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Impeachment Powers
The following government article provides useful information
regarding impeachment:
[Deschler's Precedents] [From the U.S. Government Printing Office via
GPO Access] [DOCID:52093c14_txt-4]
[Page 1955-2015]
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=deschler_precedents&docid=52093c14_txt-4.txt
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.<SUP>(20)</SUP> 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.<SUP>(1)</SUP> 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.<SUP>(2)</SUP>
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20. Jefferson's Manual states that: [B]y the usage of Parliament, in
impeachment for writing or speaking, the particular words need not be
specified in the accusation. House Rules and Manual (Jefferson's Manual)
Sec. 609 (1973). 1. See Sec. 3.2, infra. 2. See Sec. 3.4, infra.
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At the conclusion of the Ritter trial, and following conviction only
on article VII, a point of order was raised against the vote in that the
article combined the grounds that were alleged for impeachment. The
President pro tempore overruled the point of order.<SUP>(3)</SUP>
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3. See Sec. 3.5, infra.
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The various grounds for impeachment and the form of impeachment
articles have been documented during recent investigations. Following
the inquiry into charges against President Nixon, the Committee on the
Judiciary reported to the House a report recommending impeachment, which
report included the text of a resolution and articles impeaching the
President.<SUP>(4)</SUP> 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.<SUP>(5)</SUP> The committee also concluded that an
article of impeachment could cumulate charges and facts constituting a
course of conduct, as in article II.<SUP>(6)</SUP>
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4. See Sec. 3.1, infra. 5. See Sec. 3.7, infra, for the majority views
and Sec. 3.8, infra, for the minority views on the articles of
impeachment. 6. See Sec. 3.3, infra, for the majority and minority views
on article II. In its final report the Committee on the Judiciary cited
a staff report by the impeachment inquiry staff on the grounds for
presidential impeachment, prepared before the committee had proceeded to
compile all the evidence and before the committee had proceeded to
consider a resolution and articles of impeachment. While the report and
its conclusions were not intended to represent the views of the
committee or of its individual members, the report is printed in part in
the appendix to this chapter as a synopsis of the history, origins, and
concepts of the impeachment process and of the grounds for impeachment.
See Sec. 3.6, infra, and appendix, infra.
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[[Page 1957]]
The grounds for impeachment of federal judges were scrutinized in
1970, in the inquiry into the conduct of Associate Justice Douglas of
the Supreme Court. Concepts of impeachment were debated on the floor of
the House, as to the ascertainability of the definition of an
impeachable offense, and as to whether a federal judge could be
impeached for conduct not related to the performance of his judicial
function or for judicial conduct not criminal in nature.<SUP>(7)</SUP>
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7. See Sec. Sec. 3.9-3.12, infra.
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A special subcommittee of the Committee on the Judiciary was created
to investigate and report on the charges of impeachment against Justice
Douglas, and submitted to the committee a final report recommending
against impeachment, finding the evidence insufficient. The report
concluded that a federal judge could be impeached for judicial conduct
which is either criminal or a serious abuse of public duty, or for
nonjudicial conduct which is criminal.<SUP>(8)</SUP>
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8. See Sec. 3.13, infra.
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Cross References Amendments to articles adopted by the House, see
Sec. 10, infra. Charges not resulting in impeachment, see Sec. 14,
infra. Grounds for conviction in the Ritter impeachment trial, see Sec.
18, infra.
Collateral Reference Articles of Impeachment Voted by the House of
Representatives, see Impeachment, Selected Materials, Committee on the
Judiciary, H. Doc. No. 93-7, 93d Cong. 1st Sess., Oct. 1973.
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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,<SUP>(9)</SUP> the Committee on the Judiciary
submitted to the House a report on its inves
[[Page 1958]]
tigation into charges of impeachable offenses against President
Richard Nixon. The committee included in the text of the report a
resolution and articles of impeachment which had been adopted by the
committee:
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9. H. Rept. No. 93-1305, Committee on the Judiciary, printed in the
Record at 120 Cong. Rec. 29219, 29220, 93d Cong. 2d Sess., Aug. 20,
1974. For complete text of H. Rept. No. 93-1305, see id. at pp.
29219-361.
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Impeaching Richard M. Nixon, President of the United States, of high
crimes and misdemeanors. Resolved, That Richard M. Nixon, President of
the United States, is impeached for high crimes and misdemeanors, and
that the following articles of impeachment be exhibited to the Senate:
Articles of impeachment exhibited by the House of Representatives of the
United States of America in the name of itself and of all of the people
of the United States of America, against Richard M. Nixon, President of
the United States of America, in maintenance and support of its
impeachment against him for high crimes and misdemeanors.
Article I
In his conduct of the office of President of the United States,
Richard M. Nixon, in violation of his constitutional oath faithfully to
execute the office of President of the United States and, to the best of
his ability, preserve, protect, and defend the Constitution of the
United States, and in violation of his constitutional duty to take care
that the laws be faithfully executed, has prevented, obstructed, and
impeded the administration of justice, in that: On June 17, 1972, and
prior thereto, agents of the Committee for the Reelection of the
President committed unlawful entry of the headquarters of the Democratic
National Committee in Washington, District of Columbia, for the purpose
of securing political intelligence. Subsequent thereto, Richard M.
Nixon, using the powers of his high office, engaged personally and
through his subordinates and agents, in a course of conduct or plan
designed to delay, impede, and obstruct the investigation of such
unlawful entry; to cover up, conceal and protect those responsible; and
to conceal the existence and scope of other unlawful covert activities.
The means used to implement this course of conduct or plan included one
or more of the following:
(1) making or causing to be made false or misleading statements to
lawfully authorized investigative officers and employees of the United
States; (2) withholding relevant and material evidence or information
from lawfully authorized investigative officers and employees of the
United States; (3) approving, condoning, acquiescing in, and counseling
witnesses with respect to the giving of false or misleading statements
to lawfully authorized investigative officers and employees of the
United States and false or misleading testimony in duly instituted
judicial and congressional proceedings; (4) interfering or endeavoring
to interfere with the conduct of investigations by the Department of
Justice of the United States, the Federal Bureau of Investigation, the
Office of Watergate Special Prosecution Force, and Congressional
Committees; (5) approving, condoning, and acquiescing in, the
surreptitious payment of substantial sums of money for the purpose of
obtaining the silence or influencing the testimony of
[[Page 1959]]
witnesses, potential witnesses or individuals who participated in
such unlawful entry and other illegal activities; (6) endeavoring to
misuse the Central Intelligence Agency, an agency of the United States;
(7) disseminating information received from officers of the Department
of Justice of the United States to subjects of investigations conducted
by lawfully authorized investigative officers and employees of the
United States, for the purpose of aiding and assisting such subjects in
their attempts to avoid criminal liability; (8) making false or
misleading public statements for the purpose of deceiving the people of
the United States into believing that a thorough and complete
investigation had been conducted with respect to allegations of
misconduct on the part of personnel of the executive branch of the
United States and personnel of the Committee for the Re-election of the
President, and that there was no involvement of such personnel in such
misconduct; or (9) endeavoring to cause prospective defendants, and
individuals duly tried and convicted, to expect favored treatment and
consideration in return for their silence or false testimony, or
rewarding individuals for their silence or false testimony.
In all of this, Richard M. Nixon has acted in a manner contrary to
his trust as President and subversive of constitutional government, to
the great prejudice of the cause of law and justice and to the manifest
injury of the people of the United States. Wherefore Richard M. Nixon,
by such conduct, warrants impeachment and trial, and removal from
office.
Article II
Using the powers of the office of President of the United States,
Richard M. Nixon, in violation of his constitutional oath faithfully to
execute the office of President of the United States and, to the best of
his ability, preserve, protect, and defend the Constitution of the
United States, and in disregard of his constitutional duty to take care
that the laws be faithfully executed, has repeatedly engaged in conduct
violating the constitutional rights of citizens, impairing the due and
proper administration of justice and the conduct of lawful inquiries, or
contravening the laws governing agencies of the executive branch and the
purposes of these agencies. This conduct has included one or more of the
following:
(1) He has, acting personally and through his subordinates and
agents, endeavored to obtain from the Internal Revenue Service, in
violation of the constitutional rights of citizens, confidential
information contained in income tax returns for purposes not authorized
by law, and to cause, in violation of the constitutional rights of
citizens, income tax audits or other income tax investigations to be
initiated or conducted in a discriminatory manner. (2) He misused the
Federal Bureau of Investigation, the Secret Service, and other executive
personnel, in violation or disregard of the constitutional rights of
citizens, by directing or authorizing such agencies or personnel to
conduct or continue electronic surveillance or other investigations for
purposes unrelated to national security, the enforcement of laws, or any
other lawful function of his office; he did direct, authorize, or permit
the use of information obtained thereby for purposes unrelated to
national security, the enforcement of laws, or any other lawful function
of his office; and he did direct the concealment of
[[Page 1960]]
certain records made by the Federal Bureau of Investigation of
electronic surveillance. (3) He has, acting personally and through his
subordinates and agents, in violation or disregard of the constitutional
rights of citizens, authorized and permitted to be maintained a secret
investigative unit within the office of the President, financed in part
with money derived from campaign contributions, which unlawfully
utilized the resources of the Central Intelligence Agency, engaged in
covert and unlawful activities, and attempted to prejudice the
constitutional right of an accused to a fair trial. (4) He has failed to
take care that the laws were faithfully executed by failing to act when
he knew or had reason to know that his close subordinates endeavored to
impede and frustrate lawful inquiries by duly constituted executive,
judicial, and legislative entities concerning the unlawful entry into
the headquarters of the Democratic National Committee, and the cover-up
thereof, and concerning other unlawful activities, including those
relating to the confirmation of Richard Kleindienst as Attorney General
of the United States, the electronic surveillance of private citizens,
the break-in into the offices of Dr. Lewis Fielding, and the campaign
financing practices of the Committee to Reelect the President. (5) In
disregard of the rule of law, he knowingly misused the executive power
by interfering with agencies of the executive branch, including the
Federal Bureau of Investigation, the Criminal Division, and the Office
of Watergate Special Prosecution Force, of the Department of Justice,
and the Central Intelligence Agency, in violation of his duty to take
care that the laws be faithfully executed.
In all of this, Richard M. Nixon has acted in a manner contrary to
his trust as President and subversive of constitutional government, to
the great prejudice of the cause of law and justice and to the manifest
injury of the people of the United States. Wherefore Richard M. Nixon,
by such conduct, warrants impeachment and trial, and removal from
office.
Article III
In his conduct of the office of President of the United States,
Richard M. Nixon, contrary to his oath faithfully to execute the office
of President of the United States and, to the best of his ability,
preserve, protect, and defend the Constitution of the United States, and
in violation of his constitutional duty to take care that the laws be
faithfully executed, has failed without lawful cause or excuse to
produce papers and things as directed by duly authorized subpoenas
issued by the Committee on the Judiciary of the House of Representatives
on April 11, 1974, May 15, 1974, May 30, 1974, and June 24, 1974, and
willfully disobeyed such subpoenas. The subpoenaed papers and things
were deemed necessary by the Committee in order to resolve by direct
evidence fundamental, factual questions relating to Presidential
direction, knowledge, or approval of actions demonstrated by other
evidence to be substantial grounds for impeachment of the President. In
refusing to produce these papers and things, Richard M. Nixon,
substituting his judgment as to what materials were necessary for the
inquiry, interposed the powers of the Presidency against the lawful
subpoenas of the House of Representatives, thereby assuming to himself
functions and judgments necessary to the exercise of the sole power of
impeachment vested by the Constitution in the House of Representatives.
[[Page 1961]]
In all of this, Richard M. Nixon has acted in a manner contrary to
his trust as President and subversive of constitutional government, to
the great prejudice of the cause of law and justice, and to the manifest
injury of the people of the United States. Wherefore Richard M. Nixon,
by such conduct, warrants impeachment and trial, and removal from
office.
Sec. 3.2 Articles impeaching Judge Halsted L. Ritter were reported to
the House in two separate resolutions.
In March 1936, articles of impeachment against Judge Ritter were
reported to the House: <SUP>10</SUP>
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10. H. Res. 422, 80 Cong. Rec. 3066-68, 74th Cong. 2d Sess., Mar. 2,
1936 (Articles I-IV); H. Res. 471, 80 Cong. Rec. 4597-99, 74th Cong. 2d
Sess., Mar. 30, 1936 (amending Article III and adding new Articles
IV-VII).
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[H. Res. 422]
Resolved, That Halsted L. Ritter, who is a United States district
judge for the southern district of Florida, be impeached for
misbehavior, and for high crimes and misdemeanors; and that the evidence
heretofore taken by the subcommittee of the Committee on the Judiciary
of the House of Representatives under H. Res. 163 of the Seventy-third
Congress sustains articles of impeachment, which are hereinafter set
out; and that the said articles be, and they are hereby, adopted by the
House of Representatives, and that the same shall be exhibited to the
Senate in the following words and figures, to wit: Articles of
impeachment of the House of Representatives of the United States of
America in the name of themselves and of all of the people of the United
States of America against Halsted L. Ritter, who was appointed, duly
qualified, and commissioned to serve, during good behavior in office, as
United States district judge for the southern district of Florida, on
February 15, 1929.
Article I
That the said Halsted L. Ritter, having been nominated by the
President of the United States, confirmed by the Senate of the United
States, duly qualified and commissioned, and while acting as a United
States district judge for the southern district of Florida, was and is
guilty of misbehavior and of a high crime and misdemeanor in office in
manner and form as follows, to wit: On or about October 11, 1929, A. L.
Rankin (who had been a law partner of said judge immediately before said
judge's appointment as judge), as solicitor for the plaintiff, filed in
the court of the said Judge Ritter a certain foreclosure suit and
receivership proceeding, the same being styled ``Bert E. Holland and
others against Whitehall Building and Operating Company and others''
(Number 678-M-Eq.). On or about May 15, 1930, the said Judge Ritter
allowed the said Rankin an advance of $2,500 on his fee for his services
in said case. On or about July 2, 1930, the said Judge Ritter by letter
requested another judge of the United States district court for the
southern district of Florida, to wit, Honorable Alexander Akerman, to
fix and deter
[[Page 1962]]
mine the total allowance for the said Rankin for his services in said
case for the reason as stated by Judge Ritter in said letter, that the
said Rankin had formerly been the law partner of the said Judge Ritter,
and he did not feel that he should pass upon the total allowance made
said Rankin in that case and that if Judge Akerman would fix the
allowance it would relieve the writer, Judge Ritter, from any
embarrassment if thereafter any question should arise as to his, Judge
Ritter's, favoring said Rankin with an exorbitant fee. Thereafterward,
notwithstanding the said Judge Akerman, in compliance with Judge
Ritter's request, allowed the said Rankin a fee of $15,000 for his
services in said case, from which sum the said $2,500 theretofore
allowed the said Rankin by Judge Ritter as an advance on his fee was
deducted, the said Judge Ritter, well knowing that at his request
compensation had been fixed by Judge Akerman for the said Rankin's
services in said case, and notwithstanding the restraint of propriety
expressed in his said letter to Judge Akerman, and ignoring the danger
of embarrassment mentioned in said letter, did fix an additional and
exorbitant fee for the said Rankin in said case. On or about December
24, 1930, when the final decree in said case was signed, the said Judge
Ritter allowed the said Rankin, additional to the total allowance of
$15,000 theretofore allowed by Judge Akerman, a fee of $75,000 for his
services in said case, out of which allowance the said Judge Ritter
directly profited. On the same day, December 24, 1930, the receiver in
said case paid the said Rankin, as part of his said additional fee, the
sum of $25,000, and the said Rankin on the same day privately paid and
delivered to the said Judge Ritter the sum of $2,500 in cash; $2,000 of
said $2,500 was deposited in bank by Judge Ritter on, to wit, December
29, 1930, the remaining $500 being kept by Judge Ritter and not
deposited in bank until, to wit, July 10, 1931. Between the time of such
initial payment on said additional fee and April 6, 1931, the said
receiver paid said Rankin thereon $5,000. On or about April 6, 1931, the
said Rankin received the balance of the said additional fee allowed him
by Judge Ritter, said balance amounting to $45,000. Shortly thereafter,
on or about April 14, 1931, the said Rankin paid and delivered to the
said Judge Ritter, privately, in cash, an additional sum of $2,000. The
said Judge Halsted L. Ritter corruptly and unlawfully accepted and
received for his own use and benefit from the said A. L. Rankin the
aforesaid sums of money, amounting to $4,500. Wherefore, the said Judge
Halsted L. Ritter was and is guilty of misbehavior and was and is guilty
of a high crime and misdemeanor.
Article II
That the said Halsted L. Ritter, while holding the office of United
States district judge for the southern district of Florida, having been
nominated by the President of the United States, confirmed by the Senate
of the United States, duly qualified and commissioned, and while acting
as a United States district judge for the southern district of Florida,
was and is guilty of misbehavior and of high crimes and misdemeanors in
office in manner and form as follows, to wit: On the 15th day of
February 1929 the said Halsted L. Ritter, having been
[[Page 1963]]
appointed as United States district judge for the southern district
of Florida, was duly qualified and commissioned to serve as such during
good behavior in office. Immediately prior thereto and for several years
the said Halsted L. Ritter had practiced law in said district in
partnership with one A. L. Rankin, which partnership was dissolved upon
the appointment of said Ritter as said United States district judge. On
the 18th day of July 1928 one Walter S. Richardson was elected trustee
in bankruptcy of the Whitehall Building and Operating Company, which
company had been adjudicated in said district as a bankrupt, and as such
trustee took charge of the assets of said Whitehall Building and
Operating Company, which consisted of a hotel property located in Palm
Beach in said district. That the said Richardson as such trustee
operated said hotel property from the time of his said appointment until
its sales on the 3d of January 1929, under the foreclosure of a third
mortgage thereon. On the 1st of November and the 13th of December 1929,
the said Judge Ritter made orders in said bankruptcy proceedings
allowing the said Walter S. Richardson as trustee the sum of $16,500 as
compensation for his services as trustee. That before the discharge of
said Walter S. Richardson as such trustee, said Richardson, together
with said A. L. Rankin, one Ernest Metcalf, one Martin Sweeney, and the
said Halsted L. Ritter, entered into an arrangement to secure permission
of the holder or holders of at least $50,000 of first mortgage bonds on
said hotel property for the purpose of filing a bill to foreclose the
first mortgage on said premises in the court of said Halsted L. Ritter,
by which means the said Richardson, Rankin, Metcalf, Sweeney, and Ritter
were to continue said property in litigation before said Ritter. On the
30th day of August 1929, the said Walter S. Richardson, in furtherance
of said arrangement and understanding, wrote a letter to the said Martin
Sweeney, in New York, suggesting the desirability of contacting as many
first-mortgage bondholders as possible in order that their cooperation
might be secured, directing special attention to Mr. Bert E. Holland, an
attorney, whose address was in the Tremont Building in Boston, and who,
as cotrustee, was the holder of $50,000 of first-mortgage bonds, the
amount of bonds required to institute the contemplated proceedings in
Judge Ritter's court. On October 3, 1929, the said Bert E. Holland,
being solicited by the said Sweeney, requested the said Rankin and
Metcalf to prepare a complaint to file in said Judge Ritter's court for
foreclosure of said first mortgage and the appointment of a receiver. At
this time Judge Ritter was holding court in Brooklyn, New York, and the
said Rankin and Richardson went from West Palm Beach, Florida, to
Brooklyn, New York, and called upon said Judge Ritter a short time
previous to filing the bill for foreclosure and appointment of a
receiver of said hotel property. On October 10, 1929, and before the
filing of said bill for foreclosure and receiver, the said Holland
withdrew his authority to said Rankin and Metcalf to file said bill and
notified the said Rankin not to file the said bill. Notwithstanding the
said instructions to
[[Page 1964]]
said Rankin not to file said bill, said Rankin, on the 11th day of
October 1929, filed said bill with the clerk of the United States
District Court for the Southern District of Florida but with the
specific request to said clerk to lock up the said bill as soon as it
was filed and hold until Judge Ritter's return so that there would be no
newspaper publicity before the matter was heard by Judge Ritter for the
appointment of a receiver, which request on the part of the said Rankin
was complied with by the said clerk. On October 16, 1929, the said
Holland telegraphed to the said Rankin, referring to his previous wire
requesting him to refrain from filing the bill and insisting that the
matter remain in its then status until further instruction was given;
and on October 17, 1929, the said Rankin wired to Holland that he would
not make an application on his behalf for the appointment of a receiver.
On October 28, 1929, a hearing on the complaint and petition for
receivership was heard before Judge Halsted L. Ritter at Miami, at which
hearing the said Bert E. Holland appeared in person before said Judge
Ritter and advised the judge that he wished to withdraw the suit and
asked for dismissal of the bill of complaint on the ground that the bill
was filed without his authority. But the said Judge Ritter, fully
advised of the facts and circumstances herein before recited, wrongfully
and oppressively exercised the powers of his office to carry into
execution said plan and agreement theretofore arrived at, and refused to
grant the request of the said Holland and made effective the champertous
undertaking of the said Richardson and Rankin and appointed the said
Richardson receiver of the said hotel property, notwithstanding that
objection was made to Judge Ritter that said Richardson had been active
in fomenting this litigation and was not a proper person to act as
receiver. On October 15, 1929, said Rankin made oath to each of the
bills for intervenors which were filed the next day. On October 16,
1929, bills for intervention in said foreclosure suit were filed by said
Rankin and Metcalf in the names of holders of approximately $5,000 of
said first-mortgage bonds, which intervenors did not possess the said
requisite $50,000 in bonds required by said first mortgage to bring
foreclosure proceedings on the part of the bondholders. The said Rankin
and Metcalf appeared as attorneys for complainants and intervenors, and
in response to a suggestion of the said Judge Ritter, the said Metcalf
withdrew as attorney for complainants and intervenors and said Judge
Ritter thereupon appointed said Metcalf as attorney for the said
Richardson, the receiver. And in the further carrying out of said
arrangement and understanding, the said Richardson employed the said
Martin Sweeney and one Bemis, together with Ed Sweeney, as managers of
said property, for which they were paid the sum of $60,000 for the
management of said hotel for the two seasons the property remained in
the custody of said Richardson as receiver. On or about the 15th day of
May 1930 the said Judge Ritter allowed the said Rankin an advance on his
fee of $2,500 for his services in said case. On or about July 2, 1930,
the said Judge Ritter requested Judge Alex
[[Page 1965]]
ander Akerman, also a judge of the United States District Court for
the Southern District of Florida, to fix the total allowance for the
said Rankin for his services in said case, said request and the reasons
therefor being set forth in a letter by the said Judge Ritter, in words
and figures as follows, to wit:
July 2, 1930. Hon. Alexander Akerman, United States District Judge,
Tampa, Fla.
My Dear Judge: In the case of Holland et al. v. Whitehall Building &
Operating Co. (No. 678-M-Eq.), pending in my division, my former law
partner, Judge A. L. Rankin, of West Palm Beach, has filed a petition
for an order allowing compensation for his services on behalf of the
plaintiff. I do not feel that I should pass, under the circumstances,
upon the total allowance to be made Judge Rankin in this matter. I did
issue an order, which Judge Rankin will exhibit to you, approving an
advance of $2,500 on his claim, which was approved by all attorneys. You
will appreciate my position in the matter, and I request you to pass
upon the total allowance which should be made Judge Rankin in the
premises as an accommodation to me. This will relieve me from any
embarrassment hereafter if the question should arise as to my favoring
Judge Rankin in this matter by an exorbitant allowance. Appreciating
very much your kindness in this matter, I am, Yours sincerely, Halsted
L. Ritter.
In compliance with said request the said Judge Akerman allowed the
said Rankin $12,500 in addition to the $2,500 theretofore allowed by
Judge Ritter, making a total of $15,000 as the fee of the said Rankin in
the said case.
But notwithstanding the said request on the part of said Ritter and
the compliance by the said Judge Akerman and the reasons for the making
of said request by said Judge Ritter of Judge Akerman, the said Judge
Ritter, on the 24th day of December 1930, allowed the said Rankin an
additional fee of $75,000. And on the same date when the receiver in
said case paid to the said Rankin as a part of said additional fee the
sum of $25,000, said Rankin privately paid and delivered to said Judge
Ritter out of the said $25,000 the sum of $2,500 in cash, $2,000 of
which the said Judge Ritter deposited in a bank and $500 of which was
put in a tin box and not deposited until the 10th day of July 1931, when
it was deposited in a bank with an additional sum of $600. On or about
the 6th day of April 1931, the said Rankin received as a part of the
$75,000 additional fee the sum of $45,000, and shortly thereafter, on or
before the 14th day of April 1931, the said Rankin paid and delivered to
said judge Ritter, privately and in cash, out of said $45,000 the sum of
$2,000. The said Judge Halsted L. Ritter corruptly and unlawfully
accepted and received for his own use and benefit from the said Rankin
the aforesaid sums of $2,500 in cash and $2,000 in cash, amounting in
all to $4,500. Of the total allowance made to said A.L. Rankin in said
foreclosure suit, amounting in all to $90,000, the fol
[[Page 1966]]
lowing sums were paid out by said Rankin with the knowledge and
consent of said Judge Ritter, to wit: to said Walter S. Richardson, the
sum of $5,000; to said Metcalf, the sum of $10,000; to Shutts and Bowen,
also attorneys for the receiver, the sum of $25,000; and to said Halsted
L. Ritter, the sum of $4,500. In addition to the said sum of $5,000
received by the said Richardson as aforesaid, said Ritter by order in
said proceedings allowed said Richardson a fee of $30,000 for services
as such receiver. The said fees allowed by said Judge Ritter to A.L.
Rankin (who had been a law partner of said judge immediately before said
judge's appointment as judge) as solicitor for the plaintiff in said
case were excessive and unwarranted, and said judge profited personally
thereby in that out of the money so allowed said solicitor he received
personally, privately, and in cash $4,500 for his own use and benefit.
While the Whitehall Hotel was being operated in receivership under said
proceeding pending in said court (and in which proceeding the receiver
in charge of said hotel by appointment of said Judge was allowed large
compensation by said judge) the said judge stayed at said hotel from
time to time without cost to himself and received free rooms, free
meals, and free valet service, and, with the knowledge and consent of
said judge, members of his family, including his wife, his son, Thurston
Ritter, his daughter, Mrs. M.R. Walker, his secretary, Mrs. Lloyd C.
Hooks, and her husband, Lloyd C. Hooks, each likewise on various
occasions stayed at said hotel without cost to themselves or to said
judge, and received free rooms, and some or all of them received from
said hotel free meals and free valet service; all of which expenses were
borne by the said receivership to the loss and damage of the creditors
whose interests were involved therein. The said judge willfully failed
and neglected to perform his duty to conserve the assets of the
Whitehall Building and Operating Company in receivership in his court,
but to the contrary, permitted waste and dissipation of its assets, to
the loss and damage of the creditors of said corporation, and was a
party to the waste and dissipation of such assets while under the
control of his said court, and personally profited thereby, in the
manner and form hereinabove specifically set out. Wherefore, the said
Judge Halsted L. Ritter was and is guilty of misbehavior, and was and is
guilty of a high crime and misdemeanor in office.
Articles III and IV in House Resolution 422 are omitted because House
Resolution 471, adopted by the House on Mar. 30, 1936, amended Article
III, added new Articles IV through VI after Article III, and amended
former Article IV to read as new Article VII. Articles III through VII
in their amended form follow:
Article III
That the said Halsted L. Ritter, having been nominated by the
President of the United States, confirmed by the Senate of the United
States, duly qualified and commissioned, and, while
[[Page 1967]]
acting as a United States District judge for the southern district of
Florida, was and is guilty of a high crime and misdemeanor in office in
manner and form as follows, to wit: That the said Halsted L. Ritter,
while such judge, was guilty of a violation of section 258 of the
Judicial Code of the United States of America (U.S.C., Annotated, title
28, sec. 373) making it unlawful for any judge appointed under the
authority of the United States to exercise the profession or employment
of counsel or attorney, or to be engaged in the practice of the law, in
that after the employment of the law firm of Ritter and Rankin (which at
the time of the appointment of Halsted L. Ritter to be judge of the
United States District Court for the Southern District of Florida, was
composed of Halsted L. Ritter and A.L. Rankin) in the case of Trust
Company of Georgia and Robert G. Stephens, trustee, against Brazilian
Court Building Corporation, and others, numbered 5704, in the Circuit
Court of the Fifteenth Judicial Circuit of Florida, and after the fee of
$4,000 which had been agreed upon at the outset of said employment had
been fully paid to the firm of Ritter and Rankin, and after Halsted L.
Ritter had, on, to wit, February 15, 1929, become judge of the United
States District Court for the Southern District of Florida, Judge Ritter
on, to wit, March 11, 1929, wrote a letter to Charles A. Brodek, of
counsel for Mulford Realty Corporation (the client which his former law
firm had been representing in said litigation), stating that there had
been much extra and unanticipated work in the case, that he was then a
Federal Judge; that his partner, A.L. Rankin, would carry through
further proceedings in the case, but that he, Judge Ritter, would be
consulted about the matter until the case was all closed up; and that
``this matter is one among very few which I am assuming to continue my
interest in until finally closed up''; and stating specifically in said
letter: ``I do not know whether any appeal will be taken in the case or
not but, if so, we hope to get Mr. Howard Paschal or some other person
as receiver who will be amenable to our directions, and the hotel can be
operated at a profit, of course, pending the appeal. We shall demand a
very heavy supersedeas bond, which I doubt whether D'Esterre can give'';
and further that he was ``of course primarily interested in getting some
money in the case'', and that he thought ``$2,000 more by way of
attorneys' fees should be allowed'', and asked that he be communicated
with direct about the matter, giving his post-office-box number. On to
wit, March 13, 1929, said Brodek replied favorably, and on March 30,
1929, a check of Brodek, Raphael, and Eisner, a law firm of New York
City, representing Mulford Realty Corporation, in which Charles A.
Brodek, senior member of the firm of Brodek, Raphael and Eisner, was one
of the directors, was drawn, payable to the order of ``Honorable Halsted
L. Ritter'' for $2,000 and which was duly endorsed ``Honorable Halsted
L. Ritter. H. L. Ritter'' and was paid on, to wit, April 4, 1929, and
the proceeds thereof were received and appropriated by Judge Ritter to
his own individual use and benefit, without advising his said former
partner that said $2,000 had been received, without consulting with
[[Page 1968]]
his former partner thereabout, and without the knowledge or consent
of his said former partner, appropriated the entire amount thus
solicited and received to the use and benefit of himself, the said Judge
Ritter. At the time said letter was written by Judge Ritter and said
$2,000 received by him, Mulford Realty Corporation held and owned large
interests in Florida real estate and citrus groves, and a large amount
of securities of the Olympia Improvement Corporation, which was a
company organized to develop and promote Olympia, Florida, said holdings
being within the territorial jurisdiction of the United States District
Court, of which Judge Ritter was a judge from, to wit, February 15,
1929. After writing said letter of March 11, 1929, Judge Ritter further
exercised the profession or employment of counsel or attorney, or
engaged in the practice of the law, with relation to said case. Which
acts of said judge were calculated to bring his office into disrepute,
constitute a violation of section 258 of the Judicial Code of the United
States of America (U.S.C., Annotated, title 28, sec. 373), and
constitute a high crime and misdemeanor within the meaning and intent of
section 4 of article II of the Constitution of the United States.
Wherefore, the said Judge Halsted L. Ritter was and is guilty of a high
misdemeanor in office.
Article IV
That the said Halsted L. Ritter, having been nominated by the
President of the United States, confirmed by the Senate of the United
States, duly qualified and commissioned, and, while acting as a United
States district judge for the southern district of Florida, was and is
guilty of a high crime and misdemeanor in office in manner and form as
follows to wit: That the said Halsted L. Ritter, while such judge, was
guilty of a violation of section 258 of the Judicial Code of the United
States of America (U.S.C., Annotated, title 28, sec. 373), making it
unlawful for any judge appointed under the authority of the United
States to exercise the profession or employment of counsel or attorney,
or to be engaged in the practice of the law, in that Judge Ritter did
exercise the profession or employment of counsel or attorney, or engage
in the practice of the law, representing J.R. Francis, with relation to
the Boca Raton matter and the segregation and saving of the interest of
J.R. Francis herein, or in obtaining a deed or deeds to J.R. Francis
from the Spanish River Land Company to certain pieces of realty, and in
the Edgewater Ocean Beach Development Company matter for which services
the said Judge Ritter received from the said J.R. Francis the sum of
$7,500. Which acts of said judge were calculated to bring his office
into disrepute constitute a violation of the law above recited, and
constitute a high crime and misdemeanor within the meaning and intent of
section 4 of article II of the Constitution of the United States.
Wherefore, the said Judge Halsted L. Ritter was and is guilty of a high
misdemeanor in office.
Article V
That the said Halsted L. Ritter, having been nominated by the
President of
[[Page 1969]]
the United States, confirmed by the Senate of the United States, duly
qualified and commissioned, and, while acting as a United States
district judge for the southern district of Florida, was and is guilty
of a high crime and misdemeanor in office in manner and form as follows,
to wit: That the said Halsted L. Ritter, while such judge, was guilty of
violation of section 146(h) of the Revenue Act of 1928, making it
unlawful for any person willfully to attempt in any manner to evade or
defend the payment of the income tax levied in and by said Revenue Act
of 1928, in that during the year 1929 said Judge Ritter received gross
taxable income--over and above his salary as judge-- to the amount of
some $12,000, yet paid no income tax thereon. Among the fees included in
said gross taxable income for 1929 were the extra fee of $2,000
collected and received by Judge Ritter in the Brazilian Court case as
described in article III, and the fee of $7,500 received by Judge Ritter
from J.R. Francis. Wherefore the said Judge Halsted L. Ritter was and is
guilty of a high misdemeanor in office.
Article VI
That the said Halsted L. Ritter, having been nominated by the
President of the United States, confirmed by the Senate of the United
States, duly qualified and commissioned, and, while acting as a United
States district judge for the southern district of Florida, was and is
guilty of a high crime and misdemeanor in office in manner and form as
follows, to wit: That the said Halsted L. Ritter, while such judge, was
guilty of violation of section 146(b) of the Revenue Act of 1928, making
it unlawful for any person willfully to attempt in any manner to evade
or defeat the payment of the income tax levied in and by said Revenue
Act of 1928, in that during the year 1930 the said Judge Ritter received
gross taxable income--over and above his salary as judge--to the amount
of to wit, $5,300, yet failed to report any part thereof in his
income-tax return for the year 1930 and paid no income tax thereon. Two
thousand five hundred dollars of said gross taxable income for 1930 was
that amount of cash paid Judge Ritter by A. L. Rankin on December 24,
1930, as described in article I. Wherefore the said Judge Halsted L.
Ritter was and is guilty of a high misdemeanor in office.
Article VII
That the said Halsted L. Ritter, while holding the office of United
States district judge for the southern district of Florida, having been
nominated by the President of the United States, confirmed by the Senate
of the United States, duly qualified and commissioned, and, while acting
as a United States district judge for the southern district of Florida,
was and is guilty of misbehavior and of high crimes and misdemeanors in
office in manner and form as follows, to wit: The reasonable and
probable consequence of the actions or conduct of Halsted L. Ritter,
hereunder specified or indicated in this article, since he became judge
of said court, as an individual or as such judge, is to bring his court
into scandal and disrepute, to the prejudice of said court and public
con
[[Page 1970]]
fidence in the administration of justice therein, and to the
prejudice of public respect for and confidence in the Federal judiciary,
and to render him unfit to continue to serve as such judge: 1. In that
in the Florida Power Company case (Florida Power and Light Company
against City of Miami and others, numbered 1138-M- Eq.) which was a case
wherein said judge had granted the complainant power company a temporary
injunction restraining the enforcement of an ordinance of the city of
Miami, which ordinance prescribed a reduction in the rates for electric
current being charged in said city, said judge improperly appointed one
Cary T. Hutchinson, who had long been associated with and employed by
power and utility interests, special master in chancery in said suit,
and refused to revoke his order so appointing said Hutchinson.
Thereafter, when criticism of such action had become current in the city
of Miami, and within two weeks after a resolution (H. Res. 163,
Seventy-third Congress) had been agreed to in the House of
Representatives of the Congress of the United States, authorizing and
directing the Judicial Committee thereof to investigate the official
conduct of said judge and to make a report concerning said conduct to
said House of Representatives an arrangement was entered into with the
city commissioners of the city of Miami or with the city attorney of
said city by which the said city commissioners were to pass a resolution
expressing faith and confidence in the integrity of said judge, and the
said judge recuse himself as judge in said Dower suit. The said
agreement was carried out by the parties thereto, and said judge, after
the passage of such resolution, recused himself from sitting as judge in
said power suit, thereby bartering his judicial authority in said case
for a vote of confidence. Nevertheless, the succeeding judge allowed
said Hutchinson as special master in chancery in said case a fee of
$5,000, although he performed little, if any, service as such, and in
the order making such allowance recited: ``And it appearing to the court
that a minimum fee of $5,000 was approved by the court for the said Cary
T. Hutchinson, special master in this cause.'' 2. In that in the Trust
Company of Florida cases (Illick against Trust Company of Florida and
others numbered 1043-M-Eq., and Edmunds Committee and others against
Marion Mortgage Company and others, numbered 1124-M-Eq.) after the State
banking department of Florida, through its comptroller, Honorable Ernest
Amos, had closed the doors of the Trust Company of Florida and appointed
J.H. Therrell liquidator for said trust company, and had intervened in
the said Illick case, said Judge Ritter wrongfully and erroneously
refused to recognize the right of said State authority to administer the
affairs of the said trust company and appointed Julian E. Eaton and
Clark D. Stearns as receivers of the property of said trust company. On
appeal, the United States Circuit Court of Appeals for the Fifth Circuit
reversed the said order or decree of Judge Ritter and ordered the said
property surrendered to the State liquidator. Thereafter, on, to wit,
September 12, 1932, there was filed in the United States District Court
for the Southern District of Florida the Edmunds Committee case, supra.
Mar
[[Page 1971]]
ion Mortgage Company was a subsidiary of the Trust Company of
Florida. Judge Ritter being absent from his district at the time of the
filing of said case, an application for the appointment of receivers
therein was presented to another judge of said district, namely,
Honorable Alexander Akerman. Judge Ritter, however, prior to the
appointment of such receivers, telegraphed Judge Akerman, requesting him
to appoint the aforesaid Eaton and Stearns as receivers in said case,
which appointments were made by Judge Akerman. Thereafter the United
States Circuit Court of Appeals for the Fifth Circuit reversed the order
of Judge Akerman, appointing said Eaton and Stearns as receivers in said
case. In November 1932, J.H. Therrell, as liquidator, filed a bill of
complaint in the Circuit Court of Dade County, Florida--a court of the
State of Florida--alleging that the various trust properties of the
Trust Company of Florida were burdensome to the liquidator to keep, and
asking that the court appoint a succeeding trustee. Upon petition for
removal of said cause from said State court into the United States
District Court for the Southern District of Florida, Judge Ritter took
jurisdiction, notwithstanding the previous rulings of the United States
Circuit Court of Appeals above referred to, and again appointed the said
Eaton and Stearns as the receivers of the said trust properties. In
December 1932 the said Therrell surrendered all of the trust properties
to said Eaton and Stearns as receivers, together with all records of the
Trust Company of Florida pertaining thereto. During the time said Eaton
and Stearns, as such receivers, were in control of said trust
properties, Judge Ritter wrongfully and improperly approved their
accounts without notice or opportunity for objection thereto to be
heard. With the knowledge of Judge Ritter, said receivers appointed the
sister-in-law of Judge Ritter, namely, Mrs. G.M. Wickard, who had had no
previous hotel-management experience, to be manager of the Julia Tuttle
Hotel and Apartment Building, one of said trust properties. On, to wit,
January 1, 1933, Honorable J.M. Lee succeeded Honorable Ernest Amos as
comptroller of the State of Florida and appointed M.A. Smith liquidator
in said Trust Company of Florida cases to succeed J.H. Therrell. An
appeal was again taken to the United States Circuit Court of Appeals for
the Fifth Circuit from the then latest order or decree of Judge Ritter,
and again the order or decree of Judge Ritter appealed from was reversed
by the said circuit court of appeals which held that the State officer
was entitled to the custody of the property involved and that said Eaton
and Stearns as receivers were not entitled to such custody. Thereafter,
and with the knowledge of the decision of the said circuit court of
appeals, Judge Ritter wrongfully and improperly allowed said Eaton and
Stearns and their attorneys some $26,000 as fees out of said
trust-estate properties and endeavored to require, as a condition
precedent to releasing said trust properties from the control of his
court, a promise from counsel for the said State liquidator not to
appeal from his order allowing the said fees to said Eaton and Stearns
and their attorneys. 3. In that the said Halsted L. Ritter, while such
Federal judge, accepted, in addition to $4,500 from his former law
[[Page 1972]]
partner as alleged in article I hereof other large fees or
gratuities, to wit, $7,500 from J.R. Francis, on or about April 19,
1929, J.R. Francis at this time having large property interests within
the territorial jurisdiction of the court of which Judge Ritter was a
judge; and on, to wit, the 4th day of April 1929 the said Judge Ritter
accepted the sum of $2,000 from Brodek, Raphael and Eisner, representing
Mulford Realty Corporation, as its attorneys, through Charles A. Brodek,
senior member of said firm and a director of said corporation, as a fee
or gratuity, at which time the said Mulford Realty Corporation held and
owned large interests in Florida real estate and citrus groves, and a
large amount of securities of the Olympia Improvement Corporation, which
was a company organized to develop and promote Olympia, Florida, said
holding being within the territorial jurisdiction of the United States
District Court of which Judge Ritter was a judge from, to wit, February
15, 1929. 4. By his conduct as detailed in articles I, II, III, and IV
hereof, and by his income-tax evasions as set forth in articles V and VI
hereof. Wherefore, the said Judge Halsted L. Ritter was and is guilty of
misbehavior, and was and is guilty of high crimes and misdemeanors in
office.
Cumulative and Duplicatory Articles of Impeachment
Sec. 3.3 Majority views and minority views were included in the
report of the Committee on the Judiciary recommending the impeachment of
President Richard M. Nixon, such views relating to Article II,
containing an accumulation of acts constituting a course of conduct.
On Aug. 20, 1974, the Committee on the Judiciary recommended in its
final report to the House, pursuant to its inquiry into charges of
impeachable offenses against President Nixon, three articles of
impeachment. Article II charged that the President had ``repeatedly
engaged in conduct'' violative of his Presidential oath and of his
constitutional duty to take care that the laws be faithfully executed.
The article set forth, in five separate paragraphs, five patterns of
conduct constituting the offenses charged. The conclusion of the
committee's report on Article II read in part as follows:
In recommending Article II to the House, the Committee finds clear
and convincing evidence that Richard M. Nixon, contrary to his trust as
President and unmindful of the solemn duties of his high office, has
repeatedly used his power as President to violate the Constitution and
the law of the land. In so doing, he has failed in the obligation that
every citizen has to live under the law. But he has done more, for it is
the duty of the President not merely to live by the law but to see that
law faithfully applied. Richard M. Nixon has repeatedly and willfully
[[Page 1973]]
failed to perform that duty. He has failed to perform it by
authorizing and directing actions that violated or disregarded the
rights of citizens and that corrupted and attempted to corrupt the
lawful functioning of executive agencies. He has failed to perform it by
condoning and ratifying, rather than acting to stop, actions by his
subordinates that interfered with lawful investigations and impeded the
enforcement of the laws. . . . The conduct of Richard M. Nixon has
constituted a repeated and continuing abuse of the powers of the
Presidency in disregard of the fundamental principle of the rule of law
in our system of government. This abuse of the powers of the President
was carried out by Richard M. Nixon, acting personally and through his
subordinates, for his own political advantage, not for any legitimate
governmental purpose and without due consideration for the national
good. . . . The Committee has concluded that, to perform its
constitutional duty, it must approve this Article of Impeachment and
recommend it to the House. If we had been unwilling to carry out the
principle that all those who govern, including ourselves, are
accountable to the law and the Constitution, we would have failed in our
responsibility as representatives of the people elected under the
Constitution. If we had not been prepared to apply the principle of
Presidential accountability embodied in the impeachment clause of the
Constitution, but had instead condoned the conduct of Richard M. Nixon,
then another President, perhaps with a different political philosophy,
might have used this illegitimate power for further encroachments on the
rights of citizens and further usurpations of the power of other
branches of our government. By adopting this Article, the Committee
seeks to prevent the recurrence of any such abuse of Presidential power.
The Committee finds that, in the performance of his duties as President,
Richard M. Nixon on many occasions has acted to the detriment of
justice, right, and the public good, in violation of his constitutional
duty to see to the faithful execution of the laws. This conduct has
demonstrated a contempt for the rule of law; it has posed a threat to
our democratic republic. The Committee finds that this conduct
constitutes ``high crimes and misdemeanors'' within the meaning of the
Constitution, that it warrants his impeachment by the House, and that it
requires that he be put to trial in the Senate.<SUP>(11)</SUP>
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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.
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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.<SUP>(12)</SUP>
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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.
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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,<SUP>(13)</SUP> 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.<SUP>(14)</SUP>
---------------------------------------------------------------------------
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.<SUP>(15)</SUP>
---------------------------------------------------------------------------
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.<SUP>(1~6)</SUP>
---------------------------------------------------------------------------
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:<SUP>(17)</SUP>
---------------------------------------------------------------------------
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.<SUP>(18)</SUP>
---------------------------------------------------------------------------
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: <SUP>(19)</SUP>
---------------------------------------------------------------------------
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.<SUP>(20)</SUP>
---------------------------------------------------------------------------
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:
<SUP>(1)</SUP>
---------------------------------------------------------------------------
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: <SUP>(2)</SUP>
---------------------------------------------------------------------------
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:
<SUP>(3)</SUP>
---------------------------------------------------------------------------
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: <SUP>(4)</SUP>
---------------------------------------------------------------------------
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: <SUP>(5)</SUP>
---------------------------------------------------------------------------
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.<SUP>(8)</SUP>
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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,<SUP>(7)</SUP> 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).
u
Impeachment Powers The following government article provides useful
information regarding impeachment:
[Deschler's Precedents] [From the U.S. Government Printing Office via
GPO Access] [DOCID:52093c14_txt-4]
[Page 1955-2015]
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=deschler_precedents&docid=52093c14_txt-4.txt
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.<SUP>(20)</SUP> 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.<SUP>(1)</SUP> 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.<SUP>(2)</SUP>
---------------------------------------------------------------------------
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.<SUP>(3)</SUP>
---------------------------------------------------------------------------
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.<SUP>(4)</SUP> 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.<SUP>(5)</SUP> The committee also concluded that an
article of impeachment could cumulate charges and facts constituting a
course of conduct, as in article II.<SUP>(6)</SUP>
---------------------------------------------------------------------------
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.<SUP>(7)</SUP>
---------------------------------------------------------------------------
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.<SUP>(8)</SUP>
---------------------------------------------------------------------------
8. See Sec. 3.13, infra.
---------------------------------------------------------------------------
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,<SUP>(9)</SUP> 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.
---------------------------------------------------------------------------
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: <SUP>10</SUP>
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10. H. Res. 422, 80 Cong. Rec. 3066-68, 74th Cong. 2d Sess., Mar. 2,
1936 (Articles I-IV); H. Res. 471, 80 Cong. Rec. 4597-99, 74th Cong. 2d
Sess., Mar. 30, 1936 (amending Article III and adding new Articles
IV-VII).
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[H. Res. 422]
Resolved, That Halsted L. Ritter, who is a United States district
judge for the southern district of Florida, be impeached for
misbehavior, and for high crimes and misdemeanors; and that the evidence
heretofore taken by the subcommittee of the Committee on the Judiciary
of the House of Representatives under H. Res. 163 of the Seventy-third
Congress sustains articles of impeachment, which are hereinafter set
out; and that the said articles be, and they are hereby, adopted by the
House of Representatives, and that the same shall be exhibited to the
Senate in the following words and figures, to wit: Articles of
impeachment of the House of Representatives of the United States of
America in the name of themselves and of all of the people of the United
States of America against Halsted L. Ritter, who was appointed, duly
qualified, and commissioned to serve, during good behavior in office, as
United States district judge for the southern district of Florida, on
February 15, 1929.
Article I
That the said Halsted L. Ritter, having been nominated by the
President of the United States, confirmed by the Senate of the United
States, duly qualified and commissioned, and while acting as a United
States district judge for the southern district of Florida, was and is
guilty of misbehavior and of a high crime and misdemeanor in office in
manner and form as follows, to wit: On or about October 11, 1929, A. L.
Rankin (who had been a law partner of said judge immediately before said
judge's appointment as judge), as solicitor for the plaintiff, filed in
the court of the said Judge Ritter a certain foreclosure suit and
receivership proceeding, the same being styled ``Bert E. Holland and
others against Whitehall Building and Operating Company and others''
(Number 678-M-Eq.). On or about May 15, 1930, the said Judge Ritter
allowed the said Rankin an advance of $2,500 on his fee for his services
in said case. On or about July 2, 1930, the said Judge Ritter by letter
requested another judge of the United States district court for the
southern district of Florida, to wit, Honorable Alexander Akerman, to
fix and deter
[[Page 1962]]
mine the total allowance for the said Rankin for his services in said
case for the reason as stated by Judge Ritter in said letter, that the
said Rankin had formerly been the law partner of the said Judge Ritter,
and he did not feel that he should pass upon the total allowance made
said Rankin in that case and that if Judge Akerman would fix the
allowance it would relieve the writer, Judge Ritter, from any
embarrassment if thereafter any question should arise as to his, Judge
Ritter's, favoring said Rankin with an exorbitant fee. Thereafterward,
notwithstanding the said Judge Akerman, in compliance with Judge
Ritter's request, allowed the said Rankin a fee of $15,000 for his
services in said case, from which sum the said $2,500 theretofore
allowed the said Rankin by Judge Ritter as an advance on his fee was
deducted, the said Judge Ritter, well knowing that at his request
compensation had been fixed by Judge Akerman for the said Rankin's
services in said case, and notwithstanding the restraint of propriety
expressed in his said letter to Judge Akerman, and ignoring the danger
of embarrassment mentioned in said letter, did fix an additional and
exorbitant fee for the said Rankin in said case. On or about December
24, 1930, when the final decree in said case was signed, the said Judge
Ritter allowed the said Rankin, additional to the total allowance of
$15,000 theretofore allowed by Judge Akerman, a fee of $75,000 for his
services in said case, out of which allowance the said Judge Ritter
directly profited. On the same day, December 24, 1930, the receiver in
said case paid the said Rankin, as part of his said additional fee, the
sum of $25,000, and the said Rankin on the same day privately paid and
delivered to the said Judge Ritter the sum of $2,500 in cash; $2,000 of
said $2,500 was deposited in bank by Judge Ritter on, to wit, December
29, 1930, the remaining $500 being kept by Judge Ritter and not
deposited in bank until, to wit, July 10, 1931. Between the time of such
initial payment on said additional fee and April 6, 1931, the said
receiver paid said Rankin thereon $5,000. On or about April 6, 1931, the
said Rankin received the balance of the said additional fee allowed him
by Judge Ritter, said balance amounting to $45,000. Shortly thereafter,
on or about April 14, 1931, the said Rankin paid and delivered to the
said Judge Ritter, privately, in cash, an additional sum of $2,000. The
said Judge Halsted L. Ritter corruptly and unlawfully accepted and
received for his own use and benefit from the said A. L. Rankin the
aforesaid sums of money, amounting to $4,500. Wherefore, the said Judge
Halsted L. Ritter was and is guilty of misbehavior and was and is guilty
of a high crime and misdemeanor.
Article II
That the said Halsted L. Ritter, while holding the office of United
States district judge for the southern district of Florida, having been
nominated by the President of the United States, confirmed by the Senate
of the United States, duly qualified and commissioned, and while acting
as a United States district judge for the southern district of Florida,
was and is guilty of misbehavior and of high crimes and misdemeanors in
office in manner and form as follows, to wit: On the 15th day of
February 1929 the said Halsted L. Ritter, having been
[[Page 1963]]
appointed as United States district judge for the southern district
of Florida, was duly qualified and commissioned to serve as such during
good behavior in office. Immediately prior thereto and for several years
the said Halsted L. Ritter had practiced law in said district in
partnership with one A. L. Rankin, which partnership was dissolved upon
the appointment of said Ritter as said United States district judge. On
the 18th day of July 1928 one Walter S. Richardson was elected trustee
in bankruptcy of the Whitehall Building and Operating Company, which
company had been adjudicated in said district as a bankrupt, and as such
trustee took charge of the assets of said Whitehall Building and
Operating Company, which consisted of a hotel property located in Palm
Beach in said district. That the said Richardson as such trustee
operated said hotel property from the time of his said appointment until
its sales on the 3d of January 1929, under the foreclosure of a third
mortgage thereon. On the 1st of November and the 13th of December 1929,
the said Judge Ritter made orders in said bankruptcy proceedings
allowing the said Walter S. Richardson as trustee the sum of $16,500 as
compensation for his services as trustee. That before the discharge of
said Walter S. Richardson as such trustee, said Richardson, together
with said A. L. Rankin, one Ernest Metcalf, one Martin Sweeney, and the
said Halsted L. Ritter, entered into an arrangement to secure permission
of the holder or holders of at least $50,000 of first mortgage bonds on
said hotel property for the purpose of filing a bill to foreclose the
first mortgage on said premises in the court of said Halsted L. Ritter,
by which means the said Richardson, Rankin, Metcalf, Sweeney, and Ritter
were to continue said property in litigation before said Ritter. On the
30th day of August 1929, the said Walter S. Richardson, in furtherance
of said arrangement and understanding, wrote a letter to the said Martin
Sweeney, in New York, suggesting the desirability of contacting as many
first-mortgage bondholders as possible in order that their cooperation
might be secured, directing special attention to Mr. Bert E. Holland, an
attorney, whose address was in the Tremont Building in Boston, and who,
as cotrustee, was the holder of $50,000 of first-mortgage bonds, the
amount of bonds required to institute the contemplated proceedings in
Judge Ritter's court. On October 3, 1929, the said Bert E. Holland,
being solicited by the said Sweeney, requested the said Rankin and
Metcalf to prepare a complaint to file in said Judge Ritter's court for
foreclosure of said first mortgage and the appointment of a receiver. At
this time Judge Ritter was holding court in Brooklyn, New York, and the
said Rankin and Richardson went from West Palm Beach, Florida, to
Brooklyn, New York, and called upon said Judge Ritter a short time
previous to filing the bill for foreclosure and appointment of a
receiver of said hotel property. On October 10, 1929, and before the
filing of said bill for foreclosure and receiver, the said Holland
withdrew his authority to said Rankin and Metcalf to file said bill and
notified the said Rankin not to file the said bill. Notwithstanding the
said instructions to
[[Page 1964]]
said Rankin not to file said bill, said Rankin, on the 11th day of
October 1929, filed said bill with the clerk of the United States
District Court for the Southern District of Florida but with the
specific request to said clerk to lock up the said bill as soon as it
was filed and hold until Judge Ritter's return so that there would be no
newspaper publicity before the matter was heard by Judge Ritter for the
appointment of a receiver, which request on the part of the said Rankin
was complied with by the said clerk. On October 16, 1929, the said
Holland telegraphed to the said Rankin, referring to his previous wire
requesting him to refrain from filing the bill and insisting that the
matter remain in its then status until further instruction was given;
and on October 17, 1929, the said Rankin wired to Holland that he would
not make an application on his behalf for the appointment of a receiver.
On October 28, 1929, a hearing on the complaint and petition for
receivership was heard before Judge Halsted L. Ritter at Miami, at which
hearing the said Bert E. Holland appeared in person before said Judge
Ritter and advised the judge that he wished to withdraw the suit and
asked for dismissal of the bill of complaint on the ground that the bill
was filed without his authority. But the said Judge Ritter, fully
advised of the facts and circumstances herein before recited, wrongfully
and oppressively exercised the powers of his office to carry into
execution said plan and agreement theretofore arrived at, and refused to
grant the request of the said Holland and made effective the champertous
undertaking of the said Richardson and Rankin and appointed the said
Richardson receiver of the said hotel property, notwithstanding that
objection was made to Judge Ritter that said Richardson had been active
in fomenting this litigation and was not a proper person to act as
receiver. On October 15, 1929, said Rankin made oath to each of the
bills for intervenors which were filed the next day. On October 16,
1929, bills for intervention in said foreclosure suit were filed by said
Rankin and Metcalf in the names of holders of approximately $5,000 of
said first-mortgage bonds, which intervenors did not possess the said
requisite $50,000 in bonds required by said first mortgage to bring
foreclosure proceedings on the part of the bondholders. The said Rankin
and Metcalf appeared as attorneys for complainants and intervenors, and
in response to a suggestion of the said Judge Ritter, the said Metcalf
withdrew as attorney for complainants and intervenors and said Judge
Ritter thereupon appointed said Metcalf as attorney for the said
Richardson, the receiver. And in the further carrying out of said
arrangement and understanding, the said Richardson employed the said
Martin Sweeney and one Bemis, together with Ed Sweeney, as managers of
said property, for which they were paid the sum of $60,000 for the
management of said hotel for the two seasons the property remained in
the custody of said Richardson as receiver. On or about the 15th day of
May 1930 the said Judge Ritter allowed the said Rankin an advance on his
fee of $2,500 for his services in said case. On or about July 2, 1930,
the said Judge Ritter requested Judge Alex
[[Page 1965]]
ander Akerman, also a judge of the United States District Court for
the Southern District of Florida, to fix the total allowance for the
said Rankin for his services in said case, said request and the reasons
therefor being set forth in a letter by the said Judge Ritter, in words
and figures as follows, to wit:
July 2, 1930. Hon. Alexander Akerman, United States District Judge,
Tampa, Fla.
My Dear Judge: In the case of Holland et al. v. Whitehall Building &
Operating Co. (No. 678-M-Eq.), pending in my division, my former law
partner, Judge A. L. Rankin, of West Palm Beach, has filed a petition
for an order allowing compensation for his services on behalf of the
plaintiff. I do not feel that I should pass, under the circumstances,
upon the total allowance to be made Judge Rankin in this matter. I did
issue an order, which Judge Rankin will exhibit to you, approving an
advance of $2,500 on his claim, which was approved by all attorneys. You
will appreciate my position in the matter, and I request you to pass
upon the total allowance which should be made Judge Rankin in the
premises as an accommodation to me. This will relieve me from any
embarrassment hereafter if the question should arise as to my favoring
Judge Rankin in this matter by an exorbitant allowance. Appreciating
very much your kindness in this matter, I am, Yours sincerely, Halsted
L. Ritter.
In compliance with said request the said Judge Akerman allowed the
said Rankin $12,500 in addition to the $2,500 theretofore allowed by
Judge Ritter, making a total of $15,000 as the fee of the said Rankin in
the said case.
But notwithstanding the said request on the part of said Ritter and
the compliance by the said Judge Akerman and the reasons for the making
of said request by said Judge Ritter of Judge Akerman, the said Judge
Ritter, on the 24th day of December 1930, allowed the said Rankin an
additional fee of $75,000. And on the same date when the receiver in
said case paid to the said Rankin as a part of said additional fee the
sum of $25,000, said Rankin privately paid and delivered to said Judge
Ritter out of the said $25,000 the sum of $2,500 in cash, $2,000 of
which the said Judge Ritter deposited in a bank and $500 of which was
put in a tin box and not deposited until the 10th day of July 1931, when
it was deposited in a bank with an additional sum of $600. On or about
the 6th day of April 1931, the said Rankin received as a part of the
$75,000 additional fee the sum of $45,000, and shortly thereafter, on or
before the 14th day of April 1931, the said Rankin paid and delivered to
said judge Ritter, privately and in cash, out of said $45,000 the sum of
$2,000. The said Judge Halsted L. Ritter corruptly and unlawfully
accepted and received for his own use and benefit from the said Rankin
the aforesaid sums of $2,500 in cash and $2,000 in cash, amounting in
all to $4,500. Of the total allowance made to said A.L. Rankin in said
foreclosure suit, amounting in all to $90,000, the fol
[[Page 1966]]
lowing sums were paid out by said Rankin with the knowledge and
consent of said Judge Ritter, to wit: to said Walter S. Richardson, the
sum of $5,000; to said Metcalf, the sum of $10,000; to Shutts and Bowen,
also attorneys for the receiver, the sum of $25,000; and to said Halsted
L. Ritter, the sum of $4,500. In addition to the said sum of $5,000
received by the said Richardson as aforesaid, said Ritter by order in
said proceedings allowed said Richardson a fee of $30,000 for services
as such receiver. The said fees allowed by said Judge Ritter to A.L.
Rankin (who had been a law partner of said judge immediately before said
judge's appointment as judge) as solicitor for the plaintiff in said
case were excessive and unwarranted, and said judge profited personally
thereby in that out of the money so allowed said solicitor he received
personally, privately, and in cash $4,500 for his own use and benefit.
While the Whitehall Hotel was being operated in receivership under said
proceeding pending in said court (and in which proceeding the receiver
in charge of said hotel by appointment of said Judge was allowed large
compensation by said judge) the said judge stayed at said hotel from
time to time without cost to himself and received free rooms, free
meals, and free valet service, and, with the knowledge and consent of
said judge, members of his family, including his wife, his son, Thurston
Ritter, his daughter, Mrs. M.R. Walker, his secretary, Mrs. Lloyd C.
Hooks, and her husband, Lloyd C. Hooks, each likewise on various
occasions stayed at said hotel without cost to themselves or to said
judge, and received free rooms, and some or all of them received from
said hotel free meals and free valet service; all of which expenses were
borne by the said receivership to the loss and damage of the creditors
whose interests were involved therein. The said judge willfully failed
and neglected to perform his duty to conserve the assets of the
Whitehall Building and Operating Company in receivership in his court,
but to the contrary, permitted waste and dissipation of its assets, to
the loss and damage of the creditors of said corporation, and was a
party to the waste and dissipation of such assets while under the
control of his said court, and personally profited thereby, in the
manner and form hereinabove specifically set out. Wherefore, the said
Judge Halsted L. Ritter was and is guilty of misbehavior, and was and is
guilty of a high crime and misdemeanor in office.
Articles III and IV in House Resolution 422 are omitted because House
Resolution 471, adopted by the House on Mar. 30, 1936, amended Article
III, added new Articles IV through VI after Article III, and amended
former Article IV to read as new Article VII. Articles III through VII
in their amended form follow:
Article III
That the said Halsted L. Ritter, having been nominated by the
President of the United States, confirmed by the Senate of the United
States, duly qualified and commissioned, and, while
[[Page 1967]]
acting as a United States District judge for the southern district of
Florida, was and is guilty of a high crime and misdemeanor in office in
manner and form as follows, to wit: That the said Halsted L. Ritter,
while such judge, was guilty of a violation of section 258 of the
Judicial Code of the United States of America (U.S.C., Annotated, title
28, sec. 373) making it unlawful for any judge appointed under the
authority of the United States to exercise the profession or employment
of counsel or attorney, or to be engaged in the practice of the law, in
that after the employment of the law firm of Ritter and Rankin (which at
the time of the appointment of Halsted L. Ritter to be judge of the
United States District Court for the Southern District of Florida, was
composed of Halsted L. Ritter and A.L. Rankin) in the case of Trust
Company of Georgia and Robert G. Stephens, trustee, against Brazilian
Court Building Corporation, and others, numbered 5704, in the Circuit
Court of the Fifteenth Judicial Circuit of Florida, and after the fee of
$4,000 which had been agreed upon at the outset of said employment had
been fully paid to the firm of Ritter and Rankin, and after Halsted L.
Ritter had, on, to wit, February 15, 1929, become judge of the United
States District Court for the Southern District of Florida, Judge Ritter
on, to wit, March 11, 1929, wrote a letter to Charles A. Brodek, of
counsel for Mulford Realty Corporation (the client which his former law
firm had been representing in said litigation), stating that there had
been much extra and unanticipated work in the case, that he was then a
Federal Judge; that his partner, A.L. Rankin, would carry through
further proceedings in the case, but that he, Judge Ritter, would be
consulted about the matter until the case was all closed up; and that
``this matter is one among very few which I am assuming to continue my
interest in until finally closed up''; and stating specifically in said
letter: ``I do not know whether any appeal will be taken in the case or
not but, if so, we hope to get Mr. Howard Paschal or some other person
as receiver who will be amenable to our directions, and the hotel can be
operated at a profit, of course, pending the appeal. We shall demand a
very heavy supersedeas bond, which I doubt whether D'Esterre can give'';
and further that he was ``of course primarily interested in getting some
money in the case'', and that he thought ``$2,000 more by way of
attorneys' fees should be allowed'', and asked that he be communicated
with direct about the matter, giving his post-office-box number. On to
wit, March 13, 1929, said Brodek replied favorably, and on March 30,
1929, a check of Brodek, Raphael, and Eisner, a law firm of New York
City, representing Mulford Realty Corporation, in which Charles A.
Brodek, senior member of the firm of Brodek, Raphael and Eisner, was one
of the directors, was drawn, payable to the order of ``Honorable Halsted
L. Ritter'' for $2,000 and which was duly endorsed ``Honorable Halsted
L. Ritter. H. L. Ritter'' and was paid on, to wit, April 4, 1929, and
the proceeds thereof were received and appropriated by Judge Ritter to
his own individual use and benefit, without advising his said former
partner that said $2,000 had been received, without consulting with
[[Page 1968]]
his former partner thereabout, and without the knowledge or consent
of his said former partner, appropriated the entire amount thus
solicited and received to the use and benefit of himself, the said Judge
Ritter. At the time said letter was written by Judge Ritter and said
$2,000 received by him, Mulford Realty Corporation held and owned large
interests in Florida real estate and citrus groves, and a large amount
of securities of the Olympia Improvement Corporation, which was a
company organized to develop and promote Olympia, Florida, said holdings
being within the territorial jurisdiction of the United States District
Court, of which Judge Ritter was a judge from, to wit, February 15,
1929. After writing said letter of March 11, 1929, Judge Ritter further
exercised the profession or employment of counsel or attorney, or
engaged in the practice of the law, with relation to said case. Which
acts of said judge were calculated to bring his office into disrepute,
constitute a violation of section 258 of the Judicial Code of the United
States of America (U.S.C., Annotated, title 28, sec. 373), and
constitute a high crime and misdemeanor within the meaning and intent of
section 4 of article II of the Constitution of the United States.
Wherefore, the said Judge Halsted L. Ritter was and is guilty of a high
misdemeanor in office.
Article IV
That the said Halsted L. Ritter, having been nominated by the
President of the United States, confirmed by the Senate of the United
States, duly qualified and commissioned, and, while acting as a United
States district judge for the southern district of Florida, was and is
guilty of a high crime and misdemeanor in office in manner and form as
follows to wit: That the said Halsted L. Ritter, while such judge, was
guilty of a violation of section 258 of the Judicial Code of the United
States of America (U.S.C., Annotated, title 28, sec. 373), making it
unlawful for any judge appointed under the authority of the United
States to exercise the profession or employment of counsel or attorney,
or to be engaged in the practice of the law, in that Judge Ritter did
exercise the profession or employment of counsel or attorney, or engage
in the practice of the law, representing J.R. Francis, with relation to
the Boca Raton matter and the segregation and saving of the interest of
J.R. Francis herein, or in obtaining a deed or deeds to J.R. Francis
from the Spanish River Land Company to certain pieces of realty, and in
the Edgewater Ocean Beach Development Company matter for which services
the said Judge Ritter received from the said J.R. Francis the sum of
$7,500. Which acts of said judge were calculated to bring his office
into disrepute constitute a violation of the law above recited, and
constitute a high crime and misdemeanor within the meaning and intent of
section 4 of article II of the Constitution of the United States.
Wherefore, the said Judge Halsted L. Ritter was and is guilty of a high
misdemeanor in office.
Article V
That the said Halsted L. Ritter, having been nominated by the
President of
[[Page 1969]]
the United States, confirmed by the Senate of the United States, duly
qualified and commissioned, and, while acting as a United States
district judge for the southern district of Florida, was and is guilty
of a high crime and misdemeanor in office in manner and form as follows,
to wit: That the said Halsted L. Ritter, while such judge, was guilty of
violation of section 146(h) of the Revenue Act of 1928, making it
unlawful for any person willfully to attempt in any manner to evade or
defend the payment of the income tax levied in and by said Revenue Act
of 1928, in that during the year 1929 said Judge Ritter received gross
taxable income--over and above his salary as judge-- to the amount of
some $12,000, yet paid no income tax thereon. Among the fees included in
said gross taxable income for 1929 were the extra fee of $2,000
collected and received by Judge Ritter in the Brazilian Court case as
described in article III, and the fee of $7,500 received by Judge Ritter
from J.R. Francis. Wherefore the said Judge Halsted L. Ritter was and is
guilty of a high misdemeanor in office.
Article VI
That the said Halsted L. Ritter, having been nominated by the
President of the United States, confirmed by the Senate of the United
States, duly qualified and commissioned, and, while acting as a United
States district judge for the southern district of Florida, was and is
guilty of a high crime and misdemeanor in office in manner and form as
follows, to wit: That the said Halsted L. Ritter, while such judge, was
guilty of violation of section 146(b) of the Revenue Act of 1928, making
it unlawful for any person willfully to attempt in any manner to evade
or defeat the payment of the income tax levied in and by said Revenue
Act of 1928, in that during the year 1930 the said Judge Ritter received
gross taxable income--over and above his salary as judge--to the amount
of to wit, $5,300, yet failed to report any part thereof in his
income-tax return for the year 1930 and paid no income tax thereon. Two
thousand five hundred dollars of said gross taxable income for 1930 was
that amount of cash paid Judge Ritter by A. L. Rankin on December 24,
1930, as described in article I. Wherefore the said Judge Halsted L.
Ritter was and is guilty of a high misdemeanor in office.
Article VII
That the said Halsted L. Ritter, while holding the office of United
States district judge for the southern district of Florida, having been
nominated by the President of the United States, confirmed by the Senate
of the United States, duly qualified and commissioned, and, while acting
as a United States district judge for the southern district of Florida,
was and is guilty of misbehavior and of high crimes and misdemeanors in
office in manner and form as follows, to wit: The reasonable and
probable consequence of the actions or conduct of Halsted L. Ritter,
hereunder specified or indicated in this article, since he became judge
of said court, as an individual or as such judge, is to bring his court
into scandal and disrepute, to the prejudice of said court and public
con
[[Page 1970]]
fidence in the administration of justice therein, and to the
prejudice of public respect for and confidence in the Federal judiciary,
and to render him unfit to continue to serve as such judge: 1. In that
in the Florida Power Company case (Florida Power and Light Company
against City of Miami and others, numbered 1138-M- Eq.) which was a case
wherein said judge had granted the complainant power company a temporary
injunction restraining the enforcement of an ordinance of the city of
Miami, which ordinance prescribed a reduction in the rates for electric
current being charged in said city, said judge improperly appointed one
Cary T. Hutchinson, who had long been associated with and employed by
power and utility interests, special master in chancery in said suit,
and refused to revoke his order so appointing said Hutchinson.
Thereafter, when criticism of such action had become current in the city
of Miami, and within two weeks after a resolution (H. Res. 163,
Seventy-third Congress) had been agreed to in the House of
Representatives of the Congress of the United States, authorizing and
directing the Judicial Committee thereof to investigate the official
conduct of said judge and to make a report concerning said conduct to
said House of Representatives an arrangement was entered into with the
city commissioners of the city of Miami or with the city attorney of
said city by which the said city commissioners were to pass a resolution
expressing faith and confidence in the integrity of said judge, and the
said judge recuse himself as judge in said Dower suit. The said
agreement was carried out by the parties thereto, and said judge, after
the passage of such resolution, recused himself from sitting as judge in
said power suit, thereby bartering his judicial authority in said case
for a vote of confidence. Nevertheless, the succeeding judge allowed
said Hutchinson as special master in chancery in said case a fee of
$5,000, although he performed little, if any, service as such, and in
the order making such allowance recited: ``And it appearing to the court
that a minimum fee of $5,000 was approved by the court for the said Cary
T. Hutchinson, special master in this cause.'' 2. In that in the Trust
Company of Florida cases (Illick against Trust Company of Florida and
others numbered 1043-M-Eq., and Edmunds Committee and others against
Marion Mortgage Company and others, numbered 1124-M-Eq.) after the State
banking department of Florida, through its comptroller, Honorable Ernest
Amos, had closed the doors of the Trust Company of Florida and appointed
J.H. Therrell liquidator for said trust company, and had intervened in
the said Illick case, said Judge Ritter wrongfully and erroneously
refused to recognize the right of said State authority to administer the
affairs of the said trust company and appointed Julian E. Eaton and
Clark D. Stearns as receivers of the property of said trust company. On
appeal, the United States Circuit Court of Appeals for the Fifth Circuit
reversed the said order or decree of Judge Ritter and ordered the said
property surrendered to the State liquidator. Thereafter, on, to wit,
September 12, 1932, there was filed in the United States District Court
for the Southern District of Florida the Edmunds Committee case, supra.
Mar
[[Page 1971]]
ion Mortgage Company was a subsidiary of the Trust Company of
Florida. Judge Ritter being absent from his district at the time of the
filing of said case, an application for the appointment of receivers
therein was presented to another judge of said district, namely,
Honorable Alexander Akerman. Judge Ritter, however, prior to the
appointment of such receivers, telegraphed Judge Akerman, requesting him
to appoint the aforesaid Eaton and Stearns as receivers in said case,
which appointments were made by Judge Akerman. Thereafter the United
States Circuit Court of Appeals for the Fifth Circuit reversed the order
of Judge Akerman, appointing said Eaton and Stearns as receivers in said
case. In November 1932, J.H. Therrell, as liquidator, filed a bill of
complaint in the Circuit Court of Dade County, Florida--a court of the
State of Florida--alleging that the various trust properties of the
Trust Company of Florida were burdensome to the liquidator to keep, and
asking that the court appoint a succeeding trustee. Upon petition for
removal of said cause from said State court into the United States
District Court for the Southern District of Florida, Judge Ritter took
jurisdiction, notwithstanding the previous rulings of the United States
Circuit Court of Appeals above referred to, and again appointed the said
Eaton and Stearns as the receivers of the said trust properties. In
December 1932 the said Therrell surrendered all of the trust properties
to said Eaton and Stearns as receivers, together with all records of the
Trust Company of Florida pertaining thereto. During the time said Eaton
and Stearns, as such receivers, were in control of said trust
properties, Judge Ritter wrongfully and improperly approved their
accounts without notice or opportunity for objection thereto to be
heard. With the knowledge of Judge Ritter, said receivers appointed the
sister-in-law of Judge Ritter, namely, Mrs. G.M. Wickard, who had had no
previous hotel-management experience, to be manager of the Julia Tuttle
Hotel and Apartment Building, one of said trust properties. On, to wit,
January 1, 1933, Honorable J.M. Lee succeeded Honorable Ernest Amos as
comptroller of the State of Florida and appointed M.A. Smith liquidator
in said Trust Company of Florida cases to succeed J.H. Therrell. An
appeal was again taken to the United States Circuit Court of Appeals for
the Fifth Circuit from the then latest order or decree of Judge Ritter,
and again the order or decree of Judge Ritter appealed from was reversed
by the said circuit court of appeals which held that the State officer
was entitled to the custody of the property involved and that said Eaton
and Stearns as receivers were not entitled to such custody. Thereafter,
and with the knowledge of the decision of the said circuit court of
appeals, Judge Ritter wrongfully and improperly allowed said Eaton and
Stearns and their attorneys some $26,000 as fees out of said
trust-estate properties and endeavored to require, as a condition
precedent to releasing said trust properties from the control of his
court, a promise from counsel for the said State liquidator not to
appeal from his order allowing the said fees to said Eaton and Stearns
and their attorneys. 3. In that the said Halsted L. Ritter, while such
Federal judge, accepted, in addition to $4,500 from his former law
[[Page 1972]]
partner as alleged in article I hereof other large fees or
gratuities, to wit, $7,500 from J.R. Francis, on or about April 19,
1929, J.R. Francis at this time having large property interests within
the territorial jurisdiction of the court of which Judge Ritter was a
judge; and on, to wit, the 4th day of April 1929 the said Judge Ritter
accepted the sum of $2,000 from Brodek, Raphael and Eisner, representing
Mulford Realty Corporation, as its attorneys, through Charles A. Brodek,
senior member of said firm and a director of said corporation, as a fee
or gratuity, at which time the said Mulford Realty Corporation held and
owned large interests in Florida real estate and citrus groves, and a
large amount of securities of the Olympia Improvement Corporation, which
was a company organized to develop and promote Olympia, Florida, said
holding being within the territorial jurisdiction of the United States
District Court of which Judge Ritter was a judge from, to wit, February
15, 1929. 4. By his conduct as detailed in articles I, II, III, and IV
hereof, and by his income-tax evasions as set forth in articles V and VI
hereof. Wherefore, the said Judge Halsted L. Ritter was and is guilty of
misbehavior, and was and is guilty of high crimes and misdemeanors in
office.
Cumulative and Duplicatory Articles of Impeachment
Sec. 3.3 Majority views and minority views were included in the
report of the Committee on the Judiciary recommending the impeachment of
President Richard M. Nixon, such views relating to Article II,
containing an accumulation of acts constituting a course of conduct.
On Aug. 20, 1974, the Committee on the Judiciary recommended in its
final report to the House, pursuant to its inquiry into charges of
impeachable offenses against President Nixon, three articles of
impeachment. Article II charged that the President had ``repeatedly
engaged in conduct'' violative of his Presidential oath and of his
constitutional duty to take care that the laws be faithfully executed.
The article set forth, in five separate paragraphs, five patterns of
conduct constituting the offenses charged. The conclusion of the
committee's report on Article II read in part as follows:
In recommending Article II to the House, the Committee finds clear
and convincing evidence that Richard M. Nixon, contrary to his trust as
President and unmindful of the solemn duties of his high office, has
repeatedly used his power as President to violate the Constitution and
the law of the land. In so doing, he has failed in the obligation that
every citizen has to live under the law. But he has done more, for it is
the duty of the President not merely to live by the law but to see that
law faithfully applied. Richard M. Nixon has repeatedly and willfully
[[Page 1973]]
failed to perform that duty. He has failed to perform it by
authorizing and directing actions that violated or disregarded the
rights of citizens and that corrupted and attempted to corrupt the
lawful functioning of executive agencies. He has failed to perform it by
condoning and ratifying, rather than acting to stop, actions by his
subordinates that interfered with lawful investigations and impeded the
enforcement of the laws. . . . The conduct of Richard M. Nixon has
constituted a repeated and continuing abuse of the powers of the
Presidency in disregard of the fundamental principle of the rule of law
in our system of government. This abuse of the powers of the President
was carried out by Richard M. Nixon, acting personally and through his
subordinates, for his own political advantage, not for any legitimate
governmental purpose and without due consideration for the national
good. . . . The Committee has concluded that, to perform its
constitutional duty, it must approve this Article of Impeachment and
recommend it to the House. If we had been unwilling to carry out the
principle that all those who govern, including ourselves, are
accountable to the law and the Constitution, we would have failed in our
responsibility as representatives of the people elected under the
Constitution. If we had not been prepared to apply the principle of
Presidential accountability embodied in the impeachment clause of the
Constitution, but had instead condoned the conduct of Richard M. Nixon,
then another President, perhaps with a different political philosophy,
might have used this illegitimate power for further encroachments on the
rights of citizens and further usurpations of the power of other
branches of our government. By adopting this Article, the Committee
seeks to prevent the recurrence of any such abuse of Presidential power.
The Committee finds that, in the performance of his duties as President,
Richard M. Nixon on many occasions has acted to the detriment of
justice, right, and the public good, in violation of his constitutional
duty to see to the faithful execution of the laws. This conduct has
demonstrated a contempt for the rule of law; it has posed a threat to
our democratic republic. The Committee finds that this conduct
constitutes ``high crimes and misdemeanors'' within the meaning of the
Constitution, that it warrants his impeachment by the House, and that it
requires that he be put to trial in the Senate.<SUP>(11)</SUP>
---------------------------------------------------------------------------
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.<SUP>(12)</SUP>
---------------------------------------------------------------------------
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,<SUP>(13)</SUP> 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.<SUP>(14)</SUP>
---------------------------------------------------------------------------
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.<SUP>(15)</SUP>
---------------------------------------------------------------------------
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.<SUP>(1~6)</SUP>
---------------------------------------------------------------------------
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:<SUP>(17)</SUP>
---------------------------------------------------------------------------
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.<SUP>(18)</SUP>
---------------------------------------------------------------------------
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: <SUP>(19)</SUP>
---------------------------------------------------------------------------
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.<SUP>(20)</SUP>
---------------------------------------------------------------------------
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:
<SUP>(1)</SUP>
---------------------------------------------------------------------------
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: <SUP>(2)</SUP>
---------------------------------------------------------------------------
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:
<SUP>(3)</SUP>
---------------------------------------------------------------------------
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: <SUP>(4)</SUP>
---------------------------------------------------------------------------
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: <SUP>(5)</SUP>
---------------------------------------------------------------------------
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.<SUP>(8)</SUP>
---------------------------------------------------------------------------
6. See Sec. 14.16 infra.
---------------------------------------------------------------------------
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,<SUP>(7)</SUP> 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).
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