IMPEACHMENT POWERS Ch. 14 § 3 privilege and offered a resolution for impeachment and conviction (H. Res. 158) impeaching numer- as ‘‘treason, bribery, or other high ous members and former members crimes and misdemeanors.’’ A fur- of the Federal Reserve Board. ther provision of the Constitution During the reading of the resolu- which has been construed to bear tion, a point of order against it upon the impeachment of federal was raised by Mr. Carl E. Mapes, judges is article III, section 1, of Michigan: which provides that judges of the I wish to submit the question to the supreme and inferior courts ‘‘shall Speaker as to whether or not a person hold their offices during good be- who is not now in office is subject to impeachment? This resolution of the haviour.’’ gentleman from Pennsylvania refers to When the House determines several people who are no longer hold- that grounds for impeachment ing any public office. They are not now exist, and they are adopted by the at least civil officers. The Constitution provides that the ‘‘President, Vice House, they are presented to the President, and all civil officers shall be Senate in ‘‘articles’’ of impeach- removed from office on impeachment’’, ment.(20) Any one of the articles and so forth. I have had no opportunity may provide a sufficient basis or to examine the precedents since this ground for impeachment. The im- matter came up, but it occurs to me that the resolution takes in too much peachment in 1936 of Halsted L. territory to make it privileged. Ritter, a U.S. District Court Speaker Henry T. Rainey, of Il- Judge, was based on seven arti- linois, ruled as follows: cles of impeachment as amended by the House. The first six articles That is a constitutional question which the Chair cannot pass upon, but charged him with several in- should be passed upon by the House. stances of judicial misconduct, in- cluding champerty, corrupt prac- The resolution was referred on motion to the Committee on the tices, violations of the Judicial Judiciary.(19) Code, and violations of criminal law. Article VII charged actions and conduct, including a restate- § 3. Grounds for Impeach- ment of some of the charges con- ment; Form of Articles 20. Jefferson’s Manual states that: [B]y the usage of Parliament, in impeach- Article II, section 4 of the U.S. ment for writing or speaking, the Constitution defines the grounds particular words need not be speci- fied in the accusation. House Rules 19. 77 CONG. REC. 4055, 73d Cong. 1st and Manual (Jefferson’s Manual) Sess. § 609 (1973).

1955 Ch. 14 § 3 DESCHLER’S PRECEDENTS tained in the preceding articles, The various grounds for im- ‘‘the reasonable and probable con- peachment and the form of im- sequence’’ of which was ‘‘to bring peachment articles have been doc- his court into scandal and disre- umented during recent investiga- pute,’’ to the prejudice of his tions. Following the inquiry into court, of public confidence in his charges against President Nixon, court, and of public respect for the Committee on the Judiciary and confidence in the federal judi- reported to the House a report ciary.(1) However, in the Senate, recommending impeachment, Judge Ritter was convicted only which report included the text of a on the seventh article. The re- resolution and articles impeaching spondent had moved, before com- the President.(4) As indicated by mencement of trial, to strike arti- the articles, and by the conclu- cle I, or in the alternative to re- sions of the report as to the spe- quire election as to articles I and cific articles, the Committee on II, on the ground that the articles the Judiciary determined that the duplicated the same offenses, but grounds for Presidential impeach- the presiding officer overruled the ment need not be indictable or motion and his decision was not criminal; articles II and III im- challenged in the Senate. The re- peached the President for a course spondent also moved to strike ar- of conduct constituting an abuse ticle VII, the ‘‘general’’ article, on of power and for failure to comply the ground that it improperly cu- with subpenas issued by the com- mulated and duplicated offenses mittee during the impeachment already stated in the preceding inquiry.(5) The committee also con- articles, but this motion was re- cluded that an article of impeach- jected by the Senate.(2) ment could cumulate charges and At the conclusion of the Ritter facts constituting a course of con- trial, and following conviction only duct, as in article II.(6) on article VII, a point of order was raised against the vote in that the 4. See § 3.1, infra. 5. See § 3.7, infra, for the majority article combined the grounds that views and § 3.8, infra, for the minor- were alleged for impeachment. ity views on the articles of impeach- The President pro tempore over- ment. ruled the point of order.(3) 6. See § 3.3, infra, for the majority and minority views on article II. 1. See § 3.2, infra. In its final report the Committee 2. See § 3.4, infra. on the Judiciary cited a staff report 3. See § 3.5, infra. by the impeachment inquiry staff on

1956 IMPEACHMENT POWERS Ch. 14 § 3

The grounds for impeachment of that a federal judge could be im- federal judges were scrutinized in peached for judicial conduct which 1970, in the inquiry into the con- is either criminal or a serious duct of Associate Justice Douglas abuse of public duty, or for non- of the Supreme Court. Concepts of judicial conduct which is crimi- impeachment were debated on the nal.(8) floor of the House, as to the ascer- Cross References tainability of the definition of an impeachable offense, and as to Amendments to articles adopted by the whether a federal judge could be House, see § 10, infra. impeached for conduct not related Charges not resulting in impeachment, see § 14, infra. to the performance of his judicial Grounds for conviction in the Ritter im- function or for judicial conduct not peachment trial, see § 18, infra. criminal in nature.(7) A special subcommittee of the Collateral Reference Committee on the Judiciary was Articles of Impeachment Voted by the created to investigate and report House of Representatives, see Im- on the charges of impeachment peachment, Selected Materials, Com- mittee on the Judiciary, H. Doc. No. against Justice Douglas, and sub- 93–7, 93d Cong. 1st Sess., Oct. 1973. mitted to the committee a final re- port recommending against im- peachment, finding the evidence insufficient. The report concluded Form of Resolution and Arti- cles of Impeachment the grounds for presidential im- peachment, prepared before the com- § 3.1 Articles of impeachment mittee had proceeded to compile all are reported from the Com- the evidence and before the com- mittee on the Judiciary in mittee had proceeded to consider a the form of a resolution. resolution and articles of impeach- ( ) ment. While the report and its con- On Aug. 20, 1974, 9 the Com- clusions were not intended to rep- mittee on the Judiciary submitted resent the views of the committee or to the House a report on its inves- of its individual members, the report is printed in part in the appendix to 8. See § 3.13, infra. this chapter as a synopsis of the his- 9. H. REPT. NO. 93–1305, Committee on tory, origins, and concepts of the im- the Judiciary, printed in the Record peachment process and of the at 120 CONG. REC. 29219, 29220, 93d grounds for impeachment. See § 3.6, Cong. 2d Sess., Aug. 20, 1974. For infra, and appendix, infra. complete text of H. REPT. NO. 93– 7. See § § 3.9–3.12, infra. 1305, see id. at pp. 29219–361.

1957 Ch. 14 § 3 DESCHLER’S PRECEDENTS tigation into charges of impeach- lawful entry of the headquarters of the able offenses against President Democratic National Committee in Richard Nixon. The committee in- Washington, District of Columbia, for the purpose of securing political intel- cluded in the text of the report a ligence. Subsequent thereto, Richard resolution and articles of impeach- M. Nixon, using the powers of his high ment which had been adopted by office, engaged personally and through the committee: his subordinates and agents, in a course of conduct or plan designed to Impeaching Richard M. Nixon, Presi- delay, impede, and obstruct the inves- dent of the United States, of high tigation of such unlawful entry; to crimes and misdemeanors. cover up, conceal and protect those re- Resolved, That Richard M. Nixon, sponsible; and to conceal the existence President of the United States, is im- and scope of other unlawful covert ac- peached for high crimes and mis- tivities. demeanors, and that the following arti- The means used to implement this cles of impeachment be exhibited to course of conduct or plan included one the Senate: or more of the following: Articles of impeachment exhibited by (1) making or causing to be made the House of Representatives of the false or misleading statements to United States of America in the name lawfully authorized investigative of- of itself and of all of the people of the ficers and employees of the United United States of America, against States; Richard M. Nixon, President of the (2) withholding relevant and mate- United States of America, in mainte- rial evidence or information from lawfully authorized investigative of- nance and support of its impeachment ficers and employees of the United against him for high crimes and mis- States; demeanors. (3) approving, condoning, acqui- escing in, and counseling witnesses ARTICLE I with respect to the giving of false or misleading statements to lawfully In his conduct of the office of Presi- authorized investigative officers and dent of the United States, Richard M. employees of the United States and Nixon, in violation of his constitutional false or misleading testimony in duly oath faithfully to execute the office of instituted judicial and congressional President of the United States and, to proceedings; the best of his ability, preserve, pro- (4) interfering or endeavoring to interfere with the conduct of inves- tect, and defend the Constitution of the tigations by the Department of Jus- United States, and in violation of his tice of the United States, the Federal constitutional duty to take care that Bureau of Investigation, the Office of the laws be faithfully executed, has Watergate Special Prosecution Force, prevented, obstructed, and impeded and Congressional Committees; the administration of justice, in that: (5) approving, condoning, and ac- quiescing in, the surreptitious pay- On June 17, 1972, and prior thereto, ment of substantial sums of money agents of the Committee for the Re- for the purpose of obtaining the si- election of the President committed un- lence or influencing the testimony of

1958 IMPEACHMENT POWERS Ch. 14 § 3

witnesses, potential witnesses or in- ard M. Nixon, in violation of his con- dividuals who participated in such stitutional oath faithfully to execute unlawful entry and other illegal ac- the office of President of the United tivities; States and, to the best of his ability, (6) endeavoring to misuse the Cen- tral Intelligence Agency, an agency preserve, protect, and defend the Con- of the United States; stitution of the United States, and in (7) disseminating information re- disregard of his constitutional duty to ceived from officers of the Depart- take care that the laws be faithfully ment of Justice of the United States executed, has repeatedly engaged in to subjects of investigations con- ducted by lawfully authorized inves- conduct violating the constitutional tigative officers and employees of the rights of citizens, impairing the due United States, for the purpose of aid- and proper administration of justice ing and assisting such subjects in and the conduct of lawful inquiries, or their attempts to avoid criminal li- contravening the laws governing agen- ability; cies of the executive branch and the (8) making false or misleading public statements for the purpose of purposes of these agencies. deceiving the people of the United This conduct has included one or States into believing that a thorough more of the following: and complete investigation had been conducted with respect to allegations (1) He has, acting personally and of misconduct on the part of per- through his subordinates and agents, sonnel of the executive branch of the endeavored to obtain from the Inter- United States and personnel of the nal Revenue Service, in violation of Committee for the Re-election of the the constitutional rights of citizens, President, and that there was no in- confidential information contained in volvement of such personnel in such income tax returns for purposes not misconduct; or authorized by law, and to cause, in (9) endeavoring to cause prospec- violation of the constitutional rights tive defendants, and individuals duly of citizens, income tax audits or tried and convicted, to expect favored other income tax investigations to be treatment and consideration in re- initiated or conducted in a discrimi- turn for their silence or false testi- natory manner. mony, or rewarding individuals for (2) He misused the Federal Bu- their silence or false testimony. reau of Investigation, the Secret Service, and other executive per- In all of this, Richard M. Nixon has sonnel, in violation or disregard of acted in a manner contrary to his trust the constitutional rights of citizens, as President and subversive of con- by directing or authorizing such stitutional government, to the great agencies or personnel to conduct or prejudice of the cause of law and jus- continue electronic surveillance or tice and to the manifest injury of the other investigations for purposes un- people of the United States. related to national security, the en- Wherefore Richard M. Nixon, by forcement of laws, or any other law- such conduct, warrants impeachment ful function of his office; he did di- and trial, and removal from office. rect, authorize, or permit the use of information obtained thereby for ARTICLE II purposes unrelated to national secu- rity, the enforcement of laws, or any Using the powers of the office of other lawful function of his office; President of the United States, Rich- and he did direct the concealment of

1959 Ch. 14 § 3 DESCHLER’S PRECEDENTS

certain records made by the Federal stitutional government, to the great Bureau of Investigation of electronic prejudice of the cause of law and jus- surveillance. tice and to the manifest injury of the (3) He has, acting personally and people of the United States. through his subordinates and agents, in violation or disregard of the con- Wherefore Richard M. Nixon, by stitutional rights of citizens, author- such conduct, warrants impeachment ized and permitted to be maintained and trial, and removal from office. a secret investigative unit within the office of the President, financed in ARTICLE III part with money derived from cam- paign contributions, which unlaw- In his conduct of the office of Presi- fully utilized the resources of the dent of the United States, Richard M. Central Intelligence Agency, engaged Nixon, contrary to his oath faithfully to in covert and unlawful activities, and execute the office of President of the attempted to prejudice the constitu- United States and, to the best of his tional right of an accused to a fair ability, preserve, protect, and defend trial. the Constitution of the United States, (4) He has failed to take care that and in violation of his constitutional the laws were faithfully executed by failing to act when he knew or had duty to take care that the laws be reason to know that his close subor- faithfully executed, has failed without dinates endeavored to impede and lawful cause or excuse to produce pa- frustrate lawful inquiries by duly pers and things as directed by duly au- constituted executive, judicial, and thorized subpoenas issued by the Com- legislative entities concerning the mittee on the Judiciary of the House of unlawful entry into the headquarters of the Democratic National Com- Representatives on April 11, 1974, mittee, and the cover-up thereof, and May 15, 1974, May 30, 1974, and June concerning other unlawful activities, 24, 1974, and willfully disobeyed such including those relating to the con- subpoenas. The subpoenaed papers firmation of Richard Kleindienst as and things were deemed necessary by Attorney General of the United the Committee in order to resolve by States, the electronic surveillance of direct evidence fundamental, factual private citizens, the break-in into the offices of Dr. Lewis Fielding, and the questions relating to Presidential di- campaign financing practices of the rection, knowledge, or approval of ac- Committee to Reelect the President. tions demonstrated by other evidence (5) In disregard of the rule of law, to be substantial grounds for impeach- he knowingly misused the executive ment of the President. In refusing to power by interfering with agencies of produce these papers and things, Rich- the executive branch, including the ard M. Nixon, substituting his judg- Federal Bureau of Investigation, the Criminal Division, and the Office of ment as to what materials were nec- Watergate Special Prosecution Force, essary for the inquiry, interposed the of the Department of Justice, and powers of the Presidency against the the Central Intelligence Agency, in lawful subpoenas of the House of Rep- violation of his duty to take care that resentatives, thereby assuming to him- the laws be faithfully executed. self functions and judgments necessary In all of this, Richard M. Nixon has to the exercise of the sole power of im- acted in a manner contrary to his trust peachment vested by the Constitution as President and subversive of con- in the House of Representatives.

1960 IMPEACHMENT POWERS Ch. 14 § 3

In all of this, Richard M. Nixon has ate in the following words and figures, acted in a manner contrary to his trust to wit: as President and subversive of con- Articles of impeachment of the stitutional government, to the great House of Representatives of the United prejudice of the cause of law and jus- States of America in the name of them- tice, and to the manifest injury of the selves and of all of the people of the people of the United States. United States of America against Hal- Wherefore Richard M. Nixon, by sted L. Ritter, who was appointed, duly such conduct, warrants impeachment qualified, and commissioned to serve, and trial, and removal from office. during good behavior in office, as United States district judge for the § 3.2 Articles impeaching southern district of Florida, on Feb- Judge Halsted L. Ritter were ruary 15, 1929. reported to the House in two ARTICLE I separate resolutions. That the said Halsted L. Ritter, hav- In March 1936, articles of im- ing been nominated by the President of peachment against Judge Ritter the United States, confirmed by the were reported to the House: 10 Senate of the United States, duly qualified and commissioned, and while [H. RES. 422] acting as a United States district judge for the southern district of Florida, was Resolved, That Halsted L. Ritter, and is guilty of misbehavior and of a who is a United States district judge high crime and misdemeanor in office for the southern district of Florida, be in manner and form as follows, to wit: impeached for misbehavior, and for On or about October 11, 1929, A. L. high crimes and misdemeanors; and Rankin (who had been a law partner of that the evidence heretofore taken by said judge immediately before said the subcommittee of the Committee on judge’s appointment as judge), as solic- the Judiciary of the House of Rep- itor for the plaintiff, filed in the court resentatives under H. Res. 163 of the of the said Judge Ritter a certain fore- Seventy-third Congress sustains arti- closure suit and receivership pro- cles of impeachment, which are herein- ceeding, the same being styled ‘‘Bert E. after set out; and that the said articles Holland and others against Whitehall be, and they are hereby, adopted by Building and Operating Company and the House of Representatives, and that others’’ (Number 678–M–Eq.). On or the same shall be exhibited to the Sen- about May 15, 1930, the said Judge Ritter allowed the said Rankin an ad- 10. H. Res. 422, 80 CONG. REC. 3066–68, vance of $2,500 on his fee for his serv- 74th Cong. 2d Sess., Mar. 2, 1936 ices in said case. On or about July 2, (Articles I–IV); H. Res. 471, 80 1930, the said Judge Ritter by letter CONG. REC. 4597–99, 74th Cong. 2d requested another judge of the United Sess., Mar. 30, 1936 (amending Arti- States district court for the southern cle III and adding new Articles IV– district of Florida, to wit, Honorable VII). Alexander Akerman, to fix and deter-

1961 Ch. 14 § 3 DESCHLER’S PRECEDENTS

mine the total allowance for the said same day privately paid and delivered Rankin for his services in said case for to the said Judge Ritter the sum of the reason as stated by Judge Ritter in $2,500 in cash; $2,000 of said $2,500 said letter, that the said Rankin had was deposited in bank by Judge Ritter formerly been the law partner of the on, to wit, December 29, 1930, the re- said Judge Ritter, and he did not feel maining $500 being kept by Judge Rit- that he should pass upon the total al- ter and not deposited in bank until, to lowance made said Rankin in that case wit, July 10, 1931. Between the time of and that if Judge Akerman would fix such initial payment on said additional the allowance it would relieve the writ- fee and April 6, 1931, the said receiver er, Judge Ritter, from any embarrass- paid said Rankin thereon $5,000. On ment if thereafter any question should or about April 6, 1931, the said Rankin arise as to his, Judge Ritter’s, favoring received the balance of the said addi- said Rankin with an exorbitant fee. tional fee allowed him by Judge Ritter, said balance amounting to $45,000. Thereafterward, notwithstanding the Shortly thereafter, on or about April said Judge Akerman, in compliance 14, 1931, the said Rankin paid and de- with Judge Ritter’s request, allowed livered to the said Judge Ritter, pri- the said Rankin a fee of $15,000 for his vately, in cash, an additional sum of services in said case, from which sum $2,000. The said Judge Halsted L. Rit- the said $2,500 theretofore allowed the ter corruptly and unlawfully accepted said Rankin by Judge Ritter as an ad- and received for his own use and ben- vance on his fee was deducted, the said efit from the said A. L. Rankin the Judge Ritter, well knowing that at his aforesaid sums of money, amounting to request compensation had been fixed $4,500. by Judge Akerman for the said Wherefore, the said Judge Halsted L. Rankin’s services in said case, and not- Ritter was and is guilty of misbehavior withstanding the restraint of propriety and was and is guilty of a high crime expressed in his said letter to Judge and misdemeanor. Akerman, and ignoring the danger of embarrassment mentioned in said let- ARTICLE II ter, did fix an additional and exorbi- That the said Halsted L. Ritter, tant fee for the said Rankin in said while holding the office of United case. On or about December 24, 1930, States district judge for the southern when the final decree in said case was district of Florida, having been nomi- signed, the said Judge Ritter allowed nated by the President of the United the said Rankin, additional to the total States, confirmed by the Senate of the allowance of $15,000 theretofore al- United States, duly qualified and com- lowed by Judge Akerman, a fee of missioned, and while acting as a $75,000 for his services in said case, United States district judge for the out of which allowance the said Judge southern district of Florida, was and is Ritter directly profited. On the same guilty of misbehavior and of high day, December 24, 1930, the receiver crimes and misdemeanors in office in in said case paid the said Rankin, as manner and form as follows, to wit: part of his said additional fee, the sum On the 15th day of February 1929 of $25,000, and the said Rankin on the the said Halsted L. Ritter, having been

1962 IMPEACHMENT POWERS Ch. 14 § 3 appointed as United States district ises in the court of said Halsted L. Rit- judge for the southern district of Flor- ter, by which means the said Richard- ida, was duly qualified and commis- son, Rankin, Metcalf, Sweeney, and sioned to serve as such during good be- Ritter were to continue said property havior in office. Immediately prior in litigation before said Ritter. On the thereto and for several years the said 30th day of August 1929, the said Wal- Halsted L. Ritter had practiced law in ter S. Richardson, in furtherance of said district in partnership with one A. said arrangement and understanding, L. Rankin, which partnership was dis- wrote a letter to the said Martin solved upon the appointment of said Sweeney, in New York, suggesting the Ritter as said United States district desirability of contacting as many first- judge. mortgage bondholders as possible in On the 18th day of July 1928 one order that their cooperation might be Walter S. Richardson was elected secured, directing special attention to trustee in bankruptcy of the Whitehall Mr. Bert E. Holland, an attorney, Building and Operating Company, whose address was in the Tremont which company had been adjudicated Building in Boston, and who, as co- in said district as a bankrupt, and as trustee, was the holder of $50,000 of such trustee took charge of the assets first-mortgage bonds, the amount of of said Whitehall Building and Oper- bonds required to institute the con- ating Company, which consisted of a templated proceedings in Judge Rit- hotel property located in Palm Beach ter’s court. in said district. That the said Richard- On October 3, 1929, the said Bert E. son as such trustee operated said hotel Holland, being solicited by the said property from the time of his said ap- Sweeney, requested the said Rankin pointment until its sales on the 3d of and Metcalf to prepare a complaint to January 1929, under the foreclosure of file in said Judge Ritter’s court for a third mortgage thereon. On the 1st foreclosure of said first mortgage and of November and the 13th of December the appointment of a receiver. At this 1929, the said Judge Ritter made or- time Judge Ritter was holding court in ders in said bankruptcy proceedings al- Brooklyn, New York, and the said lowing the said Walter S. Richardson Rankin and Richardson went from as trustee the sum of $16,500 as com- West Palm Beach, Florida, to Brook- pensation for his services as trustee. lyn, New York, and called upon said That before the discharge of said Wal- Judge Ritter a short time previous to ter S. Richardson as such trustee, said filing the bill for foreclosure and ap- Richardson, together with said A. L. pointment of a receiver of said hotel Rankin, one Ernest Metcalf, one Mar- property. tin Sweeney, and the said Halsted L. On October 10, 1929, and before the Ritter, entered into an arrangement to filing of said bill for foreclosure and re- secure permission of the holder or ceiver, the said Holland withdrew his holders of at least $50,000 of first authority to said Rankin and Metcalf mortgage bonds on said hotel property to file said bill and notified the said for the purpose of filing a bill to fore- Rankin not to file the said bill. Not- close the first mortgage on said prem- withstanding the said instructions to

1963 Ch. 14 § 3 DESCHLER’S PRECEDENTS

said Rankin not to file said bill, said appointed the said Richardson receiver Rankin, on the 11th day of October of the said hotel property, notwith- 1929, filed said bill with the clerk of standing that objection was made to the United States District Court for Judge Ritter that said Richardson had the Southern District of Florida but been active in fomenting this litigation with the specific request to said clerk and was not a proper person to act as to lock up the said bill as soon as it receiver. was filed and hold until Judge Ritter’s On October 15, 1929, said Rankin return so that there would be no news- made oath to each of the bills for inter- paper publicity before the matter was venors which were filed the next day. heard by Judge Ritter for the appoint- On October 16, 1929, bills for inter- ment of a receiver, which request on vention in said foreclosure suit were the part of the said Rankin was com- filed by said Rankin and Metcalf in the plied with by the said clerk. names of holders of approximately On October 16, 1929, the said Hol- $5,000 of said first-mortgage bonds, land telegraphed to the said Rankin, which intervenors did not possess the referring to his previous wire request- said requisite $50,000 in bonds re- ing him to refrain from filing the bill quired by said first mortgage to bring and insisting that the matter remain foreclosure proceedings on the part of in its then status until further instruc- the bondholders. tion was given; and on October 17, The said Rankin and Metcalf ap- 1929, the said Rankin wired to Holland peared as attorneys for complainants that he would not make an application and intervenors, and in response to a on his behalf for the appointment of a suggestion of the said Judge Ritter, the receiver. On October 28, 1929, a hear- said Metcalf withdrew as attorney for ing on the complaint and petition for complainants and intervenors and said receivership was heard before Judge Judge Ritter thereupon appointed said Halsted L. Ritter at Miami, at which Metcalf as attorney for the said Rich- hearing the said Bert E. Holland ap- ardson, the receiver. peared in person before said Judge Rit- And in the further carrying out of ter and advised the judge that he said arrangement and understanding, wished to withdraw the suit and asked the said Richardson employed the said for dismissal of the bill of complaint on Martin Sweeney and one Bemis, to- the ground that the bill was filed with- gether with Ed Sweeney, as managers out his authority. of said property, for which they were But the said Judge Ritter, fully ad- paid the sum of $60,000 for the man- vised of the facts and circumstances agement of said hotel for the two sea- herein before recited, wrongfully and sons the property remained in the cus- oppressively exercised the powers of tody of said Richardson as receiver. his office to carry into execution said On or about the 15th day of May plan and agreement theretofore ar- 1930 the said Judge Ritter allowed the rived at, and refused to grant the re- said Rankin an advance on his fee of quest of the said Holland and made ef- $2,500 for his services in said case. fective the champertous undertaking of On or about July 2, 1930, the said the said Richardson and Rankin and Judge Ritter requested Judge Alex-

1964 IMPEACHMENT POWERS Ch. 14 § 3

ander Akerman, also a judge of the Rankin $12,500 in addition to the United States District Court for the $2,500 theretofore allowed by Judge Southern District of Florida, to fix the Ritter, making a total of $15,000 as total allowance for the said Rankin for the fee of the said Rankin in the said his services in said case, said request case. and the reasons therefor being set But notwithstanding the said re- forth in a letter by the said Judge Rit- quest on the part of said Ritter and the ter, in words and figures as follows, to compliance by the said Judge Akerman wit: and the reasons for the making of said JULY 2, 1930. request by said Judge Ritter of Judge Hon. ALEXANDER AKERMAN, Akerman, the said Judge Ritter, on the United States District Judge, Tampa, 24th day of December 1930, allowed Fla. the said Rankin an additional fee of MY DEAR JUDGE: In the case of Hol- $75,000. land et al. v. Whitehall Building & Op- And on the same date when the re- erating Co. (No. 678–M–Eq.), pending ceiver in said case paid to the said in my division, my former law partner, Rankin as a part of said additional fee Judge A. L. Rankin, of West Palm the sum of $25,000, said Rankin pri- Beach, has filed a petition for an order vately paid and delivered to said Judge allowing compensation for his services Ritter out of the said $25,000 the sum on behalf of the plaintiff. of $2,500 in cash, $2,000 of which the I do not feel that I should pass, said Judge Ritter deposited in a bank under the circumstances, upon the and $500 of which was put in a tin box total allowance to be made Judge and not deposited until the 10th day of Rankin in this matter. I did issue an July 1931, when it was deposited in a order, which Judge Rankin will exhibit bank with an additional sum of $600. to you, approving an advance of $2,500 On or about the 6th day of April on his claim, which was approved by 1931, the said Rankin received as a all attorneys. part of the $75,000 additional fee the You will appreciate my position in sum of $45,000, and shortly thereafter, the matter, and I request you to pass on or before the 14th day of April upon the total allowance which should 1931, the said Rankin paid and deliv- be made Judge Rankin in the premises ered to said judge Ritter, privately and as an accommodation to me. This will in cash, out of said $45,000 the sum of relieve me from any embarrassment $2,000. hereafter if the question should arise The said Judge Halsted L. Ritter cor- as to my favoring Judge Rankin in this ruptly and unlawfully accepted and re- matter by an exorbitant allowance. ceived for his own use and benefit from Appreciating very much your kind- the said Rankin the aforesaid sums of ness in this matter, I am, $2,500 in cash and $2,000 in cash, Yours sincerely, amounting in all to $4,500. HALSTED L. RITTER. Of the total allowance made to said In compliance with said request the A.L. Rankin in said foreclosure suit, said Judge Akerman allowed the said amounting in all to $90,000, the fol-

1965 Ch. 14 § 3 DESCHLER’S PRECEDENTS

lowing sums were paid out by said ceived free rooms, and some or all of Rankin with the knowledge and con- them received from said hotel free sent of said Judge Ritter, to wit: to meals and free valet service; all of said Walter S. Richardson, the sum of which expenses were borne by the said $5,000; to said Metcalf, the sum of receivership to the loss and damage of $10,000; to Shutts and Bowen, also at- the creditors whose interests were in- torneys for the receiver, the sum of volved therein. $25,000; and to said Halsted L. Ritter, The said judge willfully failed and the sum of $4,500. neglected to perform his duty to con- In addition to the said sum of $5,000 serve the assets of the Whitehall received by the said Richardson as Building and Operating Company in aforesaid, said Ritter by order in said receivership in his court, but to the proceedings allowed said Richardson a contrary, permitted waste and dissipa- fee of $30,000 for services as such re- tion of its assets, to the loss and dam- ceiver. age of the creditors of said corporation, The said fees allowed by said Judge and was a party to the waste and dis- Ritter to A.L. Rankin (who had been a sipation of such assets while under the law partner of said judge immediately control of his said court, and person- before said judge’s appointment as ally profited thereby, in the manner judge) as solicitor for the plaintiff in and form hereinabove specifically set said case were excessive and unwar- out. ranted, and said judge profited person- Wherefore, the said Judge Halsted L. ally thereby in that out of the money Ritter was and is guilty of mis- so allowed said solicitor he received personally, privately, and in cash behavior, and was and is guilty of a $4,500 for his own use and benefit. high crime and misdemeanor in office. While the Whitehall Hotel was being Articles III and IV in House operated in receivership under said Resolution 422 are omitted be- proceeding pending in said court (and cause House Resolution 471, in which proceeding the receiver in charge of said hotel by appointment of adopted by the House on Mar. 30, said Judge was allowed large com- 1936, amended Article III, added pensation by said judge) the said judge new Articles IV through VI after stayed at said hotel from time to time Article III, and amended former without cost to himself and received Article IV to read as new Article free rooms, free meals, and free valet VII. Articles III through VII in service, and, with the knowledge and consent of said judge, members of his their amended form follow: family, including his wife, his son, ARTICLE III Thurston Ritter, his daughter, Mrs. M.R. Walker, his secretary, Mrs. Lloyd That the said Halsted L. Ritter, hav- C. Hooks, and her husband, Lloyd C. ing been nominated by the President of Hooks, each likewise on various occa- the United States, confirmed by the sions stayed at said hotel without cost Senate of the United States, duly to themselves or to said judge, and re- qualified and commissioned, and, while

1966 IMPEACHMENT POWERS Ch. 14 § 3 acting as a United States District would carry through further pro- judge for the southern district of Flor- ceedings in the case, but that he, ida, was and is guilty of a high crime Judge Ritter, would be consulted about and misdemeanor in office in manner the matter until the case was all closed and form as follows, to wit: up; and that ‘‘this matter is one among That the said Halsted L. Ritter, very few which I am assuming to con- while such judge, was guilty of a viola- tinue my interest in until finally closed tion of section 258 of the Judicial Code up’’; and stating specifically in said let- of the United States of America ter: (U.S.C., Annotated, title 28, sec. 373) ‘‘I do not know whether any appeal making it unlawful for any judge ap- will be taken in the case or not but, if pointed under the authority of the so, we hope to get Mr. Howard Paschal United States to exercise the profes- or some other person as receiver who sion or employment of counsel or attor- will be amenable to our directions, and ney, or to be engaged in the practice of the hotel can be operated at a profit, of the law, in that after the employment course, pending the appeal. We shall of the law firm of Ritter and Rankin demand a very heavy supersedeas (which at the time of the appointment bond, which I doubt whether D’Esterre of Halsted L. Ritter to be judge of the can give’’; and further that he was ‘‘of United States District Court for the course primarily interested in getting Southern District of Florida, was com- some money in the case’’, and that he posed of Halsted L. Ritter and A.L. thought ‘‘$2,000 more by way of attor- Rankin) in the case of Trust Company neys’ fees should be allowed’’, and of Georgia and Robert G. Stephens, asked that he be communicated with trustee, against Brazilian Court Build- direct about the matter, giving his ing Corporation, and others, numbered post-office-box number. On to wit, 5704, in the Circuit Court of the Fif- March 13, 1929, said Brodek replied teenth Judicial Circuit of Florida, and favorably, and on March 30, 1929, a after the fee of $4,000 which had been check of Brodek, Raphael, and Eisner, agreed upon at the outset of said em- a law firm of New York City, rep- ployment had been fully paid to the resenting Mulford Realty Corporation, firm of Ritter and Rankin, and after in which Charles A. Brodek, senior Halsted L. Ritter had, on, to wit, Feb- member of the firm of Brodek, Raphael ruary 15, 1929, become judge of the and Eisner, was one of the directors, United States District Court for the was drawn, payable to the order of Southern District of Florida, Judge Rit- ‘‘Honorable Halsted L. Ritter’’ for ter on, to wit, March 11, 1929, wrote a $2,000 and which was duly endorsed letter to Charles A. Brodek, of counsel ‘‘Honorable Halsted L. Ritter. H. L. for Mulford Realty Corporation (the cli- Ritter’’ and was paid on, to wit, April ent which his former law firm had 4, 1929, and the proceeds thereof were been representing in said litigation), received and appropriated by Judge stating that there had been much Ritter to his own individual use and extra and unanticipated work in the benefit, without advising his said case, that he was then a Federal former partner that said $2,000 had Judge; that his partner, A.L. Rankin, been received, without consulting with

1967 Ch. 14 § 3 DESCHLER’S PRECEDENTS

his former partner thereabout, and Senate of the United States, duly without the knowledge or consent of qualified and commissioned, and, while his said former partner, appropriated acting as a United States district judge the entire amount thus solicited and for the southern district of Florida, was received to the use and benefit of him- and is guilty of a high crime and mis- self, the said Judge Ritter. demeanor in office in manner and form as follows to wit: At the time said letter was written That the said Halsted L. Ritter, by Judge Ritter and said $2,000 re- while such judge, was guilty of a viola- ceived by him, Mulford Realty Cor- tion of section 258 of the Judicial Code poration held and owned large inter- of the United States of America ests in Florida real estate and citrus (U.S.C., Annotated, title 28, sec. 373), groves, and a large amount of securi- making it unlawful for any judge ap- ties of the Olympia Improvement Cor- pointed under the authority of the poration, which was a company orga- United States to exercise the profes- nized to develop and promote Olympia, sion or employment of counsel or attor- Florida, said holdings being within the ney, or to be engaged in the practice of territorial jurisdiction of the United the law, in that Judge Ritter did exer- States District Court, of which Judge cise the profession or employment of Ritter was a judge from, to wit, Feb- counsel or attorney, or engage in the ruary 15, 1929. practice of the law, representing J.R. After writing said letter of March 11, Francis, with relation to the Boca Raton matter and the segregation and 1929, Judge Ritter further exercised saving of the interest of J.R. Francis the profession or employment of coun- herein, or in obtaining a deed or deeds sel or attorney, or engaged in the prac- to J.R. Francis from the Spanish River tice of the law, with relation to said Land Company to certain pieces of re- case. alty, and in the Edgewater Ocean Which acts of said judge were cal- Beach Development Company matter culated to bring his office into disre- for which services the said Judge Rit- pute, constitute a violation of section ter received from the said J.R. Francis 258 of the Judicial Code of the United the sum of $7,500. States of America (U.S.C., Annotated, Which acts of said judge were cal- title 28, sec. 373), and constitute a culated to bring his office into disre- high crime and misdemeanor within pute constitute a violation of the law the meaning and intent of section 4 of above recited, and constitute a high article II of the Constitution of the crime and misdemeanor within the meaning and intent of section 4 of arti- United States. cle II of the Constitution of the United Wherefore, the said Judge Halsted L. States. Ritter was and is guilty of a high mis- Wherefore, the said Judge Halsted L. demeanor in office. Ritter was and is guilty of a high mis- demeanor in office. ARTICLE IV That the said Halsted L. Ritter, hav- ARTICLE V ing been nominated by the President of That the said Halsted L. Ritter, hav- the United States, confirmed by the ing been nominated by the President of

1968 IMPEACHMENT POWERS Ch. 14 § 3 the United States, confirmed by the tion of section 146(b) of the Revenue Senate of the United States, duly Act of 1928, making it unlawful for qualified and commissioned, and, while any person willfully to attempt in any acting as a United States district judge manner to evade or defeat the payment for the southern district of Florida, was of the income tax levied in and by said and is guilty of a high crime and mis- Revenue Act of 1928, in that during demeanor in office in manner and form the year 1930 the said Judge Ritter re- as follows, to wit: ceived gross taxable income—over and That the said Halsted L. Ritter, above his salary as judge—to the while such judge, was guilty of viola- amount of to wit, $5,300, yet failed to tion of section 146(h) of the Revenue report any part thereof in his income- Act of 1928, making it unlawful for tax return for the year 1930 and paid any person willfully to attempt in any no income tax thereon. manner to evade or defend the pay- Two thousand five hundred dollars ment of the income tax levied in and of said gross taxable income for 1930 by said Revenue Act of 1928, in that was that amount of cash paid Judge during the year 1929 said Judge Ritter Ritter by A. L. Rankin on December received gross taxable income—over 24, 1930, as described in article I. and above his salary as judge—to the Wherefore the said Judge Halsted L. amount of some $12,000, yet paid no income tax thereon. Ritter was and is guilty of a high mis- demeanor in office. Among the fees included in said gross taxable income for 1929 were the ARTICLE VII extra fee of $2,000 collected and re- ceived by Judge Ritter in the Brazilian That the said Halsted L. Ritter, Court case as described in article III, while holding the office of United and the fee of $7,500 received by Judge States district judge for the southern Ritter from J.R. Francis. district of Florida, having been nomi- Wherefore the said Judge Halsted L. nated by the President of the United Ritter was and is guilty of a high mis- States, confirmed by the Senate of the demeanor in office. United States, duly qualified and com- missioned, and, while acting as a ARTICLE VI United States district judge for the That the said Halsted L. Ritter, hav- southern district of Florida, was and is ing been nominated by the President of guilty of misbehavior and of high the United States, confirmed by the crimes and misdemeanors in office in Senate of the United States, duly manner and form as follows, to wit: qualified and commissioned, and, while The reasonable and probable con- acting as a United States district judge sequence of the actions or conduct of for the southern district of Florida, was Halsted L. Ritter, hereunder specified and is guilty of a high crime and mis- or indicated in this article, since he be- demeanor in office in manner and form came judge of said court, as an indi- as follows, to wit: vidual or as such judge, is to bring his That the said Halsted L. Ritter, court into scandal and disrepute, to the while such judge, was guilty of viola- prejudice of said court and public con-

1969 Ch. 14 § 3 DESCHLER’S PRECEDENTS

fidence in the administration of justice such resolution, recused himself from therein, and to the prejudice of public sitting as judge in said power suit, respect for and confidence in the Fed- thereby bartering his judicial authority eral judiciary, and to render him unfit in said case for a vote of confidence. to continue to serve as such judge: Nevertheless, the succeeding judge al- 1. In that in the Florida Power Com- lowed said Hutchinson as special mas- pany case (Florida Power and Light ter in chancery in said case a fee of Company against City of Miami and $5,000, although he performed little, if others, numbered 1138–M–Eq.) which any, service as such, and in the order was a case wherein said judge had making such allowance recited: ‘‘And it granted the complainant power com- appearing to the court that a minimum pany a temporary injunction restrain- fee of $5,000 was approved by the ing the enforcement of an ordinance of court for the said Cary T. Hutchinson, the city of Miami, which ordinance pre- special master in this cause.’’ scribed a reduction in the rates for 2. In that in the Trust Company of electric current being charged in said Florida cases (Illick against Trust city, said judge improperly appointed Company of Florida and others num- one Cary T. Hutchinson, who had long bered 1043–M–Eq., and Edmunds been associated with and employed by Committee and others against Marion power and utility interests, special Mortgage Company and others, num- master in chancery in said suit, and bered 1124–M–Eq.) after the State refused to revoke his order so appoint- banking department of Florida, ing said Hutchinson. Thereafter, when through its comptroller, Honorable Er- criticism of such action had become nest Amos, had closed the doors of the current in the city of Miami, and with- Trust Company of Florida and ap- in two weeks after a resolution (H. pointed J.H. Therrell liquidator for Res. 163, Seventy-third Congress) had said trust company, and had inter- been agreed to in the House of Rep- vened in the said Illick case, said resentatives of the Congress of the Judge Ritter wrongfully and erro- United States, authorizing and direct- neously refused to recognize the right ing the Judicial Committee thereof to of said State authority to administer investigate the official conduct of said the affairs of the said trust company judge and to make a report concerning and appointed Julian E. Eaton and said conduct to said House of Rep- Clark D. Stearns as receivers of the resentatives an arrangement was en- property of said trust company. On ap- tered into with the city commissioners peal, the United States Circuit Court of the city of Miami or with the city at- of Appeals for the Fifth Circuit re- torney of said city by which the said versed the said order or decree of city commissioners were to pass a reso- Judge Ritter and ordered the said lution expressing faith and confidence property surrendered to the State liq- in the integrity of said judge, and the uidator. Thereafter, on, to wit, Sep- said judge recuse himself as judge in tember 12, 1932, there was filed in the said Dower suit. The said agreement United States District Court for the was carried out by the parties thereto, Southern District of Florida the and said judge, after the passage of Edmunds Committee case, supra. Mar-

1970 IMPEACHMENT POWERS Ch. 14 § 3 ion Mortgage Company was a sub- properties, Judge Ritter wrongfully sidiary of the Trust Company of Flor- and improperly approved their ac- ida. Judge Ritter being absent from his counts without notice or opportunity district at the time of the filing of said for objection thereto to be heard. case, an application for the appoint- With the knowledge of Judge Ritter, ment of receivers therein was pre- said receivers appointed the sister-in- sented to another judge of said district, law of Judge Ritter, namely, Mrs. G.M. namely, Honorable Alexander Wickard, who had had no previous Akerman. Judge Ritter, however, prior hotel-management experience, to be to the appointment of such receivers, manager of the Julia Tuttle Hotel and telegraphed Judge Akerman, request- Apartment Building, one of said trust ing him to appoint the aforesaid Eaton properties. On, to wit, January 1, 1933, and Stearns as receivers in said case, Honorable J.M. Lee succeeded Honor- which appointments were made by able Ernest Amos as comptroller of the Judge Akerman. Thereafter the United State of Florida and appointed M.A. States Circuit Court of Appeals for the Smith liquidator in said Trust Com- Fifth Circuit reversed the order of pany of Florida cases to succeed J.H. Judge Akerman, appointing said Eaton Therrell. An appeal was again taken to and Stearns as receivers in said case. the United States Circuit Court of Ap- In November 1932, J.H. Therrell, as peals for the Fifth Circuit from the liquidator, filed a bill of complaint in then latest order or decree of Judge the Circuit Court of Dade County, Ritter, and again the order or decree of Florida—a court of the State of Flor- Judge Ritter appealed from was re- ida—alleging that the various trust versed by the said circuit court of ap- properties of the Trust Company of peals which held that the State officer Florida were burdensome to the liqui- was entitled to the custody of the prop- dator to keep, and asking that the erty involved and that said Eaton and court appoint a succeeding trustee. Stearns as receivers were not entitled Upon petition for removal of said cause to such custody. Thereafter, and with from said State court into the United the knowledge of the decision of the States District Court for the Southern said circuit court of appeals, Judge Rit- District of Florida, Judge Ritter took ter wrongfully and improperly allowed jurisdiction, notwithstanding the pre- said Eaton and Stearns and their at- vious rulings of the United States Cir- torneys some $26,000 as fees out of cuit Court of Appeals above referred to, said trust-estate properties and en- and again appointed the said Eaton deavored to require, as a condition and Stearns as the receivers of the precedent to releasing said trust prop- said trust properties. In December erties from the control of his court, a 1932 the said Therrell surrendered all promise from counsel for the said State of the trust properties to said Eaton liquidator not to appeal from his order and Stearns as receivers, together with allowing the said fees to said Eaton all records of the Trust Company of and Stearns and their attorneys. Florida pertaining thereto. During the 3. In that the said Halsted L. Ritter, time said Eaton and Stearns, as such while such Federal judge, accepted, in receivers, were in control of said trust addition to $4,500 from his former law

1971 Ch. 14 § 3 DESCHLER’S PRECEDENTS

partner as alleged in article I hereof ment of President Richard other large fees or gratuities, to wit, M. Nixon, such views relating $7,500 from J.R. Francis, on or about April 19, 1929, J.R. Francis at this to Article II, containing an time having large property interests accumulation of acts consti- within the territorial jurisdiction of the tuting a course of conduct. court of which Judge Ritter was a On Aug. 20, 1974, the Com- judge; and on, to wit, the 4th day of April 1929 the said Judge Ritter ac- mittee on the Judiciary rec- cepted the sum of $2,000 from Brodek, ommended in its final report to Raphael and Eisner, representing the House, pursuant to its inquiry Mulford Realty Corporation, as its at- into charges of impeachable of- torneys, through Charles A. Brodek, fenses against President Nixon, senior member of said firm and a di- three articles of impeachment. Ar- rector of said corporation, as a fee or gratuity, at which time the said ticle II charged that the President Mulford Realty Corporation held and had ‘‘repeatedly engaged in con- owned large interests in Florida real duct’’ violative of his Presidential estate and citrus groves, and a large oath and of his constitutional duty amount of securities of the Olympia to take care that the laws be Improvement Corporation, which was a company organized to develop and faithfully executed. The article set promote Olympia, Florida, said holding forth, in five separate paragraphs, being within the territorial jurisdiction five patterns of conduct consti- of the United States District Court of tuting the offenses charged. which Judge Ritter was a judge from, The conclusion of the commit- to wit, February 15, 1929. tee’s report on Article II read in 4. By his conduct as detailed in arti- cles I, II, III, and IV hereof, and by his part as follows: income-tax evasions as set forth in ar- In recommending Article II to the ticles V and VI hereof. House, the Committee finds clear and Wherefore, the said Judge Halsted L. convincing evidence that Richard M. Ritter was and is guilty of mis- Nixon, contrary to his trust as Presi- behavior, and was and is guilty of high dent and unmindful of the solemn du- crimes and misdemeanors in office. ties of his high office, has repeatedly used his power as President to violate Cumulative and Duplicatory the Constitution and the law of the Articles of Impeachment land. In so doing, he has failed in the obli- § 3.3 Majority views and mi- gation that every citizen has to live nority views were included under the law. But he has done more, for it is the duty of the President not in the report of the Com- merely to live by the law but to see mittee on the Judiciary rec- that law faithfully applied. Richard M. ommending the impeach- Nixon has repeatedly and willfully 1972 IMPEACHMENT POWERS Ch. 14 § 3 failed to perform that duty. He has and further usurpations of the power failed to perform it by authorizing and of other branches of our government. directing actions that violated or dis- By adopting this Article, the Com- regarded the rights of citizens and that mittee seeks to prevent the recurrence corrupted and attempted to corrupt the of any such abuse of Presidential lawful functioning of executive agen- power. cies. He has failed to perform it by The Committee finds that, in the condoning and ratifying, rather than performance of his duties as President, acting to stop, actions by his subordi- Richard M. Nixon on many occasions nates that interfered with lawful inves- has acted to the detriment of justice, tigations and impeded the enforcement right, and the public good, in violation of the laws.... of his constitutional duty to see to the The conduct of Richard M. Nixon has faithful execution of the laws. This constituted a repeated and continuing conduct has demonstrated a contempt abuse of the powers of the Presidency for the rule of law; it has posed a in disregard of the fundamental prin- threat to our democratic republic. The ciple of the rule of law in our system Committee finds that this conduct con- of government. This abuse of the pow- stitutes ‘‘high crimes and mis- ers of the President was carried out by demeanors’’ within the meaning of the Richard M. Nixon, acting personally Constitution, that it warrants his im- and through his subordinates, for his peachment by the House, and that it own political advantage, not for any le- requires that he be put to trial in the gitimate governmental purpose and Senate.(11) without due consideration for the na- Opposing minority views were tional good.... included in the report on the ‘‘du- The Committee has concluded that, to perform its constitutional duty, it plicity’’ of offenses charged in Ar- must approve this Article of Impeach- ticle II. The views (footnotes omit- ment and recommend it to the House. ted) below are those of Messrs. If we had been unwilling to carry out Hutchinson, Smith, Sandman, the principle that all those who govern, Wiggins, Dennis, Mayne, Lott, including ourselves, are accountable to Moorhead, Maraziti, and Latta: the law and the Constitution, we would have failed in our responsibility Our opposition to the adoption of Ar- as representatives of the people elected ticle II should not be misunderstood as under the Constitution. If we had not condonation of the presidential conduct been prepared to apply the principle of alleged therein. On the contrary, we Presidential accountability embodied in the impeachment clause of the Con- 11. H. REPT. No. 93–1305, at pp. 180– stitution, but had instead condoned the 183, Committee on the Judiciary, conduct of Richard M. Nixon, then an- printed in the Record at 120 CONG. other President, perhaps with a dif- REC. 29270, 29271, 93d Cong. 2d ferent political philosophy, might have Sess., Aug. 20, 1974. For complete used this illegitimate power for further text of H. REPT. No. 93–1305, see id. encroachments on the rights of citizens at pp. 29219–361.

1973 Ch. 14 § 3 DESCHLER’S PRECEDENTS

deplore in strongest terms the aspects by the evidence; or whether he must of presidential wrongdoing to which believe in the sufficiency of all five; or the Article is addressed. However, we whether it is enough if he believes in could not in conscience recommend the sufficiency of more than half of the that the House impeach and the Sen- charges. The only clue is the sentence ate try the President on the basis of which states, ‘‘This conduct has in- Article II in its form as proposed, be- cluded one or more of the following cause in our view the Article is [five specifications]’’. This sentence im- duplicitous in both the ordinary and plies that a Member may—indeed, the legal senses of the word. In com- must—vote to impeach or to convict if mon usage, duplicity means belying he believes in the sufficiency of a sin- one’s true intentions by deceptive gle specification, even though he be- words; as a legal term of art, duplicity lieves that the accusations made under denotes the technical fault of uniting the other four specifications have not two or more offenses in the same count been proved, or do not even constitute of an indictment. We submit that the grounds for impeachment. Thus Article implications of a vote for or against Ar- II would have unfairly accumulated all ticle II are ambiguous and that the guilty votes against the President, on Committee debate did not resolve the whatever charge. The President could ambiguities so as to enable the Mem- have been removed from office even bers to vote intelligently. Indeed, this though no more than fourteen Senators defect is symptomatic of a generic believed him guilty of the acts charged problem inherent in the process of in any one of the five specifications. drafting Articles of impeachment, and Nor could the President have de- its significance for posterity may be far fended himself against the ambiguous greater than the substantive merits of charges embodied in Article II. Inas- the particular charges embodied in Ar- much as five specifications are in- ticle II.... cluded in support of three legal theo- We do not take the position that the ries, and all eight elements are grouping of charges in a single Article phrased in the alternative, Article II is necessarily always invalid. To the actually contains no fewer than fifteen contrary, it would make good sense if separate counts, any one of which the alleged offenses together comprised might be deemed to constitute grounds a common scheme or plan, or even if for impeachment and removal. In addi- they were united by a specific legal tion, if the President were not in- theory. Indeed, even if there were no formed which matters included in Arti- logical reason at all for so grouping the cle II were thought to constitute ‘‘high charges (as is true of Article II), the Crimes and Misdemeanors,’’ he would Article might still be acceptable if its have been deprived of his right under ambiguous aspects had been satisfac- the Sixth Amendment to ‘‘be informed torily resolved. For the chief vice of of the nature and cause of the accusa- this Article is that it is unclear from tion’’ against him. its language whether a Member should This defect of Article II calls to mind vote for its adoption if he believes any the impeachment trial of Judge Hal- one of the five charges to be supported sted Ritter in 1936. Ritter was nar-

1974 IMPEACHMENT POWERS Ch. 14 § 3 rowly acquitted of specific charges of [W]here different crimes and mis- bribery and related offenses set forth demeanors were alleged it was the in the first six Articles. He was con- duty of the House to have voted victed by an exact two-thirds majority, whether each class of matter re- ported was impeachable before de- however, under Article VII. That Arti- bating that resolution of impeach- cle charged that because of the specific ment, and that the committee was offenses embodied in the other six Arti- entitled to the vote of a majority on cles, Ritter had ‘‘[brought] his court each branch, and that now for the into scandal and disrepute, to the prej- first time the real question of im- udice of said court and public con- peachment has come before this House to be determined—not by five fidence in the administration of jus- men on one charge, fifteen on an- tice. . . .’’ The propriety of convicting other, and twenty on another coming him on the basis of this vague charge, in generally and saying that for one after he had been acquitted on all of or another of the charges Judge the specific charges, will long be de- Swayne should be impeached, but on bated. Suffice it to say that the puta- each particular branch of the case. tive defect of Article VII is entirely dif- When we were asked to vote upon ferent from that of Article II in the ten charges at once, that there was something impeachable contained in present case, and the two should not one or another of those charges we be confused. have already perhaps stultified our- A more relevant precedent may be selves in the mode of our proce- found in the House debates during the dure.... impeachment of Judge Charles Swayne In order to extricate the House from in 1905. In that case the House had its quandary, Representative Powers followed the earlier practice of voting urged that the earlier vote to impeach first on the general question of wheth- should be construed to imply that a er or not to impeach, and then drafting majority of the House felt that each of the Articles. Swayne was impeached in the separate charges had been proved; December 1904, by a vote of 198–61, on the basis of five instances of mis- At that time the committee urged conduct. During January 1905 these the impeachment upon five grounds, and those are the only grounds five grounds for impeachment were ar- which are covered by the articles ticulated in twelve Articles. In the . . . and we had assumed that when course of debate prior to the adoption the House voted the impeachment of the Articles, it was discovered that they practically said that a probable although the general proposition to im- cause was made out in these five peach had commanded a majority, in- subject-matters which were dis- cussed before the House. dividual Members had reached that conclusion for different reasons. This Powers’ retrospective theory was ul- gave rise to the embarrassing possi- timately vindicated when the House bility that none of the Articles would approved all twelve Articles. be able to command a majority vote. If the episode from the Swayne im- Representative Parker regretted that peachment is accorded any preceden- the House had not voted on each tial value in the present controversy charge separately before voting on im- over Article II, it might be argued by peachment: analogy that the Committee’s vote to

1975 Ch. 14 § 3 DESCHLER’S PRECEDENTS

adopt that Article must be construed to § 3.4 The Senate, sitting as a imply that a majority believed that all Court of Impeachment, re- five specifications had been proved. Be- cause the Committee did not vote sepa- jected a motion to strike arti- rately on each specification, however, it cles of impeachment on the is impossible to know whether those ground that certain articles Members who voted for Article II were duplicatory and accu- would be willing to accept that con- mulative. struction. If so, then one of our major objections to the Article would vanish. On Apr. 3, 1936,(13) Judge Hal- However, it would still be necessary to sted L. Ritter, respondent in an amend the Article by removing the impeachment trial, moved in the sentence ‘‘This has included one or Senate to strike certain articles on more of the following,’’ and sub- stituting language which would make the grounds of duplication and ac- it plain that no Member of the House cumulation of changes. or Senate could vote for the Article un- The motion as duly filed by less he was convinced of the inde- counsel for the respondent is as pendent sufficiency of each of the five follows: specifications. In the Senate of the United States of However, there remains another and America sitting as a Court of Impeach- more subtle objection to the lumping ment. The United States of America v. together of unrelated charges in Article Halsted L. Ritter, respondent II: MOTION TO STRIKE ARTICLE I, OR, IN There is indeed always a danger when several crimes are tied to- THE ALTERNATIVE, TO REQUIRE gether, that the jury will use the evi- ELECTION AS TO ARTICLES I AND II; dence cumulatively; that is, that al- AND MOTION TO STRIKE ARTICLE VII though so much as would be admis- sible upon any one of the charges The respondent, Halsted L. Ritter, might not have persuaded them of moves the honorable Senate, sitting as the accused’s guilt, the sum of it will a Court of Impeachment, for an order convince them as to all. striking and dismissing article I of the It is thus not enough protection for articles of impeachment, or, in the al- an accused that the Senate may choose ternative, to require the honorable to vote separately upon each section of managers on the part of the House of an omnibus article of impeachment: Representatives to elect as to whether the prejudicial effect of grouping a di- they will proceed upon article I or verse mass of factual material under one heading, some of it adduced to printed in the Record at 120 CONG. prove one proposition and another to REC. 29332–34, 93d Cong. 2d Sess., prove a proposition entirely unrelated, Aug. 20, 1974. would still remain.(12) 13. 80 CONG. REC. 4898, 74th Cong. 2d Sess. The motion was submitted on 12. H. REPT. NO. 93–1305, at pp. 427– Mar. 31, 1936, 80 CONG. REC. 4656, 431, Committee on the Judiciary, 4657, and reserved for decision.

1976 IMPEACHMENT POWERS Ch. 14 § 3 upon article II, and for grounds of such should be required to abide by the motion respondent says: judgment of the Senate rendered upon 1. Article II reiterates and embraces such prior articles and the Senate all the charges and allegations of arti- ought not to countenance the arrange- cle I, and the respondent is thus and ment of pleading designed to procure a thereby twice charged in separate arti- second vote and the collection or accu- mulation of adverse votes, if any, upon cles with the same and identical of- such matters. fense, and twice required to defend 3. The presentation in article VII of against the charge presented in article more than one subject and the charges I. arising out of a single subject is unjust 2. The presentation of the same and and prejudicial to respondent. identical charge in the two articles in 4. In fairness and justice to respond- question tends to prejudice the re- ent, the Court ought to require separa- spondent in his defense, and tends to tion and singleness of the subject mat- oppress the respondent in that the ar- ter of the charges in separate and dis- ticles are so framed as to collect, or ac- tinct articles, upon which a single and cumulate upon the second article, the final vote of the Senate upon each arti- adverse votes, if any, upon the first ar- cle and charge can be had. ticle. FRANK P. WALSH, CARL T. HOFFMAN, 3. The Constitution of the United Of Counsel for Respondent. States contemplates but one vote of the Senate upon the charge contained in Presiding Officer Nathan L. each article of impeachment, whereas Bachman, of Tennessee, overruled articles I and II are constructed and that part of the motion to strike arranged in such form and manner as relating to Articles I and II, find- to require and exact of the Senate a ing that those articles presented second vote upon the subject matter of distinct and different bases for im- article I. peachment. This ruling was sus- MOTION TO STRIKE ARTICLE VII tained. With respect to the appli- cation of the motion to Article VII, And the respondent further moves the honorable Senate, sitting as a the Presiding Officer submitted Court of Impeachment, for an order the question of duplication to the striking and dismissing article VII, Court of Impeachment for a deci- and for grounds of such motion, re- sion. The motion to strike Article spondent says: VII was overruled on a voice 1. Article VII includes and embraces vote.(14) all the charges set forth in articles I, II, III, IV, V, and VI. § 3.5 During the Ritter im- 2. Article VII constitutes an accumu- peachment trial in the Sen- lation and massing of all charges in preceding articles upon which the 14. For a summary of the arguments by Court is to pass judgment prior to the counsel on the motions, and citations vote on article VII, and the prosecution thereto, see § 18.12, infra.

1977 Ch. 14 § 3 DESCHLER’S PRECEDENTS

ate, the President pro tem- THE PRESIDENT PRO TEMPORE: A pore overruled a point of point of order is made as to article VII, in which the respondent is charged order against a vote of con- with general misbehavior. It is a sepa- viction on the seventh arti- rate charge from any other charge, and cle, where the point of order the point of order is overruled.(15) was based on an accumula- tion or combination of facts Use of Historical Precedents and circumstances. § 3.6 With respect to the con- On Apr. 17, 1936, President pro duct of President Richard tempore Key Pittman, of Nevada, Nixon, the impeachment in- stated that the Senate had by a quiry staff of the Committee two-thirds vote adjudged the re- on the Judiciary reported to spondent Judge Halsted L. Ritter the committee on ‘‘Constitu- guilty as charged in Article VII of tional Grounds for Presi- the articles of impeachment. He dential Impeachment,’’ which over-ruled a point of order against included references to the the vote, as follows: value of historical prece- MR. [WARREN R.] AUSTIN [of dents. Vermont]: The first reason for the point of order is that here is a com- During an inquiry into impeach- bination of facts in the indictment, the able offenses against President ingredients of which are the several ar- Nixon in the 93d Congress by the ticles which precede article VII, as Committee on the Judiciary, the seen by paragraph marked 4 on page committee’s impeachment inquiry 36. The second reason is contained in staff reported to the committee on the Constitution of the United States, which provides that no person shall be grounds for impeachment of the convicted without the concurrence of President. The report discussed in two-thirds of the members present. detail the historical bases and ori- The third reason is that this matter gins, in both English parliamen- has been passed upon judicially, and it tary practice and in the practice of has been held that an attempt to con- the U.S. Congress, of the impeach- vict upon a combination of circumstances—— ment power, and drew conclusions MR. [GEORGE] MCGILL, [of Kansas]: as to the grounds for impeach- Mr. President, a parliamentary in- ment of the President and of other quiry. federal civil officers from the his- MR. AUSTIN: Of which the respond- tory of impeachment proceedings ent has been found innocent would be monstrous. I refer to the case of An- 15. 80 CONG. REC. 5606, 74th Cong. 2d drews v. King (77 Maine, 235).... Sess.

1978 IMPEACHMENT POWERS Ch. 14 § 3 and from the history of the U.S. [ARTICLE I] (16) Constitution. CONCLUSION Grounds for Presidential Im- After the Committee on the Judici- peachment ary had debated whether or not it should recommend Article I to the House of Representatives, 27 of the 38 § 3.7 The Committee on the Ju- Members of the Committee found that diciary concluded, in recom- the evidence before it could only lead mending articles impeaching to one conclusion; that Richard M. President Richard Nixon to Nixon, using the powers of his high of- the House, that the President fice, engaged, personally and through could be impeached not only his subordinates and agents, in a course of conduct or plan designed to for violations of federal delay, impede, and obstruct the inves- criminal statutes, but also tigation of the unlawful entry, on June for (1) serious abuse of the 17, 1972, into the headquarters of the powers of his office, and (2) Democratic National Committee; to refusal to comply with prop- cover up, conceal and protect those re- sponsible; and to conceal the existence er subpoenas of the com- and scope of other unlawful covert ac- mittee for evidence relevant tivities. to its impeachment inquiry. This finding is the only one that can In its final report to the House explain the President’s involvement in a pattern of undisputed acts that oc- pursuant to its impeachment in- curred after the break-in and that can- quiry into the conduct of Presi- not otherwise be rationally explained. dent Nixon in the 93d Congress, ... the Committee on the Judiciary President Nixon’s course of conduct set forth the following conclusions following the Watergate break-in, as (footnotes omitted) on the three described in Article I, caused action not only by his subordinates but by the articles of impeachment adopted agencies of the United States, includ- by the committee and included in ing the Department of Justice, the its report:(17) FBI, and the CIA. It required perjury, destruction of evidence, obstruction of 16. The report is printed in full in the justice, all crimes. But, most impor- appendix to this chapter, infra. The tant, it required deliberate, contrived, staff report was printed as a com- and continuing deception of the Amer- mittee print, and the House author- ican people. ized on June 6, 1974, the printing of 3,000 additional copies thereof. H. See the articles and conclusions Res. 935, 93d Cong. 2d Sess. printed in the Record in full at 120 17. H. REPT. No. 93–1305, at pp. 133 et CONG. REC. 29219–79, 93d Cong. 2d seq., Committee on the Judiciary. Sess., Aug. 20, 1974.

1979 Ch. 14 § 3 DESCHLER’S PRECEDENTS

President Nixon’s actions resulted in 1972, Richard M. Nixon, acting person- manifest injury to the confidence of the ally and through his subordinates and nation and great prejudice to the cause agents, made it his plan to and did di- of law and justice, and was subversive rect his subordinates to engage in a of constitutional government. His ac- course of conduct designed to delay, tions were contrary to his trust as impede and obstruct investigation of President and unmindful of the solemn the unlawful entry of the headquarters duties of his high office. It was this se- of the Democratic National Committee; rious violation of Richard M. Nixon’s to cover up, conceal and protect those constitutional obligations as President, responsible; and to conceal the exist- and not the fact that violations of Fed- ence and scope of other unlawful covert eral criminal statutes occurred, that activities. . . . lies at the heart of Article I. [ARTICLE II] The Committee finds, based upon clear and convincing evidence, that CONCLUSION this conduct, detailed in the foregoing In recommending Article II to the pages of this report, constitutes ‘‘high House, the Committee finds clear and crimes and misdemeanors’’ as that convincing evidence that Richard M. term is used in Article II, Section 4 of Nixon, contrary to his trust as Presi- the Constitution. Therefore, the Com- dent and unmindful of the solemn du- mittee recommends that the House of ties of his high office, has repeatedly Representatives exercise its constitu- used his power as President to violate tional power to impeach Richard M. the Constitution and the law of the Nixon. land. On August 5, 1974, nine days after In so doing, he has failed in the obli- the Committee had voted on Article I, gation that every citizen has to live President Nixon released to the public under the law. But he has done more, and submitted to the Committee on the for it is the duty of the President not Judiciary three additional edited White merely to live by that law but to see House transcripts of Presidential con- that law faithfully applied. Richard M. versations that took place on June 23, Nixon has repeatedly and willfully 1972, six days following the DNC failed to perform that duty. He has break-in. Judge Sirica had that day re- failed to perform it by authorizing and leased to the Special Prosecutor tran- directing actions that violated or dis- scripts of those conversations pursuant regarded the rights of citizens and that to the mandate of the United States corrupted and attempted to corrupt the Supreme Court. The Committee had lawful functioning of executive agen- subpoenaed the tape recordings of cies. He has failed to perform it by those conversations, but the President condoning and ratifying, rather than had refused to honor the subpoena. acting to stop, actions by his subordi- These transcripts conclusively con- nates that interfered with lawful inves- firm the finding that the Committee tigations and impeded the enforcement had already made, on the basis of clear of the laws. and convincing evidence, that from Article II, section 3 of the Constitu- shortly after the break-in on June 17, tion requires that the President ‘‘shall

1980 IMPEACHMENT POWERS Ch. 14 § 3 take Care that the Laws be faithfully of the government, from the highest executed.’’ Justice Felix Frankfurter to the lowest, are creatures of the described this provision as ‘‘the em- law, and are bound to obey it. bracing function of the President’’; It is the only supreme power in our system of government, and every President Benjamin Harrison called it man who by accepting office partici- ‘‘the central idea of the office.’’ ‘‘[I]n a pates in its functions is only the republic,’’ Harrison wrote, ‘‘the thing to more strongly bound to submit to be executed is the law, not the will of that supremacy, and to observe the the ruler as in despotic governments. limitations upon the exercise of the The President cannot go beyond the authority which it gives. law, and he cannot stop short of it.’’ Our nation owes its strength, its sta- The conduct of Richard M. Nixon has bility, and its endurance to this prin- constituted a repeated and continuing ciple. abuse of the powers of the Presidency In asserting the supremacy of the in disregard of the fundamental prin- rule of law among the principles of our ciple of the rule of law in our system government, the Committee is enun- of government. This abuse of the pow- ciating no new standard of Presidential ers of the President was carried out by conduct. The possibility that Presi- Richard M. Nixon, acting personally dents have violated this standard in and through his subordinates, for his the past does not diminish its cur- own political advantage, not for any le- rent—and future—applicability. Re- gitimate governmental purpose and peated abuse of power by one who without due consideration for the na- holds the highest public office requires tional good. prompt and decisive remedial action, The rule of law needs no defense by for it is in the nature of abuses of the Committee. Reverence for the laws, power that if they go unchecked they said Abraham Lincoln, should ‘‘become will become overbearing, depriving the the political religion of the nation.’’ people and their representatives of the Said Theodore Roosevelt, ‘‘No man is strength of will or the wherewithal to above the law and no man is below it; nor do we ask any man’s permission resist. when we require him to obey it.’’ Our Constitution provides for a re- It is a basic principle of our govern- sponsible Chief Executive, accountable ment that ‘‘we submit ourselves to rul- for his acts. The framers hoped, in the ers only if [they are] under rules.’’ ‘‘De- words of Elbridge Gerry, that ‘‘the cency, security, and liberty alike de- maxim would never be adopted here mand that government officials shall that the chief Magistrate could do no be subjected to the same rules of con- wrong.’’ They provided for a single ex- duct that are commands to the citizen,’’ ecutive because, as Alexander Ham- wrote Justice Louis Brandeis. The Su- ilton wrote, ‘‘the executive power is preme Court has said: more easily confined when it is one’’ and ‘‘there should be a single object for No man in this country is so high that he is above the law. No officer the . . . watchfulness of the people.’’ of the law may set that law at defi- The President, said James Wilson, ance with impunity. All the officers one of the principal authors of the Con-

1981 Ch. 14 § 3 DESCHLER’S PRECEDENTS

stitution, ‘‘is the dignified, but account- lic office in the land in air of secrecy able magistrate of a free and great and concealment. people.’’ Wilson said, ‘‘The executive The abuse of a President’s powers power is better to be trusted when it poses a serious threat to the lawful has no screen. . . . [W]e have a re- and proper functioning of the govern- sponsibility in the person of our Presi- ment and the people’s confidence in it. dent . . . he cannot roll upon any For just such Presidential misconduct other person the weight of his crimi- the impeachment power was included nality. . . .’’ As both Wilson and Ham- in the Constitution. The impeachment ilton pointed out, the President should provision, wrote Justice Joseph Story not be able to hide behind his coun- in 1833, ‘‘holds out a deep and imme- sellors; he must ultimately be account- diate responsibility, as a check upon able for their acts on his behalf. James arbitrary power; and compels the chief Iredell of North Carolina, a leading magistrate, as well as the humblest proponent of the proposed Constitution citizen, to bend to the majesty of the and later a Supreme Court Justice, law.’’ And Chancellor James Kent said that the President ‘‘is of a very wrote in 1826: different nature from a monarch. He is If . . . neither the sense of duty, to be . . . personally responsible for the force of public opinion, nor the any abuse of the great trust reposed in transitory nature of the seat, are suf- him.’’ ficient to secure a faithful exercise of the executive trust, but the Presi- In considering this Article the Com- dent will use the authority of his sta- mittee has relied on evidence of acts tion to violate the Constitution or directly attributable to Richard M. law of the land, the House of Rep- Nixon himself. He has repeatedly at- resentatives can arrest him in his tempted to conceal his accountability career, by resorting to the power of for these acts and attempted to deceive impeachment. and mislead the American people The Committee has concluded that, about his own responsibility. He gov- to perform its constitutional duty, it erned behind closed doors, directing must approve this Article of Impeach- the operation of the executive branch ment and recommend it to the House. through close subordinates, and sought If we had been unwilling to carry out to conceal his knowledge of what they the principle that all those who govern, did illegally on his behalf. Although including ourselves, are accountable to the Committee finds it unnecessary in the law and the Constitution, we this case to take any position on would have failed in our responsibility whether the President should be held as representatives of the people, elect- accountable, through exercise of the ed under the Constitution. If we had power of impeachment, for the actions not been prepared to apply the prin- of his immediate subordinates, under- ciple of Presidential accountability em- taken on his behalf, when his personal bodied in the impeachment clause of authorization and knowledge of them the Constitution, but had instead con- cannot be proved, it is appropriate to doned the conduct of Richard M. call attention to the dangers inherent Nixon, then another President, per- in the performance of the highest pub- haps with a different political philos-

1982 IMPEACHMENT POWERS Ch. 14 § 3 ophy, might have used this illegitimate peachment by the House, and that it power for further encroachments on requires that he be put to trial in the the rights of citizens and further Senate. . . . usurpations of the power of other branches of our government. By adopt- [ARTICLE III] ing this Article, the Committee seeks CONCLUSION to prevent the recurrence of any such abuse of Presidential power. The undisputed facts, historic prece- In recommending Article II to the dent, and applicable legal principles House, the Committee finds clear and support the Committee’s recommenda- convincing evidence that Richard M. tion of Article III. There can be no Nixon has not faithfully executed the question that in refusing to comply executive trust, but has repeatedly with limited, narrowly drawn sub- used his authority as President to vio- poenas—issued only after the Com- late the Constitution and the law of mittee was satisfied that there was the land. In so doing, he violated the other evidence pointing to the exist- obligation that every citizen has to live ence of impeachable offenses—the under the law. But he did more, for it President interfered with the exercise is the duty of the President not merely of the House’s function as the ‘‘Grand to live by the law but to see that law Inquest of the Nation.’’ Unless the defi- faithfully applied. Richard M. Nixon ance of the Committee’s subpoenas repeatedly and willfully failed to per- under these circumstances is consid- form that duty. He failed to perform it ered grounds for impeachment, it is by authorizing and directing actions difficult to conceive of any President that violated the rights of citizens and acknowledging that he is obligated to that interfered with the functioning of supply the relevant evidence necessary executive agencies. And he failed to for Congress to exercise its constitu- perform it by condoning and ratifying, tional responsibility in an impeach- rather than acting to stop, actions by ment proceeding. If this were to occur, his subordinates interfering with the the impeachment power would be enforcement of the laws. drained of its vitality. Article III, The Committee finds that, in the therefore, seeks to preserve the integ- performance of his duties as President, rity of the impeachment process itself Richard M. Nixon on many occasions and the ability of Congress to act as has acted to the detriment of justice, the ultimate safeguard against im- right, and the public good, in violation proper presidential conduct.(18) of his constitutional duty to see to the faithful execution of the laws. This 18. H. REPT. NO. 93–1305, at p. 213, conduct has demonstrated a contempt Committee on the Judiciary. See 120 for the rule of law; it has posed a CONG. REC. 29279, 93d Cong. 2d threat to our democratic republic. The Sess., Aug. 20, 1974. Committee finds that this conduct con- See also, for the subpena power of stitutes ‘‘high crimes and mis- a committee conducting an impeach- demeanors’’ within the meaning of the ment investigation, § 6, infra. The Constitution, that it warrants his im- House has declined to prosecute for

1983 Ch. 14 § 3 DESCHLER’S PRECEDENTS

§ 3.8 In the report of the Com- The offenses for which a President may mittee on the Judiciary rec- be impeached are limited to those enu- merated in the Constitution, namely ommending the impeach- ‘‘Treason, Bribery, or other high ment of President Richard Crimes and Misdemeanors.’’ We do not Nixon, the minority took the believe that a President or any other view that grounds for Presi- civil officer of the United States gov- dential impeachment must ernment may constitutionally be im- peached and convicted for errors in the be criminal conduct or acts administration of his office. with criminal intent. 1. ADOPTION OF ‘‘TREASON, BRIBERY, OR On Aug. 20, 1974, the Com- OTHER HIGH CRIMES AND MIS- mittee on the Judiciary submitted DEMEANORS’’ AT CONSTITUTIONAL a report recommending the im- CONVENTION peachment of President Nixon. In The original version of the impeach- the minority views set out below ment clause at the Constitutional Con- (footnotes omitted), Messrs. vention of 1787 had made ‘‘malpractice Hutchinson, Smith, Sandman, or neglect of duty’’ the grounds for im- Wiggins, Dennis, Mayne, Lott, peachment. On July 20, 1787, the Moorhead, Maraziti, and Latta Framers debated whether to retain discussed the grounds for presi- this clause, and decided to do so. (19) Gouverneur Morris, who had moved dential impeachment: to strike the impeachment clause alto- B. MEANING OF ‘‘TREASON, BRIBERY OR gether, began by arguing that it was OTHER HIGH CRIMES AND MIS- unnecessary because the executive DEMEANORS’’ ‘‘can do no criminal act without Coad- jutors who may be punished.’’ George The Constitution of the United Mason disagreed, arguing that ‘‘When States provides that the President great crimes were committed he [fa- ‘‘shall be removed from Office on Im- vored] punishing the principal as well peachment for, and Conviction of, as the Coadjutors.’’ Fearing recourse to Treason, Bribery, or other high Crimes assassinations, Benjamin Franklin fa- and Misdemeanors.’’ Upon impeach- vored impeachment ‘‘to provide in the ment and conviction, removal of the Constitution for the regular punish- President from office is mandatory. ment of the executive when his mis- conduct should deserve it, and for his contempt of Congress officers honorable acquittal when he should be charged with impeachable offenses unjustly accused.’’ Gouverneur Morris and refusing to comply with sub- then admitted that ‘‘corruption & some penas (see § 6.12, infra). few other offenses’’ should be impeach- 19. H. REPT. NO. 93–1305, at pp. able, but thought ‘‘the case ought to be 362372, Committee on the Judiciary, enumerated & defined.’’ printed at 120 CONG. REC. 29312–15, Rufus King, a co-sponsor of the mo- 93d Cong. 2d Sess., Aug. 20, 1974. tion to strike the impeachment clause,

1984 IMPEACHMENT POWERS Ch. 14 § 3 pointed out that the executive, unlike rupting his electors, and incapacity the judiciary, did not hold his office were other causes of impeachment. during good behavior, but during a For the latter he should be punished not as a man, but as an officer, and fixed, elective term; and accordingly punished only by degradation from ought not to be impeachable, like the his office. . . . When we make him judiciary, for ‘‘misbehaviour:’’ this amenable to Justice however we would be ‘‘destructive of his independ- should take care to provide some ence and of the principles of the Con- mode that will not make him de- stitution.’’ Edmund Randolph, how- pendent on the Legislature. ever, made a strong statement in favor On the question, ‘‘Shall the Execu- of retaining the impeachment clause: tive be removable on impeachments,’’ Guilt wherever found ought to be the proposition then carried by a vote punished. The Executive will have of eight states to two. great opportunitys of abusing his A review of this debate hardly leaves power, particularly in time of war the impression that the Framers in- when the military force, and in some tended the grounds for impeachment to respects the public money will be in be left to the discretion, even the his hands. ‘‘sound’’ discretion, of the legislature. . . . He is aware of the necessity On a fair reading, Madison’s notes re- of proceeding with a cautious hand, veal the Framers’ fear that the im- and of excluding as much as possible peachment power would render the ex- the influence of the Legislature from ecutive dependent on the legislature. the business. He suggested for con- The concrete examples used in the de- sideration . . . requiring some pre- bate all refer not only to crimes, but to liminary inquest of whether just grounds for impeachment existed. extremely grave crimes. George Mason mentioned the possibility that the Benjamin Franklin again suggested President would corrupt his own elec- the role of impeachments in releasing tors and then ‘‘repeat his guilt,’’ and tensions, using an example from inter- described grounds for impeachment as national affairs involving a secret plot ‘‘the most extensive injustice.’’ Frank- to cause the failure of a rendezvous be- lin alluded to the beheading of Charles tween the French and Dutch fleets—an I, the possibility of assassination, and example suggestive of treason. the example of the French and Dutch Gouverneur Morris, his opinion now fleets, which connoted betrayal of a na- changed by the discussion, closed the tional interest. Madison mentioned the debate on a note echoing the position ‘‘perversion’’ of an ‘‘administration into of Randolph: a scheme of peculation or oppression,’’ Our Executive . . . may be bribed or the ‘‘betrayal’’ of the executive’s by a greater interest to betray his ‘‘trust to foreign powers.’’ Edmund trust; and no one would say that we Randolph mentioned the great oppor- ought to expose ourselves to the dan- tunities for abuse of the executive ger of seeing the first Magistrate in power, ‘‘particularly in time of war foreign pay without being able to guard agst. it by displacing him. . . . when the military force, and in some The Executive ought therefore to be respects the public money will be in impeachable for treachery; Cor- his hands.’’ He cautioned against ‘‘tu-

1985 Ch. 14 § 3 DESCHLER’S PRECEDENTS

mults & insurrections.’’ Gouveneur a significant purpose of impeachment. Morris similarly contemplated that the The changes in language made by the executive might corrupt his own elec- Committee on Detail can be taken to tors, or ‘‘be bribed by a greater interest reflect a consensus of the debate that to betray his trust’’—just as the King (1) impeachment would be the proper of England had been bribed by Louis remedy where grave crimes had been XIV—and felt he should therefore be committed, and (2) adherence to this impeachable for ‘‘treachery.’’ standard would satisfy the widely rec- After the July 20 vote to retain the ognized need for a check on potential impeachment clause, the resolution excesses of the impeachment power containing it was referred to the Com- itself. mittee on Detail, which substituted The impeachment clause, as amend- ‘‘treason, bribery or corruption’’ for ed by the Committee on Detail to refer ‘‘malpractice or neglect of duty.’’ No to ‘‘treason, bribery or corruption,’’ was surviving records explain the reasons reported to the full Convention on Au- for the change, but they are not dif- gust 6, 1787, as part of the draft con- ficult to understand, in light of the stitution. Together with other sections, floor discussion just summarized. The it was referred to the Committee of change fairly captured the sense of the Eleven on August 31. This Committee July 20 debate, in which the grounds further narrowed the grounds to ‘‘trea- for impeachment seem to have been son or bribery,’’ while at the same time such acts as would either cause danger substituting trial by the Senate for to the very existence of the United trial by the Supreme Court, and re- States, or involve the purchase and quiring a two-thirds vote to convict. No sale of the ‘‘Chief of Magistracy,’’ which surviving records explain the purpose would tend to the same result. It is not of this change. The mention of ‘‘corrup- a fair summary of this debate—which tion’’ may have been thought redun- is the only surviving discussion of any dant, in view of the provision for brib- length by the Framers as to the ery. Or, corruption might have been re- grounds for impeachment—to say that garded by the Committee as too broad, the Framers were principally con- because not a well-defined crime. In cerned with reaching a course of con- any case, the change limited the duct whether or not criminal, generally grounds for impeachment to two clear- inconsistent with the proper and effec- tive exercise of the office of the presi- ly understood and enumerated crimes. dency. They were concerned with pre- The revised clause, containing the serving the government from being grounds ‘‘treason and bribery,’’ came overthrown by the treachery or corrup- before the full body again on Sep- tion of one man. Even in the context of tember 8, late in the Convention. that purpose, they steadfastly reiter- George Mason moved to add to the ated the importance of putting a check enumerated grounds for impeachment. on the legislature’s use of power and Madison’s Journal reflects the fol- refused to expand the narrow defini- lowing exchange: tion they had given to treason in the COL. MASON. Why is the provision Constitution. They saw punishment as restrained to Treason & bribery

1986 IMPEACHMENT POWERS Ch. 14 § 3

only? Treason as defined in the Con- lished by the Constitution. Absent the stitution will not reach many great element of danger to the State, we be- and dangerous offenses. Hastings is lieve the Delegates to the Federal Con- not guilty of Treason. Attempts to subvert the Constitution may not be vention of 1787, in providing that the Treason as above defined—as bills of President should serve for a fixed elec- attainder which have saved the Brit- tive term rather than during good be- ish Constitution are forbidden, it is havior or popularity, struck the bal- the more necessary to extend: the ance in favor of stability in the execu- power of impeachments. He movd. to add after ‘‘bribery’’ ‘‘or maladmin- tive branch. We have never had a Brit- istration.’’ Mr. Gerry seconded him— ish parliamentary system in this coun- MR. MADISON. So vague a term try, and we have never adopted the de- will be equivalent to a tenure during vice of a parliamentary vote of no-con- pleasure of the Senate. fidence in the chief executive. If it is MR. GOVR. MORRIS., it will not be thought desirable to adopt such a sys- put in force & can do no harm—An election of every four years will pre- tem of government, the proper way to vent maladministration. do so is by amending our written Con- Col. Mason withdrew ‘‘maladmin- stitution—not by removing the Presi- istration’’ & substitutes ‘‘other high dent. crimes and misdemeanors’’ agst. the State. 2. ARE ‘‘HIGH CRIMES AND MISDEMEANORS’’ NON-CRIMINAL? On the question thus altered, the motion of Colonel Mason passed by a a. Language of the Constitution vote of eight states to three. The language of the Constitution in- Madison’s notes reveal no debate as dicates that impeachment can lie only to the meaning of the phrase ‘‘other for serious criminal offenses. high Crimes and Misdemeanors.’’ All First, of course, treason and bribery that appears is that Mason was con- were indictable offenses in 1787, as cerned with the narrowness of the defi- they are now. The words ‘‘crime’’ and nition of treason; that his purpose in proposing ‘‘maladministration’’ was to ‘‘misdemeanor’’, as well, both had an reach great and dangerous offenses; accepted meaning in the English law of and that Madison felt that ‘‘maladmin- the day, and referred to criminal acts. istration,’’ which was included as a Sir William Blackstone’s Commentaries ground for impeachment of public offi- on the Laws of England, (1771), which cials in the constitutions of six states, enjoyed a wide circulation in the Amer- including his own, would be too ican colonies, defined the terms as fol- ‘‘vague’’ and would imperil the inde- lows: pendence of the President. I. A crime, or misdemeanor is an It is our judgment, based upon this act committed, or omitted, in viola- constitutional history, that the Fram- tion of a public law, either forbidding ers of the United States Constitution or commanding it. This general defi- nition comprehends both crimes and intended that the President should be misdemeanors; which, properly removable by the legislative branch speaking, are mere synonymous only for serious misconduct dangerous terms: though, in common usage, the to the system of government estab- word ‘‘crimes’’ is made to denote

1987 Ch. 14 § 3 DESCHLER’S PRECEDENTS

such offenses as are of a deeper and all Crimes is by Jury, ‘‘except in cases more atrocious dye; while smaller of Impeachment.’’ The President is faults, and omissions of less con- given power to grant ‘‘Pardons for Of- sequence, are comprised under the gentler name of ‘‘misdemeanors’’ fenses against the United States, ex- only. cept in Cases of Impeachment.’’ This constitutional usage, in its to- Thus, it appears that the word ‘‘mis- tality, strengthens the notion that the demeanor’’ was used at the time Black- words ‘‘Crime’’ and ‘‘Misdemeanor’’ in stone wrote, as it is today, to refer to the impeachment clause are to be un- less serious crimes. derstood in their ordinary sense, i.e., Second, the use of the word ‘‘other’’ as importing criminality. At the very in the phrase ‘‘Treason, Bribery or least, this terminology strongly sug- other high Crimes and Misdemeanors’’ gests the criminal or quasi-criminal seems to indicate that high Crimes and nature of the impeachment process. Misdemeanors had something in com- b. English impeachment practice mon with Treason and Bribery—both of which are, of course, serious crimi- It is sometimes argued that officers nal offenses threatening the integrity may be impeached for non-criminal of government. conduct, because the origins of im- peachment in England in the four- Third, the extradition clause of the teenth and seventeenth centuries show Articles of Confederation (1781), the that the procedure was not limited to governing instrument of the United criminal conduct in that country. States prior to the adoption of the Con- stitution, had provided for extradition Early English impeachment practice, from one state to another of any per- however, often involved a straight son charged with ‘‘treason, felony or power struggle between the Parliament other high misdemeanor.’’ If ‘‘high mis- and the King. After parliamentary su- demeanor’’ had something in common premacy had been established, the with treason and felony in this clause, practice was not so open-ended as it so as to warrant the use of the word had been previously. Blackstone wrote ‘‘other,’’ it is hard to see what it could (between 1765 and 1769) that have been except that all were re- [A]n impeachment before the garded as serious crimes. Certainly it Lords by the commons of Great Brit- would not have been contemplated that ain, in parliament, is a prosecution a person could be extradited for an of- of the already known and established law. . . . fense which was non-criminal. Finally, the references to impeach- The development of English im- ment in the Constitution use the lan- peachment practice in the eighteenth guage of the criminal law. Removal century is illustrated by the result of from office follows ‘‘conviction,’’ when the first major nineteenth century im- the Senate has ‘‘tried’’ the impeach- peachment in that country—that of ment. The party convicted is ‘‘never- Lord Melville, Treasurer of the Navy, theless . . . liable and subject to In- in 1805–1806. Melville was charged dictment, Trial, Judgment and Punish- with wrongful use of public moneys. ment, according to Law.’’ The trial of Before passing judgment, the House of

1988 IMPEACHMENT POWERS Ch. 14 § 3

Lords requested the formal opinion of of parliamentary uses of the impeach- the judges upon the following question: ment power, cut back on that power in Whether it was lawful for the several respects in adapting it to an Treasurer of the Navy, before the American context. Congressional bills passing of the Act 25 Geo. 3rd, c. 31, of attainder and ex post facto laws, to apply any sum of money which had supplemented the impeach- [imprested] to him for navy ment power in England, were ex- [sumpsimus] services to any other pressly forbidden. Treason was defined use whatsoever, public or private, without express authority for so in the Constitution—and defined nar- doing; and whether such application rowly—so that Congress acting alone by such treasurer would have been a could not change the definition, as Par- misdemeanor, or punishable by infor- liament had been able to do. The con- mation or indictment? sequences of impeachment and convic- The judges replied: tion, which in England had frequently meant death, were limited to removal It was not unlawful for the Treas- urer of the Navy before the Act 25 from office and disqualification to hold Geo. 3rd, c. 31 . . . to apply any sum further federal office. Whereas a ma- of money impressed to him for navy jority vote of the Lords had sufficed for services, to other uses . . . without conviction, in America a two-thirds express authority for so doing, so as vote of the Senate would be required. to constitute a misdemeanor punish- Whereas Parliament had had the able by information or indictment. power to impeach private citizens, the Upon this ruling by the judges that American procedure could be directed Melville had committed no crime, he only against civil officers of the na- was acquitted. The case thus strongly tional government. The grounds for im- suggests that the Lords in 1805 be- peachment—unlike the grounds for im- lieved an impeachment conviction to peachment in England—were stated in require a ‘‘misdemeanor punishable by the Constitution. information or indictment.’’ The case In the light of these modifications, it may be taken to cast doubt on the vi- is misreading history to say that the tality of precedents from an earlier, Framers intended, by the mere ap- more turbid political era and to point proval of Mason’s substitute amend- the way to the Framers’ conception of ment, to adopt in toto the British a valid exercise of the impeachment grounds for impeachment. Having power in the future. As a matter of pol- carefully narrowed the definition of icy, as well, it is an appropriate prece- treason, for example, they could scarce- dent to follow in the latter twentieth ly have intended that British treason century. precedents would guide ours. The argument that the President c. American impeachment practice should be impeachable for general mis- behavior, because some English im- The impeachment of President An- peachments do not appear to have in- drew Johnson is the most important volved criminal charges, also takes too precedent for a consideration of what little account of the historical fact that constitutes grounds for impeachment the Framers, mindful of the turbulence of a President, even if it has been his-

1989 Ch. 14 § 3 DESCHLER’S PRECEDENTS

torically regarded (and probably fairly . . . Judge him politically, we so) as an excessively partisan exercise must condemn him. But the day of of the impeachment power. political impeachments would be a sad one for this country. Political The Johnson impeachment was the unfitness and incapacity must be product of a fundamental and bitter tried at the ballot-box, not in the split between the President and the high court of impeachment. A con- Congress as to Reconstruction policy in trary rule might leave to Congress the Southern states following the Civil but little time for other business than the trial of impeachments. War. Johnson’s vetoes of legislation, . . . [C]rimes and misdemeanors his use of pardons, and his choice of are now demanding our attention. appointees in the South all made it im- Do these, within the meaning of the possible for the Reconstruction Acts to Constitution, appear? Rest the case be enforced in the manner which Con- upon political offenses, and we are gress not only desired, but thought ur- prepared to pronounce against the President, for such offenses are nu- gently necessary. merous and grave . . . [yet] we still On March 7, 1867, the House re- affirm that the conclusion at which ferred to the Judiciary Committee a we have arrived is correct. resolution authorizing it The resolution recommending im- to inquire into the official conduct of peachment was debated in the House Andrew Johnson . . . and to report on December 5 and 6, 1867, Rep. to this House whether, in their opin- George S. Boutwell of Massachusetts ion, the said Andrew Johnson, while speaking for the Committee majority in said office, has been guilty of acts which were designed or calculated to in favor of impeachment, and Rep. Wil- overthrow or corrupt the government son speaking in the negative. Aside of the United States . . . and wheth- from characterization of undisputed er the said Andrew Johnson has facts discovered by the Committee, the been guilty of any act, or has con- only point debated was whether the spired with others to do acts, which, commission of a crime was an essential in contemplation of the Constitution, element of impeachable conduct by the are high crimes and misdemeanors, requiring the interposition of the President. Rep. Boutwell began by say- constitutional powers of this House. ing, ‘‘If the theory of the law submitted by the minority of the committee be in On November 25, 1867, the Com- the judgment of this House a true the- mittee reported to the full House a res- ory, then the majority have no case olution recommending impeachment, whatsoever.’’ ‘‘The country was dis- by a vote of 5 to 4. A minority of the appointed, no doubt, in the report of Committee, led by Rep. James F. Wil- the committee,’’ he continued, ‘‘and son of Iowa, took the position that very likely this House participated in there could be no impeachment be- the disappointment, that there was no cause the President had committed no specific, heinous, novel offense charged crime: upon and proved against the President In approaching a conclusion, we do of the United States.’’ And again, ‘‘It not fail to recognize two standpoints may not be possible, by specific charge, from which this case can be to arraign him for this great crime, but viewed—the legal and the political. is he therefore to escape?’’

1990 IMPEACHMENT POWERS Ch. 14 § 3

The House of Representatives an- to his removal of Secretary Stanton, al- swered this question the next day, legedly in deliberate violation of the when the majority resolution recom- Tenure-of-Office Act, the Constitution, mending, impeachment was defeated and certain other related statutes. The by a vote of 57 to 108. The issue of im- vote had failed less than three months peachment was thus laid to rest for the before; and except for Stanton’s re- time being. moval and related matters, nothing in Earlier in 1867, the Congress had the new Articles charged Johnson with passed the Tenure-of-Office Act, which any act committed subsequent to the took away the President’s authority to previous vote. remove members of his own Cabinet, The only other case of impeachment and provided that violation of the Act of an officer of the executive branch is should be punishable by imprisonment that of Secretary of War William W. of up to five years and a fine of up to Belknap in 1876. All five articles al- ten thousand dollars and ‘‘shall be leged that Belknap ‘‘corruptly’’ accept- deemed a high misdemeanor’’—fair no- ed and received considerable sums of tice that Congress would consider vio- money in exchange for exercising his lation of the statute an impeachable, authority to appoint a certain person as well as a criminal, offense. It was as a military post trader. The facts al- generally known that Johnson’s policy leged would have sufficed to constitute toward Reconstruction was not shared the crime of bribery. Belknap resigned by his Secretary of War, Edwin M. before the adoption of the Articles and Stanton. Although Johnson believed was subsequently indicted for the con- the Tenure-of-Office Act to be unconsti- duct alleged. tutional, he had not infringed its provi- It may be acknowledged that in the sions at the time the 1867 impeach- impeachment of federal judges, as op- ment attempt against him failed by posed to executive officers, the actual such a decisive margin. commission of a crime does not appear Two and a half months later, how- always to have been thought essential. ever, Johnson removed Stanton from However, the debates in the House and office, in apparent disregard of the opinions filed by Senators have made Tenure-of-Office Act. The response of it clear that in the impeachments of Congress was immediate: Johnson was federal judges, Congress has placed impeached three days later, on Feb- great reliance upon the ‘‘good behavior’’ ruary 24, 1868, by a vote of 128 to clause. The distinction between officers 47—an even greater margin than that tenured during good behavior and by which the first impeachment vote elected officers, for purposes of grounds had failed. for impeachment, was stressed by The reversal is a dramatic dem- Rufus King at the Constitutional Con- onstration that the House of Rep- vention of 1787. A judge’s impeach- resentatives believed it had to find the ment or conviction resting upon ‘‘gen- President guilty of a crime before im- eral misbehavior,’’ in whatever degree, peaching him. The nine articles of im- cannot be an appropriate guide for the peachment which were adopted against impeachment or conviction of an elect- Johnson, on March 2, 1868, all related ed officer serving for a fixed term.

1991 Ch. 14 § 3 DESCHLER’S PRECEDENTS

The impeachments of federal judges written Constitution. It is hardly con- are also different from the case of a ceivable that the Framers wished the President for other reasons: (1) Some new Congress to adopt as a starting of the President’s duties e.g., as chief of point the record of all the excesses to a political party, are sufficiently dis- which desperate struggles for power similar to those of the judiciary that had driven Parliament, or to use the conduct perfectly appropriate for him, impeachment power freely whenever such as making a partisan political Congress might deem it desirable. The speech, would be grossly improper for whole tenor of the Framers’ discus- a judge. An officer charged with the sions, the whole purpose of their many continual adjudication of disputes la- careful departures from English im- bors under a more stringent injunction peachment practice, was in the direc- against the appearance of partisanship tion of limits and of standards. An im- than an officer directly charged with peachment power exercised without ex- the formulation and negotiation of pub- trinsic and objective standards would lic policy in the political arena—a fact be tantamount to the use of bills of at- reflected in the adoption of Canons of tainder and ex post facto laws, which Judicial Ethics. (2) The phrase ‘‘and all are expressly forbidden by the Con- civil Officers’’ was not added until after stitution and are contrary to the Amer- the debates on the impeachment clause ican spirit of justice. had taken place. The words ‘‘high It is beyond argument that a viola- crimes and misdemeanors’’ were added tion of the President’s oath or a viola- while the Framers were debating a tion of his duty to take care that the clause concerned exclusively with the laws be faithfully executed, must be impeachment of the President. There impeachable conduct or there would be was no discussion during the Conven- no means of enforcing the Constitution. tion as to what would constitute im- However, this elementary proposition peachable conduct for judges. (3) Fi- is inadequate to define the impeach- nally, the removal of a President from ment power. It remains to determine office would obviously have a far great- what kind of conduct constitutes a vio- er impact upon the equilibrium of our lation of the oath or the duty. Further- system of government than the re- more, reliance on the summary phrase, moval of a single federal judge. ‘‘violation of the Constitution,’’ would not always be appropriate as a stand- d. The need for a standard: criminal ard, because actions constituting an intent apparent violation of one provision of When the Framers included the the Constitution may be justified or power to impeach the President in our even required by other provisions of Constitution, they desired to ‘‘provide the Constitution. some mode that will not make him de- There are types of misconduct by pendent on the Legislature.’’ To this public officials—for example, inepti- end, they withheld from the Congress tude, or unintentional or ‘‘technical’’ many of the powers enjoyed by Par- violations of rules or statutes, or ‘‘mal- liament in England; and they defined administration’’—which would not be the grounds for impeachment in their criminal; nor could they be made crimi-

1992 IMPEACHMENT POWERS Ch. 14 § 3

nal, consonant with the Constitution, ground that criminal conduct was because the element of criminal intent alleged therein and sustained by or mens rea would be lacking. Without the evidence; but found no im- a requirement of criminal acts or at least criminal intent, Congress would peachable offenses constituted in be free to impeach these officials. The Articles II and III: loss of this freedom should not be (1) With respect to proposed Article mourned; such a use of the impeach- I, we believe that the charges of con- ment power was never intended by the spiracy to obstruct justice, and obstruc- Framers, is not supported by the lan- tion of justice, which are contained in guage of our Constitution, and, if his- the Article in essence, if not in terms, tory is to guide us, would be seriously may be taken as substantially con- unwise as well. fessed by Mr. Nixon on August 5, 1974, As Alexander Simpson stated in his and corroborated by ample other evi- Treatise on Federal Impeachments dence in the record. Prior to Mr. Nix- (1916): on’s revelation of the contents of three The Senate must find an intent to conversations between him and his do wrong. It is, of course, admitted former Chief of Staff, H. R. Haldeman, that a party will be presumed to in- that took place on June 23, 1972, we tend the natural and necessary re- sults of his voluntary acts, but that did not, and still do not, believe that is a presumption only, and it is not the evidence of presidential involve- always inferable from the act done. ment in the Watergate cover-up con- So ancient is this principle, and so spiracy, as developed at that time, was universal is its application, that it sufficient to warrant Members of the has long since ripened into the maxim, Actus non facit reun, [nisi] House, or dispassionate jurors in the mens sit rea, and has come to be re- Senate, in finding Mr. Nixon guilty of garded as one of the fundamental an impeachable offense beyond a rea- legal principles of our system of ju- sonable doubt, which we believe to be risprudence. (p. 29). the appropriate standard. The point was thus stated by (2) With respect to proposed Article James Iredell in the North Caro- II, we find sufficient evidence to war- lina ratifying convention: ‘‘I beg rant a belief that isolated instances of leave to observe that, when any unlawful conduct by presidential aides and subordinates did occur during the man is impeached, it must be for five-and-one-half years of the Nixon an error of the heart, and not of Administration, with varying degrees the head. God forbid that a man, of direct personal knowledge or in- in any country in the world, volvement of the President in these re- should be liable to be punished for spective illegal episodes. We roundly want of judgment. This is not the condemn such abuses and unreservedly favor the invocation of existing legal case here. sanctions, or the creation of new ones, The minority views did support where needed, to deter such reprehen- a portion of Article I on the sible official conduct in the future, no

1993 Ch. 14 § 3 DESCHLER’S PRECEDENTS

matter in whose Administration, or by have been asserted in defense of non- what brand or partisan, it might be production of the subpoenaed mate- perpetrated. rials, and the validity of those claims Nevertheless, we cannot join with has not been adjudicated in any estab- those who claim to perceive an invid- lished, lawful adversary proceeding be- ious, pervasive ‘‘pattern’’ of illegality in fore the House is called upon to decide the conduct of official government busi- whether to impeach a President on ness generally by President Nixon. In grounds of noncompliance with sub- some instances, as noted below, we dis- poenas issued by a Committee inquir- agree with the majority’s interpreta- ing into the existence of sufficient tion of the evidence regarding either grounds for impeachment.(20) the intrinsic illegality of the conduct studied or the linkage of Mr. Nixon Grounds for Impeachment of personally to it. Moreover, even as to Federal Judges those acts which we would concur in characterizing as abusive and which § 3.9 Following introduction the President appeared to direct or and referral of impeachment countenance, neither singly nor in the aggregate do they impress us as being resolutions against a Su- offenses for which Richard Nixon, or preme Court Justice in the any President, should be impeached or 91st Congress, when grounds removed from office, when considered, for impeachment of federal as they must be, on their own footing, judges were discussed at apart from the obstruction of justice charge under proposed Article I which length in the House, the view we believe to be sustained by the evi- was taken that federal civil dence. officers may be impeached (3) Likewise, with respect to pro- for less than indictable of- posed Article III, we believe that this fenses; that an impeachable charge, standing alone, affords insuffi- offense is what a majority of cient grounds for impeachment. Our concern here, as explicated in the dis- the House considers it to be; cussion below, is that the Congres- and that a higher standard of sional subpoena power itself not be too conduct is expected of fed- easily abused as a means of achieving eral judges than of other fed- the impeachment and removal of a eral civil officers. President against whom no other sub- stantive impeachable offense has been On Apr. 15, 1970, resolutions proved by sufficient evidence derived relating to the impeachment of from sources other than the President himself. We believe it is particularly 20. H. REPT. NO. 93–1305, at pp. 360, important for the House to refrain 361, Committee on the Judiciary, from impeachment on the sole basis of printed in the Record at 120 CONG. noncompliance with subpoenas where, REC. 29311, 93d Cong. 2d Sess., Aug. as here, colorable claims of privilege 20, 1974.

1994 IMPEACHMENT POWERS Ch. 14 § 3

Associate Justice William O. ceedings of the Convention detail, cho- Douglas of the Supreme Court sen with exceedingly great care and were introduced and referred, fol- precision. Note, for example, the word lowing a special-order speech by ‘‘behaviour.’’ It relates to action, not merely to thoughts or opinions; fur- the Minority Leader, Gerald R. ther, it refers not to a single act but to Ford, of Michigan. Mr. Ford dis- a pattern or continuing sequence of ac- cussed the grounds for impeach- tion. We cannot and should not remove ment of a federal judge, saying in a Federal judge for the legal views he part: (1) holds—this would be as contemptible as to exclude him from serving on the No, the Constitution does not guar- Supreme Court for his ideology or past antee a lifetime of power and authority decisions. Nor should we remove him to any public official. The terms of for a minor or isolated mistake—this Members of the House are fixed at 2 years; of the President and Vice Presi- does not constitute behaviour in the dent at 4; of U.S. Senators at 6. Mem- common meaning. bers of the Federal judiciary hold their What we should scrutinize in sitting offices only ‘‘during good behaviour.’’ Judges is their continuing pattern of Let me read the first section of arti- action, their behaviour. The Constitu- cle III of the Constitution in full: tion does not demand that it be ‘‘exem- plary’’ or ‘‘perfect.’’ But it does have to The judicial power of the United States shall be vested in one su- be ‘‘good.’’ preme Court, and in such inferior Naturally, there must be orderly pro- Courts as the Congress may from cedure for determining whether or not time to time ordain and establish. a Federal judge’s behaviour is good. The Judges, both of the supreme and The courts, arbiters in most such ques- inferior Courts, shall hold their Of- fices during good Behaviour, and tions of judgment, cannot judge them- shall, at stated Times, receive for selves. So the Founding Fathers vested their Services, a Compensation, this ultimate power where the ultimate which shall not be diminished during sovereignty of our system is most di- their Continuance in Office. . . . rectly reflected—in the Congress, in . . . Thus, we come quickly to the the elected Representatives of the peo- central question: What constitutes ple and of the States. ‘‘good behaviour’’ or, conversely, In this seldom-used procedure, called ungood or disqualifying behaviour? impeachment, the legislative branch The words employed by the Framers exercises both executive and judicial of the Constitution were, as the pro- functions. The roles of the two bodies differ dramatically. The House serves 1. 116 CONG. REC. 11912–14, 91st as prosecutor and grand jury; the Sen- Cong. 2d Sess. Charges against Jus- ate serves as judge and trial jury. tice Douglas were investigated by a Article I of the Constitution has this subcommittee of the Committee on to say about the impeachment process: the Judiciary, which recommended The House of Representatives— against impeachment (see §§ 14.14, shall have the sole power of Im- 14.15, infra). peachment.

1995 Ch. 14 § 3 DESCHLER’S PRECEDENTS

The Senate shall have the sole Judgment in Cases of Impeach- Power to try all Impeachments. ment shall not extend further than When sitting for that Purpose, they to removal from Office, and disquali- shall be on Oath or Affirmation. fication to hold and enjoy any office When the President of the United of honor, Trust or Profit under the States is tried, the Chief Justice United States: but the Party con- shall preside: And no Person shall be victed shall nevertheless be liable convicted without the Concurrence of and subject to Indictment, Trial, two-thirds of the Members present. Judgment and Punishment, accord- ing to Law. . . . Article II, dealing with the executive branch, states in section 4: With this brief review of the law, of the constitutional background for im- The President, Vice President, and peachment, I have endeavored to cor- all civil Officers of the United States shall be removed from office on im- rect two common misconceptions: first, peachment for, and conviction of, that Federal judges are appointed for Treason, Bribery or other high life and, second, that they can be re- crimes and misdemeanors. moved only by being convicted, with all ordinary protections and presumptions This has been the most controversial of innocence to which an accused is en- of the constitutional references to the titled, of violating the law. impeachment process. No consensus This is not the case. Federal judges exists as to whether, in the case of can be and have been impeached for Federal judges, impeachment must de- improper personal habits such as pend upon conviction of one of the two chronic intoxication on the bench, and specified crimes of treason or bribery one of the charges brought against or be within the nebulous category of President Andrew Johnson was that he ‘‘other high crimes and misdemeanors.’’ delivered ‘‘intemperate, inflammatory, There are pages upon pages of learned and scandalous harangues.’’ argument whether the adjective ‘‘high’’ I have studied the principal im- modifies ‘‘misdemeanors’’ as well as peachment actions that have been ini- ‘‘crimes,’’ and over what, indeed, con- tiated over the years and frankly, stitutes a ‘‘high misdemeanor.’’ there are too few cases to make very In my view, one of the specific or good law. About the only thing the au- general offenses cited in article II is re- thorities can agree upon in recent his- quired for removal of the indirectly tory, though it was hotly argued up to elected President and Vice President President Johnson’s impeachment and and all appointed civil officers of the the trial of Judge Swayne, is that an executive branch of the Federal Gov- offense need not be indictable to be im- ernment, whatever their terms of of- peachable. In other words, something fice. But in the case of members of the less than a criminal act or criminal judicial branch, Federal judges and dereliction of duty may nevertheless be Justices, I believe an additional and sufficient grounds for impeachment much stricter requirement is imposed and removal from public office. by article II, namely, ‘‘good behaviour.’’ What, then, is an impeachable of- Finally, and this is a most signifi- fense? cant provision, article I of the Con- The only honest answer is that an stitution specifies: impeachable offense is whatever a ma-

1996 IMPEACHMENT POWERS Ch. 14 § 3 jority of the House of Representatives This case was in the context of F.D.R.’s considers to be at a given moment in effort to pack the Supreme Court with history; conviction results from what- Justices more to his liking; Judge Rit- ever offense or offenses two-thirds of ter was a transplanted conservative the other body considers to be suffi- Colorado Republican appointed to the ciently serious to require removal of Federal bench in solidly Democratic the accused from office. Again, the his- Florida by President Coolidge. He was torical context and political climate are convicted by a coalition of liberal Re- important; there are few fixed prin- publicans, New Deal Democrats, and ciples among the handful of prece- Farmer-Labor and Progressive Party dents. Senators in what might be called the I think it is fair to come to one con- northwestern strategy of that era. Nev- clusion, however, from our history of ertheless, the arguments were persua- impeachments: a higher standard is sive: expected of Federal judges than of any In a joint statement, Senators Borah, other ‘‘civil officers’’ of the United La Follette, Frazier, and Shipstead States. said: The President and Vice President, and all persons holding office at the We therefore did not, in passing upon the facts presented to us in the pleasure of the President, can be matter of the impeachment pro- thrown out of office by the voters at ceedings against Judge Halsted L. least every 4 years. To remove them in Ritter, seek to satisfy ourselves as to midterm—it has been tried only twice whether technically a crime or and never done—would indeed require crimes had been committed, or as to crimes of the magnitude of treason and whether the acts charged and proved disclosed criminal intent or corrupt bribery. Other elective officials, such as motive: we sought only to ascertain Members of the Congress, are so vul- from these facts whether his conduct nerable to public displeasure that their had been such as to amount to mis- removal by the complicated impeach- behavior, misconduct—as to whether ment route has not even been tried he had conducted himself in a way since 1798. But nine Federal judges, that was calculated to undermine public confidence in the courts and including one Associate Justice of the to create a sense of scandal. Supreme Court, have been impeached There are a great many things by this House and tried by the Senate; which one must readily admit would four were acquitted; four convicted and be wholly unbecoming, wholly intol- removed from office; and one resigned erable, in the conduct of a judge, and during trial and the impeachment was yet these things might not amount to a crime. dismissed. In the most recent impeachment Senator Elbert Thomas of Utah, cit- trial conducted by the other body, that ing the Jeffersonian and colonial ante- of U.S. Judge Halsted L. Ritter of the cedents of the impeachment process, southern district of Florida who was bluntly declared: removed in 1936, the point of judicial Tenure during good behavior . . . behavior was paramount, since the is in no sense a guaranty of a life criminal charges were admittedly thin. job, and misbehavior in the ordinary,

1997 Ch. 14 § 3 DESCHLER’S PRECEDENTS

dictionary sense of the term will must be as exacting in our concep- cause it to be cut short on the vote, tion of the obligations of a judicial of- under special oath, of two-thirds of ficer as Mr. Justice Cardozo defined the Senate, if charges are first them when he said, in connection brought by the House of Representa- with fiduciaries, that they should be tives. . . . To assume that good be- held ‘‘to something stricter than the havior means anything but good be- morals of the market-place. Not hon- havior would be to cast a reflection esty alone, but the punctilio of an upon the ability of the fathers to ex- honor the most sensitive, is then the press themselves in understandable standard of behavior.’’ (Meinhard v. language. Solmon, 249 N.Y. 458.) But the best summary, in my opin- ion, was that of Senator William G. § 3.10 The view has been taken McAdoo of California, son-in-law of that the term ‘‘good behav- Woodrow Wilson and his Secretary of ior,’’ as a requirement for the Treasury: federal judges remaining in I approach this subject from the office, must be read in con- standpoint of the general conduct of this judge while on the bench, as junction with the standard of portrayed by the various counts in ‘‘high crimes and mis- the impeachment and the evidence demeanors,’’ and that the submitted in the trial. The picture thus presented is, to my mind, that conduct of federal judges to of a man who is so lacking in any constitute an impeachable of- proper conception of professional eth- ics and those high standards of judi- fense must be either criminal cial character and conduct as to con- conduct or serious judicial stitute misbehavior in its most seri- misconduct. ous aspects, and to render him unfit to hold a judicial office . . . On Apr. 21, 1970, Mr. Paul N. Good behavior, as it is used in the McCloskey, Jr., of California, took Constitution, exacts of a judge the highest standards of public and pri- the floor for a special-order speech vate rectitude. No judge can be- in which he challenged the hy- smirch the robes he wears by relax- pothesis of Mr. Gerald R. Ford, of ing these standards, by compro- mising them through conduct which Michigan (see § 3.9, supra), as to brings reproach upon himself person- the grounds for impeachment of ally, or upon the great office he federal judges: (2) holds. No more sacred trust is com- mitted to the bench of the United I respectfully disagree with the basic States than to keep shining with un- premise ‘‘that an impeachable offense dimmed effulgence the brightest is whatever a majority of the House of jewel in the crown of democracy— Representatives considers it to be at a justice. given moment in history.’’ However disagreeable the duty To accept this view, in my judgment, may be to those of us who constitute would do grave damage to one of the this great body in determining the guilt of those who are entrusted under the Constitution with the high 2. 116 CONG. REC. 12569–71, 91st responsibilities of judicial office, we Cong. 2d Sess.

1998 IMPEACHMENT POWERS Ch. 14 § 3 most treasured cornerstones of our lib- In the debates which took place in erties, the constitutional principle of the Constitutional Convention 11 years an independent judiciary, free not only later, this concern was expressed in from public passions and emotions, but both of the major proposals presented also free from fear of executive or legis- to the delegates. The Virginia and New lative disfavor except under already- Jersey plans both contained language defined rules and precedents. . . . substantively similar to that finally First, I should like to discuss the adopted, as follows: concept of an impeachable offense as Article III, Section 1 states ‘‘The ‘‘whatever the majority of the House of Judges, both of the Supreme and in- Representatives considers it to be at ferior Courts, shall hold their offices any given time in history.’’ If this con- during good Behavior, and shall, at cept is accurate, then of course there stated times, receive for their Serv- are no limitations on what a political ices, a Compensation, which shall majority might determine to be less not be diminished during their Con- tinuance in Office.’’ than good behavior. It follows that judges of the Court could conceivably The ‘‘good behavior’’ standard thus be removed whenever the majority of does not stand alone. It must be read the House and two-thirds of the Senate with reference to the clear intention of agreed that a better judge might fill the framers to protect the independ- the position. But this concept has no ence of the judiciary against executive basis, either in our constitutional his- or legislative action on their compensa- tory or in actual case precedent. tion, presumably because of the danger The intent of the framers of the Con- of political disagreement. stitution was clearly to protect judges If, in order to protect judicial inde- from political disagreement, rather pendence, Congress is specifically pre- than to simplify their ease of removal. cluded from terminating or reducing The Original Colonies had had a the salaries of Judges, it seems clear long history of difficulties with the ad- that Congress was not intended to ministration of justice under the Brit- have the power to designate ‘‘as an im- ish Crown. The Declaration of Inde- peachable offense whatever a majority pendence listed as one of its grievances of the House of Representatives con- against the King: siders it to be at a given moment.’’ He has made Judges dependent on If an independent judiciary is to be his Will alone, for the tenure of their preserved, the House must exercise de- offices and the amount and payment cent restraint and caution in its defini- of their salaries. tion of what is less than good behavior. The signers of the Declaration of As we honor the Court’s self-imposed Independence were primarily con- doctrine of judicial restraint, so we cerned about preserving the independ- might likewise honor the principle of ence of the judiciary from direct or in- legislative restraint in considering seri- direct pressures, and particularly from ous charges against members of a co- the pressure of discretionary termi- equal branch of Government which we nation of their jobs or diminution of have wished to keep free from political their salaries. tensions and emotions. . . .

1999 Ch. 14 § 3 DESCHLER’S PRECEDENTS

The term ‘‘good behavior,’’ as the District Judge Charles Swayne, Founding Fathers considered it, must 1905: Padding expense accounts, living be taken together with the specific pro- outside his district, misuse of property visions limiting cause for impeachment and of the contempt power. of executive branch personnel to trea- Associate Court of Commerce Judge son, bribery or other high crimes and Robert Archbald, 1913: Improper use of misdemeanors. The higher standard of influence, and accepting favors from good behavior required of Judges litigants. might well be considered as applicable District Judge George W. English, solely to their judicial performance and 1926: Tyranny, oppression, and parti- capacity and not to their private and ality. nonjudicial conduct unless the same is District Judge Harold Louderback, violative of the law. Alcoholism, arro- 1933: Favoritism, and conspiracy. gance, nonjudicial temperament, and District Judge Halsted L. Ritter, senility of course interfere with judicial 1936: Judicial improprieties, accepting performance and properly justify im- legal fees while on the bench, bringing peachment. I can find no precedent, his court into scandal and disrepute, however, for impeachment of a Judge and failure to pay his income tax. for nonjudicial conduct which falls The bulk of these challenges to the short of violation of law. court were thus on judicial misconduct, In looking to the nine cases of im- with scattered instances of nonjudicial peachment of Judges spanning 181 behavior. In all cases, however, insofar years of our national history, in every as I have been able to thus far deter- case involved, the impeachment was mine, the nonjudicial behavior involved based on either improper judicial con- clear violation of criminal or civil law, duct or nonjudicial conduct which was and not just a ‘‘pattern of behavior’’ considered as criminal in nature. . . . that others might find less than From the brief research I have been ‘‘good.’’ able to do on these nine cases, and as If the House accepts precedent as a reflected in the Congressional Quar- guide, then, an impeachment of a Jus- terly of April 17, 1970, the charges tice of the Supreme Court based on were as follows: charges which are neither unlawful in District Judge John Pickering, 1804: nature nor connected with the perform- Loose morals, intemperance, and irreg- ance of his judicial duties would rep- ular judicial procedure. resent a highly dubious break with Associate Supreme Court Justice custom and tradition at a time when, Samuel Chase, 1805: Partisan, harsh, as the gentleman from New York (Mr. and unfair conduct during trials. Horton), stated last Wednesday: District Judge James H. Peck, 1831: We are living in an era when the Imposing an unreasonably harsh pen- institutions of government and the alty for contempt of court. people who man them are under- going the severest tests in history. District Judge West H. Humphreys, 1862: Supported secession and served There is merit, I think, in a strict as a Confederate judge. construction of the words ‘‘good behav-

2000 IMPEACHMENT POWERS Ch. 14 § 3

ior’’ as including conduct which com- gan, inserted in the Congressional plies with judicial ethics while on the Record a legal memorandum on bench and with the criminal and civil laws while off the bench. Any other impeachment of a federal judge construction of the term would make for ‘‘misbehavior,’’ the memo- judges vulnerable to any majority randum was prepared by a pri- group in the Congress which held a vate attorney and reviewed con- common view of impropriety of conduct stitutional provisions, views of which was admittedly lawful. If lawful conduct can nevertheless be deemed an commentators, and the precedents impeachable offense by a majority of of the House and Senate in im- the House, how can any Judge feel free peachment proceedings. The to express opinions on controversial memorandum concluded with the subjects off the bench? Is there any- following analysis: (3) thing in our history to indicate that the framers of our Constitution in- A review of the past impeachment tended to preclude a judge from stating proceedings has clearly established lit- political views publicly, either orally or tle constitutional basis to the argu- in writing? I have been unable to find ment that an impeachable offense any constitutional history to so indi- must be indictable as well. If this were cate. to be the case, the Constitution would The gentleman from New Hampshire then merely provide an additional or (Mr. Wyman) suggests that a judge alternate method of punishment, in should not publicly declare his per- specific instances, to the traditional sonal views on controversies likely to criminal law violator. If the framers come before the Court. This is cer- had meant to remove from office only tainly true. But it certainly does not those officials who violated the crimi- preclude a judge from voicing personal nal law, a much simpler method than political views, since political issues impeachment could have been devised. are not within the jurisdiction of the Since impeachment is such a complex court and thus a judge’s opinions on and cumbersome procedure, it must political matters would generally not have been directed at conduct which be prejudicial to interpretations of the would be outside the purview of the law which his jurisdiction is properly criminal law. Moreover, the tradition- limited. ally accepted purpose of impeachment § 3.11 The view has been taken would seem to work against such a construction. By restricting the punish- that a federal judge may be ment for impeachment to removal and impeached for misbehavior disqualification from office, impeach- of such nature as to cast sub- ment seems to be a protective, rather stantial doubt upon his in- than a punitive, device. It is meant to tegrity. protect the public from conduct by high

On Aug. 10, 1970, Minority 3. 116 CONG. REC. 28091–96, 91st Leader Gerald R. Ford, of Michi- Cong. 2d Sess. 2001 Ch. 14 § 3 DESCHLER’S PRECEDENTS

public officials that undermines public though this construction has been criti- confidence. Since that is the case, the cized by one writer as being logically nature of impeachment must be broad- fallacious, See Simpson, Federal Im- er than this argument would make it. peachments, 64 U. of Penn. L. Rev. [Such] conduct on the part of a judge, 651, 806–08 (1916), it seems to be the while not criminal, would be detri- construction adopted by the Senate in mental to the public welfare. Therefore the Archbald and Ritter cases. Even it seems clear that impeachment will Simpson, who criticized the approach, lie for conduct not indictable nor even reaches the same result because he ar- criminal in nature. It will be remem- gues that ‘‘misdemeanor’’ must, by def- bered that Judge Archbald was re- inition, include misbehavior in office. moved from office for conduct which, in Supra at 812–13. at least one commentator’s view, would In determining what constitutes im- have been blameless if done by a pri- peachable judicial misbehavior, re- vate citizen. See Brown, The Impeach- course must be had to the previous im- ment of the Federal Judiciary, 26 Har. peachment proceedings. Those pro- L. Rev. 684, 704–05 (1913). ceedings fall mainly into two cat- A sound approach to the Constitu- egories, misconduct in the actual ad- tional provisions relating to the im- ministration of justice and financial peachment power appears to be that improprieties off the bench. Pickering which was made during the impeach- was charged with holding court while ment of Judge Archbald. Article I, Sec- intoxicated and with mishandling tions 2 and 3 give Congress jurisdic- cases. Chase and Peck were charged tion to try impeachments. Article II, with misconduct which was prejudicial Section 4, is a mandatory provision to the impartial administration of jus- which requires removal of officials con- tice and with oppressive and corrupt victed of ‘‘treason, bribery or other use of their office to punish individuals high crimes and misdemeanors’’. The critical of their actions. Swayne, latter phrase is meant to include con- Archbald, Louderback and Ritter were duct, which, while not indictable by the all accused of using their office for per- criminal law, has at least the charac- sonal profit and with various types of teristics of a crime. However, this pro- financial indiscretions. English was vision is not conclusively restrictive. impeached both for oppressive mis- Congress may look elsewhere in the conduct while on the bench and for fi- Constitution to determine if an im- nancial misdealings. The impeachment peachable offense has occurred. In the of Humphries is the only one which case of judges, such additional grounds does not fall within this pattern and of impeachment may be found in Arti- the charges brought against him prob- cle III, Section 1 where the judicial ably amounted to treason. See Brown, tenure is fixed at ‘‘good behavior’’. The Impeachment of the Federal Judi- Since good behavior is the limit of the ciary, 26 Har. L. Rev. 684, 704 (1913). judicial tenure, some method of re- While various definitions of impeach- moval must be available where a judge able misbehavior have been advanced, breaches that condition of his office. the unifying factor in these definitions That method is impeachment. Even is the notion that there must be such

2002 IMPEACHMENT POWERS Ch. 14 § 3 misconduct as to cast doubt on the in- sible to go further and imagine . . . tegrity and impartiality of the Federal such willingness to use his office to judiciary. Brown has defined that mis- serve his personal ends as to be behavior as follows: within reach of no branch of the criminal law, yet calculated with ab- It must act directly or by reflected solute certainty to bring the court influence react upon the welfare of into public obloquy and contempt the State. It may constitute an in- and to seriously affect the adminis- tentional violation of positive law, or tration of justice. 6 Cannon 647. it may be an official dereliction of commission or omission, a serious Representative Summers, one of the breach of moral obligation, or other managers in the Louderback impeach- gross impropriety of personal con- ment gave this definition: duct which, in its natural con- sequences, tends to bring an office When the facts proven with ref- into contempt and disrepute . . . An erence to a respondent are such as act or course of misbehavior which are reasonably calculated to arouse a renders scandalous the personal life substantial doubt in the minds of the of a public officer, shakes the con- people over whom that respondent fidence of the people in his adminis- exercises authority that he is not tration of the public affairs, and thus brave, candid, honest, and true, impairs his official usefulness. there is no other alternative than to Brown, supra at 692–93. remove such a judge from the bench, because wherever doubt resides, con- As Simpson stated with respect to fidence cannot be present. the outcome of the Archbald impeach- Louderback Proceedings 815. ment: IV. CONCLUSION It determined that a judge ought not only be impartial, but he ought In conclusion, the history of the con- so demean himself, both in and out stitutional provisions relating to the of court, that litigants will have no impeachment of Federal judges dem- reason to suspect his impartiality and that repeatedly failing in that onstrates that only the Congress has respect constitutes a ‘‘high mis- the power and duty to remove from of- demeanor’’ in regard to his office. If fice any judge whose proven conduct, such be considered the result of that either in the administration of justice case, everyone must agree that it es- or in his personal behavior, casts doubt tablished a much needed precedent. Simpson, Federal Impeachments, 64 on his personal integrity and thereby U. of Penn. L. Rev. 651, 813 (1916). on the integrity of the entire judiciary. Federal judges must maintain the John W. Davis, House Manager in highest standards of conduct to pre- the Impeachment of Judge Archbald, serve the independence of and respect defined judicial misbehavior as follows: for the judicial system and the rule of Usurpation of power, the entering law. As Representative Summers stat- and enforcement of orders beyond ed during the Ritter impeachment: his jurisdiction, disregard or disobe- dience of the rulings of superior tri- Where a judge on the bench, by bunals, unblushing and notorious his own conduct, arouses a substan- partiality and favoritism, indolence tial doubt as to his judicial integrity and neglect, are all violations of his he commits the highest crime that a official oath . . . And it is easily pos- judge can commit under the Con-

2003 Ch. 14 § 3 DESCHLER’S PRECEDENTS

stitution. Ritter Proceedings 611 ment proceedings and concluded (1936). as follows: (4) Finally, the application of the prin- In summary, the charges against ciples of the impeachment process is Justice William O. Douglas are unique left solely to the Congress. There is no in our history of impeachment. The appeal from Congress’ ultimate judg- House has stood ready to impeach ment. Thus, it can fairly be said that it judges for Treason, Bribery, and re- is the conscience of Congress—acting lated financial crimes and mis- in accordance with the constitutional demeanors. It has refused to impeach limitations—which determines whether judges charged with on-the-job mis- conduct of a judge constitutes mis- conduct when that behavior is not also behavior requiring impeachment and an indictable criminal offense. Only removal from office. If a judge’s mis- once before has a judge even been behavior is so grave as to cast substan- charged with impeachment for non-job- tial doubt upon his integrity, he must related activities—in 1921, when be removed from office regardless of all Judge Kenesaw Mountain Landis was other considerations. If a judge has not charged with accepting the job as Com- abused his trust, Congress has the missioner of big-league baseball—and duty to reaffirm public trust and con- the House Judiciary Committee re- fidence in his actions. fused to dignify the charge with a re- Respectfully submitted, port pro or con. Never in our impeach- BETHEL B. KELLEY, ment history, until Congressman Ford DANIEL G. WYLLIE. leveled his charges against Mr. Justice Douglas, has it ever been suggested § 3.12 The view has been taken that a judge could be impeached be- that the House impeaches cause, while off the bench, he exercised federal judges only for mis- his First Amendment rights to speak conduct that is both criminal and write on issues of the day, to asso- in nature and related to the ciate with others in educational enter- prises. . . . performance of the judicial This brief history of Congressional function. impeachment shows several things. On Nov. 16, 1970, Mr. Frank First, it shows that it works. It is not Thompson, Jr., of New Jersey, in- a rusty, unused power. Since 1796, serted into the Congressional fifty-five judges have been charged on the Floor of the House of Representa- Record a study by a professor of tives, approximately one in every three constitutional law of impeachment to four years. Presumably, most of the proceedings against federal judges federal judges who should be im- and the grounds for such pro- peached, are impeached. Thirty-three ceedings. The memorandum dis- judges have been charged with ‘‘Trea- cussed in detail the substance of 4. 116 CONG. REC. 37464–70, 91st such charges in all prior impeach- Cong. 2d Sess.

2004 IMPEACHMENT POWERS Ch. 14 § 3 son, Bribery, or other High Crimes and was contradictory to judicial tenure Misdemeanors.’’ Three of them have during good behavior, because it would been found guilty by the Senate and make the judiciary ‘‘dangerously de- removed from office; twenty-two addi- pendent’’ on the legislature. tional judges have resigned rather During the Jeffersonian purge of the than face Senate trial and public expo- federal bench, Senate leader William sure. This is one ‘‘corrupt’’ judge for Giles proclaimed that ‘‘removal by im- approximately every seven years— peachment’’ is nothing more than a hopefully, all there are. declaration by both Houses of Congress Second, by its deeds and actions, to the judge that ‘‘you hold dangerous Congress has recognized what Chief opinions.’’ This theory of the impeach- Justice Burger recently described as ment power was rejected in 1804 be- ‘‘the imperative need for total and ab- cause it would put in peril ‘‘the integ- solute independence of judges in decid- rity of the whole national judicial es- ing cases or in any phase of the tablishment.’’ decisional function.’’ With a few aber- Now Congressman Ford suggests rations in the early 1800’s, a period of that ‘‘an impeachable offense’’ is noth- unprecedented political upheaval, Con- ing more than ‘‘whatever a majority of gress has refused to impeach a judge the House of Representatives considers for lack of ‘‘good behaviour’’ unless the behavior is both job-related and crimi- it to be at a given moment in history.’’ nal. This is true whether the judge Does he really mean that Chief Jus- gets drunk on the bench, whether the tice Warren might have been im- judge exploits and abuses the authority peached because ‘‘at a given moment in of his robes, or whether the judge history’’ a majority of the House and hands down unpopular or wrong deci- two-thirds of the Senate objected sions. strongly to his opinion ordering an end How could it be otherwise? The pur- to school-segregation, or to his equally pose of an ‘‘independent judiciary’’ in controversial decision against school our system of government by separa- prayer? Does he really mean that tion of powers, is to check the excesses Judge Julius Hoffman is impeachable of the legislative and executive if a majority of this or the next Con- branches of the government, to cry a gress decides that he was wrong in his halt when popular passions grip the handling of the Chicago Seven? Does Congress and laws are adopted which he really want a situation where fed- abridge and infringe upon the rights eral judges must keep one eye on the guaranteed to all citizens by the Con- mood of Congress and the other on the stitution. The judges must be strong proceedings before them in court, in and secure if they are to do this job order to maintain their tenure in of- well. fice? John Dickinson proposed at the Con- If Congressman Ford is right, it stitutional Convention that federal bodes ill for the concept of an inde- judges should be removed upon a peti- pendent judiciary and the corollary tion by the majority of each House of doctrine of a Constitutional govern- Congress. This was rejected, because it ment of laws.

2005 Ch. 14 § 3 DESCHLER’S PRECEDENTS

In 1835, the French observer de § 3.13 A special subcommittee Tocqueville wrote that: of the Committee on the Ju- A decline of public morals in the diciary found in its final re- United States will probably be marked by the abuse of the power of port on charges of impeach- impeachment as a means of crushing ment against Associate Jus- political adversaries or ejecting them tice William O. Douglas of from office. the Supreme Court, that (1) a Let us hope that that day has not judge could be impeached for yet arrived. judicial conduct which was Mr. Thompson summarized the criminal or which was a seri- study as follows: ous dereliction of public . . . [I] requested Daniel H. Pollitt, a duty; (2) that a judge could professor of constitutional law at the be impeached for nonjudicial University of North Carolina to survey conduct which was criminal; the 51 impeachment proceedings in this House during the intervening and (3) that the evidence years. gathered did not warrant the I want to make several comments on impeachment of Justice this survey. Douglas. First, it shows that impeachment On Sept. 17, 1970, the special works. Thirty-three judges have been subcommittee of the Committee charged in this body with ‘‘treason, bribery, or other high crimes and mis- on the Judiciary, which had been demeanors.’’ Twenty-two of them re- created to investigate and report signed rather than face Senate trial; on charges of impeachment three chose to fight it out in the Sen- against Associate Justice Douglas ate; and seven were acquitted by the of the Supreme Court, submitted vote of this Chamber against further its final report to the full com- impeachment proceedings. mittee. The report reviewed the Second, it shows that never since the grounds for impeachment and earliest days of this Republic has the found the evidence insufficient. House impeached a judge for conduct The report provided in part: (5) which was not both job-related and criminal. This body has consistently re- II. CONCEPTS OF IMPEACHMENT fused to impeach a judge unless he The Constitution grants and defines was guilty of an indictable offense. the authority for the use of impeach- Third, it shows that never before Mr. Ford leveled his charges against Jus- 5. Final report by the special sub- tice Douglas has it ever been suggested committee on H. Res. 920 (Impeach- that a judge could be impeached be- ment of Associate Justice Douglas) of cause, while off the bench, he exercised the Committee on the Judiciary, his first amendment rights to speak Committee Print, 91st Cong. 2d and write on issues of the day. Sess., Sept. 17, 1970.

2006 IMPEACHMENT POWERS Ch. 14 § 3 ment procedures to remove officials of trial and punishment for the same of- the Federal Government. Offenses sub- fense in a court of law. Article III, Sec- ject to impeachment are set forth in tion 3 in this regard provides: Article II, Section 4: Judgment in Cases of Impeach- The President, Vice President and ment shall not extend further than all civil Officers of the United States, to removal from Office, and disquali- shall be removed from office on im- fication to hold and enjoy any Office peachment for and Conviction of, of honor, Trust or Profit under the Treason, Bribery, or other high United States: but the Party con- Crimes and Misdemeanors. victed shall nevertheless be liable and subject to Indictment, Trial, An Associate Justice of the Supreme Judgment and Punishment, accord- Court is a civil officer of the United ing to Law. States and is a person subject to im- Other provisions of the Constitution peachment. Article II, Section 2, au- underscore the exceptional nature of thorizes the President to appoint ‘‘. . . the unique legislative trial. The Presi- Ambassadors, other public Ministers dent’s power to grant reprieves and and Consuls, Judges of the Supreme pardons for offenses against the United Court, and all other Officers of the States does not extend to impeach- United States . . .’’ ments. Article 2, Section 2, provides: Procedures established in the Con- ‘‘The President . . . shall have the stitution vest responsibility for im- power to grant Reprieves and Pardons peachment in the Legislative Branch of for Offenses against the United States, the government and require both the except in Cases of Impeachment.’’ Inas- House of Representatives and the Sen- much as the Senate itself hears the ate to participate in the trial and de- evidence and tries the case, the Con- termination of removal from office. Ar- stitutional right to a trial by jury when ticle I, Section 1, provides: ‘‘The House a crime has been charged is not avail- of Representatives shall chuse their able. Article III, Section 2 provides: Speaker and other Officers; and shall ‘‘The Trial of all Crimes, except in have the sole Power of Impeachment.’’ Cases of Impeachment, shall be by After the House of Representatives jury. . . .’’ votes to approve Articles of Impeach- The Constitution provides only one ment, the Senate must hear and decide instrument to remove judges of both the issue. Article I, Section 3 provides: the Supreme and inferior courts, and The Senate shall have the sole that instrument is impeachment. The Power to try all Impeachments. provisions of Article II, Section 4, de- When sitting for that Purpose, they fines the conduct that render federal shall be on Oath or Affirmation. When the President of the United officials subject to impeachment proce- States is tried, the Chief Justice dures. For a judge to be impeachable, shall preside: And no Person shall be his conduct must constitute ‘‘. . . Trea- convicted without the Concurrence of son, Bribery, or other High Crimes and two thirds of the Members present. Misdemeanors.’’ Decision for removal in an impeach- Some authorities on constitutional ment proceeding does not preclude law have contended that the impeach-

2007 Ch. 14 § 3 DESCHLER’S PRECEDENTS

ment device is a cumbersome proce- The judicial Power of the United dure. Characterized by a high degree States shall be vested in one su- of formality, when used it preempts preme Court, and in such inferior valuable time in both the House and Courts as the Congress may from time to time ordain and establish. Senate and obstructs accomplishment The Judges, both of the supreme and of the law making function of the legis- inferior Courts, shall hold their Of- lative branch. In addition to dis- fices during good Behaviour, and tracting the attention of Congress from shall, at stated Times, receive for its other responsibilities, impeach- their Services, a Compensation, ments invariably are divisive in nature which shall not be diminished during and generate intense controversy in their Continuance in Office Congress and in the country at large. The content of the phrase ‘‘during Since the adoption of the Constitu- good Behaviour’’ and its relationship to tion in 1787, there have been only 12 Article II, Section 4’s requirement for impeachment proceedings, nine of conduct that amounts to ‘‘treason, brib- which have involved Federal judges. ery, or other high crimes and mis- There have been only four convictions, demeanors’’ have been matters of dis- all Federal judges. pute in each of the impeachment pro- The time devoted by the House and ceedings that have involved Federal Senate to the impeachments that re- judges. The four decided cases do not sulted in the trials of the nine Federal resolve the problems and disputes that judges varied substantially. The im- this relationship has generated. Dif- peachment of Robert Archbald in 1912 ferences in impeachment concepts as to consumed the shortest time. The the meaning of the phrase ‘‘good be- Archbald case required three months havior’’ in Article III and its relation- to be processed in the House, and six ship to the meaning of the word ‘‘mis- months in the Senate. The impeach- ment of James H. Peck required the demeanors’’ in Article II are apparent most time for trial of a Federal judge. in the discussions of the charges that The House took three years and five have been made against Associate Jus- months to complete its action, and the tice Douglas. Senate was occupied for nine months A primary concern of the Founding with the trial. The most recent case, Fathers was to assure the creation of Halsted Ritter, in 1933, received the an independent judiciary. Alexander attention of the House for two years Hamilton in The Federalist Papers (No. and eight months, and required one 78) stated this objective: month and seven days for trial in the The complete independence of the Senate. courts of justice is peculiarly essen- Although the provisions of Article II, tial in a limited Constitution. By a Section 4 define conduct that is subject limited Constitution, I understand to impeachment, and Article I estab- one which contains certain specified lishes the impeachment procedure, im- exceptions to the legislative author- ity; such for instance, as that it shall peachments of Federal judges have pass no bills of attainder, no ex post been complicated by the tenure provi- facto laws, and the like. Limitations sion in Article III, Section 1. Article of this kind can be preserved in prac- III, Section 1, provides: tice no other way than through the

2008 IMPEACHMENT POWERS Ch. 14 § 3

medium of courts of justice, whose and to emphasize the exalted station duty it must be to declare all acts assigned to the judge by our society, contrary to the manifest tenor of the have erected pervasive constitutional Constitution void. Without this, all the reservations of particular rights and statutory safeguards. The judge of or privileges would amount to noth- a United States court holds office ‘‘dur- ing. ing good behavior.’’ Further his salary may not be reduced while he is in of- The Federalist Papers (No. 79) dis- fice by any branch of Government. A cusses the relationship of the impeach- judge may be removed from office only ment procedures to judicial independ- by the cumbersome procedure of im- ence: peachment. The precautions for their responsi- Accordingly, when the public is con- bility are comprised in the article re- fronted with allegations of dishonesty specting impeachments. They are or venality, and is forced to recognize liable to be impeached for malconduct by the House of Rep- that judges are human, and hence fal- resentatives and tried by the Senate; lible, the impact is severe. Exposure of and, if convicted, may be dismissed infirmities in the judicial system is un- from office and disqualified for hold- dertaken only with reluctance. It is an ing any other. This is the only provi- area in which the bar, the judiciary, sion on the point which is consistent and the executive and legislative with the necessary independence of the judicial character, and is the branches alike have seen fit to move only one which we find in our own cautiously and painstakingly. There Constitution in respect to our own must be full recognition of the neces- judges. sity to proceed in such a manner that The want of a provision for remov- will result in the least damage possible ing the judges on account of inability to judicial independence, but which, at has been a subject of complaint. But all considerate men will be sensible the same time, will result in correction that such a provision would either or elimination of any condition that not be practiced upon or would be brings discredit to the judicial system. more liable to abuse than calculated Removal of a Federal judge, for to answer any good purpose. The whatever reason, historically has been mensuration of the faculties of the mind has, I believe, no place in the difficult. Constitutional safeguards to catalog of known arts. An attempt to assure a free and independent judici- fix the boundary between the regions ary make it difficult to remove a Fed- of ability and inability would much eral judge who may be unfit, whether oftener give scope to personal and through incompetence, insanity, senil- party attachments and enmities ity, alcoholism, or corruption. than advance the interests of justice or the public good. The result, except For a judge to be impeached, it must in the case of insanity, must for the be shown that he has committed trea- most part be arbitrary; and insanity, son, accepted a bribe, or has committed without any formal or express provi- a high crime or misdemeanor. All con- sion, may be safely pronounced to be duct that can be impeached must at a virtual disqualification. least be a ‘‘misdemeanor.’’ A judge is The desire of the American people to entitled to remain a judge as long as assure independence of the judiciary he holds his office ‘‘during good behav-

2009 Ch. 14 § 3 DESCHLER’S PRECEDENTS

ior.’’ The content of the word ‘‘mis- requires the removal of a judge, demeanor’’ must encompass some ac- which is the highest punishment tivities which fall below the standard that could be administered such an officer. The Senate, sitting as a of ‘‘good behavior.’’ Conduct which fails court, is required to conduct its pro- to meet the standard of ‘‘good behav- ceedings and reach its decisions in ior’’ but which does not come within accordance with the customs of our the definition of ‘‘misdemeanor’’ is not law. In all criminal cases the defend- subject to impeachment. ant comes into court enjoying the presumption of innocence, which pre- In each of the nine impeachments in- sumption continues until he is prov- volving judges, there has been con- en guilty beyond a reasonable troversy as to the meaning of the word doubt.’’ ‘‘misdemeanor.’’ Primarily the con- And again we find this: ‘‘Impeach- troversy concerned whether the activi- ment, though, must be considered as ties being attacked must be criminal or a criminal proceeding.’’ whether the word ‘‘misdemeanor’’ en- In his April 15, 1970, speech, Rep- compasses less serious departures from resentative Ford articulated the con- society norms. cept that an impeachable offense need In his memorandum ‘‘Opinion on the not be indictable and may be some- Impeachment of Halsted L. Ritter,’’ thing less than a criminal act or crimi- Senator H. W. Johnson described the nal dereliction of duty. He said: confusion of thought prevailing in the What, then, is an impeachable of- Senate on these concepts. He stated: fense? The confusion of thought pre- The only honest answer is that an vailing among Senators is evidenced impeachable offense is whatever a by their varying expressions. One majority of the House of Representa- group eloquently argued any gift to a tives considers to be at a given mo- judge, under any circumstances, con- ment in history; conviction results stituted misbehavior, for which he from whatever offense or offenses should be removed from office—and two-thirds of the other body con- moreover that neither corrupt motive siders to be sufficiently serious to re- or evil intent need be shown in the quire removal of the accused from of- acceptance of a gift or in any so- fice. Again, the historical context and called misbehavior. Another prefaced political climate are important; there his opinion with the statement: ‘‘I do are few fixed principles among the not take the view that an impeach- handful of precedents. ment proceeding of a judge of the in- I think it is fair to come to one ferior Federal courts under the Con- conclusion, however, from our his- stitution of the United States is a tory of impeachments: a higher criminal proceeding. The Constitu- standard is expected of Federal tion itself has expressly denuded im- judges than of any other ‘‘civil offi- peachment proceedings of every as- cers’’ of the United States. (First Re- pect or characteristic of a criminal port, p. 31). proceeding.’’ The ‘‘Kelley Memorandum’’ sub- And yet another flatly takes a con- mitted by Mr. Ford enforces this posi- trary view, and states although find- ing the defendant guilty on the sev- tion. The Kelley Memorandum asserts enth count: ‘‘The procedure is crimi- that misbehavior by a Federal judge nal in its nature, for upon conviction, may constitute an impeachable offense

2010 IMPEACHMENT POWERS Ch. 14 § 3 though the conduct may not be an in- into the behavior of judges. There dictable crime or misdemeanor. The has developed the consistent prac- Kelley Memorandum concludes: tice, rigorously followed in every case in this century, of impeaching fed- In conclusion, the history of the eral judges only when criminal of- constitutional provisions relating to fenses have been charged. Indeed, the impeachment of Federal judges the House has never impeached a demonstrates that only the Congress judge except with respect to a ‘‘high has the power and duty to remove Crime’’ or ‘‘Misdemeanor.’’ Charac- from office any judge whose proven teristically, the basis for impeach- conduct, either in the administration ment has been the soliciting of of justice or in his personal behavior, bribes, selling of votes, manipulation casts doubt on his personal integrity of receivers’ fees, misappropriation of and thereby on the integrity of the properties in receivership, and will- entire judiciary. Federal judges must ful income tax evasion. maintain the highest standards of conduct to preserve the independ- A vast body of literature has been ence of and respect for the judicial developed concerning the scope of the system and the rule of law. impeachment power as it pertains to On the other hand, Counsel for Asso- federal judges. The precedents show ciate Justice Douglas, Simon H. that the House of Representatives, par- Rifkind, has submitted a memorandum ticularly in the arguments made by its that contends that a Federal judge Managers in the Senate trials, favors may not be impeached for anything the conclusion that the phrase ‘‘high short of criminal conduct. Mr. Rifkind crimes and misdemeanors’’ encom- also contends that the other provisions passes activity which is not necessarily of the Constitution, i.e., the prohibition criminal in nature. of ex post facto laws, due process notice Although there may be divergence of requirement and the protection of the opinion as to whether impeachment of First Amendment prevent the employ- a judge requires conduct that is crimi- ment of any other standard in im- nal in nature in that it is proscribed by peachment proceedings. In conclusion specific statutory or common law pro- Mr. Rifkind stated: hibition, all authorities hold that for a judge to be impeached, the term ‘‘mis- The constitutional language, in plain terms, confines impeachment demeanors’’ requires a showing of mis- to ‘‘Treason, Bribery, or other high conduct which is inherently serious in Crimes and Misdemeanors.’’ The his- relation to social standards. No re- tory of those provisions reinforces spectable argument can be made to their plain meaning. Even when the support the concept that a judge could Jeffersonians sought to purge the federal bench of all Federalist be impeached if his conduct did not judges, they felt compelled to at least amount at least to a serious dereliction assert that their political victims of his duty as a member of society. were guilty of ‘‘high Crimes and Mis- The punishment imposed by the demeanors.’’ The unsuccessful at- Constitution measures how serious tempt to remove Justice Chase firm- ly established the proposition that misconduct need be to be impeachable. impeachment is for criminal offenses Only serious derelictions of duty owed only, and is not a ‘‘general inquest’’ to society would warrant the punish-

2011 Ch. 14 § 3 DESCHLER’S PRECEDENTS

ment provided. An impeachment pro- the challenged activity must constitute ceeding is a trial which results in pun- ‘‘. . . Treason, Bribery or High Crimes ishment after an appropriate finding and Misdemeanors.’’ by the trier of facts, the Senate. Depri- Both concepts would allow a judge to vation of office is a punishment. Dis- be impeached for acts which occur in qualification to hold any future office the exercise of judicial office that (1) of honor, trust and profit is a greater involve criminal conduct in violation of punishment. The judgment of the Sen- law, or (2) that involve serious derelic- ate confers upon that body discretion, tion from public duty, but not nec- in the words of the Federalist Papers essarily in violation of positive statu- ‘‘. . . to doom to honor or to infamy the tory law or forbidden by the common most influential and the most distin- law. Sloth, drunkenness on the bench guished characters of the community. or unwarranted and unreasonable im- ... partiality manifest for a prolonged pe- Reconciliation of the differences be- riod are examples of misconduct, not tween the concept that a judge has a necessarily criminal in nature that right to his office during ‘‘good behav- would support impeachment. When ior’’ and the concept that the legisla- such misbehavior occurs in connection ture has a duty to remove him if his with the federal office, actual criminal conduct constitutes a ‘‘misdemeanor’’ is conduct should not be a requisite to facilitated by distinguishing conduct impeachment of a judge or any other that occurs in connection with the ex- federal official. While such conduct ercise of his judicial office from conduct need not be criminal, it nonetheless that is non-judicially connected. Such a must be sufficiently serious to be of- distinction permits recognition that the fenses against good morals and inju- content of the word ‘‘misdemeanor’’ for rious to the social body. conduct that occurs in the course of ex- Both concepts would allow a judge to ercise of the power of the judicial office be impeached for conduct not con- includes a broader spectrum of action nected with the duties and responsibil- than is the case when non-judicial ac- ities of the judicial office which involve tivities are involved. criminal acts in violation of law. When such a distinction is made, the The two concepts differ only with re- two concepts on the necessity for judi- spect to impeachability of judicial be- cial conduct to be criminal in nature to havior not connected with the duties be subject to impeachment becomes de- and responsibilities of the judicial of- fined and may be reconciled under the fice. Concept 2 would define ‘‘mis- overriding requirement that to be a demeanor’’ to permit impeachment for ‘‘misdemeanor’’, and hence impeach- serious derelictions of public duty but able, conduct must amount to a serious not necessarily violations of statutory dereliction of an obligation owed to so- or common law. ciety. In summary, an outline of the two To facilitate exposition, the two con- concepts would look this way: cepts may be summarized as follows: A judge may be impeached for ‘‘. . . Both concepts must satisfy the re- Treason, Bribery, or High Crimes or quirements of Article II, Section 4, that Misdemeanors.’’

2012 IMPEACHMENT POWERS Ch. 14 § 3

A. Behavior, connected with judicial violative of the law. Alcoholism, arro- office or exercise of judicial power. gance, nonjudicial temperament, and Concept I senility of course interfere with judi- cial performance and properly justify 1. Criminal conduct. impeachment. I can find no prece- 2. Serious dereliction from public dent, however, for impeachment of a duty. Judge for nonjudicial conduct which falls short of violation of law. Concept II In looking to the nine cases of im- 1. Criminal conduct. peachment of Judges spanning 181 2. Serious dereliction from public years of our national history, in duty. every case involved, the impeach- B. Behavior not connected with the ment was based on either improper judicial conduct or non-judicial con- duties and responsibilities of the judi- duct which was considered as crimi- cial office. nal in nature. CONG. REC. 91st Concept I Cong., 2nd Sess., H 3327. 1. Criminal conduct. In his August 18, 1970, letter to the Concept II Special Subcommittee embodying his 1. Criminal conduct. comments on the ‘‘Kelley Memo- 2. Serious dereliction from public randum’’, Mr. McCloskey reaffirmed duty. this concept. He stated: Chapter III, Disposition of Charges Conduct of a Judge, while it may sets forth the Special Subcommittee’s be less than criminal in nature to analysis of the charges that involve ac- constitute ‘‘less than good behavior’’, has never resulted in a successful tivities of Associate Justice William O. impeachment unless the judge was Douglas. Under this analysis it is not acting in his judicial capacity or mis- necessary for the members of the Judi- using his judicial power. In other ciary Committee to choose between words the precedents suggest that Concept I and II. misconduct must either be ‘‘judicial misconduct’’ or conduct which con- The theories embodied in Concept I stitutes a crime. There is no basis for have been articulated by Representa- impeachment on charges of non-judi- tive Paul N. McCloskey, Jr. In his cial misconduct which occurs off the speech to the House on April 21, 1970, bench and does not constitute a Mr. McCloskey stated: crime. . . . The term ‘‘good behavior,’’ as the IV. RECOMMENDATIONS OF SPECIAL Founding Fathers considered it, SUBCOMMITTEE TO JUDICIARY COM- must be taken together with the spe- MITTEE cific provisions limiting cause for im- peachment of executive branch per- 1. It is not necessary for the mem- sonnel to treason, bribery or other bers of the Judiciary Committee to high crimes and misdemeanors. The take a position on either of the con- higher standard of good behavior re- cepts of impeachment that are dis- quired of judges might well be con- sidered as applicable solely to their cussed in Chapter II. judicial performance and capacity 2. Intensive investigation of the Spe- and not to their private and non- cial Subcommittee has not disclosed judicial conduct unless the same is creditable evidence that would warrant

2013 Ch. 14 § 3 DESCHLER’S PRECEDENTS

preparation of charges on any accept- Offenses Committed Prior to able concept of an impeachable offense. Term of Office EMANUEL CELLER, BYRON G. ROGERS, JACK BROOKS. § 3.14 The Speaker and the House declined to take any The minority views of Mr. Ed- ward Hutchinson, of Michigan, a action on a request by the member of the special sub- Vice President for an inves- committee, concluded as follows tigation into possible im- on the ‘‘concepts of impeachment’’: peachable offenses against him, where the offenses were The report contains a chapter on the Concepts of Impeachment. At the same not related to his term of of- time, it takes the position that it is un- fice as Vice President and necessary to choose among the con- where the charges were cepts mentioned because it finds no pending before the courts. impeachable offense under any. It is evident, therefore, that while a discus- On Sept. 25, 1973,(7) Speaker sion of the theory of impeachment is Carl Albert, of Oklahoma, laid be- interesting, it is unnecessary to a reso- lution of the case as the Subcommittee fore the House a communication views it. This chapter on Concepts is from Vice President Spiro T. nothing more than dicta under the cir- Agnew requesting that the House cumstances. Certainly the Sub- investigate offenses charged to the committee should not even indirectly Vice President in an investigation narrow the power of the House to im- peach through a recitation of two or being conducted by a U.S. Attor- three theories and a very apparent ney. The alleged offenses related choice of one over the others, while at to the Vice President’s conduct be- the same time asserting that no choice fore he became a civil officer is necessary. The Subcommittee’s re- port adopts the view that a Federal under the United States. No ac- judge cannot be impeached unless he is tion was taken on the request. found to have committed a crime, or a Parliamentarian’s Note: The serious indiscretion in his judicially Vice President cited in his letter a connected activities. Although it is purely dicta, inclusion of this chapter request made by Vice President in the report may be mischievous since John C. Calhoun in 1826 (dis- it might unjustifiably restrict the scope cussed at 3 Hinds’ Precedents of further investigation. § 1736). On that occasion, the al- Following the submission of the leged charges related to the Vice report, further proceedings President’s prior service as Sec- against Justice Douglas were dis- retary of War. The communication continued.(8) 7. 119 CONG. REC. 31368, 93d Cong. 1st 6. See § 14.16 infra. Sess.

2014 IMPEACHMENT POWERS Ch. 14 § 4 was referred on motion to a select The practice at the time of the committee which investigated the Pickering impeachment was to charges and subsequently re- present a resolution of impeach- ported to the House that no im- ment to the Senate and then to propriety had been found in the prepare and adopt articles of im- Vice President’s former conduct as peachment for presentation to the a civil officer under the United Senate. In that case, impeach- States. The report of the select ment proceedings begun in the committee was ordered to lie on 7th Congress were resumed by the the table and the House took no House in the 8th Congress.(10) further action thereon. The Vice President’s letter did not cite the The question arose in the 73d Committee on the Judiciary’s rec- Congress whether the appoint- ommendation to the House (dis- ment in the 72d Congress of cussed in 3 Hinds’ Precedents House managers to conduct im- § 2510) that conduct of Vice Presi- peachment proceedings against dent Colfax allegedly occurring Judge Louderback was such as to prior to his term as Vice President permit them to act in that func- was not grounds for impeachment, tion in the 73d Congress without since not ‘‘an act done or omitted a further grant of authority. The while the officer was in office.’’ House adopted in the 73d Con- (See § 5.14, infra). gress a resolution filling vacan- cies, making reappointments, and vesting the managers with powers § 4. Effect of Adjournment and granting them funds.(11) In the case of Judge Halsted L. Under parliamentary law, as Ritter, the House authorized and stated in Jefferson’s Manual, ‘‘an the Committee on the Judiciary impeachment is not discontinued conducted an impeachment inves- by the dissolution of Parliament, tigation in the 73d Congress, with but may be resumed by the new ( ) Parliament.’’ 8 Both Judge John olution impeaching Judge Pickering, Pickering and Judge Harold and § 4.1, infra, for the presentation Louderback were impeached by to the Senate of the resolution im- the House in one Congress and peaching Judge Louderback. tried by the Senate in the next.(9) 10. See 3 Hinds’ Precedents § 2321. For the later practice of presenting to 8. House Rules and Manual § 620 (Jef- the Senate a resolution together ferson’s Manual) (1973). with articles of impeachment, see 9. See 3 Hinds’ Precedents §§ 2319, § 8.1, infra. 2320, for the presentation of the res- 11. See § 4.2, infra.

2015