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Constitutional Grounds for Presidential Impeachment, Committee Print, Committee on the Judiciary, 93D Cong

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Constitutional Grounds for Presidential Impeachment, Committee Print, Committee on the Judiciary, 93D Cong APPENDIX Report by the Staff of the Impeachment Inquiry on the Constitutional Grounds for Presidential Impeachment, Committee Print, Committee on the Judiciary, 93d Cong. 2d Sess., Feb. 1974 I. Introduction The Constitution deals with the subject 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, Speaker 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 majority 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
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