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Moot Court: Nixon V College of William & Mary Law School William & Mary Law School Scholarship Repository Supreme Court Preview Conferences, Events, and Lectures 1992 Section 1: Moot Court: Nixon v. United States Institute of Bill of Rights Law at the William & Mary Law School Repository Citation Institute of Bill of Rights Law at the William & Mary Law School, "Section 1: Moot Court: Nixon v. United States" (1992). Supreme Court Preview. 17. https://scholarship.law.wm.edu/preview/17 Copyright c 1992 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/preview MOOT COURT NIXON V. UNITED STATES Lower Court Opinion Article: The Constitutional Limits to Impeachment and its Alternatives, Michael J. Gerhardt 91-740 NIXON v. U.S. Impeachment of federal judge-Trial before Sen- ate committee. Ruling below (CA DC, 938 F2d 239. 60 LW 2055): Impeached federal judge's claim that U.S. Sen- ate violated its constitutional duty to "try" his impeachment by delegating evidence-gathering function to special committee is not justiciable. Questions presented: (1) Does refusal of court of appeals to review claim that Senate committee trial is unconstitutional contrary to holding in Powell v.- McCormack, 395 U.S. 486 (1969). disrupt constitutional balance of powers, and threaten judicial independence? (2) Does com- mittee trial on perjury charges, in which 88 members of Senate are unable to evaluate witness credibility, violate express constitutional com- mand that Senate "try all Impeachments"? Petition for certiorari filed 11/4/91, by David Overlock Stewart, Peter M. Brody, Thomas B. Smith, and Ropes & Gray, all of Washington. D.C., and Boyce Holleman, and Michael B. Holleman, both of Gulfport. Miss. NIXON v. U.S. 239 Cite as 938 F.2d 239 (D.C. Cir. 1991) 11(d) (cautioning against manipulation of footnotes to evade specified page limits). Walter L. NIXON, Jr., Appellant, that he At argument counsel acknowledged V. himself had typed the briefs. UNITED STATES of America, et al. There is no excuse for counsel's flagrant disregard of this court's rule and orders. No. 90-5246. We waste precious time and resources United States Court of Appeals, and when compelled to measure margins District of Columbia Circuit. typefaces in the work submitted to us and to upbraid those lawyers who do not com- Argued March 14, 1991. ply with our rules or heed our orders. The Decided July 9, 1991. Seventh Circuit summed up the situation Rehearing Denied Aug. 6, 1991. quite well: Lawyers must comply with the rules and our orders rather than hope to put one Former Chief Judge of United States over on the court and to apologize when District Court was impeached in proceeding caught. The penalty for a violation during which Senate used committee to should smart. Even if only negligence take testimony and gather evidence. For- was at work, counsel must- learn to be mer judge sought declaratory judgment alert. The offense here "multiplied the that Senate's failure to give him full evi- proceedings" by requiring the judges and dentiary hearing before entire Senate vio- counsel for the Board to examine two lated its constitutional duty to "try" all sets of briefs for Westinghouse. We impeachments. The United States District accordingly use our power under 28 Court for the District of Columbia, 744 U.S.C. § 1927 and impose a penalty of F.Supp. 9, Louis F. Oberdorfer, J., granted $1,000. Counsel may not pass this penal- Government's motion to dismiss. Former ty on to Westinghouse. judge appealed. The Court of Appeals, Westinghouse Elec. Corp. v. NLRB, 809 Stephen F. Williams, Circuit Judge, held F.2d 419, 425 (7th Cir.1987); see also EDC, that whether Senate followed proper proce- Inc. v. Navistar Int'l Transp. Corp., 915 dures when it "tried" judge's impeachment F.2d 1082 (7th Cir.1990). We agree with was nonjusticiable issue. the Seventh Circuit's approach. Pursuant to 28 U.S.C. § 1927, we order Williams's Affirmed. counsel personally to pay to the clerk of Randolph, Circuit Judge, concurred this court a penalty in the amount of $500. and filed opinion. Williams's counsel is further instructed Harry T. Edwards, J., dissented in that he is not to pass the penalty on to part, concurred in judgment, and filed opin- Williams. ion. In conclusion, we affirm the district court in all respects except its calculation of the cost of capital award. We remand Constitutional Law E70.1(7) for recalculation of that award and also Judges 0-11(5) sanction Williams's lawyer for his repeated Claim that Senate's use of committee failure to comply with our rule and orders. to take testimony and gather evidence dur- It is so ordered. ing proceedings to impeach United States District Court judge violated Senate's con- stitutional duty to try all impeachments (0 xEYNUMH R SYSTEM was nonjusticiable; Senate had sole discre- tion to choose its procedure. (Per Williams, Circuit Judge, with one Circuit Judge concurring in separate opinion.) U.S.C.A. Const. Art. 1,- § 3, cl. 6. - - 240 938 FEDERAL REPORTER, 2d SERIES Appeal from the United States District process. We find Nixon's claim nonjustici- Court for the District of Columbia. able. David 0. Stewart, with whom Peter M. Brody was on the brief, Washington, D.C., After an investigation into reports that for appellant. Nixon had asked a local district attorney to stop the prosecution of a man whose father Douglas Letter, Atty., Dept. of Justice, had enriched Nixon through an investment with whom Stuart M. Gerson, Asst. Atty. scheme, a grand jury indicted Nixon on one Gen., and Jay B. Stephens, U.S. Atty., were count of receiving an illegal gratuity and on the brief, Washington, D.C., for appel- three counts of perjury before the grand lees. jury. At trial, Nixon was convicted on two Morgan J. Frankel, Asst. Senate Legal counts of perjury and acquitted on the oth- Counsel, with whom Michael Davidson, er two counts. He was sentenced to pris- Senate Legal Counsel, and Ken U. Benja- on, and his conviction was affirmed on ap- min, Jr., Deputy Senate Legal Counsel, peal. See United States v. Nixon, 816 were on the brief, Washington, D.C., for F.2d 1022 (5th Cir.1987); see also United amicus curiae urging that the judgment of States v. Nixon, 881 F.2d 1305 (5th Cir. the District Court be affirmed. 1989) (affirming the denial of Nixon's mo- tion for a new trial). Before EDWARDS, WILLIAMS and Even after this conviction, Walter Nixon RANDOLPH, Circuit Judges. refused to resign from his office as a Unit- ed States district judge, and while serving Opinion for the Court filed by Circuit time in prison he continued to draw his Judge STEPHEN F. WILLIAMS. judicial salary. See H.R.Rep. No. 36, 101st Cong., 1st Sess. 13 (1989). The House of Concurring opinion filed by Circuit Representatives began impeachment pro- Judge RANDOLPH. ceedings, see id., and on May 10, 1989, it voted to impeach Nixon on three articles Opinion dissenting in part and charging him with giving false testimony concurring in the judgment filed by to the grand jury and bringing disrepute on Circuit Judge HARRY T. EDWARDS. the federal judiciary. See 135 Cong.Rec. H1811 (daily ed. May 10, 1989). STEPHEN F. WILLIAMS, Circuit Judge: When these articles of impeachment were presented to the Senate, it invoked its Walter L Nixon, Jr., formerly the Chief own Impeachment Rule XI, under which Judge of the U.S. District Court for the the presiding officer appoints a committee Southern District of Mississippi, was im- of twelve senators "to receive evidence and peached by the House of Representatives take testimony". S.Imp.R. XI, reprinted and convicted by the Senate for giving in Senate Manual, S.Doc. No. 1, 101st false testimony to a grand jury investigat- Cong., 1st Sess. 186 (1989); see S.Res. 128, ing allegations that he had been bribed. 101st Cong., 1st Sess., 135 Cong.Rec. S5199 Nixon seeks judicial review of the Senate's (daily ed. May 11, 1989). The committee procedures-in particular, its use of a com- conducted four days of hearings, taking mittee to take testimony and gather other live testimony from ten witnesses, includ- evidence. ing Nixon himself. See S.Rep. No. 164, The Constitutional Convention, however, 101st Cong., 1st Sess. 4 (1989). It then gave the Senate "the sole Power to try all transmitted to the full Senate a complete Impeachments", Art. I, § 3, cl. 6 (emphasis record of the evidence and a report, sum- added). It not only rejected proposals to marizing both the undisputed and disputed assign the power to the federal courts, but facts of the case without resolving contest- it did so for reasons that are almost impos- ed issues or recommending any particular sible to square with any judicial role in the disposition of the charges. See id. at 3-4. NIXO N v. U.S. 9 241 Cite as 38 F2d 239 (D.C. Cir. 1991) After considering final briefs, hearing ar- vention and the uniform opinion of the guments on the Senate floor from both the authorities which have considered this impeachment managers and the defense, matter. from Nixon including a personal appeal Id. Indeed, the unanimous rejection of ju- himself, and posing questions to the par- dicial review to which the court refers ties, see 135 Cong.Rec. S14,493-517 (daily seems not to have been breached until ed. Nov. 1, 1989), the Senate voted by more Raoul Berger 20 years ago used a rather than the constitutionally prescribed two- casual reading of Powell v.
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