred
on the floor of the Senate during the impeachment trial of Judge
Halsted L. Ritter:
---------------------------------------------------------------------------
8. 80 Cong. Rec. 4899, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. Manager [Hatton W.] Sumners [of Texas] (speaking from the
desk in front of the Vice President): Mr. President, the suggestion
which the managers desire to make at this time has reference to
specifications 1 and 2 of article VII. These two specifications
have reference to what I assume counsel for respondent and the
managers as well, recognize are rather involved matters, which
would possibly require as much time to develop and to argue as
would be required on the remainder of the case.
The managers respectfully move that those two counts be
stricken. If that motion shall be sustained, the managers will
stand upon the other specifications in article VII to establish
article VII. The suggestion on the part of the managers is that
those two specifications in article VII be stricken from the
article.
The Presiding Officer: (9) What is the response of
counsel for the respondent?
---------------------------------------------------------------------------
9. Nathan L. Bachman (Tenn.).
---------------------------------------------------------------------------
Mr. [Charles L.] McNary [of Oregon]: Mr. President, there was
so much rumbling and noise in the Chamber that I did not hear the
position taken by the managers on the part of the House.
The Presiding Officer: The managers on the part of the House
have suggested that specifications 1 and 2 of article VII be
stricken on their motion. . . .
Mr. Hoffman [of counsel]: Mr. President, the respondent is
ready to file his answer to article I, to articles II and III as
amended, and to articles IV, V, and VI. In view of the announcement
just made asking that specifications 1 and 2 of article VII be
stricken, it will be necessary for us to revise our
[[Page 2113]]
answer to article VII and to eliminate paragraphs 1 and 2 thereof.
That can be very speedily done with 15 or 20 minutes if it can be
arranged for the Senate to indulge us for that length of time.
The Presiding Officer: Is there objection to the motion
submitted on the part of the managers?
Mr. Hoffman: We have no objection.
The Presiding Officer: The motion is made. Is there objection?
The Chair hears none, and the motion to strike is granted.
Sec. 12.3 Where the respondent in an impeachment trial moves to strike
certain articles or, in the alternative, to require election as to
which articles the managers on the part of the House will stand
upon, the Presiding Officer may rule on the motion in the first
instance subject to the approval of the Senate.
On Mar. 31, 1936, the respondent in an impeachment trial, Judge
Halsted Ritter, offered a motion to strike certain articles, his
purpose being to compel the House to proceed on the basis of Article I
or Article II, but not both. On Apr. 3, the Chair (Presiding Officer
Nathan L. Bachman, of Tennessee) ruled that the motion was not well
taken and overruled it. The proceedings were as follows:
(10)
---------------------------------------------------------------------------
10. 80 Cong. Rec. 4656, 4657, 74th Cong. 2d Sess., Mar. 31, 1936, and
80 Cong. Rec. 4898, 74th Cong. 2d Sess., Apr. 3, 1936.
---------------------------------------------------------------------------
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 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
[[Page 2114]]
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.
Ruling on the Motion of Respondent to Strike Out
The Presiding Officer: On the motion of the honorable counsel
for the respondent to strike article I of the articles of
impeachment or, in the alternative, to require the honorable
managers on the part of the House to make an election as to whether
they will stand upon article I or upon article II, the Chair is
ready to rule.
The Chair is clearly of the opinion that the motion to strike
article I or to require an election is not well taken and should be
overruled.
His reason for such opinion is that articles I and II present
entirely different bases for impeachment.
Article I alleges the illegal and corrupt receipt by the
respondent of $4,500 from his former law partner, Mr. Rankin.
Article II sets out as a basis for impeachment an alleged
conspiracy between Judge Ritter; his former partner, Mr. Rankin;
one Richardson, Metcalf & Sweeney; and goes into detail as to the
means and manner employed whereby the respondent is alleged to have
corruptly received the $4,500 above mentioned.
The two allegations, one of corrupt and illegal receipt and the
other of conspiracy to effectuate the purpose, are, in the judgment
of the Chair, wholly distinct, and the respondent should be called
to answer each of the articles.
What is the judgment of the Court with reference to that
particular phase of the motion to strike?
Mr. [William H.] King [of Utah]: Mr. President, if it be
necessary, I move that the ruling of the honorable Presiding
Officer be considered as and stand for the judgment of the Senate
sitting as a Court of Impeachment.
The Presiding Officer: Is there objection? The Chair hears
none, and the ruling of the Chair is sustained by the Senate.
[[Page 2115]]
Sec. 12.4 Where the respondent in an impeachment trial moves to strike
an article on grounds that have not been previously presented in
impeachment proceedings in the Senate, the Presiding Officer may
submit the motion to the Senate sitting as a Court of Impeachment
for decision.
On Mar. 31, 1936,(11) Judge Halsted Ritter, the
respondent in an impeachment trial, moved to strike Article VII of the
articles presented against him, on the following grounds:
---------------------------------------------------------------------------
11. 80 Cong. Rec. 4656, 4657, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
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.
On Apr. 3, 1936, Presiding Officer Nathan L. Bachman, of Tennessee,
submitted the motion to the Court of Impeachment for decision:
(12)
---------------------------------------------------------------------------
12. Id. at p. 4898.
---------------------------------------------------------------------------
The Presiding Officer: . . . With reference to article VII of
the articles of impeachment, formerly article IV, the Chair desires
to exercise his prerogative of calling on the Court for a
determination of this question.
His reason for so doing is that an impeachment proceeding
before the Senate sitting as a Court is sui generis, partaking
neither of the harshness and rigidity of the criminal law nor of
the civil proceedings requiring less particularity.
The question of duplicity in impeachment proceedings presented
by the honorable counsel for the respondent is a controversial one,
and the Chair feels that it is the right and duty of each Member of
the Senate, sitting as a Court, to express his views thereon.
Precedents in proceedings of this character are rare and not
binding upon this Court in any course that it might desire to
pursue.
The question presented in the motion to strike article VII on
account of duplicity has not, so far as the Chair is advised, been
presented in any impeachment proceeding heretofore had before this
body.
The Chair therefore submits the question to the Court.
[[Page 2116]]
Mr. [Henry F.] Ashurst [of Arizona]: Mr. President, under the
rules of the Senate, sitting as a Court of Impeachment, all such
questions, when submitted by the Presiding Officer, shall be
decided without debate and without division, unless the yeas and
nays are demanded by one-fifth of the Members present, when the
yeas and nays shall be taken.
The Presiding Officer: The Chair, therefore, will put the
motion. All those in favor of the motion of counsel for the
respondent to strike article VII will say ``aye.'' Those opposed
will say ``no.''
The noes have it, and the motion in its entirety is overruled.
Suspension of Trial for Messages and Legislative Business
Sec. 12.5 While the Senate is sitting as a Court of Impeachment, the
impeachment proceedings may be suspended by motion in order that
legislative business be considered.
On Apr. 6, 1936, the Senate was sitting as a Court of Impeachment
in the trial of Judge Halsted Ritter. A motion was made and adopted to
proceed to the consideration of legislative business, the regular order
for the termination of the session (5 :30 p.m.) not having arrived:
Mr. [Joseph T.] Robinson [of Arkansas]: Mr. President, I move
that the Court suspend its proceedings and that the Senate proceed
to the consideration of legislative business; and I should like to
make a brief statement as to the reasons for the motion. Some
Senators have said that they desire an opportunity to present
amendments to general appropriation bills which are pending, and
that it will be necessary that the amendments be presented today in
order that they may be considered by the committee having
jurisdiction of the subject matter. I make the motion.
The motion was agreed to; and the Senate proceeded to the
consideration of legislative business.(13)
---------------------------------------------------------------------------
13. 80 Cong. Rec. 4994, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
Sec. 12.6 Impeachment proceedings in the Senate, sitting as a Court of
Impeachment, may be suspended for the reception of a message from
the House.
On Apr. 8, 1936, the Senate was sitting as a Court of Impeachment
in the trial of Judge Halsted Ritter and examination of witnesses was
in progress. A message was then received:
Mr. [Joseph T.] Robinson [of Arkansas]: Mr. President, may I
interrupt the proceedings for a moment? In order that a message may
be received from the House of Representatives, I ask that the
proceedings of the Senate sitting as a Court of Impeachment be
suspended temporarily, and that the Senate proceed with the
consideration of legislative business.
[[Page 2117]]
The President Pro Tempore: (14) Is there objection?
---------------------------------------------------------------------------
14. Key Pittman (Nev.).
---------------------------------------------------------------------------
There being no objection, the Senate resumed the consideration
of legislative business.
(The message from the House of Representatives appears
elsewhere in the legislative proceedings of today's Record.)
Impeachment of Halsted L. Ritter
Mr. Robinson: I move that the Senate, in legislative session,
take a recess in order that the Court may resume its business.
The motion was agreed to; and the Senate, sitting as a Court of
Impeachment, resumed the trial of the articles of impeachment
against Halsted L. Ritter, United States district judge for the
southern district of Florida.(15)
---------------------------------------------------------------------------
15. 80 Cong. Rec. 5129, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
Evidence
Sec. 12.7 The Presiding Officer at an impeachment trial rules on the
admissibility of documentary evidence when a document is offered
and specific objection is made thereto.
During the impeachment trial of Judge Halsted Ritter in the 74th
Congress, the Presiding Officer set out guidelines under which rulings
on the admissibility of evidence would be made. At issue was a large
number of letters, to which a general objection was raised:
(16)
---------------------------------------------------------------------------
16. 80 Cong. Rec. 5245-53, 74th Cong. 2d Sess., Apr. 9, 1936.
---------------------------------------------------------------------------
Mr. Walsh (of counsel): For the sake of saving time, we have
these letters which have gotten into our possession, which have
been given to us, and I suggest to the House managers that we have
copies of this entire correspondence, a continuous list of them
chronologically copied. We are going to ask you, if you will agree,
that instead of reading these letters to Mr. Sweeny we be permitted
to offer them all in evidence and give you copies of them.
Mr. Manager [Randobph] Perkins [of New Jersey]: Mr. President,
the managers on the part of the House object to that procedure.
These letters are incompetent, immaterial, and irrelevant, and will
only encumber the record.
Mr. Walsh (of counsel): I desire to say that these letters
predate and antedate this transaction. They show the effort that
was being made, and they throw a strong light upon the proposition
that this was not a champertous proceeding, but that it was a
proceeding started by these men who had invested their money, and
upon whose names and credit these bonds were sold. It is in answer
to that.
The Presiding Officer: (17) It is the ruling of the
Chair that the letters shall be exhibited to the managers on the
part of the House, and that the managers on the part of the House
may make specific objections to each document to which they wish to
lodge
[[Page 2118]]
objection. There can be no ruling with respect to a large number of
documents without specific objection.
---------------------------------------------------------------------------
17. Walter F. George (Ga.).
---------------------------------------------------------------------------
Mr. Walsh (of counsel): Will you take that suggestion of the
Presiding Officer and go through these documents?
Mr. Manager Perkins: Mr. President, we understand that these
letters are to be offered, and objection made as they are offered;
or are we to examine the file and find out what documents we object
to?
The Presiding Officer: The ruling of the Chair was that the
letters shall be exhibited to the managers on the part of the
House, and that specific objection shall be lodged to documents to
which the managers wish to lodge objections.
Mr. Manager Perkins: Mr. President, we will examine them during
the recess and be prepared to follow that procedure. . . .
Mr. Manager [Sam] Hobbs [of Alabama]: . . .
Q. Judge, I will ask you if the matter of the requirement of a
supersedeas bond, and fixing the amount thereof, was one of the
questions which would probably come up immediately after the final
decree was rendered.
Mr. Walsh (of counsel): I wish to object to that question for
the reason that the record in the case and the papers in the case
are the best evidence. I should like to have them here. I should
like to have them identified, so that, if we thought it necessary,
we could interrogate the witness on cross-examination.
The President Pro Tempore: (18) The Presiding
Officer thinks, if the witness knows matters that he himself
attended to, the original documents not being in question, he has a
right to answer the question.
---------------------------------------------------------------------------
18. Key Pittman (Nev.).
---------------------------------------------------------------------------
[Judge Ritter]: A. I have no independent recollection of the
matter at all. The official court records or this memorandum would
have to control.
Sec. 12.8 Exhibits in evidence in an impeachment trial should be
identified and printed in the Record if necessary.
On Apr. 8, 1936, a proposal was made in the Senate, sitting as a
Court of Impeachment in the Halsted Ritter trial, as to the
identification of certain exhibits: (19)
---------------------------------------------------------------------------
19. 80 Cong. Rec. 5137, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. Walsh (of counsel): Have you the letter that is referred to
in that letter?
Mr. Manager [Randolph] Perkins [of New Jersey]: I have not it
at hand at this moment, but I have it here somewhere.
Mr. Walsh (of counsel): I should like to see the letter if it
is here.
Mr. Manager Perkins: I understood that Mr. Rankin would resume
the stand at this time.
Mr. [Sherman] Minton [of Indiana]: Mr. President, far be it
from me to suggest to eminent counsel engaged in this case how they
should conduct a lawsuit, but I respectfully suggest that they
identify their exhibits in some way, and also the papers that are
introduced in the record, so that we may keep track of them.
[[Page 2119]]
The Presiding Officer: (20) The Chair takes the
liberty of suggesting that the statement made by the Senator from
Indiana is a wise one, and is followed in court. The Chair sees no
reason why identification should not be made of the exhibits which
are received in evidence. Counsel will proceed.
---------------------------------------------------------------------------
20. William H. King (Utah).
---------------------------------------------------------------------------
Certain exhibits were ordered printed, while others were merely
introduced in evidence. One exhibit was printed in the Record by
unanimous consent.(21)
---------------------------------------------------------------------------
21. 80 Cong. Rec. 5341, 74th Cong. 2d Sess., Apr. 10, 1936.
---------------------------------------------------------------------------
Mr. [Homer T.] Bone [of Washington]: Mr. President, may I
inquire of the Chair if all the exhibits counsel are introducing
are to be printed in the daily Record?
The Presiding Officer: (1) The Chair thinks not.
---------------------------------------------------------------------------
1. Matthew M. Neely (W. Va.).
---------------------------------------------------------------------------
Mr. Bone: I am wondering how we may later scrutinize them if
counsel are going to rely on them.
The Presiding Officer: Some of the exhibits are being ordered
printed and others are merely introduced in evidence for the use of
counsel upon argument and consideration of the court.
Mr. Walsh (of counsel): I had supposed that all correspondence
would be printed in full in the Record.
The Presiding Officer: The Chair assumes that all documents and
correspondence which have been read or which have been ordered
printed have been or will be printed in the Record.
Mr. Walsh (of counsel): I think perhaps a mere reference to
this order would be sufficient to advise those of the Senators who
have not heard it. However, as to this particular order, I will ask
that it be printed in the Record.
The Presiding Officer: Is there objection?
Federal income-tax returns of the respondent, offered in evidence
by the managers, were printed in full in the, Record.(2)
---------------------------------------------------------------------------
2. 80 Cong. Rec. 5256-61, 74th Cong. 2d Sess., Apr. 9, 1936.
---------------------------------------------------------------------------
Sec. 12.9 The Senate sitting as a Court of Impeachment may at the
conclusion of the trial provide by order for the return of evidence
to proper owners or officials.
On Apr. 16, 1936, the Senate sitting as a Court of Impeachment in
the trial of Judge Halsted Ritter adopted, at the conclusion of trial,
orders for the return of evidence: (3)
---------------------------------------------------------------------------
3. 80 Cong. Rec. 5558, 5559, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
Ordered, That the Secretary be, and he is hereby, directed to
return to A. L. Rankin, a witness on the part of the United States,
the two documents showing the lists of cases, pending and closed,
in the law office of said A. L. Rankin, introduced in evidence
during the trial of the impeachment of Halsted L. Ritter, United
States district judge for the southern district of Florida. . . .
Ordered, That the Secretary of the Senate be, and he is hereby,
directed
[[Page 2120]]
to return to the clerk of the United States District Court for the
Southern District of Florida and the clerk of the circuit court,
Palm Beach County, Fla., sitting in chancery, the original papers
filed in said courts which were offered in evidence during the
proceedings of the Senate sitting for the trial of the impeachment
of Halsted L. Ritter, United States district judge for the southern
district of Florida.
In the Harold Louderback trial, the Senate returned papers by order
to a U.S. District Court.(4)
---------------------------------------------------------------------------
4. 77 Cong. Rec. 4142, 73d Cong. 1st Sess., May 25, 1933.
---------------------------------------------------------------------------
Witnesses
Sec. 12.10 The Senate sitting as a Court of Impeachment has adopted
orders requiring witnesses to stand while giving testimony during
impeachment trials.
On Apr. 6, 1936, during the trial of Judge Halsted Ritter before
the Senate sitting as a Court of Impeachment, an order was adopted as
to the position of witnesses while testifying: (5)
---------------------------------------------------------------------------
5. 80 Cong. Rec. 4971, 74th Cong. 2d Sess. See also 6 Cannon's
Precedents Sec. 488.
---------------------------------------------------------------------------
Mr. [William H.] King [of Utah]: Pursuant to the practice
heretofore observed in impeachment cases, I send to the desk an
order, and ask for its adoption.
The Vice President: (6) The order will be stated.
---------------------------------------------------------------------------
6. John N. Garner (Tex.).
---------------------------------------------------------------------------
The legislative clerk read as follows:
Ordered, That the witnesses shall stand while giving their
testimony.
The Vice President: Is there objection to the adoption of the
order? The Chair hears none, and the order is entered.
Sec. 12.11 The respondent may take the stand and be examined and cross-
examined at his impeachment trial.
On Apr. 11, 1936, Judge Halsted Ritter, the respondent in a trial
of impeachment, was called as a witness by his counsel. He was cross
examined by the managers on the part of the House and by Senators
sitting on the Court of Impeachment, who submitted their questions in
writing.(7)
---------------------------------------------------------------------------
7. 80 Cong. Rec. 5370-86, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
Parliamentarian's Note: The respondent in an impeachment trial is
not required to appear, and the trial may proceed in his absence.
Impeachment rules VIII and IX provide for appearance and answer by
attorney and provide for continuance of trial in the absence of any
appearance. The respondent first testified in his own behalf in the
Robert Archbald impeachment trial in 1913, and Judge Harold Louderback
testified at his trial in 1933.(8)
---------------------------------------------------------------------------
8. See 6 Cannon's Precedents Sec. Sec. 511 (Archbald), 524
(Louderback).
---------------------------------------------------------------------------
[[Page 2121]]
Final Arguments
Sec. 12.12 Following the presentation of evidence in an impeachment
trial, the Court of Impeachment adopts an order setting the time to
be allocated for final arguments.
On Apr. 13, 1936, the Senate sitting as a Court of Impeachment in
the trial of Judge Halsted Ritter adopted, at the close of the
presentation of evidence, an order limiting final arguments:
Ordered, That the time for final argument of the case of
Halsted L. Ritter shall be limited to 4 hours, which said time
shall be divided equally between the managers on the part of the
House of Representatives and the counsel for the respondent, and
the time thus assigned to each side shall be divided as each side
for itself may determine.(9)
---------------------------------------------------------------------------
9. 80 Cong. Rec. 5401, 74th Cong. 2d Sess. An identical order was
adopted in the Harold Louderback impeachment trial (see 6
Cannon's Precedents Sec. 524).
Orders for final arguments have varied as to the time and
number of arguments permitted, although in one instance--the
trial of President Andrew Johnson--no limitations were imposed
as to the time for and number of final arguments. See 3 Hinds'
Precedents Sec. 2434.
---------------------------------------------------------------------------
CHAPTER 14
Impeachment Powers
C. TRIAL IN THE SENATE
Sec. 13. Voting; Deliberation and Judgment
The applicable rules on impeachment trials provide for deliberation
behind closed doors, for a vote on the articles of impeachment, and for
pronouncement of judgment. (See Rules XXIII and XXIV.) (10)
Except for organizational questions, debate is in order during an
impeachment trial only while the Senate is deliberating behind closed
doors, at which time the respondent, his counsel, and the managers are
not present. Rule XXIV, of the rules for impeachment trials, provides
that orders and decisions shall be determined by the yeas and nays
without debate.(11)
---------------------------------------------------------------------------
10. The Senate rules on impeachment are set out in Sec. 11, supra.
11. For debate on organizational questions before trial commences, see
Sec. 11.11, supra.
---------------------------------------------------------------------------
Under article I, section 3, clause 6 of the U.S. Constitution, a
two-thirds vote is required to convict the respondent on an article of
impeachment, the articles being voted on separately under Rule XXIII of
the rules for impeachment trials.(12)
---------------------------------------------------------------------------
12. Overruled in the Ritter impeachment trial was a point of order that
the respondent was not properly convicted, a two-thirds vote
having been obtained on an article which cumulated offenses
(see Sec. Sec. 13.5, 13.6, infra).
---------------------------------------------------------------------------
[[Page 2122]]
Article I, section 3, clause 7 provides for removal from office
upon conviction and also allows the further judgment of
disqualification from holding and enjoying ``any office of honor, trust
or profit under the United States.'' In the most recent conviction by
the Senate, of Judge Ritter in 1936, it was held for the first time
that no vote was required on removal following conviction, inasmuch as
removal follows automatically from conviction under article II, section
4.(13) But the further judgment of disqualification requires
a majority vote.(14)
---------------------------------------------------------------------------
13. See Sec. 13.9, infra.
14. See Sec. 13.10, infra.
---------------------------------------------------------------------------
Cross References
Constitutional provisions governing judgment in impeachment trials, see
Sec. 1, supra.
Deliberation, vote and judgment in the Ritter impeachment trial, see
Sec. 18, infra.
Grounds for impeachment and conviction generally, see Sec. 3, supra.
Judicial review of impeachment convictions, see Sec. 1, supra.
Trial and judgment where person impeached has resigned, see Sec. 2,
supra.
Collateral Reference
Riddick, Procedure and Guidelines for Impeachment Trials in the United
States Senate, S. Doc. No. 93-102, 93d Cong. 2d Sess.
(1974). -------------------
Deliberation Behind Closed Doors
Sec. 13.1 Final arguments having been presented to a Court of
Impeachment, the Senate closes the doors in order to deliberate in
closed session, and the respondent, his counsel, and the managers
withdraw.
On Apr. 15, 1936, the Senate convened sitting as a Court of
Impeachment in the trial of Judge Halsted Ritter. Final arguments had
been completed on the preceding day. The following proceedings took
place:
Impeachment of Halsted L. Ritter
The Senate, sitting for the trial of the articles of
impeachment against Halsted L. Ritter, judge of the United States
District Court for the Southern District of Florida, met at 12
o'clock meridian.
The respondent, Halsted L. Ritter, with his counsel, Frank P.
Walsh, Esq., and Carl T. Hoffman, Esq., appeared in the seats
assigned them.
The Vice President: (15) The Sergeant at Arms by
proclamation will open the proceedings of the Senate sitting for
the trial of the articles of impeachment.
---------------------------------------------------------------------------
15. John N. Garner (Tex.).
---------------------------------------------------------------------------
The Sergeant at Arms made the usual proclamation.
On request of Mr. Ashurst, and by unanimous consent, the
reading of the
[[Page 2123]]
Journal of the proceedings of the Senate, sitting for the trial of
the articles of impeachment, for Tuesday, April 14, 1936, was
dispensed with, and the Journal was approved. . . .
The Vice President: Eighty-six Senators have answered to their
names. A quorum is present.
Deliberation With Closed Doors
Mr. [Henry F.] Ashurst [of Arizona]: I move that the doors of
the Senate be closed for deliberation.
The Vice President: The question is on the motion of the
Senator from Arizona.
The motion was agreed to.
The respondent and his counsel withdrew from the Chamber.
The galleries having been previously cleared, the Senate (at 12
o'clock and 8 minutes p.m.) proceeded to deliberate with closed
doors.
At 4 o'clock and 45 minutes p.m. the doors were
opened.(16)
---------------------------------------------------------------------------
16. 80 Cong. Rec. 5505, 74th Cong. 2d Sess. In the Ritter case, the
managers on the part of the House were not present when the
Senate closed its doors. Where they are present, they withdraw.
See, for example, 6 Cannon's Precedents Sec. 524 (Harold
Louderback).
---------------------------------------------------------------------------
Rule XX of the rules of the Senate on impeachment trials provides:
``At all times while the Senate is sitting upon the trial of an
impeachment the doors of the Senate shall be kept open, unless the
Senate shall direct the doors to be closed while deliberating upon its
decisions.''
Rule XXIV provides for debate, during impeachment trials, only when
the Senate is deliberating in closed session, wherein ``no member shall
speak more than once on one question, and for not more than ten minutes
on an interlocutory question, and for not more than fifteen minutes on
the final question, unless by consent of the Senate, to be had without
debate. . . . The fifteen minutes herein allowed shall be for the whole
deliberation on the final question, and not on the final question on
each article of impeachment.''
Orders for Time and Method of Voting
Sec. 13.2 Following or during deliberation behind closed doors, the
Senate sitting as a Court of Impeachment adopts orders to provide
the time and method of voting.
On Apr. 15, 1936, the Senate, sitting as a Court of Impeachment in
the trial of Judge Halsted Ritter, opened its doors after having
deliberated in closed session. By unanimous consent, the order setting
a date for the taking of a vote was published in the Record:
Ordered, by unanimous consent, That when the Senate, sitting as
a Court, concludes its session on today it take a recess until 12
o'clock tomorrow, and that upon the convening of the
[[Page 2124]]
Court on Friday it proceed to vote upon the various articles of
impeachment.
Senate Majority Leader Joseph T. Robinson, of Arkansas, explained
the purpose of the agreement, which was to postpone the vote until
Friday so that a number of Senators who wished to vote could be present
for that purpose.(17)
---------------------------------------------------------------------------
17. 80 Cong. Rec. 5505, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
On Apr. 16, 1936, the Senate, after deliberating behind closed
doors, agreed to an order providing a method of voting:
Ordered, That upon the final vote in the pending impeachment of
Halsted L. Ritter, the Secretary shall read the articles of
impeachment separately and successively, and when the reading of
each article shall have been concluded the Presiding Officer shall
state the question thereon as follows:
``Senators, how say you? Is the respondent, Halsted L. Ritter,
guilty or not guilty?''
Thereupon the roll of the Senate shall be called, and each
Senator as his name is called, unless excused, shall arise in his
place and answer ``guilty'' or ``not guilty.'' (18)
---------------------------------------------------------------------------
18. Id. at p. 5558.
---------------------------------------------------------------------------
This method of consideration--that of reading and voting on the
articles separately and in sequence--has been used consistently in
impeachment proceedings, though in the Andrew Johnson trial Article XI
was first voted on.(19)
---------------------------------------------------------------------------
19. See 3 Hinds' Precedents Sec. Sec. 2439-2443. 6 Cannon's Precedents
Sec. 524.
---------------------------------------------------------------------------
The form of putting the question and calling the roll in the
Johnson trial also differed from current practice, the Chief Justice in
that case putting the question ``Mr. Senator ------, how say you? Is
the respondent, Andrew Johnson, President of the United States, guilty
or not guilty of a high misdemeanor, as charged in this article?''
(20)
---------------------------------------------------------------------------
20. 3 Hinds' Precedents Sec. 2440.
---------------------------------------------------------------------------
Recognition of Pairs
Sec. 13.3 Pairs are not recognized during the vote by a Court of
Impeachment on articles of impeachment.
On Apr. 17, 1936, the Senate sitting as a Court of Impeachment in
the trial of Judge Halsted Ritter convened to vote on the articles of
impeachment. Preceding the vote, Senator Joseph T. Robinson, of
Arkansas, the Majority Leader, announced as follows:
I have been asked to announce also that pairs are not
recognized in this proceeding. (1)
---------------------------------------------------------------------------
1. 80 Cong. Rec. 5602, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
Likewise, it was announced on May 23, 1933, preceding the vote
[[Page 2125]]
on the articles impeaching Judge Harold Louderback, that pairs would
not be recognized.(2)
---------------------------------------------------------------------------
2. 77 Cong. Rec. 4083, 73d Cong. 1st Sess.
---------------------------------------------------------------------------
Excuse or Disqualification From Voting
Sec. 13.4 Members of the House and Senate have been excused but not
disqualified from voting on articles of impeachment.
On Mar. 12, 1936, preceding the appearance of respondent Judge
Halsted Ritter before the Senate sitting as a Court of Impeachment,
Senator Edward P. Costigan, of Colorado, asked to be excused from
participation in the impeachment proceedings. He inserted in the Record
a statement assigning the reasons for his request, based on personal
acquaintance with the respondent.(3) Similarly, on Mar. 31,
Senator Millard E. Tydings, of Maryland, asked to be excused from
participating in the proceedings and from voting on the ground of
family illness.(4)
---------------------------------------------------------------------------
3. 80 Cong. Rec. 3646, 74th Cong. 2d Sess.
4. Id. at p. 4654.
---------------------------------------------------------------------------
During the consideration in the House of the resolution impeaching
Senator William Blount, of Tennessee, his brother, Mr. Thomas Blount,
of North Carolina, a Member of the House, asked to be excused from
voting on any matter affecting his brother.(5)
---------------------------------------------------------------------------
5. 3 Hinds' Precedents Sec. 2295.
---------------------------------------------------------------------------
In the impeachment of Judge Harold Louderback, two Members of the
Senate were excused from voting thereon since they had been Members of
the House when Judge Louderback was impeached.(6)
---------------------------------------------------------------------------
6. 6 Cannon's Precedents Sec. 516.
---------------------------------------------------------------------------
The issue of disqualification from voting either in the House on
impeachment or in the Senate on conviction has not been directly
presented. During the trial of President Andrew Johnson, a Senator
offered and then withdrew a challenge to the competency of the
President pro tempore of the Senate, Benjamin F. Wade, of Ohio, to
preside over or vote in the trial of the President. Before withdrawing
his objection, Senator Thomas A. Hendricks, of Indiana, argued that the
President pro tempore was an interested party because of his possible
succession to the Presidency. The President pro tempore voted on that
occasion.(7)
---------------------------------------------------------------------------
7. 3 Hinds' Precedents Sec. 2061.
During the Johnson impeachment, succession to the
Presidency was governed by an Act of 1792 providing that the
President pro tempore and then the Speaker of the House should
succeed to the Presidency, after the Vice President. 1 Stat.
239. Presently, 3 USC Sec. 19 provides for the Speaker and then
the President pro tempore to succeed to the Presidency after
the Vice President, but the 25th amendment to the U.S.
Constitution provides a mechanism for selection of a Vice
President upon vacancy in that office, by succession to the
Presidency or otherwise.
---------------------------------------------------------------------------
[[Page 2126]]
Speaker Schuyler Colfax, of Indiana, chose to vote on the
resolution impeaching President Johnson in 1868, and delivered the
following explanatory statement:
The Speaker said: The occupant of the Chair cannot consent that
his constituents should be silent on so grave a question, and
therefore, as a member of this House, he votes ``ay.'' On agreeing
to the resolution, there are--yeas 126, nays 47. So the resolution
is adopted.(8)
---------------------------------------------------------------------------
8. 66 Cong. Globe 1400, 40th Cong. 2d Sess., Feb. 24, 1868.
In the Johnson impeachment, the minority party members
generally refrained from voting on the ballot for the choice of
managers following the adoption of articles, where a request to
excuse all who sought to be excused had been objected to. 3
Hinds' Precedents Sec. 2417.
---------------------------------------------------------------------------
It has been generally determined in the House that the individual
Member should decide the question whether he is disqualified from
voting because of a personal interest in the vote.(9)
---------------------------------------------------------------------------
9. See Rule VIII clause 1 and comments thereto, House Rules and Manual
Sec. Sec. 656-659 (1973).
In Senate practice, no rule requires a Member of the Senate
to withdraw from voting because of personal interest, but a
Member may be excused from voting under Rule XII clause 2,
Senate Manual Sec. 12.2 (1973).
---------------------------------------------------------------------------
Points of Order Against Vote
Sec. 13.5 In making a point of order against the result of a vote on an
article of impeachment, a Senator may state the grounds for his
point of order but debate or argument thereon is not in order.
On Apr. 17, 1936, following a two-thirds vote for conviction by the
Senate, sitting as a Court of Impeachment in the trial of Judge Halsted
Ritter, Senator Warren R. Austin, of Vermont, made a point of order
against the vote. The President pro tempore, Key Pittman, of Nevada,
subsequently ruled against allowing debate or argument on that point of
order: (10)
---------------------------------------------------------------------------
10. 80 Cong. Rec. 5606, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. Austin: Mr. President, a point of order.
The President Pro Tempore: The Senator will state the point of
order.
Mr. Austin: I make the point of order that the respondent is
not guilty, not having been found guilty by a vote of two-thirds of
the Senators present.
Article VII is an omnibus article, the ingredients of which, as
stated on page 36, paragraph 4, are----
[[Page 2127]]
Mr. [Robert M.] La Follette [Jr., of Wisconsin]: Mr. President,
I rise to a parliamentary inquiry.
The President Pro Tempore: The Senator will state it.
Mr. La Follette: Is debate upon the point of order in order?
The President Pro Tempore: It is not in order.
Mr. La Follette: I ask for the regular order.
Mr. Austin: Mr. President, a parliamentary inquiry.
The President Pro Tempore: The Senator will state it.
Mr. Austin: In stating a point of order, is it not appropriate
to state the grounds of the point of order?
The President Pro Tempore: Providing the statement is not
argument.
Mr. Austin: That is what the Senator from Vermont is
undertaking to do, and no more.
The President Pro Tempore: If the statement is argument, the
point of order may be made against the argument.
Mr. Austin: 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).
Mr. [Joseph T.] Robinson [of Arkansas]: Mr. President, I rise
to a point of order.
The President Pro Tempore: The Senator from Arkansas will state
the point of order.
Mr. Robinson: The Senator from Vermont is not in order.
The President Pro Tempore: The point of order is sustained. The
Senator from Vermont is making an argument on the point of order he
has made.
Sec. 13.6 During the Halsted Ritter impeachment trial, the President
pro tempore overruled a point of order against a vote of conviction
on the seventh article (charging general misbehavior), where the
point of order was based on the contention that the article
repeated and combined facts, circumstances, and charges contained
in the preceding articles.
On Apr. 17, 1936,(11) the President pro tempore, Key
Pittman, of Nevada, stated that the Senate had by a two-thirds vote
adjudged the respondent Judge Ritter guilty as charged in Article VII
of the articles of impeachment. He over
[[Page 2128]]
ruled a point of order that had been raised against the vote, as
follows:
---------------------------------------------------------------------------
11. 80 Cong. Rec. 5606, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Warren R.] Austin [of Vermont]: Mr. President, a point of
order.
The President Pro Tempore: The Senator will state the point of
order.
Mr. Austin: I make the point of order that the respondent is
not guilty, not having been found guilty by a vote of two-thirds of
the Senators present.
Article VII is an omnibus article, the ingredients of which, as
stated on page 36, paragraph 4, are----
A point of order was made against debate or argument on the point
of order.(12)
---------------------------------------------------------------------------
12. See Sec. 13.5 supra.
---------------------------------------------------------------------------
Mr. Austin: 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).
Mr. [Joseph T.] Robinson [of Arkansas]: Mr. President, I rise
to a point of order.
The President Pro Tempore: The Senator from Arkansas will state
the point of order.
Mr. Robinson: The Senator from Vermont is not in order.
The President Pro Tempore: The point of order is sustained. The
Senator from Vermont is making an argument on the point of order he
has made.
Mr. Austin: Mr. President, I have concluded my motion.
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.
Judgment as Debatable
Sec. 13.7 An order of judgment in an impeachment trial is not
debatable.
On Apr. 17, 1936, the President pro tempore, Key Pittman, of
Nevada, answered a parliamentary inquiry relating to debate on an order
of judgment in the impeachment trial of Halsted Ritter:
The President Pro Tempore: The Senator from Arizona submits an
order, which will be read.
The legislative clerk read as follows:
Ordered further, That the respondent, Halsted L. Ritter,
United States district judge for the southern district of
Florida, be forever disqualified from holding and enjoying any
[[Page 2129]]
office of honor, trust, or profit under the United States.
Mr. [Daniel O.] Hastings [of Delaware]: Mr. President, I
understand that matter is subject to debate.
Mr. [Henry F.] Ashurst [of Arizona]: No, Mr. President. The
yeas and nays are in order, if Senators wish, but it is not subject
to debate.
Mr. Hastings: Will the Chair state just why it is not subject
to debate?
The President Pro Tempore: The Chair is of opinion that the
rules governing impeachment proceedings require that all orders or
decisions be determined without debate, but the yeas and nays may
be ordered.(13)
---------------------------------------------------------------------------
13. 80 Cong. Rec. 5607, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
Divisibility of Order of Judgment
Sec. 13.8 An order of judgment on conviction in an impeachment trial is
divisible where it contains provisions for removal from office and
for disqualification of the respondent.
On Apr. 17, 1936, Senator Henry F. Ashurst, of Arizona, offered an
order of judgment following the conviction of Halsted Ritter on an
article of impeachment. It was agreed, before the order was withdrawn,
that it was divisible: (14~)
---------------------------------------------------------------------------
14. 80 Cong. Rec. 5606, 5607, 74th Cong. 2d Sess.
In the trial of Judge Robert Archbald, a division was
demanded on the order of judgment, which both removed and
disqualified the respondent. 6 Cannon's Precedents Sec. 512. A
division of the question was likewise demanded in the West
Humphreys impeachment. See 3 Hinds' Precedents Sec. 2397. In
the John Pickering impeachment, the Court of Impeachment voted
on removal but did not consider disqualification. See 3 Hinds'
Precedents Sec. 2341.
---------------------------------------------------------------------------
The Senate hereby orders and decrees and it is hereby adjudged
that the respondent, Halsted L. Ritter, United States district
judge for the southern district of Florida, be, and he is hereby,
removed from office, and that he be, and is hereby, forever
disqualified to hold and enjoy any office of honor, trust, or
profit under the United States, and that the Secretary be directed
to communicate to the President of the United States and to the
House of Representatives the foregoing order and judgment of the
Senate, and transmit a copy of same to each.
Mr. [Robert M.] La Follette [Jr., of Wisconsin]: Mr. President,
I ask for a division of the question.
Mr. Ashurst: Mr. President, to divide the question is perfectly
proper. Any Senator who desires that the order be divided is within
his rights in thus asking that it be divided. The judgment of
removal from office would ipso facto follow the vote of guilty.
Mr. [William E.] Borah [of Idaho]: Mr. President, do I
understand there is to be a division of the question?
Mr. La Follette: I have asked for a division of the question.
[[Page 2130]]
Mr. [George W.] Norris [of Nebraska]: Mr. President, it seems
to me the chairman of the Committee on the Judiciary should submit
two orders. One follows from what we have done. The other does not
follow, but we ought to vote on it.
Mr. Ashurst: I accept the suggestion. I believe the Senator
from Nebraska is correct. Therefore, I withdraw the order sent to
the desk.
Vote on Removal Following Conviction
Sec. 13.9 On conviction of the respondent on an article of impeachment,
no vote is required on judgment of removal, since removal follows
automatically after conviction under section 4, article II, of the
U.S. Constitution.
On Apr. 17, 1936, following the conviction by the Senate, sitting
as a Court of Impeachment, of Halsted Ritter on Article VII of the
articles of impeachment, President pro tempore Key Pittman, of Nevada,
ruled that no vote was required on judgment of removal: (15)
---------------------------------------------------------------------------
15. 80 Cong. Rec. 5607, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
The President Pro Tempore: The Senator from Arizona, having
withdrawn the first order, submits another one, which the clerk
will read.
The legislative clerk read as follows:
Ordered, That the respondent, Halsted L. Ritter, United
States district judge for the southern district of Florida, be
removed from office.
The President Pro Tempore: Are the yeas and nays desired on the
question of agreeing to the order?
Mr. [Henry F.] Ashurst [of Arizona]: The yeas and nays are not
necessary.
Mr. [Hiram W.] Johnson [of California]: Mr. President, how,
affirmatively, do we adopt the order, unless it is put before the
Senate, and unless the roll be called upon it or the Senate
otherwise votes?
The President Pro Tempore: The Chair is of the opinion that the
order would follow the final vote as a matter of course, and no
vote is required.
Mr. Ashurst: Mr. President, the vote of guilty, in and of
itself, is sufficient without the order, under the Constitution,
but to be precisely formal I have presented the order, in
accordance with established precedent, and I ask for a vote on its
adoption.
Mr. [Daniel O.] Hastings [of Delaware]: Mr. President, will the
Senator yield?
Mr. Ashurst: I yield.
Mr. Hastings: Just what is the language in the Constitution as
to what necessarily follows conviction on an article of
impeachment?
Mr. [George] McGill, [of Kansas]: It is found in section 4,
article II, of the Constitution.
Mr. Hastings: What is the language of the Constitution which
makes removal from office necessary, and to follow as a matter of
course?
Mr. McGill: Mr. President----
Mr. Ashurst: If the Senator from Kansas has the reference, I
shall ask him to read it.
[[Page 2131]]
Mr. McGill: Section 4 of article II of the constitution reads:
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.
Mr. Hastings: I thank the Senator. Then may I suggest was not
the Chair correct in the first instance? Does not the removal from
office follow without any vote of the Senate?
The President Pro Tempore: That was the opinion of the Chair.
Mr. Hastings: I think the President pro tempore was correct.
The President Pro Tempore: The Chair will then direct that the
order be entered.
Mr. [George W.] Norris [of Nebraska]: Mr. President, upon the
action of the Senate why does not the Chair make the proper
declaration without anything further?
The President Pro Tempore: The Chair was about to do so. The
Chair directs judgment to be entered in accordance with the vote of
the Senate, as follows:
Judgment
The Senate having tried Halsted L. Ritter, United States
district judge for the southern district of Florida, upon seven
several articles of impeachment exhibited against him by the
House of Representatives, and two-thirds of the Senators
present having found him guilty of charges contained therein:
It is therefore
Ordered and adjudged, That the said Halsted L. Ritter be,
and he is hereby, removed from office.
Parliamentarian's Note: The procedure and ruling in the Ritter
impeachment trial, for automatic removal on conviction of at least one
article of impeachment, differs from the practice in three prior cases
where the Senate sitting as a Court of Impeachment has voted to
convict. In the John Pickering trial, the vote was taken, in the
affirmative, on the question of removal, following the vote on the
articles; the question of disqualification was apparently not
considered.(16) In the West Humphreys impeachment, following
conviction on five articles of impeachment, the Court of Impeachment
proceeded to vote, under a division of the question, on removal and
disqualification, both decided in the affirmative.(17) And
in the Robert Archbald impeachment, the Court of Impeachment voted
first on removal and then on disqualification, under a division of the
question. Both orders were voted in the affirmative.(18)
---------------------------------------------------------------------------
16. 3 Hinds' Precedents Sec. 2341.
17. 3 Hinds' Precedents Sec. 2397.
18. 6 Cannon's Precedents Sec. 512.
---------------------------------------------------------------------------
Vote Required for Disqualification
Sec. 13.10 The question of disqualification from holding an office of
honor, trust, or profit under the United States, following
conviction and
[[Page 2132]]
judgment of removal in an impeachment trial, requires only a
majority vote of the Senate sitting as a Court of Impeachment.
On Apr. 17, 1936, the Senate sitting as a Court of Impeachment in
the trial of Halsted Ritter proceeded to consider an order
disqualifying the respondent from ever holding an office of honor,
trust, or profit under the United States; the court had convicted the
respondent and he had been ordered removed from office.
A parliamentary inquiry was propounded as to the vote required on
the question of disqualification:
The President Pro Tempore: (19) The Senator from
Arizona submits an order, which will be read.
---------------------------------------------------------------------------
19. Key Pittman (Nev.).
---------------------------------------------------------------------------
The legislative clerk read as follows:
Ordered further, That the respondent, Halsted L. Ritter,
United States district judge for the southern district of
Florida, be forever disqualified from holding and enjoying any
office of honor, trust, or profit under the United States. . .
.
Mr. [F. Ryan] Duffy [of Wisconsin]: A parliamentary inquiry.
The President Pro Tempore: The Senator will state it.
Mr. Duffy: Upon this question is a majority vote sufficient to
adopt the order, or must there be a two-thirds vote?
Mr. [Henry F.] Ashurst [of Arizona]: Mr. President, in reply to
the inquiry, I may say that in the Archbald case that very question
arose. A Senator asked that a question be divided, and on the
second part of the order, which was identical with the order now
proposed, the yeas and nays were ordered, and the result was yeas
39, nays 35, so the order further disqualifying respondent from
holding any office of honor, trust, or profit under the United
States was entered. It requires only a majority vote.
The President Pro Tempore: The question is on agreeing to the
order submitted by the Senator from Arizona.(20)
---------------------------------------------------------------------------
20. 80 Cong. Rec. 5607, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
Parliamentarian's Note: In the impeachment trial of Robert
Archbald, a division of the question was demanded on an order removing
and disqualifying the respondent. Removal was agreed to by voice vote
and disqualification was agreed to by the yeas and nays--yeas 39, nays
35.(21)
---------------------------------------------------------------------------
21. 6 Cannon's Precedents Sec. 512.
---------------------------------------------------------------------------
Filing of Separate Opinions
Sec. 13.11 The Senate, sitting as a Court of Impeachment, may provide
by order at the conclusion of the trial for Senators to file
written opinions following the final vote.
On Apr. 16, 1936, the Senate sitting as a Court of Impeachment in
the trial of Judge Halsted Rit
[[Page 2133]]
ter adopted the following order at the conclusion of the trial:
Ordered, That upon the final vote in the pending impeachment of
Halsted L. Ritter each Senator may, within 4 days after the final
vote, file his opinion in writing, to be published in the printed
proceedings in the case.(22)
---------------------------------------------------------------------------
22. 80 Cong. Rec. 5558, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
House Informed of Judgment
Sec. 13.12 The Senate informs the President and the House of the order
and judgment of the Senate in an impeachment trial.
On Apr. 20, 1936,(1) a message from the Senate was
received in the House informing the House of the order and judgment in
the impeachment trial of Judge Halsted Ritter:
---------------------------------------------------------------------------
1. 80 Cong. Rec. 5703, 5704, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
Message From the Senate
A message from the Senate, by Mr. Horne, its enrolling clerk,
announced that the Senate had ordered that the Secretary be
directed to communicate to the President of the United States and
to the House of Representatives the order and judgment of the
Senate in the case of Halsted L. Ritter, and transmit a certified
copy of same to each, as follows:
I, Edwin A. Halsey, Secretary of the Senate of the United
States of America, do hereby certify that the hereto attached
document is a true and correct copy of the order and judgment
of the Senate, sitting for the trial of the impeachment of
Halsted L. Ritter, United States district judge for the
southern district of Florida, entered in the said trial on
April 17, 1936.
In testimony whereof, I hereunto subscribe my name and
affix the seal of the Senate of the United States of America,
this the 18th day of April, A. D. 1936.
Edwin A. Halsey,
Secretary of the Senate
of the United States.
In the Senate of the United States of America, sitting for the
trial of the impeachment of Halsted L. Ritter, United
States district judge for the southern district of Florida
Judgment
April 17, 1936.
The Senate having tried Halsted L. Ritter, United States
district judge for the southern district of Florida, upon seven
several articles of impeachment exhibited against him by the
House of Representatives, and two-thirds of the Senators
present having found him guilty of charges contained therein:
It is therefore
Ordered and adjudged, That the said Halsted L. Ritter be,
and he is hereby removed from office.
Attest:
Edwin A. Halsey,
Secretary.
[[Page 2134]]
CHAPTER 14
Impeachment Powers
D. HISTORY OF PROCEEDINGS
Sec. 14. Charges Not Resulting in Impeachment
The following is a compilation of impeachment charges made from
1932 to the present which did not result in impeachment by the House.
Cross References
Committee reports adverse to impeachment, their privilege and
consideration, see Sec. Sec. 7.8-7.10, 8.2, supra.
House proceedings against Associate Justice Douglas, discussion in the
House, and portions of final subcommittee report relative to
grounds for impeachment of federal judges, see Sec. Sec. 3.9-3.13,
supra.
House proceedings on impeachment discontinued against President Nixon,
following his resignation, see Sec. 15, infra.
Resignations and effect on impeachment and trial, see Sec. 2, supra.
Trial of Judge English dismissed following his resignation, see
Sec. 16, infra. -------------------
Charges Against Secretary of the Treasury Mellon
Sec. 14.1 In the 72d Congress a Member rose to a question of
constitutional privilege, impeached Secretary of the Treasury
Andrew Mellon, and submitted a resolution authorizing the Committee
on the Judiciary to investigate the charges, which resolution was
referred to the Committee on the Judiciary.
On Jan. 6, 1932, Mr. Wright Patman, of Texas, rose to impeach Mr.
Mellon, Secretary of the Treasury:
Impeachment of Andrew W. Mellon, Secretary of the Treasury
Mr. Patman: Mr. Speaker, I rise to a question of constitutional
privilege. On my own responsibility as a Member of this House, I
impeach Andrew William Mellon, Secretary of the Treasury of the
United States for high crimes and misdemeanors, and offer the
following resolution:
Whereas the said Andrew William Mellon, of Pennsylvania,
was nominated Secretary of the Treasury of the United States by
the then Chief Executive of the Nation, Warren G. Harding,
March 4, 1921; his nomination was confirmed by the Senate of
the United States on March 4, 1921; he has held said office
since March 4, 1921, without further nominations or
confirmations.
Whereas section 243 of title 5 of the Code of Laws of the
United States provides:
``Sec. 243. Restrictions upon Secretary of Treasury: No
person appointed to the office of Secretary of the Treasury, or
Treasurer, or register, shall directly or indirectly be
concerned or interested in carrying on the business of trade or
commerce, or be owner in whole or in part of any sea vessel, or
purchase by himself, of another in trust for him, any public
lands or other public property, or be concerned in the purchase
or disposal of any public secu
[[Page 2135]]
rities of any State, or of the United States, or take or apply
to his own use any emolument or gain for negotiating or
transacting any business in the Treasury Department other than
what shall be allowed by law; and every person who offends
against any of the prohibitions of this section shall be deemed
guilty of a high misdemeanor and forfeit to the United States
the penalty of $3,000, and shall upon conviction be removed
from office, and forever thereafter be incapable of holding any
office under the United States; and if any other person than a
public prosecutor shall give information of any such offense,
upon which a prosecution and conviction shall be had, one-half
the aforesaid penalty of $3,000 when recovered shall be for the
use of the person giving such information.
Whereas the said Andrew William Mellon has not only been
indirectly concerned in carrying on the business of trade and
commerce in violation of the above-quoted section of the law
but has been directly interested in carrying on the business of
trade and commerce in that he is now and has been since taking
the oath of office as Secretary of the Treasury of the United
States the owner of a substantial interest in the form of
voting stock in more than 300 corporations with resources
aggregating more than $3,000,000,000, being some of the largest
corporations on earth, and he and his family and close business
associates in many instances own a majority of the stock of
said corporations and, in some instances, constitute ownership
of practically the entire outstanding capital stock; said
corporations are engaged in the business of trade and commerce
in every State, county, and village in the United States, every
country in the world, and upon the Seven Seas; said
corporations are extensively engaged in the following
businesses: Mining properties, bauxite, magnesium, carbon
electrodes, aluminum, sales, railroads, Pullman cars, gas,
electric light, street railways, copper, glass, brass, steel,
tar, banking, locomotives, water power, steamship,
shipbuilding, oil, coke, coal, and many other different
industries; said corporations are directly interested in the
tariff, in the levying and collections of Federal taxes, and in
the shipping of products upon the high seas; many of the
products of these corporations are protected by our tariff laws
and the Secretary of the Treasury has direct charge of the
enforcement of these laws.
Mellon's Ownership of Sea Vessels and Control of United States
Coast Guard
Whereas the Coast Guard (sec. 1, ch. 1, title 14, of the
United States Code) is a part of the military forces of the
United States and is operated under the Treasury Department in
time of peace; that the Secretary of the Treasury directs the
performance of the Coast Guard (sec. 51, ch. 1, title 14, of
the Code of Laws of the United States); that officers of the
Coast Guard are deemed officers of the customs (sec. 6, ch. 2,
title 14, United States Code), and it is their duty to go on
board the vessels which arrive within the United States, or
within 4 leagues of the coast thereof, and search and examine
the same, and every part thereof, and shall demand, receive,
and certify the manifests required to be on board certain
vessels shall affix and put proper fastenings on the hatches
and other communications with the hold of any vessel, and shall
remain on board such vessels until they arrive at the port of
their destination; that the said Andrew William Mellon is now,
and has been since becoming Secretary of the Treasury, the
owner in whole or in part of many sea vessels operating to and
from the United States, and in competition
[[Page 2136]]
with other steamship lines; that his interest in the sea
vessels and his control over the Coast Guard represent a
violation of section 243 of title 5 of the Code of Laws of the
United States.
Customs Officers
Whereas the Secretary of the Treasury of the United States
superintends the collection of the duties on imports (sec. 3,
ch. 1, title 19, Code of Laws of the United States); he
establishes and promulgates rules and regulations for the
appraisement of imported merchandise and the classification and
assessment of duties thereon at various ports of entry (sec.
382, ch. 3, title 19, Code of Laws of United States); that the
present Secretary of the Treasury, Andrew W. Mellon, is now and
has been since becoming Secretary of the Treasury personally
interested in the importation of goods, wares, articles, and
merchandise in substantial quantities and large amounts; that
it is repugnant to American principles and a violation of the
laws of the United States for such an officer to hold the dual
position of serving two masters--himself and the United States.
Ownership of Sea Vessels
Whereas the said Andrew W. Mellon is now, and has been
since becoming Secretary of the Treasury of the United States,
holding said office in violation of that part of section 243 of
title 5 of the Code of Laws of the United States, which
provides that ``no person appointed to the office of Secretary
of the Treasury . . . shall be the owner in whole or in part of
any sea vessel,'' in that he was and is now the owner in whole
or in part of the following sea vessels:
Registered in Norway: Austvangen, Nordvangen, Sorvangen,
Vestvangen.
Venezuelan flag: 14 tankers, of 36,654 gross tons.
United States flag: S. Haiti; 13 general cargo vessels,
Conemaugh, Gulf of Mexico, Gulfbird, Gulfcoast, Gulfgem,
Gulfking, Gulflight, Gulfoil, Gulfpoint, Gulfprince, Gulfstar,
Gulfstream, Gulfwax, Harmony, Ligonier, Ohio, Susquehanna,
Winifred, Currier, Gulf of Venezuela, Gulf breeze, Gulfcrest,
Gulfhawk, Gulfland, Gulfmaid, Gulfpenn, Gulfpride, Gulfqueen,
Gulfstate, Gulftrade, Gulfwing, Juniata, Monongahela, Supreme,
Trinidadian.
Income Taxes Paid by Mellon Companies and Refunds Made to
Them--by Himself
Whereas section 1 (2), chapter 1, title 26, of the Code of
laws of the United States, provides ``The Commissioner of
Internal Revenue, under the direction of the Secretary of the
Treasury, shall have general superintendence of the assessment
and collection of all duties and taxes imposed by any law
providing internal revenue. . . .'' The tax laws of the United
States, including the granting of refunds, credits, and
abatements, are administered in secret under the direction of
the Secretary of the Treasury; that income-tax returns and
evidence upon which refunds are made, or granted, to taxpayers
are not subject to public inspection; that under the direction
of the present Secretary of the Treasury, Andrew W. Mellon,
many hundred corporations that are substantially owned by him
annually make settlement for their taxes and many such
corporations have been granted under his direction large tax
refunds amounting to tens of millions of dollars.
[[Page 2137]]
Ownership of Bank Stock
Whereas section 244, chapter 3, title 12, of the Code of
Laws of the United States, provides:
``Sec. 244. Chairman of the board; qualifications of
members; vacancies.--The Secretary of the Treasury shall be ex
officio chairman of the Federal Reserve Board. No member of the
Federal Reserve Board shall be an officer or director of any
bank, banking institution, trust company, or Federal reserve
bank, nor hold stock in any bank, banking institution, or trust
company. . . .''
That the present Secretary of the Treasury, Andrew W.
Mellon, is now and has been since-becoming Secretary of the
Treasury the owner of stock in a bank, banking institution, and
trust company in violation of this law.
Whisky Business
Whereas the said Andrew W. Mellon has held the office of
Secretary of the Treasury in violation of section 243 of title
5 of the Code of Laws of the United States, in that from March
4, 1921, to October 2, 1928, he was interested in and received
his share of the proceeds and profits from the sale of
distilled whisky, which said whisky was sold as a commodity in
trade and commerce.
Aluminum in Public Buildings
Whereas the said Andrew W. Mellon has further violated the
law which prohibits the Secretary of the Treasury from being
directly or indirectly interested or concerned in the carrying
on of business or trade or commerce, in that as Secretary of
the Treasury he controls the construction and maintenance of
public buildings; the Office of the Supervising Architect is
subject to the direction and approval of the Secretary of the
Treasury; the duties performed by the Supervising Architect
embrace the following: Preparation of drawings, estimates,
specifications, etc., for and the superintendence of the work
of constructing, rebuilding, extending, or repairing public
buildings; under the supervision of the Supervising Architect
and subject to the direction and approval of the Secretary of
the Treasury the Government of the United States has spent and
will soon spend several hundred million dollars in the
construction of public buildings. The said Andrew W. Mellon is
the principal owner and controls the Aluminum Co. of America,
which produces and markets practically all of the aluminum in
the United States used for all purposes. The said Andrew W.
Mellon has, while occupying the position as Secretary of the
Treasury, directly interested himself in the carrying on and
promotion of the business of the Aluminum Co. of America by
causing to be published in Room 410 of the Treasury Building of
the United States, located between the United States Capitol
and the White House, a magazine known as the Federal Architect,
published quarterly, which carries the pictures of public
buildings in which aluminum is used in their construction and
carries articles concerning the use of aluminum in architecture
which suggest how aluminum can be used for different purposes
in the construction of public buildings for the purpose of
convincing the architects who draw the plans and specifications
for public buildings that aluminum can and should be used for
certain construction work and ornamental purposes. The use of
aluminum in the construction of public buildings displaces
materials which can be purchased on competitive bids, whereas
the Aluminum Co. of America holds a monopoly and has no
competitors. Said magazine is published by employees of the
United States Government in the Office of the Supervising
[[Page 2138]]
Architect and distributed to the architects of the Nation, many
of whom have been or will be employed by the Supervising
Architect to draw plans and specifications for public buildings
in their local communities. More aluminum is now being used in
the construction of public buildings, under the direction of
the Secretary of the Treasury, than has ever before been used,
as a result of this advantage.
Mellon Interest in Soviet Union (Russia)
Whereas section 140 of title 19 of the Code of Laws of the
United States provides--
``Sec. 140. Goods manufactured by convict labor
prohibited.--All goods, wares, articles, and merchandise
manufactured wholly or in part in any foreign country by
convict labor shall not be entitled to entry at any of the
ports of the United States, and the importation thereof is
prohibited, and the Secretary of the Treasury is authorized and
directed to prescribe such regulations as may be necessary for
the enforcement of this provision''--
charges are now being made that goods, wares, articles, and
merchandise are being transported to the United States from the
Soviet Union (Russia) in violation of this act; the present
Secretary of the Treasury, Andrew W. Mellon, whose duty it is
to enforce this provision of the law, is one of the principal
owners of the Koppers Co., a company with resources amounting
to $143,379,352, which is carrying on trade and commerce in all
parts of the world; that said company during the year 1930 made
a contract with the Soviet Union whereby the Koppers Co.
obligated itself to build coke ovens and steel mills in the
Soviet Union aggregating in value $200,000,000, in furtherance
of the Soviet's 5-year plan; that said contract is now being
carried into effect, and the said Andrew W. Mellon is
financially interested in its success; that his interest in
this contract with the Soviet Union destroys his impartiality
as an officer of the United States to enforce the above-quoted
law; his interest in said company, which is engaged in the
business of carrying on trade and commerce, disqualifies him as
Secretary of the Treasury under section 243 of title 5 of the
Code of Laws of the United States and makes him guilty of a
high misdemeanor and subject to impeachment: Therefore be it
Resolved, That the Committee on the Judiciary is authorized
and directed, as a whole or by subcommittee, to investigate the
official conduct of Andrew W. Mellon, Secretary of the
Treasury, to determine whether, in its opinion, he has been
guilty of any high crime or misdemeanor which, in the
contemplation of the Constitution, requires the interposition
of the constitutional powers of the House. Such committee shall
report its findings to the House together with such resolution
of impeachment or other recommendation as it deems proper.
Sec. 2. For the purposes of this resolution, the committee
is authorized to sit and act during the present Congress at
such times and places in the District of Columbia or elsewhere,
whether or not the House is sitting, has recessed, or has
adjourned, to hold such hearings, to employ such experts, and
such clerical, stenographic, and other assistants, to require
the attendance of such witnesses and the production of such
books, papers, and documents, to take such testimony, to have
such printing and binding done, and to make such expenditures
not exceeding $5,000, as it deems necessary.
Mr. [Joseph W.] Byrns [of Tennessee]: Mr. Speaker, I move that
the articles just read be referred to the
[[Page 2139]]
Committee on the Judiciary, and upon that motion I demand the
previous question.
The previous question was ordered.
The Speaker: (2) The question is on the motion of
the gentleman from Tennessee, that the articles be referred to the
Committee on the Judiciary.
---------------------------------------------------------------------------
2. John N. Garner (Tex.).
---------------------------------------------------------------------------
The motion was agreed to.(3)
---------------------------------------------------------------------------
3. 75 Cong Rec. 1400 72d Cong. 1st Sess.
---------------------------------------------------------------------------
Sec. 14.2 The House discontinued by resolution further proceedings of
impeachment against Secretary of the Treasury Andrew Mellon, after
he had been nominated and confirmed for another position and had
resigned his Cabinet post.
On Feb. 13, 1932, Mr. Hatton W. Sumners, of Texas, presented House
Report No. 444 and House Resolution 143, discontinuing proceedings
against Secretary of the Treasury Mellon:
Impeachment Charges--Report From Committee on the Judiciary
Mr. Sumners of Texas: Mr. Speaker, I offer a report from the
Committee on the Judiciary, and I would like to give notice that
immediately upon the reading of the report I shall move the
previous question.
The Speaker: (4) The gentleman from Texas offers a
report, which the Clerk will read.
---------------------------------------------------------------------------
4. John N. Garner (Tex.).
---------------------------------------------------------------------------
The Clerk read the report, as follows:
House of Representatives--Relative to the Action of the
Committee on the Judiciary With Reference to House Resolution
92
Mr. Sumners of Texas, from the Committee on the Judiciary,
submitted the following report (to accompany H. Res. 143):
I am directed by the Committee on the Judiciary to submit
to the House, as its report to the House, the following
resolution adopted by the Committee on the Judiciary indicating
its action with reference to House Resolution No. 92 heretofore
referred by the House to the Committee on the Judiciary:
Whereas Hon. Wright Patman, Member of the House of
Representatives, filed certain impeachment charges against Hon.
Andrew W. Mellon, Secretary of the Treasury, which were
referred to this committee; and
Whereas pending the investigation of said charges by said
committee, and before said investigation had been completed,
the said Hon. Andrew W. Mellon was nominated by the President
of the United States for the post of ambassador to the Court of
St. James and the said nomination was duly confirmed by the
United States Senate pursuant to law, and the said Andrew W.
Mellon has resigned the position of Secretary of the Treasury:
Be it
Resolved by this committee, That the further consideration
of the said charges made against the said Andrew W. Mellon, as
Secretary of the Treasury, be, and the same are hereby,
discontinued.
Minority Views
We cannot join in the majority views and findings. While we
concur in the conclusions of the majority
[[Page 2140]]
that section 243 of the Revised Statutes, upon which the
proceedings herein were based, provides for action in the
nature of an ouster proceeding, it is our view that the Hon.
Andrew W. Mellon, the former Secretary of the Treasury, having
removed himself from that office, no useful purpose would be
served by continuing the investigation of the charges filed by
the Hon. Wright Patman. We desire to stress that the action of
the undersigned is based on that reason alone, particularly
when the prohibition contained in said section 243 is not
applicable to the office now held by Mr. Mellon.
Fiorello H. LaGuardia.
Gordon Browning.
M. C. Tarver.
Francis B. Condon.
Mr. Sumners of Texas: Mr. Speaker, I think the resolution is
fairly explanatory of the views held by the different members of
the committee. No useful purpose could be served by the consumption
of the usual 40 minutes, so I move the previous question.
The previous question was ordered.
The Speaker: The question is on agreeing to the resolution.
The resolution was agreed to.(5)
---------------------------------------------------------------------------
5. 75 Cong. Rec. 3850, 72d Cong. 1st Sess.
The House Journal (p. 382) for this date indicates that Mr.
Sumners called up H. Res. 143 which was debated prior to its
adoption.
---------------------------------------------------------------------------
Charges Against President Hoover
Sec. 14.3 Impeachment of President Herbert Hoover was proposed but not
considered by the House or by committee in the 72d Congress.
On Jan. 17, 1933, Mr. Louis T. McFadden, of Pennsylvania, rose and
on his own responsibility as a Member of the House impeached President
Hoover as follows:
Mr. McFadden: On my own responsibility, as a Member of the
House of Representatives, I impeach Herbert Hoover, President of
the United States, for high crimes and misdemeanors.
He offered a resolution with a lengthy preamble, which concluded as
follows:
Resolved, That the Committee on the Judiciary is authorized to
investigate the official conduct of Herbert Hoover, President of
the United States, and all matters related thereto, to determine
whether, in the opinion of the said committee, he has been guilty
of any high crime or misdemeanor which, in the contemplation of the
Constitution, requires the interposition of the constitutional
powers of the House. Such committee shall report its findings to
the House, together with such resolution of impeachment or other
recommendation as it deems proper, in order that the House of
Representatives may, if necessary, present its complaint to the
Senate, to the end that Herbert Hoover may be tried according to
the manner prescribed for the trial of the Executive by the
Constitution and the people be given their constitutional remedy
and be relieved of their present apprehension that a criminal may
be in office.
For the purposes of this resolution the committee is authorized
to sit and
[[Page 2141]]
act during the present Congress at such times and places in the
District of Columbia or elsewhere, whether or not the House is
sitting, has recessed, or has adjourned, to hold such hearings, to
employ such experts, and such clerical, stenographic, and other
assistants, to require the attendance of such witnesses and the
production of such books, papers, and documents, to take such
testimony, to have such printing and binding done, and to make such
expenditures as it deems necessary.
Mr. Henry T. Rainey, of Illinois, moved that the resolution be laid
on the table and the House adopted the motion, precluding any debate by
Mr. McFadden on his resolution of impeachment.
Pending a vote on the motion, Speaker John N. Garner, of Texas,
stated in response to a parliamentary inquiry that the language which
had transpired could not be expunged from the Congressional Record by
motion but must be done by unanimous consent since no unparliamentary
language was involved.(6)
---------------------------------------------------------------------------
6. 76 Cong. Rec. 1965-68, 72d Cong. 2d Sess.
---------------------------------------------------------------------------
On Jan. 18, 1933, Mr. McFadden rose to state a question of
privilege, with the intention of impeaching President Hoover. In
response to a point of order, Speaker Garner held that a question of
constitutional privilege or a question of privilege of the House, as
distinguished from a question of personal privilege, could not be
presented until a motion or resolution was submitted. He declined to
recognize Mr. McFadden since no resolution was presented.(7)
---------------------------------------------------------------------------
7. Id. at pp. 2041, 2042.
---------------------------------------------------------------------------
Charges Against U.S. District Judge Lowell
Sec. 14.4 In the 73d Congress the Committee on the Judiciary conducted
an investigation into impeachment charges against District Judge
James Lowell and later recommended that further proceedings be
discontinued.
On Apr. 26, 1933, Mr. Howard W. Smith, of Virginia, rose to a
question of constitutional privilege and impeached Mr. Lowell, a U.S.
District Judge for the District of Massachusetts. He specified the
following charges:
First. I charge that the said James A. Lowell, having been
nominated by the President of the United States and confirmed by
the Senate of the United States, duly qualified and commissioned,
and while acting as district judge for the district of
Massachusetts, did on divers and various occasions so abuse the
powers of his high office and so misconduct himself as to be guilty
of favoritism, oppression, and judicial misconduct, whereby he has
brought the administration of justice in said
[[Page 2142]]
district in the court of which he is judge into disrepute by his
aforesaid misconduct and acts, and is guilty of misbehavior and
misconduct, falling under the constitutional provision as ground
for impeachment and removal from office.
Second. I charge that the said James A. Lowell did knowingly
and willfully violate his oath to support the Constitution in his
refusal to comply with the provisions of article IV, section 2,
clause 2, of the Constitution of the United States, wherein it is
provided:
A person charged in any State with treason, felony, or
other crime, who shall flee from justice and be found in
another State, shall, on demand of the executive authority of
the State from which he fled, be delivered up, to be removed to
the State having jurisdiction of the crime.
Third. I charge that the said James A. Lowell did, on the 24th
day of April, 1933, unlawfully, willfully, and contrary to well-
established law, order the discharge from custody of one George
Crawford, who had been regularly indicted for first-degree murder
in Loudoun County, Va., had confessed his crime, and whose
extradition from the State of Massachusetts had, after full hearing
and investigation, been officially ordered by Joseph B. Ely,
Governor of the State of Massachusetts.
Fourth. I charge that the said James A. Lowell did deliberately
and willfully by ordering the release of said George Crawford,
unlawfully and contrary to the law in such cases made and provided,
seek to defeat the ends of justice and to prevent the said George
Crawford from being duly and regularly tried in the tribunal having
jurisdiction thereof for the crime with which he is charged, to
which he had confessed.
Fifth. I charge that the said James A. Lowell did on the said
24th day of April 1933 willfully, deliberately, and viciously
attempt to nullify the operation of the laws for the punishment of
crime of the State of Virginia and many other States in the Union,
notwithstanding numerous decisions directly to the contrary by the
Supreme Court of the United States, all of which decisions were
brought to the attention of the said judge by the attorney general
of Massachusetts and the Commonwealth's attorney of Loudoun County,
Va., at the time of said action.
Sixth. I further charge that the said James A. Lowell, on the
said 24th day of April 1933, in rendering said decision did use his
judicial position for the unlawful purpose of casting aspersions
upon and attempting to bring disrepute upon the administration of
law in the Commonwealth of Virginia and various other States in
this Union, and that in so doing he used the following language:
I say this whole thing is absolutely wrong. It goes against
my Yankee common sense to have a case go on trial for 2 or 3
years and then have the whole thing thrown out by the Supreme
Court.
They say justice is blind. Justice should not be as blind
as a bat. In this case it would be if a writ of habeas corpus
were denied.
Why should I send a negro back from Boston to Virginia,
when I know and everybody knows that the Supreme Court will say
that the trial is illegal? The only persons who would get any
good out of it would be the lawyers.
Governor Ely in signing the extradition papers was bound
only by the
[[Page 2143]]
question of whether the indictment from Virginia is in order.
But why shouldn't I, sitting here in this court, have a
different constitutional outlook from the governor who sits on
the case merely to see if the indictment satisfies the law in
Virginia?
I keep on good terms with Chief Justice Rugg, of the
Massachusetts Supreme Court, but I don't have to keep on good
terms with the chief justice of Virginia, because I don't have
to see him.
I'd rather be wrong on my law than give my sanction to
legal nonsense.
Seventh. I further charge that the said James A. Lowell has
been arbitrary, capricious, and czarlike in the administration of
the duties of his high office and has been grossly and willfully
indifferent to the rights of litigants in his court, particularly
in the case of George Crawford against Frank G. Hale.(8)
---------------------------------------------------------------------------
8. H. Jour. 205, 206, 73d Cong. 1st Sess.
---------------------------------------------------------------------------
The charges were referred to the Committee on the Judiciary. Mr.
Smith then offered House Resolution 120, authorizing an investigation
of such charges, which resolution was adopted by the House:
Resolved, That the Committee on the Judiciary is authorized and
directed, as a whole or by subcommittee, to inquire into and
investigate the official conduct of James A. Lowell, a district
judge for the United States District Court for the District of
Massachusetts, to determine whether in the opinion of said
committee he has been guilty of any high crime or misdemeanor which
in the contemplation of the Constitution requires the interposition
of the constitutional powers of the House. Said committee shall
report its findings to the House, together with such resolution of
impeachment or other recommendation as it deems proper.
Sec. 2. For the purpose of this resolution the committee is
authorized to sit and act during the present Congress at such times
and places in the District of Columbia and elsewhere, whether or
not the House is sitting, has recessed, or has adjourned, to hold
such hearings, to employ such clerical, stenographic, and other
assistance, to require the attendance of such witnesses and the
production of such books, papers, and documents, and to take such
testimony, to have such printing and binding done, and to make such
expenditures, not exceeding $5,000, as it deems
necessary.(9)
---------------------------------------------------------------------------
9. Id. at p. 206.
---------------------------------------------------------------------------
On May 4, 1933, Mr. Smith offered House Resolution 132, providing
for payment out of the contingent fund for the expenses of the
Committee on the Judiciary incurred under House Resolution 120. The
resolution was referred to the Committee on Accounts and was called up
by that committee on May 8, when it was adopted by the
House.(10)
---------------------------------------------------------------------------
10. Id. at pp. 233, 238.
---------------------------------------------------------------------------
On Feb. 6, 1934, the House agreed to House Resolution 226, reported
by Mr. Gordon Browning, of Tennessee, of the Committee on
[[Page 2144]]
the Judiciary, providing that no further proceedings be had under House
Resolution 120:
Resolved, That no further proceedings be had under H. Res. 120,
agreed to April 26, 1933, providing for an investigation of the
official conduct of James A. Lowell, United States district judge
for the district of Massachusetts, and that the Committee on the
Judiciary be discharged.(11)
---------------------------------------------------------------------------
11. H. Jour. 137, 73d Cong. 2d Sess.
---------------------------------------------------------------------------
Charges Against Federal Reserve Board Members
Sec. 14.5 After a Member of the House offered a resolution to impeach
various members and former members of the Federal Reserve Board,
and Federal Reserve agents, his resolution was referred to the
Committee on the Judiciary and not acted upon.
On May 23, 1933, Mr. Louis T. McFadden, of Pennsylvania, rose to a
question of constitutional privilege and impeached on his own
responsibility Eugene Meyer, former member of the Federal Reserve
Board, and a number of other former members, members, and Federal
Reserve agents. His resolution, House Resolution 1458, was referred to
the Committee on the Judiciary, pursuant to a motion to refer offered
by Mr. Joseph W. Byrns, of Tennessee. The committee took no action on
the resolution.
During debate on the resolution, Mr. Carl E. Mapes, of Michigan,
rose to a point of order against the resolution, claiming it was not
privileged because it called for the impeachment of various persons who
were no longer U.S. civil officers. Speaker Henry T. Rainey, of
Illinois, held that the issue presented was a constitutional question
upon which the House and not the Chair should pass.(12)
---------------------------------------------------------------------------
12. H. Jour. 298-302, 73d Cong. 1st Sess.
---------------------------------------------------------------------------
Charges Against U.S. District Judge Molyneaux
Sec. 14.6 Impeachment of U.S. District Judge Joseph Molyneaux was
proposed in the 73d Congress but not acted upon by the House or the
Committee on the Judiciary, to which the charges were referred.
On Jan. 22, 1934, Mr. Francis H. Shoemaker, of Minnesota,
introduced House Resolution 233, authorizing an investigation by the
Committee on the Judiciary into the official conduct of Mr. Molyneaux,
a U.S. District Judge for the District of Minnesota, to determine
whether he was guilty of high crimes or misdemeanors
[[Page 2145]]
requiring the ``interposition of the constitutional powers of the
House.'' The resolution was referred to the Committee on the
Judiciary.(13)
---------------------------------------------------------------------------
13. H. Jour. 87, 73d Cong. 2d Sess.
---------------------------------------------------------------------------
The Committee on the Judiciary having taken no action on his
resolution, Mr. Shoemaker rose to a question of constitutional
privilege on Apr. 20, 1934, and impeached Judge Molyneaux on his own
responsibility. He offered charges and a resolution (H. Res. 344)
impeaching the judge, which resolution was referred on motion to the
Committee on the Judiciary. The resolution charged corruption in the
appointment of receivers, in the disposal of estates, interference with
justice, and mental senility, and dishonesty. The committee took no
action thereon.(14)
---------------------------------------------------------------------------
14. Id. at p. 423.
---------------------------------------------------------------------------
Charges Against U.S. Circuit Judge Alschuler
Sec. 14.7 A Member having impeached Judge Samuel Alschuler, a Circuit
Judge for the seventh circuit, the Committee on the Judiciary
reported adversely on the resolution authorizing an investigation,
and the resolution was laid on the table.
On May 7, 1935, Mr. Everett M. Dirksen, of Illinois, rose to a
question of ``high constitutional privilege'' and impeached Samuel
Alschuler, U.S. Circuit Judge for the seventh circuit. He discussed his
charges (principally that the accused improperly favored a litigant
before his court) and offered House Resolution 214, authorizing an
investigation by the Committee on the Judiciary. The resolution was
referred on motion of Mr. Hatton W. Sumners, of Texas, to the Committee
on the Judiciary.(15)
---------------------------------------------------------------------------
15. H. Jour. 668-71, 74th Cong. 1st Sess.
---------------------------------------------------------------------------
On Aug. 15, 1935, Mr. Sumners reported adversely (H. Rept. No.
1802) on House Resolution 214, by direction of the Committee on the
Judiciary. Mr. Sumners moved to lay the resolution on the table, and
the House agreed to the motion.(16)
---------------------------------------------------------------------------
16. Id. at p. 1093.
---------------------------------------------------------------------------
Charges Against Secretary of Labor Perkins
Sec. 14.8 In the 76th Congress, a resolution was offered impeaching
Secretary of Labor Frances Perkins and two other officials of the
Department of Labor, and was referred on motion to the Committee on
the Judiciary.
On Jan. 24, 1939,(17) a Member impeached certain
officials of the
[[Page 2146]]
executive branch and introduced a resolution authorizing an
investigation:
---------------------------------------------------------------------------
17. 84 Cong. Rec. 702-11, 76th Cong. 1st Sess.
---------------------------------------------------------------------------
Impeachment of Frances Perkins, Secretary of Labor; James L.
Houghteling; and Gerard D. Reilly
Mr. [J. Parnell] Thomas of New Jersey: Mr. Speaker, on my own
responsibility as a Member of the House of Representatives, I
impeach Frances Perkins, Secretary of Labor of the United States;
James L. Houghteling, Commissioner of the Immigration and
Naturalization Service of the Department of Labor; and Gerard D.
Reilly, Solicitor of the Department of Labor, as civil officers of
the United States, for high crimes and misdemeanors in violation of
the Constitution and laws of the United States, and I charge that
the aforesaid Frances Perkins, James L. Houghteling, and Gerard D.
Reilly, as civil officers of the United States, were and are guilty
of high crimes and misdemeanors in office in manner and form as
follows, to wit: That they did willfully, unlawfully, and
feloniously conspire, confederate, and agree together from on or
about September 1, 1937, to and including this date, to commit
offenses against the United States and to defraud the United States
by failing, neglecting, and refusing to enforce the immigration
laws of the United States, including to wit section 137, title 8,
United States Code, and section 156, title 8, United States Code,
against Alfred Renton Bryant Bridges, alias Harry Renton Bridges,
alias Harry Dorgan, alias Canfield, alias Rossi, an alien, who
advises, advocates, or teaches and is a member of or affiliated
with an organization, association, society, or group that advises,
advocates, or teaches the overthrow by force or violence of the
Government of the United States, or the unlawful damage, injury, or
destruction of property, or sabotage; and that the aforesaid
Frances Perkins, James L. Houghteling, and Gerard D. Reilly have
unlawfully conspired together to release said alien after his
arrest on his own recognizance, without requiring a bond of not
less than $500; and that said Frances Perkins, James L.
Houghteling, and Gerard D. Reilly and each of them have committed
many overt acts to effect the object of said conspiracy, all in
violation of the Constitution of the United States in such cases
made and provided.
And I further charge that Frances Perkins, James L.
Houghteling, and Gerard D. Reilly, as civil officers of the United
States, were and are guilty of high crimes and misdemeanors by
unlawfully conspiring together to commit offenses against the
United States and to defraud the United States by causing the
Strecker case to be appealed to the Supreme Court of the United
States, and by failing, neglecting, and refusing to enforce section
137, United States Code, against other aliens illegally within the
United States contrary to the Constitution of the United States and
the statutes of the United States in such cases made and provided.
In support of the foregoing charges and impeachment, I now
present a resolution setting forth specifically, facts,
circumstances, and allegations with a view to their consideration
by a committee of the House and by the House itself to determine
their truth or falsity.
[[Page 2147]]
Mr. Speaker, I offer the following resolution and ask that it
be considered at this time.
The Speaker: (18) The Clerk will report the
resolution.
---------------------------------------------------------------------------
18. William B. Bankhead (Ala.).
---------------------------------------------------------------------------
The Clerk read as follows:
House Resolution 67
Whereas Frances Perkins, of New York, was nominated by the
President of the United States, confirmed by the Senate of the
United States, duly qualified and commissioned on March 4,
1933, and has since March 4, 1933, without further nominations
or confirmations, acted as Secretary of Labor and as a civil
officer of the United States.
Whereas James L. Houghteling, of Illinois, was nominated by
the President of the United States, confirmed by the Senate of
the United States, duly qualified and commissioned on August 4,
1937, as Commissioner of the Immigration and Naturalization
Service of the Department of Labor and has since August 4,
1937, without further nominations or confirmations, acted as
Commissioner of the Immigration and Naturalization Service of
the Department of Labor and as a civil officer of the United
States.
Whereas Gerard D. Reilly, of Massachusetts, was nominated
by the President of the United States, confirmed by the Senate
of the United States, duly qualified and commissioned on August
10, 1937, as Solicitor of the Department of Labor, and has
since August 10, 1937, without further nominations or
confirmations, acted as Solicitor of the Department of Labor
and as a civil officer of the United States.
Resolved, That the Committee on the Judiciary be and is
hereby authorized and directed, as a whole or by subcommittee,
to investigate the official conduct of Frances Perkins,
Secretary of Labor; James L. Houghteling, Commissioner of
Immigration and Naturalization Service, Department of Labor;
and Gerard D. Reilly, Solicitor, Department of Labor, to
determine whether, in its opinion, they have been guilty of any
high crimes or misdemeanors which, in the contemplation of the
Constitution, requires the interposition of the constitutional
powers of the House. Such committee shall report its findings
to the House, together with such articles of impeachment as the
facts may warrant.
For the purposes of this resolution the committee is
authorized and directed to sit and act, during the present
session of Congress, at such times and places in the District
of Columbia, or elsewhere, whether or not the House is sitting,
has recessed, or has adjourned; to hold hearings; to employ
such experts and such clerical, stenographic and other
assistance; and to require the attendance of such witnesses and
the production of such books, papers, and documents; and to
take such testimony and to have such printing and binding done;
and to make such expenditures not exceeding $10,000, as it
deems necessary.
The resolution was referred as follows:
Mr. [Sam] Rayburn [of Texas]: Mr. Speaker, I move that the
resolution be referred to the Committee on the Judiciary of the
House and upon that I desire to say just a word. A great many
suggestions have been made as to what should be done with this
resolution, but I think this would be the orderly procedure so that
the facts may be developed. The resolution will come out of that
committee or remain in it according to the testimony adduced.
I therefore move the previous question on my motion to refer,
Mr. Speaker.
[[Page 2148]]
The previous question was ordered.
The motion was agreed to.
Sec. 14.9 The Committee on the Judiciary agreed unanimously to report
adversely the resolution urging an investigation of Secretary of
Labor Frances Perkins and the House agreed to a motion to lay the
resolution on the table.
On Mar. 24, 1939,(19) charges of impeachment against
Secretary of Labor Perkins were finally and adversely disposed of:
---------------------------------------------------------------------------
19. 84 Cong. Rec. 3273, 76th Cong. 1st Sess.
---------------------------------------------------------------------------
Impeachment Proceedings--Frances Perkins
Mr. [Sam] Hobbs [of Alabama]: Mr. Speaker, by direction of the
Committee on the Judiciary I present a privileged report upon House
Resolution 67, which I send to the desk.
The Speaker: (20) The Clerk will report the
resolution.
---------------------------------------------------------------------------
20. William B. Bankhead (Ala.).
---------------------------------------------------------------------------
The Clerk read House Resolution 67.
Mr. Hobbs: Mr. Speaker, this is a unanimous report from the
Committee on the Judiciary adversing this resolution. I move to lay
the resolution on the table.
The Speaker: The question is on the motion of the gentleman
from Alabama to lay the resolution on the table.
The motion was agreed to.
Charges Against U.S. District Judges Johnson and Watson
Sec. 14.10 The House authorized the Committee on the Judiciary to
investigate allegations of impeachable offenses charged against
U.S. District Court Judges Johnson and Watson but no final report
was submitted.
On Jan. 24, 1944, Mr. Hatton W. Sumners, of Texas, introduced House
Resolution 406 authorizing an investigation by the Committee on the
Judiciary into the conduct of U.S. District Court Judges Albert Johnson
and Albert Watson from Pennsylvania. The resolution was referred to the
Committee on the Judiciary. House Resolution 407, also introduced by
Mr. Sumners and providing for the expenses of the committee in
conducting such an investigation, was referred to the Committee on the
Judiciary.(1)
---------------------------------------------------------------------------
1. H. Jour. 46, 78th Cong. 2d Sess.
---------------------------------------------------------------------------
On Jan. 26, 1944, Mr. Sumners called up by direction of the
Committee on the Judiciary House Resolution 406, authorizing the
investigation and the House agreed thereto.(2)
---------------------------------------------------------------------------
2. Id. at p. 57.
---------------------------------------------------------------------------
Parliamentarian's Note: Extensive hearings, presided over by Mr.
Estes Kefauver, of Tennessee,
[[Page 2149]]
were held relative to the conduct of Judge Johnson. The subcommittee
report recommended impeachment based on evidence of corrupt practices
and acts including corrupt appointment to court offices. Judge Johnson
having resigned, the Committee on the Judiciary discontinued the
proceedings.
Charges Against President Truman
Sec. 14.11 In the 82d Congress, a resolution proposing an inquiry as to
whether President Harry Truman should be impeached was referred to
the Committee on the Judiciary, which took no action thereon.
On Apr. 23, 1952,(3) a resolution relating to
impeachment was referred to the Committee on the Judiciary, which took
no action thereon:
---------------------------------------------------------------------------
3. 98 Cong. Rec. 4325, 82d Cong. 2d Sess.
---------------------------------------------------------------------------
By Mr. [George H.] Bender [of Ohio]:
H. Res. 607. Resolution creating a select committee to inquire
and report to the House whether Harry S. Truman, President of the
United States, shall be impeached; to the Committee on the
Judiciary.
Sec. 14.12 A petition was filed to discharge the Committee on the
Judiciary from the further consideration of a resolution impeaching
President Harry Truman but did not gain the requisite number of
signatures.
On June 17, 1952, Mr. John C. Schafer, of Wisconsin, announced that
he was filing a petition to discharge the Committee on the Judiciary
from the further consideration of House Resolution 614, impeaching
President Truman: (4)
---------------------------------------------------------------------------
4. 98 Cong. Rec. 7424, 82d Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. Schafer: Mr. Speaker, on April 28 of this year I introduced
House Resolution 614, to impeach Harry S. Truman, President of the
United States, of high crimes and misdemeanors in office. This
resolution was referred to the Committee on the Judiciary, which
committee has failed to take action thereon.
Thirty legislative days having now elapsed since introduction
of this resolution, I today have placed on the Clerk's desk a
petition to discharge the committee from further consideration of
the resolution.
In my judgment, developments since I introduced the Resolution
April 28 have immeasurably enlarged and strengthened the case for
impeachment and have added new urgency for such action by this
House.
First. Since the introduction of this resolution, the United
States Supreme Court, by a 6-to-3 vote, has held that in his
seizure of the steel mills Harry S. Truman, President of the United
[[Page 2150]]
States, exceeded his authority and powers, violated the
Constitution of the United States, and flouted the expressed will
and intent of the Congress--and, in so finding, the Court gave
unprecedented warnings against the threat to freedom and
constitutional government implicit in his act.
Second. Despite the President's technical compliance with the
finding of the Court, prior to the Court decision he reasserted his
claim to the powers then in question, and subsequent to that
decision he has contemptuously called into question ``the intention
of the Court's majority'' and contemptuously attributed the limits
set on the President's powers not to Congress, or to the Court, or
to the Constitution, but to ``the Court's majority.''
Third. The Court, in its finding in the steel case, emphasized
not only the unconstitutionality of the Presidential seizure but
also stressed his failure to utilize and exhaust existing and
available legal resources for dealing with the situation, including
the Taft-Hartley law.
Fourth. The President's failure and refusal to utilize and
exhaust existing and available legal resources for dealing with the
emergency has persisted since the Court decision and in spite of
clear and unmistakable evidence of the will and intent of Congress
given in response to his latest request for special legislation
authorizing seizure or other special procedures.
The discharge petition, No. 14, was not signed by a majority of the
Members of the House and was therefore not eligible for consideration
in the House under Rule XXVII clause 4, House Rules and Manual Sec. 908
(1973).
Charges Against Judges Murrah, Chandler, and Bohanon
Sec. 14.13 A resolution authorizing an investigation in the 89th
Congress into the conduct of three federal judges was referred to
the Committee on Rules but not acted on.
On Feb. 22, 1966, Mr. H. R. Gross, of Iowa, introduced House
Resolution 739, authorizing the Committee on the Judiciary to inquire
into and investigate the conduct of Alfred Murrah, Chief Judge of the
10th Circuit, Stephen Chandler, District Judge, Western District of
Oklahoma, and Luther Bohanon, District Judge, Eastern, Northern, and
Western Districts of Oklahoma, in order to determine whether any of the
three judges had been guilty of high crimes or misdemeanors. The
resolution was referred to the Committee on Rules.(5)
---------------------------------------------------------------------------
5. 112 Cong. Rec. 3665, 89th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. Gross stated the purpose of the resolution as follows:
Mr. Segal, Judge John Biggs, Jr., the chairman of the judicial
conference committee on court administration,
[[Page 2151]]
and Mr. Joseph Borkin, Washington attorney and author of the book,
``The Corrupt Judge,'' were in agreement that impeachment is the
only remedy available today for action against judicial misconduct.
Both Mr. Borkin and the chairman of the subcommittee emphasized
the serious problem that has arisen in Oklahoma where the Judicial
Council of the 10th Judicial Circuit made an attempt to bar Judge
Stephen S. Chandler from handling cases because it was stated he
was ``either unwilling or unable'' to perform his judicial
functions adequately.
Mr. Borkin, a man with an impressive background in the study of
the problems of corruption and misconduct in the judiciary, pointed
out that Judge Chandler, in return, has made serious charges of
attempted bribery and other misconduct against two other judges--
Alfred P. Murrah, chief judge, 10th Circuit, U.S. Court of Appeals,
and Luther Bohanon, district judge, U.S. District Court for the
Eastern, Northern, and Western Districts of Oklahoma.
Mr. Borkin stressed that this dispute in Oklahoma has been an
upsetting factor in the Federal courts in Oklahoma since 1962, and
he declared that these charges should not be permitted to stand. He
emphasized that there can be no compromise short of a full
investigation to clear the judges or to force their removal.
I agree with Mr. Borkin that great damage has been done because
the courts, the executive branch, and the Congress have taken no
effective steps to clear up this scandalous situation. I have
waited patiently for months, and I have hoped that the Justice
Department, the courts, or the Congress would initiate or suggest a
proper legal investigation to clear the air and put an end to this
outrageous situation in the judiciary in the 10th circuit.
There has been no effective action taken, or even started.
Therefore, I am today instituting the only action available to try
to get to the bottom of this.
I have introduced a House resolution authorizing and directing
the House Committee on the Judiciary to investigate the conduct of
the three Federal judges in Oklahoma involved in this controversy.
Upon its finding of fact, the House Judiciary Committee would be
empowered to institute impeachment proceedings or make any other
recommendations it deems proper.
The committee would also be empowered to require the attendance
of witnesses and the production of such books, papers, and
documents--including financial statements, contracts, and bank
accounts--as it deems necessary.
The resolution in no way establishes the guilt of the
principals involved. It is necessary to the launching of an
investigation for the purpose of determining the facts essential to
an intelligent conclusion and eliminating the cloud now hanging
over the Federal judiciary.(6)
---------------------------------------------------------------------------
6. Id. at p. 3653.
---------------------------------------------------------------------------
The Committee on Rules took no action on the resolution.
Charges Against Associate Supreme Court Justice Douglas
Sec. 14.14 When the Minority Leader criticized the conduct
[[Page 2152]]
of Associate Justice William O. Douglas of the U.S. Supreme Court
during a special order speech in the 91st Congress and suggested
the creation of a select committee to investigate such conduct to
determine whether impeachment was warranted, another Member
announced on the floor that he was introducing a resolution of
impeachment; the resolution was referred to the Committee on the
Judiciary.
On Apr. 15, 1970, Minority Leader Gerald R. Ford, of Michigan, took
the floor for a special order speech in which he criticized the conduct
of Associate Justice Douglas of the U.S. Supreme Court. Mr. Ford
suggested that a select committee of the House be created to
investigate such conduct in order to determine whether impeachment
proceedings might be warranted.(7)
---------------------------------------------------------------------------
7. 116 Cong. Rec. 11912-17, 91st Cong. 2d Sess. Mr. Ford discussed the
standard for impeachable offenses and concluded in part that
such an offense was ``whatever a majority of the House of
Representatives considers [it] to be at a given moment in
history.'' Id. at p. 11913.
---------------------------------------------------------------------------
Mr. Louis C. Wyman, of New Hampshire, then took the floor under a
special order speech to discuss the same subject. He yielded time to
Mr. Andrew Jacobs, Jr., of Indiana, as follows:
Mr. Jacobs: Mr. Speaker, will the gentleman yield for a three-
sentence statement?
Mr. Wyman: I yield to the gentleman from Indiana.
Mr. Jacobs: Mr. Speaker, the gentleman from Michigan has stated
publicly that he favors impeachment of Justice Douglas.
He, therefore, has a duty to this House and this country to
file a resolution of impeachment.
Since he refuses to do so and since he raises grave questions,
the answers to which I do not know, but every American is entitled
to know, I introduce at this time the resolution of impeachment in
order that a proper and dignified inquiry into this matter might be
held.
At this point Mr. Jacobs introduced the resolution by placing it in
the hopper at the Clerk's desk.
The Speaker Pro Tempore: (8) The gentleman from New
Hampshire has the floor.
---------------------------------------------------------------------------
8. Charles M. Price (Ill.).
---------------------------------------------------------------------------
Mr. Wyman: I did not yield for that purpose.
The Speaker Pro Tempore: The gentleman from Indiana has
introduced a resolution.(9)
---------------------------------------------------------------------------
9. 116 Cong. Rec. 11920, 91st Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. Jacobs' resolution, House Resolution 920, which was referred to
the Committee on the Judiciary (10) declared:
---------------------------------------------------------------------------
10. Id. at p. 11942. For a similar resolution proposed in the 83d
Congress, but not acted upon, impeaching Justice Douglas, see
H. Res. 290, introduced June 17, 1953, 99 Cong. Rec. 6760, 83d
Cong. 1st Sess.
---------------------------------------------------------------------------
[[Page 2153]]
Resolved, That William O. Douglas, Associate Justice of the
Supreme Court of the United States be impeached [for] high crimes
and misdemeanors and misbehavior in office.
Other resolutions, all of which called for the creation of a select
committee to conduct an investigation and to determine whether
impeachment proceedings were warranted, were referred to the Committee
on Rules. For example, House Resolution 922, introduced by Mr. Wyman,
with 24 cosponsors, read as follows: (11)
---------------------------------------------------------------------------
11. H. Res. 922 was referred to the Committee on Rules. 116 Cong. Rec.
12130, 12131, 91st Cong. 2d Sess., Apr. 16, 1970.
See also H. Res. 923, H. Res. 924, H. Res. 925, H. Res.
926, H. Res. 927, H. Res. 928, 91st Cong. 2d Sess.
---------------------------------------------------------------------------
Whereas, the Constitution of the United States provides in
Article III, Section 1, that Justices of the Supreme Court shall
hold office only ``during good behavior'', and
Whereas, the Constitution also provides in Article II, Section
4, that Justices of the Supreme Court shall be removed from Office
on Impeachment for High Crimes and Misdemeanors, and
Whereas the Constitution also provides in Article VI that
Justices of the Supreme Court shall be bound by ``Oath or
Affirmation to support this Constitution'' and the United States
Code (5 U.S.C. 16) prescribes the following form of oath which was
taken and sworn to by William Orville Douglas prior to his
accession to incumbency on the United States Supreme Court:
I, William Orville Douglas, do solemnly swear that I will
support and defend the Constitution of the United States
against all enemies, foreign and domestic; that I will bear
true faith and allegiance to the same; that I take this
obligation freely, without any mental reservation or purpose of
evasion, and that I will well and faithfully discharge the
duties of the office on which I am about to enter. So help me
God.
and
Whereas, integrity and objectivity in respect to issues and
causes to be presented to the United States Supreme Court for final
determination make it mandatory that Members thereof refrain from
public advocacy of a position on any matter that may come before
the High Court lest public confidence in this constitutionally co-
equal judicial body be undermined, and
Whereas, the said William Orville Douglas has, on frequent
occasions in published writings, speeches, lectures and statements,
declared a personal position on issues to come before the United
States Supreme Court indicative of a prejudiced and nonjudicial
attitude incompatible with good behavior and contrary to the
requirements of judicial decorum obligatory upon the Federal
judiciary in general and members of the United States Supreme Court
in particular, and
Whereas, by the aforementioned conduct and writings, the said
William Orville Douglas has established himself before the public,
including liti
[[Page 2154]]
gants whose lives, rights and future are seriously affected by
decisions of the Court of which the said William Orville Douglas is
a member, as a partisan advocate and not as a judge, and
Whereas, by indicating in advance of Supreme Court decisions,
on the basis of declared, printed, or quoted convictions, how he
would decide matters in controversy pending and to become pending
before the Court of which he is a member, the said William Orville
Douglas has committed the high misdemeanor of undermining the
integrity of the highest constitutional Court in America, and has
willfully and deliberately undermined public confidence in the said
Court as an institution, and
Whereas, contrary to his Oath of Office as well as patently in
conflict with the Canons of Ethics for the Judiciary of the
American Bar Association, the said William Orville Douglas
nevertheless on February 19, 1970, did publish and publicly
distribute throughout the United States, statements encouraging,
aggravating and inciting violence, anarchy and civil unrest in the
form of a book entitled ``Points of Rebellion'' in which the said
William Orville Douglas, all the while an incumbent on the Highest
Court of last resort in the United States, stated, among other
things, that:
But where grievances pile high and most of the elected
spokesmen represent the Establishment, violence may be the only
effective response. (pp. 88-89, ``Points of Rebellion,'' Random
House, Inc., February 19, 1970, William O. Douglas.)
The special interests that control government use its
powers to favor themselves and to perpetuate regimes of
oppression, exploitation, and discrimination against the many
(ibid, p. 92).
People march and protest but they are not heard (ibid, p.
88).
Where there is a persistent sense of futility, there is
violence; and that is where we are today (ibid, p. 56).
The two parties have become almost indistinguishable; and
each is controlled by the Establishment. The modern day
dissenters and protesters are functioning as the loyal
opposition functions in England. They are the mounting voice of
political opposition to the status quo, calling for
revolutionary changes in our institutions. Yet the powers-that-
be faintly echo Adolph Hitler (ibid, p. 57).
Yet American protesters need not be submissive. A speaker
who resists arrest is acting as a free man (ibid, p. 6).
We must realize that today's Establishment is the new
George III. Whether it will continue to adhere to his tactics,
we do not know. If it does, the redress, honored in tradition,
is also revolution (ibid, p. 95).
and thus willfully and deliberately fanned the fires of unrest,
rebellion, and revolution in the United States, and
Whereas, in the April 1970 issue of Evergreen Magazine, the
said William Orville Douglas for pay did, while an incumbent on the
United States Supreme Court, publish an article entitled Redress
and Revolution, appearing on page 41 of said issue immediately
following a malicious caricature of the President of the United
States as George III, as well as photographs of nudes engaging in
various acts of sexual intercourse, in which article the said
William Orville Douglas again wrote for pay that:
George III was the symbol against which our Founders made a
revolution now considered bright and glorious. . . . We must
realize that to
[[Page 2155]]
day's Establishment is the new George III. Whether it will
continue to adhere to his tactics, we do not know. If it does,
the redress, honored in tradition, is also Revolution.
and
Whereas, the said William Orville Douglas, prepared, authored,
and received payment for an article which appeared in the March
1969 issue of the magazine, Avant Garde, published by Ralph
Ginzburg, previously convicted of sending obscene literature
through the United States Mails, (see 383 U.S. 463) at a time when
the said Ralph Ginzburg was actively pursuing an appeal from his
conviction upon a charge of malicious libel before the Supreme
Court of the United States, yet nevertheless the said William
Orville Douglas, as a sitting member of the Supreme Court of the
United States, knowing full well his own financial relationship
with this litigant before the Court, sat in judgment on the
Ginzburg appeal, all in clear violation and conflict with his Oath
of Office, the Canons of Judicial Ethics, and Federal law (396 U.S.
1049), and
Whereas, while an incumbent on the United States Supreme Court
the said William Orville Douglas for hire has served and is
reported to still serve as a Director and as Chairman of the
Executive Committee of the Center for the Study of Democratic
Institutions in Santa Barbara, California, a politically oriented
action organization which, among other things, has organized
national conferences designed to seek detente with the Soviet Union
and openly encouraged student radicalism, and
Whereas, the said Center for the Study of Democratic
Institutions, in violation of the Logan Act, sponsored and financed
a ``Pacem in Terris II Convocation'' at Geneva, Switzerland, May
28-31, 1967, to discuss foreign affairs and U.S. foreign policy
including the ``Case of Vietnam'' and the ``Case of Germany'', to
which Ho Chi Minh was publicly invited, and all while the United
States was in the midst of war in which Communists directed by the
same Ho Chi Minh were killing American boys fighting to give South
Vietnam the independence and freedom from aggression we had
promised that Nation, and from this same Center there were paid to
the said William Orville Douglas fees of $500 per day for Seminars
and Articles, and
Whereas, paid activity of this type by a sitting Justice of the
Supreme Court of the United States is contrary to his Oath of
Office to uphold the United States Constitution, violative the
Canons of Ethics of the American Bar Association and is believed to
constitute misdemeanors of the most fundamental type in the context
in which that term appears in the United States Constitution
(Article II, Section 4) as well as failing to constitute ``good
behavior'' as that term appears in the Constitution (Article III,
Section 1), upon which the tenure of all Federal judges is
expressly conditioned, and
Whereas, moneys paid to the said William Orville Douglas from
and by the aforementioned Center are at least as follows: 1962,
$900; 1963, $800; 1965, $1,000; 1966, $1,000; 1968, $1,100; 1969,
$2,000; all during tenure on the United States Supreme Court, and
all while a Director on a Board of Directors that meets (and met)
biannually to determine the general policies of the Center, and
[[Page 2156]]
Whereas, the said William Orville Douglas, contrary to his
sworn obligation to refrain therefrom and in violation of the
Canons of Ethics, has repeatedly engaged in political activity
while an incumbent of the High Court, evidenced in part by his
authorization for the use of his name in a recent political fund-
raising letter, has continued public advocacy of the recognition of
Red China by the United States, has publicly criticized the
military posture of the United States, has authored for pay several
articles on subjects patently related to causes pending or to be
pending before the United States Supreme Court in Playboy Magazine
on such subjects as invasions of privacy and civil liberties, and
most recently has expressed in Brazil public criticism of United
States foreign policy while on a visit to Brazil in 1969, plainly
designed to undermine public confidence in South and Latin American
countries in the motives and objectives of the foreign policy of
the United States in Latin America, and
Whereas, in addition to the foregoing, and while a sitting
Justice on the Supreme Court of the United States, the said William
Orville Douglas has charged, been paid and received $12,000 per
annum as President and Director of the Parvin Foundation from 1960
to 1969, which Foundation received substantial income from gambling
interests in the Freemont Casino at Las Vegas, Nevada, as well as
the Flamingo at the same location, accompanied by innumerable
conflicts of interest and overlapping financial maneuvers
frequently involved in litigation the ultimate appeal from which
could only be to the Supreme Court of which the said William
Orville Douglas was and is a member, the tenure of the said William
Orville Douglas with the Parvin Foundation being reported to have
existed since 1960 in the capacity of President, and resulting in
the receipt by the said William Orville Douglas from the Parvin
Foundation of fees aggregating at least $85,000, all while a member
of the United States Supreme Court, and all while referring to
Internal Revenue Service investigation of the Parvin Foundation
while a Justice of the United States Supreme Court as a
``manufactured case'' intended to force him to leave the bench all
while he was still President and Director of the said Foundation
and was earning a $12,000 annual salary in those posts, a patent
conflict of interest, and
Whereas, it has been repeatedly alleged that the said William
Orville Douglas in his position as President of the Parvin
Foundation did in fact give the said Foundation tax advice, with
particular reference to matters known by the said William Orville
Douglas at the time to have been under investigation by the United
States Internal Revenue Service, all contrary to the basic legal
and judicial requirement that a Supreme Court Justice may not give
legal advice, and particularly not for a fee, and
Whereas, the said William Orville Douglas has, from time to
time over the past ten years, had dealings with, involved himself
with, and may actually have received fees and travel expenses,
either directly or indirectly, from known criminals, gamblers, and
gangsters or their representatives and associates, for services,
both within the United States and abroad, and
Whereas, the foregoing conduct on the part of the said William
Orville
[[Page 2157]]
Douglas while a Justice of the Supreme Court is incompatible with
his constitutional obligation to refrain from non-judicial activity
of a patently unethical nature, and
Whereas, the foregoing conduct and other activities on the part
of the said William Orville Douglas while a sitting Justice on the
United States Supreme Court, establishes that the said William
Orville Douglas in the conduct of his solemn judicial
responsibilities has become a prejudiced advocate of predetermined
position on matters in controversy or to become in controversy
before the High Court to the demonstrated detriment of American
jurisprudence, and
Whereas, from the foregoing, and without reference to whatever
additional relevant information may be developed through
investigation under oath, it appears that the said William Orville
Douglas, among other things, has sat in judgment on a case
involving a party from whom the said William Orville Douglas to his
knowledge received financial gain, as well as that the said William
Orville Douglas for personal financial gain, while a member of the
United States Supreme Court, has encouraged violence to alter the
present form of government of the United States of America, and has
received and accepted substantial financial compensation from
various sources for various duties incompatible with his judicial
position and constitutional obligation, and has publicly and
repeatedly, both orally and in writings, declared himself a
partisan on issues pending or likely to become pending before the
Court of which he is a member: Now, therefore, be it
Resolved, That--
(1) The Speaker of the House shall within fourteen days
hereafter appoint a select committee of six Members of the House,
equally divided between the majority and the minority parties and
shall designate one member to serve as chairman, which select
committee shall proceed to investigate and determine whether
Associate Justice William Orville Douglas has committed high crimes
and misdemeanors as that phrase appears in the Constitution,
Article II, Section 4, or has, while an incumbent, failed to be of
the good behavior upon which his Commission as said Justice is
conditioned by the Constitution, Article III, Section 1. The select
committee shall report to the House the results of its
investigation, together with its recommendations on this resolution
for impeachment of the said William Orville Douglas not later than
ninety days following the designation of its full membership by the
Speaker.
(2) For the purpose of carrying out this resolution the
committee, or any subcommittee thereof, is authorized to sit and
act during the present Congress at such times and places within the
United States whether the House is sitting, has recessed, or has
adjourned, to hold such hearings, and to require by subpena or
otherwise, the attendance and testimony of such witnesses and the
production of such books, records, correspondence, memorandums,
papers, and documents as it deems necessary. Subpenas may be issued
under the signature of the chairman of the committee or any member
of the committee designated by him, and may be served by any person
designated by such chairman or member.
[[Page 2158]]
Parliamentarian's Note: On Apr. 24, 1970, Chairman William M.
Colmer, of Mississippi, of the Committee on Rules stated that pursuant
to the statement of Emanuel Celler, of New York, Chairman of the
Committee on the Judiciary, that the latter committee would hold
hearings and take action on the impeachment within 60 days, he would
not program for consideration by the Committee on Rules the resolutions
creating a select committee to study the charges of impeachment.
Sec. 14.15 A subcommittee of the Committee on the Judiciary
investigated charges of impeachable offenses against Associate
Justice William O. Douglas and issued an interim report.
On June 20, 1970, the special subcommittee of the Committee on the
Judiciary on House Resolution 920, impeaching Associate Justice
Douglas, issued an interim report on the progress of its investigation
of the charges.(12) The creation of the subcommittee and
scope of its authority was set out on the first page of the report:
---------------------------------------------------------------------------
12. First report by the special subcommittee on H. Res. 920 of the
Committee on the Judiciary, committee print, 91st Cong; 2d
Sess., June 20, 1970.
---------------------------------------------------------------------------
I. Authority
On April 21, 1970, the Committee on the Judiciary adopted a
resolution to authorize the appointment of a Special Subcommittee
on H. Res. 920, a resolution impeaching William O. Douglas,
Associate Justice of the Supreme Court of the United States, of
high crimes and misdemeanors in office. Pursuant to this
resolution, the following members were appointed: Emanuel Celler
(New York), Chairman; Byron G. Rogers (Colorado); Jack Brooks
(Texas); William M. McCulloch (Ohio); and Edward Hutchinson
(Michigan).
The Special Subcommittee on H. Res. 920 is appointed and
operates under the Rules of the House of Representatives. Rule XI,
13(f) empowers the Committee on the Judiciary to act on all
proposed legislation, messages, petitions, memorials, or other
matters relating to ``. . . Federal courts and judges.'' In the
91st Congress, Rule XI has been implemented by H. Res. 93, February
5, 1969. H. Res. 93 authorizes the Committee on the Judiciary,
acting as a whole or by subcommittee, to conduct full and complete
investigations and studies on the matters coming within its
jurisdiction, specifically ``. . . (4) relating to judicial
proceedings and the administration of Federal courts and personnel
thereof, including local courts in territories and possessions''.
H. Res. 93 empowers the Committee to issue subpenas, over the
signature of the Chairman of the Committee or any Member of the
Committee designated by him. Subpenas issued by
[[Page 2159]]
the Committee may be served by any person designated by the
Chairman or such designated Member.
On April 28, 1970, the Special Subcommittee on H. Res. 920 held
its organization meeting, appointed staff, and adopted procedures
to be applied during the investigation. Although the power to issue
subpenas is available, and the Subcommittee is prepared to use
subpenas if necessary to carry out this investigation, thus far all
potential witnesses have been cooperative and it has not been
necessary to employ this investigatory tool. The Special
Subcommittee operates under procedures established in paragraph 27,
Rules of Committee Procedure, of Rule XI of the House of
Representatives. These procedures will be followed until additional
rules are adopted, which, on the basis of precedent in other
impeachment proceedings, are determined by the Special Subcommittee
to be appropriate.
The subcommittee held no hearings but gathered information on the
various charges contained in House Resolution 922. As stated in the
report, the subcommittee requested inspection of tax returns of Justice
Douglas. Pursuant to advice by the Internal Revenue Service that a
special resolution of the full committee would be required, as well as
an executive order by the President, the committee adopted the
following resolution on May 26, 1970:
Resolution for Special Subcommittee to Consider House Resolution
920
Resolved, That the Special Subcommittee to consider H. Res.
920, a resolution impeaching William O. Douglas, Associate Justice
of the Supreme Court of the United States, of high crimes and
misdemeanors in office, hereby is authorized and directed to obtain
and inspect from the Internal Revenue Service any and all materials
and information relevant to its investigation in the files of the
Internal Revenue Service, including tax returns, investigative
reports, or other documents, that the Special Subcommittee to
consider H. Res. 920 determines to be within the scope of H. Res.
920 and the various related resolutions that have been introduced
into the House of Representatives.
The Special Subcommittee on H. Res. 920 is authorized to make
such requests to the Internal Revenue Service as the Subcommittee
determines to be appropriate, and the Subcommittee is authorized to
amend its requests to designate such additional persons, taxpayers,
tax returns, investigative reports, and other documents as the
Subcommittee determines to be appropriate during the course of this
investigation.
The Special Subcommittee on H. Res. 920 may designate agents to
examine and receive information from the Internal Revenue Service.
This resolution specifically authorizes and directs the Special
Subcommittee to obtain and inspect from the Internal Revenue
Service the documents and other file materials described in the
letter dated May 12, 1970, from Chairman Emanuel Celler to the
Honorable Randolph Thrower. The tax returns for the following
taxpayers, and the returns for such additional taxpayers as the
Subcommittee subsequently may request, are included in this
resolution:
[[Page 2160]]
Associate Justice William O. Douglas, Supreme Court of the
United States, Washington, D. C. 20036.
Albert Parvin, 1900 Avenue of the Stars, Suite 1790,
Century City, Calif. 90067.
Albert Parvin Foundation, c/o Arnold & Porter, 1229-19th
Street, N. W., Washington, D.C. 20036.
The Center for the Study of Democratic Institutions, Box
4068, Santa Barbara, Calif. 93103.
Fund for the Republic, 136 East 57th Street, New York, N.Y.
10022.
Parvin-Dohrmann Corp., (Now Recrion Corp.), 120 N.
Robertson Blvd., Los Angeles, Calif. 90048.(13)
---------------------------------------------------------------------------
13. Subcommittee report at pp. 18, 19.
---------------------------------------------------------------------------
The President subsequently issued the following executive order:
Inspection of Tax Returns by the Committee on the Judiciary, House
of Representatives
By virtue of the authority vested in me by sections 55(a) and
1604(c) of the Internal Revenue Code of 1939, as amended (26 U.S.C.
(1952 ea.) 55(a), 1604(c)), and by sections 6103(a) and 6106 of the
Internal Revenue Code of 1954, as amended (26 U.S.C. 6103(a),
6106), it is hereby ordered that any income, excess-profits,
estate, gift, unemployment, or excise tax return, including all
reports, documents, or other factual data relating thereto, shall,
during the Ninety-first Congress, be open to inspection by the
Committee on the Judiciary, House of Representatives, or any duly
authorized subcommittee thereof, in connection with its
consideration of House Resolution 920, a resolution impeaching
William O. Douglas, Associate Justice of the Supreme Court of the
United States. Whenever a return is open to inspection by such
Committee or subcommittee, a copy thereof shall, upon request, be
furnished to such Committee or subcommittee. Such inspection shall
be in accordance and upon compliance with the rules and regulations
prescribed by the Secretary of the Treasury in Treasury Decisions
6132 and 6133, relating to the inspection of returns by committees
of the Congress, approved by the President on May 3,
1955.(14)
---------------------------------------------------------------------------
14. Exec. Order No. 11535, issued June 12, 1970, subcommittee report at
p. 19.
---------------------------------------------------------------------------
The subcommittee recommended in its first report that the Committee
on the Judiciary authorize an additional 60 days for the subcommittee
to complete its investigation.(15)
---------------------------------------------------------------------------
15. Subcommittee report at pp. 25, 26.
---------------------------------------------------------------------------
Sec. 14.16 In its final report on its investigation into charges of
impeachment against Associate Justice William O. Douglas, a
subcommittee of the Committee on the Judiciary concluded that a
federal judge could be impeached (1) for judicial conduct which is
criminal or which is a serious dereliction from public duty, and
(2) for nonjudicial conduct which is criminal; the subcommittee
recommended that the evidence
[[Page 2161]]
against Justice Douglas did not warrant impeachment.
On Sept. 17, 1970, the Special Subcommittee on House Resolution 920
of the Committee on the Judiciary, which subcommittee had been created
by the committee to investigate and report on charges of impeachment
against Associate Justice Douglas of the Supreme Court, submitted its
final report to the committee.(16)
---------------------------------------------------------------------------
16. Final report by the Special Subcommittee on H. Res. 920 of the
Committee on the Judiciary, committee print, Committee on the
Judiciary, 91st Cong. 2d Sess., Sept. 17, 1970.
---------------------------------------------------------------------------
The report cited the 60-day extension granted the subcommittee by
the Committee on the Judiciary on June 24, 1970, to complete its
investigation. The report summarized the further investigation
undertaken during the 60-day period and the additional requests for
information from the Department of State, the Central Intelligence
Agency, and various individuals.(17)
---------------------------------------------------------------------------
17. The subcommittee issued on Aug. 11, 1970, a special subcommittee
publication entitled ``Legal Materials on Impeachment,''
containing briefs on the impeachment of Justice Douglas,
information from the Library of Congress, and relevant extracts
from Hinds' and Cannon's Precedents.
---------------------------------------------------------------------------
The report discussed concepts of impeachment and grounds for
impeachment of federal civil officers and of federal judges in
particular. The report concluded as follows on the grounds for
impeachment of a federal judge:
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 nonjudicial 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
[[Page 2162]]
(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. . . . 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 [sic] 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.''
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.(18)
---------------------------------------------------------------------------
18. Special subcommittee report at pp. 37-39. For the entire portion of
the subcommittee report entitled ``Concepts of Impeachment'',
see Sec. 3.13, supra.
---------------------------------------------------------------------------
The subcommittee's recommendation to the full committee read as
follows:
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 preparation of
charges on any acceptable concept of an impeachable
offense.(19)
---------------------------------------------------------------------------
19. Special subcommittee report at p. 349.
---------------------------------------------------------------------------
Emanuel Celler,
Byron G. Rogers,
Jack Brooks.
[[Page 2163]]
The report included minority views of Mr. Edward Hutchinson, of
Michigan, stating (1) that the portion of the report on concepts of
impeachment was mere dicta under the circumstances and (2) that the
investigation was incomplete and should have been further pursued, not
only as to impeachment for improper conduct but also as to other action
such as censure or official rebuke:
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.
The Subcommittee's report, which is called a final report,
addresses itself only to the question of impeachment. Admittedly no
investigation has been undertaken to determine whether some of the
Justice's activities, if not impeachable, seem so improper as to
merit congressional censure or other official criticism by the
House. There is considerable precedent for censure or other
official rebuke even though a particular activity, while improper,
was found not impeachable. This Subcommittee, however, did not
investigate with the thoroughness requisite for judging
questionable activities short of impeachment. The majority
concludes that it finds no grounds for impeachment and stops there.
In my opinion, it should have pursued the matter further.
(20)
---------------------------------------------------------------------------
20. Id. at pp. 351, 352.
---------------------------------------------------------------------------
The Committee on the Judiciary discontinued further proceedings
against Justice Douglas, and the matter was not further considered by
the House.(1)
---------------------------------------------------------------------------
1. For remarks on the final subcommittee report and the Judiciary
Committee's failure to act on the final report, see 116 Cong.
Rec. 43147, 43148, 91st Cong. 2d Sess., Dec. 21, 1970 (remarks
of Mr. David W. Dennis [Ind.]). For the minority views on the
report of Mr. Hutchinson, printed in the Record, see 116 Cong.
Rec. 43486, 91st Cong. 2d Sess., Dec. 22, 1970.
---------------------------------------------------------------------------
Charges Against Vice President Agnew
Sec. 14.17 The Speaker laid before the House in the 93d Con
[[Page 2164]]
gress a communication from Vice President Spiro Agnew requesting
the House to initiate an investigation of charges which might
``assume the character of impeachable offenses,'' made against him
during an investigation by a U.S. Attorney, and offering the House
full cooperation in such a House investigation. No action was taken
on the request.
On Sept. 25, 1973,(2) Speaker Carl Albert, of Oklahoma,
laid before the House a communication from Vice President Agnew
requesting that the House investigate certain charges brought against
him by a U.S. Attorney:
The Speaker laid before the House the following communication
from the Vice President of the United States:
---------------------------------------------------------------------------
2. 119 Cong. Rec. 31368, 93d Cong. 1st Sess.
---------------------------------------------------------------------------
The Vice President,
Washington, September 25, 1973.
Hon. Carl Albert,
Speaker of the House of Representatives, the House of
Representatives, Washington, D.C.
Dear Mr. Speaker: I respectfully request that the House of
Representatives undertake a full inquiry into the charges which
have apparently been made against me in the course of an
investigation by the United States Attorney for the District of
Maryland.
This request is made in the dual interests of preserving
the Constitutional stature of my Office and accomplishing my
personal vindication.
After the most careful study, my counsel have advised me
that the Constitution bars a criminal proceeding of any kind--
federal or state, county or town--against a President or Vice
President while he holds office.
Accordingly, I cannot acquiesce in any criminal proceeding
being lodged against me in Maryland or elsewhere. And I cannot
look to any such proceeding for vindication.
In these circumstances, I believe, it is the right and duty
of the Vice President to turn to the House. A closely parallel
precedent so suggests.
Almost a century and a half ago, Vice President Calhoun was
beset with charges of improper participation in the profits of
an Army contract made while he had been Secretary of War. On
December 29, 1826, he addressed to your Body a communication
whose eloquent language I can better quote than rival:
``An imperious sense of duty, and a sacred regard to the
honor of the station which I occupy, compel me to approach your
body in its high character of grand inquest of the nation.
``Charges have been made against me of the most serious
nature, and which, if true ought to degrade me from the high
station in which I have been placed by the choice of my fellow-
citizens, and to consign my name to perpetual infamy.
``In claiming the investigation of the House, I am sensible
that, under our free and happy institutions, the conduct of
public servants is a fair subject of the closest scrutiny and
the freest remarks, and that a firm and faithful discharge of
duty affords, ordinarily, ample protection against political
attacks; but, when such attacks assume the character of
impeachable offenses, and become, in some degree, official, by
being placed among the public records, an officer thus
assailed, however base the instrument used, if conscious of
inno
[[Page 2165]]
cence, can look for refuge only to the Hall of the immediate
Representatives of the People.''
Vice President Calhoun concluded his communication with a
``challenge'' to ``the freest investigation of the House, as
the only means effectively to repel this premeditated attack.''
Your Body responded at once by establishing a select committee,
which subpoenaed witnesses and documents, held exhaustive
hearings, and submitted a Report on February 13, 1827. The
Report, exonerating the Vice President of any wrongdoing, was
laid on the table (together with minority views even more
strongly in his favor) and the accusations were thereby put to
rest.
Like my predecessor Calhoun I am the subject of public
attacks that may ``assume the character of impeachable
offenses,'' and thus require investigation by the House as the
repository of ``the sole Power of Impeachment'' and the ``grand
inquest of the nation.'' No investigation in any other forum
could either substitute for the investigation by the House
contemplated by Article I, Section 2, Clause 5 of the
Constitution or lay to rest in a timely and definitive manner
the unfounded charges whose currency unavoidably jeopardizes
the functions of my Office.
The wisdom of the Framers of the Constitution in making the
House the only proper agency to investigate the conduct of a
President or Vice President has been borne out by recent
events. Since the Maryland investigation became a matter of
public knowledge some seven weeks ago, there has been a
constant and ever-broadening stream of rumors, accusations and
speculations aimed at me. I regret to say that the source, in
many instances, can have been only the prosecutors themselves.
The result has been so to foul the atmosphere that no grand
or petit jury could fairly consider this matter on the merits.
I therefore respectfully call upon the House to discharge
its Constitutional obligation.
I shall, of course, cooperate fully. As I have said before,
I have nothing to hide. I have directed my counsel to deliver
forthwith to the Clerk of the House all of my original records
of which copies have previously been furnished to the United
States Attorney. If there is any other way in which I can be of
aid, I am wholly at the disposal of the House.
I am confident that, like Vice President Calhoun, I shall
be vindicated by the House.
Respectfully yours
Spiro T. Agnew.
On Sept. 26, 1973,(3) Majority Leader Thomas P. O'Neill,
Jr., of Massachusetts, made an announcement in relation to Vice
President Agnew's request for an investigation into possible
impeachable offenses against him:
(Mr. O'Neill asked and was given permission to address the
House for 1 minute and to revise and extend his remarks.)
---------------------------------------------------------------------------
3. Id. at p. 31453.
---------------------------------------------------------------------------
Mr. O'Neill: Mr. Speaker, I rise at this time merely to make an
announcement to the House that in the press conference the Speaker
made the following statement:
The Vice President's letter relates to matters before the
courts. In view of that fact, I, as Speaker, will not take any
action on the letter at this time.
The House took no action on the Vice President's request, although
[[Page 2166]]
resolutions were introduced on Sept. 26, 1973, calling for
investigation of the charges referred to by the Vice President, such
charges to be investigated by the Committee on the Judiciary or by a
select committee.(4)
---------------------------------------------------------------------------
4. See H. Res. 566, H. Res. 567, H. Res. 569, H. Res. 570, referred to
the Committee on Rules.
---------------------------------------------------------------------------
Parliamentarian's Note: The request cited by the Vice President in
his letter was made by Vice President John Calhoun in 1826 and is
discussed at 3 Hinds' Precedents Sec. 1736. On that occasion, the
alleged charges related to the Vice President's former tenure as
Secretary of War. The communication 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.
In 1873, however, the Committee on the Judiciary reported that a
civil officer, in that case Vice President Schuyler Colfax, could not
be impeached for offenses allegedly committed prior to his term of
office as a civil officer under the United States. The committee had
investigated whether Vice President Colfax had, during his prior term
as Speaker of the House, been involved in bribes of Members. As
reported in 3 Hinds' Precedents Sec. 2510, the committee concluded as
follows in its report to the House:
But we are to consider, taking the harshest construction of the
evidence, whether the receipt of a bribe by a person who afterwards
becomes a civil officer of the United States, even while holding
another official position, is an act upon which an impeachment can
be grounded to subject him to removal from an office which he
afterwards holds. To elucidate this we first turn to the
precedents.
Your committee find that in all cases of impeachment or
attempted impeachment under our Constitution there is no instance
where the accusation was not in regard to an act done or omitted to
be done while the officer was in office. In every case it has been
heretofore considered material that the articles of impeachment
should allege in substance that, being such officer, and while in
the exercise of the duties of his office, the accused committed the
acts of alleged inculpation.
Vice President Agnew resigned his office as Vice President on Oct.
10, 1973. A resolution of inquiry (H. Res. 572), referred to the
Committee on the Judiciary on Oct. 1, 1973, and directing the Attorney
General to inform the
[[Page 2167]]
House of facts relating to Vice President Agnew's conduct, was
discharged by unanimous consent on Oct. 10, 1973, and laid on the
table.(5)
---------------------------------------------------------------------------
5. 119 Cong. Rec. 33687, 93d Cong. 1st Sess.
---------------------------------------------------------------------------
CHAPTER 14
Impeachment Powers
D. HISTORY OF PROCEEDINGS
Sec. 15. Impeachment Proceedings Against President Nixon
Cross Reference
Portions of the final report of the Committee on the Judiciary,
pursuant to its investigation into the conduct of the President,
relating to grounds for Presidential impeachment and forms of
articles of impeachment, see Sec. Sec. 3.3, 3.7, 3.8, supra.
Collateral References
Debate on Articles of Impeachment, Hearings of the Committee on the
Judiciary pursuant to House Resolution 803, 93d Cong. 2d Sess.,
July 24, 25, 26, 27, 29, and 30, 1974.
Impeachment of Richard M. Nixon, President of the United States, Report
of the Committee on the Judiciary, H. Rept. No. 93-1305, 93d Cong.
2d Sess., Aug. 20, 1974, printed in full in the Congressional
Record, 120 Cong. Rec. 29219-361, 93d Cong. 2d Sess., Aug. 20,
1974.
Impeachment, Selected Materials, Committee on the Judiciary, H. Doc.
No. 93-7, 93d Cong. 1st Sess., Oct. 1973.
Impeachment, Selected Materials on Procedure, Committee on the
Judiciary, Committee Print, 93d Cong. 2d Sess., Jan.
1974. -------------------
Introduction of Impeachment Charges Against the President
Sec. 15.1 Various resolutions were introduced in the 93d Congress,
first session, relating to the impeachment of President Richard M.
Nixon, some directly calling for his censure or impeachment and
some calling for an investigation by the Committee on the Judiciary
or by a select committee; the former were referred to the Committee
on the Judiciary and the latter were referred to the Committee on
Rules.
On Oct. 23, 1973, resolutions calling for the impeachment of
President Nixon or for investigations towards that end were introduced
in the House by their being placed in the hopper pursuant to Rule XXII
clause 4. The resolutions were referred as follows:
By Mr. Long of Maryland:
H. Con. Res. 365. Concurrent resolution of censureship without
prejudice to impeachment; to the Committee on the Judiciary.
By Ms. Abzug:
H. Res. 625. Resolution impeaching Richard M. Nixon, President
of the
[[Page 2168]]
United States, for high crimes and misdemeanors; to the Committee
on the Judiciary.
By Mr. Ashley:
H. Res. 626. Resolution directing the Committee on the
Judiciary to investigate whether there are grounds for the
impeachment of Richard M. Nixon; to the Committee on Rules.
By Mr. Bingham:
H. Res. 627. Resolution directing the Committee on the
Judiciary to inquire into and investigate whether grounds exist for
the impeachment of Richard M. Nixon; to the Committee on Rules.
By Mr. Burton (for himself, Ms. Abzug, Mr. Anderson of
California, Mr. Aspin, Mr. Bergland, Mr. Bingham, Mr.
Brasco, Mr. Brown of California, Mr. Boland, Mr.
Brademas, Mrs. Chisholm, Mr. Culver, Mr. Conyers, Mr.
Dellums, Mr. Drinan, Mr. Eckhardt, Mr. Edwards of
California, Mr. Evans of Colorado, Mr. Fascell, Mr.
Fauntroy, Mr. Foley, Mr. William D. Ford, Mr. Fraser,
Mr. Giaimo, and Ms. Grasso):
H. Res. 628. Resolution directing the Committee on the
Judiciary to inquire into and investigate whether grounds exist for
the impeachment of Richard M. Nixon; to the Committee on Rules. . .
.
By Mr. Hechler of West Virginia:
H. Res. 631. Resolution that Richard M. Nixon, President of the
United States, is impeached of high crimes and misdemeanors; to the
Committee on the Judiciary.
By Mrs. Heckler of Massachusetts:
H. Res. 632. Resolution to appoint a Special Prosecutor; to the
Committee on the Judiciary. . . .
By Mr. McCloskey:
H. Res. 634. Resolution of inquiry; to the Committee on the
Judiciary.
H. Res. 635. Resolution for the impeachment of Richard M.
Nixon; to the Committee on the Judiciary.
By Mr. Mazzoli:
H. Res. 636. Resolution: an inquiry into the existence of
grounds for the impeachment of Richard M. Nixon, President of the
United States; to the Committee on Rules.
By Mr. Milford:
H. Res. 637. Resolution providing for the establishment of an
Investigative Committee to investigate alleged Presidential
misconduct; to the Committee on Rules.
By Mr. Mitchell of Maryland (for himself, Mr. Burton, and
Mr. Fauntroy):
H. Res. 638. Resolution impeaching Richard M. Nixon, President
of the United States, of high crimes and misdemeanors; to the
Committee on the Judiciary.(6)
---------------------------------------------------------------------------
6. 119 Cong. Rec. 34873, 93d Cong. 1st Sess.
The first resolution in the 93d Congress calling for
President Nixon's impeachment was introduced by Mr. Robert F.
Drinan (Mass.), on July 31, 1973, H. Res. 513, 93d Cong. 1st
Sess. (placed in hopper and referred to Committee on the
Judiciary).
In the 92d Congress, second session, resolutions were
introduced impeaching the President for his conduct of the
Vietnam conflict. See H. Res. 976 and H. Res. 989, 92d Cong. 2d
Sess.
---------------------------------------------------------------------------
[[Page 2169]]
Parliamentarian's Note: The resolutions were introduced following
the President's dismissal of Special Prosecutor Cox, of the Watergate
Special Prosecution Force investigating Presidential campaign
activities, and the resignation of Attorney General
Richardson.(7)
Authority for Judiciary Committee Investigation
Sec. 15.2 Although the House had adopted a resolution authorizing the
Committee on the Judiciary, to which had been referred resolutions
impeaching President Richard M. Nixon, to conduct investigations
(with subpena power) within its jurisdiction as such jurisdiction
was defined in Rule XI clause 13, and although the House had
adopted a resolution intended to fund expenses of the impeachment
inquiry by the committee, the committee reported and called up as
privileged a subsequent resolution specifically mandating an
impeachment investigation and continuing the availability of funds,
in order to confirm the delegation of authority from the House to
that committee to conduct the investigation.
---------------------------------------------------------------------------
7. Comments were delivered in the House on Oct. 23, 1973, on actions
of the President. See, for example, the comments of Majority
Leader Thomas P. O'Neill, Jr. (Mass.), at 119 Cong. Rec. 34819,
93d Cong. 1st Sess.
---------------------------------------------------------------------------
On Feb. 6, 1974, Peter W. Rodino, Jr., of New Jersey, Chairman of
the Committee on the Judiciary, called up for immediate consideration
House Resolution 803, authorizing the committee to investigate the
sufficiency of grounds for the impeachment of President Nixon, which
resolution had been reported by the committee on Feb. 1, 1974.
The resolution read as follows:
H. Res. 803
Resolved, That the Committee on the Judiciary, acting as a
whole or by any subcommittee thereof appointed by the chairman for
the purposes hereof and in accordance with the rules of the
committee, is authorized and directed to investigate fully and
completely whether sufficient grounds exist for the House of
Representatives to exercise its constitutional power to impeach
Richard M. Nixon, President of the United States of America. The
committee shall report to the House of Representatives such
resolutions, articles of impeachment, or other recommendations as
it deems proper.
Sec. 2. (a) For the purpose of making such investigation, the
committee is authorized to require--
[[Page 2170]]
(1) by subpena or otherwise--
(A) the attendance and testimony of any person (including at a
taking of a deposition by counsel for the committee); and
(B) the production of such things; and
(2) by interrogatory, the furnishing of such information; as it
deems necessary to such investigation.
(b) Such authority of the committee may be exercised--
(1) by the chairman and the ranking minority member acting
jointly, or, if either declines to act, by the other acting alone,
except that in the event either so declines, either shall have the
right to refer to the committee for decision the question whether
such authority shall be so exercised and the committee shall be
convened promptly to render that decision; or
(2) by the committee acting as a whole or by subcommittee.
Subpenas and interrogatories so authorized may be issued over the
signature of the chairman, or ranking minority member, or any
member designated by either of them, and may be served by any
person designated by the chairman, or ranking minority member, or
any member designated by either of them. The chairman, or ranking
minority member, or any member designated by either of them (or,
with respect to any deposition, answer to interrogatory, or
affidavit, any person authorized by law to administer oaths) may
administer oaths to any witness. For the purposes of this section,
``things'' includes, without limitation, books, records,
correspondence, logs, journals, memorandums, papers, documents,
writings, drawings, graphs, charts, photographs, reproductions,
recordings, tapes, transcripts, printouts, data compilations from
which information can be obtained (translated if necessary, through
detection devices into reasonably usable form), tangible objects,
and other things of any kind.
Sec. 3. For the purpose of making such investigation, the
committee, and any subcommittee thereof, are authorized to sit and
act, without regard to clause 31 of rule XI of the Rules of the
House of Representatives, during the present Congress at such times
and places within or without the United States, whether the House
is meeting, has recessed, or has adjourned, and to hold such
hearings, as it deems necessary.
Sec. 4. Any funds made available to the Committee on the
Judiciary under House Resolution 702 of the Ninety-third Congress,
adopted November 15, 1973, or made available for the purpose
hereafter, may be expended for the purpose of carrying out the
investigation authorized and directed by this resolution.
Mr. Rodino and Mr. Edward Hutchinson, of Michigan, the ranking
minority member of the Committee on the Jucliciary, explained the
purpose of the resolution, which had been adopted unanimously by the
committee, as follows:
Mr. Rodino: Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, the English statesman Edmund Burke said, in
addressing an important constitutional question, more than 200
years ago:
[[Page 2171]]
We stand in a situation very honorable to ourselves and
very useful to our country, if we do not abuse or abandon the
trust that is placed in us.
We stand in such a position now, and--whatever the result--we
are going to be just, and honorable, and worthy of the public
trust.
Our responsibility in this is clear. The Constitution says, in
article I; section 2, clause 5:
The House of Representatives, shall have the sole power of
impeachment.
A number of impeachment resolutions were introduced by Members
of the House in the last session of the Congress. They were
referred to the Judiciary Committee by the Speaker.
We have reached the point when it is important that the House
explicitly confirm our responsibility under the Constitution.
We are asking the House of Representatives, by this resolution,
to authorize and direct the Committee on the Judiciary to
investigate the conduct of the President of the United States, to
determine whether or not evidence exists that the President is
responsible for any acts that in the contemplation of the
Constitution are grounds for impeachment, and if such evidence
exists, whether or not it is sufficient to require the House to
exercise its constitutional powers.
As part of that resolution, we are asking the House to give the
Judiciary Committee the power of subpena in its investigations.
Such a resolution has always been passed by the House. The
committee has voted unanimously to recommend that the House of
Representatives adopt this resolution. It is a necessary step if we
are to meet our obligations. . . .
Mr. Hutchinson: Mr. Speaker, the first section of this
resolution authorizes and directs your Judiciary Committee to
investigate fully whether sufficient grounds exist to impeach the
President of the United States. This constitutes the first explicit
and formal action in the whole House to authorize such an inquiry.
The last section of the resolution validates the use by the
committee of that million dollars allotted to it last November for
purposes of the impeachment inquiry. Members will recall that the
million dollar resolution made no reference to the impeachment
inquiry but merely allotted that sum of money to the committee to
be expended on matters within its jurisdiction. All Members of the
House understood its intended purpose.
But the rule of the House defining the jurisdiction of
committees does not place jurisdiction over impeachment matters in
the Judiciary Committee. In fact, it does not place such
jurisdiction anywhere. So this resolution vests jurisdiction in the
committee over this particular impeachment matter, and it ratifies
the authority of the committee to expend for the purpose those
funds allocated to it last November, as well as whatever additional
funds may be hereafter authorized.8
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8. 120 Cong. Rec. 2349-51, 93d Cong. 2d Sess.
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Parliamentarian's Note: Until the adoption of House Resolution 803,
the Committee on the Judici
[[Page 2172]]
ary had been conducting an investigation into the charges of
impeachment against President Nixon under its general investigatory
authority, granted by the House on Feb. 28, 1973 (H. Res. 74). The
committee had hired special counsel for the impeachment inquiry on Dec.
20, 1973, and had authorized the chairman to issue subpenas in relation
to the inquiry on Oct. 30, 1973. House Resolution 74 authorized the
Committee on the Judiciary to conduct investigations, and to issue
subpenas during such investigations, within its jurisdiction ``as set
forth in clause 13 of rule XI of the Rules of the House of
Representatives.''
That clause did not specifically include impeachments within the
jurisdiction of the Committee on the Judiciary.
The House had provided for the payment, from the contingent fund,
of further expenses of the Committee on the Judiciary, in conducting
investigations, following the introduction and referral to the
committee of various resolutions proposing the impeachment of President
Nixon. Debate on one such resolution, House Resolution 702, indicated
that the additional funds for the investigations of the Committee on
the Judiciary were intended in part for use in conducting an
impeachment inquiry in relation to the President.(9)
---------------------------------------------------------------------------
9. See H. Res. 702, 93d Cong. 1st Sess., Nov. 15, 1973.
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It was considered necessary for the House to specifically vest the
Committee on the Judiciary with the investigatory and subpena power to
conduct the impeachment investigation and to specifically provide for
payment of resultant expenses from the contingent fund of the
House.(10)
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10. On Apr. 29, 1974, subsequent to the adoption of H. Res. 803, the
House adopted H. Res. 1027, authorizing further funds from the
contingent fund for the expenses of the impeachment inquiry and
other investigations within the jurisdiction of the Committee
on the Judiciary. The report on the resolution, from the
Committee on House Administration (H. Rept. No. 93-1009)
included a statement by Mr. Rodino on the status of the
impeachment inquiry and on the funds required for expenses and
salaries of the impeachment inquiry staff.
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As discussed in section 6, supra, House Resolution 803 was
privileged, since reported by the committee to which resolutions of
impeachment had been referred and since incidental to consideration of
the impeachment question, although resolutions providing for funding
from the contingent fund of the House are normally only
[[Page 2173]]
privileged when called up by the Committee on House Administration, and
resolutions authorizing investigations are normally only privileged
when called up by the Committee on Rules.
Preserving Confidentiality of Inquiry Materials
Sec. 15.3 The Committee on the Judiciary adopted Procedures preserving
the confidentiality of impeachment inquiry materials.
On Feb. 22, 1974, the Committee on the Judiciary unanimously
adopted procedures governing the confidentiality of the materials
gathered in the impeachment inquiry into the conduct of President
Richard Nixon. The first set of procedures, entitled ``Procedures for
Handling Impeachment Inquiry Material,'' limited access to such
materials to the chairman, ranking minority member, special counsel,
and special counsel to the minority of the committee, until the actual
presentation of evidence at hearings. Confidentiality was to be
strictly preserved.
The second set of procedures, entitled ``Rules for the Impeachment
Inquiry Staff,'' provided for security and nondisclosure of impeachment
inquiry materials and work product of the inquiry staff.(11)
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11. For the text of the rules, see Sec. 6.9, supra.
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Determining Grounds for Presidential Impeachment
Sec. 15.4 During the inquiry into charges against President Richard M.
Nixon by the Committee on the Judiciary, the impeachment inquiry
staff reported to the committee on the constitutional grounds for
Presidential impeachment, as drawn from the historical origins of
impeachment and the American impeachment cases.
On Feb. 22, 1974, Peter W. Rodino, Jr., of New Jersey, Chairman of
the Committee on the Judiciary, made available a report by the inquiry
staff on the conduct of President Nixon. The report, entitled
``Constitutional Grounds for Presidential Impeachment,'' summarized the
historical origins and constitutional bases for impeachment and
chronicled the American impeachment cases.
The report, printed as a committee print, did not necessarily
reflect the views of the committee or its members, but was entirely a
staff report. The staff concluded, in reviewing the issue whether
[[Page 2174]]
impeachable offenses were required to be criminal or indictable
offenses, that such was not the case under the English and American
impeachment precedents.(12)
---------------------------------------------------------------------------
12. For the text of the report, see the appendix to this chapter,
infra.
The conclusion of the staff report was included in the
final report of the Committee on the Judiciary recommending
impeachment of the President. (H. Rept. No. 93-1305, by the
Committee on the Judiciary.) See 120 Cong. Rec. 29220, 29221,
93d Cong. 2d Sess., Aug. 20, 1974.
The minority views included in the committee report reached
an opposite conclusion from that of the staff report and from
that of the majority of the committee, which determined to
impeach the President for both criminal and noncriminal conduct
(see Sec. 3.8, supra, for the minority views and Sec. 3.7,
supra, for the majority views on the issue).
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Status Reports
Sec. 15.5 During the impeachment inquiry involving President Richard M.
Nixon, the inquiry staff of the Committee on the Judiciary reported
to the committee on the status of its investigation.
On Mar. 1, 1974, the staff for the impeachment inquiry reported to
the Committee on the Judiciary on the status of its investigative work
(summarized in the committee's final report) with respect to specified
allegations:
A. Allegations concerning domestic surveillance activities
conducted by or at the direction of the White House.
B. Allegations concerning intelligence activities conducted by
or at the direction of the White House for the purpose of the
Presidential election of 1972.
C. Allegations concerning the Watergate break-in and related
activities, including alleged efforts by persons in the White House
and others to ``cover up'' such activities and others.
D. Allegations concerning improprieties in connection with the
personal finances of the President.
E. Allegations concerning efforts by the White House to use
agencies of the executive branch for political purposes, and
alleged White House involvement with election campaign
contributions.
F. Allegations concerning other misconduct.(13)
---------------------------------------------------------------------------
13. H. Rept. No. 93-1305, at p. 8, Committee on the Judiciary, 93d
Cong. 2d Sess., reported Aug. 20, 1974.
On May 23, 1974, the House authorized by resolution the
printing of 2,000 additional copies of a committee print
containing the staff report. H. Res. 1074, 93d Cong. 2d Sess.
The House also adopted on May 23, H. Res. 1073, authorizing
the printing of additional copies of a committee print on the
work of the impeachment inquiry staff as of Feb. 5, 1974.
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Presenting Evidence and Examining Witnesses
Sec. 15.6 In the Nixon impeachment inquiry, the Committee
[[Page 2175]]
on the Judiciary adopted certain procedures to be followed in
presenting evidence and hearing witnesses.
On May 2, 1974, the Committee on the Judiciary unanimously adopted
special procedures for presenting the evidence compiled by the
committee staff to the full committee in hearings. The procedures
provided for a statement of information to be presented, with annotated
evidentiary materials, to committee members and to the President's
counsel.(1~4~)
---------------------------------------------------------------------------
14. See Sec. 6.5, supra.
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The procedures allowed for the compilation and presentation of
additional evidence by committee members or on request of the
President's counsel.
Procedures were also adopted for holding hearings to examine
witnesses. Under the procedures, hearings were to be attended by the
President's counsel, and he was permitted to examine witnesses.
The procedures followed in the presentation of evidence are
reflected in the summary from the committee's final report:
From May 9, 1974 through June 21, 1974, the Committee
considered in executive session approximately six hundred fifty
``statements of information'' and more than 7,200 pages of
supporting evidentiary material presented by the inquiry staff. The
statements of information and supporting evidentiary material,
furnished to each Member of the Committee in 36 notebooks,
presented material on several subjects of the inquiry: the
Watergate break-in and its aftermath, ITT, dairy price supports,
domestic surveillance, abuse of the IRS, and the activities of the
Special Prosecutor. The staff also presented to the Committee
written reports on President Nixon's income taxes, presidential
impoundment of funds appropriated by Congress and the bombing of
Cambodia.
In each notebook, a statement of information relating to a
particular phase of the investigation was immediately followed by
supporting evidentiary material, which included copies of documents
and testimony (much of it already on public record), transcripts of
presidential conversations, and affidavits. A deliberate and
scrupulous abstention from conclusions, even by implication, was
observed.
The Committee heard recordings of nineteen presidential
conversations and dictabelt recollections. The presidential
conversations were neither paraphrased nor summarized by the
inquiry staff. Thus, no inferences or conclusions were drawn for
the Committee. During the course of the hearings, Members of the
Committee listened to each recording and simultaneously followed
transcripts prepared by the inquiry staff.
On June 27 and 28, 1974, Mr. James St. Clair, Special Counsel
to the President made a further presentation in a similar manner
and form as the inquiry staff's initial presentation. The Committee
voted to make public the initial presentation by the inquiry
[[Page 2176]]
staff, including substantially all of the supporting materials
presented at the hearings, as well as the President's response.
Between July 2, 1974, and July 17, 1974, after the initial
presentation, the Committee heard testimony from nine witnesses,
including all the witnesses proposed by the President's counsel.
The witnesses were interrogated by counsel for the Committee, by
Special counsel to the President pursuant to the rules of the
Committee, and by Members of the Committee. The Committee then
heard an oral summation by Mr. St. Clair and received a written
brief in support of the President's position.
The Committee concluded its hearings on July 17, a week in
advance of its public debate on whether or not to recommend to the
House that it exercise its constitutional power of impeachment. In
preparation for that debate the majority and minority members of
the impeachment inquiry staff presented to the Committee
``summaries of information.'' (15)
---------------------------------------------------------------------------
15. H. Rept. No. 93-1305 at p. 9, Committee on the Judiciary, 93d Cong.
2d Sess., reported Aug. 20, 1974, printed in the Record at 120
Cong. Rec. 29221, 93d Cong. 2d Sess., Aug. 20, 1974.
---------------------------------------------------------------------------
The Committee on the Judiciary had previously adopted a resolution
which was called up in the House under a motion to suspend the rules,
on July 1, 1974, to authorize the committee to proceed without regard
to Rule XI clause 27(f)(4), House Rules and Manual Sec. 735 (1973),
requiring the application of the five-minute rule for interrogation of
witnesses by committees. The House had rejected the motion to suspend
the rules and thereby denied to the committee the authorization to
dispense with the five-minute rule in the interrogation of
witnesses.(16)
---------------------------------------------------------------------------
16. 120 Cong. Rec. 21849-55, 93d Cong. 2d Sess.
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Committee Consideration of Resolution and Articles Impeaching the
President
Sec. 15.7 Consideration by the Committee on the Judiciary of the
resolution and articles of impeachment against President Richard M.
Nixon was made in order by committee resolution.
On July 23, 1974, the Committee on the Judiciary adopted a
resolution making in order its consideration of a motion to report a
resolution and articles of impeachment to the House. The resolution
provided:
Resolved, That at a business meeting on July 24, 1974, the
Committee shall commence general debate on a motion to report to
the House a Resolution, together with articles of impeachment,
impeaching Richard M. Nixon, President of the United States. Such
general debate shall consume no more than ten hours, during which
time no
[[Page 2177]]
Member shall be recognized for a period to exceed 15 minutes. At
the conclusion of general debate, the proposed articles shall be
read for amendment and Members shall be recognized for a period of
five minutes to speak on each proposed article and on any and all
amendments thereto, unless by motion debate is terminated thereon.
Each proposed article, and any additional article, shall be
separately considered for amendment and immediately thereafter
voted upon as amended for recommendation to the House. At the
conclusion of consideration of the articles for amendment and
recommendation to the House, if any article has been agreed to, the
original motion shall be considered as adopted and the Chairman
shall report to the House said Resolution of impeachment, together
with such articles as have been agreed to, or if no article is
agreed to, the Committee shall consider such resolutions or other
recommendations as it deems proper.(~17)
---------------------------------------------------------------------------
17. H. Rept. No. 93-1305, at p. 10, Committee on the Judiciary, 93d
Cong. 2d Sess., reported Aug. 20, 1974.
---------------------------------------------------------------------------
As stated in the committee's final report, consideration of the
motion to report and of the articles of impeachment proceeded as
follows on July 24 through July 30:
On July 24, at the commencement of general debate, a resolution
was offered including two articles of impeachment. On July 26, an
amendment in the nature of a substitute was offered to Article I.
In the course of the debate on the substitute, it was contended
that the proposed article of impeachment was not sufficiently
specific. Proponents of the substitute argued that it met the
requirements of specificity under modern pleading practice in both
criminal and civil litigation, which provide for notice pleading.
They further argued that the President had notice of the charge,
that his counsel had participated in the Committee's deliberations,
and that the factual details would be provided in the Committee's
report.
On July 27, the Committee agreed to the amendment in the nature
of a substitute for Article I by a vote of 27 to 11. The Committee
then adopted Article I, as amended, by a vote of 27 to 11. Article
I, as adopted by the Committee charged that President Nixon, using
the power of his high office, engaged, personally and through his
subordinates and agents, in a course of conduct or plan designed to
delay, impede, and obstruct the investigation of the unlawful entry
into the headquarters of the Democratic National Committee in
Washington, D.C., for the purpose of securing political
intelligence; to cover up, conceal and protect those responsible;
and to conceal the existence and scope of other unlawful covert
activities.
On July 29, an amendment in the nature of a substitute was
offered for Article II of the proposed resolution. After debate,
the substitute was agreed to by a vote of 28 to 10. The Committee
then adopted Article II, as amended, by a vote of 28 to 10. Article
II, as amended, charged that President Nixon, using the power of
the office of President of the United States, repeatedly engaged in
conduct which violated the constitutional rights of citizens;
[[Page 2178]]
which impaired the due and proper administration of justice and the
conduct of lawful inquiries, or which contravened the laws
governing agencies of the executive branch and the purposes of
these agencies.
On July 30, an additional article was offered as an amendment
to the resolution. After debate, this amendment was adopted by a
vote of 21 to 17 and became Article III. Article III charged that
President Nixon, by failing, without lawful cause or excuse and in
willful disobedience of the subpoenas of the House, to produce
papers and things that the Committee had subpoenaed in the course
of its impeachment inquiry, assumed to himself functions and
judgments necessary to the exercise of the constitutional power of
impeachment vested in the House. The subpoenaed papers and things
had been deemed necessary by the Committee in order to resolve, by
direct evidence, fundamental, factual questions related to
presidential direction, knowledge, or approval of actions
demonstrated by other evidence to be substantial grounds for
impeachment.
On July 30, the Committee considered an amendment to add a
proposed Article, which charged that President Nixon authorized,
ordered and ratified the concealment of information from the
Congress and supplied to Congress false and misleading statements
concerning the existence, scope and nature of American bombing
operations in Cambodia. The proposed Article stated that these acts
were in derogation of the powers of Congress to declare war, make
appropriations, and raise and support armies. By a vote of 26 to
12, the amendment to add this Article was not agreed to.
Also on July 30, the Committee considered an amendment to add a
proposed Article, charging that President Nixon knowingly and
fraudulently failed to report income and claimed deductions that
were not authorized by law on his Federal income tax returns for
the years 1969 through 1972. In addition, the proposed Article
charged that, in violation of Article II, Section 1 of the
Constitution, President Nixon had unlawfully received emoluments,
in excess of the compensation provided by law, in the form of
government expenditures at his privately owned properties at San
Clemente, California, and Key Biscayne, Florida. By a vote of 26 to
12, the amendment to add the article was not agreed to.
The Committee on the Judiciary based its decision to recommend
that the House of Representatives exercise its constitutional power
to impeach Richard M. Nixon, President of the United States, on
evidence which is summarized in the following report. . .
.(18)
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18. H. Rept. No. 93-1305, at pp. 10, 11, Committee on the Judiciary,
93d Cong. 2d Sess., reported Aug. 20, 1974, printed in the
Record at 120 Cong. Rec. 29221, 29222, 93d Cong. 2d Sess., Aug.
20, 1974.
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The debate on the resolution and articles of impeachment were
televised pursuant to House Resolution 1107, adopted by the House on
July 22, 1974, amending Rule XI clause 34 of the rules of the House to
permit committee meetings, as well as hearings, to be broadcast by live
coverage.(19)
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19. 120 Cong. Rec. 24436-48, 93d Cong. 2d Sess.
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[[Page 2179]]
The transcript of the debate by the Committee on the Judiciary was
printed in full as a public document.(20)
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20. See Debate on Articles of Impeachment, Hearings of the Committee on
the Judiciary pursuant to H. Res. 803, 93d Cong. 2d Sess., July
24, 25, 26, 29, and 30, 1974.
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Senate Review of Impeachment Trial Rules
Sec. 15.8 After impeachment proceedings had been instituted in the
House against President Richard M. Nixon, the Senate adopted a
resolution for the study and review of Senate rules and precedents
applicable to impeachment trials.
On July 29, l974,(1~) during the pendency of an
investigation in the House of alleged impeachable offenses committed by
President Nixon, the Senate adopted a resolution related to its rules
on impeachment:
---------------------------------------------------------------------------
1. 120 Cong. Rec. 25468, 93d Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Michael J.] Mansfield [of Montana]: Mr. President, I have
at the desk a resolution, submitted on behalf of the distinguished
Republican leader, the Senator from Pennsylvania (Mr. Hugh Scott),
the assistant majority leader, the distinguished Senator from West
Virginia (Mr. Robert C. Byrd), the assistant Republican leader, the
distinguished Senator from Michigan (Mr. Griffin), and myself, and
I ask that it be called up and given immediate consideration.
The Presiding Officer: The clerk will state the resolution.
The legislative clerk read as follows:
S. Res. 370
Resolved, That the Committee on Rules and Administration is
directed to review any and all existing rules and precedents
that apply to impeachment trials with a view to recommending
any revisions, if necessary, which may be required if the
Senate is called upon to conduct such a trial.
Resolved further, That the Committee on Rules and
Administration is instructed to report back no later than 1
September 1974, or on such earlier date as the Majority and
Minority Leaders may designate, and
Resolved further, That such review by that Committee shall
be held entirely in executive sessions.
The Presiding Officer: Without objection, the Senate will
proceed to its immediate consideration.
The question is on agreeing to the resolution.
The resolution (S. Res. 370) was agreed to.(2)
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2. The Senate Parliamentarian prepared and published, at the request
of Senator Robert C. Byrd (W. Va.) a study entitled ``Procedure
and Guidelines for Impeachment Trials in the United States
Senate,'' S. Doc. No. 102, 93d Cong. 2d Sess., Aug. 8, 1974.
---------------------------------------------------------------------------
The Committee on Rules and Administration reported out Senate
Resolution 390, amending the
[[Page 2180]]
Rules and Procedure and Practice in the Senate when Sitting on
Impeachment Trials, which was not acted on by the Senate. The
amendments reported were clarifying and modernizing
changes.(3)
---------------------------------------------------------------------------
3. See Sec. 11.2, supra, for the committee amendments to the rules for
impeachment trials.
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Disclosure of Evidence of Presidential Activities
Sec. 15.9 Pending the investigation by the House Committee on the
Judiciary into conduct of the President, the Senate adopted a
resolution releasing records of a Senate select committee on
Presidential activities to congressional committees and other
agencies and persons with a legitimate need therefor.
On July 29, 1974,(4) Senator Samuel J. Ervin, Jr., of
North Carolina, offered in the Senate Senate Resolution 369, relating
to the records of a Senate select committee. The Senate adopted the
resolution, following Senator Ervin's remarks thereon, in which he
mentioned the needs and requests of the Committee on the Judiciary of
the House:
---------------------------------------------------------------------------
4. 120 Cong. Rec. 25392, 25393, 93d Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. Ervin: Mr. President, under its present charter, the Senate
Select Committee on Presidential Campaign Activities has 90 days
after the 28th day of June of this year in which to wind up its
affairs. This resolution is proposed with the consent of the
committee, and its immediate consideration has been cleared by the
leadership on both sides of the aisle.
The purpose of this resolution is to facilitate the winding up
of the affairs of the Senate Select Committee. The resolution
provides that all of the records of the committee shall be
transferred to the Library of Congress which shall hold them
subject to the control of the Senate Committee on Rules and
Administration.
It provides that after these records are transferred to the
Library of Congress the Senate Committee on Rules and
Administration shall control the access to the records and either
by special orders or by general regulations shall make the records
available to courts, congressional committees, congressional
subcommittees, Federal departments and agencies, and any other
persons who may satisfy the Senate Committee on Rules and
Administration that they have a legitimate need for the records.
It provides that the records shall be maintained intact and
that none of the original records shall be released to any agency
or any person.
It provides further that pending the transfer of the records to
the Library of Congress and the assumption of such control by the
Senate Committee on Rules and Administration, that the Select
Committee, acting through its chairman or through its vice
chairman, can make these records available to courts or to
congressional committees
[[Page 2181]]
or subcommittees or to other persons showing a legitimate need for
them.
I might state this is placed in here because of the fact that
we have had many requests from congressional committees for the
records. We have had requests from the Special Prosecutor and from
the courts. . . .
I might state in the past the committee has made available some
of the records to the House Judiciary Committee, at its request,
and to the Special Prosecutor at his request. The resolution also
provides that the action of the committee in doing so is ratified
by the Senate.
Broadcasting Impeachment Proceedings
Sec. 15.10 The House adopted a resolution providing for the broadcast
of the proceedings in the House in which it was to consider the
resolution and articles of impeachment against President Richard M.
Nixon.
On Aug. 7, 1974, the Committee on the Judiciary, having previously
determined to report affirmatively to the House on the impeachment of
the President, the House adopted House Resolution 802, called up by
direction of the Committee on Rules, authorizing the broadcast of the
anticipated impeachment proceedings in the House. Ray J. Madden, of
Indiana, Chairman of the Committee on Rules, who called up the
resolution (with committee amendments), cited the prior action of the
House in changing the rules of the House to permit the deliberations of
the Committee on the Judiciary to be televised.(5)
---------------------------------------------------------------------------
5. 120 Cong. Rec. 27266-69, 93d Cong. 2d Sess.
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Sec. 15.11 After impeachment proceedings had been instituted in the
House against President Richard M. Nixon, the Senate Committee on
Rules and Administration reported a resolution for televising any
resultant trial.
On Aug. 8, 1974,(6) Senator Howard W. Cannon, of Nevada,
reported in the Senate, from the Committee on Rules and Administration,
Senate Resolution 371, to permit television and radio coverage of any
impeachment trial that might occur with respect to President Nixon. The
resolution was subsequently laid on the table.
---------------------------------------------------------------------------
6. 120 Cong. Rec. 27325, 93d Cong. 2d Sess.
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Procedures for Consideration by the House
Sec. 15.12 The House leadership considered a number of special
procedures to be followed in the consideration of a resolution and
articles im
[[Page 2182]]
peaching President Richard M. Nixon.
On Aug. 2, 1974, Ray J. Madden, of Indiana, Chairman of the
Committee on Rules, addressed the House on a recent meeting of the
leadership as to the proposed hearings of the committee relative to the
consideration by the House of the impeachment of President Nixon:
Conference of House Rules Committee on Impeachment Debate
(Mr. Madden asked and was given permission to address the House
for 1 minute and to revise and extend his remarks, and include
extraneous matter.)
Mr. Madden: Mr. Speaker, the coming Presidential impeachment
debate calls for the House to adopt certain special procedures
which are not otherwise necessary when considering regular
congressional business.
The members of the Rules Committee, Speaker Carl Albert, House
Majority Leader Tip O'Neill, House Majority Whip John McFall, House
Minority Leader John Rhodes, House Minority Whip Les Arends,
Judiciary Committee Chairman Peter Rodino, and Representative
Edward Hutchinson, the ranking minority member of the Judiciary
Committee, met in an unofficial capacity Thursday afternoon, August
1. In the 2\1/2\ hour meeting thoughts were exchanged and
recommendations made regarding the rules and procedures which would
be most practical in allowing the entire House membership
participation in this historical legislative event.
Although the bipartisan gathering reached no official decision,
there was agreement that after the Judiciary Committee files its
report on the impeachment proceedings next week, August 8, the
Committee on Rules will then convene--on August 13 for the purpose
of defining the rules and procedures for House debate. It was also
agreed by the members of the Democratic and Republican leadership
present that the impeachment debate will begin on the floor of the
House on Monday, August 19.
Among the impeachment procedures to be given consideration by
the Committee on Rules will be: The overall time of debate;
division of debate time during the floor discussion; the control of
the time; the question of whether the three articles of impeachment
recommended by the Judiciary Committee should be amended; and
whether or not the electronic media should be allowed to broadcast
the proceedings of the House floor.(7)
---------------------------------------------------------------------------
7. 120 Cong. Rec. 26489, 93d Cong. 2d Sess.
---------------------------------------------------------------------------
Later on that day, Thomas P. O'Neill, Jr., of Massachusetts, the
Majority Leader, and Peter W. Rodino, Jr., of New Jersey, the Chairman
of the Committee on the Judiciary, discussed tentative scheduling of
the resolution of impeachment and arrangements for Members of the House
to listen to tape recordings containing evidence relating to the
impeachment inquiry:
(Mr. [Leslie C.] Arends [of Illinois] asked and was given
permission to address the House for 1 minute.)
[[Page 2183]]
Mr. Arends: Mr. Speaker, I take this time to ask the majority
leader if he will kindly advise us of the program for next week.
Mr. O'Neill: Mr. Speaker, will the gentleman yield to the
gentleman from New Jersey (Mr. Rodino), chairman of the Committee
on the Judiciary, so we may have some indication of his plans?
Mr. Arends: I yield to the gentleman from New Jersey.
Mr. Rodino: I thank the gentleman for yielding.
I would really like to announce that today I have circulated a
letter that should be in the offices of each of the Members which
sets up a schedule so that Members who are interested may listen to
the tapes that are going to be available in the Congressional
Building where the impeachment inquiry staff is located. There will
be assistance provided to all of the Members, and this is spelled
out in this letter--the schedule as to the time when the tapes will
be available, together with the transcripts, and assistance will be
provided by members of the impeachment inquiry staff.
In addition to that, there is also in the letter pertinent
information which relates to the particular pieces of information
or documents that are available. All of the documents that have
been printed and the President's counsel's brief will be included.
Members will have available to them all that the Committee on the
Judiciary has presented and printed and published up to this
particular time, which I am sure all Members will be interested in.
I thought that I would make this announcement so that this
letter will come to the Members' attention and will not be somehow
or other just laid aside. I think the Members are going to be
interested in seeing it and knowing that there is a schedule for
them, and we will allow them sufficient time within which to be
briefed regarding these various materials that are available and
the facilities that are available to them.
Mr. O'Neill: Mr. Speaker, will the gentleman yield?
Mr. Arends: I yield to the distinguished majority leader.
Mr. O'Neill: I thank the gentleman for yielding.
I should like to address some remarks to the gentleman from New
Jersey (Mr. Rodino), the chairman of the Committee on the
Judiciary, in view of the fact that the leadership on both sides of
the aisle met yesterday with members of the Committee on Rules
trying to put together a schedule, which, of course, we understand
is tentative.
It was my understanding from that meeting that the Judiciary
Committee would be planning to report next Wednesday, and would be
going to the Rules Committee on Tuesday, August 13, with the
anticipation that the matter of impeachment would be on the floor
on Monday, the 19th.
Would the gentleman want to comment on that?
Mr. Rodino: If the gentleman will yield, that is correct. That
is the schedule that we hope to follow. I have discussed this with
the gentleman from Michigan, the ranking minority member, and we
have agreed that the scheduling is the kind of scheduling dates
that we can meet. On Tuesday, the 13th, we would go before the
Rules Committee. I thank the gentleman.(8)
---------------------------------------------------------------------------
8. Id. at p. 26512.
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[[Page 2184]]
Committee Report as to Impeachment; Resignation of the President
Sec. 15.13 After the Committee on the Judiciary had determined to
report to the House a resolution and articles impeaching President
Richard M. Nixon, the President resigned; the committee submitted
its report recommending impeachment to the House, without an
accompanying resolution of impeachment. The House then adopted a
resolution under suspension of the rules accepting the committee's
report, noting the committee's action and commending the chairman
and members of the committee for their efforts.
On Aug. 9, 1974, President Nixon's written resignation was received
in the office of the Secretary of State, pursuant to the provisions of
the United States Code.(9)
---------------------------------------------------------------------------
9. 3 USC Sec. 20 provides that the resignation of the office of the
President shall be an instrument in writing, subscribed by the
person resigning, and delivered to the office of the Secretary
of State.
---------------------------------------------------------------------------
On Aug. 20, 1974, Mr. Peter W. Rodino, Jr., of New Jersey,
submitted as privileged the report of the Committee on the Judiciary
(H. Rept. No. 93-1305) to the House. The report summarized the
committee's investigation and included supplemental, additional,
separate, dissenting, minority, individual, and concurring views. The
committee's recommendation and adopted articles of impeachment read as
follows:
The Committee on the Judiciary, to whom was referred the
consideration of recommendations concerning the exercise of the
constitutional power to impeach Richard M. Nixon, President of the
United States, having considered the same, reports thereon pursuant
to H. Res. 803 as follows and recommends that the House exercise
its constitutional power to impeach Richard M. Nixon, President of
the United States, and that articles of impeachment be exhibited to
the Senate as follows:
Resolution
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
[[Page 2185]]
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 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 per
[[Page 2186]]
sonnel of the Committee for the Reelection 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 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
[[Page 2187]]
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 Offlce 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.
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.\(10)\
---------------------------------------------------------------------------
10. H. Rept. No. 93-1305, pp. 1-4, 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.
Pursuant to H. Con. Res. 566, 93d Cong. 2d Sess., 10,000
additional copies of the report were printed for the use of the
Committee on the Judiciary.
---------------------------------------------------------------------------
[[Page 2188]]
The report was referred by the Speaker to the House Calendar and
ordered printed.
The Committee did not report a separate resolution and articles of
impeachment for action by the House, the President having resigned.
Thomas P. O'Neill, Jr., of Massachusetts, the Majority Leader,
moved to suspend the rules and adopt House Resolution 1333, accepting
the report of the Committee on the Judiciary and providing for its
printing, and the House adopted the resolution without debate--yeas
412, nays 3, not voting 19:
H. Res. 1333
Resolved, That the House of Representatives:
(1) takes notice that
(a) the House of Representatives, by House Resolution 803,
approved February 6, 1974, authorized and directed the Committee on
the Judiciary to investigate fully and completely whether
sufficient grounds existed for the House of Representatives to
exercise its constitutional power to impeach Richard M. Nixon,
President of the United States of America; and
(b) the Committee on the Judiciary, after conducting a full and
complete investigation pursuant to House Resolution 803, voted on
July 27, 29, and 30, 1974 to recommend Articles of impeachment
against Richard M. Nixon, President of the United States of
America; and
(c) Richard M. Nixon on August 9, 1974 resigned the Office of
President of the United States of America;
(2) accepts the report submitted by the Committee on the
Judiciary pursuant to House Resolution 803 (H. Rept. 93-1305) and
authorizes and directs that the said report, together with
supplemental, additional, separate, dissenting, minority,
individual and concurring views, be printed in full in the
Congressional Record and as a House Document; and
(3) commends the chairman and other members of the Committee on
the Judiciary for their conscientious and capable efforts in
carrying out the Committee's responsibilities under House
Resolution 803.
Following the adoption of House Resolution 1333, Mr. O'Neill asked
unanimous consent that all Members have five legislative days in which
to revise and extend their remarks on House Resolution 1333, but Mr.
Robert E. Bauman, of Maryland, objected to the request on the ground
that no debate had been had on the report.(11)
---------------------------------------------------------------------------
11. 120 Cong. Rec. 29361, 29362, 93d Cong. 2d Sess. The Majority Leader
had announced on the previous day, Aug. 19, his intention to
offer the resolution, and had read the text of the resolution
on the floor of the House. 120 Cong. Rec. 29005, 29006, 93d
Cong. 2d Sess.
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[[Page 2189]]
Neither the House nor the Committee on the Judiciary took any
further action on the matter of the impeachment of former President
Nixon in the 93d Congress.
Impeachment Inquiry Evidence Subpoenaed by Courts
Sec. 15.14 The Speaker laid before the House subpoenas duces tecum from
a federal district court in a criminal case, addressed to the
Chairman of the Committee on the Judiciary and to the chief counsel
of its subcommittee on impeachment. The subpoenas sought evidence
gathered by the committee in its impeachment inquiry into the
conduct of President Richard M. Nixon. The House adopted a
resolution granting such limited access as would not violate the
privileges of the House or its sole power of impeachment under the
U.S. Constitution.
On Aug. 22, 1974,(12) Speaker Carl Albert, of Oklahoma,
laid before the House a communication and subpoena from the Chairman of
the Committee on the Judiciary as follows:
---------------------------------------------------------------------------
12. 120 Cong. Rec. 30025, 30026, 93d Cong. 2d Sess.
---------------------------------------------------------------------------
Communication From the Chairman of the Committee on the Judiciary
The Speaker laid before the House the following communication
and subpoena from the chairman of the Committee on the Judiciary,
which was read and ordered to be printed:
Washington, D.C.,
August 21, 1974.
Hon. Carl Albert,
Speaker, House of Representatives,
Washington, D.C.
Dear Mr. Speaker: On July 29, 1974 two subpoenas duces
tecum issued by the United States District Court for the
District of Columbia, one naming myself and one naming Mr. John
Doar, an employee of the Committee, were served commanding
appearance in the United States District Court on September 9,
1974 and the production of all tapes and other electronic and/
or mechanical recordings or reproductions, and any memoranda,
papers, transcripts, and other writings, relating to all
nonpublic statements, testimony and interviews of witnesses
relating to the matters being investigated pursuant to House
Resolution No. 803.
The subpoenas were issued upon application of defendant H.
R. Haldeman in the case of U. S. v John Mitchell, et al.
The subpoenas in question are forwarded herewith and the
matter presented for such action as the House deems
appropriate.
Sincerely,
Peter W. Rodino, Jr.,
Chairman.
[[Page 2190]]
----
[Subpoena]
[U.S. District Court for the District of Columbia, No. 74-110]
United States of America v. John N. Mitchell, et al.,
Defendants
To: Congressman Peter W. Rodino, United States House of
Representatives, Washington, D.C.
You are hereby commanded to appear in the United States
District Court for the District of Columbia at Constitution
Avenue and John Marshall Place, N.W. in the city of Washington
on the 9th day of September 1974 at 10 o'clock A.M. to testify
in the case of United States v. John N. Mitchell, et al., and
bring with you all tapes and other electronic and/or mechanical
recordings or reproductions, and any memoranda, papers,
transcripts, and other writings, relating to:
All non-public statements and testimony of witnesses
relating to the matters being investigated pursuant to House
Resolution No. 803.
This subpoena is issued upon application of the Defendant,
H. R. Haldeman, 1974.
Frank H. Struth,
Attorney for Defendant,
H. R. Haldeman.
James F. Davey,
Clerk.
By Robert L. Line,
Deputy Clerk.
The following resolution, in response to such subpoenas, was
offered by Mr. Thomas P. O'Neill, Jr., of Massachusetts:
Concerning Subpoenas Issued in United States Versus John N.
Mitchell, et al.
Mr. O'Neill: Mr. Speaker, I call up House Resolution 1341 and
ask for its immediate consideration.
The Clerk read the resolution, as follows:
H. Res. 1341
Whereas in the case of United States of America against
John N. Mitchell et al. (Criminal Case No. 74-110), pending in
the United States District Court for the District of Columbia,
subpoenas duces tecum were issued by the said court and
addressed to Representative Peter W. Rodino, United States
House of Representatives, and to John Doar, Chief Counsel,
House Judicial Subcommittee on Impeachment, House of
Representatives, directing them to appear as witnesses before
said court at 10:00 antemeridian on the 9th day of September,
1974, and to bring with them certain and sundry papers in the
possession and under the control of the House of
Representatives: Therefore be it
Resolved, That by the privileges of this House no evidence
of a documentary character under the control and in the
possession of the House of Representatives can, by the mandate
of process of the ordinary courts of justice, be taken from
such control or possession but by its permission; be it further
Resolved, That the House of Representatives under Article
I, Section 2 of the Constitution has the sole power of
impeachment and has the sole power to investigate and gather
evidence to determine whether the House of Representatives
shall exercise its constitutional power of impeachment; be it
further
Resolved, That when it appears by the order of the court or
of the judge thereof, or of any legal officer charged with the
administration of the orders of such court or judge, that
documentary evidence in the possession and under the control of
the House is needful for use in any court of justice, or before
any judge or such legal officer, for the pro
[[Page 2191]]
motion of justice, this House will take such action thereon as
will promote the ends of justice consistently with the
privileges and rights of this House; he it further
Resolved, That when said court determines upon the
materiality and the relevancy of the papers and documents
called for in the subpoenas duces tecum, then the said court,
through any of its officers or agents, have full permission to
attend with all proper parties to the proceeding and then
always at any place under the orders and control of this House
and take copies of all memoranda and notes, in the files of the
Committee on the Judiciary, of interviews with those persons
who subsequently appeared as witnesses in the proceedings
before the full Committee pursuant to House Resolution 803,
such limited access in this instance not being an interference
with the Constitutional impeachment power of the House, and the
Clerk of the House is authorized to supply certified copies of
such documents and papers in possession or control of the House
of Representatives that the court has found to be material and
relevant (except that under no circumstances shall any minutes
or transcripts of executive sessions, or any evidence of
witnesses in respect thereto, be disclosed or copied) and which
the court or other proper officer thereof shall desire, so as,
however, the possession of said papers, documents, and records
by the House of Representatives shall not be disturbed, or the
same shall not be removed from their place of file or custody
under any Members, officer, or employee of the House of
Representatives, and be it further
Resolved, That a copy of these resolutions be transmitted
to the said court as a respectful answer to the subpoenas
aforementioned.
The House adopted the resolution.
Pardon of the Former President
Sec. 15.15 The House having discontinued impeachment proceedings
against former President Richard M. Nixon following his
resignation, President Gerald R. Ford granted a full pardon to the
former President for all offenses against the United States
committed by him during his terms in office.
On Sept. 8, 1974, President Ford issued Proclamation 4311, granting
a pardon to Richard Nixon:
Granting Pardon to Richard Nixon by the President of the United
States of America
a proclamation
Richard Nixon became the thirty-seventh President of the United
States on January 20, 1969 and was reelected in 1972 for a second
term by the electors of forty-nine of the fifty states. His term in
office continued until his resignation on August 9, 1974.
Pursuant to resolutions of the House of Representatives, its
Committee on the Judiciary conducted an inquiry and investigation
on the impeachment of the President extending over more than eight
months. The hearings of the Committee and its deliberations, which
received wide national publicity over television, radio, and in
printed media, resulted in votes adverse to Richard
[[Page 2192]]
Nixon on recommended Articles of Impeachment.
As a result of certain acts or omissions occurring before his
resignation from the Office of President, Richard Nixon has become
liable to possible indictment and trial for offenses against the
United States. Whether or not he shall be so prosecuted depends on
findings of the appropriate grand jury and on the discretion of the
authorized prosecutor. Should an indictment ensue, the accused
shall then be entitled to a fair trial by an impartial jury, as
guaranteed to every individual by the Constitution.
It is believed that a trial of Richard Nixon, if it became
necessary, could not fairly begin until a year or more has elapsed.
In the meantime, the tranquility to which this nation has been
restored by the events of recent weeks could be irreparably lost by
the prospects of bringing to trial a former President of the United
States. The prospects of such trial will cause prolonged and
divisive debate over the propriety of exposing to further
punishment and degradation a man who has already paid the
unprecedented penalty of relinquishing the highest elective office
of the United States.
Now, therefore, I, Gerald R. Ford, President of the United
States, pursuant to the pardon power conferred upon me by Article
II, Section 2, of the Constitution, have granted and by these
presents do grant a full, free, and absolute pardon unto Richard
Nixon for all offenses against the United States which he, Richard
Nixon, has committed or may have committed or taken part in during
the period from January 20, 1969 through August 9, 1974.
In witness whereof, I have hereunto set my hand this eighth day
of September, in the year of our Lord nineteen hundred and seventy-
four, and of the Independence of the United States of America the
one hundred and ninety-ninth.(13)
---------------------------------------------------------------------------
13. 39 Fed. Reg. 32601, 32602 (Sept. 10, 1974).
---------------------------------------------------------------------------
Some Members of the House suggested in debate that impeachment
proceedings be resumed, notwithstanding the resignation of the
President; for example on Sept. 11, 1974, Mr. Ralph H. Metcalfe, of
Illinois, declared:
On August 20, 1974, Mr. Speaker, the House adopted House
Resolution 1033. This resolution took notice of the fact that on
February 6, 1974, the House, by adoption of House Resolution 803,
authorized and directed the Judiciary Committee ``to investigate
fully and completely whether sufficient grounds existed for the
House of Representatives to exercise its constitutional power to
impeach Richard M. Nixon''; further, House Resolution 1033 noted
that the Committee on the Judiciary recommended articles of
impeachment; that Richard M. Nixon resigned the office of President
of the United States; and further, this resolution accepted the
report submitted by the Committee on the Judiciary pursuant to
House Resolution 803.
The articles of impeachment voted out by the full committee,
Mr. Speaker, were never debated and voted upon by the full House.
At that time there was the strong possibility that the former
President would be indicted, and that
[[Page 2193]]
the President would be held accountable for his actions in a court
of law. President Ford's action on September 8, 1974, has
effectively nullified that course of action. . . .
Is there a precedent for the impeachment of a civil officer
after his resignation? I think there is.
In Federalist Paper 65, Hamilton states:
The Model from which the idea of this institution
(Impeachment) has been borrowed pointed out that course to the
convention.
The model that Hamilton refers to is clearly that of Great
Britain. The course of action that Hamilton refers to is
impeachment by the House of Commons and trial before the Lords.
And, consequently, it is to the English precedent that we must
first turn. Contemporaneous with the drafting and adopting of our
own Constitution was the impeachment trial of Warren Hastings in
Great Britain. Hastings resigned the governor-generalship of India
before he left India in February 1785, 2 years before articles of
impeachment were voted by the House of Commons for his conduct in
India. The impeachment of Hastings was certainly a fact known to
the drafters of the Constitution.
George Mason, in discussing the impeachment provision on
September 8, 1787, in the Constitutional Convention, makes a clear
reference to the trial of Hastings. Further, Prof. Arthur Bestor
states that--
American constitutional documents adopted prior to the
Federal Convention of 1787 . . . refute the notion that
officials no longer in office were supposed by the framers to
be beyond the reach of impeachment.
Bestor specifically cites the constitutions of two States-
Virginia and Delaware-which were adopted in 1776.
Bestor also cites a statement of John Quincy Adams, made in
1846 after he left the White House, made on the Floor of the House:
I hold myself, so long as I have the breath of life in my
body, amenable to impeachment by this House for everything I
did during the time I held any public office.
Another historical precedent is that of William W. Belknap,
Secretary of War in President Grant's cabinet. As Bestor summarizes
it:
Belknap resigned at 10:20 a.m. on the 2nd of March (1876),
a few hours before the House of Representatives voted to
impeach him, the latter decision being officially notified to
the Senate at 12:55 p.m. on the 3rd . . . on May 27, 1876, in a
roll-call vote of 37 to 29 (with seven not voting) the Senate
ruled that Belknap was amenable to trial by impeachment for
acts done as Secretary of War, notwithstanding his resignation
of said office before he was impeached.
Mr. Speaker, there is precedent for the impeachment of a civil
officer after he has resigned.
Another point to make, Mr. Speaker, is that article I of
section 3 of the Constitution states, inter alia:
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.
There is a twofold penalty provided for in this article and
removal from office is but one part of the penalty.
Mr. Speaker, the former President has not been held accountable
for his
[[Page 2194]]
actions. He has avoided accountability through the impeachment
process by resigning, and he has avoided trial on charges of
alleged criminal misconduct as contained in the first article of
impeachment through the Presidential pardon of his successor.
Mr. Speaker, history can conclude that the Congress of the
United States was confronted with a series of actions by the Chief
Executive, actions which constituted a serious danger to our
political processes and that we did nothing. The proper forum, and
now the only forum, for a debate and a vote on these most serious
charges is here in the House. We have no other recourse but to
proceed if we are to assure that all future Presidents will be held
accountable for their actions whether such future Chief Executives
resign or not.
Mr. Speaker, I urge that the impeachment report of the House
Judiciary Committee be debated and that we proceed to vote on the
articles of impeachment.(14~)
---------------------------------------------------------------------------
14. 120 Cong. Rec. 30695, 30696, 93d Cong. 2d Sess. (footnotes
omitted). For a memo inserted in the Record by Senate Majority
Leader Michael J. Mansfield (Mont.) on the power of Congress to
impeach and try a President after he has resigned, see 120
Cong. Rec. 31346-48, 93d Cong. 2d Sess., Sept. 17, 1974.
---------------------------------------------------------------------------
On Sept. 12, 1974, Ms. Bella S. Abzug, of New York, introduced a
resolution of inquiry related to the pardon: (15)
---------------------------------------------------------------------------
15. 120 Cong. Rec. 30964, 30965, 93d Cong. 2d Sess.
---------------------------------------------------------------------------
H. Res. 1363
Resolved, That the President of the United States is hereby
requested to furnish the House, within ten days, with the following
information:
1. What are the specific offenses against the United States for
which a pardon was granted to Richard M. Nixon on September 8,
1974?
2. What are the certain acts or omissions occurring before his
resignation from the office of President for which Richard Nixon
had become liable to possible indictment and trial for offenses
against the United States, as stated in your Proclamation of
Pardon?
3. Did you or your representatives have specific knowledge of
any formal criminal charges pending against Richard M. Nixon prior
to issuance of the pardon? If so, what were these charges?
4. Did Alexander Haig refer to or discuss a pardon with Richard
M. Nixon or representatives of Mr. Nixon at any time during the
week of August 4, 1974 or at any subsequent time? If so, what
promises were made or conditions set for a pardon, if any? If so,
were tapes or transcriptions of any kind made of these
conversations or were any notes taken? If so, please provide such
tapes, transcriptions or notes.
5. When was a pardon for Richard M. Nixon first referred to or
discussed with Mr. Nixon, or representatives of Mr. Nixon, by you
or your representatives or aides, including the period when you
were a member of Congress or Vice President?
6. Who participated in these and subsequent discussions or
negotiations with Richard M. Nixon or his representatives regarding
a pardon, and at what specific times and locations?
7. Did you consult with Attorney General William Saxbe or
Special
[[Page 2195]]
Prosecutor Leon Jaworski before making the decision to pardon
Richard M. Nixon and, if so, what facts and legal authorities did
they give to you?
8. Did you consult with the Vice Presidential nominee, Nelson
Rockefeller, before making the decision to pardon Richard M. Nixon
and, if so, what facts and legal authorities did he give to you?
9. Did you consult with any other attorneys or professors of
law before making the decision to pardon Richard M. Nixon, and, if
so, what facts or legal authorities did they give to you?
10. Did you or your representatives ask Richard M. Nixon to
make a confession or statement of criminal guilt, and, if so, what
language was suggested or requested by you, your representatives,
Mr. Nixon, or his representatives? Was any statement of any kind
requested from Mr. Nixon in exchange for the pardon, and, if so,
please provide the suggested or requested language.
11. Was the statement issued by Richard M. Nixon immediately
subsequent to announcement of the pardon made known to you or your
representatives prior to its announcement, and was it approved by
you or your representatives?
12. Did you receive any report from a psychiatrist or other
physician stating that Richard M. Nixon was in other than good
health? If so, please provide such reports
The resolution of inquiry was referred to the Committee on the
Judiciary. A subcommittee thereof held hearings on the matter of the
pardon of former President Nixon, and President Ford appeared in person
and testified before such subcommittee on Oct. 17, 1974.
CHAPTER 14
Impeachment Powers
D. HISTORY OF PROCEEDINGS
Sec. 16. Impeachment of Judge English
Committee Report on Resolution and Articles of Impeachment
Sec. 16.1 In the 69th Congress, the Committee on the Judiciary reported
a resolution of impeachment accompanied with five articles of
impeachment against Judge George English, which report was referred
to the House Calendar, ordered printed, and printed in full in the
Congressional Record.
On Mar. 25, 1926, Mr. George S. Graham, of Pennsylvania, offered a
privileged report from the Committee on the Judiciary in the
impeachment case against George English, U.S. District Judge for the
Eastern District of Illinois. Speaker Nicholas Longworth, of Ohio,
ordered the report printed and referred to the House
Calendar.(16) By unanimous consent, the entire report (H.
Rept. No. 653) was printed in the Congressional Record.(17)
---------------------------------------------------------------------------
16. 67 Cong. Rec. 6280, 69th Cong. 1st Sess.
17. Id. at pp. 6280-87.
---------------------------------------------------------------------------
[[Page 2196]]
The committee's recommendation and resolution read as follows:
Recommendation
Your committee reports herewith the accompanying resolution and
articles of impeachment against Judge George W. English, and
recommends that they be adopted by the House and that they be
presented to the Senate with a demand for the conviction and
removal from office of said George W. English, United States
district judge for the eastern district of Illinois.
Resolution
Resolved, That George W. English, United States district judge
for the eastern district of Illinois, be impeached of misdemeanors
in office; and that the evidence heretofore taken by the special
committee of the House of Representatives under House Joint
Resolution 347, sustains five articles of impeachment, which are
hereinafter set out; and that 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 George W.
English, who was appointed, duly qualified, and commissioned to
serve during good behavior in office, as United States District
Judge for the Eastern District of Illinois, on May 3, 1918
(18)
---------------------------------------------------------------------------
18. For a more comprehensive discussion of the impeachment proceedings
against Judge English, see 6 Cannon's Precedents Sec. Sec. 544-
547.
---------------------------------------------------------------------------
House Consideration and Debate
Sec. 16.2 The resolution and articles of impeachment in the George
English impeachment were considered in the House pursuant to
unanimous-consent agreements fixing the control and distribution of
debate.
On Mar. 30, 1926, Mr. George S. Graham, of Pennsylvania, called up
for consideration in the House the resolution impeaching Judge English.
By unanimous consent, the House agreed to procedures for the control
and distribution of debate, thereby allowing every Member who wished to
speak to do so:
The Speaker: (19~) The gentleman from Pennsylvania
[Mr. Graham] asks unanimous consent that during today the debate be
equally divided between the affirmative and the negative, and that
he control one-half of the time and the other half be controlled by
the gentleman from Alabama [Mr. Bowling].(20~)
---------------------------------------------------------------------------
19. Nicholas Longworth (Ohio).
20. 67 Cong. Rec. 6585-90, 69th Cong. 1st Sess.
---------------------------------------------------------------------------
On Mar. 31, the second day of debate on the resolution, debate
proceeded under a unanimous-consent agreement that debate
[[Page 2197]]
continue to be equally divided between Mr. Graham and Mr. William B.
Bowling.(1) Mr. Graham obtained unanimous consent that
debate be concluded in 7\1/2\ hours, such time to be equally divided as
before.(2)
---------------------------------------------------------------------------
1. Id. at p. 6645.
2. Id. at pp. 6662, 6663.
---------------------------------------------------------------------------
Voting; Motions
Sec. 16.3 The previous question having been ordered on the resolution
of impeachment against Judge George English, a motion to recommit
with instructions was offered and rejected, and a separate vote was
demanded on the first article, followed by a vote on the
resolution.
On Apr. 1, 1926, Mr. George S. Graham, of Pennsylvania, moved the
previous question and it was ordered on the resolution impeaching Judge
English. A motion to recommit the resolution with instructions was
offered, the instructions directing the Committee on the Judiciary to
take further testimony. The motion was rejected on a division vote-yeas
101, noes 260.(3)
---------------------------------------------------------------------------
3. 67 Cong. Rec. 6733, 6734, 69th Cong. 1st Sess.
---------------------------------------------------------------------------
Pending the motion to recommit, Mr. Tom T. Connally, of Texas,
stated a parliamentary inquiry:
Under the rules of the House, would not this resolution be
subject to consideration under the five-minute rule for amendment?
Speaker Nicholas Longworth, of Ohio, responded, ``The Chair thinks
not.'' (4)
---------------------------------------------------------------------------
4. Id. at p. 6733.
---------------------------------------------------------------------------
Following the rejection of the motion to recommit, the Speaker put
the question on the resolution of impeachment and stated that it was
agreed to. Mr. William B. Bowling, of Alabama, objected and stated that
his attention had been diverted and that he had meant to ask for a
separate vote on the first article of impeachment. The Speaker stated
that the demand for a separate vote then came too late, since the
demand was in order when the question recurred on the resolution.
Because of the apparent confusion in the Chamber, the Speaker allowed
Mr. Bowling to ask for a separate vote (thereby vacating, by unanimous
consent, the proceedings whereby the resolution had been agreed to).
The Speaker put the question on Mr. Bowling's motion to strike out
Article I, which motion was rejected. The vote then recurred on the
resolution, which was
[[Page 2198]]
adopted by the yeas and nays--yeas 306, nays 62.(5)
---------------------------------------------------------------------------
5. Id. at pp. 6734, 6735.
---------------------------------------------------------------------------
The Speaker had previously stated, in response to a parliamentary
inquiry by Mr. Charles R. Crisp, of Georgia, that pursuant to Rule XVI
clause 6, a separate vote could be demanded on any substantive
proposition contained in the resolution of impeachment.(6)
---------------------------------------------------------------------------
6. Id. at pp. 6589, 6590, see House Rules and Manual Sec. 791 (1973).
---------------------------------------------------------------------------
Discontinuance of Proceedings
Sec. 16.4 Judge George English having resigned from the bench, the
House adopted a resolution instructing the managers to advise the
Senate that the House declined to further prosecute charges of
impeachment.
On Dec. 11, 1926, the House adopted the following resolution in
relation to the impeachment proceedings against Judge English:
Resolved, That the managers on the part of the House of
Representatives in the impeachment proceedings now pending in the
Senate against George W. English, late judge of the District Court
of the United States for the Eastern District of Illinois, be
instructed to appear before the Senate, sitting as a court of
impeachment in said cause, and advise the Senate that in
consideration of the fact that said George W. English is no longer
a civil officer of the United States, having ceased to be a
district judge of the United States for the eastern district of
Illinois, the House of Representatives does not desire further to
urge the articles of impeachment heretofore filed in the Senate
against said George W. English.(7)
On Dec. 13, 1926, the Senate adjourned sine die as a court of
impeachment after agreeing to the following order, which was messaged
to the House:
Ordered, That the impeachment proceedings against George W.
English, late judge of the District Court of the United States for
the Eastern District of Illinois, be and the same are, duly
dismissed.(8)
---------------------------------------------------------------------------
7. 68 Cong. Rec. 297, 69th Cong. 2d Sess.
8. Id. at p. 344.
---------------------------------------------------------------------------
CHAPTER 14
Impeachment Powers
D. HISTORY OF PROCEEDINGS
Sec. 17. Impeachment of Judge Louderback
Consideration of Committee Report
Sec. 17.1 The House considered the matter of the impeachment of U.S.
District Judge Harold Louderback under a unanimous-consent
agreement which allowed the minority of the Committee on
[[Page 2199]]
the Judiciary to offer, to the reported resolution recommending
abatement of proceedings, a substitute amendment impeaching Judge
Louderback and setting forth articles of impeachment.
On Feb. 24, 1933, Speaker John N. Garner, of Texas, recognized Mr.
Thomas D. McKeown, of Oklahoma, to call up a resolution, reported by
the Committee on the Judiciary, recommending that charges against
Harold Louderback, U.S. District Judge for the Northern District of
California, did not merit impeachment (H. Res. 387; H. Rept. No. 2065).
The minority report dissented from that recommendation and proposed a
resolution and articles of impeachment.(9)
---------------------------------------------------------------------------
9. 76 Cong. Rec. 4913, 4914, 72d Cong. 2d Sess. See, generally, 6
Cannon's Precedents Sec. 514.
---------------------------------------------------------------------------
Mr. Earl C. Michener, of Michigan, commented on the fact that the
report of the committee recommended censure of the judge, rather than
impeachment:
Mr. Michener. Mr. Speaker, in answer to the gentleman from
Alabama, let me make this observation. The purpose of referring a
matter of this kind to the Committee on the Judiciary is to
determine whether or not in the opinion of the Committee on the
Judiciary there is sufficient evidence to warrant impeachment by
the House. If the Committee on the Judiciary finds those facts
exist, then the Committee on the Judiciary makes a report to the
House recommending impeachment, and that undoubtedly is privileged.
However, a custom has grown up recently in the Committee on the
Judiciary of including in the report a censure. I do not believe
that the constitutional power of impeachment includes censure. We
have but one duty, and that is to impeach or not to impeach. Today
we find a committee report censuring the judge. The resolution
before the House presented by a majority of the committee is
against impeachment. The minority members have filed a minority
report, recommending impeachment. I am making this observation with
the hope that we may get back to the constitutional power of
impeachment.(10)
---------------------------------------------------------------------------
10. Id. at p. 4914. The committee report stated ``the committee
censures the judge for conduct prejudicial to the dignity of
the judiciary in appointing incompetent receivers . . . for
allowing fees that seem excessive, and for a high degree of
indifference to the interest of litigants in receiverships.''
H. Rept. No. 2065, Committee on the Judiciary, 72d Cong. 2d
Sess.
---------------------------------------------------------------------------
Discussion ensued as to controlling debate on the resolution so as
to effectuate the understanding agreed on in committee that the
previous question not be ordered until the minority had an opportunity
to offer an amendment in the nature of a substitute for the resolution.
The House agreed to the following unanimous-consent request
[[Page 2200]]
propounded by Mr. McKeown (and suggested by Speaker Garner):
The Speaker: Under the rules of the House the gentleman from
Oklahoma [Mr. McKeown] has one hour in which to discuss this
resolution, unless some other arrangement is made.
Mr. McKeown: Mr. Speaker, I ask unanimous consent that two
hours' time be granted on a side. One-half of mine I shall yield to
the gentleman from Missouri [Mr. Dyer]. At the end of the two
hours' time, that the previous question shall be considered as
ordered.
Mr. [Fiorello H.] Laguardia [of New York]: Mr. Speaker, will
the gentleman yield?
Mr. McKeown: Yes.
Mr. LaGuardia: The gentleman will remember that the committee
unanimously voted that the previous question should not be
considered as ordered until the majority had opportunity to offer
the articles of impeachment.
Mr. McKeown: I yield now to the gentleman for that purpose.
The Speaker: If gentlemen will permit, let the Chair make a
suggestion. The Chair understands that the committee has something
of an understanding that there would be an opportunity to vote upon
the substitute for the majority resolution. Is that correct?
Mr. McKeown: Yes.
The Speaker: Then the Chair suggests to the gentleman from
Oklahoma that he ask unanimous consent that general debate be
limited to two hours, one-half to be controlled by himself, and
one-half to be controlled by the gentleman from New York.
Mr. McKeown: I want one-half of my time to be yielded to the
gentleman from Missouri, and that the other hour shall be
controlled by the gentleman from Texas.
The Speaker: Then the Chair suggests that the gentleman from
Oklahoma control all of the time.
Mr. [Hatton W.] Sumners [of Texas]: Mr. Speaker, I am quite
willing that the gentleman from Oklahoma may control the time,
because I am sure that he will make a fair distribution of it.
Mr. McKeown: Mr. Speaker, I ask unanimous consent that the time
for debate be limited to two hours to be controlled by myself, that
during that time the gentleman from New York [Mr. La Guardia] be
permitted to offer a substitute for the resolution and at the
conclusion of the time for debate the previous question be
considered as ordered.
The Speaker: Then the Chair submits this: The gentleman from
Oklahoma asks unanimous consent that debate be limited to two
hours, to be controlled by the gentleman from Oklahoma, that at the
end of that time the previous question shall be considered as
ordered, with the privilege, however, of a substitute resolution
being offered, to be included in the previous question. Is there
objection?
Mr. [William B.] Bankhead [of Alabama]: Mr. Speaker, reserving
the right to object for the purpose of getting the parliamentary
situation clarified before we get to the merits, is there any
question in the mind of the Speaker, if it is fair to submit such a
suggestion, as to whether or not the substitute providing for
absolute im
[[Page 2201]]
peachment would be in order as a substitute for this report?
The Speaker: That is the understanding of the Chair, that the
unanimous-consent agreement is, that the gentleman from New York
[Mr. LaGuardia] may offer a substitute, the previous question to be
considered as ordered on the substitute and the original resolution
at the expiration of the two hours. Is there objection?
There was no objection.(11)
---------------------------------------------------------------------------
11. Id. For more comprehensive treatment of impeachment proceedings
against Judge Louderback, see 6 Cannon's Precedents
Sec. Sec. 513-524.
---------------------------------------------------------------------------
Voting
Sec. 17.2 At the conclusion of debate on the resolution and substitute
therefor, in the Harold Louderback impeachment proceedings, a yea
and nay vote was taken on the substitute, which was agreed to.
On Feb. 24, 1933, the House had under consideration a resolution
abating impeachment proceedings against Judge Louderback. A unanimous-
consent agreement was adopted, as follows:
The Speaker: (12) . . . The gentleman from Oklahoma
(Mr. Thomas D. McKeown] asks unanimous consent that debate be
limited to two hours . . . that at the end of that time the
previous question shall be considered as ordered, with the
privilege, however, of a substitute resolution being offered, to be
included in the previous question. . . .
There was no objection.(13)
---------------------------------------------------------------------------
12. John N. Garner (Tex.).
13. 76 Cong. Rec. 4914, 72d Cong. 2d Sess.
---------------------------------------------------------------------------
At the conclusion of the two hours' debate on the resolution
abating the impeachment proceedings and on the amendment in the nature
of a substitute, the Speaker put the question on the substitute and
answered a parliamentary inquiry as to the effect of the vote:
The Speaker: The question is on the substitute of the gentleman
from New York [Mr. LaGuardia].
The question was taken, and the Chair announced that he was in
doubt.
Mr. [Thomas D.] McKeown of Oklahoma]: Mr. Speaker, a division.
Mr. [Carl G.] Bachmann [of West Virginia]: Mr. Speaker, I ask
for the yeas and nays.
The yeas and nays were ordered.
Mr. [Earl C.] Michener [of Michigan]: Mr. Speaker, a
parliamentary inquiry.
The Speaker: The gentleman will state it.
Mr. Michener: As I understand, a vote of ``aye'' is a vote for
impeachment and a vote of ``no'' is against impeachment; is that
correct?
The Speaker: An aye vote on the substitute of the gentleman
from New York is a vote to impeach and a ``no'' vote is a vote
against impeachment.
[[Page 2202]]
The Clerk will call the roll.
The question was taken; and there were--yeas 183, nays 142,
answered ``present'' 4, not voting 97.(14)
---------------------------------------------------------------------------
14. Id. at p. 4925. The resolution, as amended by the substitute, was
then agreed to. H. Jour. 306, 72d Cong. 2d Sess., Feb. 24,
1933.
---------------------------------------------------------------------------
Election of Managers; Continuation of Proceedings Into New Congress
Sec. 17.3 The House having adopted articles of impeachment against
Judge Harold Louderback, the House adopted resolutions appointing
managers and notifying the Senate of its actions, but did not
resolve the question whether such managers could, without further
authority, continue to represent the House in the succeeding
Congress.
The House having adopted the articles of impeachment against Judge
Louderback on Feb. 24, 1933, Chairman Hatton W. Sumners, of Texas, of
the Committee on the Judiciary, called up on Feb. 27, 1933, resolutions
appointing managers and notifying the Senate of the action of the
House. Discussion ensued as to the power of the managers beyond the
termination of the Congress (the Congress was to expire on Mar. 3):
Impeachment of Judge Harold Louderback
Mr. Sumners of Texas: Mr. Speaker, I offer the following
privileged report from the Committee on the Judiciary, which I send
to the desk and ask to have read, and ask its immediate adoption.
The Clerk read as follows:
House Resolution 402
Resolved, That Hatton W. Sumners, Gordon Browning, Malcolm
C. Tarver, Fiorello H. LaGuardia, and Charles I. Sparks,
Members of this House, be, and they are hereby, appointed
managers to conduct the impeachment against Harold Louderback,
United States district judge for the northern district of
California; and said managers are hereby instructed to appear
before the Senate of the United States and at the bar thereof
in the name of the House of Representatives and of all the
people of the United States to impeach the said Harold
Louderback of misdemeanors in office and to exhibit to the
Senate of the United States the articles of impeachment against
said judge which have been agreed upon by the House; and that
the said managers do demand the Senate take order for the
appearance of said Harold Louderback to answer said
impeachment, and demand his impeachment, conviction, and
removal from office.
The Speaker Pro Tempore: The question is on agreeing to the
resolution.
Mr. [Thomas L.] Blanton [of Texas]: Mr. Speaker, will the
gentleman yield?
Mr. Sumners of Texas: Yes.
Mr. Blanton: Is it not usual in such cases to provide for the
managers on the part of the House to interrogate witnesses?
[[Page 2203]]
Mr. Sumners of Texas: This is the usual resolution which is
adopted.
Mr. Blanton: But this resolution does embrace that power and
authority?
Mr. Sumners of Texas: Yes. It is the usual resolution.
Mr. [William H.] Stafford [of Wisconsin]: Mr. Speaker, will the
gentleman yield?
Mr. Sumners of Texas: Yes.
Mr. Stafford: This House, which is about to expire, has leveled
impeachment articles against a sitting judge. It is impracticable
to have the trial of that judge in the expiring days of the
Congress. Has the gentleman considered what the procedure will be
in respect to having the trial before the Senate in the next
Congress?
Mr. Sumners of Texas: The Committee on the Judiciary today gave
full consideration to all of the angles that suggested themselves
to the committee for consideration, and this arrangement seems to
be more in line with the precedents and to be most definitely
suggested by the situation in which we find ourselves.
Mr. Stafford: Then, I assume, from the gentleman's statement,
that it is the purpose that the gentlemen named in the resolution
shall represent the House in the next Congress?
Mr. Sumners of Texas: No; I believe not. I think it is pretty
well agreed that the next Congress will probably have to appoint
new managers before they may proceed. I think gentlemen on each
side agree substantially with that statement as to what probably
would be required.
Mr. Stafford: There is nothing in the Constitution that would
prevent Members of this Congress from serving as representatives of
this House before the Senate in the next Congress, even though they
be not Members of that Congress.
Mr. Sumners of Texas: I hope my friend will excuse me for not
taking the time of the House to discuss that feature of the matter.
Mr. Stafford: It is quite an important subject.
Mr. Sumners of Texas: It is an unsettled subject, and one we
have tried to avoid.
The Speaker Pro Tempore: The question is on agreeing to the
resolution.
The resolution was agreed to.
A motion to reconsider the vote by which the resolution was
agreed to was laid on the table.
Mr. Sumners of Texas: Mr. Speaker, I desire to present a
privileged resolution.
The Clerk read as follows:
House Resolution 403
Resolved, That a message be sent to the Senate to inform
them that this House has impeached Harold Louderback, United
States district judge for the Northern District of California,
for misdemeanors in office, and that the House has adopted
articles of impeachment against said Harold Louderback, judge
as aforesaid, which the managers on the part of the House have
been directed to carry to the Senate, and that Hatton W.
Sumners, Gordon Browning, Malcolm C. Tarver, Fiorello H.
LaGuardia, and Charles I. Sparks, Members of this House, have
been appointed such managers.
The resolution was agreed to.
[[Page 2204]]
A motion to reconsider the vote by which the resolution was
agreed to was laid on the table.(15)
---------------------------------------------------------------------------
15. 76 Cong. Rec. 5177, 5178, 72d Cong. 2d Sess.
---------------------------------------------------------------------------
Parliamentarian's Note: In the succeeding Congress, an issue arose
as to the power of managers elected in one Congress to continue their
functions in a new Congress. On Mar. 13, 1933, the 73d Congress having
convened, the Senate convened as a Court of Impeachment and received
the managers on the part of the House, who were those Members re-
elected to the House who had been appointed as managers in the 72d
Congress (two of the five managers were not reelected to the House). On
Mar. 22, Mr. Sumners called up a resolution appointing two new Members,
and reappointing the three re-elected Members, as managers on the part
of the House to conduct the impeachment trial of Judge Louderback.
Nevertheless, Mr. Sumners asserted that the managers elected in one
Congress had the capacity to continue in that function in a new
Congress without reappointment.(16)
---------------------------------------------------------------------------
16. See 6 Cannon's Precedents Sec. Sec. 516, 517.
---------------------------------------------------------------------------
In arguing that the impeachment managers elected by one House
should retain their powers in a succeeding Congress, Chairman Sumners
referred to the lengthy period of time that could occur between the
appointment of managers, the adjournment of Congress, and the
commencement of a trial.(17)
---------------------------------------------------------------------------
17. See 6 Cannon's Precedents Sec. 517.
---------------------------------------------------------------------------
Sec. 17.4 The resolution of impeachment against Judge Louderback having
been presented to the Senate on the last day of the 72d Congress,
the Senate conducted the trial in the 73d Congress.
On Mar. 3, 1933, the last day of the 72d Congress under
constitutional practice prior to the adoption of the 20th amendment,
the managers on the part of the House in the Harold Louderback
impeachment appeared before the Senate and read the resolution and
articles of impeachment. The Senate adopted a special order that the
Senate begin sitting for trial on the first day of the 73d
Congress.(18)
---------------------------------------------------------------------------
18. 6 Cannon's Precedents Sec. 515.
---------------------------------------------------------------------------
President Franklin D. Roosevelt convened the 73d Congress on Mar.
9,1933, prior to the constitutional day of the first Monday in
December, and the Senate organized for trial on that date, pursuant to
its special order.(19)
---------------------------------------------------------------------------
19. 6 Cannon's Precedents Sec. 516. For the proclamation convening the
73d Congress, see H. Jour. 3, 73d Cong. 1st Sess., Mar. 9,
1933.
On May 24, 1933, the Senate acquitted Judge Louderback on
all articles. See 6 Cannon's Precedents Sec. 524.
---------------------------------------------------------------------------
[[Page 2205]]
CHAPTER 14
Impeachment Powers
D. HISTORY OF PROCEEDINGS
Sec. 18. Impeachment of Judge Ritter
Authorization of Investigation
Sec. 18.1 The Committee on the Judiciary reported in the 73d Congress a
resolution authorizing an investigation into the conduct of Halsted
Ritter, a U.S. District Court judge; the resolution was referred to
the Union Calendar and considered and adopted in the House as in
the Committee of the Whole by unanimous consent.
On May 29, 1933, Mr. J. Mark Wilcox, of Florida, placed in the
hopper a resolution (H. Res. 163) authorizing the Committee on the
Judiciary to investigate the conduct of Halsted Ritter, District Judge
for the U.S. District Court for the Southern District of Florida, to
determine whether in the opinion of the committee he had been guilty of
any high crime or misdemeanor. The resolution was referred to the
Committee on the Judiciary.(20~)
---------------------------------------------------------------------------
20. 77 Cong. Rec. 4575, 73d Cong. 1st Sess.
---------------------------------------------------------------------------
On June 1, 1933, the Committee on the Judiciary reported House
Resolution 163 (H. Rept. No. 191) with committee amendments; the
resolution was referred to the Committee of the Whole House on the
state of the Union, since the original resolution contained an
appropriation.(21)
---------------------------------------------------------------------------
21. Id. at p. 4796.
---------------------------------------------------------------------------
On the same day, Hatton W. Sumners, of Texas, Chairman of the
Committee on the Judiciary, asked unanimous consent to consider House
Resolution 163 in the House as in the Committee of the Whole. The
resolution and committee amendments read as follows:
House Resolution 163
Resolved, That the Committee on the Judiciary is authorized and
directed, as a whole or by subcommittee, to inquire into and
investigate the official conduct of Halsted L. Ritter, a district
judge for the United States District Court for the Southern
District of Florida, to determine whether in the opinion of said
committee he has been guilty of any high crime or misdemeanor which
in the contemplation of the Constitution requires the interposition
of the Constitutional powers of the House. Said committee shall
report its findings to the House, together with such resolution of
impeachment or other recommendation as it deems proper.
Sec. 2. For the purpose of this resolution, the committee is
authorized to
[[Page 2206]]
sit and act during the present Congress at such times and places in
the District of Columbia and elsewhere, whether or not the House is
sitting, has recessed, or has adjourned, to hold such hearing, to
employ such clerical, stenographic, and other assistance, to
require the attendance of such witnesses and the production of such
books, papers, and documents, and to take such testimony, to have
such printing and binding done, and to make such expenditures not
exceeding $5,000, as it deems necessary.
With the following committee amendments:
Page 2, line 5, strike out the words ``to employ such clerical,
stenographic, and other assistance''; and in line 9, on page 2,
strike out ``to have such printing and binding done, and to make
such expenditures, not exceeding $5,000.''
After brief debate, the House as in the Committee of the Whole
adopted the resolution as amended by the committee
amendments.(1)
---------------------------------------------------------------------------
1. Id. at pp. 4784, 4785.
The House adopted a resolution, reported by the Committee
on Accounts, authorizing payment out of the contingent fund for
expenses of the Committee on the Judiciary in conducting its
investigation under H. Res. 163; see H. Res. 172, 77 Cong. Rec.
5429, 5430, 73d Cong. 1st Sess., June 9. 1933.
---------------------------------------------------------------------------
The Committee on the Judiciary made no report to the House, prior
to the expiration of the 73d Congress, in the matter of charges against
Judge Ritter, but a subcommittee of the committee investigated the
charges and gathered testimony and evidence pursuant to House
Resolution 163.
The evidence gathered was the basis for House Resolution 422 in the
74th Congress, impeaching Judge Ritter, and both that resolution and
the report of the Committee on the Judiciary in the 74th Congress (H.
Rept. No. 2025) referred to the investigation conducted under House
Resolution 163, 73d Congress.
The Chairman of the subcommittee, Malcolm C. Tarver, of Georgia,
made a report recommending impeachment to the full committee; the
report was printed in the Record in the 74th Congress.(2)
---------------------------------------------------------------------------
2. 80 Cong. Rec. 408-10, 74th Cong. 2d Sess., Jan. 14, 1936.
---------------------------------------------------------------------------
Presentation of Charges
Sec. 18.2 In the 74th Congress, a Member rose to a question of
constitutional privilege and presented charges against Judge
Ritter, which were referred to the Committee on the Judiciary.
On Jan. 14, 1936, Mr. Robert A. Green, of Florida, a member of the
Committee on the Judiciary, rose to a question of constitutional
[[Page 2207]]
privilege and on his own responsibility impeached Judge Halsted Ritter
for high crimes and misdemeanors. Although he presented no resolution,
he delivered lengthy and specific charges against the accused. He
indicated his intention to read, as part of his speech, a report
submitted to the Committee on the Judiciary by Malcolm C. Tarver, of
Georgia, past Chairman of a subcommittee of the Committee on the
Judiciary, which subcommittee had investigated the charges against
Judge Ritter pursuant to House Resolution 163, adopted by the House in
the 73d Congress.
In response to inquiries, Mr. Green summarized the status of the
investigation and his reason for rising to a question of constitutional
privilege:
Mr. [John J.] O'Connor [of New York]: Of course, ordinarily the
matter would be referred to the Committee on the Judiciary. Does
the gentleman think he must proceed longer in the matter at this
time?
Mr. Green: My understanding is, I may say to the chairman of
the Rules Committee, that the articles of impeachment will be
referred to the Committee on the Judiciary for its further
consideration and action. I do not intend to consume any more time
than is absolutely necessary.
Mr. [Thomas L.] Blanton [of Texas]: Will the gentleman yield?
Mr. Green: I yield.
Mr. Blanton: What action was taken on the Tarver report? If
this official is the kind of judge the Tarver report indicates, why
was he not then impeached and tried by the Senate?
Mr. Green: That is the question that is now foremost in my
mind. Since Judge Tarver's service as chairman of the Judiciary
Subcommittee he has been transferred from the House Judiciary
Committee to the House Committee on Appropriations. He is not now a
member of the Judiciary Committee.
I firmly believe that when our colleagues understand the
situation thoroughly, there will be no hesitancy in bringing about
Ritter's impeachment by a direct vote on the floor of the House. My
purpose in this is to get it in concrete form, in compliance with
the rules of the House, so that the direct impeachment will be
handled by the Committee on the Judiciary. At present impeachment
is not before the committee. This will give the Judiciary something
to act upon.
Mr. Blanton: Was he not impeached in the House before when the
Tarver investigation was made?
Mr. Green: No. He was never impeached. There was a resolution
passed by the House directing an investigation to be made by the
Judiciary Committee.
Mr. Blanton: Was that not a resolution that followed just such
impeachment charges in the House as the gentleman from Florida is
now making?
Mr. Green: I understand that articles of impeachment have not
been heretofore filed in this case.
Mr. Blanton: Was the Tarver report, to which the gentleman has
re
[[Page 2208]]
ferred, filed with the Judiciary Committee?
Mr. Green: It is my understanding that it is now in their
hands.(3)
---------------------------------------------------------------------------
3. 80 Cong. Rec. 404, 405, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. Green inserted the text of the Tarver report, which recommended
impeachment, in his remarks.(4)
---------------------------------------------------------------------------
4. Id. at pp. 408-410.
---------------------------------------------------------------------------
At the conclusion of Mr. Green's remarks, Mr. O'Connor moved that
``the proceedings be referred to the Committee on the Judiciary.'' The
motion was agreed to.(5)
---------------------------------------------------------------------------
5. Id. at p. 410.
---------------------------------------------------------------------------
Sec. 18.3 The Committee on the Judiciary reported in the 74th Congress
a resolution impeaching Judge Halsted Ritter on four articles of
impeachment; the resolution referred to the investigation
undertaken pursuant to authorizing resolution in the 73d Congress.
On Feb. 20, 1936, Mr. Hatton W. Sumners, of Texas, introduced House
Resolution 422, impeaching Judge Ritter; the resolution was referred to
the Committee on the Judiciary.(6) On the same day, Mr.
Sumners, Chairman of the committee, submitted a privileged report on
the charges of official misconduct against Judge Ritter (H. Rept. No.
2025). The report, which was referred to the House Calendar and ordered
printed, read as follows:
---------------------------------------------------------------------------
6. 80 Cong. Rec. 2534, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
The Committee on the Judiciary, having had under consideration
charges of official misconduct against Halsted L. Ritter, a
district judge of the United States for the Southern District of
Florida, and having taken testimony with regard to the official
conduct of said judge under the authority of House Resolution 163
of the Seventy-third Congress, report the accompanying resolution
of impeachment and articles of impeachment against Halsted L.
Ritter to the House of Representatives with the recommendation that
the same be adopted by the House and presented to the
Senate.(7)
---------------------------------------------------------------------------
7. Id. at p. 2528.
---------------------------------------------------------------------------
The resolving clause of the resolution recited that the evidence
taken by a subcommittee of the Committee on the Judiciary under House
Resolution 163 of the 73d Congress sustained impeachment.(8)
---------------------------------------------------------------------------
8. For the text of the resolution and articles of impeachment, see
Sec. 18.7, infra.
---------------------------------------------------------------------------
Consideration and Adoption of Articles of Impeachment
Sec. 18.4 The House considered and adopted a resolution and articles of
impeachment against Judge Halsted Ritter,
[[Page 2209]]
pursuant to a unanimous-consent agreement fixing the time for and
control of debate.
On Mar. 2, 1936, Mr. Hatton W. Sumners, of Texas, called up for
immediate consideration a resolution (H. Res. 422), which the Clerk
read at the direction of Speaker Joseph W. Byrns, of Tennessee. Mr.
Sumners indicated his intention to conclude the proceedings and have a
vote on the resolution before adjournment. The House agreed to his
unanimous-consent request for consideration of the
resolution:(9)
---------------------------------------------------------------------------
9. 80 Cong. Rec. 3066-69, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
The Speaker: The gentleman from Texas asks unanimous consent
that debate on this resolution be continued for 4\1/2\ hours, 2\1/
2\ hours to be controlled by himself and 2 hours by the gentleman
from New York [Mr. Hancock]; and at the expiration of the time the
previous question shall be considered as ordered. Is there
objection?
There was no objection.
The resolving clause to the articles read as follows:
Resolution
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 House
Resolution 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: . . . (10)
---------------------------------------------------------------------------
10. Id. at p. 3066. For the full text of the resolution and articles,
see Sec. 18.7, infra.
---------------------------------------------------------------------------
The House then discussed the maintenance of order during debate on
the resolution:
Mr. [William B.] Bankhead [of Alabama]: Mr. Speaker, I realize
that there is a full membership of the House here today, and
properly so, because impeachment proceedings are a matter of grave
importance.
The proceedings are inquisitorial, and in order that we may
arrive at a correct judgment with reference to the matter and form
an intelligent opinion as to how we shall vote, it is absolutely
necessary and essential that we have order in the Chamber during
the proceedings.
I know it is difficult at all times to get gentlemen to refrain
from conversation, but I make a special appeal to the membership of
the House on this occasion, in view of the serious importance of
the proceedings, that they will be quiet and listen to the speakers
so that we may vote intelligently on this matter. [Applause.]
The Speaker: The Chair wishes to emphasize what the gentleman
from
[[Page 2210]]
Alabama has said. There is but one way to maintain order, and that
is for Members to cease conversation, because a little conversation
here and a little there creates confusion that makes it difficult
for speakers to be heard.(11)
---------------------------------------------------------------------------
11. Id. at p. 3069.
---------------------------------------------------------------------------
Time for debate having expired, Speaker Byrns stated that pursuant
to the order of the House the previous question was ordered. By the
yeas and nays, the House agreed to the resolution of impeachment--yeas
181, nays 146, present 7, not voting 96.(12)
---------------------------------------------------------------------------
12. Id. at p. 3091.
---------------------------------------------------------------------------
Election of Managers
Sec. 18.5 The House adopted resolutions appointing managers to conduct
the impeachment trial, empowering the managers to employ staff and
to prepare and conduct impeachment proceedings, and notifying the
Senate that the House had adopted articles and appointed managers.
On Mar. 6, 1936,(13) following the adoption of articles
of impeachment on Mar. 2, Mr. Hatton W. Sumners, of Texas, offered
resolutions of a privileged nature related to impeachment proceedings
against Judge Ritter:
---------------------------------------------------------------------------
13. 80 Cong. Rec. 3393, 3394, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
Impeachment of Halsted L. Ritter
Mr. Sumners of Texas: Mr. Speaker, I send to the desk the three
resolutions which are the usual resolutions offered when an
impeachment has been voted by the House, and I ask unanimous
consent that they may be read and considered en bloc.
Mr. [Bertrand H.] Snell [of New York]: Mr. Speaker, reserving
the right to object, I do not know that I understand the situation
we are in at the present time. Will the gentleman restate his
request?
The Speaker: (14) The request is to have read the
three resolutions and have them considered en bloc.
---------------------------------------------------------------------------
14. Joseph W. Byrns (Tenn.).
---------------------------------------------------------------------------
Mr. Sumners of Texas: I may say to the gentleman from New York,
they are the three resolutions usually offered and they are in the
language used when the House has voted an impeachment.
Mr. Snell: And the gentleman from Texas wants them considered
at one time?
Mr. Sumners of Texas: Yes.
There being no objection, the Clerk read the resolutions, as
follows:
House Resolution 439
Resolved, That Hatton W. Sumners, Randolph Perkins, and Sam
Hobbs, Members of this House, be, and they are hereby,
appointed managers to conduct the impeachment against Halsted
L. Ritter, United States district judge for the southern
district of Florida; that said managers are hereby instructed
to ap
[[Page 2211]]
pear before the Senate of the United States and at the bar
thereof in the name of the House of Representatives and of all
the people of the United States to impeach the said Halsted L.
Ritter of high crimes and misdemeanors in office and to exhibit
to the Senate of the United States the articles of impeachment
against said judge which have been agreed upon by this House;
and that the said managers do demand that the Senate take order
for the appearance of said Halsted L. Ritter to answer said
impeachment, and demand his impeachment, conviction, and
removal from office.
House Resolution 440
Resolved, That a message be sent to the Senate to inform
them that this House has impeached for high crimes and
misdemeanors Halsted L. Ritter, United States district judge
for the southern district of Florida, and that the House
adopted articles of impeachment against said Halsted L. Ritter,
judge as aforesaid, which the managers on the part of the House
have been directed to carry to the Senate, and that Hatton W.
Sumners, Randolph Perkins, and Sam Hobbs, Members of this
House, have been appointed such managers.
House Resolution 441
Resolved, That the managers on the part of the House in the
matter of the impeachment of Halsted L. Ritter, United States
district judge for the southern district of Florida, be, and
they are hereby, authorized to employ legal, clerical, and
other necessary assistants and to incur such expenses as may be
necessary in the preparation and conduct of the case, to be
paid out of the contingent fund of the House on vouchers
approved by the managers, and the managers have power to send
for persons and papers, and also that the managers have
authority to file with the Secretary of the Senate, on the part
of the House of Representatives, any subsequent pleadings which
they shall deem necessary: Provided, That the total
expenditures authorized by this resolution shall not exceed
$2,500.
Mr. Snell: Mr. Speaker, may I ask the gentleman from Texas one
further question? Is this exactly the procedure that has always
been followed by the House under similar conditions?
Mr. Sumners of Texas: Insofar as I know, it does not vary from
the procedure that has been followed since the beginning of the
Government.
The resolutions were agreed to.
House-Senate Communications
Sec. 18.6 The House having notified the Senate of its impeachment of
Judge Halsted Ritter, the Senate communicated its readiness to
receive the House managers and discussed the Senate rules for
impeachment trials.
On Mar. 9, 1936, Vice President John N. Garner laid before the
Senate a communication from the House of Representatives:
House Resolution 440
In the House
of Representatives,
United States, March 6, 1936.
Resolved, That a message be sent to the Senate to inform them
that this House has impeached for high crimes and misdemeanors
Halsted L. Ritter, United States district judge for the southern
district of Florida, and that
[[Page 2212]]
the House adopted articles of impeachment against said Halsted L.
Ritter, judge as aforesaid, which the managers on the part of the
House have been directed to carry to the Senate, and that Hatton W.
Sumners, Randolph Perkins, and Sam Hobbs, Members of this House,
have been appointed such managers.
The Senate adopted the following order:
Ordered, That the Secretary inform the House of Representatives
that the Senate is ready to receive the managers appointed by the
House for the purpose of exhibiting articles of impeachment against
Halsted L. Ritter, United States district judge for the southern
district of Florida, agreeably to the notice communicated to the
Senate, and that at the hour of 1 o'clock p.m. on Tuesday, March
10, 1936, the Senate will receive the honorable managers on the
part of the House of Representatives, in order that they may
present and exhibit the said articles of impeachment against the
said Halsted L. Ritter, United States district judge for the
southern district of Florida.
The Vice President: The Secretary will carry out the order of
the senate (15)
---------------------------------------------------------------------------
15. 80 Cong. Rec. 3423, 3424, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
Senator Elbert D. Thomas, of Utah, discussed the function of the
Senate in sitting as a court of impeachment and inquired whether any
review was being undertaken of the Senate rules for impeachment trials.
Senator Henry F. Ashurst, of Arizona, responded that the Senate
Committee on the Judiciary had considered the rules and cited a change
recently made in the rules for impeachment trials:
It will be remembered that in the trial of the Louderback case
it was suggested that the trial was dreary, involved, and
protracted, and that it was not according to public policy to have
96 Senators sit and take testimony. Subsequently, not a dozen, not
20, but at least 40 Senators urged that the Senate Committee on the
Judiciary give its attention to the question whether or not a
committee appointed by the Presiding Officer could take the
testimony in impeachment trials, whereupon a resolution was
introduced by the chairman of the Senate Committee on the Judiciary
and was adopted. I ask that that resolution be incorporated in my
remarks at this point.
The President Pro Tempore:(16) Without objection, it
is so ordered.
---------------------------------------------------------------------------
16. Key Pittman (Nev.).
---------------------------------------------------------------------------
The resolution is as follows (Submitted by Mr. Ashurst):
Resolved, That in the trial of any impeachment the
Presiding Officer of the Senate, upon the order of the Senate,
shall appoint a committee of 12 Senators to receive evidence
and take testimony at such times and places as the committee
may determine, and for such purpose the committee so appointed
and the chairman thereof, to be elected by the committee, shall
(unless otherwise ordered by the Senate) exercise all the
powers and functions conferred upon the Senate and the
Presiding Officer of the Senate, respectively,
[[Page 2213]]
under the rules of procedure and practice in the Senate when
sitting on impeachment trials.
Unless otherwise ordered by the Senate, the rules of
procedure and practice in the Senate when sitting on
impeachment trials shall govern the procedure and practice of
the committee so appointed. The committee so appointed shall
report to the Senate in writing a certified copy of the
transcript of the proceedings and testimony had and given
before such committee, and such report shall be received by the
Senate and the evidence so received and the testimony so taken
shall be considered to all intents and purposes, subject to the
right of the Senate to determine competency, relevancy, and
materiality, as having been received and taken before the
Senate, but nothing herein shall prevent the Senate from
sending for any witness and hearing his testimony in open
Senate, or by order of the Senate having the entire trial in
open Senate.
Mr. Ashurst: The resolution was agreed to by the Senate. It
does not provide for a trial by 12 Senators. It simply provides
that a committee of 12, appointed by the Presiding Officer of the
Senate, may take the testimony, the Senate declaring and
determining in advance whether it desires that procedure, or
otherwise, and that after such evidence is taken by this committee
of 12, the Senate reviews the testimony in its printed form, and
the Senate may take additional testimony or may then rehear the
testimony of any of the witnesses heard by the committee. The
Senate reserves to itself every power and every authority it has
under the Constitution.
It could not be expected that I would draw, present, and urge
the Senate to pass such resolution and then subsequently decline to
defend it, but I am not defending it more than to say that, in my
opinion, it is perfectly constitutional to do what the resolution
provides. If the Senate so desired, it could appoint a committee to
take the testimony, which would be reduced to writing, and be laid
before the Senators the next morning in the Congressional Record.
If a Senator were absent during one day of the trial, he could read
the testimony as printed the next morning.(17)
---------------------------------------------------------------------------
17. 80 Cong. Rec. 3424, 3425, 74th Cong. 2d Sess. For the adoption of
the change referred to by Senator Ashurst, see 79 Cong. Rec.
8309, 8310, 74th Cong. 1st Sess., May 28, 1935.
---------------------------------------------------------------------------
Senator Warren R. Austin, of Vermont, of the Committee on the
Judiciary, asked unanimous consent to have printed in the Record a
ruling, cited in 3 Hinds' Precedents section 2006, that an impeachment
trial could only proceed when Congress was in session.(18)
---------------------------------------------------------------------------
18. Id. at p. 3426.
---------------------------------------------------------------------------
Initiation of Impeachment Trial
Sec. 18.7 The managers on the part of the House appeared in the Senate,
read the articles, reserved their right to amend them, and demanded
that Judge Halsted Ritter be put to answer the charges; the Senate
organized for
[[Page 2214]]
trial as a Court of Impeachment.
On Mar. 10, 1936, pursuant to the Senate's order of Mar. 9, the
managers on the part of the House appeared before the bar of the Senate
and were announced by the Secretary to the majority, who escorted them
to their assigned seats.
Vice President John N. Garner directed the Sergeant at Arms to make
proclamation:
The Sergeant at Arms, Chesley W. Jurney, made proclamation, as
follows:
Hear ye! Hear ye! Hear ye! All persons are commanded to keep
silent, on pain of imprisonment, while the House of Representatives
is exhibiting to the Senate of the United States articles of
impeachment against Halsted L. Ritter, United States district judge
in and for the southern district of Florida.(19)
---------------------------------------------------------------------------
19. 80 Cong. Rec. 3485, 74th Cong. 2d Sess.
For the text of the proceedings in the Senate upon the
appearance of the managers to present the articles of
impeachment against Judge Ritter, see Sec. 11.4, supra.
---------------------------------------------------------------------------
Representative Hatton W. Sumners, of Texas, read the resolution
adopted by the House (H. Res. 439) which directed the managers to
appear before the bar of the Senate. Representative Sam Hobbs, of
Alabama, read the articles of impeachment, the Vice President
requesting that he stand at the desk in front of the Chair:
(20)
---------------------------------------------------------------------------
20. 80 Cong. Rec. 3486-88, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. Manager Hobbs, from the place suggested by the Vice
President, said:
Mr. President and gentlemen of the Senate:
Articles of Impeachment Against Halsted L. Ritter
House Resolution 422, Seventy-fourth Congress, second session
Congress of the United States of America
In the House of Representatives, United States
March 2, 1936.
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 House Resolution 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
[[Page 2215]]
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'' (No. 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, Hon. Alexander
Akerman, to fix and determine 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,
[[Page 2216]]
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 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 &
Operating Co., which company had been adjudicated in said
district as a bankrupt, and as such trustee took charge of the
assets of said Whitehall Building & Operating Co., 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 sale 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, N.Y.,
[[Page 2217]]
and the said Rankin and Richardson went from West Palm Beach,
Fla., to Brooklyn, N.Y., 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 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 hereinbefore 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 of May 1930 the said Judge Ritter
allowed the
[[Page 2218]]
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 Alexander 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 following
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
[[Page 2219]]
$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 &
Operating Co. 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.
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
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 & 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 Co. of
Georgia and Robert G. Stephens, trustees, against Brazilian
Court Building Corporation and others, No. 5704 in the Circuit
Court of the Fifteenth Judicial Circuit of Florida, and after
the final decree had been entered in said cause, and after the
fee of $4,000 which had been agreed upon at the
[[Page 2220]]
outset of said employment had been fully paid to the firm of
Ritter & 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 & 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 & Eisner,
was one of the directors, was drawn, payable to the order of
``Hon. Halsted L. Ritter'' for $2,000, and which was duly
endorsed ``Hon. 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 his said
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, Fla., said holdings being within
the territorial jurisdiction of the United States district
court, of which Judge Ritter was a judge from February 15,
1929.
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, 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
[[Page 2221]]
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 said Judge Ritter by his actions and conduct, as an
individual and as such judge, has brought his court into
scandal and disrepute, to the prejudice of said court and
public confidence in the administration of justice in his said
court, and to the prejudice of public respect for and
confidence in the Federal judiciary:
1. In that in the Florida Power Co. case (Florida Power &
Light Co. against City of Miami and others, No. 1183-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 2 weeks after a resolution (H. Res. 163, 73d Cong.) had
been agreed to in the House of Representatives of the Congress
of the United States authorizing and directing the Judiciary
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 power 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 Co. of Florida cases (Illick
against Trust Co. of Florida et al., No. 1043-M-Eq., and
Edmunds Committee et al. against Marlon Mortgage Co. et al.,
No. 1124-M-Eq.) after the State banking department of Florida,
through its comptroller, Honorable Ernest Amos, had closed the
doors of the Trust Co. of Florida and appointed J. H. Therrell
liquidator for said trust company, and had interviewed 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 S. 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. Marion Mortgage Co. was a
subsidiary of the Trust Co. 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
[[Page 2222]]
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, Fla.--a court of
the State of Florida--alleging that the various trust
properties of the Trust Co. 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
Co. 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 ], 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 Co. 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 Judge Ritter, or the
court in which he presided, had been without jurisdiction in
the matter of the appointment of said Eaton and Stearns as
receivers. 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
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 said time having large
property interests within the territorial jurisdiction of the
court of which Judge Ritter was a judge. On, to wit, the 4th
day of April 1929 the said Judge Ritter accepted the sum of
$2,000 from said Brodek, Raphael & Eisner, representing Mulford
Realty Corporation, through his attorney, Charles A. Brodek, as
a fee or gratuity, at which time the said Mulford Realty
Corporation held and owned large
[[Page 2223]]
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,
Fla., said holdings being within the territorial jurisdiction
of the United States District Court of which Judge Ritter was a
judge from February 15, 1929.
4. By his conduct as detailed in articles I and II 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.
Attest:
Joseph W. Byrns,
Speaker of the
House of Representatives.
South Trimble,
Clerk.
Representative Sumners entered a reservation of the right of the
House to amend or supplement the articles and demanded that the
respondent be put to trial:
Mr. Manager Sumners: Mr. President, the House of
Representatives, by protestation, saving themselves the liberty of
exhibiting at any time hereafter any further articles of accusation
or impeachment against the said Halsted L. Ritter, district judge
of the United States for the southern district of Florida, and also
of replying to his answers which he shall make unto the articles
preferred against him, and of offering proof to the same and every
part thereof, and to all and every other article of accusation or
impeachment which shall be exhibited by them as the case shall
require, do demand that the said Halsted L. Ritter may be put to
answer the misdemeanors in office which have been charged against
him in the articles which have been exhibited to the Senate, and
that such proceedings, examinations, trials, and judgments may be
thereupon had and given as may be agreeable to law and justice.
Mr. President, the managers on the part of the House of
Representatives, in pursuance of the action of the House of
Representatives by the adoption of the articles of impeachment
which have just been read to the Senate, do now demand that the
Senate take order for the appearance of the said Halsted L. Ritter
to answer said impeachment, and do now demand his impeachment,
conviction, and removal from office.
The Vice President: The Senate wild take proper order and
notify the House of Representatives.(1)
---------------------------------------------------------------------------
1. Id. at p. 3488.
---------------------------------------------------------------------------
The most senior Member of the Senate, Senator William E. Borah, of
Idaho, then administered the oath to Vice President Garner, who
administered the oath to the other Senators present.
The Sergeant at Arms made proclamation that the Senate was then
sitting as a Court of Impeachment. Orders were adopted notifying the
House of the organization of the court and issuing a summons to the
respondent.(2)
---------------------------------------------------------------------------
2. Id. at pp. 3488, 3489. For the text of the proceedings whereby the
Senate organized for the Ritter impeachment trial, see
Sec. 11.5, supra.
---------------------------------------------------------------------------
Sec. 18.8 In response to a summons, Judge Halsted Ritter
[[Page 2224]]
appeared before the Senate sitting as a Court of Impeachment.
On Mar. 12, 1936, respondent Halsted Ritter appeared before the
Court of Impeachment pursuant to the summons previously issued, and
filed an entry of appearance: (3)
---------------------------------------------------------------------------
3. 80 Cong. Rec. 3646, 3647, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
The Vice President: (4) . . . The Secretary will
read the return of the Sergeant at Arms.
---------------------------------------------------------------------------
4. John N. Garner (Tex.).
---------------------------------------------------------------------------
The Chief Clerk read as follows:
Senate of the United States, Office of the Sergeant at Arms.
The foregoing writ of summons addressed to Halsted L.
Ritter, and the foregoing precept, addressed to me, were duly
served upon the said Halsted L. Ritter by me by delivering true
and attested copies of the same to the said Halsted L. Ritter
at the Carlton Hotel, Washington, D.C., on Thursday, the 12th
day of March 1936, at 11 o'clock in the forenoon of that day.
Chesley W. Jurney,
Sergeant at Arms,
United States Senate.
The Vice President: The Secretary of the Senate will administer
the oath to the Sergeant at Arms.
The Secretary of the Senate, Edwin A. Halsey, administered the
oath to the Sergeant at Arms, as follows:
You, Chesley W. Jurney, do solemnly swear that the return
made by you upon the process issued on the 10th day of March
1936 by the Senate of the United States against Halsted L.
Ritter, United States district judge for the southern district
of Florida, is truly made, and that you have performed such
service as therein described. So help you God.
The Vice President: The Sergeant at Arms will make
proclamation.
The Sergeant at Arms made proclamation as follows:
Halsted L. Ritter! Halsted L. Ritter! Halsted L. Ritter! United
States district judge for the southern district of Florida, appear
and answer to the articles of impeachment exhibited by the House of
Representatives against you.
The respondent, Halsted L. Ritter, and his counsel, Frank P.
Walsh, Esq., of New York City, N.Y., and Carl T. Hoffman, Esq., of
Miami, Fla., entered the Chamber and were conducted to the seats
assigned them in the space in front of the Secretary's desk, on the
right of the Chair.
The Vice President: Counsel for the respondent are advised that
the Senate is now sitting for the trial of articles of impeachment
exhibited by the House of Representatives against Halsted L.
Ritter, United States district judge for the southern district of
Florida.
Mr. Walsh (of counsel): May it please you, Mr. President, and
honorable Members of the Senate, I beg to inform you that, in
response to your summons, the respondent, Halsted L. Ritter, is now
present with his counsel and asks leave to file a formal entry of
appearance.
The Vice President: Is there objection? The Chair hears none,
and the appearance will be filed with the Secretary, and will be
read.
The Chief Clerk read as follows:
[[Page 2225]]
In the Senate of the United States of America Sitting as a Court of
Impeachment
March 12, 1936.
The United States of America v. Halsted L. Ritter
The respondent, Halsted L. Ritter, having this day been
served with a summons requiring him to appear before the Senate
of the United States of America in the city of Washington,
D.C., on March 12, 1936, at 1 o'clock afternoon to answer
certain articles of impeachment presented against him by the
House of Representatives of the United States of America, now
appears in his proper person and also by his counsel, who are
instructed by this respondent to inform the Senate that
respondent stands ready to file his pleadings to such articles
of impeachment within such reasonable period of time as may be
fixed.
Dated March 12, 1936.
Sec. 18.9 The Senate, sitting as a Court of Impeachment, excused a
Senator from service at his request, fixed a trial date, allowed
respondent 18 days to file his answer, and adopted supplemental
rules for trial.
On Mar. 12, 1936, the Senate convened as a Court of Impeachment in
the Halsted Ritter case. Preceding the administration of the oath to
members not theretofore sworn, the court granted the request of Senator
Edward P. Costigan, of Colorado, that he be excused from service on the
Court of Impeachment. Senator Costigan caused to be printed in the
Record the reasons for his request, based on a long personal
acquaintance with the respondent.(5)
---------------------------------------------------------------------------
5. 80 Cong. Rec. 3646, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
The Senate ratified an agreement, between the managers and counsel
for the respondent, as to the time permitted the respondent to file his
answer with the Court of Impeachment:
Mr. [Joseph T.] Robinson [of Arkansas]: Mr. President, I think
there is not a clear understanding as to the arrangement which has
been entered into between the managers and the counsel for the
respondent. It is my understanding, and if I am in error someone
who is better informed will please correct me, that the agreement
is that counsel for the respondent will place their response in the
possession of the managers on the part of the House not later than
the 26th instant, and that the Court may reconvene again on the
30th when the response will be filed in the Senate.
The Vice President: (6) Is there objection to that
agreement?
---------------------------------------------------------------------------
6. John N. Garner (Tex.).
---------------------------------------------------------------------------
There was no objection.(7)
---------------------------------------------------------------------------
7. 80 Cong. Rec. 3647, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
The Court of Impeachment adopted a motion fixing the trial date at
Apr. 6, 1936.(8)
---------------------------------------------------------------------------
8. Id. at p. 3648.
---------------------------------------------------------------------------
The court adopted supplemental rules, which Senator Henry F.
[[Page 2226]]
Ashurst, of Arizona, stated to be the same as those adopted in the
trial of Judge Harold Louderback:
Ordered, That in addition to the rules of procedure and
practice in the Senate when sitting on impeachment trials,
heretofore adopted, and supplementary to such rules, the following
rules shall be applicable in the trial of the impeachment of
Halsted L. Ritter, United States judge for the southern district of
Florida:
1. In all matters relating to the procedure of the Senate,
whether as to form or otherwise, the managers on the part of the
House or the counsel representing the respondent may submit a
request or application orally to the Presiding Officer, or, if
required by him or requested by any Senator, shall submit the same
in writing.
2. In all matters relating immediately to the trial, such as
the admission, rejection, or striking out of evidence, or other
questions usually arising in the trial of causes in courts of
justice, if the managers on the part of the House or counsel
representing the respondent desire to make any application,
request, or objection, the same shall be addressed directly to the
Presiding Officer and not otherwise.
3. It shall not be in order for any Senator, except as provided
in the rules of procedure and practice in the Senate when sitting
on impeachment trials, to engage in colloquy or to address
questions either to the managers on the part of the House or to
counsel for the respondent, nor shall it be in order for Senators
to address each other; but they shall address their remarks
directly to the Presiding Officer and not otherwise.
4. The parties may, by stipulation in writing filed with the
Secretary of the Senate and by him laid before the Senate or
presented at the trial, agree upon any facts involved in the trial;
and such stipulation shall be received by the Senate for all
intents and purposes as though the facts therein agreed upon had
been established by legal evidence adduced at the trial.
5. The parties or their counsel may interpose objection to
witnesses answering questions propounded at the request of any
Senator, and the merits of any such objection may be argued by the
parties or their counsel; and the Presiding Officer may rule on any
such objection, which ruling shall stand as the judgment of the
Senate, unless some Member of the Senate shall ask that a formal
vote be taken thereon, in which case it shall be submitted to the
Senate for decision; or he may, at his option, in the first
instance submit any such question to a vote of the Members of the
Senate. Upon all such questions the vote shall be without debate
and without a division, unless the ayes and nays be demanded by
one-fifth of the Members present when the same shall be
taken.(9)
---------------------------------------------------------------------------
9. Id.
---------------------------------------------------------------------------
Amendment of Articles of Impeachment
Sec. 18.10 The House adopted a resolution, reported as privileged by
the managers on the part of the House in the Halsted Ritter
impeachment, amending the articles previously voted by the House.
[[Page 2227]]
On Mar. 30, 1936,(10) Mr. Hatton W. Sumners, of Texas,
called up the following privileged resolution (H. Res. 471) amending
the articles of impeachment against Judge Ritter:
---------------------------------------------------------------------------
10. 80 Cong. Rec. 4597-99. 74th Cong. 2d Sess.
---------------------------------------------------------------------------
Resolved, That the articles of impeachment heretofore adopted
by the House of Representatives in and by House Resolution 422,
House Calendar No. 279, be, and they are hereby, amended as
follows:
Article III is amended so as to read as follows:
Article II
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 after the employment of the law
firm of Ritter & 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 Co. of
Georgia and Robert G. Stephens, Trustee v. Brazilian Court
Building Corporation et al., no. 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 & 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 attorney's 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 & Eisner,
[[Page 2228]]
a law firm of New York City, representing Mulford Realty
Corporation, in which Charles A. Brodek, senior member of the
firm of Brodek, Raphael & Eisner, was one of the directors, was
drawn, payable to the order of ``Hon. Halsted L. Ritter'' for
$2,000 and which was duly endorsed ``Hon. 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 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, Fla., 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.
By adding the following articles immediately after article III
as amended:
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 engaged 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 therein, or in
obtaining a deed or deeds to J. R. Francis from the Spanish
River Land Co. to certain pieces of realty, and in the
Edgewater Ocean Beach Development Co. 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.
[[Page 2229]]
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 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 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 solicited 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.
Original article IV is amended so as to read as follows:
``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
confidence in the admin
[[Page 2230]]
istration 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 Co. case (Florida Power &
Light Co. v. City of Miami et al., no. 1183-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 2 weeks after a
resolution (H. Res. 163, 73d Cong.) had been agreed to in the
House of Representatives of the Congress of the United States,
authorizing and directing the Judiciary 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
power 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 Co. of Florida cases (Illick v.
Trust Co. of Florida et al., no. 1043-M-Eq., and Edmunds
Committee et al. v. Marion Mortgage Co. et al., no. 1124-M-
Eq.), after the State Banking Department of Florida, through
its comptroller, Hon. Ernest Amos, had closed the doors of the
Trust Co. 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 S. 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.
Marion Mortgage Co. was a subsidiary of the Trust Co. 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, Hon. 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
[[Page 2231]]
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, Fla.--a court of the State of Florida--alleging
that the various trust properties of the Trust Co. 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 Co. 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, Hon. J. M. Lee succeeded Hon. Ernest
Amos as comptroller of the State of Florida and appointed M. A.
Smith liquidator in said Trust Co. 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
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 said 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 & 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
holdings being within the territorial jurisdiction of the
United States District
[[Page 2232]]
Court of which 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.''
The House adopted the resolution amending the articles after Mr.
Sumners discussed its provisions and stated his opinion that the
managers had the power to report amendments to the articles:
Mr. Sumners of Texas: Mr. Speaker, the resolution which has
just been read proposes three new articles. The change is not as
important as that statement would indicate. Two of the new articles
deal with income taxes, and one with practicing law by Judge
Ritter, after he went on the bench. In the original resolution, the
charge is made that Judge Ritter received certain fees or
gratuities and had written a letter, and so forth. No change is
proposed in articles 1 and 2. In article 3, as stated, Judge Ritter
is charged with practicing law after he went on the bench. That
same thing, in effect, was charged, as members of the committee
will remember, in the original resolution, but the form of the
charge, in the judgment of the managers, could be improved. These
charges go further and charge that in the matter connected with J.
R. Francis, the judge acted as counsel in two transactions after he
went on the bench, and received $7,500 in compensation. Article 7
is amended to include a reference to these new charges. There is a
change in the tense used with reference to the effect of the
conduct alleged. It is charged, in the resolution pending at the
desk, that the reasonable and probable consequence of the alleged
conduct is to injure the confidence of the people in the courts--I
am not attempting to quote the exact language--which is a matter of
form, I think, more than a matter of substance.
Mr. [Bertrand H.] Snell [of New York]: Mr. Speaker, will the
gentleman yield?
Mr. Sumners of Texas: Yes.
Mr. Snell: I may not be entirely familiar with all this
procedure, but as I understand, what the gentleman is doing here
today, is to amend the original articles of impeachment passed by
the House.
Mr. Sumners of Texas: That is correct.
Mr. Snell: The original articles of impeachment came to the
House as a result of the evidence before the gentleman's committee.
Has the gentleman's committee had anything to do with the change or
amendment of these charges?
Mr. Sumners of Texas: No; just the managers.
Mr. Snell: As a matter of procedure, would not that be the
proper thing to do?
Mr. Sumners of Texas: I do not think it is at all necessary,
for this reason: The managers are now acting as the agents of the
House, and not as the agents of the Committee on the Judiciary. Mr.
Manager Perkins and Mr. Manager Hobbs have recently extended the
investigation made by the committee.
[[Page 2233]]
Mr. Snell: Mr. Speaker, will the gentleman yield further?
Mr. Sumners of Texas: Yes.
Mr. Snell: Do I understand that the amendments come because of
new information that has come to you as managers that never was
presented to the Committee on the Judiciary?
Mr. Sumners of Texas: Perhaps it would not be true to answer
that entirely in the affirmative, but the changes are made largely
by reason of new evidence which has come to the attention of the
committee, and some of these changes, more or less changes in form,
have resulted from further examination of the question. This is
somewhat as lawyers do in their pleadings. They often ask the
privilege of making an amendment.
Mr. Snell: And the gentleman's position is that as agents of
the House it is not necessary to have the approval of his
committee, which made the original impeachment charges?
Mr. Sumners of Texas: I have no doubt about that; I have no
doubt about the accuracy of that statement.
Sec. 18.11 Following the amendment of the articles of impeachment
against Judge Halsted Ritter, the House adopted a resolution to
inform the Senate thereof.
On Mar. 30, 1936,(11) following the amendment by the
House of the articles in the impeachment against Judge Ritter, the
Senate was informed by resolution thereof:
---------------------------------------------------------------------------
11. 80 Cong. Rec. 4601, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Hatton W.] Sumners of Texas: Mr. Speaker, I offer the
following privileged resolution.
The Clerk read as follows:
House Resolution 472
Resolved, That a message be sent to the Senate by the Clerk
of the House informing the Senate that the House of
Representatives has adopted an amendment to the articles of
impeachment heretofore exhibited against Halsted L. Ritter,
United States district judge for the southern district of
Florida, and that the same will be presented to the Senate by
the managers on the part of the House.
And also, that the managers have authority to file with the
Secretary of the Senate, on the part of the House any
subsequent pleadings they shall deem necessary.
The resolution was agreed to.
A motion to reconsider was laid on the table.
On Mar. 31, the amendments to the articles were presented to the
Court of Impeachment and printed in the Record; (12) counsel
for the respondent was granted 48 hours to file his response to the new
articles.
---------------------------------------------------------------------------
12. Id. at pp. 4654-56.
---------------------------------------------------------------------------
Motions to Strike Articles
Sec. 18.12 During the impeachment trial of Judge Halsted Ritter, the
respondent moved to strike Article I or, in the
[[Page 2234]]
alternative, to require election as to Articles I and II, and moved
to strike Article VII.
On Mar. 31, 1936,(13) the respondent, Judge Ritter,
filed the following motion:
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 upon article II, and for grounds of such motion
respondent says:
---------------------------------------------------------------------------
13. 80 Cong. Rec. 4656, 4657, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
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 separa
[[Page 2235]]
tion 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.
(Signed) Frank P. Walsh,
Carl T. Hoffman,
Of Counsel for Respondent.
Mr. Hoffman, counsel for respondent, argued that Article II
duplicated charges set forth in Article I. He also contended that the
rule of duplicity, or the principle of civil and criminal pleading that
one count should contain no more than one charge or cause of action,
was violated by Article VII.
Mr. Sumners argued in response that Article II was clearly not a
duplication of Article I, two distinct charges being presented. As to
Article VII, Mr. Sumners contended that impeachment was essentially an
ouster proceeding as opposed to a criminal proceeding. He referred to
the fact that the articles of impeachment against Judge Harold
Louderback had contained a similar article charging that ``by
specifically alleged conduct'' the respondent ``has done those things
the reasonable and probable consequences of which are to arouse a
substantial doubt as to his judicial integrity.(14)
---------------------------------------------------------------------------
14. Id. at p. 4658.
For Article V, as amended, in the Louderback impeachment,
charging such conduct as to destroy public confidence in the
court, see 6 Cannon's Precedents Sec. 520.
---------------------------------------------------------------------------
At the suggestion of the Chair, decision on the motions of
respondent were reserved for investigation and deliberation:
Mr. [Henry F.] Ashurst [of Arizona]: Mr. President, I assume
that the Presiding Officer will desire to take some time to examine
all the pleadings and will not be prepared to announce a decision
on this point until the next session of the Court?
The Presiding Officer [Nathan L. Bachman (Tenn.)]: It is the
opinion of the present occupant of the chair that while the
necessity for early decision is apparent, the importance of the
matter would justify the occupant of the chair in saying that no
decision should be made until the proceedings are printed and every
member of the Court has an opportunity to investigate and consider
them. Is there objection to that suggestion of the Chair? The Chair
hears none.(15)
---------------------------------------------------------------------------
15. Id. at p. 4659.
---------------------------------------------------------------------------
Sec. 18.13 On the respondent's motion to strike, the Chair overruled
that part of the motion which sought to strike Article I or to
require election between Articles I and II; the Chair submitted
that part of the motion which sought to strike Article VII to the
Court of Impeachment, which overruled that part of the motion.
[[Page 2236]]
On Apr. 3, 1936,(16) the following disposition was made
of the motion of the respondent, Judge Halsted Ritter, to strike
certain articles:
---------------------------------------------------------------------------
16. 80 Cong. Rec. 4898, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
The Presiding Officer [Nathan L. Bachman (Tenn.)]: On the
motion of the honorable counsel for the respondent to strike
article I of the articles of impeachment or, in the alternative, to
require the honorable managers on the part of the House to make an
election as to whether they will stand upon article I or upon
article II, the Chair is ready to rule.
The Chair is clearly of the opinion that the motion to strike
article I or to require an election is not well taken and should be
overruled.
His reason for such opinion is that articles I and II present
entirely different bases for impeachment.
Article I alleges the illegal and corrupt receipt by the
respondent of $4,500 from his former law partner, Mr. Rankin.
Article II sets out as a basis for impeachment an alleged
conspiracy between Judge Ritter; his former partner, Mr. Rankin;
one Richardson, Metcalf & Sweeny; and goes into detail as to the
means and manner employed whereby the respondent is alleged to have
corruptly received the $4,500 above mentioned.
The two allegations, one of corrupt and illegal receipt and the
other of conspiracy to effectuate the purpose, are, in the judgment
of the Chair, wholly distinct, and the respondent should be called
to answer each of the articles.
What is the judgment of the Court with reference to that
particular phase of the motion to strike?
Mr. [William H.] King [of Utah]: Mr. President, if it be
necessary, I move that the ruling of the honorable Presiding
Officer be considered as and stand for the judgment of the Senate
sitting as a Court of Impeachment.
The Presiding Officer: Is there objection? The Chair hears
none, and the ruling of the Chair is sustained, by the Senate.
With reference to article VII of the articles of impeachment,
formerly article IV, the Chair desires to exercise his prerogative
of calling on the Court for a determination of this question.
His reason for so doing is that an impeachment proceeding
before the Senate sitting as a Court is sui generis, partaking
neither of the harshness and rigidity of the criminal law nor of
the civil proceedings requiring less particularity.
The question of duplicity in impeachment proceedings presented
by the honorable counsel for the respondent is a controversial one,
and the Chair feels that it is the right and duty of each Member of
the Senate, sitting as a Court, to express his views thereon.
Precedents in proceedings of this character are rare and not
binding upon this Court in any course that it might desire to
pursue.
The question presented in the motion to strike article VII on
account of duplicity has not, so far as the Chair is advised, been
presented in any impeachment proceeding heretofore had before this
body.
The Chair therefore submits the question to the Court.
[[Page 2237]]
Mr. [Henry F.] Ashurst [of Arizona]: Mr. President, under the
rules of the Senate, sitting as a Court of Impeachment, all such
questions, when submitted by the Presiding Officer, shall be
decided without debate and without division, unless the yeas and
nays are demanded by one-fifth of the Members present, when the
yeas and nays shall be taken.
The Presiding Officer: The Chair therefore, will put the
motion. All those in favor of the motion of counsel for the
respondent to strike article VII will say ``aye.'' Those opposed
will say ``no.''
The noes have it, and the motion in its entirety is overruled.
Sec. 18.14 During the impeachment trial of Judge Halsted Ritter, the
managers on the part of the House made and the Senate granted a
motion to strike certain specifications from an article of
impeachment.
On Apr. 3, 1936,(17) during the impeachment trial of
Judge Ritter, the managers on the part of the House moved that two
counts be stricken. The motion was granted by the Senate:
---------------------------------------------------------------------------
17. 80 Cong. Rec. 4899, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. Manager [Hatton W.] Sumners [of Texas] (speaking from the
desk in front of the Vice President): Mr. President, the suggestion
which the managers desire to make at this time has reference to
specifications 1 and 2 of article VII. These two specifications
have reference to what I assume counsel for respondent and the
managers as well, recognize are rather involved matters, which
would possibly require as much time to develop and to argue as
would be required on the remainder of the case.
The managers respectfully move that those two counts be
stricken. If that motion shall be sustained, the managers will
stand upon the other specifications in article VII to establish
article VII. The suggestion on the part of the managers is that
those two specifications in article VII be stricken from the
article.
The Presiding Officer: (18) What is the response of
counsel for the respondent?
---------------------------------------------------------------------------
18. Nathan L. Bachman (Tenn.).
---------------------------------------------------------------------------
Mr. [Charles L.] McNary [of Oregon]: Mr. President, there was
so much rumbling and noise in the Chamber that I did not hear the
position taken by the managers on the part of the House.
The Presiding Officer: The managers on the part of the House
have suggested that specifications 1 and 2 of article VII be
stricken on their motion. . . .
Mr. Hoffman [of counsel]: Mr. President, the respondent is
ready to file his answer to article I, to articles II and III as
amended, and to articles IV, V, and VI. In view of the announcement
just made asking that specifications 1 and 2 of article VII be
stricken, it will be necessary for us to revise our answer to
article VII and to eliminate paragraphs 1 and 2 thereof. That can
be very speedily done with 15 or 20 minutes if it can be arranged
for the
[[Page 2238]]
Senate to indulge us for that length of time.
The Presiding Officer: Is there objection to the motion
submitted on the part of the managers?
Mr. Hoffman: We have no objection.
The Presiding Officer: The motion is made. Is there objection?
The Chair hears none, and the motion to strike is granted.
Mr. [Joseph T.] Robinson [of Arkansas]: Mr. President, it would
seem that in the interest of the conservation of time and for the
convenience of the Court, the motion should have been made prior to
the decision on the question involved in the motion of counsel to
strike certain articles. I merely make that observation for the
consideration of the Court.
Answer and Replication
Sec. 18.15 In the Ritter impeachment trial, an answer to the charges
was filed by the respondent, and a replication thereto was
submitted by the managers.
On Apr. 3, 1936, the answer of the respondent in the Ritter
impeachment was read in the Senate, ordered printed, and messaged to
the House. The answer stated that the facts set forth therein did not
constitute impeachable high crimes and misdemeanors and that the
respondent was not guilty of the offenses charged.(19)
---------------------------------------------------------------------------
19. 80 Cong. Rec. 4899-4906, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
On Apr. 6, the respondent's answer was laid before the House and
referred to the managers on the part of the House.(20) On
the same day, the managers filed a replication in the Senate, sitting
as a Court of Impeachment, to the answer of the respondent Judge
Ritter. The replication was prepared and submitted by the managers on
their own initiative, the House not having voted thereon:(1)
---------------------------------------------------------------------------
20. Id. at p. 5020.
1. Id. at pp. 4971, 4972.
---------------------------------------------------------------------------
Replication of the House of Representatives of the United States of
America to the Answer of Halsted L. Ritter, District Judge of the
United States for the Southern District of Florida, to the Articles
of Impeachment, as Amended, Exhibited Against him by the House of
Representatives of the United States of America
The House of Representatives of the United States of America,
having considered the several answers of Halsted L. Ritter,
district judge of the United States for the southern district of
Florida, to the several articles of impeachment, as amended,
against him by them exhibited in the name of themselves and of all
the people of the United States, and reserving to themselves all
advantages of exception to the insufficiency, irrelevancy, and
impertinency of his answer to each and all of the several articles
of impeachment, as amended, so exhibited against the said Halsted
L. Ritter, judge as aforesaid, do say:
[[Page 2239]]
(1) That the said articles, as amended do severally set forth
impeachable offenses, misbehaviors, and misdemeanors as defined in
the Constitution of the United States, and that the same are proper
to be answered unto by the said Halsted L. Ritter, judge as
aforesaid, and sufficient to be entertained and adjudicated by the
Senate sitting as a Court of Impeachment.
(2) That the said House of Representatives of the United States
of America do deny each and every averment in said several answers,
or either of them, which denies or traverses the acts, intents,
misbehaviors, or misdemeanors charged against the said Halsted L.
Ritter in said articles of impeachment, as amended, or either of
them, and for replication to said answers do say that Halsted L.
Ritter, district judge of the United States for the southern
district of Florida, is guilty of the impeachable offenses,
misbehaviors, and misdemeanors charged in said articles, as
amended, and that the House of Representatives are ready to prove
the same.
Hatton W. Sumners,
On behalf of the Managers.
The Trial; Arguments
Sec. 18.16 Opening statements and closing arguments in an impeachment
trial may consist of statements by the managers on the part of the
House and statements by counsel for the accused.
On Apr. 6, 1936,(2) in the impeachment trial of Judge
Halsted Ritter, opening statements were made in the Senate by the
managers on the part of the House and by counsel for the
accused.(3) The respondent himself testified before the
Court of Impeachment.(4) Final arguments were made on Apr.
13 and 14 first by Mr. Sam Hobbs, of Alabama, for the managers, then by
Mr. Walsh for the respondent, and finally by Mr. Hatton W. Sumners, of
Texas, for the managers, the arguments being limited by an order
adopted on Apr. 13:
---------------------------------------------------------------------------
2. 80 Cong. Rec. 4972-82, 74th Cong. 2d Sess.
3. For precedents during the trial as to the evidence, see
Sec. Sec. 12.7-12.9, supra.
4. 80 Cong. Rec. 5370-86, 74th Cong. 2d Sess., Apr. 11 and Apr. 13,
1936.
---------------------------------------------------------------------------
Ordered, That the time for final argument of the case of
Halsted L. Ritter shall be limited to 4 hours, which said time
shall be divided equally between the managers on the part of the
House of Representatives and the counsel for the respondent, and
the time thus assigned to each side shall be divided as each side
for itself may determine.(5)
---------------------------------------------------------------------------
5. Id. at p. 5401.
For final arguments on Apr. 13, 1936, see id. at pp. 5401-
10; for Apr. 14, 1936, see id. at pp. 5464-73.
---------------------------------------------------------------------------
Mr. Hobbs argued three principles bearing on the weight of evidence
and burden of proof in an impeachment trial:
The statement of the law of the case, as we see it, will
largely be left to the distinguished chairman of the Judici
[[Page 2240]]
ary Committee of the House [Mr. Manager Sumners], the chairman of
the managers on the part of the House in this case, and I will not
attempt to go into that, save to observe these three points which,
to my mind, should be in the minds of the Members of this high
Court of Impeachment at all times in weighing this evidence:
First, that impeachment trials are not criminal trials in any
sense of the word.
Second, that the burden of proof in this case is not ``beyond a
reasonable doubt'', as it is in criminal cases.
Third, that the presumption of innocence, which attends a
defendant in a criminal case, is not to be indulged in behalf of
the respondent in an impeachment trial. Those three principles of
law, I believe, are well recognized, and we respectfully ask the
Members of this high Court of Impeachment to bear them in mind.
The present distinguished senior Senator from Nebraska [Mr.
Norris], when acting as one of the managers on the part of the
House in the impeachment trial of Judge Robert W. Archbald, made as
clear and cogent a statement as has ever been made upon the subject
of impeachable conduct. With his kind permission, I should like to
take that as my text, so to speak, for the remarks that will
follow:
If judges can hold their offices only during good behavior,
then it necessarily and logically follows that they cannot hold
their offices when they have been convicted of any behavior
that is not good. If good behavior is an essential of holding
the office, then misbehavior is a sufficient reason for removal
from office.(6)
---------------------------------------------------------------------------
6. Id. at p. 5401.
---------------------------------------------------------------------------
Mr. Walsh concluded his argument based on the lack of evidence of
charges and on the good character and reputation of the respondent:
Gentlemen, all I can say to you is that if this case were being
tried in an ordinary court a demurrer to the evidence would be
sustained. The law is that those bringing these charges must prove
the receipt of income; they must prove the amount that was paid out
against that income; they must prove what his exemptions were; they
must prove what his allowances were; they must prove a tax
liability. Those matters would all have been looked into, and as we
look into them in this case there is no tax liability. When Judge
Ritter swears he did not defraud the Government of a dollar, when
he says that the $6.25 tax was not due because his exemptions
exceeded that sum, the court would direct a verdict in his favor.
In 1930 Judge Ritter had a loss which, added to his taxes and
other expenditures, gave him a leeway of $4,600 over and above the
income that he could be charged with having received. He testified
to this, and you ought to believe that he testified to the truth,
for a charge must be supported by something greater, I say, than
the mere assertion of counsel, and nothing else has been introduced
in this case in support of that charge. If Judge Ritter were found
guilty upon that charge, which was filed in this Court on March 30,
1936--after he came here to defend himself against the other
charges--that would be a monstrous thing. Those bringing the charge
did not, nor
[[Page 2241]]
could they, make proof that Judge Ritter owed his Government a cent
of income taxes or that Judge Ritter did anything improper in the
filing of his return. It ought to be the pleasure of this body to
acquit him of the charges with respect to income taxes, because the
law protects him, because he is innocent of any offense in that
regard.
Take this whole case in its entirety, gentlemen. I have tried
to argue it on the facts. I have drawn no conclusions which I did
not honestly believe came from these facts. My argument is backed
up by the belief that you must recognize and accept his innocence
as he stood here, a brave and manly man, testifying in opposition
to these charges which have been made against him. It will not do
to say that he undermined the dignity or the honor of the court. He
did nothing in his whole career in Florida, according to the
witnesses, which would belittle that dignity or besmirch his honor.
There is another thing I wish to call to your attention. I know
and you know that a judge ought to have a good reputation. In this
case, however, where a charge is made against his integrity, where
a charge of corruption is made against him, he put his reputation
in that community in evidence before this body.(7)
---------------------------------------------------------------------------
7. Id. at p. 5468.
---------------------------------------------------------------------------
Mr. Sumners began and concluded his argument, the final argument in
the case, as follows:
We do not assume the responsibility, Members of this
distinguished Court, of proving that the respondent in this case is
guilty of a crime as that term is known to criminal jurisprudence.
We do assume the responsibility of bringing before you a case,
proven facts, the reasonable and probable consequences of which are
to cause the people to doubt the integrity of the respondent
presiding as a judge among a free people.
We take the position, first, that justice must be done to the
respondent. The respondent must be protected against those who
would make him afraid. But we take the position also that when a
judge on the bench, by his own conduct, does that which makes an
ordinary person doubt his integrity, doubt whether his court is a
fair place to go, doubt whether he, that ordinary person, will get
a square deal there; doubt whether the judge will be influenced by
something other than the sworn testimony, that judge must go.
This august body writes the code of judicial ethics. This Court
fixes the standard of permissible judicial conduct. It will not be,
it cannot be, that someone on the street corner will destroy the
confidence of the American people in the courts of this country.
That cannot happen if the courts are kept clean. If confidence in
the courts of this country is destroyed it is going to be destroyed
from within by the judges themselves. I declare to you, standing in
my place of responsibility, that that is one thing which neither
the House nor the Senate can permit to be tampered with or which
they can be easy about. . . .
Now, let us look at this case. I do not know anything about
what happened in Colorado, but when we see this respondent in this
record he is down there in Florida as the secretary of a real-
estate concern. After that he forms
[[Page 2242]]
a copartnership with Mr. Rankin. Two years and three months after
that time he occupies a position on the Federal bench, and when the
Government put him there, when the people put him there, they said
to him, ``All we ask of you is to behave yourself.'' Good behavior!
What does that mean? It means obey the law, keep yourself free from
questionable conduct, free from embarrassing entanglements, free
from acts which justify suspicion; hold in clean hands the scales
of justice. That means that he shall not take chances that would
tend to cause the people to question the integrity of the court,
because where doubt enters confidence departs. Is not that sound?
When 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 Constitution. It is
not essential to prove guilt. There is nothing in the Constitution
and nothing in the philosophy of a free government that holds that
a man shall continue to occupy office until it can be established
beyond a reasonable doubt that he is not fit for the office. It is
the other way. When there is resulting from the judge's conduct a
reasonable doubt as to his integrity he has no right to stay
longer. He has forfeited his right. It is the high duty of this
Court to write the judgment and make effective the terms of that
contract. . . .(8)
---------------------------------------------------------------------------
8. Id. at p. 5469.
---------------------------------------------------------------------------
Mr. Manager Sumners: I do not want to be tedious, but this is
very important, because these things go down to the depths of this
man's character.
When he wrote this letter he referred to him as ``A. L. Rankin,
of Andalusia, Ala.'' Why did he do that? Because the job Rankin was
trying to get was in Alabama. Just think of that, and weigh it.
In another letter he said:
I want to say that Judge Rankin is a man of the highest
character and integrity. He is one of the ablest common-law
lawyers in the South.
That is a statement made by a judge upon his responsibility.
We were partners in the practice of law in West Palm Beach
before my appointment on the bench. I know of no man better
qualified from the standpoint of experience, ability, and
character for the position.
And so forth. Then he writes again in another letter that if he
is appointed he will raise the bench to a high place.
I say a man who will not speak the truth above his signed name
will not swear it, and a man who will not state the truth, and who
does those things which arouse doubt as to his integrity must go
from the bench.
I appreciate profoundly the attention which the Members of this
honorable Court have given the case.
There ought to be a unanimous judgment in this case, and let it
ring out from this Chamber all over the Nation that from now on men
who hold positions in the Federal judiciary must be obedient to the
high principles which in the nature of things it is essential for a
judge to manifest.
A few Federal judges can reflect upon the great body of
honorable men who hold these high positions.
There is another thing I was about to forget. Of course, the
bondholders in Chicago did not protest the $90,000 fee to Rankin.
The attorneys for the bond
[[Page 2243]]
holders and Mr. Holland were in the respondent's court at the same
time. They came to represent 93 percent of the $2,500,000 of the
first-mortgage bonds. They heard the respondent advised of the
champertous conduct of Richardson, Rankin et al., and they saw the
respondent approve. They were virtually kicked out of the court.
They wanted the case out of that court and away from Rankin and the
respondent just as quickly as they could get it out, and they would
have stood not only for that fee of $90,000 but for more; and any
of you practicing law would have done the same thing under the
circumstances. You remember McPherson said respondent was positive,
very positive, about Mr. Holland. Respondent was a great deal
stronger with regard to the attorney for the bondholders. Remember
the judge asked Holland, ``Who bought you off?'' of course they
were glad to get out at almost any price.
Members of the Court, there is a great deal more which ought to
be said, but you have the record and my time has about expired. I
have a duty to perform and you have yours. Mine is finished.
The House has done all the House can do toward protecting the
judiciary of the country. The people have trusted in you. Counsel
for the respondent kept emphasizing the fact that this respondent
stood and swore, stood and swore, stood and swore. I remember that
I saw the Members of this honorable Court lift their hands to God
Almighty, and, in that oath which they took, pledge themselves to
rise above section and party entanglements and to be true to the
people of the Nation in the exercise of this high power. I have no
doubt you will do it.
I thank this honorable Court for the courtesy and consideration
which have been shown to my colleagues and to me as we have tried
to discharge our constitutional duty in this matter.(9)
---------------------------------------------------------------------------
9. Id. at pp. 5472, 5473.
---------------------------------------------------------------------------
Deliberation and Judgment
Sec. 18.17 Deliberation was followed by conviction on a general article
of impeachment and by judgment of removal from office in the trial
of Judge Halsted Ritter.
Final arguments in the Ritter trial having been concluded on Apr.
14, 1936, the Court of Impeachment adjourned until Apr. 15, when the
doors of the Senate were closed for deliberation on motion of Senator
Henry F. Ashurst, of Arizona. The Senate deliberated with closed doors
for 4 hours and 37 minutes. A unanimous-consent agreement entered into
while the Senate was deliberating with closed doors was printed in the
Record; the order provided for a vote on the articles of impeachment on
Friday, Apr. 17.(10)
---------------------------------------------------------------------------
10. 80 Cong. Rec. 5505, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
Deliberation with closed doors was continued on Apr. 16, 1936, for
5 hours and 48 minutes. When the doors were opened, the Senate adopted
orders to return evidence
[[Page 2244]]
to proper persons, to allow each Senator to file written opinions
within four days after the final vote, and to provide a method of vote.
The latter order read as follows:
Ordered, That upon the final vote in the pending impeachment of
Halsted L. Ritter, the Secretary shall read the articles of
impeachment separately and successively, and when the reading of
each article shall have been concluded the Presiding Officer shall
state the question thereon as follows:
``Senators, how say you? Is the respondent, Halsted L. Ritter,
guilty or not guilty?''
Thereupon the roll of the Senate shall be called, and each
Senator as his name is called, unless excused, shall arise in his
place and answer ``guilty'' or ``not guilty.'' (11)
---------------------------------------------------------------------------
11. Id. at pp. 5558, 5559.
---------------------------------------------------------------------------
On Apr. 17, 1936, the Senate convened as a Court of Impeachment to
vote on the articles against Judge Ritter. Senator Joseph T. Robinson,
of Arkansas, announced those Senators absent and excused and announced
that pairs would not be recognized in the proceedings. Eighty-four
Senators answered to their names on the quorum call.
President pro tempore Key Pittman, of Nevada, proceeded to put the
vote on the articles of impeachment, a two-thirds vote being required
to convict. The vote was insufficient to convict on the first six
articles: Article I: 55 ``guilty'';--29 ``not guilty''; Article II: 52
``guilty''--32 ``not guilty''; Article III: 44 ``guilty''--39 ``not
guilty''; Article IV: 36 ``guilty''--48 ``not guilty''; Article V: 36
``guilty''--48 ``not guilty''; Article VI: 46 ``guilty''--37 ``not
guilty.'' But on the final Article, Article VII, the vote was: 56
``guilty''--28 ``not guilty.'' So the Senate convicted Judge Ritter on
the seventh article of impeachment, charging general misbehavior and
conduct that brought his court into scandal and disrepute.
Senator Warren R. Austin, of Vermont, made a point of order against
the vote on the ground that two-thirds had not voted to convict,
Article VII being an accumulation of facts and circumstances. The
President pro tempore sustained a point of order that Senator Austin
was indulging in argument rather than stating the grounds for his point
of order, and overruled Senator Austin's point of order.(12)
---------------------------------------------------------------------------
12. Id. at p. 5606.
---------------------------------------------------------------------------
Senator Ashurst submitted an order both removing Judge Ritter from
office and disqualifying him from holding and enjoying any office of
honor, trust, or profit under the United States. Senator Robert M. La
Follette, Jr., of Wisconsin,
[[Page 2245]]
asked for a division of the question, but Senator George W. Norris, of
Nebraska, suggested that Senator Ashurst should submit two orders,
since removal followed from conviction but disqualification did not.
Senator Ashurst thereupon withdrew the original order and submitted an
order removing Judge Ritter from office. The President pro tempore
ruled that no vote was required on the order, removal automatically
following conviction for high crimes and misdemeanors under section 4
of article II of the U.S. Constitution. The President pro tempore then
pronounced judgment:
Judgment
The Senate having tried Halsted L. Ritter, United States
district judge for the southern district of Florida, upon seven
several articles of impeachment exhibited against him by the House
of Representatives, and two-thirds of the Senators present having
found him guilty of charges contained therein: It is therefore
Ordered and adjudged, That the said Halsted L. Ritter be, and
he is hereby, removed from office.
Senator Ashurst submitted a second order disqualifying the
respondent from holding an office of honor, trust, or profit under the
United States. It was agreed, in reliance on the Robert Archbald
proceedings, that only a majority vote was required for passage. The
order for disqualification failed on a yea and nay vote--yeas 0, nays
76.
The Senate adopted an order communicating the order and judgment to
the House, and the Senate adjourned sine die from the Court of
Impeachment.(13)
---------------------------------------------------------------------------
13. Id. at pp. 5606, 5607.
---------------------------------------------------------------------------
Subsequent to his conviction and removal from office, the
respondent brought an action in the U.S. Court of Claims for back
salary, claiming that the Senate had exceeded its jurisdiction in
trying him for nonimpeachable charges. The Court of Claims dismissed
the claim for want of jurisdiction on the ground that the impeachment
power was vested in Congress and was not subject to judicial
review.(14)
---------------------------------------------------------------------------
14. Ritter v United States, 84 Ct. Cl 293 (1936), cert. denied, 300
U.S. 668 (1937). The opinion of the Court of Claims cited dicta
in the case of Mississippi v Johnson, 71 U.S. 475 (1866), to
support the conclusion that the impeachment power was political
in nature and not subject to judicial review.
---------------------------------------------------------------------------
Sec. 18.18 The order and judgment of the Senate in the Ritter
impeachment trial were messaged to the House.
On Apr. 20, 1936,(15) the order and judgment in the
Halsted Rit
[[Page 2246]]
ter impeachment trial were received in the House:
---------------------------------------------------------------------------
15. 80 Cong. Rec. 5703, 5704, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
Message From the Senate
A message from the Senate, by Mr. Home, its enrolling clerk,
announced that the Senate had ordered that the Secretary be
directed to communicate to the President of the United States and
the House of Representatives the order and judgment of the Senate
in the case of Halsted L. Ritter, and transmit a certified copy of
same to each, as follows:
I, Edwin A. Halsey, Secretary of the Senate of the United
States of America, do hereby certify that the hereto attached
document is a true and correct copy of the order and judgment
of the Senate, sitting for the trial of the impeachment of
Halsted L. Ritter, United States district judge for the
southern district of Florida, entered in the said trial on
April 17, 1936.
In testimony whereof, I hereunto subscribe my name and
affix the seal of the Senate of the United States of America,
this the 18th day of April, A.D. 1936.
Edwin A. Halsey,
Secretary of the Senate
of the United States.
In the Senate of the United States of America, sitting for the
trial of the impeachment of Halsted L. Ritter, United
States district judge for the southern district of Florida
Judgment
April 17, 1936.
The Senate having tried Halsted L. Ritter, United States
district judge for the southern district of Florida, upon seven
several articles of impeachment exhibited against him by the
House of Representatives, and two-thirds of the Senators
present having found him guilty of charges contained therein:
It is therefore
Ordered and adjudged, That the said Halsted L. Ritter be,
and he is hereby, removed from office.
Attest:
Edwin A. Halsey
Secretary.
[[Page 2247]]
CHAPTER 14
Impeachment Powers
D. HISTORY OF PROCEEDINGS
APPENDIX
Report by the Staff of the Impeachment Inquiry on the Constitutional
Grounds for Presidential Impeachment, Committee Print, Committee on the
Judiciary, 93d Cong. 2d Sess., Feb. 1974
I. Introduction
The Constitution deals with the subject of impeachment and
conviction at six places. The scope of the power is set out 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.
Other provisions deal with procedures and consequences. Article I,
Section 2 states:
The House of Representatives . . . shall have the sole Power of
Impeachment.
Similarly, Article I, Section 3, describes the Senate's role:
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.
The same section limits the consequences of judgment in cases of
impeachment:
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.
Of lesser significance, although mentioning the subject, are:
Article II, Section 2:
The President . . . shall have Power to grant Reprieves and
Pardons for Offences against the United States, except in Cases of
Impeachment.
Article III, Section 2:
The Trial of all Crimes, except in Cases of Impeachment, shall
be by Jury. . . .
Before November 15, 1973 a number of Resolutions calling for the
impeachment of President Richard M. Nixon had been introduced in the
House of Representatives, and had been referred by the Speaker of the
House, Hon. Carl Albert, to the Committee on the Judiciary for
consideration, investigation and report. On November 15, anticipating
the magnitude of the Committee's task, the House voted funds to enable
the Committee to carry out its assignment and in that regard to select
an inquiry staff to assist the Committee.
On February 6, 1974, the House of Representatives by a vote of 410
to 4
[[Page 2248]]
``authorized and directed'' the Committee on the Judiciary ``to
investigate fully and completely whether sufficient grounds exist for
the House of Representatives to exercise its constitutional power to
impeach Richard M. Nixon, President of the United States of America.''
To implement the authorization (H. Res. 803) the House also
provided that ``For the purpose of making such investigation, the
committee is authorized to require . . . by subpoena or otherwise . . .
the attendance and testimony of any person . . . and . . . the
production of such things; and . . . by interrogatory, the furnishing
of such information, as it deems necessary to such investigation.''
This was but the second time in the history of the United States
that the House of Representatives resolved to investigate the
possibility of impeachment of a President. Some 107 years earlier the
House had investigated whether President Andrew Johnson should be
impeached. Understandably, little attention or thought has been given
the subject of the presidential impeachment process during the
intervening years. The Inquiry Staff, at the request of the Judiciary
Committee, has prepared this memorandum on constitutional grounds for
presidential impeachment. As the factual investigation progresses, it
will become possible to state more specifically the constitutional,
legal and conceptual framework within which the staff and the Committee
work.
Delicate issues of basic constitutional law are involved. Those
issues cannot be defined in detail in advance of full investigation of
the facts. The Supreme Court of the United States does not reach out,
in the abstract, to rule on the constitutionality of statutes or of
conduct. Cases must be brought and adjudicated on particular facts in
terms of the Constitution. Similarly, the House does not engage in
abstract, advisory or hypothetical debates about the precise nature of
conduct that calls for the exercise of its constitutional powers;
rather, it must await full development of the facts and understanding
of the events to which those facts relate.
What is said here does not reflect any prejudgment of the facts or
any opinion or inference respecting the allegations being investigated.
This memorandum is written before completion of the full and fair
factual investigation the House directed be undertaken. It is intended
to be a review of the precedents and available interpretive materials,
seeking general principles to guide the Committee.
This memorandum offers no fixed standards for determining whether
grounds for impeachment exist. The framers did not write a fixed
standard. Instead they adopted from English history a standard
sufficiently general and flexible to meet future circumstances and
events, the nature and character of which they could not foresee.
The House has set in motion an unusual constitutional process,
conferred solely upon it by the Constitution, by directing the
Judiciary Committee to ``investigate fully and completely whether
sufficient grounds exist for the House of Representatives to exercise
its constitutional power to impeach.'' This action was not partisan. It
was supported by the overwhelming majority of both political parties.
Nor was it intended to obstruct or weaken the presidency. It was
supported by Members firmly committed to the need for a strong
presidency and a healthy executive branch of our government. The House
of Representatives acted out of a clear sense of constitu
[[Page 2249]]
tional duty to resolve issues of a kind that more familiar
constitutional processes are unable to resolve.
To assist the Committee in working toward that resolution, this
memorandum reports upon the history, purpose and meaning of the
constitutional phrase, ``Treason, Bribery, or other high Crimes and
Misdemeanors.''
II. The Historical Origins of Impeachment
The Constitution provides that the President ``. . . shall be
removed from Office on Impeachment for, and Conviction of, Treason,
Bribery, or other high Crimes and Misdemeanors.'' The framers could
have written simply ``or other crimes''--as indeed they did in the
provision for extradition of criminal offenders from one state to
another. They did not do that. If they had meant simply to denote
seriousness, they could have done so directly. They did not do that
either. They adopted instead a unique phrase used for centuries in
English parliamentary impeachments, for the meaning of which one must
look to history.
The origins and use of impeachment in England, the circumstances
under which impeachment became a part of the American constitutional
system, and the American experience with impeachment are the best
available sources for developing an understanding of the function of
impeachment and the circumstances in which it may become appropriate in
relation to the presidency.
A. The English Parliamentary Practice
Alexander Hamilton wrote, in No. 65 of The Federalist, that Great
Britain had served as ``the model from which [impeachment] has been
borrowed.'' Accordingly, its history in England is useful to an
understanding of the purpose and scope of impeachment in the United
States.
Parliament developed the impeachment process as a means to exercise
some measure of control over the power of the King. An impeachment
proceeding in England was a direct method of bringing to account the
King's ministers and favorites--men who might otherwise have been
beyond reach. Impeachment, at least in its early history, has been
called ``the most powerful weapon in the political armoury, short of
civil war.'' (1) It played a continuing role in the
struggles between King and Parliament that resulted in the formation of
the unwritten English constitution. In this respect impeachment was one
of the tools used by the English Parliament to create more responsive
and responsible government and to redress imbalances when they
occurred.(2)
---------------------------------------------------------------------------
1. Plucknett, ``Presidential Address'' reproduced in 3 Transactions,
Royal Historical Society, 5th Series, 145 (1952).
2. See generally C. Roberts, The Growth of Responsible Government in
Stuart England (Cambridge 1966).
---------------------------------------------------------------------------
The long struggle by Parliament to assert legal restraints over the
unbridled will of the King ultimately reached a climax with the
execution of Charles I in 1649 and the establishment of the
Commonwealth under Oliver Cromwell. In the course of that struggle,
Parliament sought to exert restraints over the King by removing those
of his ministers who most effectively advanced the King's absolutist
purposes. Chief among them was
[[Page 2250]]
Thomas Wentworth, Earl of Strafford. The House of Commons impeached him
in 1640. As with earlier impeachments, the thrust of the charge was
damage to the state.(3) The first article of impeachment
alleged.(4)
---------------------------------------------------------------------------
3. Strafford was charged with treason, a term defined in 1352 by the
Statute of Treasons. 25 Edw. 3, stat. 5, c. 2 (1352). The
particular charges against him presumably would have been
within the compass of the general, or ``salvo,'' clause of that
statute, but did not fall within any of the enumerated acts of
treason. Strafford rested his defense in part on that failure;
his eloquence on the question of retrospective treasons
(``Beware you do not awake these sleeping lions, by the
searching out some neglected moth-eaten records, they may one
day tear you and your posterity in pieces: it was your
ancestors' care to chain them up within the barricadoes of
statutes; be not you ambitious to be more skillful and curious
than your forefathers in the art of killing.'' Celebrated
Trials 518 [Phila. 1837]) may have dissuaded the Commons from
bringing the trial to a vote in the House of Lords: instead
they caused his execution by bill of attainder.
4. J. Rushworth, The Tryal of Thomas Earl of Strafford, in 8
Historical Collections 8 (1686).
---------------------------------------------------------------------------
That he . . . hath traiterously endeavored to subvert the
Fundamental Laws and Government of the Realms . . . and in stead
thereof, to introduce Arbitrary and Tyrannical Government against
Law. . . .
The other articles against Strafford included charges ranging from
the allegation that he had assumed regal power and exercised it
tyrannically to the charge that he had subverted the rights of
Parliament.(5)
---------------------------------------------------------------------------
5. Rushworth, supra n. 4, at 8-9. R. Berger, Impeachment: The
Constitutional Problems 30 (1973), states that the impeachment
of Strafford ``. . . constitutes a great watershed in English
constitutional history of which the Founders were aware.''
---------------------------------------------------------------------------
Characteristically, impeachment was used in individual cases to
reach offenses, as perceived by Parliament, against the system of
government. The charges, variously denominated ``treason,'' ``high
treason,'' ``misdemeanors,'' ``malversations,'' and ``high Crimes and
Misdemeanors,'' thus included allegations of misconduct as various as
the kings (or their ministers) were ingenious in devising means of
expanding royal power.
At the time of the Constitutional (Convention the phrase ``high
Crimes and Misdemeanors'' had been in use for over 400 years in
impeachment proceedings in Parliament.(6) It first appears
in 1386 in the impeachment of the King's Chancellor, Michael de la
Pole, Earl of Suffolk.(7) Some of the charges may have
involved common law offenses.(8) Others
[[Page 2251]]
plainly did not: de la Pole was charged with breaking a promise he made
to the full Parliament to execute in connection with a parliamentary
ordinance the advice of a committee of nine lords regarding the
improvement of the estate of the King and the realm; ``this was not
done, and it was the fault of himself as he was then chief officer.''
He was also charged with failing to expend a sum that Parliament had
directed be used to ransom the town of Ghent, because of which ``the
said town was lost.'' (9)
---------------------------------------------------------------------------
6. See generally A. Simpson, A Treatise on Federal Impeachments 81-190
(Philadelphia, 1916) (Appendix of English Impeachment Trials);
M. V. Clarke, ``The Origin of Impeachment'' in Oxford Essays in
Medieval History 164 (Oxford, 1934). Reading and analyzing the
early history of English impeachments is complicated by the
paucity and ambiguity of the records. The analysis that follows
in this section has been drawn largely from the scholarship of
others, checked against the original records where possible.
The basis for what became the impeachment procedure
apparently originated in 1341, when the King and Parliament
alike accepted the principle that the King's ministers were to
answer in Parliament for their misdeeds. C. Roberts, supra n.
2, at 7. Offenses against Magna Carta, for example, were
failing for technicalities in the ordinary courts, and
therefore Parliament provided that offenders against Magna
Carta be declared in Parliament and judged by their peers.
Clarke, supra, at 173.
7. Simpson, supra n. 6, at 86; Berger, supra n. 5, at 61, Adams and
Stevens, Select Documents of English Constitutional History 148
(London, 1927).
8. For example, de la Pole was charged with purchasing property of
great value from the King while using his position as
Chancellor to have the lands appraised at less than they were
worth, all in violation of his oath, in deceit of the King and
in neglect of the need of the realm. Adams and Stevens, supra
n. 7, at 148.
9. Adams and Stevens, supra n. 7, at 148-150.
---------------------------------------------------------------------------
The phrase does not reappear in impeachment proceedings until 1450.
In that year articles of impeachment against William de la Pole, Duke
of Suffolk (a descendant of Michael), charged him with several acts of
high treason, but also with ``high Crimes and Misdemeanors,''
(10) including such various offenses as ``advising the King
to grant liberties and privileges to certain persons to the hindrance
of the due execution of the laws'' ``procuring offices for persons who
were unfit, and unworthy of them'' and ``squandering away the public
treasure.'' (11)
---------------------------------------------------------------------------
10. 4 Hatsell 67 (Shannon, Ireland, 1971, reprint of London 1796,
1818).
11. 4 Hatsell, supra n. 10, at 67, charges 2, 6 and 12.
---------------------------------------------------------------------------
Impeachment was used frequently during the reigns of James I (1603-
1625) and Charles I (1628-1649). During the period from 1620 to 1649
over 100 impeachments were voted by the House of
Commons.(12) Some of these impeachments charged high
treason, as in the case of Strafford; others charged high crimes and
misdemeanors. The latter included both statutory offenses, particularly
with respect to the Crown monopolies, and nonstatutory offenses. For
example, Sir Henry Yelverton, the King's Attorney General, was
impeached in 1621 of high crimes and misdemeanors in that he failed to
prosecute after commencing suits, and exercised authority before it was
properly vested in him.(13)
---------------------------------------------------------------------------
12. The Long Parliament (1640-48) alone impeached 98 persons. Roberts
supra n. 2, at 133.
13. 2 Howell State Trials 1135, 1136-37 (charges 1, 2 and 6). See
generally Simpson, supra n. 6, at 91-127; Berger, supra n. 5,
at 67-73.
---------------------------------------------------------------------------
There were no impeachments during the Commonwealth (1649-1660).
Following the end of the Commonwealth and the Restoration of Charles II
(1660-1685) a more powerful Parliament expanded somewhat the scope of
``high Crimes and Misdemeanors'' by impeaching officers of the Crown
for such things as negligent discharge of duties (14) and
improprieties in office.(15)
---------------------------------------------------------------------------
14. Peter Pett, Commissioner of the Navy, was charged in 1668 with
negligent preparation for an invasion by the Dutch, and
negligent loss of a ship. The latter charge was predicated on
alleged willful neglect in failing to insure that the ship was
brought to a mooring. 6 Howell State Trials 865, 866-67
(charges 1, 5).
15. Chief Justice Scroggs was charged in 1680, among other things, with
browbeating witnesses and commenting on their credibility, and
with cursing and drinking to excess, thereby bringing ``the
highest scandal on the public justice of the kingdom.'' 8
Howell State Trials 197, 200 (charges 7, 8).
---------------------------------------------------------------------------
The phrase ``high Crimes and Misdemeanors'' appears in nearly all
of the comparatively few impeachments that occurred in the eighteenth
century. Many of the charges involved abuse of official power or trust.
For example, Edward, Earl of Oxford, was charged in 1701 with
``violation of his duty and trust'' in that,
[[Page 2252]]
while a member of the King's privy council, he took advantage of the
ready access he had to the King to secure various royal rents and
revenues for his own use, thereby greatly diminishing the revenues of
the crown and subjecting the people of England to ``grievous
taxes.''(16), Oxford was also charged with procuring a naval
commission for William Kidd, ``known to be a person of ill fame and
reputation,'' and ordering him ``to pursue the intended voyage, in
which Kidd did commit diverse piracies . . . being thereto encouraged
through hopes of being protected by the high station and interest of
Oxford, in violation of the law of nations, and the interruption and
discouragement of the trade of England.''(17)
---------------------------------------------------------------------------
16. Simpson, supra n. 6, at 144.
17. Simpson, supra n. 6, at 144.
---------------------------------------------------------------------------
The impeachment of Warren Hastings, first attempted in 1786 and
concluded in 1795,(18) is particularly important because
contemporaneous with the American Convention debates. Hastings was the
first Governor-General of India. The articles indicate that Hastings
was being charged with high crimes and misdemeanors in the form of
gross maladministration, corruption in office, and cruelty toward the
people of India.(19)
---------------------------------------------------------------------------
18. See generally Marshall, The Impeachment of Warren Hastings (Oxford,
1965).
19. Of the original resolutions proposed by Edmund Burke in 1786 and
accepted by the House as articles of impeachment in 1787, both
criminal and non-criminal offenses appear. The fourth article,
for example, charging that Hastings had confiscated the landed
income of the Begums of Oudh, was described by Pitt as that of
all others that bore the strongest marks of criminality,
Marshall, supra, n. 19, at 53.
The third article, on the other hand, known as the Benares
charge, claimed that circumstances imposed upon the Governor-
General duty to conduct himself ``on the most distinguished
principles of good faith, equity, moderation and mildness.''
Instead, continued the charge, Hastings provoked a revolt in
Benares, resulting in ``the arrest of the rajah, three
revolutions in the country and great loss, whereby the said
Hastings is guilty of a high crime and misdemeanor in the
destruction of the country aforesaid.'' The Commons accepted
this article, voting 119-79 that these were grounds for
impeachment. Simpson, supra n. 6, at 168-170; Marshall, supra
n. 19, at xv, 46.
---------------------------------------------------------------------------
Two points emerge from the 400 years of English parliamentary
experience with the phrase ``high Crimes and Misdemeanors.'' First, the
particular allegations of misconduct alleged damage to the state in
such forms as misapplication of funds, abuse of official power, neglect
of duty, encroachment on Parliament's prerogatives, corruption, and
betrayal of trust.(20) Second, the phrase ``high Crimes and
Misdemeanors'' was confined to parliamentary impeachments; it had no
roots in the ordinary criminal law,(21) and the particular
allegations of misconduct under that heading were not necessarily
limited to common law or statutory derelictions or crimes.
---------------------------------------------------------------------------
20. See, e.g., Berger, supra n. 5, at 70-71.
21. Berger, supra n. 5, at 62.
---------------------------------------------------------------------------
B. The Intention of the Framers
The debates on impeachment at the Constitutional Convention in
Philadelphia focus principally on its applicability to the President.
The framers sought to create a responsible though strong executive;
they hoped, in the words of Elbridge Gerry of Massachusetts, that ``the
maxim would never be adopted here that the chief Magistrate could do
[no] wrong.''(22) Impeachment was to be one of the central
elements of executive responsibility
[[Page 2253]]
in the framework of the new government as they conceived it.
---------------------------------------------------------------------------
22. The Records of the Federal Convention 66 (M. Farrand ed. 1911)
(brackets in original). Hereafter cited as Farrand.
---------------------------------------------------------------------------
The constitutional grounds for impeachment of the President
received little direct attention in the Convention; the phrase ``other
high Crimes and Misdemeanors'' was ultimately added to ``Treason'' and
``Bribery'' with virtually no debate. There is evidence, however, that
the framers were aware of the technical meaning the phrase had acquired
in English impeachments.
Ratification by nine states was required to convert the
Constitution from a proposed plan of government to the supreme law of
the land. The public debates in the state ratifying conventions offer
evidence of the contemporaneous understanding of the Constitution
equally as compelling as the secret deliberations of the delegates in
Philadelphia. That evidence, together with the evidence found in the
debates during the First Congress on the power of the President to
discharge an executive officer appointed with the advice and consent of
the Senate, shows that the framers intended impeachment to be a
constitutional safeguard of the public trust, the powers of government
conferred upon the President and other civil officers, and the division
of powers among the legislative, judicial and executive departments.
1. the purpose of the impeachment remedy
Among the weaknesses of the Articles of Confederation apparent to
the delegates to the Constitutional Convention was that they provided
for a purely legislative form of government whose ministers were
subservient to Congress. One of the first decisions of the delegates
was that their new plan should include a separate executive judiciary,
and legislature.(23) However, the framers sought to avoid
the creation of a too-powerful executive. The Revolution had been
fought against the tyranny of a king and his council, and the framers
sought to build in safeguards against executive abuse and usurpation of
power. They explicitly rejected a plural executive, despite arguments
that they were creating ``the foetus of monarchy,''(24)
because a single person would give the most responsibility to the
office.(25) For the same reason, they rejected proposals for
a council of advice or privy council to the executive (footnote
omitted).
---------------------------------------------------------------------------
23. 1 Farrand 322.
24. 1 Farrand 66.
25. This argument was made by James Wilson of Pennsylvania, who also
said that he preferred a single executive as ``giving most
energy dispatch and responsibility to the office.'' 1 Farrand
65.
---------------------------------------------------------------------------
The provision for a single executive was vigorously defended at the
time of the state ratifying conventions as a protection against
executive tyranny and wrongdoing. Alexander Hamilton made the most
carefully reasoned argument in Federalist No. 70, one of the series of
Federalist Papers prepared to advocate the ratification of the
Constitution by the State of New York. Hamilton criticized both a
plural executive and a council because they tend ``to conceal faults
and destroy responsibility.'' A plural executive, he wrote, deprives
the people of ``the two greatest securities they can have for the
faithful exercise of any delegated power''--``[r]esponsibility . . . to
censure and to punishment.'' When censure is divided and responsibility
uncertain, ``the restraints of public opinion . . . lose their
efficacy'' and ``the opportunity of discovering with facility and
clearness
[[Page 2254]]
the misconduct of the persons [the public] trust, in order either to
their removal from office, or to their actual punishment. in cases
which admit of it'' is lost.(26) A council, too, ``would
serve to destroy, or would greatly diminish, the intended and necessary
responsibility of the (Chief Magistrate himself.''(27) It
is, Hamilton concluded, ``far more safe [that] there should be a single
object for the jealousy and watchfulness of the people; . . . all
multiplication of the Executive is rather dangerous than friendly to
liberty.'' (28)
---------------------------------------------------------------------------
26. The Federalist No. 70, at 459-61 (Modern Library ea.) (A. Hamilton)
(hereinafter cited as Federalist). The ``multiplication of the
Executive,'' Hamilton wrote, ``adds to the difficulty of
detection'':
L The circumstances which may have led to any national
miscarriage of misfortune are sometimes so complicated that,
where there are a number of actors who may have had different
degrees and kinds of agency, though we may clearly see upon the
whole that there has been mismanagement, yet it may be
impracticable to pronounce to whose account the evil which may
have been incurred is truly chargeable.
If there should be ``collusion between the parties
concerned, how easy it is to clothe the circumstances with so
much ambiguity, as to render it uncertain what was the precise
conduct of any of those parties?'' Id. at 460.
27. Federalist No. 70 at 461. Hamilton stated:
L A council to a magistrate, who is himself responsible
for what he does, are generally nothing better than a clog upon
his good intentions, are often the instruments and accomplices
of his bad, and are almost always a cloak to his faults. Id. at
462-63.
28. Federalist No. 70 at 462.
---------------------------------------------------------------------------
James Iredell, who played a leading role in the North Carolina
ratifying convention and later became a justice of the Supreme Court,
said that under the proposed Constitution 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.''
(29) In the same convention, William R. Davie, who had been
a delegate in Philadelphia, explained that the ``predominant
principle'' on which the Convention had provided for a single executive
was ``the more obvious responsibility of one person.'' When there was
but one man, said Davie, ``the public were never at a loss'' to fix the
blame.(30)
---------------------------------------------------------------------------
29. 4 J. Elliot, The Debates in the Several State Conventions on the
Adoption of the Federal Constitution 74 (reprint of 2d ea.)
(hereinafter cited as Elliot.)
30. Elliot 104.
---------------------------------------------------------------------------
James Wilson, in the Pennsylvania convention, described the
security furnished by a single executive as one of its ``very important
advantages'':
The executive power is better to be trusted when it has no
screen. Sir, we have a responsibility in the person of our
President; he cannot act improperly, and hide either his negligence
or inattention; he cannot roll upon any other person the weight of
his criminality; no appointment can take place without his
nomination; and he is responsible for every nomination he makes. .
. . Add to all this, that officer is placed high, and is possessed
of power far from being contemptible, yet not a single privilege is
annexed to his character; far from being above the laws, he is
amenable to them in his private character as a citizen, and in his
public character by impeachment.(31)
---------------------------------------------------------------------------
31. 2 Elliot 480 (emphasis in original).
---------------------------------------------------------------------------
As Wilson's statement suggests, the impeachability of the President
was considered to be an important element of his responsibility.
Impeachment had been in
[[Page 2255]]
cluded in the proposals before the Constitutional Convention from its
beginning.(32) A specific provision, making the executive
removable from office on impeachment and conviction for ``mal-practice
or neglect of duty,'' was unanimously adopted even before it was
decided that the executive would be a single person.(33)
---------------------------------------------------------------------------
32. The Virginia Plan, fifteen resolutions proposed by Edmund Randolph
at the beginning of the Convention, served as the basis of its
early deliberations. The ninth resolution gave the national
judiciary jurisdiction over ``impeachments of any National
officers.'' 1 Farrand 22.
33. 1 Farrand 88. Just before the adoption of this provision, a
proposal to make the executive removable from office by the
legislature upon request of a majority of the state
legislatures had been overwhelmingly rejected. Id. 87. In the
course of debate on this proposal, it was suggested that the
legislature ``should have power to remove the Executive at
pleasure''--a suggestion that was promptly criticized as making
him ``the mere creature of the Legislature'' in violation of
``the fundamental principle of good Government,'' and was never
formally proposed to the Convention. Id. 85-86.
---------------------------------------------------------------------------
The only major debate on the desirability of impeachment occurred
when it was moved that the provision for impeachment be dropped, a
motion that was defeated by a vote of eight states to
two.(34)
---------------------------------------------------------------------------
34. 2 Farrand 64, 69.
---------------------------------------------------------------------------
One of the arguments made against the impeachability of the
executive was that he ``would periodically be tried for his behavior by
his electors'' and ``ought to be subject to no intermediate trial, by
impeachment.'' (35) Another was that the executive could
``do no criminal act without Coadjutors [assistants] who may be
punished.'' (36) Without his subordinates, it was asserted,
the executive ``can do nothing of consequence,'' and they would ``be
amenable by impeachment to the public Justice.'' (37)
---------------------------------------------------------------------------
35. 2 Farrand 67 (Rufus King). Similarly, Gouverneur Morris contended
that if an executive charged with a criminal act were
reelected, ``that will be sufficient proof of his innocence.''
Id. 64.
It was also argued in opposition to the impeachment
provision, that the executive should not be impeachable
``whilst in office''--an apparent allusion to the constitutions
of Virginia and Delaware, which then provided that the governor
(unlike other officers) could be impeached only after he left
office. Id. See 7 Thorpe, The Federal and State Constitutions
3818 (1909) and 1 Id. 566. In response to this position, it was
argued that corrupt elections would result, as an incumbent
sought to keep his office in order to maintain his immunity
from impeachment. He will ``spare no efforts or no means
whatever to get himself reelected,'' contended William R. Davie
of North Carolina. 2 Farrand 64. George Mason asserted that the
danger of corrupting electors ``furnished a peculiar reason in
favor of impeachments whilst in office'': ``Shall the man who
has practised corruption & by that means procured his
appointment in the first instance, be suffered to escape
punishment, by repeating his guilt?'' Id. 65.
36. 2 Farrand 64.
37. 2 Farrand 54.
---------------------------------------------------------------------------
This latter argument was made by Gouverneur Morris of Pennsylvania,
who abandoned it during the course of the debate, concluding that the
executive should be impeachable.(38) Before Morris changed
his position, however, George Mason had replied to his earlier
argument:
---------------------------------------------------------------------------
38. ``This Magistrate is not the King but the prime-Minister. The
people are the King.'' 2 Farrand 69.
---------------------------------------------------------------------------
Shall any man be above justice? Above all shall that man be
above it, who can commit the most extensive injustice? When great
crimes were committed he was for punishing the principal as well as
the Coadjutors.(39)
---------------------------------------------------------------------------
39. 2 Farrand 65.
[[Page 2256]]
---------------------------------------------------------------------------
James Madison of Virginia argued in favor of impeachment stating
that some provision was ``indispensable'' to defend the community
against ``the incapacity, negligence or perfidy of the chief
Magistrate.'' With a single executive, Madison argued, unlike a
legislature whose collective nature provided security, ``loss of
capacity or corruption was more within the compass of probable events,
and either of them might be fatal to the Republic.'' (40)
Benjamin Franklin supported impeachment as ``favorable to the
executive''; where it was not available and the chief magistrate had
``rendered himself obnoxious,'' recourse was had to assassination. The
Constitution should provide for the ``regular punishment of the
Executive when his misconduct should deserve it, and for his honorable
acquittal when he should be unjustly accused.(41) Edmund
Randolph also defended ``the propriety of impeachments'':
---------------------------------------------------------------------------
40. 2 Farrand 65-66.
41. 2 Farrand 65.
---------------------------------------------------------------------------
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. Should no
regular punishment be provided it will be irregularly inflicted by
tumults & insurrections.(42)
---------------------------------------------------------------------------
42. 2 Farrand 67.
The one argument made by the opponents of impeachment to which no
direct response was made during the debate was that the executive would
be too dependent on the legislature--that, as Charles Pinckney put it,
the legislature would hold impeachment ``as a rod over the Executive
and by that means effectually destroy his independence.''
(43) That issue, which involved the forum for trying
impeachments and the mode of electing the executive, troubled the
Convention until its closing days. Throughout its deliberations on ways
to avoid executive subservience to the legislature, however, the
Convention never reconsidered its early decision to make the executive
removable through the process of impeachment (footnote omitted).
---------------------------------------------------------------------------
43. 2 Farrand 66.
---------------------------------------------------------------------------
2. adoption of ``high crimes and misdemeanors''
Briefly, and late in the Convention, the framers addressed the
question how to describe the grounds for impeachment consistent with
its intended function. They did so only after the mode of the
President's election was settled in a way that did not make him (in the
words of James Wilson) ``the Minion of the Senate.'' (45)
---------------------------------------------------------------------------
45. 2 Farrand 523.
---------------------------------------------------------------------------
The draft of the Constitution then before the Convention provided
for his removal upon impeachment and conviction for ``treason or
bribery.'' George Mason objected that these grounds were too limited:
Why is the provision restrained to Treason & bribery 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.(46)
---------------------------------------------------------------------------
46. 2 Farrand 550.
Mason then moved to add the word ``maladministration'' to the other
two grounds.
[[Page 2257]]
Maladministration was a term in use in six of the thirteen state
constitutions as a ground for impeachment, including Mason's home
state of Virginia.(47)
---------------------------------------------------------------------------
47. The grounds for impeachment of the Governor of Virginia were ``mal-
administration, corruption, or other means, by which the safety
of the State may be endangered.'' 7 Thorpe, The Federal and
State Constitution 3818 (1909).
---------------------------------------------------------------------------
When James Madison objected that ``so vague a term will be
equivalent to a tenure during pleasure of the Senate,'' Mason withdrew
``maladministration'' and substituted ``high crimes and misdemeanors
agst. the State,'' which was adopted eight states to three, apparently
with no further debate.(48)
---------------------------------------------------------------------------
48. 2 Farrand 550. Mason's wording was unanimously changed later the
same day from ``agst. the State'' to ``against the United
States'' in order to avoid ambiguity. This phrase was later
dropped in the final draft of the Constitution prepared by the
Committee on Style and Revision, which was charged with
arranging and improving the language of the articles adopted by
the Convention without altering its substance.
---------------------------------------------------------------------------
That the framers were familiar with English parliamentary
impeachment proceedings is clear. The impeachment of Warren Hastings,
Governor-General of India, for high crimes and misdemeanors was voted
just a few weeks before the beginning of the Constitutional Convention
and George Mason referred to it in the debates.(49)
Hamilton, in the Federalist No. 65, referred to Great Britain as ``the
model from which [impeachment] has been borrowed.'' Furthermore, the
framers were well-educated men. Many were also lawyers. Of these, at
least nine had studied law in England.(50)
---------------------------------------------------------------------------
49. Id.
50. R. Berger, Impeachment: The Constitutional Problems 87, 89 and
accompanying notes (1973).
---------------------------------------------------------------------------
The Convention had earlier demonstrated its familiarity with the
term ``high misdemeanor.'' (51) A draft constitution had
used ``high misdemeanor'' in its provision for the extradition of
offenders from one state to another.(52) The Convention,
apparently unanimously struck ``high misdemeanor'' and inserted ``other
crime,'' ``in order to comprehend all proper cases: it being doubtful
whether `high misdemeanor' had not a technical meaning too
limited.(53)
---------------------------------------------------------------------------
51. As a technical term, a ``high'' crime signified a crime against the
system of government, not merely a serious crime. ``This
element of injury to the commonwealth--that is, to the state
itself and to its constitution--was historically the criterion
for distinguishing a `high' crime or misdemeanor from an
ordinary one. The distinction goes back to the ancient law of
treason, which differentiated `high' from `petit' treason.''
Bestor, Book Review, 49 Wash. L Rev. 255, 263-64 (1973). See 4
W. Blackstone, Commentaries 75.
52. The provision (article XV of Committee draft of the Committee on
Detail) originally read: ``Any person charged with treason,
felony or high misdemeanor in any State, who shall flee from
justice, and shall be found in any other State, shall, on
demand of the Executive power of the State from which he fled,
be delivered up and removed to the State having jurisdiction of
the offence.'' 2 Farrand 187-88.
This clause was virtually identical with the extradition
clause contained in article IV of the Articles of
Confederation, which referred to ``any Person guilty of, or
charged with treason, felony, or other high misdemeanor in any
state. . . .''
53. 2 Farrand 443.
---------------------------------------------------------------------------
The ``technical meaning'' referred to is the parliamentary use of
the term ``high misdemeanor.'' Blackstone's Commentaries on the Laws of
England--a work cited by delegates in other portions of the
Convention's deliberations and which Madison later described (in the
Virginia ratifying convention) as ``a book which is in every man's
hand'' (54)--included ``high misdemeanors'' as one term
[[Page 2258]]
for positive offenses ``against the king and government.'' The ``first
and principal'' high misdemeanor, according to Blackstone, was ``mal-
administration of such high officers, as are in public trust and
employment,'' usually punished by the method of parliamentary
impeachment.(55)
---------------------------------------------------------------------------
54. 3 Elliott 501.
55. 4 Blackstone's Commentaries 121 (emphasis omitted).
---------------------------------------------------------------------------
``High Crimes and Misdemeanors'' has traditionally been considered
a ``term of art,'' like such other constitutional phrases as ``levying
war'' and ``due process.'' The Supreme Court has held that such phrases
must be construed, not according to modern usage, but according to what
the framers meant when they adopted them.(56) Chief Justice
Marshall wrote of another such phrase:
---------------------------------------------------------------------------
56. See Murray v. Hoboken Land Co., 52 U.S. (18 How.) 272 (1856),
Davidson v. New Orleans, 96 U.S. 97 (1878); Smith v. Alabama,
124 U.S. 465 (1888).
---------------------------------------------------------------------------
It is a technical term. It is used in a very old statute of
that country whose language is our language, and whose laws form
the substratum of our laws. It is scarcely conceivable that the
term was not employed by the framers of our constitution in the
sense which had been affixed to it by those from whom we borrowed
it.(57)
---------------------------------------------------------------------------
57. United States v. Burr, 25 Fed. Cas. 1, 159 (No. 14, 693) (C.C.D.
Va. 1807).
---------------------------------------------------------------------------
3. grounds for impeachment
Mason's suggestion to add ``maladministration,'' Madison's
objection to it as ``vague,'' and Mason's substitution of ``high crimes
and misdemeanors agst the State'' are the only comments in the
Philadelphia convention specifically directed to the constitutional
language describing the grounds for impeachment of the President.
Mason's objection to limiting the grounds to treason and bribery was
that treason would ``not reach many great and dangerous offences''
including ``[a]ttempts to subvert the Constitution.'' (58)
His willingness to substitute ``high Crimes and Misdemeanors,''
especially given his apparent familiarity with the English use of the
term as evidenced by his reference to the Warren Hastings impeachment,
suggests that he believed ``high crimes and Misdemeanors'' would cover
the offenses about which he was concerned.
---------------------------------------------------------------------------
58. 2 Farrand 550.
---------------------------------------------------------------------------
Contemporaneous comments on the scope of impeachment are persuasive
as to the intention of the framers. In Federalist No. 65, Alexander
Hamilton described the subject of impeachment as:
Lthose offences which proceed from the misconduct of public men,
or, in other words, from the abuse or violation of some public
trust. They are of a nature which may with peculiar propriety be
denominated POLITICAL, as they relate chiefly to injuries done
immediately to the society itself.(59)
---------------------------------------------------------------------------
59. The Federalist No. 65 at 423-24 (Modern Library ed.) (A. Hamilton)
(emphasis in original).
Comments in the state ratifying conventions also suggest that those
who adopted the Constitution viewed impeachment as a remedy for
usurpation or abuse of power or serious breach of trust. Thus, Charles
Cotesworth Pinckney of South Carolina stated that the impeachment power
of the House reaches ``those who behave amiss, or betray their public
trust.'' (60) Edmund Randolph said in the Virginia
convention that the President may be impeached if he ``misbehaves.''
(61)
[[Page 2259]]
He later cited the example of the President's receipt of presents or
emoluments from a foreign power in violation of the constitutional
prohibition of Article I, section 9.(62) In the same
convention George Mason argued that the President might use his
pardoning power to ``pardon crimes which were advised by himself'' or,
before indictment or conviction, ``to stop inquiry and prevent
detection.'' James Madison responded:
---------------------------------------------------------------------------
60. 4 Elliot 281.
61. 3 Elliot 201.
62. 3 Elliot 486.
---------------------------------------------------------------------------
[I]f the President be connected, in any suspicious manner, with
any person, and there be grounds to believe he will shelter him,
the House of Representatives can impeach him; they can remove him
if found guilty. . . .(63)
---------------------------------------------------------------------------
63. 3 Elliot 497-98. Madison went on to say, contrary to his position
in the Philadelphia convention, that the President could be
suspended when suspected, and his powers would devolve on the
Vice President, who could likewise be suspended until impeached
and convicted, if he were also suspected. Id. 498.
In reply to the suggestion that the President could summon the
---------------------------------------------------------------------------
Senators of only a few states to ratify a treaty, Madison said,
Were the President to commit any thing so atrocious . . . he
would be impeached and convicted, as a majority of the states would
be affected by his misdemeanor.(64)
---------------------------------------------------------------------------
64. 3 Elliot 500. John Rutledge of South Carolina made the same point,
asking ``whether gentlemen seriously could suppose that a
President, who has a character at stake, would be such a fool
and knave as to join with ten others [two-thirds of a minimal
quorum of the Senate] to tear up liberty by the roots, when a
full Senate were competent to impeach him.'' 4 Elliot 268.
Edmund Randolph referred to the checks upon the President:
It has too often happened that powers delegated for the purpose
of promoting the happiness of a community have been perverted to
the advancement of the personal emoluments of the agents of the
people; but the powers of the President are too well guarded and
checked to warrant this illiberal aspersion.(65)
---------------------------------------------------------------------------
65. 3 Elliot 117.
Randolph also asserted, however, that impeachment would not reach
errors of judgment: ``No man ever thought of impeaching a man for an
opinion. It would be impossible to discover whether the error in
opinion resulted from a willful mistake of the heart, or an
involuntary fault of the head.'' (66)
---------------------------------------------------------------------------
66. 3 Elliot 401.
---------------------------------------------------------------------------
James Iredell made a similar distinction in the North Carolina
convention, and on the basis of this principle said, ``I suppose the
only instances, in which the President would be liable to impeachment,
would be where he has received a bribe, or had acted from some corrupt
motive or other.'' (67) But he went on to argue that the
President must certainly be punishable for giving false information to
the Senate. He is to regulate all intercourse with foreign powers, and
it is his duty to impart to the Senate every material intelligence he
receives. If it should appear that he has not given them full
information, but has concealed important intelligence which he ought to
have communicated, and by that means induced them to enter into
measures injurious to their country, and which they would not have
consented to had the true state of things been disclosed to them--in
this case, I ask whether, upon an impeachment for a misdemeanor upon
such
[[Page 2260]]
an account, the Senate would probably favor him.(68)
---------------------------------------------------------------------------
67. 4 Elliot 126.
68. 4 Elliot 127.
---------------------------------------------------------------------------
In short, the framers who discussed impeachment in the state
ratifying conventions, as well as other delegates who favored the
Constitution,(69) implied that it reached offenses against
the government, and especially abuses of constitutional duties. The
opponents did not argue that the grounds for impeachment had been
limited to criminal offenses.
---------------------------------------------------------------------------
69. For example, Wilson Nicholas in the Virginia convention asserted
that the President ``is personally amenable for his mal-
administration'' through impeachment, 3 Elliot 17; George
Nicholas in the same convention referred to the President's
impeachability if he ``deviates from his duty,'' id. 240.
Archibald MacLaine in the South Carolina convention also
referred to the President's impeachability for ``any
maladministration in his office,'' 4 Elliot 47; and Reverend
Samuel Stillman of Massachusetts referred to his impeachability
for ``malconduct,'' asking, ``With such a prospect, who will
dare to abuse the powers vested in him by the people?'' 2
Elliot 169.
---------------------------------------------------------------------------
An extensive discussion of the scope of the impeachment power
occurred in the House of Representatives in the First Session of the
First Congress. The House was debating the power of the President to
remove the head of an executive department appointed by him with the
advice and consent of the Senate, an issue on which it ultimately
adopted the position, urged primarily by James Madison, that the
Constitution vested the power exclusively in the President. The
discussion in the House lends support to the view that the framers
intended the impeachment power to reach failure of the President to
discharge the responsibilities of his office.(70)
---------------------------------------------------------------------------
70. Chief Justice Taft wrote with reference to the removal power debate
in the opinion for the Court in Myers v. United States, that
constitutional decisions of the First Congress ``have always
been regarded, as they should be regarded, as of the greatest
weight in the interpretation of that fundamental instrument.''
272 U.S. 52, 174-75 (1926).
---------------------------------------------------------------------------
Madison argued during the debate that the President would be
subject to impeachment for ``the wanton removal of meritorious
officers.'' (71) He also contended that the power of the
President unilaterally to remove subordinates was ``absolutely
necessary'' because ``it will make him in a peculiar manner,
responsible for [the] conduct'' of executive officers. It would,
Madison said,
---------------------------------------------------------------------------
71. 1 Annals of Cong. 498 (1789).
Lsubject him to impeachment himself, if he suffers them to
perpetrate with impunity high crimes or misdemeanors against the
United States, or neglects to superintend their conduct, so as to
check their excesses.(72)
---------------------------------------------------------------------------
72. Id. 372-73.
Elbridge Gerry of Massachusetts, who had also been a framer though
he had opposed the ratification of the Constitution, disagreed with
Madison's contentions about the impeachability of the President. He
could not be impeached for dismissing a good officer, Gerry said,
because he would be ``doing an act which the Legislature has submitted
to his discretion.(73) And he should not be held responsible
for the acts of subordinate officers, who were themselves subject to
impeachment and should bear their own responsibility.(74)
---------------------------------------------------------------------------
73. Id. 502.
74. Id. 535-36. Gerry also implied, perhaps rhetorically, that a
violation of the Constitution was grounds for impeachment. If,
he said, the Constitution failed to include provision for
removal of executive officers, an attempt by the legislature to
cure the omission would be an attempt to amend the
Constitution. But the Constitution provided procedures for its
amendment, and ``an attempt to amend it in any other way may be
a high crime or misdemeanor, or perhaps something worse.'' Id.
503.
---------------------------------------------------------------------------
[[Page 2261]]
Another framer, Abraham Baldwin of Georgia, who supported Madison's
position on the power to remove subordinates, spoke of the President's
impeachability for failure to perform the duties of the executive. If,
said Baldwin, the President ``in a fit of passion'' removed ``all the
good officers of the Government'' and the Senate were unable to choose
qualified successors, the consequence would be that the President
``would be obliged to do the duties himself; or, if he did not, we
would impeach him, and turn him out of office, as he had done others.''
(75)
---------------------------------------------------------------------------
75. Id. John Vining of Delaware commented: ``The President. What are
his duties? To see the laws faithfully executed; if he does not
do this effectually, he is responsible. To whom? To the people.
Have they the means of calling him to account, and punishing
him for neglect? They have secured it in the Constitution, by
impeachment, to be presented by their immediate
representatives; if they fail here, they have another check
when the time of election comes round.'' Id. 572.
---------------------------------------------------------------------------
Those who asserted that the President has exclusive removal power
suggested that it was necessary because impeachment, as Elias Boudinot
of New Jersey contended, is ``intended as a punishment for a crime, and
not intended as the ordinary means of re-arranging the Departments.''
(76) Boudinot suggested that disability resulting from
sickness or accident ``would not furnish any good ground for
impeachment; it could not be laid as treason or bribery, nor perhaps as
a high crime or misdemeanor.'' (77) Fisher Ames of
Massachusetts argued for the President's removal power because ``mere
intention [to do a mischief] would not be cause of impeachment'' and
``there may be numerous causes for removal which do not amount to a
crime.'' (78) Later in the same speech Ames suggested that
impeachment was available if an officer ``misbehaves'' (79)
and for ``mal-conduct.'' (80)
---------------------------------------------------------------------------
76. Id. 375.
77. Id.
78. Id. 474.
79. Id. 475.
80. Id. 477. The proponents of the President's removal power were
careful to preserve impeachment as a supplementary method of
removing executive officials. Madison said impeachment will
reach a subordinate ``whose bad actions may be connived at or
overlooked by the President.'' Id. 372. Abraham Baldwin said:
``The Constitution provides for--what? That no bad man
should come into office. . . . But suppose that one such could
be got in, he can be got out again in despite of the President.
We can impeach him, and drag him from his place . . . .'' Id.
558.
---------------------------------------------------------------------------
One further piece of contemporary evidence is provided by the
Lectures on Law delivered by James Wilson of Pennsylvania in 1790 and
1791. Wilson described impeachments in the United States as ``confined
to political characters, to political crimes and misdemeanors, and to
political punishment.'' (81) And, he said:
---------------------------------------------------------------------------
81. Wilson, Lectures on Law, in 1 The Works of James Wilson 426 (R.
McCloskey ed. 1967).
---------------------------------------------------------------------------
The doctrine of impeachments is of high import in the
constitutions of free states. On one hand, the most powerful
magistrates should be amenable to the law: on the other hand,
elevated characters should not be sacrificed merely on account of
their elevation. No one should be secure while he violates the
constitution and the laws: every one should be secure while he
observes them.(82)
---------------------------------------------------------------------------
82. Id. 425.
[[Page 2262]]
---------------------------------------------------------------------------
From the comments of the framers and their contemporaries, the
remarks of the delegates to the state ratifying conventions, and the
removal power debate in the First Congress, it is apparent that the
scope of impeachment was not viewed narrowly. It was intended to
provide a check on the President through impeachment, but not to make
him dependent on the unbridled will of the Congress.
Impeachment, as Justice Joseph Story wrote in his Commentaries on
the Constitution in 1833, applies to offenses of ``a political
character'':
Not but that crimes of a strictly legal character fall within
the scope of the power . . . but that it has a more enlarged
operation, and reaches, what are aptly termed political offenses,
growing out of personal misconduct or gross neglect, or usurpation,
or habitual disregard of the public interests, in the discharge of
the duties of political office. These are so various in their
character, and so indefinable in their actual involutions, that it
is almost impossible to provide systematically for them by positive
law. They must be examined upon very broad and comprehensive
principles of public policy and duty. They must be judged of by the
habits and rules and principles of diplomacy, or departmental
operations and arrangements, of parliamentary practice, of
executive customs and negotiations of foreign as well as domestic
political movements; and in short, by a great variety of
circumstances, as well those which aggravate as those which
extenuate or justify the offensive acts which do not properly
belong to the judicial character in the ordinary administration of
justice, and are far removed from the reach of municipal
jurisprudence.(83)
---------------------------------------------------------------------------
83. 1 J. Story Commentaries on the Constitution of the United States,
Sec. 764, at 559 (5th ed. 1905).
---------------------------------------------------------------------------
C. The American Impeachment Cases
Thirteen officers have been impeached by the House since 1787: one
President, one cabinet officer, one United States Senator, and ten
Federal judges.(84) In addition there have been numerous
resolutions and investigations in the House not resulting in
impeachment. However, the action of the House in declining to impeach
an officer is not particularly illuminating. The reasons for failing to
impeach are generally not stated, and may have rested upon a failure of
proof, legal insufficiency of the grounds, political judgment, the
press of legislative business, or the closeness of the expiration of
the session of Congress. On the other hand, when the House has voted to
impeach an officer, a majority of the Members necessarily have
concluded that the conduct alleged constituted grounds for
impeachment.(85)
---------------------------------------------------------------------------
84. Eleven of these officers were tried in the Senate. Articles of
impeachment were presented to the Senate against a twelfth
(Judge English), but he resigned shortly before the trial. The
thirteenth (Judge Delahay) resigned before articles could be
drawn.
85. Only four of the thirteen impeachments--all involving judges--have
resulted in conviction in the Senate and removal from office.
While conviction and removal show that the Senate agreed with
the House that the charges on which conviction occurred stated
legally sufficient grounds for impeachment, acquittals offer no
guidance on this question, as they may have resulted from a
failure of proof, other factors, or a determination by more
than one third of the Senators (as in the Blount and Belknap
impeachments) that trial or conviction was inappropriate for
want of jurisdiction.
---------------------------------------------------------------------------
Does Article III, Section 1 of the Constitution, which states that
judges ``shall
[[Page 2263]]
hold their Offices during good Behavior,'' limit the relevance of the
ten impeachments of judges with respect to presidential impeachment
standards as has been argued by some? It does not. The argument is that
``good behavior'' implies an additional ground for impeachment of
judges not applicable to other civil officers. However, the only
impeachment provision discussed in the Convention and included in the
Constitution is Article II, Section 4, which by its expressed terms,
applies to all civil officers, including judges, and defines
impeachment offenses as ``Treason, Bribery, and other high Crimes and
Misdemeanors.''
In any event, the interpretation of the ``good behavior'' clause
adopted by the House has not been made clear in any of the judicial
impeachment cases. Whichever view is taken, the judicial impeachments
have involved an assessment of the conduct of the officer in terms of
the constitutional duties of his office. In this respect, the
impeachments of judges are consistent with the three impeachments of
nonjudicial officers.
Each of the thirteen American impeachments involved charges of
misconduct incompatible with the official position of the officeholder.
This conduct falls into three broad categories: (1) exceeding the
constitutional bounds of the powers of the office in derogation of the
powers of another branch of government; (2) behaving in a manner
grossly incompatible with the proper function and purpose of the
office; and (3) employing the power of the office for an improper
purpose or for personal gain.(86)
---------------------------------------------------------------------------
86. A procedural note may be useful. The House votes both a resolution
of impeachment against an officer and articles of impeachment
containing the specific charges that will be brought to trial
in the Senate. Except for the impeachment of Judge Delahay, the
discussion of grounds here is based on the formal articles.
---------------------------------------------------------------------------
1. exceeding the powers of the office in derogation of those of another
branch of government
The first American impeachment, of Senator William Blount in 1797,
was based on allegations that Blount attempted to incite the Creek and
Cherokee Indians to attack the Spanish settlers of Florida and
Louisiana, in order to capture the territory for the British. Blount
was charged with engaging in a conspiracy to compromise the neutrality
of the United States, in disregard of the constitutional provisions for
conduct of foreign affairs. He was also charged, in effect, with
attempting to oust the President's lawful appointee as principal agent
for Indian affairs and replace him with a rival, thereby intruding upon
the President's supervision of the executive branch.(87)
---------------------------------------------------------------------------
87. After Blount had been impeached by the House, but before trial of
the impeachment, the Senate expelled him for ``having been
guilty of a high misdemeanor, entirely inconsistent with his
public trust and duty as a Senator.''
---------------------------------------------------------------------------
The impeachment of President Andrew Johnson in 1868 also rested on
allegations that he had exceeded the power of his office and had failed
to respect the prerogatives of Congress. The Johnson impeachment grew
out of a bitter partisan struggle over the implementation of
Reconstruction in the South following the Civil War, Johnson was
charged with violation of the Tenure of Office Act, which purported to
take away the President's authority to remove members of his own
cabinet and specifically provided that violation would be a ``high
misdemeanor,'' as well as a crime. Believing the Act unconstitutional,
Johnson re
[[Page 2264]]
moved Secretary of War Edwin M. Stanton and was impeached three days
later.
Nine articles of impeachment were originally voted against Johnson,
all dealing with his removal of Stanton and the appointment of a
successor without the advice and consent of the Senate. The first
article, for example, charged that President Johnson,
Lunmindful of the high duties of this office, of his oath of
office, and of the requirement of the Constitution that he should
take care that the laws be faithfully executed, did unlawfully, and
in violation of the Constitution and laws of the United States,
order in writing the removal of Edwin M. Stanton from the office of
Secretary for the Department of War.(88)
---------------------------------------------------------------------------
88. Article one further alleged that Johnson's removal of Stanton was
unlawful because the Senate had earlier rejected Johnson's
previous suspension of him.
Two more articles were adopted by the House the following day.
Article Ten charged that Johnson, ``unmindful of the high duties of his
office, and the dignity and proprieties thereof,'' had made
inflammatory speeches that attempted to ridicule and disgrace the
Congress.89 Article Eleven charged him with attempts to
prevent the execution of the Tenure of Office Act, an Army
appropriations act, and a Reconstruction act designed by Congress ``for
the more efficient government of the rebel States.'' On its face, this
article involved statutory violations, but it also reflected the
underlying challenge to all of Johnson's post-war policies.
---------------------------------------------------------------------------
89. Quoting from speeches which Johnson had made in Washington, D.C.,
Cleveland, Ohio and St. Louis, Missouri, article ten pronounced
these speeches ``censurable in any, [and] peculiarly indecent
and unbecoming in the Chief Magistrate of the United States.''
By means of these speeches, the article concluded, Johnson had
brought the high office of the presidency ``into contempt,
ridicule, and disgrace. to the great scandal of all good
citizens.''
---------------------------------------------------------------------------
The removal of Stanton was more a catalyst for the impeachment than
a fundamental cause.90 The issue between the President and
Congress was which of them should have the constitutional--and
ultimately even the military--power to make and enforce Reconstruction
policy in the South. The Johnson impeachment, like the British
impeachments of great ministers, involved issues of state going to the
heart of the constitutional division of executive and legislative
power.
---------------------------------------------------------------------------
90. The Judiciary Committee had reported a resolution of impeachment
three months earlier charging President Johnson in its report
with omissions of duty, usurpations of power and violations of
his oath of office, the laws and the Constitution in his
conflict of Reconstruction. The House voted down the
resolution.
---------------------------------------------------------------------------
2. behaving in a manner grossly incompatible with the proper function
and purpose of the office
Judge John Pickering was impeached in 1803, largely for
intoxication on the bench.(91) Three of the articles alleged
errors in a trial in violation of his trust and duty as a judge; the
fourth charged that Pickering, ``being a man of loose morals and
intemperate habits,'' had appeared on the bench during the trial in a
state of total intoxication and had used profane language. Seventy-
three years later another judge, Mark Delahay, was impeached for
intoxication both on and
[[Page 2265]]
off the bench but resigned before articles of impeachment were adopted.
---------------------------------------------------------------------------
91. The issue of Pickering's insanity was raised at trial in the
Senate, but was not discussed by the House when it voted to
impeach or to adopt articles of impeachment.
---------------------------------------------------------------------------
A similar concern with conduct incompatible with the proper
exercise of judicial office appears in the decision of the House to
impeach Associate Supreme Court Justice Samuel Chase in 1804. The House
alleged that Justice Chase had permitted his partisan views to
influence his conduct of two trials held while he was conducting
circuit court several years earlier. The first involved a Pennsylvania
farmer who had led a rebellion against a Federal tax collector in 1789
and was later charged with treason. The articles of impeachment alleged
that ``unmindful of the solemn duties of his office, and contrary to
the sacred obligation'' of his oath, Chase ``did conduct himself in a
manner highly arbitrary, oppressive, and unjust,'' citing procedural
rulings against the defense.
Similar language appeared in articles relating to the trial of a
Virginia printer indicted under the Sedition Act of 1798. Specific
examples of Chase's bias were alleged, and his conduct was
characterized as ``an indecent solicitude . . . for the conviction of
the accused, unbecoming even a public prosecutor but highly disgraceful
to the character of a judge, as it was subversive of justice.'' The
eighth article charged that Chase, ``disregarding the duties . . . of
his judicial character. . . . did . . . prevert his official right and
duty to address the grand jury'' by delivering ``an intemperate and
inflammatory political harangue.'' His conduct was alleged to be a
serious breach of his duty to judge impartially and to reflect on his
competence to continue to exercise the office.
Judge West H. Humphreys was impeached in 1862 on charges that he
joined the Confederacy without resigning his federal
judgeship.(92) Judicial prejudice against Union supporters
was also alleged.
---------------------------------------------------------------------------
92. Although some of the language in the articles suggested treason,
only high crimes and misdemeanors were alleged, and Humphrey's
offenses were characterized as a failure to discharge his
judicial duties.
---------------------------------------------------------------------------
Judicial favoritism and failure to give impartial consideration to
cases before him were also among the allegations in the impeachment of
Judge George W. English in 1926. The final article charged that his
favoritism had created distrust of the disinterestedness of his
official actions and destroyed public confidence in his
court.(93)
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93. Some of the allegations against Judges Harold Louderback (1932) and
Halsted Ritter (1936) also involved judicial favoritism
affecting public confidence in their courts.
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3. employing the power of the office for an improper purpose or
personal gain
Two types of official conduct for improper purposes have been
alleged in past impeachments. The first type involves vindictive use of
their office by federal judges; the second, the use of office for
personal gain.
Judge James H. Peck was impeached in 1826 for charging with
contempt a lawyer who had publicly criticized one of his decisions,
imprisoning him, and ordering his disbarment for 18 months. The House
debated whether this single instance of vindictive abuse of power was
sufficient to impeach, and decided that it was, alleging that the
conduct was unjust, arbitrary, and beyond the scope of Peck's duty.
Vindictive use of power also constituted an element of the charges
in two other impeachments. Judge George W.
[[Page 2266]]
English was charged in 1926, among other things, with threatening to
jail a local newspaper editor for printing a critical editorial and
with summoning local officials into court in a non-existent case to
harangue them. Some of the articles in the impeachment of Judge Charles
Swayne (1903) alleged that he maliciously and unlawfully imprisoned two
lawyers and a litigant for contempt.
Six impeachments have alleged the use of office for personal gain
or the appearance of financial impropriety while in office. Secretary
of War William W. Belknap was impeached in 1876 of high crimes and
misdemeanors for conduct that probably constituted bribery and
certainly involved the use of his office for highly improper purposes-
receiving substantial annual payments through an intermediary in return
for his appointing a particular post trader at a frontier military post
in Indian territory.
The impeachments of Judges Charles Swayne (1903), Robert W.
Archbald (1912), George W. English (1926), Harold Louderback (1932) and
Halsted L. Ritter (1936) each involved charges of the use of office for
direct or indirect personal monetary gain.(94) In the
Archbald and Ritter cases, a number of allegations of improper conduct
were combined in a single, final article, as well as being charged
separately.
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94. Judge Swayne was charged with falsifying expense accounts and using
a railroad car in the possession of a receiver he had
appointed. Judge Archbald was charged with using his office to
secure business favors from litigants and potential litigants
before his court. Judges English, Louderback, and Ritter were
charged with misusing their power to appoint and set the fees
of bankruptcy receivers for personal profit.
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In drawing up articles of impeachment, the House has placed little
emphasis on criminal conduct. Less than one-third of the eighty-three
articles the House has adopted have explicitly charged the violation of
a criminal statute or used the word ``criminal'' or ``crime'' to
describe the conduct alleged, and ten of the articles that do were
those involving the Tenure of Office Act in the impeachment of
President Andrew Johnson. The House has not always used the technical
language of the criminal law even when the conduct alleged fairly
clearly constituted a criminal offense, as in the Humphreys and Belknap
impeachments. Moreover, a number of articles, even though they may have
alleged that the conduct was unlawful, do not seem to state criminal
conduct-including Article Ten against President Andrew Johnson
(charging inflammatory speeches), and some of the charges against all
of the judges except Humphreys.
Much more common in the articles are allegations that the officer
has violated his duties or his oath or seriously undermined public
confidence in his ability to perform his official functions. Recitals
that a judge has brought his court or the judicial system into
disrepute are commonplace. In the impeachment of President Johnson,
nine of the articles allege that he acted ``unmindful of the high
duties of his office and of his oath of office,'' and several
specifically refer to his constitutional duty to take care that the
laws be faithfully executed.
The formal language of an article of impeachment, however, is less
significant than the nature of the allegations that it contains. All
have involved charges of conduct incompatible with continued
performance of the office; some have explicitly rested upon a ``course
of conduct'' or have combined disparate charges in a single, final
article. Some of the indi
[[Page 2267]]
vidual articles seem to have alleged conduct that, taken alone, would
not have been considered serious, such as two articles in the
impeachment of Justice Chase that merely alleged procedural errors at
trial. In the early impeachments, the articles were not prepared until
after impeachment had been voted by the House, and it seems probable
that the decision to impeach was made on the basis of all the
allegations viewed as a whole, rather than each separate charge. Unlike
the Senate, which votes separately on each article after trial, and
where conviction on but one article is required for removal from
office, the House appears to have considered the individual offenses
less significant than what they said together about the conduct of the
official in the performance of his duties.
Two tendencies should be avoided in interpreting the American
impeachments. The first is to dismiss them too readily because most
have involved judges. The second is to make too much of them. They do
not all fit neatly and logically into categories. That, however, is in
keeping with the nature of the remedy. It is intended to reach a broad
variety of conduct by officers that is both serious and incompatible
with the duties of the office.
Past impeachments are not precedents to be read with an eye for an
article of impeachment identical to allegations that may be currently
under consideration. The American impeachment cases demonstrate a
common theme useful in determining whether grounds for impeachment
exist-that the grounds are derived from understanding the nature,
functions and duties of the office.
III. The Criminality Issue
The phrase ``high Crimes and Misdemeanors'' may connote
``criminality'' to some. This likely is the predicate for some of the
contentions that only an indictable crime can constitute impeachable
conduct. Other advocates of an indictable-offense requirement would
establish a criminal standard of impeachable conduct because that
standard is definite, can be known in advance and reflects a
contemporary legal view of what conduct should be punished. A
requirement of criminality would require resort to familiar criminal
laws and concepts to serve as standards in the impeachment process.
Furthermore, this would pose problems concerning the applicability of
standards of proof and the like pertaining to the trial of
crimes.(1)
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1. See A. Simpson, A Treatise on Federal Impeachments 28-29 (1916). It
has also been argued that because Treason and Bribery are
crimes, ``other high Crimes and Misdemeanors'' must refer to
crimes under the ejusdem generis rule of construction. But
ejusdem generis merely requires a unifying principle. The
question here is whether that principle is criminality or
rather conduct subversive of our constitutional institutions
and form of government.
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The central issue raised by these concerns is whether requiring an
indictable offense as an essential element of impeachable conduct is
consistent with the purposes and intent of the framers in establishing
the impeachment power and in setting a constitutional standard for the
exercise of that power. This issue must be considered in light of the
historical evidence of the framers' intent.(2) It
[[Page 2268]]
is also useful to consider whether the purposes of impeachment and
criminal law are such that indictable offenses can, consistent with the
Constitution, be an essential element of grounds for impeachment. The
impeachment of a President must occur only for reasons at least as
pressing as those needs of government that give rise to the creation of
criminal offenses. But this does not mean that the various elements of
proof, defenses, and other substantive concepts surrounding an
indictable offense control the impeachment process. Nor does it mean
that state or federal criminal codes are necessarily the place to turn
to provide a standard under the United States Constitution. Impeachment
is a constitutional remedy. The framers intended that the impeachment
language they employed should reflect the grave misconduct that so
injures or abuses our constitutional institutions and form of
government as to justify impeachment.
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2. The rule of construction against redundancy indicates an intent not
to require criminality. If criminality is required, the word
``Misdemeanors'' would add nothing to ``high Crimes.''
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This view is supported by the historical evidence of the
constitutional meaning of the words ``high Crimes and Misdemeanors.''
That evidence is set out above.(3) It establishes that the
phrase ``high Clrimes and Misdemeanors''--which over a period of
centuries evolved into the English standard of impeachable conduct--has
a special historical meaning different from the ordinary meaning of the
terms ``crimes'' and ``misdemeanors.(4) High misdemeanors''
referred to a category of offenses that subverted the system of
government. Since the fourteenth century the phrase ``high Crimes and
Misdemeanors'' had been used in English impeachment cases to charge
officials with a wide range of criminal and non-criminal offenses
against the institutions and fundamental principles of English
government.(5)
---------------------------------------------------------------------------
3. See part II B. supra.
4. See part II B.2. supra.
5. See part II.A. supra.
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There is evidence that the framers were aware of this special, non-
criminal meaning of the phrase ``high Crimes and Misdemeanors'' in the
English law of impeachment.(6) Not only did Hamilton
acknowledge Great Britain as ``the model from which [impeachment] has
been borrowed,'' but George Mason referred in the debates to the
impeachment of Warren Hastings, then pending before Parliament. Indeed,
Mason, who proposed the phase ``high Crimes and Misdemeanors,''
expressly stated his intent to encompass ``[a]ttempts to subvert the
Constitution.'' (7)
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6. See part II.B.2. supra.
7. See Id.
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The published records of the state ratifying conventions do not
reveal an intention to limit the grounds of impeachment to criminal
offenses (8) James Iredell said in the North Carolina
debates on ratification:
---------------------------------------------------------------------------
8. See part II.B.3. supra.
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. . . the person convicted is further liable to a trial at
common law, and may receive such common-law punishment as belongs
to a description of such offences if it be punishable by that
law.(9)
---------------------------------------------------------------------------
9. 4 Elliot 114.
Likewise, George Nicholas of Virginia distinguished disqualification
to hold office from conviction for criminal conduct:
If [the President] deviates from his duty, he is responsible to
his constituents. . . . He will be absolutely disqualified to hold
any place of profit, honor, or trust, and liable to further
[[Page 2269]]
punishment if he has committed such high crimes as are punishable
at common law.(10)
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10. 3 Elliot 240.
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The post-convention statements and writings of Alexander Hamilton,
James Wilson, and James Madison--each a participant in the
Constitutional Convention--show that they regarded impeachment as an
appropriate device to deal with offenses against constitutional
government by those who hold civil office, and not a device limited to
criminal offenses.(11) Hamilton, in discussing the
advantages of a single rather than a plural executive, explained that a
single executive gave the people ``the opportunity of discovering with
facility and clearness the misconduct of the persons they trust, in
order either to their removal from office, or to their actual
punishment in cases which admit of it.(12) Hamilton further
wrote: ``Man, in public trust, will much oftener act in such a manner
as to render him unworthy of being any longer trusted, than in such a
manner as to make him obnoxious to legal punishment.(13)
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11. See part II.B 1. supra; part II.B.3. supra.
12. Federalist No. 70, at 461.
13. Id. at 459.
---------------------------------------------------------------------------
The American experience with impeachment, which is summarized
above, reflects the principle that impeachable conduct need not be
criminal. Of the thirteen impeachments voted by the House since 1789,
at least ten involved one or more allegations that did not charge a
violation of criminal law.(l4)
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14. See part II.C. supra.
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Impeachment and the criminal law serve fundamentally different
purposes. Impeachment is the first step in a remedial process--removal
from office and possible disqualification from holding future office.
The purpose of impeachment is not personal punishment; (15)
its function is primarily to maintain constitutional government.
Furthermore, the Constitution itself provides that impeachment is no
substitute for the ordinary process of criminal law since it specifies
that impeachment does not immunize the officer from criminal liability
for his wrongdoing.(16)
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15. It has been argued that ``[i]mpeachment is a special form of
punishment for crime,'' but that gross and willful neglect of
duty would be a violation of the oath of office and ``[s]uch
violation, by criminal acts of commission or omission, is the
only nonindictable offense for which the President, Vice
President, judges or other civil officers can be impeached.''
I. Brant, Impeachment, Trials and Errors 13, 20, 23 (1972).
While this approach might in particular instances lead to the
same results as the approach to impeachment as a constitutional
remedy for action incompatible with constitutional government
and the duties of constitutional office, it is, for the reasons
stated in this memorandum, the latter approach that best
reflects the intent of the framers and the constitutional
function of impeachment. At the time the Constitution was
adopted, ``crime'' and ``punishment for crime'' were terms used
far more broadly than today. The seventh edition of Samuel
Johnson's dictionary, published in 1785, defines ``crime'' as
``an act contrary to right, an offense; a great fault; an act
of wickedness.'' To the extent that the debates on the
Constitution and its ratification refer to impeachment as a
form of ``punishment'' it is punishment in the sense that today
would be thought a noncriminal sanction, such as removal of a
corporate officer for misconduct breaching his duties to the
corporation.
16. It is sometimes suggested that various provisions in the
Constitution exempting cases of impeachment from certain
provisions relating to the trial and punishment of crimes
indicate an intention to require an indictable offense as an
essential element of impeachable conduct. In addition to the
provision referred to in the text (Article I, Section 3), cases
of impeachment are exempted from the power of pardon and the
right to trial by jury in Article II, Section 2 and Article
III, Section 2 respectively. These provisions were placed in
the Constitution in recognition that impeachable conduct may
entail criminal conduct and to make it clear that even when
criminal conduct is involved, the trial of an impeachment was
not intended to be a criminal proceeding. The sources quoted at
notes 8-13, supra, show the understanding that impeachable
conduct may, but need not, involve criminal conduct.
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The general applicability of the criminal law also makes it
inappropriate as the standard for a process applicable to a highly
specific situation such as removal of a President. The criminal law
sets a general standard of conduct that all must follow. It does not
address itself to the
[[Page 2270]]
abuses of presidential power. In an impeachment proceeding a President
is called to account for abusing powers that only a President
possesses.
Other characteristics of the criminal law make criminality
inappropriate as an essential element of impeachable conduct. While the
failure to act may be a crime, the traditional focus of criminal law is
prohibitory. Impeachable conduct, on the other hand, may include the
serious failure to discharge the affirmative duties imposed on the
President by the Constitution. Unlike a criminal case, the cause for
the removal of a President may be based on his entire course of conduct
in office. In particular situations, it may be a course of conduct more
than individual acts that has a tendency to subvert constitutional
government.
To confine impeachable conduct to indictable offenses may well be
to set a standard so restrictive as not to reach conduct that might
adversely affect the system of government. Some of the most grievous
offenses against our constitutional form of government may not entail
violations of the criminal law.
If criminality is to be the basic element of impeachment conduct,
what is the standard of criminal conduct to be? Is it to be criminality
as known to the common law, or as divined from the Federal Criminal
Code, or from an amalgam of State criminal statutes? If one is to turn
to State statutes, then which of those of the States is to obtain? If
the present Federal Criminal Code is to be the standard, then which of
its provisions are to apply? If there is to be new Federal legislation
to define the criminal standard, then presumably both the Senate and
the President will take part in fixing that standard. How is this to be
accomplished without encroachment upon the constitutional provision
that ``the sole power'' of impeachment is vested in the House of
Representatives?
A requirement of criminality would be incompatible with the intent
of the framers to provide a mechanism broad enough to maintain the
integrity of constitutional government. Impeachment is a constitutional
safety valve; to fulfill this function, it must be flexible enough to
cope with exigencies not now foreseeable. Congress has never undertaken
to define impeachable offenses in the criminal code. Even respecting
bribery, which is specifically identified in the Constitution as
grounds for impeachment, the federal statute establishing the criminal
offense for civil officers generally was enacted over seventy-five
years after the Constitutional Convention.(17)
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17. It appears from the annotations to the Revised Statutes of 1873
that bribery was not made a federal crime until 1790 for
judges, 1853 for Members of Congress, and 1863 for other civil
officers. U.S. Rev. Stat., Title LXX, Ch. 6, Sec. Sec. 5499-
502. This consideration strongly suggests that conduct not
amounting to statutory bribery may nonetheless constitute the
constitutional ``high Crime and Misdemeanor'' of bribery.
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In sum, to limit impeachable conduct to criminal offenses would be
incompatible with the evidence concerning the constitutional meaning of
the phrase ``high Crimes and Misdemeanors'' and would frustrate the
purpose that the framers intended for impeachment. State
[[Page 2271]]
and federal criminal laws are not written in order to preserve the
nation against serious abuse of the presidential office. But this is
the purpose of the constitutional provision for the impeachment of a
President and that purpose gives meaning to ``high Orimes and
Misdemeanors.''
IV. Conclusion
Impeachment is a constitutional remedy addressed to serious
offenses against the system of government. The purpose of impeachment
under the Constitution is indicated by the limited scope of the remedy
(removal from office and possible disqualification from future office)
and by the stated grounds for impeachment (treason, bribery and other
high crimes and misdemeanors). It is not controlling whether treason
and bribery are criminal. More important, they are constitutional
wrongs that subvert the structure of government, or undermine the
integrity of office and even the Constitution itself, and thus are
``high'' offenses in the sense that word was used in English
impeachments.
The framers of our Constitution consciously adopted a particular
phrase from the English practice to help define the constitutional
grounds for removal. The content of the phrase ``high Crimes and
Misdemeanors'' for the framers is to be related to what the framers
knew, on the whole, about the English practice--the broad sweep of
English constitutional history and the vital role impeachment had
played in the limitation of royal prerogative and the control of abuses
of ministerial and judicial power.
Impeachment was not a remote subject for the framers. Even as they
labored in Philadelphia, the impeachment trial of Warren Hastings,
Governor-General of India, was pending in London, a fact to which
George Mason made explicit reference in the Convention. Whatever may be
said of the merits of Hastings, conduct, the charges against him
exemplified the central aspect of impeachment--the parliamentary effort
to reach grave abuses of governmental power.
The framers understood quite clearly that the constitutional system
they were creating must include some ultimate check on the conduct of
the executive, particularly as they came to reject the suggested plural
executive. While insistent that balance between the executive and
legislative branches be maintained so that the executive would not
become the creature of the legislature, dismissable at its will, the
framers also recognized that some means would be needed to deal with
excesses by the executive. Impeachment was familiar to them. They
understood its essential constitutional functions and perceived its
adaptability to the American contest.
While it may be argued that some articles of impeachment have
charged conduct that constituted crime and thus that criminality is an
essential ingredient, or that some have charged conduct that was not
criminal and thus that criminality is not essential, the fact remains
that in the English practice and in several of the American
impeachments the criminality issue was not raised at all. The emphasis
has been on the significant effects of the conduct--undermining the
integrity of office, disregard of constitutional duties and oath of
office, arrogation of power, abuse of the governmental process, adverse
impact on the system of govern
[[Page 2272]]
ment. Clearly, these effects can be brought about in ways not
anticipated by the criminal law. Criminal standards and criminal courts
were established to control individual conduct. Impeachment was evolved
by Parliament to cope with both the inadequacy of criminal standards
and the impotence of courts to deal with the conduct of great public
figures. It would be anomalous if the framers, having barred criminal
sanctions from the impeachment remedy and limited it to removal and
possible disqualification from office, intended to restrict the grounds
for impeachment to conduct that was criminal.
The longing for precise criteria is understandable; advance,
precise definition of objective limits would seemingly serve both to
direct future conduct and to inhibit arbitrary reaction to past
conduct. In private affairs the objective is the control of personal
behavior, in part through the punishment of misbehavior. In general,
advance definition of standards respecting private conduct works
reasonably well. However, where the issue is presidential compliance
with the constitutional requirements and limitations on the presidency,
the crucial factor is not the intrinsic quality of behavior but the
significance of its effect upon our constitutional system or the
functioning of our government.
It is useful to note three major presidential duties of broad scope
that are explicitly recited in the Constitution: ``to take Care that
the Laws be faithfully executed,'' to ``faithfully execute the Office
of President of the United States'' and to ``preserve, protect, and
defend the Constitution of the United States'' to the best of his
ability. The first is directly imposed by the Constitution; the second
and third are included in the constitutionally prescribed oath that the
President is required to take before he enters upon the execution of
his office and are, therefore, also expressly imposed by the
Constitution.
The duty to take care is affirmative. So is the duty faithfully to
execute the office. A President must carry out the obligations of his
office diligently and in good faith. The elective character and
political role of a President make it difficult to define faithful
exercise of his powers in the abstract. A President must make policy
and exercise discretion. This discretion necessarily is broad,
especially in emergency situations, but the constitutional duties of a
President impose limitations on its exercise.
The ``take care'' duty emphasizes the responsibility of a President
for the overall conduct of the executive branch, which the Constitution
vests in him alone. He must take care that the executive is so
organized and operated that this duty is performed.
The duty of a President to ``preserve, protect, and defend the
Constitution'' to the best of his ability includes the duty not to
abuse his powers or transgress their limits--not to violate the rights
of citizens, such as those guaranteed by the Bill of Rights, and not to
act in derogration of powers vested elsewhere by the Constitution.
Not all presidential misconduct is sufficient to constitute grounds
for impeachment. There is a further requirement--substantiality. In
deciding whether this further requirement has been met, the facts must
be considered as a whole in the context of the office, not in terms of
separate or isolated events. Because impeachment of a President is a
grave step for the nation, it is to be predicated only
[[Page 2273]]
upon conduct seriously incompatible with either the constitutional form
and principles of our government or the proper performance of
constitutional duties of the presidential office.