APPENDIX Report by the Staff of the Impeachment Inquiry on the Constitutional Grounds for Presidential Impeachment, Print, Committee on the Judiciary, 93d Cong. 2d Sess., Feb. 1974

I. Introduction

The Constitution deals with the subject moval from Office, and disqualification of impeachment and conviction at six to hold and enjoy any Office of honor, places. The scope of the power is set out Trust or Profit under the United in Article II, Section 4: States: but the Party convicted shall nevertheless be liable and subject to The President, Vice President and Indictment, Trial, Judgment and Pun- all civil Officers of the United States, ishment, according to Law. shall be removed from Office on Im- peachment for, and Conviction of, Of lesser significance, although men- Treason, Bribery, or other high Crimes tioning the subject, are: Article II, Sec- and Misdemeanors. tion 2: Other provisions deal with procedures The President . . . shall have Power and consequences. Article I, Section 2 to grant Reprieves and Pardons for states: Offences against the United States, ex- cept in Cases of Impeachment. The House of Representatives . .. Article III, Section 2: shall have the sole Power of Impeach- ment. The Trial of all Crimes, except in Cases of Impeachment, shall be by Similarly, Article I, Section 3, de- Jury. . . . scribes the Senate’s role: Before November 15, 1973 a number of The Senate shall have the sole Resolutions calling for the impeachment Power to try all Impeachments. When of President Richard M. Nixon had been sitting for that Purpose, they shall be introduced in the House of Representa- on Oath or Affirmation. When the tives, and had been referred by the President of the United States is tried, of the House, Hon. Carl Albert, the Chief Justice shall preside: And no to the Committee on the Judiciary for Person shall be convicted without the consideration, investigation and report. Concurrence of two thirds of the Mem- On November 15, anticipating the mag- bers present. nitude of the Committee’s task, the House voted funds to enable the Com- The same section limits the con- mittee to carry out its assignment and in sequences of judgment in cases of im- that regard to select an inquiry staff to peachment: assist the Committee. Judgment in Cases of Impeachment On February 6, 1974, the House of shall not extend further than to re- Representatives by a vote of 410 to 4

2247 Ch. 14 App. DESCHLER’S PRECEDENTS

‘‘authorized and directed’’ the Committee ticular facts in terms of the Constitution. on the Judiciary ‘‘to investigate fully and Similarly, the House does not engage in completely whether sufficient grounds abstract, advisory or hypothetical de- exist for the House of Representatives to bates about the precise nature of conduct exercise its constitutional power to im- that calls for the exercise of its constitu- peach Richard M. Nixon, President of the tional powers; rather, it must await full United States of America.’’ development of the facts and under- To implement the authorization (H. standing of the events to which those Res. 803) the House also provided that facts relate. ‘‘For the purpose of making such inves- What is said here does not reflect any tigation, the committee is authorized to prejudgment of the facts or any opinion require . . . by subpoena or otherwise or inference respecting the allegations . . . the attendance and testimony of any being investigated. This memorandum is person . . . and . . . the production of written before completion of the full and such things; and . . . by interrogatory, fair factual investigation the House di- the furnishing of such information, as it rected be undertaken. It is intended to be deems necessary to such investigation.’’ a review of the precedents and available This was but the second time in the interpretive materials, seeking general history of the United States that the principles to guide the Committee. House of Representatives resolved to in- This memorandum offers no fixed vestigate the possibility of impeachment standards for determining whether of a President. Some 107 years earlier grounds for impeachment exist. The the House had investigated whether framers did not write a fixed standard. President Andrew Johnson should be im- Instead they adopted from English his- peached. Understandably, little attention tory a standard sufficiently general and or thought has been given the subject of flexible to meet future circumstances and the presidential impeachment process events, the nature and character of during the intervening years. The In- which they could not foresee. quiry Staff, at the request of the Judici- The House has set in motion an un- ary Committee, has prepared this memo- usual constitutional process, conferred randum on constitutional grounds for solely upon it by the Constitution, by di- presidential impeachment. As the factual recting the Judiciary Committee to ‘‘in- investigation progresses, it will become vestigate fully and completely whether possible to state more specifically the sufficient grounds exist for the House of constitutional, legal and conceptual Representatives to exercise its constitu- framework within which the staff and tional power to impeach.’’ This action the Committee work. was not partisan. It was supported by Delicate issues of basic constitutional the overwhelming of both polit- law are involved. Those issues cannot be ical parties. Nor was it intended to ob- defined in detail in advance of full inves- struct or weaken the presidency. It was tigation of the facts. The Supreme Court supported by Members firmly committed of the United States does not reach out, to the need for a strong presidency and in the abstract, to rule on the constitu- a healthy executive branch of our govern- tionality of statutes or of conduct. Cases ment. The House of Representatives must be brought and adjudicated on par- acted out of a clear sense of constitu-

2248 IMPEACHMENT POWERS—APPENDIX Ch. 14 App. tional duty to resolve issues of a kind reports upon the history, purpose and that more familiar constitutional proc- meaning of the constitutional phrase, esses are unable to resolve. To assist the Committee in working to- ‘‘Treason, Bribery, or other high Crimes ward that resolution, this memorandum and Misdemeanors.’’

II. The Historical Origins of Impeachment

The Constitution provides that the Parliament developed the impeach- President ‘‘. . . shall be removed from ment process as a means to exercise Office on Impeachment for, and Convic- some measure of control over the power tion of, Treason, Bribery, or other high of the King. An impeachment proceeding Crimes and Misdemeanors.’’ The framers in England was a direct method of bring- could have written simply ‘‘or other ing to account the King’s ministers and crimes’’—as indeed they did in the provi- favorites—men who might otherwise sion for extradition of criminal offenders have been beyond reach. Impeachment, from one state to another. They did not at least in its early history, has been do that. If they had meant simply to de- called ‘‘the most powerful weapon in the note seriousness, they could have done so political armoury, short of civil war.’’ (1) It directly. They did not do that either. played a continuing role in the struggles They adopted instead a unique phrase between King and Parliament that re- used for centuries in English parliamen- sulted in the formation of the unwritten tary impeachments, for the meaning of English constitution. In this respect im- which one must look to history. peachment was one of the tools used by The origins and use of impeachment in the English Parliament to create more England, the circumstances under which responsive and responsible government impeachment became a part of the Amer- and to redress imbalances when they oc- ican constitutional system, and the curred.(2) American experience with impeachment The long struggle by Parliament to as- are the best available sources for devel- sert legal restraints over the unbridled oping an understanding of the function of will of the King ultimately reached a cli- impeachment and the circumstances in max with the execution of Charles I in which it may become appropriate in rela- 1649 and the establishment of the Com- tion to the presidency. monwealth under Oliver Cromwell. In the course of that struggle, Parliament A. THE NGLISH ARLIAMENTARY E P sought to exert restraints over the King PRACTICE by removing those of his ministers who Alexander Hamilton wrote, in No. 65 of most effectively advanced the King’s ab- The Federalist, that Great Britain had solutist purposes. Chief among them was served as ‘‘the model from which [im- peachment] has been borrowed.’’ Accord- 1. Plucknett, ‘‘Presidential Address’’ reproduced ingly, its history in England is useful to in 3 Transactions, Royal Historical Society, 5th Series, 145 (1952). an understanding of the purpose and 2. See generally C. Roberts, The Growth of Re- scope of impeachment in the United sponsible Government in Stuart England (Cam- States. bridge 1966).

2249 Ch. 14 App. DESCHLER’S PRECEDENTS

Thomas Wentworth, Earl of Strafford. fenses, as perceived by Parliament, The House of Commons impeached him against the system of government. The in 1640. As with earlier impeachments, charges, variously denominated ‘‘trea- the thrust of the charge was damage to son,’’ ‘‘high treason,’’ ‘‘misdemeanors,’’ (3) the state. The first article of impeach- ‘‘malversations,’’ and ‘‘high Crimes and ment alleged.(4) Misdemeanors,’’ thus included allega- That he . . . hath traiterously en- tions of misconduct as various as the deavored to subvert the Fundamental kings (or their ministers) were ingenious Laws and Government of the Realms in devising means of expanding royal . . . and in stead thereof, to introduce power. Arbitrary and Tyrannical Government against Law. . . . At the time of the Constitutional (Con- vention the phrase ‘‘high Crimes and The other articles against Strafford in- Misdemeanors’’ had been in use for over cluded charges ranging from the allega- 400 years in impeachment proceedings in tion that he had assumed regal power Parliament.(6) It first appears in 1386 in and exercised it tyrannically to the the impeachment of the King’s Chan- charge that he had subverted the rights cellor, Michael de la Pole, Earl of Suf- of Parliament.(5) folk.(7) Some of the charges may have in- Characteristically, impeachment was volved common law offenses.(8) Others used in individual cases to reach of- 6. See generally A. Simpson, A Treatise on Fed- 3. Strafford was charged with treason, a term de- eral Impeachments 81–190 (Philadelphia, 1916) fined in 1352 by the Statute of Treasons. 25 (Appendix of English Impeachment Trials); M. Edw. 3, stat. 5, c. 2 (1352). The particular V. Clarke, ‘‘The Origin of Impeachment’’ in Ox- charges against him presumably would have ford Essays in Medieval History 164 (Oxford, been within the compass of the general, or 1934). Reading and analyzing the early history ‘‘salvo,’’ clause of that statute, but did not fall of English impeachments is complicated by the within any of the enumerated acts of treason. paucity and ambiguity of the records. The anal- Strafford rested his defense in part on that fail- ysis that follows in this section has been drawn ure; his eloquence on the question of retrospec- largely from the scholarship of others, checked tive treasons (‘‘Beware you do not awake these against the original records where possible. sleeping lions, by the searching out some ne- The basis for what became the impeachment glected moth-eaten records, they may one day procedure apparently originated in 1341, when tear you and your posterity in pieces: it was the King and Parliament alike accepted the your ancestors’ care to chain them up within principle that the King’s ministers were to an- the barricadoes of statutes; be not you ambi- swer in Parliament for their misdeeds. C. Rob- tious to be more skillful and curious than your erts, supra n. 2, at 7. Offenses against Magna forefathers in the art of killing.’’ Celebrated Carta, for example, were failing for technical- Trials 518 [Phila. 1837]) may have dissuaded ities in the ordinary courts, and therefore Par- the Commons from bringing the trial to a vote liament provided that offenders against Magna in the House of Lords: instead they caused his Carta be declared in Parliament and judged by execution by bill of attainder. their peers. Clarke, supra, at 173. 4. J. Rushworth, The Tryal of Thomas Earl of 7. Simpson, supra n. 6, at 86; Berger, supra n. 5, Strafford, in 8 Historical Collections 8 (1686). at 61, Adams and Stevens, Select Documents of 5. Rushworth, supra n. 4, at 8–9. R. Berger, Im- English Constitutional History 148 (London, peachment: The Constitutional Problems 30 1927). (1973), states that the impeachment of Straf- 8. For example, de la Pole was charged with pur- ford ‘‘. . . constitutes a great watershed in chasing property of great value from the King English constitutional history of which the while using his position as Chancellor to have Founders were aware.’’ the lands appraised at less than they were

2250 IMPEACHMENT POWERS—APPENDIX Ch. 14 App. plainly did not: de la Pole was charged case of Strafford; others charged high with breaking a promise he made to the crimes and misdemeanors. The latter in- full Parliament to execute in connection cluded both statutory offenses, particu- with a parliamentary ordinance the ad- larly with respect to the Crown monopo- vice of a committee of nine lords regard- lies, and nonstatutory offenses. For ex- ing the improvement of the estate of the ample, Sir Henry Yelverton, the King’s King and the realm; ‘‘this was not done, Attorney General, was impeached in and it was the fault of himself as he was 1621 of high crimes and misdemeanors then chief officer.’’ He was also charged in that he failed to prosecute after com- with failing to expend a sum that Par- mencing suits, and exercised authority liament had directed be used to ransom before it was properly vested in him.(13) the town of Ghent, because of which ‘‘the There were no impeachments during ( ) said town was lost.’’ 9 the Commonwealth (1649–1660). Fol- The phrase does not reappear in im- lowing the end of the Commonwealth peachment proceedings until 1450. In and the Restoration of Charles II (1660– that year articles of impeachment 1685) a more powerful Parliament ex- against William de la Pole, Duke of Suf- panded somewhat the scope of ‘‘high folk (a descendant of Michael), charged Crimes and Misdemeanors’’ by impeach- him with several acts of high treason, ing officers of the Crown for such things but also with ‘‘high Crimes and Mis- as negligent discharge of duties (14) and (10) demeanors,’’ including such various improprieties in office.(15) offenses as ‘‘advising the King to grant The phrase ‘‘high Crimes and Mis- liberties and privileges to certain persons demeanors’’ appears in nearly all of the to the hindrance of the due execution of comparatively few impeachments that oc- the laws’’ ‘‘procuring offices for persons curred in the eighteenth century. Many who were unfit, and unworthy of them’’ of the charges involved abuse of official and ‘‘squandering away the public treas- power or trust. For example, Edward, ure.’’ (11) Earl of Oxford, was charged in 1701 with Impeachment was used frequently dur- ‘‘violation of his duty and trust’’ in that, ing the reigns of James I (1603–1625) and Charles I (1628–1649). During the 13. 2 Howell State Trials 1135, 1136–37 (charges 1, period from 1620 to 1649 over 100 im- 2 and 6). See generally Simpson, supra n. 6, at peachments were voted by the House of 91–127; Berger, supra n. 5, at 67–73. Commons.(12) Some of these impeach- 14. Peter Pett, Commissioner of the Navy, was charged in 1668 with negligent preparation for ments charged high treason, as in the an invasion by the Dutch, and negligent loss of a ship. The latter charge was predicated on al- worth, all in violation of his oath, in deceit of leged willful neglect in failing to insure that the King and in neglect of the need of the the ship was brought to a mooring. 6 Howell realm. Adams and Stevens, supra n. 7, at 148. State Trials 865, 866–67 (charges 1, 5). 9. Adams and Stevens, supra n. 7, at 148–150. 15. Chief Justice Scroggs was charged in 1680, 10. 4 Hatsell 67 (Shannon, Ireland, 1971, reprint among other things, with browbeating wit- of London 1796, 1818). nesses and commenting on their credibility, 11. 4 Hatsell, supra n. 10, at 67, charges 2, 6 and and with cursing and drinking to excess, there- 12. by bringing ‘‘the highest scandal on the public 12. The Long Parliament (1640–48) alone im- justice of the kingdom.’’ 8 Howell State Trials peached 98 persons. Roberts supra n. 2, at 133. 197, 200 (charges 7, 8).

2251 Ch. 14 App. DESCHLER’S PRECEDENTS while a member of the King’s privy coun- Two points emerge from the 400 years cil, he took advantage of the ready access of English parliamentary experience with he had to the King to secure various the phrase ‘‘high Crimes and Mis- royal rents and revenues for his own use, demeanors.’’ First, the particular allega- thereby greatly diminishing the revenues tions of misconduct alleged damage to of the crown and subjecting the people of the state in such forms as misapplication England to ‘‘grievous taxes.’’(16), Oxford of funds, abuse of official power, neglect was also charged with procuring a naval of duty, encroachment on Parliament’s commission for William Kidd, ‘‘known to prerogatives, corruption, and betrayal of be a person of ill fame and reputation,’’ trust.(20) Second, the phrase ‘‘high and ordering him ‘‘to pursue the in- Crimes and Misdemeanors’’ was confined tended voyage, in which Kidd did commit to parliamentary impeachments; it had ( ) diverse piracies . . . being thereto en- no roots in the ordinary criminal law, 21 couraged through hopes of being pro- and the particular allegations of mis- tected by the high station and interest of conduct under that heading were not Oxford, in violation of the law of nations, necessarily limited to common law or and the interruption and discouragement statutory derelictions or crimes. of the trade of England.’’(17) B. THE INTENTION OF THE FRAMERS The impeachment of Warren Hastings, first attempted in 1786 and concluded in The debates on impeachment at the 1795,(18) is particularly important be- Constitutional Convention in Philadel- cause contemporaneous with the Amer- phia focus principally on its applicability ican Convention debates. Hastings was to the President. The framers sought to the first Governor-General of India. The create a responsible though strong execu- articles indicate that Hastings was being tive; they hoped, in the words of Elbridge charged with high crimes and mis- Gerry of Massachusetts, that ‘‘the maxim demeanors in the form of gross mal- would never be adopted here that the ( ) administration, corruption in office, and chief Magistrate could do [no] wrong.’’ 22 cruelty toward the people of India.(19) Impeachment was to be one of the cen- tral elements of executive responsibility 16. Simpson, supra n. 6, at 144. 17. Simpson, supra n. 6, at 144. tinguished principles of good faith, equity, mod- 18. See generally Marshall, The Impeachment of eration and mildness.’’ Instead, continued the Warren Hastings (Oxford, 1965). charge, Hastings provoked a revolt in Benares, 19. Of the original resolutions proposed by Ed- resulting in ‘‘the arrest of the rajah, three revo- mund Burke in 1786 and accepted by the lutions in the country and great loss, whereby House as articles of impeachment in 1787, both the said Hastings is guilty of a high crime and criminal and non-criminal offenses appear. The misdemeanor in the destruction of the country fourth article, for example, charging that aforesaid.’’ The Commons accepted this article, Hastings had confiscated the landed income of voting 119–79 that these were grounds for im- the Begums of Oudh, was described by Pitt as peachment. Simpson, supra n. 6, at 168–170; that of all others that bore the strongest marks Marshall, supra n. 19, at xv, 46. of criminality, Marshall, supra, n. 19, at 53. 20. See, e.g., Berger, supra n. 5, at 70–71. The third article, on the other hand, known 21. Berger, supra n. 5, at 62. as the Benares charge, claimed that cir- 22. The Records of the Federal Convention 66 (M. cumstances imposed upon the Governor-Gen- Farrand ed. 1911) (brackets in original). Here- eral duty to conduct himself ‘‘on the most dis- after cited as Farrand.

2252 IMPEACHMENT POWERS—APPENDIX Ch. 14 App. in the framework of the new government arate executive judiciary, and legisla- as they conceived it. ture.(23) However, the framers sought to The constitutional grounds for im- avoid the creation of a too-powerful exec- peachment of the President received lit- utive. The Revolution had been fought tle direct attention in the Convention; against the tyranny of a king and his the phrase ‘‘other high Crimes and Mis- council, and the framers sought to build demeanors’’ was ultimately added to in safeguards against executive abuse ‘‘Treason’’ and ‘‘Bribery’’ with virtually no and usurpation of power. They explicitly debate. There is evidence, however, that rejected a plural executive, despite argu- the framers were aware of the technical ments that they were creating ‘‘the foe- ( ) meaning the phrase had acquired in tus of monarchy,’’ 24 because a single English impeachments. person would give the most responsibility (25) Ratification by nine states was re- to the office. For the same reason, they rejected proposals for a council of quired to convert the Constitution from a advice or privy council to the executive proposed plan of government to the su- (footnote omitted). preme law of the land. The public de- bates in the state ratifying conventions The provision for a single executive offer evidence of the contemporaneous was vigorously defended at the time of the state ratifying conventions as a pro- understanding of the Constitution equal- tection against executive tyranny and ly as compelling as the secret delibera- wrongdoing. Alexander Hamilton made tions of the delegates in Philadelphia. the most carefully reasoned argument in That evidence, together with the evi- Federalist No. 70, one of the series of dence found in the debates during prepared to advocate First Congress on the power of the Presi- the ratification of the Constitution by the dent to discharge an executive officer ap- State of New York. Hamilton criticized pointed with the advice and consent of both a plural executive and a council be- the Senate, shows that the framers in- cause they tend ‘‘to conceal faults and de- tended impeachment to be a constitu- stroy responsibility.’’ A plural executive, tional safeguard of the public trust, the he wrote, deprives the people of ‘‘the two powers of government conferred upon the greatest securities they can have for the President and other civil officers, and the faithful exercise of any delegated division of powers among the legislative, power’’—‘‘[r]esponsibility . . . to judicial and executive departments. and to punishment.’’ When censure is di- vided and responsibility uncertain, ‘‘the 1. THE PURPOSE OF THE IMPEACHMENT restraints of public opinion . . . lose REMEDY their efficacy’’ and ‘‘the opportunity of Among the weaknesses of the Articles discovering with facility and clearness of Confederation apparent to the dele- gates to the Constitutional Convention 23. 1 Farrand 322. was that they provided for a purely legis- 24. 1 Farrand 66. lative form of government whose min- 25. This argument was made by James Wilson of Pennsylvania, who also said that he preferred isters were subservient to Congress. One a single executive as ‘‘giving most energy dis- of the first decisions of the delegates was patch and responsibility to the office.’’ 1 that their new plan should include a sep- Farrand 65.

2253 Ch. 14 App. DESCHLER’S PRECEDENTS the misconduct of the persons [the pub- is to be . . . personally responsible for lic] trust, in order either to their removal any abuse of the great trust reposed in from office, or to their actual punish- him.’’ (29) In the same convention, Wil- ment. in cases which admit of it’’ is liam R. Davie, who had been a delegate lost.(26) A council, too, ‘‘would serve to de- in Philadelphia, explained that the ‘‘pre- stroy, or would greatly diminish, the in- dominant principle’’ on which the Con- tended and necessary responsibility of vention had provided for a single execu- the (Chief Magistrate himself.’’(27) It is, tive was ‘‘the more obvious responsibility Hamilton concluded, ‘‘far more safe [that] of one person.’’ When there was but one there should be a single object for the man, said Davie, ‘‘the public were never jealousy and watchfulness of the people; at a loss’’ to fix the blame.(30) . . . all multiplication of the Executive is James Wilson, in the Pennsylvania rather dangerous than friendly to lib- convention, described the security fur- erty.’’ (28) nished by a single executive as one of its James Iredell, who played a leading ‘‘very important advantages’’: role in the North Carolina ratifying con- The executive power is better to be vention and later became a justice of the trusted when it has no screen. Sir, we Supreme Court, said that under the pro- have a responsibility in the person of posed Constitution the President ‘‘is of a our President; he cannot act improp- very different nature from a monarch. He erly, and hide either his negligence or 26. The Federalist No. 70, at 459–61 (Modern Li- inattention; he cannot roll upon any brary ea.) (A. Hamilton) (hereinafter cited as other person the weight of his crimi- Federalist). The ‘‘multiplication of the Execu- nality; no appointment can take place tive,’’ Hamilton wrote, ‘‘adds to the difficulty of without his ; and he is re- detection’’: sponsible for every nomination he The circumstances which may have led to any national miscarriage of misfortune are makes. . . . Add to all this, that offi- sometimes so complicated that, where there cer is placed high, and is possessed of are a number of actors who may have had power far from being contemptible, yet different degrees and kinds of agency, though not a single privilege is annexed to his we may clearly see upon the whole that there character; far from being above the has been mismanagement, yet it may be im- practicable to pronounce to whose account laws, he is amenable to them in his the evil which may have been incurred is private character as a citizen, and in truly chargeable. his public character by impeach- If there should be ‘‘collusion between the par- ment.(31) ties concerned, how easy it is to clothe the cir- As Wilson’s statement suggests, the cumstances with so much ambiguity, as to impeachability of the President was con- render it uncertain what was the precise con- duct of any of those parties?’’ Id. at 460. sidered to be an important element of his 27. Federalist No. 70 at 461. Hamilton stated: responsibility. Impeachment had been in- A council to a magistrate, who is himself responsible for what he does, are generally 29. 4 J. Elliot, The Debates in the Several State nothing better than a clog upon his good in- Conventions on the Adoption of the Federal tentions, are often the instruments and ac- Constitution 74 (reprint of 2d ea.) (hereinafter complices of his bad, and are almost always cited as Elliot.) a cloak to his faults. Id. at 462–63. 30. Elliot 104. 28. Federalist No. 70 at 462. 31. 2 Elliot 480 (emphasis in original).

2254 IMPEACHMENT POWERS—APPENDIX Ch. 14 App. cluded in the proposals before the Con- executive could ‘‘do no criminal act with- stitutional Convention from its begin- out Coadjutors [assistants] who may be ning.(32) A specific provision, making the punished.’’ (36) Without his subordinates, executive removable from office on im- it was asserted, the executive ‘‘can do peachment and conviction for ‘‘mal-prac- nothing of consequence,’’ and they would tice or neglect of duty,’’ was unanimously ‘‘be amenable by impeachment to the adopted even before it was decided that public Justice.’’ (37) the executive would be a single per- This latter argument was made by ( ) son. 33 Gouverneur Morris of Pennsylvania, who The only major debate on the desir- abandoned it during the course of the de- ability of impeachment occurred when it bate, concluding that the executive was moved that the provision for im- should be impeachable.(38) Before Morris peachment be dropped, a motion that changed his position, however, George was defeated by a vote of eight states to Mason had replied to his earlier argu- ( ) two. 34 ment: One of the arguments made against the impeachability of the executive was Shall any man be above justice? that he ‘‘would periodically be tried for Above all shall that man be above it, his behavior by his electors’’ and ‘‘ought who can commit the most extensive in- to be subject to no intermediate trial, by justice? When great crimes were com- impeachment.’’ (35) Another was that the mitted he was for punishing the prin- cipal as well as the Coadjutors.(39) 32. The , fifteen resolutions proposed by Edmund Randolph at the beginning of the not be impeachable ‘‘whilst in office’’—an ap- Convention, served as the basis of its early de- parent allusion to the constitutions of Virginia liberations. The ninth resolution gave the na- and Delaware, which then provided that the tional judiciary jurisdiction over ‘‘impeach- governor (unlike other officers) could be im- ments of any National officers.’’ 1 Farrand 22. peached only after he left office. Id. See 7 33. 1 Farrand 88. Just before the adoption of this Thorpe, The Federal and State Constitutions provision, a proposal to make the executive re- 3818 (1909) and 1 Id. 566. In response to this movable from office by the legislature upon re- position, it was argued that corrupt elections quest of a majority of the state legislatures had would result, as an incumbent sought to keep been overwhelmingly rejected. Id. 87. In the his office in order to maintain his immunity course of debate on this proposal, it was sug- from impeachment. He will ‘‘spare no efforts or gested that the legislature ‘‘should have power no means whatever to get himself reelected,’’ to remove the Executive at pleasure’’—a sug- contended William R. Davie of North Carolina. gestion that was promptly criticized as making 2 Farrand 64. George Mason asserted that the him ‘‘the mere creature of the Legislature’’ in danger of corrupting electors ‘‘furnished a pecu- violation of ‘‘the fundamental principle of good liar reason in favor of impeachments whilst in Government,’’ and was never formally proposed office’’: ‘‘Shall the man who has practised cor- to the Convention. Id. 85–86. ruption & by that means procured his appoint- 34. 2 Farrand 64, 69. ment in the first instance, be suffered to escape 35. 2 Farrand 67 (Rufus King). Similarly, punishment, by repeating his guilt?’’ Id. 65. Gouverneur Morris contended that if an execu- 36. 2 Farrand 64. tive charged with a criminal act were reelected, 37. 2 Farrand 54. ‘‘that will be sufficient proof of his innocence.’’ 38. ‘‘This Magistrate is not the King but the prime- Id. 64. Minister. The people are the King.’’ 2 Farrand It was also argued in opposition to the im- 69. peachment provision, that the executive should 39. 2 Farrand 65.

2255 Ch. 14 App. DESCHLER’S PRECEDENTS

James Madison of Virginia argued in That issue, which involved the forum for favor of impeachment stating that some trying impeachments and the mode of provision was ‘‘indispensable’’ to defend electing the executive, troubled the Con- the community against ‘‘the incapacity, vention until its closing days. Through- negligence or perfidy of the chief Mag- out its deliberations on ways to avoid ex- istrate.’’ With a single executive, Madi- ecutive subservience to the legislature, son argued, unlike a legislature whose however, the Convention never reconsid- collective nature provided security, ‘‘loss ered its early decision to make the execu- of capacity or corruption was more with- tive removable through the process of im- in the compass of probable events, and peachment (footnote omitted). either of them might be fatal to the Re- public.’’ (40) Benjamin Franklin supported 2. ADOPTION OF ‘‘HIGH CRIMES AND impeachment as ‘‘favorable to the execu- MISDEMEANORS’’ tive’’; where it was not available and the Briefly, and late in the Convention, the chief magistrate had ‘‘rendered himself framers addressed the question how to obnoxious,’’ recourse was had to assas- describe the grounds for impeachment sination. The Constitution should provide consistent with its intended function. for the ‘‘regular punishment of the Exec- They did so only after the mode of the utive when his misconduct should de- President’s election was settled in a way serve it, and for his honorable acquittal that did not make him (in the words of when he should be unjustly accused.(41) James Wilson) ‘‘the Minion of the Sen- Edmund Randolph also defended ‘‘the ate.’’ (45) propriety of impeachments’’: The draft of the Constitution then be- The Executive will have great oppor- fore the Convention provided for his re- tunitys of abusing his power; particu- moval upon impeachment and conviction larly in time of war when the military for ‘‘treason or bribery.’’ George Mason force, and in some respects the public objected that these grounds were too lim- money will be in his hands. Should no ited: regular punishment be provided it will be irregularly inflicted by tumults & Why is the provision restrained to insurrections.(42) Treason & bribery only? Treason as de- fined in the Constitution will not reach The one argument made by the oppo- many great and dangerous offenses. nents of impeachment to which no direct Hastings is not guilty of Treason. At- response was made during the debate tempts to subvert the Constitution was that the executive would be too de- may not be Treason as above defined— pendent on the legislature—that, as As bills of attainder which have saved Charles Pinckney put it, the legislature the British Constitution are forbidden, would hold impeachment ‘‘as a rod over it is the more necessary to extend: the the Executive and by that means effec- power of impeachments.(46) tually destroy his independence.’’ (43) Mason then moved to add the word ‘‘mal- 40. 2 Farrand 65–66. administration’’ to the other two grounds. 41. 2 Farrand 65. 42. 2 Farrand 67. 45. 2 Farrand 523. 43. 2 Farrand 66. 46. 2 Farrand 550.

2256 IMPEACHMENT POWERS—APPENDIX Ch. 14 App.

Maladministration was a term in use in ‘‘high misdemeanor.’’ (51) A draft constitu- six of the thirteen state constitutions as tion had used ‘‘high misdemeanor’’ in its a ground for impeachment, including Ma- provision for the extradition of offenders ( ) son’s home state of Virginia.(47) from one state to another. 52 The Con- When James Madison objected that ‘‘so vention, apparently unanimously struck vague a term will be equivalent to a ten- ‘‘high misdemeanor’’ and inserted ‘‘other ure during pleasure of the Senate,’’ crime,’’ ‘‘in order to comprehend all prop- Mason withdrew ‘‘maladministration’’ er cases: it being doubtful whether ‘high and substituted ‘‘high crimes and mis- misdemeanor’ had not a technical mean- demeanors agst. the State,’’ which was ing too limited.(53) adopted eight states to three, apparently The ‘‘technical meaning’’ referred to is with no further debate.(48) the parliamentary use of the term ‘‘high That the framers were familiar with misdemeanor.’’ Blackstone’s Com- English parliamentary impeachment pro- mentaries on the Laws of England—a ceedings is clear. The impeachment of work cited by delegates in other portions Warren Hastings, Governor-General of of the Convention’s deliberations and India, for high crimes and misdemeanors which Madison later described (in the was voted just a few weeks before the be- Virginia ratifying convention) as ‘‘a book ginning of the Constitutional Convention which is in every man’s hand’’ (54)—in- and George Mason referred to it in the cluded ‘‘high misdemeanors’’ as one term debates.(49) Hamilton, in the Federalist No. 65, referred to Great Britain as ‘‘the 51. As a technical term, a ‘‘high’’ crime signified a model from which [impeachment] has crime against the system of government, not been borrowed.’’ Furthermore, the fram- merely a serious crime. ‘‘This element of injury ers were well-educated men. Many were to the commonwealth—that is, to the state also lawyers. Of these, at least nine had itself and to its constitution—was historically (50) the criterion for distinguishing a ‘high’ crime or studied law in England. misdemeanor from an ordinary one. The dis- The Convention had earlier dem- tinction goes back to the ancient law of trea- onstrated its familiarity with the term son, which differentiated ‘high’ from ‘petit’ trea- son.’’ Bestor, Book Review, 49 Wash. L Rev. 47. The grounds for impeachment of the Governor 255, 263–64 (1973). See 4 W. Blackstone, Com- of Virginia were ‘‘mal-administration, corrup- mentaries 75. tion, or other means, by which the safety of the 52. The provision (article XV of Committee draft of State may be endangered.’’ 7 Thorpe, The Fed- the Committee on Detail) originally read: ‘‘Any eral and State Constitution 3818 (1909). person charged with treason, felony or high 48. 2 Farrand 550. Mason’s wording was unani- misdemeanor in any State, who shall flee from mously changed later the same day from ‘‘agst. justice, and shall be found in any other State, the State’’ to ‘‘against the United States’’ in shall, on demand of the Executive power of the order to avoid ambiguity. This phrase was later State from which he fled, be delivered up and dropped in the final draft of the Constitution removed to the State having jurisdiction of the prepared by the Committee on Style and Revi- offence.’’ 2 Farrand 187–88. sion, which was charged with arranging and This clause was virtually identical with the improving the language of the articles adopted extradition clause contained in article IV of the by the Convention without altering its sub- Articles of Confederation, which referred to stance. ‘‘any Person guilty of, or charged with treason, 49. Id. felony, or other high misdemeanor in any state. 50. R. Berger, Impeachment: The Constitutional . . .’’ Problems 87, 89 and accompanying notes 53. 2 Farrand 443. (1973). 54. 3 Elliott 501.

2257 Ch. 14 App. DESCHLER’S PRECEDENTS for positive offenses ‘‘against the king scribing the grounds for impeachment of and government.’’ The ‘‘first and prin- the President. Mason’s objection to lim- cipal’’ high misdemeanor, according to iting the grounds to treason and bribery Blackstone, was ‘‘mal-administration of was that treason would ‘‘not reach many such high officers, as are in public trust great and dangerous offences’’ including and employment,’’ usually punished by ‘‘[a]ttempts to subvert the Constitu- ( ) the method of parliamentary impeach- tion.’’ 58 His willingness to substitute ment.(55) ‘‘high Crimes and Misdemeanors,’’ espe- cially given his apparent familiarity with ‘‘High Crimes and Misdemeanors’’ has the English use of the term as evidenced traditionally been considered a ‘‘term of by his reference to the Warren Hastings art,’’ like such other constitutional impeachment, suggests that he believed phrases as ‘‘levying war’’ and ‘‘due proc- ‘‘high crimes and Misdemeanors’’ would ess.’’ The Supreme Court has held that cover the offenses about which he was such phrases must be construed, not ac- concerned. cording to modern usage, but according Contemporaneous comments on the to what the framers meant when they scope of impeachment are persuasive as adopted them.(56) Chief Justice Marshall to the intention of the framers. In Fed- wrote of another such phrase: eralist No. 65, Alexander Hamilton de- scribed the subject of impeachment as: It is a technical term. It is used in a very old statute of that country whose those offences which proceed from the language is our language, and whose misconduct of public men, or, in other laws form the substratum of our laws. words, from the abuse or violation of It is scarcely conceivable that the term some public trust. They are of a nature was not employed by the framers of which may with peculiar propriety be our constitution in the sense which denominated POLITICAL, as they re- had been affixed to it by those from late chiefly to injuries done imme- whom we borrowed it.(57) diately to the society itself.(59) Comments in the state ratifying con- 3. GROUNDS FOR IMPEACHMENT ventions also suggest that those who Mason’s suggestion to add ‘‘maladmin- adopted the Constitution viewed im- istration,’’ Madison’s objection to it as peachment as a remedy for usurpation or ‘‘vague,’’ and Mason’s substitution of abuse of power or serious breach of trust. ‘‘high crimes and misdemeanors agst the Thus, Charles Cotesworth Pinckney of State’’ are the only comments in the stated that the impeach- Philadelphia convention specifically di- ment power of the House reaches ‘‘those who behave amiss, or betray their public rected to the constitutional language de- trust.’’ (60) Edmund Randolph said in the 55. 4 Blackstone’s Commentaries 121 (emphasis Virginia convention that the President ( ) omitted). may be impeached if he ‘‘misbehaves.’’ 61 56. See Murray v. Hoboken Land Co., 52 U.S. (18 How.) 272 (1856), Davidson v. New Orleans, 96 58. 2 Farrand 550. U.S. 97 (1878); Smith v. Alabama, 124 U.S. 465 59. The Federalist No. 65 at 423–24 (Modern Li- (1888). brary ed.) (A. Hamilton) (emphasis in original). 57. United States v. Burr, 25 Fed. Cas. 1, 159 (No. 60. 4 Elliot 281. 14, 693) (C.C.D. Va. 1807). 61. 3 Elliot 201.

2258 IMPEACHMENT POWERS—APPENDIX Ch. 14 App.

He later cited the example of the Presi- It has too often happened that pow- dent’s receipt of presents or emoluments ers delegated for the purpose of pro- from a foreign power in violation of the moting the happiness of a community constitutional prohibition of Article I, have been perverted to the advance- section 9.(62) In the same convention ment of the personal emoluments of George Mason argued that the President the agents of the people; but the pow- might use his pardoning power to ‘‘par- ers of the President are too well guard- don crimes which were advised by him- ed and checked to warrant this self’’ or, before indictment or conviction, illiberal aspersion.(65) ‘‘to stop inquiry and prevent detection.’’ Randolph also asserted, however, that James Madison responded: impeachment would not reach errors of [I]f the President be connected, in judgment: ‘‘No man ever thought of im- any suspicious manner, with any per- peaching a man for an opinion. It would son, and there be grounds to believe he be impossible to discover whether the will shelter him, the House of Rep- error in opinion resulted from a willful resentatives can impeach him; they mistake of the heart, or an involuntary (66) can remove him if found guilty. . . .(63) fault of the head.’’ James Iredell made a similar distinc- In reply to the suggestion that the Presi- tion in the North Carolina convention, dent could summon the Senators of only and on the basis of this principle said, ‘‘I a few states to ratify a treaty, Madison suppose the only instances, in which the said, President would be liable to impeach- ment, would be where he has received a Were the President to commit any bribe, or had acted from some corrupt thing so atrocious . . . he would be im- motive or other.’’ (67) But he went on to peached and convicted, as a majority of argue that the President must certainly the states would be affected by his be punishable for giving false informa- ( ) misdemeanor. 64 tion to the Senate. He is to regulate all Edmund Randolph referred to the checks intercourse with foreign powers, and it is upon the President: his duty to impart to the Senate every material intelligence he receives. If it 62. 3 Elliot 486. should appear that he has not given 63. 3 Elliot 497–98. Madison went on to say, con- them full information, but has concealed trary to his position in the Philadelphia con- important intelligence which he ought to vention, that the President could be suspended when suspected, and his powers would devolve have communicated, and by that means on the Vice President, who could likewise be induced them to enter into measures in- suspended until impeached and convicted, if he jurious to their country, and which they were also suspected. Id. 498. would not have consented to had the true 64. 3 Elliot 500. John Rutledge of South Carolina state of things been disclosed to them— made the same point, asking ‘‘whether gentle- in this case, I ask whether, upon an im- men seriously could suppose that a President, who has a character at stake, would be such a peachment for a misdemeanor upon such fool and knave as to join with ten others [two- thirds of a minimal of the Senate] to 65. 3 Elliot 117. tear up liberty by the roots, when a full Senate 66. 3 Elliot 401. were competent to impeach him.’’ 4 Elliot 268. 67. 4 Elliot 126.

2259 Ch. 14 App. DESCHLER’S PRECEDENTS an account, the Senate would probably Madison argued during the debate that favor him.(68) the President would be subject to im- In short, the framers who discussed peachment for ‘‘the wanton removal of impeachment in the state ratifying con- meritorious officers.’’ (71) He also con- ventions, as well as other delegates who tended that the power of the President favored the Constitution,(69) implied that unilaterally to remove subordinates was it reached offenses against the govern- ‘‘absolutely necessary’’ because ‘‘it will ment, and especially abuses of constitu- make him in a peculiar manner, respon- tional duties. The opponents did not sible for [the] conduct’’ of executive offi- argue that the grounds for impeachment cers. It would, Madison said, had been limited to criminal offenses. subject him to impeachment himself, if An extensive discussion of the scope of he suffers them to perpetrate with im- the impeachment power occurred in the punity high crimes or misdemeanors House of Representatives in the First against the United States, or neglects Session of the First Congress. The House to superintend their conduct, so as to was debating the power of the President check their excesses.(72) to remove the head of an executive de- partment appointed by him with the ad- Elbridge Gerry of Massachusetts, who vice and consent of the Senate, an issue had also been a framer though he had on which it ultimately adopted the posi- opposed the ratification of the Constitu- tion, urged primarily by James Madison, tion, disagreed with Madison’s conten- that the Constitution vested the power tions about the impeachability of the exclusively in the President. The discus- President. He could not be impeached for sion in the House lends support to the dismissing a good officer, Gerry said, be- view that the framers intended the im- cause he would be ‘‘doing an act which peachment power to reach failure of the the Legislature has submitted to his dis- President to discharge the responsibil- cretion.(73) And he should not be held re- ities of his office.(70) sponsible for the acts of subordinate offi- cers, who were themselves subject to im- 68. 4 Elliot 127. peachment and should bear their own re- 69. For example, Wilson Nicholas in the Virginia (74) convention asserted that the President ‘‘is per- sponsibility. sonally amenable for his mal-administration’’ through impeachment, 3 Elliot 17; George tional decisions of the First Congress ‘‘have al- Nicholas in the same convention referred to the ways been regarded, as they should be re- President’s impeachability if he ‘‘deviates from garded, as of the greatest weight in the inter- his duty,’’ id. 240. Archibald MacLaine in the pretation of that fundamental instrument.’’ 272 South Carolina convention also referred to the U.S. 52, 174–75 (1926). President’s impeachability for ‘‘any maladmin- 71. 1 Annals of Cong. 498 (1789). istration in his office,’’ 4 Elliot 47; and Rev- 72. Id. 372–73. erend Samuel Stillman of Massachusetts re- 73. Id. 502. ferred to his impeachability for ‘‘malconduct,’’ 74. Id. 535–36. Gerry also implied, perhaps rhe- asking, ‘‘With such a prospect, who will dare to torically, that a violation of the Constitution abuse the powers vested in him by the people?’’ was grounds for impeachment. If, he said, the 2 Elliot 169. Constitution failed to include provision for re- 70. Chief Justice Taft wrote with reference to the moval of executive officers, an attempt by the removal power debate in the opinion for the legislature to cure the omission would be an at- Court in Myers v. United States, that constitu- tempt to the Constitution. But the Con-

2260 IMPEACHMENT POWERS—APPENDIX Ch. 14 App.

Another framer, Abraham Baldwin of dent’s removal power because ‘‘mere in- Georgia, who supported Madison’s posi- tention [to do a mischief] would not be tion on the power to remove subordi- cause of impeachment’’ and ‘‘there may nates, spoke of the President’s be numerous causes for removal which impeachability for failure to perform the do not amount to a crime.’’ (78) Later in duties of the executive. If, said Baldwin, the same speech Ames suggested that the President ‘‘in a fit of passion’’ re- impeachment was available if an officer moved ‘‘all the good officers of the Gov- ‘‘misbehaves’’ (79) and for ‘‘mal-con- ernment’’ and the Senate were unable to duct.’’ (80) choose qualified successors, the con- One further piece of contemporary evi- sequence would be that the President dence is provided by the Lectures on Law ‘‘would be obliged to do the duties him- delivered by James Wilson of Pennsyl- self; or, if he did not, we would impeach vania in 1790 and 1791. Wilson described him, and turn him out of office, as he impeachments in the United States as ( ) had done others.’’ 75 ‘‘confined to political characters, to polit- Those who asserted that the President ical crimes and misdemeanors, and to po- has exclusive removal power suggested litical punishment.’’ (81) And, he said: that it was necessary because impeach- ment, as Elias Boudinot of New Jersey The doctrine of impeachments is of contended, is ‘‘intended as a punishment high import in the constitutions of free for a crime, and not intended as the ordi- states. On one hand, the most powerful nary means of re-arranging the Depart- magistrates should be amenable to the ments.’’ (76) Boudinot suggested that dis- law: on the other hand, elevated char- ability resulting from sickness or acci- acters should not be sacrificed merely dent ‘‘would not furnish any good ground on account of their elevation. No one for impeachment; it could not be laid as should be secure while he violates the treason or bribery, nor perhaps as a high constitution and the laws: every one crime or misdemeanor.’’ (77) Fisher Ames should be secure while he observes of Massachusetts argued for the Presi- them.(82)

stitution provided procedures for its amend- 78. Id. 474. ment, and ‘‘an attempt to amend it in any 79. Id. 475. other way may be a high crime or mis- 80. Id. 477. The proponents of the President’s re- demeanor, or perhaps something worse.’’ Id. moval power were careful to preserve impeach- 503. ment as a supplementary method of removing 75. Id. John Vining of Delaware commented: ‘‘The executive officials. Madison said impeachment President. What are his duties? To see the laws will reach a subordinate ‘‘whose bad actions faithfully executed; if he does not do this effec- may be connived at or overlooked by the Presi- tually, he is responsible. To whom? To the peo- dent.’’ Id. 372. Abraham Baldwin said: ple. Have they the means of calling him to ac- ‘‘The Constitution provides for—what? That count, and punishing him for neglect? They no bad man should come into office. . . . But have secured it in the Constitution, by im- suppose that one such could be got in, he can peachment, to be presented by their immediate be got out again in despite of the President. We representatives; if they fail here, they have an- can impeach him, and drag him from his place other check when the time of election comes ....’’Id. 558. round.’’ Id. 572. 81. Wilson, Lectures on Law, in 1 The Works of 76. Id. 375. James Wilson 426 (R. McCloskey ed. 1967). 77. Id. 82. Id. 425.

2261 Ch. 14 App. DESCHLER’S PRECEDENTS

From the comments of the framers and removed from the reach of municipal their contemporaries, the remarks of the jurisprudence.(83) delegates to the state ratifying conven- C. THE AMERICAN IMPEACHMENT CASES tions, and the removal power debate in the First Congress, it is apparent that Thirteen officers have been impeached the scope of impeachment was not by the House since 1787: one President, viewed narrowly. It was intended to pro- one cabinet officer, one United States vide a check on the President through Senator, and ten Federal judges.(84) In impeachment, but not to make him de- addition there have been numerous reso- pendent on the unbridled will of the Con- lutions and investigations in the House gress. not resulting in impeachment. However, the action of the House in declining to Impeachment, as Justice Joseph Story impeach an officer is not particularly il- wrote in his Commentaries on the Con- luminating. The reasons for failing to im- stitution in 1833, applies to offenses of ‘‘a peach are generally not stated, and may political character’’: have rested upon a failure of proof, legal Not but that crimes of a strictly legal insufficiency of the grounds, political character fall within the scope of the judgment, the press of legislative busi- power . . . but that it has a more en- ness, or the closeness of the expiration of larged operation, and reaches, what the session of Congress. On the other are aptly termed political offenses, hand, when the House has voted to im- peach an officer, a majority of the Mem- growing out of personal misconduct or bers necessarily have concluded that the gross neglect, or usurpation, or habit- conduct alleged constituted grounds for ual disregard of the public interests, in impeachment.(85) the discharge of the duties of political Does Article III, Section 1 of the Con- office. These are so various in their stitution, which states that judges ‘‘shall character, and so indefinable in their actual involutions, that it is almost im- 83. 1 J. Story Commentaries on the Constitution of possible to provide systematically for the United States, § 764, at 559 (5th ed. 1905). them by positive law. They must be ex- 84. Eleven of these officers were tried in the Sen- amined upon very broad and com- ate. Articles of impeachment were presented to prehensive principles of public policy the Senate against a twelfth (Judge English), but he resigned shortly before the trial. The and duty. They must be judged of by thirteenth (Judge Delahay) resigned before ar- the habits and rules and principles of ticles could be drawn. diplomacy, or departmental operations 85. Only four of the thirteen impeachments—all in- and arrangements, of parliamentary volving judges—have resulted in conviction in practice, of executive customs and ne- the Senate and removal from office. While con- viction and removal show that the Senate gotiations of foreign as well as domes- agreed with the House that the charges on tic political movements; and in short, which conviction occurred stated legally suffi- by a great variety of circumstances, as cient grounds for impeachment, acquittals offer well those which aggravate as those no guidance on this question, as they may have which extenuate or justify the offensive resulted from a failure of proof, other factors, or a determination by more than one third of acts which do not properly belong to the Senators (as in the Blount and Belknap im- the judicial character in the ordinary peachments) that trial or conviction was inap- administration of justice, and are far propriate for want of jurisdiction.

2262 IMPEACHMENT POWERS—APPENDIX Ch. 14 App. hold their Offices during good Behavior,’’ 1. EXCEEDING THE POWERS OF THE OFFICE limit the relevance of the ten impeach- IN DEROGATION OF THOSE OF ANOTHER ments of judges with respect to presi- BRANCH OF GOVERNMENT dential impeachment standards as has The first American impeachment, of been argued by some? It does not. The Senator William Blount in 1797, was argument is that ‘‘good behavior’’ implies based on allegations that Blount at- an additional ground for impeachment of tempted to incite the Creek and Cher- judges not applicable to other civil offi- okee Indians to attack the Spanish set- cers. However, the only impeachment tlers of Florida and Louisiana, in order provision discussed in the Convention to capture the territory for the British. and included in the Constitution is Arti- Blount was charged with engaging in a cle II, Section 4, which by its expressed conspiracy to compromise the neutrality terms, applies to all civil officers, includ- of the United States, in disregard of the ing judges, and defines impeachment of- constitutional provisions for conduct of fenses as ‘‘Treason, Bribery, and other foreign affairs. He was also charged, in high Crimes and Misdemeanors.’’ effect, with attempting to oust the Presi- In any event, the interpretation of the dent’s lawful appointee as principal ‘‘good behavior’’ clause adopted by the agent for Indian affairs and replace him House has not been made clear in any of with a rival, thereby intruding upon the the judicial impeachment cases. Which- President’s supervision of the executive ever view is taken, the judicial impeach- branch.(87) ments have involved an assessment of The impeachment of President Andrew the conduct of the officer in terms of the Johnson in 1868 also rested on allega- constitutional duties of his office. In this tions that he had exceeded the power of respect, the impeachments of judges are his office and had failed to respect the consistent with the three impeachments prerogatives of Congress. The Johnson of nonjudicial officers. impeachment grew out of a bitter par- Each of the thirteen American im- tisan struggle over the implementation of peachments involved charges of mis- Reconstruction in the South following the conduct incompatible with the official po- Civil War, Johnson was charged with sition of the officeholder. This conduct violation of the Tenure of Office Act, falls into three broad categories: (1) ex- which purported to take away the Presi- ceeding the constitutional bounds of the dent’s authority to remove members of his own cabinet and specifically provided powers of the office in derogation of the that violation would be a ‘‘high mis- powers of another branch of government; demeanor,’’ as well as a crime. Believing (2) behaving in a manner grossly incom- the Act unconstitutional, Johnson re- patible with the proper function and pur- pose of the office; and (3) employing the brought to trial in the Senate. Except for the power of the office for an improper pur- impeachment of Judge Delahay, the discussion pose or for personal gain.(86) of grounds here is based on the formal articles. 87. After Blount had been impeached by the 86. A procedural note may be useful. The House House, but before trial of the impeachment, the votes both a resolution of impeachment against Senate expelled him for ‘‘having been guilty of an officer and articles of impeachment con- a high misdemeanor, entirely inconsistent with taining the specific charges that will be his public trust and duty as a Senator.’’

2263 Ch. 14 App. DESCHLER’S PRECEDENTS moved Secretary of War Edwin M. Stan- ment of the rebel States.’’ On its face, ton and was impeached three days later. this article involved statutory violations, Nine articles of impeachment were but it also reflected the underlying chal- originally voted against Johnson, all lenge to all of Johnson’s post-war poli- dealing with his removal of Stanton and cies. the appointment of a successor without The removal of Stanton was more a the advice and consent of the Senate. catalyst for the impeachment than a fun- The first article, for example, charged damental cause.90 The issue between the that President Johnson, President and Congress was which of unmindful of the high duties of this of- them should have the constitutional— fice, of his oath of office, and of the re- and ultimately even the military—power quirement of the Constitution that he to make and enforce Reconstruction pol- should take care that the laws be icy in the South. The Johnson impeach- faithfully executed, did unlawfully, and ment, like the British impeachments of in violation of the Constitution and great ministers, involved issues of state laws of the United States, order in going to the heart of the constitutional writing the removal of Edwin M. Stan- division of executive and legislative ton from the office of Secretary for the power. (88) Department of War. 2. BEHAVING IN A MANNER GROSSLY Two more articles were adopted by the INCOMPATIBLE WITH THE PROPER House the following day. Article Ten FUNCTION AND PURPOSE OF THE OFFICE charged that Johnson, ‘‘unmindful of the Judge John Pickering was impeached high duties of his office, and the dignity in 1803, largely for intoxication on the and proprieties thereof,’’ had made in- bench.(91) Three of the articles alleged er- flammatory speeches that attempted to rors in a trial in violation of his trust ridicule and disgrace the Congress.89 Ar- and duty as a judge; the fourth charged ticle Eleven charged him with attempts that Pickering, ‘‘being a man of loose to prevent the execution of the Tenure of morals and intemperate habits,’’ had ap- Office Act, an Army appropriations act, peared on the bench during the trial in a and a Reconstruction act designed by state of total intoxication and had used Congress ‘‘for the more efficient govern- profane language. Seventy-three years 88. Article one further alleged that Johnson’s re- later another judge, Mark Delahay, was moval of Stanton was unlawful because the impeached for intoxication both on and Senate had earlier rejected Johnson’s previous suspension of him. 90. The Judiciary Committee had reported a reso- 89. Quoting from speeches which Johnson had lution of impeachment three months earlier made in Washington, D.C., Cleveland, charging President Johnson in its report with and St. Louis, Missouri, article ten pronounced omissions of duty, usurpations of power and these speeches ‘‘censurable in any, [and] pecu- violations of his oath of office, the laws and the liarly indecent and unbecoming in the Chief Constitution in his conflict of Reconstruction. Magistrate of the United States.’’ By means of The House voted down the resolution. these speeches, the article concluded, Johnson 91. The issue of Pickering’s insanity was raised at had brought the high office of the presidency trial in the Senate, but was not discussed by ‘‘into contempt, ridicule, and disgrace. to the the House when it voted to impeach or to adopt great scandal of all good citizens.’’ articles of impeachment.

2264 IMPEACHMENT POWERS—APPENDIX Ch. 14 App. off the bench but resigned before articles his federal judgeship.(92) Judicial preju- of impeachment were adopted. dice against Union supporters was also A similar concern with conduct incom- alleged. patible with the proper exercise of judi- Judicial favoritism and failure to give cial office appears in the decision of the impartial consideration to cases before House to impeach Associate Supreme him were also among the allegations in Court Justice Samuel Chase in 1804. The the impeachment of Judge George W. House alleged that Justice Chase had English in 1926. The final article permitted his partisan views to influence charged that his favoritism had created his conduct of two trials held while he distrust of the disinterestedness of his of- was conducting circuit court several ficial actions and destroyed public con- years earlier. The first involved a Penn- fidence in his court.(93) sylvania farmer who had led a rebellion against a Federal tax collector in 1789 3. EMPLOYING THE POWER OF THE OFFICE and was later charged with treason. The FOR AN IMPROPER PURPOSE OR PERSONAL articles of impeachment alleged that ‘‘un- GAIN mindful of the solemn duties of his office, Two types of official conduct for im- and contrary to the sacred obligation’’ of proper purposes have been alleged in his oath, Chase ‘‘did conduct himself in a past impeachments. The first type in- manner highly arbitrary, oppressive, and volves vindictive use of their office by unjust,’’ citing procedural rulings against federal judges; the second, the use of of- the defense. fice for personal gain. Similar language appeared in articles Judge James H. Peck was impeached relating to the trial of a Virginia printer in 1826 for charging with contempt a indicted under the Sedition Act of 1798. lawyer who had publicly criticized one of Specific examples of Chase’s bias were his decisions, imprisoning him, and or- alleged, and his conduct was character- dering his disbarment for 18 months. ized as ‘‘an indecent solicitude . . . for The House debated whether this single the conviction of the accused, unbecom- instance of vindictive abuse of power was ing even a public prosecutor but highly sufficient to impeach, and decided that it disgraceful to the character of a judge, as was, alleging that the conduct was un- it was subversive of justice.’’ The eighth just, arbitrary, and beyond the scope of article charged that Chase, ‘‘disregarding Peck’s duty. the duties . . . of his judicial character. Vindictive use of power also con- . . . did . . . prevert his official right stituted an element of the charges in two and duty to address the grand jury’’ by other impeachments. Judge George W. delivering ‘‘an intemperate and inflam- matory political harangue.’’ His conduct 92. Although some of the language in the articles was alleged to be a serious breach of his suggested treason, only high crimes and mis- duty to judge impartially and to reflect demeanors were alleged, and Humphrey’s of- on his competence to continue to exercise fenses were characterized as a failure to dis- the office. charge his judicial duties. 93. Some of the allegations against Judges Harold Judge West H. Humphreys was im- Louderback (1932) and Halsted Ritter (1936) peached in 1862 on charges that he also involved judicial favoritism affecting public joined the Confederacy without resigning confidence in their courts.

2265 Ch. 14 App. DESCHLER’S PRECEDENTS

English was charged in 1926, among criminal conduct. Less than one-third of other things, with threatening to jail a the eighty-three articles the House has local newspaper editor for printing a crit- adopted have explicitly charged the viola- ical editorial and with summoning local tion of a criminal statute or used the officials into court in a non-existent case word ‘‘criminal’’ or ‘‘crime’’ to describe to harangue them. Some of the articles in the conduct alleged, and ten of the arti- the impeachment of Judge Charles cles that do were those involving the Swayne (1903) alleged that he mali- Tenure of Office Act in the impeachment ciously and unlawfully imprisoned two of President Andrew Johnson. The House lawyers and a litigant for contempt. has not always used the technical lan- Six impeachments have alleged the use guage of the criminal law even when the of office for personal gain or the appear- conduct alleged fairly clearly constituted ance of financial impropriety while in of- a criminal offense, as in the Humphreys fice. Secretary of War William W. and Belknap impeachments. Moreover, a Belknap was impeached in 1876 of high number of articles, even though they crimes and misdemeanors for conduct may have alleged that the conduct was that probably constituted bribery and unlawful, do not seem to state criminal certainly involved the use of his office for conduct-including Article Ten against highly improper purposes-receiving sub- President Andrew Johnson (charging in- stantial annual payments through an flammatory speeches), and some of the intermediary in return for his appointing charges against all of the judges except a particular post trader at a frontier Humphreys. military post in Indian territory. Much more common in the articles are The impeachments of Judges Charles allegations that the officer has violated Swayne (1903), Robert W. Archbald his duties or his oath or seriously under- (1912), George W. English (1926), Harold mined public confidence in his ability to Louderback (1932) and Halsted L. Ritter perform his official functions. Recitals (1936) each involved charges of the use of that a judge has brought his court or the office for direct or indirect personal mon- judicial system into disrepute are com- ( ) etary gain. 94 In the Archbald and Ritter monplace. In the impeachment of Presi- cases, a number of allegations of im- dent Johnson, nine of the articles allege proper conduct were combined in a sin- that he acted ‘‘unmindful of the high du- gle, final article, as well as being charged ties of his office and of his oath of office,’’ separately. and several specifically refer to his con- In drawing up articles of impeachment, stitutional duty to take care that the the House has placed little emphasis on laws be faithfully executed.

94. Judge Swayne was charged with falsifying ex- The formal language of an article of pense accounts and using a railroad car in the impeachment, however, is less significant possession of a receiver he had appointed. than the nature of the allegations that it Judge Archbald was charged with using his of- contains. All have involved charges of fice to secure business favors from litigants and conduct incompatible with continued per- potential litigants before his court. Judges formance of the office; some have explic- English, Louderback, and Ritter were charged with misusing their power to appoint and set itly rested upon a ‘‘course of conduct’’ or the fees of bankruptcy receivers for personal have combined disparate charges in a profit. single, final article. Some of the indi-

2266 IMPEACHMENT POWERS—APPENDIX Ch. 14 App. vidual articles seem to have alleged con- ments. The first is to dismiss them too duct that, taken alone, would not have readily because most have involved been considered serious, such as two arti- judges. The second is to make too much cles in the impeachment of Justice Chase of them. They do not all fit neatly and that merely alleged procedural errors at logically into categories. That, however, trial. In the early impeachments, the ar- is in keeping with the nature of the rem- ticles were not prepared until after im- peachment had been voted by the House, edy. It is intended to reach a broad vari- and it seems probable that the decision ety of conduct by officers that is both se- to impeach was made on the basis of all rious and incompatible with the duties of the allegations viewed as a whole, rather the office. than each separate charge. Unlike the Past impeachments are not precedents Senate, which votes separately on each to be read with an eye for an article of article after trial, and where conviction impeachment identical to allegations on but one article is required for removal that may be currently under consider- from office, the House appears to have considered the individual offenses less ation. The American impeachment cases significant than what they said together demonstrate a common theme useful in about the conduct of the official in the determining whether grounds for im- performance of his duties. peachment exist-that the grounds are de- Two tendencies should be avoided in rived from understanding the nature, interpreting the American impeach- functions and duties of the office.

III. The Criminality Issue

The phrase ‘‘high Crimes and Mis- The central issue raised by these con- demeanors’’ may connote ‘‘criminality’’ to cerns is whether requiring an indictable some. This likely is the predicate for offense as an essential element of im- some of the contentions that only an in- peachable conduct is consistent with the dictable crime can constitute impeach- purposes and intent of the framers in es- able conduct. Other advocates of an in- tablishing the impeachment power and dictable-offense requirement would es- in setting a constitutional standard for tablish a criminal standard of impeach- the exercise of that power. This issue must be considered in light of the histor- able conduct because that standard is ical evidence of the framers’ intent.(2) It definite, can be known in advance and reflects a contemporary legal view of gued that because Treason and Bribery are what conduct should be punished. A re- crimes, ‘‘other high Crimes and Misdemeanors’’ quirement of criminality would require must refer to crimes under the ejusdem generis resort to familiar criminal laws and con- rule of construction. But ejusdem generis mere- cepts to serve as standards in the im- ly requires a unifying principle. The question peachment process. Furthermore, this here is whether that principle is criminality or rather conduct subversive of our constitutional would pose problems concerning the ap- institutions and form of government. plicability of standards of proof and the 2. The rule of construction against redundancy in- ( ) like pertaining to the trial of crimes. 1 dicates an intent not to require criminality. If criminality is required, the word ‘‘Mis- 1. See A. Simpson, A Treatise on Federal Im- demeanors’’ would add nothing to ‘‘high peachments 28–29 (1916). It has also been ar- Crimes.’’

2267 Ch. 14 App. DESCHLER’S PRECEDENTS is also useful to consider whether the criminal and non-criminal offenses purposes of impeachment and criminal against the institutions and fundamental law are such that indictable offenses can, principles of English government.(5) consistent with the Constitution, be an There is evidence that the framers essential element of grounds for im- were aware of this special, non-criminal peachment. The impeachment of a Presi- meaning of the phrase ‘‘high Crimes and dent must occur only for reasons at least Misdemeanors’’ in the English law of im- as pressing as those needs of government peachment.(6) Not only did Hamilton ac- that give rise to the creation of criminal knowledge Great Britain as ‘‘the model offenses. But this does not mean that the from which [impeachment] has been bor- various elements of proof, defenses, and rowed,’’ but George Mason referred in other substantive concepts surrounding the debates to the impeachment of War- an indictable offense control the im- ren Hastings, then pending before Par- peachment process. Nor does it mean liament. Indeed, Mason, who proposed that state or federal criminal codes are the phase ‘‘high Crimes and Mis- necessarily the place to turn to provide a demeanors,’’ expressly stated his intent standard under the United States Con- to encompass ‘‘[a]ttempts to subvert the stitution. Impeachment is a constitu- Constitution.’’ (7) tional remedy. The framers intended that The published records of the state rati- the impeachment language they em- fying conventions do not reveal an inten- ployed should reflect the grave mis- tion to limit the grounds of impeachment conduct that so injures or abuses our to criminal offenses (8) James Iredell said constitutional institutions and form of in the North Carolina debates on ratifi- government as to justify impeachment. cation: This view is supported by the histor- . . . the person convicted is further ical evidence of the constitutional mean- liable to a trial at common law, and ing of the words ‘‘high Crimes and Mis- may receive such common-law punish- demeanors.’’ That evidence is set out ment as belongs to a description of ( ) above. 3 It establishes that the phrase such offences if it be punishable by ‘‘high Clrimes and Misdemeanors’’— that law.(9) which over a period of centuries evolved into the English standard of impeachable Likewise, George Nicholas of Virginia conduct—has a special historical mean- distinguished disqualification to hold of- ing different from the ordinary meaning fice from conviction for criminal conduct: of the terms ‘‘crimes’’ and ‘‘mis- If [the President] deviates from his ( ) demeanors. 4 High misdemeanors’’ re- duty, he is responsible to his constitu- ferred to a category of offenses that sub- ents. . . . He will be absolutely dis- verted the system of government. Since qualified to hold any place of profit, the fourteenth century the phrase ‘‘high honor, or trust, and liable to further Crimes and Misdemeanors’’ had been used in English impeachment cases to 5. See part II.A. supra. charge officials with a wide range of 6. See part II.B.2. supra. 7. See Id. 3. See part II B. supra. 8. See part II.B.3. supra. 4. See part II B.2. supra. 9. 4 Elliot 114.

2268 IMPEACHMENT POWERS—APPENDIX Ch. 14 App.

punishment if he has committed such possible disqualification from holding fu- high crimes as are punishable at com- ture office. The purpose of impeachment mon law.(10) is not personal punishment; (15) its func- The post-convention statements and tion is primarily to maintain constitu- writings of Alexander Hamilton, James tional government. Furthermore, the Wilson, and James Madison—each a par- Constitution itself provides that im- ticipant in the Constitutional Conven- peachment is no substitute for the ordi- tion—show that they regarded impeach- nary process of criminal law since it ment as an appropriate device to deal specifies that impeachment does not im- with offenses against constitutional gov- munize the officer from criminal liability ( ) ernment by those who hold civil office, for his wrongdoing. 16 and not a device limited to criminal of- The general applicability of the crimi- fenses.(11) Hamilton, in discussing the ad- nal law also makes it inappropriate as vantages of a single rather than a plural the standard for a process applicable to a executive, explained that a single execu- highly specific situation such as removal tive gave the people ‘‘the opportunity of of a President. The criminal law sets a discovering with facility and clearness general standard of conduct that all must the misconduct of the persons they trust, follow. It does not address itself to the in order either to their removal from of- 15. It has been argued that ‘‘[i]mpeachment is a fice, or to their actual punishment in special form of punishment for crime,’’ but that ( ) cases which admit of it. 12 Hamilton fur- gross and willful neglect of duty would be a ther wrote: ‘‘Man, in public trust, will violation of the oath of office and ‘‘[s]uch viola- much oftener act in such a manner as to tion, by criminal acts of commission or omis- render him unworthy of being any longer sion, is the only nonindictable offense for which the President, Vice President, judges or other trusted, than in such a manner as to civil officers can be impeached.’’ I. Brant, Im- make him obnoxious to legal punish- peachment, Trials and Errors 13, 20, 23 (1972). ment.(13) While this approach might in particular in- The American experience with im- stances lead to the same results as the ap- peachment, which is summarized above, proach to impeachment as a constitutional remedy for action incompatible with constitu- reflects the principle that impeachable tional government and the duties of constitu- conduct need not be criminal. Of the thir- tional office, it is, for the reasons stated in this teen impeachments voted by the House memorandum, the latter approach that best re- since 1789, at least ten involved one or flects the intent of the framers and the con- more allegations that did not charge a stitutional function of impeachment. At the time the Constitution was adopted, ‘‘crime’’ and (l4) violation of criminal law. ‘‘punishment for crime’’ were terms used far Impeachment and the criminal law more broadly than today. The seventh edition serve fundamentally different purposes. of Samuel Johnson’s dictionary, published in Impeachment is the first step in a reme- 1785, defines ‘‘crime’’ as ‘‘an act contrary to dial process—removal from office and right, an offense; a great fault; an act of wick- edness.’’ To the extent that the debates on the Constitution and its ratification refer to im- 10. 3 Elliot 240. peachment as a form of ‘‘punishment’’ it is pun- 11. See part II.B 1. supra; part II.B.3. supra. ishment in the sense that today would be 12. Federalist No. 70, at 461. thought a noncriminal sanction, such as re- 13. Id. at 459. moval of a corporate officer for misconduct 14. See part II.C. supra. breaching his duties to the corporation.

2269 Ch. 14 App. DESCHLER’S PRECEDENTS abuses of presidential power. In an im- constitutional provision that ‘‘the sole peachment proceeding a President is power’’ of impeachment is vested in the called to account for abusing powers that House of Representatives? only a President possesses. A requirement of criminality would be Other characteristics of the criminal incompatible with the intent of the fram- law make criminality inappropriate as ers to provide a mechanism broad an essential element of impeachable con- enough to maintain the integrity of con- duct. While the failure to act may be a stitutional government. Impeachment is crime, the traditional focus of criminal a constitutional safety valve; to fulfill law is prohibitory. Impeachable conduct, this function, it must be flexible enough on the other hand, may include the seri- to cope with exigencies not now foresee- ous failure to discharge the affirmative able. Congress has never undertaken to duties imposed on the President by the define impeachable offenses in the crimi- Constitution. Unlike a criminal case, the nal code. Even respecting bribery, which cause for the removal of a President may is specifically identified in the Constitu- be based on his entire course of conduct tion as grounds for impeachment, the in office. In particular situations, it may federal statute establishing the criminal be a course of conduct more than indi- offense for civil officers generally was en- vidual acts that has a tendency to sub- acted over seventy-five years after the vert constitutional government. Constitutional Convention.(17) To confine impeachable conduct to in- In sum, to limit impeachable conduct dictable offenses may well be to set a to criminal offenses would be incompat- standard so restrictive as not to reach ible with the evidence concerning the conduct that might adversely affect the constitutional meaning of the phrase system of government. Some of the most ‘‘high Crimes and Misdemeanors’’ and grievous offenses against our constitu- would frustrate the purpose that the tional form of government may not entail framers intended for impeachment. State violations of the criminal law. If criminality is to be the basic element 16. It is sometimes suggested that various provi- of impeachment conduct, what is the sions in the Constitution exempting cases of standard of criminal conduct to be? Is it impeachment from certain provisions relating to the trial and punishment of crimes indicate to be criminality as known to the com- an intention to require an indictable offense as mon law, or as divined from the Federal an essential element of impeachable conduct. Criminal Code, or from an amalgam of In addition to the provision referred to in the State criminal statutes? If one is to turn text (Article I, Section 3), cases of impeachment to State statutes, then which of those of are exempted from the power of pardon and the right to trial by jury in Article II, Section the States is to obtain? If the present 2 and Article III, Section 2 respectively. These Federal Criminal Code is to be the stand- provisions were placed in the Constitution in ard, then which of its provisions are to recognition that impeachable conduct may en- apply? If there is to be new Federal legis- tail criminal conduct and to make it clear that lation to define the criminal standard, even when criminal conduct is involved, the then presumably both the Senate and trial of an impeachment was not intended to be a criminal proceeding. The sources quoted at the President will take part in fixing notes 8–13, supra, show the understanding that standard. How is this to be accom- that impeachable conduct may, but need not, plished without encroachment upon the involve criminal conduct.

2270 IMPEACHMENT POWERS—APPENDIX Ch. 14 App. and federal criminal laws are not written tional provision for the impeachment of a in order to preserve the nation against President and that purpose gives mean- serious abuse of the presidential office. But this is the purpose of the constitu- ing to ‘‘high Orimes and Misdemeanors.’’

IV. Conclusion

Impeachment is a constitutional rem- be said of the merits of Hastings, con- edy addressed to serious offenses against duct, the charges against him exempli- the system of government. The purpose fied the central aspect of impeachment— of impeachment under the Constitution the parliamentary effort to reach grave is indicated by the limited scope of the abuses of governmental power. remedy (removal from office and possible The framers understood quite clearly disqualification from future office) and by that the constitutional system they were the stated grounds for impeachment creating must include some ultimate (treason, bribery and other high crimes check on the conduct of the executive, and misdemeanors). It is not controlling particularly as they came to reject the whether treason and bribery are crimi- suggested plural executive. While insist- nal. More important, they are constitu- ent that balance between the executive tional wrongs that subvert the structure and legislative branches be maintained of government, or undermine the integ- so that the executive would not become rity of office and even the Constitution the creature of the legislature, itself, and thus are ‘‘high’’ offenses in the dismissable at its will, the framers also sense that word was used in English im- recognized that some means would be peachments. needed to deal with excesses by the exec- The framers of our Constitution con- utive. Impeachment was familiar to sciously adopted a particular phrase from them. They understood its essential con- the English practice to help define the stitutional functions and perceived its constitutional grounds for removal. The adaptability to the American contest. content of the phrase ‘‘high Crimes and While it may be argued that some arti- Misdemeanors’’ for the framers is to be cles of impeachment have charged con- related to what the framers knew, on the duct that constituted crime and thus that whole, about the English practice—the criminality is an essential ingredient, or broad sweep of English constitutional that some have charged conduct that was history and the vital role impeachment not criminal and thus that criminality is had played in the limitation of royal pre- not essential, the fact remains that in rogative and the control of abuses of min- the English practice and in several of the isterial and judicial power. American impeachments the criminality Impeachment was not a remote subject issue was not raised at all. The emphasis for the framers. Even as they labored in has been on the significant effects of the Philadelphia, the impeachment trial of conduct—undermining the integrity of of- Warren Hastings, Governor-General of fice, disregard of constitutional duties India, was pending in London, a fact to and oath of office, arrogation of power, which George Mason made explicit ref- abuse of the governmental process, ad- erence in the Convention. Whatever may verse impact on the system of govern-

2271 Ch. 14 App. DESCHLER’S PRECEDENTS ment. Clearly, these effects can be tionally prescribed oath that the Presi- brought about in ways not anticipated by dent is required to take before he enters the criminal law. Criminal standards and upon the execution of his office and are, criminal courts were established to con- therefore, also expressly imposed by the trol individual conduct. Impeachment Constitution. was evolved by Parliament to cope with The duty to take care is affirmative. So both the inadequacy of criminal stand- is the duty faithfully to execute the of- ards and the impotence of courts to deal fice. A President must carry out the obli- with the conduct of great public figures. gations of his office diligently and in It would be anomalous if the framers, good faith. The elective character and po- having barred criminal sanctions from litical role of a President make it difficult the impeachment remedy and limited it to define faithful exercise of his powers to removal and possible disqualification in the abstract. A President must make from office, intended to restrict the policy and exercise discretion. This dis- grounds for impeachment to conduct that cretion necessarily is broad, especially in was criminal. emergency situations, but the constitu- The longing for precise criteria is un- tional duties of a President impose limi- derstandable; advance, precise definition tations on its exercise. of objective limits would seemingly serve The ‘‘take care’’ duty emphasizes the both to direct future conduct and to in- responsibility of a President for the over- hibit arbitrary reaction to past conduct. all conduct of the executive branch, In private affairs the objective is the con- which the Constitution vests in him trol of personal behavior, in part through alone. He must take care that the execu- the punishment of misbehavior. In gen- eral, advance definition of standards re- tive is so organized and operated that specting private conduct works reason- this duty is performed. ably well. However, where the issue is The duty of a President to ‘‘preserve, presidential compliance with the con- protect, and defend the Constitution’’ to stitutional requirements and limitations the best of his ability includes the duty on the presidency, the crucial factor is not to abuse his powers or transgress not the intrinsic quality of behavior but their limits—not to violate the rights of the significance of its effect upon our con- citizens, such as those guaranteed by the stitutional system or the functioning of Bill of Rights, and not to act in our government. derogration of powers vested elsewhere It is useful to note three major presi- by the Constitution. dential duties of broad scope that are ex- Not all presidential misconduct is suf- plicitly recited in the Constitution: ‘‘to ficient to constitute grounds for impeach- take Care that the Laws be faithfully ex- ment. There is a further requirement— ecuted,’’ to ‘‘faithfully execute the Office substantiality. In deciding whether this of President of the United States’’ and to further requirement has been met, the ‘‘preserve, protect, and defend the Con- facts must be considered as a whole in stitution of the United States’’ to the best the context of the office, not in terms of of his ability. The first is directly im- separate or isolated events. Because im- posed by the Constitution; the second peachment of a President is a grave step and third are included in the constitu- for the nation, it is to be predicated only

2272 IMPEACHMENT POWERS—APPENDIX Ch. 14 App. upon conduct seriously incompatible with performance of constitutional duties of either the constitutional form and prin- ciples of our government or the proper the presidential office.

Æ

2273