Presidential Elections; Electoral College

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CHAPTER 10

§ 1. In General; Electoral Certificates § 2. Joint Sessions to Count Electoral Votes § 3. Counting Votes; Objections to Count § 4. Presidential Nominations for Vice President

INDEX TO PRECEDENTS Certificates ascertaining electors Joint session to count electoral votes generally, see § 3.5 —Cont. transmittal of, to the House, § 1.l recesses in connection with, § § 2.2, 2.3 Certificates of electoral Votes statutory procedures relative to, § 2.6 conflicts relative to, § 3.5 Presidential nominations for Vice objections to vote count, § 3.6 President transmittal of, to the House, §§ 1.1 et confirmation of, § 4.3 seq. referral of, to committee, § 4.2 Joint session to count electoral votes transmission of, by message, § 4.1 concurrent resolution providing for, Tellers to count electoral votes § 2.1 appointment of, in the House, § § 3.1, convening of, § 2.4 3.2 division of, to consider objections, § 3.6 appointment of, in the Senate, § 3.4 presiding officer for, § 2.5 substitution for, in the House, § 3.3

Commentary and editing by John R. Graham, Jr., J.D. and Roy Miller, LL.B.

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Presidential Elections; Electoral College § 1. In General; Electoral whether the President should be Certificates chosen by popular vote, by the Congress, or by some other meth- Under the U.S. Constitution, od. Election by direct popular vote both the House and Senate for- was rejected because it was be- mally participate in the process by lieved that the people would have which the President and Vice insufficient knowledge of the var- President are elected. Congress is ious candidates, and because it directed by the 12th amendment was assumed that the people to receive and, in joint session, would be unable to agree on a sin- count the electoral votes certified gle candidate. A plan that would by the states. And if no candidate give Congress the power to select receives a majority of the electoral the President was also rejected, vote, the House of Representatives because of its potential threat to is directed to elect the President, executive independence. Finding while the Senate is directed to itself in disagreement on both elect the Vice President.(1) plans, the convention adopted a This method of selecting a compromise under which each President, later to become known state was given the power to ap- as the ‘‘electoral college,’’ came point electors to be chosen in a about as the result of a com- manner specified by each state promise after lengthy debate at legislature. The electors in each the Constitutional Convention of state, who were to be equal to the 1787. The debate centered on total number of that state’s Rep- resentatives and Senators, would 1. In the Presidential election of 1800, then meet and cast votes for the electors produced a tie vote by President and Vice President. casting an equal number of votes for Historically, the counting of Thomas Jefferson and Aaron Burr. electoral votes has been for the Thus the election had to be determined by the House of Representa- most part a mere formality, be- tives, which ultimately voted for Jef- cause the result of the electoral ferson. See 3 Hinds’ Precedents vote has almost invariably been § 1931. For a general discussion of the same as the result of the pop- early electoral-count procedures, see ular vote.(2) 3 Hinds’ Precedents §§ 1911–1980 and 6 Cannon’s Precedents §§ 438– 2. There have been rare instances in 446. which the result of the electoral vote

1559 Ch. 10 § 1 DESCHLER’S PRECEDENTS

The electoral vote has generally states have met to cast votes for followed the popular vote because President and Vice President, the electors came to be chosen merely Congress, in accordance with the as representatives of the political provisions of law,(3) convenes in parties and because the state leg- joint session,(4) the Senate and islatures adopted a unit-rule sys- House of Representatives meeting tem under which all of a state’s in the Hall of the House, to exer- electoral votes are to be cast for cise its constitutional responsi- the party which wins a plurality bility for counting the electoral of popular votes statewide. vote. The 12th amendment states in At one o’clock in the afternoon part: on that day, the joint session of The Electors shall meet in their re- the two Houses is called to order spective states, and vote by ballot for by the President of the Senate,(5) President and Vice-President . . . they shall name in their ballots the person the individual designated by stat- voted for as President, and in distinct ute (6) to serve as the joint ses- ballots the person voted for as Vice sion’s presiding officer. There- President, and they shall make distinct upon, the tellers,(7) who have pre- lists of all persons voted for as Presi- dent, and of all persons voted for as viously been appointed on the ( ) Vice-President, and the number of part of each House, 8 take their votes for each, which lists they shall respective places at the Clerk’s sign and certify, and transmit sealed to desk. According to the alphabet- the seat of the government of the United States, directed to the Presi- ical order of the states, all the dent of the Senate; [t]he President of previously transmitted certificates the Senate shall, in presence of the and papers purporting to be cer- Senate and House of Representatives, tificates of votes given by the elec- open all the certificates and the votes shall then be counted. tors are then opened by the Presi- dent of the Senate and handed to On the sixth day of January the tellers.(9) Each certificate so after the electors of the several received is read by the tellers in has differed from the result of the 3. 3 USC § 15. popular vote. For example, in the 4. See § 2.4, infra. Hayes-Tilden election of 1876, determinations by the House and Senate 5. See § 2.5, infra. with respect to certain disputed elec- 6. 3 USC 15. toral votes resulted in the election of 7. See § § 3.1–3.4, infra, for appoint- Hayes, although Tilden had received ment of tellers. a majority of the popular vote. See 3 8. See § 2.1, infra. Hinds’ Precedents §§ 1953–1956. 9. See § 2.1, infra.

1560 PRESIDENTIAL ELECTIONS; ELECTORAL COLLEGE Ch. 10 § 1 the presence and hearing of the been so decided, or immediately two Houses. After the reading of following the reading of such cer- each certificate, the President of tificate or paper when no objec- the Senate calls for objections, if tions thereto are raised, the tell- any. ers make a list of the votes as In the event that a written ob- they appear from the certifi- jection should be raised, properly cates.(12) The result of the count is signed by at least one Senator and then delivered to the President of one Member of the House of Rep- the Senate who thereupon an- resentatives, and when all objec- nounces the state of the vote. This tions so made to any vote or paper announcement is deemed by law a from a state have been received sufficient declaration of the per- and read, the joint session divides, sons, if any, elected President and the Senate repairing to the Senate Vice President of the United Chamber, and all such objections States. The announcement, to- are submitted to and considered gether with a list of the votes, is by each House meeting in sepa- then entered in the Journals of rate session.(10) the two Houses.(13) Pursuant to the provisions of In addition to its responsibil- the U.S. Code, which govern the ities in ascertaining and counting procedures in both Houses in the the electoral votes cast for Presi- event they divide to consider an objection, each Senator and Rep- dent and Vice President, the Con- resentative may speak to such ob- gress has been delegated a further jection for five minutes, and not constitutional duty relative to the more than once; and after such selection of the Vice President. debate has lasted two hours, the Pursuant to section 2 of the 25th presiding officer of each House is amendment to the U.S. Constitu- required to put the main question tion, whenever there is a vacancy without further debate.(11) When in the Office of Vice President the the two Houses have voted, they President nominates a Vice Presi- immediately again meet in joint dent to take office upon confirma- session, and the presiding officer tion by a majority vote of both then announces the decision on Houses.(14) the objections submitted. The House and Senate also Once all objections to any cer- have important responsibilities tificate or paper from a state have 12. See 3 USC § 15. 10. See § 3.6, infra. 13. 3 USC § 15. 11. 3 USC § § 15, 17. 14. See §§ 4.1–4.3, infra.

1561 Ch. 10 § 1 DESCHLER’S PRECEDENTS under the 20th and 25th amend- On Jan. 6, 1961,(15) the Speak- ments of the U.S. Constitution er (16) laid before the House the with respect to Presidential suc- following communication which cession and disability. The 20th was read and, with accompanying amendment sets forth the proce- papers, referred to the Committee dure to be followed when the on House Administration: President-elect and Vice Presi- GENERAL SERVICES ADMINISTRATION, dent-elect fail to qualify at the Washington, D.C., January 6, 1961. commencement of their terms. Hon. SAM RAYBURN, Speaker of the House of Representa- Congress also has the duty, under tives, Washington, D.C. the 25th amendment, of deter- DEAR MR. SPEAKER: Transmitted mining disputes as to Presidential herewith is a copy of the certificate disability. of ascertainment received today from the State of Hawaii, in conformity with the final clause of section 6, title 3, United States Code. Transmittal and Presentation Sincerely yours, FRANKLIN FLOETE, of Certificates Administrator. STATE OF HAWAII. § 1.1 Copies of the certificates TO THE ADMINISTRATOR OF GENERAL identifying the electors ap- SERVICES, PURSUANT TO THE pointed in a state forwarded LAWS OF THE UNITED STATES. by the Governor of each I, William F. Quinn, Governor of the State of Hawaii, do hereby cer- state to the Administrator of tify that the returns of votes cast for General Services are, pursu- electors of President and Vice Presi- ant to 3 USC § 6, transmitted dent of the United States of America, for the State of Hawaii, at an elec- in turn to the House; on one tion held therein for that purpose, on occasion, where a certificate the Tuesday after the first Monday in November, in the year of our Lord was received on the day re- 1960, agreeably to the provisions of served for the counting of the laws of the said State, and in the electoral votes, the conformity with the Constitution and laws of the United States, for the Speaker, in order that the re- purpose of giving in their votes for ceipt of the certificate would President and Vice President of the United States, for the respective appear in the Record before terms prescribed by the Constitution the proceedings of the joint of the United States, to begin on the session to count the electoral 20th day of January in the year of votes, laid the communica- 15. 107 CONG. REC. 288, 87th Cong. 1st tion before the House at the Sess. beginning of the session. 16. Sam Rayburn (Tex.).

1562 PRESIDENTIAL ELECTIONS; ELECTORAL COLLEGE Ch. 10 § 2

our Lord 1961, were, ascertained by ing of the certificates and judgment of the circuit court of the first judicial circuit, State of Hawaii, ascertaining and counting of the in proceedings entitled Herman T. F. votes of the electors of the several Lum et al., v. Gavien A. Bush et al. states for President and Vice (Civil No. 7029), entered on the 30th ( ) day of December A.D. 1960, and that President, the presiding officer 18 the list of persons voted for and the handed to the tellers, in the order number of votes cast for each, pursuant to said judgment, respectively, is in which they had been received, as follows: certificates of electoral votes, with Republican Party: Gavien A. Bush, all attached papers thereto, from 92,295; J. Howard Worrall, 92,295; O. P. Soares, 92,295. different slates of electors from Democratic Party: William H. the State of Hawaii. Without ob- Heen, 92,410; Delbert E. Metzger, jection, the Chair instructed the 92,410; Jennie Wilson, 92,410. And I further certify that: William tellers to count the votes of those H. Heen, Delbert E. Metzger, and electors named in the certificate of Jennie Wilson were appointed elec- the Governor of Hawaii dated Jan. tors of President and Vice President of the United States of America, for 4, 1961 (discussed more fully in the State of Hawaii, at said election. § 3.5, infra). Given under my hand and the seal of the State, this 4th day of January, in the year of our Lord 1961. WILLIAM F. QUINN, § 2. Joint Sessions to Governor of Hawaii. Count Electoral Votes § 1.2 Where certificates of elec- Concurrent Resolution Pro- toral votes had been received viding for Joint Session from different slates of electors from a state, and each § 2.1 A concurrent resolution slate purported to be the providing for a joint session duly appointed electors from to count the electoral votes that state, the Vice President for President and Vice Presi- presented the certificates, dent may be originated by with all attached papers, in the Senate. the order in which they had On Jan. 3, 1973,(19) Mr. Thomas been received. P. O’Neill, Jr., of Massachusetts, On Jan. 6, 1961,(17) during proceedings in the joint session of the 18. Richard M. Nixon (Calif.). two Houses incident to the open- 19. 119 CONG. REC. 30, 93d Cong. 1st Sess. For additional recent examples 17. 107 CONG. REC. 288–91, 87th Cong. see 115 CONG. REC. 36, 91st Cong. 1st Sess. 1st Sess., Jan. 3, 1969; 111 CONG.

1563 Ch. 10 § 2 DESCHLER’S PRECEDENTS called up and asked for the imme- nouncement shall be deemed a suffi- diate consideration of a Senate cient declaration of the persons, if any, elected President and Vice President of concurrent resolution: the United States, and, together with a list of the votes, be entered on the S. CON. RES. 1 Journals of the two Houses. Resolved by the Senate (the House of The Senate concurrent resolu- Representatives concurring), That the tion was agreed to. two Houses of Congress shall meet in the Hall of the House of Representa- tives on Saturday, the 6th day of Janu- Recesses ary 1973, at 1 o’clock postmeridian, § 2.2 The Speaker may be au- pursuant to the requirements of the Constitution and laws relating to the thorized to declare a recess election of President and Vice Presi- in connection with the con- dent of the United States, and the vening of the two Houses in President of the Senate shall be their joint session to count the Presiding Officer; that two tellers shall electoral vote for President be previously appointed by the Presi- dent of the Senate on the part of the and Vice President. Senate and two by the Speaker on the On Jan. 3, 1973,(20) the House part of the House of Representatives, considered and agreed to a Senate to whom shall be handed, as they are concurrent resolution (1) providing opened by the President of the Senate, for the convening on Jan. 6, 1973, all the certificates and papers pur- of a joint session of the two porting to be certificates of the elec- Houses to count the electoral vote. toral votes, which certificates and pa- Mr. Thomas P. O’Neill, Jr., of pers shall be opened, presented, and acted upon in the alphabetical order of Massachusetts, then made a the States, beginning with the letter unanimous-consent request, as fol- ‘‘A’’; and said tellers, having then read lows: the same in the presence and hearing MR. O’NEILL: Mr. Speaker, I ask of the two Houses, shall make a list of unanimous consent that on Saturday, the votes as they shall appear from the January 6, 1973, it may be in order for said certificates; and the votes having the Speaker to declare a recess at any been ascertained and counted in the time subject to the call of the Chair. manner and according to the rules by law provided, the result of the same 20. 119 CONG. REC. 30, 93d Cong. 1st shall be delivered to the President of Sess. For further illustrations see the Senate, who shall thereupon an- 115 CONG. REC. 36, 91st Cong. 1st nounce the state of the vote, which an- Sess., Jan. 3, 1969; 111 CONG. REC. 26, 89th Cong. 1st Sess., Jan. 4, REC. 26, 89th Cong. 1st Sess., Jan. 4, 1965; and 107 CONG. REC. 26, 87th 1965; and 107 CONG. REC. 26, 87th Cong. 1st Sess., Jan. 3, 1961. Cong. 1st Sess., Jan. 3, 1961. 1. S. Con. Res. 1.

1564 PRESIDENTIAL ELECTIONS; ELECTORAL COLLEGE Ch. 10 § 2

THE SPEAKER: (2) Is there objection to Wednesday, January 3, 1973,(5) the the request of the gentleman from Chair declares the House in recess Massachusetts? until approximately 12:45 o’clock p.m. There was no objection. Accordingly (at 12 o’clock and 3 minutes p.m.), the House stood in recess Parliamentarian’s Note: The subject to the call of the Chair. Speaker declares a recess of the House to enable the Members to Convening of the Joint Session reconvene in joint session with the Senate in the House Chamber. § 2.4 The two Houses convene in joint session to open the § 2.3 On the day fixed by law certificates and ascertain and concurrent resolution and count the votes cast by for the convening of the joint the electors of the several session to count the electoral states for President and Vice votes for President and Vice President. President, the Speaker de- On Jan. 6, 1973,(6) the Presi- clined to recognize for one- dent of the Senate (7) called to minute speeches or exten- order a joint session of the Senate sions of remarks before and the House of Representatives, recessing the House subject convened pursuant to the provi- to the call of the Chair. sions of a Senate concurrent reso- On Jan. 6, 1973,(3) the Speak- lution (8) to carry out Congress’ er (4) made an announcement to 5. 119 CONG. REC. 30, 93d Cong. 1st the House: Sess. THE SPEAKER: The Chair desires to 6. 119 CONG. REC. 378, 93d Cong. 1st make a statement. Sess. For other examples of joint ses- The Chair desires deferment of sions convened to count the electoral unanimous-consent requests and also vote cast in recent elections see 115 1-minute speeches until after the for- CONG. REC. 145, 91st Cong. 1st mal ceremony of the day, which is the Sess., Jan. 6, 1969; 111 CONG. REC. counting of the electoral votes for 136, 89th Cong. 1st Sess., Jan. 6, President and Vice President. There- 1965; and 107 CONG. REC. 288, 87th fore, pursuant to the order adopted on Cong. 1st Sess., Jan. 6, 1961. 7. Spiro T. Agnew (Md.). 2. Carl Albert (Okla.). 8. S. Con. Res. 1, agreed to by the 3. 119 CONG. REC. 378, 93d Cong. 1st House at 119 CONG. REC. 30, 93d Sess. For an additional example see Cong. 1st Sess., Jan. 3, 1973. For ad- 115 CONG. REC. 145, 91st Cong. 1st ditional examples of House agree- Sess., Jan. 6, 1969. ment to concurrent resolutions pro- 4. Carl Albert (Okla.). viding for joint sessions to count

1565 Ch. 10 § 2 DESCHLER’S PRECEDENTS constitutional and statutory re- of the Senate (11) presided over the sponsibilities relative to opening joint session to count the electoral the certificates and ascertaining votes for President and Vice Presi- and counting the votes of the elec- dent of the United States. tors of the several states for Presi- dent and Vice President. Procedure Presiding Officer § 2.6 Where the two Houses meet to count the electoral § 2.5 In the absence of the vote, a joint session is con- President of the Senate, the vened pursuant to a concur- President pro tempore of the rent resolution of the two Senate presides over the Houses which incorporates joint session to count the by reference the applicable electoral votes for President provisions of the United and Vice President. States Code; and the proce- On Jan. 6, 1969,(9) in the ab- dures set forth in those pro- sence of the President of the Sen- visions are in effect con- ate, (10) the President pro tempore stituted as a joint rule of the two Houses for the occasion electoral votes, see 115 CONG. REC. 36, 91st Cong. 1st Sess., Jan. 3, and govern the procedures 1969; 111 CONG. REC. 26, 89th Cong. in the joint session and in 1st Sess., Jan. 4, 1965; and 107 both Houses in the event CONG. REC. 26, 87th Cong. 1st Sess., they divide to consider an Jan. 3, 1961. objection. 9. 115 CONG. REC. 145, 91st Cong. 1st (12) Sess. See also 111 CONG. REC. 136, On Jan. 6, 1969, the two 89th Cong. 1st Sess., Jan. 6, 1965. Houses convened in joint session 10. On Jan. 6, 1969, the President of the to count the electoral vote. The Senate, Hubert H. Humphrey, joint session was convened pursu- (Minn.), who was the incumbent Vice ant to a Senate concurrent resolu- President and the losing candidate tion (13) which incorporated the for President in the 1968 election, declined to preside over the joint ses- votecounting procedures set forth sion to count the electoral votes. On in 3 USC §§ 15–18. A written ob- Jan. 6, 1965, the office of the Presi- jection was made to the count of dent of the Senate was vacant, the former Vice President, Lyndon B. 11. Richard B. Russell (Ga.). Johnson (Tex.), having ascended to 12. 115 CONG. REC. 145–47, 169–72, the Presidency upon the death of his 91st Cong. 1st Sess. predecessor, Nov. 22, 1963. 13. 13. S. Con. Res. 1.

1566 PRESIDENTIAL ELECTIONS; ELECTORAL COLLEGE Ch. 10 § 3

North Carolina’s electoral vote. the House to count the electoral Thereupon, pursuant to the provi- votes. sions of 3 USC §§ 15–18, the joint session divided, the Senate repair- § 3.2 The Speaker has ap- ing to the Senate Chamber, and pointed the Chairman and the objection was submitted to ranking minority member of and considered in each House con- the Committee on House Ad- vened in separate sessions. ministration as tellers on the part of the House to count the electoral votes. § 3. Counting Votes; Objec- On Jan. 3, 1969,(17) the Speak- ( ) tions to Count er 18 appointed as tellers on the part of the House to count the House Tellers electoral votes Mr. Samuel N. Friedel, of Maryland, and Mr. § 3.1 Tellers on the part of the Glenard P. Lipscomb, of Cali- House to count the electoral fornia, who were, respectively, the Chairman and ranking minority vote are appointed by the member of the Committee on Speaker. House Administration. On Jan. 3, 1973,(14) the House had considered and agreed to a § 3.3 Where a Member des- Senate concurrent resolution (15) ignated as a teller for count- providing for the convening of a ing the electoral ballots was joint session of the two Houses to unavoidably detained, the count the electoral votes. The Speaker designated another Speaker,(16) pursuant to the provi- Member to take his place. sions of the concurrent resolution, On Jan. 6, 1949,(19) prior to the appointed Mr. Wayne L. Hays, of announcement of the arrival of Ohio, and Mr. Samuel L. Devine, the Senate for the meeting of the of Ohio, as tellers on the part of joint session of the two Houses to count the electoral vote, the ( ) 14. 119 CONG. REC. 30, 93d Cong. 1st Speaker 20 made an announce- Sess. For further illustrations see ment to the House: 115 CONG. REC. 36, 91st Cong. 1st Sess., Jan. 3, 1969; 111 CONG. REC. 17. 115 CONG. REC. 36, 91st Cong. 1st 26, 89th Cong. 1st Sess., Jan. 4, Sess. 1965; and 107 CONG. REC. 27, 87th 18. John W. McCormack (Mass.). Cong. 1st Sess., Jan. 3, 1961. 19. 95 CONG. REC. 89, 81st Cong. 1st 15. S. Con. Res. 1. Sess. 16. Carl Albert (Okla.). 20. Sam Rayburn (Tex.).

1567 Ch. 10 § 3 DESCHLER’S PRECEDENTS

THE SPEAKER: The gentleman from Conflicting Electoral Certifi- New York [Mr. Ralph A. Gamble] is cates unavoidably detained and is unable to serve as teller. § 3.5 The two Houses, meeting The Chair designates the gentleman in joint session to count the from Pennsylvania [Mr. Louis E. electoral votes, may by unan- Graham] to act as teller in his stead. imous consent decide which of two conflicting electoral Senate Tellers certificates from a state is § 3.4 Tellers on the part of the valid; and the tellers are Senate to count the electoral then directed to count the votes are appointed by the electoral votes in the certifi- Vice President. cate deemed valid. On Jan. 6, 1961,(4) during pro- On Jan. 3, 1973,(1) following the ceedings in the joint session of the Senate’s consideration of and two Houses incident to the open- agreement to a concurrent resolu- ing of the certificates and count- (2) tion providing for the convening ing of the votes of the electors of of a joint session of the two the several states for President Houses to count the electoral and Vice President, the President ( ) votes, the Vice President, 3 in ac- of the Senate (5) handed to the tell- cordance with the provisions of ers, in the order in which they the concurrent resolution, ap- had been received, certificates of pointed the Senator from Ken- electoral votes, with all attached tucky, Marlow W. Cook, and the papers thereto, from different Senator from Nevada, Howard W. slates of electors from the State of Cannon, as the tellers on the part Hawaii. The certificates were re- of the Senate to count the elec- ceived and considered by the tell- toral votes. ers, whereupon, the following proceedings occurred:

1. 119 CONG. REC. 8, 93d Cong. 1st THE VICE PRESIDENT: . . . The Chair Sess. For other recent examples see has knowledge, and is convinced that 115 CONG. REC. 8, 91st Cong. 1st he is supported by the facts, that the Sess., Jan. 3, 1969; 111 CONG. REC. certificate from the Honorable William 15, 89th Cong. 1st Sess., Jan. 4, F. Quinn, Governor of the State of Ha- 1965; and 107 CONG. REC. 72, 87th Cong. 1st Sess., Jan. 4, 1961. 4. 107 CONG. REC. 288–91, 87th Cong. 2. S. Con. Res. 1. 1st Sess. 3. Spiro T. Agnew (Md.). 5. Richard M. Nixon (Calif.).

1568 PRESIDENTIAL ELECTIONS; ELECTORAL COLLEGE Ch. 10 § 3 waii, dated January 4, 1961, received There was no objection. by the Administrator of General Serv- The tellers then proceeded to read, ices on January 6, 1961, and trans- count and announce the electoral votes mitted to the Senate and the House of of the remaining States in alphabetical Representatives on January 6, 1961, order. being Executive Communication Num- Parliamentarian’s Note: A re- ber 215 of the House of Representa- tives, properly and legally portrays the count of ballots in Hawaii, which facts with respect to the electors cho- was concluded after the Governor sen by the people of Hawaii at the elec- of that state had certified the election for President and Vice President tion of the Republican slate of held on November 8, 1960. As read electors, threw that state into the from the certificates, William H. Heen, Democratic column; the Governor Delbert E. Metzger, and Jennie Wilson then sent a second communication were appointed as electors of President and Vice President on November 8, to the Administrator of General 1960, and did on the first Monday Services which certified that the after the second Wednesday of Decem- Democratic slate of electors had ber, 1960, cast their votes for John F. been lawfully appointed. Both Kennedy of Massachusetts for Presi- slates of electors met on the day dent and Lyndon B. Johnson of Texas prescribed by law, cast their for Vice President. votes, and submitted them to the In order not to delay the further count of the electoral vote here, the President of the Senate pursuant Chair, without the intent of estab- to 3 USC § 11. When the two lishing a precedent, suggests that the Houses met in joint session to electors named in the certificate of the count the electoral votes, the votes Governor of Hawaii dated January 4, of the electors were presented to 1961, be considered as the lawful elec- the tellers by the Vice President, tors from the State of Hawaii. and, by unanimous consent, the If there be no objection in this joint Vice President directed the tellers convention, the Chair will instruct the tellers—and he now does—to count the to accept and count the lawfully votes of those electors named in the appointed slate. certificate of the Governor of Hawaii dated January 4, 1961—those votes Objections having been cast for John F. Kennedy, of Massachusetts, for President and § 3.6 A formal objection was Lyndon B. Johnson, of Texas, for Vice made to the counting of the President. electoral vote of a state, and Without objection the tellers will ac- the House and Senate di- cordingly count the votes of those electors named in the certificate of the vided to separately consider Governor of Hawaii dated January 4, the objection before pro- 1961. ceeding with the counting. 1569 Ch. 10 § 3 DESCHLER’S PRECEDENTS

On Jan. 6, 1969,(6) the President the vote of North Carolina as pro tempore of the Senate (7) read. The President pro tempore called to order a joint session of directed the Clerk of the House to the House and Senate for the pur- read the objection, which stat- ( ) pose of counting the electoral ed: 9 votes for President and Vice Presi- We object to the votes from the State dent. When the tellers appointed of North Carolina for George C. Wal- on the part of the two Houses (8) lace for President and for Curtis E. LeMay for Vice President on the had taken their places at the ground that they were not regularly Clerk’s desk, the President pro given in that the plurality of votes of tempore handed them the certifi- the people of North Carolina were cast cates of the electors and the tell- for Richard M. Nixon for President and for Spiro T. Agnew for Vice President ers then read, counted, and an- and the State thereby appointed thir- nounced the electoral votes of the teen electors to vote for Richard M. states in alphabetical order. The Nixon for President and for Spiro T. vote of North Carolina was stated Agnew for Vice President and appointed no electors to vote for any to be 12 for Richard M. Nixon and other persons. Therefore, no electoral Spiro T. Agnew for President and vote of North Carolina should be Vice President respectively and counted for George C. Wallace for one for George C. Wallace and President or for Curtis E. LeMay for Vice President. Curtis E. LeMay for President JAMES G. O’HARA, M.C. and Vice President respectively. EDMUND S. MUSKIE, U.S.S. Mr. James G. O’Hara, of Michi- Following the President pro gan, thereupon rose and sent to tempore’s finding that the objec- the Clerk’s desk a written objection complied with the law (10) and tion signed by himself and Ed- his subsequent inquiry as to mund S. Muskie, the Senator from whether there were any further Maine, protesting the counting of objections to the certificates from the State of North Carolina, the 6. 115 CONG. REC. 145, 146, 91st Cong. 1st Sess. For further discussion and two Houses separated to consider excerpts from the debate, see § § 3.7, the objection, the Senate with- 3.8, infra. drawing to the Senate Chamber. 7. Richard B. Russell (Ga.). The legal basis for the objection 8. Senator Carl T. Curtis (Neb.) and was contained in 3 USC § 15, Senator B. Everett Jordan (N.C.) on which provided in relevant part: the part of the Senate; Mr. Samuel N. Friedel (Md.) and Mr. Glenard P. 9. 115 CONG. REC. 146, 91st Cong. 1st Lipscomb (Calif.) on the part of the Sess., Jan. 6, 1969. House. 10. 3 USC § 15.

1570 PRESIDENTIAL ELECTIONS; ELECTORAL COLLEGE Ch. 10 § 3

. . . [A]nd no electoral vote or votes certified. Dr. Bailey did not reject that from any State which shall have been election or that certification. So up to regularly given by electors whose ap- that moment, so far as the people from pointment has been lawfully certified North Carolina understood, he was to according to section 6 of this title committed as an elector on the Repub- from which but one return has been re- lican slate, riding under the names of ceived shall be rejected, but the two Richard M. Nixon and Spiro T. Agnew, Houses concurrently may reject the to vote for that presidential and vice- vote or votes when they agree that presidential ticket. such vote or votes have not been so On December 16, the electors of regularly given by electors whose ap- North Carolina met in Raleigh to cast pointment has been so certified. their votes.... It was at that point Those supporting the objection that Dr. Bailey decided to cast his vote for the Wallace-LeMay ticket instead. in the House and Senate contended that the votes of one North In the House, Mr. Roman C. Carolina elector had not been Pucinski, of Illinois, made a simi- ( ) ‘‘regularly given’’ and should lar presentation. 12 therefore be rejected. During debate on the objection The background of the objection in both the House and the Senate, was explained by Senator Muskie proponents of the objection fo- during his opening remarks in the cused on several key arguments in Senate debate on the objection: (11) support thereof. It was argued that the elector had at least a In this case, a North Carolina elector moral commitment to vote for the was nominated as an elector by a district convention of the Republican Republican candidates—a commit- Party in North Carolina. He did not re- ment made more compelling in ject that nomination. His name was the light of custom and practice not placed on the ballot because under since the adoption of the Constitu- North Carolina law, as in the case of tion,(13) and reliance by the voters 34 other States, only the names of the on the elector’s conduct and ap- party’s presidential and vice-presi- (14) dential candidates appear, and electors parent intentions. Senator ( ) are elected for the presidential and Muskie stated: 15 vice-presidential candidates receiving the plurality of the vote in North Caro- 12. Id. at pp. 159, 160. lina. 13. See remarks of Mr. Edward P. Bo- Dr. Bailey and 12 other North Caro- land (Mass.), id. at pp. 165, 166, and lina Republican electors were so elect- remarks of Mr. O’Hara, id. at p. 169. ed on November 5. The election was 14. See, for example, the remarks of Senator Frank Church (Idaho), id.at 11. 115 CONG. REC. 211, 91st Cong. 1st p. 214. Sess., Jan. 6, 1969. 15. Id. at p. 212.

1571 Ch. 10 § 3 DESCHLER’S PRECEDENTS

[A]s I understand it, the Constitu- ‘‘free agents’’ (16) under the Con- tion, as interpreted by the debates in stitution,(17) permitted to vote for the Constitutional Convention, clearly whomever they pleased. According makes an elector a free agent. How- ever, from the beginning of the coun- to such view, Congress, under the try’s history, political parties devel- Constitution and 3 USC § 15, ex- oped, and the political parties arranged ercised only a ministerial function for slates of electors assigned to their in counting the electoral ballots, presidential and vice-presidential can- and such ballots could be dis- didates. That political party slate of counted only if the certificates candidates has always been regarded, with but five other exceptions, as bind- were not in regular form or were (18) ing upon those who are electors on not authentic. that slate. It was also noted that North So I argue that in the light of that Carolina had not adopted a law, tradition, when an elector chooses to as had a majority of states, re- go on a party slate, he is indicating his quiring the electors to pledge to choice for President. support their party’s nominee; (1) I say, secondly, that in the case of this raised, in the view of some, North Carolina and this statute, which is found also in 34 other States, the an implication that North Caro- fact that only the presidential and lina did not intend its electors to vice-presidential names appear on the ballot is confirmation of this tradition; 16. See the remarks of Mr. William M. that when an elector accepts a place on McCulloch (Ohio), id. at p. 148; Mr. a slate under these circumstances, in Richard H. Poff (Va.), id. at p. 158; the light of this tradition, he knows Senator Ralph W. Yarborough (Tex.), that to the public at large he is saying, id. at p. 217; Senator Robert C. Byrd by his action, ‘‘I am for Nixon for (W. Va.), id. at p. 245. President.’’ He is saying implicitly, in 17. Relevant provisions are art. II, § 1, my judgment, ‘‘If I am elected an elec- clause 3; and the 12th amendment. tor under these circumstances, I will 18. See remarks of Mr. John B. Ander- vote for Richard Nixon for President.’’ son (Ill.), 115 CONG. REC. 151, 91st I believe that is the tradition. I be- Cong. 1st Sess., Jan. 6, 1969; Mr. lieve that this undergirds the responsi- Bob Eckhardt (Tex.), id. at p. 164; bility of an elector; and once he has set Senator Curtis, id. at pp. 219, 220; that train of understanding in motion, Senator Herman E. Talmadge (Ga.), he cannot, after election day, when it id. at p. 223. is too late for the voters to respond to 1. See remarks of Mr. Alton A. Lennon any change of mind on his part, say, ‘‘I (N.C.), id. at pp. 149, 150. The Su- changed my mind, and I am going to preme Court in Ray v Blair, 343 vote for somebody else.’’ It is in the nature of estoppel. U.S. 214 (1952), upheld the constitutionality of state laws requiring an Those opposed to the objection elector to pledge to support the argued that the electors were nominee of his political party.

1572 PRESIDENTIAL ELECTIONS; ELECTORAL COLLEGE Ch. 10 § 3 be bound to support particular In addition, however, there is a na- party nominees. Senator Edward tional interest in removing so critical a loophole in our constitutional system. M. Brooke, of Massachusetts, If the electoral college is to remain an (2) made the following remarks: element in our political life, surely we In a system of constitutional govern- should move to design a constitutional ment matters of procedure often be- amendment which, once and for all, come vital issues of substance. I sub- binds electors to vote for the can- mit that such a case is now before us. didates to whom they are pledged. I There are strong constitutional hasten to add that this possible change grounds for the authority of a State to in our electoral system will certainly bind its electors to vote as they are not suffice. Indeed, one of the para- pledged. If a State has so bound its mount tasks of this Congress will be to electors, I would contend that the Con- examine the full range of constitu- gress can properly act to see that the tional proposals to create a fair and se- State’s legal requirements are fulfilled. cure procedure for presidential elections. This would be a reasonable construction of the 1887 statute which provides In addition to the views stated that Congress can reject an elector’s above by Senator Brooke, several vote which has not been regularly of those speaking to the objection given. expressed support for a constitu- But it is my considered opinion that, unless the State chooses to bind its tional amendment to reform the electors, Congress cannot do so after electoral system, a remedy which, the fact. it was argued, would be preferable Among the many serious implica- to ‘‘piecemeal’’ changes to be tions of this situation, one lesson in achieved under present law.(3) particular stands out: No official should ever be granted 3. See, for example, the remarks of Mr. discretionary authority unless the peo- Hamilton Fish, Jr. (N.Y.), id. at p. ple clearly understand that, under 168. some circumstances, he may actually Among those Members and Sen- use it. And if such authority, once ators who favored a constitutional granted, is deemed excessive or un- amendment to revise the electoral wise, the people should explicitly and system were Mr. Hale Boggs (La.), promptly rescind it. id. at p. 151; Mr. Emanuel Celler As I understand the relevant con- (N.Y.), id. at p. 149; Mr. Phillip Bur- stitutional guidelines, the power to ton (Calif.), id. at p. 160; Mr. remedy this particular problem lies Charles A. Vanik (Ohio), id. at p. with the people of North Carolina act- 168; Senator Karl E. Mundt (S.D.), ing through their representative insti- id. at p. 216; Senator Birch Bayh tutions at the State level.... (Ind.), id. at p. 218; Senator Harry F. Byrd, Jr. (Va.), id. at p. 221; and 2. Id. at p. 213. Senator Robert C. Byrd (W. Va.), id.

1573 Ch. 10 § 3 DESCHLER’S PRECEDENTS

At the conclusion of debate in count of North Carolina’s electoral each House, the yeas and nays vote, the joint session of the two were ordered and the House and Houses divided (the Senate re- Senate respectively rejected the pairing to the Senate Chamber), (4) objection. Thereupon, the Sen- so that the objection could be con- ate reassembled in the Chamber sidered by each House meeting in of the House in joint session.(5) The President pro tempore called separate session. The House was the meeting to order and directed called to order by the Speaker(7) the Secretary of the Senate and and debate on the objection en- the Clerk of the House to report sued, at the conclusion of which a the action taken by the two motion was made by Mr. Gerald Houses. Following the report, the R. Ford, of Michigan, to lay the President pro tempore directed objection on the table. the tellers to record and announce A point of order against the mo- the vote of the State of North tion was made by Mr. James G. Carolina, and the counting of the electoral votes proceeded. O’Hara, of Michigan, asserting that the motion to table such an § 3.7 Under the statute pre- objection was inconsistent with scribing the procedure for the requirement of 3 USC § 17, consideration by the respec- that after two hours of debate in tive Houses of an objection each House on the objection to the to a state’s electoral vote count of a state’s electoral vote, ‘‘it count, a motion to lay the ob- shall be the duty of the presiding jection on the table is not in officer of each House to put the order. main question without further de- On Jan. 6, 1969,(6) following the bate.’’ raising of an objection to the After further debate, the Speak- er sustained the point of order. He at pp. 244, 245. It was pointed out stated: by Senator Muskie, however, that over 500 resolutions had been intro- It seems to the Chair that the law [3 duced to reform the electoral system USC § 17] is very plain with respect to the 5-minute rule and time of debate. by constitutional amendment during With respect to the problem, the sec- the history of the Republic. Id. at p. tion states, and I quote: 220. 4. See § 3.7, infra. It shall be the duty of the presiding officer of each House to put 5. 115 CONG. REC. 171, 91st Cong. 1st the main question without further Sess., Jan. 6, 1969. debate. 6. 115 CONG. REC. 145–47, 169–72, 91st Cong. 1st Sess. 7. John W. McCormack (Mass.).

1574 PRESIDENTIAL ELECTIONS; ELECTORAL COLLEGE Ch. 10 § 3

In the opinion of the Chair the main for President and for Spiro T. Agnew question is the objection filed by the for Vice President and appointed no gentleman from Michigan (Mr. O’Hara) electors to vote for any other persons. and the Senator from Maine, Senator Therefore, no electoral vote of North Muskie. Carolina should be counted for George C. Wallace for President or for Curtis The Chair is of the opinion that the E. LeMay for Vice-President. law plainly governs the situation; that the Chair must put the main question Following a statement by the and that the motion to table is not in President pro tempore that this order. was an unusual parliamentary sit- Accordingly, the Chair sustains the uation in that it was the first time point of order. an objection to an electoral vote ( ) The question on agreeing to the had been filed, 9 and a reading by objection was taken; the objection the Clerk of the provisions of 3 being rejected—yeas 170, nays USC § 17, the Senate agreed to a 228, not voting 32, not sworn 4. A unanimous-consent request by Ed- mund S. Muskie,(10) the Senator motion to reconsider was laid on from Maine, that the time be di- the table. vided equally between proponents A similar situation arose in the and opponents of the objection, Senate, during proceedings relat- with time for the proponents to be ing to the objection to the North allotted under the direction of the Carolina vote. The Senate had Majority Leader, Michael J. Mans- been called to order by President field, of Montana, and time for the pro tempore Richard B. Russell, of opponents to be allotted under the Georgia, who then directed the direction of Senator Dirksen. De- Clerk to read the objection, as fol- bate on the objection then pro- lows: (8) ceeded. During the debate on the objec- We object to the votes from the State tion, Edward M. Kennedy, the of North Carolina for George C. Wal- lace for President and for Curtis E. Senator from Massachusetts, in- LeMay for Vice President on the quired as to whether a motion to ground that they were not regularly lay the objection on the table ( ) given in that the plurality of votes of would be in order: 11 the people of North Carolina were cast for Richard M. Nixon for President and 9. According to Minority Leader Ever- for Spiro T. Agnew for Vice President ett McK. Dirksen (Ill.), this was also and the State thereby appointed 13 the first time the Senate had oper- electors to vote for Richard M. Nixon ated under the five-minute rule. Id. at p. 223. 8. 115 CONG. REC. 210, 91st Cong. 1st 10. Id. at p. 211. Sess. 11. Id. at p. 223.

1575 Ch. 10 § 3 DESCHLER’S PRECEDENTS

MR. KENNEDY: Mr. President, may I agreed to which qualified the propound a parliamentary inquiry terms of the statute. whether the motion to table is in order or is not in order? During proceedings arising from THE PRESIDENT PRO TEMPORE: The an objection to the count of elec- Chair would rule that it is not in toral votes of North Carolina,(13) order. The statute under which we are the following statutory provi- now proceeding states the main ques- (14) (15) tion shall be put. Let the Chair read sion was read in the Senate: the last clause of section 17 of title 3: When the two Houses separate to de- But after such debate shall have cide upon an objection that may have lasted two hours it shall be the duty been made to the counting of any elec- of the presiding officer of each House toral vote or votes from any State, or to put the main question without other question arising in the matter, further debate. each Senator and Representative may At the conclusion of the two speak to such objection or question five hours of debate, the question on minutes, and not more than once; but agreeing to the objection was after such debate shall have lasted two taken; and the objection was re- hours it shall be the duty of the presiding officer of each House to put the jected (yeas 33 and nays 58). A main question without further debate. motion to reconsider was laid on Senator Edmund S. Muskie, of the table.(12) Subsequently, at the resumption of the joint session, Maine, then made the following the Presiding Officer directed the unanimous-consent request: tellers to announce and record the . . . I ask unanimous consent that electoral votes of North Carolina debate on objections to the electoral as submitted. vote of North Carolina for George C. Wallace and Curtis LeMay shall be § 3.8 During consideration of limited to 2 hours, as provided by law in section 17, title 3, United States an objection to the electoral Code, and that the time be equally di- vote count of a state, unani- vided and controlled by the majority mous consent was sought for leader and the minority leader. purposes of modifying the Discussion ensued as to the ef- procedures prescribed by fect of the request and the appro- statute for consideration of priateness of adopting procedures such objections; after discus- that, in the view of some Sen- sion and rejection of such request, a subsequent unani- 13. See § 3.6, supra. mous-consent request was 14. 3 USC § 17. 15. 115 CONG. REC. 210, 91st Cong. 1st 12. Id. at p. 246. Sess., Jan. 6, 1969.

1576 PRESIDENTIAL ELECTIONS; ELECTORAL COLLEGE Ch. 10 § 3 ators, would constitute a depar- provisions such as those in ques- ture from the terms of the statute. tion is in any event permissible if As background to the discus- no point of order or objection is sion, it may, of course, be noted raised. that, under the Constitution,(16) The proceedings relating to Sen- ‘‘Each House may determine the ator Muskie’s unanimous-consent Rules of its Proceedings,’’ so that request were in part as follows: (17) there was no absolute legal obsta- Mr. [CARL T.] CURTIS [of Nebraska]: cle to the Senate’s adoption of Is a unanimous-consent request in whatever procedures seemed ap- order which, by its terms, is not in ac- propriate at the time. It may also cord with a duly enacted statute? ( ) be noted that the terms of the THE PRESIDENT PRO TEMPORE: 18 The Chair will state that unanimous- unanimous-consent request did consent requests can also be received not on their face necessarily con- and entertained here that are in contravene the statute. But it will be flict with the statutes. Sometimes they observed that the Chair declined are in conflict with the Constitution. to pass upon the effect or legality We have three sets of rules in the of the unanimous-consent request, Senate. Some of them are spelled out and stated that a single objection in the Constitution, others are spelled out in the Senate rule book, and the to the request would preserve pro- great majority of them are embraced in cedures under the statute. the precedents of the Senate. The Chair did remark that For example, one of the constitu- unanimous-consent requests are tional rules had to do with entertained that are seemingly ‘‘in ascertaining the presence of a quorum. We see suggestions of the absence of a conflict with’’ both statutes and quorum made several times during a the Constitution. Citing the con- day, and withdrawn by unanimous stitutional requirement of the consent. That can be done only by quorum, he said: unanimous consent. If the proposal of the Senator from Maine can be made . . . We see suggestions of the ab- only by unanimous consent, any single sence of a quorum made several times Senator who thinks it is improper, and during the day and withdrawn by that we should follow the statute in unanimous consent.... this particular case—has a right to destroy it completely by uttering two It may perhaps be implied from words—‘‘I object,’’ and the proposal will the Chair’s remarks here and fall. throughout the debate that a proposed departure from statutory 17. 115 CONG. REC. 210, 211, 91st Cong. 1st Sess., Jan. 6, 1969. 16. U.S. Const. art. I, § 5. 18. Richard B. Russell (Ga.).

1577 Ch. 10 § 3 DESCHLER’S PRECEDENTS

MR. [EDWARD W.] BROOKE [of Mas- tinguished Senator from Maine, under sachusetts]: Mr. President, reserving the unanimous-consent request, con- the right to object, do I understand the ceivably the distinguished Senator only difference between the unani- might use 1 hour of the time, and one mous-consent request and the statute Senator from the minority side use 1 to be that the time would be controlled hour of the time, which in my opinion by the Chair and not by the majority would certainly frustrate the intent of and minority leaders, under the stat- the statute. I feel so strongly about it, ute? Mr. President, that as much as I dis- MR. MUSKIE: As the unanimous-con- like to do so, I hereby object. sent request is worded, time would be THE PRESIDENT PRO TEMPORE: The under the control of the majority and Senator from Massachusetts objects. minority leaders. The Chair, having tolerated consider- MR. BROOKE: That is the only thing able discussion and parliamentary in- that was intended to be achieved by quiries, now asks of the Senate unani- the unanimous-consent agreement? mous consent that that time not be MR. MUSKIE: Plus liberalizing the 5- charged against the 2 hours. If there is minute requirement. The statute re- no objection, it will not be charged; and quires that each Senator may speak for that leaves the matter open for the 5 minutes, and not more than once. Chair to recognize Senators who wish This was discussed quite extensively, to speak on this subject. and it was felt that the ideal arrange- The Chair recognizes the Senator ment would be to have full and free de- from Maine for 5 minutes. bate, with the time controlled and free Mr. MUSKIE: Mr. President, I antici- exchange between Senators. It was felt pated that this might result, and I that this could be done, unless a Sen- fully understand the reservations ex- ator objected; so we decided to make pressed by Senators. I have another the effort.... unanimous-consent request to propose. MR. [FRANK] CHURCH [of Idaho]: Mr. I ask unanimous consent that debate President, I have no desire to object, be limited to 2 hours, as provided by but I do not understand how this can statute, that the time be equally di- be a proper proceeding. vided and controlled by the majority THE PRESIDENT PRO TEMPORE: The leader and the minority leader, and Chair is not permitted to enter any that the statutory limitation of 5 min- ruling that purports to pass upon the utes per Senator be included, but that legality of a unanimous-consent re- the 5 minutes available to any Senator quest, any more than is any other may be used to ask or answer ques- Member of this body. tions. Is there objection? The purpose of this request, Mr. MR. BROOKE: Mr. President, it seems President, is to do two things: First, to to me that the intent of the statute is insure that both sides of the debate to give as many Senators as possible shall have equal access to the attention an opportunity to be heard on this im- of the Senate; second, that the use of portant issue. As I understand the dis- the 5 minutes shall not be so rigid that

1578 PRESIDENTIAL ELECTIONS; ELECTORAL COLLEGE Ch. 10 § 4

there cannot be the kind of exchange following message from the Presi- that would permit the answering of questions on the minds of Senators. dent of the United States: The Parliamentarian has advised me To the Congress of the United States: that, in his judgment, this is consistent with the statute. It touches upon Pursuant to the provisions of Section points not covered by the statute, and 2 of the Twenty-fifth Amendment to it embraces the limitations of the statute.... the Constitution of the United States, THE PRESIDENT PRO TEMPORE: Is I hereby nominate Gerald R. Ford, of there objection to the unanimous-con- Michigan, to be the Vice President of sent request? The Chair hears none, the United States. and the request is agreed to. RICHARD NIXON, THE WHITE HOUSE, October 13, 1973. § 4. Presidential Nomina- tions for Vice President Referral to Committee Transmittal Message § 4.2 The Speaker referred the President’s nomination of a § 4.1 When the President, pur- Vice President to the Com- suant to section 2 of the 25th mittee on the Judiciary, amendment to the Constitu- which has jurisdiction over tion, nominates a Vice Presi- matters relating to Presi- dent to take office upon con- dential succession. firmation by a majority vote On Oct. 13, 1973,(1) the Speak- of both Houses, a message (2) transmitting his nomination er referred to the Committee on is laid before the House by the Judiciary a message from the the Speaker. 1. 119 CONG. REC. 34032, 93d Cong. 1st (19) On Oct. 13, 1973, the Speak- Sess. See 119 CONG. REC. 34111, 93d ( ) er 20 laid before the House the Cong. 1st Sess., Oct. 13, 1973, where, in the Senate, the nomination 19. 119 CONG. REC. 34032, 93d Cong. 1st was referred to the Senate Com- Sess. For proceedings incident to the mittee on Rules and Administration. Senate’s receipt of a similar message Similarly, on Aug. 20, 1974, the see 119 CONG. REC. 34111, 93d Cong. 1st Sess., Oct. 13, 1973. nomination by President Gerald R. See 120 CONG. REC. 29366, 93d Ford of Nelson A. Rockefeller as Vice Cong. 2d Sess., Aug. 20, 1974, for President was referred in the House similar proceedings relating to the to the Committee on the Judiciary. nomination of Nelson A. Rockefeller See 120 CONG. REC. 29366, 93d as Vice President. Cong. 2d Sess. 20. Carl Albert (Okla.). 2. Carl Albert (Okla.).

1579 Ch. 10 § 4 DESCHLER’S PRECEDENTS

President of the United States Thereupon, the House received nominating a Vice President. a message from the Senate announcing that body’s confirma- Confirmation tion (5) of the nomination. Similarly, on Dec. 19, 1974,(6) § 4.3 The House agreed to a pursuant to a special order, House resolution confirming a Pres- Resolution 1519,(7) the House con- idential nomination for Vice sidered and agreed to a resolution President of the United States and then received a (H. Res. 1511) reported from the message from the Senate an- Committee of the Whole House on nouncing that body’s con- the state of the Union confirming firmation of the nomination. a Presidential nomination for Vice President of the United States: On Dec. 6, 1973,(3) pursuant to a special order,(4) the House con- Resolved, That the House of Rep- resentatives confirm the nomination of sidered and agreed to a resolution Nelson A. Rockefeller, of the State of (H. Res. 735) reported from the New York, to be Vice President of the Committee of the Whole House on United States. the state of the Union confirming A motion to reconsider was laid a Presidential nomination for Vice on the table. President of the United States: Thereupon, the House received Resolved, That the House of Rep- a message from the Senate an- resentatives confirm the nomination of nouncing that body’s confirma- Gerald R. Ford, of the State of Michi- (8) gan, to be Vice President of the United tion of the nomination. States. 5. For proceedings incident to the Sen- A motion to reconsider was laid ate’s confirmation of the nomination on the table. see 119 CONG. REC. 38224, 38225, 93d Cong. 1st Sess., Nov. 27, 1973. 3. 119 CONG. REC. 39899, 39900, 93d 6. 120 CONG. REC. 41516, 41517, 93d Cong. 1st Sess. Cong. 2d Sess. 4. See 119 CONG. REC. 39807, 39812, 7. See id. at pp. 41419–516, for text of 39813, 93d Cong. 1st Sess., Dec. 6, H. Res. 1519 and debate on H. Res. 1973, for proceedings incident to the 1511. House’s agreement to a resolution, 8. For proceedings incident to the Sen- H. Res. 738, making in order consid- ate’s confirmation of the nomination, eration of the confirmation resolu- see 120 CONG. REC. 38918–36, 93d tion. Cong. 2d Sess., Dec. 10, 1974.

1580 CHAPTER 11

Questions of Privilege

A. Introductory § 1. In General

B. Privilege of the House § 2. In General; Definition § 3. Effecting Changes in House Rules or Orders § 4. Raising and Presenting the Question § 5. Time for Consideration; Precedence of the Ques- tion § 6. Recognition to Offer; Determinations as to Validity § 7. Consideration and Debate; Referral to Committee

C. Basis of Questions of Privilege of the House § 8. General Criticism of Legislative Activity § 9. Charges Involving Members § 10. Charges Involving House Officers or Employees § 11. Correcting the Record; Expungement of Words Ut- tered in Debate § 12. Enforcement of Committee Orders and Subpenas § 13. Invasion of House Jurisdiction or Prerogatives § 14. Service of Process on Members § 15. Service of Grand Jury Subpena § 16. Service of Process on House, Its Officers, or Em- ployees § 17. Service of Process on Committee Chairmen and Employees § 18. Authorization to Respond to Process § 19. Providing for Legal Counsel

Commentary and editing by John R. Graham, Jr., J.D.

1581 Ch. 11 DESCHLER’S PRECEDENTS

D. Personal Privilege of Member § 20. In General; Definition § 21. Raising the Question; Procedure § 22. Debate on the Question; Speeches § 23. Precedence of the Question; Interrupting Other Business

E. Basis of Questions of Personal Privilege § 24. Introductory; General Opinion or Criticism § 25. Charges Before a Governmental Agency or Com- mittee § 26. Charges by Fellow Member § 27. Words Uttered in Debate; Charges Inserted in the Record § 28. Published Charges of Impropriety § 29. Published Charges of Illegality § 30. Published Charges Involving Legislative Conduct § 31. Published Charges Involving Patriotism § 32. Published Charges Impugning Veracity § 33. Criticism of Members Collectively

INDEX TO PRECEDENTS

Abuse of House powers or institu- Character of Member, charges con- tions, § 30.8 cerning—Cont. Adjournment, questions of privilege making oneself a ‘‘damn fool’’ § 26.1 pending at, § 5.5 questionable business affiliations, Alteration of official transcript, §§ 26.3, 28.3 charge of, § 25.2 ‘‘vote selling,’’ § 28.1 Appeal from Speaker’s ruling, § 6.3 Calendar Wednesday business, prec- Charges concerning Congress, reso- edence of questions of privilege lution for investigation of, § 8.3 Charges concerning the House, reso- over, § 5.7 lution for investigation of, § 8.4 Character of Member, charges con- Charges made against other Mem- cerning bers, § 9.2 atomic secrets, divulging, § 26.2 Charges or criticism involving Communist Party affiliation, § 25.1 unnamed Members, §§ 26.1, 26.2, ethnic slur, § 28.4 33.1, 33.2 hearing transcripts, altered, submit- Committee chairman, improprieties ting, § 25.2 as, § 30.11

1582 DECSCHLER’S OF PRECEDENTS Ch. 11

Committee employee, criticism of, Court orders § 10.3 publication of committee report re- Committee of the Whole strained by, § 13.3 questions of personal privilege raised service of, on Members, §§ 14.9, 14.10 in, § 21.4 Criticism of Members questions of the privilege of the House generally, § 8.2 raised in, § 4.3 resolution for investigation of, § 9.2 Committee reports relating to ques- Debate, offensive remarks uttered tions of privilege during applicability of three-day rule con- in relation to questions of personal cerning, § 5.10 privilege, § 27.1 witness’ refusal to be sworn, § 12.2 Debate, scope of witness’ refusal to respond to subpena in relation to questions of personal privilege, § 22.5 duces tecum, § 12.3 response to Member who raises ques- Committee responsibilities, avoid- tion, § 22.2 ance of, § 30.14 Deceptive conduct, charge of, § 30.2 Committee witnesses, warrants de- Deposition, notice of, served on taining, § 12.1 Clerk, § 16.18 Communist Party affiliation, charge Discovery orders of, § 25.1 issuance of, for committee papers, Congress, criticism of, § 8.1 § 17.9 Congressional Record, expurgations service of, on committee employees, offensive articles, documents, or § 17.10 speech, inserted in, § § 11.4, 11.5 District of Columbia business, prece- offensive House debate in, § § 11.2, 11.3 dence of question of privilege over, offensive Senate debate in, § 11.1 § 5.8 remarks inserted in, through abuse of Doorkeeper, criticism of, § 10.2 leave to print, § 11.7 Employees, committee, service of in- remarks inserted without authoriza- terrogatories on, § 17.10 tion in, § 11.8 Executive invasion of House prerog- unparliamentary language inserted in, atives, § 13.2 under leave to extend, § 11.6 Executive officer, improper attempt by, to influence Member, § 9.1 Congressional Record, resolution to Fascist sympathies, charge of, § 31.4 correct inaccuracies in, § 11.9 Grounds for question of personal Congressional Record, resolution to privilege, statement of, § 21.1 restore remarks previously ex- Hour rule on debate, applicability of punged from, § 11.10 to questions of personal privilege, Congressional Record, transcript of, § 22.1 submitted to the Speaker, § 21.2 to questions of the privilege of the Counsel, appointment of House, § 7.1 by Clerk, § 19.3 House floor, control of, when ques- by House committee, § 19.2 tions of personal privilege arise, by Speaker, § 19.1 §§ 23.2, 23.3

1583 Ch. 11 DESCHLER’S PRECEDENTS

House orders, collateral attack on, Official conduct of Members, charges § 3.2 concerning—Cont. House rules, effecting changes in, ‘‘disgraceful’’ conduct, §§ 30.15, 30.16 § 3.1 evidence, confiscating, § 30.4 Illegality, charges of, concerning improper conduct in agency dealings, Members § 30.17 criminal conspiracy, perjury, and tax irresponsibility, § 30.12 evasion, § 29.5 making ‘‘intemperate, vituperative and fees, receipt of, § 29.3 libelous’’ attack, § 27.9 forgery, § 29.2 ‘‘making suckers’’ out of the taxpayers, sedition, § 29.6 § 27.8 tax irregularities, § 29.4 misuse of public funds, § 30.1 unspecified illegal acts, § 29.1 placing ‘‘scurrilous’’ matter in the Innuendos as raising question of Record, § 27.4 privilege, § 31.1 ‘‘pork barrel’’ provisions, § 27.6 Interrogatories, service of, on com- promoting religious strife, § 27.5 mittee employees, § 17.10 ‘‘sneaking’’ something over on the Journal House, § 30.2 interruption of reading of, for ques- war controls, actions detrimental to, tions of privilege, § 5.6 § 30.5 precedence of reading of, over ques- Official conduct of Members, criti- tions of personal privilege, § 23.1 cism of, §§ 8.2, 24.1 et seq. Judicial invasion of House preroga- One-minute speech, use of, as related tives, § 13.3 to questions of personal privilege, Legislative actions or record, criti- § 22.4 cism of, § 24.1 Patriotism of Members, charges con- Motion for adjournment, precedence cerning of, over questions of privilege, activities detrimental to national secu- §§ 5.1, 5.2 rity, §§ 31.12 et seq. Motion for the previous question collaborating with a foreign enemy, applicability of, to questions of the §§ 31.14 et seq. privilege of the House, § 7.3 fascist sympathies, §§ 31.4 et seq. precedence of questions of privilege generalized allegations, §§ 31.1–31.3 over, § 5.9 innuendos reflecting on patriotism, Official conduct of Members, charges §§ 31.1 et seq. concerning sedition, § 29.6 abuse of franking privilege, § 30.18 Political influence, exercise of, as abuse of powers or rank, §§ 30.8–30.10 improper, § 26.3 accusation of traitorous acts, § 26.5 Prima facie showing as to question conflicts of interest, §§ 30.6, 30.7 of privilege, § 4.1 ‘‘cynical politicking’’ and ‘‘shabby con- Procedure, effecting changes in, § 3.3 duct,’’ § 27.7 Process, response to, authorization dereliction of duties, § 30.3 for, § 18.1

1584 DECSCHLER’S OF PRECEDENTS Ch. 11

Questions of the privilege of the Subpena—Cont. House modification of, after service, § 14.3 appeal from Speaker’s determination Subpena, issuance of, to of, § 6.3 Clerk, §§ 16.7–16.9 consideration of, by House committee, committee chairmen, §§ 17.2–17.4 57.4 committee employees, §§ 17.5. 17.6 determination of, by Speaker, §§ 6.1, 6.2 Doorkeeper, § 16.10 prima facie showing necessary for, House employee, § 16.13 § 4.1 Members, §§ 14.2 et seq. Recognition of Member on question Sergeant at Arms, §§ 16.11, 16.12 of privilege, Speaker’s power as to, Subpenas issued by grand jury to § 6.1 Clerk, § 16.14 Religious strife, promotion of, § 27.5 committee chairman, § 17.7 Resolution, questions of the privilege of the House raised by, § 4.2 committee employee, § 17.8 Resolutions relating to critical publi- House employee, § 16.16 cations, §§ 8.3, 8.4 Members, §§ 15.1, 15.2 Response to Member who raises Sergeant at Arms, § 16.15 question, § 22.2 Summons, service of, on Revenue legislation, interference Capitol Architect, § 16.6 with House power to originate, § 13.1 chairman of committee, § 17.1 Rude conduct, allegations of, on the Clerk, § 16.3 part of House employees, § 10.2 House, § 16.1 Security risk, charging Member as Member, § 15.2 being, § 31.12 Sergeant at Arms, § 16.4 Senate debate, expungement of. by Speaker, § 16.2 House resolution, § 11.1 Senate invasion of House preroga- Traitorous acts, allegation of, § 26.5 tives, § 13.1 Unauthorized action by committee Senator’s criticism of House Mem- employee, allegation of, § 10.3 ber, § 27.6 Unnamed Members. criticism of. Special-order speech as alternative §§ 26.1. 33.1 to question of personal privilege, Veracity of Members, charges con- § 22.3 cerning Strike-breaking activities, charge of, charge of distorting the President’s § 27.3 words, by fellow Member, § 27.10 Subpena echoing a fascist lie, § 27.11 authorization for response to, §§ 18.1– 18.4 misleading the public, § 33.1 court-martial issuance of, to Clerk, presenting falsehoods, § 32.1 § 16.17 stating a ‘‘lie,’’ §§ 26.7, 27.12, 32.2 executive agency, issuance by, to Mem- Vote, improper attempt to influence, ber, § 14.8 § 9.1

1585

Questions of Privilege

A. INTRODUCTORY § 1. In General Pursuant to the rule, questions of privilege are divided into two The tradition of Anglo-American parliamentary procedure recog- classes—the first pertaining to the nizes the privileged status of House collectively, the second per- questions related to the honor and taining to the Members individ- security of a deliberative body and ually. Whenever a question of its members. The House has accorded privileged status to such privilege is properly raised on the questions by Rule IX,(1) which pro- floor by a Member, the Speaker vides: must entertain the question and Questions of privilege shall be, first, those affecting the rights of the House rule on its admissibility. And the collectively, its safety, dignity, and the disposition of such questions must integrity of its proceedings; second, the rights, reputation, and conduct of precede the consideration of any Members, individually, in their rep- other question except the motion resentative capacity only; and shall ( ) have precedence of all other questions, to adjourn. 3 except motions to adjourn.(2) prevent the loss of time which had 1. House Rules and Manual § 661 theretofore resulted from Members’ (1973). For pre-1936 rulings on ques- obtaining the floor for a speech tions of privilege, see 3 Hinds’ Prece- under the pretext of raising a ques- dents § § 2521-2725, and 6 Cannon’s tion of privilege. Precedents § § 553–622. 3. Precedence of the question, see § 5, 2. See 3 Hinds’ Precedents § 2521, not- infra. ing that the object of Rule IX was to

1587 Ch. 11 § 2 DESCHLER’S PRECEDENTS

B. PRIVILEGE OF THE HOUSE § 2. In General; Definition ring instead to table or to commit the matter to a designated House Under Rule IX,(4) a question of committee for its study and rec- the privilege of the House arises ommendations before debate be- whenever its safety, dignity, or gins.(9) the integrity of its proceedings, is in issue. The question having been properly raised by the offer- § 3. Effecting Changes in ing of a resolution, the Speaker House Rules or Orders initially decides whether the question presented constitutes a ques- Change in House Rules tion of the privilege of the House. And, as the presiding officer of the § 3.1 A question of the privi- House, it is customary for him to lege of the House may not be make a preliminary determination raised to effect a change in as to the validity of the question the rules of the House. (5) raised. Appeal may be taken On May 24, 1972,(10) during pro- from the Chair’s ruling, however, ceedings incident to the receipt of since the final determination re- a report from the Committee of garding the validity of such a the Whole House on the state of question of privilege rests with the Union, Ms. Bella S. Abzug, of ( ) the House. 6 New York, as a ‘‘question of privi- Debate in the House on a ques- lege of rule IX’’ submitted the fol- tion of privilege is limited to one lowing resolution: hour(7) and may, like debate on other matters, be terminated by H. RES. 1003 the adoption of a motion for the Resolved, That on May 24, 1972, at previous question.(8) Of course, the the hour of three forty-five House may choose not to under- postmeridian the House shall stand in recess for fifteen minutes in order that take consideration of a question of it may hear and receive petition for re- the privilege of the House, prefer- dress of grievances relative to the war in Indochina to be presented by a cit- 4. House Rules and Manual § 661 (1973). 9. See § 7.4, infra. 5. See § § 6.1, 6.2, infra. 10. 118 CONG. REC. 18675, 92d Cong. 2d 6. See § 6.3, infra. Sess. For an additional example see 7. See § 7.1, infra. 79 CONG. REC. 14667–69, 74th Cong. 8. See § 7.3, infra. 1st Sess., Aug. 24, 1935.

1588 QUESTIONS OF PRIVILEGE Ch. 11 § 3

izen of the United States and further whereby such action was resolved that in order to present such taken. petition, the said citizen be permitted ( ) on the floor of the House during such On Feb. 13, 1941, 12 Mr. Clare recess. E. Hoffman, of Michigan, rose to a Mr. Hale Boggs, of Louisiana, question of the privilege of the then made the point of order that House and submitted a resolution the resolution was not a privi- requesting the restoration to the Record of certain remarks made leged resolution. Following debate by him and Mr. Samuel Dickstein, on the point of order, the Speak- of New York, during the previous er (11) in his ruling on the point of day’s proceedings. Such remarks order said: had been deleted by the House The gentlewoman is out of order. pursuant to the adoption of a mo- The Chair cannot permit the gentle- tion to expunge made by Mr. John woman to speak out of order. E. Rankin, of Mississippi. Fol- The Chair has been very lenient in lowing debate, an inquiry was permitting the gentlewoman to debate heard from Mr. Hoffman as to her point of order, but the point of order is obviously in order. whether the Chair had ruled on The gentlewoman undertakes to the question of the privilege of the change the rules of the House or to House. Responding to the inquiry, make an exception without unanimous the Speaker (13) stated: consent and without a special order of The House would have to decide the House. that, and, in the opinion of the Chair, The point of order is sustained, and the House did decide the matter when the gentlewoman is out of order. it expunged the remarks from the Record. The Chair thinks, under the Change in House Orders circumstances, that the proper way to reopen the question would be by a mo- § 3.2 It is not in order by way tion to reconsider the vote whereby the of a point of personal privi- motion of the gentleman from Mis- sissippi [Mr. Rankin] was adopted. The lege or by raising a question Chair is of the opinion that inasmuch of the privilege of the House as the question raised by the gen- to collaterally attack an tleman from Michigan was decided by order properly adopted by a vote of the House on a proper mo- the House at a previous time, tion, that he does not now present a question of privilege of the House or of the proper method of reopen- personal privilege. ing the matter being by motion to reconsider the vote 12. 87 CONG. REC. 979, 980, 77th Cong. 1st Sess. 11. Carl Albert (Okla.). 13. Sam Rayburn (Tex.).

1589 Ch. 11 § 3 DESCHLER’S PRECEDENTS

Parliamentarian’s Note: On the tion that under the Constitution legislative day of Oct. 8, 1968,(14) and rules the freedom of Members after repeated quorum calls and who were present should not be other delay pending approval of restricted, the specific argument the Journal, a motion was adopted was not made that the order had ordering a call of the House upon been agreed to by less than a disclosure of the absence of a quorum or that it was directed quorum. Thereupon another mo- only to the attendance of absen- tion was adopted (before the tees and not to those present in quorum call commenced) directing the Chamber. This precedent does that those Members who were not not, then, stand for the propo- then present be returned to the sition that an improper order of Chamber and not permitted to the House or the manner of execu- leave until the pending business tion of an order of the House can (approval of the Journal) be com- never be collaterally attacked as a pleted. No point of order was matter of the privilege of the raised against that motion, al- House—it merely suggests that though it was agreed to by less the proper contention was not than a quorum, and no motion to made when the question of privi- reconsider was subsequently en- lege was raised. tered against the motion. Subse- quently, during the continued Change in Conference Proce- reading of the Journal, Mr. Robert dure Taft, Jr., of Ohio, as a matter both § 3.3 A question of the privi- of personal privilege and of the lege of the House may not be privileges of the House, moved raised to criticize or effect a that he and all other Members in change in conference proce- the Chamber who had been there dure. at the time of the last quorum call (16) be permitted to leave the Cham- On July 29, 1935, Mr. George ber at their desire. While the Huddleston, of Alabama, sub- (15) Speaker declined to entertain 16. 79 CONG. REC. 12007–13, 74th Cong. the motion as a question of privi- 1st Sess. For further examples see lege based upon Mr. Taft’s conten- 104 CONG. REC. 12690, 12691, 85th Cong. 2d Sess., June 30, 1958; 103 14. 114 CONG. REC. 30214, 30215, 90th CONG. REC. 14737–39, 85th Cong. Cong. 2d Sess. (calendar day Oct. 9, 1st Sess., Aug. 14, 1957; and 84 1968). CONG. REC. 1367–70, 76th Cong. 1st 15. John W. McCormack (Mass.). Sess., Feb. 14, 1939.

1590 QUESTIONS OF PRIVILEGE Ch. 11 § 4 mitted as a question of the privi- question, because that is not within lege of the House, a resolution (17) the province of the Chair, but the Chair thinks there is a distinction be- instructing certain House con- tween an assault upon a member of a ferees to insist upon the exclusion conference committee, as the gen- from subsequent conference com- tleman from Alabama has suggested, mittee meetings of several experts and the attendance at a session of a and counsel who were present conference committee of an employee of during a previous committee the Government upon the invitation of the conferees of one House. The Chair meeting at the insistence of the thinks that that is a matter of proce- Senate conferees. A point of order dure that should be determined by the was then made by Mr. John E. conferees. In the event that the con- Rankin, of Mississippi, that the ferees are unable to agree, it seems to resolution did not state a question the Chair that the remedy is provided of the privilege of the House and in rule XXVIII. The Chair does not believe that under the facts stated a further said: question of privilege is involved. The To say that the Senate committee, Chair, therefore, sustains the point of when it brings its experts to advise order. them and to assist them in working out the parliamentary or the legislative problems involved, is a matter that goes to the integrity of the pro- § 4. Raising and Pre- ceedings of the House of Representa- senting the Question tives I submit does not meet the requirement; and therefore the resolu- Prima Facie Showing tion is not privileged. If they want to come in and ask new instructions, and § 4.1 The mere statement that give the House the right to vote on the the privilege of the House instructions or what those instructions are to be, that might be a different has been violated and trans- proposition, but that would not be a gressed, unsupported by a question of the privilege of the House. further showing of a prima Debate ensued, at the conclu- facie violation or breach of sion of which the Speaker (18) in the privilege of the House, sustaining the point of order, stat- does not properly present a ed:(19) question of privilege. The Chair does not wish to be under- On Feb. 18, 1936,(20) Mr. Mar- stood as passing on the merits of the ion A. Zioncheck, of Washington,

17. H. Res. 311. 20. 80 CONG. REC. 2312, 2313, 74th 18. Joseph W. Byrns (Tenn.). Cong. 2d Sess. For further illustra- 19. 79 CONG. REC. 12013, 74th Cong. 1st tion see 88 CONG. REC. 2005, 77th Sess. Cong. 2d Sess., Mar. 6, 1942.

1591 Ch. 11 § 4 DESCHLER’S PRECEDENTS submitted as a question of privi- a question of the privilege of the lege the following resolution: House, sought recognition to make Resolved, That the gentleman from a statement. A point of order was New York, Mr. Taber, violated and made by Mr. John E. Rankin, of transgressed the privileges of the Mississippi, that in order to ob- House Monday, February 17, 1936. tain recognition on a question of A point of order was then made the privilege of the House a Mem- by Mr. Frederick R. Lehlbach, of ber must first offer a resolution. New Jersey, asserting that the Following the subsequent par- resolution did not raise a question liamentary inquiry by Mr. Hoff- of the privilege of the House. In man inquiring whether in fact he his ruling, sustaining the point of was required to offer a resolution order, the Speaker (21) stated: before stating his question, the Speaker (1) stated: The Chair thinks the point of order is well taken. The resolution does not The gentleman must offer his resolu- set out a question of privilege. tion first, under the rule.

Raised by Resolution In Committee of the Whole § 4.2 Questions of privilege of § 4.3 A question of the privi- the House are raised by reso- lege of the House based upon lution. proceedings in the House On Sept. 5, 1940,(22) Mr. Clare may not be raised in the E. Hoffman, of Michigan, rising to Committee of the Whole. On May 24, 1972,(2) after the Note: The resolution quoted above House had gone into the Com- was apparently in response to re- mittee of the Whole, the following marks by Mr. John Taber [N.Y.], made on the preceding day, in which proceedings occurred: he criticized an alleged abuse by Mr. THE CHAIRMAN: (3) For what purpose Zioncheck of the privilege of extend- does the gentlewoman from New York ing remarks in the Record. See 80 rise? CONG. REC. 2201, 74th Cong. 2d MRS. [BELLA S.] ABZUG: Mr. Chair- Sess., Feb. 17, 1936. man, I rise to make a resolution con- 21. Joseph W. Byrns (Tenn.). 22. 86 CONG. REC. 11552, 11553, 76th CONG. REC. 5454, 5455, 74th Cong. Cong. 3d Sess. For further illustra- 1st Sess., Apr. 11, 1935. tions see 86 CONG. REC. 5111, 5112, 1. William B. Bankhead (Ala.). 5114, 76th Cong. 3d Sess., Apr. 26, 2. 118 CONG. REC. 18675, 92d Cong. 2d 1940; 80 CONG. REC. 2201, 74th Sess. Cong. 2d Sess., Feb. 17, 1936; 79 3. John M. Murphy (N.Y.).

1592 QUESTIONS OF PRIVILEGE Ch. 11 § 5

cerning a question of privilege on rule § 5.2 The House may adjourn IX. pending a decision on a ques- THE CHAIRMAN: The gentlewoman is not in order. tion of privilege of the MR. [JOHN J.] MCFALL [of Cali- House. fornia]: Mr. Chairman, I make a point ( ) of order against the resolution. On June 5, 1940, 7 Mr. Ham- MRS. ABZUG: Mr. Chairman, a ques- ilton Fish, Jr., of New York, of- tion of privilege under rule IX in my fered a resolution (8) raising a understanding is in order at any time and it takes precedence over any other. question of the privilege of the THE CHAIRMAN: The Chair states the House. A point of order that a gentlewoman is not correct. quorum was not present was then Question[s] of privilege of the House made by Mr. William P. Cole, of may not be raised in the Committee of the Whole. Maryland. When the count of the House by the Speaker (9) disclosed the absence of a quorum, the § 5. Time for Consider- House agreed to a motion offered ation; Precedence of the by Mr. Sam Rayburn, of Texas, adjourning until the following Question day. Precedence of Motions to Ad- Precedence of Question of journ Privilege § 5.1 A question of privilege is not entertained pending a § 5.3 Parliamentarian’s Note: A vote on a motion to adjourn. question of privilege has priority over all other questions On Apr. 15, 1970,(4) following a except motions to adjourn,(10) point of order objecting to a vote on a motion to adjourn based on and supercedes the consider- the absence of a quorum, Mr. ation of the original question Louis C. Wyman, of New Hamp- shire, rose to a question of ‘‘privi- mandates that questions of privilege lege.’’ The Speaker pro tempore (5) ‘‘shall have precedence of all other indicated that the pendency of the questions, except motions to ad- motion to adjourn precluded the journ.’’ entertainment of the question.(6) 7. 86 CONG. REC. 7633, 76th Cong. 3d Sess.

4. 116 CONG. REC. 11940, 11941, 91st 8. H. Res. 510. Cong. 2d Sess. 9. William B. Bankhead (Ala.). 5. Charles M. Price (Ill.). 10. Rule IX, House Rules and Manual 6. By explicit provision Rule IX, House § 661 (1973), and 3 Hinds’ Prece- Rules and Manual § 661 (1973), dents § 2521.

1593 Ch. 11 § 5 DESCHLER’S PRECEDENTS

and must be disposed of Question of Privilege as Unfin- first.(11) ished Business

Precedence of Prior Question § 5.5 A question of the privi- of Privilege lege of the House pending at the time of adjournment be- § 5.4 At a time when a question comes the unfinished busi- of privilege is pending in the ness on the next day. House, a Member will not be On Aug. 27, 1940,(16) the House recognized to present an- adjourned during debate on a res- other question of privilege. olution involving the question of On May 28, 1936,(12) Mr. C. Jas- the privilege of the House offered per Bell, of Missouri, offered a by Mr. Jacob Thorkelson, of Mon- privileged resolution (13) raising a tana. At the commencement of the question of the privileges of the succeeding day’s business the House. Thereafter, Mr. Joseph P. Speaker (17) stated: Monaghan, of Montana, sought The unfinished business before the recognition to raise a point of per- House is the question of the privilege sonal privilege and of the privilege of the House raised by the gentleman of the House. Declining to extend from Montana. Does the gentleman recognition, the Speaker (14) stat- from Montana desire to be recognized? ed: (15) Precedence as to the Journal The question now pending is a question of the privilege of the House, and § 5.6 The Speaker indicated that takes precedence over the question of privilege of the gentleman from that, unlike a question of Montana. There can be only one ques- personal privilege, a question of privilege before the House at a tion of the privilege of the time, and one is now pending. House could interrupt the 11. House Rules and Manual, Jefferson’s reading of the Journal. Manual § 458, and annotation to On the legislative day of Oct. 8, Rule IX, § 664 (1973); and 3 Hinds’ 1968,(18) during the reading of the Precedents § 2522. 12. 80 CONG. REC. 8222, 74th Cong. 2d 16. 86 CONG. REC. 11046–49, 76th Cong. Sess. For a similar example see 80 3d Sess. For an additional example CONG. REC. 5704–06, 74th Cong. 2d see 112 CONG. REC. 27641, 89th Sess., Apr. 20, 1936. Cong. 2d Sess., Oct. 19, 1966. 13. H. Res. 532. 17. William B. Bankhead (Ala.). 14. Joseph W. Byrns (Tenn.). 18. 114 CONG. REC. 30214–16, 90th 15. 80 CONG. REC. 8222, 74th Cong. 2d Cong. 2d Sess., Oct. 9, 1968 (cal- Sess., May 28, 1936. endar day).

1594 QUESTIONS OF PRIVILEGE Ch. 11 § 5

Journal the following proceedings been disposed of, recognize the gen- occurred: tleman if the gentleman seeks recognition. MR. [ROBERT] TAFT [Jr., of Ohio]: Mr. Speaker—— Precedence Over Calendar (19) THE SPEAKER: For what purpose Wednesday Business does the gentleman from Ohio rise? MR. TAFT: Mr. Speaker, I have a § 5.7 A matter involving the privileged motion. privilege of the House takes MR. [SIDNEY R.] YATES [of Illinois]: A point of order, Mr. Speaker. That is precedence over the continu- not in order until the reading of the ation of the call of commit- Journal has been completed. tees under the Calendar THE SPEAKER: Will the gentleman Wednesday rule. from Ohio state his privileged motion? (20) MR. TAFT: Mr. Speaker, my motion On Feb. 8, 1950, during the is on a point of personal privilege. call of committees pursuant to the THE SPEAKER: Will the gentleman Calendar Wednesday rule,(1) the from Ohio state whether it is a point of following proceedings occurred: personal privilege or a privileged motion? MR. [VITO] MARCANTONIO [of New MR. TAFT: It is a privileged motion, York]: Mr. Speaker, a point of order. ( ) and a motion of personal privilege. THE SPEAKER. 2 The gentleman will Under rule IX questions of personal state it. privilege are privileged motions, ahead MR. MARCANTONIO: Mr. Speaker, of the reading of the Journal. this is Calendar Wednesday, and I ask THE SPEAKER: The Chair will advise that the business of Calendar Wednes- the gentleman that a question of per- day proceed. I submit that the regular sonal privilege should be made later order is the continuation of the call of after the Journal has been disposed of. committees by the Clerk. If the gentleman has a matter of THE SPEAKER: The Chair at this privilege of the House, that is an en- time is going to lay before the House a tirely different situation. matter of highest privilege. MR. TAFT: I believe, Mr. Speaker, The Speaker then laid before the this involves not only personal privi- House as a matter involving the lege as an individual, but also as a privileges of the House a commu- Member of the House and also the privileges of all Members of the House. nication from the Clerk of the THE SPEAKER: The Chair does not House reporting the receipt of a recognize the gentleman at this time on a matter of personal privilege. 20. 96 CONG. REC. 1695, 81st Cong. 2d But the Chair will, after the pending Sess. matter, the reading of the Journal has 1. Rule XXIV clause 7, House Rules and Manual § 897 (1973). 19. John W. McCormack (Mass.). 2. Sam Rayburn (Tex.).

1595 Ch. 11 § 5 DESCHLER’S PRECEDENTS subpena duces tecum from a U.S. Court for the District of Columbia to district court. enjoin the filing, printing, publishing, and dissemination of a report of the House Committee on Internal Security Precedence Over District of Co- (No. 91–1607), titled ‘‘Limited Survey lumbia Business of Honoraria Given Guest Speakers for Engagements at Colleges and Univer- § 5.8 A resolution involving a sities,’’ which I reported to the House question of the privilege of on October 14. On October 28, 1970, a single judge of that court . . . entered the House takes precedence a final order permanently enjoining over District of Columbia the Public Printer and the Super- business under Rule XXIV intendent of Documents from printing and distributing any copy of the report, clause 8. or any portion, restatement, or fac- On Dec. 14, 1970,(3) it being the simile thereof, and declared that any day set aside by House rule (4) for publication of the report at public expense would be illegal. . . . consideration of District of Colum- Never in the constitutional history of bia business, the House neverthe- this Nation . . . has any court of the less entertained a resolution (5) United States . . . sustained any such concerning the printing and pub- final restraint upon the printing and dissemination of a report of a com- lishing of a report of the Com- mittee of the Congress. mittee on Internal Security presented by Mr. Richard H. Ichord, Precedence Over Motion for the of Missouri, as a matter involving Previous Question the question of the privilege of the House. Mr. Ichord stated in part § 5.9 A resolution properly as- as follows: serting a question of the privilege of the House could I rise to a question of privilege in a matter affecting the rights of the take precedence over a mo- House collectively, the integrity of its tion for the previous ques- proceedings, and the rights of the tion on a bill already re- Members in their respective capacity. ported from the Committee See House rule XI. As you know, this of the Whole. question comes before us as a con- ( ) sequence of proceedings instituted on On May 24, 1972, 6 the Com- October 13, 1970, in the U.S. District mittee of the Whole House on the state of the Union rose and re- 3. 116 CONG. REC. 41355, 41358, 91st ported to the House a bill (7) con- Cong. 2d Sess. 4. Rule XXIV clause 8, House Rules 6. 118 CONG. REC. 18675, 92d Cong. 2d and Manual § 899 (1973). Sess. 5. H. Res. 1306. 7. H.R. 15097.

1596 QUESTIONS OF PRIVILEGE Ch. 11 § 5 cerning certain appropriations for On July 13, 1971,(11) Mr. Harley the Department of Transportation. O. Staggers, of West Virginia, ris- Thereafter, prior to consideration ing to a question of the privilege of the motion for the previous of the House, sought to submit question on the bill made by Mr. and call up for immediate consid- John J. McFall, of California, Ms. eration a report (12) of the Com- Bella S. Abzug, of New York, sub- mittee on Interstate and Foreign mitted a resolution (8) asserting as Commerce on the contemptuous a question of privilege of the conduct of a witness in refusing to House that the House recess for respond to a subpoena duces the purpose of receiving a petition tecum issued by the committee. A for the redress of certain griev- point of order was then raised by ances. After the resolution was Mr. Sam M. Gibbons, of Florida, read, the Speaker (9) sustained a that consideration of the matter point of order that the resolution violated a House rule (13) requiring did not state a question of the committee reports to be available privileges of the House.(10) to Members for at least three calendar days prior to their consider- Application of Three-day Rule ation. Following some debate, the Regarding Committee Re- Speaker (14) in overruling the point ports of order stated: § 5.10 A committee report sub- The Chair has studied clause mitted as a matter involving 27(d)(4) of rule XI and the legislative history in connection with its inclusion the privileges of the House, in the Legislative Reorganization Act as distinguished from a re- of 1970. That clause provides that ‘‘a port merely privileged under matter shall not be considered in the the rules, may be considered House unless the report has been on the same day reported available for at least 3 calendar days.’’ notwithstanding the require- The Chair has also examined rule IX, which provides that: ment by House rule that Questions of privilege shall be, committee reports be avail- first, those affecting the rights of the able to Members at least three calendar days prior to 11. 117 CONG. REC. 24720–23, 92d Cong. their consideration. 1st Sess. 12. H. REPT. NO. 92–349. 8. H. Res. 1003. 13. House Rules and Manual § 735 9. Carl Albert (Okla.). (1973). 10. See § 3.1, supra. 14. Carl Albert (Okla.).

1597 Ch. 11 § 5 DESCHLER’S PRECEDENTS

House collectively, its safety, dignity, provision in rule IX that questions of and the integrity of its proceedings privilege of the House shall have prec- . . . and shall have precedence of all edence of all other questions; and the other questions, except motions to adjourn. fact that the report of the committee has been filed by the gentleman from Under the precedents, a resolution West Virginia as privileged—all refute raising a question of the privileges of the argument that the 3-day layover the House does not necessarily require requirement of clause 27(d)(4) applies a report from a committee. Immediate in this situation. consideration of a question of privilege The Chair holds that the report is of of the House is inherent in the whole such high privilege under the inherent concept of privilege. When a resolution constitutional powers of the House and is presented, the House may then under rule IX that the provisions of make a determination regarding its clause 27(d)(4) of rule XI are not appli- disposition. cable. When a question is raised that a wit- Therefore, the Chair overrules the ness before a House committee has point of order. been contemptuous, it has always been recognized that the House has the implied power under the Constitution to deal directly with such conduct so far § 6. Recognition to Offer; as is necessary to preserve and exer- Determinations as to Va- cise its legislative authority. However, punishment for contemptuous conduct lidity involving the refusal of a witness to testify or produce documents is now Speaker’s Power to Recognize generally governed by law—Title II, Member United States Code, sections 192– 194—which provides that whenever a § 6.1 Questions asserted to in- witness fails or refuses to appear in re- volve the privilege of the sponse to a committee subpoena, or House are addressed to the fails or refuses to testify or produce documents in response thereto, such Speaker; and he may refuse fact may be reported to the House. recognition if the resolution Those reports are of high privilege. is not shown to be admissible When a resolution raising a question as a question of privilege of privilege of the House is submitted under the rule. by a Member and called up as privileged, that resolution is also subject to On the legislative day of Oct. 8, immediate disposition as the House 1968,(15) Mr. Robert Taft, Jr., of shall determine. Ohio, presented a resolution pur- The implied power under the Con- stitution for the House to deal directly 15. 114 CONG. REC. 30214, 30215, 90th with matters necessary to preserve and Cong. 2d Sess., Oct. 9, 1968 (cal- exercise its legislative authority; the endar day).

1598 QUESTIONS OF PRIVILEGE Ch. 11 § 6 portedly involving a question of mitted a resolution purportedly the privilege of the House. How- raising a question of the privilege ever, the Speaker (16) ruled that of the House. Explaining his un- the Member could not be recog- willingness to immediately enter- nized for the purpose of calling up tain the resolution, the Speak- er (19) said:20 such a resolution. (See § 3.2, supra.) . . . For the moment at least the Chair would hesitate to hold that the A parliamentary inquiry was gentleman’s resolution is privileged. then raised by Mr. Gerald R. The Chair assures the gentleman that Ford, of Michigan, questioning he would like to look into it further. He would hesitate to hold at this time whether in fact the gentleman that the general criticism of Members from Ohio had been recognized for of the House is a matter so involving the purpose of offering the resolu- the privileges of the House that a resolution of this kind would be in order. tion. Answering in the negative, ... the Speaker stated:(17) The Chair desires to look into the matter and will talk with the gen- THE SPEAKER: The gentleman from tleman personally or recognize him in Michigan is well aware of the fact that the House later in the day. the question of recognition rests with the Chair. The gentleman did not No further action was taken on make a motion which was in order by the floor or by the Speaker. reason of the action heretofore taken by the House. Appeal From Speaker’s Ruling § 6.3 On one occasion when an Preliminary Determinations; appeal was taken from the Deferral of Recognition Speaker’s decision that a res- § 6.2 On one occasion, the olution did not state a ques- Chair deferred ruling on the tion of the privilege of the validity of a resolution pre- House, the House laid the ap- sented as raising a question peal on the table, thereby of the privilege of the House. sustaining the decision of the Chair. On May 21, 1941,(18) Mr. Clare E. Hoffman, of Michigan, sub- On the legislative day of Oct. 8, 1968,(21) Mr. Robert Taft, Jr., of 16. John W. McCormack (Mass.). 19. Sam Rayburn (Tex.). 17. 114 CONG. REC. 30215, 90th Cong. 20. 87 CONG. REC. 4308, 77th Cong. 1st 2d Sess., Oct. 8, 1968 (calendar day Sess., May 21, 1941. Oct. 9, 1968). 21. 114 CONG. REC. 30214, 30215, 90th 18. 87 CONG. REC. 4307, 4308, 77th Cong. 2d Sess., Oct. 9, 1968 (cal- Cong. 1st Sess. endar day).

1599 Ch. 11 § 6 DESCHLER’S PRECEDENTS

Ohio, presented a resolution his submission of a resolution which he asserted raised a ques- raising a question of the privileges tion involving the privilege of the of the House, inquired of the House. However, the Speaker (22) Speaker (2) as to whether he was ruled that the Member could not entitled to one hour of debate. In be recognized for the purpose of response to the inquiry the Speak- presenting such a resolution. (See er stated, ‘‘If it is a question of the § 3.2, supra.) Mr. Taft then ap- privilege of the House, the gen- pealed the ruling of the Chair. Im- tleman would be.’’ mediately thereafter, Mr. Carl Al- bert, of Oklahoma, moved that the Scope of Debate or Argument appeal be laid on the table. The § 7.2 A Member having been question was taken and, by a vote recognized on a question of of 136 yeas to 102 nays, the motion to lay the appeal on the table the privilege of the House was agreed to. must confine himself to such question. On Aug. 27, 1940,(3) Mr. Jacob § 7. Consideration and De- Thorkelson, of Montana, pre- bate; Referral to Com- sented a resolution raising the question of personal privilege and mittee of the privilege of the House. At issue were remarks inserted in Hour Rule on Debate the Congressional Record by Mr. § 7.1 The hour rule applies to Adolph J. Sabath, of Illinois. Mr. debate on a question of the Thorkelson, in presenting the res- privilege of the House. olution, stated: On Feb. 6, 1950,(1) Mr. Clare E. It is of the utmost importance that the Congressional Record be a true Hoffman, of Michigan, following record of the proceedings of the House. The integrity of the Record is de- 22. John W. McCormack (Mass.). stroyed by the insertion of remarks 1. 96 CONG. REC. 1514, 81st Cong. 2d purporting to have been made on the Sess. For further illustration, see floor of the House, but which were not 116 CONG. REC. 41358, 91st Cong. 2d so made, when no permission has been Sess., Dec. 14, 1970; 113 CONG. REC. granted by the House to insert those 6041, 90th Cong. 1st Sess., Mar. 9, remarks. 1967; 92 CONG. REC. 5001, 79th Cong. 3d Sess., May 14, 1946; and 86 2. Sam Rayburn (Tex.). CONG. REC. 5111, 5112, 5114, 76th 3. 86 CONG. REC. 11046, 76th Cong. 3d Cong. 3d Sess., Apr. 26, 1940. Sess.

1600 QUESTIONS OF PRIVILEGE Ch. 11 § 7

The remarks which have just been the question of privilege is con- quoted as having been inserted in the cerned?. . . Record by the gentleman from Illinois MR. THORKELSON: With regard to [Mr. Sabath] were not made on the whether I have uttered truths or false- floor of the House and violate the rules hoods. I believe that is part of my reso- of the House in two particulars. lution. First, the remarks charge that the THE SPEAKER: The Chair does not Member from Montana had inserted find any language in the gentleman’s 210 pages of ‘‘scurrilous matter’’ in the resolution where he is charged with an Record. ‘‘Scurrilous,’’ among other untruth or falsity.... The only ques- things, means ‘‘grossly offensive,’’ ‘‘vul- gar,’’ ‘‘opprobrious.’’ tion of privilege involved is whether or Such remarks reflect upon the char- not the matter was put in without per- acter, the reputation, of the Member mission of the House.... The Chair from Montana; tend to hold him up to does not desire to interrupt the con- ridicule; reflect upon his ability, his tinuity of the gentleman’s argument, reputation, and his character in his but the Chair is under some obligation representative capacity. to see that the gentleman conforms They also charge him with having with the rules and discusses the mat- inserted in the Record a forged letter. ter of privilege about which he complains. Subsequently, the Speaker (4) stated that Mr. Thorkelson’s as- Applicability of Previous Ques- sertions did not ‘‘raise a question tion of veracity [but did] raise a question in reference to the Record § 7.3 The previous question ap- itself, as to whether or not such plies to a question of the permission was obtained by the privilege of the House. gentleman from Illinois.’’ (5) On Apr. 26, 1940,(7) Mr. Clare Later in the proceedings, when E. Hoffman, of Michigan, pre- Mr. Thorkelson sought to intro- sented a resolution raising a ques- duce matter relevant to the alleged imputation of untruthful- tion of the privilege of the House. ness, the following exchange took Debate on the resolution then en- place: (6) sued. Thereafter, the Member moved the previous question on THE SPEAKER: On what phase is the his resolution, the previous ques- gentleman addressing himself so far as tion ultimately being rejected on a 4. William B. Bankhead (Ala.). division—ayes 102, noes 139. 5. 86 CONG. REC. 11049, 76th Cong. 3d Sess. 7. 86 CONG. REC. 5111–14, 76th Cong. 6. Id. at p. 11156. 3d Sess.

1601 Ch. 11 § 7 DESCHLER’S PRECEDENTS

Referral of Question to Com- § 7.5 The House by resolution mittee may refer a matter to a designated committee for its de- § 7.4 The House may refer to termination as to whether the Committee on Rules for the matter involves a ques- consideration a question in- tion of the privilege of the volving the privilege of the House. House. On Mar. 26, 1953,(10) the House On Jan. 23, 1940 (8) Mr. Clare adopted a resolution (11) submitted E. Hoffman, of Michigan, sub- by Mr. Charles A. Halleck, of In- mitted a resolution (9) involving a diana, authorizing and directing question of the privilege of the the Committee on the Judiciary to determine whether the service of House. Immediately thereafter, subpenas upon certain Members, the House agreed to a motion former Members, and employees which committed the resolution to of the House, relative to a civil the Committee on Rules for its suit, constituted a question involv- consideration. ing the privilege of the House.

C. BASIS OF QUESTIONS OF PRIVILEGE OF THE HOUSE § 8. General Criticism of sonal privilege or the privi- Legislative Activity lege of the House. On Sept. 22, 1941,(12) Mr. Clare Criticism of Congress E. Hoffman, of Michigan, sought to submit, as a matter presenting a question both of personal privi- § 8.1 A newspaper editorial lege and of the privilege of the making a general criticism of House, the text of a newspaper the Congress does not editorial charging Congress with present a question of per- ‘‘inertia, cowardice, and political

8. 86 CONG. REC. 606, 76th Cong. 3d 8734–39, 77th Cong. 1st Sess., Nov. Sess. 10, 1941. 9. H. Res. 366. 11. H. Res. 190. 10. 99 CONG. REC. 2356–58, 83d Cong. 1st Sess. For additional illustration 12. 87 CONG. REC. 7500, 77th Cong. 1st of the same point, see 87 CONG. REC. Sess.

1602 QUESTIONS OF PRIVILEGE Ch. 11 § 8 slickness,’’ thereby detracting House with demagoguery and from the authority and respect be- willingness to punish the District stowed by the Constitution. In his of Columbia to win votes back ruling declining recognition to the home. In his ruling on the validity Member for the purpose of sub- of the resolution as raising a ques- mitting the editorial in question, tion of the privilege of the House, the Speaker (13) stated: the Speaker (15) stated: . . . The Chair does not think that an . . . For the moment at least the editorial in a paper making general Chair would hesitate to hold that the criticism of Congress raises a question gentleman’s resolution is privileged. of the privileges of the House, and cer- The Chair assures the gentleman that tainly no Member of the House in his he would like to look into it further. individual capacity is attacked in this He would hesitate to hold at this time resolution, and, therefore, the Chair that the general criticism of Members must hold that this is not a question of of the House is a matter so involving personal privilege or a question of the the privileges of the House that a reso- privilege of the House. lution of this kind would be in order. No further floor action was Criticism of Members Gen- taken by the Speaker with respect erally to this resolution.

§ 8.2 A newspaper editorial Resolutions Relating to Crit- charging Members of the ical Publications House with demagoguery and willingness to punish the § 8.3 A resolution providing for District of Columbia did not an investigation of news- give rise to a question of the paper charges, including al- privilege of the House. legations of criminal conduct On May 21, 1941,(14) Mr. Clare by the Congress, was pre- E. Hoffman, of Michigan, offered sented as a question of the as a matter raising a question of privilege of the House. the privilege of the House, a reso- On Nov. 28, 1941,(16) Mr. Clare lution requesting the appointment E. Hoffman, of Michigan, pre- of a committee to investigate and sented as a question of the privi- report on a newspaper editorial lege of the House a resolution (17) which charged Members of the 15. Sam Rayburn (Tex.). 13. Sam Rayburn (Tex.). 16. 87 CONG. REC. 9194, 9195,77th 14. 87 CONG. REC. 4307, 4308, 77th Cong. 1st Sess. Cong. 1st Sess. 17. H. Res. 349.

1603 Ch. 11 § 8 DESCHLER’S PRECEDENTS seeking the factual basis for a ment of a committee to ascertain newspaper article charging Con- the facts concerning and make gress with lack of courage, with recommendations for action in re- being ‘‘yellow,’’ with having ‘‘sold lation to a newspaper article the country out for a few lousy charging that ‘‘mobs appear to jobs,’’ with ‘‘protecting Com- have enough influence to reach munists,’’ and with aiding in ‘‘the into the House of Representatives robbery, extortion, physical bru- to kill probes into labor racket- tality and arrogant suppression of eering.’’ Following some discussion citizens’ plain rights by groups of of the resolution a motion was thugs, thieves, and anti-American adopted referring the resolution to conspirators in the service of the the Committee on the Judiciary. Kremlin.’’ Mr. Hoffman then received the § 9. Charges Involving consent of the House that consid- Members eration of this resolution be reserved until the next legislative Charges by a Member day, Dec. 1.(18) At that time the § 9.1 A resolution providing for resolution was referred to the an investigation of charges Committee on the Judiciary. by a Member that an execu- § 8.4 A resolution calling for a tive officer improperly at- committee investigation of tempted to influence the newspaper charges that the Member’s vote presents a House was being influenced question involving the privi- by mobs was presented as a lege of the House. question of the privilege of On July 2, 1935,(1) Mr. Ham- the House. ilton Fish, Jr., of New York, pre- On Mar. 29, 1954,(19) Mr. Clare sented as a question of the privi- ( ) E. Hoffman, of Michigan, offered lege of the House a resolution 2 as a matter raising a question of declaring that Mr. Ralph Brew- the privilege of the House a reso- ster, of Maine, had stated that he lution (20) requesting the appoint- had been approached by a federal officer and told that if he (Brew- 18. 87 CONG. REC. 9256–60, 77th Cong. ster) did not vote against a provi- 1st Sess. 19. 100 CONG. REC. 3968–71, 83d Cong. 1. 79 CONG. REC. 10669–71, 74th Cong. 2d sess. 1st Sess. 20. H. Res. 482. 2. H. Res. 285.

1604 QUESTIONS OF PRIVILEGE Ch. 11 § 9 sion in the so-called ‘‘Federal On May 5, 1952,(4) Mr. Clare E. Power Act,’’ certain funds allo- Hoffman, of Michigan, submitted, cated for public works in his home as a question involving the privi- ( ) district would be withheld. lege of the House, a resolution 5 A point of order was made by providing that Mr. Edwin Arthur Hall, of New York, be given an op- Mr. Thomas L. Blanton, of Texas, portunity to appear before the bar that the resolution was not privi- of the House to explain or that a ( ) leged. The Speaker 3 in his ruling committee be appointed to inves- on the point of order, stated: tigate the authenticity of state- . . . The gentleman from Maine [Mr. ments appearing in the press that Brewster] has made certain serious Mr. Hall declared he ‘‘resents charges. It is not necessary, of course, Congressmen who get soused and for the Chair to pass on the charges. who in all probability are giving That is a matter for the House to de- away atomic secrets to the enemy termine. But the Chair does feel that while under the influence of liq- in view of the statements made by the uor.’’ Pursuant to a motion au- gentleman from Maine on his own re- thorizing the Speaker to refer this sponsibility as a Member of this resolution to ‘‘a committee,’’ the House, as well as those contained in Speaker (6) ordered it referred to the pending resolution, that if such the Committee on Rules. statements are found to be correct, then it seems to the Chair that the in- Charges Concerning a Fellow tegrity of the proceedings of this House have been seriously interfered with. Member The Chair, therefore, thinks that the resolution presents a question of the § 9.3 A resolution alleging that privilege of the House, and overrules a Member without authority the point of order. addressed questionnaires to school teachers requesting Charges Concerning Member their opinion on communism Generally does not present a question of the privilege of the House. § 9.2 A resolution for the inves- (7) tigation of charges by a On June 18, 1936, Mr. Kent E. Keller, of Illinois, offered as a Member concerning fellow Members, accusing them of 4. 98 CONG. REC. 4787–97, 82d Cong. giving away atomic secrets, 2d Sess. raises a question of the privi- 5. H. Res. 631. lege of the House. 6. Sam Rayburn (Tex.). 7. 80 CONG. REC. 9947, 74th Cong. 2d 3. Joseph W. Byrns (Tenn.). Sess.

1605 Ch. 11 § 9 DESCHLER’S PRECEDENTS matter involving the privilege of § 10. Charges Involving the House a resolution concerning House Officers or Em- the alleged unauthorized action of Mr. Thomas L. Blanton, of Texas, ployees whereby he addressed question- Criticism of Speaker naires to school teachers in the District of Columbia requesting § 10.1 A newspaper column al- their opinions on communism. A leging that the Speaker took point of order was then made by care to insure that only Mr. Claude A. Fuller, of Arkansas, Members amenable to a cer- that the offered resolution did not tain program were appointed involve a question of the privilege to the House Ways and of the House. In his ruling sus- Means Committee was held taining the point of order, the not to give rise to a question Speaker (8) said: of the privilege of the House. . . . The Chair is somewhat familiar On May 2, 1956,(9) Mr. Clare E. with the precedents involved in matters of this sort. The question of privi- Hoffman, of Michigan, rising to a lege under rule IX under which this question of the privilege of the (10) resolution is offered provides that House, presented a resolution questions of privilege shall be—— requesting the appointment of a committee to investigate and First, those affecting the rights of the House collectively, its safety, dig- make recommendations con- nity, and the integrity of its pro- cerning a newspaper column ceedings. which charged that ‘‘Speaker Sam The matter set up in the resolution Rayburn, of Texas, had carefully constitutes an allegation of certain con- scrutinized the House Ways and duct on the part of an individual Mem- Means Committee to make sure ber of the House, who, it seems, wrote nobody was put on the committee certain letters to school teachers or who might vote against the 271⁄2 other persons in the District of Colum- percent oil depletion allowance.’’ bia. Whether or not the subject matter The Speaker pro tempore,(11) in of the letter was proper or not, wheth- ruling the claim of privilege in- er it was a matter of propriety or not, valid, said: whether it was a matter of good judgment or not, is not one that involves The Chair rules that the gentleman under this rule the question of the does not present a question of the privileges of the House and its pro- privilege of the House. ceedings, in the opinion of the Chair. The Chair, therefore, sustains the 9. 102 CONG. REC. 3838, 3839, 84th point of order. Cong. 2d Sess. 10. H. Res. 417. 8. William B. Bankhead (Ala.). 11. John W. McCormack (Mass.).

1606 QUESTIONS OF PRIVILEGE Ch. 11 § 10

It is perfectly all right for the Speak- that the resolution be read. The er or any Member to advocate a 271⁄2 Chair does not think the resolu- percent depletion. The resolution does not present a question which involves tion is privileged.’’ the privilege of the House. By unanimous consent, the reading of the resolution contin- Criticism of Doorkeeper ued. Mr. Blanton then asked unanimous consent for consider- § 10.2 A resolution proposing ation of the resolution, but objec- to deny a newspaper report tion was heard.(14) that the Doorkeeper of the House acted rudely in accom- Improper or Unauthorized Ac- plishing the removal of a vis- tions by Committee Employee itor from the gallery was held not to raise a question § 10.3 A resolution alleging of the privilege of the House. that a committee employee appeared in a court as spe- On July 9, 1935,(12) Mr. Thomas cial counsel for a committee L. Blanton, of Texas, offered as a matter raising a question of the of the House without the au- privilege of the House a resolution thorization of the House was proposing the denial of a news- presented as a question of paper report which charged that the privilege of the House. the Doorkeeper of the House rude- On July 1, 1952,(15) Mr. Clare E. ly forced a mother who was Hoffman, of Michigan, presented breast-feeding her child to leave as a matter involving a question the gallery of the House. Mr. Earl of the privilege of the House a res- C. Michener, of Michigan, inter- olution alleging that a committee rupted the reading of the resolu- employee appeared in the United tion to make the point of order States District Court for the that the resolution did not give Southern District of California as rise to a question of the privilege special counsel for a subcommittee of the House. In his ruling sus- of the Committee on Executive taining the point of order, the Expenditures without the author- Speaker (13) stated: ‘‘The Chair ization of the House. Debate on suggests that the gentleman from the resolution ensued, at the con- Texas ask unanimous consent 14. 79 CONG. REC. 10906, 74th Cong. 1st 12. 79 CONG. REC. 10905, 74th Cong. 1st Sess. Sess. 15. 98 CONG. REC. 8768, 8769, 82d Cong. 13. Joseph W. Byrns (Tenn.). 2d Sess.

1607 Ch. 11 § 10 DESCHLER’S PRECEDENTS clusion of which a motion to refer and a majority of the Members. the resolution to the Committee Citing Rule XIV clause 5,(18) on the Judiciary was agreed to. which provides for the taking down of objectionable words, the Speaker (19) ruled the Member out § 11. Correcting the of order in raising a question of Record; Expungement of privilege under the circumstances. Words Uttered in Debate

A resolution asking the Senate Senate Debate Reflecting on to expunge from the Congressional House Integrity Record language used in debate in the Senate which is offensive or § 11.1 A resolution to expunge otherwise improper may give rise from the Congressional to a question of the privilege of Record Senate debate reflect- the House since the remedy of de- ing on the integrity of the manding that words be taken House presents a question of down is not available.(16) However, the privilege of the House. neither a question of personal On July 12, 1956,(1) Mr. Clare privilege nor a question of the E. Hoffman, of Michigan, pre- privilege of the House arises dur- sented as a matter giving rise to a ing a debate in which offensive question of the privilege of the language is used, the remedy House a resolution seeking the ex- being a demand that the objec- purgation from the Record of Sen- tionable words be taken down ate debate attributing improper when spoken. Thus, on one occa- motives and influence to House sion,(17) a Member, having risen to action on an education bill. a question of personal privilege The resolution [H. Res. 588] and of the privilege of the House, provided: submitted a resolution to strike Resolved, whereas in the Congres- from the Congressional Record re- sional Record of July 9, 1956, certain marks made by a Member in the articles appear which reflect upon the course of floor debate reflecting on integrity of the House as a whole in its the integrity of both the House 18. House Rules and Manual § 761 16. §§ 11.1 et seq., infra. (1973). 17. 96 CONG. REC. 1514, 81st Cong. 2d 19. Sam Rayburn (Tex.). Sess., Feb. 6, 1950. For further illus- 1. 102 CONG. REC. 12522, 12523, 84th trations see Ch. 29, infra. Cong. 2d Sess.

1608 QUESTIONS OF PRIVILEGE Ch. 11 § 11

representative capacity, and upon indi- question of the privilege of the vidual Members of the House; and House: Whereas such statements tend to disgrace, degrade, and render ineffec- THE SPEAKER PRO TEMPORE: (3) The tive the actions of the Members of the gentleman will state the question of House; and privilege. Whereas the statements so made MR. HOFFMAN of Michigan: Mr. and carried in the Record adversely af- Speaker, in the daily Congressional fect the rights of the House collec- Record of Monday, May 22, 1950, on tively, its safety, dignity, and the in- page A4071 under date of Thursday, tegrity of its proceedings: Now, there- May 18, 1950, under the caption ‘‘We fore, be it will meet the test,’’ there appears an Resolved, That the House hereby by extension of remarks of the Honorable the adoption of this resolution most re- Andrew J. Biemiller, of Wisconsin, spectfully requests that the other body which is a violation of the rules of the expunge from its records the rollcall House in that in those remarks and in votes and remarks appearing on pages the editorial accompanying those re- 11016–11017 and the remarks appear- marks a Member of the other body is ing on page A5384 of the daily Con- mentioned in such manner as to reflect gressional Record of July 9, 1956, upon him in his representative capac- under the caption ‘‘Ignoring the chil- ity. Such remarks and editorial as in- dren’’; and be it further serted in the Congressional Record are Resolved, That a copy of this resolu- made a part of this question of privi- tion be transmitted to the Presiding lege, are a violation of the rules of the Officer of the other body. House which prohibit any reference in By vote of the House the resolu- the Congressional Record by a Member tion was referred to the Com- of this body to a Member of the other mittee on Rules. body. The resolution which I offer is that House Debate Reflecting on the such remarks be stricken from the Ap- pendix. Senate THE SPEAKER PRO TEMPORE: The Clerk will report the resolution. § 11.2 A resolution to expunge The Clerk read as follows: from the Congressional Whereas the remarks of the gen- Record House debate reflect- tleman from Wisconsin, Mr. ing on the Senate presents a Biemiller, which appear on page question of the privilege of A4071 of the daily Congressional Record of Monday, May 22, 1950, the House. and which are captioned, ‘‘We will (2) meet the test,’’ are a violation of the On May 24, 1950, Mr. Clare rules of the House: Therefore be it E. Hoffman, of Michigan, rose to a Resolved by the House, That said remarks as so indicated be, and the 2. 96 CONG. REC. 7635–37, 81st Cong. 2d Sess. 3. John W. McCormack (Mass.).

1609 Ch. 11 § 11 DESCHLER’S PRECEDENTS

same hereby are, stricken from the Whereas such words were a violation Record. of the rules of the House and, as re- Debate on the resolution en- printed in the Record, charge the sued. Subsequently, on the Member from Ohio with a lack of patriotism, and with disloyalty to his House’s agreement to a unani- country, reflect upon him in his rep- mous-consent request by Mr. resentative capacity and upon the dig- Biemiller that his remarks be de- nity of the House: Therefore, be it leted from the permanent Record, Resolved, That the words, ‘‘I said I the resolution was withdrawn. did not want to sit by a traitor to my country,’’ be expunged from the Record. House Debate Reflecting on Debate on the resolution ensued, Members at the conclusion of which the res- § 11.3 On one occasion the olution was agreed to. House agreed to a resolution Parliamentarian’s Note: No which had been presented as point of order was raised against a question of privilege of the the presentation of this resolution House, and which expunged as a question of privilege of the from the Congressional House. The proper remedy in such Record House debate which a case is to have the offending had impugned the integrity words taken down. Detailed cov- of a Member. erage of this procedure is found in chapter 29, infra. On Sept. 5, 1940,(4) Mr. Clare E. Hoffman, of Michigan, rose to a Offensive or Unauthorized Ma- question of the privilege of the terial Inserted in the Record House and offered a resolution (5) as follows: § 11.4 A resolution to expunge Whereas the gentleman from the from the Congressional Second District of Kentucky [Mr. (Bev- Record several articles and erly M.) Vincent], referring to the gentleman from the Twentieth District of documents criticizing a Ohio [Mr. (Martin L.) Sweeney], stated House committee, inserted in on the floor of the House on September the Record by a Member, was 4, 1940, as appears in the [daily] entertained as a question of Record on page 17450, ‘‘I said I did not the privilege of the House. want to sit by a traitor to my country;’’ and On Mar. 10, 1948,(6) Mr. John E. Rankin, of Mississippi, pre- 4. 86 CONG. REC. 11552, 76th Cong. 3d Sess. 6. 94 CONG. REC. 2476–81, 80th Cong. 5. H. Res. 591. 2d Sess. For additional examples see

1610 QUESTIONS OF PRIVILEGE Ch. 11 § 11 sented as a matter involving the official, assailing the integrity of privilege of the House a resolution both the House and its Members. requesting that several articles The resolution proposed that the and documents alleging that ‘‘[the speech, which had been inserted Committee on Un-American Ac- in the Congressional Record by tivities] continue[s] the practice of Mr. Adolph J. Sabath, of Illinois, Hitler and Himmler, which would be stricken therefrom. The resolu- lead America . . . down the road tion was adopted on a roll call toward fascism’’ which had been vote—yeas 247, nays 77, not vot- inserted in the Congressional ing 106. Record by Mr. Adolph J. Sabath, of Illinois, be stricken therefrom. § 11.6 A resolution to expunge Following some debate the resolu- from the Congressional tion was agreed to. The Member’s Record unparliamentary lan- entire speech, including the arti- guage inserted under leave cles and documents, was stricken to extend is entertained as a from the Record. question of the privilege of the House. § 11.5 A resolution to expunge On Apr. 20, 1936,(9) Mr. Thomas from the Congressional L. Blanton, of Texas, presented as Record a speech inserted a question of the privilege of the therein alleged to reflect on House a resolution (10) demanding the integrity of the House the expurgation from the Record and its Members is enter- of certain unparliamentary retained as a question of privi- marks concerning the personal life lege. of a Member. The material had On May 13, 1946,(7) Mr. Clare been inserted on a preceding day E. Hoffman, of Michigan, offered under leave to extend that had as a matter involving a question been granted to Mr. Marion A. of the privilege of the House a res- Zioncheck, of Washington. The olution (8) concerning the text of a resolution was agreed to on a roll speech delivered by August call vote. Scholle, a Michigan labor union § 11.7 A resolution to expunge 93 CONG. REC. 2461–63, 80th Cong. certain remarks inserted 1st Sess., Mar. 24, 1947. 7. 92 CONG. REC. 4922–24, 79th Cong. 9. 80 CONG. REC. 5704–07, 74th Cong. 2d Sess. 2d Sess. 8. H. Res. 616. 10. H. Res. 490.

1611 Ch. 11 § 11 DESCHLER’S PRECEDENTS

through an abuse of the Whereas said statements were not grant of leave to print in the made upon the floor of the House; and Congressional Record gives Whereas said statements reflect upon Members of Congress, are false, rise to a question of the improper, and out of order, and in vio- privilege of the House. lation of the privileges and rules of the On July 13, 1942,(11) Mr. John House; and if they had been uttered E. Rankin, of Mississippi, pre- upon the floor of the House they would have been subject to a point of order: sented as a matter of the privilege Therefore be it of the House the following resolu- Resolved, That the said remarks be ( ) tion: 12 stricken from the Record and the Pub- Whereas in the daily Congressional lic Printer prohibited from issuing cop- Record of July 9, 1942, on page A2877, ies thereof from the columns of the A2878, and A2879 of the Appendix Congressional Record. thereof, the remarks purporting to be Without debate, the resolution made by the gentleman from New was adopted. York, Mr. Sol Bloom, and containing a letter written by one Ralph Ingersoll attacking draft board No. 44 of New § 11.8 A resolution to expunge York for performing its official duties from the Congressional in refusing to exempt the said Ralph Record certain remarks in- Ingersoll from the draft on the flimsy serted without proper au- pretext set out in said letter; and thorization is entertained as Whereas said letter was inserted under permission to insert an editorial a matter of the privilege of and not a letter from the said Ralph the House. Ingersoll; and On Aug. 27, 1940,(13) Mr. Jacob Whereas it is stated on page 6271 of Thorkelson, of Montana, offered the Congressional Record of July 9, 1942, that the printing of this insertion as a question of the privilege of in the Congressional Record was esti- the House a resolution demanding mated to cost the Government of the that certain remarks inserted into United States $157.50; and the Congressional Record by Mr. Whereas said letter so inserted in Adolph J. Sabath, of Illinois, with- lieu of the editorial for which permission was given contains language and out first having obtained the per- statements that are objectionable and mission of the House, be expunged unparliamentary; and from the Record and declared not to constitute a legitimate part of 11. 88 CONG. REC. 6102, 77th Cong. 2d Sess. For a further example see 92 13. 86 CONG. REC. 11046, 76th Cong. 3d CONG. REC. 1274, 79th Cong. 2d Sess. For an additional example see Sess., Feb. 13, 1946. 80 CONG. REC. 7019, 74th Cong. 2d 12. H. Res. 518. Sess., May 11, 1936.

1612 QUESTIONS OF PRIVILEGE Ch. 11 § 11 the official Record of the House. vote and the subsequent direction of After some debate the resolution the Speaker to the gentleman from was adopted. Georgia to continue: Now, therefore, be it Resolved, That the Record of the Inaccuracies in the Congres- House be corrected and that the pro- sional Record ceedings above referred to be printed therein. § 11.9 A resolution to correct Following agreement by unani- inaccuracies in the report of mous consent to the request of proceedings as printed in the Mr. Edward E. Cox, of Georgia, Congressional Record is pre- that the stricken matter in ques- sented as a question of the tion be restored to the Record, the privilege of the House. resolution was withdrawn. On Apr. 26, 1940,(14) Mr. Clare E. Hoffman, of Michigan, offered Restoration of Remarks Pre- as a matter involving the question viously Deleted of the privilege of the House the following resolution: § 11.10 A resolution to restore to the Record remarks pre- Whereas the Congressional Record of April 25, 1940, is not, on pages 5046 to viously deleted by House 5051, inclusive, a true and accurate adoption of a motion to ex- record of the proceedings that took punge does not present a place on the floor of the House on yes- question of the privilege of terday, in that there is omitted there- the House; the proper meth- from a demand which was made on the floor of the House by the gentleman od of reopening the matter from the Twelfth Congressional Dis- being by motion to recon- trict of Michigan that certain words ut- sider the vote whereby such tered on the floor of the House by the action was taken. gentleman from the Second District of ( ) Georgia be taken down, and, there is On Feb. 13, 1941, 15 , Mr. Clare omitted therefrom, the ruling of the E. Hoffman, of Michigan, rose to a Speaker upon such demand, and there question of the privilege of the is omitted therefrom a motion which House and submitted a resolution was made by the gentleman from the requesting the restoration to the Twelfth District of Massachusetts, and there is omitted therefrom the vote Record of certain remarks made taken on said motion, and there is by him and Mr. Samuel Dickstein, omitted therefrom the result of said of New York, during the previous

14. 86 CONG. REC. 5111, 5112, 76th 15. 87 CONG. REC. 979, 980, 77th Cong. Cong. 3d Sess. 1st Sess.

1613 Ch. 11 § 11 DESCHLER’S PRECEDENTS day’s proceedings. Such remarks rant commanding the deten- had been deleted by the House tion of a committee witness, pursuant to the adoption of a mo- based on allegations that at- tion to expunge made by Mr. John tempts had been made by the E. Rankin, of Mississippi. Fol- Senate to deprive the com- lowing debate, an inquiry was mittee of such witness’ pres- heard from Mr. Hoffman as to ence, gave rise to a question whether the Chair had ruled on of the privilege of the House. the question of the privilege of the On Aug. 15, 1935,(17) Mr. John House. Responding to the inquiry, J. O’Connor, of New York, rose to (16) the Speaker stated: a question of the privilege of the The House would have to decide House and offered a resolution (18) that, and, in the opinion of the Chair, authorizing the Speaker to issue a the House did decide the matter when warrant commanding the bodily it expunged the remarks from the Record. The Chair thinks, under the detention of a committee witness, circumstances, that the proper way to it being alleged that attempts had reopen the question would be by a mo- been made by the Senate to de- tion to reconsider the vote whereby the prive the committee of such wit- motion of the gentleman from Mis- ness’ presence. The resolution sissippi [Mr. Rankin] was adopted. The stated: Chair is of the opinion that inasmuch as the question raised by the gen- Whereas the House did on July 8, tleman from Michigan was decided by 1935, adopt a resolution, House Reso- a vote of the House on a proper mo- lution 288, authorizing the Committee tion, that he does not now present a on Rules to investigate any and all question of privilege of the House or of charges of attempts or attempts to in- personal privilege. timidate or influence Members of the House of Representatives with regard to the bill S. 2796 or any other bills affecting public-utility holding companies § 12. Enforcement of Com- during the Seventy-fourth Congress by mittee Orders and Sub- any person, partnership, trust, association, or corporation; penas Whereas under the authority conferred upon said Committee on Rules Warrants Detaining Committee by said House Resolution 288, the said Witnesses committee had caused to be issued a subpena directed to H.C. Hopson to ap- § 12.1 A resolution authorizing the Speaker to issue a war- 17. 79 CONG. REC. 13289, 13290, 74th Cong. 1st Sess. 16. Sam Rayburn (Tex.). 18. H. Res. 340.

1614 QUESTIONS OF PRIVILEGE Ch. 11 § 12

pear before said committee and to tes- . . . As the Chair construes the res- tify concerning the matters committed olution, it involves the dignity and au- to the said Committee on Rules for in- thority of the House. The House has vestigation.... authority to protect its own agents and Whereas agents of another body its own committees in the discharge of have attempted to serve the said H.C. the duties vested in them. It seems to Hopson at 11:30 a.m. on August 14 the Chair that this is distinctly a mat- with a subpena in order to compel the ter of privilege for the consideration of said H.C. Hopson to appear before an- the House.... other body forthwith to give testi The Chair repeats that the resolu- mony. tion is one which involves the dignity . . . Whereas any interference with and authority of the House in pro- the proper proceeding of the Com- tecting its committees, which in this mittee on Rules in the investigation instance happens to be the Committee committed to them by House Resolu- on Rules, in the investigation which it tion 288 is an invasion of the preroga- has been authorized to make. The tives and privileges of the House of Chair overrules the point of order. Representatives...... Therefore, be it Resolved, That the Speaker of the Orders Relating to Refusal of House of Representatives issue his Witness to Be Sworn warrant commanding the Sergeant at Arms of the House of Representatives, § 12.2 A committee report re- or his deputy, to take into custody the lating the refusal of a wit- body of H.C. Hopson wherever found; ness to be sworn to testify that the said Sergeant at Arms, or his deputy, shall keep in custody the said before a House subcommittee H.C. Hopson until such time as the involves a question of the Committee on Rules shall discharge privilege of the House. him. (20) Provided, however, That the said On Sept. 10, 1973, Mr. witness may be available for examina- Lucien N. Nedzi, of Michigan, rose tion by the Senate Committee at such to a question of the privilege of times as his attendance is not required the House and offered a report (1) by the House Committee. from the Committee on Armed A point of order was raised by Services informing the House of Mr. John E. Rankin, of Mis- the refusal of George Gordon sissippi, asserting that the resolu- Liddy to be sworn or to testify be- tion did not give rise to a question fore its duly authorized sub- of the privilege of the House. Fol- committee. Following the presen- lowing some debate, the point of order was overruled by the Chair, 20. 119 CONG. REC. 28951, 28952, the Speaker (19) stating: 28959, 28960, 28962, 28963, 93d Cong. 1st Sess. 19. Joseph W. Byrns (Tenn.). 1. H. REPT. No. 93–453.

1615 Ch. 11 § 12 DESCHLER’S PRECEDENTS tation of the committee report, the to a question of the privilege of House agreed to a privileged reso- the House and submitted a re- lution (2) offered by Mr. Nedzi di- port (6) from the Committee on recting the Speaker (3) to certify to Interstate and Foreign Commerce the appropriate United States at- informing the House of the refusal torney the refusal of the witness of Frank Stanton, president of to be sworn to testify before a sub- CBS, to respond to a subpena committee of the Committee on duces tecum issued by a sub- Armed Services. committee of the committee. Sub- Parliamentarian’s Note: Based sequent to the presentation of the upon the precedent in the 92d committee report, a privileged res- Congress, first session, July 13, olution (7) was offered by Mr. Stag- 1971,(4) Representative Nedzi was gers directing the Speaker (8) to advised that a committee report certify the report of the House on the contempt of a witness could committee on the contemptuous be brought to the floor on the same day as filed and that the re- conduct of the witness to the ap- quirement for a three-day layover propriate United States attorney. under Rule XI clause 27(d)(4) did Some debate on the resolution en- not apply. sued, at the conclusion of which the previous question on the reso- Enforcement of Subpena Duces lution was moved by Mr. Stag- Tecum gers. Thereupon, Mr. Hastings Keith, of Massachusetts, asserting § 12.3 A committee report re- his opposition to the resolution, lating the refusal of a wit- offered a motion to recommit the ness to respond to a subpena resolution to the Committee on duces tecum issued by a Interstate and Foreign Commerce. House subcommittee gives The motion to recommit was rise to a question of the agreed to. privilege of the House. ( ) On July 13, 1971, 5 Mr. Harley see 112 CONG. REC. 27439–513, O. Staggers, of West Virginia, rose 27641, 89th Cong. 2d Sess., Oct. 18 and 19, 1966; 80 CONG. REC. 8219– 2. H. Res. 536. 21, 74th Cong. 2d Sess., May 28, 3. Carl Albert (Okla.). 1936. 4. 117 CONG. REC. 24720–23. 6. H. REPT. No. 92–349. 5. 117 CONG. REC. 24720–23, 92d Cong. 7. H. Res. 534. 1st Sess. For additional examples 8. Carl Albert (Okla.).

1616 QUESTIONS OF PRIVILEGE Ch. 11 § 13

§ 13. Invasion of House Ju- House. The language of the Sen- risdiction or Preroga- ate bill was as follows: tives That when the Secretary of the Inte- rior determines that the fishing vessels Senate Invasion of House Pre- of a country are being used in the con- rogatives duct of fishing operations in a manner or in such circumstances which dimin- § 13.1 Invasion of the House ish the effectiveness of domestic fishery conservation programs, the Presi- prerogative to originate rev- dent . . . may increase the duty on enue-raising legislation any fishery product in any form from granted by article I, section 7 such country for such time as he of the Constitution raises a deems necessary to a rate not more question of the privilege of than 50 percent above the rate existing the House. on July 1, 1934. On May 20, 1965,(9) Mr. Wilbur The House resolution was D. Mills, of Arkansas, offered as a agreed to. matter involving the privilege of the House a resolution (10) pro- Executive Invasion of House viding for the return to the Senate Prerogatives of a messaged bill. The bill authorized the President to raise the § 13.2 Alleged infringement by duty on fishery products and was the executive branch, deemed to infringe on the rev- through its treatymaking enue-raising prerogatives of the power, on the constitutional right of Congress under arti- 9. 111 CONG. REC. 11149, 11150, 89th cle IV section 3 to exercise Cong. 1st Sess. For further instances control over the territory where invasion of the House’s revenue-raising prerogative gave rise to and other property belong- a question of the privilege of the ing to the United States, pre- House, see 111 CONG. REC. 23632, sents a question of the privi- 89th Cong. 1st Sess., Sept. 14, 1965; lege of the House. 108 CONG. REC. 23014, 87th Cong. On Feb. 17, 1944,(11) Mr. Carl 2d Sess., Oct. 10, 1962; 106 CONG. REC. 15818, 15819, 86th Cong. 2d Hinshaw, of California, presented Sess., July 2, 1960; 99 CONG. REC. as a question involving the privi- 1897, 1898, 83d Cong. 1st Sess., lege of the House a resolution (12) Mar. 12, 1953; 92 CONG. REC. 5001– 12, 79th Cong. 2d Sess., May 14, 11. 90 CONG. REC. 1836, 78th Cong. 2d 1946. Sess. 10. H. Res. 397. 12. H. Res. 446.

1617 Ch. 11 § 13 DESCHLER’S PRECEDENTS instructing the Committee on the of the House a resolution (H. Res. Judiciary to investigate the action 1306) ordering the Public Printer of the President in sending to the to publish a report of the Com- Senate for ratification a treaty re- mittee on Internal Security and lating to the utilization by the enjoining all persons from inter- United States and Mexico of cer- fering therewith, it being alleged, tain southwestern rivers. The res- inter alia, that the prior issuance olution declared that the Constitu- of a temporary order by a United tion (art. IV, § 3) vests regulatory States District Court restraining power over U.S. territory in the the publication of the committee report constituted an invasion of Congress, and that the action of the House’s prerogatives granted the President constituted an inva- by the U.S. Constitution (art. I, sion of the House’s prerogatives § 6, clause 3). After lengthy debate relating to the control of United the resolution was agreed to on a States’ territory and property. roll call vote.(15) Without debate, a motion to refer the resolution to the Committee ( ) on the Judiciary was agreed to. 13 § 14. Service of Process on Judicial Invasion of House Members Prerogatives The service of process on the § 13.3 A resolution declaring House or those associated with it, that the constitutional pre- or the exercise of authority over it by another coordinate and coequal rogatives of the House had branch of government, including been invaded by the issuance any mandate of process which of a court order restraining commands a Member’s presence the publication of a com- before another branch of govern- mittee report presents a ment during sessions of the question of the privilege of House, has historically been per- the House. ceived by the House as a matter On Dec. 14, 1970,(14) Mr. Rich- intimately related to its dignity ard H. Ichord, of Missouri, offered and the integrity of its pro- as a matter involving the privilege ceedings, and as constituting an occasion for the raising of the 13. 90 CONG. REC. 1841, 78th Cong. 2d question of the privilege of the Sess. House. 14. 116 CONG. REC. 41355, 91st Cong. 2d Sess. 15. Id. at P. 41374.

1618 QUESTIONS OF PRIVILEGE Ch. 11 § 14

The rules and precedents of the the House in his official ca- House require that no Member, pacity as a defendant in a official, staff member, or employee civil action brought in a fed- of the House may, either volun- eral court raises a question tarily or in obedience to a sub- of the privilege of the House pena, testify regarding official and the matter is laid before functions, documents, or activities the House for its consider- of the House without the consent ation. of the House being first obtained. On July 8, 1965,(17) the Chair Likewise, information on papers recognized Mr. Carl Albert, of obtained by Members, officers, Oklahoma, who rose to a question and staff employees of the House of the privilege of the House: pursuant to their official duties may not be revealed in response MR. ALBERT: Mr. Speaker, I rise to a to a subpena without the consent question of the privilege of the House. (18) of the House. Accordingly, when a THE SPEAKER: The gentleman will state the question of privilege. House Member, officer, or em- MR. ALBERT: Mr. Speaker, in my offi- ployee is subpenaed on a matter cial capacity as a Representative and relating to House business, the as majority leader of this House, I privilege of the House arises; he have been served with a summons or his supervisor therefore advises issued by the U.S. District Court for the Speaker, who lays the facts the District of Columbia to appear in before the House for its consider- connection with the case of the All- American Protectorate, Inc. against (16) ation. Lyndon B. Johnson, and others. Under the precedents of the House, I am unable to comply with this sum- Service of Federal Court Sum- mons without the consent of the mons House, the privileges of the House being involved. I therefore submit the § 14.1 The receipt of a sum- matter for the consideration of this body. mons naming a Member (who I send to the desk the summons. was also Majority Leader) of THE SPEAKER: The Clerk will read the subpena. 16. See 113 CONG. REC. 29374–76, 90th Cong. 1st Sess., Oct. 25, 1967. For Thereupon the summons was instances where the receipt of judi- read to the House. cial process by a House officer or Member has resulted in the presen- 17. 111 CONG. REC. 15978, 15979, 89th tation of a question of the privilege Cong. 1st Sess. of the House, see §§ 15–17, infra. 18. John W. McCormack (Mass.).

1619 Ch. 11 § 14 DESCHLER’S PRECEDENTS

The Speaker and the Minority Service of Federal Court Sub- Leader, Gerald R. Ford, of Michi- pena gan, had been named in the sum- § 14.2 Where a Member re- mons, and both respectively sub- ceives a subpena to appear mitted the matter to the House. as a witness in a federal The following proceedings then court during a session of the took place: House, a question of the THE SPEAKER: The Chair has ad- privilege of the House arises dressed a letter to the Attorney Gen- and the matter is laid before eral of the United States. The Clerk the House for its consider- will read the letter. ation. The Clerk read as follows: On Nov. 17, 1969,(19) Mr. Henry July 8, 1965. B. Gonzalez, of Texas, rose to a The Honorable the Attorney General, Department of Justice. question of the privilege of the House: DEAR SIR: I did on July 6, 1965, accept service of a summons in the MR. GONZALEZ: . . . Mr. Speaker, I case of The All-American Protec- have been subpenaed to appear before torate, Incorporated v. Lyndon B. the U.S. District Court for the Western Johnson et al., civil action file No. District of Texas to testify on Wednes- 1583–65, pending in the U.S. Dis- day, November 19, 1969, in San Anto- trict Court for the District of Colum- nio, Tex., in the criminal case of the bia. The complaint filed in this ac- United States of America against Al- tion names me, individually and as bert Fuentes, Jr., and Edward J. Speaker of the House of Representa- tives, as a defendant in this pro- Montez. ceeding. Under the precedents of the House, I The majority leader of the House am unable to comply with this subpena of Representatives, the Honorable without the consent of the House, the Carl Albert, and the minority leader, privileges of the House being involved. the Honorable Gerald R. Ford, both I, therefore, submit the matter for the of whom are named as defendants in consideration of this body. this same proceeding, accepted service of summons on July 7, 1965. 19. 115 CONG. REC. 34301, 34302, 91st I am including herewith the summons served upon me, and those Cong. 1st Sess. For additional exam- served upon Representatives Albert ples see 107 CONG. REC. 5844, 87th and Ford, individually and in their Cong. 1st Sess., Apr. 13, 1961; 107 official capacities as majority and CONG. REC. 2481, 87th Cong. 1st minority leaders, respectively, in Sess., Feb. 21, 1961; 107 CONG. REC. order that you may proceed in accordance with the law. 2480, 2481, 87th Cong. 1st Sess., Sincerely, Feb. 21, 1961; 107 CONG. REC. 2000, JOHN W. MCCORMACK, 87th Cong. 1st Sess., Feb. 9, 1961; Speaker of the House and 106 CONG. REC. 6131, 86th of Representatives. Cong. 2d Sess., Mar. 21, 1960.

1620 QUESTIONS OF PRIVILEGE Ch. 11 § 14

Mr. Speaker, I send the subpena to ments. A motion to quash that portion the desk. of the subpena duces tecum requiring THE SPEAKER: (20) The Clerk will the presentation of documents was read the subpena. granted by Mr. Justice Edward M. Curran on February 3, 1961. There followed a reading of the Under the precedents of the House, I subpena to the House. am unable to appear and testify with- Parliamentarian’s Note: Mr. out the consent of the House, the privi- Gonzalez had no information rel- leges of the House being involved. I evant to the case and the House therefore submit the matter to the did not authorize his appearance. House for its consideration. The subpena was sent to the Service of Modified Federal desk and the Speaker (2) in- Court Subpena structed the Clerk to read it to the House. At the conclusion of the § 14.3 Where a federal court Clerk’s reading, the House agreed subpena directed to a Mem- to a privileged resolution (3) of- ber was modified after serv- fered by Mr. John W. McCormack, ice by court order, the Mem- of Massachusetts, authorizing the ber informed the House of Member to appear in response to the modification when he the subpena as modified. presented the subpena to the House. Service of State Court Subpena On Feb. 9, 1961,(1) Mr. Francis E. Walter, of Pennsylvania, rose § 14.4 Where a Member re- to a question of the privilege of ceives a subpena from a state the House and addressed the fol- court, he lays the matter be- lowing remarks to the Chair: fore the House for action. (4) MR. WALTER: Mr. Speaker, I have On Oct. 18, 1971, Mr. Don H. been subpenaed to appear before the Clausen, of California, rising to a U.S. District Court for the District of Columbia, to testify on February 20, 2. 2. Sam Rayburn (Tex.). 1961, in the case of the United States 3. H. Res. 155. of America against Martin Popper. 4. 117 CONG. REC. 36494, 92d Cong. 1st The subpena, as originally served Sess. For further illustrations, in- upon me, required that I appear and cluding some instances where the testify and bring with me certain docu- House adopted resolutions, see 116 CONG. REC. 11863, 91st Cong. 2d 20. John W. McCormack (Mass.). Sess., Apr. 15, 1970; 113 CONG. REC. 1. 107 CONG. REC. 2000, 87th Cong. 1st 35129, 90th Cong. 1st Sess., Dec. 6, Sess. 1967; 113 CONG. REC. 28406, 90th

1621 Ch. 11 § 14 DESCHLER’S PRECEDENTS question of the privilege of the pena, without the consent of the House, informed the House that House, the privileges of the House being involved. I therefore submit the he had been served with a sub- matter for the consideration of this pena from the Superior Court of body. the State of California. Upon the The subpena was sent to the delivery of the subpena to the desk, and the Speaker (7) in- (5) desk, the Speaker instructed structed the Clerk to read it to the the Clerk to read the subpena to House. The House did not adopt a the House. The House took no fur- resolution permitting him to at- ther action in the matter. tend.

§ 14.5 A Member having been Service of Subpena Issued by subpenaed to testify at a pre- District of Columbia Court liminary hearing in an action pending in the state court § 14.6 The receipt by a Member rose to a question of the of a subpena to appear be- privilege of the House. fore a court of the District of On Sept. 23, 1971,(6) Mr. Joshua Columbia gave rise to a ques- Eilberg, of Pennsylvania, rose to a tion of the privilege of the question of the privilege of the House. House and addressed the fol- On Jan. 19, 1972,(8) the Chair lowing remarks to the Chair: recognized Mr. George P. Miller,

MR. EILBERG: Mr. Speaker, yester- of California, on a question of the day afternoon, after the House had ad- privilege of the House: journed, I was subpenaed to appear be- MR. MILLER of California: Mr. fore the Court of Common Pleas of Speaker, I rise to a question of the Philadelphia, Commonwealth of Penn- privileges of the House. sylvania, to testify this morning, Sep- Mr. Speaker, I have been subpenaed tember 23, 1971, at 9 a.m., at a pre- to appear before the criminal assign- liminary hearing in an action des- ment branch of the District of Colum- ignated as Commonwealth against Pat- bia Court of General Sessions on Janu- rick McLaughlin. ary 28, 1972, in the case of the United Under the precedents of the House, I States of America against Ernest Long. was unable to comply with this sub- 7. Carl Albert (Okla.). Cong. 1st Sess., Oct. 10, 1967; and 8. 118 CONG. REC. 318, 92d Cong. 2d 111 CONG. REC. 17002, 89th Cong. Sess. Additional illustrations may be 1st Sess., July 15, 1965. found at 115 CONG. REC. 26008, 91st 5. Carl Albert (Okla.). Cong. 1st Sess., Sept. 18, 1969, and 6. 117 CONG. REC. 33114, 92d Cong. 1st 110 CONG. REC. 1510, 88th Cong. 2d Sess. Sess., Jan. 31, 1964.

1622 QUESTIONS OF PRIVILEGE Ch. 11 § 14

Under the precedents of the House, I Virginia. The summons was sent am unable to comply with the subpena to the desk, whereupon the without the consent of the House, the Speaker (12) instructed the Clerk privileges of the House being involved. I therefore submit the matter for the to read it to the House. At the consideration of this body. conclusion of the Clerk’s reading, ( ) I send the subpena to the desk. a resolution 13 was offered by Mr. THE SPEAKER: (9) The Clerk will re- Carl Albert, of Oklahoma, author- port the subpena. izing the Member to appear in re- After the reading of the sub- sponse to the summons. The reso- pena, a privileged resolution (10) lution was agreed to. was offered by Mr. Hale Boggs, of Service of Executive Agency, Louisiana, authorizing the Mem- Subpena ber to appear in response to the subpena. The resolution was § 14.8 The receipt by a Member agreed to. of a subpena to appear and testify before a federal exec- Service of Municipal Court utive agency gives rise to a Subpena question of the privilege of § 14.7 A Member having re- the House. ceived a summons to appear On Mar. 18, 1963,(14) after the before a municipal court Chair’s recognition of Mr. Alvin E. rose to a question of the O’Konski, of Wisconsin, on a ques- privilege of the House. tion of privilege, the following pro- On June 9, 1964,(11) Mr. John E. ceedings occurred: Moss, Jr., of California, rose to a MR. O’KONSKI: Mr. Speaker, I rise to question of the privilege of the a question of privilege of the House. House and informed the House ... that he had been summoned to Mr. Speaker, I have been subpenaed to appear before the Federal Commu- appear and testify before the Ju- nications Commission or Charles J. venile and Domestic Relations Frederick, hearing examiner, at the Court of the city of Alexandria, new Post Office Building, Pennsylvania Avenue and 13th Street NW., Wash- 9. Carl Albert (Okla.). ington, D.C., to testify on March 20, 10. H. Res. 767. 11. 110 CONG. REC. 13017, 13018, 88th 12. John W. McCormack (Mass.). Cong. 2d Sess. For an additional ex- 13. H. Res. 743. ample see 99 CONG. REC. 3013, 3014, 14. 109 CONG. REC. 4392, 88th Cong. 1st 83d Cong. 1st Sess., Apr. 13, 1953. Sess.

1623 Ch. 11 § 14 DESCHLER’S PRECEDENTS

1963, at 10 a.m., in the matter of Cen- Parliamentarian’s Note: The tral Wisconsin Television, Inc., Federal Member had been served with a Communications Commission docket No. 14933–14934. Under the prece- subpena duces tecum by a state dents of the House, I am unable to court to appear as a witness for comply with this subpena without the the plaintiff and to bring with him consent of the House, the privileges of certain documents in his posses- the House being involved. I therefore sion. He appeared in response to submit the matter for the consideration of this body. the subpena, but refused to bring THE SPEAKER:(15) The Clerk will re- the requested documents and report the subpena. fused to answer oral interrog- The House then heard the re- atories propounded by counsel for port of the Clerk. plaintiff. He was then served with The House took no further ac- an order to show cause why he tion in the matter. should not be compelled to answer the interrogatories which had Service of Court Orders To Ap- been propounded to him. Because pear and Show Cause the court order requested him to appear while Congress was in ses- § 14.9 A Member, having been sion, he raised the question of the served by a state court with privilege of the House. He did not an order to appear and show request the House to authorize his cause, rose to a question of appearance, and no further action the privilege of the House. was taken in the matter. On May 19, 1970,(16) Mr. Sam Steiger, of Arizona, rose to a ques- Service of Order To Appear tion of the privilege of the House and Answer Interrogatories and informed the House that he § 14.10 A Member, having been had been served with an order to served by a state court with appear and to show cause issued an order to appear and an- by the Superior Court of the State swer oral interrogatories, of Arizona. The order was sent to rose to a question of the the desk, whereupon the Speak- privileges of the House. er (17) instructed the Clerk to read it to the House. On July 22, 1970,(18) Mr. Sam Steiger, of Arizona, rising to a 15. John W. McCormack (Mass.). question of the privilege of the 16. 116 CONG. REC. 16165, 91st Cong. 2d Sess. 18. 116 CONG. REC. 25333, 25334, 91st 17. John W. McCormack (Mass.). Cong. 2d Sess.

1624 QUESTIONS OF PRIVILEGE Ch. 11 § 15

House, informed the House that Edmondson, of Oklahoma, on a he had been served with an order question of the privilege of the to appear and answer oral inter- House: rogatories issued by the Superior MR. EDMONDSON: Mr. Speaker, I rise Court of the State of Arizona. The to a question of the privilege of the order was sent to the desk where- House. upon the Speaker (19) instructed THE SPEAKER: (2) The gentleman will the Clerk to read it to the House. state it. MR. EDMONDSON: Mr. Speaker, I At the conclusion of the reading, have received a summons to appear be- the House agreed to a privileged fore the grand jury of the U.S. District resolution (20) offered by Mr. Carl Court for the District of Columbia on Albert, of Oklahoma, authorizing Tuesday, July 16, 1963, at 9 o’clock the Member to appear in response a.m., to testify in the case of the to the order at any time when the United States against Jessie Lee Bell. Under the precedents of the House, I House had adjourned to a day cer- am unable to comply with this sum- tain for a period in excess of three mons without the consent of the days. House, the privileges of the House being involved. I, therefore, submit the matter for the consideration of this body. § 15. Service of Grand Mr. Speaker, I send to the desk the Jury Subpena summons. THE SPEAKER: The Clerk will report Federal Grand Jury Subpena the summons. At the conclusion of the Clerk’s § 15.1 The receipt by a Member report, a resolution (3) offered by of a subpena to appear be- Mr. Carl Albert, of Oklahoma, au- fore a federal grand jury thorizing the Member to appear in gives rise to a question of the response to the summons, was privilege of the House. agreed to. On July 15, 1963,(1) the Chair State Grand Jury Subpoena recognized Mr. Edmond § 15.2 A subpoena to a Member 19. John W. McCormack (Mass.). 20. H. Res. 1155. requiring his appearance be- 1. 109 CONG. REC. 12488, 88th Cong. fore a state grand jury gives 1st Sess. For additional examples rise to a question of the see 95 CONG. REC. 5544, 5545, 81st privilege of the House. Cong. 1st Sess., May 3, 1949; and 88 CONG. REC. 1267, 77th Cong. 2d 2. John W. McCormack (Mass.). Sess., Feb. 16, 1942. 3. H. Res. 436.

1625 Ch. 11 § 15 DESCHLER’S PRECEDENTS

On May 9, 1962,(4) Mr. Frank as the defendant in a civil ac- W. Boykin, of Alabama, rising to a tion pending in a federal question of the privilege of the court raises a question of the House, informed the House that privilege of the House. he had been subpoenaed to appear On Dec. 13, 1973,(7) the Speak- before the grand jury of the Cir- er (8) laid before the House as a cuit Court for Montgomery Coun- matter giving rise to a question of ty, Maryland. The subpoena was the privilege of the House the fol- sent to the desk whereupon, the lowing summons: Speaker (5) instructed the Clerk to read it to the House. At the con- SUMMONS IN A CIVIL ACTION clusion of the Clerk’s reading, the [In the U.S. District Court for the House agreed to a privileged reso- Northern District of California, civil action file No. C 73 2092GBH] lution (6) offered by Mr. Carl Al- bert, of Oklahoma, authorizing Earle Ray Esgate, Plaintiff, v. Don- the Member to appear in response ald E. Johnson, Board of Veterans Ap- peals, the United States House of Rep- to the subpoena. resentatives, the United States Senate, the President of the United States, as Commander in Chief of the Armed § 16. Service of Process on Forces of the United States, and as Co- Defendant United States Army and House, Its Officers, or United States Army Medical Corps. Employees To the above named Defendant: You are hereby summoned and required to Service of Process Naming the serve upon The plaintiff; acting as his House own attorney and whose address is below: plaintiff’s attorney, whose ad- § 16.1 The receipt of a sum- dress Earle Ray Esgate, 1099 Topaz Ave. Apt. 6, San Jose, California, mons and complaint naming 95117, Phone 296–8182 an answer to the House of Representatives the complaint which is herewith served upon you within 60 days after service 4. 108 CONG. REC. 8006, 87th Cong. 2d of this summons upon you, exclusive of Sess. For further illustrations see 108 CONG. REC. 7945, 87th Cong. 2d 7. 119 CONG. REC. 41258, 93d Cong. 1st Sess., May 8, 1962; 108 CONG. REC. Sess. For additional examples see 7816, 7817, 87th Cong. 2d Sess., 118 CONG. REC. 29136, 92d Cong. 2d May 7, 1962; and 105 CONG. REC. Sess., Aug. 18, 1972; 118 CONG. REC. 1623, 86th Cong. 1st Sess., Feb. 2, 17398, 92d Cong. 2d Sess., May 16, 1959. 1972; and 117 CONG. REC. 1503, 92d 5. John W. McCormack (Mass.). Cong. 1st Sess., Feb. 3, 1971. 6. H. Res. 630. 8. Carl Albert (Okla.).

1626 QUESTIONS OF PRIVILEGE Ch. 11 § 16

the day of service. If you fail to do so, complaint in Civil Action No. C 73 judgment by default will be taken 2092GBH filed against the United against you for the relief demanded in States House of Representatives and others in the United States District the complaint. Court for the Northern District of Date: December 5, 1973. California, and served upon me F. R. PETTIGREW, through the U.S. Marshal by cer- Clerk of Court. tified mail No. 197884 on December C. COWNE, 11, 1973. Deputy Clerk. In accordance with 2 U.S.C. 118 I [Seal of Court.] have sent a certified copy of the Summons and Complaint in this ac- Along with the summons, the tion to the U.S. Attorney for the Northern District of California re- Speaker presented two letters questing that he take appropriate ac- written by the Clerk, W. Pat Jen- tion under the supervision and direc- nings, relating to the summons: tion of the Attorney General. I am also sending you a copy of the letter WASHINGTON, D. C., I forwarded this date to the U.S. At- December 12, 1973. torney. Hon. CARL ALBERT, With kind regards, I am, The Speaker, Sincerely, House of Representatives. W. PAT JENNINGS, DEAR MR. SPEAKER: On December Clerk, House of Representatives. 11, 1973 I have been served a sum- Under the provisions of 2 USC mons and copy of the complaint in a Civil Action through the United § 118, the United States Attorney States Marshal by certified mail is obliged to appear and defend, number 197884 that was issued by the U.S. District Court for the upon request of an officer of either Northern District of California. House of Congress, actions The Summons requires the Con- brought against such officer on ac- gress of the United States to answer the complaint within sixty days after count of anything done in dis- service. charge of official duties. There- The Summons and complaint in after, the defense of the case is question are attached, and the matter is presented for such action as under the supervision and direc- the House in its wisdom may see fit tion of the Attorney General. to take. With kind regards, I am, Service of Process on House Of- W. PAT JENNINGS, Clerk, House of Representatives. ficers WASHINGTON, D.C., December 12, 1973. § 16.2 The receipt of a sum- Hon. ROBERT H. BORK, mons and complaint naming Acting Attorney General of the the Speaker in his official ca- United States, U.S. Department of Justice, Washington, D.C. pacity as a defendant in a DEAR MR. BORK: I am sending you civil action brought in a fed- a certified copy of a summons and eral court raises a question 1627 Ch. 11 § 16 DESCHLER’S PRECEDENTS

of the privilege of the House, Date: January 5, 1973. and the matter is laid before Following the presentation of the House for its consider- the summons, the Speaker ad- ation. vised the House that he had, pur- On Feb. 5, 1973,(9) the Speak- suant to 2 USC § 118, requested er (10) laid before the House as a the U.S. Attorney to represent ( ) matter giving rise to a question of him in the action. 11 the privilege of the House the fol- § 16.3 The receipt of a sum- lowing summons: mers and complaint naming SUMMONS the Clerk of the House of The Regent Cecil J. Williams Plain- Representatives in his offi- tiff v. Carl Albert, M.C. Speaker, et al. cial capacity as a defendant Defendants. in a civil action brought in a To the above named Defendant: Carl federal court gives rise to a Albert, M.C., Speaker. question of the privilege of You are hereby summoned and re- the House, and the matter is quired to serve upon the Regent Cecil J. Williams, P.P., whose address is laid before the House for its 1417 N Street, N.W., Washington, D. consideration. C. 20005, an answer to the complaint On Mar. 26, 1973,(12) the Speak- which is herewith served upon you, er (13) laid before the House as a within 60 days after service of this summons upon you, exclusive of the matter involving a question of the day of service. If you fail to do so, judg- privilege of the House a commu- ment by default will be taken against nication from the Clerk of the you for the relief demanded in the House advising that he had been complaint. served with a summons and com- JAMES F. DAVEY, Clerk of Court. 11. Civil Action File No. 27–73 (U.S.D.C. RUBIN CUELLAR, Deputy Clerk. D. D.C.). 12. 119 CONG. REC. 9452, 93d Cong. 1st 9. 119 CONG. REC. 3207, 93d Cong. 1st Sess. For further examples see 119 Sess. For additional illustrations see CONG. REC. 29, 93d Cong. 1st Sess., 119 CONG. REC. 29, 93d Cong. 1st Jan. 3, 1973; 118 CONG. REC. 34040, Sess., Jan. 3, 1973; 118 CONG. REC. 92d Cong. 2d Sess., Oct. 5, 1972; 118 17398, 92d Cong. 2d Sess., May 16, CONG. REC. 15311, 92d Cong. 2d 1972; 115 CONG. REC. 24002 91st Sess., May 2, 1972; 118 CONG. REC. Con. 1st Sess., Sept. 3, 1969; and 5025, 92d Cong. 2d Sess., Feb. 22, 111 CONG. REC. 2645, 89th Cong. 1st 1972; and 116 CONG. REC. 31182, Sess., Feb. 11, 1965. 91st Cong. 2d Sess., Sept. 10, 1970. 10. Carl Albert (Okla.). 13. Carl Albert (Okla.).

1628 QUESTIONS OF PRIVILEGE Ch. 11 § 16 plaint as a defendant in a civil ac- District Court for the District of tion (14) brought in the Federal Columbia and further advising District Court for the District of that he had, pursuant to 2 USC Columbia and further advising § 118, requested the U.S. Attorney that he had pursuant to 2 USC to represent him in the action. § 118, requested the U.S. Attorney for the District of Columbia to Service of Supplemental Peti- represent him in the action. tion on House Officers § 16.4 The receipt of a sum- § 16.5 The receipt of a supple- mons and complaint naming mental petition naming the Sergeant at Arms of the House officers as individual House of Representatives in defendants in a civil action his official capacity as a de- already pending in federal fendant in a civil action court against the House and brought in a federal court other of its officers and Mem- raises a question of the privi- bers raises a question of the lege of the House, and the privilege of the House, and matter is laid before the the matter is submitted to House for its consideration. the House for its consideration. On July 16, 1973,(15) the Speak- ( ) er (16) laid before the House as a On Oct. 10, 1972, 18 the Speak- ( ) question of the privilege of the er 19 laid before the House as a House a communication from the matter involving a question of the Sergeant at Arms advising that he privilege of the House a commu- had been served with a summons nication from the clerk advising and complaint as a defendant in a that he had received an amending civil action (17) brought in the U.S. and supplemental petition in connection with a case (20) pending be- 14. Mauro v Jennings et al., Civil Action fore the U.S. District Court for the File No. 447–73 (U.S.D.C. D. D.C.). 15. 119 CONG. REC. 23961, 23962, 93d Sergeant at Arms of the House of Cong. 1st Sess. For additional exam- Representatives et al., Civil Action ples see 116 CONG. REC. 28502, 91st File No. 1328–73 (U.S.D.C. D. D.C.). Cong. 2d Sess., Aug. 12, 1970; and 18. 118 CONG. REC. 34583, 92d Cong. 2d 109 CONG. REC. 10359, 88th Cong. Sess. 1st Sess., June 6, 1963. 19. Carl Albert (Okla.). 16. Carl Albert (Okla.). 20. Hillary v U.S. House of Representa- 17. Consumers Union of the United tives, Albert, Colmer, et al., Civil Ac- States, Inc. v Kenneth R. Harding, tion File No. 72–1126.

1629 Ch. 11 § 16 DESCHLER’S PRECEDENTS

Eastern Division of Louisiana and advising the House that he naming the Clerk and Sergeant at had, pursuant to 28 USC § 516, Arms of the House of Representa- requested the Department of Jus- tives as additional defendants in tice to represent him in the action. the action and further advising that he had, pursuant to 2 USC Service of Process on the Clerk § 118, requested the U.S. Attorney for the Eastern Division of Lou- § 16.7 The Clerk having been isiana to represent them in the served with process, includ- action. ing a subpoena duces tecum issued by a federal court in a Service on Capitol Architect civil action, informed the Speaker who laid the matter § 16.6 The receipt of a sum- before the House. mons and complaint naming On Nov. 15, 1973,(4) the Speak- the Acting Architect of the er (5) laid before the House as a Capitol in his official capac- matter involving a question of the ity as a defendant in a civil privilege of the House a commu- action brought in a federal nication from the Clerk of the court gives rise to a question House advising that he had been of the privilege of the House served with a subpena and a no- and the matter is laid before tice of the taking of a deposition issued by the U.S. District Court the House for its consider- for the District of Columbia com- ation. manding his appearance for the On Aug. 12, 1970,(1) the Speak- purpose of testifying and pro- er (2) laid before the House a com- ducing certain House documents munication from the Acting Archi- and records in connection with the case of Nader et al. v Butz et al. (6) tect of the Capitol informing the

House that he had been served 4. 119 CONG. REC. 37136, 37137, 93d with a summons and complaint as Cong. 1st Sess. For additional exam- a defendant in a civil action (3) ples see 118 CONG. REC. 6326, 92d brought in the Federal District Cong. 2d Sess., Mar. 1, 1972; 117 CONG. REC. 47667, 92d Cong. 1st Court for the District of Columbia Sess., Dec. 17, 1971; 117 CONG. REC. 47185, 92d Cong. 1st Sess., Dec. 15, 1. 116 CONG. REC. 28502, 91st Cong. 2d 1971; and 117 CONG. REC. 39512, Sess. 92d Cong. 1st Sess., Nov. 5, 1971. 2. John W. McCormack (Mass.). 5. Carl Albert (Okla.). 3. Civil Action File No. 2296–70 6. Civil Action File No. 148–72 (U.S.D.C. D. D.C.). (U.S.D.C. D. D.C.).

1630 QUESTIONS OF PRIVILEGE Ch. 11 § 16

Following the presentation of House of Representatives, to appear the communication, the House before said court as a witness in the (7) case of Anna Mae Allen et al. v. South- agreed to a privileged resolution ern Railway Company et al., and to offered by Mr. Thomas P. O’Neill, bring with me certain and sundry pa- Jr., of Massachusetts, authorizing pers therein described in the files of the Clerk or his designated agent the House of Representatives. to appear in response to the sub- The rules and practice of the House pena but permitting the produc- of Representatives indicates that the tion of certified copies of only Clerk may not, either voluntarily or in obedience to a subpena duces tecum, those subpenaed House papers produce such papers without the con- and documents subsequently de- sent of the House being first obtained. termined by the court to be mate- It is further indicated that he may not rial and relevant. supply copies of certain of the documents and papers requested without § 16.8 The Clerk of the House such consent. of Representatives, having The subpena in question is herewith attached, and the matter is presented received a subpena duces for such action as the House in its wis- tecum from a state court, re- dom may see fit to take. ported the matter to the Very truly yours, Speaker who laid it before RALPH R. ROBERTS, Clerk, United States the House. House of Representatives. On Apr. 24, 1958,(8) the Speak- Following the presentation of er (9) laid before the House as a the communication and the read- matter involving the question of ing of the subpena to the House, a the privilege of the House the fol- resolution (10) was offered by Mr. lowing communication from the John W. McCormack, of Massa- Clerk of the House: chusetts, authorizing the Clerk to APRIL 17, 1958. appear in response to the subpena The Honorable the SPEAKER, but permitting the production of House of Representatives. certified copies of only those subpenaed House papers and docu- SIR: From the Superior Court of the 26th Judicial District of North Caro- ments subsequently determined lina I have received a subpena duces by the court to be material and tecum, directed to me as Clerk of the relevant.

7. H. Res. 705. § 16.9 The Clerk of the House 8. 104 CONG. REC. 7262, 7263, 85th of Representatives, having Cong. 2d Sess. 9. Sam Rayburn (Tex.). 10. H. Res. 547.

1631 Ch. 11 § 16 DESCHLER’S PRECEDENTS

received a subpena to appear district court he reports the and testify before a court of facts to the Speaker who lays the District of Columbia in a the matter before the House. criminal case, informed the On Apr. 13, 1961,(15) the Speak- Speaker who laid the matter er (16) rose to a question of the before the House. privilege of the House and laid be- On July 13, 1965,(11) the Speak- fore the House a communication er (12) laid before the House as a from the Doorkeeper of the House matter raising the question of the advising that he had received a privilege of the House, a commu- subpena directing his appearance nication from the Clerk of the as a witness and the production of House advising that he had re- certain described papers before ceived a subpena commanding his the U.S. District Court for the appearance for the purpose of tes- District of Columbia in connection tifying before the criminal bench with U.S. v Taylor. (17) Following of the District of Columbia Court the presentation of the commu- of General Sessions in connection nication, the House agreed to a with U.S. v Washington. (13) Fol- privileged resolution (18) offered by lowing the presentation of the communication and the reading of Mr. John W. McCormack, of Mas- the subpena, the House agreed to sachusetts, authorizing the Door- a resolution (14) offered by Mr. keeper to appear in response to John E. Moss, Jr., of California, the subpena, but permitting the authorizing the Clerk to appear production of certified copies of and testify. only those subpenaed House papers and documents subsequently Service of Subpena on the determined by the court to be ma- Doorkeeper terial and relevant.

§ 16.10 When the Doorkeeper Service of Subpena on the Ser- of the House of Representa- geant at Arms tives receives a subpena duces tecum from a federal § 16.11 The Sergeant at Arms of the House of Representa- 11. 111 CONG. REC. 16592, 89th Cong. 1st Sess. 15. 107 CONG. REC. 5851, 5852, 87th 12. John W. McCormack (Mass.). Cong. 1st Sess. 13. Criminal Case No. U.S. 5379–65, 16. Sam Rayburn (Tex.). U.S. 5380–65. 17. Criminal Case No. 965–60. 14. H. Res. 469. 18. H. Res. 256.

1632 QUESTIONS OF PRIVILEGE Ch. 11 § 16

tives, having received a sub- resolution (1) offered by Mr. Carl pena from a federal court, re- Albert, of Oklahoma, authorizing ported the facts to the the Sergeant at Arms to appear in Speaker who laid the matter response to the subpena was before the House. agreed to. On Mar. 3, 1960,(19) the Speaker § 16.12 The Sergeant at Arms pro tempore (20) laid before the of the House of Representa- House as a matter raising the question of the privilege of the tives, having received a sub- House a communication from the pena to appear and testify Sergeant at Arms, as follows: before a criminal court of the MARCH 3, 1960. District of Columbia, in- The Honorable SAM RAYBURN, formed the Speaker who laid Speaker of the House of the matter before the House. Representatives, (2) Washington, D.C. On July 13, 1965, the Speak- er (3) laid before the House as a DEAR MR. SPEAKER: From the Dis- trict Court of the United States for the matter involving a question of the Southern District of New York, I have privilege of the House a commu- received a subpena directing the Ser- nication from the Sergeant at geant at Arms to appear before said Arms advising that he had re- court as a witness in the case of the ceived a subpena directing his ap- United States v Adam Clayton Powell, Jr. (No. 35–208). pearance to testify before the The subpena in question is herewith criminal branch of the District of attached, and the matter is presented Columbia Court of General Ses- for such action as the House in its wis- sions in connection with U.S. v dom may see fit to take. Washington.(4) After the reading Respectfully, ZEAKE W. JOHNSON, Jr., of the subpena by the Clerk, a res- Sergeant at Arms. olution (5) was offered by Mr. Hale The Speaker pro tempore then in- Boggs, of Louisiana, authorizing structed the Clerk to read the the Sergeant at Arms to appear subpena to the House. At the con- and testify. The resolution was clusion of the reading, a privileged 1. H. Res. 465. 19. 106 CONG. REC. 4393, 86th Cong. 2d 2. 111 CONG. REC. 16529, 89th Cong. Sess. An additional example sup- 1st Sess. porting this point may be found at 3. John W. McCormack (Mass.). 100 CONG. REC. 1162, 83d Cong. 2d 4. Criminal Case No. U.S. 5379–65, Sess., Feb. 2, 1954. U.S. 5380–65. 20. John W. McCormack (Mass.). 5. H. Res. 456.

1633 Ch. 11 § 16 DESCHLER’S PRECEDENTS agreed to, and a motion to recon- tation of the communication, the sider was laid on the table. House agreed to a resolution (9) offered by Mr. Carl Albert, of Okla- Service of Subpenas on House homa, authorizing the employee to Employees appear in response to the subpena but permitting the production of § 16.13 An employee of the certified copies of only those sub- House having received a subpenaed House papers and docu- pena duces tecum in a fed- ments subsequently determined eral civil action seeking his by the court to be material and I testimony and the produc- relevant. tion of House records in his possession, his superior in- Service of Grand Jury Sub- formed the Speaker who laid penas on House Officers the matter before the House. § 16.14 The Clerk of the House On Apr. 25, 1966,(6) the Speak- of Representatives having re- er (7) laid before the House as a ceived a subpena duces matter involving a question of the privilege of the House a commu- tecum from a federal grand nication from the Clerk of the jury, informed the Speaker House advising that an employee who laid the matter before under his authority had been the House. served with a subpena duces On Feb. 20, 1973,(10) the Speak- tecum commanding his appear- er (11) laid before the House as a ance for the purpose of testifying matter involving a question of the and producing certain House privilege of the House a commu- records before the U.S. District nication from the Clerk of the Court for the District of Columbia House advising that he had been in connection with Siamis v served with a subpena duces Chizzo.(8) Following the presen- tecum commanding his appear-

6. 112 CONG. REC. 8786, 89th Cong. 2d 9. H. Res. 825. Sess. For further illustrations see 10. 119 CONG. REC. 4490, 93d Cong. 1st 102 CONG. REC. 7588, 84th Cong. 2d Sess. For further illustrations see Sess., May 7, 1956; and 101 CONG. 118 CONG. REC. 28285, 92d Cong. 2d REC. 1215, 84th Cong. 1st Sess., Feb. Sess., Aug. 15, 1972; 115 CONG. REC. 7, 1955. 32005, 91st Cong. 1st Sess., Oct. 29, 7. John W. McCormack (Mass.). 1969; and 113 CONG. REC. 29374–76, 8. Civil Action File No. 1471–63 90th Cong. 1st Sess., Oct. 19, 1967. (U.S.D.C. D. D.C.) 11. Carl Albert (Okla.).

1634 QUESTIONS OF PRIVILEGE Ch. 11 § 16 ance and the production of certain advising that he had received a House records before the grand subpena duces tecum directing his jury of the U.S. District Court for appearance and the production of the Western District of Texas. Fol- certain original records before the lowing the Speaker’s insertion of grand jury of the U.S. District the subpena in the Record, the Court for the District of Columbia. House agreed to a privileged reso- After the reading of the subpena lution (12) offered by Mr. Thomas by the Clerk, a privileged resolu- P. O’Neill, Jr., of Massachusetts, tion (15) was offered by Mr. Carl authorizing the Clerk to appear in Albert, of Oklahoma, authorizing response to the subpena but per- the Sergeant at Arms to appear mitting the production of certified and deliver the requested papers copies of only those subpenaed and documents in response to the House papers and documents sub- subpena. The resolution was sequently determined by the court agreed to, and a motion to recon- to be material and relevant. sider was laid on the table.

§ 16.15 The Sergeant at Arms Service of Grand Jury Sub- of the House of Representa- penas on House Employees tives having been served with a subpena duces tecum § 16.16 Where an employee of from a federal grand jury, in- the House received a sub- formed the Speaker who laid pena duces tecum issued by the matter before the House. a federal grand jury, his su- On Jan. 16, 1968,(13) the Speak- perior informed the Speaker er (14) laid before the House as a who laid the matter before question of the privilege of the the House. House a communication from the On Oct. 19, 1967,(16) the Speak- Sergeant at Arms of the House er (17) laid before the House as a question of the privilege of the 12. H. Res. 221. House a communication from the 13. 114 CONG. REC. 80, 81, 90th Cong. 2d Sess. For additional examples see Clerk advising that an employee 113 CONG. REC. 17561, 90th Cong. under his jurisdiction had been 1st Sess., June 27, 1967; 111 CONG. served with a subpena duces REC. 5338, 89th Cong. 1st Sess., Mar. 18, 1965; and 99 CONG. REC. 15. H. Res. 1022. 5523, 83d Cong. 1st Sess., May 25, 16. 113 CONG. REC. 29375, 29376, 90th 1953. Cong. 1st Sess. 14. John W. McCormack (Mass.). 17. John W. McCormack (Mass.).

1635 Ch. 11 § 16 DESCHLER’S PRECEDENTS tecum commanding his appear- the Speaker’s instruction the sub- ance for the purpose of testifying pena was then read by the Clerk before the grand jury of the U.S. to the House. District Court for the District of Parliamentarian’s Note: The Columbia. The House then agreed Clerk’s office was advised (1) that to a privileged resolution (18) of- the Committee on Armed Serv- fered by Mr. Carl Albert, of Okla- ices, and not the Clerk, was the homa, authorizing the Speaker to proper custodian of executive ses- permit the employee to appear in sion testimony taken before its response to the subpena. subcommittee and that an employee of that committee should Service of Court-martial Sub- have been the recipient of the subpena penas; and (2) that the requested § 16.17 The Clerk of the House executive session testimony could of Representatives, having not, under the provisions of House received a subpena duces Resolution 15 (91st Congress) be tecum from a general court- released by any officer or em- martial, informed the Speak- ployee of the House during an ad- er who laid the matter before journment; but that (3) the Com- the House. mittee on Armed Services could meet and, pursuant to the House (19) On Nov. 17, 1970, the Speak- rules, order the testimony to be (20) er laid before the House as a made public. matter involving a question of the The House took no further ac- privilege of the House a commu- tion on the subpenas. nication from the Clerk advising that he was in receipt of a sub- Service of Notice of Taking of pena duces tecum commanding Deposition his appearance as a witness and the production of certain House § 16.18 The Clerk of the House, subcommittee executive session having been served with a transcripts before a general court- notice of taking of a deposi- martial of the United States con- tion in a civil action in which vened at Ft. Benning, Georgia. At he had been named as a defendant in his official capac- 18. H. Res. 950. ity, informed the Speaker 19. 116 CONG. REC. 37652–54, 91st Cong. 2d Sess. who laid the matter before 20. John W. McCormack (Mass.). the House.

1636 QUESTIONS OF PRIVILEGE Ch. 11 § 17

On Mar. 15, 1973,(1) the Speak- a civil action brought in a er (2) laid before the House as a federal court raises a ques- matter involving the question of tion of the privilege of the the privilege of the House a com- House, and the matter is laid munication from the Clerk advis- before the House for its con- ing that he had been served with sideration. a notice of the taking of a deposi- On May 16, 1972,(6) the Speak- tion in connection with a civil ac- er (17) laid before the House as a tion (3) pending in the U.S. District Court for the District of Columbia. matter involving a question of the Subsequently, on Mar. 19, 1973,(4) privilege of the House a commu- the House agreed to a privileged nication from the Chairman of the resolution (5) offered by Mr. John Committee on Rules advising that J. McFall, of California, author- he had been served with a sum- izing the Clerk to respond to the mons and complaint as a defend- (8) notice. ant in a civil action brought in the U.S. District Court for the Eastern District of Louisiana. At § 17. Service of Process on the same time, the Speaker, who stated that he and the Clerk of Committee Chairmen the House had received summons and Employees and complaint in the same action, inserted copies of the following Service of Summons and Com- letters in the Record: plaint on Committee Chair- MAY 16, 1972. man Hon. RICHARD G. KLEINDIENST, Acting Attorney General, Department of § 17.1 The receipt of a sum- Justice, Washington, D.C. mons and complaint naming DEAR MR. KLEINDIENST: On May 15, the chairman of a House 1972, I received by certified mail a committee as a defendant in Summons and complaint in Civil Ac- tion No. 72-1126 in the United States 1. 119 CONG. REC. 7955, 7956, 93d District Court for the Eastern District Cong. 1st Sess. of Louisiana. A copy of the Summons 2. Carl Albert (Okla.). and complaint is enclosed herewith. 3. Common Cause v W. Patrick Jen- nings et al., Civil Action File No. 6. 118 CONG. REC. 17398, 92d Cong. 2d 2379–72 (U.S.D.C. D. D.C.). Sess. 4. 119 CONG. REC. 8485, 93d Cong. 1st 7. Carl Albert (Okla.). Sess. 8. Civil Action File No. 72–1126 (§ H, 5. H. Res. 313. U.S.D.C. E.D. La.).

1637 Ch. 11 § 17 DESCHLER’S PRECEDENTS

Representative William M. Colmer, deemed necessary, under the super- Chairman of the Committee on Rules vision and direction of the Acting At- of the House of Representatives, and torney General, in defense of this suit the Clerk of the House of Representa- against the Speaker, the Chairman of tives, Hon. W. Pat Jennings, have also the Committee on Rules of the House received Summons and complaint in of Representatives, and the House of the action. Representatives. I am also sending you In accordance with the provisions of a copy of the letter that I forwarded 2 U.S.C. 118, I have sent a copy of the this date to the Acting Attorney Gen- Summons and complaint in this action eral of the United States. to the U.S. Attorney for the Eastern Sincerely, CARL ALBERT, District of Louisiana requesting that Speaker of the House he take appropriate action under the of Representatives. supervision and direction of the Acting Attorney General. I am also sending Subpenas Served on Committee you a copy of the letter I forwarded Chairmen this date to the U.S. Attorney. Sincerely, § 17.2 The chairman of a House CARL ALBERT, Speaker of the House committee, having received a of Representatives. subpena duces tecum from a MAY 16, 1972. federal court, reported the Hon. GERALD J. GALLINGHOUSE, facts to the speaker who laid U.S. Attorney for the Eastern District of Louisiana, New Orleans, La. the matter before the House. On Feb. 21, 1961,(9) the Chair- DEAR MR. GALLINGHOUSE: I am sending you a copy of a Summons and man of the Committee on Un- complaint in Civil Action No. 72-1126 American Activities, Francis E. in the United States District Court for Walter, of Pennsylvania, rose to a the Eastern District of Louisiana, question of the privilege of the against me in my official capacity as House and informed the House Speaker of the House of Representa- that he had been subpenaed to ap- tives, received by certified mail on May 15, 1972. pear and testify in connection (10) Representative William M. Colmer, with a case pending before the Chairman of the Committee on Rules U.S. District Court for the South- of the House of Representatives, and ern District of New York. Fol- the Clerk of the House of Representa- lowing the presentation of the tives, Hon. W. Pat Jennings, have also received by certified mail copies of the 9. 107 CONG. REC. 2481, 87th Cong. 1st Summons and complaint. Sess. In accordance with the provisions of 10. U.S. v Seeger, Criminal Case No. C 2 U.S.C. 118, I respectfully request 152–240, Cr. 800 (U.S.D.C. S.D. that you take appropriate action, as N.Y.).

1638 QUESTIONS OF PRIVILEGE Ch. 11 § 17 subpena to the House, a resolu- penaed to appear and testify tion,(11) authorizing the chairman before a state court, rose to a to appear and testify, offered by question of the privilege of Mr. John W. McCormack, of Mas- the House. sachusetts, was agreed to. On July 7, 1971,(14) the Chair- man of the Committee on Internal § 17.3 When the chairman of a Security, Richard H. Ichord, of House committee receives a Missouri, rose to a question of the subpena duces tecum from privilege of the House and ad- the Tax Court of the United dressed the Chair: States, a question of the privilege of the House arises. MR. ICHORD: Mr. Speaker . . . I have been subpenaed to appear before On Aug. 12, 1969,(12) the Chair- the Superior Court of the District of man of the Committee on Banking Columbia on the 7th day of July 1971 and Currency, Wright Patman, of at 2 p.m. in the case of United States v. Margaret Butterfield (docket No. Texas, rose to a question of the 27078–71) and to bring with me cer- privilege of the House and in- tain papers under the control of the formed the House that he had Committee on Internal Security. been served with a subpena duces Under the precedents of the House, I tecum requesting the production am unable to comply with this subpena duces tecum without the consent of the of certain documents before the House, the privileges of the House Tax Court of the United States. being involved. I therefore submit the The subpena was sent to the desk, matter for the consideration of this and the Speaker (13) instructed the body. Clerk to read it to the House. I send the subpena duces tecum to the desk. Parliamentarian’s Note: Chair- man Patman stated that the docu- The subpena was sent to the ments called for in the subpena desk, and the Speaker pro tempore (15) instructed the Clerk to were not in his possession or con- read it to the House. trol, and the House took no action thereon. 14. 117 CONG. REC. 23813, 92d Cong. 1st Sess. On the same day a similar sub- § 17.4 The chairman of a House pena served on the Chairman of the committee, having been sub- Committee on Ways and Means, Wil- bur D. Mills (Ark.), by the same 11. H. Res. 178. court in connection with the same 12. 115 CONG. REC. 23354, 91st Cong. case was also presented to the 1st Sess. House. 13. John W. McCormack (Mass.). 15. Hale Boggs (La.).

1639 Ch. 11 § 17 DESCHLER’S PRECEDENTS

Service of Subpenas on Com- The portion of the subpena duces mittee Employees tecum requiring the production of documents was, on the 3d day of February § 17.5 Where a House com- 1961, quashed by Mr. Justice Edward M. Curran. mittee employee had been The subpena in question is trans- subpenaed by a federal mitted herewith and the matter is pre- court, in a matter related to sented for such action as the House, in committee business, the its wisdom, may see fit to take. chairman of the committee Sincerely yours, FRANCIS E. WALTER, advised the Speaker of this Chairman. fact by letter and the Speak- After the Clerk’s reading of the er then laid the matter be- subpena, the House agreed to a fore the House for its consid- resolution (18) offered by Mr. John eration. W. McCormack, of Massachusetts, On Feb. 21, l961,(16) the Speak- authorizing the committee emer (17) laid before the House as a ployee to appear in response to matter giving rise to a question of the subpena duces tecum as modi- the privilege of the House a com- fied. munication from the Chairman of the Committee on Un-American § 17.6 When an employee of a Activities: House committee had been FEBRUARY 20, 1961. served with a subpena from Hon. SAM RAYBURN, a state court, in a matter re- Speaker, House of Representatives, lated to committee business, Washington, D.C. the chairman of the com- DEAR MR. SPEAKER: Mr. Frank S. mittee informed the Speaker Tavenner, Jr., an employee of the who laid the matter before House, while serving at my direction as counsel for the Committee on Un- the House. American Activities, received a sub- On May 21, 1962,(19) the Speak- pena duces tecum directing him to ap- er pro tempore,(20) rising to a pear as a witness before the U.S. Dis- trict Court for the District of Colum- question of the privilege of the bia, in the case of the United States of House, laid before the House the America v. Martin Popper (No. 1053– 59). The return date of the subpena 18. H. Res. 181. has been extended to April 15, 1961. 19. 108 CONG. REC. 8823, 8824, 87th Cong. 2d Sess. For a further illustra- 16. 107 CONG. REC. 2482, 87th Cong. 1st tion see 105 CONG. REC. 5858, 86th Sess. Cong. 1st Sess., Apr. 14, 1959. 17. Sam Rayburn (Tex.). 20. Carl Albert (Okla.).

1640 QUESTIONS OF PRIVILEGE Ch. 11 § 17 following communication from the vestigator. The resolution was Chairman of the Committee on agreed to. Un-American Activities: MAY 21, 1962. Service of Grand Jury Subpena Hon. JOHN MCCORMACK, on Committee Chairman Speaker, House of Representatives, Washington, D.C. § 17.7 The chairman of a House committee, having received a DEAR MR. SPEAKER: Mr. Donald Appell, an employee of the House, subpena duces tecum from a while serving at my direction as an in- federal grand jury, rose to a vestigator on the Committee on Un- question of the privilege of American Activities, received a sub- the House. pena directing him to appear as a wit- (2) ness in the Supreme Court of the State On Aug. 15, 1972, the Chair of New York, New York County, on the recognized Mr. Charles M. Price, 23d day of May 1962, in the case of of Illinois: John Henry Faulk, plaintiff v. Aware, MR. PRICE of Illinois: Mr. Speaker, I Inc., Laurence A. Johnson and Vincent rise to a question of the privileges of Hartnett, defendants. the House. The subpena in question is trans- THE SPEAKER:(3) The gentleman will mitted herewith and the matter is pre- state the question of privilege of the sented for such action as the House, in House. its wisdom, may see fit to take. MR. PRICE of Illinois: Mr. Speaker, Sincerely yours, in my capacity as chairman of the FRANCIS E. WALTER, Chairman. Committee on Standards of Official Conduct, I have been subpenaed to ap- After a reading of the subpena pear before the grand jury of the U.S. by the Clerk, a resolution (1) was District Court for the Western District offered by Mr. Francis E. Walter, of Pennsylvania, on August 22, 1972, and to bring with me certain records of of Pennsylvania, authorizing the the Committee on Standards of Official employee’s appearance to testify Conduct. Under the rules and prece- to any matter determined by the dents of the House, I am unable to court to be material and relevant comply with the subpena duces tecum to the identification of any pub- without the permission of the House licly disclosed document, but pro- [the privileges of the House] being involved. hibiting his testimony as to any I therefore submit the matter for the matter that may be based on consideration of the House. knowledge acquired by him in his official capacity as committee in- 2. 118 CONG. REC. 28286, 92d Cong. 2d Sess. 1. H. Res. 650. 3. Carl Albert (Okla.).

1641 Ch. 11 § 17 DESCHLER’S PRECEDENTS

THE SPEAKER: The Clerk will read pena duces tecum commanding the subpena. his appearance for the purpose of After the reading of the sub- testifying and producing certain pena, a privileged resolution (4) original records before the grand was offered by Mr. Hale Boggs, of jury of the U.S. District Court for Louisiana, authorizing the chair- the District of Columbia. Fol- man to appear in response to the lowing the presentation of the subpena but permitting the pro- communication and the reading of duction of certified copies of only the subpena to the House, a privi- those subpenaed House papers leged resolution (7) was offered by and documents subsequently de- Mr. Carl Albert, of Oklahoma, au- termined by the court to be mate- thorizing the committee clerk to rial and relevant. appear and produce the requested original papers and documents in Service of Grand Jury Sub- response to the subpena. The res- penas on Committee Employ- olution was agreed to. ees Service of Discovery Orders § 17.8 A House committee employee, having received a § 17.9 Where a federal district subpena duces tecum from a court, pursuant to the Fed- federal grand jury, informed eral Rules of Criminal Proce- the Speaker who laid the dure, issued a discovery matter before the House. order for the inspection and On Jan. 16, 1968,(5) the Speak- copying of certain original er (6) laid before the House as a papers and documents in the matter involving the privilege of possession and under the the House a communication from control of a House com- the clerk of the Committee on mittee, a question of the House Administration advising privilege of the House arose. that he was in receipt of a sub- On July 1, 1969,(8) the Chair- 4. H. Res. 1092. man of the Committee on Internal 5. 114 CONG. REC. 81, 90th Cong. 2d Security, Richard H. Ichord, of Sess. For further examples see 113 Missouri, rose to a question of the CONG. REC. 29374–76, 90th Cong. privilege of the House and offered 1st Sess., Oct. 19, 1967; and 113 CONG. REC. 17562, 90th Cong. 1st 7. H. Res. 1023. Sess., June 27, 1967. 8. 115 CONG. REC. 17948, 91St Cong. 6. John W. McCormack (Mass.). 1st Sess.

1642 QUESTIONS OF PRIVILEGE Ch. 11 § 18 a resolution (9) for the consider- ternal Security to testify and ation of the House. The resolution produce certain documents in re- authorized him to make available sponse to discovery orders and to the U.S. attorney, in response written and oral interrogatories to a discovery order issued by a served on them as parties defend- federal district court pursuant to ant in a civil action (13) pending Rule 16 of the Federal Rules of before the U.S. District Court for Criminal Procedure, for the pur- the Northern District of Illinois. pose of inspection and copying by The previous question was imme- parties in a pending criminal ac- diately moved on the resolution. ( ) tion, 10 certain enumerated com- Mr. Abner Mikva, of Illinois, ob- mittee papers and documents. The jected to the vote because a resolution was agreed to. quorum was not present. On a call § 17.10 Where certain employ- of the roll pursuant to Rule XV, ees and former employees of the resolution was agreed to. a House committee were named parties defendant in a federal civil action and had § 18. Authorization to Re- received discovery orders spond to Process and interrogatories, a ques- When the Clerk or other officer tion of the privilege of the of the House is served with a sub- House was invoked. pena duces tecum when the House ( ) On Mar. 2, 1971, 11 Mr. Richard is in session, the House ordinarily H. Ichord, of Missouri, rising to a deals with each subpena by reso- question of the privilege of the lution on an individual basis. Dur- (12) House, offered a resolution for ing periods of adjournment, how- the consideration of the House. ever, the current practice is to au- The resolution authorized speci- thorize the officer in receipt of fied employees and former em- such a court order to appear (but ployees of the Committee on In- not to take original documents of 9. H. Res. 459. the House) pursuant to a resolu- 10. U.S. v Stamler, Hall, and Cohen, tion providing continuing author- Criminal Action No. 67 CR 393, 67 ity to respond during that period. CR 394, 67 CR 395 (U.S.D.C. No. 1). The court may be provided with Ill ). copies of House documents except 11. 117 CONG. REC. 4584–93, 92D Cong. 1st Sess. 13. Civil Action File No. 65 C 800, 65 C 12. H. Res. 264. 2050 (U.S.D.C. No. D. Ill.).

1643 Ch. 11 § 18 DESCHLER’S PRECEDENTS those taken in executive session, the 83d Congress, the House upon the court’s determination of adopted a similar resolution which their relevancy. could be invoked during any pe- Prior to the 80th Congress, it riod of adjournment of that Con- was not the custom for the House gress.(15) to agree to resolutions providing continuing authority for the Clerk In the 84th and subsequent or other House officers to respond Congresses, the House approved to subpenas duces tecum during of resolutions that provided that periods of adjournment. From the when documentary evidence 80th through the 83d Congresses, under the control of the House resolutions were adopted pro- was needed in any court of justice viding for continuing authority to during any recess or adjournment respond to subpenas duces tecum where the court issuing the sub- of that Congress, the Clerk or pena required the documents for other House officer was author- use in cases relating to the refusal ized to appear in answer to a sub- of witnesses to testify before con- pena duces tecum but not to take gressional committees. These reso- documents. The courts were given lutions pertained only to subpenas permission to make copies of docu- issued by courts of the United ments (except for executive ses- States. sion materials) upon the issuance For example, the 80th Congress of a court order declaring their approved a resolution which pro- ( ) vided that when, during that Con- relevancy. 16 gress, a subpena duces tecum was directed to the Clerk or any officer See also H. Res. 864, 96 CONG. REC. or employee of the House from 15636, 81st Cong. 2d Sess., Sept. 22, any court of the United States 1950: H. Res. 481, 97 CONG. REC. 13777, 82d Cong. 1st Sess., Oct. 20, considering a case based on the 1951; and H. Res. 391, 99 CONG. refusal of a witness to appear or REC. 11132, 83d Cong. 1st Sess., testify before a congressional com- Aug. 3, 1953. mittee, the Clerk or other officer 15. H. Res. 711, 100 CONG. REC. 15547, was authorized to appear but not 83d Cong. 2d Sess., Aug. 20, 1954. with any documents. The courts 16. H. Res. 341, 101 CONG. REC. 13063, were, however, given permission 84th Cong. 1st Sess., Aug. 2, 1955. to make copies of relevant docu- See also H. Res. 416, 103 CONG. ments.(14) In the second session of REC. 16759, 16760, 85th Cong. 1st Sess., Aug. 30, 1957; and H. Res. 14. H. Res. 584, 94 CONG. REC. 5433, 224, 105 CONG. REC. 5260, 86th 80th Cong. 2d Sess., May 6, 1948. Cong. 1st Sess., Mar. 25, 1959.

1644 QUESTIONS OF PRIVILEGE Ch. 11 § 18

Speaker’s Power to Authorize on October 23, 1967, to testify in con- Response to Process nection with matters under investigation by the grand jury; and § 18.1 On one occasion, the Whereas other officers and staff em- House by resolution author- ployees of the House of Representa- tives have received, or may receive, ized the Speaker to permit subpenas ad testificandum to appear House officers and employ- before the said grand jury in connec- ees to appear in response to tion with the before-mentioned inves- subpenas issued by a U.S. tigation; and District Court in connection Whereas information secured by officers and staff employees of the House with an investigation being of Representatives pursuant to their conducted by a grand jury. official duties as such officers or em- On Oct. 19, 1967,(17) commu- ployees may not be revealed without nications from the Clerk of the the consent of the House: Therefore be it House and the chairman of a Resolved, That W. Pat Jennings, House committee were presented Clerk of the House of Representatives, to the House advising that they is authorized to appear in response to were in receipt of subpenas issued the subpena before-mentioned as a wit- by the U.S. District Court for the ness before the grand jury; and be it District of Columbia. Mr. Carl Al- further bert, of Oklahoma, offered a reso- Resolved, That the Speaker of the House of Representatives is authorized (18) lution giving the Speaker au- to permit any other officer or employee thorization to permit certain offi- of the House who is in receipt of or cers and employees to respond to shall receive a subpena ad the subpenas. The resolution pro- testificandum in connection with the vided: proceedings conducted by the grand jury before-mentioned to appear in re- Whereas in the investigation of pos- sponse thereto; and be it further sible violations of Title 18, United Resolved, That a copy of these reso- States Code, Sections 201, 287, 371, lutions be transmitted to the said 641, 1001 and 1505, a subpena ad court. testificandum was issued by the United States District Court for the The resolution was agreed to. District of Columbia and addressed to A motion to reconsider was laid W. Pat Jennings, Clerk of the House of on the table. Representatives, directing him to ap- Parliamentarian’s Note: The pear before the grand jury of said court U.S. attorney had advised the 17. 113 CONG. REC. 29374–76, 90th Speaker that several officers and Cong. 1st Sess. employees of the House might be 18. H. Res. 950. subpenaed to appear and testify

1645 Ch. 11 § 18 DESCHLER’S PRECEDENTS before the federal grand jury in THE SPEAKER: (20) The gentleman will connection with its investigation state it. into possible violations of the MR. ROOSEVELT: Mr. Speaker, during the 86th Congress, the House au- Criminal Code. Rather than have thorized me to appear in response to a each officer and employee author- subpena issued by the U.S. District ized by separate resolution, the Court for the District of Columbia, di- Speaker was given the authority recting me to appear in Washington, to authorize such appearances. D.C., to testify in the case of the Each officer and employee who United States of America against Mar- tin Popper. thereafter received a subpena in The case was originally scheduled for connection with the grand jury trial on June 21, 1960, but was ad- proceedings informed the Speaker journed and is now scheduled to begin who then responded with a writ- on April 25, 1961. ten authorization. Under the precedents of the House, I am unable to comply with this subpena Duration of Authorization without the consent of this House, the privileges of the House being involved. § 18.2 Where one Congress has, I, therefore, submit the matter for the consideration of this body. by resolution, authorized a Mr. Speaker, I send to the desk the Member to appear in re- subpena. sponse to a subpena issued THE SPEAKER: The Clerk will read by a federal court, and the the subpena. court’s proceedings extend After the Clerk read the sub- into the next Congress, the pena, the House agreed to a reso- Member must again obtain lution (21) offered by Mr. John W. permission of the House if he McCormack, of Massachusetts, still wishes to respond to the authorizing the Member to appear subpena. in response to the subpena. On Apr. 13, 1961,(19) the Chair recognized Mr. James Roosevelt, § 18.3 The Clerk having noti- of California, on a question of fied the House that he had privilege: been authorized by the preceding Congress to appear as MR. ROOSEVELT: Mr. Speaker, I rise to a question of the privilege of the a witness and to produce House. specified documents in a certain case and that the case 19. 107 CONG. REC. 5844, 87th Cong. 1st Sess. See also 107 CONG. REC. 2480, 20. Sam Rayburn (Tex.). 87th Cong. 1st Sess., Feb. 21, 1961. 21. H. Res. 254.

1646 QUESTIONS OF PRIVILEGE Ch. 11 § 18

was still in progress, the Respectfully yours, RALPH R. ROBERTS, House passed a resolution Clerk, U.S. House of Representatives. permitting his further ap- After a reading of the subpena pearance as a witness. to the House, Mr. John W. McCor- mack, of Massachusetts, offered a (22) On Mar. 27, 1961, the Speak- resolution (2) authorizing the Clerk ( ) er 1 laid before the House as a to appear in response to the sub- matter involving a question of the pena but permitting the produc- privilege of the House the fol- tion of certified copies of only lowing communication from the those subpena House papers and Clerk: documents subsequently determined by the court to be material MARCH 24, 1961. and relevant. The Honorable the SPEAKER, House of Representatives. Authorization During Recesses SIR: As the Clerk of the House of the and Adjournments 86th Congress I received, from the U.S. District Court for the Southern District § 18.4 The House may, by reso- of New York, two subpenas duces lution, authorize court ap- tecum, one in the case of Peter Seeger pearances while prohibiting (criminal No. C–152–240), and the the disclosure of minutes or other in the case of Elliott Sullivan transcripts of committee ex- (criminal No. C–152–238). Both subpenas directed me to appear before ecutive sessions in response said court as a witness in these cases to subpenas served upon and to bring with me certain and sun- Members, officers, or employ- dry papers therein described in the ees during recesses and ad- files of the House of Representatives. journments. This matter was brought to the at- (3) tention of the last House, as a result of On Jan. 13, 1973, Mr. Thomas which House Resolutions 476 and 477 P. O’Neill, Jr., of Massachusetts, were adopted on March 15, 1960. offered for immediate consider- (4) Since the development of these cases ation the following resolution: has extended into the 87th Congress 2. H. Res. 234. and it is well recognized that each 3. 119 CONG. REC. 30, 31, 93d Cong. House controls its own papers, this 1st Sess. For similar authorizing res- matter is presented for such action as olutions adopted by recent Con- the House, in its wisdom, may see fit gresses see 117 CONG. REC. 16, 92d to take. Cong. 1st Sess., Jan. 21, 1971; 115 CONG. REC. 37, 91st Cong. 1st Sess., 22. 107 CONG. REC. 4917–19, 87th Cong. Jan. 3, 1969; and 113 CONG. REC. 35, 1st Sess. 90th Cong. 1st Sess., Jan. 10, 1967. 1. Sam Rayburn (Tex.). 4. H. Res. 12.

1647 Ch. 11 § 18 DESCHLER’S PRECEDENTS

Whereas, by the privileges of this Resolved, That when any said court House no evidence of a documentary determines upon the materiality and character under the control and in the the relevancy of the papers or docu- possession of the House of Representa- ments called for in the subpena or tives can, by the mandate of process of other order, then said court, through the ordinary courts of justice, be taken any of its officers or agents, shall have from such control or possession except full permission to attend with all prop- by its permission: Therefore be it er parties to the proceedings before Resolved, That when it appears by said court and at a place under the or- the order of any court in the United ders and control of the House of Rep- States or a judge thereof, or of any resentatives and take copies of the said legal officer charged with the adminis- documents or papers and the Clerk of tration of the orders of such court or the House is authorized to supply cer- judge, that documentary evidence in tified copies of such documents that the possession and under the control of the court has found to be material and the House is needful for use in any relevant, except that under no cir- court of justice or before any judge or cumstances shall any minutes or tran- such legal officer, for the promotion of scripts of executive sessions, or any justice, this House will take such ac- evidence of witnesses in respect there- tion thereon as will promote the ends to, be disclosed or copied, nor shall the of justice consistently with the privi- possession of said documents and pa- leges and rights of this House; be it pers by any Member, officer, or em- further ployee of the House be disturbed or re- Resolved, That during any recess or moved from their place of file or cus- adjournment of its Ninety-third Con- tody under said Member, officer, or gress, when a subpena or other order employee; and be it further for the production or disclosure of in- Resolved, That a copy of these reso- formation is by the due process of any lutions be transmitted by the Clerk of court in the United States served upon the House to any of said courts when- any Member, officer, or employee of ever such writs of subpena or other or- the House of Representatives, directing ders are issued and served as afore- appearance as a witness before the said. said court at any time and the produc- The resolution was agreed to. tion of certain and sundry papers in A motion to reconsider was laid the possession and under the control of the House of Representatives, that any on the table. such Member, officer, or employee of the House, be authorized to appear before said court at the place and time § 19. Providing for Legal named in any such subpena or order, Counsel but no papers or documents in the possession or under the control of the House of Representatives shall be pro- Legal counsel, through the De- duced in response thereto; and be it partment of Justice, is made further available to the officers—but not 1648 QUESTIONS OF PRIVILEGE Ch. 11 § 19 the Members—of the House pur- On Mar. 9, 1967,(5) the Speak- suant to 2 USC § 118, which pro- er (6) announced as a matter in- vides in part: volving a question of the privilege of the House, that he and certain In any action brought against any person for or on account of anything other Members and officers of the done by him while an officer of either House had been served with a House of Congress in the discharge of summons issued by the U.S. Dis- his official duty, in executing any order trict Court for the District of Co- of such House, the district attorney for lumbia in connection with an ac- the district within which the action is tion (7) brought by Adam Clayton brought, on being thereto requested by Powell, Jr. Following the reading the officer sued, shall enter an appear- of the summons by the Clerk, Mr. ance in behalf of such officer . . . and Hale Boggs, of Louisiana, rose to the defense of such action shall thence- forth be conducted under the super- a question of the privilege of the vision and direction of the Attorney House and offered a resolution (H. General. Res. 376) as follows: However, the Attorney General Whereas Adam Clayton Powell, Jr., has recommended that the House et al., on March 8, 1967, filed a suit in the United States District Court for retain other legal counsel in cases the District of Columbia, naming as where he had determined that a defendants certain Members, and offi- conflict may have existed between cers of the House of Representatives, the legislative and executive inter- and contesting certain actions of the House of Representatives; and ests. Whereas this suit raises questions concerning the rights and privileges of the House of Representatives, the sep- Appointment of Special Coun- aration of powers between the legisla- sel by the Speaker tive and judicial branches of the Gov- ernment and fundamental constitu- § 19.1 On one occasion the tional issues: Now, therefore, be it House, by resolution, author- Resolved, That the Speaker of the House of Representatives of the United ized the Speaker to appoint States is hereby authorized to appoint and fix the compensation for and fix the compensation of such spe- a special counsel to represent the House and those 5. 113 CONG. REC. 6035–48, 90th Cong. Members named as defend- 1st Sess. 6. John W. McCormack (Mass.). ants in a suit brought by a 7. Civil Action File No. 559–61 former Member. (U.S.D.C.D. D.C.).

1649 Ch. 11 § 19 DESCHLER’S PRECEDENTS

cial counsel as he may deem necessary Appointment of Special Coun- to represent the House of Representa- sel for Members and Employ- tives, its Members and officers named ees as defendants, in the suit filed by Adam Clayton Powell, Jr., et al. in the § 19.2 The House may, by reso- United States District Court for the lution, authorize a committee District of Columbia, as well as in any to arrange for the legal de- similar or related proceeding brought in any court of the United States; and fense of certain committee be it further members and employees who Resolved, That any expenses in- are named in their official curred pursuant to these resolutions, capacities as defendants in a including the compensation of such civil action. special counsel and any costs incurred On Aug. 1, 1953,(9) Mr. Charles thereby, shall be paid from the contingent fund of the House on vouchers au- A. Halleck, of Indiana, offered a (10) thorized and signed by the Speaker of resolution authorizing the the House of Representatives and ap- Committee on the Judiciary to file proved by the Committee on House Ad- appearances, to provide counsel ministration; and be it further and to provide for the defense of Resolved, That the Clerk of the certain members and employees of House of Representatives transmit a the Committee on Un-American copy of these resolutions to the afore- Activities who had been named as mentioned court and to any other court parties defendant in a civil ac- in which related legal proceedings may tion (11) brought in the Superior be brought. Court for the State of California. Debate on the resolution en- The resolution stated: sued, after which the resolution Whereas Harold H. Velde, of Illinois, ( ) was agreed to. 8 Donald L. Jackson, of California, Mor- gan M. Moulder, of Missouri, Clyde 8. Parliamentarian’s Note: On Mar. 14, Doyle, of California, and James B. 1967, the Speaker announced the ap- Frazier, Jr., of Tennessee, all Rep- pointment of special counsel pursu- resentatives in the Congress of the ant to H. Res. 376. 113 CONG. REC. United States; and Louis J. Russell, 6603, 90th Cong. 1st Sess. The and William Wheeler, employees of the House, on Feb. 17, 1969, by simple House of Representatives, were by sub- resolution (H. Res. 243) continued the authority granted the Speaker by 9. 99 CONG. REC. 10949, 10950, 83d the provisions of H. Res. 376, 90th Cong. 1st Sess. Congress, to retain special counsel, 10. H. Res. 386. 115 CONG. REC. 3359, 91st Cong. 1st 11. Michael Wilson et al. v Loew’s Inc., et Sess. al.

1650 QUESTIONS OF PRIVILEGE Ch. 11 § 19 poenas commanded to appear on Mon- Whereas the case of Michael Wilson, day and Tuesday, March 30 and 31, et al. v. Loew’s Incorporated, et al. in 1953 in the city of Los Angeles, Calif., which the aforementioned Members, and to testify and give their deposi- former Members, and employees of the tions in the case of Michael Wilson, et House of Representatives are named al. v. Loew’s, Incorporated, et al., an parties defendant is still pending; and action pending in the Supreme Court Whereas the summonses with re- of California in and for the County of spect to Donald L. Jackson, Clyde Los Angeles; and . . . Doyle, and William Wheeler and the Whereas Harold H. Velde, Donald L. subpoena with respect to William Jackson, Morgan M. Moulder, Clyde Wheeler in the case of Michael Wilson, Doyle, James B. Frazier, Jr., Louis J. et al. v. Loew’s Incorporated, et al. Russell, and William Wheeler ap- have not been quashed: peared specially in the case of Michael Resolved, That the House of Rep- Wilson, et al. versus Loew’s Incor- resentatives hereby approves of the porated, et al., for the purpose of mov- special appearances of Harold H. ing to set aside the service of sum- Velde, Donald L. Jackson, Morgan M. monses and to quash the subpoenas Moulder, Clyde Doyle, James B. with which they had been served; and Frazier, Jr., Louis J. Russell, and Wil- Whereas on July 20, 1953, the Supe- liam Wheeler heretofore entered in the rior Court of the State of California in case of Michael Wilson, et al. v. Loew’s and for the County of Los Angeles Incorporated, et al.; and be it further ruled that the aforesaid summonses Resolved, That the Committee on the served upon Harold H. Velde, Morgan M. Moulder, James B. Frazier, Jr., and Judiciary, acting as a whole or by sub- Louis .J. Russell should be set aside committee, is hereby authorized to di- for the reason that it was the public rect the filing in the case of Michael policy of the State of California ‘‘that Wilson, et al. v. Loew’s Incorporated, et nonresident members and attache´s of a al. of such special or general appear- congressional committee who enter the ances on behalf of any of the Members, territorial jurisdiction of its courts for former Members, or employees of the the controlling purpose of conducting House of Representatives named as de- legislative hearings pursuant to law fendants therein, and to direct such should be privileged from the service of other or further action with respect to process in civil litigation’’; and the aforementioned defendants in such . . .Whereas on July 20, 1953, the Su- manner as will, in thejudgment of the perior Court of the State of California Committee on the Judiciary, be con- in and for the County of Los Angeles sistent with the rights and privileges further ruled that the subpoenas of the House of Representatives; and served on Clyde Doyle and Donald be it further Jackson should be recalled and Resolved, That the Committee on the quashed because such service was in- Judiciary is also authorized and di- valid under the aforementioned article rected to arrange for the defense of the I, section 6, of the Constitution of the Members, former Members, and em- United States; and ployees of the Committee on Un-Amer-

1651 Ch. 11 § 19 DESCHLER’S PRECEDENTS

ican Activities in any suit hereafter On Feb. 22, 1972,(13) the Speak- brought against such Members, former er (14) laid before the House a com- Members, and employees, or any one munication from the Clerk advis- or more of them, growing out of the ac- (15) tions of such Members, former Mem- ing that a civil action had been bers, and employees while performing filed in the U.S. District Court for such duties and obligations imposed the District of Columbia naming, upon them by the laws of the Congress among others, the Clerk of the and the rules and resolutions of the House as a party defendant. The House of Representatives. The Com- Clerk in his communication also mittee on the Judiciary is authorized advised that pursuant to 2 USC to incur all expenses necessary for the purposes hereof.... § 118 he had on Feb. 18, 1972, written to the Acting Attorney The resolution was agreed to, General of the United States and and a motion to reconsider was to the U.S. Attorney for the Dis- ( ) laid on the table. l2 trict of Columbia requesting that they carry out their assigned stat- Authorizing the Clerk to Ap- utory responsibilities in defending point Special Counsel the Clerk in this matter. ( ) § 19.3 On one occasion the On Mar. 15, 1972, 16 the Speak- House, by resolution, author- er laid before the House a commu- ized the Clerk to appoint and nication from the Clerk advising fix compensation for counsel that in response to his request of to represent him in any suit Feb. 18, 1972, he was in receipt of replies from the Department of brought against him as su- Justice and the U.S. Attorney for pervisory officer under the the District of Columbia in which Corrupt Practices Act of 1925 they agreed, pursuant to 2 USC or the Federal Election Cam- § 118, to furnish representation paign Act of 1971. for the Clerk in the civil action 12. Parliamentarian’s Note: On Sept. 6, unless a ‘‘divergence of interest’’ 1961, the House, by resolution (H. developed between the positions of Res. 417), continued the authority of the Committee on the Judiciary 13. 118 CONG. REC. 5024, 92d Cong. 2d granted by the provisions of H. Res. Sess. 386, 83d Cong., to arrange for the 14. Carl Albert (Okla.). legal defense of members, former 15. Nader et al. v Jennings et al., Civil members and employees of the Com- Action File No. 243–72 (U.S.D.C. D. mittee on Un-American Activities. D.C.). 107 CONG. REC. 18240, 87th Cong. 16. 118 CONG. REC. 8470, 92d Cong. 2d 1st Sess. Sess.

1652 QUESTIONS OF PRIVILEGE Ch. 11 § 19 the Clerk and the Justice Depart- gent fund of the House on vouchers ap- ment. proved by the Committee on House Ad- On May 3, 1972, the Clerk re- ministration. ceived a letter from the Attorney The House agreed to the resolu- General stating that a ‘‘divergence tion. of interest’’ had developed be- On Jan. 6, 1973,(18) the House, tween the positions of the Clerk by unanimous consent, agreed to and the Justice Department and a resolution (19) continuing the au- requesting the Clerk to obtain thority of the Clerk to appoint and other counsel. The letter was not fix compensation for legal counsel communicated to the Speaker or laid before the House. Pursuant to in suits brought against him the authority granted the Clerk in under the Corrupt Practices Act of House Resolution 955 the Clerk 1925 or the Federal Election Cam- obtained other counsel. paign Act of 1971. On May 3, 1972,(17) Mr. Wayne Parliamentarian’s Note: The L. Hays, of Ohio, offered the reso- provision for payment of such ex- lution below (H. Res. 955) as a penses is now permanent law [see matter involving the question of 87 Stat. 527 at p. 537, Pub. L. No. the privilege of the House: 93–145 (Nov. 1, 1973)], but the Resolved, That the Clerk of the statute authorizes compensation House of Representatives is hereby au- only for attorneys who represent thorized to appoint and fix the com- the Clerk in suits brought against pensation of such special counsel as he may deem necessary to represent the him in the performance of his offi- Clerk and the interests of the House in cial duties as mandated by either any suit now pending or hereafter the Federal Corrupt Practices Act brought against the Clerk arising out of 1925 or the Federal Election of his actions while performing duties or obligations imposed upon him by the Campaign Act of 1971. There is no Federal Corrupt Practices Act, 1925, or comparable provision of law which the Federal Election Campaign Act of authorizes the payment by the 1971; and be it further House of attorneys’ fees for Mem- Resolved, That any expenses in- bers indicted, sued, or subpoenaed curred pursuant to these resolutions, including the compensation of such as witnesses either in their official special counsel and any costs incurred or individual capacities. thereby, shall be paid from the contin- 18. 119 CONG. REC. 379, 93d Cong. 1st 17. 118 CONG. REC. 15627, 15628, 92d Sess. Cong. 2d Sess. 19. H. Res. 92. 1653 Ch. 11 § 20 DESCHLER’S PRECEDENTS

D. PERSONAL PRIVILEGE OF MEMBER § 20. In General; Defini- § 21. Raising the Question; tion Procedure

Under Rule IX,(20) the House is Statement of Grounds deemed to be presented with aquestion of personal privilege § 21.1 In raising a question of whenever a question arises as to personal privilege a Member the rights, reputation, and con- in the first instance must duct of a Member, individually, in state to the Chair for his de- his representative capacity.(l) cision the grounds upon While a question of personal which he bases his question. privilege need not be raised in the On Apr. 11, 1935,(6) Mr. Joseph form of a resolution, a Member P. Monaghan, of Montana, rose to raising such a question must in a question of personal privilege the first instance state to the and stated, with reference to Rule Chair the grounds upon which the IX, ‘‘under the question of per- question is based.(2) Once a Mem- ber is recognized for the purpose sonal privilege I cite the integrity of raising a question of personal of the proceedings of the House. I privilege, the scope of his argu- cannot see that this rule ade- ment is limited to the question quately protects this House so far raised.(3) Accepted practice also as giving it and the public ade- precludes the question being quate information as to the rule.’’ raised either during the time of A point of order was then made another Member’s control of the by Mr. John J. O’Connor, of New floor (4) or while another question York, that the gentleman had not of privilege is pending before the stated a question of personal House.(5) privilege. In his ruling sustaining the 20. House Rules and Manual § 661 point of order, the Speaker (7) stat- (1973). ed: 1. Basis of questions of personal privilege, see §§ 24 et seq., infra. 6. 79 CONG. REC. 5454, 5455, 74th 2. See § 21.1, infra. Cong. 1st Sess. For additional illus- 3. See §§ 22.5, 22.6, infra. trations see 118 CONG. REC. 13491– 4. See §§ 23.2, 23.3, infra. 97, 92d Cong. 2d Sess., Apr. 19, 5. 80 CONG. REC. 8222, 74th Cong. 2d 1972; and 84 CONG. REC. 5033–35, Sess. See § 5.4, supra, for a detailed 76th Cong. 1st Sess., May 2, 1939. discussion of this precedent. 7. Joseph W. Byrns (Tenn.).

1654 QUESTIONS OF PRIVILEGE Ch. 11 § 21

It is necessary for the gentleman was stated by the gentleman and it is first to state his question of personal not reflected accurately in the Record. privilege as a basis for any argument Furthermore, the gentleman made that he may desire to submit. The the statement that I was the Jewish Chair has no desire other than to see gentleman from New York; and on that that the gentleman and every Member score I rise to a question of personal of the House is protected under the privilege. rules. The rules provide that a gentleman who raises a question of per- THE SPEAKER: The Chair wants to sonal privilege must first state his see the original transcript of the re- question before he proceeds to argue marks of the gentleman from Mis- with reference to it. sissippi. MR. CELLER: I can read more; there Submission of Material Con- is more in that Record, Mr. Speaker, taining Objectionable Re- which was not uttered on the floor of the House. I shall be very brief, Mr. marks Speaker. THE SPEAKER: The Chair is not going § 21.2 When a Member raises a to rule on this question without seeing question of personal privi- the original transcript and it is not lege based on the alleged in- here. If there is no objection, the gen- sertion in the Record of un- tleman may proceed for 10 minutes. parliamentary language, he § 21.3 On one occasion a Mem- must submit the transcript of ber was recognized to raise a the Record to the Chair. question of personal privi- On Apr. 7, 1943,(8) Mr. Emanuel lege, based on comments ap- Celler, of New York, rose to a pearing in a local newspaper, question of personal privilege, although the Record does not stating that certain remarks of a Member not made on the floor but show that the material was inserted in the Record for Apr. 2, first submitted to the Chair 1943, reflected upon his integrity. for examination. The following exchange then en- On June 22, 1966,(10) the Chair sued: recognized Mr. Charles E. Cham- THE SPEAKER: (9) Will the gentleman berlain, of Michigan, on a ques- send that Record up to the chair? Does tion of privilege: the gentleman from New York have the transcript and know that that was MR. CHAMBERLAIN: Mr. Speaker, I inserted? rise as a matter of personal privilege. ( ) MR. CELLER: I have not the tran- THE SPEAKER: 11 The gentleman will script with me, but I remember what state his matter of personal privilege.

8. 89 CONG. REC. 3065, 78th Cong. 1st 10. 112 CONG. REC. 13907, 89th Cong. Sess. 2d Sess. 9. Sam Rayburn (Tex.). 11. John W. McCormack (Mass.).

1655 Ch. 11 § 21 DESCHLER’S PRECEDENTS

MR. CHAMBERLAIN: Mr. Speaker, I § 22. Debate on the Ques- rise with respect to an article which appeared in the Washington Post this tion; Speeches morning entitled ‘‘Question: Do Con- gressmen Steal,’’ by the columnists Drew Pearson and Jack Anderson. Applicability of Hour Rule THE SPEAKER: The gentleman from Michigan is recognized under the ques- § 22.1 The hour rule applies to tion of personal privilege. debate on a question of per- Debate on the question then en- sonal privilege of a Member. sued. On Apr. 19, 1972,(15) Mr. In the Committee of the Whole Cornelius E. Gallagher, of New Jersey, rose to a question of per- § 21.4 Under the modern prac- sonal privilege. After hearing Mr. tice, a question of personal Gallagher’s statement of the ques- privilege may not be raised tion, the Speaker (16) recognized in the Committee of the him for one hour. Whole. On Dec. 13, 1973,(12) during con- Response to Member Raising sideration by the Committee of Question the Whole of amendments to H. R. 11450, the Energy Emergency Act, § 22.2 On one occasion, a Mem- Mr. John D. Dingell, of Michigan, ber asked for a special order rose to a question of personal which he used to respond to privilege. In refusing to grant recognition to the Member for that a question of personal privi- purpose, the Chairman pro tem- lege raised by another Mem- pore (13) stated that a question of ber, in order to deny any in- personal privilege could not be en- tention to impugn the mo- tertained in the Committee of the tives or veracity of that ( ) Whole. 14 Member.

12. 119 CONG. REC 41271, 93d Cong. 1st Sess. For further illustrations see question of personal privilege may not be raised in the Committee of 115 CONG. REC. 24372, 91st Cong. 1st Sess., Sept. 4, 1969; 105 CONG. the Whole, early precedent suggests REC. 11289, 86th Cong. 1st Sess., that such a question could be raised June 18, 1959; and 95 CONG. REC. if the matter in issue arose during 2652, 81st Cong. 1st Sess., Mar. 16, the Committee proceedings. See 3 1949. Hinds’ Precedents § 2540. 13. John J. McFall (Calif.). 15. 118 CONG. REC. 13491, 92d Cong. 2d 14. Parliamentarian’s Note: Although Sess. pursuant to the modern practice a 16. Carl Albert (Okla.).

1656 QUESTIONS OF PRIVILEGE Ch. 11 § 22

On July 29, 1970,(17) the Speak- nized Mr. H. Carl Andersen, of er pro tempore (18) announced Minnesota, for the purpose of that, under a previous order of the seeking unanimous consent that House, Mr. Philip M. Crane, of Il- he be permitted to proceed for five linois, was recognized for 45 min- minutes to revise and extend his utes. Mr. Crane then took the remarks. There being no objection floor to respond to a question of to the request, the Member proceeded to refute a newspaper personal privilege raised by Mr. charge of improper conduct which Augustus F. Hawkins, of Cali- had been made against him.(4) fornia, and denied any intention to impugn the motives or veracity § 22.4 On one occasion, in lieu of that Member.(1) of raising a question of personal privilege, a Member Special-order Speech as Alter- took the floor for a one- native to Raising the Ques- minute speech to respond to tion a newspaper article which included an unfavorable ref- § 22.3 Rather than raising the erence to his congressional question of personal privi- service. lege, a Member obtained ( ) unanimous consent to pro- On Nov. 22, 1967, 5 Mr. Paul A. ceed for five minutes—to re- Fino, of New York, asked and was given permission to address the fute a newspaper’s criti- House. He then delivered a one- cism—during that part of the minute speech responding to a day when he would normally newspaper article which included have been recognized for derogatory comments on his con- only a one-minute speech. gressional service.(6) (2) On June 29, 1962, during pro- 4. Parliamentarian’s Note: Mr. Ander- ceedings when Members were sen had requested, before the open- being recognized for one-minute ing of the session, that he be recog- (3) nized on the point of personal privi- speeches, the Speaker recog- lege. Since the House had a busy schedule, the Speaker suggested that 17. 116 CONG. REC. 26436–39, 91st the business of the House could be Cong. 2d Sess. expedited if Mr. Andersen would 18. Harley O. Staggers (W. Va.). simply ask to proceed for five min- 1. See 116 CONG. REC. 26002, 91st utes rather than take an hour under a point of personal privilege. Cong. 2d Sess., July 28, 1970. 5. 113 CONG. REC. 33693, 90th Cong. 2. 108 CONG. REC. 12297, 87th Cong. 1st Sess. 2d Sess. 6. Parliamentarian’s Note: Mr. Fino 3. John W. McCormack (Mass.). had asked the Speaker to recognize

1657 Ch. 11 § 22 DESCHLER’S PRECEDENTS

§ 22.5 Although in stating a so that it does not come within the def- question of personal privi- inition of personal privilege, on which lege a Member is required to grounds he sought the floor. confine his remarks to the In his decision overruling the question involved, he is enti- point of order the Speaker pro tled to discuss related mat- tempore (8) said: ters necessary to challenge The Chair might state that he feels the charge against him. that the gentleman from California is On Feb. 28, 1956,(7) during his very close to the line where the Chair may sustain a point of order. As the statement of a question of per- Chair understands it, the gentleman sonal privilege based on a news- has the right to discuss the facts in- paper article assailing his integ- volved in the pending bill insofar as rity, Mr. Craig Hosmer, of Cali- that is necessary in order for the gen- fornia, made reference to certain tleman to express his views with ref- extraneous matters, including in- erence to the charge of falsehood con- formational tables. A point of tained in the editorial, and to answer order against the statement of the that charge, and make his record in that respect. The Chair again suggests question was raised by Mr. Byron to the gentleman from California, hav- G. Rogers, of Colorado, as follows: ing in mind the observations of the . . . For the last 5 minutes the gen- Chair, particularly those just made, tleman has made no reference to the that he proceed in order and confine truth or falsity of the charge that he his discussion of the bill at this time raised under his question of personal only to that which is necessary to chal- privilege. On the contrary, he has lenge the charge of falsehood contained placed before the Members of the in the editorial. House a chart, and from that he now proceeds to discuss the bill. It has no relation to the truth or falsity of the § 23. Precedence of the charge. The gentleman has refused to permit anyone to ask him any ques- Question; Interrupting tions and proceeds to discuss this bill, Other Business

him on a point of personal privilege, Precedence as to the Journal but it was suggested that a one- minute speech would serve his pur- § 23.1 A Member rising to a pose equally well, since there was no business scheduled for the day, and question of personal privi- he could be recognized following the lege may not interrupt the reading of the Journal. reading of the Journal. 7. 102 CONG. REC. 3477, 3479, 3480, 84th Cong. 2d Sess. 8. John W. McCormack (Mass.).

1658 QUESTIONS OF PRIVILEGE Ch. 11 § 23

On the legislative day of Oct. 8, THE SPEAKER: The Chair does not (9) recognize the gentleman at this time 1968, Mr. Robert Taft, Jr., of on a matter of personal privilege. Ohio, rose to obtain recognition But the Chair will, after the pending during the reading of the Journal: matter, the reading of the Journal has been disposed of, recognize the gen- MR. TAFT: Mr. Speaker—— tleman if the gentleman seeks recogni- THE SPEAKER:(10) For what purpose tion. does the gentleman from Ohio rise? Subsequently, the gentleman MR. TAFT: Mr. Speaker, I have a was recognized to raise a question privileged motion. of the privilege of the House. MR. [SIDNEY R.] YATES [of Illinois]: A point of order, Mr. Speaker. That is not in order until the reading of the Interruption of Member Hold- Journal has been completed. ing the Floor THE SPEAKER: Will the gentleman from Ohio state his privileged motion? § 23.2 A Member may not be MR. TAFT: Mr. Speaker, my motion deprived of the floor by an- is on a point of personal privilege. other Member raising a ques- THE SPEAKER: Will the gentleman tion of personal privilege. from Ohio state whether it is a point of On May 17, 1946,(11) during the personal privilege or a privileged mo- consideration of House Resolution tion? 624, concerning further expenses MR. TAFT: It is a privileged motion, and a motion of personal privilege. for the House Committee on Un- Under rule IX questions of personal American Activities, Mr. Sol privilege are privileged motions, ahead Bloom, of New York, sought rec- of the reading of the Journal. ognition for a question of personal THE SPEAKER: The Chair will advise privilege. In his response declin- the gentleman that a question of per- ing recognition to the Member for ( ) sonal privilege should be made later that purpose, the Speaker 12 stat- after the Journal has been disposed of. ed: If the gentleman has a matter of The gentleman from South Dakota privilege of the House, that is an en- has the floor. Unless he yields the tirely different situation. Chair cannot recognize the gentleman. MR. TAFT: I believe, Mr. Speaker, this involves not only personal privi- 11. 92 CONG. REC. 5216, 79th Cong. 2d lege as an individual, but also as a Sess. For additional examples see 91 Member of the House and also the CONG. REC. 7221–25, 79th Cong. 1st privileges of all Members of the House. Sess., July 5, 1945; 84 CONG. REC. 8467, 8468, 76th Cong. 1st Sess., 9. 114 CONG. REC. 30214–16, 90th June 30, 1939; and 80 CONG. REC. Cong. 2d Sess., Oct. 9, 1968 (cal- 3720, 74th Cong. 2d Sess., Mar. 13, endar day). 1936. 10. John W. McCormack (Mass.). 12. Sam Rayburn (Tex.).

1659 Ch. 11 § 23 DESCHLER’S PRECEDENTS

§ 23.3 A Member may not rise the remarks of the last speaker, and to a question of personal ask for 1 hour. privilege while another Mem- MR. COX: Mr. Speaker, I did not ber controls the time for de- yield to the gentleman for that purpose. bate even though the Mem- MR. HOOK: Then, Mr. Speaker, I ask ber in control of the time unanimous consent that I be allowed to may yield him time for de- proceed for 5 minutes. bate on the merits of the THE SPEAKER PRO TEMPORE:(14) Is proposition then pending. there objection to the request of the gentleman from Michigan? On Apr. 8, 1937,(13) during MR. [CHARLES A.] PLUMLEY [of House debate on House Resolution Vermont]: Mr. Speaker, I object. 162, concerning an investigation MR. HOOK: Mr. Speaker, I then in- of sitdown strikes, the following sist upon my right to rise to a question proceedings transpired: of personal privilege. The gentleman MR. [EDWARD E.] COX [of Georgia]: threatened us. . . . Mr. Speaker, I yield 30 seconds to THE SPEAKER PRO TEMPORE: The the gentleman from Michigan [Mr. gentleman from Michigan cannot take (Frank E.) Hook]. the gentleman from Georgia off the MR. HOOK: Mr. Speaker, I rise to a floor by raising a question of personal question of personal privilege based on privilege.

E. BASIS OF QUESTIONS OF PERSONAL PRIVILEGE § 24. Introductory; Gen- sonal privilege, a criticism must eral Opinion or Criti- reflect directly on the Member’s integrity or reputation.(16) Mere cism statements of opinion about or general criticism of his voting Rule IX defines questions of record or views do not constitute personal privilege as those that adequate grounds for a question of affect the ‘‘rights, reputation, and personal privilege.(17) conduct’’ of individual Members in It is not in order by way of a their representative capacity.(15) point of personal privilege or by To give rise to a question of per- raising a question of the privilege

13. 81 CONG. REC. 3295, 75th Cong. 1st 15. House Rules and Manual § 661 Sess. (1973). 14. Fred M. Vinson (Ky.). 16. § 24.1, infra. 17. § 24.2, infra.

1660 QUESTIONS OF PRIVILEGE Ch. 11 § 24 of the House to collaterally attack tleman may, of course, appeal to those an order previously adopted by who have charge of the time for time, but there are 435 Members of the (18) the House. Similarly, the re- House, and the gentleman must appre- fusal of Members in charge of ciate, as the Chair does, that it is im- time for general debate on a bill possible for those gentlemen to yield to to allot time therefor to a Member everyone. However, the Chair is very sure that opportunity will be afforded does not give such Member the gentleman sometime during the grounds for a question of personal discussion of the bill to express his privilege. Thus, in one in- views. stance,(19) a Member claimed the The Chair fails to see where the gentleman has been denied any right that floor for a question of personal has not been denied to every Member privilege and proceeded to discuss of this House. The gentleman has his the fact that the Member in right of appeal to get time, as the charge of time for general debate Chair stated, if this rule is adopted. If on a bill had refused to assign the rule is not adopted and the bill is taken up, then the gentleman may pro- him any time for that purpose. ceed under the rules of the House. The However, the Speaker (20) ruled Chair fails to see where the gentleman that the Member’s request for has raised a question of personal privi- time could not be brought up by lege. way of a question of personal privilege. Said the Speaker: Criticism of Member’s Legisla- The rules provide that a Member may rise to a question of personal tive Activity or Position privilege where his rights, reputation, and conduct individually, in his rep- § 24.1 Ordinarily, a Member resentative capacity, is assailed or re- may not rise to a question of flected upon. The Chair fails to see personal privilege merely be- where the gentleman has presented a cause there has been some question of personal privilege which criticism of his legislative ac- will bring himself within that rule. The rules provide for the conduct of the tivity. A question of personal business of the House.... privilege ordinarily involves . . . They provide the method of pro- a reflection on a Member’s cedure. If this rule is adopted the gen- integrity or reputation. Thus, it was ruled that a Member 18. 114 CONG. REC. 30214, 30215, 90th could not rise to a question Cong. 2d Sess. See § 3.2, supra, for a detailed discussion of this precedent. of personal privilege where 19. 79 CONG. REC. 5454, 5455, 74th he had been criticized mere- Cong. 1st Sess., Apr. 11, 1935. ly for certain questionnaires 20. Joseph W. Byrns (Tenn.). he had distributed. 1661 Ch. 11 § 24 DESCHLER’S PRECEDENTS

On June 18, 1936,(1) Mr. Kent MR. BLANTON: Mr. Speaker, of E. Keller, of Illinois, offered as a course, one objection can prevent it, so I rise to a question of personal privi- matter involving a question of the lege. privilege of the House a resolution THE SPEAKER: (2) The gentleman will deploring the allegedly unauthor- state it. ized action taken by Mr. Thomas MR. BLANTON: I submit the last four L. Blanton, of Texas, whereby he clauses of the resolution just read, which was filed here by the gentleman addressed questionnaires to school from Illinois [Mr. Keller], without any teachers in the District of Colum- notice whatever to me, at a time when bia requesting their opinions on I was in a Senate conference, working communism. A point of order was for this House, and did get an agreement with the Senate conferees on an raised by Mr. Claude A. Fuller, of important appropriation bill, will be Arkansas, asserting that the of- used by ‘‘red’’ newspapers as a reflec- fered resolution did not involve a tion upon me, although, as a matter of question of the privilege of the fact, it cannot hurt me or my good name in any way. I had no notice that House. When the Chair sustained this resolution was to be offered, and I the point of order, Mr. Blanton was called out of that conference with sought to address the House on Senate managers after the resolution the ground that the resolution had been sent to the Clerk’s desk for gave rise to a point of personal consideration. While under a strict interpretation of the rules I realize full privilege: well that because the resolution does MR. BLANTON: Mr. Speaker, since not reflect upon me, and will not hurt this ridiculous resolution has been me, it does not constitute privilege, but read into the Record and will go in the I feel that I should raise the question press, and every fair-minded man in to show what a great injustice was done me by it being presented. I sub- the House knows that votes for it here mit that, as a matter of personal privi- would be negligible and it could not be lege, I should have a right to be heard. passed, I think it is only fair that the THE SPEAKER: The Chair stated that House should give me 5 minutes, and in his opinion the subject matter stat- I ask unanimous consent to proceed for ed in the resolution was not of such 5 minutes. nature as reflected upon the gentleman THE SPEAKER: Is there objection? from Texas. Mr. [Martin J.] Kennedy of New The Chair is of the opinion that the York: I object. matter stated by the gentleman from Texas does not constitute a question of 1. 80 CONG. REC. 9947, 9948, 74th personal privilege. Cong. 2d Sess. See also 86 CONG. REC. 11046–49, 11150–58, 76th § 24.2 The mere statement of Cong. 3d Sess., Aug. 27, 1940; and opinion by a group of news- 79 CONG. REC. 494, 495, 74th Cong. 1st Sess., Jan. 16, 1935. 2. William B. Bankhead (Ala.).

1662 QUESTIONS OF PRIVILEGE Ch. 11 § 24

paper correspondents with Rule IX provides:

reference to a Member’s QUESTIONS OF PRIVILEGE record or position in the Questions of privilege shall be, House does not present a first, those affecting the rights of the question of personal privi- House collectively, its safety, dignity, and the integrity of its proceedings; lege. second, the rights, reputation, and (3) conduct of Members, individually, in On Mar. 27, 1939, Mr. Clare their representative capacity only; E. Hoffman, of Michigan, rising to and shall have precedence of all a question of personal privilege, other questions except motions to ad- called the attention of the House journ. to a magazine article in which it The gentleman from Michigan takes the position that this newspaper criti- was stated that a poll of newsmen cism, if the Chair may call it that, revealed their opinion that Mr. states a question of personal privilege. Hoffman was among the least use- While the Chair is inclined to give the ful Members of the House. In rul- greatest elasticity and liberality to questions of personal privilege when ing on the question of personal raised, the Chair is of the opinion that privilege, the Speaker (4) made the in this particular instance the mere following statement: statement of opinion by a group of newspaper correspondents with ref- The gentleman from Michigan rises erence to a Member’s record or position to A question of personal privilege, in the House of Representatives does which question is based upon the lan- not present in fact, or under the rules guage he has just read from a paper he of the House, a matter of personal held in his hand. It seems that the privilege. gravamen of the matter relates to a Therefore, the Chair is constrained to rule that the gentleman has not pre- newspaper poll that was purported to sented a question of personal privilege. have been made with reference to the usefulness, standing, and so forth, of § 24.3 A newspaper statement Members of the House of Representa- tives. asserting that all House Of course, there are sometimes bor- Members from a specific del- der-line cases in which it is rather dif- egation support a certain bill ficult for the Chair to reach, for him- was held not to give rise to a self, a definite conclusion on the ques- question of personal privi- tion of personal privilege, but the lege to a Member of such del- Chair thinks the rule should again be stated because this question is fre- egation opposed to the bill. quently stated. On Mar. 31, 1938,(5) Mr. Mi- chael J. Stack, of Pennsylvania, 3. 84 CONG. REC. 3361, 3362, 76th Cong. 1st Sess. 5. 83 CONG. REC. 4473, 75th Cong. 3d 4. William B. Bankhead (Ala.). Sess.

1663 Ch. 11 § 24 DESCHLER’S PRECEDENTS rising to a question of personal mittee. In his decision on the privilege, read a newspaper state- question, the Speaker (8) stated: ment which asserted that it was . . . The Chair, of course, can well understood that all members of understand the indignation of any the Philadelphia delegation fa- Member of the House at a newspaper vored an effective reorganization article that appears to be absolutely bill. In fact, the Member was un- unfair or critical of his conduct as a committed regarding such a bill. Member of the House, but on this At the conclusion of the Member’s question of personal privilege the Chair is of course compelled to follow statement of the question, the the precedents of the House, very few (6) Speaker said: of which were established by the The gentleman has very cleverly present occupant of the Chair. gained recognition to make a state- The Chair has read the newspaper ment stating his attitude on the bill article which the gentleman from New which is to come before the House, but York has read, to see if under the the Chair is of the opinion the gen- precedents and under the philosophy of tleman does not state a matter of per- the rule, the gentleman would be enti- sonal privilege. tled to present this matter as a question of personal privilege. The Chair, § 24.4 A newspaper article al- within the past few days, has upon leging that a minority report several occasions read into the Record filed by a Member had been the rule affecting this question of per- written by employees of a po- sonal privilege. There are several precedents upon this particular ques- litical party was held not to tion of newspaper criticism. One of involve a question of per- them is found in section 2712 of Hinds’ sonal privilege. Precedents, volume 3: On Mar. 30, 1939,(7) Mr. Wal- A newspaper article in the nature of criticism of a Member’s acts in the lace E. Pierce, of New York, sub- House does not present a question of mitted as a question of personal personal privilege. privilege a statement from a That is the syllabus of the decision. newspaper article alleging that a minority report which Mr. Pierce Another decision holds that a newspaper article criticizing Members gen- had filed as a member of the Com- erally involves no question of privilege. mittee on the Judiciary had been Having recourse again to the prece- written by several employees of dents the Chair finds the following: the Republican National Com- ‘‘The fact that a Member is misrepresented in his acts or speech does not 6. William B. Bankhead (Ala.). constitute a matter of personal privi- 7. 84 CONG. REC. 3552–54, 76th Cong. 1st Sess. 8. William B. Bankhead (Ala.).

1664 QUESTIONS OF PRIVILEGE Ch. 11 § 24

lege, nor does misrepresenting a Mem- jectionable article the Speaker (10) ber’s vote.’’ in his ruling on the question stat- The Chair personally would be delighted to have the gentleman from ed: New York given the opportunity to ad- What the gentleman has read so far dress himself to the membership of the is hardly sufficient to entitle the gen- House on the question presented by tleman to recognition on a question of him. The Chair, however, is con- personal privilege. strained to rule in this instance as well as all others according to the prece- § 24.6 Language in a news- dents of the House and therefore rules paper stating that a Member that the matter complained of does was ‘‘very generous with gov- not, in the opinion of the Chair, constitute a matter of personal privilege. ernment money,’’and that he had introduced bills which § 24.5 A newspaper article as- would cost the government serting that a Congressman’s $125 billion, was held not to staff greeted a labor union give rise to a question of per- delegation with copies of a sonal privilege. pamphlet critical of the On Jan. 30, 1950,(11) Mr. John union and questioning the E. Rankin, of Mississippi, sub- use of a Congressman’s office mitted as involving the question as a distribution center for of personal privilege a newspaper such material was held not article which stated in part to give rise to a question of that ‘‘Representative Rankin is personal privilege. very generous—with Government (9) On Mar. 23, 1945, Mr. Clare money,’’ and declaring that he had E. Hoffman, of Michigan, pre- introduced bills which would cost sented as involving a question of the government $125 billion. The personal privilege a newspaper ar- Speaker (12) ruled that the re- ticle asserting that his office staff had greeted a CIO delegation with marks referred to did not involve copies of ‘‘Join the CIO and help a question of personal privilege. build a Soviet America,’’ and ques- However, the Member was grant- tioning the use of a Congress- ed recognition for one minute to man’s office as a distribution cen- answer the allegations. ter for such material. After the Member’s presentation of the ob- 10. Sam Rayburn (Tex.). 11. 96 CONG. REC. 1093, 81st Cong. 2d 9. 91 CONG. REC. 2665, 79th Cong. 1st Sess. Sess. 12. Sam Rayburn (Tex.).

1665 Ch. 11 § 25 DESCHLER’S PRECEDENTS

§ 25. Charges Before a of the House, thus impugning Governmental Agency or the integrity of those Mem- Committee bers responsible for its preparation, gave rise to a ques- Communist Party Affiliation tion of personal privilege. On May 21, 1959,(15) Mr. Clar- § 25.1 Testimony by a govern- ence Cannon, of Missouri, pre- ment witness before a gov- sented as involving a question of ernment agency charging a personal privilege a statement Member of the House as made before a Senate committee being a Communist gave rise inferring that he had provided the to a question of personal committee with an altered tran- privilege. script of a hearing held before a On Oct. 18, 1951,(13) Mr. Franck committee of the House. There- R. Havenner, of California, rising upon, the Speaker (16), recognized to a question of personal privilege, Mr. Cannon on a question of per- read, from the transcript of depor- sonal privilege. tation hearing proceedings, certain testimony by a government witness in which he [Havenner] § 26. Charges by Fellow was identified as a former mem- Member ber of the Communist Party. Upon hearing the objectional matter, Charges Involving Unnamed the Speaker (14) ruled that the Members transcript gave rise to a question of personal privilege. § 26.1 A statement on the floor by the Majority Leader Alteration of Official Tran- ‘‘there is nothing to stop a script man from making a damn fool of himself if he wants to’’ § 25.2 A statement before a which was carried in the Senate committee which press as referring to a par- challenged the integrity of ticular Member, gave rise to an official transcript of a hearing before a committee 15. 105 CONG. REC. 8868, 86th Cong. 1st Sess. See also 105 CONG. REC. 13. 97 CONG. REC. 13483, 82d Cong. 1st 11587, 11588, 86th Cong. 1st Sess., Sess. June 23, 1959. 14. Sam Rayburn (Tex.). 16. Sam Rayburn (Tex.).

1666 QUESTIONS OF PRIVILEGE Ch. 11 § 26

a question of personal privi- atomic secrets to the enemy lege. while under the influence of On Mar. 19, 1945,(17) Mr. Earl liquor, which the Member de- Wilson, of Indiana, rose to a ques- nied having made, gave rise tion of privilege: to a question of personal privilege. THE SPEAKER: (18) For what purpose ( ) does the gentleman from Indiana rise? On May 5, 1952, 19 Mr. Edwin MR. WILSON: Mr. Speaker, I rise to a Arthur Hall, of New York, pre- point of personal privilege. sented as involving a question of THE SPEAKER: The gentleman will personal privilege several news- state the ground for the question of paper articles in which he was at- personal privilege. tributed as a source of the state- MR. WILSON: Mr. Speaker, the ground on which I make my request is ment that other Members ‘‘were the report which has gone all over the in all probability giving away land through the press, leaving the in- atomic secrets to the enemy while ference that the distinguished majority under the influence of liquor.’’ leader referred to me in his remarks There ensued some discussion as that there is nothing to stop a man to the validity of the question of making a damn fool of himself if he personal privilege, during the wants to. Also, Mr. Speaker, the concluding course of which Mr. Hall denied sentence in which the majority leader having made the statement. The ( ) is quoted as saying, now that it has Speaker 20 then recognized him served its purpose, he agrees to erase to debate the question of personal his remarks from the Record. privilege. THE SPEAKER: If the gentleman from Indiana is certain that the gentleman Improper Political Influence from Massachusetts was referring to him, the Chair thinks he has a right to § 26.3 A newspaper article proceed on the question of personal which stated that one Mem- privilege. ber had involved the name of The Chair recognizes the gentleman from Indiana. another Member as secretary of a corporation, reported to § 26.2 Statements in the press be a party to a government that a Member had said contract in relation to which other Members were giving ‘‘gross political interference

17. 91 CONG. REC. 2415, 2416, 79th 19. 98 CONG. REC. 4787, 4788, 82d Cong. Cong. 1st Sess. 2d Sess. 18. Sam Rayburn (Tex.). 20. Sam Rayburn (Tex.).

1667 Ch. 11 § 26 DESCHLER’S PRECEDENTS

and influence’’ were alleged, ical smear show. In ruling on the gave rise to a question of question of personal privilege, the personal privilege. Speaker (3) stated: On July 16, 1958,(1) Mr. Perkins The Chair has read the statement of the gentleman from Michigan [Mr. Bass, of New Hampshire, rose to a Hoffman], and upon examination the question of personal privilege and Chair feels that the words ‘‘disgraceful was recognized to reply to a news- abuse of personal power,’’ and also paper article which stated that where it is stated that ‘‘political smear show’’ justify the establishment of the Mr. Oren Harris, of Arkansas, had point made by the gentleman. involved the name of Mr. Bass as The Chair recognizes the gentleman secretary of a corporation reported for one hour. to be a party to a government contract in relation to which ‘‘gross Traitorous Acts political interference and influ- § 26.5 A Member was recog- ence were alleged.’’ nized on a question of per- Abuse of Power sonal privilege to answer a newspaper article which pur- § 26.4 A Member’s press re- portedly quoted him as im- lease charging another Mem- plying that three Members of ber with an abuse of per- the House may have been sonal power and of spon- guilty of traitorous acts. soring a political smear was On Jan. 28, 1944,(4) Mr. Samuel held to give rise to a ques- A. Weiss, of Pennsylvania, rose tion of personal privilege. and presented as a matter of personal privilege a newspaper arti- On Mar. 30, 1953,(2) Mr. Clare cle in which he was quoted as say- E. Hoffman, of Michigan, rising to ing ‘‘if the grand jury that in- a question of personal privilege, dicted thirty for traitorous acts recalled the attention of the House cently had gone another step they to a press release distributed by would have indicted three Mem- another Member in which he [Mr. bers of Congress.’’ At the conclu- Hoffman] was charged with a dis- sion of the Member’s statement of graceful abuse of personal power the question, the Speaker pro and accused of sponsoring a polit- tempore (5) stated:

1. 104 CONG. REC. 13989, 85th Cong. 3. Joseph W. Martin, Jr. (Mass.). 2d Sess. 4. 90 CONG. REC. 876, 877, 78th Cong. 2. 99 CONG. REC. 2468, 2469, 83d Cong. 2d Sess. 1st Sess. 5. John W. McCormack (Mass.).

1668 QUESTIONS OF PRIVILEGE Ch. 11 § 26

The Chair has read the news item a question of personal privi- referred to by the gentleman from lege. Pennsylvania [Mr. Weiss]. The Chair feels it raises a matter of personal On Mar. 4, 1942,(8) Mr. Martin privilege. Dies, Jr., of Texas, rising to a The gentleman from Pennsylvania is question of personal privilege, recognized. read from a newspaper article § 26.6 A newspaper statement which quoted Mr. Thomas H. quoting a Member of the Eliot, of Massachusetts, as House as saying that a col- ‘‘issuing the direct lie charge’’ to (9) league was a ‘‘pimp of Joe Mr. Dies. The Speaker granted Mr. Dies recognition on a question Stalin’’ gave rise to a ques- of personal privilege tion of personal privilege. On Jan. 13, 1949,(6) Mr. Clare § 26.8 A press release issued by E. Hoffman, of Michigan, rose to a a Member containing allega- question of personal privilege to tions impugning the motives call attention to a newspaper that and veracity of another purported to quote another Mem- Member gave rise to a ques- ber of the House as saying that tion of personal privilege. Mr. Hoffman was a ‘‘pimp of Joe On July 28, 1970,(10) Mr. Augus- Stalin.’’ At the conclusion of Mr. tus F. Hawkins, of California, rose Hoffman’s preliminary statement, to a question of personal privilege: the Speaker (7) said: MR. HAWKINS: Mr. Speaker, I rise to The Chair believes the gentleman a question of personal privilege. from Michigan has stated grounds for THE PEAKER (11) addressing the House on a question of S : The gentleman will personal privilege. The gentleman from state his question of personal privilege. Michigan is recognized. Mr. HAWKINS: Mr. Speaker, the gentleman from Illinois (Mr. Crane), in a Impugning Veracity recent press release which I send to the desk, has made certain allegations § 26.7 An article in a news- with respect to the additional views which I filed to accompany the report paper quoting a Member of of the Select Committee To Investigate the House as ‘‘issuing the direct lie charge’’ to another 8. 88 CONG. REC. 1920, 77th Cong. 2d Member was held to present Sess. 9. Sam Rayburn (Tex.). 6. 95 CONG. REC. 266, 81st Cong. 1st 10. 116 CONG. REC. 26002, 91st Cong. 2d Sess. Sess. 7. Sam Rayburn (Tex.). 11. John W. McCormack (Mass.).

1669 Ch. 11 § 26 DESCHLER’S PRECEDENTS

U.S. Military Involvement in South- Remarks Made Under Leave to east Asia. His allegations include Revise and Extend charges which directly impugn my motives and veracity in submitting those § 27.2 Although a question of additional views. I therefore rise to a question of personal privilege to re- personal privilege may not spond to the statement of the gen- be raised to words uttered in tleman from Illinois. debate at the time, such a THE SPEAKER: The Chair has exam- question may be based on ob- ined the press release sent to the desk by the gentleman from California (Mr. jectionable remarks inserted Hawkins), and the Chair is of the opin- by a Member in his speech ion that the gentleman from California under leave to revise and ex- has stated a question of personal privi- tend his remarks. lege under rule IX of the rules of the House. On June 24, 1937,(13) Mr. Clare The gentleman from California (Mr. E. Hoffman, of Michigan, rose to Hawkins) is recognized. question of personal privilege, stating as the grounds for his action not only certain statements § 27. Words Uttered in De- made by a Member during House bate; Charges Inserted debate, but also a statement in- in the Record serted in the Record of the same day by another Member under Floor Debate as Basis for leave to revise and extend his re- Privilege marks. In his ruling granting recognition to Mr. Hoffman, the § 27.1 A question of personal Speaker (14) made the following privilege may not be based clarifying statement: upon language uttered upon THE SPEAKER: The gentleman from the floor of the House in de- Michigan [Mr. Hoffman] has presented bate, the remedy being the a question of personal privilege, based demand that the objection- upon two propositions. The first is to able words be taken down language inserted in the Record pur- when spoken. ported to have been uttered by the gentleman from Texas [Mr. Maverick], This precedent was occasioned which language appears on page 6162 during certain House proceedings on Feb. 6, 1950.(12) 13. 81 CONG. REC. 6309, 6310, 75th Cong. 1st Sess. For an additional il- 12. 96 CONG. REC. 1514, 81st Cong. 2d lustration see 92 CONG. REC. 5000, Sess. See § 11, supra, for a discus- 79th Cong. 21 Sess., May 14, 1946. sion of this precedent. 14. William B. Bankhead (Ala.).

1670 QUESTIONS OF PRIVILEGE Ch. 11 § 27 of the Record of June 22, which the Record of the same date the gentleman gentleman from Michigan [Mr. Hoff- from Illinois [Mr. Sabath] made certain man] has quoted. statements, as published in the Record, The rule is—and it has been sus- of which the gentleman from Michigan tained and supported by the practice [Mr. Hoffman] complains. and precedents for many years—when If, as a matter of fact, the gentleman offensive language is uttered upon the from Illinois inserted in the Record floor by a Member reflecting in any- matters not actually stated by him wise on a fellow Member, or language upon the floor at the time which gave is uttered to which the offending Mem- offense to the gentleman from Michi- ber desires to take exception, it is the gan, it was then the privilege of the duty of such Member instantly to exer- gentleman from Michigan to raise that cise his privilege and demand that the question, as he has now raised it, as a offending words be taken down. This matter of personal privilege when his would give the House an opportunity attention was called to the offending to pass judgment upon whether the language. language should be retained in the Record, expunged, or other action Strike-breaking Activities taken. By confession, the gentleman from § 27.3 A letter inserted in the Michigan did not avail himself of that Congressional Record by a opportunity, explaining he did not do Senator alleging that a Mem- so probably because he was tempo- ber was gathering arms and rarily absent from the floor when the assembling a private army to gentleman from Texas used said language. Under such circumstances, of march against workers on course, the absence of the Member strike was held to give rise from the floor would be no justification to a question of personal for him to be made an exception to the privilege. rule. It is to be assumed that he is on (15) the floor of the House at all times dur- On Apr. 11, 1938, Mr. Clare ing the session of the House. E. Hoffman, of Michigan, pre- The Chair is therefore of the opinion sented as involving a question of that on that point of personal privilege personal privilege a letter inserted the gentleman from Michigan [Mr. in the Congressional Record by Hoffman] is not entitled to the floor on Senator Alben W. Barkley, of Ken- a question of personal privilege under tucky, which contained the fol- the rules and practices of the House. ... lowing statement: The Chair stated there are two When men like Congressman Clare grounds upon which the gentleman E. Hoffman, of Michigan, openly boast from Michigan [Mr. Hoffman] bases his question of personal privilege. The sec- 15. 83 CONG. REC. 5235, 75th Cong. 3d ond ground is that on page 6161 of the Sess.

1671 Ch. 11 § 27 DESCHLER’S PRECEDENTS

that they will assemble a strike- marks that another Member breaking private arsenal and private had placed in the Record army to march against workers in this country, it seems to me that lovers of ‘‘scurrilous’’ matter was held democracy and friends of workingmen to give grounds for a ques- must no longer remain silent. tion of personal privilege. In his ruling granting recogni- On Aug. 27, 1940,(17) Mr. Jacob tion to the Member, the Speak- Thorkelson, of Montana, rising to er (16) said: a question of personal privilege, The gentleman from Michigan rises read a statement inserted in the to a question of personal privilege Congressional Record by Mr. Ad- based upon language he has already olph J. Sabath, of Illinois, under quoted and which will appear in the an extension of remarks, which Record, as taken from the Appendix of accused him of ‘‘placing 210 full the Congressional Record, page 1256. pages of scurrilous matter’’ in the Of course, the question of whether or Record. Protracted debate on the not a matter constitutes a basis for ris- question ensued, at the conclusion ing to address the House on a question of which the Speaker,(18) on hear- of personal privilege under the rules is in many instances in what may be ing objection to a unanimous-con- called the twilight zone of parliamen- sent request of Mr. Sabath that tary discretion on the part of the the remarks be expunged from the Speaker, but the Chair has read the Record, recognized Mr. Thorkelson quotation to which the gentleman from on a question of personal privi- Michigan refers, and the Chair is of lege. the opinion that, at least by liberal construction of the rights of Members, Promoting Religious Strife which the Chair is always disposed to grant, the gentleman from Michigan is § 27.5 An insertion in the within his rights in rising to a question of personal privilege, because the al- Record in an extension of re- leged language might bring into ques- marks of a charge that a tion the rights, reputation, and conduct Member seeks to promote re- of a Member of the House. ligious strife, gave rise to a Therefore, the Chair recognizes the gentleman from Michigan on a ques- question of personal privi- tion of privilege. lege. On Apr. 7, 1943,(19) Mr. John E. Placing ‘‘Scurrilous’’ Matter in Rankin, of Mississippi, rose and the Record 17. 86 CONG. REC. 11046–49, 11150–58, § 27.4 A statement by a Mem- 76th Cong. 3d Sess. ber in his extension of re- 18. William B. Bankhead (Ala.). 19. 89 CONG. REC. 3062, 78th Cong. 1st 16. William B. Bankhead (Ala.). Sess.

1672 QUESTIONS OF PRIVILEGE Ch. 11 § 27 proposed as a question of personal tion of personal privilege, called privilege to call attention to cer- the attention of the House to Sen- tain language inserted in the Con- ate remarks appearing in the Con- gressional Record by Mr. Emanuel gressional Record implying that as Celler, of New York, in an exten- Chairman of the Committee on sion of remarks charging him (Mr. Naval Affairs he had engaged in a Rankin) with promoting religious ‘‘disgraceful effort to cram down a strife, demonstrating thereby his number of ‘pork barrel’ provisions’’ contempt for the spirit and traditions of America. Upon hearing in a pending river and harbor bill the objectionable remarks the by including in it a meritorious Speaker (20) said: proposal, for purposes of obtaining votes for the other items. In rul- . . . The Chair believes that the language not being spoken on the floor ing on the question of personal and no recourse being had at that privilege, the Speaker (2) stated: time, is a reflection on the gentleman from Mississippi [Mr. Rankin] and the The Chair is convinced that the Chair recognizes the gentleman for 1 question is a very close one, but the hour. Chair is going to hear the gentleman from Texas. Criticism of House Members by a Senator § 27.7 A Senator’s action in inserting in the Record certain § 27.6 Insertion in the Record roll call votes of the House of Senate remarks charging a together with critical com- chairman of a House comment and an editorial critical mittee with making a ‘‘dis- of the House gave rise to a graceful effort to cram down question of personal privi- on a number of ‘pork barrel’ lege, where the inserted ma- provisions’’ by insisting on a terial identified individual meritorious provision in an Members and their votes. omnibus bill to get votes for On July 12, 1956,(3) the Speak- the other items, gave rise to er (4) recognized Mr. Clare E. Hoff- a question of personal privi- man, of Michigan, on a question of lege. personal privilege to call the at- On Mar. 3, 1942,(1) Mr. Joseph tention of the House to a news- J. Mansfield, of Texas, on a ques- 2. Sam Rayburn (Tex.). 20. Sam Rayburn (Tex.). 3. 102 CONG. REC. 12522, 12523, 84th 1. 88 CONG. REC. 1880, 77th Cong. 2d Cong. 2d Sess. Sess. 4. Sam Rayburn (Tex.).

1673 Ch. 11 § 27 DESCHLER’S PRECEDENTS paper editorial and certain re- piece of tax legislation Congress ever marks by Senator Hubert Hum- enacted.’’ phrey, of Minnesota, in the Con- In his decision granting recogni- gressional Record, which described tion to the Member, the Speak- House action on a particular bill er (6) said: as ‘‘cynical politicking’’ and which alleged that the House was guilty The Chair feels that under the cir- of ‘‘shabby conduct.’’ The material cumstances the charges and allusions also gave rise to a question of the made in the article just read by the privilege of the House. gentleman from Missouri are a reflection on him to such an extent that he § 27.8 A newspaper column in may claim the right of personal privi- which a bill to exempt a lege. Member’s educational foundation from tax laws was de- § 27.9 A Senator’s accusation, scribed as coming ‘‘as near to reported in the Record, making suckers out of all the charging that a Member of rest of us as any piece of tax the House inserted in the legislation Congress ever en- Record an intemperate, vitu- acted,’’ reprinted in the Ap- perative, and libelous attack pendix of the Record at the on an individual, was held to request of a Senator, gave give rise to a question of per- rise to a question of personal sonal privilege. privilege in the House. On June 30, 1939,(7) Mr. Clare On Jan. 28, 1958,(5) Mr. Clar- E. Hoffman, of Michigan, rose to a ence Cannon, of Missouri, pre- question of personal privilege to sented as involving a question of call attention to a statement made personal privilege a newspaper in the Senate by Senator Joel column inserted in the Congres- Bennett Clark, of Missouri, charg- sional Record by Senator Albert ing Mr. Hoffman with having in- A. Gore, of Tennessee. The column referred to a bill to exempt Mr. serted in the Record an intem- Cannon’s educational foundation perate, vituperative, and libelous from the tax laws in the following attack on an individual. The language: Speaker (8) then recognized Mr. . . . ‘‘It came as near to making suckers out of all the rest of us as any 6. Sam Rayburn (Tex.). 7. 84 CONG. REC. 8468, 8469, 76th 5. 104 CONG. REC. 1202, 85th Cong. 2d Cong. 1st Sess. Sess. 8. William B. Bankhead (Ala.).

1674 QUESTIONS OF PRIVILEGE Ch. 11 § 27

Hoffman on a question of personal nized the Member on a question of privilege. personal privilege.

Charges Impugning Veracity § 27.11 A Member’s insertion in the Record of a statement § 27.10 A statement in an ex- charging that another Mem- tension of remarks of a Mem- ber echoed in the House a ber asserting that another ‘‘typical fascist lie,’’ was held Member had brought dis- to give rise to a question of honor and discredit on his personal privilege. office by his use of scurrilous On Apr. 25, 1944,(11) Mr. Clare language and alleging that E. Hoffman, of Michigan, pre- he had distorted the words of sented as involving a question of the President was held to personal privilege a statement in- present a question of per- serted in the Congressional sonal privilege. Record by Mr. Herman P. On June 19, 1940,(9) Mr. Clare Eberharter, of Pennsylvania, al- E. Hoffman, of Michigan, on a leging that Mr. Hoffman had question of personal privilege, echoed in the House a ‘‘typical fas- called the attention of the House cist lie.’’ In his ruling granting to certain language (set out below) recognition to Mr. Hoffman, the ( ) inserted in the Congressional Speaker 12 observed: Record by Mr. Donald L. O’Toole, The Chair thinks the statement in of New York, under permission to the Record which makes charges extend his remarks: against the gentleman from Michigan amounts to a question of personal It is not enough that the Member privilege. from Michigan should bring dishonor and discredit upon the high position § 27.12 A letter printed in the that he occupies by his scurrilous lan- Congressional Record Appen- guage in regard to the highest office in dix, in which certain state- the land, but he also feels compelled to ments made by a Member distort the words of the President. were said to be untruthful, Upon hearing the objectionable gave rise to a question of remarks, the Speaker (10) recog- personal privilege.

9. 86 CONG. REC. 8642, 76th Cong. 3d 11. 90 CONG. REC. 3696, 78th Cong. 2d Sess. Sess. 10. William B. Bankhead (Ala.). 12. Sam Rayburn (Tex.).

1675 Ch. 11 § 27 DESCHLER’S PRECEDENTS

On June 18, 1958,(13) the Speak- Congress of selling his vote, and this is (14) carried forward in the second para- er recognized Mr. Clarence graph. Cannon, of Missouri, on a ques- The Chair thinks the gentleman has tion of personal privilege after Mr. stated a question of personal privilege Cannon directed attention to a let- and therefore, recognizes the gentleman from Minnesota [Mr. H. Carl ter appearing in the Appendix to Andersen]. the Congressional Record which described certain material attrib- Implying Reprehensibility uted to him as a ‘‘lie.’’ § 28.2 A newspaper article referring to a Member as ‘‘rep- § 28. Published Charges of rehensible’’ or ‘‘punk’’ gave Impropriety rise to a question of personal privilege. ‘‘Vote Selling’’ On Jan. 25, 1944,(17) Mr. John E. Rankin, of Mississippi, rose to § 28.1 A newspaper article ac- a question of personal privilege cusing a Member of selling and was recognized to reply to a his vote gave rise to a ques- newspaper article in which he was tion of personal privilege. referred to as ‘‘reprehensible’’ Rankin and ‘‘punk’’ Rankin. On July 24, 1957,(15), Mr. H. Carl Andersen, of Minnesota, on a Questionable Business Associa- question of personal privilege, tions called the attention of the House to a newspaper article which in- § 28.3 Newspaper articles ac- cluded allegations of his involve- cusing a Member of pro- ment in a conflict-of-interest case. moting and participating in After receipt of the objectionable an organization being inves- articles, the Speaker (16) stated: tigated by a Senate investigating committee gave rise The Chair has read the headline, to which the gentleman refers, and it to a question of personal does, in effect, accuse a Member of privilege. On July 8, 1946,(18) Mr. Andrew 13. 104 CONG. REC. 11609, 85th Cong. J. May, of Kentucky, presented as 2d Sess. 14. Sam Rayburn (Tex.).1 17. 90 CONG. REC. 751, 78th Cong. 2d 15. 103 CONG. REC. 12583, 85th Cong. Sess. 1st Sess. 18. 92 CONG. REC. 8391, 79th Cong. 2d 16. Sam Rayburn (Tex.). Sess.

1676 QUESTIONS OF PRIVILEGE Ch. 11 § 29 involving a question of personal This precedent was occasioned privilege certain newspaper arti- by certain House proceedings on cles which were submitted to the Nov. 22, 1967.(20) Speaker’s desk. Thereupon, the Speaker (19) stated as follows: § 29. Published Charges of THE SPEAKER: The Chair has looked Illegality over these papers and headlines, as well as the body of the articles. One Unspecified Illegal Acts headline states ‘‘Documents show May had financial stake in Garsson’s em- § 29.1 A newspaper article pire.’’ charging that a Member did The article further states: something illegal in his rep- Documentary evidence that Rep- resentative capacity gave resentative May, Democrat, of Ken- rise to a question of personal tucky, chairman of the House Mili- tary Committee, had a financial in- privilege. terest in the Illinois munitions em- (1) pire he is said to have promoted at On Jan. 18, 1954, the Chair the War Department and his vehe- recognized Mr. Clare E. Hoffman, ment denial featured explosive development yesterday before the Senate of Michigan: War Investigation Committee. MR. HOFFMAN of Michigan: Mr. The Chair thinks that these entitle Speaker, I rise to a question of personal privilege. I have previously sub- the gentleman to the question of permitted the question to the Speaker. sonal privilege in his Representative THE SPEAKER: (2) The Chair may say capacity, therefore, it recognizes the that the gentleman from Michigan [Mr. gentleman from Kentucky [Mr. May]. Hoffman] has very kindly given him the opportunity of looking over the Ethnic Slur question of personal privilege. In one instance it is stated that the gen- § 28.4 On one occasion, a Mem- tleman did something illegal in his ber took the floor for a one- representative capacity, so therefore minute speech to respond to the gentleman qualifies to present his a newspaper article which question of personal privilege. included a reference to him 20. 113 CONG. REC. 33693, 90th Cong. as ‘‘one of the few Italian 1st Sess. See § 22.4, supra, for a de- American undesirables in tailed discussion of this precedent. Congress.’’ 1. 100 CONG. REC. 388, 83d Cong. 2d Sess. 19. Sam Rayburn (Tex.). 2. Joseph W. Martin, Jr. (Mass.).

1677 Ch. 11 § 29 DESCHLER’S PRECEDENTS

Forgery tion to a newspaper article charging that he had received an illegal § 29.2 A statement in a news- fee in a matter connected with his paper accusing a Member of work as a Member. After exam- forgery constituted sufficient ining the article, the Speaker (6) grounds for raising a ques- recognized Mr. Wood to proceed tion of personal privilege. on a question of personal privilege. On June 8, 1950,(3) Mr. Clare E. Hoffman, of Michigan, offered as a Tax Irregularities question of personal privilege a statement appearing in a news- § 29.4 A newspaper article paper alleging that the Member charging a Member with in- had ‘‘stooped to using outright for- volvement in a tax scandal gery in a strikebreaking attempt.’’ gave rise to a question of In his ruling granting recognition, personal privilege. the Speaker (4) stated that suffi- On Feb. 4, 1954,(7) Mr. Emanuel cient grounds to constitute a ques- Celler, of New York, sought the tion of personal privilege had been floor on a question of personal privilege, and read to the Chair stated. headlines from several newspaper articles charging him (Mr. Celler) Receipt of Illegal Fees with involvement in a tax scandal. § 29.3 A newspaper article After the presentation of the objectionable articles to the Chair, charging that a Member of the Speaker pro tempore (8) stated: the House received an illegal fee in a matter connected The Chair has examined the headlines and the newspaper articles and with his work as a Member believes the gentleman has stated a was held to give rise to a question of personal privilege. The gen- question of personal privi- tleman is recognized. lege. Criminal Conspiracy, Perjury, On June 15, 1950,(5) Mr. John and Tax Evasion S. Wood, of Georgia, rose to a question of privilege to call atten- § 29.5 Newspaper accounts of a grand jury indictment of a 3. 96 CONG. REC. 8331, 81st Cong. 2d Sess. 6. Sam Rayburn (Tex.). 4. Sam Rayburn (Tex.). 7. 100 CONG. REC. 1353, 1354, 83d 5. 96 CONG. REC. 8653, 81st Cong. 2d Cong. 2d Sess. Sess. 8. Charles A. Halleck (Ind.).

1678 QUESTIONS OF PRIVILEGE Ch. 11 § 30

Member for alleged criminal question of personal privilege and conspiracy, perjury, and tax presented a publication in which evasion gave rise to a ques- he was accused of sedition. In rul- tion of personal privilege. ing on the question, the Speak- er (12) said: On Apr. 19, 1972,(9) Mr. Cornelius E. Gallagher, of New THE SPEAKER: . . . [T]he Chair Jersey, rising to a question of per- states that any pamphlet or newspaper or document that accuses the gen- sonal privilege, stated that he tleman from Michigan [Mr. Hoffman] wished to answer charges stem- of being seditious certainly presents a ming from published accounts of a question of personal privilege. grand jury indictment brought The gentleman is recognized. against him for alleged criminal conspiracy, perjury, and tax evasion. At the conclusion of his § 30. Published Charges statement, the Speaker (10) grant- Involving Legislative ed Mr. Gallagher recognition for Conduct one hour on a question of personal privilege. Misuse of Public Funds Sedition § 30.1 A newspaper article to the effect that certain union § 29.6 Any pamphlet, news- delegates ‘‘left for home de- paper, or document which termined to raise hell about accuses a Member of being the misuse of government seditious presents a question funds’’ by a Member gave of personal privilege. rise to a question of personal On Mar. 26, 1946,(11) Mr. Clare privilege. E. Hoffman, of Michigan, rose to a On Feb. 22, 1945,(13) Mr. Clare E. Hoffman, of Michigan, on a 9. 118 CONG. REC. 13491–97, 92d Cong. 2d Sess. question of personal privilege, 10. Carl Albert (Okla.). called the attention of the House 11. 92 CONG. REC. 2624, 79th Cong. 2d to a newspaper article which stat- Sess. For additional illustrations ined that certain union delegates volving accusations of sedition, see 91 CONG. REC. 12456, 79th Cong. 1st 90 CONG. REC. 816, 78th Cong. 2d Sess., Dec. 20, 1945; 90 CONG. REC. Sess., Jan. 27, 1944. 2908, 78th Cong. 2d Sess., Mar. 22, 12. Sam Rayburn (Tex.). 1944; 90 CONG. REC. 2519, 78th 13. 91 CONG. REC. 1368, 79th Cong. 1st Cong. 2d Sess., Mar. 13, 1944; and Sess.

1679 Ch. 11 § 30 DESCHLER’S PRECEDENTS from Mr. Hoffman’s district left Dereliction of Duties for home ‘‘determined to raise hell about [his] misuse of government § 30.3 A newspaper editorial funds.’’ The Speaker pro tem- implying nonperformance by pore (14) stated his belief that Mr. a Member of his representa- Hoffman had presented a question tive duties in relation to the of personal privilege and recog- poor people of his constitu- nized him for that purpose. ency gave rise to a question of personal privilege. Deceptive Conduct On June 14, 1938,(17) Mr. John J. Boylan, of New York, presented § 30.2 An advertisement in a as involving a question of personal newspaper charging that a privilege a newspaper editorial Member ‘‘sneaked’’ a perma- which stated ‘‘Isn’t it about time nent committee through the for the poor people of the 15th dis- House gave rise to a question trict of New York to ask them- of personal privilege. selves just whom Mr. Boylan rep- On Mar. 15, 1946,(15) Mr. John resents. He surely doesn’t rep- E. Rankin, of Mississippi, claim- resent them.’’ After the editorial ing the floor on a question of per- had been submitted to the Speak- sonal privilege, read a newspaper er (18) for his inspection, he ruled: advertisement charging that, ‘‘In The Chair finds in one of the marked the confusion of the first day of paragraphs of the editorial an implica- the 1945 Congress, Rankin tion which the Chair thinks involves sneaked over a permanent House the gentleman’s dignity, standing, and Committee on Un-American Ac- reputation as a Member of the House. The Chair recognizes the gentleman tivities.’’ In his ruling recognizing from New York on a question of per- the Member on the question, the sonal privilege. Speaker (16) stated: The Chair thinks that the gentleman Confiscation of Evidence states a question of personal privilege in that the paper charges that he § 30.4 Newspaper headlines sneaked something over on the House. circulated through the mails The gentleman is recognized. indicating that a Member had confiscated evidence 14. John W. McCormack (Mass.). 15. 92 CONG. REC. 2328, 79th Cong. 2d 17. 83 CONG. REC. 9234, 75th Cong. 3d Sess. Sess. 16. Sam Rayburn (Tex.). 18. William B. Bankhead (Ala.).

1680 QUESTIONS OF PRIVILEGE Ch. 11 § 30

needed to prosecute certain was held to give rise to a individuals was held to in- question of personal privi- volve a question of personal lege. privilege. On June 7, 1944,(1) Mr. Howard On Sept. 29, 1941,(19) Mr. Ham- W. Smith, of Virginia, rose to a ilton Fish, Jr., of New York, rose question of personal privilege and to a question of personal privilege read from a newspaper article and sent to the desk extracts from charging him with leading a certain newspapers. The following ‘‘raid’’ in the House which could exchange then occurred: leave price stabilization adminis- THE SPEAKER: (20) The Chair sees trators helpless to combat rising here what seems to be the front page prices and which could cripple of some newspaper. but it is not identi- war controls. In his ruling on Mr. fied here. MR. FISH: It is PM, a newspaper in Smith’s question of personal privi- ( ) New York. The Chair can see it on the lege, the Speaker 2 stated: front of the page. The Chair is of the opinion that the THE SPEAKER: Does this paper cir- language read is a sufficient reflection culate through the mails? on the gentleman to raise the question MR. FISH: It does circulate through of personal privilege, and the Chair the mails, Mr. Speaker. will recognize the gentleman. THE SPEAKER: In large headlines covering more than half of the front page appear these words: Conflicts of Interest Ham Fish snatches evidence want- § 30.6 A newspaper article al- ed in U.S. Nazi hunt. leging improper lobbying ac- The Chair thinks the gentleman tivities by a Member to pre- states a question of personal privilege. serve his financial interests Crippling War Controls in a relative’s estate gave rise to a question of personal § 30.5 During World War II, a privilege. newspaper article charging a On June 6, 1962,(3) Mr. H. Carl Member with actions which Andersen, of Minnesota, rose to a could leave certain adminis- question of privilege regarding a trators helpless and which could cripple war controls 1. 90 CONG. REC. 5460, 78th Cong. 2d Sess. 19. 87 CONG. REC. 7576, 77th Cong. 1st 2. Sam Rayburn (Tex.). Sess. 3. 108 CONG. REC. 9792–97, 87th Cong. 20. Sam Rayburn (Tex.). 2d Sess.

1681 Ch. 11 § 30 DESCHLER’S PRECEDENTS newspaper article which alleged Abuse of Powers or Rank improper lobbying activities on his part to preserve his own financial § 30.8 A newspaper story to the interests in his brother’s estate. effect that a Member sullied congressional honor and The Speaker (4) then recognized held a congressional hearing Mr. Andersen on a question of for the political purpose of personal privilege. influencing a local election § 30.7 A Member was recog- gave rise to a question of nized on a question of per- personal privilege. sonal privilege following On July 20, 1953,(7) Mr. Clare publication of a newspaper E. Hoffman, of Michigan, as a column implying that he had question of personal privilege, of- introduced legislation to re- fered a newspaper editorial cap- peal excise taxes on cars and tioned ‘‘Representative Hoffman trucks at a time when the cli- Sullies Congressional Honor,’’ and ents of his law firm included which stated in part: a trucking firm. The immorality of holding a congressional hearing for the political purpose (5) On June 22, 1966, Mr. of influencing a local election gave off Charles E. Chamberlain, of Michi- such a stench that the full committee gan, rose to a question of privilege apparently wanted no part of it. to call attention to a newspaper The Speaker (8) then ruled on the column in which it was alleged question, observing: that he had introduced legislation The gentleman does not have to pro- to repeal excise taxes on cars and ceed any further. He has stated a ques- trucks but failed to list the name tion of personal privilege and is recog- of his law firm or its clients, in- nized for 1 hour. cluding a trucking firm, in the § 30.9 A newspaper article to Congressional Directory. After the the effect that a committee Member’s statement of the ques- chairman used a sub- tion, the Speaker (6) recognized committee for an improper him on a question of personal purpose was held to give rise privilege. to a question of personal privilege. 4. John W. McCormack (Mass.). 5. 112 CONG. REC. 13907, 13908, 89th 7. 99 CONG. REC. 9242, 9243, 83d Cong. Cong. 2d Sess. 1st Sess. 6. John W. McCormack (Mass.). 8. Joseph W. Martin, Jr. (Mass.).

1682 QUESTIONS OF PRIVILEGE Ch. 11 § 30

On July 21, 1953,(9) Mr. Clare ciary Committee to attempt personal E. Hoffman, of Michigan, rose on reprisals against those whom he dis- a question of personal privilege to likes.... call attention to a newspaper arti- A man with so little capacity for government himself seems scarcely fit for cle which asserted that he had the governing of his countrymen. used a subcommittee which he After hearing the objectionable had chaired to investigate the Air words, the Speaker (12) stated that Force for refusing to award a con- a question of personal privilege tract to certain constituents. The had been stated. Speaker (10) was of the opinion that Mr. Hoffman had stated a Improprieties as Committee question of personal privilege and Chairman recognized him for one hour. § 30.11 A newspaper article § 30.10 A newspaper editorial charging that the chairman charging a Member with hav- of a committee had ‘‘rammed ing no scruples about using through’’ a resolution pend- the power which seniority ing before his committee had brought him for per- gave rise to a question of sonal reprisals, and that he personal privilege. seemed unfit to govern, gave ( ) rise to a question of personal On July 16, 1962, 13 Mr. Clar- privilege. ence Cannon, of Missouri, sought the floor for a question of personal On July 12, 1955,(11) Mr. privilege and proceeded to discuss Francis E. Walter, of Pennsyl- a newspaper article charging that, vania, claiming the floor on a as Chairman of the Committee on question of personal privilege, Appropriations, he had ‘‘rammed read from a newspaper editorial which referred to him in the fol- through’’ a resolution pending be- lowing language: fore his committee, without allowing debate and without expla- He seems to have no scruples about nation. After the submission of using the power which seniority has brought him as a member of the Judi- the article to the Chair, the Speaker (14) recognized Mr. Can- 9. 99 CONG. REC. 9412–14, 83d Cong. 1st Sess. 12. Sam Rayburn (Tex.). 10. Joseph W. Martin, Jr. (Mass.). 13. 108 CONG. REC. 13681, 13682, 87th 11. 101 CONG. REC. 10304, 84th Cong. Cong. 2d Sess. 1st Sess. 14. John W. McCormack (Mass.).

1683 Ch. 11 § 30 DESCHLER’S PRECEDENTS non on a question of personal ‘‘stale lies and shabby cal- privilege. umnies’’ and inferring that the chairman of the com- § 30.12 A newspaper editorial mittee failed to give minority to the effect that a chairman members an opportunity to of a committee so discredited file minority views was held himself by irresponsible ac- to present a question of per- tions that his committee sonal privilege. voted to strip him of power (17) to name subcommittees gave On Jan. 16, 1941, Mr. How- rise to a question of personal ard W. Smith, of Virginia, pre- privilege. sented as involving a question of privilege a magazine article which ( ) On July 29, 1953, 15 Mr. Clare stated, ‘‘We do not have the space E. Hoffman, of Michigan, rising to at this time to disentangle and a question of personal privilege, answer all the stale lies and shab- read from a newspaper editorial by calumnies rehashed in the which asserted that he, as Chair- final report of the Smith com- man of the Committee on Govern- mittee’’ and which alleged that ment Operations, had so discred- the chairman of the committee ited himself by irresponsible ac- had failed to give minority Mem- tions that the committee voted to bers an opportunity to file minor- strip him of power to name sub- ity views with the majority report. committees. In his ruling granting The Speaker (18) then granted rec- the Member recognition on his ognition to Mr. Smith on the ques- question of personal privilege, the tion of personal privilege. Speaker (16) stated: The Chair believes that the gen- Avoidance of Committee Re- tleman is justified in rising to a ques- sponsibilities tion of personal privilege on the ground that the matter to which he § 30.14 A newspaper article to has referred is a reflection on him in his representative capacity. the effect that certain named Members of the House, who § 30.13 A statement in a maga- originally accused an indi- zine article asserting that a vidual of communistic affili- committee report contained ations, had ducked the com-

15. 99 CONG. REC. 10351, 83d Cong. 1st 17. 87 CONG. REC. 158, 77th Cong. 1st Sess. Sess. 16. Joseph W. Martin, Jr. (Mass.). 18. Sam Rayburn (Tex.).

1684 QUESTIONS OF PRIVILEGE Ch. 11 § 30

mittee session in which the so disgraceful as to reflect individual was cleared of upon the membership of the such charges, was held to in- House was held to be suffi- volve a question of personal cient grounds for a question privilege. of personal privilege. On Dec. 17, 1941,(19) Mr. Ever- On Feb. 18, 1936,(1) Mr. Thomas ett M. Dirksen, of Illinois, rose L. Blanton, of Texas, on a ques- and proposed as a question of per- tion of personal privilege, called sonal privilege to call attention to the attention of the House to a a newspaper article which as- newspaper editorial which read in serted that Mr. Dirksen and two part: other Members, who had origi- The case of the people of Washington nally accused David Lasser of against Thomas L. Blanton is clearly communistic affiliations, had posed. It is one of ignorant and preju- failed to attend the committee ses- diced domination over local appropria- sion when Lasser was cleared of tions by a Congressman whose chief reliance in an argument seems to be the charges. In his ruling granting epithets and fists. It is an important recognition to the Member, the case for Congress as well as for the Speaker (20 stated: voteless Capital City.... Indeed, the disgrace that such tactics The rule covering this matter states: bring upon the National Legislature— Questions of privilege shall be, aside from their deplorable effects first, those affecting the rights of the upon Washington—should result in a House collectively, its safety, dignity, speedy transfer of Mr. Blanton. and the integrity of its proceedings; second, the rights, reputation, and The Speaker (2) ruled that the conduct of Members individually in their representative capacity only. editorial gave rise to a question of personal privilege, observing: The Chair thinks the gentleman states a question of personal privilege. . . . Without entering into a discussion of the language which has been ‘‘Disgraceful’’ Conduct Reflect- read by the gentleman from Texas, the Chair clearly thinks that the publica- ing on the House tion which charges that his conduct has been so disgraceful as to reflect § 30.15 An insertion in a news- upon the Members of the House enti- paper editorial that the con- tles the gentleman to be heard on the duct of a Member had been question of privilege, and the Chair

19. 87 CONG. REC. 9913, 77th Cong. 1st 1. 80 CONG. REC. 2320, 74th Cong. 2d Sess. Sess. 20. Sam Rayburn (Tex.). 2. Joseph W. Byrns (Tenn.).

1685 Ch. 11 § 30 DESCHLER’S PRECEDENTS

therefore recognizes the gentleman see him, was held to give rise from Texas for 1 hour. to a question of personal § 30.16 A newspaper article privilege. charging that a Member of On Apr. 16, 1943,(5) Mr. Paul Congress had long disgraced Stewart, of Oklahoma, claimed himself by being ‘‘anti-United the floor for a question of personal Nations, antiSemitic, anti- privilege and proceeded to discuss Negro, [and] antilabor’’ was the contents of a notation on the held to involve a question of margin of a letter sent to two personal privilege. newspapers which asserted that the Member had visited the office On Jan. 8, 1945,(3) Mr. John E. of the director of the Office of Rankin, of Mississippi, on a ques- Price Administration ‘‘half drunk’’ tion of personal privilege, called and had ‘‘cussed out’’ the clerks the attention of the House to a there in such a manner that the newspaper article which repeated charges as described above. The director refused to see him. The Speaker (6) then ruled that a ques- Speaker (4) then ruled: tion of personal privilege had been The Chair believes that the gen- stated. tleman from Mississippi has stated a question that involves the privileges of the House, it being an attack on his in- Abuse of Franking Privilege tegrity as a Member of the House. § 30.18 A newspaper article Improper Conduct in Agency quoting a book containing an Dealings accusation that a Member permitted the use of his § 30.17 A notation on the mar- frank by one of questionable gin of a letter sent to the character gave rise to a ques- press to the effect that a tion of personal privilege. Member had visited the of- On Jan. 28, 1944,(7) Mr. Clare fice of the director of an E. Hoffman, of Michigan, on a agency while intoxicated and question of personal privilege, had ‘‘cussed out’’ the direc- called the attention of the House tor’s clerks in such a manner that the director refused to 5. 89 CONG. REC. 3471, 78th Cong. 1st Sess. 3. 91 CONG. REC. 107, 108, 79th Cong. 6. Sam Rayburn (Tex.). 1st Sess. 7. 90 CONG. REC. 879, 78th Cong. 2d 4. Sam Rayburn (Tex.). Sess.

1686 QUESTIONS OF PRIVILEGE Ch. 11 § 31 to a newspaper article quoting a statement, the Speaker (10) recog- book which asserted that the nized him for one hour. Member had permitted the use of his frank by a man of question- § 31.2 An article in a news- able character. The Speaker pro paper charging a Member of tempore (8) then recognized the the House as being ‘‘the most Member on the question of per- un-American politician’’ was sonal privilege. held to present a question of personal privilege. On Jan. 29, 1941,(11) Mr. Clare § 31. Published Charges E. Hoffman, of Michigan, on a Involving Patriotism question of personal privilege, called the attention of the House Generalized Allegations and to a newspaper article in which he Innuendos was identified as being ‘‘about the most un-American politician that § 31.1 A letter addressed to ever went to Congress.’’ The several newspapers and to Speaker (12) granted the Member Members of the House to the recognition, saying: effect that in Russia a cer- The Chair thinks that the gentleman tain Congressman would has stated a question of personal privi- have been liquidated long lege.... ago as an enemy of his coun- The Chair bases his opinion upon the words that the gentleman from try, gave rise to a question of Michigan refers to in this article, personal privilege. which refer to his un-Americanism. On July 3, 1947,(9) Mr. Clare E. The Chair thinks those words present Hoffman, of Michigan, offered as a charge which entitles the gentleman to rise to a question of personal privi- involving a question of personal lege. privilege a letter addressed to several newspapers and Members of § 31.3 Language in a news- the House which stated that, ‘‘In paper asserting that a Mem- Russia, Congressman Hoffman ber was among those who would have been liquidated long would divide the Nation and ago as an enemy of his country.’’ that he was a spokesman for Upon hearing Mr. Hoffman’s 10. Joseph W. Martin, Jr. (Mass.). 8. John W. McCormack (Mass.). 11. 87 CONG. REC. 348, 77th Cong. 1st 9. 93 CONG. REC. 8260, 80th Cong. 1st Sess. Sess. 12. Sam Rayburn (Tex.).

1687 Ch. 11 § 31 DESCHLER’S PRECEDENTS

the forces of betrayal was being one of the most influ- held to involve a question of ential spokesmen for Amer- personal privilege. ica’s fascists, isolationists On June 3, 1943,(13) Mr. Clare and labor baiters gave rise to E. Hoffman, of Michigan, rising to a question of personal privi- a question of personal privilege, lege. called the attention of the House On Jan. 13, 1948,(15) Mr. Clare to a newspaper article which stat- E. Hoffman, of Michigan, rising to ed: a question of personal privilege, Because labor recognizes this for read the statement below from a what it is, the fatal policy of defeat and news paper: disaster, labor too has been the target All during the war and since its end, of the slander of those who would di- Hoffman’s record has been one of con- vide our Nation in its hour of crisis stant support for the crackpot fringe of and peril. The Hoffmans, the Dieses, native fascism. A report on his activi- the Rickenbackers, and the forces of ties by the Friends of Democracy (vol. betrayal for whom they speak, have 3, No. 20) says: conspired against and viciously attacked the millions of men and women America’s Fascists, pro-Fascists, who are today providing the weapons isolationists, and labor-baiters have long recognized Representative Hoff- needed by the armed forces of democ- man as one of their most influential racy. spokesmen. The sharp-tongued Con- In his ruling on the question of gressman first gained attention from 14 Fascist circles in 1937 when he had personal privilege, the Speaker served in Congress 3 years. From stated: that time on, Hoffman, whose arch enemies have been Roosevelt, Stalin, The Chair must assume some lati- Britain, world cooperation, labor, tude. It is only by implication, the and aliens, has steadily risen to top Chair may say, that this impugns the prominence with the Nazi lovers. honor and integrity of the gentleman ... from Michigan [Mr. Hoffman]. It is a Today, this same Congressman is very close question. The Chair will rec- embarked on the boldest campaign of ognize the gentleman, but he wants it intimidation of newspapermen yet un- understood that it is a very close ques- dertaken by any individual or group in tion. the Congress, including the Committee on Un-American Activities. With few Fascist Sympathies exceptions, the press whose freedom he would curb maintains a monumental § 31.4 Language in a publica- silence. tion accusing a Member of After hearing the objectionable remarks, the Speaker pro tem- 13. 89 CONG. REC. 5294, 78th Cong. 1st Sess. 15. 94 CONG. REC. 121, 80th Cong. 2d 14. Sam Rayburn (Tex.). Sess.

1688 QUESTIONS OF PRIVILEGE Ch. 11 § 31 pore (16) granted the Member rec- sented as involving a question of ognition. personal privilege a newspaper article which contained statements § 31.5 A Member having been to the effect that he ‘‘had repeated charged in a newspaper arti- a dirty insinuation of Fascist cle with seeking to pave the propaganda concerning liberated way for fascism rose to a Poland’’ and that ‘‘from the trib- question of personal privi- une of the House of Representa- lege. tives he spoke like Goebbels.’’ The ( ) On Mar. 9, 1944, 17 Mr. Martin Speaker (20) granted the Member Dies, Jr., of Texas, claiming the recognition, saying, ‘‘The Chair floor on a question of personal thinks the gentleman is entitled privilege, read from a newspaper to speak on the question of per- article in which he was accused of sonal privilege under the state- seeking to pave the way for fascism in the United States. Inter- ment made by him.’’ rupting the Member’s recitation of § 31.7 Language in a pamphlet the article, the Speaker (18) inter- charging a Member of the jected, ‘‘The Chair thinks the gentleman has gone far enough to es- House with being a fascist tablish a question of privilege.’’ was held to give rise to a question of personal privi- § 31.6 A statement in a news- lege. paper article to the effect On Apr. 30, 1949,(1) the Speak- that a Member had repeated er (2) recognized Mr. Clare E. Hoff- an ‘‘insinuation of Fascist man, of Michigan, on a question of propaganda concerning lib- personal privilege following the erated Poland’’ and that he Member’s presentation, as the ‘‘spoke like Goebbels’’ was basis for raising the question, of a held to give rise to a ques- pamphlet identifying him as a fas- tion of personal privilege. cist. On Feb. 21, 1945,(19) Mr. Alvin E. O’Konski, of Wisconsin, pre- § 31.8 A newspaper article charging a Member with 16. Charles A. Halleck (Ind.). being a fascist and asserting 17. 90 CONG. REC. 2434, 78th Cong. 2d Sess. 20. Sam Rayburn (Tex.). 18. Sam Rayburn (Tex.). 1. 91 CONG. REC. 3955, 79th Cong. 1st 19. 91 CONG. REC. 1323, 79th Cong. 1st Sess. Sess. 2. Sam Rayburn (Tex.).

1689 Ch. 11 § 31 DESCHLER’S PRECEDENTS

that he stands for the violent has indicted George Sylvester Vierick, overthrow of the government Nazi propagandist; George Hill, Fish’s former secretary-clerk; and several oth- by force was held grounds ers for helping spread the gospel ac- for a question of personal cording to Hitler in the United States privilege. of America. On Jan. 27, 1944,(3) Mr. Clare The Speaker,(6) observing that E. Hoffman, of Michigan, on a the statement as read presented a question of personal privilege, question of personal privilege, rec- called the attention of the House ognized Mr. Hoffman for one hour. to a newspaper article which referred to him as a fascist and as- § 31.10 Newspaper remarks serted that he stands for the vio- that a Congressman by his lent overthrow of the government actions in Congress was ren- by force. The Speaker (4) then rec- dering a service to nazism ognized him on a question of per- was held to challenge the sonal privilege. Member’s patriotism and to raise a question of personal § 31.9 A newspaper article as- privilege. serting that a Member was ( ) wanted for questioning by a On May 28, 1942, 7 Mr. Clare federal grand jury that al- E. Hoffman, of Michigan, rose to a ready had indicted several question of personal privilege to Nazi sympathizers was held call attention to a newspaper arti- to give rise to a question of cle which stated ‘‘Congressman personal privilege. Hoffman, by his present actions in Congress, is rendering a service to (5) On Apr. 13, 1942, Mr. Clare nazi-ism.’’ On hearing the objec- E. Hoffman, of Michigan, on a tionable language, the Speaker (8) question of personal privilege, stated: called the attention of the House to a newspaper article which stat- The Chair holds that the language ed: printed in the Michigan paper, which contains the words ‘‘Congressman Hoff- Hoffman is wanted for questioning man, by his present actions in Con- by the Federal grand jury that already gress, is rendering a service to nazi- ism,’’ challenges the patriotism of the 3. 90 CONG. REC. 816, 78th Cong. 2d Sess. 6. Sam Rayburn (Tex.). 4. Sam Rayburn (Tex.). 7. 88 CONG. REC. 4724, 77th Cong. 2d 5. 88 CONG. REC. 3449, 77th Cong. 2d Sess. Sess. 8. Sam Rayburn (Tex.).

1690 QUESTIONS OF PRIVILEGE Ch. 11 § 31

gentleman from Michigan and raises a gave rise to a question of question of personal privilege. personal privilege. § 31.11 A pamphlet charging On July 14, 1953,(11) Mr. Robert that for four years a Member L. Condon, of California, on a and his committee have ob- question of personal privilege, scured activities of the Nazi called the attention of the House network, that their tactics to two newspaper articles which have been the tactics of asserted that not only was he Goebbels and that they jeop- barred from witnessing an atom ardized national unity, gave bomb test as a security risk but rise to a question of personal also that the Navy notified the privilege. commandants of all naval districts that he was to be considered per- On Sept. 24, 1942,(9) Mr. Martin sona non grata. The Speaker,(12) Dies, Jr., of Texas, claiming the after ruling that Mr. Condon had floor as a question of personal presented a question of personal privilege, read from a pamphlet privilege, recognized him for one which asserted that for four years hour. Mr. Dies and his committee had obscured activities of the Nazi § 31.13 Newspaper editorials network, that their tactics had charging that a Member was been the tactics of Goebbels and of playing low-grade politics seditionists, jeopardizing national and that he had participated unity. Upon concluding his state- in wrecking the country’s de- ment, the Member was recognized fense gave rise to a question by the Speaker (10) on a question of personal privilege. of personal privilege. On July 1, 1955,(13) Mr. Adam Conduct Inimical to National C. Powell, of New York, rose to a Security question of personal privilege and presented two newspaper edi- § 31.12 A newspaper story to torials charging that he was play- the effect that a Member was ing lowgrade politics and that he barred as a security risk clearly had a part in wrecking the from all naval districts and from witnessing nuclear tests 11. 99 CONG. REC. 8790, 83d Cong. 1st Sess. 9. 88 CONG. REC. 7441, 77th Cong. 2d 12. Joseph W. Martin, Jr. (Mass.). Sess. 13. 101 CONG. REC. 9741, 84th Cong. 1st 10. Sam Rayburn (Tex.). Sess.

1691 Ch. 11 § 31 DESCHLER’S PRECEDENTS country’s defense. In his ruling Member was ‘‘working with granting the Member recognition, Hitler and his agents in this the Speaker (14) stated: country’’ was held to give The Chair thinks that the editorials rise to a question of personal indicate that the gentleman from New privilege. York [Mr. Powell] is trying to wreck (17) the defense program and entitles him On Jan. 22, 1945, Mr. Clare to the floor on the question of personal E. Hoffman, of Michigan, rising to privilege. a question of personal privilege, read from a publication which Collaboration With a Foreign stated that he ‘‘was working with Enemy Hitler and his agents in this coun- § 31.14 A statement in a news- try to defeat the President’s policy of preparing America in the time paper implying that a Mem- of dangerous world conditions.’’ In ber collaborated with con- ruling on the question, the Speak- victed Nazi agents and in- er (18) gave his opinion that Mr. dicted fifth columnists gave Hoffman had stated a matter rise to a question of personal upon which he deserved recogni- privilege. tion on a question of personal On Mar. 27, 1944,(15) Mr. Clare privilege. E. Hoffman, of Michigan, rose and proposed as a question of personal § 31.16 A newspaper article privilege to call attention to a containing the statement newspaper article in which it was that a labor union required implied that he had collaborated no defense against a Con- with convicted Nazi agents and gressman ‘‘who would cover indicted fifth columnists. Having up for a gang of conspirators presented a matter of personal against our Nation’’ was held privilege, the Member was recog- to give rise to a question of nized by the Speaker pro tem- personal privilege. pore (16) to address the House on the question. On Mar. 23, 1945,(19) Mr. Clare E. Hoffman, of Michigan, claiming § 31.15 A publication stating the floor as a question of personal among other things that a 17. 91 CONG. REC. 417, 79th Cong. 1st 14. Sam Rayburn (Tex.). Sess. 15. 90 CONG. REC. 3128, 78th Cong. 2d 18. Sam Rayburn (Tex.). Sess. 19. 91 CONG. REC. 2665, 79th Cong. 1st 16. John W. McCormack (Mass.). Sess.

1692 QUESTIONS OF PRIVILEGE Ch. 11 § 32 privilege, read from a newspaper Nazi propaganda ring was article a statement which in ref- held to give rise to a ques- erence to him said: ‘‘The C.I.O. re- tion of personal privilege. quires no defense against a Con- On Mar. 2, 1943,(3) Mr. Clare E. gressman who would cover up for Hoffman, of Michigan, rising to a a gang of conspirators against our question of personal privilege, Nation.’’ On hearing the objection- read from a newspaper editorial able words, the Speaker (20) recog- the following statement: nized the Member on a question of Representative Clare Hoffman, of personal privilege. Michigan . . . who cooperated with the Nazi propaganda ring before Pearl § 31.17 A pamphlet identifying Harbor, wants to investigate us. a Member and his committee In his ruling granting recogni- as ‘‘the secret weapon with tion to the Member, the Speak- which Adolf Hitler hopes to er (4) declared, ‘‘The Chair thinks soften up our Nation’’ gave the gentleman states a point of rise to a question of personal personal privilege and he may privilege. proceed.’’ On Feb. 1, 1943,(1) Mr. Martin Dies, Jr., of Texas, presented as involving a question of personal § 32. Published Charges privilege a pamphlet which de- Impugning Veracity scribed the Member and his committee as ‘‘the secret weapon with Presenting Falsehoods which Adolf Hitler hopes to soften up our Nation for military con- § 32.1 A newspaper editorial quest.’’ Upon his presentation of charging a Member with the objectionable material, the falsehoods gave rise to a Member was recognized by the question of personal privilege. Speaker (2) for one hour. On Feb. 28, 1956,(5) Mr. Craig § 31.18 A newspaper editorial Hosmer, of California, claiming referring to a Member as one the floor on a question of personal who cooperated with the 3. 89 CONG. REC. 1490, 78th Cong. 1st 20. Sam Rayburn (Tex.). Sess. 1. 89 CONG. REC. 474, 78th Cong. 1st 4. Sam Rayburn (Tex.). Sess. 5. 102 CONG. REC. 3477, 84th Cong. 2d 2. Sam Rayburn (Tex.). Sess.

1693 Ch. 11 § 32 DESCHLER’S PRECEDENTS privilege, read from a newspaper § 33. Criticism of Members editorial charging him with false- Collectively hoods during House consideration of a certain bill. Following the Criticism of Unnamed Mem- submission of the editorial to the bers Chair, the Speaker pro tempore (6) § 33.1 A statement in a radio stated: address by a cabinet officer that persons advocating a The Chair thinks the gentleman certain measure were delib- raises a question of personal privilege.The gentleman from California is erately misleading the public recognized. was held not to give grounds for a question of personal Stating Lies privilege to a Member who had advocated the measure, § 32.2 A newspaper article in but who had not been named which a statement of a Mem- in the address. ber was characterized as ‘‘an On Apr. 17, 1935,(9) Mrs. Edith outright lie,’’ gave rise to a Nourse Rogers, of Massachusetts, question of personal privi- as an advocate of the repeal of a lege. certain textile processing tax, pre- ( ) sented as involving a question of On Mar. 11, 1957, 7 Mr. Frank personal privilege the statement T. Bow, of Ohio, submitted as in- made during a radio address by a volving a question of personal cabinet officer that persons advo- privilege a newspaper article in cating the repeal of the tax were deliberately misleading the public. which a statement he had made A point of order was made by Mr. was characterized as ‘‘an outright Hampton P. Fulmer, of South lie.’’ The Speaker (8) said: Carolina, that she had not stated a question of personal privilege. In the opinion of the Chair the gen- In his ruling sustaining the point tleman has stated a question of per- of order, the Speaker (10) stat- sonal privilege. ed: (11) The gentleman is recognized. 9. 79 CONG. REC. 5854, 5855, 74th 6. John W. McCormack (Mass.). Cong. 1st Sess. 7. 103 CONG. REC. 3395, 85th Cong. 1st 10. Joseph W. Byrns (Tenn.). Sess. 11. 79 CONG. REC. 5855, 74th Cong. 1st 8. Sam Rayburn (Tex.). Sess.

1694 QUESTIONS OF PRIVILEGE Ch. 11 § 33

The Chair will state that the rule MR. HOFFMAN: It does not so refer, provides that a Member may rise to a but it refers to all those Members of question of personal privilege where the House who voted in opposition to the rights, reputation, and conduct of that bill. . . . Members in their individual capacity THE SPEAKER: The Chair will read only are assailed. that part of the rule which affects The name of the gentlewoman from Members, so far as personal privilege Massachusetts was not mentioned, in is concerned: the first place, and the Chair fails to see where there is a question of per- Second, the rights, reputation, and sonal privilege involved in the state- conduct of Members individually in ment referred to by the gentlewoman their representative capacity only. from Massachusetts, and therefore There is nothing in this matter that must, of course, rule that she has not refers to the gentleman from Michigan raised a question of personal privilege. [Mr. Hoffman] either individually or in his official capacity. The Chair would § 33.2 A newspaper article hesitate to hold a question of personal charging Members of the privilege of Members of the House lies House with demagoguery in a general criticism of the action of and willingness to punish the the House. Therefore, the Chair is in- District of Columbia was clined to hold that the gentleman has not stated a question of personal privi- held a criticism of the House lege. and not to constitute a question of personal privilege. § 33.3 A newspaper article in- On May 21, 1941,(12) Mr. Clare corporating the statement E. Hoffman; of Michigan, rose to a that anyone who charged the question of personal privilege and CIO with communistic con- read from a newspaper article trol was ‘‘a knave, a liar, and which charged the Members of the a poltroon,’’ was held not to House with demagoguery and give rise to a question of per- with a willingness to punish the sonal privilege. District of Columbia to win votes (14) at home. After the submission of On Mar. 27, 1939, Mr. Clare the article for the Chair’s inspec- E. Hoffman, of Michigan, rising to tion, the following exchange oc- a question of personal privilege, curred: called the attention of the House to a newspaper article quoting THE SPEAKER: (13) Where does the article refer to the gentleman from labor union leader John L. Lewis Michigan personally? as saying that anyone who charged the CIO with com- 12. 87 CONG. REC. 4307, 4308, 77th Cong. 1st Sess. 14. 84 CONG. REC. 3362, 76th Cong. 1st 13. Sam Rayburn (Tex.). Sess.

1695 Ch. 11 § 33 DESCHLER’S PRECEDENTS munistic control was ‘‘a knave, a Communists, saying that anyone who charged such communistic con- liar, and a poltroon,’’ it being ac- trol was a knave, a liar, and a pol- knowledged that the Member had troon. made such charges in debate on The gentleman from Michigan takes June 1, 1937. After the Member’s the position that because of something presentation of the question, the that he may have said heretofore on (15) Speaker made the following the floor of the House, brings him statement: within the purview of the definition The Chair is ready to rule on this given by Mr. Lewis. But in the lan- question of personal privilege pre- guage quoted there is certainly no ref- sented by the gentleman from Michi- erence to any particular individual. gan. The gentleman is not named, and for The question now raised is the fol- aught appearing in this statement that lowing language that was purported to has been made, the gentleman who is have been quoted in the March 23, quoted may have been referring en- 1939, issue of the New York Times as tirely to some other individual or some coming from John L. Lewis, chairman other group of individuals rather than of the Congress of Industrial Organiza- tions: the gentleman from Michigan. The Chair is clearly of the opinion Maintaining that the C.I.O. was an American institution, Mr. Lewis that it would be stretching the rule too denied that it was controlled by far to construe the general statement here made as giving the gentleman 15. William B. Bankhead (Ala.). from Michigan a question of privilege.

1696 CHAPTER 12

Conduct or Discipline of Members, Officers, or Employees

A. Introductory; Particular Kinds of Misconduct § 1. In General; Codes of Conduct § 2. Committee Functions § 3. Violations of Statutes § 4. Violations of House Rules § 5. Abuse of Mailing or Franking Privileges § 6. Absences From the House; Indebtedness § 7. Misconduct in Elections or Campaigns § 8. Financial Matters; Disclosure Requirements § 9. Abuses in Hiring, Employment, and Travel § 10. Communications With Federal Agencies § 11. Acceptance of Foreign Gifts and Awards

B. Nature and Forms of Disciplinary Measures § 12. In General; Penalties § 13. Expulsion § 14. Exclusion § 15. Suspension of Privileges § 16. Censure; Reprimand § 17. Imposition of Fine § 18. Deprivation of Seniority Status

Appendix

Commentary and editing by Robert L. Tienken, LL.B.

1697 Ch. 12 DESCHLER’S PRECEDENTS

INDEX TO PRECEDENTS

Alford, Dale, pre-election irregu- Hoffman, Clare E., committee chair- larity by, § 7.2 man, restrictions on, § 12.4 Apology, effect on censure pro- Immigration bills, abuses in intro- ceedings, § 16 duction of, § 8.2 Apology, requirement of, as dis- Imprisonment of Member, authority cipline, § 12 of House to direct, § 12 Arrest, privilege from, § 3.1 Investments, disclosure of, § 8.4 Auto-leasing agreements, impropri- Long, Edward V., improper fees by, eties in, § 8.3 receipt of, § 8.1 Campaign literature, unauthorized McCarthy, Joseph R., censure of, distribution of, § 7.2 § 16.2 Censure of Member, administration Powell, Adam Clayton by Speaker, § 16 censure of, § 16.1 Censure of Senators, §§ 16.2, 16.3 chairman of committee, actions affect- Clerk-hire guidelines, § 9.1 ing powers as, §§ 12.2, 12.3 Committee chairmen, disciplinary exclusion from House, § 14.1 actions against, §§ 12.2–12.4 fine, imposition of, § 17.1 Conflicts of interest, § 8.4 penalties, multiple, § 12.1 Corrupt practices laws, violations of, seniority status, deprivation of, § 18.2 § 7.3 travel funds, misuse of, §§ 9.2, 9.3 Criminal conduct, § 3.1 Privilege from arrest, § 3.1 Debate on exclusion proceedings, Relatives, employment of, § 9 §14 Resignation of Member pending ex- Debate on expulsion of Member, § 13 pulsion proceedings, § 13 Debate on resolution of censure, § 16 Resolution initiating expulsion pro- Dodd, Thomas J., censure of, § 16.3 ceedings, § 13 Dowdy, John, abstention from House Seniority status, deprivation of, for business by, § 15.3 acts committed in prior Congress, Ethics, code of, § 1 § 18.2 Exclusion, § 14 Seniority status of committee member, reduction of, § 18.1 Expulsion of Member, authority of Shoemaker, Francis H., felony con- House, § 13 viction as affecting right to take Expulsion proceedings, initiation of, oath, § 14.2 §13 Suspension of privileges, §§ 15.1, 15.2 Fees, improper, receipt of, § 8.1 Travel funds, misuse of, §§ 9.2, 9.3 Felony conviction, exclusion of Mem- Vote required to exclude Member, ber after, § 14.2 §14 Financial records, negligence in pre- Vote required to expel Member, § 13 paring, § 7.1 Williams, John Bell, seniority of, pro- Fine of Member-elect for acts com- cedure in reducing, § 18.1 mitted in prior Congress, § 17.1 Withdrawal from participating in Hinshaw, Andrew J., expulsion pro- voting and from committee busi- ceedings relating to, § 13.1 ness, § 15.3

1698 Conduct or Discipline of Members, Officers, or Employees

A. INTRODUCTORY; PARTICULAR KINDS OF MISCONDUCT § 1. In General; Codes of The Code of Official Conduct re- Conduct quires that each Member, officer, or employee conduct himself so as (1) to reflect creditably on the House Prior to the 90th Congress, and to adhere to the spirit and there was no rule setting forth a letter of the rules of the House formal code of conduct for Con- and the rules of its committees. gressmen. However, in 1967 and The code also contains provisions 1968 the rules of the House were governing the receipt of com- amended to (1) make the Com- pensation, gifts, and honorariums, mittee on Standards of Official as well as the use of campaign Conduct a standing committee of funds.(3) the House; (2) establish, as a new The 85th Congress adopted by Rule XLIII, a Code of Official Con- concurrent resolution a Code of duct for Members, officers, and Ethics to be adhered to by all government employees, including of- employees of the House; (3) re- ficeholders.(4) quire Members, officers, and certain key aides to disclose financial CODE OF ETHICS FOR GOVERNMENT interests pursuant to procedures SERVICE outlined in new Rule XLIV.(2) Any person in Government service should: 1. Pre-1936 precedents on the punishment and expulsion of Members may 3. As used in the Code of Official Con- duct, the term ‘‘Member’’ includes be found at 2 Hinds’ Precedents the Resident Commissioner from §§ 1236–1289 and 6 Cannon’s Prece- Puerto Rico and each Delegate to the dents §§ 236–239. House; and the term ‘‘officer or em- This chapter includes precedents ployee of the House of Representa- through the 94th Congress, 2d Ses- tives’’ means any individual whose sion. compensation is disbursed by the Clerk of the House of Representa- 2. 114 CONG. REC. 8802, 90th Cong. 2d tives. Rule XLIII, House Rules and Sess., Apr. 1, 1968 [H. Res. 1099, Manual § 939 (1973). amending H. Res. 418]; Rule XLIII, 4. 72 Stat. Pt. 2, B12, July 11, 1958. Rule XLIV, House Rules and Manual This Code of Ethics is a guideline for §§ 939, 940 (1973). those in government.

1699 Ch. 12 § 1 DESCHLER’S PRECEDENTS

1. Put loyalty to the highest moral House Committee on Standards of principles and to country above loyalty Official Conduct, ‘‘In the matter of to persons, party, or Government department. a Complaint against Representa- 2. Uphold the Constitution, laws, tive Robert L. F. Sikes,’’ July 23, and legal regulations of the United 1976, the committee indicated States and of all governments therein that the Code of Ethics was an ex- and never be a party to their evasion. pression of traditional standards 3. Give a full day’s labor for a full of conduct which continued to be day’s pay; giving to the performance of his duties his earnest effort and best applicable even though the code thought. was enacted in the form of a con- 4. Seek to find and employ more effi- current resolution in 1958 (pp. 7– cient and economical ways of getting 8): tasks accomplished. 5. Never discriminate unfairly by the The Committee believes that these dispensing of special favors or privi- standards of conduct traditionally ap- leges to anyone, whether for remunera- plicable to Members of the House are tion, or not; and never accept, for him- perhaps best expressed in the Code of self or his family, favors or benefits Ethics for Government Service em- under circumstances which might be bodied in House Concurrent Resolution construed by reasonable persons as in- 175, which was approved on July 11, fluencing the performance of his gov- 1958. Although the Code was adopted ernmental duties. as a concurrent resolution, and, as 6. Make no private promises of any such, may have no legally binding ef- kind binding on the duties of office, fect, the Committee believes the Code since a Government employee has no of Ethics for Government Service none- private word which can be binding on theless remains an expression of the public duty. traditional standards of conduct appli- 7. Engage in no business with the cable to Members of the House prior Government, either directly or indi- both to its adoption and the adoption rectly, which is inconsistent with the of the Code of Official Conduct in 1968. conscientious performance of his gov- As is explained in House Report No. ernmental duties. 1208, 85th Congress, 1st Session, Au- 8. Never use any information coming gust 21, 1957: to him confidentially in the perform- House Concurrent Resolution 175 ance of governmental duties as a is essentially a declaration of funda- means for making private profit. mental principles of conduct that 9. Expose corruption wherever dis- should be observed by all persons in covered. the public service. It spells out in clear and straight forward language 10. Uphold these principles, ever long-recognized concepts of the high conscious that a public office is a pub- obligations and responsibilities, as lic trust. well as the rights and privileges, at- tendant upon services for our Gov- In House Report No. 94–1364, ernment. It reaffirms the traditional 94th Congress second session, standard—that those holding public

1700 CONDUCT OR DISCIPLINE Ch. 12 § 2

office are not owners of authority but The rules of the House were agents of public purpose—concerning which there can be no disagreement amended in the 90th Congress to and to which all Federal employees make the Committee on Stand- unquestionably should adhere. It is ards of Official Conduct a stand- not a mandate. It creates no new (6) crime or penalty. Nor does it impose ing committee of the House. In any positive legal requirement for that Congress, the House adopted specific acts or omissions. (Emphasis a resolution (7) which provided added.) that measures relating to the Thus, even assuming that House Code of Official Conduct or to fi- Concurrent Resolution 175 may have nancial disclosure be referred to ‘‘died’’ with the adjournment of the the committee. It also authorized particular Congress in which it was the committee to recommend to adopted, as one commentator seems to the House appropriate legislative suggest, the traditional standards of ethical conduct which were expressed and administrative actions to es- therein did not. tablish or enforce standards of official conduct for Members, officers, and employees; to investigate § 2. Committee Functions alleged violations of the Code of Official Conduct, or of any appli- Prior to the 90th Congress, cable law, rule, regulation, or there was no standing or perma- 39th Cong. (1865); Committee on nent committee in the House to House Administration (misuse of investigate and report on im- contingency funds), 112 CONG. REC. proper conduct of Members, offi- 27711, 89th Cong. 2d Sess., Oct. 19, cers, and employees. Prior to that 1966 [H. Res. 1047], and (congres- time, select temporary committees sional conflict of interest), 109 CONG. were ordinarily created to con- REC. 4940, 88th Cong. 1st Sess., Mar. 28, 1963. sider allegations of improper con- 6. The House Committee on Standards duct against Members, although of Official Conduct was created in in some instances such questions the 90th Congress, 113 CONG. REC. were considered by standing com- 9448, 90th Cong. 1st Sess., Apr. 13, mittees.(5) 1967 [H. Res. 418]; jurisdiction rede- fined, 114 CONG. REC. 8802, 90th 5. For example, House Committee on Cong. 2d Sess., Apr. 3, 1968 [H. Res. Military Affairs, 2 Hinds’ Precedents 1099, amending H. Res. 418]. Rule X § 1274, 41st Cong. (1870); House clause 1(s) and Rule XI clause 19, Committee on the Judiciary, 3 House Rules and Manual (1973). Hinds’ Precedents § 2652, 37th Cong. 7. 114 CONG. REC. 8777 et seq., 90th I (1861); House Committee on Elec- Cong. 2d Sess., Apr. 3, 1968 [H. Res. tions, 3 Hinds’ Precedents § 2653, 1099, amending H. Res. 418].

1701 Ch. 12 § 2 DESCHLER’S PRECEDENTS other standard of conduct, and, the House, and (2) raising, report- after a notice and hearing, rec- ing, and use of campaign contribu- ommend to the House, by resolutions for candidates for the House; tion or otherwise, appropriate ac- and the committee was given authority to investigate those mat- tion; to report to the appropriate ters and report its findings to the federal or state authorities, with House.(8) approval of the House, any sub- The Committee on Standards of stantial evidence of a violation of Official Conduct is authorized, any applicable law disclosed in a under Rule XI clause 19, to issue committee investigation. The com- and publish advisory opinions mittee was also authorized to give with respect to the general pro- advisory opinions respecting cur- priety of any current or proposed rent or proposed conduct. Thus, in conduct of a Member, officer, or employee of the House, upon re- the 91st Congress, second session quest of any such person.(9) [116 CONG. REC. 1077, Jan. 26, The Senate, in 1964, created a 1970] the Committee on Stand- permanent committee designated ards of Official Conduct published as the Select Committee on Stand- Advisory Opinion No. 1, on the ards and Conduct to receive com- role of a Member of the House of plaints and investigate allegations Representatives in communicating of improper conduct which may with executives and independent reflect upon the Senate, violations federal agencies either directly or of law, and violations of rules and regulations of the Senate.(10) In through the Member’s authorized 1968 the Senate amended its employee. See § 10, infra. rules to preclude certain business Resolutions recommending ac- activities of its officers and em- tion by the House as a result of an ployees, to regulate certain as- investigation by the committee re- pects of campaign financing, and lating to the official conduct of a to require the disclosure of Sen- (11) Member, officer, or employee, ators’ financial interests. were made privileged. For a dis- 8. 116 CONG. REC. 23136–41, 91st cussion of sanctions which may be Cong. 2d Sess., July 8, 1970 [H. Res. invoked against a Member, see 1031]. §§ 12–18, infra. 9. See, for example, the advisory opin- In 1970, Rule XI was amended ion in § 10, infra. to confer upon the Committee on 10. 110 CONG. REC. 16938, 88th Cong. 2d Sess., July 24, 1964 [S. Res. 338, Standards of Official Conduct ju- amended]. risdiction over measures relating 11. 114 CONG. REC. 7406, 90th Cong. 2d to (1) lobbying activities affecting Sess., Mar. 22, 1968 [S. Res. 266, to

1702 CONDUCT OR DISCIPLINE Ch. 12 § 3

§ 3. Violations of Statutes of penal statutes, the enforcement of which rests in the executive The Constitution provides that and judicial branches. The stat- a Member is to be privileged from utes below are cited by way of ex- arrest during sessions except for ample: ‘‘Treason, Felony, and Breach of 2 USC § 441—Failure to file federal (12) the Peace.’’ However, with re- campaign financing reports. spect to the application of crimi- 18 USC § 201(c)—Soliciting or receiv- nal statutes, the Members of Con- ing a bribe. gress, unless immunized by the 18 USC § 201(g)—Soliciting or re- Speech or Debate Clause of the ceiving anything of value for or be- Constitution,(13) are subject to the cause of any official act performed or same penalties under the criminal to be performed. laws as are all citizens.(14) Indeed, 18 USC § 203(a)—Soliciting or re- the Members are specifically or ceiving any outside compensation for particular services. impliedly referred to in a number 18 USC § 204—Practice in the Court provide standards of conduct for of Claims. Members, officers, and employees of 18 USC § 211—Acceptance or solici- the Senate]. tation of anything of value for prom- Parliamentarian’s Note: In 1967 ising to obtain appointive public office (90th Cong. 1st Sess.) the Senate se- for any person. lect committee investigated allega- 18 USC § 287—False, fictitious, or tions of misuse for personal purposes fraudulent claims against the United of campaign and testimonial funds States. by Senator Thomas J. Dodd (Conn.). 18 USC § 371—Conspiracy to commit It reported a resolution of censure an offense against the United States. against the Senator which was 18 USC § § 431, 433—Prohibits con- adopted. See § 16.3, infra. tracts with the government by Mem- 12. U.S. Const. art. I, § 6. Generally see bers of Congress, with certain excep- Ch. 7, supra. tions. 13. U.S. Const. art. I, § 6, clause 1. See 18 USC § 599—Promise of appoint- U.S. v Brewster, 408 U.S. 501 (1972); ment to office by a candidate. Gravel v U.S., 408 U.S. 606 (1972); 18 USC § 600—Promise of employ- Powell v McCormack, 395 U.S. 486 ment or other benefit for political ac- (1969); U.S. v Johnson, 383 U.S. 169 tivity. (1966); Doe v McMillan, 412 U.S. 18 USC § 601—Deprivation of em- 306 (1973). See Ch. 7, supra, for im- ployment or other benefit for political munities generally. activity. 14. See U.S. v Johnson, 337 F2d 180 18 USC § 602—Solicitation of polit- (C.A. Md., 1964), affirmed 383 U.S. ical contributions from U.S. officers or 169, certiorari denied, 385 U.S. 846. employees, or persons receiving salary

1703 Ch. 12 § 3 DESCHLER’S PRECEDENTS

or compensation for services from Criminal Conduct; Privilege money derived from the U.S. Treasury. From Arrest 18 USC § 612—Publication or distribution of political statements with- § 3.1 The privilege of the Mem- out names of persons and organiza- ber from arrest does not tions responsible for same. apply to situations where the 18 USC § 613—Solicitation of political contributions from foreign nation- Member himself is charged als. with a crime referred to in 18 USC § 1001—False or fraudulent the Constitution. statements or entries in any matter The United States Supreme within the jurisdiction of any depart- (16) ment or agency of the U.S. Court, in construing article I, 31 USC § 231—Liability of persons section 6, clause 1, ‘‘they [the Sen- making false claims against the gov- ators and Representatives] shall ernment. in all cases except treason, felony, The statutes cited above are and breach of the peace, be privi- also expressly or by implication leged from arrest . . .’’ has de- applicable in many instances to clared that the terms of the provi- the officers and employees of the sion exclude from the operation of House. Again, the enforcement the privilege all criminal offenses. thereof is not left to internal Thus, it may be concluded that means in either House (although the privilege only applies in the (17) each House could impose internal case of civil arrest. sanctions), but rests in the execu- See also the proceedings on (18) tive and judicial branches. Nov. 17, 1941, wherein Mr. The House rules authorize the Hatton W. Sumners, of Texas, in Committee on Standards of Offi- discussing a resolution granting cial Conduct to report to the ap- permission of the House to a Member to appear before a grand propriate federal or state authori- jury in response to a summons, ties, with approval of the House, referred to the power of the House any substantial evidence of a vio- to refuse to yield to a court sum- lation of an applicable law by a mons ‘‘except as the Constitution Member, officer, or employee of the House, which may have been 16. See Williamson v United States, 207 disclosed in a committee inves- U.S. 425 (1908). tigation.(15) 17. See Long v Ansell, 293 U.S. 76 (1934). 15. Rule XI clause 19(e), House Rules 18. 87 CONG. REC. 8956, 77th Cong. 1st and Manual § 720 (1973). Sess.

1704 CONDUCT OR DISCIPLINE Ch. 12 § 4 provided with reference to § 4. Violations of House crimes.’’ Rules Similarly, in earlier remarks, Mr. Sumners had stated: As shown in the summary It is important that the House of below, many of the rules of the Representatives control the matter of the attendance of Members of the House contain provisions under House upon the business of the House. which a Member may be dis- It ought not to control, of course, when ciplined or penalized for certain the Member commits a crime, and it acts or conduct: has no power to control.(l9) HOUSE RULES 19. Id. at p. 8954. See also H. REPT. NO. 30, 45th Rule I clause 2—Speaker shall pre- Cong. 2d Sess., 1878 (House Com- serve order and decorum. mittee on the Judiciary), and 3 Rule VIII clause 1—Disqualification Hinds’ Precedents § 2673, as to from voting on floor on question where whether there had been any invasion Member has a direct personal and pe- of the rights and privileges of the cuniary interest. House in the alleged arrest and im- Rule XIV clause 1—Obtaining the prisonment of Representative Robert floor, and method of address (‘‘confine Smalls (S.C.). The report concluded: himself to the question under debate, ‘‘Upon principle, therefore, as well avoiding personality’’). as in view of the precedents, your Rule XIV clause 4—Call to order of committee are clearly of the opinion Member on his transgressing the rules that the arrest of Mr. Smalls, upon during sessions. the charge (of having accepted a Rule XIV clause 5—Words taken bribe while a state officer of South down if Member is called to order. Carolina) and under the cir- Rule XIV clause 7—Prohibition on cumstances hereinbefore set forth, exiting while Speaker is putting the was in no sense an invasion of any of question; prohibition on passing be- the rights or privileges of the House tween a Member who has the floor, of Representatives; and that, so far and the Chair, while the Member is as any supposed breach of privilege speaking; prohibition against wearing is concerned, his detention by the a hat or smoking while on the floor. authorities of South Carolina for an Rule XIV clause 8—Prohibition alleged violation of the criminal law against introducing persons in the gal- of that State was legal and justifi- leries to the House or calling the atten- able; and having arrived at that con- tion of the House, during a session, to clusion they have deemed it not only people in the galleries. unnecessary but improper for them Requiring a Member to withdraw to make any suggestion here as to where he has persisted despite re- what course the House should have pursued had the arrest been a viola- See Ch. 7, supra, on arrest and im- tion of its privileges.’’ munity of Members.

1705 Ch. 12 § 4 DESCHLER’S PRECEDENTS

peated calls to order (Jefferson’s Man- decisions on facts are final. If the ual, see House Rules and Manual § 366 commission finds that a serious [1973]). and willful violation has occurred No criticism of the Senate (Jeffer- son’s Manual, see House Rules and or is about to occur, it refers the Manual § 372 [1973]), nor personal matter to the House Committee abuse, innuendo or ridicule of the on Standards of Official Con- President (Jefferson’s Manual, see duct.(3) House Rules and Manual § 370 [1973]). Punishment by House of a Member for things of which the House has cognizance (Jefferson’s Manual, see House § 6. Absences From the Rules and Manual § § 303 et seq. House; Indebtedness [1973]). Congress has enacted statutes (a) directing the Sergeant at Arms § 5. Abuse of Mailing or of the House to deduct from the Franking Privileges monthly payment to a Member the amount of his salary for each The House Commission on Con- day that he has been absent from gressional Mailing Standards pro- the House unless such Member vides guidance and assistance on assigns as the reason for such ab- the use of franking privileges by sence the illness of himself or of Members. The commission is au- some member of his family; (4) (b) thorized to prescribe regulations directing the deduction from the governing the proper use of the salary of a Member for each day franking privilege.(1) that he withdraws without leave Complaints respecting alleged from his seat; (5) (c) directing the misuse of the franking provisions deduction by the Sergeant at in title 39 of the United States Arms from any salary or expense Code (2) are considered by the com- money due a Member for his de- mission for the Members, and its linquent indebtedness to the House.(6) 1. 2 USC § § 501 et seq., Pub. L. No. 93–191, 87 Stat. 742 (1973), Pub. L. If an employee of the House be- No. 93–255, 88 Stat. 52 (1974). comes indebted to the House or to The Select Committee on Stand- the trust fund account in the of- ards and Conduct of the Senate per- forms the same function for the Sen- 3. 2 USC § 501(e). ate (2 USC § 502). 4. 2 USC § 39 (1856). 2. 39 USC §§ 3210–3213(2), 3215, 3218, 5. 2 USC § 40 (1862). 3219. 6. 2 USC § 40a (1934).

1706 CONDUCT OR DISCIPLINE Ch. 12 § 7 fice of the Sergeant at Arms, and Allegations in election contests fails to pay such indebtedness, the pertaining to violations of federal chairman of the committee or the and state corrupt practices acts elected officer of the House having are considered by the Committee jurisdiction of the activity under on House Administration.(11) which indebtedness arose, is authorized to certify to the Clerk the Prior to the Supreme Court de- amount of the indebtedness, and cision in Powell v McCormack, the Clerk is authorized to with- 395 U.S. 486 (1969) in which the hold the amount from any funds Court held that qualifications of a which are disbursed by him to or Member-elect other than age, citi- ( ) on behalf of such employee. 7 zenship, and inhabitancy may not be judged by the House in connection with the initial or final right § 7. Misconduct in Elec- to a seat of such person, both tions or Campaigns Houses had adopted the premise that violation of a Corrupt Prac- Elections and election contests tices Act, federal or state, con- are treated comprehensively else- stituted grounds for exclusion of a where in this work.(8) However, it should be pointed out here that Member-elect (see Frank L. disputes involving alleged mis- Smith, of Illinois, ‘‘Senate Elec- conduct of a Member may be initi- tion, Expulsion and Censure ated in the House by the defeated Cases from 1793 to 1972,’’ p. 133; candidate pursuant to the Federal Farr v McLane, 6 Cannon’s Prece- ( ) Contested Elections Act. 9 Such dents 75; Gill v Catlin, 6 Can- contests may also be instituted by non’s Precedents § 79). Although means of (a) a protest or memorial such violations are not grounds filed in the House by an elector of the district involved, (b) a protest for disqualification, evidence or memorial filed by any other thereof may still be given to ap- person, or (c) a motion made by a propriate prosecuting attorneys Member of the House.(10) for use in an investigation of fraud, misconduct, or irregular- 7. 2 USC § 89a (1958). ities affecting election results. 8. See Chs. 8, 9, supra. 9. 2 USC §§ 318 et seq., Pub. L. No. 91- 11. Rule XI, House Rules and Manual 138, 83 Stat. 284 (1969). See also § 693 (1973). Prior to the adoption of Chs. 8, 9, supra. the Legislative Reorganization Act of 10. H. REPT. NO. 91–569, 91st Cong. 1st 1946, 60 Stat. 812, ch. 455, contests Sess., Oct. 14, 1969, ‘‘Federal Con- were considered by several House tested Elections Act,’’ p. 2. elections committees.

1707 Ch. 12 § 7 DESCHLER’S PRECEDENTS

Negligence in Preparing Fi- contributions and expenditures by nancial Records two independent campaign committees for the contestee. The § 7.1 An elections committee committees were not required to ruled that mere negligence file the accounts under the federal in preparing expenditure ac- act, and the funds handled by counts to be filed with the them unbeknownst to the Clerk should not, absent contestee were not subject to expenditure limitations in the fed- fraud, deprive one of his seat eral act. The contestee actually in the House when he has re- should have filed a federal state- ceived a substantial majority ment showing no receipts or dis- of votes. bursements.(14) In a report on an election con- The report stated, ‘‘There is no test in the 78th Congress, the evidence to show that any effort Committee on Elections No. 3 was made to conceal any receipts ruled that the negligence of the or expenditures’’ made on behalf contestee, Howard J. McMurray, of the candidacy of Mr. and his counsel, in preparing ex- McMurray. ‘‘Under these cir- penditure accounts to be filed cumstances,’’ the report continued, ‘‘. . . contestee should not be de- with the Clerk should not, absent nied his seat in the House of Rep- fraud, deprive the contestee of his resentatives on account of this seat in the House when he has re- error made in the statement filed ceived a substantial majority of by [contestee] with the Clerk of ( ) votes. 12 The contestant had the House of Representatives.’’ charged that the contestee had re- The committee, ‘‘. . . did not find ceived contributions and made ex- any evidence of fraud.’’ (15) penditures in violation of the Fed- A resolution dismissing the con- eral Corrupt Practices Act.(l3) test was agreed to by the The statement filed by the House.(16) contestee with the Clerk had been prepared by an attorney and the Unauthorized Distribution of figures contained therein reflected Campaign Literature

12. 90 CONG. REC. 962, 78th Cong. 2d § 7.2 A pre-election irregu- Sess., Jan. 31, 1944. H. REPT. No. larity such as unauthorized 1032 [H. Res. 426] (contested election case of Lewis D. Thill against 14. Id. Howard J. McMurray, Fifth Congres- 15. Id. sional District of Wisconsin). 16. 90 CONG. REC. 933, 78th Cong. 2d 13. H. REPT. No. 1032. Sess., Jan. 31, 1944 [H. Res. 426].

1708 CONDUCT OR DISCIPLINE Ch. 12 § 7

distribution of campaign lit- which occurred, but over which he had erature will not be attributed no control and in which he did not participate. The investigation revealed to a particular candidate many irregularities which could erro- where he did not participate neously be attributed to either can- therein. didate, but the mere existence of an irregularity in any campaign should not In House Report No. 1172, on be attributed to a particular candidate the right of Dale Alford, of Arkan- where he did not participate therein. sas, to a seat in the 86th Con- The subcommittee felt this to be a gress, the Committee on House sound and equitable rule, and it was Administration determined that a followed throughout the investigation with respect to both candidates. pre-election irregularity such as unauthorized distribution of cam- A resolution holding that Mr. paign literature should not be at- Alford was duly elected was agreed to by the House on Sept. 8, tributed to a particular candidate ( ) Where he did not participate 1959. 18 therein. The committee report Violation of Corrupt Practices stated: (17) Act UNSIGNED CIRCULAR § 7.3 An elections committee The subcommittee conducted an intensive investigation of the unsigned ruled that contestant had not pre-election circular used in the cam- established by a fair prepon- paign. This circular was used in viola- derance of the evidence that tion of both Arkansas and Federal law. contestee had violated the The person responsible for this circular California Corrupt Practices admitted that he used it without the knowledge of either the write-in can- Act or the Federal Corrupt didate or his campaign manager. This Practices Act. person was interrogated by the Federal In a report in the 76th Con- grand jury then sitting at Little Rock and no indictment was brought in. gress, the Committee on Elections The distribution of unsigned cam- No. 2, with reference to a contest ( ) paign material is strongly condemned, for a seat from California, 19 stat- but there is no evidence showing that the write-in candidate was even aware 18. 105 CONG. REC. 18610, 86th Cong. of the existence of such material. This 1st Sess. [H. Res. 380]. is one of the several instances wherein 19. H. REPT. No. 1783, 76th Cong. 3d the write-in candidate is sought to be Sess., Mar. 14, 1940, on the con- held responsible for an irregularity tested election case of Byron N. Scott, contestant, versus Thomas M. 17. H. REPT. No. 1172, p. 19, 86th Cong. Eaton, contestee, from the 18th Dis- 1st Sess. trict of California.

1709 Ch. 12 § 7 DESCHLER’S PRECEDENTS ed that the pleadings presented port admonished a contestee who several main issues, namely: signed under oath an expenditure Did the Contestee [Thomas M. statement to be filed with the Eaton] violate the Corrupt Practices Clerk of the House when he was Act of the State of California? not familiar with its contents or Did the Contestee violate the Fed- the irregularities therein.(4) Said eral Corrupt Practices Act? Did the the committee: violation of either or both acts directly or indirectly deprive the contestant Neither does it (Committee on Elec- from receiving a majority of the votes tions No. 3) attempt to condone the ac- cast at [the] election? (20) tion of the contestee, Mr. McMurray, in signing under oath the statement filed The committee summarily ruled with the Clerk of the House of Rep- that the contestant had failed to resentatives, without being familiar meet the burden of proof and to with the contents of the statement or establish by a fair preponderance the irregularities which it contained.(5) of the evidence the issues raised.(1) A resolution declaring that the § 8. Financial Matters; Dis- contestee was elected was re- closure Requirements ported to the House but was not acted upon.(2) Mr. Eaton had been The House rules (Rule XLIV) sworn in at the convening of the require the disclosure, each year, Congress.(3) of certain financial interests by Members, officers, and principal § 7.4 An elections committee assistants. They must file a report admonished a contestee who disclosing the identity of certain signed under oath an ex- business entities in which they penditure statement to be have an interest, as well as cer- filed with the Clerk when the tain professional organizations contestee did not know its from which they derive an in- ( ) contents or the irregularities come. 6 therein. 4. 90 CONG. REC. 962, 78th Cong. 2d In the 78th Congress, the Com- Sess., Jan. 31, 1944. H. REPT. No. mittee on Elections No. 3 in a re- 1032 [H. Res. 426]; (contested election case of Lewis D. Thill against 20. H. Rept. No. 1783. Howard J. McMurray, Fifth Congres- 1. Id. sional District of Wisconsin). See 2. 86 CONG. REC. 2885, 76th Cong. 3d also § 7.1, supra. Sess., Mar. 14, 1940. 5. H. REPT. No. 1032. 3. 84 CONG. REC. 12, 76th Cong. 1st 6. Rule XLIV, House Rules and Manual Sess., Jan. 3, 1939. § 940 (1973)

1710 CONDUCT OR DISCIPLINE Ch. 12 § 8

Rule XLIV of the rules of the subcommittee chairman to House was amended to require attempt to aid a labor leader disclosure of: (1) honorariums re- in avoiding a prison sentence ceived from a single source total- and had received fees for his ing $300 or more, and (2) each creditor to whom was owed any efforts were investigated in unsecured loan or other indebted- the 90th Congress by a Sen- ness of $10,000 or more which ate select committee; the was outstanding for a, least 90 committee determined that days in the preceding calendar the payments that had been year.(7) made were not related to the The financial statements re- labor leader or his union. quired by Rule XLIV must be filedannually by Apr. 30.(8) In the 90th Congress, the Sen- ate Select Committee on Stand- ards and Conduct investigated charges that a Senator—Edward Improper Fee V. Long, of Missouri—had used § 8.1 Charges that a Senator his position as a subcommittee had used his position as a chairman to attempt to aid a labor leader in staying out of prison and 7. 116 CONG. REC. 17012, 91st Cong. 2d had accepted fees for his efforts Sess., May 26, 1970 [H. Res. 796]. from one of the labor leader’s law- A resolution reported by the Com- (9) mittee on Standards of Official Con- yers. Statements appeared in duct, amending Rule XLIV to revise several magazines and news- the financial disclosure requirements papers that the payments made to of that rule, is not a privileged reso- the Senator by Morris Shenker, a lution under Rule XI clause 22. 116 practicing attorney in St. Louis, CONG. REC. 17012, 91st Cong. 2d Sess., May 26, 1970 [H. Res. 971, Missouri, were made to influence providing for consideration of H. Res. the hearings on invasions of pri- 796]. vacy conducted by the Senate Ju- The loans disclosure provision was diciary Subcommittee on Adminis- included following allegations in trative Practice and Procedure, of 1969 that a member of the House which the Senator was Chairman, Committee on Banking and Cur- rency had owed banks more than for the purpose of assisting James $75,000. See H. REPT. No. 91–938, Hoffa of the International Team- 91st Cong. 2d Sess., and ‘‘Congress sters Union.(10) and the Nation’’ vol. III, 1969–1972, p. 426, Congressional Quarterly, Inc. 9. 113 CONG. REC. 30096–98, 90th 8. Rule XLIV, House Rules and Manual Cong. 1st Sess., Oct. 25, 1967. § 940 (1973). 10. Id. at p. 30096.

1711 Ch. 12 § 8 DESCHLER’S PRECEDENTS

The select committee conducted Committee on Standards and Con- an investigation and concluded duct discussed on the Senate floor that the payments made to the a report of the committee which Senator by Mr. Shenker between had been submitted that day deal- 1961 and 1967 were for profes- ing with an investigation of the sional legal services, and that introduction of private immigra- they had no relationship to Mr. tion bills in the Senate for the re- Hoffa or to the Teamsters Union. lief of Chinese crewmen during The committee also concluded the 90th and 91st Congresses.(14) that the payments had no connec- Statements had been made in the tion with the Senator’s ‘‘duties or media that some Senators or their activities as Chairman of the Sub- aides received gifts and campaign committee on Administrative contributions for introducing bills Practice and Procedure, the Sub- to enable Chinese ship-jumpers to committee hearings or Senator escape deportation as the result of Long’s duties or activities as a illegal stays in this country. Member of the Senate.(11) The chairman stated that more than 600 such bills had been in- Abuses in Introducing Immi- troduced during the two Con- gration Bills gresses, a great increase over the average number that had been in- § 8.2 Charges that bribes were troduced in prior Congresses. He paid to Senate employees for pointed out that when the matter the introduction of private had first come to the committee’s immigration bills to help attention in September 1969, he Chinese seamen avoid depor- communicated with the majority tation were investigated by a and minority leadership about Senate select committee in strict enforcement of procedures the 91st Congress; the com- for the introduction of bills. ‘‘. . . mittee found no evidence of [T]he leadership responded imme- misconduct by any Senator diately,’’ he said, ‘‘by invoking the or Senate employee. practice that for future bills to be In the 91st Congress,(12) the introduced, they had to have the Chairman (13) of the Senate Select actual signature and the presence of a sponsoring Senator.’’ (l5) 11. Id. at p. 30098. 12 116 CONG. REC. 17361, 17362, 91st 14. 116 CONG. REC 17360, 91st Cong. 2d Cong. 2d Sess., May 28, 1970. Sess., S. REPT. No. 91–911. 13. 13. John Stennis (Miss.). 15. Id. at p. 17362.

1712 CONDUCT OR DISCIPLINE Ch. 12 § 8

The committee and its staff in- use of Senators. A Senator receiv- vestigated the more than 600 bills ing a car paid the amount of the to ascertain if any abuses had lease at a price less than that of- taken place. The chairman con- fered the general public. Appro- cluded: ‘‘. . . I can safely summa- priated funds were not used.(18) rize . . . by saying that we found The chairman said that the leas- no evidence of any misconduct by ing arrangements were made for any Senator or any Senate em- promotional purposes by the com- ployee, nor did we believe from pany, without intent to exercise the information we obtained that improper influence. He added that there was any reason for further the committee had concluded that proceedings.’’ (16) the leasing arrangements with Senators violated no law nor any Auto-leasing Agreements Senate rule,(19) but declared: § 8.3 A Senate select committee . . . [T]he practice of the one com- determined that it was im- pany of making an agreement directly with a Senate committee for the leas- proper for a company to ing of cars for the private use of Sen- make an agreement with a ators clearly is improper. A Senate Senate committee for the committee by itself does not have the leasing of cars for the pri- authority to make such a contract, vate use of Senators. which in our opinion is void and unenforcible. Although these lease On Aug. 24, 1970, the Chair- agreements do not bind the Senate or man (17) of the Senate Select Com- any of its committees, we believe this mittee on Standards and Conduct practice by the committees should be reported to the Senate the results terminated at once. of the committee’s investigation After carefully considering the benefits and the implications of the leasing and recommendations respecting of cars to Senators, our committee the leasing by certain Senators of makes the following advisory rec- automobiles from an automobile ommendation for the guidance of the manufacturing company under various Senators involved: Existing specially favorable terms. The private leases of automobiles to Sen- chairman declared that one com- ators at favorable rates should be terminated at or before the end of the pany had made an agreement di- current model year. These leases rectly with a Senate committee for should not be renewed. In making pri- the leasing of cars for the private 18. 116 CONG. REC. 29880, 91st Cong. 2d 16. Id. Sess. 17. John Stennis (Miss.). 19. Id.

1713 Ch. 12 § 8 DESCHLER’S PRECEDENTS

vate agreements in the future for the vestment in a Navy bank while leasing of automobiles, Senators should actively promoting its establish- not accept any favorable terms and ment, in violation of the Code of conditions that are available to them only as Senators.(20) Ethics for Government Service. The report also declined to punish Investments the Member for his sponsorship of legislation in 1961 in which he § 8.4 The House reprimanded a had a direct financial interest, Member for certain conduct since an extended period of time occurring during prior Con- had elapsed, and the Member had gresses involving conflicts of been continually re-elected by con- interest (in violation of a stituents with apparent knowl- generally accepted standard edge of the circumstances. of ethical conduct applicable to all government officials but not enacted into perma- § 9. Abuses in Hiring, Em- nent law at the time of the ployment, and Travel violation), as well as failure to make proper financial dis- The Code of Official Conduct closures in accordance with provides that a Member may not a House rule then in effect, retain anyone on his clerk-hire al- but declined to punish the lowance who does not perform du- Member for other prior con- ties commensurate with the com- (1) duct under the cir- pensation he receives. cumstances of the case. By statute, employees of the House may not divide any portion (21) On July 29, 1976, the House of their salaries or compensation agreed to a resolution adopting with another,(2) nor may they sub- the report (H. Rept. No. 94–1364) let part of their duties to an- of the Committee on Standards of other.(3) Violation of these provi- Official Conduct which rep- sions is deemed cause for removal rimanded a Member (1) for failing from office.(4) to disclose, in violation of Rule XLIV (requiring financial disclo- 1. Rule XLIII clause 8, House Rules sure of Members) his ownership of and Manual § 939 (1973). certain stock; and (2) for his in- 2. 2 USC § 86. 3. 2 USC § 87. 20. Id. 4. 2 USC § 90. 21. See the proceedings relating to H. No employee of either House of Res. 1421, 94th Cong. 2d Sess. Congress shall sublet to or hire an-

1714 CONDUCT OR DISCIPLINE Ch. 12 § 9

Professional staff members of Campaign Activities and standing committees may not en- Clerk-hire Guidelines gage in any work other than committee business, and may not be § 9.1 Guidelines have been assigned duties other than those issued relative to the use of pertaining to committee busi- clerical personnel in the (5) ness. campaign activities of Mem- A statute prohibits the employ- bers. ment, appointment, or advance- ment by a public official of a rel- In 1973, the Committee on ative to a civilian position in the Standards of Official Conduct pro- agency in which the official is mulgated an advisory opinion es- serving or over which he exercises tablishing clerk-hire guidelines. It (6) jurisdiction or control. This stat- stated in part: (8) ute, sometimes called the antinepotism law, became effec- This Committee is of the opinion tive on Dec. 16, 1967; it has no that the funds appropriated for Mem- retroactive effect and is inappli- bers’ clerk-hire should result only in cable to those appointed prior payment for personal services of indi- thereto.(7) viduals, in accordance with the law relating to the employment of relatives, other to do or perform any part of employed on a regular basis, in places the duties or work attached to the as provided by law, for the purpose of position to which he was appointed. performing the duties a Member re- 2 USC § 101. quires in carrying out his representa- 5. Rule XI clause 29 (a)(3)(B), House tional functions. Rules and Manual § 737(a) (1973). The Committee emphasizes that this 6. 5 USC § 3110, Pub. L. No. 90–206, opinion in no way seeks to encourage 81 Stat. 640 (1967). the establishment of uniform job de- ‘‘Public official’’ includes a Member scriptions or imposition of any rigid of Congress. ‘‘Relative’’ means an in- work standards on a Member’s clerical dividual who is related to the public staff. It does suggest, however, that it official as father, mother, son, is improper to levy, as a condition of daughter, brother, sister, uncle, employment, any responsibility on any aunt, first cousin, nephew, niece, clerk to incur personal expenditures husband, wife, father-in-law, mother- for the primary benefit of the Member in-law, son-in-law, daughter-in-law, or of the Member’s congressional office brother-in-law, sister-in-law, step- operations.... father, stepmother, stepson, step- The opinion clearly would prohibit daughter, stepbrother, stepsister, any Member from retaining any person half brother or half sister. 5 USC from his clerk-hire allowance under ei- § 3110(a). 7. Pub. L. No. 90–206 § 221(c), 81 Stat. 8. 119 CONG. REC. 23691, 23692, 93d 640 (1967). Cong. 1st Sess., July 12, 1973.

1715 Ch. 12 § 9 DESCHLER’S PRECEDENTS

ther an express or tacit agreement that In 1967, a party caucus re- the salary to be paid him is in lieu of moved a Member (9) from his posi- any present or future indebtedness of the Member, any portion of which may tion as Chairman of the Com- be allocable to . . . campaign obliga- mittee on Education and Labor tions, or any other nonrepresentational after a subcommittee of the Com- service. mittee on House Administration In a related regard, the Committee had reported improprieties in cer- feels a statement it made earlier, in retain of his travel expenses during sponding to a complaint, may be of interest. It states: ‘‘As to the allegation the 89th Congress, and in the ( ) regarding campaign activity by an in- clerk-hire status of his wife. 10 dividual on the clerk-hire rolls of the Subsequent to the report of the House, it should be noted that, due to subcommittee and prior to the or- the irregular time frame in which the ganization of the 90th Congress, Congress operates, it is unrealistic to impose conventional work hours and the Democratic Party Members- rules on congressional employees. At elect, meeting in caucus, voted to some times, these employees may work remove him from his office as more than double the usual work Chairman of the House Com- week—at others, some less. Thus em- mittee on Education and Labor.(11) ployees are expected to fulfill the clerical work the Member requires during § 9.3 In an attempt to curb the the hours he requires and generally are free at other periods. If, during the misuse of travel funds, the periods he is free, he voluntarily en- cancellation of all airline gages in campaign activity, there is no credit cards which had been bar to this. There will, of course, be issued to a committee was differing views as to whether the spirit ordered by the Committee on of this principle is violated, but this Committee expects Members of the House Administration. House to abide by the general propo- In September 1966, as the re- sition.’’ sult of protests made by certain Members on the Committee on Misusing Travel Funds Education and Labor, the Com- § 9.2 A party caucus removed a mittee on House Administration, Member from his office as acting through its Chairman, di- chairman of a committee rected the cancellation of all air- based on a report disclosing 9. Adam Clayton Powell (N.Y.). certain improprieties con- 10. H. REPT. NO. 2349, 89th Cong. 2d cerning his travel expenses Sess. as well as an abuse of clerk- 11. H. REPT. NO. 27, 90th Cong. 1st hiring practices. Sess. 1716 CONDUCT OR DISCIPLINE Ch. 12 § 10 line credit cards which had been made by a Member to a federal issued to the Committee on Edu- agency on behalf of a constituent cation and Labor and notified its have been issued by the Com- Chairman (12) that all future travel mittee on Standards of Official must be specifically approved by Conduct: (15) the Committee on House Adminis- tration prior to undertaking the REPRESENTATIONS travel.(13) This Committee is of the opinion The reason for the action was that a Member of the House of Rep- resentatives, either on his own initia- set forth in a report prepared by a tive or at the request of a petitioner, select committee in the 90th Con- may properly communicate with an ( ) gress: 14 Executive or Independent Agency on During the 89th Congress open and any matter to: widespread criticism developed with Request information or a status re- respect to the conduct of Representa- port; tive Adam Clayton Powell, of New Urge prompt consideration; York. This criticism emanated both Arrange for interviews or appoint- from within the House of Representa- ments; tives and the public, and related pri- Express judgment; marily to Representative Powell’s al- Call for reconsideration of an admin- leged contumacious conduct toward the istrative response which he believes is courts of the State of New York and not supported by established law, Fed- his alleged official misconduct in the eral Regulation or legislative intent; management of his congressional office Perform any other service of a simi- and his office as chairman of the Com- lar nature in this area compatible with mittee on Education and Labor. There the criteria hereinafter expressed in were charges Representative Powell was misusing travel funds and was this Advisory Opinion. continuing to employ his wife on his PRINCIPLES TO BE OBSERVED clerk-hire payroll while she was living in San Juan, P.R., in violation of Pub- The overall public interest, natu- lic Law 89–90, and apparently per- rally, is primary to any individual mat- forming few if any official duties. 15. The Chairman (Melvin Price [Ill.]) of the Committee on Standards of Offi- § 10. Communications cial Conduct inserted in the Congres- sional Record an advisory opinion, With Federal Agencies promulgated by that committee pursuant to Rule XI clause 19(e)(4), es- Guidelines relative to commu- tablishing guidelines for Members nications that may properly be and employees in communicating with departments and agencies of 12. Adam Clayton Powell (N.Y.). the executive branch on constituent 13. H. REPT. NO. 27, 90th Cong. 1st matters. 116 CONG. REC. 1077, 1078, Sess. 91st Cong. 2d Sess., Jan. 26, 1970 14. Id. at p. 1. [H. Res. 796].

1717 Ch. 12 § 10 DESCHLER’S PRECEDENTS

ter and should be so considered. There Shall be fined not more than $10,000 are also other self-evident standards of or imprisoned for not more than two official conduct which Members should years, or both; and shall be incapable uphold with regard to these commu- of holding any office of honor, trust, or nications. The Committee believes the profit under the United States.’’ following to be basic: The Committee emphasizes that it is 1. A Member’s responsibility in this not herein interpreting this statute but area is to all his constituents equally notes that the law does refer to any and should be pursued with diligence compensation, directly, or indirectly, irrespective of political or other consid- for services by himself or another. In erations. this connection, the Committee sug- 2. Direct or implied suggestion of ei- gests the need for caution to prevent ther favoritism or reprisal in advance the accrual to a Member of any com- of, or subsequent to, action taken by pensation for any such services which the agency contacted is unwarranted may be performed by a law firm in abuse of the representative role. which the Member retains a residual 3. A Member should make every ef- interest. fort to assure that representations It should be noted that the above made in his name by any staff em- statute applies to officers and employ- ployee conform to his instruction. ees of the House of Representatives as CLEAR LIMITATIONS well as to Members. Attention is invited to United States In 1970, Martin Sweig, who had Code, Title 18, Sec. 203(a) which states served as administrative assistant in part: ‘‘Whoever . . . directly or indi- to Speaker John W. McCormack, rectly receives or agrees to receive, or asks, demands, solicits, or seeks, any of Massachusetts, until October compensation for any services rendered 1969, was acquitted in federal dis- or to be rendered either by himself or trict court in New York of con- another— spiracy in connection with certain (1) at a time when he is a Member activities conducted from the of Congress . . . or Speaker’s office. Mr. Sweig and (2) at a time when he is an officer or employee of the United States in the Nathan Voloshen had allegedly . . . legislative . . . branch of the gov- been engaged in a practice where- ernment . . . in relation to any pro- by Mr. Voloshen, in exchange for ceedings, application, request for a rul- the receipt of fees from persons ing or other determination, contract, with matters before government claim, controversy, charge, accusation, agencies, promised to exert the in- arrest, or other particular matter in which the United States is a party or fluence of the Speaker’s office in has a direct and substantial interest, respect to such agencies.(16) before any department, agency, court- martial, officer, or any civil, military, 16. U.S. v Sweig, 316 F Supp 1148 (D.C. or naval commission . . . S.N.Y. 1969).

1718 CONDUCT OR DISCIPLINE Ch. 12 § 12

§ 11. Acceptance of For- to accept or retain such a gift if of eign Gifts and Awards minimal value.(18) In addition, an employee may accept a gift of The Constitution prohibits any more than minimal value when person holding federal office from refusal would cause offense or em- accepting a gift from a foreign barrassment to the foreign rela- state without the consent of the tions of the United States; in that Congress.(17) However, Congress case, the gift is deemed to be has provided by statute for em- property of the United States and ployees of the federal government not of the donee.(19)

B. NATURE AND FORMS OF DISCIPLINARY MEASURES § 12. In General; Penalties Member is carried out under its rulemaking power.(20) The authority of the House of There are several different Representatives over the internal kinds of disciplinary measures discipline of its Members flows that have been invoked by the from the Constitution, and the en- House against one of its Members. forcement of disciplinary pro- These include (1) expulsion, (2) ceedings by the House against a exclusion,(21) (3) censure, (4) sus-

17. U.S. Const. art. I, § 9, clause 8. Judge of the Elections, Returns, and 18. 5 USC § 7342(c)(1). See also § 515 of Qualifications of its own Mem- Pub. L. No. 95-105 for revision of bers....’’ this statute. The Select Committee U.S. Const. art. I, § 5, clause 2 pro- on Ethics [See CONG. REC. (daily vides: ‘‘Each House may determine ed.), 95th Cong. 1st Sess., May 18, 1977] and the Committee on Stand- the Rules of its Proceedings, punish ards of Official Conduct have pro- its Members for disorderly Behavior, mulgated regulations and advisory and, with the Concurrence of two- opinions applicable to the acceptance thirds, expel a Member.’’ of foreign gifts and decorations. 21. Exclusion is apparently no longer a 19. 5 USC § 7342(c)(2). ‘‘Employee’’ is de- disciplinary procedure to be invoked fined for the purpose of this section in cases involving the misconduct of to include a Member of Congress and members of his family and household Members but is invoked only for fail- [5 USC 7342(a)(1) (E) and (F)]. ure to meet qualifications of Mem- 20. U.S. Const. art. I, § 5, clause 1 bers as defined by the Constitution. states: ‘‘Each House shall be the The United States Supreme Court in

1719 Ch. 12 § 12 DESCHLER’S PRECEDENTS pension of voting rights and other law, rule, regulation, or other privileges, (5) imposition of a fine, standard of conduct applicable in (6) deprivation of seniority status, the performance of his duties or and (7) requiring an apology.(1) the discharge of his responsibil- Imprisonment is a form of pun- ities. The committee in such ishment that is theoretically with- cases, after notice and hearing, is in the power of the House to im- directed to recommend to the pose, but such action has never House by resolution or otherwise been taken by the House against such action as the committee may a Member.(2) deem appropriate in the cir- (3) Jurisdiction over alleged mis- cumstances. conduct rests with the Committee Each elected officer of the on Standards of Official Conduct. House (who is not a Member) with The committee is charged with supervisory responsibilities is authorized to remove or otherwise the responsibility of investigating discipline any employee under his alleged violations of the Code of supervision.(4)Clerks to Members Official Conduct by a Member, of- are subject to removal at any time ficer, or employee of the House, or with or without cause.(5) violations by such person of any 1963, in Powell v McCormack, 395 U.S. 486, held that the power of the Multiple Penalties House to judge the qualifications of its Members (art. I, § 5, clause 1) § 12.1 A House committee rec- was limited to the constitutional ommended a resolution pro- qualifications of age, citizenship, and inhabitancy (art. I, § 2, clause 2). For 3. Rule XI clause 19, House Rules and further discussion of exclusion, see Manual § 720 (1973). § 14, infra. The Senate created a Select Com- 1. See §§ 13 et seq., infra. mittee on Standards and Conduct, 2. The U.S. Supreme Court has stated, 110 CONG. REC. 16938, 88th Cong. ‘‘[T]he Constitution expressly em- 2d Sess., July 24, 1964 [S. Res. 338, powers each House to punish its own amended], and adopted a Code of Members for disorderly behavior. We Conduct, 114 CONG. REC. 7406, 90th see no reason to doubt that this pun- Cong. 2d Sess., Mar. 22, 1968 [S. ishment may in a proper case be im- Res. 266], Rules XLI, XLII, XLIII, prisonment, and that it may be [for] XLIV, Senate Manual. 93d Cong. 1st refusal to obey some rule on that Sess. (1973). subject made by the House for the 4. 2 USC § 60–1, 84 Stat. 1190, Pub. L. preservation of order.’’ Kilbourn v No. 91–510 (1970). See also 2 USC Thompson, 103 U.S. 168, 189, 190 § 85. (1880). 5. 2 USC § 92.

1720 CONDUCT OR DISCIPLINE Ch. 12 § 12

viding for the imposition of Disciplinary Actions Against multiple forms of punish- Committee Chairmen ment on a Member-elect, including censure, fine, and § 12.2 The authority of the loss of seniority; subse- chairman of a committee of quently the House adopted a the House was curtailed by resolution providing for a the House through adoption of a resolution that re- fine and loss of seniority. stricted the power of the At the commencement of the chairman to provide for 91st Congress, the House agreed funds for investigations by to a resolution (1) authorizing the subcommittees of that com- Speaker to administer the oath to mittee. Representative-elect Adam Clay- In the 88th Congress, the ton Powell, of New York, but (2) Chairman (7) of the House Com- providing for a fine of $25,000 to mittee on Education and Labor be deducted on a monthly basis was disciplined by the House from his salary, (3) reducing his through adoption of a resolution seniority to that of a first-term providing that funds for sub- Congressman (thus eliminating Member-elect was proposed and consideration of any prior service adopted (113 CONG. REC. 5037, in the computation of seniority), 5038). and (4) specifying that Mr. Powell With respect to the committee’s must take the oath before Jan. 15, recommendation, the committee 1969, or his seat would be de- Chairman, Emanuel Celler (N.Y.), clared vacant.(6) stated: ‘‘You will note that we went beyond censure. Never before has a 6. 115 CONG. REC. 29, 34, 91st Cong. committee devised such punishment 1st Sess., Jan. 3, 1969 [H. Res. 2]. short of exclusion which went beyond Similar recommendations plus a censure.’’ (113 CONG. REC. 4998). recommendation of censure had been In opposing the multiple punish- considered and rejected in the pre- ment, Representative John Conyers, vious Congress. See H. Res. 278, Jr. (Mich.) stated: ‘‘A fine and a loss 90th Cong. 1st Sess., 113 CONG. REC. of seniority is a completely unprece- 4997, Mar. 1, 1967, for the resolution dented procedure for the House to embodying the recommendations of use in punishing a Member. There is the select committee pursuant to H. simply no precedent whatsoever for Res. 1. The motion for the previous the House to punish its Members question on this resolution was de- other than by censuring or expel- feated (113 CONG. REC. 5020), and a ling.’’ (113 CONG. REC. 5007). substitute amendment excluding the 7. Adam Clayton Powell (N.Y.).

1721 Ch. 12 § 12 DESCHLER’S PRECEDENTS committee investigations be made tion; in the case of the committee, such directly available to the sub- amount shall be paid on vouchers au- committees.(8) thorized and signed by the chairman of the committee and approved by the The chairman of the committee Committee on House Administration.’’ had requested authorization to There had been alleged abuses withdraw $697,000 from the con- in the hiring of committee staff, tingent fund of the House for ex- and one of the members of the penses of committee investiga- committee reported to the House tions. However, the authorizing that, ‘‘we (the members of the resolution, as amended, provided Committee on Education and only $200,000, of which $150,000 Labor) had a bipartisan front in was made available to each of the the House Administration Com- committee’s six subcommittees (at mittee to try to control the ex- $25,000 each).(9) The amendment penditure of these funds.’’ (10) (offered by the Committee on House Administration) read: Mr. John M. Ashbrook, of Ohio, a member of the Committee on . . . Page 1, line 5, strike out Education and Labor, explained ‘‘$697,000’’ and insert ‘‘$200,000’’. the reason for the action: (11) Page 1, line 11, after ‘‘House’’ insert a period and strike out all that follows MR. ASHBROOK: Mr. Speaker, I wish down through and including the period to commend the Committee on House on page 2, line 1 and insert in lieu Administration for this action in which thereof the following: ‘‘Of such amount it has vindicated the entire member- $25,000 shall be available for each of ship of this House. Because of the six subcommittees of the Committee on manner in which the affairs of the Education and Labor, and not to ex- Committee on Education and Labor ceed $50,000 shall be available to the have been conducted during the past 2 Committee on Education and Labor. years, I feel that each Member of this All amounts authorized to be paid out body was in the position of deciding of the contingent fund by this resolu- whether or not we should condone and tion shall, in the case of each sub- continue the policies which will now be committee, be paid on vouchers author- held in close check due to the timely ized and signed by the chairman of the action of this watchdog committee. subcommittee, cosigned by the chair- Some will say that the cuts are too man of the committee and approved by deep. I think not. As the gentleman the Committee on House Administra- from Georgia [Mr. Landrum] so well put it, it will very definitely mean cut- 8. 109 CONG. REC. 3525–31, 88th Cong. ting back on some of the employees 1st Sess., Mar. 6, 1963, H. REPT. NO. whom we never saw, rarely heard of, 61 [H. Res. 254]. 9. 109 CONG. REC. 3525, 88th Cong. 1st 10. Id. at p. 3526. Sess. 11. Id. at p. 3530.

1722 CONDUCT OR DISCIPLINE Ch. 12 § 12

and little benefited by. It will mean § 12.3 The membership of a fewer opportunities for lavish spend- House committee, in a move ing, fewer trips, and without doubt, less waste of taxpayers’ money. The to discipline its chairman, basic work of our committee will be ac- amended the rules of the complished on the fourth floor suite of committee so as to transfer the Old House Office Building. It will authority from the chairman be accomplished by Members of Con- to the membership and the gress whose pay is not charged against this committee. If we buckle down and subcommittee chairmen. proceed expeditiously, we can do as On Sept. 22, 1966, the member- much or more with less costly expendi- ship of the House Committee on ture. The effort of the committee mem- Education and Labor, in a move to bers and not the dollars expended will discipline Chairman Adam Clay- be the true test of accomplishment. ton Powell, of New York, amended Mr. Joe D. Waggonner, Jr., of the rules of the committee so as to Louisiana, gave further reasons transfer authority from the chair- for the action taken: (12) man to the membership and the subcommittee chairmen. A copy of MR. WAGGONNER: Mr. Speaker, as a member of the House Administration the newly adopted rules was Committee and a member of the Sub- printed in the Congressional (13) committee on Accounts of that com- Record. mittee, I have consistently opposed the Mr. Glenn Andrews, of Ala- granting of Chairman Powell’s budget bama, described the occasion to request for $697,000. I have main- the House: (14) tained that his budget should be cut to the bare essential needed for his com- . . . [A]s a member of the House Education and Labor Committee of mittee to function because of the unac- this body, I was present at this morn- ceptable manner in which he has ing’s historic meeting [which was in- served in his capacity as chairman. I strumental] in the action which was would advocate even greater cuts in taken to limit the powers of the chair- his budget except for the fact that I do man of the Education and Labor Com- not want to cripple the good men who mittee. are members of his committee and who have consistently done a good job. With Mr. John M. Ashbrook, of Ohio, the addition of further restrictions as stated to the House reasons set (15) to how and by whom this money is forth for the action: spent and for what purpose it is spent, I hope we can by this action, restore 13. 112 CONG. REC. 23797, 23798, 89th the faith of the people in this com- Cong. 2d Sess., Sept. 26, 1966. mittee and in the Congress. Certainly 14. 112 CONG. REC. 23722, 89th Cong. that is my desire. 2d Sess., Sept. 22, 1966. 15. 112 CONG. REC. 23308, 89th Cong. 12. Id. 2d Sess., Sept. 20, 1966.

1723 Ch. 12 § 12 DESCHLER’S PRECEDENTS

. . . I for one will vote to strip him The chairman had created some [Mr. Powell] of all powers or for any partial limitations on his powers be- 12 or 13 special subcommittees, cause, on the merits, he has exercised and it was alleged that ‘‘these them in such a manner as to bring dis- subcommittees were undertaking credit on the entire House of Rep- to operate outside the jurisdiction resentatives...... [O]ur chairman has been openly of the committee and there was a accused of 3 number of violations of suggestion made that they were House Rules. . . . It is rumored that infringing on the jurisdiction of Mr. Powell’s wife gave him a power of attorney to sign [her House of Rep- the regularly established sub- ( ) resentatives salary] checks. A House committees.’’ 20 It was also al- rule apparently makes it illegal for leged that the chairman had not Mrs. Powell to be paid for work in consulted with the ranking minor- Puerto Rico. ity member or the committee § 12.4 The members of a House membership in creating the subcommittee took action committees, and that he ap- against the chairman of that pointed some minority members committee by restricting his to the special subcommittees with- authority to appoint special out consulting the Democratic (mi- subcommittees. nority) members of the com- ( ) In the 83d Congress, first ses- mittee. 21 sion,(16) during debate on a resolu- The committee membership, in tion (17) relating to expenditures July 1953, reacquired the power by the House Committee on Gov- to authorize special subcommit- ernment Operations, mention was tees. The committee rules were made of the fact that the com- changed to provide that sub- mittee had recently disciplined its committees could be created upon (18) chairman by withdrawing from motion of the chairman but sub- him authority to appoint special ject to the approval of the com- subcommittees, a blanket author- (22) ity which it had granted to him at mittee. the beginning of the session.(19) In addition, the Committee on House Administration reported 16. 99 CONG. REC. 10360–63, July 29, out a resolution (H. Res. 339), 1953. 17. H. Res. 339, amending H. Res. 150, 20. Id. 83d Cong. 1st Sess. [H. REPT. NO. 21. 99 CONG. REC. 10362, remarks of 1020]. Mr. John McCormack, of Massachu- 18. Clare Hoffman, of Michigan. setts. 19. 99 CONG. REC. 10362, remarks of 22. 99 CONG. REC. 10362, remarks of Mr. Charles Halleck, of Indiana. Mr. Charles Halleck, of Indiana.

1724 CONDUCT OR DISCIPLINE Ch. 12 § 13 after a hearing on July 22, 1953, Constitution. It provides that each at which all members of the Com- House may ‘‘with the concurrence mittee on Government Operations of two thirds, expel a Member.’’ (26) were invited to be present. The Expulsion is the most severe resolution was declared to be sanction that can be invoked ‘‘. . . a solution of a situation against a Member. The Constitu- which was described as intoler- tion provides no explicit grounds able by a considerable number of for expulsion, but the courts have the members of the Committee on set forth certain guidelines that Government Operations.’’ (23) may be applied in such cases. The resolution allotted specific Thus, the U.S. Supreme Court has funds to all but one of the regular remarked: ‘‘The right to expel ex- subcommittees, to be drawn on tends to all cases where the of- the voucher of the subcommittee fense is such as [to be] incon- chairman, and allotted the re- sistent with the trust and duty of (27) mainder for committee expenses, a Member.’’ expenses of special subcommittees One judge of the United States and the expenses of one regular Court of Appeals for the District subcommittee.(24) (Note: Under H. of Columbia said in describing the Res. 150, which was amended by elements of an analogous pro- H. Res. 339, provision had been ceeding: ‘‘That action was rooted made for having all vouchers in the judgment of the House as to what was necessary or appro- signed by the committee chair- priate for it to do to assure the in- man.) (25) tegrity of its legislative performance and its institutional accept- ability to the people at large as a § 13. Expulsion serious and responsible instrument of government.’’ (28) The House has the power to expel a Member under article I, 26. See House Rules and Manual §§ 62 section 5, clause 2 of the U.S. et seq. (1973). See also Powell v McCormack, 395 U.S. 486, 507, foot- 23. 99 CONG. REC. 10360, remarks of note 27 (1969). Mr. Karl M. LeCompte, of Iowa. 27. In re Chapman, 166 U.S. 661, 669 24. 99 CONG. REC. 10360, H. Res. 339. (1897). 25. Mr. Hoffman had raised a question 28. Powell v McCormack, 395 F2d 577, of personal privilege and had ad- concurring opinion of Judge dressed the matter prior to House McGovan, p. 607 (C.A., D.C. 1968), consideration of H. Res. 339. See 99 reversed on other grounds, 395 U.S. CONG. REC. 10351–59, July 29, 1953. 486.

1725 Ch. 12 § 13 DESCHLER’S PRECEDENTS

Expulsion is described by Cush- particular case, a legislative body ing as ‘‘. . . in its very nature dis- should be governed by the strict- cretionary, that is, it is impossible est justice; for if the violence of to specify beforehand all the party should be let loose upon an causes for which a member ought obnoxious member, and a rep- to be expelled and, therefore, in resentative of the people dis- the exercise of this power, in each charged of the trust conferred on him by his constituent, without ‘‘[A Member might be expelled] for that behavior which renders him good cause, a power of control unfit to do his duties as a Member of would thus be assumed by the the House or that present conditions representative body over the con- of mind or body which makes it un- stituent, wholly inconsistent with safe or improper for the House to the freedom of election.’’ (29) have him in it.’’ 2 Hinds’ Precedents Expulsion is generally adminis- § 1286. tered only against Members, i.e., In the 63d Congress (1913) the those who have been sworn in.(30) House Committee on Elections No. 1 However, in one case, at the be- stated in its report (H. REPT. NO. ginning of the Civil War, a Mem- 185; 6 Cannon’s Precedents § 78) that the power of the House to expel ber-elect to the House who did not one of its Members is unlimited—a appear and who had taken up matter purely of discretion to be ex- arms against the United States, ercised by a two-thirds vote from was ‘‘expelled,’’ no one having which there is no appeal. However, raised the point that he had not in 1900, the majority report of the been sworn in.(1) House special committee in the exclusion case of Brigham H. Roberts, 29. Cushing, Elements of the Law and Member-elect from Utah, 56th Cong., Practice of Legislative Assemblies in H. REPT. NO. 85, Pt. II, 1 Hinds’ the United States of America, 2d ed., Precedents § 476 stated: ‘‘1. Neither 1866, § 625. House of Congress has ever expelled 30. See Powell v McCormack, 395 U.S. a Member for acts unrelated to him 486, 507 (1969) in which the court as a Member or inconsistent with his said: ‘‘Powell was ‘excluded’ from the public trust and duty as such. 2. 90th Congress, i.e., he was not ad- Both Houses have many times re- ministered the oath of office and was fused to expel where the guilt of the prevented from taking his seat. If he Member was apparent; where the re- had been allowed to take the oath fusal to expel was put upon the and subsequently had been required ground that the House or Senate, as to surrender his seat, the House’s ac- the case might be, had no right to tion would have constituted an ‘ex- expel for an act unrelated to the pulsion’.’’ Member as such, or because it was 1. 2 Hinds’ Precedents § 1262. For a committed prior to his election.’’ discussion of the power to expel a

1726 CONDUCT OR DISCIPLINE Ch. 12 § 13

The House has expelled only Expulsion proceedings are initi- two Members and one Member- ated by the introduction of a reso- elect. All instances occurred dur- lution containing explicit ing the Civil War and in each the charges (5) and which may provide person was in rebellion against for a committee to investigate and the United States or had taken up (6) arms against it.(2) report on the matter. While re- The constitutional power of ex- ferral has been to the Committee pulsion has been applied to the on the Judiciary or to a select conduct of Members during their committee,(7) such a resolution terms of office and not to action now would be referred to the taken by them prior to their elec- Committee on Standards of Offi- tion.(3) cial Conduct [see Rule XI clause Where a Member of Congress 19, House Rules and Manual has been convicted of a crime, nei- (1973)]. ther the House nor the Senate In proceedings for expulsion, will normally act to consider expulsion until the judicial processes the House, having declined to per- have been exhausted.(4) mit a trial at the bar, may allow a Member to be heard on his own Member-elect, see 1 Hinds’ Prece- defense by unanimous consent, or dents § 476. through time yielded by the Mem- 2. 2 Hinds’ Precedents §§ 1261, 1262. ber calling up the resolution, and The Senate has expelled 15 Sen- to present a written defense, but ators, most of them for activities related to the Civil War. not to appoint another Member to (8) Senator William Blount (Tenn.) speak on his behalf. was expelled in 1797 on charges of A resolution of expulsion should conspiracy. 2 Hinds’ Precedents be limited in its application to one § 1263. For the Civil War cases, see 2 Hinds’ Precedents §§ 1266–1270. 5. 2 Hinds’ Precedents §§ 1261, 1262. In 1877, the Senate annulled its 6. 2 Hinds’ Precedents §§ 1649, 1650; 3 action in expelling a Senator during Hinds’ Precedents § 2653; 6 Cannon’s the Civil War. 2 Hinds’ Precedents Precedents § 400. § 1243. 7. 2 Hinds’ Precedents §§ 1621, 1656; 3 3. 6 Cannon’s Precedents §§ 56, 238; 2 Hinds’ Precedents §§ 1831, 1844. Hinds’ Precedents §§ 1284–1286, In one recent Congress, however, a 1288; 1 Hinds’ Precedents § 481. See resolution to expel was referred to also Powell v McCormack, 395 U.S. the Committee on the Judiciary, 115 486, 508, 509 (1969). CONG. REC. 41011, 91st Cong. 1st 4. Burton v U.S., 202 U.S. 344 (1906); Sess., Dec. 23, 1969 [H. Res. 772]. 2 Hinds’ Precedents § 1282; 6 Can- 8. 2 Hinds’ Precedents §§ 1273, 1275 non’s Precedents § 258. 1286.

1727 Ch. 12 § 13 DESCHLER’S PRECEDENTS

Member only, though several may does not automatically result in be involved. Separate resolutions loss of office for a Member, how- (and separate reports) should be ever; he must be expelled by the prepared on each Member.(9) House or Senate, as the case may The expulsion of a Member be.(15) gives rise to a question of privilege.(10) Floor debate is under the hour rule.(11) In re Hinshaw Where a Member resigns while expulsion proceedings against him § 13.1 A resolution (H. Res. are being considered, the com- 1392) calling for the expul- mittee may be discharged from sion of a Member was re- further action thereon, the pro- ported adversely by the Com- ceedings discontinued,(12) or the mittee on Standards of Offi- House may adopt a resolution cen- cial Conduct where the Mem- ( ) suring the resigned Member. 13 ber had been convicted of The penalty for conviction bribery under California law under certain statutes applicable for acts occurring while he to Members sometimes includes a served as a county tax asses- prohibition against holding any of- sor and before his election to fice of honor, trust, or profit under the United States.(14) Conviction the House, and where his appeal from the conviction was 9. 2 Hinds’ Precedents § 1275. still pending; the committee 10. 3 Hinds’ Precedents § 2648; 6 Can- found that although the con- non’s Precedents § 236. viction related to Mr. 11. 8 Cannon’s Precedents § 2448. Hinshaw’s moral turpitude, it 12. 6 Cannon’s Precedents § 238; 2 did not relate to his official Hinds’ Precedents § 1275. 13. 2 Hinds’ Precedents §§ 1239, 1273. 18 USC § 2381—Treason. 14. See, for example, the statutes listed 18 USC § 2385—Advocating over- below: throw of government. 18 USC § 201—Soliciting or receiv- 18 USC § 2387—Activities ad- ing a bribe or anything of value for versely affecting armed forces. or because of any official act per- 15. U.S. Const. art. I, § 5, clause 2; see formed or to be performed. Burton v U.S., 202 U.S. 344 (1906). 18 USC § 203—Soliciting or receiv- It is questionable under the doctrine ing any outside compensation for of Powell v McCormack, 395 U.S. particular services. 486 (1969), that such conviction 18 USC § 204—Prohibition against could prevent a person from running practice in Court of Claims by Mem- for the House or Senate, subse- ber. quently.

1728 CONDUCT OR DISCIPLINE Ch. 12 § 13

conduct while a Member of The committee believes that the Congress. House of Representatives, when considering action against a Member who On Sept. 7, 1976, the Com- is currently involved in an active, non- mittee on Standards of Official dilatory, criminal proceeding against Conduct submitted its report (H. him, such as the Hinshaw case, ordi- Rept. 94–1477), In the Matter of narily should follow a policy of taking Representative Andrew J. no legislative branch action until the conviction is finally resolved. The com- Hinshaw. The report was referred mittee wishes to express clearly, how- to the House Calendar and or- ever, that in this case its conclusion is dered printed. Excerpts from the based entirely on the instant set of report are set out below: facts and in no way implies that different circumstances may not call for a The Committee on Standards of Offi- different conclusion. cial Conduct, to which was referred the Having considered the facts of this resolution (H. Res. 1392), resolving particular case and recognizing that that Representative Andrew J. Representative Hinshaw has been con- Hinshaw be expelled from the House of victed under a State law that, while re- Representatives, having considered the flecting on his moral turpitude, does same, reports adversely, thereupon, and recommends that the resolution be not relate to his official conduct while not agreed to. a Member of Congress, it is the recommendation of the Committee on PART I.—SUMMARY OF REPORT Standards of Official Conduct that House Resolution 1392 be not agreed House Resolution 1392 seeks the ex- to. pulsion of Representative Andrew J. Hinshaw of California from the U.S. ***** House of Representatives pursuant to article I, section 5, clause 2 of the Con- PART III.—COMMITTEE ACTION stitution. Representative Hinshaw has On September 1, 1976, the com- been convicted of bribery under Cali- mittee met in executive session to con- fornia law for acts occurring while he sider House Resolution 1392. This reserved as assessor of Orange County, port was adopted on that date by a such acts having been committed prior vote of 10 to 2, a quorum being to his election to Congress. An appeal present. of the conviction is currently pending before the Fourth Appellate District, PART IV.—STATEMENT OF FACTS Court of Appeal, State of California. Since his conviction, Representative Andrew J. Hinshaw is a Member of Hinshaw has complied with House the House of Representatives rep- Rule XLIII, paragraph 10 and has not resenting the 40th District of Cali- participated in voting either in com- fornia. He was first elected to Congress mittee or on the floor of the House. on November 7, 1972, and was sworn in as a Member of the 93d Congress in ***** January 1973. He was reelected in No-

1729 Ch. 12 § 13 DESCHLER’S PRECEDENTS

vember 1974 to the 94th Congress and On February 25, 1976, Representa- assumed the seat he now occupies on tive Hinshaw was sentenced to the January 14, 1975. Prior to his first term provided by law on each count, election to Congress, Representative the terms to run concurrently. Cali- Hinshaw served for 8 years as the fornia law provides that the crime of elected assessor of Orange County, bribery is punishable by imprisonment Calif. in the State prison for a term of 1 to Public accusations that Representa- 14 years and, if an elected official be tive Hinshaw had taken bribes while convicted of bribery, the additional assessor of Orange County first ap- penalty of forfeiture of office and per- peared in local newspapers in May manent disqualification from holding 1974. However, it was not until May 6, other elective office in California may 1975, that a California State grand be imposed. The trial judge refused to jury returned an 11-count indictment impose the forfeiture and disqualifica- against Representative Hinshaw tion penalty in Representative charging him with various felonies, all Hinshaw’s case, holding that it applied relating to his official conduct as asses- only to State officials. sor for Orange County. Eight of the Representative Hinshaw has ap- eleven counts were dismissed upon mo- pealed his conviction, and the appeal is tion prior to trial. A jury trial was had now pending before the Fourth Appel- on Representative Hinshaw’s ‘‘not late District, Court of Appeal of Cali- guilty’’ plea to the three remaining fornia. The time for filing of appellant’s counts. brief has been extended until Sep- On January 26, 1976, a jury found tember 12, 1976. No date has yet been Representative Hinshaw guilty of two set for oral argument. After his convic- of the remaining counts and not guilty tion, Representative Hinshaw filed for of the third. The jury found as true reelection to Congress. In the primary that on May 18, 1972, Representative election held on June 8, 1976, Rep- Hinshaw, then the duly elected asses- resentative Hinshaw was defeated. sor for Orange County, Calif., and a candidate for Congress in a primary PART V.—ANALYSIS OF PRECEDENTS election, solicited and received a cam- AND POLICIES paign contribution of $1,000 for the purpose of influencing his official con- The right to expel may be invoked duct as assessor of Orange County; whenever in the judgment of the body and that on December 13, 1972, after a Member’s conduct is inconsistent Representative Hinshaw’s election to with the public trust and duty of a Congress but prior to being seated as a Member. But, the broad power of the Member thereof, he solicited and re- House to expel a Member has been in- ceived certain stereo equipment as con- voked only three times in the history of sideration for official action theretofore Congress, all three cases involving taken by him as assessor of Orange treason. County. The two acts proved constitute Historically, when a criminal pro- the crime of bribery under California ceeding is begun against a Member, it law. has been the custom of the House to

1730 CONDUCT OR DISCIPLINE Ch. 12 § 14 defer action until the judicial pro- stem from acts taken while county as- ceeding is final. The committee recog- sessor, and allege bribery as defined by nized the soundness of this course of California statute. The committee, action when it reported House Resolu- while not taking a position on the mer- tion 46 (94th Cong. 1st Sess., H. Rept. its of this case, concludes that no ac- No. 94–76) adopting rule XLIII, para- tion should be taken at this time. We graph 10. cannot recommend that the House risk In its report, the committee stated it placing itself in a constitutional di- would act ‘‘where an allegation is that lemma for which there is no apparent one has abused his direct representa- solution. tional or legislative position—or his ’of- We further realize that resolution of ficial conduct’ has been questioned’’— the appeal may extend beyond the ad- but where the allegation involves a vio- journment sine die of the 94th Con- lation of statutory law, and the charges gress. In fact, no future action may be are being expeditiously acted upon by required since Representative Hinshaw’s electorate chose not to re- the appropriate authorities, the policy nominate him and he has stated, in has been to defer action until the judi- writing, that he will resign if the ap- cial proceedings have run their course. peal goes against him. A ‘‘crime,’’ as defined by statutory This committee cannot be indifferent law, can cover a broad spectrum of be- to the presence of a convicted person in havior, for which the sanction may the House of Representatives; it will vary. Due to the divergence between not be so. The course of action we rec- criminal codes, and the judgmental ommend will uphold the integrity of classification of crimes into mis- the House while affording respect to demeanors and felonies, no clear-cut the rights of the Member accused. We rule can be stated that conviction for a recognize that under another set of cir- particular crime is a breach of ‘‘official cumstances other courses of action conduct.’’ Therefore, rather than speci- may be in order; but, in the matter of fy certain crimes as rendering a Mem- Representative Andrew Hinshaw, we ber unfit to serve in the House, the believe we have met the challenge and committee believes it necessary to con- our recommendation is well founded. sider each case on facts alone. Due process demands that an ac- When House Resolution 1392 cused be afforded recognized safe- was called up as privileged on guards which influence the judicial Oct. 1, 1976, by its sponsor, Mr. proceedings from its inception through Charles E. Wiggins, of California, final appeal. Although the presumption it was laid on the table without of innocence is lost upon conviction, debate. the House could find itself in an extremely untenable position of having punished a Member for an act which legally did not occur if the conviction is § 14. Exclusion reversed or remanded upon appeal. Such is the case of Representative The power of the House to ex- Hinshaw. The charges against him clude a Member rests upon Article 1731 Ch. 12 § 14 DESCHLER’S PRECEDENTS

I, section 5, clause 1 of the Con- though a two-thirds vote is re- stitution, which provides: ‘‘Each quired to expel a Member, only a House shall be the judge of the majority is required to exclude a elections, returns, and qualifica- Member who has been permitted tions of its own Members. . . .’’ to take the oath of office pending The qualifications referred to are a final determination by the House of his right to the seat.(19) those set forth in Article I, section The vote necessary to exclude on 2, clause 2, of the Constitution, the ground of failure to meet one ‘‘No person shall be a Representa- of the constitutional qualifications tive who shall not have attained is a majority of those voting, a to the age of twenty-five years, quorum being present, regardless and have been seven years a cit- of whether a final determination izen of the United States, and by the House of a Member’s right who shall not, when elected, be an to a seat has been made.(20) A vote inhabitant of that state in which on an amendment in the nature of he shall be chosen.’’ (l6) Neither a substitute proposing exclusion is the Congress nor the House can not a vote to expel, and therefore add to these qualifications, nor does not require a two-thirds vote of the Members present.(1) can a state.(17) A resolution proposing the ex- A Member-elect may be exclusion of a Member-elect presents cluded from the House pending an investigation as to his initial and 19. 113 CONG. REC. 17, 90th Cong. 1st final right to the seat.(18) And al- Sess., Jan. 10, 1967. 20. See the ruling by Speaker John W. 16. Powell v McCormack, 395 U.S. 486 McCormack (Mass.), 113 CONG. REC. (1969). See also § 12, supra. 17, 90th Cong. 1st Sess., Jan. 10, 17. See Powell v McCormack, 395 U.S. 1967; see also 1 Hinds’ Precedents 486 (1969); Hellman v Collier, 217 §§ 420, 429, 434. Md. 93, 141 A.2d 908 (1958); Rich- 1. See 113 CONG. REC. 5020 90th Cong. ardson v Hare, 381 Mich. 304, 160 1st Sess., Mar. 1, 1967. N.W. 2d 883 (1968); State ex rel. Parliamentarian’s Note: In the Chavez v Evans, 29 N. M. 578, 446 Powell case the Speaker responded P.2d 445 (1968). And see H. REPT. to a parliamentary inquiry as to the No. 90–27, 90th Cong. 1st Sess., ‘‘In vote required on an amendment in Re Adam Clayton Powell, Report of the nature of a substitute proposing Select Committee Pursuant to H. exclusion, stating that only a major- Res. 1’’ (1967) p. 30. ity vote was required to adopt the 18. 113 CONG. REC. 24–26, 90th Cong. amendment, but the Speaker was 1st Sess., Jan. 10, 1967 [H. Res. 1, not called upon to rule whether the relating to the right of Adam Clay- resolution as so amended would like- ton Powell to take the oath]. wise require only a majority vote.

1732 CONDUCT OR DISCIPLINE Ch. 12 § 14 a question of privilege.(2) Debate lect committee questions as thereon is under the hour rule.(3) to the right of a Member- A Member-elect has been per- elect to be sworn and to take mitted by unanimous consent to his seat, permitting him the address the House during the de- pay and allowances of the of- bate on the question of whether he should be sworn in.(4) fice pending a final deter- The House has authorized its mination by the House and committee to take testimony in a requiring the committee to case where the qualifications of a report back to the House Member were in issue.(5) Begin- within a prescribed time.(8) ning in the 94th Congress, the Subsequently, the House Committee on House Administra- agreed to a resolution ex- tion was granted general subpena cluding him from member- authority in all matters within its ship on the ground, among jurisdiction. Furthermore, a committee investigating the qualifica- others, that he had wrong- tions of a Member-elect may allow fully diverted House funds to his presence and permit sugges- his own use. However, the tions from him during the discus- U.S. Supreme Court ruled sion of the plan and scope of the that a Member-elect can be inquiry.(6) It may also give him excluded from the House the opportunity to testify in his only for a failure to meet the own behalf and to be present and constitutional qualifications to cross-examine witnesses.(7) of age, citizenship, and inhabitancy. Exclusion of Adam Clayton On Mar. 1, 1967, the House Powell agreed to a resolution excluding Member-elect Adam Clayton Pow- § 14.1 The House adopted a ell, from the House, on the resolution referring to a se- ground, among others, that he had wrongfully diverted House 2. See 3 Hinds’ Precedents § 2594. funds to his own use.(9) 3. See 113 CONG. REC. 15, 90th Cong. 1st Sess., Jan. 10, 1967. 8. 113 CONG. REC. 24–26, 90th Cong. 4. 113 CONG. REC. 15, 90th Cong. 1st 1st Sess., Jan. 10, 1967 [H. Res. 1, Sess., Jan. 10, 1967. See also 1 relating to the right of Adam Clay- Hinds’ Precedents § 474. ton Powell (N.Y.) to take his seat]. 5. 1 Hinds’ Precedents § 427. 9. See H. REPT. NO. 90–27, 90th Cong. 6. 1 Hinds’ Precedents § 420. 1st Sess. (1967), ‘‘In Re Adam Clay- 7. 1 Hinds’ Precedents §§ 420, 475. ton Powell, Report of Select Com-

1733 Ch. 12 § 14 DESCHLER’S PRECEDENTS

On Mar. 9, 1967, Mr. Powell The action was dismissed by the filed suit in the U.S. District district court for want of jurisdic- Court, District of Columbia, ask- tion and by the court of appeals ing (inter alia) that the Speaker for lack of justiciability.(11) The and other defendants be enjoined Supreme Court reviewed the two from enforcing the resolution by lower court opinions, holding that which he was excluded from the the courts had jurisdiction, that the issue was justiciable, and that House, and seeking a writ of man- damus directing the Speaker to have provided that (1) Mr. Powell be administer him the oath of office censured, (2) that he be fined $1,000 as a Member of the 90th Con- a month from his salary until gress.(10) $40,000 of misused funds had been paid back, and (3) that his seniority mittee Pursuant to H. Res. 1,’’ p. 33; would commence as from the day he see also H. Res. 278, 90th Cong. 1st took the oath as a Member of the Sess., 113 CONG. REC. 4997, Mar. 1, 90th Congress. 113 CONG. REC. 4998 1967. The motion for the previous et seq. question on this resolution con- A point of order that a substitute taining the select committee rec- amendment providing for the exclu- ommendation was defeated (113 sion by the House of Member-elect CONG. REC. 5020), and an amend- Adam Clayton Powell would forbid ment in the nature of a substitute the Member-elect from serving in the excluding the Member-elect was pro- Senate during the 90th Congress, a posed and adopted (113 CONG. REC. power said to be beyond that of the 5037, 5038). House, and that it would forbid a 10. 113 CONG. REC. 6035–42, 6048, 90th later voting of the Member-elect if he Cong. 1st Sess., Mar. 9, 1967. Mr. were elected to fill the vacancy Powell had been requested to stand caused by his own exclusion, another aside on the opening day of the Con- power beyond the House, was over- gress. He was not sworn in, but in- ruled by the Chair as having been stead a resolution was adopted refer- made too late in the proceedings. 113 ring the question of his prima facie CONG. REC. 5037, 90th Cong. 1st and his final right to a seat to a se- Sess., Mar. 1, 1967. lect committee [H. Res. 1, 90th Cong. 11. In the suit, Powell v McCormack, 1st Sess., Jan. 10, 1967, 113 CONG. 266 F Supp 354 (D.C., D.C. 1967), REC. 26, 27]. The House, on Mar. 1, the district court granted a motion to 1967, defeated a motion for the pre- dismiss for want of jurisdiction. On vious question relating to the select appeal to the United States Court of committee resolution [H. Res. 278] Appeals for the District of Columbia, which would have admitted the the judgment was affirmed on Member-elect as having met the con- grounds of lack of justiciability, Pow- stitutional qualifications of age, citi- ell v McCormack, 395 F2d 577 zenship, and inhabitancy, but would (C.A.D.C. 1968).

1734 CONDUCT OR DISCIPLINE Ch. 12 § 14 the power of the House under the Speaker (14) was authorized, by U.S. Constitution in judging the resolution,(15) to administer the qualifications of its Members was oath of office to a Member-elect limited to the qualifications of whose right to a seat in the House age, citizenship, and inhabitancy, was questioned by a Member who as set forth in article I, section 2, asserted that the Member-elect (12) clause 2. had forfeited his rights as a cit- On May 1, 1967, the Speaker izen by reason of conviction of a laid before the House a letter from felony. the Clerk advising receipt of a certificate showing the election of Member-elect Francis H. Shoe- Mr. Powell to fill the vacancy cre- maker, of Minnesota, was asked ated when the House excluded to stand aside during the swear- Mr. Powell from membership and ing in after a resolution was of- declared his seat vacant. Mr. Pow- fered by Mr. Albert E. Carter, of ell did not appear to claim the California, providing that the seat.(13) prima facie and final right to a seat for Mr. Shoemaker be re- Effect of Felony Conviction ferred to the Committee on Elec- tions No. 1.(16) § 14.2 The Speaker was author- Mr. Shoemaker had been con- ized to administer the oath victed in a federal district court in of office to a Member-elect Minnesota in 1930 of an offense whose right to a seat in the involving the mailing of defama- House was challenged on the tory literature, and had been put ground that he had forfeited on probation for five years. After a his rights as a citizen by rea- verbal altercation with the judge, son of conviction of a felony. he was sentenced to imprisonment On Mar. 9, 1933, at the con- for a year and a day. He served vening of the 73d Congress, the the sentence in the federal peni- 12. Powell v McCormack, 395 U.S. 486 tentiary in Leavenworth, Kansas, (1969). prior to his election to the House ( ) 13. In response to a parliamentary in- in 1932. 17 quiry, the Speaker indicated that if Mr. Powell appeared to take the oath 14. Henry T. Rainey (Ill.). and was again challenged, the House 15. 77 CONG. REC. 139, 73d Cong. 1st would have to determine at that Sess. [H. Res. 6]. time what action it should take. 113 16. 77 CONG. REC. 71, 73, 73d Cong. 1st CONG. REC. 11298, 90th Cong. 1st Sess. Sess., May 1, 1967. 17. Id. at pp. 74, 132, 133, 135.

1735 Ch. 12 § 14 DESCHLER’S PRECEDENTS

It was alleged that under the § 15. Suspension of Privi- constitution of Minnesota, Mr. leges Shoemaker, after the felony conviction, had become ineligible to At one time, the view was ex- vote or hold any office. Neverthe- pressed by a select committee that less, it was pointed out that he had voted in the 1932 election, the House may impose a punish- had run for federal office, and ment upon a Member, when ap- that the state could not disqualify propriate, other than censure or him in the latter capacity.(18) expulsion. The select committee in On Mar. 10, 1933, Mr. Paul J. the case of Adam Clayton Powell, Kvale, of Minnesota, offered an of New York, stated: (21) amendment in the nature of a Although rarely exercised, the power substitute providing that the of a House to impose upon a Member Speaker be authorized and di- punishment other than censure but rected to administer the oath to short of expulsion seems established. Mr. Shoemaker and that the ques- There is little reason to believe that tion of his final right to a seat be the framers of the Constitution, in em- referred to the Committee on powering the Houses of Congress to Elections No. 2. Debate ensued as ‘‘punish’’ Members for disorderly be- to the responsibility of the House havior and to ‘‘expel’’ (art. I, sec. 5, clause 2), intended to limit punishment to bar the Member-elect at the to censure. Among the other types of door before giving him a hearing, punishment for disorderly behavior as some precedents of the House mentioned in the authorities are fine suggested, or to follow other and suspension. precedents and administer the In the case of Senators Tillman and oath initially and then, at a later McLaurin in 1902, during the 57th date, consider his final right to a Congress, the Senate specifically con- seat. sidered the question of punishment At the conclusion of debate the other than expulsion or censure. The amendment was adopted on a di- case arose on February 22, 1903, and vision vote, 230 to 75.(19) The reso- involved a heated altercation on the lution as amended was agreed to, floor of the Senate in which the two men came to blows. The Senate went and its preamble, which referred immediately into executive session and to charges against Mr. Shoe- adopted an order declaring both Sen- maker, was stricken by unani- ators to be in contempt of the Senate mous consent.(20) 21. H. REPT. NO. 90–27, 90th Cong. 1st 18. Id. at p. 74. Sess., 1967, ‘‘In Re Adam Clayton 19. Id. at pp. 132–139. Powell, Report of Select Committee 20. Id. at p. 139. Pursuant to H. Res. 1,’’ pp. 28, 29.

1736 CONDUCT OR DISCIPLINE Ch. 12 § 15 and referring the matter to a com- The Senate may punish the Sen- mittee. The President pro tempore ators from South Carolina by fine, by ruled that neither Senator could be reprimand, by imprisonment, by sus- recognized while in contempt and sub- pension by a majority vote, or by expulsion with the concurrence of two- sequently directed the clerk to omit the thirds of its members. names of McLaurin and Tillman from The offense is well stated in the a rollcall vote on a pending bill. On majority report. It is not grave February 28, the committee to which enough to require expulsion. A rep- the matter had been referred rec- rimand would be too slight a punish- ommended a resolution of censure, ment. The Senate by a yea and-nay which the Senate adopted, stating that vote has unanimously resolved that the said Senators are in contempt. A Tillman and McLaurin are ‘‘censured reprimand is in effect only a more for the breach of the privileges and formal reiteration of that vote. It is dignity of this body, and from and not sufficiently severe upon consider- after the adoption of this resolution the ation of the facts. order adjudging them in contempt of A minority of four committee the Senate shall be no longer in force members, however, dissented ‘‘from so much of the report of the com- and effect’’ (2 Hinds, sec. 1665). ‘‘The mittee as asserts the power of the penalty,’’ according to ‘‘Senate Election, Senate to suspend a Senator and Expulsion and Censure Cases’’ (p. 96), thus deprive a State- of its vote . . .’’ ‘‘thus, was censure and suspension for (p. 1141). 6 days—which had already elapsed since the assault.’’ However, by its adoption of ( ) In the committee report on the Till- Rule XLIII clause 10 22 in the man-McLaurin case, three of the 10 94th Congress, relating to the vol- member majority submitted their untary abstention from voting and views on the issue of suspension (2 Hinds, pp. 1141–1142): from participating in other legislative business by Members who . . . The Senate has not like power with Parliament in punishing have been convicted of certain citizens for contempt, but it has like crimes, the House indicated its power with Parliament in punishing Senators for contempt or for any dis- more recent view that a Member orderly behavior or for certain like could not be deprived involun- offenses. Like Parliament, it may imprison or expel a member for of- tarily of his right to vote in the fenses. ‘‘The suspension of members House. The constitutional impedi- from the service of the House is another form of punishment.’’ (May’s ments to such deprivation were Parliamentary Practice, 53.) This au- discussed in the debate on the thor gives instances of suspension in (23) the seventeenth century and shows proposed change in the rule. the frequent suspension of members under a standing order of the House 22. See House Rules and Manual § 939 of Commons, passed February 23, (1977) . 1880. 23. 23. For discussion of the debate and ***** adoption of the rule, see § 15.1, infra.

1737 Ch. 12 § 15 DESCHLER’S PRECEDENTS

Grounds; Duration of Suspen- serve the right to representation sion of the constituents of the Mem- ber’s district.(3) Several of the pro- § 15.1 In the 94th Congress, ponents of the resolution empha- Rule XLIII was amended to sized the voluntary nature of com- provide that a Member con- pliance with the rule: victed of certain crimes MR. [JOHN J.] FLYNT [Jr., of Geor- ‘‘should refrain from partici- gia]: . . . Let me emphasize that there pation in the business of is nothing mandatory or compulsory in each committee of which he this resolution, nor is there any spe- is a member and should re- cific enforcement authority. However, a frain from voting on any Member who ignored the stated policy question at a meeting of the of the House would do so at the risk of subjecting himself to disciplinary pro- House, or of the Committee cedures provided under House rules. of the Whole House.. . .’’ The ... conviction must be by a MR. [MELVIN] PRICE [of Illinois]: . . . court of record and the Let me point out that there is nothing crime must be one for which mandatory about the procedure rec- a sentence of two or more ommended, but it would be expected that any Member affected would abide years’ imprisonment may be by the spirit of the policy. The policy imposed. The period of ab- could be waived by the House in spe- stention continues until the cific cases if it deemed such a waiver Member is subsequently re- would be in the public interest. elected or until juridical or The reason for the voluntary executive proceedings result nature of the Member’s abstention in the ‘‘reinstatement of the was also made clear: presumption of his inno- MR. [ROBERT C.] ECKHARDT [of ( ) cence.’’ 1 Texas]: Mr. Speaker, it would seem to It is clear from the debate on me that to deprive a person House Resolution 46,(2) which mandatorily of his right to vote and added clause 10, to Rule XLIII participate on the committee would be tantamount to making him stand aside that the amendment was drafted altogether in his function as a Con- to safeguard the reputation of the gressman and would go to the question House and at the same time pre- of his qualifications to serve. As I understand, the Powell case said that 1. Rule XLIII clause 10, House Rules may only be for one of three reasons: and Manual § 939 (1977). 2. H. Res. 46, 94th Cong. 1st Sess. 3. 121 CONG. REC. 10339–45, 94th (1975). Cong. 1st Sess., Apr. 16, 1975.

1738 CONDUCT OR DISCIPLINE Ch. 12 § 15

The question of age, the question of Such an action undermines the basic citizenship, and the question of resi- interest of a constituency in their rep- dency within the State from which a resentative government. Any constitu- man comes. ency has a legitimate interest in being So the only way that there could be represented by its preferred choice who a mandatory exclusion from the exer- possesses all the constitutional eligi- cise of the right of any Congressman to bility requirements, even though ob- represent his district, it would seem to jected to on other grounds, such as his me, would be on a two-thirds vote on unwillingness to support existing laws. expulsion. Would the gentleman agree? A resolution such as this could put the House in the position of encour- MR. FLYNT: Mr. Speaker, the gen- aging the loss of representation to a tleman from Texas is correct. constituency whose representative may The committee felt—and I believe have committed an act of civil disobe- that the committee was unanimous— dience as a matter of conscience, per- that to have attempted to make this haps even with the approval of that mandatory would have been unconsti- constituency. tutional. It would have deprived the The Constitution has already pro- district, which the Member was elected vided this body with the remedy of ex- to represent, of representation, as well pelling a Member for misconduct. as invoking a sanction upon the Mem- Under that clause, the expelled Mem- ber himself.... ber may be immediately replaced by MR. ECKHARDT: Mr. Speaker, I may another person to represent the con- say, to a certain extent practically, one stituency. However, under the provi- may be depriving his district of rep- sions of the measure before us, there resentation when one tells him that he can be no replacement for the pun- shall only participate at his peril on ished Member. By the terms of the res- grounds of certain further action, olution a constituency would be left which I suppose might include expul- without a voice in the House of Rep- sion. resentatives for the duration of the Congress or until the disciplined Mem- The constitutionality of depriv- ber was acquitted. ing a Member’s constituents of I feel that the problems raised by their representative vote troubled this measure go to the heart of our several Members: form of government. One of the most fundamental principles of this rep- MR. [DON] EDWARDS [of California]: resentative democracy is, in the words . . . The measure before us punishes a of Alexander Hamilton, ‘‘that the peo- Member of the House by attempting to ple should choose whom they please to deprive that person of the right to vote govern them.’’ and participate in the legislative proc- The argument was also ad- ess. However, in our effort to so dis- vanced that the amendment ex- cipline a Member of Congress, we would effectively disenfranchise the ceeded the powers of the House: nearly one-half million Americans who MR. [ROBERT F.] DRINAN [of Massa- elected that person to represent them. chusetts]: Mr. Speaker, on November

1739 Ch. 12 § 15 DESCHLER’S PRECEDENTS

14, 1973, this House debated and Several other issues were raised passed a resolution nearly identical to during the debate. In response to the one now before us. It expressed the a question concerning the omis- sense of this body that Members convicted of a crime punishable by more sion of the effect of guilty pleas, than 2 years in prison should refrain Mr. Flynt, who had introduced the from participating in committee busi- resolution, stated that a guilty ness and from voting on the floor. plea was identical to a conviction, On that occasion, I strongly opposed which was the term employed in the resolution because, in my judg- the resolution. Similarly, Mr. Phil- ment, it exceeded the powers of the lip Burton, of California, ex- House. The Constitution is quite plain pressed concern as to whether an on the matter of disciplining Members. Article I, section 5, clause 2 provides: indeterminate sentence might result in House sanctions. Again, Each House may . . . punish its Members for disorderly Behaviour, Mr. Flynt responded that it was a and, with the Concurrence of two purpose of the Committee on thirds, expel a Member. Standards of Official Conduct to That provision marks the limits of have these sanctions ‘‘triggered by permissible action; no other sanction a conviction on a count in an in- against an elected Representative is al- dictment which amounted to a fel- lowed. The resolution we debate today ony.’’ intrudes into the prohibited sphere. Under the Constitution, the House Mr. Flynt further clarified sev- may discipline its Members only for eral anticipated consequences of disorderly behavior. The sanction of ex- the adoption of the amendment: pulsion, while authorized, is reserved During the period of nonvoting, the for outrageous conduct which effec- Member would not be barred from at- tively disrupts the orderly workings of tending sessions of the House or from the legislative process, in short, a seri- carrying on normal representational ous violation of the Member’s oath of activities, other than voting. His salary office. and other benefits would continue. . . . It seems to me that an elected Rep- As the report points out, the com- resentative is entitled to the full privi- mittee does not intend to deprive a leges of the House, unless suspended Member of his right to attend sessions or expelled. There is no middle ground. of the House or committees or to pre- We cannot have two classes of Mem- clude him from recording himself bers: one with all the rights, and the ‘‘present’’ on a yea-and-nay vote or other with only partial powers. Such from responding to a quorum call. A bifurcation in our body is at variance Member thus could protect his attend- with the constitutional scheme which ance record without affecting the out- guides our actions. Yet that is what come of the vote. this resolution, if passed, would accom- However, I do feel that a Member af- plish. fected by the rule should not be a

1740 CONDUCT OR DISCIPLINE Ch. 12 § 15

party to a live pair, since such a pair Resolved, That it is the sense of the could affect the outcome by offsetting House of Representatives that any the vote of the individual with whom Member of, Delegate to, or Resident he is paired. Commissioner in, the House of Rep- The House could at any time waive resentatives who has been convicted by application of the resolution as to spe- a court of record for the commission of cific legislation or issues, thereby re- a crime for which a sentence of two or storing the Member’s full voting rights more years’ imprisonment may be im- in such instances without violating the posed should refrain from participation spirit of the rule. in the business of each committee of which he is then a member and should § 15.2 The House, in the 93d refrain from voting on any question at Congress, adopted a resolu- a meeting of the House, or of the Com- tion expressing the sense of mittee of the Whole House, unless or the House that Members con- until judicial or executive proceedings victed of certain crimes result in reinstatement of the presumption of his innocence or until he is should refrain from partici- re-elected to the House after the date pation in committee business of such conviction. This resolution and from voting in the House shall not affect any other authority of until the presumption of in- the House with respect to the behavior nocence is reinstated or until and conduct of its Members. re-elected to the House. In its report on the resolution, On Nov. 14, 1973,(4) the House the Committee on Standards of agreed to the following resolution: Official Conduct, stated, in part, at page 2: (5) 4. 119 CONG. REC. 36946, 93d Cong. 1st Sess. [H. Res. 700, providing for con- they do not recommend action by the sideration of H. Res. 128], H. REPT. House with respect to an individual NO. 93–616, Committee on Stand- Member. ards of Official Conduct. 5. H. REPT. NO. 93–616, 93d Cong. 1st Parliamentarian’s Note: A similar Sess., Oct. 31, 1973. resolution (H. Res. 933, 92d Cong.) Parliamentarian’s Note: In the de- had been reported in the preceding bate on the resolution the question Congress but had not been called up was raised that even though it was a by the House. That resolution had sense-of-the-House resolution, would been prompted by the conviction of it, if followed in a specific case, de- former Representative Dowdy for re- prive the voters in the Member’s dis- ceiving a bribe, but when he volun- trict of a constitutional right to be tarily agreed not to participate in fully represented? ( See the remarks House or committee proceedings, the of Representative Robert F. Drinan resolution was not called up in the [Mass.], 119 CONG. REC. 36945, 93d House. Such resolutions are not priv- Cong. 1st Sess.) For an opposite ileged under Rule XI clause 22, as point of view see, Luther Stearns

1741 Ch. 12 § 15 DESCHLER’S PRECEDENTS

To the question of when to act, the any other means of dealing with such committee adopted a policy which es- cases short of reprimand, or censure, sentially is: where an allegation is that or expulsion (which would be totally one has abused his direct representa- inappropriate until final judicial reso- tional or legislative position—or his lution of the case), public opinion could ‘‘official conduct’’—the committee con- well interpret inaction as indifference cerns itself forthwith, because there is on the part of the House. no other immediate avenue of remedy. The committee recognizes a very dis- But where an allegation involves a pos- tinguishable link in the chain of due sible violation of statutory law, and the process—that is the point at which the committee is assured that the charges defendant no longer has claim to the are known to and are being expedi- presumption of innocence. This point is tiously acted upon by the appropriate reached in a criminal prosecution upon authorities, the policy has been to conviction by judge or jury. It is to this defer action until the judicial pro- condition and only to this condition ceedings have run their course. This is that the proposed resolution reaches. not to say the committee abandons The committee reasons that the concern in statutory matters—rather, preservation of public confidence in the it feels it normally should not under- legislative process demands that notice take duplicative investigations pending be taken of situations of this type. judicial resolution of such cases. The implementation of this policy has shown, through experience, only Voluntary Withdrawal one need for revision. For the House to withhold any action whatever until ul- § 15.3 Following a conviction timate disposition of a judicial pro- for bribery and related of- ceeding, could mean, in effect, the bar- fenses, a Member refrained ring of any legislative branch action, from voting on the floor or in since the appeals processes often do, or can be made to, extend over a period committee and from partici- greater than the 2-year term of the pating in committee busi- Member. ness. Since Members of Congress are not Parliamentarian’s Note: Rep- subject to recall and in the absence of resentative John Dowdy, of Texas, Cushing, Elements of the Law and was convicted under federal stat- Practice of Legislative Assemblies in utes of bribery, perjury, and con- the United States of America, 2d ed. spiracy on Dec. 31, 1971, in a fed- (1866) § 626. Cushing conceded that eral district court in Baltimore, during suspension, the voters would Maryland. On Jan. 23, 1972, the be deprived of the service of their court sentenced Mr. Dowdy to 18 Representative, but contended that the rights of the voters would be no months in prison and a fine of more infringed by this proceeding $25,000. than by an exercise of the power to On June 21, 1972, Mr. Dowdy imprison. filed a letter with Speaker Carl

1742 CONDUCT OR DISCIPLINE Ch. 12 § 16

Albert, of Oklahoma, promising to considering the matter is at lib- refrain from voting on the floor or erty to act on his sound discretion in committee and from partici- and vote according to the dictates pating in committee business of his own judgment and con- pending an appeal of his convic- science. tion.(6) The conduct for which censure may be imposed is not limited to acts relating to the Member’s offi- § 16. Censure; Reprimand cial duties. See In re Chapman (166 U.S. 661 [1897]). The com- In the House, the underlying mittee considering censure of Sen- concept governing the censure of a ator Joseph McCarthy stated (S. Member for misconduct is that of Rept. No. 2508, 83d Cong., p. 22): breach of the rights and privileges ‘‘It seems clear that if a Senator (7) of the House. As indicated in a should be guilty of reprehensible report of a select committee of the conduct unconnected with his offi- House,(8) the power of each House cial duties and position, but which to censure its Members ‘‘for dis- conduct brings the Senate into orderly behavior’’ is found in arti- disrepute, the Senate has the cle I section 5 clause 2 of the U.S. power to censure.’’ Constitution. It is discretionary in character, and upon a resolution During its history, through the for censure of a Member for mis- 94th Congress, the House of Rep- conduct each individual Member resentatives has censured 17 Members and one Delegate and 6. See Congressional Quarterly Weekly has reprimanded one Member in Report, July 8, 1972, p. 1167. the 94th Congress. All but one of See also 6 Cannon’s Precedents the instances of censure occurred §§ 402, 403, wherein a select com- during the 19th century, 13 Mem- mittee assumed that a Member indicted under federal law would take bers being censured between 1864 no part whatever in any of the busi- and 1875. The last censure in the ness of the House or its committees House was imposed in 1921. In until final disposition of the case was the Senate, there are four in- made. stances of censure, including the 7. 2 Hinds’ Precedents § 1644. censure of Senator Joseph McCar- 8. H. REPT. NO. 90–27, 90th Cong. 1st thy in 1954. Sess., Feb. 23, 1967, ‘‘In Re Adam Clayton Powell, Report of the Select Most cases of censure have in- Committee Pursuant to H. Res. 1,’’ volved the use of unparliamentary pp. 24–30. language, assaults upon a Mem-

1743 Ch. 12 § 16 DESCHLER’S PRECEDENTS ber or insults to the House by in- In 1873, during the 42d Con- troduction of offensive resolu- gress, a special investigating com- tions,(9) but in five cases in the mittee was appointed to inquire House and one in the Senate cen- into charges that Representatives sure was based on corrupt acts by Oakes Ames and James Brooks had been bribed in connection a Member, and in another Senate with the Credit Mobilier Co. and case censure was based upon non- the Union Pacific Railroad.(11) Al- cooperation with and abuse of Senate committees.(10) placed on the Senate payroll, and used as a consultant on a pending 9. See 2 Hinds’ Precedents §§ 1246– tariff bill, one Charles L. Eyanson, 1249, 1251, 1256, 1305, 1621, 1656; who was simultaneously in the em- 6 Cannon’s Precedents § 236. ploy of the Manufacturers Associa- 10. See 2 Hinds’ Precedents §§ 1239, tion of Connecticut. The Senate 1273, 1274, 1286; 6 Cannon’s Prece- adopted a resolution of censure pro- dents § 239; ‘‘Senate Election, Expul- viding that Senator Bingham’s con- sion and Censure Cases,’’ S. Doc. No. duct regarding Eyanson ‘‘while not 71, 87th Cong., pp. 125–27, 152–54. the result of corrupt motives on the In 1870, during the 41st Congress, part of the Senator from Con- the House censured John T. necticut, is contrary to good morals DeWeese, B. F. Whittemore, and and senatorial ethics and tends to Roderick R. Butler for the sale of ap- bring the Senate into dishonor and pointments to the U. S. Military and disrepute, and such conduct is here- Naval Academies. In Butler’s case, by condemned.’’ 6 Cannon’s Prece- the Member had appointed to the dents § 239. Military Academy a person not a 11. The committee reported that Rep- resident of his district and subse- resentative Oakes Ames ‘‘has been quently received a political contribu- guilty of selling to Members of Con- tion from the cadet’s father. Censure gress shares of stock in the Credit of DeWeese and Whittemore was Mobilier of America for prices much voted notwithstanding that each had below the true value of such stock, previously resigned. A resolution to with intent thereby to influence the expel Butler was defeated upon fail- votes and decisions of such Members ure to obtain a two-thirds vote, in matters to be brought before Con- whereupon a resolution of censure gress for action.’’ With regard to was voted in which the House Representative James Brooks, the ‘‘declare[d] its condemnation’’ of his committee found that he ‘‘did pro- conduct, which it characterized as cure the Credit Mobilier Co. to issue ‘‘an unauthorized and dangerous and deliver to Charles H. Neilson, practice’’ (2 Hinds’ Precedents for the use and benefit of said §§ 1239, 1273, 1274). Brooks, 50 shares of the stock of said In 1929 Senator Hiram Bingham company at a price much below its (Conn.) was censured for having real value, well knowing that the

1744 CONDUCT OR DISCIPLINE Ch. 12 § 16 though the committee rec- the electorate at the previous elec- ommended that both Members be tion and to the prior House, and expelled, the House adopted sub- the extent to which they directly stitute censure resolutions in involve the authority, integrity, which it ‘‘absolutely condemn[ed]’’ dignity, or reputation of the the conduct of Ames and Brooks House.(12) (2 Hinds’ Precedents § 1286). Censure, like other forms of dis- Although there has been a di- cipline except expulsion, is by a vergence of views concerning the majority of those voting, a quorum power of a House to expel a Mem- being present. (6 Cannon’s Prece- ber for acts committed during a dents § 236.) The House itself preceding Congress, the right of a must order the censure. The Speaker cannot, of his own au- House to censure a Member for thority, censure a Member.(13) such prior acts is supported by clear precedent in both Houses of A censure resolution may call for direct and immediate action by Congress—namely, the case of the House; (14) or it may rec- Ames and Brooks in the House of ommend that a committee be ap- Representatives and the case of pointed to investigate and report Senator McCarthy in the Senate. to the House.l5 A House select In Ames and Brooks the acts for committee may recommend cen- which censure was voted occurred sure of a Member along with more than five years prior to cen- other forms of punishment in re- sure and two congressional elec- sponse to a resolution to inves- tions had intervened. tigate and recommend as to the Thus, the broad power of the initial and final right to a seat.(16) House to censure Members extends to acts occurring during a 12. H. REPT. No. 90–27, 90th Cong. 1st prior Congress. Whether such Sess., Feb. 23, 1967. See also § 8.4, supra. powers should be invoked in such 13. 2 Hinds’ Precedents §§ 1344, 1345; 6 circumstances is a matter com- Cannon’s Precedents § 237. mitted to the discretion and judg- 14. 2 Hinds’ Precedents §§ 1246–1251, ment of the House upon consider- 1254–1258; 6 Cannon’s Precedents ation of the nature of the prior §§ 236, 239. acts, whether they were known to 15. 2 Hinds’ Precedents §§ 1649–1651, 1655 1656. same was so issued and delivered 16. 113 CONG. REC. 4997, 90th Cong. 1st with intent to influence the votes Sess., Mar. 1, 1967; see 113 CONG. and decisions of said Brooks as a REC. 24, 26, 27, 90th Cong. 1st Sess., Member of the House.’’ Jan. 10, 1967.

1745 Ch. 12 § 16 DESCHLER’S PRECEDENTS

Floor debate on a resolution of House, whereas a reprimand is censure is under the hour rule.(17) administered to the Member The House has permitted the ‘‘standing in his place’’ (23) or Member to be heard in debate as merely by way of the adoption of a matter of course without per- a committee report. Thus in mission being asked or given,(18) 1976,(24) the House administered a or by unanimous consent.(19) And reprimand to Mr. Robert L. F. the Member controlling debate Sikes, of Florida, by adopting by a under the hour rule can yield time vote of 381 yeas to 3 nays a reso- to the Member being censured. In lution (H. Res. 1421) which pro- one instance, after a Member had vided that the House adopt the re- explained, the House reconsidered port of the Committee on Stand- its vote of censure and reversed ards of Official Conduct on the in- it.(20) In some situations where vestigation of a complaint against Members have apologized fol- Mr. Sikes. The Speaker adminis- lowing the initiation of censure tered no oral reprimand. The re- proceedings, the House has ac- port (1) declared that (a) failure of cepted the apology and terminated Mr. Sikes to report certain the proceedings.(21) stockholdngs as required by After the House has ordered House Rule XLIV was deserving censure, it is normally adminis- of a reprimand, and (b) that the tered by the Speaker to the Mem- investment by him in the stock of ber at the bar of the House.(22) a bank at a naval base in Florida The House has on occasion and activities in promoting its es- made a distinction between cen- tablishment was deserving of a sure and reprimand, the latter reprimand. The report provided being a somewhat lesser punitive that in each instance, ‘‘the adop- measure than censure. A censure tion of this report by the House is administered by the Speaker to shall constitute such rep- the Member at the bar of the rimand.’’ (2)

17. See 5 Hinds’ Precedents § 4990. 23. Luther Sterns Cushing, Elements of 18. 2 Hinds’ Precedents §§ 1246, 1253. the Law and Practice of Legislative 19. 2 Hinds’ Precedents § 1656. Assemblies in the United States of 20. 2 Hinds’ Precedents § 1653. America, 2d ed. (1866), § 682. 21. See, for instance, 2 Hinds’ Prece- 24. CONG. REC. (daily ed.), 94th Cong. 2d dents §§ 1250, 1257, 1258, 1652; 6 Sess., July 29, 1976. Cannon’s Precedents § 7006. 1. H. REPT. NO. 94–1364, 94th Cong. 2d 22. See 2 Hinds’ Precedents §§ 1251, Sess., July 23. 1976. 1259; 6 Cannon’s Precedents § 236. 2. Id. at p. 4.

1746 CONDUCT OR DISCIPLINE Ch. 12 § 16

Censure of Adam Clayton Pow- maintained on his clerk-hire payroll Y. ell Marjorie Flores (Mrs. Adam C. Powell) from August 14, 1964, to December 31, § 16.1 A House select com- 1966, during which period either she mittee recommended cen- performed no official duties whatever or such duties were not performed in sure, along with other pen- Washington, D. C. or the State of New alties, against a Member- York as required by law. elect. Fourth, as Chairman of the Com- On Mar. 1, 1967,(3) the House mittee on Education and Labor, Adam considered a resolution censuring Clayton Powell permitted and participated in improper expenditures of gov- Adam Clayton Powell, of New ernment funds for private purposes. York, for, INTER ALIA, ignoring the Fifth, the refusal of Adam Clayton processes and authority of the Powell to cooperate with the Select New York state courts and for im- Committee and the Special Sub- proper use of government funds. committee on Contracts of the House The resolution provided: Administration Committee in their lawful inquiries authorized by the Whereas, House of Representatives was con- The Select Committee appointed temptuous and was conduct unworthy pursuant to H. Res. 1 (90th Congress) has reached the following conclusions: of a Member; Now, therefore be it First, Adam Clayton Powell pos- Resolved, sesses the requisite qualifications of 1. That the Speaker administer the age, citizenship and inhabitancy for oath of office to the said Adam Clayton membership in the House of Rep- Powell, Member-elect from the Eight- resentatives and holds a Certificate of eenth District of the State of New Election from the State of New York. York. Second, Adam Clayton Powell has 2. That upon taking the oath as a repeatedly ignored the processes and Member of the 90th Congress the said authority of the courts in the State of Adam Clayton Powell be brought to New York in legal proceedings pending the bar of the House in the custody of therein to which he is a party, and his the Sergeant-at-Arms of the House and contumacious conduct towards the be there publicly censured by the court of that State has caused him on Speaker in the name of the House. several occasions to be adjudicated in contempt thereof, thereby reflecting 3. That Adam Clayton Powell, as discredit upon and bringing into disre- punishment, pay to the Clerk of the pute the House of Representatives and House to be disposed of by him accord- its Members. ing to law, Forty Thousand Dollars Third, as a Member of this House, ($40,000.00). The Sergeant-at Arms of Adam Clayton Powell improperly the House is directed to deduct One Thousand Dollars ($1,000.00) per 3. H. Res. 278, 113 CONG. REC. 4997, month from the salary otherwise due 90th Cong. 1st Sess. the said Adam Clayton Powell and pay

1747 Ch. 12 § 16 DESCHLER’S PRECEDENTS

the same to said Clerk, said deductions Senate committees during an to continue while any salary is due the investigation of his conduct said Adam Clayton Powell as a Mem- ber of the House of Representatives as a Senator. until said Forty Thousand Dollars In 1951, during the 82d Con- ($40,000.00) is fully paid. Said sums gress, a resolution had been intro- received by the Clerk shall offset to the duced calling for an investigation extent thereof any liability of the said Adam Clayton Powell to the United to determine whether expulsion States of America with respect to the proceedings should be instituted matters referred to in the above para- against Senator Joseph McCarthy, graphs Third and Fourth of the pre- of Wisconsin, by reason, inter alia, amble to this Resolution. of his activities in the 1950 Mary- 4. That the seniority of the said land senatorial election; the reso- Adam Clayton Powell in the House of Representatives commence as of the lution was referred to the Sub- date he takes the oath as a Member of committee on Privileges and Elec- the 90th Congress. tions, whose Chairman was Sen- 5. That if the said Adam Clayton ator Guy M. Gillette, of Iowa. Sen- Powell does not present himself to take ator McCarthy rejected invitations the oath of office on or before March to attend the hearings of the Gil- 13, 1967, the seat of the Eighteenth District of the State of New York shall lette subcommittee, termed the be deemed vacant and the Speaker charges against him a Communist shall notify the Governor of the State smear, and stated that the hear- of New York of the existing vacancy. ings were designed to expel him The House voted down the mo- ‘‘for having exposed Communists tion for the previous question on in Government.’’ In 1954, during the resolution and substituted an the succeeding 83d Congress, a amendment to exclude, which was censure resolution against Sen- adopted.(4) ator McCarthy was introduced and referred to a select committee Censure of Joseph R. McCarthy headed by Senator Arthur V. Wat- kins, of Utah. The Watkins com- § 16.2 The Senate, by resolu- mittee recommended censure in tion reported by a select part on the ground that Senator committee, censured a Sen- McCarthy’s conduct toward the ator for his noncooperation Gillette subcommittee, its mem- with and abuse of certain bers and the Senate ‘‘was con-

4. 113 CONG. REC. 5020, 5037, 90th temptuous, contumacious, and de- Cong. 1st Sess., Mar. 1, 1967. See nunciatory, without reason, or jus- also § 14.1, supra. tification, and was obstructive to

1748 CONDUCT OR DISCIPLINE Ch. 12 § 16 legislative processes.’’ (5) After de- vember 13, 1954, that the chairman of bate, the Senate adopted a resolu- the select committee (Mr. Watkins) tion (S. Res. 301, as amended) was guilty of ‘‘the most unusual, most cowardly thing I’ve heard of’’ and stat- censuring Senator McCarthy on ing further: ‘‘I expected he would be two counts: afraid to answer the questions, but Resolved, That the Senator from didn’t think he’d be stupid enough to Wisconsin, Mr. McCarthy, failed to co- make a public statement’’; and in char- operate with the Subcommittee on acterizing the said committee as the Privileges and Elections of the Senate ‘‘unwitting handmaiden,’’ ‘‘involuntary Committee on Rules and Administra- agent,’’ and ‘‘attorneys in fact’’ of the tion in clearing up matters referred to Communist Party and in charging that that subcommittee which concerned his the said committee in writing its re- conduct as a Senator and affected the port ‘‘imitated Communist methods— honor of the Senate and, instead, re- that it distorted, misrepresented, and peatedly abused the subcommittee and omitted in its effort to manufacture a its members who were trying to carry plausible rationalization’’ in support of out assigned duties, thereby obstruct- its recommendations to the Senate, ing the constitutional processes of the which characterizations and charges Senate, and that this conduct of the were contained in a statement released Senator from Wisconsin, Mr. McCar- to the press and inserted in the Con- thy, is contrary to senatorial traditions gressional Record of November 10, and is hereby condemned. 1954, acted contrary to senatorial eth- Sec. 2. The Senator from Wisconsin, ics and tended to bring the Senate into Mr. McCarthy, in writing to the chair- dishonor and disrepute, to obstruct the man of the Select Committee To Study constitutional processes of the Senate, Censure Charges (Mr. Watkins) after and to impair its dignity; and such the select committee had issued its re- conduct is hereby condemned. port and before the report was presented to the Senate charging three As noted above, one of the members of the select committee with counts on which censure was ‘‘deliberate deception’’ and ‘‘fraud’’ for voted in 1954 concerned his con- failure to disqualify themselves; in duct toward the Gillette sub- stating to the press on November 4, committee in 1952 during the pre- 1954, that the special Senate session ceding Congress. The report of the that was to begin November 8, 1954, was a ‘‘lynch party’’; in repeatedly de- select committee discussed at scribing this special Senate session as length the contention by Senator a ‘‘lynch bee’’ in a nationwide television McCarthy that since he was re- and radio show on November 7, 1954; elected in 1952, the committee in stating to the public press on No- lacked power to consider, as a

5. 100 CONG. REC. 16392, 83d Cong. 2d basis for censure, any conduct on Sess., Dec. 2, 1954 [S. Res. 301, his part occurring prior to Jan. 3, amended], S. REPT. No. 83–2508. 1953, when he took his seat for a

1749 Ch. 12 § 16 DESCHLER’S PRECEDENTS new term (S. REPT. NO. 2508, 83d they cannot forgive an attack by a Sen- Cong., pp. 20–23, 30, 31). The ator upon the integrity of the Senate’s processes and its committees. That is committee stated (p. 22): the business of the Senate. While it may be the law that one who is not a Member of the Senate Censure of Thomas J. Dodd may not be punished for contempt of the Senate at a preceding session, this § 16.3 The Senate, by resolu- is no basis for declaring that the Sen- tion reported by its Select ate may not censure one of its own Committee on Standards and Members for conduct antedating that session, and no controlling authority or Conduct, censured a Senator precedent has been cited for such posi- for exercising the power and tion. influence of his office to ob- The particular charges against Sen- tain and use for his personal ator McCarthy, which are the basis of benefit funds from the public this category, involve his conduct to- raised through political ward an official committee and official committee members of the Senate. testimonials and a political The reelection of Senator McCarthy campaign. in 1952 was considered by the select The Senate, by resolution re- committee as a fact bearing on this ported by its Select Committee on proposition. This reelection is not (6) deemed controlling because only the Standards and Conduct, cen- Senate itself can pass judgment upon sured Senator Thomas J. Dodd, of conduct which is injurious to its proc- Connecticut, for exercising the esses, dignity, and official committees. power and influence of his office Elaborating on its view that to obtain and use for his personal only the Senate can pass judg- benefit funds from the public ment upon conduct adverse to its raised through political processes and committees, the se- testimonials and campaigns. lect committee added (pp. 30–31): The committee conducted hearings from June, 1966 through Nor do we believe that the reelection March, 1967 on allegations that of Senator McCarthy by the people of the Senator had misused cam- Wisconsin in the fall of 1952 pardons his conduct toward the Subcommittee paign funds for personal pur- ( ) on Privileges and Elections. The charge poses. 7 From its investigations is that Senator McCarthy was guilty of the committee concluded in its re- contempt of the Senate or a senatorial committee. Necessarily, this is a mat- 6. 113 CONG. REC. 17073, 90th Cong. ter for the Senate and the Senate 1st Sess., June 23, 1967 [S. Res. alone. The people of Wisconsin can 112], S. REPT. NO. 90–193. only pass upon issues before them; 7. S. REPT. NO. 90–193, p. 9.

1750 CONDUCT OR DISCIPLINE Ch. 12 § 16 port that seven fund-raising and the contributions to the 1964 polit- events were held for the Senator ical campaign, Senator Dodd or his for the period 1961 through 1965, representatives received funds totaling and that the receipts from these at least $450,273. From these funds, Senator Dodd authorized the payment totaled some $203,983. All but one of at least $116,083 for his personal of the events was represented as purposes. The payments included Fed- being held for political campaign eral income tax, improvements to his purposes, either to raise funds for Connecticut home, club expenses, the Senator’s 1964 campaign or to transfers to a member of his family, pay off debts from his 1958 and and certain other transportation, hotel, 1964 campaigns for a seat in the restaurant and other expenses in- Senate.(8) The report stated: curred by Senator Dodd outside of Con- necticut or by members of his family or From the circumstances of all the his representatives outside of the polit- fund-raising events, including the ex- ical campaign period. Senator Dodd clusive control of the funds by mem- further authorized the payment of an bers of Senator Dodd’s staff, the exten- additional amount of at least $45,233 sive participation by members of Sen- from these proceeds for purposes which ator Dodd’s staff, the close political re- are neither clearly personal nor polit- lationship between Senator Dodd and ical. These payments were for repay- the sponsors of the fund-raising events, the preoccupation of the organizers ment of his loans in the sum of with Senator Dodd’s apparently polit- $41,500 classified by Senator Dodd as ical indebtedness, and the partisan po- ‘‘political-personal’’ and $3,733 for bills litical nature of the printed programs, for food and beverages. Senator Dodd’s knowledge of the polit- In addition, after the 1964 cam- ical character of these events must be presumed.(9) paign, Senator Dodd received a campaign contribution of $8,000 In addition to the $203,983, from the International Latex Senator Dodd and the political Corp., and, for a period of 21 committees supporting his re-elec- months, he accepted as gifts the tion to the Senate in 1964 received campaign contributions of loans of three automobiles in suc- at least $246,290. The expendi- cession from a constituent and ture of these funds was summa- used them for personal transpor- ( ) rized by the committee, as fol- tation. 11 (10) lows: 11. On seven trips from 1961 through From the proceeds of the seven fund- 1965, Senator Dodd requested and raising events from 1961 through 1965 accepted reimbursement from both the Senate and private organizations 8. Id. at p. 24 for the same travel. Id. at p. 25. This 9. Id. at p. 24. was a charge which the committee 10. Id. at p. 25. included in its censure resolution,

1751 Ch. 12 § 16 DESCHLER’S PRECEDENTS

The committee found Senator Resolved, That it is the judgment of Dodd’s conduct censurable, as fol- the Senate that the Senator from Con- ( ) necticut, Thomas J. Dodd, for having lows: 12 engaged in a course of conduct over a Senator Dodd exercised the influence period of five years from 1961 to 1965 of exercising the influence and power and power of his office as a United of his office as a United States Sen- States Senator to directly or indirectly ator, as shown by the conclusions in obtain funds from the public through the investigation by the Select Com- testimonials which were political in mittee on Standards and Conduct character, over a period of five years (a) to obtain and use for his personal from 1961 to 1965. The notices of these benefit, funds from the public through fund-raising events received by the political testimonials and a political public either stated that the funds campaign, and were for campaign expenses or deficits (b) to request and accept reimburse- or failed to state for what purposes the ments for expenses from both the Sen- funds were to be used. Not one solicita- ate and private organizations for the same travel (13) deserved the censure of tion letter, invitation, ticket, program, the Senate; and he is so censured for or other written communication in- his conduct, which is contrary to ac- formed the public that the funds were cepted morals, derogates from the pub- to be used for personal purposes. Sen- lic trust expected of a Senator, and ator Dodd used part of the proceeds tends to bring the Senate into dishonor from these political testimonials and and disrepute.(14) part of the contributions from his polit- Debate on the resolution (15) ical campaign of 1964 for his personal began on June 13, 1967.(16) Sen- benefit. These acts, together with his requesting and accepting reimburse- ator John Stennis, of Mississippi, ments from 1961 through 1965 for ex- chairman of the committee, stated penses from both the Senate and pri- to the Senate that the censure vate organizations for the same travel, resolution was not bottomed upon comprise a course of conduct which de- any one specific action or viola- serves the censure of the Senate, is tion, nor on one expenditure or a contrary to accepted morals, derogates few expenditures and not on one from the public trust expected of a matter which could have been an Senator, and tends to bring the Senate error. He said: into dishonor and disrepute . . . It is based on the fact that the The committee reported a reso- practice happened over and over and lution of censure, as follows: 13. See footnote 11, supra. but which was deleted by an amend- 14. S. Res. 112, 90th Cong. 1st Sess. ment offered by Senator Allen J. 15. The resolution, S. Res. 112, was in- Ellender (La.). See 113 CONG. REC. troduced Apr. 27, 1967; see 113 17020, 90th Cong. 1st Sess., June 23, CONG. REC. 10977. 1967. 16. 113 CONG. REC. 15663, 90th Cong. 12. S. REPT. NO. 90–193, p. 25. 1st Sess.

1752 CONDUCT OR DISCIPLINE Ch. 12 § 17

over again, so much so, and over a long ant to its constitutional authority period of time, as to become a pattern to punish its Members (Art. I, § 5, of operation. (1) The words used in the charge itself clause 2). are ‘‘course of conduct.’’ It amounted to a course of conduct that was wrong on its face, and therefore brought the Sen- ate into disrepute.(17) Fine of Member For Acts Com- mitted in Prior Congress On June 22, Senator John Tower, of Texas, offered an § 17.1 The House agreed to a amendment to delete ‘‘censure’’ resolution providing for the and substitute therefor ‘‘rep- imposition of a fine against a (18) rimand.’’ He declared that: Member-elect charged with This proposal would give us the op- misuse of appropriated funds portunity to express our displeasure, in a prior Congress. our disapproval, and our disassocia- tion, but at the same time avoid the In 1967, the recommendation of severity of censure . . . inasmuch as a House committee that Member- there is no precedent for censure on the basis of means of raising funds for elect Adam Clayton Powell, of private political use, in the absence of New York, be fined was consid- an existing rule or code on the subject. ered and rejected in favor of a res- The amendment was defeated, 9 olution that he be excluded.(2) Two to 87.(19) 1. See H. REPT. NO. 90–27, 90th Cong. After debate, which continued 1st Sess. (1967), ‘‘In Re Adam Clay- until June 23, 1967, the Senate ton Powell, Report of Select Com- adopted the resolution, by a vote mittee Pursuant to H. Res. 1,’’ pp. of yeas 92, nays 5, after first 28, 29. striking the second charge relat- See also, 2 Hinds’ Precedents ing to double-billing for several 1665, p. 1142, for the Senate censure trips.(20) case of McLaurin and Tillman, both Senators from South Carolina, 57th Cong.; see also remarks of Senator Mills (Tex.) in debate on charges § 17. Imposition of Fine against Senator Roach (N.D.), 25 CONG. REC. 162, 53d Cong. 1st Sess., A fine may be levied by the Apr. 15, 1893. House against a Member pursu- 2. See H. REPT. NO. 90–27, 90th Cong. 1st Sess. (1967), ‘‘In Re Adam Clay- 17. Id. at p. 15664. ton Powell, Report of Select Com- 18. Id. at p. 16979. mittee Pursuant to H. Res. 1,’’ p. 33. 19. Id. at p. 16986. The committee recommended that 20. Id. at p. 17020. ‘‘(3) Adam Clayton Powell, as pun-

1753 Ch. 12 § 17 DESCHLER’S PRECEDENTS years later, however, on Jan. 3, for a fine of $25,000 to be de- 1969,(3) the House agreed to a res- ducted on a monthly basis from olution which included a provision Mr. Powell’s salary.

ishment (for improper expenditure of House funds for private purposes, and for maintaining a person on his § 18. Deprivation of Se- clerk-hire payroll who performed no niority Status official duties whatever or did not perform them in Washington, D.C., Under the U.S. Constitution, or in the Member’s district), pay the the House is authorized to deprive Clerk of the House, to be disposed of a Member of his seniority status by him according to law, $40,000; (4) that the Sergeant at Arms of the as a form of disciplinary action. House be directed to deduct $1,000 per month from the salary otherwise due Mr. Powell and pay the same to Procedure the Clerk, said deductions to continue until said sum of $40,000 is § 18.1 A Member may be re- fully paid; and that said sums reduced in committee seniority ceived by the Clerk shall offset any civil liability of Mr. Powell to the as a result of party discipline United States of America with re- enforced through the ma- spect to the matters referred to in chinery of his party—the paragraphs second and third above caucus and the Committee (matter in parentheses).’’ on Committees. See also H. Res. 278, 90th Cong. 1st Sess. The motion for the previous Parliamentarian’s Note: In question on this resolution con- 1965, two Democratic Members taining the select committee rec- who had refused to support the ommendation was defeated (113 Presidential candidate of their CONG. REC. 5020, Mar. 1, 1967), and party were reduced in committee a substitute amendment excluding seniority as the result of party the Member-elect was proposed and adopted (113 CONG. REC. 5037, 5038, discipline enforced through the Mar. 1, 1967). See also § 14.1, supra. machinery of the party-the caucus 3. 115 CONG. REC. 29, 34, 91st Cong. and the Committee on Commit- 1st Sess., Jan. 3, 1969 [H. Res. 2]. tees.(5) After having been excluded from the 90th Congress (see 14, supra), Mr. 4. See § 18.2, infra. Powell won re-election to the 91st 5. One Member (Albert Watson [S.C.]) Congress, but was required to pay a resigned from the House, 111 CONG. fine for improper expenditures made REC. 805, 806, 89th Cong. 1st Sess., prior to the 90th Congress. Jan. 15, 1965, and was then re-elect-

1754 CONDUCT OR DISCIPLINE Ch. 12 § 18

As a matter of party discipli- Deprivation of Seniority Status nary policy, the Democratic Cau- For Acts Committed in Prior cus instructed the Committee on Congress Committees to assign the ‘‘last position’’ on a committee to a par- § 18.2 Deprivation of seniority ticular Member. But other Mem- status is a form of discipli- bers subsequently elected to the nary action that may be in- same committee were junior to voked by the House against a him in committee seniority.(6) Member, pursuant to a com- In 1967, the Democratic Com- mittee’s recommendation, mittee on Committees reported to under article I, section 5, the House a resolution leaving va- clause 2 of the U.S. Constitu- cancies on certain standing com- tion, for acts committed in a mittees pending further consider- prior Congress. ation by the caucus of committee In the 90th Congress, a com- assignments and seniority thereon mittee of the House recommended of a Member who had, in the pre- that a Member-elect, Adam Clay- ceding Congress, been stripped of ton Powell, of New York, be de- his committee seniority (at the di- prived of his seniority status and rection of the caucus) and as- subjected to certain other pen- signed to the last position on the alties for his conduct in a prior Congress.(8) committees, and who had asked that he not be assigned to any assignment of committee positions of committee pending a final deter- John Bell Williams (Miss.). ( ) mination by the caucus. 7 8. See H. REPT. NO. 90–27, 90th Cong. 1st Sess. (1967), ‘‘In Re Adam Clay- ed as a member of the other political ton Powell, Report of Select Com- party in a special election called to mittee Pursuant to H. Res. 1,’’ p. 33; fill the vacancy. The other (John B. see also H. Res. 278, 90th Cong. 1st Williams [Miss.]) was voted to the Sess., 113 CONG. REC. 4997, Mar. 1, bottom of two committees, 111 CONG. 1967. The motion for the previous REC. 809, 89th Cong. 1st Sess., Jan. question on this resolution con- 15, 1965. taining the select committee rec- 6. See 112 CONG. REC. 27486, 89th ommendation was defeated (113 Cong. 2d Sess., Oct. 18, 1966, where- CONG. REC. 5020, Mar. 1, 1967), and in committee member John Bell Wil- a substitute amendment excluding liams (Miss.) was advised that a the Member-elect was proposed and newly elected Member would rank adopted (113 CONG. REC. 5037, 5038, below Mr. Williams in seniority. Mar. 1, 1967). See § 14.1, supra. 7. 113 CONG. REC. 1086, 90th Cong. 1st The recommendation of the select Sess., Jan. 23, 1967, relating to the committee was characterized by a

1755 Ch. 12 § 18 DESCHLER’S PRECEDENTS

In the 91st Congress, the House prior service in the computation of agreed to a resolution which, seniority).(9) among other things, reduced the seniority of Mr. Powell to that of 9. 9. 115 CONG. REC. 29, 34, 91st Cong. 1st Sess., Jan. 3, 1969 [H. Res. 2]. r. first-term Congressman (thus Powell had been excluded by the eliminating consideration of any House in the 90th Congress, but had been reelected to the 91st Congress. Member: ‘‘Never before has any The resolution [H. Res. 2] also pro- Member of the Congress been vided for a fine of $25,000 against stripped of his seniority in the course Mr. Powell to be deducted on a of (punishment) proceedings.’’ 113 monthly basis from his salary, and CONG. REC. 5006, Mar. 1, 1967, re- specified that Mr. Powell had to take marks by Representative John Con- the oath before Jan. 15, 1969, or his yers, Jr. (Mich.). seat would be declared vacant.

1756 APPENDIX

Opinions of the Committee on Standards of Official Conduct Advisory Opinion No. Subject: Communications with Federal agencies ...... 1 Clerk-hire allowance ...... 2 Travel at expense of foreign governments ...... 3 Acceptance of nonpaid transportation ...... 4

ADVISORY OPINION NO. 1 citizens find it more difficult to obtain redress by direct communication with ad- (Issued January 26, 1970) ministrative agencies. As a result. the individual turns increasingly to his most ON THE ROLE OF A MEMBER OF THE proximate connection with his Govern- HOUSE OF REPRESENTATIVES IN COM- ment, his Representative in the Con- MUNICATING WITH EXECUTIVE AND gress, as evidenced by the fact that con- INDEPENDENT FEDERAL AGENCIES gressional offices devote more time to Reason for Issuance.—A number of re- constituent requests than to any other quests have come to the Committee for single duty. its advice in connection with actions a The reasons individuals sometimes fail Member of Congress may properly take to find satisfaction from their petitions in discharging his representative func- are varied. At the extremes, some griev- tion with respect to communications on ances are simply imaginary rather than constituent matters. This advisory opin- real, and some with merit are denied for ion is written to provide some guidelines lack of thorough administrative consider- in this area in the hope they will be of ation. assistance to Members. Sheer numbers impose requirements to Background.—The first Article in our standardize responses. Even if mechan- Bill of Rights provides that ‘‘Congress ical systems function properly and time- shall make no law . . . abridging the ly, the stereotyped responses they . . . right of the people . . . to petition produce suggest indifference. At best, re- the Government for a redress of griev- sponses to grievances in form letters or ances.’’ The exercise of this Right in- by other automated means leave much to volves not only petition by groups of citi- be desired. zens with common objectives, but in- Another factor which may lead to peti- creasingly by individuals with problems tioner dissatisfaction is the occasional or complaints involving their personal re- failure of legislative language, or the ad- lationships with the Federal Govern- ministrative interpretation of it, to cover ment. As the population has grown and adequately all the merits the legislation as the Government has enlarged in scope intended. Specific cases arising under and complexity, an increasing number of these conditions test the legislation and

1757 Ch. 12 App. DESCHLER’S PRECEDENTS provide a valuable oversight disclosure to irrespective of political or other consid- the Congress. erations. Further, because of the complexity of 2. Direct or implied suggestion of ei- our vast Federal structure, often a cit- ther favoritism or reprisal in advance izen simply does not know the appro- of, or subsequent to, action taken by priate office to petition. the agency contacted is unwarranted For these, or similar reasons, it is log- abuse of the representative role. ical and proper that the petitioner seek 3. A Member should make every ef- the assistance of his Congressman for an fort to assure that representations early and equitable resolution of his made in his name by any staff em- problem. ployee conform to his instruction. Representations.—This Committee is of Clear Limitations.—Attention is in- the opinion that a Member of the House vited to United States Code, Title 18, of Representatives, either on his own ini- Sec. 203(a) which states in part: ‘‘Who- tiative or at the request of a petitioner, ever . . . directly or indirectly receives or may properly communicate with an Exec- agrees to receive, or asks, demands, solic- utive or Independent Agency on any mat- its, or seeks, any compensation for any ter to: services rendered or to be rendered ei- —request information or a status re- ther by himself or another port; (1) at a time when he is a Member —urge prompt consideration; of Congress . . .; or —arrange for interviews or appoint- (2) at a time when he is an officer or ments; employee of the United States in the —express judgment; . . . legislative . . . branch of the gov- —call for reconsideration of an admin- ernment . . . istrative response which he believes in relation to any proceeding, application, is not supported by established law, request for a ruling or other determina- Federal regulation or legislative in- tion, contract, claim, controversy, charge, tent; accusation, arrest, or other particular —perform any other service of a simi- matter in which the United States is a lar nature in this area compatible party or has a direct and substantial in- with the criteria hereinafter ex- terest, before any department, agency, pressed in this Advisory Opinion. court-martial, officer, or any civil, mili- Principles To Be Observed.—The over- tary, or naval commission . . . all public interest, naturally, is primary Shall be fined not more than $10,000 to any individual matter and should be or imprisoned for not more than two so considered. There are also other self- years or both; and shall be incapable of evident standards of official conduct holding any office of honor, trust, or prof- which Members should uphold with re- it under the United States.’’ gard to these communications. The Com- The Committee emphasizes that it is mittee believes the following to be basic: not herein interpreting this statute but 1. A Member’s responsibility in this notes that the law does refer to any com- area is to all his constituents equally pensation, directly or indirectly, for serv- and should be pursued with diligence ices by himself or another. In this connec-

1758 CONDUCT OR DISCIPLINE Ch. 12 App. tion, the Committee suggests the need clerical assistance to a Representative for caution to prevent the accrual to a ‘‘in the discharge of his official and rep- Member of any compensation for any resentative duties . . .’’. The same phra- such services which may be performed by seology is used today in each Legislative a law firm in which the Member retains Appropriations bill and by the Clerk of a residual interest. the House in his testimony before the It should be noted that the above stat- Subcommittee on Legislative Appropria- ute applies to officers and employees of tions. An exact definition of ‘‘official and the House of Representatives as well as representative duties’’ was not found in to Members. the extensive materials researched. Re- marks concerning various bills, however, ADVISORY OPINION NO. 2 usually refer to ‘‘clerical service’’ or terms of similar import, thus implying a con- (Issued July 11, 1973) sistent perception of the term as payment for personal services. ON THE SUBJECT OF A MEMBER’S CLERK Summary Opinion.—This Committee HIRE is of the opinion that the funds appropriated for Members’ clerk hire should Reason for issuance.—A number of re- result only in payment for personal serv- quests have come to the Committee for ices of individuals, in accordance with advice on specific situations which, to the law relating to the employment of some degree, involve consideration of relatives, employed on a regular basis, in whether moneys appropriated for Mem- places as provided by law, for the pur- bers’ clerk hire are being properly uti- pose of performing the duties a Member lized. requires in carrying out his representa- A summary of the responses to these tional functions. requests forms the basis for this Advi- The Committee emphasizes that this sory Opinion which, it is hoped, will pro- opinion in no way seeks to encourage the vide some guidelines and assistance to establishment of uniform job descriptions all Members. or imposition of any rigid work standards Background.—The Committee re- on a Member’s clerical staff. It does sug- quested the Congressional Research gest, however, that it is improper to levy, Service to examine in depth the full as a condition of employment, any re- scope of the laws and the legislative his- sponsibility on any clerk to incur per- tory surrounding Members’ clerk hire. sonal expenditures for the primary ben- The search produced little in the way of efit of the Member or of the Member’s specific parameters in either case law or congressional office operations, such as congressional intent, concluding that subscriptions to publications, or purchase ‘‘. . . no definitive definition was found of services, goods or products intended . . .’’. It is out of this absence of other for other than the clerk’s own personal guidance the Committee feels con- use. strained to express its views. The opinion clearly would prohibit any Clerk hire allowance for Representa- Member from retaining any person from tives was initiated in 1893 (27 Stat. 757). his clerk hire allowance under either an The law providing it spoke of providing express or tacit agreement that the sal-

1759 Ch. 12 App. DESCHLER’S PRECEDENTS ary to be paid him is in lieu of any ance of trips to foreign countries, the ex- present or future indebtedness of the penses of which are borne by the host Member, any portion of which may be al- country or some agent or instrumentality locable to goods, products, printing costs, of it. campaign obligations, or any other non- The Committee is advised that similar representational service. inquiries recently have been put to the In a related regard, the Committee Department of State with respect to feels a statement it made earlier, in re- other Federal employees. sponding to a complaint, may be of inter- In order to provide widest possible dis- est. It states: ‘‘As to the allegation re- semination to views expressed in regarding campaign activity by an indi- sponse to the requests, and to coordinate vidual on the clerk hire rolls of the with statements likely to be forthcoming House, it should be noted that, due to from other areas of the Federal govern- the irregular time frames in which the ment in this regard, this general advi- Congress operates, it is unrealistic to im- sory opinion is respectfully offered. pose conventional work hours and rules Background.—The United States Con- on congressional employees. At some stitution, at Article I, Section 9, Clause times, these employees may work more 8, holds that: than double the usual workweek—at oth- No Title of Nobility shall be granted by ers, some less. Thus employees are ex- the United States: And no Person hold- pected to fulfill the clerical work the ing any Office of Profit or Trust under Member requires during the hours he re- them, shall without the Consent of the quires and generally are free at other pe- Congress, accept of any present, Emolu- riods. If, during the periods he is free, he ment, Office, or Title, of any kind what- voluntarily engages in campaign activity, ever, from any King, Prince, or foreign there is no bar to this. There will, of State. course, be differing views as to whether the spirit of this principle is violated, but This provision, described as stemming this Committee expects Members of the from a ‘‘just jealousy of foreign influence House to abide by the general propo- of every sort,’’ is extremely broad as to sition.’’ whom it covers, as well as to the ‘‘presents’’ or ‘‘emoluments’’ it prohibits— speaking of the latter as of any kind ADVISORY OPINION NO. 3 whatever. (emphasis provided) It is narrow only in the sense that the (Issued June 26, 1974) framers, aware that social or diplomatic protocols could compel some less than ab- ON THE SUBJECT OF FOREIGN TRAVEL BY solute observance of a prohibition on the MEMBERS AND EMPLOYEES OF THE receipt or exchange of gifts, provided for HOUSE OF REPRESENTATIVES AT THE specific exceptions with ‘‘the consent of EXPENSE OF FOREIGN GOVERNMENTS the Congress.’’ Reason for Issuance.—The Committee Congress dealt from time to time with has received a number of requests from these exceptions through public and pri- Members and employees of the House for vate bills addressed to specific situations, guidance and advice regarding accept- and dealt generally, commencing in 1881,

1760 CONDUCT OR DISCIPLINE Ch. 12 App. with the overall question of management (1) ‘‘employee’’ means— of foreign gifts. (A) an employee as defined by sec- In 1966 Congress passed the latest and tion 2105 of this title; the existing Public Law 89–673, ‘‘an Act (B) an individual employed by, or to grant the consent of Congress to the occupying an office or position in, the acceptance of certain gifts and decora- government of a territory or posses- tions from foreign governments.’’ That sion of the United States or of the law is presently codified at Title 5, District of Columbia; United States Code, Section 7342, a copy (C) a member of a uniformed serv- of which is attached. ice; The law is quite explicit in virtually all (D) the President; particulars, save whether the expense of (E) a Member of Congress as de- a trip paid for by a foreign government is fined by section 2106 of this title; a ‘‘. . . present or thing, other than a and decoration, tendered by or received from (F) a member of the family and a foreign government; . . .’’ household of an individual described It is on this point that this Opinion in subparagraphs (A)–(E) of this lies. paragraph; Basis of Authority for Opinion.—Since (2) ‘‘foreign government’’ means a this matter impinges equally on all Fed- foreign government and an official eral employees, the Committee sought agent, or representative thereof; advice from the Comptroller General as (3) ‘‘gift’’ means a present or thing, legal adviser to the Congress, and from other than a decoration, tendered by or the Secretary of State as the imple- received from a foreign government; menting authority over 5 U.S.C. 7342. and Copies of their official responses are (4) ‘‘decoration’’ means an order, de- attached to this Opinion. vice, medal, badge, insignia, or emblem tendered by or received from a foreign Summary Opinion.—It is the opinion government. of this Committee, on its own initiative (b) An employee may not request or and with the advice of the Comptroller otherwise encourage the tender of a gift General and the Assistant Secretary of or decoration. State, that acceptance of travel or living (c) Congress consents to— expenses in specie or in kind by a Mem- (1) the accepting and retaining by an ber or employee of the House of Rep- employee of a gift of minimal value resentatives from any foreign govern- tendered or received as a souvenir or ment, official agent or representative mark of courtesy; and thereof is not consented to in 5 U.S.C. (2) the accepting by an employee of a 7342, and is, therefore, prohibited. This gift of more than minimal value when prohibition applies also to the family and it appears that to refuse the gift would household of Members and employees of be likely to cause offense or embarrass- the House of Representatives. ment or otherwise adversely affect the § 7342. Receipt and disposition of foreign relations of the United States. foreign gifts and decorations However, a gift of more than minimal (a) For the purpose of this section— value is deemed to have been accepted on

1761 Ch. 12 App. DESCHLER’S PRECEDENTS behalf of the United States and shall be State on a number of occasions in behalf deposited by the donee for use and dis- of their employees who have received but posal as the property of the United not yet acted on offers of such trips. It States under regulations prescribed has been the Department’s consistent po- under this section. sition that the offer of an expenses-paid (d) Congress consents to the accepting, trip is an offer of a gift and that, there- retaining, and wearing by an employee of fore, if tendered by a foreign government a decoration tendered in recognition of or any representative thereof to a Fed- active field service in time of combat op- eral employee, the Foreign Gifts and erations or awarded for other out- Decorations Act of 1966 would require its standing or unusually meritorious per- refusal. A trip cannot qualify under the formance, subject to the approval of the special provision permitting acceptance agency, office or other entity in which of a gift of more than minimal value on the employee is employed and the con- the ground that to refuse it would appear currence of the Secretary of State. With- likely to ‘‘cause offense or embarrass- out this approval and concurrence, the ment or otherwise adversely affect the decoration shall be deposited by the foreign relations of the United States’’. donee for use and disposal as the prop- This follows from the requirement that erty of the United States under regula- the donee, being deemed to have accept- tions prescribed under this section. ed such a gift on behalf of the United (e) The President may prescribe regu- States, deposit it for use and disposal as lations to carry out the purpose of this property of the United States in accord- section. Added Pub. L. 90–83 § 1(45)(C), ance with the implementing regulations, Sept. 11, 1967, 81 Stat. 208. since the recipient of a trip could not fulfill that requirement. —— Precisely because of the impossibility of surrendering the gift of a trip once it DEPARTMENT OF STATE, has been accepted and taken, we believe Washington, D.C., May 9, 1974. it would be highly advisable for your Committee to issue the briefing paper on Hon. MELVIN PRICE, the subject which Congressman Kemp Chairman, Committee on Standards of has suggested. In this connection the Official Conduct, House of Representa- Committee may be interested to know tives. that the Department is planning a new DEAR MR. CHAIRMAN: I am replying to informational program designed to im- your letter of April 17 to Mr. Hampton prove understanding and compliance Davis, of the Office of the Chief of Pro- with the Foreign Gifts and Decorations tocol, requesting comment on Congress- Act and the implementing regulations. man Kemp’s suggestion that your Com- The program will be aimed not only at mittee issue a briefing paper on the pro- those within the Federal establishment priety of acceptance by Congressional who might become donees or who may Members and staff of trips offered them have responsibility for briefing potential at the expense of foreign governments. donees, but also at the foreign govern- Various Federal agencies have put ments that appear to be less than fully similar questions to the Department of aware of the stringent legal restrictions

1762 CONDUCT OR DISCIPLINE Ch. 12 App. that we operate under in this area. We onymous with the term ‘gift’,’’ denoting shall be happy to see that the Committee ‘‘something voluntarily given, free from is included in the distribution of the ma- legal compulsion or obligation.’’ 34 Comp. terial being developed. Gen. 331, 334 (1955); 37 Comp. Gen. 138, I hope that we have been helpful in 140 (1957). ‘‘Emolument’’ has been de- this matter and that you will feel free to fined as profit, gain, or compensation recall upon us at any time you think we ceived for services rendered. 49 Comp. can be of assistance. Gen. 819, 820 (1970); B–180472, March 4, 1974. Accordingly, and in view of the Sincerely yours, emphatic language of the Constitution (i.e., present or emolument ‘‘of any kind LINWOOD HOLTON, Assistant Secretary for whatever’’), we see no basis whereby Congressional Relations. trips paid for by foreign governments may be accepted by Members of Congress COMPTROLLER GENERAL or members of their staffs without the OF THE UNITED STATES, consent of the Congress. If payment of Washington, D.C., May 9, 1974. the cost of a trip in a particular case be B–180472. considered as an emolument for services Hon. MELVIN PRICE, to be rendered acceptance thereof would Chairman, Committee on Standards of be categorically prohibited by the above- Official Conduct, House of Representa- cited constitutional provision unless con- tives. sented to by the Congress. DEAR MR. CHAIRMAN: Your letter of If on the other hand the payment of April 17, 1974, with attachments, re- travel costs in a particular circumstance quests our comments on the advisability constitutes a gift, by enactment of section of issuing a briefing paper on the legal 7342 of title 5, United States Code, enti- ramifications of the acceptance by Mem- tled ‘‘Receipt and disposition of foreign bers of Congress, or staff, of trips abroad gifts and decorations,’’ the Congress has that are paid for by foreign governments. given its consent to (quoting the Code We are not aware of any decision by provision in part)— any forum as to the legality of such trips. ‘‘(1) the accepting and retaining by The question arises because of the prohi- an employee of a gift of minimal value bition contained in article I, section 9, tendered or received as a souvenir or clause 8, of the United States Constitu- mark of courtesy; and tion, which reads as follows: ‘‘(2) the accepting by an employee of ‘‘No Title of Nobility shall be granted a gift of more than minimal value by the United States: And no Person when it appears that to refuse the gift holding any Office of Profit or Trust would be ]ikely to cause offense or em- under them, shall, without the Consent barrassment or otherwise adversely af- of the Congress, accept of any present, fect the foreign relations of the United Emolument, Office, or Title of any kind States. whatever, from any King, Prince, or for- ‘‘However, a gift of more than mini- eign State.’’ mal value is deemed to have been ac- In connection with this provision, we cepted on behalf of the United States have viewed the term ‘‘present’’ as ‘‘syn- and shall be deposited by the donee for

1763 Ch. 12 App. DESCHLER’S PRECEDENTS

use and disposal as the property of the Reason for Issuance.—The Committee United States under regulations pre- has been requested in writing to express scribed under this section.’’ an opinion on the propriety of Members The term ‘‘employee’’ is defined in sec- and staff of the U.S. House of Represent- tion 7342 as including members of Con- atives accepting non-paid transportation gress. provided under a number of cir- By Executive Order 11320, the Presi- cumstances. In order that all may be on dent delegated to the Secretary of State notice, the response to that request is the authority to issue regulations imple- made in this Committee Advisory Opin- menting this statute. These regulations ion. are contained in part 3 of title 22, Code of Federal Regulations (CFR). A ‘‘gift of Background.—It is necessary and de- minimal value’’ is defined as ‘‘any sirable that Members and employees of present or other thing, other than a deco- the U.S. House of Representatives, being ration, which has a retail value not in public officials, maintain maximum con- excess of $50 in the United States.’’ 22 tact with the public at large to provide CFR § 3.3(e). The statute and regulations information on the work of the House do not specifically cover trips, and the and to gain citizen input into the legisla- legislative history of the Foreign Gifts tive process. To accomplish this, consid- and Decorations Act of 1966, of which erable travel is required. Under some cir- section 7342 is a part, indicates that the cumstances, such travel may be appro- statute contemplated gifts of tangible priately provided by other than commer- items. In any event, the intent seems cial means. Conversely, in some cir- clear that, although a gift of more than cumstances non-paid transportation of- minimal value may be ‘‘accepted’’ in the fers should be declined. It is the intent of limited situations indicated, the value of this Advisory Opinion to address both such gift is not to inure to the benefit of the individual recipient. Accordingly, it is situations. our view that section 7342 would not The distinction turns on the purpose of permit the acceptance of gifts of trips the transportation. At times, it will be abroad by Members of Congress or mem- clear that there is a single identifiable bers of their staffs that are paid for by purpose. At other times there may be foreign governments. more than one purpose involved. The We see no objection to the issuance of Committee stresses that the opinions a briefing paper, setting forth the above hereafter stated deal with the principal views of our Office, in order to provide purpose for taking the trip, such purpose guidance to Members of the Congress re- to be fairly determined by the person in- garding this matter. volved, before acceptance of any nonpaid transportation. Sincerely yours, Non-Paid Transportation Offers To Be R. F. KELLER, Acting Comptroller General Declined.—If the principal purpose of the of the United States. trip is political campaign activity, and the host carrier is one who would be pro- ADVISORY OPINION NO. 4 hibited by law from making a campaign contribution, such non-paid transpor- (Issued May 14, 1975) tation would amount to a political con- ON THE PROPRIETY OF ACCEPTING CER- tribution in kind, and should not be ac- TAIN NON-PAID TRANSPORTATION cepted.

1764 CONDUCT OR DISCIPLINE Ch. 12 App.

If the trip is principally for noncam- construed as accruing to the benefit of paign purposes, and the person involved the audience—not the passenger—and it were to request the host carrier to sched- would not be improper to accept such ule transportation expressly for the con- transportation. venience of the congressional passenger, The above principle can be similarly such request could be interpreted as applied to situations in which a congres- abuse of one’s public position and should sional passenger is transported in con- be avoided. nection with the receipt of an hono- Non-Paid Transportation Offers Which rarium. Under such circumstances, the may be Accepted.—If the purpose of the transportation may be accepted in lieu of trip is principally representational or monetary reimbursement for travel to even personal, and if the host carrier’s which the passenger would otherwise be purpose in scheduling the transportation entitled. is solely for the general benefit of the Congressional officials, like other pub- host, and the transportation is furnished lic officials and private persons, are on on a space-available basis with no addi- occasion invited as guests on scheduled tional costs incurred in providing the ac- airlines’ inaugural flights. Specific au- commodation, it would not be improper thority to provide such non-paid trans- to accept such transportation. portation is contained in 14 CFR 223.8 If the purpose of the transportation is and 399.34. Assuming that the condi- to enable the congressional passenger, in tions of these sections are strictly met, his role as a public official, to be present the Committee finds that there would be at an event for the general benefit of an nothing improper in the acceptance of audience, the accommodation should be such inaugural flights.

1765 CHAPTER 13

Powers and Prerogatives of the House

A. Generally § 1. Scope § 2. Admitting States to the Union

B. War Powers § 3. In General § 4. War Powers Act § 5. Declarations of War § 6. —House Action § 7. —Senate Action § 8. Legislation Authorizing Military Action Prior to War Powers Act § 9. Pre-World War II Legislative Restrictions on Mili- tary Activity § 10. Vietnam Era Restrictions on Military Activity § 11. Receipt of Presidential Messages § 12. Presidential Proclamations

C. House Prerogative to Originate Revenue Bills § 13. In General § 14. Consideration of Objections § 15. Return of Senate Legislation § 16. Tabling Objection to Infringement § 17. Referring Objection to Committee § 18. Action on House Bill in Lieu of Senate Bill

Commentary and editing by Thomas J. Nicola, J.D.

1767 Ch. 13 DESCHLER’S PRECEDENTS

§ 19. Senate Action on Revenue Legislation § 20. Authority to Make Appropriations

D. Congress and the Budget; Impoundment § 21. In General; Congressional Budget Act

E. Relations With Executive Branch § 22. In General; Confirmation of Nomination for Vice President § 23. Executive Reorganization Plans

Appendix

INDEX TO PRECEDENTS

ACTION agency reorganization plan, Army, Navy, and Air Force, Depart- §§ 23.1, 23.2 ments of, reorganization plan af- Agriculture and Interior, Depart- fecting, § 23.9 ments of, reorganization plan af- Backdoor spending, controls on, § 21 fecting, § 23.8 Bases, exchange of destroyers for, Air Force, Army, and Navy, Depart- § 11.7 ments of, reorganization plan af- Berlin, resolution to protect, § 8.9 fecting, § 23.9 Buckley v Valeo, § 22.2 Alaska, admission of, to Union, § 2.1 Budget, Bureau of, reorganization American forces in Iceland, an- plan affecting, § 23.3 nouncement of arrival of, § 11.8 Budget Committee, § 21 American ports, proclamation re- Budget, congressional procedure to garding use of, by belligerent na- establish, Legislative Reorganiza- tions, § 12.5 Appropriate, resolution regarding tion Act of 1946 as affecting, § 21.1 Senate authority to, § 20.1 Budget control by Congress, § 21 Appropriation for Department of Ag- Bulgaria, House declaration of war riculture, Senate, § 20.2 as to, § 6.4 Appropriation for District of Colum- Bulgaria, Hungary, and Rumania, re- bia, Senate, §§ 20.3, 20.4 quest for declaration of war on, Approval, by committee, of House § 11.3 bill in lieu of Senate bill, §§ 18.4, Bulgaria, Senate declaration of war 18.5 as to, § 7.4 Approval, on floor, of House bill in Cambodia and Laos, prohibition of lieu of Senate bill, §§ 18.1–18.3 military support for, § 10.2

1768 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13

Cambodia, Laos, and North and Embargo on trade with Cuba, procla- South Vietnam, prohibition of mation of, § 12.2 funds for military activities in, Emergency, proclamation of, regard- after fixed date, § 10.4 ing Korea, § 12.1 Cambodia, North and South Viet- Environmental Protection Agency nam, and Laos, prohibition of reorganization plan, § 23.16 funds for military activity in, after Executive Office of the President fixed date, § 10.5 and federal agencies, reorganiza- Cambodia, prohibition of American tion plan affecting, § 23.15 ground forces from, § 10.3 Federal agencies and Executive Of- Chair, constitutional issue not de- fice of the President reorganiza- cided by, § 19.1 tion plan, § 23.15 Civil Aeronautics Board reorganiza- Federal Communications Commis- tion plan, § 23.6 sion reorganization plan, §§ 23.17, Commerce, Department of, reorga- 23.18 nization plan affecting, § 23.10 Federal Home Loan Bank Board re- Committee approval of House bill in organization plan, § 23.19 Federal maritime functions reorga- lieu of Senate bill, §§ 18.4, 18.5 nization plan, § § 23.20, 23.21 Committee jurisdiction of bill inci- Federal Savings and Loan Insurance dentally producing revenue, Sen- Corporation reorganization plan, ate, § 19.2 § 23.22 Community Relations Service reor- Federal Security Agency, Social Se- ganization plan, § 23.7 curity Board, and United States Concurrent resolutions on budget, Employment Service reorganiza- §21 tion plan, § 23.23 Congressional Budget Act of 1974, Federal Trade Commission reorga- §21 nization plan, § 23.24 Congressional Budget Office, § 21 Floor approval of House bill in lieu Congressional session, proclamation of Senate bill, §§ 18.1–18.3 convening extraordinary, for neu- Forces, see military forces trality legislation, § 12.3 Ford, Gerald R., confirmation of, as Constitutional issue decided by Sen- Vice President, § 22.1 ate, § 19.1 Foreign nations and Germany, proc- Cuba missile crisis, authorization to lamation regarding war between, activate reserves during, § 8.11 § 12.4 Cuba, proclamation of embargo on Formosa and Pescadores, request for trade with, § 12.2 authority to protect, § 11.5 Cuba, resolution regarding Soviet Formosa and Pescadores, resolution weapons in, §§ 8.7, 8.8 to protect, §§ 8.3, 8.4 Deletion of tariff schedule amend- Funds, prohibition of, for military ments by Senate, § 19.5 activities in North and South Viet- Destroyers for bases, announcement nam, Laos, and Cambodia, § 10.4 of exchange of, § 11.7 Germany and foreign nations, proc- District of Columbia government re- lamation regarding war between, organization plan, § 23.14 § 12.4

1769 Ch. 13 DESCHLER’S PRECEDENTS

Germany and Italy, request for dec- Italy, House declaration of war on, laration of war on, § 11.2 § 6.3 Germany, House declaration of war Italy, Senate declaration of war on, on, § 6.2 § 7.3 Germany, Senate declaration of war Japan, House declaration of war on, on, § 7.2 § 6.1 Germany, termination of state of Japan, request for declaration of war with, § 3.1 war on, § 11.1 Gulf of Tonkin Resolution, §§ 8.1, 8.2 Japan, Senate declaration of war on, Hawaii, admission of, to Union, § 2.2 § 7.1 Health, Education, and Welfare reor- Jurisdiction of bill incidentally pro- ganization plan, acceleration of ef- ducing revenue, Senate committee, fective date for, §§ 23.33, 23.34 § 19.2 Housing, Department of Urban Af- Korea, proclamation of national fairs and, reorganization plan af- emergency regarding, § 12.1 fecting, § 23.13 Labor, Department of, reorganiza- Housing, lending, and insuring agen- tion plan, §§ 23.11, 23.12 cies reorganization plan, § 23.25 Laos and Cambodia, prohibition of Hungary, Bulgaria, and Rumania, re- military support for, § 10.2 quest for declaration of war on, Laos and Thailand, prohibition of § 11.3 American ground forces from, Hungary, House declaration of war § 10.1 on, § 6.5 Laos, Cambodia, and North Vietnam, Hungary, Senate declaration of war prohibition of funds for military on, § 7.5 activities in, after fixed date, § 10.4 Iceland, announcement of arrival of Laos, North and South Vietnam, and American forces in, § 11.8 Cambodia, prohibition of military Impoundment Act of 1974, § 21 activity in, after fixed date, § 10.5 Impoundment controls by Congress, Lebanon, announcement of deploy- §21 ment of Marines to, § 11.9 Infringement of House revenue pre- Lending, housing, and insuring rogative, Senate amendment to agencies reorganization plan, House bill as, § 19.4 § 23.25 Infringement of House revenue pre- Lend-lease Act, § 9.3 rogative, Senate amendment to Marines, announcement of deploy- Senate bill as, § 19.3 ment of, to Lebanon, § 11.9 Insuring, lending, and housing agen- Maritime functions, reorganization cies reorganization plan, § 23.25 plan for federal, §§ 23.20, 23.21 Interior and Agriculture, Depart- Middle Eastern nations, request for ments of, reorganization plan af- authority to protect, § 11.4 fecting, § 23.8 Middle Eastern nations, resolution Internal Revenue, Bureau of, and to protect, §§ 8.5, 8.6 Department of the Treasury reor- Military activities, prohibition of ganization plan, § 23.4 funds for, in North and South Viet- Italy and Germany, request for dec- nam, Laos, and Cambodia, after laration of war on, § 11.2 fixed date, § 10.4

1770 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13

Military assistance to American Re- military activities in, after fixed publics, § 9.2 date, § 10.4 Military forces (American), an- North and South Vietnam, Laos, and nouncement of arrival of, in Ice- Cambodia, prohibition of military land, § 11.8 involvement in, after fixed date, Military forces (American), prohibi- § 10.5 tion of, from Cambodia, § 10.3 Objection to Senate general surtax Military forces (American), prohibi- amendment to House excise tax tion of, from Thailand and Laos, bill, tabling, § 16.1 § 10.1 Pescadores and Formosa, request for Military forces, inducted, limited to authority to protect, § 11.5 western hemisphere, § 9.5 Pescadores and Formosa, resolution Military forces (Marines), announce- to protect, §§ 8.3, 8.4 ment of deployment of, to Leb- Ports (American), proclamation re- anon, § 11.9 garding use of, by belligerent na- Military forces, reserve, authorizations, § 12.5 Postponing vote on reorganization tion to activate, §§ 8.10, 8.11 plan, § 23.35 Military forces, reserve, limited to Prerogative to raise revenue, Senate western hemisphere, § 9.4 amendment to House bill as in- Military involvement, prohibition of, fringement of, § 19.4 in North and South Vietnam, Laos, Prerogative to raise revenue, Senate and Cambodia after fixed date, amendment to Senate bill as in- § 10.5 fringement of, § 19.3 Military support for Cambodia and Prerogatives of House, infringement Laos prohibited, § 10.2 of, as privileged matter, § 14.1 Narcotics, Bureau of, reorganization Prerogatives of House, timeliness of plan, § 23.5 objection to alleged Senate in- National emergency, proclamation fringement of, § 14.2 of, regarding Korea, § 12.1 President, Executive Office of, and National Labor Relations Board re- federal agencies, reorganization organization plan, §§ 23.26, 23.27 plan affecting, § 23.15 National Oceanic and Atmospheric President’s authority to exchange Administration reorganization ships for bases, opinion of Attor- plan, § 23.28 ney General on, § 3.2 Navy, Army, and Air Force, Depart- Privileged matter, infringement of ments of, reorganization plan af- House prerogative as, § 14.1 fecting, § 23.9 Reconstruction Finance Corporation Neutrality Act, § 9.1 reorganization plan, § 23.30 Neutrality legislation, extraordinary Referral to committee of objection to congressional session convened Senate authorization to use securi- for, § 12.3 ties proceeds as debt, § 17.1 Neutrality legislation, request for, Reorganization plans § 11.6 ACTION, §§ 23.1, 23.2 North and South Vietnam, Laos, and Agriculture and Interior, Departments Cambodia, prohibition of funds for of, § 23.8

1771 Ch. 13 DESCHLER’S PRECEDENTS

Reorganization plans—Cont. Reorganization plans—Cont. Army, Navy, and Air Force, Depart- postponing vote on, § 23.35 ments of, § 23.9 priority of consideration, § 23.36 Budget, Bureau of, § 23.3 Reconstruction Finance Corporation, Civil Aeronautics Board, § 23.6 § 23.30 Commerce, Department of, § 23.10 Science, Office of, § 23.29 Community Relations Service, § 23.7 Securities and Exchange Commission, District of Columbia government, §§ 23.31, 23.32 § 23.14 Social Security Board, Federal Security Environmental Protection Agency, Agency, and United States Employ- § 23.16 ment Service, § 23.23 Executive Office of the President and United States Employment Service, federa1 agencies, § 23.15 Federal Security Agency, and Social Federal Communications Commission, Security Board, § 23.23 §§ 23.17, 23.18 Urban Affairs and Housing, Depart- Federal Home Loan Bank Board, ment of, § 23.13 § 23.19 Reserve forces, authorization to acti- Federal Savings and Loan Insurance vate, §§ 8.10, 8.11 Corporation, § 23.22 Reserve forces limited to Western Federal Security Agency, United Hemisphere, § 9.4 States Employment Service, and So- Return of Senate measure cial Security Board, § 23.23 adding another tax to House bill, § 15.8 Federal Security, Federal Works, and loan agencies and Executive Office of amending Firearms Act, § 15.7 the President, § 23.15 amending Silver Purchase Act, § 15.1 Federal Trade Commission, § 23.24 amending Tariff Act of 1930, § 15.2 Health, Education, and Welfare, De- amending tariff provisions, § 15.6 partment of, acceleration of effective exempting olympic game receipts from date for, §§ 23.33, 23.34 taxation, § 15.3 insuring, housing, and lending agen- raising duty on fishery products, § 15.5 cies, § 23.25 redetermining sugar quota, § 15.4 Internal Revenue, Bureau of, and De- Revenue-raising prerogative, Senate partment of the Treasury, § 23.4 amendment to House bill as in- Labor, Department of, §§ 23.11, 23.12 fringement of, § 19.4 lending, housing, and insuring agen- Revenue-raising prerogative, Senate cies, § 23.25 amendment to Senate bill as in- maritime functions, §§ 23.20, 23.21 fringement of, § 19.3 Narcotics, Bureau of, § 23.5 Rumania, Bulgaria, and Hungary, re- National Labor Relations Board, quest for declaration of war on, §§ 23.26, 23.27 § 11.3 National Oceanic and Atmospheric Ad- Rumania, House declaration of war ministration, § 23.28 on, § 6.6 Navy, Army, and Air Force, Depart- Rumania, Senate declaration of war ments of, § 23.9 on, § 7.6

1772 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13

Science, Office of, reorganization Timetable for budget preparation, plan affecting, § 23.29 §21 Securities and Exchange Commis- Treasury, Department of, and Bu- sion reorganization plan, § § 23.31, reau of Internal Revenue reorga- 23.32 nization plan, § 23.4 Senate appropriation for Depart- United States Employment Service, ment of Agriculture, § 20.2 Federal Security Agency, and So- Senate appropriation for District of cial Security Board reorganization Columbia, §§ 20.3, 20.4 plan, § 23.23 Senate authority to appropriate, res- Urban Affairs and Housing, Depart- olution regarding, § 20.1 ment of, reorganization plan, Senate bill, committee approval of § 23.13 House bill in lieu of, §§ 18.4, 18.5 Veto of War Powers Resolution, § 4.1 Senate bill, floor approval of House Vice President, confirmation of Ger- bill in lieu of, §§ 18.1-18.3 ald R. Ford as, § 22.1 Senate bill, return of, see Return of Vietnam, North and South, Cam- Senate measure bodia and Laos, prohibition of Senate committee jurisdiction of bill incidentally producing revenue, funds for military activities in, § 19.2 after fixed date, § 10.4 Senate deletion of tariff schedule Vietnam, North and South, Cam- amendments, § 19.5 bodia and Laos, prohibition of Senate infringement of House pre- military activity in, after fixed rogatives, timeliness of objection date, § 10.5 to, § 14.2 War Senate withdrawal of Internal Rev- Bulgaria, declaration of war on, by enue Code amendments, § 19.6 House, § 6.4 Social Security Board, Federal Secu- Bulgaria, declaration of war on, by rity Agency, and United States Em- Senate, § 7.4 ployment Service reorganization Bulgaria, Hungary, and Rumania, re- plan, § 23.23 quest for declaration of war on, South and North Vietnam, Laos, and § 11.3 Cambodia, prohibition of funds for Germany and foreign nations, procla- military activities in, after fixed mation regarding war between, date, § 10.4 § 12.4 States, admission of, to Union Alaska, § 2.1 Germany and Italy, request for declaration of war on, § 11.2 Hawaii, § 2.2 Germany, declaration of war on, by Tabling objection to Senate general House, § 6.2 surtax amendment to House excise tax bill, § 16.1 Germany, declaration of war on by Thailand and Laos, prohibition of Senate, § 7.2 American ground forces from, Hungary, Bulgaria, and Rumania, re- § 10.1 quest for declaration of war on, Timeliness of objection to alleged § 11.3 Senate infringement of House pre- Hungary, declaration of war on, by rogatives, § 14.2 House, § 6.5

1773 Ch. 13 DESCHLER’S PRECEDENTS

War—Cont. War—Cont. Hungary, declaration of war on, by Rumania, declaration of war on, by Senate, § 7.5 House, § 6.6 Italy and Germany, request for declaration of war on, § 11.2 Rumania, declaration of war on, by Italy, declaration of war on, by House, Senate, § 7.6 § 6.3 War Powers Resolution Italy, declaration of war on, by Senate, § 7.3 passage of, § 4.2 Japan, declaration of war on, by veto of, § 4.1 House, § 6.1 Western Hemisphere, inducted land Japan, declaration of war on, by Sen- ate, § 7.1 forces limited to, § 9.5 Japan, request for declaration of war Western Hemisphere, reserve forces on, § 11.1 limited to, § 9.4 Rumania, Bulgaria, and Hungary, request for declaration of war on, Withdrawal of Internal Revenue § 11.3 Code amendments by Senate, § 19.6

1774 Powers and Prerogatives of the House

A. GENERALLY § 1. Scope states concerned as well as the Congress.(2)

This chapter does not exhaus- tively treat the powers of Con- gress enumerated in the Constitu- Alaska tion. It is intended, rather, as a discussion of selected areas, in- § 2.1 The House and Senate cluding some in which issues have agreed to a bill admitting arisen, or may arise, as to the rel- Alaska into the Union. ative scope of authority of Con- ( ) gress and other branches of gov- The House on May 28, 1958, 3 ernment.(1) and the Senate on June 30, 1958,(4) agreed to H.R. 7999, admitting Alaska into the Union. § 2. Admitting States to The measure was approved on the Union July 7, 1958.(5)

Article IV, section 3, clause 1, Hawaii empowers Congress to admit new states to the Union. No new state § 2.2 The Senate and House may be formed within the jurisdic- agreed to a bill admitting tion of any other state or by the Hawaii into the Union. junction of two or more states, or parts of states, without the con- 2. See House Rules and Manual § 216 sent of the legislatures of the two (1973); and Constitution of the United States of America: Analysis 1. See Ch. 11, supra, for a discussion of and Interpretation, S. Doc. No. 9282, the related subject, privilege of the 92d Cong. 2d Sess., pp. 842–845 House, and Ch. 24, infra, for a dis- (1973) for discussion of this provi- cussion of congressional vetoes. sion. See also 2 Hinds’ Precedents 3. 104 CONG. REC. 9756, 9757, 85th §§ 1480–1561; and 6 Cannon’s Prece- Cong. 2d Sess. dents §§ 314–329, for treatment of 4. Id. at p. 12650. precedents arising prior to 1936. 5. 572 Stat. 339 (Pub. L. No. 85–508).

1775 Ch. 13 § 2 DESCHLER’S PRECEDENTS

The Senate on Mar. 11, 1959,6 to S. 50 in lieu of H.R. 4221.8 S. and the House on Mar. 12, 1959,7 50 was approved on Mar. 18, agreed to S. 50 admitting Hawaii into the Union. The House agreed 1959.9

B. WAR POWERS

§ 3. In General essary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Con- Article I, section 8, clauses 11– stitution in the Government of the 14 of the Constitution describe the United States, or in any Department fundamental war powers of Con- or Officer thereof. gress, including: A more general grant of authority To declare War, grant Letters of appears in article I, section 8, Marque and Reprisal, and make Rules clause 1, ‘‘Congress shall have concerning Captures on Land and Power to lay and collect Taxes, Water; (10) Duties, Imposts and Excises, to To raise and support Armies, but no pay the Debts and provide for the Appropriation of Money to that Use common Defense and general Wel- shall be for a longer Term than two Years; fare of the United States. . . .’’ To provide and maintain a Navy; In addition to these powers, ar- To make Rules for the Government ticle I, section 8, clauses 15 and and Regulation of the land and naval 16 grant Congress power over the Forces. . . . militia, including: Like all powers of Congress, the To provide for calling forth the Mili- war power must also be under- tia to execute the Laws of the Union, stood in light of the general grant suppress Insurrections and repel Inva- of legislative authority of article I, sions; section 8, clause 18: To provide for organizing, arming, and disciplining, the Militia, and for The Congress shall have Power . . . governing such Part of them as may be To make all Laws which shall be nec- employed in the Service of the United

6. 105 CONG. REC. 3890, 86th Cong. 1st the unanimous-consent agreement to Sess. consider S. 50 in lieu of H.R. 4221. 7. Id. at pp. 4038, 4039. 9. 73 Stat. 4 (Pub. L. No. 86–3). 8. See 105 CONG. REC. 4005, 86th 10. See § 5, infra, for a discussion of au- Cong. 1st Sess., Mar. 12, 1959, for thority to declare war.

1776 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 3

States, reserving to the States respec- the Army and Navy of the United tively, the Appointment of the Officers, States, and of the Militia of the and the Authority of training the Mili- several States, when called into tia according to the discipline prescribed by Congress. . . . the actual Service of the United States. . . .’’ Closely related to authority to The precedents in this division protect the states is article IV, focus primarily on congressional section 4, which imposes duties on authorization of and limitations the United States without speci- on use of force by the Commander fying a particular political depart- in Chief.(13) ment: Although the Supreme Court The United States shall guarantee to has declined to pass on the con- every State in this Union a Republican stitutionality of the ‘‘peacetime’’ Form of Government, and shall protect draft, lower courts have uniformly each of them against Invasion; and on held that the congressional power Application of the Legislature, or of the Executive (when the Legislature can- to raise armies is not limited by not be convened) against domestic vio- the absence of a declaration of lence. war.(14) In upholding a statute Significant among constitutional prohibiting destruction of a selec- grants of authority are provisions tive service registrant’s registra- relating to raising and supporting tion certificate, Chief Justice War- an army and providing and main- ren, speaking for the court majority, observed that, ‘‘. . . the power taining a navy. Pursuant to this of Congress to classify and con- authority Congress prohibited use script manpower for military serv- of conscripts and reserves beyond the Western Hemisphere prior to 13. See §§ 5, 8, infra, for discussion of World War II(11) and prohibited the authorization of use of force by expenditure or obligation of funds declaration of war and by statute, re- for military purposes in certain spectively; and §§ 9, 10, infra, for countries of Indochina during the precedents relating to restrictions on use of force. conflict in Vietnam.(12) 14. Constitution of the United States of Article II, section 2, clause 1 America: Analysis and Interpreta- provides that, ‘‘The President tion, S. Doc. No. 92–82, 92d Cong. 2d shall be Commander in Chief of Sess., p. 331 (1973). See, for example, Hart v United States, 382 F2d 11. See §§ 9.4, 9.5, infra, for illustrations 1020 (3d Cir. 1967), cert. denied, 391 of these restrictions. U.S. 956 (1968); and United States v 12. See the precedents in § 10, infra, for Holmes, 387 F2d 781 (7th Cir. 1967), these restrictions. cert. denied, 391 U.S. 936 (1968).

1777 Ch. 13 § 3 DESCHLER’S PRECEDENTS ice is ‘beyond question.’ ’’ (15) In a committing troops to hostilities, dissent, Justice Douglas denied and include discussion of institu- that the question of peacetime tional means to insure congres- ( ) conscription was settled. 16 sional judgment in such cir- Wartime conscription does not cumstances; (19) declarations of deprive the states of the right to a war; (20) authorization of use of well-regulated militia or violate force and activation of reserves by the 13th amendment which pro- (17) legislation short of declarations of hibits involuntary servitude. In (1) making this determination, the war; restrictions on use of force and deployment of troops before Supreme Court rejected the con- ( ) tention that congressional power World War II 2 and during the to exact compulsory service was Vietnam era; (3) receipt of Presi- limited to calling forth the militia dential messages; (4) and publica- for the three purposes specified in tion of Presidential proclama- the Constitution,(18) despite the tions.(5) fact that none of these purposes ( ) explicitly comprehend service Collateral References 6 abroad. Berdahl, Clarence Arthur. War Powers of The sections in this division the Executive in the United States. focus on the role of Congress in Johnson Reprint Corp., New York 1970 [c1921]. 15. United States v O’Brien, 391 U.S. Berger, Raoul. War-making by the Presi- 367, 377 (1967). The internal dent. 121 U. of Pa. L. Rev. 29–86 (Nov. quotation was taken from Lichter v 1972). See 119 CONG. REC. 4568–84, United States, 334 U.S. 742, 756 93d Cong. 1st Sess., Feb. 20, 1973, for (1948) which upheld the wartime re- a reprint of this article. negotiation Act as a constitutional Bickel, Alexander. Congress, the Presi- exercise of the authority of Congress dent and the Power to Wage War. 48 to ‘‘make all Laws which shall be necessary and proper for carrying 19. § 4, infra. into Execution the foregoing Pow- 20. §§ 5–7, infra. ers.’’ 1. § 8, infra. 16. United States v O’Brien, 391 U.S. 2. § 9, infra. 367, 389 (1967). See his dissent to 3. § 10, infra. the denial of certiorari in Holmes v 4. § 11, infra. United States, 391 U.S. 936 (1968). 5. § 12, infra. 17. Selective Draft Law Cases, 245 U.S. 6. The articles in this section relate to 381 (1918). war powers generally. See collateral 18. Id. These purposes are to execute the references in § 4, infra, War Powers laws of the Union, suppress insurrec- Act, and § 10, infra, Vietnam Era Re- tions, and repel invasions. See U.S. strictions on Military Activity, for ar- Const. art. I, § 8, clause 15. ticles relating to these areas.

1778 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 3

Chicago-Kent L. Rev. 131 (Fall-Winter Moore, John Norton. The National Exec- 1971). utive and the Use of Armed Forces Campisi, Dominic J. Honored in the Abroad. 21 Naval War Coll. Rev. 28 Breech: Presidential Authority to Exe- (1969), reprinted in The Vietnam War cute the Laws with Military Force. 83 and International Law, Princeton Uni- Yale L.J. 130 (1973). versity Press, Princeton, N.J. 808 Coolidge, Francis L., Jr., and Sharrow, (1969). Joel David. The War-Making Powers: Pusey, Merlo John. The Way We Go to The Intentions of the Framers in Light War. Houghton Mifflin Co., Boston of Parliamentary History. 50 Boston (1969). U.L.R. 4 (Spring 1970). Ratner, Leonard G. The Coordinated Deutsch, Eberhard P. The President as War-Making Power—Legislative, Exec- Commander in Chief. 57 A.B.A.J. 27 utive, and Judicial Roles. 44 So. Calif. (1971). L. Rev. 461–89 (Winter 1971). Emerson, J. Terry. War Powers: An Inva- Rehnquist, William H. The Constitu- sion of Presidential Prerogative. 58 tional Issues—Administration Position. A.B.A.J. 809 (1972). 45 N.Y.U. L. Rev. 628–39 (June 1970). Fulbright, J. W. Congress, the President Reveley, W. Taylor, III. Presidential and the War Power. 25 Ark. L. Rev. War-Making: Constitutional Preroga- 71–84 (Spring 1971). tive or Usurpation? 55 Va. L. Rev. Goldwater, Barry M. The President’s 1243–305 (Nov. 1969). Constitutional Primacy in Foreign Re- Rogers, William P. Congress, the Presi- lations and National Defense. 13 Va. dent, and the War Powers. 59 Calif. L. Jour. of International Law 463–89 Rev. 1194–214 (Sept. 1971). (Summer 1973). Round Table: The Role of Congress. 65 Keown, Stuart S. The President, the American Journal of International Law Congress, and the Power to Declare 168 (Sept. 1971) [proceedings of the War. 16 U. of Kansas L.R. 82 (Nov. American Society of International Law 1967). at its 65th annual meeting, Wash., Lofgren, Charles A. War-Making Under D.C., Apr. 29, May 1, 1971 (partici- the Constitution: The Original Under- pants: Jacob Javits, Paul Findley, standing. Yale L.J. 672 (1972). George Ball, and McGeorge Bundy)]. May, Ernest. The Ultimate Decision: The Schlesinger, Arthur, Jr. Congress and President as Commander in Chief. G. the Making of American Foreign Pol- Braziller (1960). icy. 5 Foreign Affairs 78 (Oct. 1972). McKay, Robert B. The Constitutional Shaffer, Lewis A. Presidential Power to Issues—the Opposition Position. 45 Make War. 7 Ind. L. Rev. 900–24 N.Y.U.L.R. 640 (1970) [reply to (1974). Rehnquist, William H., The Constitu- Velvel, L. R. Constitution and the War: tional Issues—Administration Position, Some Major Issues. 49 Jour. of Urban 45 N.Y.U.L.R. 628 (1970)]. Law—U. of Detroit 231–95 (Nov. Monaghan, Henry P. Presidential War- 1971). Making. 50 Boston U.L.R. 19 (Spring Wright, Quincy. The Power of the Execu- 1970). tive to Use Military Forces Abroad. 10

1779 Ch. 13 § 3 DESCHLER’S PRECEDENTS

Va. Jour. of International Law 42–57 America in Congress assembled, That (Dec. 1969). the state of war declared to exist be-

tween the United States and the Gov- ernment of Germany by the joint reso- Termination of State of War lution of Congress approved December 11, 1941, is hereby terminated and With Germany such termination shall take effect on § 3.1 The House and Senate the date of enactment of this resolution: Provided, however, That notwith- agreed to a House joint reso- standing this resolution and any proc- lution terminating the state lamation issued by the President pur- of war between the United suant thereto, any property or interest States and the government of which prior to January 1, 1947, was Germany. subject to vesting or seizure under the provisions of the Trading With the (7) On July 27, 1951, the House Enemy Act of October 6, 1917 (40 Stat. by a vote of yeas 379, present 1, 411), as amended, or which has here- not voting 53, agreed to a House tofore been vested or seized under that joint resolution, terminating the Act, including accruals to or proceeds state of war between the United of any such property or interest, shall States and the Government of continue to be subject to the provisions ( ) Germany. On Oct. 18, 1951, 8 the of that Act in the same manner and to Senate by voice vote passed the the same extent as if this resolution measure (9) which was approved had not been adopted and such procla- by the President in the following mation had not been issued. Nothing form: (10) herein and nothing in such proclamation shall alter the status, as it existed JOINT RESOLUTION 289 immediately prior hereto, under that To terminate the state of war between Act, of Germany or of any person with the United States and the respect to any such property or inter- Government of Germany. est. Resolved by the Senate and House of Approved October 19, 1951. Representatives of the United States of Attorney General’s Opinion Re- 7. 97 CONG. REC. 9036, 9049, 9050, 82d Cong. 1st Sess. garding President’s Authority 8. 97 CONG. REC. 13438, 13443, 82d to Exchange Ships for Bases Cong. 1st Sess. 9. See 97 CONG. REC. 13785, 82d Cong. § 3.2 The House received an 1st Sess., Oct. 20, 1951, for notifica- opinion of the Attorney Gen- tion to the Clerk of Presidential ap- eral outlining the President’s proval. 10. This excerpt is taken from 65 Stat. authority to acquire offshore 451, 82d Cong. 1st Sess. (Pub. L. No. naval and air bases from 82–181). Great Britain and transfer 1780 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 3

American destroyers to British Guiana, such rights to endure Great Britain. for a period of 99 years and to include adequate provisions for access to and On Sept. 3, 1940,(11) the House defense of such bases and appropriate received an opinion from the At- provisions for their control. torney General (12) as to the au- (b) In consideration it is proposed to thority of the President to enter transfer to Great Britain the title and possession of certain over-age ships into agreements for the acquisi- and obsolescent military materials now tion of offshore military bases (see the property of the United States and below). The opinion accompanied certain other small patrol boats which, the President’s message regarding though nearly completed, are already the agreements in question.(13) obsolescent. (c) Upon such transfer all obligation AUGUST 27, 1940. of the United States is discharged. . . . The PRESIDENT, The White House. [Our Government] undertakes no defense of the possessions of any country. MY DEAR MR. PRESIDENT: In accord- In short, it acquires optional bases ance with your request, I have consid- which may be developed as Congress ered your constitutional and statutory appropriates funds therefor, but the authority to proceed by Executive United States does not assume any agreement with the British Govern- continuing or future obligation, comment immediately to acquire for the mitment, or alliance. United States certain offshore naval The questions of constitutional and and air bases in the Atlantic Ocean statutory authority, with which alone I without awaiting the inevitable delays am concerned, seem to be these: which would accompany the conclusion First. May such an acquisition be of a formal treaty. concluded by the President under an The essential characteristics of the Executive agreement, or must it be ne- proposal are: gotiated as a treaty, subject to ratifica- (a) The United States to acquire tion by the Senate? rights for immediate establishment Second. Does authority exist in the and use of naval and air bases in New- President to alienate the title to such foundland, Bermuda, the Bahamas, Ja- ships and obsolescent materials; and if maica, Santa Lucia, Trinidad, and so, on what conditions? Third. Do the statutes of the United 11. 86 CONG. REC. 11355–57, 76th Cong. States limit the right to deliver the so- 3d Sess. called mosquito boats now under con- 12. See Borchard, The Attorney Gen- struction or the over-age destroyers by eral’s Opinion on the Exchange of reason of the belligerent status of Destroyers for Naval Bases, 34 Great Britain? . . . American Journal of International Accordingly you are respectfully ad- Law 690 (1940). vised: 13. See § 11.7, infra, for the text of the (a) That the proposed arrangement President’s message. may be concluded as an Executive

1781 Ch. 13 § 3 DESCHLER’S PRECEDENTS

agreement, effective without awaiting The conferees resolved a major ratification. difference in the two measures (b) That there is Presidential power to transfer title and possession of the which related to defining the au- proposed considerations upon certifi- thority of the Commander in cation by appropriate staff officers. Chief to deploy troops. S. 440, sec- (c) That the dispatch of the so-called tion 3, provided that in the ab- mosquito boats would constitute a violation of the statute law of the United sence of a congressional declara- States, but with that exception there is tion of war armed forces could be no legal obstacle to the consummation introduced only in certain cir- of the transaction, in accordance, of cumstances, including repulsion of course, with the applicable provisions of the Neutrality Act as to delivery. an armed attack, protection of Respectfully submitted. American citizens being evacuated ROBERT H. JACKSON, in situations of danger abroad, Attorney General. and pursuant to specific statutory authorization. Sections of the Sen- § 4. War Powers Act ate bill which related to reporting, period of commitment, termi- To ensure proper legislative nation dates, and congressional branch participation in decisions procedures were expressly tied to to deploy American forces, legisla- section 3. House Joint Resolution tion on war powers was intro- 542 did not contain a similar produced in the 91st and 92d Con- vision. ( ) gresses. 14 Section 2(c) in the ‘‘Purpose and In 1973 the House approved Policy’’ provisions of the resolution House Joint Resolution 542. The agreed to by the conferees states: Senate struck all after the enacting clause and inserted in lieu The constitutional powers of the thereof the language of S. 440. President as Commander in Chief to Following a conference, a com- introduce United States Armed Forces into hostilities, or into situations promise between the House and where imminent involvement in hos- (1) Senate versions was agreed to. tilities is clearly indicated by the circumstances, are exercised only pursu- 14. See, for example, H.J. Res. 1355, ant to (1) a declaration of war, (2) spe- 91st Cong. 2d Sess. (1970); S. 2956, cific statutory authorization, or (3) a 92d Cong. 1st Sess. (1971); H.J. Res. national emergency created by attack 1, 92d Cong. 1st Sess. (1971); S. 731, upon the United States, its territories 92d Cong. 1st Sess. (1971). or possessions, or its armed forces. 1. See § 4.2, infra, for the vote overriding the President’s veto of the Unlike the Senate bill, no subse- compromise, H.J. Res. 542. quent section of the resolution re- 1782 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 4 fers to section 2(c), the description case with a similar provision of the of war powers of the Commander Senate bill (section 3). in Chief. Much of the debate on This statement supports an infer- the conference report focused on ence that section 2(c) does not ex- whether the President could intro- haustively define all cir- duce troops only in the situations cumstances in which the Presi- described in section 2(c) and in no dent may deploy troops. ( ) other situation 2 or whether that A nonrestrictive interpretation section merely stated his author- of the three situations described ity in a manner which did not in section 2(c) avoids the question limit his authority to deploy whether Congress may define the ( ) troops. 3 The most revealing ex- constitutional authority of the pression of the intent of the con- Commander in Chief by statute ferees on this controversy appears rather than constitutional amend- in two sentences in the conference ment. The President in his veto report: (4) message asserted that a constitu- Section 2(c) is a statement of the au- tional amendment is the only way thority of the Commander in Chief re- in which constitutional authorities specting the introduction of United of another branch of government States Armed Forces into hostilities. may be altered. A statutory at- . . . Subsequent sections of the joint tempt to make such alterations is resolution are not dependent upon thc (5) language of this subsection, as was the ‘‘clearly without force.’’ The congressional view on this matter is 2. Section 2(a) of the act states that in- expressed in section 2(b) of the suring the collective judgment of act. Citing and interpreting article Congress and the President in the I, section 8, clause 11, of the Con- introduction of American forces into stitution, section 2(b) states the hostilities is a purpose of the act. constitutional provision: 3. In his veto message the President, applying the restrictive interpreta- . . . [P]rovided that the Congress tion of § 2(c), stated that America’s shall have power to make all laws nec- effective response in the Berlin crisis essary and proper for carrying into of 1961, Cuban missile crisis of 1962, execution, not only its own powers but Congo rescue operation of 1964, and also all other powers vested by the the Jordanian crisis of 1970, would Constitution in the Government of the have been ‘‘vastly complicated or United States or in any department or even made impossible.’’ (See 119 officer thereof. CONG. REC. 34990, 34991, 93d Cong. Section 3 of the resolution im- 1st Sess., Oct. 25, 1973.) poses on the President a duty ‘‘in 4. H. REPT. No. 93–547, 2 U.S. Code legis. and Adm. News, p. 2364 (1973) 5. See § 4.1, infra, for the veto message.

1783 Ch. 13 § 4 DESCHLER’S PRECEDENTS every possible instance’’ to consult propriate action by the Congress, with Congress before introducing and requires the President to ter- troops and to consult regularly minate use of armed forces within after such introduction until 60 days after submission of the re- armed forces are no longer en- port, unless Congress (1) has de- gaged in hostilities or have been clared war or enacted specific au- removed from such situations. The thorization, (2) has by law ex- conferees explained that this pro- tended the 60-day period, or (3) is vision is not a limitation upon or physically unable to meet. The 60- substitute for other provisions of day period may be extended not the resolution. The conferees in- more than 30 days. Notwith- tended that consultations take standing the 60-day provision, place even when advance con- forces engaged in hostilities out- sultation is not possible.(6) side the United States, its posses- Section 4 provides that in the sions, and territories must be re- absence of a declaration of war, in moved by the President if Con- any case in which United States gress so directs by concurrent res- Armed Forces are introduced in olution.(7) certain circumstances, the Presi- Section 6 mandates that a joint dent must submit within 48 hours resolution or bill declaring war or to the Speaker and President pro tempore specified information as 7. Id. Statutes have been adopted well as any other information which authorize the use of concurrent resolutions to achieve congres- Congress requests. The President sional purposes and which apply pro- must continue to make reports pe- cedures patterned after the War riodically as long as troops are en- Powers Act. Thus, the statute imple- gaged in hostilities but not less menting the United States proposal often than once every six months. for an early warning system in Sinai The objective of this section, ex- empowers Congress by concurrent plained the conferees, is to insure resolution to remove U.S. civilian that Congress by right and as a personnel from Sinai if it determines matter of law will be provided that their safety is jeopardized or that continuation of their role is no with all the information it needs longer necessary. 22 USC § 2441 to carry out its responsibilities. note, Pub. L. No. 94–110, 89 Stat. Section 5 relates to referral of 572, Oct. 13, 1975. The National the report to committee and ap- Emergencies Act authorizes Con- gress by concurrent resolution to ter- 6. See H. REPT. No. 93–547, 2 U.S. minate a national emergency. 50 Code Legis. and Adm. News, p. 2364 USC § 1622, Pub. L. No. 94–412, 90 (1973). Stat. 1255, Sept. 14, 1976.

1784 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 4 authorizing use of armed forces President to remove forces en- introduced at least 30 days prior gaged in hostilities be referred to to the 60-day period specified in the House Committee on Foreign section 5 be referred in the House Affairs or to the Senate Com- to the Committee on Foreign Af- mittee on Foreign Relations, as fairs (renamed the Committee on the case may be. Such committee International Relations on Mar. must report with recommenda- 19, 1975). When reported by the tions within 15 calendar days un- committee, the measure becomes less otherwise determined by the the pending business and is voted yeas and nays. Such resolution be- on within three calendar days comes the pending business of the thereafter unless otherwise deter- House in question. After passage mined by the yeas and nays. After in one House, the resolution is to passage in one House, the meas- be referred to the counterpart ure is to be referred to the coun- committee in the other House, terpart committee of the other and is to be reported out with rec- House and reported out not later ommendations within 15 calendar than 14 calendar days before the days, at which time it becomes the expiration of the 60-day period pending business of that House. and then voted on. In the case of In the case of disagreement be- disagreement between the two tween the two Houses, conferees Houses, conferees are appointed, must be promptly appointed. The and the conference committee conference committee must report must report on the measure no on the measure within six cal- later than four calendar days be- endar days after referral to the fore the expiration of the 60-day committee of conference. Such re- period. If conferees cannot agree port must be acted on by both within 48 hours, they report back Houses not later than six calendar to their respective Houses in dis- days after the report is filed. agreement. Notwithstanding any Section 8, relating to interpreta- rule concerning printing or delay tion of the joint resolution, states of consideration of conference re- that authority to introduce troops ports, the report must be acted on shall not be inferred from any pro- by both Houses not later than the vision of law unless such provision expiration of the 60-day period. specifically authorizes introduc- Section 7 provides that a con- tion of forces, or from any treaty current resolution introduced pur- unless it is implemented by legis- suant to section 5 directing the lation specifically authorizing in- 1785 Ch. 13 § 4 DESCHLER’S PRECEDENTS troduction of forces. The joint res- Powers. 35 Albany L. Rev. 632–37 olution does not necessitate fur- (1971). ther specific statutory authoriza- Jenkins, Gerald L. The War Powers Res- tion to permit American participa- olution: Statutory Limitation on the Commander in Chief. 11 Harv. Jour. tion in headquarters operations on Legislation 181–204 (Feb. 1974). with armed forces of one or more Rostow, Eugene V. Great Cases Make foreign countries. The term ‘‘intro- Bad Law: The War Powers Act. 50 Tex. duction of United States Armed L. Rev. 833–900 (May 1972). Forces’’ is clarified. The joint reso- Scribner, Jeffrey L. The President Versus lution does not alter constitutional Congress on War-Making Authority. 52 authority of the President or Con- Military Rev. 87 (Apr. 1972). gress. It does not grant any au- Spong, W. B., Jr. Can Balance Be Re- thority to the President which he stored in the Constitutional War Pow- ers of the Prcsident and Congress? 6 would not have had in the ab- U. of Richmond L. Rev. 1–47 (Fall sence of the joint resolution. 1971). Sections 9 and 10 relate to Wallace, Don, Jr. War-making Powers: A separability of provisions and the Constitution Flaw? 57 Cornell L. Rev. effective date, respectively. 719–76 (May 1972). War Powers Legislation, Hearings before (8) Collateral References the Senate Foreign Relations Com- Congress, the President, and War Pow- mittee, 92d Cong. 1st Sess. (1971). ers, hearings before the Subcommittee Wooters, Garry J. The Appropriations on National Security Policy and Sci- Power as a Tool of Congressional For- entific Developments of the House eign Policy Making, 50 Boston U.L.R. Committee on Foreign Affairs 91st 34; reprinted in The Vietnam War and Cong. 2d Sess. (1970). International Law: The Widening Con- Congress and the War Powers. 37 Mo. L. text, Princeton University Press, Rev. 1–32 (Winter 1972). Princeton, N.J., 606 (1972). Eagleton, Thomas F. August 15 Com- promise and the War Powers of Con- gress. 18 St. Louis U.L. Jour. 1–11 (Fall 1973). Veto of War Powers Resolution Emerson, J. T. War Powers Legislation, 74 W. Va. L.R. 53 (Nov.–Jan. 1971– § 4.1 The War Powers Resolu- 1972). tion was vetoed by the Presi- Javits, Jacob K. Congress and the Presi- dent. dent: A Modern Delineation of the War On Oct. 25, 1973,(9) the Presi- 8. See also the collateral references in dent’s veto message outlining his § 3, supra, and § 10, infra, relating to war powers generally and Vietnam 9. 119 CONG. REC. 34990, 34991, 93d era restrictions on military activity. Cong. 1st Sess.

1786 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 4 objections to the War Powers Res- other would allow the Congress to eliminate certain authorities merely olution was laid before the House. by the passage of a concurrent reso- The Speaker (10) laid before the lution—an action which does not House the following veto message from normally have the force of law, since the President of the United States: it denies the President his constitutional role in approving legislation. To the House of Representatives: I believe that both these provisions I hereby return without my ap- are unconstitutional. The only way proval House Joint Resolution 542— in which the constitutional powers of the War Powers Resolution. While I a branch of the Government can be am in accord with thc desire of the altered is by amending the Constitu- Congress to assert its proper role in tion—and any attempt to make such the conduct of our foreign affairs the alterations by legislation alone is restrictions which this resolution clearly without force. would impose upon the authority of While I firmly believe that a veto the President are both unconstitu- of House Joint Resolution 542 is tional and dangerous to the best in- warranted solely on constitutional terests of our Nation. grounds, I am also deeply disturbed The proper roles of the Congress by the practical consequences of this and the Executive in the conduct of resolution. For it would seriously un- foreign affairs have been debated dermine this Nation’s ability to act since the founding of our country. decisively and convincingly in times Only recently, however, has there of international crisis. . . . been a serious challenge to the wis- I am particularly disturbed by the dom of the Founding Fathers in fact that certain of the President’s choosing not to draw a precise and constitutional powers as Commander detailed line of demarcation between in Chief of the Armed Forces would the foreign policy powers of the two terminate automatically under this branches. resolution 60 days after they were The Founding Fathers understood invoked. No overt Congressional ac- the impossibility of foreseeing every tion would be required to cut off contingency that might arise in this these powers—they would disappear complex area. They acknowledged automatically unless the Congress the need for flexibility in responding extended them. . . . to changing circumstances. They rec- This Administration is dedicated ognized that foreign policy decisions to strengthening cooperation be- must be made through close coopera- tween the Congress and the Presi- tion between the two branches and dent in the conduct of foreign affairs not through rigidly codified proce- and to preserving the constitutional dures.... prerogatives of both branches of our House Joint Resolution 542 would Government. I know that the Con- attempt to take away, bv a mere leg- gress shares that goal. A commission islative act, authorities which the on the constitutional roles of the President has properly exercised Congress and the President would under the Constitution for almost provide a useful opportunity for both 200 years. One of its provisions branches to work together toward would automatically cut off certain that common objective. authorities after sixty days unless RICHARD NIXON, the Congress extended them. An- THE WHITE HOUSE, 10. Carl Albert (Okla.). October 24, 1973.

1787 Ch. 13 § 4 DESCHLER’S PRECEDENTS

Passage of War Powers Resolu- affirmative, agreed to override the tion President’s veto of House Joint Resolution 542, the War Powers § 4.2 By a two-thirds vote in Resolution, which became law on each body, the House and Nov. 7, 1973, in the following Senate overrode the Presi- form: (l3) dent’s veto of the War Pow- ers Resolution. SHORT TITLE On Nov. 7, 1973, the House by Section 1. This joint resolution may a vote of yeas 284, nays 135, not be cited as the ‘‘War Powers Resolu- voting 14,(11) and the Senate by a tion’’. vote of yeas 75, nays 18,(12) two- thirds in each body voting in the PURPOSE AND POLICY Sec. 2. (a) It is the purpose of this 11. 119 CONG. REC. 36202, 36221, joint resolution to fulfill the intent of 36222, 93d Cong. 1st Sess. See also the framers of the Constitution of the 119 CONG. REC. 24707, 24708, 93d United States and insure that the col- Cong. 1st Sess., July 18, 1973, for lective judgment of both the Congress initial House approval of this joint and the President will apply to the in- resolution (H. Rept. No. 93–287, 93d troduction of United States Armed Cong. 1st Sess. [1973]); and 119 Forces into hostilities, or into situa- CONG. REC. 33858, 33873, 33874, tions where imminent involvement in 93d Cong. 1st Sess., Oct. 12, 1973, hostilities is clearly indicated by the for consideration and approval of the circumstances, and to the continued conference report (H. Rept. No. 93– use of such forces in hostilities or in 547) by a vote of yeas 238, nays 123, such situations. not voting 73. (b) Under article I, section 8, of the 12. 119 CONG. REC. 36175, 36197, Constitution, it is specifically provided 36198, 93d Cong. 1st Sess. See also that the Congress shall have the power 119 CONG. REC. 25120, 93d Cong. 1st to make all laws necessary and proper Sess., July 20, 1973, for unanimous- for carrying into execution, not only its consent agreement to strike from own powers but also all other powers H.J. Res. 542 all after the resolving vested by the Constitution in the Gov- clause and substitute therefor the ernment of the United States, or in text of the Senate version of the War any department or officer thereof. Powers Resolution, S. 440, which the (c) The constitutional powers of the Senate had just approved (p. 25119) President as Commander-in-Chief to by a vote of yeas 72, nays 18 (S. introduce United States Armed Forces Rept. No. 220, 93d Cong. 1st Sess. [1973]); and 119 CONG. REC. 33569, 13. This excerpt is taken from 87 Stat. 93d Cong. 1st Sess., Oct. 10, 1973, 555, 93d Cong. 1st Sess. (Pub. L. No. for Senate approval of the conference 93–148). It is codified at 50 USC report by a vote of yeas 75, nays 20. §§ 1541 et seq.

1788 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 4 into hostilities, or into situations pro tempore of the Senate a report in where imminent involvement in hos- writing, setting forth— tilities is clearly indicated by the cir- (A) the circumstances necessi- cumstances, are exercised only pursu- tating the introduction of United ant to (1) a declaration of war, (2) spe- States Armed Forces; cific statutory authorization, or (3) a (B) the constitutional and legisla- national emergency created by attack tive authority under which such introduction took place; and upon the United States, its territories (C) the estimated scope and dura- or possessions, or its armed forces. tion of the hostilities or involvement.

CONSULTATION (b) The President shall provide such other information as the Congress may Sec. 3. The President in every pos- request in the fulfillment of its con- sible instance shall consult with Con- stitutional responsibilities with respect gress before introducing United States to committing the Nation to war and to Armed Forces into hostilities or into the use of United States Armed Forces situations where imminent involve- abroad. ment in hostilities is clearly indicated (c) Whenever United States Armed by the circumstances, and after every Forces are introduced into hostilities or such introduction shall consult regu- into any situation described in sub- larly with the Congress until United section (a) of this section, the President States Armed Forces are no longer en- shall], so long as such armed forces gaged in hostilities or have been re- continue to be engaged in such hos- moved from such situations. tilities or situation, report to the Con- REPORTING gress periodically on the status of such hostilities or situation as well as on Sec. 4. (a) In the absence of a dec- the scope and duration of such hos- laration of war, in any case in which tilities or situation, but in no event United States Armed Forces are shall he report to the Congress less introduced— often than once every six months. (1) into hostilities or into situations where imminent involvement CONGRESSIONAL ACTION in hostilities is clearly indicated by Sec. 5. (a) Each report submitted the circumstances; (2) into the territory, airspace or pursuant to section 4(a) (1) shall be waters of a foreign nation, while transmitted to the Speaker of the equipped for combat, except for de- House of Representatives and to the ployments which relate solely to sup- President pro tempore of the Senate on ply, replacement, repair, or training the same calendar day. Each report so of such forces; or transmitted shall be referred to the (3) in numbers which substantially enlarge United States Armed Forces Committee on Foreign Affairs of the equipped for combat already located House of Representatives and to the in a foreign nation; Committee on Foreign Relations of the the President shall submit within 48 Senate for appropriate action. If, when hours to the Speaker of the House of the report is transmitted, the Congress Representatives and to the President has adjourned sine die or has ad-

1789 Ch. 13 § 4 DESCHLER’S PRECEDENTS

journed for any period in excess of CONGRESSIONAL PRIORITY PROCEDURES three calendar days, the Speaker of the FOR JOINT RESOLUTION OR BILL House of Representatives and the President pro tempore of the Senate, if Sec. 6. (a) Any joint resolution or bill they deem it advisable (or if petitioned introduced pursuant to section 5(b) at by at least 30 percent of the member- least thirty calendar days before the ship of their respective Houses) shall expiration of the sixty-day period speci- jointly request the President to con- fied in such section shall be referred to vene Congress in order that it may the Committee on Foreign Affairs of consider the report and take appro- the House of Representatives or the priate action pursuant to this section. Committee on Foreign Relations of the Senate, as the case may be, and such (b) Within sixty calendar days after a report is submitted or is required to committee shall report one such joint be submitted pursuant to section 4(a) resolution or bill, together with its rec- (1), whichever is earlier, the President ommendations, not later than twenty- shall terminate any use of United four calendar days before the expira- States Armed Forces with respect to tion of the sixty-day period specified in which such report was submitted (or such section, unless such House shall required to be submitted), unless the otherwise determine by the yeas and Congress (1) has declared war or has nays. enacted a specific authorization for (b) Any joint resolution or bill so re- such use of United States Armed ported shall become the pending busi- Forces, (2) has extended by law such ness of the House in question (in the sixty-day period, or (3) is physically case of the Senate the time for debate unable to meet as a result of an armed shall be equally divided between the attack upon the United States. Such proponents and the opponents), and sixty-day period shall be extended for shall be voted on within three calendar not more than an additional thirty days thereafter, unless such House days if the President determines and shall otherwise determine by yeas and certifies to the Congress in writing nays. that unavoidable military necessity re- (c) Such a joint resolution or bill specting the safety of United States passed by one House shall be referred Armed Forces requires the continued to the committee of the other House use of such armed forces in the course named in subsection (a) and shall be of bringing about a prompt removal of reported out not later than fourteen such forces. calendar days before the expiration of (c) Notwithstanding subsection (b), the sixty-day period specified in section at any time that United States Armed 5(b). The joint resolution or bill so re- Forces are engaged in hostilities out- ported shall become the pending busi- side the territory of the United States, ness of the House in question and shall its possessions and territories without be voted on within three calendar days a declaration of war or specific statu- after it has been reported, unless such tory authorization, such forces shall be House shall determine by yeas and removed by the President if the Con- otherwise nays. gress so directs by concurrent resolu- (d) ln the case of any disagreement tion. between the two Houses of Congress

1790 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 4 with respect to a joint resolution or bill to the committee of the other House passed by both Houses, conferees shall named in subsection (a) and shall be be promptly appointed and the com- reported out by such committee to- mittee of conference shall make and gether with its recommendations with- file a report with respect to such reso- in fifteen calendar days and shall lution or bill not later than four cal- thereupon become the pending busi- endar days before the expiration of the ness of such House and shall be voted sixty-day period specified in section 5 upon within three calendar days, un- (b). In the event the conferees are unless such House shall otherwise deter- able to agree within 48 hours, they mine by yeas and nays. shall report back to their respective Houses in disagreement. Notwith- (d) In the case of any disagreement standing any rule in either House con- between the two Houses of Congress cerning the printing of conference re- with respect to a concurrent resolution ports in the Record or concerning any passed by both Houses, conferees shall delay in the consideration of such re- be promptly appointed and the com- ports, such report shall be acted on by mittee of conference shall make and both Houses not later than the expira- file a report with respect to such con- tion of such sixty-day period. current resolution within six calendar days after the legislation is referred to CONGRESSIONAL PRIORITY PROCEDURES the committee of conference. Notwith- FOR CONCURRENT RESOLUTION standing any rule in either House con- Sec. 7. (a) Any concurrent resolution cerning the printing of conference re- introduced pursuant to section 5(c) ports in the Record or concerning any shall be referred to the Committee on delay in the consideration of such re- Foreign Affairs of the House of Rep- ports, such report shall be acted on by resentatives or the Committee on For- both Houses not later than six cal- eign Relations of the Senate, as the endar days after the conference report case may be, and one such concurrent is filed. In the event the conferees are resolution shall be reported out by unable to agree within 48 hours, they such committee together with its rec- shall report back to their respective ommendations within fifteen calendar Houses in disagreement. days, unless such House shall otherwise determine by the yeas and nays. INTERPRETATION OF JOINT RESOLUTION (b) Any concurrent resolution so reported shall become the pending busi- Sec. 8. (a) Authority to introduce ness of the House in question (in the United States Armed Forces into hos- case of the Senate the time for debate tilities or into situations wherein in- shall be equally divided between the volvement in hostilities is clearly indi- proponents and the opponents) and cated by the circumstances shall not be shall be voted on within three calendar inferred— days thereafter, unless such House (1) from any provision of law (wheth- shall otherwise determine by yeas and er or not in effect before the date of the nays. enactment of this joint resolution), in- (c) Such a concurrent resolution cluding any provision contained in any passed by one House shall be referred appropriation Act, unless such provi-

1791 Ch. 13 § 4 DESCHLER’S PRECEDENTS

sion specifically authorizes the intro- or of the President, or the provisions duction of United States Armed Forces of existing treaties; or into hostilities or into such situations (2) shall be construed as granting and states that it is intended to con- any authority to the President with respect to the introduction of United stitute specific statutory authorization States Armed Forces into hostilities within the meaning of this joint resolu- or into situations wherein involve- tion; or ment in hostilities is clearly indi- (2) from any treaty heretofore or cated by the circumstances which hereafter ratified unless such treaty is authority he would not have had in implemented by legislation specifically the absence of this joint resolution. authorizing the introduction of United SEPARABILITY CLAUSE States Armed Forces into hostilities or into such situations and stating that it Sec. 9. If any provision of this joint is intended to constitute specific statu- resolution or the application hereof to tory authorization within the meaning any person or circumstance is held in- of this joint resolution. valid, the remainder of the joint resolu- (b) Nothing in this joint resolution tion and the application of such provi- shall be construed to require any fur- sion to any other person or cir- ther specific statutory authorization to cumstance shall not be affected there- permit members of United States by. Armed Forces to participate jointly with members of the armed forces of EFFECTIVE DATE one or more foreign countries in the Sec. 10. This joint resolution shall headquarters operations of high-level take effect on the date of its enact- military commands which were estab- ment. lished prior to the date of enactment of this joint resolution and pursuant to the United Nations Charter or any treaty ratified by the United States § 5. Declarations of War prior to such date. (c) For purposes of this joint resolu- Article I, section 8, clause 11 of tion, the term ‘‘introduction of United the Constitution authorizes Con- States Armed Forces’’ includes the as- gress to declare war. Granting signment of members of such armed forces to command, coordinate, partici- Congress this authority and mak- pate in the movement of, or accompany ing the President the Commander the regular or irregular military forces in Chief of the Army and Navy of any foreign country or government represents a compromise between when such military forces are engaged, the views of delegates to the Con- or there exists an imminent threat stitutional Convention who want- that such forces will become engaged, in hostilities. ed to grant Congress authority to (d) Nothing in this joint resolution— ‘‘make’’ war and delegates who (1) is intended to alter the con- wanted to grant such authority to stitutional authority of the Congress the President alone, the Senate 1792 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 5 alone, or the President and Senate The House Committee on For- together.(14) eign Affairs has jurisdiction over All declarations of war since legislation declaring war.(l7) 1936 have been made by adoption Despite the constitutional provi- of joint resolutions approved by sion authorizing Congress to de- ( ) the President. 15 Either House clare war, American forces have may originate a joint resolution to been committed to protracted land declare war. In all cases during wars in Korea and Indochina in this period, the House suspended the absence of such declarations. the rules and promptly agreed to After North Korea attacked South these joint resolutions. Korea in June of 1950, the Presi- The provision of the House rules which requires that matters dent without consulting Congress reported by committees not be ordered air and sea forces to reconsidered in the House until the spond. He committed ground third calendar day on which the troops when the United Nations report has been available to Mem- Security Council requested assist- bers does not apply to declara- ance from United Nations mem- tions of war.(16) bers. Although the President never requested a declaration of 14. Constitution of the United States of war, he proclaimed the existence America: Analysis and Interpreta- of a national emergency in Decem- tion, S. Doc. No. 92–82, 92d Cong. 2d Sess., p. 325 (1973). Delegates Madi- ber of 1950, six months after the (1) son and Gerry, who introduced the outbreak of hostilities. Congres- amendment substituting ‘‘declare sional acquiescence in the Amer- war’’ in place of ‘‘make war,’’ which ican involvement in the Indochina appeared in an early draft of the war was originally found in the Constitution, noted that the change Gulf of Tonkin Resolution ap- would, ‘‘leav[e] to the Executive the power to repel sudden attacks.’’ 2 M. proved by the House and Senate ( ) Farrand, The Records of the Con- in August of 1964. 2 Following ex- stitutional Convention of 1787 (New press repeal of this resolution in Haven: rev. ed. 1937) 318; and Con- January of 1971, Congress in stitution of the United States of most instances (3) approved au- America: Analysis and Interpreta- tion, S. Doc. No. 92–82, 92d Cong. 2d 17. Rule XI clause 7(f), House Rules and Sess., n. 9, p. 326 (1973). Manual § 689 (1973). 15. See 4 Hinds’ Precedents § 3368; and 7 Cannon’s Precedents § 1038 for 1. See § 12.1, infra, for the text of this earlier precedents relating to dec- proclamation. larations of war on Spain and Ger- 2. See §§ 8.1, 8.2, infra, for discussion many, respectively. of this resolution. 16 Rule XI clause 27(d)(4)(A), House 3. See the precedents in § 10, infra, for Rules and Manual § 735(d)(4) (1973). restrictions on use of forces.

1793 Ch. 13 § 5 DESCHLER’S PRECEDENTS thorizations and appropriations to Congress on several occasions support troops in the field. The has empowered the President to Second Circuit Court of Appeals, introduce United States Armed applying the test ‘‘whether there Forces into hostilities by specific is any action by the Congress suf- statutory authorization short of (6) ficient to authorize or ratify the formal declaration of war. military activity’’ in Vietnam in the absence of a declaration of war or express statutory sanction, § 6. House Action held that congressional authorization could be implied from ap- On Japan proval of legislation to furnish § 6.1 The House by yea and ( ) manpower and materials of war. 4 nay vote suspended the rules The court observed that. ‘‘. . . nei- and approved a House joint ther the language nor the purpose resolution formally declaring underlying that provision [the a state of war between the declaration clause] prohibits an United States and the Impe- inference of the fact of authoriza- rial Government of Japan tion from such legislative action and then vacated the pro- as we have in this instance’’ (5) ceedings and tabled the 4. Orlando v Laird, 443 F2d 1039 House joint resolution after (1973), cert. denied, 404 U.S. 869. agreeing to an identical Sen- Accord, Da Costa v Laird, 448 F2d ate joint resolution. 1369 (2d Cir. 1971). Contra, Mottola (7) v Nixon, 318 F Supp 538 (N.D. Calif. On Dec. 8, 1941, the House by 1970), reversed for lack of standing, a vote of yeas 388, nays 1, not vot- 464 F2d 26 (9th Cir. 1972). The Su- ing 41, approved a motion made preme Court summarily affirmed a by Mr. John W. McCormack, of decision of a three judge district Massachusetts, to suspend the court dismissing a challenge to the rules (8) and approve House Joint constitutionality of the war on political question grounds. Attlee v Rich- was drafted as a direct result of Or- ardson, 411 U.S. 911 (1973), aff’g., lando v Laird. See S. REPT. No. 220, 347 F Supp 689 (D.D.Pa. 1972). 93d Cong. 1st Sess., at 25 (1973). 5. Orlando v Laird, supra, at p. 1043. 6. See § 8, infra. Section 8 of the War Powers Resolu- 7. 87 CONG. REC. 9520, 9536, 9537, tion (see § 4.1, supra, for the text) 77th Cong. 1st Sess. which states that authority to intro- 8. Earlier that day the Speaker was au- duce armed forces cannot be inferred thorized by unanimous consent to from any provision of law or treaty recognize Members for suspension of unless sanction is expressly stated the rules. Id. at p. 9519.

1794 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 6

Resolution 254, formally declaring The SPEAKER: This is no unanimous- a state of war between the United consent request. No objection is in States and the Imperial Govern- order. Is a second demanded? ment of Japan.(9) Mr. [JOSEPH W.] MARTIN of Massa- Mr. MCCORMACK: Mr. Speaker, I chusetts: Mr. Speaker, I demand a sec- move to suspend the rules and pass ond. House Joint Resolution 254, which I The SPEAKER: Without objection, a send to the desk. second is considered as ordered. The SPEAKER: (10) The Clerk will read There was no objection. the joint resolution. After debate: The Clerk read as follows: Mr. MCCORMACK: Mr. Speaker, I ask Declaring that a state of war exists between the Imperial Govern- for a vote, and on that I demand the ment of Japan and the Government yeas and nays. and the people of the United States Miss RANKIN of Montana: Mr. and making provisions to prosecute Speaker—— the same. The SPEAKER: The gentleman from Whereas the Imperial Government Massachusetts demands the yeas and of Japan has committed repeated nays. Those who favor taking this vote acts of war against the Government and the people of the United States by the yeas and nays will rise and re- of America: Therefore be it main standing until counted. Resolved, etc., That the state of The yeas and nays were ordered. war between the United States and Miss RANKIN of Montana: Mr. the Imperial Government of Japan Speaker, I would like to be heard. which has thus been thrust upon the The SPEAKER: The yeas and nays United States is hereby formally declared; and that the President be, have been ordered. The question is, and he is hereby, authorized and di- Will the House suspend the rules and rected to employ the entire naval pass the resolution? and military forces of the United Miss RANKIN of Montana: Mr. States and the resources of the Gov- Speaker, a point of order. ernment to carry on war against the The SPEAKER: A roll call may not be Imperial Government of Japan; and interrupted. to bring the conflict to a successful termination all of the resources of The question was taken; and there the country are hereby pledged by were-yeas 388, nays 1, not voting 41, the Congress of the United States. as follows: . . . So (two-thirds having voted in favor The SPEAKER: Is a second de- thereof) the rules were suspended, and manded? the joint resolution was passed. Miss [JEANNETTE] RANKIN of Mon- The result of the vote was an- tana: I object. nounced as above recorded. 9. See § 11.1, infra, for the text of the A motion to reconsider was laid on the table. President’s request for a declaration of war. After receiving a message that 10. Sam Rayburn (Tex.). the Senate had approved Senate

1795 Ch. 13 § 6 DESCHLER’S PRECEDENTS

Joint Resolution 116, which was Mr. MARTIN of Massachusetts: Mr. identical to House Joint Resolu- Speaker, reserving the right to object— tion 254, the House by unanimous and, of course, I am not going to ob- consent passed the Senate meas- ject—this is the same declaration that ure and vacated the proceedings we just passed? by which the House had approved The SPEAKER: The same. the House measure, and tabled Mr. MCCORMACK: Yes. the House joint resolution.(11) The SPEAKER: Is there objection to the request of the gentleman from FURTHER MESSAGE FROM THE SENATE Massachusetts [Mr. McCormack]? A further message from the Senate There was no objection. by Mr. Frazier, its legislative clerk, an- The Senate joint resolution was or- nounced that the Senate had passed a dered to be read a third time, was read joint resolution (S.J. Res. 116) declar- the third time, and passed, and a mo- ing that a state of war exists between tion to reconsider was laid on the the Imperial Government of Japan and table. the Government and the people of the United States and making provisions Mr. MCCORMACK: Mr. Speaker, I ask to prosecute the same, in which the unanimous consent that the pro- concurrence of the House is re- ceedings by which the House passed quested. . . House Joint Resolution 254 be vacated Mr. MCCORMACK: Mr. Speaker, I ask and that the resolution be laid on the unanimous consent to take from the table. Speaker’s table Senate Joint Resolu- The SPEAKER: Is there objection to tion 116, and agree to the same. the request of the gentleman from The Clerk read the Senate joint reso- Massachusetts [Mr. McCormack]? lution, as follows: There was no objection. Whereas the Imperial Government of Japan has committed unprovoked acts of war against the Government On Germany and the people of the United States of America: Therefore be it § 6.2 The House by yea and Resolved, etc., That the state of nay vote suspended the rules war between the United States and the Imperial Government of Japan and approved a House joint which has thus been thrust upon the resolution formally declaring United States is hereby formally declared . . . a state of war between the United States and the Gov- The SPEAKER: Is there objection to the request of the gentleman from ernment of Germany and Massachusetts [Mr. McCormack]? then by unanimous consent vacated the proceedings and 11. 87 CONG. REC. 9537, 77th Cong. 1st tabled the House measure Sess., Dec. 8, 1941. See § 7.1, infra, after agreeing to an identical for Senate proceedings on the Senate joint resolution. Senate joint resolution.

1796 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 6

On Dec. 11, 1941,(12) the House The SPEAKER: (15) The question is, by a vote of yeas 393, present 1, Will the House suspend the rules and pass the joint resolution? not voting 36, agreed to a motion Mr. MCCORMACK: Mr. Speaker, on made by Mr. John W. McCor- that I demand the yeas and nays. The mack, of Massachusetts, to sus- yeas and nays were ordered. The ques- pend the rules (13) and approve tion was taken; and there were—yeas 393, answered ‘‘present’’ 1, not voting House Joint Resolution 256, for- 36, as follows: . . . mally declaring a state of war be- So (two-thirds having voted in favor tween the United States and the thereof) the rules were suspended and Government of Germany.(14) the resolution was agreed to. A motion to reconsider was laid on Mr. MCCORMACK: Mr. Speaker, I the table. move to suspend the rules and pass House Joint Resolution 256, which I After receiving a message that send to the desk and ask to have read. the Senate had approved Senate The Clerk read as follows: Joint Resolution 119, which was Whereas the Government of Ger- identical to House Joint Resolu- many has formally declared war tion 256, the House by unanimous against the Government and the peo- consent passed the Senate meas- ple of the United States of America: Therefore be it ure and vacated the proceedings Resolved, etc., That the state of by which the House had approved war between the United States and the House measure, and tabled the Government of Germany which (16) has thus been thrust upon the the House joint resolution. United States is hereby formally declared; and the President is hereby MESSAGE FROM THE SENATE authorized and directed to employ A message from the Senate, by Mr. the entire naval and military forces Frazier, its legislative clerk, an- of the United States and the resources of the Government to carry nounced that the Senate had passed on war against the Government of joint resolutions of the following titles, Germany; and, to bring the conflict in which the concurrence of the House to a successful termination, all of the is requested: resources of the country are hereby pledged by the Congress of the S.J. Res. 119. Joint resolution de- United States. claring that a state of war exists between the Government of Germany and the Government and the people 12. 87 CONG REC. 9665, 9666, 77th of the United States and making Cong. 1st Sess. provision to prosecute the same. . . . 13. Earlier that day the Speaker was authorized by unanimous consent to 15. Sam Rayburn (Tex.). recognize Members for suspension of 16. 87 CONG. REC. 9666, 77th Cong. 1st the rules. Id. at p. 9665. Sess., Dec. 11, 1941. See § 7.2, infra, 14. See § 11.2, infra, for the President’s for Senate proceedings on the joint request for a declaration of war. resolution.

1797 Ch. 13 § 6 DESCHLER’S PRECEDENTS

Mr. MCCORMACK: Mr. Speaker, I ask not voting 30, suspended the rules unanimous consent to take from the and passed Senate Joint Resolu- Speaker’s table Senate Joint Resolu- tion 120, declaring a state of war tion 119, which is identical with the between the United States and resolution just adopted by the House, the Government of Italy, after re- and pass the Senate resolution. ceiving a message that the Senate The Clerk read the title of the reso- (18) lution. had agreed to the measure. The SPEAKER: Is there objection to MESSAGE FROM THE SENATE the request of the gentleman from A message from the Senate, by Mr. Massachusetts? Frazier, its legislative clerk, an- There was no objection. nounced that the Senate had passed The Senate joint resolution was read joint resolutions of the following titles, a third time, and passed. in which the concurrence of the House A motion to reconsider was laid on is requested: . . . the table. S.J. Res. 120. Joint resolution de- Mr. MCCORMACK: Mr. Speaker, I ask claring that a state of war exists be- unanimous consent that the action just tween the Government of Italy and the Government and the people of taken by the House in the passage of the United States and making provi- House Joint Resolution 256 be vacated sion to prosecute the same. . . . and that the resolution be laid on the table. MR. [JOHN W.] MCCORMACK [of Mas- sachusetts]: Mr. Speaker, I move to The SPEAKER: Without objection, it is suspend the rule and pass Senate Joint so ordered. Resolution 120, which I have sent to There was no objection. the Clerk’s desk. The Clerk read as follows: On Italy Whereas the Government of Italy has formally declared war against § 6.3 After receiving a message the Government and the people of the United States of America: There- that the Senate had passed fore be it the measure, the House by Resolved, etc., That the state of yea and nay vote suspended war between the United States and the Government of Italy, which has the rules and agreed to a thus been thrust upon the United Senate joint resolution de- States, is hereby formally declared. claring a state of war be- ... tween the United States and THE SPEAKER: (19) The question is, the Government of Italy. Will the House suspend the rules and pass the resolution? On Dec. 11, 1941,(17) the House by a vote of yeas 399, present 1, 18. See § 11.2, infra, for the President’s request for a declaration of war; and 17. 87 CONG. REC. 9666, 9667 77th § 7.3, infra, for Senate approval. Cong. 1st Sess. 19. Sam Rayburn (Tex.).

1798 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 6

MR. MCCORMACK: Mr. Speaker, on MR. MCCORMACK: Mr. Speaker, I this vote I ask for the yeas and nays. move to suspend the rules and pass The yeas and nays were ordered. the joint resolution (H.J. Res. 319) de- The question was taken; and there claring that a state of war exists be- were—yeas 399, answered ‘‘present’’ 1, tween the Government of Bulgaria and not voting 30, as follows: . . . the Government and the people of the So, two-thirds having voted in favor United States and making provisions thereof, the rules were suspended and to prosecute the same. the resolution was agreed to. The Clerk read as follows: A motion to reconsider was laid on Whereas the Government of Bul- the table. garia has formally declared war against the Government and the peo- On Bulgaria ple of the United States of America: Therefore be it Resolved, etc., That the state of § 6.4 The House by yea and war between the United States and nay vote suspended the rules the Government of Bulgaria, which and unanimously approved a has thus been thrust upon the United States, is hereby formally de- House resolution formally clared. . . . declaring a state of war be- MR. MCCORMACK: Mr. Speaker, on tween the United States and that motion I demand the yeas and the Government of Bulgaria. nays. On June 3, 1942,(20) the House The yeas and nays were ordered. ( ) by a vote of yeas 357, nays 0, not THE SPEAKER: 3 The question is, Will the House suspend the rules and voting 73, agreed to a motion by pass the joint resolution. Mr. John W. McCormack, of Mas- The question was taken; and there ( ) sachusetts, to suspend the rules 1 were—yeas 357, nays 0, not voting 73, and pass House Joint Resolution as follows: . . . 319, declaring a formal state of So (two-thirds having voted in favor war between the United States thereof) the rules were suspended and and Bulgaria.(2) the joint resolution was passed. The result of the vote was an- 20. 88 CONG. REC. 4816, 4817, 77th nounced as above recorded. Cong. 2d Sess. A motion to reconsider was laid on 1. The Speaker had been authorized by the table. unanimous consent to recognize Members for suspension of the rules. On Hungary 88 CONG. REC. 4799, 77th Cong. 2d Sess., June 2, 1942. § 6.5 The House by yea and 2. See § 11.3, infra, for the President’s nay vote suspended the rules request for a declaration of war; and and unanimously approved a § 7.4, infra, for Senate approval of this measure. 3. Sam Rayburn (Tex.).

1799 Ch. 13 § 6 DESCHLER’S PRECEDENTS

House joint resolution for- Government of Hungary which has thus been thrust upon the United mally declaring a state of States is hereby formally declared. war between the United ...

States and the Government MR. MCCORMACK: Mr. Speaker, on of Hungary. that motion I demand the yeas and nays. (4) On June 3, 1942, the House The yeas and nays were ordered. by a vote of yeas 360, nays 0, not THE SPEAKER: (7) The question is, voting 70, agreed to a motion Will the House suspend the rules and made by Mr. John W. McCor- pass the joint resolution? mack, of Massachusetts, to sus- The question was taken; and there (5) were—yeas 360, nays 0, not voting 70, pend the rules and pass House as follows: . . . Joint Resolution 320, declaring a So (two-thirds having voted in favor formal state of war between the thereof) the rules were suspended and United States and the Govern- the joint resolution was passed. ment of Hungary.(6) The result of the vote was announced as above recorded. MR. MCCORMACK: Mr. Speaker, I A motion to reconsider was laid on move to suspend the rules and pass the table. the joint resolution (H.J. Res. 320) declaring that a state of war exists be- On Rumania tween the Government of Hungary and the Government and the people of the United States and making provisions § 6.6 The House by yea and to prosecute the same. nay vote suspended the rules The Clerk read as follows: and unanimously agreed to a Whereas the Government of Hun- House joint resolution de- gary has formally declared war claring a formal state of war against the Government and the people of the United States of America: between the United States Therefore be it and the Government of Ru- Resolved, etc, That the state of war mania. between the United States and the On June 3, 1942,(8) the House 4. 88 CONG. REC. 4817, 4818, 77th by a vote of yeas 361, nays 0, not Cong. 2d Sess. voting 69, agreed to a motion 5. The Speaker had been authorized by made by Mr. John W. McCor- unanimous consent to recognize mack, of Massachusetts, to sus- Members for suspension of the rules. pend the rules (9) and pass House See 88 CONG. REC. 4799, 77th Cong. 2d Sess., June 2, 1942. 7. Sam Rayburn (Tex.). 6. See § 11.3, infra, for the President’s 8. 88 CONG. REC. 4818, 77th Cong. 2d request for the declaration of war; Sess. and § 7.5, infra, for Senate approval 9. The Speaker had been authorized by of this joint resolution. unanimous consent to recognize

1800 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 7

Joint Resolution 321, declaring a The result of the vote was an- formal state of war between the nounced as above recorded. United States and the Govern- A motion to reconsider was laid on ment of Rumania.(10) the table.

MR. MCCORMACK: Mr. Speaker, I move to suspend the rules and pass the joint resolution ( H.J. Res. 321) de- § 7. Senate Action claring that a state of war exists between the Government of Rumania On Japan and the Government and the people of the United States, and making provisions to prosecute the same. § 7.1 The Senate by yea and The Clerk read as follows: nay vote unanimously agreed Whereas the Government of Ru- to a Senate joint resolution mania has formally declared war declaring a state of war be- against the Government and the peo- tween the United States and ple of the United States of America: Therefore be it the Imperial Government of Resolved, etc., That the state of Japan. war between the United States and ( ) the Government of Rumania which On Dec. 8, 1941, 12 the Senate has thus been thrust upon the by a vote of yeas 82, nays 0, United States is hereby formally declared. . . . agreed to Senate Joint Resolution 116, declaring a state of war be- MR. MCCORMACK: Mr. Speaker, on that motion I demand the yeas and tween the United States and the ( ) nays. Imperial Government of Japan. 13 The yeas and nays were ordered. MR. [TOM T.] CONNALLY [of Texas]: 11 THE SPEAKER: The question is, Mr. President, I introduce a joint reso- Will the House suspend the rules and lution, and ask for its immediate con- pass the joint resolution? sideration without reference to a com- The question was taken; and there were—yeas 361, nays 0, not voting 69, mittee. ( ) as follows: . . . THE VICE PRESIDENT: 14 The joint So (two-thirds having voted in favor resolution will be read. thereof) the rules were suspended and The joint resolution (S.J. Res. 116) the joint resolution was passed. declaring that a state of war exists between the Imperial Government of Members for suspension of the rules. See 88 CONG. REC. 4799, 77th Cong. 12. 87 CONG. REC. 9505, 9506, 77th 2d Sess., June 2, 1942. Cong. 1st Sess. 10. See § 11.3, infra, for the President’s 13. See 11. 1, infra, for the President’s request for a declaration of war, and request for this declaration, and § 7.6, infra, for Senate approval of § 6.1, supra, for House approval of this measure. the joint resolution. 11. Sam Rayburn ( Tex.). 14. John N. Garner (Tex.).

1801 Ch. 13 § 7 DESCHLER’S PRECEDENTS

Japan and the Government and the The result was announced—yeas 82, people of the United States and mak- nays 0, as follows: . . . ing provision to prosecute the same, So the joint resolution was passed. was read the first time by its title, and the second time at length, as follows: On Germany Whereas the Imperial Government of Japan has committed unprovoked § 7.2 The Senate by yea and acts of war against the Government and the people of the United States nay vote unanimously agreed of America: Therefore be it to a Senate joint resolution Resolved, etc., That the state of declaring a state of war be- war between the United States and the Imperial Government of Japan tween the United States and which has thus been thrust upon the the Government of Germany. United States is hereby formally de- ( ) clared. . . . On Dec. 11, 1941, 15 the Senate by a yea and nay vote of yeas 88, THE VICE PRESIDENT: Is there objection to the present consideration of the nays 0, agreed to Senate Joint joint resolution? Resolution 119, declaring a state There being no objection, the Senate of war between the United States proceeded to consider the joint resolu- and the Government of Ger- tion. many.(16) MR. CONNALLY: Mr. President, on the passage of the resolution I ask for Mr. Connally, from the Committee the yeas and nays. on Foreign Relations, reported an The yeas and nays were ordered. original joint resolution ( S.J. Res. 119) ... declaring that a state of war exists be- MR. CONNALLY: . . . I therefore ask tween the Government of Germany for the yeas and nays on the passage of and the Government and the people of the joint resolution. the United States, and making provision to prosecute the same, which was THE VICE PRESIDENT: If there be no amendment proposed, the question is read the first time by its title, and the on the engrossment and third reading second time at length, as follows: of the joint resolution. Whereas the Government of Ger- The joint resolution was ordered to many has formally declared war be engrossed for a third reading and against the Government and the people of the United States of America: was read the third time. Therefore be it THE VICE PRESIDENT: The joint reso- Resolved, etc., That the state of lution having been read three times, war between the United States and the question is, Shall it pass? On that question the yeas and nays have been 15. 87 CONG. REC. 9652, 9653, 77th demanded and ordered. The clerk will Cong. 1st Sess. call the roll. 16. See § 11.2, infra, for the President’s The Chief Clerk proceeded to call the request for a declaration of war, and roll. § 6.2, supra, for House approval.

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the Government of Germany, which state of war exists between the Gov- has thus been thrust upon the ernment of Germany and the Govern- United States, is hereby formally de- ment and the people of the United clared. . . . States, and making provision to prosecute the same. MR. [TOM T.] CONNALLY [of Texas]: THE VICE PRESIDENT: The question Mr. President, I shall presently ask is on the engrossment and third read- unanimous consent for the immediate ing of the joint resolution. consideration of the joint resolution The joint resolution was ordered to just read to the Senate. Before the re- be engrossed for a third reading, and quest is submitted, however, I desire to was read the third time. say that, being advised of the declara- THE VICE PRESIDENT: The joint reso- tion of war upon the United States by lution having been read the third time, the Governments of Germany and the question is, Shall it pass? Italy, and anticipating a message by MR. CONNALLY: On that question I the President of the United States in ask for the yeas and nays. relation thereto, and after a conference The yeas and nays were ordered, and with the Secretary of State, as chair- the Chief Clerk proceeded to call the roll. man of the Committee on Foreign Re- The result was announced—yeas 88, lations, I called a meeting of the com- nays 0, as follows: . . . mittee this morning and submitted to So the joint resolution(S.J. Res. 119) the committee the course I expected to was passed. pursue as chairman and the request The preamble was agreed to. which I expected to make. I am authorized by the Committee On Italy on Foreign Relations to say to the Sen- ate that after consideration of the text § 7.3 The Senate by yea and of the joint resolution which I have re- nay vote unanimously agreed ported and after mature consideration of all aspects of this matter, the mem- to a Senate resolution for- bership of the Committee on Foreign mally declaring a state of Relations unanimously approve and war between the United agree to the course suggested. One States and the Government member of the committee was absent, of Italy. but I have authority to express his ( ) views. On Dec. 11, 1941, 18 the Senate Mr. President, I ask unanimous con- by a vote of yeas 90, nays 0, sent for the present consideration of agreed to Senate Joint Resolution the joint resolution. 120, declaring a state of war be- THE VICE PRESIDENT: (17) Is there ob- tween the United States and the jection? Government of Ita1y.(19) There being no objection, the Senate proceeded to consider the joint resolu- 18. 87 CONG. REC. 9653, 77th Cong. 1st tion (S.J. Res. 119) declaring that a Sess. 19. See § 11.2, infra, for the President’s 17. John N. Garner (Tex.). request for a declaration of war, and

1803 Ch. 13 § 7 DESCHLER’S PRECEDENTS

MR. [TOM T.] CONNALLY [of Texas], agreed to House Joint Resolution from the Committee on Foreign Rela- tions, reported an original joint resolu- 319, declaring a formal state of tion (S.J. Res. 120) declaring that a war between the United States state of war exists between the Gov- and the Government of Bulgaria. ernment of Italy and the Government and the people of the United States The House had approved the ( ) and making provision to prosecute the measure the previous day. 1 same, which was read the first time by its title and the second time at length, The message also announced that as follows: the House had passed the following bills and joint resolutions, in which it Whereas the Government of Italy has formally declared war against requested the concurrence of the Sen- the Government and the people of ate: . . . the United States of America: there- H.J. Res. 319. Joint resolution de- fore be it claring that a state of war exists be- Resolved, etc., That the state of tween the Government of Bulgaria and war between the United States and the Government of Italy which has the Government and the people of the thus been thrust upon the United United States and making provisions States is hereby formally declared. to prosecute the same: ...... THE VICE PRESIDENT: (2) The joint The result [of the vote] was an- resolution having been read three nounced—yeas 90, nays 0, as follows: times, the question is, Shall it pass? ... MR. [TOM T.] CONNALLY [of Texas]: I So the joint resolution (S.J. Res. 120) ask for the yeas and nays. was passed. The yeas and nays were ordered, and the Chief Clerk proceeded to call the On Bulgaria roll. . . . § 7.4 After receiving a message The result was announced—yeas 73, that the House had approved nays 0, as follows: . . . So the joint resolution (H.J. Res. the measure, the Senate by 319) was passed. yea and nay vote unani- The preamble was agreed to. mously agreed to a House joint resolution formally de- On Hungary claring a state of war between the United States and § 7.5 After receiving a message the Government of Bulgaria. that the House had approved On June 4, 1942,(20) the Senate the measure, the Senate by a vote of yeas 73, nays 0, 1. See § 11.3, infra, for the President’s § 6.3, supra, for House approval of request for a declaration of war, and the Senate joint resolution. § 6.4, supra, for House approval of 20. 88 CONG. REC. 4851–54, 77th Cong. this joint resolution. 2d Sess. 2. John N. Garner (Tex.).

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unanimously agreed to a immediate consideration of the joint House joint resolution for- resolution. (5) mally declaring a state of THE VICE PRESIDENT: Consent has been given for the immediate consider- war between the United ation of the joint resolution. States and the Government The Senate proceeded to consider the of Hungary. joint resolution (H.J. Res. 320) declar- On June 4, 1942,(3) the Senate ing that a state of war exists between the Government of Hungary and the by a vote of yeas 73, nays 0, Government and people of the United agreed to House Joint Resolution States and making provisions to pros- 320, declaring a formal state of ecute the same, which was read, as fol- war between the United States lows: and the Government of Hungary. Whereas the Government of Hun- The House had approved the gary has formally declared war (4) against the Government and the peo- measure the previous day. ple of the United States of America: The message also announced that Therefore be it. . . . the House had passed the following THE VICE PRESIDENT: The joint reso- bills and joint resolutions, in which it lution having been read three times, requested the concurrence of the Sen- the question is, Shall it pass? ate: . . . MR. CONNALLY: I ask for the yeas H.J. Res. 320. Joint resolution de- and nays. claring that a state of war exists be- The yeas and nays were ordered, and tween the Government of Hungary and the legislative clerk proceeded to call the Government and the people of the the roll. . . . United States and making provisions to prosecute the same. . . . The result was announced—yeas 73, nays 0, as follows: . . . MR. [TOM T.] CONNALLY [of Texas]: Mr. President, with reference to House So the joint resolution (H.J. Res. Joint Resolution 320, declaring the fact 320) was passed. that a state of war exists between the The preamble was agreed to. Government of Hungary and that of the United States, I am authorized by On Rumania the Committee on Foreign Relations to report the resolution to the Senate § 7.6 After receiving a message with a recommendation that it pass. that the House had approved Consent has already been given for the the measure, the Senate

3. 88 CONG. REC. 4851, 4852, 4854, 4855, unanimously agreed to a 77TH CONG. 2D SESS. House joint resolution for- 4. See § 11.3, infra, for the President’s mally declaring a state of request for a declaration of war, and war between the United § 6.5, supra, for House approval of the joint resolution. 5. John N. Garner (Tex.).

1805 Ch. 13 § 7 DESCHLER’S PRECEDENTS

States and the Government § 8. Legislation Author- of Rumania. izing Military Action On June 4, 1942,(6) the Senate Prior to War Powers Act by a vote of yeas 73 to nays 0, agreed to House Joint Resolution In several instances prior to the 321, declaring a formal state of War Powers Act, Congress, usu- war between the United States ally in response to Presidential re- and the Government of Rumania. quests,(9) granted the Chief Execu- The House had approved the tive express statutory authority to measure the previous day.(7) use force he deemed necessary in The message also announced that specific areas. These so-called the House had passed the following ‘‘area resolutions’’ were short of bills and joint resolutions, in which it formal declarations of war, but requested the concurrence of the Sen- constituted either prior or subse- ate: . . . quent acquiescence to Presidential H.J. Res. 321. Joint resolution declaring that a state of war exists be- use of force. tween the Government of Rumania A question arose in such situa- and the Government and the people of tions as to whether, if Congress the United States and making provi- could authorize the President to sions to prosecute the same. . . . use force by approving a statute THE VICE PRESIDENT: (8) The joint resolution having been read three short of a declaration of war, it times, the question is, Shall it pass? could divest the President of that MR. [TOM T.] CONNALLY [of Texas]: I authority merely by repealing the ask for the yeas and nays. statute. The answer to that ques- The yeas and nays were ordered, and tion depended on other congres- the Chief Clerk proceeded to call the sional actions. Only one area reso- roll. . . . lution, the Gulf of Tonkin Resolu- The result was announced—yeas 73, (10) nays 0, as follows: . . . tion, was repealed. Following So the resolution (H.J. Res. 321) was repeal, the President continued to passed. direct military operations and The preamble was agreed to. send troops to Vietnam, and Con-

6. 88 CONG. REC. 4851, 4852, 4855, 9. The exception is the Cuba resolution 4856, 77th Cong. 2d Sess. which was not requested by the 7. See § 11.3, infra, for the President’s President. See §§ 8.7, 8.8, infra, for request for a declaration of war, and discussion of this resolution. § 6.6, supra, for House approval of 10. See §§ 8.1, 8.2, infra, for a discussion this joint resolution. of approval and repeal of this resolu- 8. John N. Garner (Tex.). tion.

1806 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 8 gress continued to approve legisla- Gulf of Tonkin Resolution tion providing manpower and supplies for the war effort. § 8.1 The House by yea and nay vote suspended the rules Groups of servicemen who had and agreed to a House joint received orders to fight in Viet- resolution (known as the nam filed suit contending that re- Gulf of Tonkin Resolution) peal of the Gulf of Tonkin Resolu- supporting the President’s tion had divested the President actions to repel aggression and other executive branch offi- by North Vietnam. cials of authority to prosecute the On Aug. 7, 1964,(12) the House war. Ruling on this challenge, the by a vote of yeas 416, nays 0, Court of Appeals for the Second present 1, not voting 14, sus- Circuit held that authorization pended the rules and agreed to could be inferred from congres- House Joint Resolution 1145, sional approval of authorizations known as the Gulf of Tonkin Res- and appropriations for war sup- olution, supporting the President’s plies and personnel. (11) action to repel aggression by The following precedents com- North Vietnam. The resolution prise some examples of congres- was approved by the President on sional action prior to the War Aug. 10, 1964, in the following form: (13) Powers Act, taken in most instances in response to Presi- JOINT RESOLUTION dential requests for such action. To promote the maintenance of international peace and security in south- 11. DaCosta v Laird, 448 F2d 1368 east Asia. (1971); see also Orlando v Laird, 443 Whereas naval units of the Com- F2d 1039 (2d Cir. 1971), cert. denied munist regime in Vietnam, in violation 404 U.S. 869. Contra, Mottola v of the principles of the Charter of the Nixon, 318 F Supp 538 (N.D. Calif. United Nations and of international 1970) which found no ratification [re- law, have deliberately and repeatedly versed on grounds of lack of stand- attacked United States naval vessels ing, 464 F2d 26 (9th Cir. 1972)]. The Supreme Court summarily affirmed 12. 110 CONG. REC. 18538–55, 88th a three-judge district court opinion Cong. 2d Sess. which dismissed a challenge to the 13. This excerpt is taken from 78 Stat. constitutionality of the war on polit- 384, 88th Cong. 2d Sess. (Pub. L. No. ical question grounds. Altee v Rich- 88–408). ardson, 411 U.S. 911 (1973, aff’g. See § 8.2, infra, for Senate ap- 347 F Supp 689 (E.D.Pa. 1972). proval of this measure.

1807 Ch. 13 § 8 DESCHLER’S PRECEDENTS

lawfully present in international wa- Sec. 3. This resolution shall expire ters, and have thereby created a seri- when the President shall determine ous threat to international peace; and that the peace and security of the area Whereas these attacks are part of a is reasonably assured by international deliberate and systematic campaign of conditions created by action of the aggression that the Communist regime United Nations or otherwise, except that it may be terminated earlier by in North Vietnam has been waging concurrent resolution of the Congress. against its neighbors and the nations joined with them in the collective de- Parliamentarian’s Note: After fense of their freedom; and conferring with the congressional Whereas the United States is assist- leadership and others with respect ing the peoples of southeast Asia to to attacks by North Vietnamese protect their freedom and has no terri- torpedo boats against U.S. de- torial, military or political ambitions in stroyers, President Johnson or- that area, but desires only that these dered retaliation against the peoples should be left in peace to work out their own destinies in their own bases from which the torpedo way: Now, therefore, be it boats operated. In an address to Resolved by the Senate and House of the nation on radio and TV, late Representatives of the United States of on Monday, Aug. 3, he stated that America in Congress assembled, That he had requested the Congress to the Congress approves and supports support his action by a resolution. the determination of the President, as On Aug. 5, the President trans- Commander in Chief, to take all nec- mitted to the Congress a message essary measures to repel any armed on the developing situation in attack against the forces of the United States and to prevent further aggres- Southeast Asia and a draft of a sion. resolution. The Committee on For- Sec. 2. The United States regards as eign Affairs, to which the message vital to its national interest and to was referred (H. Doc. 333), asked world peace the maintenance of inter- for and was granted permission to national peace and security in south- sit during the session of the east Asia. Consonant with the Con- House on Aug. 6. stitution of the United States and the Authority granted by this reso- Charter of the United Nations and in accordance with its obligations under lution was repealed by approval, the Southeast Asia Collective Defense on Jan. 12, 1971, of section 12 of Treaty, the United States is, therefore, an act to amend the Foreign Mili- ( ) prepared, as the President determines, tary Sales Act. 14 to take all necessary steps, including the use of armed force, to assist any § 8.2 The Senate by yea and member or protocol state of the South- nay vote agreed to a House east Asia Collective Defense Treaty requesting assistance in defense of its 14. 84 Stat. 2053, 2055,91st Cong. 1st freedom. Sess. (Pub. L. No. 91–672).

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joint resolution known as the voting 21, agreed to House Joint Gulf of Tonkin Resolution Resolution 159,(19) which was ap- supporting the President’s proved by the President on Jan. actions to repel aggression 29, 1955, in the following form: (20) by North Vietnam. JOINT RESOLUTION ( ) On Aug. 7, 1964, 15 the Senate Authorizing the President to employ by a vote of yeas 88, nays 2, the Armed Forces of the United agreed to House Joint Resolution States for protecting the security of 1145, known as the Gulf of Ton- Formosa, the Pescadores and related kin Resolution, supporting the positions and territories of that area. President’s actions to repel ag- Whereas the primary purpose of the gression by North Vietnam.(16) United States, in its relations with all Authority granted by this reso- other nations, is to develop and sustain lution was repealed by approval, a just and enduring peace for all; and on Jan. 12, 1971, of section 12 of Whereas certain territories in the West an act to amend the Foreign Mili- Pacific under the jurisdiction of the Re- tary Sales Act.(17) public of China are now under armed attack, and threats and declarations Resolution to Protect Formosa have been and are being made by the and Pescadores Chinese Communists that such armed attack is in aid of and in preparation § 8.3 The House by yea and for armed attack on Formosa and the nay vote agreed to a House Pescadores. . . . Therefore be it joint resolution authorizing Resolved by the Senate and House of Representatives of the United States of the President to employ America in Congress assembled, That armed forces to protect the the President of the United States be security of Formosa, the Pes- and he hereby is authorized to employ cadores, and related posi- the Armed Forces of the United States tions and territories of that as he deems necessary for the specific area. purpose of securing and protecting For- mosa and the Pescadores against On Jan. 25, 1955,(18) the House armed attack, this authority to include by a vote of yeas 410, nays 3, not the securing and protection of such related positions and territories of that 15. 110 CONG. REC. 18470, 18471, 88th area now in friendly hands and the Cong. 2d Sess. taking of such other measures as he 16. See § 8.1, supra, for the House vote and text of this measure. 19. See § 8.4, infra, for Senate approval 17. 84 Stat. 2053, 2055 (Pub. L. No. 91672) H.R. 15628, 91st Cong. 1st of this measure. Sess. 20. This excerpt is taken from 69 Stat. 18. 101 CONG. REC. 659, 669, 680, 681, 7, 84th Cong. 1st Sess., Ch. 4 (Pub. 84th Cong. 1st Sess. L. No. 84–4).

1809 Ch. 13 § 8 DESCHLER’S PRECEDENTS

judges to be required or appropriate in the President to cooperate assuring the defense of Formosa and with and assist any nation or the Pescadores. group of nations in that area This resolution shall expire when the President shall determine that the in the development of eco- peace and security of the area is rea- nomic strength, and to un- sonably assured by international condi- dertake programs of military tions created by action of the United assistance; the resolution Nations or otherwise, and shall so report to the Congress. further stated congressional intent with respect to using § 8.4 The Senate by yea and armed forces of the United nay vote agreed to a House States to secure and protect joint resolution authorizing the territorial integrity and the President to employ political independence of any armed forces to protect the nation which requests aid security of Formosa, the Pes- from armed aggression by cadores, and related posi- any nation controlled by tions. communism. On Jan. 28, 1955,(1) the Senate On Mar. 7, 1957,(3) the House by a vote of yeas 85, nays 3, by a vote of 350 yeas, 60 nays, not agreed to House Joint Resolution voting 23, agreed to House Reso- 159, directing the President to lution 188, to accept House Joint employ armed forces to protect the Resolution 117, autllorizing the security of Formosa, the Pesca- President to cooperate with na- dores, and related positions in the tions of the Middle East in the de- area.(2) velopment of economic strength, to undertake programs of military Resolution to Protect Middle assistance, and to employ armed Eastern Nations forces.(4) The joint resolution was ap- § 8.5 The House by yea and proved by the President in the fol- nay vote agreed to a House lowing form on Mar. 9, 1957: (5) joint resolution to promote peace and stability in the 3. 103 CONG. REC. 3250, 3265, 3266, Middle East by authorizing 85th Cong. 1st Sess. 4. See § 8.6, infra, for the Senate vote 1. 101 CONG. REC. 994, 995, 84th Cong. on the House joint resolution. 1st Sess. 5. This language is taken from 71 Stat. 2. See § 8.3, supra, for the text of and 5, 85th Cong. 1st Sess. [Pub. L. No. House vote on this measure. 85–7] (footnotes omitted).

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Resolved by the Senate and House of thority of section 401(a) of the Mutual Representatives of the United States of Security Act of 1954, as amended (ex- America in Congress assembled, That: cept that the provisions of section The President be and hereby is au- 105(a) thereof shall not be waived), thorized to cooperate with and assist and without regard to the provisions of any nation or group of nations in the section 105 of the Mutual Security Ap- general area of the Middle East desir- propriation Act, 1957. . . . ing such assistance in the development Sec. 5. The President shall within of economic strength dedicated to the the months of January and July of maintenance of national independence. each year report to the Congress his Sec. 2. The President is authorized action hereunder. to undertake, in the general area of Sec. 6. This joint resolution shall ex- the Middle East, military assistance pire when the President shall deter- programs with any nation or group of mine that the peace and security of the nations of that area desiring such as- nations in the general area of the Mid- sistance. Furthermore, the United dle East are reasonably assured by States regards as vital to the national international conditions created by ac- interest and world peace the preservation of the United Nations or otherwise tion of the independence and integrity except that it may be terminated ear- of the nations of the Middle East. To lier by a concurrent resolution of the this end, if the President determines two Houses of Congress. the necessity thereof, the United States is prepared to use armed forces to assist any such nation or group of § 8.6 The Senate agreed to a such nations requesting assistance House joint resolution to pro- against armed aggression from any mote peace and stability in country controlled by international the Middle East by author- communism: Provided, That such em- izing the President to assist ployment shall be consonant with the nations in that area in the treaty obligations of the United States and with the Constitution of the development of economic United States. strength, and to undertake Sec. 3. The President is hereby au- programs of military assist- thorized to use during the balance of ance; the resolution also en- fiscal year 1957 for economic and mili- dorsed the concept of em- tary assistance under this joint resolu- ploying armed forces of the tion not to exceed $200,000,000 from any appropriation now available for United States to secure and carrying out the provisions of the Mu- protect the territorial integ- tual Security Act of 1954, as amended, rity and political independ- in accord with the provisions of such ence of any nation which re- Act: Provided, That, whenever the quests aid from armed ag- President determines it to be important to the security of the United gression by any nation con- States, such use may be under the au- trolled by communism.

1811 Ch. 13 § 8 DESCHLER’S PRECEDENTS

On Mar. 5, 1957,(6) the Senate § 8.8 After rejecting a motion by a vote of 72 yeas to 19 nays, to recommit the measure, the agreed to House Joint Resolution House by yea and nay vote 117,(7) authorizing the President agreed to a Senate joint reso- to cooperate with and assist any lution expressing the posi- nation or group of nations in that tion of the United States area in the development of eco- with respect to Soviet build- nomic strength, to undertake pro- up of weapons in Cuba. grams of military assistance, and On Sept. 26, 1962,(10) the House to employ American Armed Forces by a vote of yeas 384, nays 7, not to resist aggression as stated voting 44, agreed to a Senate joint above. This House joint resolution resolution which was approved by was approved in lieu of Senate the President on Oct. 3, 1962, in Joint Resolution 19. the following form: (11) Resolution Regarding Soviet Whereas President James Monroe, announcing the Monroe Doctrine in Weapons in Cuba 1823, declared that the United States would consider any attempt on the § 8.7 The Senate agreed to a part of European powers ‘‘to extend Senate joint resolution ex- their system to any portion of this pressing the position of the hemisphere as dangerous to our peace United States with respect to and safety’’; and Whereas in the Rio Treaty of 1947 Soviet buildup of weapons in the parties agreed that ‘‘an armed at- Cuba. tack by any State against an American On Sept. 20, 1962,(8) the Senate State shall be considered as an attack against all the American States . . . by a vote of 86 yeas, 1 nay, agreed one of the said contracting parties un- to Senate Joint Resolution 230, dertakes to assist in meeting the at- expressing the position of the tack in the exercise of the inherent United States with respect to right of individual or collective self de- buildup of Soviet weapons in fense recognized by article 51 of the ( ) Charter of the United Nations’’; and Cuba. 9 ... Whereas the international Com- 6. 103 CONG. REC. 3127, 3129, 3130, munist movement has increasingly ex- 85th Cong. 1st Sess. 7. See § 8.5, supra, for the text of and 10. 108 CONG. REC. 20859, 20909–11, House vote on this measure. 87th Cong. 2d Sess. 8. 108 CONG. REC. 20024, 20058, 87th 11. See § 8.7, supra, for Senate approval Cong. 2d Sess. of this measure. This excerpt is 9. See § 8.8, infra, for the text of and taken from 76 Stat. 697, 87th Cong. House vote on this measure. 2d Sess. (Pub. L. No. 87–733).

1812 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 8

tended into Cuba its political, eco- arms, Soviet violation of nomic, and military sphere of influ- American, British, and ence; Now, therefore, be it French rights to Berlin, in- Resolved by the Senate and House of Representatives of the United States of cluding ingress and egress, America in Congress assembled, That and to fulfill the American the United States is determined— commitment to the people of (a) to prevent by whatever means Berlin. may be necessary, including the use of arms, the Marxist-Leninist regime in On Oct. 5, 1962, the House by a Cuba from extending, by force or the vote of yeas 312, nays 0, not vot- threat of force, its aggressive or sub- ing 123,(12) and on Oct. 10, 1962, versive activities to any part of this the Senate by voice vote,(13) hemisphere; agreed to House Concurrent Reso- (b) to prevent in Cuba the creation lution 570, expressing the sense of or use of an externally supported military capability endangering the secu- the Congress with respect to Ber- rity of the United States; and lin in the following language: (c) to work with the Organization of Whereas the primary purpose of the American States and with freedom- United States in its relations with all loving Cubans to support the aspira- other nations is and has been to de- tions of the Cuban people for self-develop and sustain a just and enduring termination. peace for all; and Passage of the Senate joint res- Whereas it is the purpose of the olution followed rejection by a United States to encourage and support the establishment of a free, uni- vote of yeas 140, nays 251, not fied, and democratic Germany; and voting 46, of a motion to recommit Whereas in connection with the ter- with instructions which had been mination of hostilities in World War II offered by Mr. William S. Broom- of the United States, the United King- field. of Michigan. dom, France, and the Soviet Union freely entered into binding agreements Parliamentarian’s Note: This under which the four powers have the resolution was approved prior to right to remain in Berlin, with the the Cuban missile crisis of 1962. right of ingress and egress, until the conclusion of a final settlement with Resolution to Protect Berlin the Government of Germany; and Whereas no such final settlement § 8.9 The House and Senate has been concluded by the four powers agreed to a House concur- and the aforementioned agreements rent resolution expressing continue in force: Now, therefore, be it

the determination of Con- 12. 108 CONG. REC. 22618–38, 87th gress to prevent by whatever Cong. 2d Sess. means, including the use of 13. Id. at pp. 22964–66. 1813 Ch. 13 § 8 DESCHLER’S PRECEDENTS

Resolved by the House of Representa- resolution, passed by the Senate tives (the Senate concurring), That it is on a vote of yeas 75, nays 0, on the sense of the Congress— July 28, 1961,(15), and approved by (a) that the continued exercise of (16) United States, British, and French the President on Aug. 1, 1961, (17) rights in Berlin constitutes a funda- reads as follows: mental political and moral determina- JOINT RESOLUTION tion; To authorize the President to order (b) that the United States would re- units and members in the Ready Re- gard as intolerable any violation by the serve to active duty for not more Soviet Union directly or through others than twelve months, and for other of those rights in Berlin, including the purposes. right of ingress and egress; (c) that the United States is deter- Resolved by the Senate and House of mined to prevent by whatever means Representatives of the United States of may be necessary, including the use of America in Congress assembled, That arms, any violation of those rights by notwithstanding any other provision of the Soviet Union directly or through law, until July 1, 1962, the President others, and to fulfill our commitment may, without the consent of the per- to the people of Berlin with respect to sons concerned, order any unit, and their resolve for freedom. any member not assigned to a unit organized to serve as a unit, in the Authorization to Activate Re- Ready Reserve of an armed force to ac- serve Forces tive duty for not more than twelve consecutive months. However, not more than two hundred and fifty thousand § 8.10 The House agreed to a members of the Ready Reserve may be Senate joint resolution au- on active duty (other than for train- thorizing the President to ing), without their consent, under this order units and members of section at any one time. the Ready Reserve to active Sec. 2. Notwithstanding any other duty for not more than 12 provision of law, until July 1, 1962, the President may authorize the Secretary months. of Defense to extend enlistments, ap- On July 31, 1961,(14) the House pointments, periods of active duty, pe- by a vote of yeas 403, nays 2, not riods of active duty for training, peri- voting 32, agreed to Senate Joint 15. Id. at pp. 13930, 13942. Resolution 120, authorizing the 16. See 107 CONG. REC. 14370, 87th President to order units and mem- Cong. 1st Sess., Aug. 2, 1961, for an- bers of the Ready Reserve into ac- nouncement in the Senate of Presi- tive military service. The joint dential approval. 17. This excerpt is taken from 75 Stat. 14. 107 CONG. REC. 14051, 14061, 242, 87th Cong. 1st Sess. (Pub. L. 14062, 87th Cong. 1st Sess. No. 87–117).

1814 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 8

ods of obligated service, or other mili- JOINT RESOLUTION tary status, in any component of an To authorize the President to order armed force or in the National Guard units and members in the Ready Re- that expire before July 1, 1962, for not serve to active duty for not more more than twelve months. than twelve months, and for other Parliamentarian’s Note: In an purposes. address to the Nation on July 25, Resolved by the Senate and House of 1961, President John F. Kennedy Representatives of the United States of requested authority to call up the America in Congress assembled, That, Ready Reserves to respond to the notwithstanding any other provision of Berlin crisis.(18) law, until February 28, 1963, the President may, without the consent of § 8.11 During the Cuban mis- the persons concerned, order any unit, sile crisis, the Senate and or any member, of the Ready Reserve of an armed force to active duty for not House agreed to a Senate more than twelve consecutive months. joint resolution authorizing However, not more than one hundred the President to activate and fifty thousand members of the units and members of the Ready Reserve may be on active duty (other than for training), without their Ready Reserve, for not more consent, under this section at any one than 12 months. time. On Sept. 13, 1962, the Senate Sec. 2. Notwithstanding any other by a vote of 76 yeas, 0 nays,(19) provision of law until February 28, and on Sept. 24, 1962, the House 1963, the President may authorize the Secretary of Defense to extend enlist- by a vote of 342 yeas, 13 nays, 80 ments, appointments, periods of active (20) not voting, agreed to Senate duty, periods of active duty for train- Joint Resolution 224, authorizing ing, periods of obligated service or the President to activate units other military status, in any compo- and members of the Ready Re- nent of an armed force or in the Na- serve. The measure was approved tional Guard that expire before Feb- on Oct. 3, 1962, in the following ruary 28, 1963, for not more than (1) twelve months. However, if the enlist- form: ment of a member of the Ready Re- serve who is ordered to active duty 18. This address is reprinted at 107 under the first section of this Act CONG. REC. 13460–62, 87th Cong. would expire after February 28, 1963, 1st Sess., July 26, 1961. but before he has served the entire pe- 19. 108 CONG. REC. 19349, 19365, 87th riod for which he was so ordered to ac- Cong. 2d Sess. tive duty, his enlistment may be ex- 20. Id. at pp. 20489, 20521, 20522 tended until the last day of that pe- 1. This excerpt is taken from 76 Stat. riod. 710, 87th Cong. 2d Sess. (Pub. L. No. Sec. 3. No member of the Ready Re- 87–736). serve who was involuntarily ordered to

1815 Ch. 13 § 8 DESCHLER’S PRECEDENTS

active duty or whose period of active plies to American republics.(5) The duty was extended under the Act of concept of providing assistance to August 1, 1961, Public Law 87–117 (75 other nations which originated in Stat. 242), may be involuntarily ordered to active duty under this Act. the joint resolution making military assistance available to Amer- ican republics was extended be- § 9. Pre-World War II Leg- yond the Western Hemisphere. The Lend-Lease Act authorized islative Restrictions on the President to direct the manu- Military Activity facture, lease, or loan of military and naval supplies to ‘‘the govern- The German invasion of Poland ment of any country whose de- in September of 1939 and the sub- fense the President deems vital to sequent declarations of war on the defense of the United Germany by Britain and France States.’’ (6) This act permitted the intensified the public debate over United States to supply Britain United States involvement or sup- and other nations in their strug- port for its traditional allies in the gle against Germany. conflict. At the request of the President, Shortly after the German inva- Congress approved the first peace- sion, the President by proclama- time draft in the nation’s history, tion convened an extraordinary the Selective Service Act of 1940, session of Congress to act on neu- but prohibited the employment of ( ) trality legislation. 2 Accepting the inducted land forces outside the ( ) President’s request, 3 Congress Western Hemisphere.(7) An iden- repealed provisions of the Neu- tical restriction had been imposed trality Acts of 1935 and 1937 a month earlier in a joint resolu- which prohibited shipments of tion authorizing the President to arms and ammunition to bellig- activate reserve and retired mili- erent nations.(4) tary personnel.(8) Protecting the Congress later authorized the Western Hemisphere became sig- President to provide military sup- 5. See § 9.2, infra, for a discussion of 2. See § 12.3, infra, for this proclama- this measure. The Neutrality Act of tion. 1939 did not apply to American re- 3. See § 11.6, infra, for a discussion of publics. the President’s address to a joint ses- 6. See § 9.3, infra, for a discussion of sion. the Lend-Lease Act. 4. Sec § 9.1, infra, for the discussion of 7. See § 9.5, infra, for this restriction. the Neutrality Act of 1939. 8. See § 9.4, infra, for this resolution.

1816 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 9 nificant in actions preceding War Production Board.(13) Under American involvement in World the Emergency Price Control War II. The President justified his Act,(14) the Office of Price Admin- actions as in the interest of West- istration regulated the price of al- ern Hemisphere defense when he most all commodities, as well as acted to acquire British territory the rentals for housing accom- in Newfoundland, Bermuda, and modations in scores of defense certain Caribbean islands for rental areas. The War Labor Dis- ( ) bases in exchange for out-of-date putes Act 15 permitted the Presi- American destroyers,(9) and sent dent to commandeer plants which American troops to replace British were closed by strikes. The Re- (16) forces in Iceland.(10) negotiation Act, which the Su- Legislation regulating thc econ- 13. Constitution of the United States of omy was enacted prior to and dur- America: Analysis and Interpreta- ing World War II. The Priorities tion, S. Doc. No. 92–82, 92d Cong. 2d Act of May 31, 1941,(11) empow- Sess. 337 (1973). ered the President to allocate any 14. 56 Stat. 23, 77th Cong. 2d Sess. material where necessary to facili- (Pub. L. No. 77–421). 15. 57 Stat. 163, 78th Cong. 1st Sess. tate the defense effort. The Sec- (Pub. L. No. 78–89). (12) ond War Powers Act extended 16. The Supreme Court in Lichter v this authority. These two acts fur- United States, 334 U.S. 742, 745 nished the statutory foundation (1948) stated that the term ‘‘the Re- for the extensive system of con- negotiation Act’’ included 56 Stat. sumer rationing administered by 226, 77th Cong. 2d Sess. (Pub. L. No. the Office of Price Administration, 77–528), the Sixth Supplemental Na- as well as for the comprehensive tional Defense Appropriation Act, sometimes called the First Renegoti- control of industrial materials and ation Act; 56 Stat. 798, 801, 77th output which was exercised by the Cong. 2d Sess. (Pub. L. No. 77–753), the Revenue Act of 1942, Title VIII, 9. See § 11.7, infra. See also § 3.2, Renegotiation of War Contracts; 57 supra, for an opinion of the Attorney Stat. 347, 78th Cong. 1st Sess. (Pub. General as to the constitutionality of L. No. 78–108), Military Appropria- this action taken without consulting tions Act of 1944; 57 Stat. 564, 78th Congress. Cong. 1st Sess. (Pub. L. No. 78–149), 10. See § 11.8, infra, for an announce- an act to prevent payment of exces- ment of this action. sive fees or compensation in connec- 11. 55 Stat. 236, 77th Cong. 1st Sess. tion with the negotiation of war con- (Pub. L. No. 77–92). tracts; 58 Stat. 21, 78–93, 78th 12. 56 Stat. 176, 77th Cong. 2d Sess. Cong. 2d Sess. (Pub. L. No. 78–235), (Pub. L. No. 77–507). Revenue Act of 1943, Title VII, Re-

1817 Ch. 13 § 9 DESCHLER’S PRECEDENTS preme Court found to be a proper The act, which did not apply to exercise of the war powers by any American republic engaged in Congress,(17) authorized the gov- war against a non-American state ernment to recover excessive prof- or states, authorized the President its realized on war contracts. to issue a proclamation naming foreign states as belligerents whenever he or the Congress by concurrent resolution found that a Neutrality Act state of war existed between for- ( ) § 9.1 The House and Senate eign states. 1 He was also author- agreed to the conference re- ized to require a bond from the port on the Neutrality Act of owner or person in command of 1939. any domestic or foreign vessel which he had reason to believe On Nov. 3, 1939, the House by was about to carry out of a port or a vote of yeas 243, nays 172, not from the jurisdiction of the United voting 14,(18) and the Senate by a States, fuel, men, arms, ammuni- vote of yeas 55, nays 24,(19) agreed tion, implements of war, supplies, to the conference report (H. Rept. dispatches, or information to any No. 1475) on House Joint Resolu- warship, tender, or supply ship of tion 306, the Neutrality Act of a belligerent state; and to promul- 1939, to preserve the neutrality gate rules and regulations.(2) and peace of the United States It was further provided that and secure the safety of its citi- where states and areas are named zens and their interests.(20) as being at war in a Presidential proclamation issued pursuant to negotiation of War Contracts, and Title VIII, Repricing of War Con- proved on Aug. 31, 1935 (Pub. Res. tracts. No. 67, 49 Stat. 1081, S.J. Res. 173, 17. Lichter v United States, 334 U.S. 742 74th Cong. 1st Sess.), and amended (1948). on May 1, 1937 (Pub. Res. No. 27, 50 18. 85 CONG. REC. 1389, 76th Cong. 2d Stat. 121, S.J. Res. 251, 75th Cong. Sess. See also pp. 1381–86, for the 1st Sess.). conference report and statement of 1. See § 12.4, infra, for an example of the conferees. this kind of proclamation. 19. Id. at p. 1356. 2. This provision effectuated a request 20. 22 USC §§ 441, 444, 445, 447–451, of the President to repeal embargo 453–457; Pub. Res. No. 54, 54 Stat. provisions of earlier Neutrality Acts. 4, Ch. 2, H.J. Res. 306, 76th Cong. See § 11.6, infra, for a discussion of 2d Sess., approved Nov. 4, 1939. the President’s message requesting Neutrality legislation had been ap- the Neutrality Act of 1939.

1818 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 9 authority granted in the act, no The act also provided that no American vessels may lawfully person within the United States carry passengers or articles to may solicit or receive any con- such states.(3) Similarly, the terms tribution for or on behalf of a gov- of the act provided that no Amer- ernment, agency, or instrumentality of such states. Whenever ican citizen or vessel may lawfully the President places special re- proceed into an area designated strictions on the use of ports and by the President as a combat territorial waters of the United zone.(4) Moreover, no American States, submarines and armed citizen may lawfully travel on any merchant vessels of a foreign vessel of any such state and no state may not enter or depart American merchant vessel en- from those ports or territorial wa- (7) gaged in commerce with any for- ters. eign state may lawfully be The act also established the Na- tional Munitions Control Board.(8) armed.(5) And no person in the United States may lawfully en- Military Assistance to Amer- gage in certain financial trans- ican Republics actions with any government or any political subdivision of such § 9.2 The Senate and House states or person acting for or on agreed to a joint resolution behalf of such governments.(6) authorizing the Secretaries of War and of the Navy to as- 3. This provision, § 2 of the Neutrality sist the governments of Act of 1939, was repealed by 55 Stat. American republics to in- 764, Ch. 473 § 1, 77th Cong. 1st Sess. (Pub. L. No. 77–294), approved crease their military and on Nov. 17, 1941. naval establishments. 4. This provision, § 3 of the Neutrality On May 28, 1940, the Senate Act of 1939, was repealed by 55 Stat. amended and passed,(9) and on 764, Ch. 473 § 1, 77th Cong. 1st Sess. (Pub. L. No. 77–294), approved 77th Cong. 2d Sess. (Pub. L. No. 77– on Nov. 17, 1941. 459), approved on Feb. 21, 1942. 5. This provision, § 6 of the Neutrality 7. See § 12.5, infra, for such restric- Act of 1939, was repealed by 55 Stat. tions. 764, Ch. 473 § 2, 77th Cong. 1st 8. This provision, § 12 of the Neutrality Sess. (Pub. L. No. 77–294), approved Act of 1939, was repealed by 68 Stat. 861, Ch. 937, title V § 542(a) (12), Nov. 17, 1941. 83d Cong. 2d Sess. (Pub. L. No. 83– 6. This provision, § 7 of the Neutrality 665, H.R. 9678), approved on Aug. Act of 1939, was amended to be inop- 26, 1954. erative when the United States en- 9. 86 CONG. REC. 6977, 76th Cong. 3d gages in war. 56 Stat. 95, Ch. 104, Sess.

1819 Ch. 13 § 9 DESCHLER’S PRECEDENTS

June 5, 1940, the House agreed to ments and passed, H.R. 1776, fur- Senate amendments and ther to promote the defense of the passed,(10) House Joint Resolution United States, known as the 367, authorizing the President in Lend-Lease Act, which authorized his discretion to direct the Sec- the President to direct manufac- retary of War to manufacture or ture of defense articles for the otherwise procure coast-defense government of any country whose and antiaircraft materiel, includ- defense the President deemed ing ammunition therefor, and to vital to the def ense of the United direct the Secretary of the Navy States, and to direct the lease or to construct vessels of war on be- ( ) loan of defense articles. The act half of any American republic. 11 was approved in the following language: (14) Lend-Lease Act Be it enacted by the Senate and § 9.3 The Senate and House House of Representatives of the United agreed to a bill further to States of America in Congress assembled, That this Act may be cited as ‘‘An promote the defense of the Act to Promote the Defense of the United States, known as the United States’’. Lend-Lease Act, which au- Sec. 2. As used in this Act— thorized the President to di- (a) The term ‘‘defense article’’ rect manufacture, lease, and means— loan of war supplies to for- (1) Any weapon, munition, aircraft, vessel, or boat; eign governments. (2) Any machinery, facility, tool, ma- On Mar. 8, 1941, the Senate by terial, or supply necessary for the man- a vote of yeas 60, nays 31, not vot- ufacture, production, processing, re- ing 4, amended and agreed to,(12) pair, servicing, or operation of any arti- and the House by a vote of yeas cle described in this subsection. . . . Sec. 3. (a) Notwithstanding the pro- 317, nays 71, present 1, not voting visions of any other law, the President (13) 40, agreed to Senate amend- may, from time to time, when he deems it in the interest of national de- 10. Id. at p. 7616. See 85 CONG. REC. fense, authorize the Secretary of War, 9861, 76th Cong. 1st Sess., July 24, the Secretary of the Navy, or the head 1939, for initial House approval of of any other department or agency of this joint resolution. the Government— 11. Pub. Res. No. 83, 54 Stat. 396 (June 15, 1940). 1941, for initial House approval of 12. 87 CONG. REC. 2097. 77th Cong. 1st this bill by a vote of yeas 260, nays Sess. 165, not voting 6. 13. Id. at p. 2178. See 87 CONG. REC. 14. The text is taken from 55 Stat. 31 815, 77th Cong. 1st Sess., Feb. 8, (Pub. L. No. 77–11), Mar. 11, 1941.

1820 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 9

(1) To manufacture in arsenals, fac- the President nor the head of any de- tories, and shipyards under their juris- partment or agency shall exercise any diction, or otherwise procure, to the ex- of the powers conferred by or pursuant tent to which funds are made available to subsection (a); except that until July therefor, or contracts are authorized 1, 1946, any of such powers may be ex- from time to time by the Congress, or ercised to the extent necessary to carry both, any defense article for the gov- out a contract or agreement with such ernment of any country whose defense a foreign government made before July the President deems vital to the de- 1, 1943, or before the passage of such fense of the United States. concurrent resolution, whichever is the (17) (2) To sell, transfer title to, ex- earlier. . . . change, lease, lend, or otherwise dis- Sec. 5. (a) The Secretary of War, the pose of, to any such government any Secretary of the Navy, or the head of defense article, but no defense article any other department or agency of the not manufactured or procured under Government involved shall, when any paragraph (1) shall in any way be dis- such defense article or defense infor- posed of under this paragraph, except mation is exported, immediately inform the department or agency des- after consultation with the Chief of ignated by the President to administer Staff of the Army or the Chief of Naval section 6 of the Act of July 2, 1940 (54 Operations of the Navy, or both. Stat. 714), of the quantities, character, ...(15) value, terms of disposition, and des- (3) To test, inspect, prove, repair, tination of the article and information outfit, recondition, or otherwise to so exported. place in good working order, to the ex- (b) The President from time to time, tent to which funds are made available but not less frequently than once every therefor, or contracts are authorized ninety days, shall transmit to the Con- from time to time by the Congress, or gress a report of operations under this both, any defense article for any such Act except such information as he government, or to procure any or all deems incompatible with the public in- such services by private contract. terest to disclose. Reports provided for ( ) ...16 under this subsection shall be trans- (c) After June 30, 1943, or after the mitted to the Secretary of the Senate passage of a concurrent resolution by or the Clerk of the House of Represent- the two Houses before June 30, 1943, atives, as the case may be, if the Sen- which declares that the powers con- ate or the House of Representatives, as ferred by or pursuant to subsection (a) the case may be, is not in session. are no longer necessary to promote the Sec. 6. (a) There is hereby author- defense of the United States, neither ized to be appropriated from time to

15. See 57 Stat. 2], 25, 78th Cong. 1st 17. See 59 Stat. 52, 79th Cong. 1st Sess. Sess. (Pub. L. No. 78–11), for an (Pub. L. No. 79–31); 58 Stat. 222, amendment to this section. 223, 78th Cong. 2d Sess. (Pub. L. No. 16. See 58 Stat. 222, 223, 78th Cong. 2d 78–304); and 57 Stat. 20, 78th Cong. Sess. (Pub. L. No. 78–304), for an 1st Sess. (Pub. L. No. 78–9), for amendment to this provision. amendments to this provision.

1821 Ch. 13 § 9 DESCHLER’S PRECEDENTS

time, out of any money in the Treasury stricting employment of re- not otherwise appropriated, such serve components of the amounts as may be necessary to carry out the provisions and accomplish the United States Army beyond purposes of this Act. the limits of the Western (b) All money and all property which Hemisphere in a Senate joint is converted into money received under resolution authorizing the section 3 from any government shall, with the approval of the Director of the President to activate the re- Budget, revert to the respective appro- serves. priation or appropriations out of which On Aug. 15, 1940,(19) the House funds were expended with respect to the defense article or defense informa- by a vote of yeas 342, nays 34, not tion for which such consideration is re- voting 54, agreed to Senate Joint ceived, and shall be available for ex- Resolution 286, authorizing the penditure for the purpose for which President to order members and such expended funds were appropriated by law, during the fiscal year units of reserve components and in which such funds are received and retired personnel of the Regular the ensuing fiscal year; but in no event Army into active military service. shall any funds so received be avail- The joint resolution, which was able for expenditure after June 30, passed by the Senate by a vote of 1946. . . . (18) Sec. 11. If any provision of this Act yeas 71, nays 7, on Aug. 8, ( ) or the application of such provision to 1940, 20 and signed by the Presi- any circumstance shall be held invalid, dent on Aug. 27, 1940, as Public the validity of the remainder of the Act and the applicability of such provision 19. 86 CONG. REC. 10429, 10448, 10449, to other circumstances shall not be af- 76th Cong. 3d Sess. See also 86 fected thereby. CONG. REC. 10763, 76th Cong. 3d Sess., Aug. 22, 1940, for House ap- Reserve Forces Limited to West- proval of the conference report. ern Hemisphere 20. Id. at p. 10068. The Senate by a vote of yeas 31, nays 45, rejected a mo- § 9.4 The House and Senate tion to recommit the joint resolution agreed to a provision re- with instructions to report it back forthwith with an amendment sub- 18. See 61 Stat. 449, 450, 80th Cong. 1st stituting ‘‘continental United States Sess. (Pub. L. No. 80–123), for repeal and Territories and possessions of of this provision which had been the United States’’ in place of the re- amended by 59 Stat. 52, 79th Cong. mainder of section 1 beginning with 1st Sess. (Pub. L. No. 79–31); 58 ‘‘Western Hemisphere.’’ Id. at pp. Stat. 222, 223, 78th Cong. 2d Sess. 10067, 10068. See also 86 CONG. (Pub. L. No. 78–304); and 57 Stat. REC. 10791, 76th Cong. 3d Sess., 20, 78th Cong. 1st Sess. (Pub. L. No. Aug. 23, 1940, for Senate voice vote 78–9). approval of this measure.

1822 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 9

Resolution No. 96,(1) contained the present 2, not voting 70, agreed to following restriction on use of re- a conference report on S. 4164, (2) serves: the Selective Training and Service . . . [T]he members and units of the Act of 1940. This measure, passed reserve components of the Army of the United States ordered into active Fed- as a conference report by the Sen- eral service under this authority shall ate on a vote of yeas 47, nays 25, not be employed beyond the limits of (5) the Western Hemisphere except in the on Sept. 14, 1940, and signed by territories and possessions of the the President on Sept. 16, 1940, United States, including the Philippine as Public Law No. 783,(6) con- Islands. tained the following restriction on After commencement of World (7) War II, this provision was re- use of inducted land forces: pealed.(3) (e) Persons inducted into the land forces of the United States under this Inducted Land Forces Limited Act shall not be employed beyond the to Western Hemisphere limits of the Western Hemisphere except in the Territories and possessions § 9.5 The House and Senate of the United States, including the agreed to a provision re- Philippine Islands. stricting employment of inducted land forces beyond After the commencement of the limits of the Western World War II, this provision was ( ) Hemisphere in a conference repealed. 8 report on the Selective Training and Service Act of 5. Id. at pp. 12156–61. 6. See 86 CONG. REC. 12290, 76th 1940. Cong. 3d Sess., Sept. 19, 1940, for On Sept. 14, 1940,(4) the House announcement in the Senate of Pres- by a vote of yeas 233, nays 124, idential approval. 7. This excerpt is taken from 54 Stat. 1. See 86 CONG. REC. 11089, 76th 885, 886, 76th Cong. 3d Sess. Cong. 3d Sess., Aug. 28, 1940, for 8. See 55 Stat. 799, 77th Cong. 1st announcement in the Senate of Pres- Sess. (Pub. L. No. 77–338) approved idential approval. Dec. 13, 1941. The House by a vote 2. This excerpt is taken from 54 Stat. of 203 yeas, 202 nays, had agreed to 858, 859, 76th Cong. 3d Sess. H.J. Res. 222, extending the period 3. See 55 Stat. 799, 77th Cong. 1st of conscription beyond the 12 months Sess. (Pub. L. No. 77–338), approved established in the Selective Training Dec. 13, 1941. and Service Act of 1940. 87 CONG. 4. 86 CONG. REC. 12207, 12227, 12228, REC. 6995, 7074, 7075, 77th Cong. 76th Cong. 3d Sess. 1st Sess., Aug. 12, 1941.

1823 Ch. 13 § 10 DESCHLER’S PRECEDENTS

§ 10. Vietnam Era Restric- Dvorin, Eugene, ed. The Senate’s War Powers; Debate on Cambodia from the tions on Military Activ- Congressional Record. Markham Pub. ity Co., Chicago [c1971]. Faulkner, S. War in Vietnam: Is it Con- As debate over American institutional? 56 Georgetown U.L.J.1132 volvement in Indochina intensified (1968). following the 1968 elections, Con- Goldman, Eric F. The President, the Peo- ple and the Power to Make War. 21 gress, exercising its constitutional American Heritage 4 (1970), reprinted authority to raise and support ar- in The Vietnam War and International mies,(9) imposed restrictions on Law: The Widening Context, Princeton the obligation and expenditure of University Press, Princeton, N.J. 489 funds relating to military activity (1972). in Vietnam and neighboring Katzenbach, Nicholas deB. Congress and Foreign Policy. 3 Cornell International areas. These restrictions, which L.J. (1970), reprinted in The Vietnam ( ) were placed in authorization 10 as War and International Law: The Wid- well as appropriation bills,(11) in ening Context, Princeton University some instances prohibited obliga- Press, Princeton, N.J. 595 (1972). tion or expenditure of funds in Malawer, Stuart S. The Vietnam War particular countries after a fixed Under the Constitution: Legal Issues (12) Involved in the United States Military date, and in other instances did Involvement in Vietnam. 31 U. of Pitt. (13) not specify such a date. L.R. 205 (Winter 1969). The precedents in this section Meeker, Leonard C. The Legality of comprise a few examples of the United States Participation in the De- many initiatives undertaken by fense of Vietnam. 54 Dept. of State Congress in response to the Viet- Bulletin 474 (Apr. 28, 1966). nam crisis. Moore, John Norton, James L. Under- wood, and Myres S. McDougall The Collateral References (14) Lawfulness of United States Assist- ance to the Republic of North Vietnam. Bickel, Alexander M. The Constitution 112 CONG. REC. 15519–67, July 13, and the War. 54 Commentary 49 (July 1966. 1972). Moore, John Norton. Law and the Indo- China War. Princeton University 9. U.S. Const. art. I, § 8, clause 12. Press, Princeton, N.J. (1972). 10. §§ 10.2, 10.3, infra. Moore, John Norton. Legal Dimensions of 11. §§ 10.1, 10.4, infra. the Decision to Intercede in Cambodia. 12. §§ 10.4, 10.5, infra. 13. §§ 10.1–10.3, infra. erences in § 3, supra, war powers 14. The articles in this section relate to generally, and § 4, supra, War Pow- military involvement during the ers Act, for other articles relating to Vietnam era. See collateral ref- those subjects.

1824 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 10

65 American J. of International Law ending June 30, 1970. The provi- 38 (Jan. 1971). sion appeared in the bill approved Norton, Patrick M. Constitutional Law— by the President in the following Justicabi1ity—Veto Power—Stand- (16) ing—No Judicially Discoverable and form: Manageable Standards Exist by Which Sec. 643. In line with the expressed to Ascertain Whether Bombing of Cam- intention of the President of the bodia Required New Congressional Au- United States, none of the funds ap- thorization. 15 Harv. International L. propriated by this Act shall be used to Jour. 143–17 (Winter 1974). finance the introduction of American Van Alstyne, William. Congress, the ground combat troops into Laos or President, and the Power to Declare Thailand. War: A Requiem for Vietnam. 121 U. of Pa. L. Rev. 1–28 (Nov. 1972). Because it was a substitute for Wenner, Scott J. The Indochina War an amendment offered by Senator Cases in the United States Court of John Sherman Cooper, of Ken- Appeals for the Second Circuit: The tucky, this provision came to be Constitutional Allocation of War Pow- known as the Cooper-Church ers. 7 N.Y.U. Jour. of International Law and Politics 137–61 (Spring 1974). amendment. Prohibition of Military Sup- port for Cambodia and Laos Prohibition of American Forces in Laos or Thailand § 10.2 A bill authorizing appropriations for military pro- § 10.1 The Department of De- curement for fiscal year 1971 fense appropriations bill for was amended to prohibit use fiscal year 1970 was amended of funds to support Viet- to prohibit use of funds to fi- namese or other freeworld nance introduction of ground forces in actions designed to combat troops into Laos or provide military support and Thailand. assistance to the Govern- On Dec. 15, 1969,(15) the Senate ment of Cambodia or Laos. by a vote of yeas 73, nays 17, On Aug. 21, 1970,(17) the Senate agreed to an amendment offered by voice vote agreed to amend- by Senator Frank Church, of Idaho, to House bill 15090, mak- 16. 83 Stat. 469, 487, 91st Cong. 1st ing appropriations for the Depart- Sess. (Pub. L. No. 91–171). ment of Defense for the fiscal year 17. 116 CONG. REC. 29686, 29688, 91st Cong. 2d Sess. See also 116 CONG. 15. 115 CONG. REC. 39168, 39172, 91st REC. 29572–83, 91st Cong. 2d Sess., Cong. 1st Sess. Aug. 20, 1971, for debate on amend-

1825 Ch. 13 § 10 DESCHLER’S PRECEDENTS ment No. 812, ordered by Senator AN ACT To authorize appropriations during the J. William Fulbright, of Arkansas, fiscal year 1971 for procurement of to H.R. 17123, to authorize appro- aircraft, missiles, naval vessels, and tracked combat vehicles, and other priations for military procurement weapons, and research, development, test, and evaluation for the Armed for the fiscal year 1971. The provi- Forces, and to authorize real estate sion appeared in the form passed acquisition and construction at certain installations in connection with by the Senate (18) in the bill ap- the Safeguard anti-ballistic missile system, and to prescribe the author- proved by the President on Oct. 7, ized personnel strength of the Se- lected Reserve of each Reserve com- (19) 1970. ponent of the Armed Forces, and for other purposes. ment No. 812; and 116 CONG. REC. 34580–602, 91st Cong. 2d Sess., Oct. Be it enacted by the Senate and House of Representatives of the United 1, 1970, for debate on and approval States of America in Congress assem- of the conference report in the Sen- bled . . . ate. Sec. 502. Subsection (a) of section 18. See 116 CONG. REC. 33924, 33925, 401 of Public Law 89–367, approved 33933, 91st Cong. 2d Sess., Sept. 28, March 15, 1966 (80 Stat. 37), as 1970, for the text of the House con- ‘‘(a) (1) Not to exceed $2,800,000,000 ference report, H. Rept. No. 91–1473, of the funds authorized for appropria- which states that the House con- tion for the use of the Armed Forces of ferees agreed to the Senate amend- the United States under this or any other Act are authorized to be made ment and deleted the words ‘‘in Viet- available for their stated purposes to nam’’ after the words ‘‘and other free support: (A) Vietnamese and other free world forces’’ and before the words world forces in support of Vietnamese ‘‘and local’’; and 116 CONG. REC. forces, (B) local forces in Laos and 34149, 34161, 34162, 91st Cong. 2d Thailand; and for related costs, during Sess., Sept. 29, 1970, for House ap- the fiscal year 1971 on such terms and proval of the conference report by a conditions as the Secretary of Defense vote of yeas 341, nays 11, not voting may determine. None of the funds ap- 77. propriated to or for the use of the Armed Forces of the United States 19. This excerpt is taken from 84 Stat. may be used for the purpose of paying 905, 910, 91st Cong. 1st Sess. (Pub. any overseas allowance, per diem al- L. No. 91–441). The italicized sen- lowance, or any other addition to the tence is the Fulbright amendment. regular base pay of any person serving amended, is hereby amended to read with the free world forces in South as follows: Vietnam if the amount of such pay-

1826 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 10

ment would be greater than the agreed to strike out all after the amount of special pay authorized to be enacting clause of the Special For- paid, for an equivalent period of serv- eign Assistance Act of 1971, H.R. ice, to members of the Armed Forces of the United States (under section 310 of 19911, which had been approved title 37, United States Code) serving in by the House, and insert an Vietnam or in any other hostile fire amendment, described above, re- area, except for continuation of pay- ported from the Committee on ments of such additions to regular base Foreign Relations. The provi- pay provided in agreements executed sions (1) became law when ap- prior to July 1, 1970. Nothing in clause (A) of the first sentence of this para- proved by the President on Jan. 5, graph shall be construed as author- 1971, in the same form as the ( ) izing the use of any such funds to sup- Senate amendment: 2 port Vietnamese or other free world forces in actions designed to provide AN ACT military support and assistance to the To provide additional foreign assist- Governments of Cambodia or Laos.’’ ance authorizations, and for other purposes. Prohibition of American Be it enacted by the Senate and Ground Forces From Cam- House of Representatives of the United bodia States of America in Congress assembled, That this Act may be cited as the § 10.3 The Special Foreign As- ‘‘Special Foreign Assistance Act of 1971’’. . . . sistance Act of 1971 was Sec. 7. (a) In line with the expressed amended to prohibit use of intention of the President of the funds to finance introduction of United States ground com- 91st Cong. 2d Sess., Dec. 15, 1970, bat troops into Cambodia, or for the text of the amendment from the Committee on Foreign Relations; to provide United States ad- and 116 CONG. REC. 43221–23, 91st visers to or for Cambodian Cong. 2d Sess., Dec. 22, 1970, for military forces in Cambodia, Senate approval of the conference re- and to assert that American port by a vote of yeas 41, nays 20. military and economic assist- 1. See 116 CONG. REC. 43133, 43134, ance should not be construed 91st Cong. 2d Sess., Dec. 21, 1970; as a commitment by the and 116 CONG. REC. 43342, 43343, 91st Cong. 2d Sess., Dec. 22, 1970, United States to Cambodia. for the text of and House approval of On Dec. 16, 1970,(20) the Senate the conference report in the House, by a vote of yeas 72, nays 22, respectively. 2. This excerpt is taken from 84 Stat. 20. 116 CONG. REC. 41788, 91st Cong. 2d 1942, 1943, 91st Cong. 2d Sess. Sess. See also 116 CONG. REC 41616, (Pub. L. No. 91–652).

1827 Ch. 13 § 10 DESCHLER’S PRECEDENTS

United States, none of the funds au- tion 636, the Senate agreed to an thorized or appropriated pursuant to amendment, described above, of- this or any other Act may be used to fi- fered by Senator J. William Ful- nance the introduction of the United States ground combat troops into Cam- bright, of Arkansas, on behalf of bodia, or to provide United States ad- the Committee on Foreign Rela- visers to or for Cambodian military tions. The joint resolution as forces in Cambodia. amended (4) was approved by the (b) Military and economic assistance President on July 1, 1973.(5) provided by the United States to Cam- Joint Resolution making continuing bodia and authorized or appropriated appropriations for the fiscal year pursuant to this or any other Act shall 1974, and for other purposes. not be construed as a commitment by Resolved by the Senate and House of the United States to Cambodia for its Representatives of the United States of defense. America in Congress assembled, That: The following sums are appropriated Prohibition of Military Funds out of any money in the Treasury not After Fixed Date otherwise appropriated and, out of applicable corporate or other revenues, § 10.4 A House joint resolution receipts, and funds, for the several de- continuing appropriations for the fiscal year 1974 was priated . . .’’ in the version which amended to prohibit after a originally passed the Senate to ‘‘. . . no funds herein or heretofore appro- fixed date obligation or ex- priated . . .’’ in the version approved penditure of funds to finance by the President. combat activities by United 4. See 119 CONG. REC. 21306, 21309, States military forces in, 21315, 21319, 21320, 93d Cong. 1st over, or off the shores of Sess., June 26, 1973, for House ap- North Vietnam, South Viet- proval of a substitute amendment offered by Mr. George H. Mahon nam, Laos, or Cambodia. (Tex.), as amended by an amend- On June 29, 1973,(3) during con- ment offered by Mr. Clarence D. sideration of House Joint Resolu- Long (Md.), prohibiting expenditure of funds under H.J. Res. 636 to sup- 3. 119 CONG. REC. 22305, 22325, port combat activities in, over, or off 22326, 93d Cong. 1st Sess. See also the shores of Cambodia or Laos. See 119 CONG. REC. 22603, 22604, 93d also 119 CONG. REC. 22632–37, 93d Cong. 1st Sess., June 30, 1973, for Cong. 1st Sess., June 30, 1973, for Senate agreement to the conference House approval of the conference re- report. Senate and House conferees port, H. Rept. No. 93–364. agreed to modify the language of this 5. This excerpt is taken from 87 Stat. amendment from ‘‘. . . no funds 130, 93d Cong. 1st Sess. (Pub. L. No. herein, heretofore or hereafter appro- 93–52).

1828 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 10

partments, agencies, corporations, and to the conference report (H. Rept. other organizational units of the Gov- No. 93–563) to H. R. 7645, the De- ernment for the fiscal year 1974, namely: partment of State Appropriations Sec. 108. Notwithstanding any other Act of 1973. The report included a provision of law, on or after August 15, provision prohibiting, after Aug. 1973, no funds herein or heretofore ap- 15, 1973, obligation or expendi- propriated may be obligated or ex- ture of funds as described above. pended to finance directly or indirectly This provision, which originated combat activities by United States in the Senate as an amendment military forces in or over or from off the shores of North Vietnam, South by the Committee on Foreign Re- ( ) Vietnam, Laos or Cambodia. lations to S. 1248, 8 was approved by the President on Oct. 18, 1973, Prohibition of Military Involve- in the following form:(9)

ment After Fixed Date DEPARTMENT OF STATE APPROPRIA- TIONS AUTHORIZATION ACT OF 1973 § 10.5 The Senate and House agreed to a conference re- * * * * * port (on the Department of An Act to authorize appropriations for the Department of State, and for State Appropriations Author- other purposes. ization Act of 1973) which in- Be it enacted by the Senate and cluded a provision prohib- House of Representatives of the United iting, after a fixed date, obli- States of America in Congress assem- gation or expenditure of bled, That: funds to finance involvement and 119 CONG. REC. 33413–15, 93d of United States military Cong. 1st Sess., Oct. 9, 1973, for text forces in hostilities in, over, of the conference report. or off the shores of North 8. See 119 CONG. REC. 18901–03, 93d Vietnam, South Vietnam, Cong. 1st Sess., June 8, 1973, for the Laos, or Cambodia, or to pro- text of this amendment, which did vide assistance to North Viet- not set a date certain but instead nam, unless specifically au- made the prohibition effective ‘‘. . . upon enactment of this Act. . . .’’ thorized by Congress. The date was established in con- On Oct. 10, 1973, the Senate (6) ference. On June 14, 1973, the Sen- and House (7) by voice vote agreed ate struck all after the enacting clause of H.R. 7645, and substituted 6. See 119. 33577, 33578, 93d Cong. 1st the provisions of S. 1248 (119 CONG. Sess., for Senate approval of the con- REC. 19648, 93d Cong. 1st Sess.). ference report. 9. This excerpt is taken from 87 Stat. 7. See 119 CONG. REC. 33609, 93d 451, 93d Cong. 1st Sess. (Pub. L. No. Cong. 1st Sess., for House approval; 93–126).

1829 Ch. 13 § 10 DESCHLER’S PRECEDENTS

This Act may be cited as the ‘‘De- Request for Declaration of War partment of State Appropriations Au- on Japan thorization Act of 1973’’. . . . § 11.1 The President addressed REQUIREMENTS FOR CONGRESSIONAL AUTHORIZATION FOR THE INVOLVE- a joint session of Congress to MENT OF AMERICAN FORCES IN FUR- announce the Japanese at- THER HOSTILITIES IN INDOCHINA, tack on Pearl Harbor and re- AND FOR EXTENDING ASSISTANCE TO NORTH VIETNAM quest a declaration of war. (10) Sec. 13. Notwithstanding any other On Dec. 8, 1941, President provision of law, on or after August 15, Franklin D. Roosevelt addressed a 1973, no funds heretofore or hereafter joint session of Congress to an- appropriated may: be obligated or ex- nounce the Japanese attack on pended to finance the involvement of Pearl Harbor and request a dec- (11) United States military forces in hos- laration of war. tilities in or over or from off the shores ADDRESS BY THE PRESIDENT (H. DOC. of North Vietnam, South Vietnam, NO. 453) Laos, or Cambodia, unless specifically The address delivered by the Presi- authorized hereafter by the Congress. dent of the United States to the joint Notwithstanding any other provision of meeting of the two Houses of Congress law, upon enactment of this Act, no held this day is as follows: funds heretofore or hereafter appro- To the Congress of the United States: priated may be obligated or expended Yesterday, December 7, 1941—a for the purpose of providing assistance date which will live in infamy—the United States of America was sud- of any kind, directly or indirectly, to or denly and deliberately attacked by on behalf of North Vietnam, unless naval and air forces of the Empire of specifically authorized hereafter by the Japan. . . . Congress. I believe I interpret the will of the Congress and of the people when I assert that we will not only defend ourselves to the uttermost but will make very certain that this form of § 11. Receipt of Presi- treachery shall never endanger us dential Messages again. Hostilities exist. There is no blink- ing at the fact that our people, our The precedents in this section are limited exclusively to written 10. 87 CONG. REC. 9519, 9520, 77th or oral statements officially re- Cong. 1st Sess. The message was received by Congress. Presidential ferred to the Committee on Foreign Affairs. statements made to the public at 11. See § 6.1, supra (House declaration), large through the media are not and § 7.1, supra ( Senate declara- included. tion).

1830 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 11

territory, and our interests are in President of the United States, which grave danger. . . . was read: I ask that the Congress declare that since the unprovoked and das- To the Congress of the United States: tardly attack by Japan on Sunday, December 7, a state of war has ex- On the morning of December 11, isted between the United States and the Government of Germany, pur- the Japanese Empire. suing its course of world conquest, declared war against the United FRANKLIN D. ROOSEVELT, States. THE WHITE HOUSE, The long known and the long ex- December 8, 1941. pected has thus taken place. . . . Italy also has declared war against Request for Declaration of War the United States. on Germany and Italy I, therefore, request the Congress to recognize a state of war between the United States and Germany, and § 11.2 The House received a between the United States and Italy. written message from the FRANKLIN D. ROOSEVELT, President announcing that THE WHITE HOUSE, Italy and Germany had de- December 11, 1941. clared war on the United States, and requesting the MR. [JOHN W.] MCCORMACK [of Mas- Congress to recognize a state sachusetts]: Mr. Speaker, I move that of war between the United the message of the President be re- States and Germany and the ferred to the Committee on Foreign Af- United States and Italy. fairs, and ordered printed. On Dec. 11, l941, (12) the House The motion was agreed to. received a message, as follows, from President Franklin D. Roo- Request for Declaration of War sevelt.(13) on Bulgaria, Hungary, and Rumania DECLARATION OF WAR BY GERMANY AND ITALY AGAINST UNITED STATES (H. DOC. NO. 454) § 11.3 The House received a written message from the The Speaker (14) laid before the House the following message from the President announcing that the Governments of Bulgaria, 12. 87 CONG. REC. 9665, 77th Cong. 1st Hungary, and Rumania had Sess. declared war on the United 13. See §§ 6.2, 6.3, supra (House action), States and requesting that and §§ 7.2, 7.3, supra (Senate action), Congress recognize a state of for declarations of war on Germany and Italy. war between the United 14. Sam Rayburn (Tex.). States and these nations.

1831 Ch. 13 § 11 DESCHLER’S PRECEDENTS

On June 2, 1942, (15) the House thorization to cooperate with received a message, as follows, and assist any Middle East- from President Franklin D. Roo- ern nation or group of na- sevelt. (16) tions in the development of

MESSAGE FROM THE PRESIDENT OF economic strength, under- THE UNITED STATES (H. Doc. No. take military assistance, and 761) employ American Armed The Speaker (17) laid before the Forces to secure and protect House the following message from the the territorial integrity and President of the United States, which political independence of na- was read, and, with the accompanying papers, referred to the Committee on tions which request aid Foreign Affairs and ordered to be against armed aggression printed: from any nation controlled To the Congress of the United States: by communism. The Governments of Bulgaria, On Jan. 5, 1957,(18) President Hungary, and Rumania have declared war against the United Dwight D. Eisenhower addressed States. . . . a joint session of the House and Therefore I recommend that the Senate to request authorization to Congress recognize a state of war be- deal with aggression in the Mid- tween the United States and Bul- (19) garia, between the United States dle East. and Hungary, and between the THE PRESIDENT: Mr. President, Mr. United States and Rumania. Speaker, and Members of Congress, FRANKLIN D. ROOSEVELT, first may I express to you my deep ap- THE WHITE HOUSE, preciation of your courtesy. . . . June 2, 1942. The action which I propose would have the following features: Request for Authority to Pro- It would, first of all, authorize the tect Middle Eastern Nations United States to cooperate with and assist any nation or group of nations in § 11.4 The President person- the general area of the Middle East in the development of economic strength ally addressed a joint session dedicated to the maintenance of na- of Congress to request au- tional independence. It would, in the second place, author- 15. 88 CONG. REC. 4787, 77th Cong. 2nd ize the Executive to undertake in the Sess. The message was referred to the Committee on Foreign Affairs. 18. 103 CONG. REC. 224–27, 85th Cong. 16. See §§ 6.4–6.6, supra (House action), 1st Sess. The message was referred and §§ 7.4–7.6, supra (Senate action), to the Committee on Foreign Affairs. for declarations of war on Bulgaria, 19. See §§ 8.5, 8.6, supra, for House and Hungary, and Rumania. Senate approval of the requested res- 17. Sam Rayburn (Tex.). olution, respectively.

1832 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 11

same region programs of military as- On Jan. 24, 1955,(1) the House sistance and cooperation with any na- received a written message, as fol- tion or group of nations which desires such aid. lows, from President Dwight D. It would, in the third place, author- Eisenhower. (2) ize such assistance and cooperation to (3) include the employment of the armed The Speaker laid before the House forces of the United States to secure the following message from the Presi- and protect the territorial integrity dent of the United States, which was and political independence of such na- read, referred to the Committee on tions requesting such aid, against overt Foreign Affairs, and ordered to be armed aggression from any nation con- printed: trolled by international communism. To the Congress of the United States: These measures would have to be consonant with the treaty obligations The most important objective of of the United States, including the our Nation’s foreign policy is to safeguard the security of the United Charter of the United Nations and States by establishing and pre- with any action or recommendations of serving a just and honorable peace. the United Nations. They would also, if In the Western Pacific, a situation is armed attack occurs, be subject to the developing in the Formosa Straits overriding authority of the United Na- that seriously imperils the peace and tions Security Council in accordance our security. with the charter. Since the end of Japanese hos- The present proposal would, in the tilities in 1945, Formosa and the Pescadores have been in the friendly fourth place, authorize the President to hands of our loyal ally, the Republic employ, for economic and defensive of China. We have recognized that it military purposes, sums available was important that these islands under the Mutual Security Act of 1954, should remain in friendly hands. as amended, without regard to existing ... limitations. What we are now seeking is primarily to clarify present policy and to unite in its application. . . . Request for Authority to Pro- For the reasons outlined in this tect the Pescadores and For- message, I respectfully request that mosa the Congress take appropriate action to carry out the recommendations contained herein. § 11.5 The House received a DWIGHT D. EISENHOWER, message from the President THE WHITE HOUSE, announcing military activi- January 24, 1955. ties by the People’s Republic of China against Formosa 1. 101 CONG. REC. 625, 626, 84th Cong. 1st Sess. and the Pescadores and re- 2. See §§ 8.3, 8.4, supra, for approval of questing a congressional res- the requested resolution by the olution to authorize a Presi- House and Senate, respectively. dential response. 3. Sam Rayburn (Tex.). 1833 Ch. 13 § 11 DESCHLER’S PRECEDENTS

Request for Neutrality Legisla- Announcement of Exchange of tion Destroyers for Bases § 11.6 The President addressed § 11.7 The House received a a joint session of the House written message from the and Senate to explain that he President announcing that had convened an extraor- the United States had ac- dinary session to permit Con- quired from Great Britain gress to act on neutrality leg- the right to lease naval and islation. air bases in Newfoundland, On Sept. 21, 1939,(4) the Presi- Bermuda, certain Caribbean dent addressed a joint session of Islands, and British Guiana. the House and Senate to explain Notes between the British that he had convened an extraor- Ambassador outlining the dinary session to permit Congress terms of the lease and the to act on neutrality legislation. He American Secretary of State specifically asked Congress to re- accepting the terms and an- peal embargo provisions, restrict nouncing transfer of Navy American ships from entering war destroyers were also re- zones, prevent Americans from ceived. traveling on belligerent vessels or in danger areas, and require a for- On Sept. 3, 1940,(6) the House eign buyer to take transfer of title received a message from the in the United States to commod- President announcing that the ities purchased by belligerents. He United States had acquired from also requested that Congress pro- Great Britain the right to lease hibit war credits to belligerents, naval and air bases. regulate collection of funds in the The Speaker (7) laid before the House United States, and maintain a li- the following message from the Presi- cense system for import and ex- dent of the United States, which was port of arms, ammunition, and read, and, with the accompanying pa- ( ) pers, referred to the Committee of the implements of war. 5 Whole House on the State of the Union and ordered to be printed, as follows: 4. 85 CONG. REC. 9–12, 76th Cong. 2d To the Congress of the United Sess. States: 5. See § 9.1, supra, and § 12.3, infra, I transmit herewith for the infor- for the congressional response to this mation of the Congress, notes ex- address (the Neutrality Act of 1939), and the President’s proclamation 6. 86 CONG. REC. 11354, 76th Cong. 3d convening a special congressional Sess. session, respectively. 7. William B. Bankhead (Ala.).

1834 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 11

changed between the British Ambas- Announcement of Arrival of sador at Washington and the Sec- retary of State on September 2, American Forces in Iceland 1940, under which this Government has acquired the right to lease naval § 11.8 The House received a and air bases in Newfoundland, and written message from the in the islands of Bermuda, the Baha- mas, Jamaica, Santa Lucia, Trini- President announcing the ar- dad, and Antigua, and in British rival in Iceland of forces of Guiana; also a copy of an opinion of the Attorney General, dated August the United States Navy to 27, 1940, regarding my authority to supplement and eventually consummate this arrangement. . . . replace British forces. This is not inconsistent in any sense with our status of peace. Still On July 7, 1941,(10) the House less is it a threat against any nation. received a message from the It is an epochal and far-reaching act of preparation for continental de- President (H. Doc. No. 307) an- fense in the face of grave danger. nouncing the arrival in Iceland of ... United States Navy forces. The value to the Western Hemi- sphere of these outposts of security The Speaker (11) laid before the ( ) is beyond calculation. . . . 8 House the following message from the FRANKLIN D. ROOSEVELT, THE WHITE HOUSE, President of the United States, which September 3, 1940. was read, and together with the accom- An opinion of the Attorney Gen- panying papers, referred to the Com- eral outlining Presidential author- mittee on Foreign Affairs and ordered to be printed: ity to acquire British offshore naval and air bases and transfer To the Congress of the United destroyers to Britain accompanied States: (9) I am transmitting herewith for the the President’s message. information of the Congress a message I received from the Prime Min- 8. 8. A Sept. 2, 1940, letter from the ister of Iceland on July 1 and the British Ambassador to Washington, reply I addressed on the same day to and the Sept. 2, 1940, response of the Prime Minister of Iceland in response to this message. the Secretary of State, Cordell Hull, In accordance with the under- are omitted. The British Ambassador standing so reached, forces of the outlined the terms of the 99-year United States Navy have today ar- rent-free lease. The Secretary of rived in Iceland in order to supple- State declared that the Government ment, and eventually to replace, the of the United States ‘‘gladly accepts British forces which have until now been stationed in Iceland in order to the proposals’’ and as consideration insure the adequate defense of that for the plan ‘‘will immediately trans- country. fer to His Majesty’s Government 50 United States Navy destroyers. . . .’’ 10. 87 CONG. REC. 5868, 5869, 77th 9. See § 3.2, supra, for the text of this Cong. 1st Sess. opinion. 11. Sam Rayburn (Tex.).

1835 Ch. 13 § 11 DESCHLER’S PRECEDENTS

As I stated in my message to the On July 15, 1958,(13) a message Congress of September 3 last regarding the acquisition of certain naval was received from the President, and air bases from Great Britain in exchange for certain over-age de- as follows: stroyers, considerations of safety (14) from overseas attack are funda- The Speaker laid before the mental. . . .(12) House the following message from the This Government will insure the President of the United States, which adequate defense of Iceland with full recognition of the independence of was read and referred to the Com- Iceland as a sovereign state. mittee on Foreign Affairs and ordered In my message to the Prime Min- ister of Iceland I have given the peo- to be printed: ple of Iceland the assurance that the American forces sent there would in To the Congress of the United States: no way interfere with the internal and domestic affairs of that country. On July 14, 1958, I received an ur- ... gent request from the President of the Republic of Lebanon that some FRANKLIN D. ROOSEVELT, United States forces be stationed in THE WHITE HOUSE, July 7, 1941. Lebanon. . . . United States forces are being sent to Lebanon to protect American lives Messages between the Prime and by their presence to assist the Minister and President accom- Government of Lebanon in the pres- panied the President’s message to ervation of Lebanon’s territorial integrity and independence, which the Congress. have been deemed vital to United States national interests and world peace. . . . Announcement of Deployment It is clear that the events which of Marines to Lebanon have been occurring in Lebanon represent indirect aggression from without, and that such aggression endan- gers the independence and integrity § 11.9 The House received a of Lebanon. . . . written message in which the Our Government has acted in re- President announced that he sponse to an appeal for help from a had dispatched American small and peaceful nation which has long had ties of closest friendship Marines to Lebanon to pre- with the United States. . . . serve that nation’s independence and protect Americans. DWIGHT D. EISENHOWER, THE WHITE HOUSE, 12. See § 11.7, supra, for the message of July 15, 1958. Sept. 3, 1940, announcing acquisition of British territory for naval and 13. 104 CONG. REC. 13865, 85th Cong. air bases and transfer of American 2d Sess. destroyers to Great Britain. 14. Sam Rayburn (Tex.).

1836 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 12

§ 12. Presidential Procla- threat to the peace of the world and imperil the efforts of this country mations and those of the United Nations to prevent aggression and armed con- The precedents in this section flict; and Whereas world conquest by Com- include Presidential proclamations munist imperialism is the goal of the which relate to national security forces of aggression that have been matters and appear in the Con- loosed upon the world . . . gressional Record. Now, therefore, I, Harry S. Tru- man, President of the United States of America, do proclaim the existence of a national emergency, which requires that the military, naval, air, National Emergency Regard- and civilian defenses of this country ing Korea be strengthened as speedily as possible to the end that we may be able § 12.1 During the conflict in to repel any and all threats against our national security. . . . Korea, the President pro- In witness whereof, I have here- claimed a national emer- unto set my hand and caused the seal of the United States of America gency which required to be affixed. strengthening of defenses to Done at the city of Washington repel threats to the national this 16th day of December in the year of our Lord 1950, and of the security and fulfill respon- independence of the United States of sibilities to the United Na- America the one hundred and sev- tions. enty-fifth. HARRY S TRUMAN. (15) On Dec. 21, 1950, Mr. John By the President: W. McCormack, of Massachusetts, inserted in the Record the fol- DEAN ACHESON, Secretary of State. lowing proclamation made by the President on Dec. 16, 1950: Embargo on Trade With Cuba MR. MCCORMACK: Mr. Speaker, under leave to extend my remarks in § 12.2 A Presidential proclama- the Record, I include the following text tion relating to an embargo of President. Truman’s proclamation of the existence of a national emergency, of all trade with Cuba was issued today, taken from the New York inserted in the Congressional Times of December 17, 1950: Record in the Senate. ( ) TEXT OF EMERGENCY PROCLAMATION On Sept. 20, 1962, 16 the fol- Whereas recent events in Korea lowing proclamation was inserted and elsewhere constitute a grave in the Record in the Senate:

15. 96 CONG. REC. A7844, 81st Cong. 2d 16. 108 CONG. REC. 20034, 87th Cong. Sess. 2d Sess.

1837 Ch. 13 § 12 DESCHLER’S PRECEDENTS

EMBARGO ON ALL TRADE WITH CUBA Extraordinary Session (Neu- BY THE PRESIDENT OF THE UNITED STATES OF AMERICA—A PROCLA- trality Legislation) MATION § 12.3 A Presidential proclama- Whereas the eighth meeting of con- tion convening an extraor- sultation of Ministers of Foreign Af- dinary session of Congress to fairs, serving as organ of consultation in application of the Inter-American act on neutrality legislation Treaty of Reciprocal Assistance, in its was inserted in the Congres- final act resolved that the present Gov- sional Record. ernment of Cuba is incompatible with On Sept. 21, 1939,(17) the fol- the principles and objectives of the lowing proclamation convening inter-American system; and, in light of the Congress in extraordinary ses- the subversive offensive of Sino-Soviet sion was read to the House:(18) communism with which the Govern- ( ) ment of Cuba is publicly alined, urged THE SPEAKER: 19 The Clerk will read the member states to take those steps the proclamation of the President of the United States convening this ex- that they may consider appropriate for traordinary session of the Seventy- their individual and collective self-de- sixth Congress. fense. . . . The Clerk read as follows: . . . Now, therefore, I, John F. Ken- nedy, President of the United States of CONVENING THE CONGRESS IN EXTRA America, acting under the authority of SESSION BY THE PRESIDENT OF THE section 620(a) of the Foreign Assist- UNITED STATES OF AMERICA ance Act of 1961 (75 Stat. 445), as A PROCLAMATION amended, do— Whereas public interests require 1. Hereby proclaim an embargo upon that the Congress of the United trade between the United States and States should be convened in ex- Cuba in accordance with paragraphs 2 traordinary session at 12 o’clock noon on Thursday, the 21st day of and 3 of this proclamation. September, 1939, to receive such 2. Hereby prohibit, effective 12:01 communication as may be made by a.m., eastern standard time, February the Executive: Now, therefore, 7, 1962, the importation in the United States of all goods of Cuban origin . . . 17. 85 CONG. REC. 7, 8, 76th Cong. 2d Sess. Done at the city of Washington 18. This proclamation was read in the this third day of February in the year of our Lord 1962, and of the Senate, id. at p. 3. Independence of the United States of See §§ 9.1, 11.6, supra, for a dis- America the 186th. cussion of the Neutrality Act of 1939 John F. Kennedy. and the President’s message request- By the President: ing neutrality legislation, respec- DEAN RUSK, tively. Secretary of State. 19. William B. Bankhead (Ala.).

1838 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 12

I, Franklin D. Roosevelt, President On Nov. 3, 1939,(1) the following of the United States of America, do Presidential proclamation relating hereby proclaim and declare that an extraordinary occasion requires the to a state of war between Ger- Congress of the United States to con- many and several nations as au- vene in extraordinary session at the thorized by the Neutrality Act of Capitol in the City of Washington on (2) Thursday, the 21st day of Sep- 1939, was placed in the Con- tember, 1939, at 12 o’clock noon, of gressional Record: which all persons who shall at that time be entitled to act as Members MR. [ALBEN W.] BARKLEY [of Ken- thereof are hereby required to take tucky]: Mr. President, under permis- notice. sion granted on November 3, 1939, In witness whereof, I have here- page 1358, I wish to insert in the Con- unto set my hand and caused to be gressional Record two proclamations affixed the great seal of the United issued by the President of the United States. States, as provided under House Joint Done at the city of Washington Resolution 306, passed at the extra this 13th day of September, in the session of Congress, relating to neu- year of our Lord 1939, and of the trality, as follows: independence of the United States of DEPARTMENT OF STATE, America the one hundred and sixty- November, 1939. fourth. [SEAL] PROCLAMATION OF A STATE OF WAR BETWEEN GERMANY AND FRANCE; FRANKLIN D. ROOSEVELT. POLAND; AND THE UNITED KING- By the President: DOM, INDIA, AUSTRALIA, CANADA, NEW ZEALAND, AND THE UNION OF CORDELL HULL, SOUTH AFRICA Secretary of State. BY THE PRESIDENT OF THE UNITED STATES: War Between Germany and A PROCLAMATION Foreign Nations Whereas section 1 of the joint resolution of Congress approved November 4, § 12.4 A Presidential proclama- 1939, provides in part as follows: tion relating to a state of war ‘‘That whenever the President, or the between Germany and Congress by concurrent resolution, France, Poland, the United shall find that there exists a state of Kingdom, India, Australia, war between foreign states, and that it is necessary to promote the security or Canada, New Zealand, and preserve the peace of the United States the Union of South Africa, authorized by the Neutrality 1. 85 CONG. REC. A787, 76th Cong. 2d Act of 1939, was inserted in Sess. 2. See § 9.1, supra, for a discussion of the Record. the Neutrality Act of 1939.

1839 Ch. 13 § 12 DESCHLER’S PRECEDENTS

or to protect the lives of citizens of the or territorial waters of the United States, the President shall United States by submarines issue a proclamation naming the states involved; and he shall, from time to of foreign belligerent na- time, by proclamation, name other tions, authorized by the Neu- states as and when they may become trality Act of 1939, was in- involved in the war.’’ . . . Now, therefore, I, Franklin D. Roo- serted in the Record. sevelt, President of the United States On Nov. 3, 1939,(3) the following of America, acting under and by virtue Presidential proclamation relating of the authority conferred on me by the said joint resolution, do hereby pro- to use of ports or territorial wa- claim that a state of war unhappily ex- ters of the United States by sub- ists between Germany and France, Po- marines of foreign belligerent land, and the United Kingdom, India, states was inserted in the Record: Australia, Canada, New Zealand, and the Union of South Africa, and that it Whereas section 11 of the joint reso- is necessary to promote the security lution approved November 4, 1939, and preserve the peace of the United provides: States and to protect the lives of citi- ‘‘Whenever, during any war in which zens of the United States. . . . the United States is neutral, the Presi- And I do hereby revoke my procla- dent shall find that special restrictions mations Nos. 2349, 2354, and 2360 placed on the use of the ports and ter- issued on September 5, 8, and 10, ritorial waters of the United States by 1939, respectively, in regard to the ex- the submarines or armed merchant port of arms, ammunition, and imple- vessels of a foreign state, will serve to ments of war to France, Germany, Po- maintain peace between the United land, and the United Kingdom, India, States and foreign states, or to protect Australia, and New Zealand, to the the commercial interests of the United Union of South Africa, and to Can- States and its citizens, or to promote ada.... the security of the United States, and Done at the city of Washington shall make proclamation thereof, it this fourth day of November, in the shall thereafter be unlawful for any year of our Lord nineteen hundred such submarine or armed merchant and thirty-nine, and of the independ- vessel to enter a port or the territorial ence of the United States of America waters of the United States or to de- the one hundred and sixty-fourth. FRANKLIN D. ROOSEVELT. part therefrom, except under such conditions and subject to such limitations By the President: as the President may prescribe. . . . CORDELL HULL, Whereas there exists a state of war Secretary of State. between Germany [and other nations]; and Use of American Ports by Bel- ligerent Nations 3. 85 CONG. REC. A787, 76th Cong. 2d Sess. § 12.5 A Presidential proclama- See § 9.1, supra, for a discussion of tion relating to use of ports the Neutrality Act of 1939. 1840 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 13

Whereas the United States of Amer- its citizens, and to promote the secu- ica is neutral in such war; rity of the United States; Now, therefore, I, Franklin D. Roo- And I do further declare and pro- sevelt, President of the United States claim that it shall hereafter be unlaw- of America, acting under and by virtue ful for any submarine of [specified na- of the authority vested in me by the tions] to enter ports or territorial wa- foregoing provision of section 11 of the ters of the United States. . . . joint resolution approved November 4, 1939, do by this proclamation find that Done at the city of Washington this special restrictions placed on the use of fourth day of November in the year of the ports and territorial waters of the our Lord nineteen hundred and thirty- United States, exclusive of the Canal nine, and of the Independence of the Zone, by the submarines of a foreign United States of America the one hun- belligerent state, both commercial sub- dred and sixty-fourth. marines and submarines which are FRANKLIN D. ROOSEVELT. ships of war, will serve to maintain peace between the United States and By the President: foreign states, to protect the commer- Cordell Hull, cial interests of the United States and Secretary of Stale.

C. HOUSE PREROGATIVE TO ORIGINATE REVENUE BILLS § 13. In General Because questions relating to the prerogative of the House to The precedents in sections 15– originate revenue legislation (6) in- 18, infra, relate to the constitu- volve interpretation of the Con- ( ) tional prerogative of the House to stitution 7 rather than House originate bills to raise revenue.(4) See also Constitution of the United Article I, section 7, clause 1, pro- States of America: Analysis and In- vides that, ‘‘All Bills for raising terpretation, S. Doc. No. 92–82, 92d Revenue shall originate in the Cong. 2d Sess. 125, 126 (1973), for House of Representatives; but the discussion of this provision. And see Senate may propose or concur §§ 19, 20, infra, for a discussion of Senate authority to amend revenue with Amendments as on other bills and make appropriations. (5) Bills.’’ 6. For one view on what is com- prehended by the phrase ‘‘bills for 4. See 2 Hinds’ Precedents §§ 1480– raising revenue,’’ see J. Story, Com- 1501; 6 Cannon’s Precedents §§ 314– mentaries on the Constitution of the 322; and 8 Cannon’s Precedents United States § 880, vol. 1, Boston § 2278, for earlier precedents. (1833). 5. See House Rules and Manual §99 7. See, for example, the discussion and (1973). cases cited in § 19.2, infra.

1841 Ch. 13 § 13 DESCHLER’S PRECEDENTS rules, they are decided by the opinion of the House the Senate House rather than the Chair.(8) A measure contravenes or infringes question alleging that the Senate upon the House prerogative and has invaded this prerogative is directs that the measure be re- privileged (9) under Rule IX,(10) turned to the Senate with a mes- and may be raised at any time sage communicating the resolu- when the House is in possession tion. After debate the resolution of the bill and related papers in may be approved,(15) tabled, (16) or question.(11) The question may be referred to committee.(17) raised pending the motion to call On several occasions, the House up a conference report on a bill (12) has chosen to pass a House bill in- and may be committed to con- stead of a pending Senate meas- ference if raised prior to con- ure where the attention of the ( ) ference. 13 House was called to the impro- A Senate bill or joint resolu- priety of a revenue measure being ( ) tion 14 which the House deter- included in a Senate bill.(18) mines infringes upon its preroga- When a Senate bill or joint reso- tives may be returned to the Sen- lution which arguably infringes ate. When such a measure is re- upon the House prerogative has ceived by, or is in possession of been referred to committee, the the House, a Member may rise to committee may refuse to act on it a question of privilege and intro- and may report out its own bill in duce a resolution. Such resolution lieu of the Senate measure.(l9) normally declares that in the The latter two procedures, 8. 2 Hinds’ Precedents § 1490. See also vacating proceedings whereby the § 19.1, infra, for an analogous Senate Senate measure had passed the precedent. House and massaging a similar 9. § 14.1, infra. House bill to the Senate, and re- 10. House Rules and Manual §§ 661, 662 porting a House bill out of com- (1973). 11. § 14.2, infra. 15. See § 15, infra, for illustrations of ap- 12. Id. proval. 13. 2 Hinds’ Precedents § 1487. 16. See § 16.1, infra, for a discussion of 14. There is precedent for the propo- tabling such a resolution. sition that a Senate concurrent reso- 17. See § 17.1, infra, for an illustration lution may also be held to infringe of referral to committee. upon the prerogative of the House, 18. See §§ 18.1–18.3, infra which illus- notwithstanding the fact that such a trate this procedure. resolution does not have the force of 19. See §§ 18.4, 18.5, infra, which illus- law. 6 Cannon’s Precedents § 319. trate this procedure.

1842 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 14 mittee, effectively resolve issues prerogative of the House to ini- relating to the prerogative of the tiate revenue measures (art. I, § 7) House, because courts do not look was raised in the House as a mat- behind the bill number. Notwith- ter of privilege. standing the fact that a House revenue measure may have been MR. [WILBUR D.] MILLS [of Arkan- substantially changed by Senate sas]: Mr. Speaker, I offer a resolution amendments, a bill with a House (H. Res. 414) which involves the privi- number will not be challenged in leges of the House, and ask for its im- court or on the House floor on the mediate consideration. ground that it infringes upon the The Clerk read the resolution as fol- prerogative of the House to origi- lows: nate bills for raising revenue.(20) But the House will assert its pre- H. RES. 414 rogative and return a House bill Resolved, That the bill of the Sen- (not raising revenue) with a Sen- ate (S. 860) relating to the Trust ate revenue amendment to the Territory of the Pacific Islands in the (21) opinion of this House contravenes Senate. the first clause of the seventh section of the first article of the Constitution of the United States, and is an infringement of the privileges of this § 14. Consideration of Ob- House, and that the said bill be respectfully returned to the Senate jections with a message communicating this resolution. Infringement of House Prerog- THE SPEAKER: (2) The Chair recog- ative as Privileged Matter nizes the gentleman from Arkansas (Mr. Mills). § 14.1 Infringement by the Sen- MR. [H.R.] GROSS [of Iowa]: Mr. ate on the constitutional pre- Speaker, will the gentleman yield? rogative of the House to ini- MR. MILLS: I will be glad to yield to tiate revenue measures may the gentleman from Iowa. be raised in the House as a MR. GROSS: Mr. Speaker, may we matter of privilege. have a brief explanation of the reason for the action that is proposed? ( ) On May 3, 1971, 1 infringement MR. MILLS: Mr. Speaker, I will be by the Senate of the constitutional glad to explain why I have offered this resolution. It is because the privileges 20. See Hubbard v Lowe, 226 F 135 of the House are actually being vio- (S.D.N.Y. 1915) which is discussed at lated by title IV of the bill S. 860. That §§ 19.2, 20.4, infra. title includes an amendment of the 21. See § 15.8, infra. Tariff Schedules of the United States, 1. 117 CONG. REC. 12991, 92d Cong. 1st Sess. 2. Carl Albert (Okla.).

1843 Ch. 13 § 14 DESCHLER’S PRECEDENTS

and all bills which include such rates on communication services and amendments must originate in the on automobiles, and to apply more gen- House.(3) erally the provisions relating to payments of estimated tax by corporations, and ask unanimous consent that the Timeliness of Objection to Al- statement of the managers on the part of the House be read in lieu of the re- leged Senate Infringement of port. House Prerogatives The Clerk read the title of the bill. The Speaker Pro Tempore: (5) Is § 14.2 A question of constitu- there objection to the request of the tional privilege relating to gentleman from Arkansas? the sole power of the House RESOLUTION OFFERED BY MR. GROSS— to originate revenue meas- PRIVILEGE OF THE HOUSE ures and alleging that the Senate, by its amendment to MR. GROSS: Mr. Speaker, I rise to a a House bill, has violated ar- question of privilege of the House and ticle I, section 7 of the Con- offer a resolution. stitution, may be raised at THE SPEAKER PRO TEMPORE: The any time when the House is Clerk will report the resolution. in possession of the papers; The Clerk read the resolution, as fol- and the question has been lows:

presented pending the read- H. RES. 1222 ing of a conference report. Resolved, That Senate amend- ( ) ments to the bill, H.R. 15414, in the On June 20, 1968, 4 a Member, opinion of the House, contravene the H.R. Gross, of Iowa, raised a ques- first clause of the seventh section of the first article of the Constitution of tion of constitutional privilege the United States, and are an in- when a conference report was fringement of the privileges of this called up. House, and that the said bill, with amendments be respectfully returned to the Senate with a message MR. [WILBUR D.] MILLS [of Arkan- communicating this resolution. sas]: Mr. Speaker, I call up the conference report on the bill (H.R. 15414) THE SPEAKER PRO TEMPORE: The to continue the existing excise tax gentleman from Iowa [Mr. Gross] is recognized for 1 hour. (6) 3. See §§ 15.6, 19.5, infra, for House and Senate disposition of this matter, respectively. 5. Charles M. Price (Ill.). 4. 114 CONG. REC. 17970, 90th Cong. 6. See § 16.1, infra, for a precedent re- 2d sess. lating to this point of order.

1844 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 15

§ 15. Return of Senate with a message communicating this resolution. Legislation The resolution was agreed to, and a Bill Amending Silver Purchase motion to reconsider was laid on the table. Act § 15.1 The House by voice vote Bill Amending Tariff Act of returned to the Senate a Sen- 1930 ate bill which proposed to § 15.2 The House by voice vote amend the Silver Purchase returned a Senate bill pur- Act, on the ground that the porting to amend the Tariff bill affected the revenue and Act of 1930, on the ground therefore was an infringe- that it invaded the preroga- ment of the prerogatives of tives of the House. the House. On Jan. 29, 1936,(8) the House (7) On Jan. 15, 1936, the House returned S. 1421 to the Senate on agreed to a resolution returning S. the ground that it invaded the 3260 to the Senate, on the ground prerogatives of the House. that it affected revenue. MR. [JERE] COOPER of Tennessee: MR. [JERE] COOPER of Tennessee: Mr. Speaker, I rise to a question of the Mr. Speaker, I rise to a question of privilege of the House and present a privilege of the House and offer the fol- resolution and ask for its immediate lowing resolution. consideration. The Clerk read as follows: The Clerk read the resolution, as fol- HOUSE, RESOLUTION 396 lows:

Resolved, That the bill (S. 3260) to HOUSE OF RESOLUTION 406 amend Public Law No. 438, Seventy- third Congress, entitled ‘‘An act to Resolved, That the bill (S. 1421) to authorize the Secretary of the Treas- amend subsection (a) of section 313 ury to purchase silver, issue silver of the Tariff Act of 1930, in the opin- certificates, and for other purposes’’, ion of this House, contravenes that in the opinion of this House con- clause of the Constitution of the travenes that clause of the Constitu- United States requiring revenue bills tion of the United States requiring to originate in the House of Rep- revenue bills to originate in the resentatives, and is an infringement House of Representatives, and is an on the prerogatives of the House, infringement of the prerogatives of and that said bill be respectfully re- this House, and that said bill be returned to the Senate with 3 message spectfully returned to the Senate communicating this resolution.

7. 80 CONG. REC. 448, 74th Cong. 2d 8. 80 CONG. REC. 1183, 1184, 74th Sess. Cong. 2d Sess.

1845 Ch. 13 § 15 DESCHLER’S PRECEDENTS

THE SPEAKER:(9) The question is on resentatives, and is an infringement agreeing to the resolution. of the prerogative of this House, and The resolution was agreed to, and a that said bill be respectfully returned to the Senate with a message motion to reconsider was laid on the communicating this resolution. table. THE SPEAKER:(11) The question is on Bill Exempting Olympic Game agreeing to the resolution. Receipts From Taxation The resolution was agreed to. On motion of Mr. Cooper of Ten- § 15.3 The House by voice vote nessee, a motion to reconsider the vote by which the resolution was agreed to returned a Senate bill which was laid on the table. exempted from taxation receipts from the operation of Measure to Redetermine Sugar the Olympic games, on the Quota ground that it invaded prerogatives of the House. § 15.4 On the ground that it infringed upon the prerogative On Feb. 21, 1936,(10) the House of the House to originate agreed to a resolution returning S. bills for raising revenue, the 3410 to the Senate on the ground House ordered the return of that it infringed upon House pre- a Senate joint resolution au- rogatives. thorizing the President to MR. [JERE] COOPER of Tennessee: make a redetermination of Mr. Speaker, I rise to a question of the the Cuban sugar quota for privileges of the House and present a resolution for immediate consideration. 1960 [which involved a tariff The Clerk read the resolution, as fol- as well as an incentive pay- lows: ment]. (12) HOUSE, RESOLUTION 425 On July 2, 1960, the House Resolved, That the bill (S. 3410) to by voice vote agreed to House Res- exempt from taxation receipts from olution 598, returning to the Sen- the operation of Olympic games if ate Senate Joint Resolution 217 donated to the State of California, the city of Los Angeles, and the which, notwithstanding the provi- county of Los Angeles, in the opinion sion of the Quota Act of 1948, as of this House contravenes that amended, authorized the Presi- clause of the Constitution of the United States requiring revenue bills dent to determine the quota for to originate in the House of Rep- Cuba under that act for the bal-

9. Joseph W. Byrns (Tenn.). 11. Joseph W. Byrns (Tenn.). 10. 80 CONG. REC. 2583, 74th Cong. 2d 12. 106 CONG. REC. 15818, 15819, 86th Sess. Cong. 2d Sess.

1846 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 15 ance of the calendar year 1960 in The resolution was agreed to. such amounts as he found to be in A motion to reconsider was laid on the national interest. The joint the table. resolution was returned because it infringed upon the prerogative of Bill Raising Duty on Fishery the House to originate bills for Products raising revenue. § 15.5 A Senate-passed bill au- MR. [JOHN W.] MCCORMACK [of Mas- thorizing the President to sachusetts]: Mr. Speaker, I offer a resolution based on the privileges of the raise the duty on fishery House and ask for its immediate con- products was held to be an sideration. infringement of the privilege The Clerk read as follows: of the House, and was re-

HOUSE RESOLUTION 598 turned to the Senate. That Senate Joint Resolution 217 On May 20, 1965,(14) the House in the opinion of this House con- by voice vote agreed to House Res- travenes the first clause of the seventh section of the first article of the olution 397, returning S.1734 to Constitution of the United States, the Senate, on the ground that it and is an infringement of the privileges of this House, and that the infringed the privileges of the said resolution be respectfully re- House. turned to the Senate with a message communicating this resolution. MR. [WILBUR D.] MILLS [of Arkan- sas]: Mr. Speaker, I rise on a question MR. [CHARLES A.] HALECK [of Indi- of the privileges of the House, send a ana]: Mr. Speaker, will the gentleman resolution to the desk, and ask for its yield? immediate consideration. MR. MCCORMACK: I yield. The Clerk read as follows: MR. HALLECK: Will the gentleman explain the resolution? HOUSE RESOLUTION 397 MR. MCCORMACK: This resolution Resolved, That the bill of the Sen- has the effect of sending back to the ate (S. 1734) to conserve and protect Senate the Senate resolution in rela- domestic fishery resources in the tion to the sugar legislation. It states opinion of this House contravenes that the House respectfully declines to the first clause of the seventh section receive it on the ground that it in- of the first article of the Constitution volves revenue or affects revenue; and, of the United States, and is an in- under the Constitution, such legisla- fringement of the privileges of this House, and that the said bill be re- tion should originate in the House of spectfully returned to the Senate Representatives. with a message communicating this THE SPEAKER: (13) The question is on resolution. the resolution. 14. 111 CONG. REC. 11149, 11150, 89th 13. Sam Rayburn (Tex.). Cong. 1st Sess.

1847 Ch. 13 § 15 DESCHLER’S PRECEDENTS

THE SPEAKER:(15) The question is on olution 414, returning S. 860 to the resolution. the Senate because it contravened The resolution was agreed to. article I, section 7 of the Constitu- A motion to reconsider was laid on the table. tion and infringed upon the privileges of the House. The objectionable portion of S. 1734 stated: MR. [WILBUR D.] MILLS [of Arkan- sas]: Mr. Speaker, I offer a resolution That when the Secretary of the Inte- (H. Res. 414) which involves the privi- rior determines that the fishing vessels leges of the House, and ask for its im- of a country are being used in the con- mediate consideration. duct of fishing operations in a manner or in such circumstances which dimin- The Clerk read the resolution as fol- ish the effectiveness of domestic fish- lows: ery conservation programs, the Presi- H. RES. 414 dent. . . may increase the duty on any fishery product in any form from such Resolved, That the bill of the Sen- country for such time as he deems nec- ate (S. 860) relating to the Trust essary to a rate not more than 50% Territory of the Pacific Islands in the above the rate existing on July 1, opinion of this House contravenes the first clause of the seventh section 1934.’’ ( Emphasis supplied.) of the first article of the Constitution of the United States, and is an in- Bill Amending Tariff Sched- fringement of the privileges of this House, and that the said bill be re- ules spectfully returned to the Senate with a message communicating this § 15.6 The Senate having resolution. passed a bill relating to the THE SPEAKER: (17) The Chair recog- Trust Territory of the Pacific nizes the gentleman from Arkansas Islands containing one title (Mr. Mills). amending the tariff sched- MR. [H.R.] GROSS [of Iowa]: Mr. ules of the United States, the Speaker, will the gentleman yield? House held that the Senate’s MR. MILLS: I will be glad to yield to the gentleman from Iowa. action constituted a violation MR. GROSS: Mr. Speaker, may we of article I, section 7 of the have a brief explanation of the reason Constitution, and adopted a for the action that is proposed? resolution returning the bill MR. MILLS: Mr. Speaker, I will be to the Senate. glad to explain why I have offered this resolution. It is because the privileges (16) On May 3, 1971, the House of the House are actually being vio- by voice vote agreed to House Res- lated by title IV of the bill S. 860. That title includes an amendment of the 15. John W. McCormack (Mass.). Tariff Schedules of the United States, 16. 117 CONG. REC. 12991, 92d Cong. 1st Sess. 17. Carl Albert (Okla.).

1848 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 15

and all bills which include such and that said bill be respectfully re- amendments must originate in the turned to the Senate with a message House. . . . communicating this resolution. The resolution was agreed to. The resolution was agreed to. A motion to reconsider was laid on ( ) the table. 18 Substitute Adding Tax to House Bill Bill Amending Firearms Act § 15.8 The House held that a § 15.7 The House returned a Senate amendment in the na- Senate bill to amend the Na- ture of a substitute imposing tional Firearms Act, on the an additional tax, offered to ground that it contravened a House bill to amend the the constitutional preroga- Railroad Retirement Act, was tive of the House to originate an infringement upon the bills to raise revenue. privileges of the House; and ( ) On Mar. 30, 1937, 19 the House the House bill, as amended, by voice vote agreed to House Res- was returned to the Senate. olution 170, returning S. 1905 to (20) the Senate because the Senate bill On Sept. 14, 1965, the House contravened the constitutional by voice vote agreed to House Res- prerogative of the House under olution 578, returning H.R. 3157 article I, section 7. to the Senate because Senate amendments to that bill con- MR. [JERE] COOPER [of Tennessee]: travened the constitutional pre- Mr. Speaker, I offer a resolution for immediate consideration. rogative of the House to originate The Clerk read as follows: revenue bills. Mr. [OREN] HARRIS [of Arkansas]: HOUSE RESOLUTION 170 Mr. Speaker, I rise to a question of the Resolved, That the bill (S. 1905) to privilege of the House and offer a reso- amend the National Firearms Act, lution. passed June 26, 1934, in the opinion of this House contravenes that The Clerk read the resolution, as fol- clause of the Constitution of the lows: United States requiring revenue bills to originate in the House of Rep- H. RES. 578 resentatives and is an infringement of the prerogatives of this House, Resolved, That the amendment in the nature of a substitute added by the Senate to the House bill (H.R. 18. See § 19.5, infra, for Senate disposi- 3157) to amend the Railroad Retire- tion of this matter. 19. 81 CONG. REC. 2930, 75th Cong. 1st 20. 111 CONG. REC. 23632, 89th Cong. Sess. 1st Sess.

1849 Ch. 13 § 15 DESCHLER’S PRECEDENTS

ment Act of 1937 in the opinion of bill relating to excise tax rates) this House contravenes the first clause of the seventh section of the along with Senate amendments first article of the Constitution of the which added a surtax on income. United States and is an infringe- The resolution was based on a ment of the privileges of this House, and that the said bill, with the contention that the Senate amendments, be respectfully re- amendments contravened the con- turned to the Senate with a message stitutional prerogative of the communicating this resolution. House to originate revenue bills. The resolution was agreed to. A motion to reconsider was laid on MR. [WILBUR D.] MILLS [of Arkan- the table. sas]: Mr. Speaker, I call up the conference report on the bill (H.R. 15414) to continue the existing excise tax rates on communication services and § 16. Tabling Objection to on automobiles, and to apply more gen- Infringement erally the provisions relating to payments of estimated tax by corporations, Senate Surtax Amendment and ask unanimous consent that the statement of the managers on the part § 16.1 The Senate having of the House be read in lieu of the re- ( ) amended a House bill relat- port. 2 ing to excise tax rates by The Clerk read the title of the bill. THE SPEAKER PRO TEMPORE: (3) Is adding a general surtax on there objection to the request of the income, the House during gentleman from Arkansas? consideration of the conference report refused to RESOLUTION OFFERED BY MR. GROSS— PRIVILEGE OF THE HOUSE hold that the Senate’s action constituted a violation of ar- MR. [H. R.] GROSS [of Iowa]: Mr. Speaker, I rise to a question of privi- ticle I, section 7 of the Con- lege of the House and offer a resolu- stitution, and laid on the tion. table a resolution raising the THE SPEAKER PRO TEMPORE: The matter as a question of the Clerk will report the resolution. privileges of the House. The Clerk read the resolution, as follows: On June 20, 1968,(1) the House by a vote of yeas 257, nays 162, H. RES. 1222 not voting 14, tabled House Reso- Resolved, That Senate amend- lution 1222 which sought to re- ments to the bill, H.R. 15414, in the turn to the Senate H.R. 15414 (a 2. See § 14.2, supra, for a further dis- 1. 114 CONG. REC. 17970–78, 90th cussion of this precedent. Cong. 2d Sess. 3. Charles M. Price (Ill.).

1850 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 16

opinion of the House, contravene the had no power to amend a money bill by first clause of the seventh section of varying the objects of that bill. the first article of the Constitution of I do not claim, of course, that the the United States, and are an infringement of the privileges of this Senate has no power whatsoever to House, and that the said bill, with amend a revenue bill of the House. But amendments, be respectfully re- I do say it cannot, under the guise of turned to the Senate with a message an amendment, propose new revenue communicating this resolution. legislation. . . . THE SPEAKER PRO TEMPORE: The MR. MILLS: . . . If the Members of gentleman from Iowa [Mr. Gross] is the House will turn to the Constitution recognized for 1 hour. . . . to refresh their recollection of article I, section 7, clause 1, they will observe REVENUE AND EXPENDITURE CONTROL that it reads as follows: ACT OF 1968—CONFERENCE REPORT All bills for raising revenue shall THE SPEAKER PRO TEMPORE: The originate in the House of Represent- gentleman from Iowa [Mr. Gross] has atives; but the Senate may propose the floor. or concur with amendments as on other bills. MR. GROSS: . . . Mr. Speaker, the legislation now before us, H.R. 15414, There have been several instances represents one of the most direct at- where the question of the constitu- tempts in the history of the Republic to tionality involving this issue has been cut away and destroy one of the most argued before the Supreme Court and fundamental privileges and rights of where the Court has rendered deci- this House—the right, the responsi- sions. Let me go back in history for bility, and the duty, under the Con- two instances—and in these cases not stitution, to initiate revenue measures. as far back as the gentleman from Section 7 of article I of the Constitu- Iowa went for his precedents in sup- tion conferred this privilege on the port of his argument. Members of this body, and there are I would like to point out how the Su- numerous precedents upholding the preme Court has ruled on this matter. right of the House—and the House In Flint v. Stone Tracy Co., 220 U.S. alone—to originate revenue bills. 107, 143, in 1911, the court held that For example, in 1807 the House re- the substitution of a corporate tax by fused to agree to Senate amendments the Senate for an inheritance tax that greatly enlarged the scope of a passed by the House was constitu- revenue bill. The record of the debate tional. . . . in the House on that day shows that In another case also the Supreme John Randolph of Virginia, assailed Court upheld an amendment by the the Senate amendments because they Senate of a tax bill. In this case the went far beyond merely amending the Senate added a section imposing an ex- details of the bill as passed by the cise tax upon the use of foreign-built House. pleasure yachts. The Supreme Court in Randolph believed, and rightly so, this case, Rainey v. United States, 232 that under the Constitution the Senate U.S. 310 (1914), decided that the

1851 Ch. 13 § 16 DESCHLER’S PRECEDENTS

amendment did not contravene article There was no objection. I, section 7, clause 1 of the Constitu- tion. . . . MR. GROSS: Mr. Speaker, I move the previous question on the resolution. § 17. Referring Objection MR. MILLS: Mr. Speaker, I move to to Committee lay the resolution offered by the gentleman from Iowa on the table. Senate Authorization to Use THE SPEAKER PRO TEMPORE: The Securities Proceeds as Debt question is on the motion offered by the gentleman from Arkansas. Transaction The question was taken; and the Speaker pro tempore announced that § 17.1 The House agreed to the noes appeared to have it. refer to the Committee on MR. MILLS: Mr. Speaker, on that the Judiciary a resolution question I demand the yeas and nays. which alleged that a Senate The yeas and nays were ordered. joint resolution ‘‘authorizing MR. [HALE] BOGGS [of Louisiana]: Mr. Speaker, a parliamentary inquiry. the Secretary of the Treasury THE SPEAKER PRO TEMPORE: The to use as a public-debt trans- gentleman will state it. action certain proceeds of se- MR. BOGGS: Am I correct in under- curities hereafter issued standing that a vote ‘‘yea’’ is in favor of the motion offered by the gentleman under authority of the Sec- from Arkansas, which would mean we ond Liberty Loan Act . . . to would go back to orderly debate on this effectuate [an Anglo-Amer- conference report? ican debt agreement]’’ in- THE SPEAKER PRO TEMPORE: The fringed upon the constitu- gentleman is correct. The motion is to lay the resolution on the table. tional powers of the House in The question was taken; and there the matter of revenue. were—yeas 257, nays 162, not voting On May 14, 1946,(5) the House 14 .... So the motion to table the resolution by voice vote agreed to a motion was agreed to. . . . to refer to the Committee on the A motion to reconsider was laid on Judiciary a resolution alleging the table. that Senate Joint Resolution 138 MR. MILLS: Mr. Speaker, I renew my infringed upon the constitutional request that the statement of the man- prerogative of the House to origi- agers on the part of the House be read nate revenue-raising bills. in lieu of the report. THE SPEAKER: (4) Is there objection to MR. [HAROLD] KNUTSON [of Min- the request of the gentleman from Ar- nesota]: Mr. Speaker, I rise to present kansas? 5. 92 CONG. REC. 5000–12, 79th Cong. 4. John W. McCormack (Mass.). 2d Sess.

1852 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 17

a question of the privilege of the in amendments to a revenue measure, House. . . . but on the contrary it has initiated a THE SPEAKER: (6) The gentleman bill the sole purpose of which is the from Minnesota is recognized. . . . raising of revenue through the MR. KNUTSON: Mr. Speaker, the issuance of bonds or notes of the question of the privilege of the House United States. . . . is set forth in a resolution, which I . . . The rates of duty on goods im- send to the Clerk’s desk; and on that I ported from Great Britain in the future ask for recognition. will be fixed in an amount which the The Clerk read as follows: State Department determines to be consistent with the terms of the finan- Resolution offered by Mr. Knutson: cial agreement which this bill brings ‘‘Resolved, That Senate Joint Resolu- into existence. tion 138, authorizing the Secretary of The Senate report, on page 17, says: the Treasury to use as a public-debt The proposed credit is to enable transaction certain proceeds of securi- Britain to participate in world trade ties hereafter issued under authority of without currency and trade discrimi- the Second Liberty Loan Act, as nation, while she reconverts her in- amended, to effectuate a certain debt dustries to peacetime production and agreement between the United States resumes her place in world trade. and the United Kingdom of Great Brit- Tariff duties are, in their very na- ain, extending the purposes for which ture, trade discriminations. securities may be issued under that act The bill amends the Second Liberty and requiring payments of interest to Loan Act by adding to and expanding the United States to be covered into the purposes for which securities may the Treasury as miscellaneous receipts, be issued under the authority of that is a bill to raise revenue within the act. It does not merely refer to similar meaning and intent of article I, section authority contained in some other act 7, of the Constitution of the United of Congress but explicitly authorizes States requiring all such bills to origi- bonds to be issued under authority of nate in the House of Representatives; that act and expressly extends the ‘‘That Senate Joint Resolution 138 scope of that act to include such bonds. therefore is an infringement of the The purposes for which bonds may be prerogatives and privileges of this issued, and the authority for issuing House and that said bill be taken them are strictly revenue matters. from the Speaker’s table and respectfully returned to the Senate with a Responding to Mr. Knutson, Mr. message communicating this resolution.’’ John W. McCormack, of Massa- chusetts, cited 2 Hinds’ Prece- THE SPEAKER: The gentleman from dents § 1490, in which the House Minnesota is recognized. rejected a motion to return to the MR. KNUTSON: . . . In this case the Senate has not proposed or concurred Senate a bill fixing the maximum amount of United States notes 6. Sam Rayburn (Tex.). and providing for issuance of an

1853 Ch. 13 § 17 DESCHLER’S PRECEDENTS additional amount in circulation Senate Joint Resolution 138 does pro- in national banks. Mr. McCor- vide for the raising of funds through mack inserted a memorandum the sale of Government obligations. Such a conclusion would be illogical. supporting his position that the Under the Second Liberty Bond Act, as pending bill did not infringe upon amended, the Secretary of the Treas- the prerogatives of the House.(7) ury is already authorized for certain purposes to issue public debt obliga- MEMORANDUM tions of the United States up to a spec- Senate Joint Resolution 138, ‘‘to im- ified maximum. Senate Joint Resolu- plement further the purposes of the tion 138 merely instructs the Secretary Bretton Woods Agreements Act by au- of the Treasury how to use funds thorizing the Secretary of the Treasury which he is already authorized to raise to carry out an agreement with the under the Second Liberty Bond Act, as United Kingdom, and for other pur- amended. The resolution would not in- poses,’’ has originated in the Senate. crease the limit of public-debt issues, it The question arises, therefore, whether would not authorize the Secretary of there is reasonable ground for sus- the Treasury to issue any securities taining a question of privilege which not already provided for by the Second might be raised under article I, section Liberty Bond Act, as amended, and it 7, clause l of the Constitution which would not vary in any way the type of states: ‘‘All bills for raising revenue security which may be issued at the shall originate in the House of Rep- present time under existing law. . . . resentatives; but the Senate may pro- Senate Joint Resolution 138 is not a pose or concur with amendments as on bill providing for the raising of revenue other bills.’’ An examination of the ju- within the meaning of article I, section dicial decisions, congressional deci- 7, clause 1, of the Constitution. But sions, and precedents in the form of even if it did provide for the raising of similar bills leads to the conclusion revenue it would fall within the class that there is not sufficient basis for of legislation where revenue-raising sustaining a question of privilege. provisions are only incidental to broad- . . . [I]t appears to be clear that a er general purposes.(8) The primary bill to raise funds through the sale of purpose of Senate Joint Resolution 138 Government obligations does not vio- is to authorize the execution of the fi- late the privilege of the House as set nancial agreement between the United forth in article I, section 7, clause 1 of States and the United Kingdom dated the Constitution. Even if it should be December 6, 1945. It is, accordingly, concluded, however, that a bill to raise funds by selling Government bonds 8. See § 13, supra, for discussion of the violates the privilege of the House, it distinction between bills which pri- would be necessary for the House to marily raise revenue and would reach the additional conclusion that therefore infringe on the prerogative if they originated in the Senate, and 7. 92 CONG. REC. 5004, 5005, 79th those which incidentally raise rev- Cong. 2d Sess. enue and do not so infringe.

1854 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 18

legislation to make effective agree- Thc Clerk read as follows: ments between the two Governments Mr. McCormack moves to refer the regarding exchange controls, monetary resolution to the Committee on the policies, import controls, participation Judiciary. in the International Monetary Fund and the International Bank for Recon- MR. KNUTSON: Mr. Speaker, I move struction and Development and partici- the previous question on the motion. pation in efforts to bring into being an The previous question was ordered. international trade organization for the THE SPEAKER: The question is on the purpose of eliminating restrictive prac- motion offered by the gentleman from tices detrimental to world trade.. . . Massachusetts [Mr. McCormack]. In view of the fact that Senate Joint The motion was agreed to. Resolution 138 authorizes the expenditure of funds by the Secretary of the Parliamentarian’s Note: The un- Treasury, an examination has also numbered House resolution was been made of the practice of Congress not reported back to the House. with respect to appropriation bills. This purpose is stated in Cannon’s Pro- Senate Joint Resolution 138, after cedure in the House of Representatives referral to the Committee on (4th ed. 1945), as follows: (9) Banking and Currency, eventually ‘‘Under immemorial custom the gen- was passed by the House and ap- eral appropriation bills (as distinguished from special bills appro- proved by the President. priating for single, specific purposes) originate in the House of Representa- tives and there has been no deviation § 18. Action on House Bill from that practice since the establishment of the Constitution.’’. . . in Lieu of Senate Bill He also states that: (10) [B]ills providing special appropria- Floor Approval tions for specific purposes are not general appropriation bills. . . .’’ § 18.1 The House amended a It is clear, therefore, that a resolu- Senate bill to insert provi- tion appropriating funds for the extensions of a similar House- sion of a line of credit to the United passed bill which included a Kingdom is not a general appropria- tax provision, but subse- tion and can originate either in the House or in the Senate. . . . quently vacated proceedings MR. MCCORMACK: Mr. Speaker, I whereby the House bill had offer a motion. been laid on the table and the Senate bill approved, 9. This passage appears on p. 20 of the passed the House bill again, 1959 edition of Cannon’s Procedure. and messaged it to the Sen- 10. This passage appears on p. 22 of the 1959 edition of Cannon’s Procedure. ate.

1855 Ch. 13 § 18 DESCHLER’S PRECEDENTS

On May 4, 1959,(11) the House THE SPEAKER: Is there objection to by unanimous consent vacated the the request of the gentleman from Ar- proceedings whereby the House kansas [Mr. Harris]? had tabled H.R. 5610, then There was no objection. amended and passed the bill MR. HARRIS: Mr. Speaker, I move to again, and messaged it to the Sen- strike out all after the enacting clause and insert an amendment, which I ate. The proceedings whereby a send to the Clerk’s desk. Senate bill, S. 226, had been THE SPEAKER: The Clerk will report amended by the House to strike the amendment. . . . out Senate language and insert in THE SPEAKER: The Clerk will read lieu thereof the language of H.R. the amendment. 5610, were vacated by unanimous The Clerk read as follows: consent. Strike out all after the enacting MR. [OREN] HARRIS [of Arkansas]: clause and insert the following: . . . Mr. Speaker, I ask unanimous consent MR. HARRIS: Mr. Speaker, for the in- that the proceedings whereby the bill H.R. 5610 was laid on the table, the formation of the Members of the amendment agreed to, the bill en- House, I have asked unanimous con- grossed and read a third time, and sent that the proceedings whereby the passed, be vacated for the purpose of bill H.R. 5610 was laid on the table, offering an amendment. the amendment agreed to, the bill en- The Clerk read the title of the bill. grossed and read a third time and THE SPEAKER: (12) Is there objection passed, be vacated, for the purpose of to the request of the gentleman from offering an amendment. Arkansas? The unanimous consent request was MR. [JOHN B.] BENNETT of Michigan: agreed to, and I have offered an Reserving the right to object, Mr. amendment, which has just been read. Speaker, will the chairman of our com- The amendment to the bill H.R. 5610 mittee explain the purpose of this re- which I have just offered strikes out all quest? after the enacting clause and inserts MR. HARRIS: The purpose of this the provisions of the bill that passed unanimous consent request is that the the Senate last week. bill H.R. 5610 be reconsidered, after the vacating of the proceedings of the You will recall that H.R. 5610, to House of last week in connection there- amend the Railroad Retirement Act of with, for the purpose of agreeing to an 1937, the Railroad Retirement Tax Act, amendment. and the Railroad Unemployment In- MR. BENNETT of Michigan: I with- surance Act, was considered in the draw my reservation of objection, Mr. House last Wednesday. A substitute Speaker. . . . was offered by the distinguished gentleman from West Virginia [Mr. Stag- 11. 105 CONG. REC. 7310–13, 86th Cong. gers]. The substitute was practically 1st Sess. the same bill that was considered and 12. Sam Rayburn (Tex.). passed by the other body, with the ex-

1856 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 18 ception of one amendment, which had as income for purposes of section 522 to do with section 4. Under this of title 38, United States Code. Under amendment pensions and annuities that section, pension for non-service- under this act or the Railroad Retire- connected permanent and total dis- ment Act of 1935 will not be consid- ability is not paid to a veteran whose ered as income for the purposes of sec- annual income exceeds $1,400 if he has tion 522 of title 38 of the United States no dependents or $2,700 if he has one Code. The Senate had considered that or more dependents. Under existing amendment, which is not out of line law, certain items are disregarded in with other provisions of law in other determining whether a veteran has ex- matters of this kind. So that is the ceeded the income limitations, and the matter that is before us now. amendment will add to the list of such The necessity for this action is that items payments under the Railroad Re- last week after the House had taken tirement Act of 1937. the action it did, we, as usual, when The cost of this amendment is neg- we have a bill from the other body on ligible. the same subject on the Speaker’s The amendment was sponsored in table, asked that that bill be taken the other body by Senator Hill, of Ala- from the Speaker’s desk, that all after bama. I was happy to sponsor it in the the enacting clause be stricken out, House. and that the House-passed bill be in- THE SPEAKER: The question is on the serted. That was the usual procedure amendment. we followed, and I made the request The amendment was agreed to. after the House had taken its action THE SPEAKER: The question is on the last week. It later developed that that engrossment and third reading of the was not the correct action that should bill. have been taken because there are tax The bill was ordered to be engrossed provisions in this legislation. The Con- and read a third time, and was read stitution provides, as you know, that the third time. all legislation relating directly to tax THE SPEAKER: The question is on the measures, revenues, must originate in passage of the bill. the House of Representatives. There- The bill was passed. fore, this action to vacate that pro- A motion to reconsider was laid on ceeding is in order to comply with the the table. constitutional provision by passing this MR. HARRIS: Mr. Speaker, I ask legislation in order to accomplish what unanimous consent that the pro- the House intended last week after it ceedings whereby S. 226, an act to considered this matter rather exten- amend the Railroad Retirement Act of sively. 1937, the Railroad Retirement Tax Act, MR. [KENNETH A.] ROBERTS [of Ala- and the Railroad Unemployment In- bama]: Mr. Speaker, the amendment to surance Act, so as to provide increases section 20 of the Railroad Retirement in benefits, and for other purposes, as Act of 1937 made by section 4 of the amended, was read a third time, and amendment provides that payments passed, be vacated, and the bill be in- under such act shall not be considered definitely postponed.

1857 Ch. 13 § 18 DESCHLER’S PRECEDENTS

THE SPEAKER: Is there objection to House passed bill which in- the request of the gentleman from Ar- cluded a revenue-raising kansas? title, vacated the proceedings There was no objection. whereby the House bill had Parliamentarian’s Note: On Apr. been laid on the table, 29, 1959, while the House had passed the bill again, and under consideration H.R. 5610, messaged it to the Senate. the Senate messaged to the House (13) S. 226, a measure differing in only On Dec. 7, 1970, the House by unanimous consent vacated the one respect from the House bill as proceedings whereby the House it had been amended on the floor. had tabled H.R. 19504, then After passage of H.R. 5610, a mo- passed the bill again, and mes- tion was adopted to strike out all saged it to the Senate. after the enacting clause in S. 226 and insert the language of the MR. [GEORGE H.] FALLON [of Mary- House bill; the House bill was land]: Mr. Speaker, I ask unanimous consent that the proceedings whereby then laid on the table. The fol- the bill (H.R. 19504) to authorize ap- lowing day, shortly before the propriations for the construction of cer- Senate bill was to be messaged to tain highways in accordance with title the Senate, a question was raised 23, United States Code, and for other as to the constitutionality of the purposes, was read a third time, passed, and the motion to reconsider Senate-passed bill because it in- laid on the table and the bill then laid cluded a tax feature, and the de- on the table, be vacated. livery of the message to the Sen- THE SPEAKER: (14) Is there objection ate was stopped. The proceedings to the request of the gentleman from of the House on May 4, 1959, Maryland? were necessitated by the require- MR. [H. R.] GROSS [of Iowa]: Mr. ment under the Constitution that Speaker, reserving the right to object, I am at a loss to understand why this all bills raising revenue originate request is being made. What is the in the House. Following the reason therefor? amendment of the House bill and MR. FALLON: Mr. Speaker, I will say the indefinite postponement of the to the gentleman from Iowa, we should Senate bill, the House bill, H. R. not have vacated the House number 5610, was messaged to the Senate and substituted the Senate bill, since title III of the bill is a revenue meas- on May 5, 1959. ure and must originate in the House.

§ 18.2 The House, after it had 13. 116 CONG. REC. 40096, 91st Cong. 2d amended a Senate bill to in- Sess. sert provisions of a similar 14. John W. McCormack (Mass.).

1858 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 18

MR. GROSS: Mr. Speaker, I withdraw striking out all after the enacting my reservation of objection. clause and inserting in lieu there- THE SPEAKER: Is there objection to of the language of H.R. 17138, a the request of the gentleman from Maryland? similar measure which, unlike the There was no objection. Senate bill, included a provision The engrossed House bill (H.R. (title V) to impose new taxes. The 19504) was ordered to be read a third House bill, H.R. 17138, was ta- time, was read the third time, and bled. passed. MR. [DON] FUQUA [of Florida]: Mr. A motion to reconsider was laid on Speaker, I ask unanimous consent that the table. the Committee on the District of Co- Parliamentarian’s Note: The lumbia be discharged from further con- House did not ask for the return sideration of S. 2694, to amend the to the House of the amended Sen- District of Columbia Police and Fire- men’s Salary Act of 1958 and the Dis- ate bill, S. 4418. That bill never trict of Columbia Teachers’ Salary Act emerged from conference. It was of 1955 to increase salaries, and for the House measure which was fi- other purposes, a Senate bill similar to nally enacted as Public Law No. that passed by the House, and ask for 91–605. its immediate consideration. The Clerk read the title of the Sen- § 18.3 The House vacated the ate bill. ( ) proceedings by which it THE SPEAKER: 16 Is there objection to the request of the gentleman from added a revenue-raising Florida? amendment to a pending There was no objection. Senate bill, preferring to The Clerk read the Senate bill, as postpone further consider- follows: ation of the Senate bill while S. 2694 sending a House bill, con- Be it enacted by the Senate and taining the revenue provi- House of Representatives of the sion, to the Senate. United States of America in Congress assembled, On May 11, 1970,(15) the House agreed to amend S. 2694, amend- TITLE I.—SALARY INCREASES FOR DISTRICT OF COLUMBIA POLICEMEN ing the District of Columbia Police AND FIREMEN and Firemen’s Salary Act of 1958 and the District of Columbia ***** Teachers’ Salary Act of 1955, by MR. FUQUA: Mr. Speaker, I offer an amendment. 15. 116 CONG. REC. 14951–60, 91st Cong. 2d Sess. 16. John W. McCormack (Mass.).

1859 Ch. 13 § 18 DESCHLER’S PRECEDENTS

The Clerk read as follows: to amend the District of Columbia Po- Amendment offered by Mr. Fuqua: lice and Firemen’s Salary Act of 1968, Strike out all after the enacting and the District of Columbia Teachers’ clause of S. 2694 and insert in lieu Salary Act of 1955 to increase salaries, thereof the language of H.R. 17138, and for other purposes, was read a as passed, as follows: third time and passed and laid on the table be vacated. TITLE I.—SALARY INCREASES FOR HE PEAKER DISTRICT OF COLUMBIA POLICEMEN T S : Is there objection to AND FIREMEN the request of the gentleman from Florida? ***** There was no objection. MR. FUQUA: Mr. Speaker, I ask TITLE V.—AMENDMENTS TO THE DIS- TRICT OF COLUMBIA REVENUE unanimous consent for the immediate LAWS consideration of the engrossed bill. THE SPEAKER: Is there objection to Sec. 501. Section 3 of title VI of the District of Columbia Income and the request of the gentleman from Franchise Tax Act of 1947 (D.C. Florida? Code, sec. 47–1567b(a)) is amended There was no objection. to read as follows: The Clerk read the engrossed bill. ‘‘Sec. 3. Imposition of Tax.—In the ... case of a taxable year beginning after December 31, 1969, there is It then vacated the proceedings hereby imposed on the taxable income of every resident a tax deter- of May 11, 1970, whereby S. 2694, mined in accordance with the fol- as amended by insertion of the lowing table: . . .’’ language of the House bill, was The amendment was agreed to. approved, and indefinitely post- The Senate bill was ordered to be poned further action on the Sen- read a third time, was read the third ate bill. time, and passed. A motion to reconsider was laid on VACATING PROCEEDINGS ON S. 2694, SALARY INCREASES FOR DISTRICT the table. OF COLUMBIA TEACHERS, POLICE- A similar House bill (H.R. 17138) MEN, AND FIREMEN was laid on the table. MR. FUQUA: Mr. Speaker, I ask ( ) On May 12, 1970, 17 the House unanimous consent that the pro- vacated the proceedings whereby ceedings whereby the House consid- H.R. 17138 was tabled and subse- ered, amended, and passed the bill of quently passed the House bill. the Senate (S. 2694) to amend the Dis- trict of Columbia Police and Firemen’s MR. FUQUA: Mr. Speaker, I ask Salary Act of 1958 and the District of unanimous consent that the pro- Columbia Teacher’s Salary Act of 1955 ceedings whereby the bill (H.R. 17138) to increase salaries, and for other purposes, be vacated and that further pro- 17. 116 CONG. REC. 15145–50, 91st ceedings on that bill be indefinitely Cong. 2d Sess. postponed.

1860 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 18

THE SPEAKER: Is there objection to subject, which passed the the request of the gentleman from House and Senate and be- Florida? came a public law. There was no objection. On June 6, 1946,(18) the Com- Parliamentarian’s Note: S. 2694 mittee on Ways and Means, after as passed by the Senate did not deciding not to recommend that contain a revenue provision. Title the House return to the Senate a V of the House passed bill (H.R. Senate bill which had been re- 17138) did, however, contain a ferred to it, and which sought to provision amending the D.C. rev- decrease the debt limit, reported enue laws to impose new taxes on out a bill (H.R. 2404) on the same D.C. residents. S. 2694 was subject, which passed the House amended on May 10 to include the and Senate and became Public provisions of the House-passed Law No. 79–28 (59 Stat. 47). bill. On the morning of May 12, before the Senate bill had been A bill of the Senate of the following messaged back to the Senate, it title was taken from the Speaker’s table and, under the rule, referred as was discovered that the House follows: amendment to the Senate bill con- S. 1760. An act to decrease the tained the revenue feature, which debt limit of the United States from constituted a violation of article I, $300,000,000,000 to $275,000,000,000; to the Committee section 7 of the Constitution (re- on Ways and Means. quiring bills for raising revenue to originate in the House). For this § 18.5 Where the Senate had reason, the House vacated the passed a bill which possibly proceedings of May 11 and mes- infringed upon the House’s saged the House bill to the Sen- constitutional prerogative to ate. originate revenue legislation—a bill to authorize the Committee Decision President to extend certain privileges and immunities § 18.4 The Committee on Ways (including exemptions from and Means, having voted not customs duties and importa- to recommend to the House tion taxes) to the Organiza- the return of a Senate bill tion of African Unity—the decreasing the debt limit as House passed an identical infringing on the prerogatives of the House, reported 18. 92 CONG. REC. 6436, 79th Cong. 2d out a House bill on the same Sess.

1861 Ch. 13 § 18 DESCHLER’S PRECEDENTS

bill reported from the Com- THE SPEAKER: (1) Is a second de- mittee on Ways and Means. manded? MR. [HERMAN T.] SCHNEEBELI [of (19) On Nov. 6, 1973, the House Pennsylvania: Mr. Speaker, I demand by a vote of yeas 340, nays 39, not a second. voting 54, approved H.R. 8219, a THE SPEAKER: Without objection, a bill identical to a Senate-passed second will be considered as ordered. bill which arguably infringed upon There was no objection. the constitutional prerogative of MR. ULLMAN: Mr. Speaker, I yield the House to originate revenue myself such time as I may consume. Mr. Speaker, the purpose of the legislation. pending bill, as reported to the House MR. [ALBERT C.] ULLMAN [of Or- by the Committee on Ways and Means, egon]: Mr. Speaker, I move to suspend is to provide the President with au- the rules and pass the bill (H.R. 8219) thority to extend to the Organization of to amend the International Organiza- African Unity and its office, officials, tions Immunities Act to authorize the and employees in the United States President to extend certain privileges those privileges and immunities speci- and immunities to the Organization of fied in the International Organizations African Unity. Immunities Act. The Clerk read as follows: Under the bill, at the discretion of the President the Organization of Afri- H.R. 8219 can Unity—OAU—may be designated Be it enacted by the Senate and by the President as an international House of Representatives of the organization for purposes of the Inter- United States of America in Congress national Organizations Immunities assembled, That the International Act. Upon such a designation the orga- Organizations Immunities Act (22 U.S.C. 288–288f) is amended by add- nization, to the extent so provided by ing at the end thereof the following the President, will be exempt from cus- new section: toms duties on property imported for ‘‘Sec. 12. The provisions of this the activities in which it engages, from title may be extended to the Organi- income taxes, from withholding taxes zation of African Unity in the same manner, to the same extent, and on wages, and from excise taxes on subject to the same conditions, as services and facilities. In addition, the they may be extended to a public employees of the international organi- international organization in which zation, to the extent not nationals of the United States participates pur- the United States, may not be subject suant to any treaty or under the authority of any Act of Congress au- to U.S. income tax on the income they thorizing such participation or mak- receive from OAU. OAU is an organi- ing an appropriation for such partici- zation composed of 41 member states, pation.’’ representing all the independent Afri- can nations—except the Republic of 19. 119 CONG. REC. 36006–08, 93d Cong. 1st Sess. 1. Carl Albert (Okla.).

1862 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 19

South Africa—and acts to further the Senate to propose or concur with goals of political and economic develop- amendments as on other bills. ment of Africa. It presently has a mis- Senate authority to amend rev- sion in New York. . . . enue bills is broad, but not unlim- THE SPEAKER: The question is on the motion of the gentleman from Oregon ited. A principle frequently ap- (Mr. Ullman) that the House suspend plied is that the Senate may sub- the rules and pass the bill H.R. 8219. stitute one kind of tax for a tax The question was taken. that the House has proposed, but MR. [JOHN R.] RARICK [of Louisiana]: may not impose a tax if one had Mr. Speaker, I object to the vote on the not originally been proposed by ground that a quorum is not present and make the point of order that a the House. Thus, the Supreme quorum is not present. Court has held that a Senate THE SPEAKER: Evidently a quorum is amendment which substituted a not present. corporate tax in place of an inher- The Sergeant at Arms will notify ab- itance tax which had been pro- sent Members. posed in the original House The vote was taken by electronic de- version did not contravene the vice, and there were—yeas 340, nays constitutional provision; for the 39, not voting 54, as follows: . . . bill had properly originated in the The result of the vote was announced as above recorded. House as a revenue-raising meas- A motion to reconsider was laid on ure and the Senate amendment the table. could constitutionally be added thereto.(3) Parliamentarian’s Note: Al- In a similar case, the House though it did not directly ‘‘raise’’ without debate and by voice vote revenue, the Senate bill clearly held that a Senate amendment in ‘‘affected’’ revenue, because it the nature of a substitute in- granted an immunity from tax- fringed upon the House preroga- ation. tive and returned the bill, as amended, to the Senate.(4) In this case, the substitute, which was of- § 19. Senate Action on fered to a House bill to amend the Revenue Legislation Railroad Retirement Act, sought to impose a tax. In addition to its mandate that On the other hand, as a further the House originate all revenue application of the above principle, bills, article I, section 7 of the Constitution (2) authorizes the 3. Flint v Stone Tracy Co., 220 U.S. 107 (1911). See also Rainey v United 2. See annotation following article I, States, 232 U.S. 310 (1914). section 7, House Rules and Manual. 4. See § 15.8, supra.

1863 Ch. 13 § 19 DESCHLER’S PRECEDENTS the House tabled a resolution to Constitutional Issue Submitted return to the Senate a House ex- to Senate cise tax bill, which the Senate had § 19.1 Because it requires in- amended by provision for a gen- terpretation of the Constitu- eral surtax.(5) tion rather than the rules of When the issue has been raised, the Senate, an issue as to the Senate has generally re- whether a Senate amend- spected the House prerogative. ment to a House bill in- Thus, the Senate rejected a com- fringes upon the prerogative mittee amendment changing a of the House to originate definition in the Internal Revenue bills raising revenue is de- Code which was added to a Senate cided by the Senate, not the bill granting independence to the Chair. ( ) Philippine Islands. 6 On another On Mar. 28, 1935,(10) a question occasion, the Senate sustained a of order as to the propriety of a point of order that a Senate Senate amendment to a House bill amendment affecting the Revenue was submitted to the Senate.(11) Act, offered to a House bill di- The Senate resumed the consider- rected to administrative purposes ation of the bill (H.R. 6359) to repeal certain provisions relating to publicity rather than raising revenue, in- of certain statements of income. (7) fringed on the prerogative. THE VICE PRESIDENT: (12) The ques- Moreover, after the House re- tion is on the amendment offered by turned a Senate bill to the Senate the Senator from Wisconsin [Mr. La Follette]. on the ground that certain tariff The amendment offered by Mr. La schedule amendments infringed Follette is after line 5 insert a new sec- upon the House prerogative, the tion reading as follows: Senate deleted the amendments.(8) Sec. 2. (a) Section 11 of the Revenuc Act of 1934, relating to the And the Senate has deleted normal tax on individuals, is amend- amendments to the Internal ed bv striking out ‘‘4 percent’’ and in- Revenur Code that appeared in a serting in lieu thereof ‘‘6 percent.’’ (9) Senate bill. 10. 79 CONG. REC. 4583, 4584, 4586, 4587, 74th Cong. 1st Sess. 5. See § 16.1, supra. 11. See also 84 CONG. REC. 6339–49, 6. See § 19.3, infra. 76th Cong. 1st Sess., May 31, 1939, 7. See § 19.4, infra. for submission of a similar issue to 8. See § 19.5, infra. the Senate. 9. See § 19.6, infra. 12. John N. Garner (Tex.).

1864 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 19

(b) Section 12(b) of the Revenue ate to act, the Chair has universally Act of 1934, relating to rates of sur- submitted the question to the Senate. tax, is amended to read as follows: The Chair thinks the logic of that ‘‘(b) Rates of surtax: There shall be levied, collected, and paid for each rule is correct, the reasoning of it is taxable year upon the surtax net in- good, because the Chair might under- come of every individual a surtax as take to interpret the Constitution follows: when a majority of the Senators would ‘‘Upon a surtax net income of have a different viewpoint. So the $4,000 there shall be no surtax; upon Chair is going to follow a long line of surtax net incomes in excess of $4,000 and not in excess of $8,000, 6 precedents and submit to the Senate percent of such excess. . . .’’ the question whether or not it is constitutional for the Senate to propose MR. [PAT] HARRISON [of Mississippi]: this amendment; and it occurs to the Mr. President, I make a point of order Chair that the only question involved against the amendment offered by the is, Is this a bill to raise revenue? Senator from Wisconsin. I do not think So the Chair is going to submit to I formally made it yesterday, because the Senate of the United States the the Senator from Wisconsin said he de- question as to whether or not the Sen- sired to make a brief statement. He ate, under the Constitution, has a made that statement yesterday after- right to propose this amendment. noon, and I now make the point of order that the pending bill is not, in a MR. [WILLIAM E.] BORAH [of Idaho]: strict sense, a revenue bill, and that Mr. President, must that question be for the Senate to attach a tax proposal determined without debate? to the bill at this time would be con- MR. [HUEY P.] LONG [of Louisiana]: trary to that provision of the No: it is subject to debate. ConstitutiOII requiring all bills for THE VICE PRESIDENT: The point of raising revenue to originate in the order has been made by the Senator House of Representatives. . . . from Mississippi [Mr. Harrison] to the THE VICE PRESIDENT: The point of amendment of the Senator from Wis- order is well taken. The Chair is ready consin [Mr. La Follette]. The question to rule. before the Senate is whether or not the The present occupant of the chair point of order shall be sustained. That has at no time declined to construe the question is debatable.(15) rules of the Senate; and if this were a In connection with his ruling on the matter of the rules of the Senate, he point of order made by the Senator would not hesitate for a moment to ex- from Mississippi, the Chair asks unan- press his opinion about it and make a imous consent to insert in the Record ruling. some decisions and precedents pre- It seems to the Chair, however, that pared by the parliamentary clerk. Is this is purely a constitutional question; there objection? The Chair hears none. and under the rulings and under the The matter referred to is as follows: precedents for more than a hundred years, where constitutional questions 13. See also § 19.4, infra, for further de- are involved as to the right of the Sen- bate on this question.

1865 Ch. 13 § 19 DESCHLER’S PRECEDENTS

[FROM THE CONSTITUTION OF THE pass upon the question of whether bills UNITED STATES, AS REVISED AND are or are not in violation of the Con- ANNOTATED, 1924] stitution. ARTICLE I SECTION 7, CLAUSE 1, After further argument, the Presi- REVENUE BILLS dent pro tempore (Albert B. Cummins, of Iowa) made the following ruling: All bills for raising revenue shall ‘‘The Chair is of the opinion that he originate in the House of Represent- atives; but the Senate may propose has no authority to declare a proposed or concur with amendments as on act unconstitutional. The only prece- other bills. dent which the Chair has been able to ‘‘All bills for raising revenue.’’ find since the question arose was pre- ‘‘The construction of this limitation sented to the Senate in 1830, and the is practically settled by the uniform Vice President then in the chair ruled action of Congress confining it to in accordance with the suggestion bills to levy taxes in the strict sense which the Chair has just made, hold- of the word, and it has not been un- ing that it was a question which must derstood to extend to bills for pur- be submitted to the Senate and one poses which incidentally create revenue.’’ which could not be ruled upon by the U.S. v. Norton (91 U.S. 566) Chair, which entirely concurs with the [1875]. views of the present occupant of the Twin City Bank v. Nebeker (167 chair in the matter. The question be- U.S. 196) [1897]. fore the Senate, therefore, is, Shall the Millard v. Roberts (202 U.S. 429) point of order which is made by the [1906]. Senator from Tennessee [Mr. McKellar], which is that the bill now QUESTIONS INVOLVING CONSTITU- under consideration is unconstitutional TIONALITY OF BILLS ARE SUBMITTED and should have originated in the TO SENATE House of Representatives, be sustained? [Putting the question.] The Wednesday, January 16, 1924 ayes have it, and the point of order is The Senate, in a call of the calendar sustained. The bill will be indefinitely under rule VIII, reached the bill (S. postponed.’’ 120) to provide for a tax on motor vehi- January 22, 1925 (14) cle fuels sold within the District of Co- lumbia, and for other purposes. The Senate had under consideration the bill (S. 3674) reclassifying the sala- Mr. McKellar made a point of order ries of postmasters and employees of against the bill on the ground that it the Postal Service, readjusting their was a revenue measure and that under salaries and compensation on an equi- the Constitution of the United States table basis, increasing postal rates to all revenue-raising measures must provide for such readjustment, and for originate in the House of Representa- other purposes. tives, and that the bill had no place on Pending debate, the Senate Calendar. The question was argued, and Mr. 14. The incident of Jan. 22, 1925, is dis- Lenroot made the contention that it cussed at 6 Cannon’s Precedents was not the function of the Chair to § 317.

1866 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 19

Mr. Swanson raised a question of oil, and to limit the importation there- order, viz, that that portion of the bill of, and for other purposes. dealing with increased postal rates Mr. Ashurst made the point of order proposed to raise revenue, and, under that the bill was a revenueraising the Constitution, must originate in the measure, and, under the Constitution, House of Representatives, and was should originate in the House of Rep- therefore in contravention of the Con- resentatives. stitution. The Vice President submitted the The Presiding Officer (Mr. Jones of point of order to the Senate. Washington) held that the Chair had Mr. Capper’s motion was subse- no authority to pass upon the constitu- quently laid on the table, and the point tionality of a bill, and submitted to the of order was not passed upon. Senate the question, Shall the point of order be sustained? December 17, 1932 On the following day the Senate, by The Senate had under consideration a vote of 29 yeas to 50 nays, overruled the bill (H.R. 7233) to enable the peo- the point of order. ple of the Philippine Islands to adopt a The bill was subsequently passed constitution and provide a government and transmitted to the House of Rep- for the Philippine Islands, to provide resentatives. On February 3 the House for the independence of the same, and returned the bill to the Senate with for other purposes. the statement that it contravened the Mr. Dickinson offered an amendment first clause of the seventh section of imposing on imports of pearl buttons the first article of the Constitution and or shells, in excess of 800,000 gross in was an infringement of the privileges a year, the same rates of duty imposed of the House. on like articles imported from foreign The message and bill were referred countries. to the Committee on Post Offices and Mr. Walsh of Montana raised a ques- Post Roads, and no further action tion of order, viz, that the amendment taken. A House bill, H.R. 11444, of an proposed to raise revenue and could identical title, was subsequently not, under the Constitution, originate passed by both Houses and became a with the Senate. law. . . . The Vice President submitted to the March 2, 1931 (15) Senate the question, Is the point of Mr. Capper moved that the Senate order well taken? and proceed to the consideration of the bill It was determined in the affirmative. (S. 5818) to regulate commerce be- Subsequently, Mr. Dickinson stated tween the United States and foreign that the amendment above indicated countries in crude petroleum and all was identical, except as to the com- products of petroleum, including fuel modity, with the language in the bill dealing with sugar and coconut oil; 15. The incident of Mar. 2, 1931, is dis- when cussed at 6 Cannon’s Precedents The President pro tempore ruled § 320. that in view of the language contained

1867 Ch. 13 § 19 DESCHLER’S PRECEDENTS

in the House text, the amendment was On June 9, 1958, (18) the Pre- in order. siding Officer, William Proxmire, After debate, and other proof Wisconsin, held that the Senate ceedings, the following oc- Committee on Banking and Cur- (l6) curred: rency did not exceed its jurisdic- MR. HARRISON: Mr. President, I ask tion in reporting S. 3651 with a for a vote on the point of order raised revenue producing measure to by me. THE PRESIDING OFFICER: (17) The amend the Internal Revenue question is, Shall the Senate sustain Code, because that measure was the point of order raised by the Sen- incidental to the main purpose of ator from Mississippi [Mr. Harrison] (19) against the amendment proposed by the bill. the Senator from Wisconsin [Mr. La MR. [JOHN J.] WILLIAMS [of Dela- Follette] on the ground that it con- ware]: Mr. President, I should like to travenes the constitutional provision? have the attention of the chairman of [Putting the question.] The ‘‘ayes’’ have the committee. The text of the bill, be- it, and the point of order is sustained. ginning on page 50, line 10, and extending to page 52, through line 17, Committee Jurisdiction of Bill embraces a proposed amendment to Incidentally Producing Rev- the Internal Revenue Code. I am won- enue dering if the committee did not make a mistake when it placed this provision § 19.2 The Presiding Officer of in the bill, because, in the first place, the Senate held that the Sen- measures of such nature should be con- ate Committee on Banking sidered by the Senate Finance Com- and Currency did not exceed mittee. Secondly, revenue measures its jurisdiction in reporting should originate in the House.... Mr. President, I call attention to the an original bill with a rev- fact that, under paragraph (d) of rule enue-producing measure to XXV, the Committee on Banking and amend the Internal Revenue Currency may not deal with any rev- Code therein, because that enue-producing measure.... measure was incidental to I next invite the attention of the the main purpose Of the bill, Senate to the fact that in this bill the making equity capital and attempt is not made to amend an ordinary House bill; nor even a bill which long-term credit more read- deals with a revenue-raising provision; ily available for small busi- nor a bill which had been reported by ness concerns. the Committee on Finance; nor one

16. 79 CONG. REC. 4613, 74th Cong. 1st 18. See the proceedings at 104 CONG. Sess. REC. 10522-25, 85th Cong. 2cl Sess. 17. Harry S Truman (Mo.). 19. Id. at pp. 10524, 10525.

1868 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 19 which had been considered by the The Supreme Court held that that Committee on Ways and Means of the act was not valid, because they could House. What is attempted is an not go behind the number of the bill. amendment of the Revenue Code on a Even though in that instance the rev- Senate bill which has been considered enue feature was added by the House only by the Banking and Currency of Representatives, the Supreme Court Committee. I shall make the point of held that the origin of the bill was de- order that the Committee on Banking termined by the number it carried. and Currency has exceeded its jurisdic- That bill carried a Senate number. So tion, and this section of the bill should the Supreme Court invalidated the be stricken.... Cotton Futures Act because section 7 MR. [FRANCIS H.] CASE of South Da- of the Constitution provides that all kota: Mr. President the distinguished bills for raising revenue shall originate Senator from Delaware has raised a in the House of Representatives. very important question. He has raised On the basis of that Supreme Court two questions, in fact. He has raised ruling, which the Parliamentarian the question of a possible violation of called to my attention, the Committee the rule of the Senate with respect to on Public Works decided that it should the jurisdiction of the Committee on not risk the validity of the highway bill Banking and Currency in reporting the by reporting revenue features. In fact, pending bill. He has also raised the in 1956, when the question of a high- constitutional question as to whether a way act again was before the Senate, bill carrying tax provisions must origi- because the House had failed to pass a nate in the House of Representatives. highway bill in 1955, the Committee I should like to have the attention of on Public Works decided it would defer the Parliamentarian while I am speak- to the action of the House, and wait ing on this point. The question first until a bill could come over from the came up in 1955, when the Committee House carrying revenue features or on Public Works was considering the carrying a House bill number, so that interstate highway bill. we would not run into danger. The At that time I consulted the Parlia- Committee on Public Works did not mentarian as to whether the Com- want to risk invalidating the proposed mittee on Public Works could report a legislation by placing a Senate number bill which would raise revenue for the on a bill which included revenue fea- purpose of defraying the cost of the tures. highway program, particularly the Under that decision of the Supreme standard interstate program. The Par- Court, cited to me by the Parliamen- liamentarian called my attention to a tarian, I cannot understand why mem- decision [Hubbard v Lowe 226 F 135 bers of the Committee on Banking and (S.D.N.Y.), appeal dismissed, 242 U.S. Currency would want to risk the fate 654 (1916)] in the so-called Cotton Fu- of this bill by having it continue to tures Act, which held that a bill which carry tax provisions. The Senator from had originated in the Senate, but Delaware [Mr. Williams] has already which had a revenue item added to it pointed them out. For emphasis, I in- in the House of Representatives. vite the committee’s attention to the

1869 Ch. 13 § 19 DESCHLER’S PRECEDENTS

fact that section 308 specifically refers the point of order, it is my position and to the Internal Revenue Code of 1954 that of the committee that the revenue and then, in parentheses, reads: ‘‘relat- provision of the bill is strictly of a sub- ing to deduction of losses.’’It amends sidiary and incidental nature to the section 165 of the Internal Revenue main purpose of the bill itself; that this Code relating to the deduction of is a very common practice; and that losses. the point of order is invalid. Further, in section 308, subpara- THE. PRESIDING OFFICER: The Chair graph (c), there is an amendment of has been informed by the Parliamen- section 243 of the Internal Revenue tarian that in the case of Millard v. Code, ‘‘elating to dividends received by Roberts (202 U.S. 429) decided in 1906, corporations’’ the Supreme Court of the United In other words, the language of the States made a decision which has a bill before us very clearly changes the bearing on the present situation. Revenue Code, by changing the provi- In that case, a bill which had origi- sions which raise revenue and the pro- nated in the Senate provided for the visions relating to deductions. Cer- construction of a Union Station in the tainly it must be considered a bill to District of Columbia, and contained a raise revenue or a bill to change the small incidental tax provision. The con- code relating to revenue. Based on the stitutionality of the bill was attacked opinions which the Parliamentarian on the ground that revenue bills must gave in 1955 and 1956, I do not see originate in the House. how this bill, S. 3651, could carry those provisions and still be considered a The Court, after citing the case of valid bill.... Twin City Bank v. Nebeker (167 U.S. 203) [1897], which quoted Mr. Justice MR. WILLIAMS. Mr. President, before I raise the question of constitu- Story as holding that ‘‘revenue bills are tionality, my first point of order is that those that levy taxes in the strict sense the committee exceeded its jurisdiction. of the word, and are not bills for other It had no authority at all to report a purposes, which may incidentally cre- bill dealing with the Revenue Code. ate revenue,’’ said, ‘‘here was no pur- Therefore, I make the point of order pose, by the act or any of its provi- against that section of the bill on that sions, to raise revenue to be applied in basis. meeting the expenses or obligations of The question is, Does the Senate the Government.’’ Committee on Banking and Currency That situation applies to the bill in have jurisdiction to report measures question. The Committee on Banking relating to the Revenue Code? If they and Currency has jurisdiction over the have such jurisdiction, other commit- pending bill and may report some pro- tees likewise have the jurisdiction to visions incidental to carrying out the report similar bills. main purposes of the bill. I confine my point of order, first, to There are numerous precedents for that phase of the question. . . the establishment of the Small Busi- Mr. [J. WILLIAM] FULBRIGHT [of Ar- ness Administration and the method of kansas]: Mr. President, in regard to its financing, against which no point of

1870 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 19

order was made when bills estab- ippine Islands, to provide for the adop- lishing those corporations or adminis- tion of a constitution and a form of trations similar in their financing were government for the Philippine Islands, under consideration in the Senate. and for other purposes.’’ . . . This is the opinion of the Parliamen- The next amendment was, on page tarian as given to the Chair. The Chair 19, after line 23, to insert a new paragraph, as follows: makes it his own opinion and, therefore, the Chair overrules the point of ‘‘(f) Subsection (a)(1) of section order.(20) 2470 of the Internal Revenue Code (I.R.C., ch. 21, sec. 2470(a)(1)), is hereby amended by striking out the Amendment to Senate Bill as comma after the words ‘coconut oil,’ Infringement and inserting in lieu thereof the following: ‘(except coconut oil rendered unfit for use as food or for any but § 19.3 The Senate rejected a mechanical or manufacturing pur- committee amendment to a poses as provided in paragraph 1732 of the Tariff Act of 1930), and upon Senate bill granting inde- the first domestic processing of.’ ’’ pendence to the Philippines, MR. [TOM T.] CONNALLY [of Texas]: on the ground that the Mr. President, I make a point of order amendment invaded the pre- against the amendment. rogative of the House to THE PRESIDING OFFICER: (22) The originate bills to raise rev- Senator from Texas will state his point of order. enue. MR. CONNALLY: I make the point of On May 31, 1939,(21) the Senate order that the amendment proposed is by a vote of yeas 8, nays 54, de- a revenue measure, and, under the Constitution, must originate in the cided that a committee amend- House of Representatives. If the Chair ment to S. 2390 was out of order desires argument, I can make an argu- because it invaded the prerogative ment; but it is so patent that I feel no of the House to originate bills to argument is necessary. THE PRESIDING OFFICER: The Chair raise revenue. will state to the Senator from Texas MR. [MILLARD E.] TYDINGS [of Mary- that the present occupant of the chair land]: Mr. President, I ask unanimous is always delighted to hear arguments from the Senator from Texas, but, consent for the immediate consider- under the long-established usage, prac- ation of Senate bill 2390, to amend an tice and precedents of the Senate, a act entitled ‘‘An act to provide for the constitutional point is not decided by complete independence of the Phil- the Chair, but is submitted to the Sen- ate, and the present occupant of the 20. See § 19.6, infra, for a discussion of chair will follow that practice....(1) withdrawing revenue amendments from this bill. 22. Edwin C. Johnson (Colo.). 21. 84 CONG. REC. 6331, 6339, 6348–50, 1. See § 19.1, supra, for a discussion of 76th Cong. 1st Sess. authorities supporting the principle

1871 Ch. 13 § 19 DESCHLER’S PRECEDENTS

MR. [HIRAM W.] JOHNSON of Cali- Senate to remove from a revenue col- fornia: Mr. President, I wish to fortify, lection bill originating in the House if I can, the position of the Senator a plan of inheritance taxation and substitute therefor a corporation tax. from Arizona.... The latest edition of the Constitution The following cases are cited: Flint v. of the United States of America, anno- Stone Tracy Co. (220 U.S. 107) [1911], tated—oh, it is a presumptuous thing Rainey v. United States (232 U.S. 310) to be referring to the Constitution [1914]. here—contains notes under the various That is all. headings. I will read the notes for MR. CONNALLY: Mr. President, I what they are worth. I shall not at- have not had the opportunity to read tempt to comment upon them in any the decisions cited by the Senator from way, shape, form, or manner. Other California; but there is no difficulty in Senators can understand them as well that regard. As I understand the rule as I can, although they may under- and the precedents, the language of stand them differently: the Constitution provides that all bills Sec. 7. All bills for raising revenue for raising revenue shall originate in shall originate in the House of Rep- the House. However, the Senate, of resentatives; but the Senate may course, may amend them. When a rev- propose or concur with amendments as on other bills. enue bill comes to the Senate, the Sen- ate is at liberty, if it desires, to adopt The note says: a new tax which is not even contained All bills for raising revenue: The in the House bill, because it has com- construction of this limitation is plete legislative powers, except for the practically settled by the uniform ac- prohibition that it shall not originate tion of Congress confining it to bills the bill. to levy taxes in the strict sense of the word, and it has not been under- If the doctrine asserted by Senators stood to extend to bills having some on the floor is sound, then the Senate other legitimate and well defined need never pay attention to the con- general purpose but which inciden- stitutional provision about revenue tally create revenue. measures, because when any bill comes Under that particular text the fol- over from the House a Senator may lowing cases are cited: United States v. offer on the floor of the Senate an Norton (91 U.S. 566) [1875], Twin City amendment cutting down the taxation, National Bank v. Nebeker (167 U.S. as this bill does, and say that it does 196) [1897], Millard v. Roberts (202 not raise any revenue, and is therefore U.S. 429) [1906]. in order. The bill immediately becomes Amendments by Senate: It has subject to amendment, and another been held within the power of the Senator may offer an amendment raising the revenue, or adding a new tax, that the Senate and not the Chair thus rendering absolutely nugatory the decides the constitutional question constitutional provision. relating to the prerogative of the There was a reason for the constitu- House. tional provision that revenue bills

1872 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 19 should originate in the House. The the- Texas raised the point of order that ory was that the Members of the the committee amendment is itself a House of Representatives are rep- revenue measure and may not origi- resentatives of the people, and that nate in the Senate. The question now Senators are representatives of the occurs, Is the committee amendment in States, formerly being elected by the order? Those Senators who think it is legislatures of the States. The old the- in order will vote ‘‘aye’’; those who ory, upon which the Revolution itself think the point of order is well taken was founded, was that taxation with- will vote ‘‘no.’’ out representation was cause for revo- MR. [ALBEN W.] BARKLEY [of Ken- lution. Therefore, the makers of the tucky]: Mr. President, a parliamentary Constitution wisely provided that no inquiry. tax should be laid upon the backs of the people unless their Representatives THE PRESIDING OFFICER: The Sen- in the House of Representatives should ator will state it. propose the bill seeking to levy the tax; MR. BARKLEY: Is not the question but the Constitution says that when whether the point of order is well that bill comes to the Senate the Sen- taken, on which those who believe it ate may amend it, or change it, or do well taken will vote ‘‘aye’’? what it pleases with it, once the House THE PRESIDING OFFICER: The has opened the door. present occupant of the chair will say We have before us a bill which did that he entertains the same idea as not even originate in the House. The that of the Senator from Kentucky, but whole bill originated in the Senate. It he submitted the question to the Par- is now proposed to take off a tax. It liamentarian, and the Parliamentarian does not make any difference whether advised the occupant of the chair that the bill raises or lowers the tax; it is the better practice is to submit the still a revenue measure. It still relates question, ‘‘Is the committee amend- to the revenue. I could offer in a moment in order?’’ Therefore, so that it ment an amendment raising the tax, may be understood, the Chair will re- instead of repealing the 3-cent tax, as peat the question, Is the committee is proposed. I could offer an amend- amendment in order? Those who think ment to make it 5 cents. Such an it is in order will vote ‘‘aye,’’ and those amendment would be in order. Then who think it is not in order will vote we should unquestionably have a bill ‘‘no’’. [Putting the question.] By the raising revenue. sound, the ‘‘noes’’ appear to have it. Mr. President, we ought not to adopt MR. [CARL] HAYDEN [of Arizona]: Mr. the pending amendment. I think every- President, I ask for a division. one ought to know that it is violative of the spirit of comity, good will, and re- Mr. Harrison, Mr. Barkley, and Mr. spect for the prerogatives of the two La Follette called for the yeas and Houses. We ought not to add a revenue nays. measure by a committee amendment. The yeas and nays were ordered...... THE PRESIDING OFFICER: To the com- The result was announced—yeas 8, mittee amendment the Senator from nays 54, as follows: . . .

1873 Ch. 13 § 19 DESCHLER’S PRECEDENTS

So the Senate decided the committee (b) Section 12(b) of the Revenue amendment to be out of order. Act of 1934, relating to rates of surtax, is amended to read as follows: ‘‘(b) Rates of surtax: There shall be Amendment to House Bill as levied, collected, and paid for each Infringement taxable year upon the surtax net income of every individual a surtax as § 19.4 The Senate sustained a follows: ‘‘Upon a surtax net income of point of order that a Senate $4,000 there shall be no surtax; upon amendment to a House bill to surtax net incomes in excess of repeal certain provisions re- $4,000 and not in excess of $8,000, 6 percent of such excess. . . .’’ lating to publicity of certain statements of income in- MR. [PAT] HARRISON [of Mississippi]: vaded the constitutional pre- Mr. President, I make a point of order against the amendment offered by the rogative of the House to Senator from Wisconsin. I do not think originate revenue-raising I normally made it yesterday, because bills. the Senator from Wisconsin said he de- (2) sired to make a brief statement. He On Mar. 28, 1935, the Senate made that statement yesterday after- by voice vote sustained a point of noon, and I now make the point of order that a Senate amendment to order that the pending bill is not, in a H.R. 6359 invaded the constitu- strict sense, a revenue bill, and that tional prerogative of the House to for the Senate to attach a tax proposal originate revenue-raising bills. to the bill at this time would be contrary to that provision of the Constitu- The Senate resumed the consider- tion requiring all bills for raising rev- ation of the bill (H.R. 6359) to repeal enue to originate in the House of Rep- certain provisions relating to publicity resentatives. . . . of certain statements of income. Mr. President, I was of the opinion THE VICE PRESIDENT:(3) The question that perhaps the question was so clear is on the amendment offered by the Senator from Wisconsin [Mr. La upon its face that it would require no Follette]. argument to convince anyone that we The amendment offered by Mr. La would be violating precedents and not Follette is after line 5 insert a new sec- acting in accordance with the Constitu- tion reading as follows: tion if we should attempt to write a revenue amendment upon a bill which Sec. 2. (a) Section 11 of the Rev- seeks merely to repeal the ‘‘pink slip’’ enue Act of 1934, relating to the normal tax on individuals, is amended provision of the law. by striking out ‘‘4 percent’’ and in- It will be noted that the title of serting in lieu thereof ‘‘6 percent.’’ House bill 6359 is ‘‘To repeal certain provisions relating to publicity of cer- 2. 79 CONG. REC. 4583–87, 4613, 74th tain statements of income.’’ Those pro- Cong. 1st Sess. visions deal solely with administrative 3. John N. Garner (Tex.). purposes and features of the existing

1874 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 19 law; in no way, not by the wildest The case is not one that requires stretch of the imagination, can they be either an extended examination of construed to affect the raising of rev- precedents, or a full discussion as to enue. the meaning of the words in the Mr. Story, in section 880 of his Constitution, ‘‘bills for raising rev- works on the Constitution, makes this enue.’’ What bills belong to that class statement with reference to the con- is a question of such magnitude and importance that it is the part of wis- stitutional provision: dom not to attempt, by any general What bills are properly ‘‘bills for statement, to cover every possible raising revenue’’, in the sense of the phase of the subject. It is sufficient Constitution, has been matter of in the present case to say that an act some discussion. A learned commen- of Congress providing a national cur- tator supposes that every bill which rency secured by a pledge of bonds of indirectly or consequently may raise the United States and which, in the revenue is, within the sense of the furtherance of that object, and also Constitution, a revenue bill. He to meet the expenses attending the therefore thinks that the bills for es- execution of the act, imposed a tax tablishing the post office and the on the notes in circulation of the mint, and regulating the value of for- banking associations organized eign coin, belong to this class, and under the statute, is clearly not a ought not to have originated—as in revenue bill which the Constitution fact they did—in the Senate. But the declares must orginate in the House principal construction of the Con- of Representatives. Mr. Justice Story stitution has been against his opin- has well said that the practical con- ion. And, indeed, the history of the struction of the Constitution and the origin of the power already sug- history of the origin of the constitu- gested abundantly proves that it has tional provision in question proves been confined to bills to levy taxes in that revenue bills are those that levy the strict sense of the words, and taxes in the strict sense of the word, has not been understood to extend to and are not bills for other purposes bills for other purposes, which may which may incidentally create rev- incidentally create revenue. No one enue (1 Story on Constitution, sec. supposes that a bill to sell any of the 880). The main purpose that Con- public lands, or to sell public stock, gress had in view was to provide a is a bill to raise revenue, in the national currency based upon United sense of the Constitution. Much less States bonds, and to that end it was would a bill be so deemed which deemed wise to impose the tax in merely regulated the value of foreign question. or domestic coins, or authorized a discharge of insolvent debtors upon Throughout the decisions the same assignments of their estates to the construction of the constitutional provi- United States, giving a priority of sion has been given by the courts. payment to the United States in I desire to cite a few precedents rel- cases of insolvency, although all of ative to what has been done with ref- them might incidentally bring reverence to bills which originated in the enue into the Treasury. House which were not revenue bills, In one of the most important cases upon which some revenue amendment decided by the courts of the United was tacked by the Senate, and the States, the case of Twin City Bank v. House later refused to accept the Nebeker (167 U.S. 202) [1897], the amendment, returning the bill to the court said: Senate.

1875 Ch. 13 § 19 DESCHLER’S PRECEDENTS

In the Sixty-fourth Congress, second namely, the pink-slip provision, affects session, February, March 1917, the in no way the revenues of the Govern- Senate added an amendment to the ment. naval appropriation bill (H.R. 20632) Mr. Justice Story and the courts say authorizing the Secretary of the Treas- a bill must go further than incidentally ury to borrow certain sums on the to affect the revenues of the Govern- credit of the United States and to pre- ment and must deal directly with the pare and issue bonds therefor (pro- revenues before the Senate may take posed by Mr. Swanson). cognizance to the extent of adding rev- The House, on March 2, 1917, re- enue provisions. turned the bill and amendment to the It seems to me it is without question Senate with the statement that it con- that the Senate ought to sustain the travened the first clause of section 7 of point of order, if submitted, or, if the article I of the Constitution and was Chair desires to rule without submit- an infringement of the privileges of the ting the question to the Senate, he House. should sustain the point of order. Cer- The Senate subsequently reconsid- tainly the Senate of the United States ered the vote on the passage and en- ought not to assume, in view of the grossment of the bill and amendments, provision of the Constitution to which and a motion was agreed to whereby I have invited attention, the privilege the amendment providing for the bond and the right of writing a revenue bill issue was stricken from the bill. . . . in this way. On June 30, 1864,(4) the bill (H.R. Sooner or later at the present ses- 549) further to regulate and provide for the enrolling and calling out of the sion of Congress we may be forced to national forces was passed by the Sen- consider a revenue bill which might ate with an amendment, among others, have a tendency to increase taxes or to providing for a 5-percent duty on in- extend the application of those taxes comes. The House ordered the bill re- which by operation of law would other- turned to the Senate with the state- wise lapse on June 30. Certainly, when ment that the amendment in question that time comes the House ought to be contravened the first clause of section given its privilege and right, which it 7 of article I of the Constitution and has always exercised, to construct its was an infringement of the privileges own revenue bill without the Senate of the House. assuming in the beginning to write a The Senate on the same day recon- revenue bill and send it to the House. sidered the bill and eliminated the ob- I think the House would have just jectionable amendment. cause to feel it was an abuse of their Mr. President, so it goes on down the privilege, and, so far as I am con- line. I submit that the bill now before cerned, I am not willing to go that far. us, which deals solely with the repeal Therefore, I have made the point of of an administrative provision of law, order. . . . THE VICE PRESIDENT: The point of 4. This instance is discussed at 2 order is well taken. The Chair is ready Hinds’ Precedents § 1486. to rule.

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The present occupant of the chair taining a provision which in- has at no time declined to construe the rules of the Senate; and if this were a fringed upon the constitu- matter of the rules of the Senate, he tional power of the House to would not hesitate for a moment to ex- originate revenue measures, press his opinion about it and make a ruling. . . .(5) the Senate, by unanimous The . . . Chair is going to follow a consent, reconsidered the long line of precedents and submit to vote by which the bill had the Senate the question whether or not it is constitutional for the Senate to passed, adopted an amend- propose this amendment; and it occurs ment deleting the objection- to the Chair that the only question in- able provision, and then volved is, Is this a bill to raise revenue? . . . passed the bill as so amend- MR. [WILLIAM E.] BORAH [of Idaho]: ed. Mr. President, must that question be (7) determined without debate? On May 4, 1971, the Senate reconsidered the vote on S. 860, deleted title MR. [HUEY P.] LONG [of Louisiana]: No; it is subject to debate. 4, a tariff schedule which contravened the prerogatives of the House, and After debate, and other pro- passed the bill as so amended. ceedings, the following occurred: MR. [MICHAEL J.] MANSFIELD [of MR. HARRISON: Mr. President, I ask Montana]: Mr. President, I ask that for a vote on the point of order raised the Chair lay before the Senate a mes- by me. sage from the House on S. 860. ( ) THE PRESIDING OFFICER: 6 The The President pro tempore laid be- question is, Shall the Senate sustain fore the Senate a message from the the point of order raised by the Sen- ator from Mississippi [Mr. Harrison] House of Representatives that the bill against the amendment proposed by of the Senate (S. 860) relating to the the Senator from Wisconsin [Mr. La Trust Territory of the Pacific Islands Follette] on the ground that it con- in the opinion of this House contravenes the constitutional provision? travenes the first clause of the seventh [Putting the question.] The ‘‘ayes’’ have section of the first article of the Con- it, and the point of order is sustained. stitution of the United States, and is an infringement of the privileges of Deletion of Tariff Schedule this House, and that the said bill be Amendments respectfully returned to the Senate with a message communicating this § 19.5 After the House re- resolution.(8) turned a Senate bill con- MR. MANSFIELD: Mr. President, I ask unanimous consent that the Senate re- 5. See § 19.1, supra, for the full text of the ruling regarding the submission 7. 117 CONG. REC. 13273, 92d Cong 1st of the question for decision by the Sess. Senate on constitutional issues. 8. See § 15.6, supra, for House disposi- 6. Harry S Truman (Mo.). tion of this matter.

1877 Ch. 13 § 19 DESCHLER’S PRECEDENTS

consider the vote by which S. 860 was On June 9, 1958,(10) the Chairman of passed, together with third reading. the Committee on Banking and Cur- THE PRESIDENT PRO TEMPORE: (9) Is rency, J. William Fulbright, of Arkan- there objection? Without objection, it is sas, moved to delete proposed amend- so ordered. The bill is open to amendments to the Internal Revenue Code ment. from S. 3651, a bill to make equity MR. MANSFIELD: Mr. President, I capital and long-term credit more read- send to the desk an amendment to ily available for small business con- strike title 4 of the bill. cerns. THE PRESIDENT PRO TEMPORE: The amendment will be stated. MR. [JOHN J.] WILLIAMS [of Dela- The amendment was read, as fol- ware]: I now make the point of order lows: on the ground that it is not constitutional for the Senate to originate rev- Beginning on page 15, line 1, enue measures. Certainly this point of strike all language through line 10, page 17. order should be sustained. I suggest the absence of a quorum. THE PRESIDENT PRO TEMPORE: The The clerk proceeded to call the roll. question is on agreeing to the amend- ... ment of the Senator from Montana (11) (Mr. Mansfield). THE PRESIDING OFFICER: A The amendment was agreed to. quorum is present. The Senator from Delaware has raised a point of order THE PRESIDENT PRO TEMPORE: The bill is open to further amendment. If that the bill is not constitutional in its there be no further amendment to be tax provision at page 50. . . . proposed, the question is on the en- . . . Does the Senator from Dela- grossment and third reading of the bill. ware wish to make an observation? The bill (S. 860) was ordered to be MR. WILLIAMS: I understand the engrossed for a third reading, was read Committee on Banking and Currency the third time, and passed. has decided that it will withdraw the disputed section of the bill, and strike Withdrawal of Internal Rev- it out. With that understanding I with- enue Code Amendments draw my point of order. MR. [HOMER E.] CAPEHART [of Indi- § 19.6 Amendments to the In- ana]: Mr. President, will the Senator ternal Revenue Code, incor- yield? porated in a Senate bill de- MR. WILLIAMS: I yield. signed to make equity capital MR. CAPEHART: As I understand, the and long-term credit more Senator from Delaware is withdrawing his point of order, with the under- readily available for small business concerns, were on 10. 104 CONG. REC. 10525–27, 85th motion deleted from the bill Cong. 2d Sess. See also § 19.2, supra, during debate. for a precedent relating to committee jurisdiction of this bill. 9. Allen J. Ellender (La.). 11. William Proxmire (Wis.).

1878 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 19

standing that the complete section will (b) Subchapter P of the Internal Rev- be taken out.... enue Code of 1954 is amended by add- MR. WILLIAMS: Mr. President, I ing at the end thereof the following withdraw the point of order.... new sections: THE PRESIDING OFFICER: Will the ‘‘Sec. 1242. Losses on small business Senator from Arkansas inform the investment company stock. Chair how much of the language he ‘‘In the case of a taxpayer if— wishes to have stricken? . . . ‘‘(1) A loss is on stock in a small MR. FULBRIGHT: All the tax provi- business investment company oper- sions which are involved in this matter ating under the Small Business Invest- are included in section 308, beginning ment Act of 1958, and at page 50, and continuing to section ‘‘(2) Such loss would (but for this sec- 309. That is the part which, as the tion) be treated as a loss from the sale manager of the bill, I ask to have or exchange of a capital asset, then stricken. such loss shall be treated as a loss MR. [JOSEPH S.] CLARK [of Pennsyl- from the sale or exchange of an asset vania]: And that the subsequent sec- which is not a capital asset. tions be renumbered. ‘‘Sec. 1243. Loss of small business in- MR. FULBRIGHT: Yes.... vestment company. THE PRESIDING OFFICER: The ques- ‘‘In the case of a small business in- tion is on agreeing to the motion of the vestment company, if— Senator from Arkansas [Mr. Fulbright] ‘‘(1) A loss is on convertible deben- to strike out section 308, beginning in tures (including stock received pursu- line 10, on page 50, and down to and ant to the conversion privilege) ac- including line 17, on page 52. quired pursuant to section 304 of the The motion was agreed to. Small Business Investment Act of Parliamentarian’s Note: The 1958, and portion of the bill, relating to the ‘‘(2) Such loss would (but for this section) be treated as a loss from the sale Internal Revenue Code, which or exchange of a capital asset, then was stricken by the Senate, was such loss shall be treated as a loss as follows: from the sale or exchange of an asset which is not a capital asset.’’ TAX PROVISIONS (c) Section 243 of the Internal Rev- Sec. 308. (a) Section 165 of the Inter- enue Code of 1954 (relating to divi- nal Revenue Code of 1954 (relating to dends received by corporations) is deduction for losses) is amended by amended as follows: adding at the end of subsection (h) the (1) by striking from subsection (a) following new paragraphs: the following language ‘‘In the case of ‘‘(3) For special rule for losses on a corporation’’ and inserting in lieu stock in a small business investment thereof the following language ‘‘In the company, see section 1242. case of a corporation (other than a ‘‘(4) For special rule for losses of a small business investment company small business investment company, operating under the Small Business see section 1243.’’ Investment Act of 1958)’’.

1879 Ch. 13 § 19 DESCHLER’S PRECEDENTS

(2) By adding at the end thereof the the House of Representatives and following new subsection: there has been no deviation from that ‘‘(c) Small business investment com- practice since the establishment of the pany. In the case of a small business Constitution. investment company, there shall be al- Following the view expressed by lowed as a deduction an amount equal to 100 percent of the amount received Mr. Cannon, the House has re- as dividends (other than dividends de- turned Senate-passed general ap- scribed in paragraph (1) of section 244, propriation bills.(16) relating to dividends on preferred stock The Senate has not always ac- of a public utility) from a domestic corporation which is subject to taxation cepted the view that the House under this chapter.’’ has the exclusive right to origi- (d) Section 246(b)(1) of the Internal nate appropriation measures.(17) Revenue Code of 1954 (relating to limitation on aggregate amount of deductions for dividends received) is amended by striking ‘‘243’’ wherever appear- Resolution Regarding Author- ing and inserting in lieu thereof ‘‘243 ity to Appropriate (a) and (b)’’. § 20.1 The Senate has adopted a resolution asserting that § 20. Authority to Make the power to originate appro- Appropriations priation bills is not exclusively in the House of Rep- The precedents in this section resentatives but is shared by relate to the efforts of the Senate the Senate, and suggesting to originate appropriation meas- that an appropriate commis- ures.(12) Mr. Clarence Cannon has sion be established to study observed: (13) article I, section 7, clause 1, of the Constitution. Under immemorial custom the gen- ( ) eral appropriation bills, providing for a On Oct. 13, 1962, 18 the Senate number of subjects (14) as distinguished by voice vote agreed to Senate from special bills appropriating for sin- Resolution 414, asserting the gle, specific purposes,(15) originate in 16. See § 20.3, infra. 12. See 2 Hinds’ Precedents §§ 1500, 17. See § 20.1, infra. See also Authority 1501; and 6 Cannon’s Precedents of the Senate to Originate Appro- §§ 319–322, for earlier precedents. priation Bills, S. Doc. No. 17, 88th 13. Cannon’s Procedure (1959) p. 20. Cong. 1st Sess., Apr. 30, 1963. 14. 4 Hinds’ Precedents §§ 3566–3568. 18. 108 CONG. REC. 23470, 87th Cong. 15. Cannon’s Precedents § 2285. 2d Sess.

1880 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 20 power of the Senate to originate THE ACTING PRESIDENT PRO TEM- bills appropriating money.(19) PORE: (20) The resolution will be read. The resolution (S. Res. 414) sub- ASSERTION OF THE POWER OF THE SEN- mitted by Mr. Russell was read, as fol- ATE TO ORIGINATE BILLS APPRO- lows: PRIATING MONEY FOR THE SUPPORT Whereas the House of Representa- OF THE GOVERNMENT tives has adopted House Resolution MR. [RICHARD B.] RUSSELL [of Geor- 831 alleging that Senate Joint Reso- gia]: Mr. President, I submit and send lution 234, a resolution continuing to the desk a privileged resolution, for the appropriations for the Depart- which I request immediate consider- ment of Agriculture, to be in con- ation. travention of the first clause of the seventh section of the Constitution and an infringement of the privileges 19. See 108 CONG. REC. 12898, 12899, of the House; and 12904–11, 87th Cong. 2d Sess., July Whereas this clause of the Con- 9, 1962, for a resolution of the Sen- stitution provides only that ‘‘All bills ate Committee on Appropriations, for raising revenue shall originate in setting forth areas of dispute be- the House of Representatives,’’ and tween it and the House Committee does not in anywise limit or restrict the privileges and power of the Sen- on Appropriations, and resolving ate with respect to any other legisla- that among the issues to be dis- tion; and cussed or negotiated between them Whereas the acquiescence of the was the power of the Senate to origi- Senate in permitting the House to nate appropriation bills; a resolution first consider appropriation bills cannot change the clear language of the of the House Committee on Appro- Constitution nor affect the Senate’s priations suggesting negotiations on coequal power to originate any bill conference procedures between spe- not expressly ‘‘raising revenue’’; and cial committees of the House and Whereas the Committee on the Ju- Senate Committees on Appropria- diciary of the House of Representa- tions; and the text of a report of the tives, pursuant to a directive of the House of Representatives, reported Committee on the Judiciary (H. to the House in 1885 that the power Rept. No. 147, 46th Cong. 3d Sess., to originate bills appropriating Feb. 2, 1881), in which the majority money from the Treasury did not re- recommended adoption of a resolu- side exclusively in the House: There- tion stating that the Senate may fore be it originate appropriation bills and that Resolved, That the Senate respectfully asserts its power to originate the power to originate bills appro- bills appropriating money for the priating money is not exclusive in support of the Government and de- the House. 2 Hinds’ Precedents clares its willingness to submit the § 1500 discusses this report. issue either for declaratory judgment For a recent discussion of this sub- by an appropriate appellate court of the United States or to an appro- ject, see Authority of the Senate to priate commission of outstanding Originate Appropriation Bills, S. educators specializing in the study of Doc. No. 17, 88th Cong. 1st Sess., Apr. 30, 1963. 20. Lee Metcalf (Mont.).

1881 Ch. 13 § 20 DESCHLER’S PRECEDENTS

the English language to be chosen in privileges of the House. The Sen- equal numbers by the President of the Senate and the Speaker of the ate joint resolution provided in House; and be it further part as follows: Resolved, That a copy of this resolution be transmitted to the House of That there is appropriated out of any Representatives. money in the Treasury not otherwise appropriated, and out of the applicable THE ACTING PRESIDENT PRO TEM- corporate and other revenue . . . such PORE: Without objection, the Senate amounts as may be necessary for con- will proceed to the immediate consider- tinuing, during . . . 1963 . . . projects ation of the resolution. of the Department of Agriculture. MR. RUSSELL: Mr. President, this MR. [CLARENCE] CANNON [of Mis- resolution is just as self-explanatory, I souri]: Mr. Speaker, I offer a privileged believe, as the clause of the Constitu- resolution (H. Res. 831) and ask for its tion which is involved. I see no neces- immediate consideration. sity for laboring it. The Clerk read the resolution, as fol- I move the adoption of the resolu- lows: tion. . . . Resolved, That Senate Joint Reso- THE ACTING PRESIDENT PRO TEM- lution 234, making appropriations PORE: The question is on agreeing to for the Department of Agriculture the resolution. and the Farm Credit Administration The resolution was agreed to. for the fiscal year 1963, in the opinion of the House, contravenes the first clause of the seventh section of Department of Agriculture Ap- the first article of the Constitution propriation and is an infringement of the privileges of this House, and that the said joint resolution be taken from § 20.2 A Senate joint resolution the Speaker’s table and be respect- making an appropriation out fully returned to the Senate with a of the general funds of the message communicating this resolution. Treasury was held to be an infringement of the privi- MR. CANNON: Mr. Speaker, on Octo- ber 4, 1962, the other body messaged leges of the House, and was to the House Senate Joint Resolution returned to the Senate. 234, now on the Speaker’s table. This On Oct. 10, 1962,(1) the House joint resolution is an infringement on by a vote of yeas 245, nays 1, not the privileges of the House, as stated in section 7 of article I of the Constitu- voting 188, agreed to House Reso- tion, under which the House of Rep- lution 831, returning to the Sen- resentatives has always maintained ate Senate Joint Resolution 234, the right to originate the appropriation because it infringed upon the bills. The priority of the House in the ini- 1. 108 CONG. REC. 23014–16, 87th tiation of appropriation bills is but- Cong. 2d Sess. tressed by the strongest and most im-

1882 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 20

pelling of all rules, the rule of imme- 176, to return to the Senate Senate morial usage. As Mr. Asher Hinds re- Joint Resolution 52, appropriating lates in section 1500 of volume II of money from the District of Columbia ‘‘Hinds’ Precedents’’ at page 973— general fund. while the issue has been raised a num- MR. [JOHN] TABER [of New York]: ber of times—‘‘there has been no deviation from the practice.’’ . . . Mr. Speaker, I rise to a question of THE SPEAKER PRO TEMPORE: (2) The privilege of the House and offer a reso- question is on the resolution. lution (H. Res. 176). MR. CANNON: Mr. Speaker, on that The Clerk read the resolution, as fol- ask for the yeas and nays. lows: The yeas and nays were ordered. Resolved, That Senate Joint Reso- MR. [JOHN J.] ROONEY [of New lution 52, making an appropriation York]: Mr. Speaker, a parliamentary out of the general fund of the Dis- inquiry. trict of Columbia, in the opinion of THE SPEAKER: (3) The gentleman will the House, contravenes the first state it. clause of the seventh section of the MR. ROONEY: Would a yea vote be a first article of the Constitution and vote to send Senate Joint Resolution is an infringement of the privileges of this House, and that the said joint 234 back to the Senate? resolution be taken from the Speak- THE SPEAKER PRO TEMPORE: The er’s table and be respectfully re- gentleman has correctly stated the sit- turned to the Senate with a message uation. communicating this resolution. The question was taken; and there were—yeas 245, nays 1, not voting MR. TABER: Mr. Speaker, Senate 188, as follows: . . . Joint Resolution 52 was passed on So the resolution was agreed to. Monday, providing an appropriation out of the general fund of the District District of Columbia Appro- of Columbia. It was not referred, as priation the rules require, to the Committee on Appropriations of the Senate, but was § 20.3 The House returned a passed direct. This infringes the privileges of the House as set forth in sec- Senate joint resolution which tion 7 of article I of the Constitution appropriated money from which gives the House of Representa- the District of Columbia gen- tives the privilege of initiating all ap- eral funds, on the ground propriation bills. that it invaded the preroga- This question was thoroughly dis- tives of the House. cussed by the Honorable John Sharp Williams when he was a Member of On Mar. 12, 1953,(4) the House by the Senate back in 1912. He analyzed voice vote agreed to House Resolution the authorities on that subject. The article was printed as a Senate document 2. Carl Albert (Okla.). on July 15, 1919. The article discusses 3. John W. McCormack (Mass.). the situation in great detail, and there 4. 99 CONG. REC. 1897, 1898, 83d Cong. is no question about it. I hope that the 1st Sess. resolution will be promptly adopted.

1883 Ch. 13 § 20 DESCHLER’S PRECEDENTS

Pursuant to the consent granted me, I what occurred later and not of what submit herewith certain parts of Sen- was in the minds of the framers of ator Williams’ treatise: the Constitution. I believe it is not too much to say that, in the minds of Mr. President, if the Senate can the framers of the Constitution, a constitutionally originate general ap- bill to raise revenue was a budget; propriation bills when money is in that is, a bill levying taxes and at the Treasury, then it can do the the same time appropriating the pro- same thing when there is no money ceeds of the levy, because such was in the Treasury; and thus this body, the contemporaneous practice. representing the States and not the Mr. Sumner, of Massachusetts, people, representing chiefly the said that he regarded the Senate smaller States, could force either origination of general appropriation Federal insolvency, not to be thought bills as ‘‘a departure from the spirit of, or else could force the House to of the Constitution’’ (ibid.). levy new or additional taxes; thus Mr. Hinds, in his incomparable force the House to originate tax bills. work, in a note at the bottom of page The two things hang together. If this 973, volume 2 [§ 1500], concerning Senate could originate general sup- the question of the right of the ply bills, then it could commit the House to originate general appro- Government to a course of expendi- priation or supply bills, says: ‘‘But ture that would coerce the House not while there has been a dispute as to only into originating but into passing the theory, there has been no devi- tax bills. ation from the practice that the gen- As Seward well says, speaking of eral appropriation bills originate in the long practice under which the the House of Representatives.’’ He House always insisted upon and the expressly uses this phrase as contra- Senate always conceded, the right of distinguished from special bills ap- the House to originate general appropriating for single, specific pur- propriation bills: poses. ‘‘This [practice] could not have It is well to remember in this con- been accidental; it was therefore de- nection the Hurd resolution of Janu- signed. The design and purpose were ary 13, 1885,(5) which was laid on those of the contemporaries of the the table in the House. The fact that Constitution itself. It evinces their it was laid upon the table has been understanding of the subject, which quoted very frequently, but the reso- was that bills of a general nature for lution was directed at Senate bill appropriating the public money or 398 (the Blair educational bill). It for laying of taxes or burdens on the was not a supply bill, but a bill of people, direct or indirect in their op- specific appropriation; not a bill for eration, belonged to the province of carrying on the Government any the House of Representatives.’’ (See more than a bill making appropria- Congressional Record, vol. 16, pt. 2, tion for a public building would be a p. 959.) bill for carrying on the Government. He added: Mr. Speaker, I yield to the gen- ‘‘If this power be confined to the tleman from Missouri [Mr. Cannon]. one and not to the other, that is, to MR. [CLARENCE] CANNON: Mr. the levying of taxes to get money, Speaker, this is not an inconsequential but not to its expenditure, then the right is useless, because we change revenue laws so seldom.’’ 5. See 2 Hinds’ Precedents § 1501 for This criticism of Seward’s is cor- discussion of this incident, which ac- rect, although it was made in view of tually occurred on Jan. 23, 1885.

1884 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 20 matter. It is fundamental in the prac- is the primary prerogative of democ- tice of the House and is supported by racy and the one effective weapon in the strongest rule known in parliamen- defense of rights and liberties of a free tary procedure, the rule of immemorial nation. usage. A great many precedents could . . . The Representatives in the be recited, but the whole matter is House, elected by the people every 2 summed up in a comment by the years, should have exclusive rights in former Parliamentarian of the House, the origination of appropriation bills. I Asher Hinds, who knew more about hope the resolution of the gentleman from New York will be agreed to. procedure and had more to do with es- R. [JOHN W.] MCCORMACK [of Mas- tablishing the orderly procedures of M sachusetts]: Mr. Speaker, will the gen- the House than any man in American tleman yield? history with the single exception of MR. TABER: I yield. Vice President Jefferson. . . . MR. MCCORMACK: Mr. Speaker, I am In summing up the whole question sure when my friend, the gentleman Asher Hinds said: from New York [Mr. Taber] and my There has been some debate about friend, the gentleman from Missouri the theory of restricting the origin of [Mr. Cannon] agree that the House of appropriation bills to the House but Representatives must, indeed, have a there has been no deviation in the sound case. But will the gentleman, for practice. the record, state just what part of this As Mr. Hinds pointed out, this rule resolution, which has come from the is one of the rules which came down to other body, violates the long standing custom and usage and practice of the us from the English Parliament. . . . Congress? [The House of] Commons through MR. TABER: This resolution, Mr. the years began to assert and eventu- Speaker, in its entirety, violates the ally maintained through debate and by practice. There is no part of it which the sword the primacy of the House in could be construed as covering any- the origin of money bills, the levying of thing else or any other subject matter. taxes, and the appropriation and ex- MR. MCCORMACK: Mr. Speaker, the penditure of revenues. gentleman’s statement satisfies me. Whenever the Commons became too MR. TABER: Mr. Speaker, I move the insistent on the redress of grievances previous question. and began to protest too vigorously the The previous question was ordered. chronic denial of justice, the King THE SPEAKER: (6) The question is on would prorogue Parliament and send the resolution. them home. But inevitably the forced The resolution was agreed to. loans, the sale of privileges, and the A motion to reconsider was laid on money borrowed at usurious rates of the table. interest dwindled and as a last resort the King would be compelled to con- § 20.4 After receiving a Senate vene Parliament. In that day, as now, joint resolution which had the control of the purse strings was the only recourse of the people. It was and 6. Joseph W. Martin. Jr. (Mass.).

1885 Ch. 13 § 20 DESCHLER’S PRECEDENTS

been returned on the ground travened the constitutional provision that it infringed upon the referred to in House Resolution 176. prerogative of the House to It is suggested that the issue thus raised on two occasions within the past originate revenue-raising year by the House of Representatives bills, the Senate entertained involves not only a parliamentary a discussion of its preroga- question but a constitutional question tive to originate bills affect- as well. ing the revenue of the Dis- Indeed, these recent House actions trict of Columbia. appear to constitute a challenge to the concept that home rule may be On Mar. 16, 1953,(7) the prerogative achieved in the District of Columbia by of the Senate to originate bills affect- means short of a constitutional amending the revenue of the District of Co- ment. lumbia was discussed. The issue of whether such legislation MR. [ROBERT C.] HENDRICKSON [of can originate in the Senate was one as- New Jersey]: Mr. President, on Mon- pect of the routine analyses the Repub- day, March 9, the Senate passed by lican calendar committee gave to these unanimous consent Senate Joint Reso- bills. Their consideration of the bills lution 52, which was thereafter trans- included a routine discussion of the mitted to the House. This resolution parliamentary question with the Par- appropriated $17,000 out of the gen- liamentarian of the Senate, Mr. eral fund of the District of Columbia Charles L. Watkins. He stated that ar- for the operation of the Office of Rent ticle I, section 7 of the Constitution Control in the District of Columbia. does not apply to such bills. He rea- On March 12 the House passed soned that the bills do not contemplate House Resolution 176, returning Sen- the raising of Federal revenue; that ate Joint Resolution 52 to the Senate they are limited in their application to on the ground that it ‘‘contravenes the the District of Columbia; and that, as first clause of the seventh section of such, like any other bill affecting the the first article of the Constitution and District, the Senate may initiate such is an infringement of the privileges of legislation.... this House.’’ Article I, section 7, paragraph 1, of I invite the attention of the Senate the Constitution provides as follows: to a similar situation which obtained during the 82d Congress. On May 7, All bills for raising revenue shall 1952, the Senate considered and originate in the House of Represent- passed S. 2703 which would increase atives; but the Senate may propose or concur with amendments as on the District of Columbia gasoline tax other bills. from 4 to 5 cents per gallon. At that time the House refused to consider S. Article I, section 8, paragraph 17, 2703, also on the ground that it con- provides Congress with power— To exercise exclusive legislation in 7. 99 CONG. REC. 1978, 1979, 83d Cong. all cases whatsoever, over such dis- 1st Sess. trict (not exceeding 10 miles square)

1886 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 20

as may, by cession of particular House version was the one which was States, and the acceptance of Con- ultimately enacted. The court in that gress, become the seat of the Govern- case threw out the statute as being un- ment of the United States. constitutional, since prior to enactment It is well established that the var- it had a Senate number—S. 1107. The ious provisions of the Constitution question became moot because of the must be harmonized. enactment shortly thereafter of a revenue bill which dealt with the problem In expounding the Constitution of the United States every word must of cotton futures. have its due force, and appropriate It will be recalled that some years meaning; for it is evident from the ago the Congress provided by statute whole instrument, that no word was for the establishment of local govern- unnecessarily used, or needlessly ment in the District of Columbia. The added. The many discussions which have taken place upon the construc- legislative body of that government tion of the Constitution, have proved passed revenue and appropriation the correctness of this proposition; measures. In this connection, attention and shown the high talent, the cau- is directed to an 1885 decision in the tion, and the foresight of the illus- case of the District of Columbia v. trious men who framed it. Every Waggaman (4 Mackey 328). The fol- word appears to have been weighed with the utmost deliberation, and its lowing is quoted from that decision: force and effect to have been fully We have to consider first, then, understood. (Holmes v. Jennison the validity of the act of the legisla- ((1840) 14 Peters 540, 570); see also tive assembly which imposed this tax Cohens v. Virginia ((1821) 6 Wheat on commissions earned by real-es- 264).) tate agents, and required a semi- annual return of those commissions There is no conflict whatever be- and a bond to secure the perform- tween the two provisions of the Con- ance of these and other acts pre- stitution cited above, and where Con- scribed by law. gress exercises exclusive legislative In Roach v. Van Riswick (7 Wash. power over the District of Columbia, L. Rep., 496), this court held that the article I, section 7, of the Constitution very broad terms in which the organic act of 1870 granted legislative does not apply. powers to the legislative assembly Only one case comes to hand that had the effect to clothe that body construes article I, section 7 of the with only such powers as might be Constitution. In Hubbard v. Lowe given to a municipal corporation, ((1915) 226 Fed. 135), the District and that it was not competent for Congress to delegate the larger pow- Court for the Southern District of New ers of general legislation which it York had before it a challenge to the had itself received from the Con- validity of a statute dealing with constitution. We are still satisfied with tracts for cotton futures. A bill which that decision; but we hold, on the originated in and passed the Senate other hand, that the provision recalled for their exclusion from the ferred to had the effect to bestow every power of municipal legislation mails. The House struck out all after which could be given to a municipal the enacting clause and inserted a sub- corporation, and especially the power stitute by way of a prohibitive tax. The of taxation and implied or included

1887 Ch. 13 § 20 DESCHLER’S PRECEDENTS

power to provide measures by which body can pass valid revenue legislation taxes may be enforced and collected. for the District of Columbia, it appears Section 49 of the organic act pro- equally clear that the Senate of the vided that ‘‘the legislative power of the District shall extend to all right- United States has authority to initiate ful subjects of legislation within the a revenue bill concerning the District District, consistent with the Con- of Columbia. That conclusion certainly stitution of the United States and would be consistent with the Senate’s the provisions of this title’’; and section 57 provided that ‘‘the legislative share of responsibility in exercising ex- assembly shall not have power to tax clusive legislative power over the Dis- the property of the United States, trict under article I, section 8, para- nor to tax the lands or other prop- graph 17, of the Constitution. erty of nonresidents higher than the lands or other property of residents.’’ There is a further aspect to the issue raised by the House last week in con- The court referred to the legal ten- nection with Senate Joint Resolution der cases and then went on to state 52. This is the question whether an ap- that ‘‘the general grant of power to leg- propriation bill comes within the pur- islate on all rightful subjects, and so view of article I, section 7, paragraph 1 forth, is by inclusion, an express grant of the Constitution, relating to the of power to legislate on this subject of taxation, except as limited in section raising of revenue. However, the issue 57.’’ There is another case which bears of whether a general appropriation bill on the subject, namely, Welsh v. Cook may originate in the Senate, notwith- (97 U.S. 541, 542) [1879]. standing long established custom to It can thus be seen that a local legis- the contrary, warrants much fuller dis- lative body in the District of Columbia cussion than will here be made. As a was given authority to enact revenue Member of the Senate, I categorically legislation affecting the District of Co- dispute the House’s contention in re- lumbia; that pursuant to such author- spect to Senate Joint Resolution 52. ity that local legislative body enacted such revenue legislation; and the cited The Senate did not take further cases established judicial sanction for action on Senate Joint Resolution such enactment. If a local legislative 52.

D. CONGRESS AND THE BUDGET; IMPOUNDMENT § 21. In General; Congres- Legislative Reorganization Act of sional Budget Act 1946. Under this procedure, the House Committee on Ways and Concern about escalating fed- Means and Committee on Appro- eral spending immediately after priations, and the Senate Com- World War II resulted in enact- mittee on Finance and Committee ment of a budget procedure in the on Appropriations or their sub- 1888 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 21 committees were required to meet mained fragmented throughout jointly, report out a legislative the Congress. Both taxing and budget, and submit a concurrent spending actions were taken over resolution adopting the budget.(8) a period of many months and by This procedure was designed to way of many different legislative coordinate revenue with expendi- measures. The size of the budget, and whether it should be in sur- tures and thereby more readily plus or deficit, were not subject to (9) identify and limit deficits. effective controls. The budget However, until the adoption of process was, in fact, merely the the Congressional Budget and Im- sum of dozens of isolated and usu- poundment Control Act of 1974, ally unrelated actions. Backdoor the Congress lacked a comprehen- spending—that is, spending out- sive uniform mechanism for estab- side the regular appropriation lishing priorities among its budg- process—represented a significant etary goals and for determining percentage of all spending. And national economic policy regarding outlays (that is, actual expendi- the federal budget. Despite peri- tures) were not always controlled by Congress, since congressional odic efforts to centralize budget budget actions often reached only authority in appropriations com- to the authority to obligate funds, mittees, budget responsibility re- resulting in little direct relation- 8. See § 21.2, infra, for an illustration ship in some cases between con- of this concurrent resolution. gressional budget actions and ac- 9. For discussion of the role of Congress tual expenditures in any given in the budget process, see, Fenno, year. Richard F., Jr., The Power of the In 1972, the Congress estab- Purse, Little, Brown and Co., Inc. lished a Joint Study Committee (1966); Pressman, Jeffrey L., House on Budget Control and directed it v Senate, Yale University Press, to study: New Haven, Conn. (1966); Wallace, Robert Ash, Congressional Control of . . . [T]he procedures which should be adopted by the Congress Federal Spending, Wayne State Uni- for the purpose of improving congres- versity Press, Detroit, Mich. (1960). sional control of budget outlay and This section has been compiled by receipt totals, including procedures Norah Schwarz, J.D., and has been for establishing and maintaining an drawn in part from a report of the overall view of each year’s budgetary outlays which is fully coordinated House Committee on the Budget en- with an overall view of anticipated titled ‘‘The Congressional Budget revenues for that year.(10) and Impoundment Control Act of 1974: A General Explanation,’’ No- 10. Pub. L. No. 92–599, 92d Cong. 2d vember 1974. Sess.

1889 Ch. 13 § 21 DESCHLER’S PRECEDENTS

The joint committee issued its Title VIII provides for standardiza- (11) tion of budget terminology and avail- final report in April 1973, and ability of information to Congress, legislation was introduced in both while title IX sets out the effective Houses to implement the report’s date for various provisions of the Act. recommendations, including the Title X establishes procedures for addition of anti-impoundment pro- congressional review of Presidential cedures. Both Houses overwhelm- impoundment actions. ingly approved the measure, which became known as the Con- Budget Committees gressional Budget and Impound- The Act establishes a new ment Control Act of 1974 (herein- standing committee in each House after referred to as ‘‘the Act’’). The known as the Committee on the bill was signed into law July 12, Budget. The rules of the House 1974, as Public Law No. 93–344. were amended to provide for the Committee on the Budget and Summary of the Act membership thereon.(13) The (12) The Act consists of 10 titles House Budget Committee was which, for purposes of expla- originally composed of 23 mem- nation, can be grouped into cat- bers: five from the Committee on egories (to be discussed more fully Appropriations, five from the below), as follows: Committee on Ways and Means, Title I and title II established new committees on the budget in both 11 from other House standing the House and the Senate, and a committees and one member each Congressional Budget Office de- from the majority and minority signed to improve Congress’ informa- ( ) tional and analytical resources with leadership. 14 Membership on this respect to the budgetary process. committee was increased to 25, Title III and title IV set forth a pursuant to a resolution of the timetable and new procedures for ( ) various phases of the congressional House 15 which provided for 13 budget process. Title V provides for a members to be elected from other new fiscal year. Title VI spells out the information standing committees of the House. to be included in the President’s budget submissions and amends sec- 13. This committee was established pur- tion 201 of the 1921 Budget and Ac- suant to the Act (§ 101) in the 93d counting Act to so provide. The procedures for program review and eval- Congress effective July 12, 1974 (88 uation are explained in title VII. Stat. 299). 14. Rule X clause I(e)1, House Rules and 11. See 119 CONG. REC. 13162, 13163, Manual (1975). 93d Cong. 1st Sess., Apr. 18, 1973. 15. H. Res. 5, 121 CONG. REC. 20–22, 12. See 31 USC §§ 1301 et seq. 94th Cong. 1st Sess., Jan. 14, 1975.

1890 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 21

Budget Timetable process, prescribing the actions to ( ) Title III of the Act 16 estab- take place at each stage under the lishes a timetable for various phases of the congressional budget new procedure:

On or before Action to be completed

November 10 ...... President submits current services budget. 15th day after Congress meets President submits his budget. March 15 ...... Committees and joint committees submit reports to Budget Committees. April 1...... Congressional Budget Office submits report to Budget Committees. April 15 ...... Budget Committees report first concurrent resolution on the budget to their Houses. May 15 ...... Committees report bills and resolutions authorizing new budget authority. May 15 ...... Congress completes action on first concurrent resolution on the budget. 7th day after Labor Day ...... Congress completes action on bills and resolutions providing new budget authority and new spending authority. September 15 ...... Congress completes action on second required concurrent resolution on the budget. September 25 ...... Congress completes action on reconciliation bill or resolution, or both, implementing second required concurrent resolution. October 1 ...... Fiscal year begins.

November 10: Current Services the budget for the forthcoming Budget year. Budget projections are then The first element in the time- made by the Congressional Budg- table is the President’s submission et Office and the House and Sen- by Nov. 10 of the current services ate Budget Committees based on budget which estimates the out- the current fiscal year’s levels. To lays needed to carry on existing facilitate evaluation of the Presi- programs and activities for the dent’s projections, the Joint Eco- following fiscal year. Its purpose nomic Committee is required by is to provide Congress with de- the terms of the Act (17) to report tailed information with which to to the budget committees on the begin analysis and preparation of estimates and economic assump-

16. 31 USC §§ 1321 et seq. 17. 15 USC § 1024.

1891 Ch. 13 § 21 DESCHLER’S PRECEDENTS tions on the current services first concurrent resolution on the budget. budget.(20) The purpose of these reports is 15th Day After Convening: to provide the budget committees President Submits Budget with an early and comprehensive The President’s budget is due to indication of spending plans for be submitted 15 days after Con- the coming fiscal year. The re- gress convenes.(18) This date reports contain the views and esti- mains unchanged from previous mates of the committees and joint practice. Shortly after its submis- committees on budgetary matters sion, the budget committees of within their jurisdiction, and their both Houses begin hearings on the estimates of new budget outlays President’s budget, the economic to be authorized by legislation assumptions on which it is based, within their jurisdiction during the national budget priorities, and the following fiscal year. the budget in general. Testimony is taken from Members of Con- April 1: Congressional Budget gress, administration officials, Office Submits Report to representatives of national inter- Budget Committees est groups, and the general public, The Congressional Budget Of- such as the committee deem fit.(19) fice is required to submit its re- March 15: Committee Reports port to the budget committees on ( ) Submitted to Budget Commit- or before Apr. 1. 21 This report is tees primarily concerned with alternative budget levels and national A new aspect of the budget budget priorities. It is the first of process is the requirement that several required of the Congres- each of the standing committees of the House and Senate submits sional Budget Office. It is most its recommendations on the pro- significant, however, in that it is posed budget as viewed by the timed for use in the budget com- particular committee. These views mittees’ deliberations on the first are given to the budget commit- concurrent resolution on the budg- tees of the House or Senate and et, particularly with respect to are due on Mar. 15, one month committee discussions of national prior to the reporting date of the budget priorities.

18. 31 USC § 1321. 20. 31 USC 1322(c). 19. 31 USC § 1322(d). 21. 31 USC § 1321.

1892 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 21

April 15: First Concurrent Res- et. It also identifies recommended olution Reported sources of revenues, makes five- year budget projections, and spells The budget committees must re- out the economic assumptions and port the first concurrent resolu- objectives of the resolution.(4) tion on the budget to Congress by The Act provides special proce- ( ) Apr. 15. 1 This allows each House dures for House consideration of a maximum of one month for floor budget resolutions and conference consideration, conferences, and reports on such resolutions. The the adoption of conference re- Act also provides for important ports.(2) material to be included in the The first concurrent resolution joint statement of managers ac- on the budget provides estimates companying the conference report. The joint statement must dis- and preliminary budget targets tribute the allocations of total for fiscal year beginning on Oct. 1. budget authority and outlays con- It must set forth: (1) the appro- tained in the resolution among priate level of total budget outlays the appropriate committees. For and of total new budget authority; example, if the conference report (2) an estimate of budget outlays allocates $7 billion in budget au- and an appropriate level of new thority and $6 billion in outlays budget authority in various cat- for the functional category ‘‘Com- egories; (3) the amount, if any, of munity and Regional Develop- appropriate budget surplus or def- ment,’’ the statement of managers icit; and (4) the recommended must divide those amounts among the various committees with juris- level of federal revenues and the diction over programs and au- amount, if any, by which the ag- thorities covered by that func- gregate level of federal revenues tional category. Each committee to should be increased or decreased which an allocation is made must, by bills and resolutions to be re- in turn, further subdivide its allo- ported by the appropriate commit- cation among its subcommittees or tees.(3) programs. The report of the budget committee on the resolution compares May 15: Reporting New Budget its revenue estimates and outlay Authority; Completion of Ac- levels with the estimates and tion on First Concurrent Res- amounts in the President’s budg- olution May 15 is the deadline for com- 1. 31 USC § 1321. mittees to report legislation au- 2. 31 USC § 1322(d). 3. 31 USC § 1322. 4. 31 USC § 1322(d).

1893 Ch. 13 § 21 DESCHLER’S PRECEDENTS thorizing new budget authority.(5) Debate on the conference report It is also the deadline for the on the resolution is limited to five adoption of the first budget reso- hours.(10) lution by Congress.(6) Consideration of bills or resolu- Seventh Day After Labor Day; tions authorizing new budget au- Action on Measures Pro- thority reported after May 15 is viding New Budget or Spend- permitted in the House only if an ing Authority emergency waiver reported by the Committee on Rules is adopted.(7) The seventh day after Labor The Budget Act sets forth spe- Day is the recommended deadline cial procedures by which the for completing action on regular House is to consider budget reso- budget authority and entitlement ( ) lutions and conference reports re- bills. 11 The only exception to this lating thereto. Such resolutions requirement is for appropriation are initially considered in the bills whose consideration has been Committee of the Whole. General delayed because necessary author- debate is limited to 10 hours, and izing legislation has not been motions to further limit debate timely enacted.(12) are not debatable. Under the The Congressional Budget Of- original statute, the resolution fice issues periodic reports on the was read for amendment under status of measures providing new ( ) the five-minute rule by sections. 8 budget authority and revenue and After the Committee of the debt legislation.(13) Whole has reported the resolution to the House, the previous ques- September 15, 25; Action on tion is considered as ordered on Second Concurrent Resolu- the resolution and amendments tion thereto to final passage without intervening motion. The only Sept. 15 and 25 are the dates amendment in order under the for the adoption of the second res- Act prior to final passage is one olution and completion of the rec- effecting changes necessary to onciliation process, the final legis- achieve mathematical consist- lative phase of the new budget ency.(9) process under the Act.(14)

5. 31 USC § 1352. 10. Id. 6. 31 USC § 1322. 11. 31 USC § 1330. 7. 31 USC § 1352. 12. Id. 8. 31 USC § 1326. 13. 31 USC § 1329. 9. Id. 14. 31 USC § 1331.

1894 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 21

The completion of reconciliation measure that would reduce total actions on Sept. 25 brings the revenues below the levels in the budget timetable to within five resolution.(17) days of the new fiscal year—Oct. It should be pointed out, how- 1. ever, that Congress may adopt a The importance of the timely revision of its most recent resolu- completion of this phase of the tion at any time during the fiscal budget process is underlined by year. In addition to the May and the provision of the Act which September resolutions, Congress states that Congress may not ad- may adopt at least one additional journ sine die unless such action resolution each year, either in is completed.(15) conjunction with a supplemental The second resolution reflects appropriations bill or in the event changed economic circumstances, of sharp revisions in revenue or spending estimates brought on by taking into consideration the major changes in the economy.(18) spending authority exercised by Congress and the matters con- Program Review and Evalua- tained in the first resolution, tion namely the ‘‘target’’ levels of budget authority and outlays, The budget committees of the total revenues, and the public- House and Senate are directed to debt limit. In addition, the com- study budget proposals, including mittees with jurisdiction over the program analysis and evaluation and time limits on program au- recommended changes are di- thorizations.(19) These committees rected to determine and rec- also make continuing studies of ommend such changes to the (16) ‘‘off budget’’ agencies and periodi- House. cally report their findings and rec- After adoption of the second res- ommendations. An ‘‘off budget’’ olution and completion of the rec- agency is an agency of the federal onciliation process, it is not in government which is exempt from order in either House to consider the President’s budget under the any new spending legislation that Budget and Accounting Act of would cause the aggregate levels 1921, section 201.(20) of total budget authority or outlays adopted in that resolution to 17. 31 USC § 1332. be exceeded, nor to consider a 18. 11. Rept. No. 93–658, 93d Cong. 1st Sess. (1973). 15. Id. 19. 31 USC § 1303. 16. Id. 20. 31 USC 11b.

1895 Ch. 13 § 21 DESCHLER’S PRECEDENTS

Impoundment Controls Rescissions must be proposed by Impoundment control is a com- the President whenever he deter- panion feature of the new budget mines that (1) all or part of any control system. In the words of budget authority will not be need- the House Committee on Rules’ ed to carry out the full objectives report on the budget reform legis- of a particular program; (2) budg- lation: et authority should be rescinded One without the other would leave for fiscal reasons; or (3) all or part the Congress in a weak and ineffective of budget authority provided for position. No matter how prudently only one fiscal year is to be re- Congress discharges its appropriations served from obligation for that responsibility, legislative decisions year. In such cases, the President have no meaning if they can be unilaterally abrogated by executive impound- is to submit a special message to ments. On the other hand, if Congress the Congress requesting rescission appropriates funds without full aware- of the budget authority, explain- ness of the country’s fiscal condition, ing fully the circumstances and its actions may be used by the Presi- reasons for the proposed action. dent to justify [his] withholding of funds. By joining budget and impound- Unless both Houses of the Con- ment control in a complete overhaul of gress complete action on a rescis- the budget process [the bill], seeks to sion bill within 45 days of the assure that the power of appropriation President’s submission, the budget assigned to the Congress is responsibly authority must be made available and effectively exercised.(21) for obligation.(3) Impoundment is a term used to Deferrals must be proposed by describe situations wherein the the President whenever any exec- executive branch declines to enter utive action or inaction effectively into obligations or commitments precludes the obligation or ex- for the full amount of funds ap- penditure of budget authority. In propriated therefor by Congress.(1) such cases, the President is to The statute recognizes two submit a special message to the types of impoundment actions by Congress recommending the defer- the executive branch: rescissions ral of that budget authority. The and deferrals.(2) President is required to make 21. H. Rept. No. 93–658, 93d Cong. 1st such budget authority available Sess. (1973). for obligation if either House 1. Levinson and Mills, Budget Reform passes an ‘‘impoundment resolu- and Impoundment Control, 27 Vand. tion’’ disapproving the proposed L. Rev. 615 (1974). 2. 31 USC §§ 1400 et seq. 3. 31 USC § 1402.

1896 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 21 deferral at any time after receipt thority and borrowing authority of the special message.(4) legislation, to be in order for con- Rescission and deferral mes- sideration in either House, must sages are also to be transmitted to contain a provision that such new the Comptroller General who authority is to be effective only to must review each message and the extent or in such amounts as advise the Congress of the facts are provided in appropriations surrounding the action and its acts. In this manner, the Act pro- probable effects. In the case of de- hibits the consideration of bills ob- ferrals, he must state whether the ligating certain types of new gov- deferral is, in his view, in accord- ernment spending in advance of ance with existing statutory au- the appropriations process. The thority.’’ (5) Speaker has ruled, however, that If budget authority is not made such prohibition may be waived available for obligation by the by a resolution reported as privi- President as required by the im- leged from the Committee on poundment control provisions, the Rules. The Speaker’s ruling, on Comptroller General is authorized Mar. 20, 1975,(7). was based on the to bring a civil action to bring fact that the provisions of the Act about compliance. However, such in question were intended to state action may not be brought until a rule of proceeding, and could 25 days after the Comptroller therefore be waived or changed by General files an explanatory the House at any time pursuant statement with the House and to its constitutional authority to ( ) Senate. 6 ‘‘determine the Rules of its Pro- ceedings.(8) ‘‘Backdoor’’ Spending The provisions of the Act de- Under the Act new procedures scribed above do not apply to con- were established for the enact- tract or borrowing authority in ef- ment of contract and borrowing fect prior to January 1976, unless authority in order to promote a specifically implemented earlier, more comprehensive and con- pursuant to section 906 of the sistent control over spending ac- Act.(9) tions. The Act states that effective January 1976, new contract au- 7. 121 CONG. REC. 7677, 94th Cong. 1st Sess., Mar. 20, 1975 (ruling by 4. 31 USC § 1403. Speaker Carl Albert [Okla.]). 5. 31 USC § 1404. 8. U.S. Const. art. I, section 5. 6. 31 USC § 1406. 9. See 31 USC § 1351.

1897 Ch. 13 § 21 DESCHLER’S PRECEDENTS

Legislative Reorganization Act Be it enacted by the Senate and of 1946 House of Representatives of the United States of America in Congress assem- § 21.1 The House and Senate bled,

agreed to a provision of the SHORT TITLE Legislative Reorganization That (a) this Act, divided into titles Act of 1946 which authorized and sections according to the following certain House and Senate table of contents, may be cited as the committees to meet jointly, ‘‘Legislative Reorganization Act of report out a legislative budg- 1946’’: . . .

et, and submit a concurrent LEGISLATIVE BUDGET resolution adopting the budget. This provision was Sec. 138. (a) The Committee on Ways and Means and the Committee repealed by the Legislative on Appropriations of the House of Rep- Reorganization Act of 1970. resentatives, and the Committee on Fi- On July 25, 1946, the House by nance and the Committee on Appro- voice vote agreed to (10) and on priations of the Senate, or duly author- July 26, 1946, the Senate by voice ized subcommittees thereof, are au- vote concurred in,(11) a House sub- thorized and directed to meet jointly at stitute to S. 2177, the Legislative the beginning of each regular session Reorganization Act of 1946. Sec- of Congress and after study and consultation, giving due consideration to tion 138 of the substitute directed the budget recommendations of the certain Senate and House commit- President, report to their respective tees to meet jointly, report out a Houses a legislative budget for the en- legislative budget, and submit a suing fiscal year, including the esti- concurrent resolution adopting the mated over-all Federal receipts and ex- budget. The text of the provision penditures for such year. Such report follows:(12) shall contain a recommendation for the maximum amount to be appropriated 10. 92 CONG. REC. 10047, 10051–53, for expenditure in such year which 10075, 10077–80, 10104, 79th Cong. shall include such an amount to be re- 2d Sess. served for deficiencies as may be 11. Id. at p. 10152. See also 92 CONG. deemed necessary by such committees. REC. 6442 (text of section 130, the If the estimated receipts exceed the es- budget provision of the Senate bill), timated expenditures, such report shall and 6577, 6578 (vote), 79th Cong. 2d contain a recommendation for a reduc- Sess., June 7, and June 10, 1946, re- tion in the public debt. Such report spectively. shall be made by February 15. 12. This excerpt is taken from 60 Stat. (b) The report shall be accompanied 812, 832, 833 (Pub. L. No. 79–601). by a concurrent resolution adopting It was codified as 2 USC § 190e. such budget, and fixing the maximum

1898 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 21

amount to be appropriated for expendi- agreed to Senate Concurrent Res- ture in such year. If the estimated ex- olution 42, expressing the sense of penditures exceed the estimated receipts, the concurrent resolution shall Congress as to the amount of rev- include a section substantially as fol- enues and expenditures for fiscal lows: ‘‘That it is the sense of the Con- year 1949. gress that the public debt shall be in- Resolved by the Senate (the House of creased in an amount equal to the Representatives concurring), That it is amount by which the estimated expenditures for the ensuing fiscal year the judgment of the Congress, based exceed the estimated receipts, such upon presently available information, amount being $ .’’ that revenues during the period of the fiscal year 1949 will approximate Section 138 was repealed by ap- $47,300,000,000 and that expenditures proval of the Legislative Reorga- during such fiscal year should not ex- nization Act of 1970.(13) ceed $37,200,000,000, of which latter amount not more than $26,600,000,000 Concurrent Resolution would be in consequence of appropriations hereafter made available for obli- § 21.2 Pursuant to the Legisla- gation in such fiscal year. tive Reorganization Act of Senate Concurrent Resolution 1946, the Senate and House 42 was considered under a special agreed to a concurrent reso- order of the Committee on Rules lution expressing the judg- (H. Res. 485), which provided for ment of Congress regarding consideration in the Committee of levels of revenues and ex- the Whole and waiver of all points penditures for the fiscal year of order. After general debate, 1949. which was confined to the concur- On Feb. 18, 1948, the Senate by rent resolution and limited to two voice vote,(14) and on Feb. 27, hours, the concurrent resolution 1948, the House by a vote of 315 was considered as having been yeas, 36 nays, 79 not voting,(15) read for amendment.

13. 84 Stat. 1140, 1172 [see 2 USC § 242 276 nays, not voting 81, a motion to (b) (1970)]. recommit it to the Joint Committee 14. 94 CONG. REC. 1398, 1399, 1408, on the Legislative Budget with in- 80th Cong. 2d Sess. structions to strike out expenditures 15. Id. at pp. 1875, 1885–87. The House agreed to this concurrent resolution of $37.2 billion and insert in lieu after rejecting by a vote of 73 yeas, thereof $36.7 billion.

1899 Ch. 13 § 22 DESCHLER’S PRECEDENTS

E. RELATIONS WITH EXECUTIVE BRANCH § 22. In General; Con- On Dec. 6, 1973,(17) after adopt- firmation of Nomination ing House Resolution 738 (the rule for consideration which for Vice President waived the three-day layover requirement), the House by voice Amendment 25, section 2, of the vote agreed to House Resolution Constitution (16) provides: 735, confirming the nomination of Mr. Gerald R. Ford to be Vice Whenever there is a vacancy in the President, pursuant to the 25th office of the Vice President, the Presi- amendment. dent shall nominate a Vice President who shall take office upon confirmation MR. [JAMES J.] DELANEY [of New York]: Mr. Speaker, by direction of the by a majority vote of both Houses of Committee on Rules I call up House Congress. Resolution 738 and ask for its imme-

diate consideration. The Clerk read the resolution as follows: Gerald R. Ford H. RES. 738 § 22.1 After adopting a rule Resolved, That upon the adoption of this resolution it shall be in order which waived the three-day to move, clause 27(d) (4) of rule layover requirement for com- XI (18) to the contrary notwith- mittee reports and provided standing, that the House resolve itself into the Committee of the for Committee of the Whole Whole House on the State of the consideration under general Union for the consideration of the resolution (H. Res. 735) confirming debate, the House agreed to the nomination of Gerald R. Ford, of a resolution confirming the the State of Michigan, to be Vice nomination of House Minor- President of the United States. After general debate, which shall be con- ity Leader Gerald R. Ford, of fined to the resolution and shall con- Michigan, as Vice President tinue not to exceed six hours, to be equally divided and controlled by the of the United States, pursu- chairman and ranking minority ant to the 25th amendment, member of the Committee on the Ju- and then received a message diciary, the Committee shall rise and report the resolution to the House, announcing the Senate’s confirmation of the nomination. 17. 119 CONG. REC. 39807, 39812, 39813, 39899, 93d Cong. 1st Sess. 16. See House Rules and Manual § 282c 18. House Rules and Manual § 735(d)(4) (1973). (1973).

1900 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 22

and the previous question shall be The vote was taken by electronic de- considered as ordered on the resolu- vice, and there were—yeas 389, nays tion to final passage. 15, not voting 29, as follows: . . . THE SPEAKER: (19) The gentleman The result of the vote was an- from New York is recognized for 1 nounced as above recorded. hour. A motion to reconsider was laid on MR. DELANEY: Mr. Speaker, I yield the table. 30 minutes of that hour to the gen- MR. [PETER W.] RODINO [Jr., of New tleman from Illinois (Mr. Anderson) Jersey]: Mr. Speaker, I move that the pending which I now yield myself such House resolve itself into the Com- time as I may consume. mittee of the Whole House on the Mr. Speaker, this resolution makes State of the Union for the consider- in order consideration of House Resolu- ation of the resolution (H. Res. 735) tion 735, a simple resolution providing confirming the nomination of Gerald R. for the confirmation of the Honorable Ford, of the State of Michigan, to be Gerald R. Ford of the State of Michi- Vice President of the United States. gan to be Vice President of the United THE SPEAKER: The question is on the States. The resolution provides for 6 motion offered by the gentleman from hours of general debate. It also pro- New Jersey (Mr. Rodino). vides that points of order against The motion was agreed to.... clause 27(d)(4) of rule XI of the Rules MR. RODINO: Mr. Chairman, I have of the House of Representatives be no further requests for time. waived. That simply means that we MR. [EDWARD] HUTCHINSON [of are waiving the 3-day rule. Michigan]: Mr. Chairman, I have no Mr. Speaker, I urge adoption of further requests for time. House Resolution 738 in order that we THE CHAIRMAN: (1) Under the rule may discuss and debate House Resolu- the Committee rises. tion 735.... Accordingly the Committee rose; and THE SPEAKER: The question is on the the Speaker having resumed the chair, resolution. Mr. Patman, Chairman of the Com- The question was taken; and the mittee of the Whole House on the Speaker announced that the ayes ap- State of the Union, reported that that peared to have it. Committee, having had under consid- MS. [ELIZABETH] HOLTZMAN [of New eration the resolution (H. Res. 735) York]: Mr. Speaker, I object to the vote confirming the nomination of Gerald R. on the ground that a quorum is not Ford, of the State of Michigan, to be present and make the point of order Vice President of the United States, that a quorum is not present. pursuant to House Resolution 738, he THE SPEAKER: Evidently a quorum is reported the resolution back to the not present. House. The Sergeant at arms will notify ab- THE SPEAKER: Under the rule, the sent Members. previous question is ordered.

19. Carl Albert (Okla.). 1. Wright Patman (Tex.).

1901 Ch. 13 § 22 DESCHLER’S PRECEDENTS

The question is on the resolution. Buckley v Valeo; Effect on Con- MR. HUTCHINSON: Mr. Speaker, on gressional Appointment Au- that I demand the yeas and nays. The yeas and nays were ordered. thority The vote was taken by electronic device, and there were—yeas 387, nays § 22.2 Parliamentarian’s Note: 35, not voting 11, as follows: . . . In reviewing the Federal So the resolution was agreed to.(2) Election Campaign Act Following this action, the House Amendments of 1974 (Pub. L. received a message from the Sen- No. 93–443, 83 Stat. 1263), the ate announcing that body’s con- United States Supreme Court ( ) firmation. 3 held that the procedure for A further message from the Senate appointing members of the by Mr. Arrington, one of its clerks, announced that the Senate did, on No- Federal Election Commission vember 27, 1973, pursuant to section 2 by the Speaker of the House of the 25th amendment to the Con- and President pro tempore of stitution of the United States, confirm the Senate violated article II, the nomination of the Honorable Ger- ald R. Ford of Michigan to be Vice section 2, clause 2, the Ap- President of the United States.(4) pointments Clause, which provides that the President 2. President Nixon’s nomination was referred to the Committee on the Ju- shall nominate, and with the diciary, chaired by Mr. Rodino, on advice and consent of the Oct. 13, 1973 (119 CONG. REC. Senate, appoint all ‘‘Officers 34032, 93d Cong. 1st Sess.). That of the United States.’’ In committee reported out H. Res. 735 reaching this holding, the (H. Rept. No. 93–695) on Dec. 4, Court found that members of 1973 (119 CONG. REC. 39419, 93d Cong. 1st Sess.). the commission were ‘‘Offi- See also 120 CONG. REC. 41516, cers of the United States’’ 41517, 93d Cong. 2d Sess., Dec. 19, whom only the President 1974, for House approval, 287 yeas could nominate and, with the to 128 nays, of H. Res. 1511, con- advice and consent of the firming the nomination of Nelson A. Senate, appoint. This finding Rockefeller to be Vice President, and was based on the fact that 120 CONG. REC. 38936, 93d Cong. 2d Sess., Dec. 10, 1974, for Senate ap- the Federal Election Com- proval, 90 yeas to 7 nays, of this mission was granted not only nomination. investigatory and informa- 3. 119 CONG. REC. 39900, 93d Cong. 1st tion-gathering functions Sess., Dec. 6, 1973. 4. See 119 CONG. REC. 38225. 93d Senate confirmation by a vote of 92 Cong. 1st Sess., Nov. 27, 1973, for yeas, 3 nays.

1902 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 23

which may constitutionally crease efficiency; group, coordi- be exercised by Congress, nate, and consolidate agencies; re- but also rulemaking and en- duce the number of agencies by forcement powers which consolidation; and eliminate over- have been delegated to other lapping and duplication of ef- branches of government. The fort.(6) These purposes could be Speaker and President pro achieved by transferring all or tempore may appoint mem- part of an agency or the function bers to commissions whose thereof to another agency; abol- authority is restricted to in- ishing all or part of the functions vestigation and information- of an agency; consolidating or co- gathering. Buckley v Valeo, ordinating the whole or part of an 424 U.S. 1 (1976). agency with another agency or the same agency; authorizing an officer to delegate any of his func- § 23. Executive Reorga- tions; or abolishing the whole or nization Plans part of an agency which did not have or would not, as a con- The President was, prior to sequence of the reorganization, 1973, authorized to reorganize an have any functions.(7) Under this agency or agencies of the execu- statute a reorganization plan tive department if he submitted a could not create, abolish, or trans- plan to each House of Congress. A fer an executive department or provision contained in a reorga- consolidate two or more executive nization plan could take effect departments. only if the plan was transmitted A reorganization plan accom- before Apr. 1, 1973,(5) since the panied by a declaration that the authority of the President to reorganization was necessary to transmit reorganization plans had accomplish a recognized purpose not been extended beyond that must be delivered to both Houses date. A reorganization could be or- on the same day and to each dered to promote better execution House while in session.(8) A plan of laws; reduce expenditures; in- 6. 5 USC § 901. 5. 5 USC § 903, 5 USC § 905(b). Reorga- 7. 5 USC § 903. See also 5 USC § 904, nization authority was again ex- for other provisions of, and 5 USC tended, with certain procedural § 905, for limitations on, reorganiza- changes, in the 95th Congress. Pub. tion plans. L. No. 95–17. 8. 5 USC § 903(a), (b), 5 USC § 905(b).

1903 Ch. 13 § 23 DESCHLER’S PRECEDENTS submitted before Apr. 1, 1973, of the committee and procedure would become effective at the end for debate is clearly stated: of the first period of 60 calendar (a) When the committee has re- days of continuous congressional ported, or has been discharged from session after the transmittal date further consideration of, a resolution unless, during that period, either with respect to a reorganization plan, House passed a resolution stating it is at any time thereafter in order (even though a previous motion to the in substance that it did not favor same effect has been disagreed to) to ( ) the plan. 9 move to proceed to the consideration of As an exercise of the rule- the resolution. The motion is highly making power of the Senate and privileged and is not debatable. An House of Representatives and amendment to the motion is not in order, and it is not in order to move to with full recognition of the con- reconsider the vote by which the mo- stitutional right of either House to tion is agreed to or disagreed to. change its rules,(10) Congress pro- (b) Debate on the resolution shall be vided for the form of resolutions limited to not more than 10 hours, disapproving reorganization which shall be divided equally between plans,(11) reference of such resolu- those favoring and those opposing the resolution. A motion further to limit (12) tions to committees, discharge debate is not debatable. An amend- of committees considering such ment to, or motion to recommit, the resolution after 20 days,(13) as resolution is not in order, and it is not well as procedure after report or in order to move to reconsider the vote discharge of committee and debate by which the resolution is agreed to or disagreed to. on such resolutions.(14) The procedure after reporting or discharge Congress a]so provided that motions to postpone relating to such 9. 5 USC § 906. The form of the resolu- resolutions, or to proceed to other tion is outlined in 5 USC § 909. business, should be decided with- Congress could accelerate the ef- out debate.(15) Appeals from deci- fective date; see §§ 23.33, 23.34, sions of the Chair applying House infra, for a discussion of House and Senate approval of a joint resolution or Senate rules to the consider- to accelerate a reorganization plan ation of resolutions disapproving establishing the Department of reorganization plans were also to Health, Education, and Welfare. be decided without debate.(16) 10. 5 USC § 908. Most of the precedents in this 11. 5 USC § 909. section discuss substantive as- 12. 5 USC § 910. 13. 5 USC § 911. 15. 5 USC § 913. 14. 5 USC § 912. 16. Id.

1904 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 23 pects of Presidential reorganiza- 1965,(9) 1969,(10) and 1971.(11) In tion plans.(17) Congress may also addition to the above legislation, reorganize executive agencies by title I of the War Powers Act of ( ) statute. 18 1941,(12) granted the President Statutes authorizing the Presi- emergency reorganization powers dent to promulgate reorganization to make such redistribution of (1) plans were approved in 1939, functions among executive agen- 1945,(2) 1949,(3) and 1966.(4) Amendments to the major reorga- cies as he deemed necessary dur- nization acts were approved in ing World War II. ( ) ( ) ( ) ( ) 1953, 5 1957, 6 1961, 7 1964, 8

17. The exceptions are §§ 23.33–23.36, ACTION infra. See also Ch. 24, infra, for a discussion of certain procedural matters relating to resolutions of dis- § 23.1 The House by yea and approval generally and House Rules nay vote rejected a resolu- and Manual § 1013 (1975) for a com- tion disapproving a Presi- pilation of statutory ‘‘legislative veto’’ provisions. § 23.1, infra, discusses dential reorganization plan the procedure for consideration of to consolidate a number of the Presidential reorganization plan volunteer programs into one which consolidated a number of pro- agency, ACTION. grams into one agency, ACTION. 18. See House Committee on Govern- On May 25, 1971,(13) the House ment Operations, Reorganization by under the procedures prescribed Plan and by Statute, 1946–1956 (May 1957) for examples of both by the Reorganization Act of 1966, kinds of reorganization. rejected by a vote of yeas 131, 1. 53 Stat. 561, 76th Cong. 1st Sess. nays 224, not voting 77, House (Pub. L. No. 76–19). Resolution 411, disapproving Re- 2. 59 Stat. 613, 79th Cong. 1st Sess. (Pub. L. No. 79–263). organization Plan No. 1 (consoli- 3. 63 Stat. 203, 81st Cong. 1st Sess. dating a number of volunteer pro- (Pub. L. No. 81–109). 4. 80 Stat. 378, 89th Cong. 2d Sess. 9. 79 Stat. 135, 89th Cong. 1st Sess. (Pub. L. No. 89–554). Note: Title 5 of (Pub. L. No. 89–43). the United States Code includes re- 10. 83 Stat. 6, 91st Cong. 1st Sess. (Pub. organization plans. L. No. 91–5). See also Pub. L. No. 5. 67 Stat. 4, 83d Cong. 1st Sess. (Pub. 95–17. L. No. 83–3). 11. 85 Stat. 574, 92d Cong. 1st Sess. 6. 71 Stat. 611, 85th Cong. 1st Sess. (Pub. L. No. 92–179). (Pub. L. No. 85–286). 7. 75 Stat. 41, 87th Cong. 1st Sess. 12. 55 Stat. 838, 77th Cong. 1st Sess. (Pub. L. No. 87–18). (Pub. L. No. 77–354). 8. 78 Stat. 240, 88th Cong. 2d Sess. 13. 117 CONG. REC. 16803, 16804, 16832 (Pub. L. No. 88–351). 16833, 92d Cong. 1st Sess.

1905 Ch. 13 § 23 DESCHLER’S PRECEDENTS grams into one agency, ACTION, The Clerk read the title of the reso- and transmitted by the President lution. on Mar. 24, 1971). By unanimous consent, the first reading of the resolution was dis- The Chairman of the Committee pensed with. on Government Operations, Chet THE CHAIRMAN: Under the unani- Holifield, of California, moved mous consent agreement, the gen- that the House resolve itself into tleman from California (Mr. Holifield) the Committee of the Whole for will be recognized for 11⁄2 hours, and consideration of the resolution dis- the gentleman from New York (Mr. approving the plan and pro- Horton) will be recognized for 11⁄2 ceedings ensued as indicated hours. below: The Chair recognizes the gentleman from California. MR. HOLIFIELD: Mr. Speaker, I move that the House resolve itself into the Mr. Holifield described the plan Committee of the Whole House on the in the Committee of the Whole: State of the Union for the consider- Mr. Chairman, I yield myself such ation of the resolution (H. Res. 411) time as I may consume. disapproving Reorganization Plan No. Mr. Chairman, House Resolution 411 1, transmitted to the Congress by the is a resolution to disapprove Reorga- President on March 24, 1971; and pending that motion, Mr. Speaker, I nization Plan No. 1 of 1971 submitted ask unanimous consent that debate on to the Congress by President Nixon on the resolution may continue not to ex- March 24. Both the plan and the reso- ceed 3 hours, the time to be equally di- lution were referred to the Committee vided and controlled by the gentleman on Government Operations under the from New York ( Mr. Horton) and my- rules of the House. The committee has self. . . . reported back the resolution with a THE SPEAKER: (14) Is there objection recommendation that it not be ap- to the request of the gentleman from proved. This is in effect an endorse- California? ment of the plan itself which we hope There was no objection. will be supported by the House. The THE SPEAKER: The question is on the vote, however, will be on the resolution motion offered by the gentleman from itself. Those who favor the plan should California. vote ‘‘no’’ on the resolution. Those who The motion was agreed to. oppose the plan should vote ‘‘aye’’ on Accordingly the House resolved itself the resolution. into the Committee of the Whole The President proposes in the reor- House on the State of the Union for ganization plan to create a new agency the consideration of House Resolution called Action to which would be trans- 411, with Mr. [John] Brademas [of In- ferred: diana] in the chair. First, Volunteers in Service to Amer- ica, now in the Office of Economic Op- 14. Carl Albert (Okla.). portunity;

1906 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 23

Second, auxiliary and special volun- Accordingly the Committee rose; and teer programs, now in the Office of the Speaker having resumed the chair, Economic Opportunity; Mr. Brademas, Chairman of the Com- Third, Foster Grandparents, now in mittee of the Whole House on the the Department of Health, Education, State of the Union, reported that that and Welfare; Committee having had under consider- Fourth, the retired senior volunteer ation House Resolution 411, to dis- program, now in the Department of approve Reorganization Plan No. 1 of Health, Education, and Welfare; and 1971, had directed him to report the Fifth, the Service Corps of Retired resolution back to the House with the Executives and Active Corps of Execu- recommendation that the resolution be tives, both now in the Small Business not agreed to. Administration. The Clerk reported the resolution; The President intends later to trans- MR. GERALD R. FORD [of Michigan]: fer the Peace Corps to the new agency Mr. Speaker, a parliamentary inquiry. by executive order and to similarly THE SPEAKER: The gentleman will transfer the Office of Volunteer Action. state his parliamentary inquiry. The President advised in his mes- MR. GERALD R. FORD: Mr. Speaker, sage that he also intends to submit for the information of the Members of legislation to Congress to transfer the the House, is it true that a vote ‘‘aye’’ Teacher Corps from HEW to Action. on the resolution is a vote against Re- Following this description and organization Plan No. 1, and that a debate the Clerk read the resolu- vote of ‘‘nay’’ is a vote to approve the President’s reorganization plan? tion; the Committee of the Whole agreed to rise with the rec- The inquiry having been an- ommendation that the resolution swered in the affirmative, the vote of disapproval not be agreed to: was taken:

THE CHAIRMAN: The Clerk will re- THE SPEAKER: The question is on the port the resolution. resolution. The Clerk read as follows: MR. HOLIFIELD: Mr. Speaker, on that I demand the yeas and nays. H. RES. 411 The yeas and nays were ordered. Resolved, That the House of Rep- The question was taken; and there resentatives does not favor the Reor- were—yeas 131, nays 224, not voting ganization Plan Numbered 1 trans- 77, as follows: . . . mitted to the Congress by the Presi- dent on March 24, 1971. So the resolution was rejected. MR. HOLIFIELD: Mr. Chairman, I § 23.2 The Senate by yea and move that the Committee do now rise nay vote rejected a resolu- and report the resolution back to the House with the recommendation that tion disapproving a Presi- the resolution be not agreed to. dential reorganization plan The motion was agreed to. to consolidate a number of 1907 Ch. 13 § 23 DESCHLER’S PRECEDENTS

volunteer programs into one Bureau of Internal Revenue agency, ACTION. and Department of the Treas- On June 3, 1971,(15) the Senate ury by a vote of yeas 29, nays 54, rejected Senate Resolution 108, dis- § 23.4 The House by voice vote approving Reorganization Plan rejected a resolution dis- No. 1, consolidating a number of approving a Presidential re- volunteer programs into one agen- organization plan relating to cy, ACTION, submitted by the the Bureau of Internal Rev- President on Mar. 24,1971. enue and Department of the Treasury. Bureau of the Budget On Jan. 30, 1952,(18) the House § 23.3 The House by a yea and by voice vote rejected House Reso- nay vote rejected a resolu- lution 494 disapproving Reorga- tion disapproving a Presi- nization Plan No. 1, relating to dential reorganization plan the Bureau of Internal Revenue and Department of the Treasury relating to reorganization of (transmitted by the President on the Bureau of the Budget. Jan. 14, 1952), after the Com- On May 13, 1970,(16) the House mittee of the Whole approved a by a vote of yeas 164, nays 193, motion to rise and report the reso- not voting 73, rejected House Res- lution back to the House with the olution 960, disapproving Reorga- recommendation that it not be nization Plan No. 2, relating to agreed to. the Bureau of the Budget (transmitted by the President on Mar. Bureau of Narcotics 12, 1970), after the Committee of the Whole by voice vote approved § 23.5 The House by a yea and a motion that the Committee rise nay vote rejected a resolu- and report the resolution back to tion disapproving a Presi- the House with the recommenda- dential reorganization plan ( ) tion that it be agreed to. 17 relating to the creation of a new Bureau of Narcotics in 15. 117 CONG. REC. 17801–04, 92d Cong. 1st Sess. See also 117 CONG. REC. the Department of Justice. 17645–72, 92d Cong. 1st Sess., June On Apr. 2, 1968,(19) the House 2, 1971, for debate on this resolution. by a vote of yeas 190, nays 200, 16. 116 CONG. REC. 15297, 15298, 15331, 15332, 91st Cong. 2d Sess. 18. 98 CONG. REC. 642, 643, 671, 82d 17. The name of the Bureau of the Cong. 2d Sess. Budget has been changed to the Of- 19. 114 CONG. REC. 8601, 8628, 8629, fice of Management and Budget. 90th Cong. 2d Sess.

1908 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 23 present 2, and not voting 41, re- Community Relations Service jected House Resolution 1101 disapproving Reorganization Plan § 23.7 The House by yea and No. 1, creating a new Bureau of nay vote rejected a resolu- Narcotics in the Department of tion disapproving a Presi- Justice (transmitted by the Presi- dential reorganization plan dent on Feb. 7, 1968), after the relating to the transfer of the Community Relations Serv- Committee of the Whole by voice ice from the Department of vote approved a motion that the Commerce to the Depart- Committee rise and report the ment of Justice. resolution back to the House with ( ) the recommendation that it not be On Apr. 20, 1966, 1 the House agreed to. by a vote of yeas 163, nays 220, not voting 49, rejected House Res- Civil Aeronautics Board olution 756 disapproving Reorga- nization Plan No. 1, relating to § 23.6 The House by a yea and the transfer of the Community Re- nay vote rejected a resolu- lations Service from the Depart- tion disapproving a Presi- ment of Commerce to the Depart- dential reorganization plan ment of Justice (transmitted by relating to the Civil Aero- the President on Feb. 10, 1966), nautics Board. after the Committee of the Whole On June 20, 1961,(20) the House by voice vote approved a motion to by a vote of yeas 178, nays 213, rise and report the resolution to not voting 46, rejected House Res- the House with the recommenda- olution 304 disapproving Reorga- tion that it not be agreed to. nization Plan No. 3, relating to the Civil Aeronautics Board Departments of Agriculture (transmitted by the President on and Interior May 3, 1961), after the Committee § 23.8 The House agreed to a of the Whole approved a motion resolution disapproving a that the Committee rise and re- Presidential reorganization port the resolution back to the plan relating to the Depart- House with the recommendation ment of Agriculture and De- that it not be agreed to. partment of the Interior.

20. 107 CONG. REC. 10839–44, 87th 1. 112 CONG. REC. 8498–516, 89th Cong. 1st Sess. Cong. 2d Sess.

1909 Ch. 13 § 23 DESCHLER’S PRECEDENTS

On July 7, 1959,(2) the House by Navy, and Air Force, transmitted a vote of yeas 266, nays 124, not by the President on May 16, 1956. voting 44, agreed to House Reso- lution 295, disapproving Reorga- Department of Commerce nization Plan No. 1, transferring from the Department of the Inte- § 23.10 The House by voice rior to the Department of Agri- vote rejected a resolution culture functions relating to min- disapproving a Presidential erals and forest lands. The plan reorganization plan relating had been transmitted by the to the Department of Com- President on May 22, 1959. This merce. House action followed approval by On May 18, 1950,(5) the House the Committee of the Whole of a by voice vote rejected House Reso- motion to report the resolution lution 546, disapproving Reorga- back to the House with the rec- nization Plan No. 5, transferring ( ) ommendation that it pass. 3 all functions of all other officers of the Department of Commerce to Departments of Army, Navy, the Secretary (with the exception and Air Force of hearings examiners employed § 23.9 The House as in Com- by the Department of Commerce, mittee of the Whole by voice Civil Aeronautics Board, Inland vote agreed to a resolution Waterways Corporation, and the disapproving a Presidential Advisory Board of the Inland Wa- reorganization plan relating terways Corporation), after the Committee of the Whole approved to the Departments of Army, a motion to rise and report the Navy, and Air Force. resolution back to the House with ( ) On July 5, 1956, 4 the House as the recommendation that it not be in Committee of the Whole agreed agreed to.(6) to House Resolution 534, disapproving Reorganization Plan Department of Labor No. 1, relating to new offices in the Departments of the Army, § 23.11 The House by voice vote rejected a resolution 2. 105 CONG. REC. 12856, 86th Cong. 1st Sess. 5. 96 CONG. REC. 7266–74, 81st Cong. 3. 105 CONG. REC. 12740–46, 86th 2d Sess. Cong. 1st Sess., July 6, 1959. 6. Reorganization Plan No. 5 was 4. 102 CONG. REC. 11886, 84th Cong. transmitted by the President on 2d Sess. Mar. 13, 1950.

1910 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 23

disapproving a Presidential the Committee rise and report the reorganization plan relating resolution back to the House with to the Department of Labor. the recommendation that it not be On Aug. 11, 1949,(7) the House agreed to. by voice vote rejected House Reso- Department of Urban Affairs lution 301, disapproving Reorga- and Housing nization Plan No. 2, transferring the Bureau of Employment Secu- § 23.13 The House by yea and rity, Veterans’ Placement Service nay vote agreed to a resolu- Board, and Federal Advisory tion disapproving a Presi- Council to the Department of dential reorganization plan Labor (transmitted by the Presi- relating to the Department of dent on June 20, 1949), after the Urban Affairs and Housing. Committee of the Whole by voice (9) vote approved a motion that the On Feb. 21, 1962, the House Committee rise and report back to by a vote of 264 yeas, 150 nays, 1 the House with a recommendation present, 20 not voting, agreed to that the resolution not pass. House Resolution 530, disapproving Reorganization Plan § 23.12 The House by voice No. 1, establishing a Department vote rejected a resolution of Urban Affairs and Housing disapproving a Presidential (transmitted by the President on reorganization plan relating Jan. 30, 1962). The Committee of to the Department of Labor. the Whole had recommended that the resolution not be agreed to.(10) On May 18, 1950,(8) the House by voice vote rejected House Reso- District of Columbia Govern- lution 522, disapproving Reorga- ment nization Plan No. 6, centralizing authority for all Department of § 23.14 The House by a yea and Labor functions in the Secretary nay vote rejected a resolu- of Labor (transmitted by the tion disapproving a Presi- President on Mar. 13, 1950) after dential reorganization plan the Committee of the Whole by voice vote approved a motion that 9. 108 CONG. REC. 2630–80, 87th Cong. 2d Sess. 7. 95 CONG. REC. 11296–314, 81st 10. The Department of Housing and Cong. 1st Sess. Urban Development was approved 8. 96 CONG. REC. 7241, 7266, 81st on Sept. 9, 1965, 79 Stat. 667 (Pub. Cong. 2nd Sess. L. No. 89–174).

1911 Ch. 13 § 23 DESCHLER’S PRECEDENTS

relating to the District of Co- tion Plan No. 1, relating to the lumbia government. Executive Office of the President, (11) Federal Security Agency, Federal On Aug. 9, 1967, the House Works Agency, and Federal Loan by a vote of yeas 160, nays 244, Agency (transmitted by the Presi- not voting 28, rejected House Res- dent on Apr. 25, 1939), after the olution 512, disapproving Reorga- Committee of the Whole approved nization Plan No. 3, relating to a motion to rise and report the the Government, of the District of resolution back to the House with Columbia (transmitted by the the recommendation that it not be President on June 1, 1967), after agreed to. the Committee of the Whole by Environmental Protection voice vote approved a motion that Agency the Committee rise and report back to the House with the rec- § 23.16 The House by voice ommendation that the resolution vote rejected a resolution not be agreed to. disapproving a Presidential reorganization plan estab- Executive Office of the Presi- lishing the Environmental dent; Federal Agencies Protection Agency. § 23.15 The House by a yea and On Sept. 28, 1970,(13) the House nay vote rejected a concur- by voice vote rejected House Reso- rent resolution disapproving lution 1209, disapproving Reorga- nization Plan No. 3, establishing a Presidential reorganization the Environmental Protection plan relating to the Execu- Agency (transmitted by the Presi- tive Office of the President, dent on July 9, 1970), after the Federal Security Agency, Committee of the Whole by voice Federal Works Agency, and vote approved a motion to rise Federal Loan Agency. and report the resolution back to (12) the House with the recommenda- On May 3, 1939, the House tion that it be rejected. by a vote of yeas 128, nays 265, present 2, and not voting 35, re- Federal Communications Com- jected House Concurrent Resolu- mission tion 19, disapproving Reorganiza- § 23.17 The House by yea and 11. 113 CONG. REC. 21941–76, 90th nay vote agreed to a resolu- Cong. 1st Sess. 12. 84 CONG. REC. 5085, 5086, 76th 13. 116 CONG. REC. 33871–84,91st Cong. Cong. 1st Sess. 2d Sess.

1912 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 23

tion disapproving a Presi- McClellan, of Arkansas, made an dential reorganization plan announcement regarding Senate relating to the Federal Com- disposition of a Presidential reor- munications Commission. ganization plan. On June 15, 1961,(14) the House MR. MCCLELLAN: Mr. President, on by a vote of yeas 323, nays 77, not June 13, 1961, the Committee on Gov- ernment Operations, in executive ses- voting 36, agreed to House Reso- sion, ordered reported, without rec- lution 303 disapproving Reorga- ommendation, S. Res. 142, expressing nization Plan No. 2, relating to disapproval of Reorganization Plan No. the Federal Communications 2 of 1961. Commission (transmitted by the Under section 6 of the Reorganiza- President on Apr. 27, 1961), after tion Act of 1949, as amended, a reorganization plan may not become effective the Committee of the Whole ap- if a resolution of disapproval is adopt- proved a motion that the Com- ed by a simple majority of either mittee rise and report the resolu- House. On June 15, 1961, the House of tion back to the House with the Representatives adopted House Resolu- recommendation that it be agreed tion 303, to disapprove Reorganization Plan No. 2 of 1961.(17) Since this action (l5) to. results in the final disposition of the matter, it is no longer necessary either § 23.18 The House having for the Committee on Government Op- agreed to a resolution dis- erations to file a report on S. Res. 142, approving a Presidential re- or for the Senate to take any further organization plan relating to action. I call attention to the fact, however, the Federal Communications that hearings on that resolution have Commission, the Senate been held and will be available shortly Committee on Government for the information of Members of the Operations ordered reported, Senate. Legislation to enact certain provisions of Reorganization Plan No. without recommendation, a 2 is now pending before the Senate resolution to the same effect. Committee on Commerce—S. 2034— On June 16, 1961,(16) the Chair- and the House Committee on Inter- state and Foreign Commerce—H. R. man of the Senate Committee on 7333—and the House committee has Government Operations, John L. now completed hearings on H.R. 7333. I thought it proper to make this an- 14. 107 CONG. REC. 10448–62, 87th nouncement in view of the fact that Cong. 1st Sess. the committee had voted to report the 15. See § 23.18, infra, for Senate disposi- resolution as I have indicated. tion. 16. 107 CONG. REC. 10628, 87th Cong. 17. See § 23.17, supra, for House disposi- 1st Sess. tion.

1913 Ch. 13 § 23 DESCHLER’S PRECEDENTS

Federal Home Loan Bank discharge the Committee on Board Government Operations from further consideration of a § 23.19 The House by voice resolution disapproving a re- vote rejected a motion to dis- organization plan relating to charge the Committee on federal maritime functions. Government Operations from ( ) further consideration of a On July 20, 1961, 20 the House resolution disapproving a re- by a vote of yeas 184, nays 208, organization plan, relating to not voting 35, rejected a motion to the Federal Home Loan Bank discharge the Committee on Gov- Board. ernment Operations from further consideration of House Resolution (18) On Aug. 3, 1961, the House 336, disapproving Reorganization by voice vote rejected a motion to discharge the Committee on Gov- Plan No. 7, relating to the Federal ernment Operations from further Maritime Administration, Federal consideration of House Resolution Maritime Board, and the Federal 335, disapproving Reorganization Maritime Commission (1) (trans- Plan No. 6, relating to the Federal mitted by the President on June Home Loan Bank Board (trans- 12, 1961). The motion was offered mitted by the President on June by Mr. H. R. Gross, of Iowa, who 12, 1961). The motion was offered qualified as favoring the resolu- by Mr. H. R. Gross, of Iowa, who tion of disapproval. qualified as being in favor of the ( ) resolution. 19 § 23.21 The Senate on a roll call vote rejected a resolu- Federal Maritime Functions tion disapproving a Presi- § 23.20 The House by yea and dential reorganization plan nay vote rejected a motion to relating to maritime functions. 18. 107 CONG. REC. 14548–54, 87th (2) Cong. 1st Sess. On Aug. 10, 1961, the Senate 19. See 63 Stat. 203, 207, 81st Cong. 1st by a vote of yeas 35, nays 60, re- Sess. (Pub. L. No. 81–109, § 204b), jected Senate Resolution 186, dis- for the requirement that the Member making the motion to discharge 20. 107 CONG. REC. 13084–97, 87th must qualify as favoring the resolu- Cong. 1st Sess. tion of disapproval. This provision 1. See § 23.21, infra, for Senate disposi- was later codified as 5 USC § 911(b) tion of this plan. (1970), 80 Stat. 397, Sept. 6, 1966 2. 107 CONG. REC. 15460, 15461, 87th (Pub. L. No. 89–554). Cong. 1st Sess.

1914 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 23 approving Reorganization Plan Security Agency, Social Secu- No. 7, relating to the Federal rity Board, and United States Maritime Administration, Federal Employment Service. Maritime Board, and Federal On June 10, 1947,(5) the House (3) Maritime Commission. by voice vote agreed to House Concurrent Resolution 49, dis- Federal Savings and Loan In- approving Reorganization Plan surance Corporation No. 2, relating to the Federal Se- § 23.22 The House as in Com- curity Agency, Social Security mittee of the Whole agreed to Board, and United States Employ- a resolution disapproving a ment Service (transmitted by the Presidential reorganization President on May 1, 1947), after plan creating the Federal the Committee of the Whole ap- Savings and Loan Insurance proved a motion to rise and report Corporation. back to the House with the recommendation that it be agreed to. On July 5, 1956,(4) the House as in Committee of the Whole by Federal Trade Commission voice vote agreed to House Resolu- tion 541, disapproving Reorga- § 23.24 The House by yea and nization Plan No. 2, creating the nay vote rejected a resolu- Federal Savings and Loan Insur- tion disapproving a Presi- ance Corporation (transmitted by dential reorganization plan the President on May 17, 1956). relating to the Federal Trade Commission. Federal Security Agency, So- (6) cial Security Board, and On June 20, 1961, the House United States Employment by a vote of yeas 178, nays 221, not voting 38, rejected House Res- Service olution 305, disapproving Reorga- § 23.23 The House by voice 5. 93 CONG. REC. 6722–40, 80th Cong. vote agreed to a concurrent 1st Sess. See appendix, infra, which resolution disapproving a indicates that concurrence of both Presidential reorganization Houses was required to disapprove plan relating to the Federal reorganization plans prior to June 20, 1949, the effective date of the rel- 3. See § 23.20, supra, for House disposi- evant provision of the Congressional tion of this resolution. Reorganization Act of 1949. 4. 102 CONG. REC. 11886, 84th Cong. 6. 107 CONG. REC. 10844–56, 87th 2d Sess. Cong. 1st Sess.

1915 Ch. 13 § 23 DESCHLER’S PRECEDENTS nization Plan No. 4, relating to National Labor Relations the Federal Trade Commission Board (transmitted by the President on May 9, 1961), after the Committee § 23.26 The House by a yea and of the Whole approved a motion nay vote agreed to a resolu- that the Committee rise and re- tion disapproving a Presi- port the resolution back to the dential reorganization plan House with the recommendation relating to the National that it not be agreed to. Labor Relations Board. On July 20, 1961,(8) the House Housing, Lending, and Insur- by vote of yeas 231, nays 179, ing Agencies present 2, not voting 25, agreed to House Resolution 328, dis- § 23.25 The House as in Com- approving Reorganization Plan mittee of the Whole by voice vote agreed to a concurrent No. 5, relating to the National resolution disapproving a Labor Relations Board (trans- Presidential reorganization mitted by the President on May plan relating to housing, 24, 1961), after the Committee of lending, and insuring agen- the Whole by voice vote approved cies. a motion that the Committee rise On June 18, 1947,(7) the House and report the resolution back to as in Committee of the Whole by the House with the recommenda- ( ) voice vote agreed to House Con- tion that it not be agreed to. 9 current Resolution 51, dis- § 23.27 The Senate indefinitely approving Reorganization Plan postponed further consider- No. 3, relating to housing, lend- ation of a resolution dis- ing, and insuring agencies, trans- approving a reorganization mitted by the President on May plan relating to the National 27, 1947. Labor Relations Board, after the House agreed to a resolu- 7. 93 CONG. REC. 7252, 80th Cong. 1st Sess. See appendix, infra, which in- tion of disapproval (thereby dicates that concurrence of both terminating the plan). Houses was required to disapprove reorganization plans prior to June 8. 107 CONG. REC. 13069–78, 87th 20, 1949, the effective date of the rel- Cong. 1st Sess. evant provision of the Congressional 9. See § 23.27, infra, for Senate disposi- Reorganization Act of 1949. tion.

1916 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 23

On July 20, 1961,(10) the Senate the House with the recommenda- indefinitely postponed Calendar tion that it be rejected. No. 545, Senate Resolution 158, disapproving Reorganization Plan Office of Science No. 5, relating to the National Labor Relations Board (trans- § 23.29 The House by voice mitted by the President on May vote rejected a resolution 24, 1961), after the House agreed disapproving a Presidential to disapprove the plan.(11) reorganization plan relating to the Office of Science after National Oceanic and Atmos- the Committee of the Whole pheric Administration adversely reported the measure. § 23.28 The House by voice On May 16, 1962,(13) the House vote rejected a resolution by voice vote rejected House Reso- disapproving a Presidential lution 595, disapproving Reorga- reorganization plan creating nization Plan No. 2 of 1962 estab- the National Oceanic and At- lishing the Office of Science and mospheric Administration Technology in the Executive Office within the Department of of the President (transmitted by Commerce. the President on Mar. 29, 1962), On Sept. 28, 1970,(12) the House after the Committee of the Whole by voice vote rejected House Reso- by voice vote approved a motion to lution 1210 disapproving Reorga- rise and report the resolution nization Plan No. 4, creating the back to the House with the rec- National Oceanic and Atmos- ommendation that it not be pheric Administration within the agreed to. Department of Commerce (transmitted by the President on July 9, Reconstruction Finance Cor- 1970), after the Committee of the poration Whole by voice vote approved a § 23.30 The House by a yea and motion that the Committee rise nay vote rejected a resolu- and report the resolution back to tion disapproving a Presi- 10. 107 CONG. REC. 13027, 87th Cong. dential plan reorganizing the 1st Sess. Reconstruction Finance Cor- 11. See § 23.26, supra, for House disposi- poration. tion. 12. 116 CONG. REC. 33885–96, 91st 13. 108 CONG. REC. 8468–73, 87th Cong. Cong. 2d Sess. 2d Sess.

1917 Ch. 13 § 23 DESCHLER’S PRECEDENTS

On Mar. 14, 1951,(14) the House olution 302, disapproving Reorga- by a vote of yeas 200, nays 198, nization Plan No. 1, relating to not voting 35,(15) failed to agree to the Securities and Exchange Com- House Resolution 142, dis- mission (transmitted by the Presi- approving Reorganization Plan dent on Apr. 27, 1961), after the No. 11, relating to the Reconstruc- Committee of the Whole approved tion Finance Corporation (trans- a motion to rise and report the mitted to the Congress on Feb. 19, resolution back to the House with 1951), after the Committee of the the recommendation that it not be Whole by voice vote approved a agreed to.(17) motion that the Committee rise and report the resolution back to § 23.32 The Senate by roll call the House with the recommenda- vote agreed to a resolution tion that it not be agreed to. disapproving a Presidential reorganization plan relating Securities and Exchange Com- to the Securities and Ex- mission change Commission. § 23.31 The House by yea and On June 21, 1961,(18) the Senate nay vote rejected a resolu- by a vote of yeas 52, nays 38, tion disapproving a Presi- agreed to Senate Resolution 148, dential reorganization plan disapproving Reorganization Plan relating to the Securities and No. 1, relating to the Securities Exchange Commission. and Exchange Commission (transmitted by the President on Apr. (16) On June 15, 1961, the House 27, 1961).(19) by a vote of yeas 176, nays 212, not voting 48, rejected House Res- Acceleration of Effective Date for Department of Health, 14. 97 CONG. REC. 2409–18, 82d Cong. 1st Sess. Education, and Welfare Reor- 15. Parliamentarian’s Note: Under 5 ganization Plan USC §§ 1332–1334 an affirmative vote of a majority of the authorized § 23.33 Instead of following the membership of the House was re- procedure prescribed by the quired to adopt a resolution disapproving a Presidential reorganiza- 17. See § 23.32, infra, for Senate disposition plan. This requirement was de- tion of this plan. leted on Sept. 4, 1957, by approval of 18. 107 CONG. REC. 11003, 87th Cong. 71 Stat. 611 (Pub. L. No. 85–286). 1st Sess. 16. 107 CONG. REC. 10463–71, 87th 19. See § 23.31, supra, for House disposi- Cong. 1st Sess. tion of this plan.

1918 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 23

Reorganization Act of 1949 to 12, 1953, shall take effect 10 days after vote on a resolution dis- the date of the enactment of this joint resolution and its approval by the approving a Presidential re- President, notwithstanding the provi- organization plan, the House sions of the Reorganization Act of 1949 approved a House joint reso- as amended, except that section 9 of lution effectuating a plan to such act shall apply to such reorga- create the Department of nization plan and to the reorganization made thereby. . . . Health, Education, and Wel- Amendment offered by Mr. [William fare 10 days after enactment C.] Lantaff [of Florida]: Page 1, line 4, of the joint resolution, rather after the numbers ‘‘1953’’ insert the than 60 days after submis- words ‘‘except the words in section 7 sion of the plan as provided thereof which read: ‘The Secretary may from time to time establish central ad- in the act. ministrative services in the field of On Mar. 13, 1953,(20) the House procurement, budgeting, accounting, agreed to House Joint Resolution personnel, library, legal, and services and activities common to the several 223, effectuating Presidential Re- agencies of the Department’.’’ . . . organization Plan No. 1, creating THE SPEAKER: (1) Under the rule the the Department of Health, Edu- previous question is ordered. cation, and Welfare from the Fed- The question is on the amendment. eral Security Agency, 10 days The amendment was agreed to. after enactment of the joint reso- THE SPEAKER: The question is on the lution. Approval of this joint reso- engrossment and third reading of the lution did not follow the proce- joint resolution. dures prescribed by the Reorga- The joint resolution was ordered to be engrossed and read a third time, nization Plan of 1946, which pro- and was read the third time. vided that a Presidential reorga- THE SPEAKER: The question is on the nization plan would become effec- passage of the joint resolution. tive 60 days after its submission MR. [CHARLES A.] HALLECK [of Indi- to Congress unless either House ana]: Mr. Speaker, on that I demand agreed to a resolution dis- the yeas and nays. approving the plan. The following The yeas and nays were ordered. House joint resolution and amend- The question was taken; and there were—yeas 291, nays 86, answered ment were approved: ‘‘present’’ 3, not voting 51, as follows: Resolved, etc., That the provisions of So the House joint resolution was Reorganization Plan No. 1 of 1953, passed.(2) submitted to the Congress on March 1. Joseph W. Martin, Jr. (Mass.). 20. 99 CONG. REC. 2086–2113, 83d Cong. 2. The report on this joint resolution is 1st Sess. H. Rept. No. 166. See § 23.34, infra,

1919 Ch. 13 § 23 DESCHLER’S PRECEDENTS

House Joint Resolution 223, joint resolution and amendments was considered under the fol- thereto to final passage without inter- lowing rule (H. Res. 179): (3) vening motion except one motion to recommit. Resolved, That upon the adoption of this resolution it shall be in order to § 23.34 Instead of following the move that the House resolve itself into procedure prescribed in the the Committee of the Whole House on Reorganization Act of 1949, the State of the Union for the consideration of House Joint Resolution 223, to vote on a resolution dis- providing that Reorganization Plan approving a Presidential re- Numbered 1 of 1953 shall take effect organization plan, the Senate 10 days after the date of the enact- approved a House joint reso- ment of this joint resolution. After gen- lution effectuating a plan to eral debate, which shall be confined to the joint resolution, and shall continue create the Department of not to exceed 2 hours, to be equally di- Health, Education, and Wel- vided and controlled by the chairman fare 10 days after enactment and ranking minority member of the of the joint resolution rather Committee on Government Operations, than 60 days after submis- the joint resolution shall be read for amendment under the 5-minute rule. sion of the plan as provided At the conclusion of the consideration in the act. of the joint resolution for amendment, On Mar. 30, 1953,(4) the Senate the Committee shall rise and report the joint resolution to the House with agreed to House Joint Resolution ( ) such amendments as may have been 223, as amended by the House, 5 adopted, and the previous question creating the Department of shall be considered as ordered on the Health, Education, and Welfare from the Federal Security Agen- for Senate approval of this joint reso- (6) lution. cy. See Pub. Res. No. 75, 76th Cong. 3d Sess. (H.J. Res. 551) for a joint Postponing Vote resolution providing that Reorga- nization Plan No. 5, relating to the § 23.35 The House may post- Immigration and Naturalization pone voting on a resolution Service and the Department of Labor to disapprove a reorganiza- and transmitted by the President on May 22, 1940, should take effect on 4. 99 CONG. REC. 2448–59, 83d Cong. the 10th day after enactment of the 1st Sess. joint resolution. The joint resolution 5. See § 23.33, supra, for the text of the was approved on June 4, 1940. joint resolution and amendment. 3. 99 CONG. REC. 2086, 83d Cong. 1st 6. The report on this resolution is S. Sess. Rept. No. 126.

1920 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 23

tion plan by disagreeing to such a motion, but it has not been re- the highly privileged motion ported. that the House resolve itself MR. HALLECK: Mr. Speaker, a further parliamentary inquiry. into the Committee of the THE SPEAKER PRO TEMPORE: The Whole for consideration of gentleman will state it. such resolution. MR. HALLECK: The majority leader, On June 8, 1961,(7) the House the gentleman from Massachusetts postponed voting on a resolution [Mr. McCormack], talked to me yesterday about scheduling this matter for to disapprove a reorganization the consideration of the House of Rep- plan by disagreeing to the motion resentatives and indicated to me that that the House resolve itself into it would be scheduled in due time upon the Committee of the Whole for agreement between the majority and consideration of such resolution. the minority Members. In view of this I would like to inquire whether or not MR. [H.R.] GROSS [of Iowa]: Mr. we could have any assurance from the Speaker, is it in order and proper at leadership on the Democratic side, in- this time to submit a highly privileged cluding the acting majority leader and motion? the chairman of the Committee on THE SPEAKER PRO TEMPORE: (8) If the Government Operations, as to when matter to which the gentleman refers this matter might be called, if this mo- is highly privileged, it would be in tion now does not prevail. order. MR. [HALE] BOGGS [of Louisiana]: MR. GROSS: Then, Mr. Speaker, Mr. Speaker, in reply to the gen- under the provisions of section 205(a) tleman, in the absence of the majority Public Law 109, the Reorganization leader, I can only say that I can give Act of 1949, I submit a motion. . . . the assurance that the plan will be MR. [CHARLES A.] HALLECK [of Indi- called up. It is my understanding that ana]: Mr. Speaker, a parliamentary in- the chairman of the committee has inquiry. dicated that he will confer with the THE SPEAKER PRO TEMPORE: The majority leader on calling it up next gentleman will state it. Thursday. In the absence of the major- MR. HALLECK: As I understand, ity leader I cannot give a date positive, there is a motion pending to call up but I can give assurance that it will be what is known as Reorganization Plan called up.... No. 2. MR. HALLECK: Mr. Speaker, a fur- THE SPEAKER PRO TEMPORE: The ther parliamentary inquiry. chair would state that the gentleman THE SPEAKER PRO TEMPORE: The from Iowa indicated he would submit gentleman will state it. MR. HALLECK: If the pending motion 7. 107 CONG. REC. 9775–77, 87th Cong. is voted down, would it still be in order 1st Sess. at a subsequent date to call up a mo- 8. Oren Harris (Ark.). tion rejecting plan No. 2 for another

1921 Ch. 13 § 23 DESCHLER’S PRECEDENTS

vote? I ask that because I am opposed THE SPEAKER PRO TEMPORE: The to plan No. 2. The committee has re- gentleman is correct.... ported adversely in respect to plan No. The Chair feels that this matter has 2. I am going to vote against that plan probably gone far enough. and in support of the resolution of the The Clerk will report the motion of- committee. But under my responsi- fered by the gentleman from Iowa. bility as the minority leader and under The Clerk read as follows: my agreement with the majority leader, I do not see how I could vote today Mr. Gross moves that the House resolve itself into the Committee of unless, under the situation as it exists, the Whole House on the State of the that vote today would be conclusive as Union for the consideration of H. to plan No. 2.... Res. 303 introduced by Mr. Monagan THE SPEAKER PRO TEMPORE: In the disapproving Reorganization Plan opinion of the Chair, under the Reorga- No. 2 transmitted to the Congress by the President on April 27, 1961. nization Act, it could be called up at a subsequent date. THE SPEAKER PRO TEMPORE: The MR. HALLECK: In other words, the question is on the motion. action that would be taken today MR. [CLARE E.] HOFFMAN of Michi- would not be final? gan: Mr. Speaker, a parliamentary in- THE SPEAKER PRO TEMPORE: The quiry. gentleman is correct.... THE SPEAKER PRO TEMPORE: The MR. [CLARENCE J.] BROWN [of Ohio]: gentleman will state it. Mr. Speaker, a further parliamentary MR. HOFFMAN of Michigan: Mr. inquiry. Speaker, if I vote to postpone this; am THE SPEAKER PRO TEMPORE: The I then on record as approving the gentleman will state it. plan? MR. BROWN: As I understand the THE SPEAKER PRO TEMPORE: Of parliamentary situation the motion course, that is not a parliamentary in- would be to take up the resolution of quiry. rejection; is that correct? MR. [BYRON G.] ROGERS of Colorado: THE SPEAKER PRO TEMPORE: The Mr. Speaker, a parliamentary inquiry. Chair would like to state that the mo- THE SPEAKER PRO TEMPORE: The tion has not yet been reported; but the gentleman will state it. Chair understands that the motion is MR. ROGERS of Colorado: Mr. Speak- for the House to go into Committee of er, is a motion to lay this motion on the Whole House for the consideration the table in order? of it. THE SPEAKER PRO TEMPORE: It MR. BROWN: If that should be de- would not be in order at this time. feated, of course, we would not have The question is on the motion offered the resolution of rejection before us. by the gentleman from Iowa [Mr. THE SPEAKER PRO TEMPORE: The Gross]. gentleman is correct. The motion was rejected.(9) MR. BROWN: And therefore the vote would be simply on whether we want 9. See § 23.17, supra, for a discussion of to take it up today or take it up later? the House vote on this plan to reor-

1922 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 23

Priority of Consideration is a highly privileged motion, to make the motion that the House proceed to § 23.36 The House having the consideration of House Resolution agreed that consideration of 516. the general appropriation The gentleman from Michigan being on his feet to present this highly privi- bill of 1951 take priority over leged motion, the regular order is that all business except con- he be recognized for that purpose that ference reports, it was held the motion be entertained and the that such agreement gave a question put before the House, and my higher privilege to the ap- motion is that the House proceed to propriation bill than consid- the consideration of House Resolution 516. eration of resolutions dis- THE SPEAKER PRO TEMPORE: That is approving reorganization the resolution disapproving one of the plans of the President. reorganization plans? On May 9, 1950,(10) Speaker pro MR. HOFFMAN of Michigan: That is tempore John W. McCormack, of right, House Resolution 516 disapproving plan No. 12.(11) Massachusetts, ruled that a unan- And, Mr. Speaker, I ask unanimous imous-consent agreement that consent to revise and extend my reconsideration of the general ap- marks in connection with the point of propriation bill of 1951, a bill order.... combining all appropriations Mr. Speaker, may I be heard further measures, take priority of all busi- on the point of order? ness except conference reports, THE SPEAKER PRO TEMPORE: The gave a higher priority to the ap- Chair is glad to hear the gentleman propriation bill than consideration from Michigan. of resolutions disapproving Presi- MR. HOFFMAN: . . . [O]n the 3d of April the gentleman from Missouri dential reorganization plans. [Mr. Cannon] asked unanimous con- MR. [CLARE E.] HOFFMAN of Michi- sent ‘‘that time for general debate be gan: Mr. Speaker, I make the point of equally divided, one-half to be con- order that the House is not proceeding trolled by the gentleman from New in the regular order because under sec- York [Mr. Taber] and one-half by my- tion 205a of the Reorganization Act, self [Mr. Cannon]; that debate be con- which is Public Law 109 of the Eighty- fined to the bill and that following the first Congress, first session, any Mem- reading of the first chapter of the bill, ber of the House is privileged, and this not to exceed 2 hours of general debate be had before the reading of each sub- ganize the Federal Communications sequent chapter, one-half to be con- Commission. 10. 96 CONG. REC. 6720–24, 81st Cong. 11. This plan related to the National 2d Sess. Labor Relations Board.

1923 Ch. 13 § 23 DESCHLER’S PRECEDENTS

trolled by the chairman and one-half Cannon] on either the 3d, the 5th, or by the ranking minority member of the the 6th of April, even though the cor- subcommittee in charge of the chap- rected request states ‘‘that the general ter.’’ appropriation bill shall be a special The gentleman from Texas [Mr. order privileged above all other business of the House under the rule until Mahon] cites page 4835 of the daily final disposition,’’ have priority over Record of April 5, which reads as fol- Public Law No. 109, Eighty-first Con- lows: gress, when, under title II, we find the Mr. Cannon. I ask unanimous con- following: sent that the general appropriation Sec. 201. The following sections of bill for the fiscal year 1951 have this title are enacted by the Con- right-of-way over all other privileged gress: business under the rules until dis- (a) As an exercise of the rule- position, with the exception of con- making power of the Senate and the ference reports. House of Representatives, respec- Still later and on April 6, the gen- tively, and as such they shall be considered as part of the rules of each tleman from Missouri [Mr. Cannon] House, respectively, but applicable asked unanimous consent that the only with respect to the procedure to Record be corrected. His request was be followed in such House in the as follows—pages 4976–4977 of the case of resolutions (as defined in sec- daily Record: tion 202); and such rules shall super- sede other rules only to the extent Mr. Cannon. Mr. Speaker, on page that they are inconsistent therewith; 4835 of the Record of yesterday, the and first column carrying the special (b) With full recognition of the con- order made by the House last night stitutional right of either House to reads that the general appropriation change such rules (so far as relating bill shall be a special order privi- to the procedure in such House) at leged above all other business of the any time, in the same manner and to House under the rule until disposi- the same extent as in the case of any tion. The order made was until final other rule of such House.... disposition. I ask unanimous consent Sec. 205. (a) When the committee that the Record and Journal be cor- has reported, or has been discharged rected to conform with the pro- from further consideration of, a reso- ceedings on the floor of the House lution with respect to a reorganiza- yesterday. tion plan, it shall at any time thereafter be in order (even though a pre- There was no objection.... vious motion to the same effect has Furthermore, while appropriation been disagreed to) to move to pro- bills have a privileged status, but ceed to the consideration of such res- under the subsequent rule of the olution. Such motion shall be highly House, adopted in the reorganization privileged and shall not be debat- bill, a motion to consider a resolution able. No amendment to such motion shall be in order and it shall not be is highly privileged. Certainly that has in order to move to reconsider the priority over this ordinary privilege or vote by which such motion is agreed special privilege which the gentleman to or disagreed to....(12) from Missouri [Mr. Cannon] secured. How can unanimous consent secured 12. Subsequent material—several Con- by the gentleman from Missouri [Mr. gressional Record excerpts from the

1924 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 23

THE SPEAKER PRO TEMPORE: The meet a particular situation or to carry Chair is prepared to rule. out its will. The gentleman from Michigan On April 5, the gentleman from Mis- makes a point of order, the substance souri [Mr. Cannon], chairman of the of which is that the motion he desires Committee on Appropriations, sub- to make or that someone else should mitted a unanimous-consent request to make in relation to the consideration the House, which was granted, which of a disapproving resolution of one of has the force of a rule, and which re- the reorganization plans takes prece- lates to the rules of the House gov- dence over the appropriation bill inso- erning the consideration of the omni- far as recognition by the Chair is con- bus appropriation bill while it is before cerned. The gentleman from Michigan the House and, of course, incidentally raises a very serious question and the affecting other legislation. The consent Chair feels at this particular time that request submitted by the gentleman it is well that he did so. from Missouri was ‘‘that the general The question involved is not a con- appropriation bill for the fiscal year stitutional question but one relating to 1951 have right-of-way over all other the rules of the House and to the Leg- privileged business under the rules islative Reorganization Act of 1949 until disposition, with the exception of which has been alluded to by the gen- conference reports.’’ tleman from Michigan and other Mem- That request was granted by unani- bers when addressing the Chair on mous consent. On the next day, the this point of order. The Chair calls at- gentleman from Missouri [Mr. Can- tention to the language of paragraph non], in correcting and interpreting the (b) of section 201 of title II of the Reor- consent request granted on April 5, ganization Act of 1949 which reads as submitted a further unanimous-con- follows: ‘‘with full recognition of the sent request. constitutional right of either House to The daily Record shows, on page change such rules so far as relating to 4976, April 6, that the gentleman from procedure in such House at any time Missouri [Mr. Cannon] said: in the same manner and to the same Mr. Speaker, on page 4835 of the extent as in the case of any other rule daily Record of yesterday, the first of such House.’’ column carrying the special order It is very plain from that language made by the House last night reads that the intent of Congress was to rec- that the general appropriation bill ognize the reservation to each House of shall be a special order privileged above all other business of the House certain inherent powers which are nec- under the rule until disposition. The essary for either House to function to order made was until final disposition. I ask unanimous consent that debate on reorganization plan provi- the Record and Journal be corrected sions of the Reorganization Act of to conform with the proceedings on the floor of the House yesterday. 1949, which indicate that the intent of the framers was to ensure a con- The Record further shows that the gressional veto power over such Speaker put the request and there was plans—is omitted here. no objection.

1925 Ch. 13 § 23 DESCHLER’S PRECEDENTS

MR. [JOHN E.] RANKIN [of Mis- consider the appropriation bill, that sissippi]: Mr. Speaker, a parliamentary motion has preference over any other inquiry. preferential motion. It is a matter that THE SPEAKER PRO TEMPORE: Let the the House decides when the motion is Chair finish. made as to what it wants to do and it MR. RANKIN: Mr. Speaker, I would has an opportunity when that motion like to propound a parliamentary in- is made to carry out its will. quiry at this time. MR. [ARTHUR L.] MILLER of Ne- THE SPEAKER PRO TEMPORE: The braska: Mr. Speaker, a parliamentary Chair is in the process of making a rul- inquiry. ing. THE SPEAKER PRO TEMPORE: The MR. RANKIN: That is the reason I gentleman will state it. want to propound the inquiry right at MR. MILLER of Nebraska: I under- this point. stood the statement of the gentleman THE SPEAKER PRO TEMPORE: The from Missouri on April 6 was that the Chair recognizes the gentleman. appropriation bill would take prece- MR. RANKIN: We for the first time dence over all legislation and special this year have all the appropriations in orders until entirely disposed of. Does one bill. Now, if they drag out consid- that include conference reports? eration under the 5-minute rule be- THE SPEAKER PRO TEMPORE: A con- yond the 24th, would that not shut the ference report is in a privileged status Congress off entirely from voting on in any event. any of these recommendations? So we MR. [JOHN] TABER [of New York]: do have a constitutional right to con- They were specifically exempted. sider these propositions without having THE SPEAKER PRO TEMPORE: They them smothered in this way. were specifically exempted. In relation THE SPEAKER PRO TEMPORE: The to the observation made by the gen- Chair will state that the House always tleman from Michigan [Mr. Hoffman] has a constitutional right and power to that because other business has been refuse to go into the Committee of the brought up and that therefore con- Whole on any motion made by any stitutes a violation of the unanimous- Member, so that the House is capable consent request, the Chair, recognizing of carrying out its will whatever may the logic of the argument, disagrees be the will of the majority of the with it because that action was done House. through the sufferance of the Appro- Continuing, the Chair will state that priations Committee and, in the opin- in the opinion of the present occupant, ion of the Chair, does not constitute a in view of the unanimous-consent re- violation in any way; therefore does quest made by the gentleman from not obviate the meaning and effect of Missouri and granted by the House, if the unanimous-consent request here- any member of the Appropriations tofore entered into, and which the Committee moves that the House re- Chair has referred to. solve itself into the Committee of the For the reasons stated, the Chair Whole on the State of the Union to overrules the point of order.

1926 POWERS AND PREROGATIVES OF THE HOUSE Ch. 13 § 23

MR. HOFFMAN of Michigan: Mr. olution 546, that is, that the House Speaker, a further point of order. proceed to the consideration of each of THE SPEAKER PRO TEMPORE: The those resolutions in the order named, gentleman will state it. assuming, of course, that the ruling MR. HOFFMAN of Michigan: The will be the same, but making a record. point of order is the same as I raised before; but, to keep the Record clear, I THE SPEAKER PRO TEMPORE: The wish to make the same point of order Chair will reaffirm his ruling in rela- regarding House Resolution 522, tion to the several resolutions the gen- House Resolution 545, and House Res- tleman has referred to.

1927

APPENDIX

On Apr. 3, 1939, the President signed into law H.R. 4425 [Pub. L. No. 76–19] which authorized the President to submit plans for reorganization of the executive branch of the government to the Congress. Section 5(a) of that law provided that such plans would become effective after expiration of 60 calendar days unless Congress, by concurrent resolution, disapproved such plan. This law was in effect until June 20, 1949, when the Reorganization Act of 1949, H.R. 2361 [Pub. L. No. 109] was approved. Until that date, the concurrence of both Houses was required to disapprove plans. After that date, plans could be disapproved by agreeing to a simple resolution of disapproval by either House.

Reorganization Plans From 1939 to 1973

Reorganization Allowed to become Plan effective Department or agency affected Disapproval resolutions

No. 1 of 1939 ... Yes (53 Stat. 1423) Executive Office of President, H. Con. Res. 19—adverse report Federal Security Agency, Fed- from Select Committee on eral Works Agency, and lend- Government Organization; ing agencies. disagreed to May 3,1939. No. 2 of 1939 ... Yes (53 Stat. 1431) Department of State, Depart- S. Con. Res. 16—adverse report; ment of the Treasury, Depart- disagreed to May 12, 1939, in ment of Justice, Department Senate. of the Interior, Department of Agriculture, Department of Commerce, and Executive Of- fice of President. No. 3 of 1940 ... Yes (54 Stat. 1231) Department of the Treasury, No action. Department of the Interior, Department of Agriculture, Department of Labor, and Civil Aeronautics Authority. No. 4 of 1940 ... Yes (54 Stat. 1234) Department of State, Depart- H. Con. Res. 60—Select Com- ment of the Treasury, Depart- mittee discharged by unani- ment of Justice, Post Office mous consent May 7, 1940; Department, Department of agreed to in House May 8, the Interior, Department of 1940. S. Con. Res. 43—re- Commerce, Department of ported adversely in Senate; no Labor, Maritime Commission, Senate action. and Federal Security Agency. No. 5 of 1940 ... Yes (54 Stat. 1238) Immigration and Naturalization H.J. Res. 551—passed House Service. May, 27, 1940. Pub. Res. 76– 75.

1929 Ch. 13 App. DESCHLER’S PRECEDENTS

Reorganization Plans From 1939 to 1973—Continued

Reorganization Allowed to become Plan effective Department or agency affected Disapproval resolutions

No. 1 of 1946 ... No ...... Department of State, Office of H. Con. Res. 155—reported and Inter-American Affairs, U.S. agreed to in House, June 28, High Commissioner to the 1946; agreed to in Senate, Philippine Islands, Depart- July 15, 1946. ment of the Treasury, Depart- ment of Agriculture, Office of War Mobilization and Recon- version, National Housing Agency, and Federal Deposit Insurance Corporation.. No. 2 of 1946 ... Yes (60 Stat. 1095) Federal Security Agency, De- H. Con. Res. 151—reported and partment of Labor. agreed to in House, June 28, 1946; disagreed to in Senate, July 15, 1946. No. 3 of 1946 ... Yes (60 Stat. 1097) Department of the Treasury, H. Con. Res. 154—reported and U.S. Coast Guard, Bureau of agreed to in House, June 28, Customs, Departments of War 1946; disagreed to in Senate, and Navy, Department of the July 13, 1946. Interior, Department of Agri- culture, Department of Com- merce, National Labor Rela- tions Board, Smithsonian In- stitution, and U.S. Employ- ment Service. No. 1 of 1947 ... Yes (61 Stat. 951; Alien Property Custodian, Presi- No action. amended, 63 dent, Office of Contract Settle- Stat. 399). ment, Department of Justice, Bureau of Internal Revenue, Department of Agriculture, Federal Deposit Insurance Corporation, and War Assets Administration. No. 2 of 1947 ... No ...... Department of Labor, Federal H. Con. Res. 49—reported and Security Agency. agreed to in House, June 10, 1947; agreed to in Senate, June 30, 1947. No. 3 of 1947 ... Yes (61 Stat. 954) Housing and Home Finance H. Con. Res. 51—disapproval re- Agency. ported June 12, 1947; agreed to June 18, 1947; disagreed to in Senate, July 22, 1947. No. 1 of 1948 ... No ...... Department of Labor, Federal H. Con. Res. 131—reported Feb. Security Agency. 9, 1948; passed House Feb. 25, 1948; passed Senate Mar. 16, 1948. No. 1 of 1949 ... No ...... Federal Security Agency (De- S. Res. 147 (disapproval)— partment of Welfare). passed Senate Aug. 16, 1949.

1930 APPENDIX Ch. 13 App.

Reorganization Plans From 1939 to 1973—Continued

Reorganization Allowed to become Plan effective Department or agency affected Disapproval resolutions

No. 2 of 1949 ... Yes (63 Stat. 1065) Department of Labor, Federal H. Res. 301 (disapproving)—re- Security Agency, and Vet- ported—failed of passage Aug. eran’s Placement Service 11, 1949; S. Res. 151—failed Board. of passage Aug. 17, 1949. No. 3 of 1949 ... Yes (63 Stat. 1066) Post Office Department ...... No action. No. 4 of 1949 ... Yes (63 Stat. 1067) Executive Office of the Presi- No action. dent (National Security Coun- cil, National Security Re- sources Board). No. 5 of 1949 ... Yes (63 Stat. 1067) U.S. Civil Service Commission .. No action. No. 6 of 1949 ... Yes (63 Stat. 1069) Maritime Commission ...... No action. No. 7 of 1949 ... Yes (63 Stat. 1070) Federal Works Agency, Depart- S. Res. 155—reported and failed ment of Commerce (Public of passage, Aug. 17, 1949. Roads Administration). No. 8 of 1949 ... No ...... National Military Establishment Congress adjourned before plan became effective. No. 1 of 1950 ... No ...... Department of the Treasury ...... S. Res. 246—agreed to May 11, 1950. No. 2 of 1950 ... Yes (64 Stat. 1261) Department of Justice ...... No action. No. 3 of 1950 ... Yes (64 Stat. 1262) Department of the Interior ...... No action. No. 4 of 1950 ... No ...... Department of Agriculture ...... S. Res. 263—agreed to May 18, 1950. No. 5 of 1950 ... Yes (64 Stat. 1263; Department of Commerce ...... H. Res. 546—reported and dis- amended, 68 agreed to May 18, 1950; S. Stat. 430). Res. 259—reported and disagreed to May 23, 1950. No. 6 of 1950 ... Yes (64 Stat. 1263) Department of Labor ...... H. Res. 522—reported and disagreed to May 18, 1950. No. 7 of 1950 ... No ...... Interstate Commerce Commis- H. Res. 545—reported; no action sion. in House; S. Res. 253—reported and agreed to May 17, 1950. No. 8 of 1950 ... Yes (64 Stat. 1264) Federal Trade Commission ...... S. Res. 254—reported and disagreed to May 22, 1950. No. 9 of 1950 ... Yes (64 Stat. 1265) Federal Power Commission ...... S. Res. 255—reported and disagreed to May 22, 1950. No. 10 of 1950 Yes (64 Stat. 1265) Securities and Exchange Com- No action. mission. No. 11 of 1950 No ...... Federal Communications Com- S. Res. 256—reported and mission. agreed to May 17, 1950. No. 12 of 1950 No ...... National Labor Relations Board H. Res. 516—reported; no action; S. Res. 248—reported and agreed to May 11, 1950. No. 13 of 1950 Yes (64 Stat. 1266) Civil Aeronautics Board ...... No action. No. 14 of 1950 Yes (64 Stat. 1267) Department of Labor ...... No action. No. 15 of 1950 Yes (64 Stat. 1267) General Services Administra- No action. tion, Department of the Inte- rior.

1931 Ch. 13 App. DESCHLER’S PRECEDENTS

Reorganization Plans From 1939 to 1973—Continued

Reorganization Allowed to become Plan effective Department or agency affected Disapproval resolutions

No. 16 of 1950 Yes (64 Stat. 1268) General Services Administra- No action. tion, Federal Security Agency. No. 17 of 1950 Yes (64 Stat. 1269) General Services Administra- S. Res. 271—reported and dis- tion, Housing and Home Fi- agreed to May 23, 1950. nance Agency. No. 18 of 1950 Yes (64 Stat. 1270) General Services Administration H. Res. 539—reported; no Action in House; S. Res. 270—reported and disagreed to May 23, 1950. No. 19 of 1950 Yes (64 Stat. 1271) Federal Security Agency, De- No action. partment of Labor. No. 20 of 1950 Yes (64 Stat. 1272) Department of State, General No action. Services Administration. No. 21 of 1950 Yes (64 Stat. 1273) U.S. Maritime Commission, De- S. Res. 265—reported and dis- partment of Commerce. agreed to May 19, 1950. No. 22 of 1950 Yes (64 Stat. 1277) Reconstruction Finance Corp., S. Res. 299—reported and dis- Housing and Home Finance agreed to July 6, 1950. Agency. No. 23 of 1950 Yes (64 Stat. 1279) Reconstruction Finance Corp., No action. Housing and Home Finance Agency. No. 24 of 1950 No ...... Reconstruction Finance Corp., H. Res. 648—reported and dis- Department of Commerce. agreed to June 30, 1950; S. Res. 290—reported and agreed to July 6, 1950. No. 25 of 1950 Yes (64 Stat. 1280) National Security Resources No action. Board. No. 26 of 1950 Yes (64 Stat. 1280) Department of the Treasury ...... No action. No. 27 of 1950 No ...... Federal Security Agency (De- H. Res. 647—reported and partment of Health, Edu- agreed to July 10, 1950; S. cation, and Welfare). Res. 302—reported, no action. No. 1 of 1951 ... Yes (65 Stat. 773) Reconstruction Finance Corp ..... H. Res. 142—reported and disagreed to Mar. 14, 1951; S. Res. 76—reported and disagreed to Apr. 13, 1951. No. 1 of 1952 ... Yes (66 Stat. 823; Department of the Treasury H. Res. 494—reported and dis- amended, 69 (Bureau of Internal Revenue). agreed to Jan. 30, 1952; S. Stat. 182). Res. 285—reported and disagreed to Mar. 13, 1952. No. 2 of 1952 ... No ...... Post Office Department ...... S. Res. 317—reported; Congress adjourned July 7, 1952, before plan became effective. No. 3 of 1952 ... No ...... Department of the Treasury S. Res. 331—reported; Congress (Bureau of Customs). adjourned July 7, 1952, before plan became effective. No. 4 of 1952 ... No ...... Department of Justice ...... S. Res. 330—reported; Congress adjourned July 7, 1952, before plan became effective.

1932 APPENDIX Ch. 13 App.

Reorganization Plans From 1939 to 1973—Continued

Reorganization Allowed to become Plan effective Department or agency affected Disapproval resolutions

No. 5 of 1952 ... Yes (66 Stat. 824; District of Columbia Govern- No action. amended, 69 ment. Stat. 182). No. 1 of 1953 ... Yes (67 Stat. 631) Federal Security Agency, De- H.J. Res. 223—passed House partment of Health, Edu- Mar. 18, 1953; passed Senate cation, Welfare. Mar. 30, 1953, Pub. L. No. 83–13. No. 2 of 1953 ... Yes (67 Stat. 633) Department of Agriculture ...... H. Res. 236—motion to discharge not agreed to June 3, 1953; S. Res. 100—reported and disagreed to June 27, 1953. No. 3 of 1953 ... Yes (67 Stat. 634) Office of Defense Mobilization No action. (National Security Resources Board), Departments of Army, Navy, and Air Force, Depart- ment of the Interior, General Services Administration, and Department of Defense. No. 4 of 1953 ... Yes (67 Stat. 636) Department of Justice ...... No action. No. 5 of 1953 ... Yes (67 Stat. 637) Export-Import Bank of Wash- No action. ington. No. 6 of 1953 ... Yes (67 Stat. 638) Department of Defense ...... H. Res. 295—reported and disagreed to June 27, 1953. No. 7 of 1953 ... Yes (67 Stat. 639) Foreign Operations Administra- H. Res. 261—adverse report; tion, Institute of Inter-Amer- disagreed to July 17, 1953. ican Affairs, and Department of State. No. 8 of 1953 ... Yes (67 Stat. 642; United States Information H. Res. 262—adverse report; amended, 69 Agency, Department of State. disagreed to July 17, 1953. Stat. 183). No. 9 of 1953 ... Yes (67 Stat. 644) Executive Office of the Presi- H. Res. 263—adverse report; no dent (Council of Economic Ad- action in House. visers). No. l0 of 1953 .. Yes (67 Stat. 644) Civil Aeronautics Board, Post H. Res. 264—adverse report; no Office Department. action in House. No. 1 of 1954 ... Yes (68 Stat. 1279) Foreign Claims Settlement No action. Commission, War Claims Commission, International Claims Commission, and De- partment of State. No. 2 of 1954 ... Yes (68 Stat. 1280) Reconstruction Finance Corp., No action. Export-Import Bank of Wash- ington, and Federal National Mortgage Association. No. 1 of 1956 ... No ...... Departments of Army, Navy, H. Res. 534—reported and and Air Force. agreed to July 5, 1956.

1933 Ch. 13 App. DESCHLER’S PRECEDENTS

Reorganization Plans From 1939 to 1973—Continued

Reorganization Allowed to become Plan effective Department or agency affected Disapproval resolutions

No. 2 of 1956 ... No ...... Federal Savings and Loan In- H. Res. 541—reported and surance Corporation, Federal agreed to July 5, 1956. Home Loan Bank Board. No. 1 of 1957 ... Yes (71 Stat. 647) Reconstruction Finance Corp ..... No action. No. 1 of 1958 ... Yes (72 Stat. 1799; Office of Civil and Defense Mo- No action. amended 72 bilization. Stat. 535, 72 Stat. 861; 75 Stat. 630 (1961); 75 Stat. 788 (1961)).. No. 1 of 1959 ... No ...... Department of the Interior, De- H. Res. 295—reported and partment of Agriculture. agreed to July 7, 1959. No. 1 of 1961 ... No ...... Securities and Exchange Com- H. Res. 302—reported and dis- mission. agreed to June 15, 1961; S. Res. 148—reported and agreed to June 21, 1961. No. 2 of 1961 ... No ...... Federal Communications Com- H. Res. 303—reported and mission. agreed to June 15, 1961. No. 3 of 1961 ... Yes (75 Stat. 837) Civil Aeronautics Board ...... H. Res. 304—reported and disagreed to June 20, 1961; S. Res. 143—reported and disagreed to June 29, 1961. No. 4 of 1961 ... Yes (75 Stat. 837) Federal Trade Commission ...... H. Res. 305—reported and disagreed to June 20, 1961; S. Res. 147—reported and disagreed to June 29, 1961. No. 5 of 1961 ... No ...... National Labor Relations Board H. Res. 328—reported and agreed to July 20, 1961. No. 6 of 1961 ... Yes (75 Stat. 838) Federal Home Loan Bank Board No action. No. 7 of 1961 ... Yes (75 Stat. 840) Federal Maritime Commission .. H. Res. 336—motion to discharge not agreed to July 20, 1961. No. 1 of 1962 ... No ...... Housing and Home Finance H. Res. 530—adverse report; Agency, Federal National agreed to Feb. 21, 1962. Mortgage Association. No. 2 of 1962 ... Yes (76 Stat. 1253) Office of Science and Tech- H. Res. 595—adverse report; nology, National Science disagreed to May 16, 1962. Foundation. No. 1 of 1963 ... Yes (77 Stat. 869) Secretary of the Interior, Ad- H. Res. 372—reported; no action ministrator of General Serv- in House. ices. No. 1 of 1965 ... Yes (79 Stat. 1317) Bureau of Customs, Secretary of H. Res. 347—adverse report; no the Treasury. action in House; S. Res. 102— adverse report; disagreed to in Senate, May 24, 1965.

1934 APPENDIX Ch. 13 App.

Reorganization Plans From 1939 to 1973—Continued

Reorganization Allowed to become Plan effective Department or agency affected Disapproval resolutions

No. 2 of 1965 ... Yes (79 Stat. 1318) Weather Bureau (Chief), Coast No action. and Geodetic Survey (Direc- tor), Secretary of Commerce, and Environmental Science Services Administration (Ad- ministrator). No. 3 of 1965 ... Yes (79 Stat. 1320) Interstate Commerce Commis- No action. sion, Director of Locomotive Inspection. No. 4 of 1965 ... Yes (79 Stat. 1321) National Housing Council, Na- No action. tional Advisory Council on International Monetary and Financial Problems, Board of Foreign Service, Board of Ex- aminers for the Foreign Serv- ice, Civilian-Military Liaison Commission,. Civil Service Commission, Advisory Council on Group Insurance, Small Business Administration, Loan Policy Board, Depart- ment of the Interior, Bonne- ville Power Advisory Board, Attorney General, Atomic Weapons Awards Board, and Department of Health, Edu- cation, and Welfare. No. 5 of 1965 ... Yes (79 Stat. 1323) National Science Foundation ..... No action. No. 1 of 1966 ... Yes (80 Stat. 1607) Department of Commerce (Com- H. Res. 756—adverse report; munity Relations Service), De- disagreed to Apr. 20, 1966; S. partment of Justice. Res. 220—adverse report; disagreed to Apr. 6, 1966. No. 2 of 1966 ... Yes (80 Stat. 1608) Department of Health, Edu- H. Res. 827—adverse report; no cation, and Welfare, Secretary action in House. of the Interior, Federal Water Pollution Control Administra- tion, Water Pollution Control Advisory Board, Surgeon Gen- eral, Assistant Secretary of the Interior, and Assistant Secretary of Health, Edu- cation, and Welfare.

1935 Ch. 13 App. DESCHLER’S PRECEDENTS

Reorganization Plans From 1939 to 1973—Continued

Reorganization Allowed to become Plan effective Department or agency affected Disapproval resolutions

No. 3 of 1966 ... Yes (80 Stat. 1610) Department of Health, Edu- No action. cation, and Welfare, Public Health Service, Bureau of Medical Services, Bureau of State Services, National Insti- tutes of Health, and Office of Surgeon General. No. 4 of 1966 ... Yes (80 Stat. 1611) Board of Commissioners of the No action. District of Columbia, Smithso- nian Institute. No. 5 of 1966 ... Yes (80 Stat. 1611) National Capital Regional Plan- No action. ning Council. No. 1 of 1967 ... Yes (81 Stat. 947) Secretary of Commerce, Sec- No action. retary of Transportation. No. 2 of 1967 ... No ...... U.S. Tariff Commission, Chair- H. Res. 405—adverse report; no man of the U.S. Tariff Com- action in House; S. Res. 114— mission. reported and agreed to May 15, 1967. No. 3 of 1967 ... Yes (81 Stat. 948) District of Columbia (local self H. Res. 512—adverse report; Government). disagreed to Aug. 9, 1967. No. 1 of 1968 ... Yes (82 Stat. 1367) Attorney General, Department H. Res. 1101—adverse report; of the Treasury, Department disagreed to Apr. 2, 1968. of Health, Education, and Welfare, Department of Jus- tice (Bureau of Narcotics and Dangerous Drugs), and Bu- reau of Narcotics. No. 2 of 1968 ... Yes (82 Stat. 1369) Secretary of Transportation, De- No action. partment of Housing and Urban Development, and Urban Mass Transportation Administration. No. 3 of 1968 ... Yes (82 Stat. 1370) Commissioner of the District of No action. Columbia, District of Colum- bia Recreation Board. No. 4 of 1968 ... Yes (82 Stat. 1371) Commissioner of the District of No action. Columbia, District of Colum- bia Redevelopment Land Agency. No. 1 of 1969 ... Yes (83 Stat. 859) Interstate Commerce Commis- No action. sion. No. 1 of 1970 ... Yes (84 Stat. 2083) Office of Telecommunications H. Res. 841—reported; no action Policy, Director of Tele- in House. communications, and Execu- tive Office of the President.

1936 APPENDIX Ch. 13 App.

Reorganization Plans From 1939 to 1973—Continued

Reorganization Allowed to become Plan effective Department or agency affected Disapproval resolutions

No. 2 of 1970 ... Yes (84 Stat. 2085) Bureau of the Budget, Domestic H. Res. 960—reported; dis- Council, Office of Manage- agreed to May 13, 1970. ment and Budget, Executive Office of the President. No. 3 of 1970 ... Yes (84 Stat. 2086) Council on Environmental Qual- H. Res. 1209—adverse report; ity, Department of Agri- disagreed to Sept. 28, 1970. culture, Environmental Pro- tection Agency, Department of the Interior, Department of Health, Education, and Wel- fare, Atomic Energy Commis- sion, and Federal Aviation Council. No. 4 of 1970 ... Yes (84 Stat. 2090) Department of Commerce, Na- H. Res. 1210—adverse report; tional Oceanic and Atmos- disagreed to Sept. 28, 1970; S. pheric Administration, De- Res. 433—reported and dis- partment of the Interior, Sec- agreed to Oct. 1, 1970. retary of Defense, Environ- mental Science Service Ad- ministration and Bureau of Commercial Fisheries. No. 1 of 1971 ... Yes (85 Stat. 819) Executive Office of the Presi- H. Res. 411—reported and dis- dent, ACTION, Office of Eco- agreed to May 25, 1971. nomic Opportunity, Depart- ment of Health, Education, and Welfare, and Small Busi- ness Administration. No. 1 of 1973 ... Yes (87 Stat. 1089) Executive Office of the Presi- No action. dent, Office of Emergency Pre- paredness, National Science Foundation, Office of Science and Technology, and Civil De- fense Advisory Council. No. 2 of 1973 ... Yes (87 Stat. 1091) Bureau of Narcotics and Dan- H. Res. 382—reported and dis- gerous Drugs, Drug Enforce- agreed to June 7, 1973. ment Administration, Bureau of Customs, Department of the Treasury, Department of Justice, Office of Drug Abuse Law Enforcement, and Office of National Narcotics Intel- ligence.

NOTE.—‘‘Adverse report’’ means adverse report on disapproval resolution, not on plan.

1937 CHAPTER 14

Impeachment Powers

A. Generally § 1. Constitutional Provisions; House and Senate Func- tions § 2. Who May Be Impeached; Effect of Resignation § 3. Grounds for Impeachment; Form of Articles § 4. Effect of Adjournment

B. Investigation and Impeachment § 5. Introduction and Referral of Charges § 6. Committee Investigations § 7. Committee Consideration; Reports § 8. Consideration and Debate in the House § 9. Presentation to Senate; Managers § 10. Replication; Amending Adopted Articles

C. Trial in the Senate § 11. Organization and Rules § 12. Conduct of Trial § 13. Voting; Deliberation and Judgment

D. History of Proceedings § 14. Charges Not Resulting in Impeachment § 15. Impeachment Proceedings Against President Nixon § 16. Impeachment of Judge English § 17. Impeachment of Judge Louderback § 18. Impeachment of Judge Ritter

Appendix

Commentary and editing by Peter D. Robinson. J.D.

1939 Ch. 14 DESCHLER’S PRECEDENTS

INDEX TO PRECEDENTS

Adjournment sine die, effect on im- Charges not resulting in impeach- peachment proceedings ment—Cont. authority of managers following expi- Perkins, Frances, Secretary of Labor, ration of Congress, § 4.2 adverse report by committee, § 14.9 impeachment in one Congress and trial Truman, Harry, President, charges not in the next, § 4.1 acted on, §§ 14.11, 14.12 investigation in one Congress and im- Watson, Albert, judge, charges not peachment in the next, §§ 4.3, 4.4 acted on, § 14.10 Amending articles of impeachment Committee consideration and report privilege of resolution reported by broadcast of committee meeting, § 7.3 managers, § 10.5 order of business, § 7.2 procedure, §§ 10.4–10.6 report submitted without resolution of right to amend articles reserved by impeachment, § 7.7 House, § 10.1 reports as to discontinuation of im- Senate notified of amendments, § 10.6 peachment, §§ 7.8–7.10 Censure as related to impeachment, reports authorizing investigations as § 1.3 privileged, §§ 5.8, 6.2, 6.3 Charges not resulting in impeach- reports recommending impeachment, ment calendaring and printing of, § 7.6 Agnew, Spiro, Vice President, request resolution and articles of impeachment for investigation not acted upon, considered together, § 7.1 § 14.17 Committee investigations Alschuler, Samuel, judge, adverse re- evidence in impeachment inquiry, port by investigating committee, §§ 6.7–6.10 § 14.7 hearing procedures, §§ 6.5, 6.6 committee reports as to discontinuation of impeachment, §§ 7.8–7.10 privilege of House as to impeachment evidence, § 6.13 Douglas, William, Supreme Court Jus- tice, investigation of charges and ad- resolutions authorizing, consideration verse report, §§ 14.14–14.16 of, § 6.2 Federal Reserve Board members, resolutions authorizing, referral of, charges not acted on, § 14.5 § 6.1 Hoover, Herbert, President, charges resolutions authorizing, reported by in- not acted on, § 14.3 vestigating committee, § 6.2 Johnson Albert, judge, charges not subcommittee, creation and powers of, acted on, § 14.10 § 6.11 Lowell, James, judge, adverse report subpenas, failure to comply with, § 6.12 by investigating committee, § 14.4 witnesses, interrogation of, §§ 6.3, 6.4 Mellon, Andrew, Secretary of the Committee jurisdiction Treasury, investigation discontinued Judiciary Committee, over resolutions following resignation, § 14.2 proposing impeachment, § 5.10 Molyneaux, Joseph, judge, charges not Rules Committee, over resolutions au- acted on, § 14.6 thorizing investigations, § 5.11

1940 IMPEACHMENT POWERS Ch. 14

Consideration and debate Grounds for impeachment and form as to resolution and articles of im- of articles—Cont. peachment, §§ 8.5–8.10 President, grounds for impeachment of, broadcast of proceedings, § 8.11 §§ 3.6–3.8 control of time for, § 8.1 Judgment division of the question, § 8.10 division of the question, § 13.8 motion for previous question, § 8.8 notification of, to House, § 13.12 privilege for consideration of committee order of, not debatable, § 13.7 reports, § 8.2 removal from office after conviction, question of consideration, § 5.12 § 13.9 question of privilege to present Louderback, Harold, judge, impeach- charges, §§ 5.6, 5.7 ment of resolution and articles of impeachment committee report adverse to impeach- considered together, § 8.1 ment, § 17.1 unanimous-consent agreements gov- consideration in the House and adop- erning, § 8.1 tion of substitute resolution of impeachment, §§ 17.1, 17.2 voting, excuse or disqualification from, continuation of proceedings into next § 13.4 Congress, § 17.4 Courts and the power of impeach- election of managers, § 17.3 ment, §§ 1.1, 1.2 Managers to conduct trial on part of Dismissal of proceedings in Senate House pursuant to House request, § 2.2 answer of respondent referred to man- English, George, judge, impeachment agers, § 10.2 of appearance in Senate to present arti- consideration and debate in House, cles, §§ 9.5, 11.4 § 16.2 appointed by resolution, §§ 9.1, 9.3 impeachment by the House, §§ 16.1– authority of, following expiration of 16.4 Congress, § 4.2 motion to recommit resolution, § 16.3 authority to prepare and submit rep- report by investigating committee rec- lication, § 10.3 ommending impeachment, § 16.1 composition and number of, § 9.2 separate vote on articles, § 16.3 excused from attending House ses- trial discontinued following resignation sions, § 9.4 of respondent, § 16.4 jurisdiction of, over related matters, Grounds for impeachment and form §§ 9.6, 9.7 of articles powers and funds granted by resolu- cumulative and duplicatory articles, tion, § 9.1 §§ 3.3–3.5 supplemental Senate rules referred to, form of resolutions and articles of im- § 10.2 peachment, §§ 3.1, 3.2 withdrawal of, while Senate delib- judges, federal, grounds for impeach- erates, § 13.1 ment of, §§ 3.9–3.13 Motions relating to impeachment offenses not committed during term of proposals office, § 3.14 for the previous question, § 8.8

1941 Ch. 14 DESCHLER’S PRECEDENTS

Motions relating to impeachment Privilege of impeachment propo- proposals—Cont. sitions—Cont. to discharge, § 8.3 questions incidental to impeachment, to lay on table or to refer, §§ 5.12, 5.13 §§ 5.8, 5.9 to recommit, § 8.9 Resignation of accused, discontinu- Nixon, Richard M., President, pro- ance of proceedings, §§ 2.1–2.3 ceedings against Ritter, Halsted, judge, impeachment authority for investigation by Com- of mittee on Judiciary, § 15.2 amendment of articles by the House, broadcasting House and Senate pro- §§ 18.10, 18.11 ceedings, resolutions authorizing, answer of respondent, § 18.15 §§ 15.10, 15.11 appearance of respondent before the confidentiality of inquiry materials, Senate, § 18.8 § 15.3 conduct of trial, § 18.16 consideration by committee of articles of impeachment, § 15.7 consideration of resolution and articles consideration by House of articles of by the House, § 18.4 impeachment, § 15.12 conviction of, § 18.17 evidence in House inquiry, subpenaed deliberation of Senate behind closed by court, § 15.14 doors, § 18.17 introduction of impeachment charges, election of managers and their author- § 15.1 ity, § 18.5 pardon following resignation, § 15.15 final arguments, § 18.16 procedures for presenting evidence and House notified of order and judgment, examining witnesses, § 15.6 § 18.18 report of committee, acceptance by judgment ordered, § 18.17 House, § 15.13 motions to strike articles and specifica- report of committee following resignations, §§ 18.12–18.14 tion of President, § 15.13 organization of Senate for trial, §§ 18.6, reports by inquiry staff, §§ 15.4, 15.5 18.7 resignation of President, § 15.13 presentation of articles to Senate, Senate review of impeachment trial § 18.7 rules, § 15.8 replication to respondent’s answer, Senate select committee, evidence re- § 18.15 leased by, § 15.9 report of Judiciary Committee recom- Presentation of articles to Senate mending impeachment, § 18.3 appearance of managers to present ar- Trial in the Senate ticles, §§ 9.5, 11.4 date for, messaged to House from Sen- appearance of managers to present arate, § 9.5 ticles, § 11.4 managers authorized to present arti- appearance of respondent, § 11.9 cles to Senate, § 9.1 debate on organizational questions, Privilege of impeachment propo- § 11.11 sitions deliberation behind closed doors, § 13.1 charges and resolutions directly im- House notified of order and judgment, peaching, §§ 5.1–5.3 § 13.12

1942 IMPEACHMENT POWERS Ch. 14

Trial in the Senate—Cont. Trial procedure—Cont. oath and organization, §§ 11.5, 11.6 supplemental rules to govern, §§ 11.7, opinions of individual Senators, filing 11.8 of, § 13.11 suspension of trial for messages and presiding officer, appointment of, legislative business, §§ 12.5, 12.6 § 11.12 witness, respondent as, § 12.11 privileges of Senate floor during, Voting on conviction and judgment § 11.13 excuse or disqualification from, § 13.4 Trial procedure majority vote for judgment of disquali- evidence, presiding officer rules on ad- fication, § 13.10 missibility of, § 12.7 evidence returned at close of trial, on removal following conviction, § 13.9 § 12.9 orders governing, § 13.2 exhibits offered in evidence, § 12.8 pairs not recognized, § 13.3 final arguments, § 12.12 points of order against vote on convic- motions to strike articles, §§ 12.2–12.4 tion, §§ 13.5, 13.6 opening arguments, § 12.1 putting the question, § 13.2 rules for trial, nature and amendment two-thirds vote required for conviction of, §§ 11.1–11.3 § 13.5

1943

Impeachment Powers

A. GENERALLY § 1. Constitutional Provi- nevertheless be liable and subject to Indictment, Trial, Judgment and Pun- sions; House and Senate ishment, according to Law. Article I, Functions Section 3, clause 7. Two other sections of the U.S. The impeachment power is de- Constitution also mention im- lineated and circumscribed by sev- peachment: eral provisions of the U.S. Con- stitution. They state: The President . . . shall have Power to grant Reprieves and Pardons for The President, Vice President and Offences against the United States, ex- all civil Officers of the United States, cept in Cases of Impeachment. Article shall be removed from Office on Im- II, section 2, clause 1. peachment for, and Conviction of, The Trial of all Crimes, except in Treason, Bribery, or other high Crimes Cases of Impeachment, shall be by and Misdemeanors. Article II, Section Jury. . . . Article III, section 2, clause 4. 3. . . . and [the House of Representa- Since the First Congress of the tives] shall have the sole Power of Im- peachment. Article I, Section 2, clause United States, the House of Rep- 5. resentatives has impeached 13 of- The Senate shall have the sole ficers of the United States, of Power to try all Impeachments. When whom 10 were federal judges, one sitting for that Purpose, they shall be was a cabinet officer, one a U.S. on Oath or Affirmation. When the Senator, and one the President of President of the United States is tried, the United States. the Chief Justice shall preside: And no Person shall be convicted without the Conviction has been voted by Concurrence of two thirds of the Mem- the Senate in four cases, all in- bers present. Article I, Section 3, volving federal judges. The judges clause 6. so convicted were John Pickering Judgment in Cases of Impeachment in 1804, West H. Humphreys in shall not extend further than to re- 1862, Robert W. Archbald in 1912, moval from Office, and disqualification to hold and enjoy any Office of honor, and Halsted L. Ritter in 1936. Trust or Profit under the United On numerous other occasions, States: but the Party convicted shall the impeachment process has

1945 Ch. 14 § 1 DESCHLER’S PRECEDENTS been initiated in the House as to tion. The Court of Claims dis- civil officers and judges but has missed the claim for want of juris- not resulted in consideration by diction, holding that the Senate’s the House of a report recom- power to try impeachments was mending impeachment. In the two exclusive under the Constitution. most recent cases where inves- The court cited the Supreme Court case of Mississippi v John- tigations have been conducted by son, wherein Chief Justice Samuel the Committee on the Judiciary Chase had stated in dictum that and its subcommittees, in relation the impeachment process was not to Supreme Court Associate Jus- subject to judicial review.(1) The tice William O. Douglas in 1970 Court of Claims opinion read in and in relation to President Rich- part: ard M. Nixon in 1974, the pro- While the Senate in one sense acts ceedings have occasioned intense as a court on the trial of an impeach- congressional and national debate ment, it is essentially a political body and in its actions is influenced by the as to the scope of the impeach- views of its members on the public wel- ment power, the grounds for im- fare. The courts, on the other hand, peachment and for conviction, the are expected to render their decisions analogy if any between the im- according to the law regardless of the consequences. This must have been re- peachment process and the judi- alized by the members of the Constitu- cial criminal process, and the tional Convention and in rejecting pro- amenability of the impeachment posals to have impeachments tried by a court composed of regularly ap- process to judicial review. pointed judges we think it avoided the It should be noted at this point possibility of unseemly conflicts be- that of the four judges convicted tween a political body such as the Sen- ate and the judicial tribunals which and removed from office, none has might determine the case on different directly sought to challenge principles.(2) through the judicial process his Cross References impeachment by the House and Discussions of the impeachment process conviction by the Senate. Judge generally, see §§ 3.6–3.14 and appen- Halsted L. Ritter, convicted by the dix, infra. Senate in 1936, indirectly challenged his conviction by filing suit 1. Ritter v United States, 84 Ct. Cls. for back salary in the U.S. Court 293 (1936), cert. denied, 300 U.S. 668 (1937), citing Mississippi v John- of Claims, where he alleged that son, 71 U.S. (4 Wall.) 475, 501 the Senate had tried him on (1867). grounds not constituting impeach- 2. Ritter v United States, 84 Ct. Cls. able offenses under the Constitu- 293, 300 (1936). 1946 IMPEACHMENT POWERS Ch. 14 § 1

High privilege of impeachment propo- dence in an Impeachment Trial); Ch. sitions, see §§ 5, 8, infra. 200 (Impeachment and Trial of Robert Pardon of officer who has resigned before W. Archbald); Ch. 201 (Impeachment his impeachment by the House, see and Trial of Harold Louderback); Ch. § 15.15. infra. 202 (Impeachment Proceedings not Re- sulting in Trial). Collateral References The impeachment power under par- For early precedents on the impeachment liamentary law, see House Rules and power and process, see the following Manual §§ 601–620 (Jefferson’s Man- chapters in Hinds’ Precedents: Ch. 63 ual) (1973). (Nature of Impeachment); Ch. 64 Impeachment, Selected Materials, Com- (Function of the House in Impeach- mittee on the Judiciary, H. Doc. No. ment); Ch. 65 (Function of the Senate 93–7, 93d Cong. 1st Sess., Oct. 1973 in Impeachment); Ch. 66 (Procedure of (constitutional provisions and histor- the Senate in Impeachment); Ch. 67 ical precedents and debate). (Conduct of Impeachment Trials); Ch. Impeachment, Selected Materials on Pro- 68 (Presentation of Testimony in an cedure, Committee on the Judiciary, Impeachment Trial); Ch. 69 (Rules of Committee Print, 93d Cong. 2d Sess., Evidence in an Impeachment Trial); Jan. 1974 (relevant extracts from Ch. 70 (Impeachment and Trial of Wil- Hinds’ and Cannon’s Precedents of the liam Blount); Ch. 71 (Impeachment House of Representatives).

and Trial of John Pickering); Ch. 72 (Impeachment and Trial of Samuel Chase); Ch. 73 (Impeachment and Trial of James H. Peck); Ch. 74 (Im- Impeachment and the Federal peachment and Trial of West H. Hum- Courts phreys); Ch. 75 (First Attempts to Im- peach the President); Ch. 76 (Impeach- § 1.1 The Speaker laid before ment and Trial of President Andrew the House a communication Johnson); Ch. 77 (Impeachment and from the Clerk, informing Trial of William W. Belknap); Ch. 78 the House of the receipt of a (Impeachment and Trial of Charles summons and complaint Swayne); Ch. 79 (Impeachment Pro- ceedings not Resulting in Trial). naming the House as a defendant in a civil action, in- See also the following chapters in stituted in a U.S. District Cannon’s Precedents: Ch. 193 (Nature of Impeachment); Ch. 194 (Function of Court, seeking to enjoin im- the House in Impeachment); Ch. 195 peachment proceedings (Function of the Senate in Impeach- pending in the House. ment); Ch. 196 (Procedure of the Sen- On May 28, 1974, Speaker Carl ate in Impeachment); Ch. 197 (Conduct of Impeachment Trials); Ch. 198 (Pres- Albert, of Oklahoma, laid before entation of Testimony in an Impeach- the House a communication from ment Trial); Ch. 199 (Rules of Evi- the Clerk, advising of his receipt 1947 Ch. 14 § 1 DESCHLER’S PRECEDENTS of a summons and complaint or its sole power of impeach- issued by the U.S. District Court ment under the U.S. Con- for the Eastern District of Vir- stitution. ginia, in connection with Civil Ac- On Aug. 22, 1974,(4) Speaker tion No. 74–54–NN, The National Carl Albert, of Oklahoma, laid be- Citizens’ Committee for Fairness to fore the House certain subpenas the President v United States issued by a U.S. District Court in (3) House of Representatives. a criminal case, requesting certain Parliamentarian’s Note: The evidence gathered by the Com- plaintiff in this action sought to mittee on the Judiciary and its enjoin the impeachment pro- subcommittee on impeachment, in ceedings pending in the House the inquiry into the conduct of against President Richard M. President Richard Nixon. The Nixon. The Clerk did not request House adopted House Resolution representation by the appropriate 1341, which granted such limited U.S. Attorney, under 2 USC § 118, access to the evidence as would because the House has the sole not violate the privileges or con- power of impeachment under the stitutional powers of the House. U.S. Constitution and because of The resolution read as follows: the application of the doctrine under the Constitution of the sep- H. RES. 1341 aration of powers of the executive, Whereas in the case of United States legislative, and judicial branches of America against John N. Mitchell et of government. al. (Criminal Case No. 74–110), pending in the United States District Court § 1.2 Where a federal court for the District of Columbia, subpenas subpenaed in a criminal case duces tecum were issued by the said court and addressed to Representative certain evidence gathered by Peter W. Rodino, United States House the Committee on the Judici- of Representatives, and to John Doar, ary in an impeachment in- Chief Counsel, House Judicial Sub- quiry, the House adopted a committee on Impeachment, House of resolution granting such lim- Representatives, directing them to ap- ited access to the evidence, pear as witnesses before said court at 10:00 antemeridian on the 9th day of except executive session ma- September, 1974, and to bring with terials, as would not violate them certain and sundry papers in the the privileges of the House possession and under the control of the

3. 120 CONG. REC. 16496, 93d Cong. 2d 4. 120 CONG. REC. 30026, 93d Cong. 2d Sess. Sess.

1948 IMPEACHMENT POWERS Ch. 14 § 1

House of Representatives: Therefore be memoranda and notes, in the files of it the Committee on the Judiciary, of Resolved, That by the privileges of interviews with those persons who sub- this House no evidence of a documen- sequently appeared as witnesses in the tary character under the control and in proceedings before the full Committee the possession of the House of Rep- pursuant to House Resolution 803, resentatives can, by the mandate of such limited access in this instance not process of the ordinary courts of jus- being an interference with the Con- tice, be taken from such control or pos- stitutional impeachment power of the session but by its permission; be it fur- House, and the Clerk of the House is ther authorized to supply certified copies of such documents and papers in posses- Resolved, That the House of Rep- sion or control of the House of Rep- resentatives under Article I, Section 2 resentatives that the court has found of the Constitution has the sole power to be material and relevant (except of impeachment and has the sole that under no circumstances shall any power to investigate and gather evi- minutes or transcripts of executive ses- dence to determine whether the House sions, or any evidence of witnesses in of Representatives shall exercise its respect thereto, be disclosed or copied) constitutional power of impeachment; and which the court or other proper of- be it further ficer thereof shall desire, so as, how- Resolved, That when it appears by ever, the possession of said papers, the order of the court or of the judge documents, and records by the House thereof, or of any legal officer charged of Representatives shall not be dis- with the administration of the orders turbed, or the same shall not be re- of such court or judge, that documen- moved from their place of file or cus- tary evidence in the possession and tody under any Members, officer, or under the control of the House is need- employee of the House of Representa- ful for use in any court of justice, or tives; and be it further before any judge or such legal officer, Resolved, That a copy of these reso- for the promotion of justice, this House lutions be transmitted to the said court will take such action thereon as will as a respectful answer to the subpenas promote the ends of justice consistently aforementioned. with the privileges and rights of this House; be it further Censure of Federal Civil Offi- Resolved, That when said court de- cers termines upon the materiality and the relevancy of the papers and documents § 1.3 In the 72d Congress, the called for in the subpenas duces tecum, House amended a resolution then the said court, through any of its abating impeachment pro- officers or agents, have full permission ceedings against a federal to attend with all proper parties to the proceeding and then always at any judge where the committee place under the orders and control of report censured him for im- this House and take copies of all proper conduct, and voted to 1949 Ch. 14 § 1 DESCHLER’S PRECEDENTS

impeach him by adopting the let me make this observation. The pur- resolution as amended. pose of referring a matter of this kind to the Committee on the Judiciary is to On Feb. 24, 1933, a resolution determine whether or not in the opin- (H. Res. 387) was called up by Mr. ion of the Committee on the Judiciary Thomas D. McKeown, of Okla- there is sufficient evidence to warrant homa, at the direction of the Com- impeachment by the House. If the Committee on the Judiciary finds those mittee on the Judiciary; the reso- facts exist, then the Committee on the lution stated that the evidence Judiciary makes a report to the House against U.S. District Court Judge recommending impeachment, and that Harold Louderback did not war- undoubtedly is privileged. However, a rant impeachment. The committee custom has grown up recently in the Committee on the Judiciary of includ- report (H. Rept. No. 2065), cen- ing in the report a censure. I do not be- sured the judge as follows: lieve that the constitutional power of The committee censures the judge impeachment includes censure. We for conduct prejudicial to the dignity of have but one duty, and that is to im- the judiciary in appointing incom- peach or not to impeach. Today we find petent receivers, for the method of se- a committee report censuring the lecting receivers, for allowing fees that judge. The resolution before the House seem excessive, and for a high degree presented by a majority of the com- of indifference to the interest of liti- mittee is against impeachment. The minority members have filed a minor- gants in receiverships.(5) ity report, recommending impeach- The House rejected the rec- ment. I am making this observation ommendation of the committee by with the hope that we may get back to adopting an amendment in the the constitutional power of impeach- nature of a substitute impeaching ment. the judge for misdemeanors in of- Parliamentarian’s Note: On sev- fice. During debate on the resolu- eral past occasions, the resolution tion, Mr. Earl C. Michener, of reported to the House by the com- Michigan, addressed remarks to mittee investigating impeachment the power of censure in relation to has proposed the censure of the ( ) civil officers under the United officer involved. 6 Such resolu- States: 6. See, for example, 3 Hinds’ Prece- MR. MICHENER: Mr. Speaker, in an- dents §§ 2519, 2520. swer to the gentleman from Alabama, When a subcommittee report recommended against the impeachment 5. 76 CONG. REC. 4913, 4914, 72d Cong. of Associate Judge William O. Doug- 2d Sess. See, generally, 6 Cannon’s las in the 91st Congress, the minor- Precedents § 514, and §§ 17.1, 17.2, ity views of Mr. Edward Hutchinson infra. (Mich.) indicated the view that Jus-

1950 IMPEACHMENT POWERS Ch. 14 § 2 tions were not submitted as privi- § 2. Who May Be Im- leged and were not considered by peached; Effect of Res- the House. Although censure of a Member by the House is a privi- ignation leged matter,(7) censure of an executive official has not been held Article II, section 4 of the U.S. privileged for consideration by the Constitution subjects the Presi- House and has on occasion been dent, Vice President, and all civil held improper.(8) officers of the United States to impeachment, conviction, and re- tice Douglas could have been cen- moval from office. It has been set- sured or officially rebuked for mis- tled that a private citizen is not conduct by the House (see § 14.16, subject to the impeachment proc- infra). ess except for offenses committed 7. See 3 Hinds’ Precedents §§ 2649– while a civil officer under the 2651. United States.(9) Members of the House are not sub- In one case, it was determined ject to impeachment under the Con- by the Senate that a U.S. Senator stitution (see § 2, infra) but are sub- (William Blount [Tenn.]) was not ject to punishment for disorderly be- a civil officer under article II, sec- havior. See U.S. Const. art. I, § 5, tion 4, and the Senate disclaimed clause 2. jurisdiction to try him.(10) 8. See 2 Hinds’ Precedents §§ 1569– In view of the fact that the Con- 1572. The issue whether a proposition to stitution provides not only for censure a federal civil officer would automatic removal of an officer be germane to a proposition for his upon impeachment and conviction, impeachment has not arisen, but it but also for the disqualification is not in order to amend a pending from holding further office under privileged resolution by adding or the United States (art. I, § 3, substituting a matter not privileged clause 7), the House and Senate and not germane to the original have affirmed their respective proposition. 5 Hinds’ Precedents power to impeach and try an ac- § 5810. cused who has resigned.(11) See 6 Cannon’s Precedents § 236 for the ruling that a proposition to 9. 3 Hinds’ Precedents §§ 2315, 2007. censure a Member of the House is A commissioner of the District of not germane to a proposition for his Columbia was held not to be a civil expulsion. Speaker Frederick H. Gil- officer subject to impeachment under lett (Mass.) ruled in that instance the Constitution. 6 Cannon’s Prece- that although censure and expulsion dents § 548. of a Member were both privileged 10. 3 Hinds’ Precedents §§ 2310, 2316. propositions, they were ‘‘intrinsi- 11. The question whether the House cally’’ different. may impeach a civil officer who has

1951 Ch. 14 § 2 DESCHLER’S PRECEDENTS

The latter question first arose Impeachment Proceedings Fol- in the Blount case, where the Sen- lowing Resignation ate expelled Senator Blount after his impeachment by the House § 2.1 President Richard Nixon but before articles had been draft- having resigned following ed and before his trial in the Sen- the decision of the Com- ate had begun. The House pro- mittee on the Judiciary to re- ceeded to adopt articles, and it port to the House recom- was conceded in the Senate that a mending his impeachment, person impeached could not es- the report without an accom- cape punishment by resignation; panying resolution of im- the Senate decided that it had no peachment was submitted to jurisdiction, however, to try the the House, and further pro- former Senator since he had not ceedings were discontinued. been a civil officer for purposes of impeachment.(12) On Aug. 20, 1974, Peter W. Ro- William W. Belknap, Secretary dino, Jr., of New Jersey, Chair- of War, resigned from office before man of the Committee on the Ju- his impeachment by the House diciary, submitted a privileged re- and before his trial in the Senate. port (H. Rept. No. 93–1305) rec- The House and Senate debated ommending the impeachment of the power of impeachment at President Nixon, following a full length and determined that the investigation by the committee, former Secretary was amenable to and after its consideration and impeachment and trial; at the adoption of articles of impeach- conclusion of trial the respondent ment. was acquitted of all charges by The committee had previously the Senate.(13) (in July 1974) decided to rec- Cross References ommend articles of impeachment against President Nixon. The Members of Congress not subject to impeachment but to punishment, cen- President resigned his office sure, or expulsion, see Ch. 12, supra. shortly thereafter—on Aug. 9, Powers of the House as related to the ex- 1974—by submitting his written ecutive generally, see Ch. 13, supra. resignation to the office of the Secretary of State. (14) resigned is a constitutional issue for the House and not the Chair to de- 14. 3 USC § 20 provides that the only cide (see § 2.4, infra). evidence of the resignation of the of- 12. 3 Hinds’ Precedents §§ 2317, 2318. fice of the President of the United 13. 3 Hinds’ Precedents §§ 2007, 2467. States shall be an instrument in

1952 IMPEACHMENT POWERS Ch. 14 § 2

Upon submission of the report charges of impeachment, and of the Committee on the Judici- the Senate dismissed the im- ary, Speaker Carl Albert, of Okla- peachment proceedings. homa, ordered it referred to the On Dec. 11, 1926, the House House Calendar. No separate ac- adopted the following resolution companying resolution of im- in relation to the impeachment peachment was reported to the proceedings against Judge George House. W. English: The House adopted without de- Resolved, That the managers on the bate a resolution (H. Res. 1333), part of the House of Representatives in offered by Mr. Thomas P. O’Neill, the impeachment proceedings now Jr., of Massachusetts, under sus- pending in the Senate against George pension of the rules on Aug. 20, W. English, late judge of the District Court of the United States for the accepting the report. No further Eastern District of Illinois, be inaction was taken on the proposed structed to appear before the Senate, impeachment of the President. (15) sitting as a court of impeachment in said cause, and advise the Senate that § 2.2 A federal judge having re- in consideration of the fact that said signed from the bench pend- George W. English is no longer a civil officer of the United States, having ing his impeachment trial in ceased to be a district judge of the the Senate, the House adopt- United States for the eastern district ed a resolution instructing of Illinois, the House of Representa- the managers to advise the tives does not desire further to urge the articles of impeachment heretofore Senate that the House de- filed in the Senate against said George clined to further prosecute W. English.(16)

writing, signed, and delivered into On Dec. 13, 1926, the Senate the office of the Secretary of State. adjourned sine die as a court of 15. 120 CONG. REC. 29361, 29362, 93d impeachment after agreeing to the Cong. 2d Sess. For the text of H. following order, which was mes- Res. 1333 and the events sur- saged to the House: rounding its adoption, see § 15.13, Ordered, That the impeachment pro- infra. ceedings against George W. English, For a memorandum prepared for late judge of the District Court of the Senate Majority Leader Michael J. United States for the Eastern District Mansfield (Mont.) and inserted in of Illinois, be and the same are, duly the Record, concluding that Congress dismissed.(17) could impeach and try the President after he had resigned, see 120 CONG. 16. 68 CONG. REC. 297, 69th Cong. 2d REC. 31346–48, 93d Cong. 2d Sess., Sess. Sept. 17, 1974. 17. Id. at p. 344.

1953 Ch. 14 § 2 DESCHLER’S PRECEDENTS

§ 2.3 The House discontinued MINORITY VIEWS further investigation and We cannot join in the majority views proceedings of impeachment and findings. While we concur in the against a cabinet official who conclusions of the majority that section had resigned his post, after 243 of the Revised Statutes, upon which the proceedings herein were his nomination and con- based, provides for action in the nature firmation to hold another of an ouster proceeding, it is our view governmental position. that the Hon. Andrew W. Mellon, the On Feb. 13, 1932, the House former Secretary of the Treasury, having removed himself from that office, adopted House Resolution 143 of- no useful purpose would be served by fered by Hatton W. Sumners, of continuing the investigation of the Texas, Chairman of the Com- charges filed by the Hon. Wright Pat- mittee on the Judiciary. The reso- man. We desire to stress that the ac- lution, which discontinued certain tion of the undersigned is based on impeachment proceedings due to that reason alone, particularly when resignation of the officer charged, the prohibition contained in said section 243 is not applicable to the office read as follows: now held by Mr. Mellon.(18) Whereas Hon. Wright Patman, Mem- FIORELLO H. LAGUARDIA. ber of the House of Representatives, GORDON BROWNING. M. C. TARVER. filed certain impeachment charges FRANCIS B. CONDON. against Hon. Andrew W. Mellon, Sec- retary of the Treasury, which were re- § 2.4 Where a point of order ferred to this committee; and Whereas pending the investigation of was raised that a resolution said charges by said committee, and of impeachment was not before said investigation had been com- privileged because it called pleted, the said Hon. Andrew W. Mel- for the impeachment of per- lon was nominated by the President of sons no longer civil officers the United States for the post of am- under the United States, the bassador to the Court of St. James and the said nomination was duly con- Speaker stated that the ques- firmed by the United States Senate tion was a constitutional pursuant to law, and the said Andrew issue for the House and not W. Mellon has resigned the position of the Chair to decide. Secretary of the Treasury: Be it Resolved by this committee, That the On May 23, 1933, Mr. Louis T. further consideration of the said McFadden, of Pennsylvania, rose charges made against the said Andrew to a question of constitutional W. Mellon, as Secretary of the Treas- ury, be, and the same are hereby, dis- 18. 75 CONG. REC. 3850, 72d Cong. 1st continued. Sess.

1954 IMPEACHMENT POWERS Ch. 14 § 3 privilege and offered a resolution for impeachment and conviction (H. Res. 158) impeaching numer- as ‘‘treason, bribery, or other high ous members and former members crimes and misdemeanors.’’ A fur- of the Federal Reserve Board. ther provision of the Constitution During the reading of the resolu- which has been construed to bear tion, a point of order against it upon the impeachment of federal was raised by Mr. Carl E. Mapes, judges is article III, section 1, of Michigan: which provides that judges of the I wish to submit the question to the supreme and inferior courts ‘‘shall Speaker as to whether or not a person hold their offices during good be- who is not now in office is subject to impeachment? This resolution of the haviour.’’ gentleman from Pennsylvania refers to When the House determines several people who are no longer hold- that grounds for impeachment ing any public office. They are not now exist, and they are adopted by the at least civil officers. The Constitution provides that the ‘‘President, Vice House, they are presented to the President, and all civil officers shall be Senate in ‘‘articles’’ of impeach- removed from office on impeachment’’, ment.(20) Any one of the articles and so forth. I have had no opportunity may provide a sufficient basis or to examine the precedents since this ground for impeachment. The im- matter came up, but it occurs to me that the resolution takes in too much peachment in 1936 of Halsted L. territory to make it privileged. Ritter, a U.S. District Court Speaker Henry T. Rainey, of Il- Judge, was based on seven arti- linois, ruled as follows: cles of impeachment as amended by the House. The first six articles That is a constitutional question which the Chair cannot pass upon, but charged him with several in- should be passed upon by the House. stances of judicial misconduct, including champerty, corrupt prac- The resolution was referred on motion to the Committee on the tices, violations of the Judicial Judiciary.(19) Code, and violations of criminal law. Article VII charged actions and conduct, including a restate- § 3. Grounds for Impeach- ment of some of the charges con- ment; Form of Articles 20. Jefferson’s Manual states that: [B]y the usage of Parliament, in impeach- Article II, section 4 of the U.S. ment for writing or speaking, the Constitution defines the grounds particular words need not be specified in the accusation. House Rules 19. 77 CONG. REC. 4055, 73d Cong. 1st and Manual (Jefferson’s Manual) Sess. § 609 (1973).

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

1956 IMPEACHMENT POWERS Ch. 14 § 3

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

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

1958 IMPEACHMENT POWERS Ch. 14 § 3

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

1959 Ch. 14 § 3 DESCHLER’S PRECEDENTS

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

1960 IMPEACHMENT POWERS Ch. 14 § 3

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

1961 Ch. 14 § 3 DESCHLER’S PRECEDENTS

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

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

1963 Ch. 14 § 3 DESCHLER’S PRECEDENTS

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

1964 IMPEACHMENT POWERS Ch. 14 § 3

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

1965 Ch. 14 § 3 DESCHLER’S PRECEDENTS

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

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

1967 Ch. 14 § 3 DESCHLER’S PRECEDENTS

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

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

1969 Ch. 14 § 3 DESCHLER’S PRECEDENTS

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

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

1971 Ch. 14 § 3 DESCHLER’S PRECEDENTS

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

1973 Ch. 14 § 3 DESCHLER’S PRECEDENTS

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

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

1975 Ch. 14 § 3 DESCHLER’S PRECEDENTS

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

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

1977 Ch. 14 § 3 DESCHLER’S PRECEDENTS

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

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

1979 Ch. 14 § 3 DESCHLER’S PRECEDENTS

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

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

1981 Ch. 14 § 3 DESCHLER’S PRECEDENTS

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

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

1983 Ch. 14 § 3 DESCHLER’S PRECEDENTS

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

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

1985 Ch. 14 § 3 DESCHLER’S PRECEDENTS

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

1986 IMPEACHMENT POWERS Ch. 14 § 3

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

1987 Ch. 14 § 3 DESCHLER’S PRECEDENTS

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

1988 IMPEACHMENT POWERS Ch. 14 § 3

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

1989 Ch. 14 § 3 DESCHLER’S PRECEDENTS

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

1990 IMPEACHMENT POWERS Ch. 14 § 3

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

1991 Ch. 14 § 3 DESCHLER’S PRECEDENTS

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

1992 IMPEACHMENT POWERS Ch. 14 § 3

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

1993 Ch. 14 § 3 DESCHLER’S PRECEDENTS

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

1994 IMPEACHMENT POWERS Ch. 14 § 3

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

1995 Ch. 14 § 3 DESCHLER’S PRECEDENTS

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

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

1997 Ch. 14 § 3 DESCHLER’S PRECEDENTS

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

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

1999 Ch. 14 § 3 DESCHLER’S PRECEDENTS

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

2000 IMPEACHMENT POWERS Ch. 14 § 3

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

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

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

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

2003 Ch. 14 § 3 DESCHLER’S PRECEDENTS

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

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

2005 Ch. 14 § 3 DESCHLER’S PRECEDENTS

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

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

2007 Ch. 14 § 3 DESCHLER’S PRECEDENTS

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

2008 IMPEACHMENT POWERS Ch. 14 § 3

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

2009 Ch. 14 § 3 DESCHLER’S PRECEDENTS

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

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

2011 Ch. 14 § 3 DESCHLER’S PRECEDENTS

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

2012 IMPEACHMENT POWERS Ch. 14 § 3

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

2013 Ch. 14 § 3 DESCHLER’S PRECEDENTS

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

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

2015 Ch. 14 § 4 DESCHLER’S PRECEDENTS the resolution and articles of im- on the part of the House in the peachment being reported and Louderback impeachment pro- adopted in the 74th Congress. ceeding appeared before the Sen- Charges of impeachment were of- ate and read the resolution and fered and referred anew to the articles of impeachment. The Sen- Committee on the Judiciary in the ate adopted a motion that the pro- 74th Congress, but the resolution ceedings be made a special order reported and adopted by the of business on the first day of the House specifically referred to the first session of the 73d Con- evidence gathered during the 73d (13) Congress as the basis for im- gress. peachment.(12) The only other occasion where impeachment proceedings contin- Cross References ued into a new Congress occurred Adjournments generally and their effect in 1803–04, the resolution of im- on business, see Ch. 40, infra. peachment of Judge John Pick- Resumption of business in a new Con- gress, see Ch. 1, supra. ering being carried to the Senate Resumption of committee investigation by a House committee of two into conduct of Judge Ritter, see § 18, members on Mar. 3, 1803, the infra. final day of the 7th Congress. The Resumption of proceedings against Judge Senate organized for and con- Louderback in succeeding Congress, see § 17, infra. ducted the trial in the 8th Con- gress.(14) It should be noted that in nei- Impeachment in One Congress ther the Louderback nor Pickering and Trial in the Next impeachments did the trial in the Senate begin before the adjourn- § 4.1 The managers on the part ment sine die of the Congress. The of the House presented arti- issue whether the Senate could cles of impeachment against conduct a bifurcated trial, part in Judge Harold Louderback on one Congress and part in the the final day of the 72d Con- next, has not been presented.(15) gress, and the Senate organized for and conducted the 13. 6 Cannon’s Precedents § 515. 14. 3 Hinds’ Precedents §§ 2319, 2320. trial in the 73d Congress. Managers had not been appointed On Mar. 3, 1933, the last day of nor articles considered in the House the 72d Congress, the managers by the end of the 7th Congress. 15. For a memorandum as to whether an 12. See §§ 4.3, 4.4, infra. impeachment trial begun in one Con-

2016 IMPEACHMENT POWERS Ch. 14 § 4

Authority of Managers Fol- the House, being those Members lowing Expiration of Con- appointed in the 72d Congress to gress conduct the inquiry and re-elected to the 73d Congress, appeared for § 4.2 Where the House had im- the proceedings of the Senate sit- peached Judge Louderback ting as a Court of Impeach- in the 72d Congress but the ment.(16) Senate did not organize for On Mar. 22, the House adopted or conduct the trial until the a resolution electing successors for 73d Congress, the House in those managers elected in the 72d the 73d Congress adopted Congress who were no longer resolutions (1) appointing Members of the House, and re- Members to fill vacancies for appointing the former managers. managers not re-elected and The House discussed the power of reappointing managers elect- the House to appoint managers to ed in the 72d Congress and continue in office in that capacity (2) granting the managers after the expiration of the term to powers and funds. which elected to the House.(17) On Mar. 9, 1933, the first day of Investigation in One Congress the 73d Congress, the Senate sit- and Impeachment in the Next ting as a Court of Impeachment for the trial of Judge Harold § 4.3 The Committee on the Ju- Louderback met at 2 p.m., articles diciary determined in the of impeachment having been pre- 74th Congress that its au- sented in the Senate on the last thority to report out a reso- day of the 72d Congress. On Mar. lution impeaching a federal 13, the managers on the part of judge expired with the termi- gress could be continued into the nation of the Congress in next, see 120 CONG. REC. 31346–48, which the resolution con- 93d Cong. 2d Sess., Sept. 17, 1974 taining charges was intro- (insertion by Michael J. Mansfield duced and referred to the [Mont.], Majority Leader of the Sen- committee. ate). Under parliamentary law, an im- On Mar. 2, 1936, in the 74th peachment is not discontinued by the Congress, the House was consid- dissolution of Parliament but may be ering a resolution and articles of resumed by the new Parliament. See House Rules and Manual § 620 (Jef- 16. 6 Cannon’s Precedents § 516. ferson’s Manual) (1973). 17. 6 Cannon’s Precedents § 517.

2017 Ch. 14 § 4 DESCHLER’S PRECEDENTS impeachment, reported by the duced any more than it did in connec- Committee on the Judiciary, tion with any other bill or resolution against Judge Halsted L. Ritter, that might have been introduced in a previous Congress. Therefore, when an investigation of his conduct the question came up as to voting im- having been made in the 73d Con- peachment charges upon a resolution gress. Mr. William V. Gregory, of which was introduced in the Seventy- Kentucky, a member of the com- third Congress, I voted against such mittee, remarked on the effect, in action, and I think other Members voted the same way. But when the the 74th Congress, of an author- matter was properly presented at this izing resolution passed in the 73d session of Congress and impeachment Congress: (18) charges were made on this floor on the responsibility of the gentleman from MR. GREGORY: Mr. Speaker, in view of the statement made by the gen- Florida [Mr. Green], the matter came tleman from Florida [Mr. Wilcox], and before the committee again in regular more recently by the gentleman from and proper form, and I then voted to New York [Mr. Hancock], with ref- report out this resolution of impeach- erence to what happened in committee, ment. I think it proper I should make a I want the Members of the House to statement at this time. understand that the Committee on the The first proceedings in this matter Judiciary has not changed its position were instituted in the Seventy-third on this proposition at any time. These Congress. A simple resolution of inves- are the facts. tigation was introduced by the gentleman from Florida [Mr. Wilcox]. No § 4.4 Where the Committee on one during that session of Congress at- the Judiciary investigated tempted by resolution or upon his own charges of impeachable of- authority on the floor of the House to fenses against a federal prefer impeachment charges against judge in one Congress and the judge. The Seventy-third Congress died, and the gentleman from Florida reported to the House a reso- [Mr. Green] came before the Seventy- lution of impeachment in the fourth Congress and wanted some ac- next, the resolution indi- tion taken upon the resolution which cated that impeachment was had been introduced in the Seventy- warranted by the evidence third Congress. I took the position before the Committee—and I think oth- gathered in the investigation ers agreed with me—that with the conducted in the preceding passing of the Seventy-third Congress Congress. it had no power over the resolution of On Feb. 20, 1936, the Com- investigation which had been intro- mittee on the Judiciary submitted 18. 80 CONG. REC. 3089, 74th Cong. 2d a privileged report (H. Rept. No. Sess. 74–2025) on the impeachment of 2018 IMPEACHMENT POWERS Ch. 14 § 4

District Judge Halsted L. Ritter to for the southern district of Florida, be the House. The report and the ac- impeached for misbehavior, and for companying resolution recited high crimes and misdemeanors; and that the evidence heretofore taken by that the evidence taken by the the subcommittee of the Committee on Committee on the Judiciary in the the Judiciary of the House of Rep- prior Congress, the 73d Congress, resentatives under House Resolution pursuant to authorizing resolu- 163 of the Seventy-third Congress sus- tion, sustained articles of im- tains articles of impeachment, which peachment (the charges of im- are hereinafter set out; and that the peachable offenses had been pre- said articles be, and they are hereby, sented anew in the 74th Congress adopted by the House of Representa- tives, and that the same shall be ex- and referred to the committee): hibited to the Senate in the following The Committee on the Judiciary, words and figures, to wit: . . .(19) having had under consideration Parliamentarian’s Note: No res- charges of official misconduct against Halsted L. Ritter, a district judge of olution was adopted in the 74th the United States for the Southern Congress to specifically authorize District of Florida, and having taken an investigation in that Congress testimony with regard to the official by the Committee on the Judici- conduct of said judge under the author- ary of charges of impeachment ity of House Resolution 163 of the Sev- enty-third Congress, report the accom- against Judge Ritter, the inves- panying resolution of impeachment tigation apparently having been and articles of impeachment against completed in the 73d Congress but Halsted L. Ritter to the House of Rep- not reported on to the House. resentatives with the recommendation Charges were introduced in the that the same be adopted by the House and presented to the Senate. 74th Congress against Judge Rit- ter and referred to the committee, [H. Res. 422, 74th Cong., 2d sess. since the committee could not re- (Rept. No. 2025)] port resolutions and charges re- RESOLUTION ferred in the 73d Congress, all Resolved, That Halsted L. Ritter, business expiring in the House who is a United States district judge with a Congress.(20)

19. 80 CONG. REC. 2528, 74th Cong. 2d the Ritter impeachment proceedings, Sess. (report submitted); 80 CONG. see §§ 18.1–18.4, infra. REC. 3066, 74th Cong. 2d Sess., Mar. 20. For introduction of charges and a 2, 1936 (report considered in the House). resolution impeaching Judge Ritter For detailed discussion of com- in the 74th Congress, see §§ 18.2, mittee consideration and report in 18.3, infra.

2019 Ch. 14 § 5 DESCHLER’S PRECEDENTS

B. INVESTIGATION AND IMPEACHMENT § 5. Introduction and Re- Where a Member raises a ques- ferral of Charges tion of constitutional privilege to present impeachment proceedings In the majority of cases, im- on the floor of the House, he must peachment proceedings in the in the first instance offer a resolu- House have been initiated either tion, which resolution must di- by introducing resolutions of im- rectly call for impeachment, rath- (2) peachment by placing them in the er than call for an investigation. hopper, or by offering charges on Impeachment proceedings in the the floor of the House under a House have been set in motion by memorial or petition, (3) and on question of constitutional privi- one occasion by message from the lege. Resolutions dropped in the President.(4) In the 93d Congress hopper were used to initiate im- the Vice President sought to ini- peachment proceedings against tiate an investigation by the Associate Justice William O. House into charges pending Douglas and President Richard M. Nixon. Where such resolutions charges, without the adoption by the have directly impeached federal House of a resolution specifically au- civil officers, they have been re- thorizing an investigation (see § 6.11, ferred by the Speaker to the Com- infra). In the case of President Nixon, the Committee on the Judici- mittee on the Judiciary, which ary reported a resolution which was has jurisdiction over federal adopted by the House, specifically judges and presidential succes- conferring on the committee the sion; where they have called for power to investigate the charges (see an investigation into such charges § 6.2, infra). by the Committee on the Judici- 2. See § 5.4, infra. But see § 18.2, infra, ary or by a select committee they for one occasion where a Member gained the floor under a question of have been referred by the Speaker privilege and offered charges but not to the Committee on Rules, which a resolution of impeachment. has had jurisdiction over resolu- 3. 3 Hinds’ Precedents § § 2364, 2469 tions authorizing investigations by (memorial from state legislature ini- committees of the House.(1) tiating proceedings against Judge Charles Swayne, resulting in his im- 1. See § § 5.10, 5.11, infra. In the case peachment), 2491, 2494, 2496; 6 of Justice Douglas, the Committee on Cannon’s Precedents § 552. the Judiciary authorized a special 4. 3 Hinds’ Precedents § 2294 (Senator subcommittee to investigate the William Blount).

2020 IMPEACHMENT POWERS Ch. 14 § 5 against him in the courts, but no Andrew W. Mellon, and offered a action was taken on his request resolution authorizing an inves- (by letter to the Speaker).(5) tigation: Cross References IMPEACHMENT OF ANDREW W. MELLON, SECRETARY OF THE TREASURY Initiation of specific impeachment proceedings, see §§ 15–18, infra. MR. PATMAN: Mr. Speaker, I rise to Jurisdiction of House committees gen- a question of constitutional privilege. On my own responsibility as a Member erally, see Ch. 17, infra. of this House, I impeach Andrew Wil- Privilege for consideration of amend- liam Mellon, Secretary of the Treasury ments to articles of impeachment, see of the United States, for high crimes § 10, infra. and misdemeanors, and offer the fol- Privilege of reports on impeachment, see lowing resolution: § 8, infra. Whereas . . . Questions of privilege of the House, rais- Resolved, That the Committee on ing and substance of, see Ch. 11, the Judiciary is authorized and di- supra. rected, as a whole or by sub- Resolutions, petitions and memorials committee, to investigate the official conduct of Andrew W. Mellon, Sec- generally, see Ch. 24, infra. retary of the Treasury, to determine whether, in its opinion, he has been guilty of any high crime or misdemeanor which, in the contempla- Privilege of Impeachment tion of the Constitution, requires the Charges and Resolutions interposition of the constitutional powers of the House. Such committee shall report its findings to the § 5.1 A proposition impeaching House, together with such resolution a federal civil officer is privi- of impeachment or other rec- leged when offered on the ommendation as it deems proper. floor of the House. Sec. 2. For the purposes of this resolution, the committee is authorized to ( ) On Jan. 6, 1932, 6 Mr. Wright sit and act during the present Con- Patman, of Texas, rose to a ques- gress at such times and places in the tion of constitutional privilege, im- District of Columbia or elsewhere, whether or not the House is sitting, peached Secretary of the Treasury has recessed, or has adjourned, to hold such hearings, to employ such experts, 5. See § 5.14, infra, for Vice President and such clerical, stenographic, and Spiro T. Agnew’s request and for a other assistants, to require the attend- discussion of other cases where fed- ance of such witnesses and the produc- eral civil officers have sought to inition of such books, papers, and docu- tiate investigations into charges ments, to take such testimony, to have against them. such printing and binding done, and to 6. 75 CONG. REC. 1400, 72d Cong. 1st make such expenditures not exceeding Sess. $5,000, as it deems necessary.

2021 Ch. 14 § 5 DESCHLER’S PRECEDENTS

§ 5.2 Although a resolution of THE SPEAKER PRO TEMPORE: (8) The impeachment is privileged, it gentleman from New Hampshire has the floor. may not be called up in the MR. WYMAN: I did not yield for that House while another Member purpose. has the floor and does not THE SPEAKER PRO TEMPORE: The yield for that purpose, but it gentleman from Indiana has intro- may be introduced for ref- duced a resolution.(9) erence through the hopper at § 5.3 The Speaker ruled that the Clerk’s desk. whether or not a resolution On Apr. 15, 1970, Mr. Louis C. of impeachment was privi- Wyman, of New Hampshire, had leged was a constitutional the floor for a special-order speech question for the House and and yielded to Mr. Andrew Jacobs, not the Chair to decide, Jr., of Indiana: where the resolution in- MR. JACOBS: Mr. Speaker, will the cluded charges against gentleman yield for a three-sentence statement? former civil officers. MR. WYMAN: I yield to the gen- On May 23, 1933, Mr. Louis T. tleman from Indiana. McFadden, of Pennsylvania, rose MR. JACOBS: Mr. Speaker, the gen- to a question of constitutional tleman from Michigan has stated publicly that he favors impeachment of privilege and offered House Reso- Justice Douglas. lution 158, impeaching numerous He, therefore, has a duty to this members and former members of House and this country to file a resolu- the Federal Reserve Board. Dur- tion of impeachment. ing the reading of the resolution Since he refuses to do so and since he raises grave questions, the answers Mr. Carl E. Mapes, of Michigan, to which I do not know, but every made a point of order against the American is entitled to know, I intro- resolution: duce at this time the resolution of impeachment in order that a proper and I wish to submit the question to the dignified inquiry into this matter Speaker as to whether or not a person might be held. who is not now in office is subject to impeachment? This resolution of the Mr. Jacobs then introduced his gentleman from Pennsylvania refers to resolution (H. Res. 920) through several people who are no longer hold- the hopper and it was subse- ing any public office. They are not now quently referred to the Committee at least civil officers. The Constitution on the Judiciary.(7) 8. Charles M. Price (Ill.). 7. 116 CONG. REC. 11942, 91st Cong. 2d 9. 116 CONG. REC. 11920, 91st Cong. 2d Sess. Sess.

2022 IMPEACHMENT POWERS Ch. 14 § 5

provides that the ‘‘President, Vice QUESTION OF PRIVILEGE President, and all civil officers shall be MR. MCFADDEN: Mr. Speaker, I rise removed from office on impeachment’’, to a question of constitutional privi- and so forth. I have had no opportunity lege. to examine the precedents since this THE SPEAKER: The gentleman will matter came up, but it occurs to me state it. that the resolution takes in too much territory to make it privileged. MR. MCFADDEN: Mr. Speaker, on De- cember 13, 1932—— Speaker Henry T. Rainey, of Il- MR. [ROBERT] LUCE [of Massachu- linois, ruled as follows: setts: Mr. Speaker, a point of order. THE SPEAKER: The gentleman will That is a constitutional question state it. which the Chair cannot pass upon, but should be passed upon by the House. MR. LUCE: Mr. Speaker, the raising The resolution was referred on mo- of a question of constitutional privilege tion to the Committee on the Judici- must be preceded by a resolution or motion ary.(10) THE SPEAKER: As the Chair under- Initiation of Impeachment stands it, the gentleman is stating his constitutional question. Has the gen- Charges by Motion or Resolu- tleman a resolution? tion MR. MCFADDEN: I am trying to communicate to the House what I propose § 5.4 In impeaching an officer to do here, Mr. Speaker. of the United States as a mat- MR. LUCE: I insist on the point of ter of constitutional privi- order, Mr. Speaker. lege, a Member must in the THE SPEAKER: The rules of the first instance present a mo- House provide that the gentleman tion or resolution. must send a resolution to the Clerk’s desk in raising a question of constitu- On Jan. 18, 1933, Mr. Louis T. tional privilege. McFadden, of Pennsylvania, at- MR. MCFADDEN: If the Speaker will tempted to impeach President permit, I am attempting to make a Herbert Hoover by presenting a privileged statement to the House, and question of constitutional privi- I believe I am within my rights in doing this. lege. Speaker John N. Garner, of THE SPEAKER: In order for the gen- Texas, ruled that a resolution or tleman to have the right to make such motion must first be presented: (11) a statement to the House, he must send a resolution to the Clerk’s desk 10. 77 CONG. REC. 4055, 73d Cong. 1st and have it read, on which the House Sess. may then act. The gentleman would 11. 76 CONG. REC. 2041, 2042, 72d Cong. then have one hour in which to ad- 2d Sess. dress the House, if he presented a

2023 Ch. 14 § 5 DESCHLER’S PRECEDENTS

question of constitutional privilege. he is entitled to under the rules of the That is the only way the gentleman House, but at the same time it is the can obtain the floor. duty of the Chair to maintain the MR. MCFADDEN: Mr. Speaker, I be- rules, and it is the impression of the lieve under the rules I am entitled to Chair from observation during the last make a statement. 20 years that whenever a Member THE SPEAKER: Not prior to the sub- states a question of constitutional mission of a resolution. privilege it must be done in the form of MR. MCFADDEN: If the Speaker will a resolution. If a Member raises a pardon me, I have not offered a resolu- question of personal privilege, the tion. I rise to a question of constitu- Member may then state the question of tional privilege, and I believe I have personal privilege and is entitled to an the right to communicate to the House hour. Questions of personal privilege a constitutional privilege. are on a different footing from a con- MR. [THOMAS L.] BLANTON [of stitutional question of privilege. Texas]: Mr. Speaker, I make the point MR. MCFADDEN: Mr. Speaker, I am of order that if the integrity of the gen- still of the opinion that I am within my tleman has been impugned in any way constitutional rights and am entitled to by anyone, this would give him a con- communicate a statement to the House stitutional privilege, and he has the of Representatives. right to rise to that privilege and state THE SPEAKER: The Parliamentarian it without offering a resolution. has just called the attention of the THE SPEAKER: That is true of a ques- Chair to a decision by Speaker Long- tion of personal privilege, but the gen- worth, of February 16, 1929 (70th tleman rises to a question of constitu- Cong., 2d sess., Record, p. 3602), in tional privilege. This can only be done, which he says: as the Chair understands it, by the In presenting a question of the presentation of a resolution upon privilege of the House a Member, in which the constitutional question is the first instance, must present a based. A mere statement by the gen- motion or resolution. Of course, this tleman does not comply with the rules rule does not apply to a Member ris- of the House. If the gentleman has no ing to a question of personal privilege. resolution involving a constitutional question, the Chair thinks he is not en- This is a decision of Speaker Long- titled to recognition. worth, rendered in 1929, which is on MR. MCFADDEN: May I point out, all fours with this situation. The gen- Mr. Speaker, that impeachment pro- tleman is not presenting a question of ceedings are brought by other ways personal privilege but a question of than formal whereases. It has been constitutional privilege, and, in the in- done at times by a memorial. I insist, stance referred to, following a number Mr. Speaker, I am within my rights in of precedents, it was held that the communicating my statement to the Member must present a resolution in House of Representatives. the first instance on which to base his THE SPEAKER: The Chair wants to statement to the House, and then give the gentleman all the privileges would be entitled to one hour.

2024 IMPEACHMENT POWERS Ch. 14 § 5

MR. MCFADDEN: Mr. Speaker, I Member need not offer arti- again call attention to the fact that im- cles of impeachment, which peachments may be brought by memorials and by other methods than that are prepared by the appro- which has been stated in the decision priate committee. referred to. On May 7, 1935,(12) Mr. Everett THE SPEAKER: When such memorials M. Dirksen, of Illinois, rose to a and petitions are presented to the question of constitutional privilege House they are referred to the committee having jurisdiction of the par- and impeached Judge Samuel ticular subject. If a Member of the Alschuler; he offered House Reso- House bases his question of privilege lution 214, authorizing an inves- on a memorial or petition, the memo- tigation by the Committee on the rial or petition must first be reported Judiciary. During his remarks, by the Clerk, and then the House may Speaker Joseph W. Byrns, of Ten- take such action as it sees fit. nessee, upheld the privileged na- MR. MCFADDEN: May not a Member ture of the charges: of the House, under the right given him by the Constitution, present a MR. [DONALD C.] DOBBINS [of Illi- communication to the House of Rep- nois]: Mr. Speaker, a point of order. I resentatives which might later result have heard no articles of impeachment in an impeachment? read. As I have listened to the matter THE SPEAKER: If the gentleman has presented by the gentleman from Illi- a communication of that character, let nois [Mr. Dirksen], it is nothing more him send it to the Clerk’s desk and the nor less than a resolution asking for an Clerk will report it. Then the House inquiry, and not articles of impeach- can take such action as it deems prop- ment. It seems to me that it is not a er. The Chair wants to be perfectly privileged matter, and the gentleman frank, and if the gentleman from Penn- is not entitled to occupy the time of the House in this manner. The gentleman sylvania is undertaking to address the has not offered any articles of impeach- House for one hour, the Chair has no ment. objection to that; but the Chair must THE SPEAKER: The gentleman has of- maintain the rules and precedents of fered no articles of impeachment. He is the House as the Chair finds them, simply making charges. and the gentleman can not get the floor under the proposition he has pre- MR. DOBBINS: I assumed he had finished. There have been no articles of sented at the present time unless he impeachment presented. sends up a resolution or motion. THE SPEAKER: Charges of impeachment; not articles of impeachment. Offering Articles of Impeach- MR. DOBBINS: I have heard no arti- ment cles of impeachment read.

§ 5.5 In presenting impeach- 12. 79 CONG. REC. 7081–86, 74th Cong. ment charges as privileged, a 1st Sess. 2025 Ch. 14 § 5 DESCHLER’S PRECEDENTS

MR. DIRKSEN: It seems to me this present impeachment was in its entirety articles of impeach- charges against an officer of ment. the government is entitled to MR. DOBBINS: It is nothing more that a resolution of inquiry. an hour for debate. MR. DIRKSEN: Perhaps the gen- On Jan. 14, 1936, Mr. Robert A. tleman did not hear the first part of Green, of Florida, rose to a ques- my remarks. I will read the first para- tion of constitutional privilege and graph of this report: presented charges of impeachment Samuel Alschuler, justice of the against Judge Halsted L. Ritter. Circuit Court of Appeals, Seventh Circuit, is impeached for high crimes During the course of his remarks, and misdemeanors in said office Speaker Joseph W. Byrns, of Ten- upon the following specific charges. nessee, ruled as follows on rec- MR. DOBBINS: As I understand arti- ognition and time for debate: cles of impeachment, Mr. Speaker, that THE SPEAKER: The Chair will state does not amount to an impeachment at to the gentleman from Michigan [Mr. all. Carl E. Mapes] that the gentleman THE SPEAKER: The gentleman does from Florida having raised a question not prepare articles of impeachment. of privilege and having made these That is done by the committee. charges is entitled to 1 hour on the MR. DOBBINS: It is simply a resolu- charges. The gentleman has been rection of inquiry such as we have offered ognized and may use all or any portion here every day, and is not a privileged of the hour he sees fit.(13) matter. THE SPEAKER: The Chair can only § 5.7 In presenting impeach- state what the gentleman said when ment charges as privileged, a he took the floor; that is, that he was Member is not necessarily preferring charges of impeachment confined to a bare statement against a certain United States circuit of the facts but may supple- judge. ment them with argumen- MR. DOBBINS: But there have been no such charges; simply a resolution of tative statements. inquiry. On May 7, 1935, Mr. Everett M. THE SPEAKER: The gentleman is Dirksen, of Illinois, rose to a ques- making his charges now. tion of constitutional privilege and impeached Circuit Judge Samuel Debate on Question of Privi- Alschuler. He was recognized for lege to Present Impeachment an hour and during his remarks Charges Speaker Joseph W. Byrns, of Ten-

§ 5.6 A Member recognized on 13. 80 CONG. REC. 404, 406, 74th Cong. a question of privilege to 2d Sess. 2026 IMPEACHMENT POWERS Ch. 14 § 5 nessee, overruled a point of order nois so far as the propriety of his state- against the content of his re- ment is concerned. marks: (14) MR. DIRKSEN: I do not want to violate any of the proprieties of the MR. [HATTON W.] SUMNERS of Texas: House, Mr. Speaker. I am not familiar with the precedents, MR. SUMNERS of Texas: I do not but I have the impression that in pre- know what they are myself. ferring charges of impeachment, argu- THE SPEAKER: The gentleman from mentative statements should be avoid- Illinois is making his statement on his ed as much as possible. If I am wrong own responsibility as a Member of the in that statement with reference to House. what the precedents and custom have established, I of course withdraw the On Jan. 14, 1936, Mr. Robert A. observation. Green, of Florida, rose to a ques- MR. DIRKSEN: Mr. Speaker, I have tion of constitutional privilege and no desire to violate the precedents, and presented charges of impeachment if I have done so it is only because I against Judge Halsted L. Ritter. have not had an opportunity to exam- During the course of his remarks, ine them thoroughly, but if the objection is well taken, I should prefer not Speaker Byrns overruled a point to present argumentative matters to of order against the personal na- ( ) the House. ture of Mr. Green’s remarks: 15 MR. SUMNERS of Texas: I am sure MR. [CARL E.] MAPES [of Michigan]: the gentleman does not propose to vio- Mr. Speaker, as I understand, the gen- late the precedents, and unfortunately tleman has made his impeachment I do not know about the matter myself. charges, and for the last 10 minutes I am not advised as to what the prece- has been proceeding almost entirely dents establish, but without looking with an argument and a personal them up, merely from the standpoint of statement which I do not think are in what would seem to be proper proce- order under the circumstances. I think dure, it occurs to me that all argumen- I will make the point of order, Mr. tative statements be omitted in prefer- Speaker. ring impeachment charges. THE SPEAKER: The Chair will state MR. DIRKSEN: Mr. Speaker, there are to the gentleman from Michigan that two more pages of explanatory matter the gentleman from Florida having which perhaps I should not present to raised a question of privilege and hav- the House at this time if the point is ing made these charges is entitled to 1 well taken. I would, however, like to hour on the charges. The gentleman put them into the Record as elabo- has been recognized and may use all or rating the statement of specific charges any portion of the hour he sees fit. that have been made. MR. MAPES: Is the gentleman enti- THE SPEAKER: The Chair thinks it is tled during that hour to engage in a entirely up to the gentleman from Illi- general discussion of the charges?

14. 79 CONG. REC. 7081–86, 74th Cong. 15. 80 CONG. REC. 404, 406, 74th Cong. 1st Sess. 2d Sess.

2027 Ch. 14 § 5 DESCHLER’S PRECEDENTS

THE SPEAKER: He is, under all the pena power and resolutions fund- precedents with which the Chair is fa- ing such investigations from the miliar. contingent fund of the House are Privilege of Questions Inci- normally only privileged when re- dental to Impeachment spectively reported and called up by the Committee on Rules or the § 5.8 Where privileged resolu- Committee on House Administra- tions for the impeachment of tion.(17) But a committee to which a federal civil officer have resolutions of impeachment have been referred to a com- been referred may report and call mittee, that committee may up as privileged resolutions inci- report and call up as privi- dental to the consideration of the leged resolutions incidental impeachment question. For exam- to consideration of the imple, charges of impeachable of- peachment question, includ- fenses were referred to the Com- ing those pertaining to sub- mittee on the Judiciary in 1927, pena authority and funding in relation to the conduct of Dis- of an investigation. trict Judge Frank Cooper. The Committee on the Judiciary sub- On Feb. 6, 1974, Peter W. Ro- sequently called up as privileged a dino, Jr., of New Jersey, Chair- resolution authorizing an inves- man of the Committee on the Ju- tigation by the committee and diciary, called up as privileged funding such investigation from House Resolution 803, authorizing the contingent fund of the House. that committee to investigate the In response to a parliamentary insufficiency of grounds for im- quiry, Speaker Nicholas Long- peachment of President Richard worth, of Ohio, ruled that the res- Nixon. Various resolutions of im- olution was privileged ‘‘because it peachment of the President had relates to impeachment pro- previously been referred to the ceedings.’’ (18) If, however, such a committee.(16) Parliamentarian’s Note: Resolu- 17. See Rule XI clause 22, House Rules tions authorizing a committee to and Manual § 726 (1973), giving conduct investigations with sub- privileged status to reports of the Committee on House Administration 16. 120 CONG. REC. 2349, 2350, 93d on matters of expenditure of the con- Cong. 2d Sess. For the events lead- tingent fund. ing up to the presentation and adop- 18. 6 Cannon’s Precedents § 549. For tion of H. Res. 803, and the reasons other occasions where the Committee for its presentation, see § 15, infra. on the Judiciary has reported and

2028 IMPEACHMENT POWERS Ch. 14 § 5 resolution is offered on the floor ment proceeding, was privileged by a Member on his own initiative for immediate consideration: (1) and not reported from the com- THE SPEAKER: The Clerk will report mittee to which the impeachment the resolution. has been referred, it is not privi- The Clerk read the resolution, as fol- leged for immediate consideration, lows: since not directly calling for impeachment.(19) HOUSE RESOLUTION 387 Resolved, That the evidence sub- § 5.9 Resolutions proposing the mitted on the charges against Hon. Harold Louderback, district judge for discontinuation of impeach- the northern district of California, ment proceedings are privi- does not warrant the interposition of leged for immediate consid- the constitutional powers of impeachment of the House. eration when reported from the committee charged with MR. [BERTRAND H.] SNELL [of New the investigation. York]: Mr. Speaker, when they report back a resolution of that kind, is it a On Feb. 13, 1932, Mr. Hatton privileged matter? W. Sumners, of Texas, offered THE SPEAKER: It is not only a privi- House Report No. 444 and House leged matter but a highly privileged Resolution 143, discontinuing im- matter. peachment proceedings against MR. [LEONIDAS C.] DYER [of Mis- Secretary of the Treasury Andrew souri]: Mr. Speaker, this is the first instance to my knowledge, in my service W. Mellon. He offered the report here, where the committee has re- as privileged and it was imme- ported adversely on an impeachment diately considered and adopted by charge. (20) the House. THE SPEAKER: The gentleman’s On Feb. 24, 1933, Speaker John memory should be refreshed. The Mel- N. Garner, of Texas, held that a lon case was reported back from the resolution reported from the Com- committee, recommending that im- mittee on the Judiciary, proposing peachment proceedings be discontinued. the discontinuance of an impeach- MR. SNELL: Was that taken up on called up as privileged resolutions the floor as a privileged matter? authorizing the committee to conduct THE SPEAKER: It was. impeachment investigations, see 3 On Mar. 24, 1939, Mr. Sam Hinds’ Precedents § 2029 and 6 Can- Hobbs, of Alabama, called up a re- non’s Precedents §§ 498, 528. 19. 6 Cannon’s Precedents § 468. 1. 76 CONG. REC. 4913, 72d Cong. 2d 20. 75 CONG. REC. 3850, 72d Cong. 1st Sess. (also cited at 6 Cannon’s Prece- Sess. dents § 514).

2029 Ch. 14 § 5 DESCHLER’S PRECEDENTS port of the Committee on the Ju- By Mr. Long of Maryland: diciary on House Resolution 67, H. Con. Res. 365. Concurrent resolu- which report recommended tion of censureship without prejudice to impeachment; to the Committee on against the impeachment of Sec- the Judiciary. retary of Labor Frances Perkins. By Ms. Abzug: The report was called up as privi- H. Res. 625. Resolution impeaching leged and the House immediately Richard M. Nixon, President of the agreed to Mr. Hobbs’ motion to United States, for high crimes and (2) misdemeanors; to the Committee on lay the report on the table. the Judiciary. By Mr. Ashley: Referral of Resolutions Intro- H. Res. 626. Resolution directing the duced Through Hopper Committee on the Judiciary to investigate whether there are grounds for § 5.10 Resolutions introduced the impeachment of Richard M. Nixon; through the hopper under to the Committee on Rules. Rule XXII which directly By Mr. Bingham: called for the impeachment H. Res. 627. Resolution directing the Committee on the Judiciary to inquire or censure of President Rich- into and investigate whether grounds ard Nixon in the 93d Con- exist for the impeachment of Richard gress were referred by the M. Nixon; to the Committee on Rules. Speaker to the Committee on By Mr. Burton (for himself, Ms. the Judiciary, while resolu- Abzug, Mr. Anderson of Cali- tions calling for an investiga- fornia, Mr. Aspin, Mr. Bergland, Mr. Bingham, Mr. Brasco, Mr. tion by that committee or by Brown of California, Mr. Boland, a select committee with a Mr. Brademas, Mrs. Chisholm, view toward impeachment Mr. Culver, Mr. Conyers, Mr. were referred to the Com- Dellums, Mr. Drinan, Mr. mittee on Rules. Eckhardt, Mr. Edwards of Cali- fornia, Mr. Evans of Colorado, On Oct. 23, 1973, resolutions re- Mr. Fascell, Mr. Fauntroy, Mr. lating to the impeachment of Foley, Mr. William D. Ford, Mr. President Nixon were introduced Fraser, Mr. Giaimo, and Ms. Grasso): (placed in the hopper pursuant to Rule XXII clause 4) and severally 11941, 11942, 91st Cong. 2d Sess., referred as follows: (3) Apr. 15, 1970 (resolution impeaching Associate Justice William O. Douglas 2. 84 CONG. REC. 3273, 76th Cong. 1st of the Supreme Court, referred to Sess. the Committee on the Judiciary). See 3. 119 CONG. REC. 34873, 93d Cong. 1st also House Rules and Manual § 854 Sess. See also 116 CONG. REC. (1973) .

2030 IMPEACHMENT POWERS Ch. 14 § 5

H. Res. 628. Resolution directing the tions authorizing the Com- Committee on the Judiciary to inquire mittee on the Judiciary to in- into and investigate whether grounds exist for the impeachment of Richard vestigate the conduct of fed- M. Nixon; to the Committee on Rules. eral officials and directing ... said committee to report its By Mr. Hechler of West Virginia: findings to the House ‘‘to- H. Res. 631. Resolution that Richard gether with such resolutions M. Nixon, President of the United States, is impeached of high crimes of impeachment as it deems and misdemeanors; to the Committee proper.’’ on the Judiciary. On Feb. 22, 1966,(4) a resolution By Mrs. Heckler of Massachusetts: (H. Res. 739) ‘‘authorizing the H. Res. 632. Resolution to appoint a Special Prosecutor; to the Committee Committee on the Judiciary to on the Judiciary. . . . conduct certain investigations’’ By Mr. McCloskey: was referred to the Committee on H. Res. 634. Resolution of inquiry; to Rules. The resolution called for an the Committee on the Judiciary. investigation into the official con- H. Res. 635. Resolution for the im- duct of Federal District Court peachment of Richard M. Nixon; to the Committee on the Judiciary. Judges Alfred P. Murrah, Stephen By Mr. Mazzoli: S. Chandler, and Luther H. Res. 636. Resolution: an inquiry Bohannon, in Oklahoma, and di- into the existence of grounds for the rected the Committee on the Judi- impeachment of Richard M. Nixon, ciary to report its findings to the President of the United States; to the House ‘‘together with such resolu- Committee on Rules. tions of impeachment as it deems By Mr. Milford: H. Res. 637. Resolution providing for proper.’’ the establishment of an Investigative Committee to investigate alleged Presi- Motions to Lay on the Table or dential misconduct; to the Committee to Refer on Rules. By Mr. Mitchell of Maryland (for § 5.12 The motion to lay on the himself, Mr. Burton, and Mr. table applies to resolutions Fauntroy): proposing impeachment and H. Res. 638. Resolution impeaching Richard M. Nixon, President of the may deprive a Member who United States, of high crimes and mis- has offered such a resolution demeanors; to the Committee on the of recognition for debate Judiciary. thereon.

§ 5.11 The Committee on Rules 4. 112 CONG. REC. 3665, 89th Cong. 2d has jurisdiction of resolu- Sess. 2031 Ch. 14 § 5 DESCHLER’S PRECEDENTS

On Jan. 17, 1933,(5) Speaker a matter from the table by proceeding John N. Garner, of Texas, held with a second movement of the same that the motion to table applied to sort? THE SPEAKER: The Chair, of course, resolutions of impeachment and has not heard the resolution read. could deprive the proponent of de- Probably if it was identical with the bate on such a resolution: resolution submitted some time ago and laid on the table there would be MR. [LOUIS T.] MCFADDEN [of Penn- sylvania]: On my own responsibility, as some question whether or not a second a Member of the House of Representa- impeachment could be had. But the tives, I impeach Herbert Hoover, Presi- President can be impeached, or any dent of the United States, for high person provided for by the Constitu- crimes and misdemeanors. tion, a second time, and the Chair thinks the better policy would be to THE SPEAKER: The Clerk will report the resolutions. have the resolution read and determine whether or not it is the same. MR. MCFADDEN: Mr. Speaker, a parliamentary inquiry. MR. [FRED A.] BRITTEN [of Illinois]: Mr. Speaker, a parliamentary inquiry. THE SPEAKER: The gentleman will state it. THE SPEAKER: The gentleman will state it. MR. MCFADDEN: Am I not entitled to an hour to discuss the resolution? MR. BRITTEN: Would a motion be in order at this time? THE SPEAKER: The gentleman is entitled to an hour, but first the Clerk THE SPEAKER: No. The Chair would must report the resolution of impeach- not recognize any Member to make a ment. motion until the resolution is read. MR. MCFADDEN: I offer the following MR. BRITTEN: Mr. Speaker, I ask resolution. unanimous consent that the resolution be considered as having been read. THE SPEAKER: The Clerk will report the resolution. THE SPEAKER: The Chair thinks the The Clerk read as follows: . . . resolution should be read. R C ADDEN MR. [ROBERT] LUCE [of Massachu- M . M F (again interrupting setts] (interrupting the reading of the the reading of the resolution): Mr. resolution): Mr. Speaker, a parliamen- Speaker, a parliamentary inquiry. tary inquiry. THE SPEAKER: The gentleman will THE SPEAKER: The gentleman will state it. state it. MR. MCFADDEN: I understand that MR. LUCE: On a previous occasion at the completion of the reading of this charges apparently of the same pur- resolution it is planned—— port were laid on the table by the THE SPEAKER: That is not a par- House. Is it within the province of any liamentary inquiry. That is a state- Member to evade the rules and to take ment. MR. MCFADDEN: I am attempting to 5. 76 CONG. REC. 1965–68, 72d Cong. state a parliamentary inquiry, Mr. 2d Sess. Speaker.

2032 IMPEACHMENT POWERS Ch. 14 § 5

THE SPEAKER: The gentleman will House. Therefore the motion is in state it. The Chair will hear the gen- order. tleman. MR. [BERTRAND H.] SNELL [of New MR. MCFADDEN: During the opening York]: Mr. Speaker, I demand the yeas I addressed the Speaker to ascertain and nays. whether or not I would be protected in Parliamentarian’s Note: Under one hour time for debate. I am pre- Rule XVI clause 4, the motion to pared to debate. I understand a certain motion will be made which will deprive lay on the table may be offered me of that right. while a question is under debate, THE SPEAKER: The Chair can not including a question of privilege, control 434 Members of the House in and is not debatable. The motion the motions they will make. The Chair to refer is also in order under the must recognize them and interpret the rule and is debatable within nar- rules as they are written. That is what row limits. The question of consid- the Chair intends to do. The gentleman from Pennsylvania would have eration may also be raised under an opportunity to discuss this matter Rule XVI clause 3; it is not debat- for an hour under the rules of the able, but may be demanded before House, if some gentleman did not take debate on the pending question, him off his feet by a proper motion. and may be raised against a ques- [Applause.] tion of the highest privilege.(6) MR. MCFADDEN: That is what I was attempting to ascertain. § 5.13 Resolutions authorizing The Clerk concluded the reading of investigations into charges of the resolution. impeachment have been re- MR. [HENRY T.] RAINEY [of Illinois]: Mr. Speaker, I move to lay the resolu- ferred, on motion, to the tion of impeachment on the table. Committee on the Judiciary. THE SPEAKER: The gentleman from On Jan. 24, 1939,(7) a Member Illinois moves to lay the resolution of declared his impeachment of cer- impeachment on the table. tain officials of the executive May the Chair be permitted to make branch, including Secretary of a statement with reference to the rule applying to that motion? The Parlia- Labor Frances Perkins: mentarian has examined the prece- MR. [J. PARNELL] THOMAS of New dents with reference to the motion. Jersey: Mr. Speaker, on my own re- Speaker Clark and Speaker Gillette, sponsibility as a Member of the House under identical conditions, held that a motion to lay on the table took a Mem- 6. See Rule XVI clauses 3, 4 and notes ber off the floor of the House, although thereto, House Rules and Manual the general rules granted him one hour §§ 778–787 (1973). in which to discuss the resolution of 7. 84 CONG. REC. 702–11, 76th Cong. impeachment or privileges of the 1st Sess.

2033 Ch. 14 § 5 DESCHLER’S PRECEDENTS

of Representatives, I impeach Frances rected to sit and act, during the Perkins, Secretary of Labor of the present session of Congress, at such United States; James L. Houghteling, times and places in the District of Co- Commissioner of the Immigration and lumbia, or elsewhere, whether or not Naturalization Service of the Depart- the House is sitting, has recessed, or ment of Labor; and Gerard D. Reilly, has adjourned; to hold hearings; to employ such experts and such clerical, Solicitor of the Department of Labor, stenographic and other assistance; and as civil officers of the United States, to require the attendance of such wit- for high crimes and misdemeanors in nesses and the production of such violation of the Constitution and laws books, papers, and documents; and to of the United States, and I charge that take such testimony and to have such the aforesaid Frances Perkins, James printing and binding done; and to L. Houghteling, and Gerard D. Reilly, make such expenditures not exceeding as civil officers of the United States, $10,000, as it deems necessary. . . . were and are guilty of high crimes and MR. [SAM] RAYBURN [of Texas]: Mr. misdemeanors in office in manner and Speaker, I move that the resolution be form as follows, to wit: . . . referred to the Committee on the Judi- ciary of the House and upon that I de- Mr. Thomas offered a resolution sire to say just a word. A great many authorizing an investigation of suggestions have been made as to what charges, which resolution was re- should be done with this resolution, but I think this would be the orderly ferred, on motion, to the Com- procedure so that the facts may be de- mittee on the Judiciary: veloped. The resolution will come out of that committee or remain in it ac- Resolved, That the Committee on the cording to the testimony adduced. Judiciary be and is hereby authorized I therefore move the previous ques- and directed, as a whole or by sub- tion on my motion to refer, Mr. Speak- committee, to investigate the official er. conduct of Frances Perkins, Secretary The previous question was ordered. of Labor; James L. Houghteling, Com- The motion was agreed to. missioner of Immigration and Natu- (8) ralization Service, Department of On Jan. 6, 1932, a privileged Labor; and Gerard D. Reilly, Solicitor, resolution proposing an investiga- Department of Labor, to determine tion directed towards impeach- whether, in its opinion, they have been ment, offered as privileged on the guilty of any high crimes or mis- floor, was on motion referred to demeanors which, in the contemplation the Committee on the Judiciary: of the Constitution, requires the interposition of the constitutional powers of IMPEACHMENT OF ANDREW W. MELLON, the House. Such committee shall re- SECRETARY OF THE TREASURY port its findings to the House together MR. [WRIGHT] PATMAN [of Texas]: with such articles of impeachment as Mr. Speaker, I rise to a question of the facts may warrant. For the purposes of this resolution 8. 75 CONG. REC. 1400, 72d Cong. 1st the committee is authorized and di- Sess.

2034 IMPEACHMENT POWERS Ch. 14 § 5

constitutional privilege. On my own re- nessee, that the articles be referred to sponsibility as a Member of this the Committee on the Judiciary. The House, I impeach Andrew William motion was agreed to. Mellon, Secretary of the Treasury of the United States for high crimes and misdemeanors, and offer the following Initiation of Investigation by resolution: . . . Accused Resolved, That the Committee on the Judiciary is authorized and di- § 5.14 The Vice President rected, as a whole or by sub- sought to initiate an inves- committee, to investigate the official conduct of Andrew W. Mellon, Sec- tigation by the House of cer- retary of the Treasury, to determine tain charges brought against whether, in its opinion, he has been him, but the House took no guilty of any high crime or misdemeanor which, in the contempla- action on the request. tion of the Constitution, requires the On Sept. 25, 1973,(10) Speaker interposition of the constitutional powers of the House. Such com- Carl Albert, of Oklahoma, laid be- mittee shall report its findings to the fore the House a communication House together with such resolution from Vice President Spiro T. of impeachment or other recommendation as it deems proper. Agnew requesting that the House Sec. 2. For the purposes of this investigate charges which might resolution, the committee is author- ‘‘assume the character of impeach- ized to sit and act during the present Congress at such times and places in able offenses’’ made against him the District of Columbia or else- by a U.S. Attorney in the course where, whether or not the House is of a criminal investigation. The sitting, has recessed, or has adjourned, to hold such hearings, to House took no action on the re- employ such experts and such cler- quest by motion or otherwise. ical, stenographic, and other assist- Parliamentarian’s Note: Several ants, to require the attendance of such witnesses and the production of resolutions were introduced on such books, papers, and documents, Sept. 26, 1973, to authorize inves- to take such testimony, to have such tigations into the charges referred printing and binding done, and to make such expenditures not exceed- to, both by the Committee on the ing $5,000, as it deems necessary. Judiciary and by a select committee. The resolutions were re- MR. [JOSEPH W.] BYRNS [of Ten- nessee]: Mr. Speaker, I move that the ferred to the Committee on articles just read be referred to the Rules.(11) Committee on the Judiciary, and upon The Vice President cited in his that motion I demand the previous question. letter a request made by Vice The previous question was ordered. THE SPEAKER: (9) The question is on 10. 119 CONG. REC. 31368, 93d Cong. 1st the motion of the gentleman from Ten- Sess. 11. See H. Res. 566 and H. Res. 567, 9. John N. Garner (Tex.). 93d Cong. 1st Sess.

2035 Ch. 14 § 5 DESCHLER’S PRECEDENTS

President John C. Calhoun in whether the receipt of a bribe by a person who afterwards becomes a civil of- 1826 and discussed at 3 Hinds’ ficer of the United States, even while Precedents § 1736. On that occa- holding another official position, is an sion, the alleged charges related act upon which an impeachment can be grounded to subject him to removal to the Vice President’s former ten- from an office which he afterwards ure as Secretary of War. The com- holds. To elucidate this we first turn to munication was referred on mo- the precedents. tion to a select committee which Your committee find that in all cases of impeachment or attempted impeach- investigated the charges and sub- ment under our Constitution there is sequently reported to the House no instance where the accusation was that no impropriety had been not in regard to an act done or omitted to be done while the officer was in of- found in the Vice President’s fice. In every case it has been here- former conduct as a civil officer tofore considered material that the ar- under the United States. The re- ticles of impeachment should allege in substance that, being such officer, and port of the select committee was while in the exercise of the duties of ordered to lie on the table and the his office, the accused committed the House took no further action acts of alleged inculpation. thereon. The report was never finally Vice President Agnew did not acted upon by the House. cite a precedent occurring in 1873, however, where the Committee on the Judiciary reported that a civil § 6. Committee Investiga- officer—Vice President Schuyler tions Colfax—could not be impeached for offenses allegedly committed The conduct of impeachment in- prior to his term of office as a civil vestigations is governed by those officer under the United States. portions of Rule XI relating to committee investigatory and hear- The committee had investigated ing procedure, and by any rules at his request whether Vice Presi- and special procedures adopted by dent Colfax had, during his prior the committee for the inquiry.(12) term as Speaker of the House, An investigatory subcommittee been involved in bribes of Mem- charged with an impeachment in- bers. As reported in 3 Hinds’ quiry is limited to the powers ex- Precedents § 2510, the committee pressly authorized by the com- ( ) concluded as follows in its report mittee. 13 to the House: 12. See §§ 6.3 et seq. But we are to consider, taking the 13. See § 6.11, infra, for the creation of a harshest construction of the evidence, subcommittee to investigate and to

2036 IMPEACHMENT POWERS Ch. 14 § 6

Forms (B) the production of such things; and Form of resolution authorizing (2) by interrogatory, the furnishing an investigation of the sufficiency of such information; of grounds for impeachment (of President Richard Nixon) and con- as it deems necessary to such investigation. ferring subpena power and authority to take testimony: (14) (b) Such authority of the committee may be exercised— H. RES. 803 (1) by the chairman and the ranking Resolved, That the Committee on the minority member acting jointly, or, if Judiciary, acting as a whole or by any either declines to act, by the other act- subcommittee thereof appointed by the ing alone, except that in the event ei- chairman for the purposes hereof and ther so declines, either shall have the in accordance with the rules of the right to refer to the committee for deci- committee, is authorized and directed sion the question whether such author- to investigate fully and completely ity shall be so exercised and the com- whether sufficient grounds exist for mittee shall be convened promptly to the House of Representatives to exer- render that decision; or cise its constitutional power to im- (2) by the committee acting as a peach Richard M. Nixon, President of whole or by subcommittee. the United States of America. The Subpenas and interrogatories so au- committee shall report to the House of thorized may be issued over the signa- Representatives such resolutions, arti- ture of the chairman, or ranking mi- cles of impeachment, or other rec- nority member, or any member des- ommendations as it deems proper. ignated by either of them, and may be Sec. 2. (a) For the purpose of making served by any person designated by the such investigation, the committee is chairman, or ranking minority mem- authorized to require— ber, or any member designated by ei- (1) by subpena or otherwise— ther of them. The chairman, or rank- (A) the attendance and testimony of ing minority member, or any member any person (including at a taking of a designated by either of them (or, with deposition by counsel for the com- respect to any deposition, answer to in- mittee); and terrogatory, or affidavit, any person authorized by law to administer oaths) report to the Committee on the Judi- may administer oaths to any witness. ciary on charges against Justice Wil- For the purposes of this section, liam O. Douglas. No authorizing res- ‘‘things’’ includes, without limitation, olution for a committee investigation books, records, correspondence, logs, had been adopted by the House, but journals, memorandums, papers, docu- resolutions of impeachment had been ments, writings, drawings, graphs, referred to the committee. charts, photographs, reproductions, re- 14. 120 CONG. REC. 2349, 2350, 93d cordings, tapes, transcripts, printouts, Cong. 2d Sess., Feb. 6, 1974. data compilations from which informa-

2037 Ch. 14 § 6 DESCHLER’S PRECEDENTS

tion can be obtained (translated if nec- Court for the Southern District of Flor- essary, through detection devices into ida, to determine whether in the opin- reasonably usable form), tangible ob- ion of said committee he has been jects, and other things of any kind. guilty of any high crime or misdemeanor which in the contemplation Sec. 3. For the purpose of making of the Constitution requires the inter- such investigation, the committee, and position of the Constitutional powers of any subcommittee thereof, are author- the House. Said committee shall report ized to sit and act, without regard to its findings to the House, together with clause 31 of rule XI of the Rules of the such resolution of impeachment or House of Representatives, during the other recommendation as it deems present Congress at such times and proper. places within or without the United Sec. 2. For the purpose of this reso- States, whether the House is meeting, lution, the committee is authorized to has recessed, or has adjourned, and to sit and act during the present Con- hold such hearings, as it deems nec- gress at such times and places in the essary. District of Columbia and elsewhere, Sec. 4. Any funds made available to whether or not the House is sitting, the Committee on the Judiciary under has recessed, or has adjourned, to hold House Resolution 702 of the Ninety- such hearing, to employ such clerical, third Congress, adopted November 15, stenographic, and other assistance, to 1973, or made available for the pur- require the attendance of such wit- pose hereafter, may be expended for nesses and the production of such the purpose of carrying out the inves- books, papers, and documents, and to tigation authorized and directed by take such testimony, to have such this resolution. printing and binding done, and to make such expenditures, not exceeding Form of resolution authorizing a $5,000, as it deems necessary. committee to investigate whether With the following committee a judge (Halsted Ritter) has been amendments: guilty of high crimes or mis- Page 2, line 5, strike out the words demeanors requiring impeach- ‘‘to employ such clerical, stenographic, and other assistance’’; and in line 9, on (15) ment: page 2, strike out ‘‘to have such printing and binding done, and to make HOUSE RESOLUTION 163 such expenditures, not exceeding Resolved, That the Committee on the $5,000.’’ Judiciary is authorized and directed, Form of subpena issued by the as a whole or by subcommittee, to inquire into and investigate the official Committee on the Judiciary (to conduct of Halsted L. Ritter, a district President Richard Nixon) in the judge for the United States District course of its impeachment inquiry: (16) 15. H. Res. 163, 77 CONG. REC. 4784, 4785, 73d Cong. 1st Sess., June 1, 16. Impeachment of Richard Nixon, 1933. President of the United States, H.

2038 IMPEACHMENT POWERS Ch. 14 § 6

BY AUTHORITY OF THE HOUSE OF REP- Referral of Resolutions Author- RESENTATIVES OF THE CONGRESS OF izing Impeachment Investiga- THE UNITED STATES OF AMERICA tions To Benjamin Marshall, or his duly authorized representative: § 6.1 Resolutions introduced You are hereby commanded to sum- which directly called for the mon Richard M. Nixon, President of impeachment or censure of the United States of America, or any subordinate officer, official or employee President Richard Nixon in with custody or control of the things the 93d Congress were re- described in the attached schedule, to ferred by the Speaker to the be and appear before the Committee Committee on the Judiciary, on the Judiciary of the House of Rep- resentatives of the United States, of whereas resolutions calling which the Hon. Peter W. Rodino, Jr. is for an investigation by that chairman, and to bring with him the committee or by a select things specified in the schedule at- committee with a view to- tached hereto and made a part hereof, in their chamber in the city of Wash- ward impeachment were re- ington, on or before April 25, 1974, at ferred to the Committee on the hour of 10:00 a.m. then and there Rules. to produce and deliver said things to said Committee, or their duly author- On Oct. 23, 1973, several reso- ized representative, in connection with lutions relating to the impeach- the Committee’s investigation author- ment of President Nixon were in- ized and directed by H. Res. 803, troduced and referred. Examples adopted February 6, 1974. of those referrals are as fol- Herein fail not, and make return of (17) this summons. lows: By Mr. Long of Maryland: Cross References H. Con. Res. 365. Concurrent resolu- House inquiries and the executive branch, see Ch. 15, infra. tion of censureship without prejudice to impeachment; to the Committee on Power of the House to punish for contempt, see Ch. 13, supra. the Judiciary. Referral of charges and resolutions au- By Ms. Abzug: thorizing investigations, see § 5, supra. 17. 119 CONG. REC. 34873, 93d Cong. 1st REPT. NO. 93–1305, p. 234 (see pp. Sess. For a comprehensive listing, 234–78), Committee on the Judici- see §§ 5.10, supra (resolutions au- ary, printed in the Record at 120 thorizing investigations referred to CONG. REC. 29282, 93d Cong. 2d Committee on Rules) and 5.13, supra Sess., Aug. 20, 1974. For complete (resolutions authorizing investiga- text of H. REPT. No. 93–1305, see id. tions referred, on motion, to the at pp. 29219–361. Committee on the Judiciary).

2039 Ch. 14 § 6 DESCHLER’S PRECEDENTS

H. Res. 625. Resolution impeaching On Feb. 6, 1974, Peter W. Ro- Richard M. Nixon, President of the dino, Jr., of New Jersey, Chair- United States, for high crimes and man of the Committee on the Ju- misdemeanors; to the Committee on the Judiciary. diciary, called up for immediate consideration House Resolution By Mr. Ashley: 803, authorizing the Committee H. Res. 626. Resolution directing the on the Judiciary to investigate the Committee on the Judiciary to inves- sufficiency of grounds for the im- tigate whether there are grounds for peachment of President Nixon, the impeachment of Richard M. Nixon; which resolution had been re- to the Committee on Rules. ported by the committee on Feb. Report and Consideration of 1, 1974. The resolution read as (18) Resolutions Authorizing Im- follows: peachment Investigations H. RES. 803 § 6.2 Although the House had Resolved, That the Committee on the Judiciary, acting as a whole or by any adopted a resolution author- subcommittee thereof appointed by the izing the Committee on the chairman for the purposes hereof and Judiciary to conduct inves- in accordance with the rules of the tigations within its area of committee, is authorized and directed jurisdiction as defined in to investigate fully and completely Rule XI clause 13, and al- whether sufficient grounds exist for the House of Representatives to exer- though the House had adopt- cise its constitutional power to im- ed a resolution intended to peach Richard M. Nixon, President of fund expenses of the Richard the United States of America. The Nixon impeachment inquiry committee shall report to the House of by the committee, the Com- Representatives such resolutions, arti- mittee on the Judiciary re- cles of impeachment, or other recommendations as it deems proper. ported and called up as priv- Sec. 2. (a) For the purpose of making ileged a subsequent resolu- such investigation, the committee is tion specifically mandating authorized to require— an impeachment investiga- (1) by subpena or otherwise— tion and continuing the (A) the attendance and testimony of availability of funds, in order any person (including at a taking of a to confirm the delegation of deposition by counsel for the committee); and authority from the House to that committee to conduct 18. 120 CONG. REC. 2349–51, 93d Cong. the investigation. 2d Sess. 2040 IMPEACHMENT POWERS Ch. 14 § 6

(B) the production of such things; tion can be obtained (translated if nec- and essary, through detection devices into (2) by interrogatory, the furnishing reasonably usable form), tangible ob- of such information; jects, and other things of any kind. as it deems necessary to such inves- Sec. 3. For the purpose of making tigation. such investigation, the committee, and any subcommittee thereof, are author- (b) Such authority of the committee ized to sit and act, without regard to may be exercised— clause 31 of rule XI of the Rules of the (1) by the chairman and the ranking House of Representatives, during the minority member acting jointly, or, if present Congress at such times and either declines to act, by the other act- places within or without the United ing alone, except that in the event ei- States, whether the House is meeting, ther so declines, either shall have the has recessed, or has adjourned, and to right to refer to the committee for deci- hold such hearings, as it deems nec- sion the question whether such author- essary. ity shall be so exercised and the com- Sec. 4. Any funds made available to mittee shall be convened promptly to the Committee on the Judiciary under render that decision; or House Resolution 702 of the Ninety- (2) by the committee acting as a third Congress, adopted November 15, whole or by subcommittee. 1973, or made available for the pur- Subpenas and interrogatories so au- pose hereafter, may be expended for thorized may be issued over the signa- the purpose of carrying out the inves- ture of the chairman, or ranking mi- tigation authorized and directed by nority member, or any member des- this resolution. ignated by either of them, and may be Chairman Rodino and Mr. Ed- served by any person designated by the ward Hutchinson, of Michigan, chairman, or ranking minority member, or any member designated by ei- ranking minority member of the ther of them. The chairman, or rank- Committee on the Judiciary, ex- ing minority member, or any member plained the purpose of the resolu- designated by either of them (or, with tion, which had been adopted respect to any deposition, answer to in- unanimously by the committee, as terrogatory, or affidavit, any person follows: authorized by law to administer oaths) may administer oaths to any witness. MR. RODINO: Mr. Speaker, I yield For the purposes of this section, myself such time as I may consume. ‘‘things’’ includes, without limitation, Mr. Speaker, the English statesman books, records, correspondence, logs, Edmund Burke said, in addressing an journals, memorandums, papers, docu- important constitutional question, ments, writings, drawings, graphs, more than 200 years ago: charts, photographs, reproductions, re- We stand in a situation very hon- cordings, tapes, transcripts, printouts, orable to ourselves and very useful data compilations from which informa- to our country, if we do not abuse or

2041 Ch. 14 § 6 DESCHLER’S PRECEDENTS

abandon the trust that is placed in MR. HUTCHINSON: Mr. Speaker, the us. first section of this resolution author- We stand in such a position now, izes and directs your Judiciary Com- and—whatever the result—we are mittee to investigate fully whether suf- going to be just, and honorable, and ficient grounds exist to impeach the worthy of the public trust. President of the United States. This Our responsibility in this is clear. constitutes the first explicit and formal The Constitution says, in article I, sec- action in the whole House to authorize tion 2, clause 5: such an inquiry. The last section of the resolution The House of Representatives, shall have the sole power of im- validates the use by the committee of peachment. that million dollars allotted to it last November for purposes of the impeach- A number of impeachment resolu- ment inquiry. Members will recall that tions were introduced by Members of the million dollar resolution made no the House in the last session of the reference to the impeachment inquiry Congress. They were referred to the but merely allotted that sum of money Judiciary Committee by the Speaker. to the committee to be expended on We have reached the point when it is matters within its jurisdiction. All important that the House explicitly Members of the House understood its confirm our responsibility under the intended purpose. Constitution. But the rule of the House defining We are asking the House of Rep- resentatives, by this resolution, to au- the jurisdiction of committees does not thorize and direct the Committee on place jurisdiction over impeachment the Judiciary to investigate the con- matters in the Judiciary Committee. In duct of the President of the United fact, it does not place such jurisdiction States, to determine whether or not anywhere. So this resolution vests ju- evidence exists that the President is risdiction in the committee over this responsible for any acts that in the particular impeachment matter, and it contemplation of the Constitution are ratifies the authority of the committee grounds for impeachment, and if such to expend for the purpose those funds evidence exists, whether or not it is allocated to it last November, as well sufficient to require the House to exer- as whatever additional funds may be cise its constitutional powers. hereafter authorized. As part of that resolution, we are Parliamentarian’s Note: Prior to asking the House to give the Judiciary Committee the power of subpena in its the passage of House Resolution investigations. 803, the Committee on the Judici- Such a resolution has always been ary had been conducting an inves- passed by the House. The committee tigation into the charges of im- has voted unanimously to recommend peachment against President that the House of Representatives adopt this resolution. It is a necessary Nixon under its general investiga- step if we are to meet our obligations. tory authority, as extended by res- ... olution (H. Res. 74) of the House

2042 IMPEACHMENT POWERS Ch. 14 § 6 on Feb. 28, 1973. House Resolu- Interrogations and Depositions tion 74 authorized the Committee of Witnesses on the Judiciary to conduct investigations, and to issue subpenas § 6.3 The House agreed to a during such investigations, within resolution authorizing the its jurisdiction ‘‘as set forth in counsel to the Committee on clause 13 of Rule XI of the Rules the Judiciary to take deposi- of the House of Representatives’’ tions of witnesses in an im- [House Rules and Manual § 707 peachment investigation (1973)]. That clause did not spe- when authorized by the cifically mention impeachments as chairman and ranking mi- within the jurisdiction of the Com- nority member of the committee on the Judiciary. The mittee, notwithstanding a House had provided for payment, House rule requiring at least from the contingent fund, of fur- two committee members to ther expenses of the Committee be present during the taking on the Judiciary in conducting in- of testimony at a formal com- vestigations, following the intro- mittee hearing. duction and referral to the com- On Feb. 6, 1974, the House mittee of various resolutions pro- agreed to House Resolution 803, posing the impeachment of Presi- called up as privileged by the dent Nixon. Debate on those reso- Committee on the Judiciary, au- lutions and the reports of the thorizing it to investigate the suf- Committee on House Administra- ficiency of grounds for the im- tion, which had reported them to peachment of President Richard the House, indicated that the ad- Nixon. The resolution authorized ditional funds for the investiga- the taking of depositions as fol- tions of the Committee on the Ju- lows: (1) diciary were intended in part for Sec. 2. (a) For the purpose of making use in conducting an impeach- such investigation, the committee is ment inquiry in relation to the authorized to require— President.(19) dino, of the Committee on the Judici- 19. See H. Res. 702, 93d Cong. 1st Sess., ary, on the status of the impeach- Nov. 15, 1973, and H. Res. 1027, 93d ment investigation and on the funds Cong. 2d Sess., Apr. 29, 1974, and H. required to defray the expenses and REPT. NO. 93–1009, Committee on salaries of the impeachment inquiry House Administration, to accompany staff. the latter resolution. The report in- 1. 120 CONG. REC. 2349, 2350, 93d cluded a statement by Chairman Ro- Cong. 2d Sess.

2043 Ch. 14 § 6 DESCHLER’S PRECEDENTS

(1) by subpena or otherwise— the rules and agree to a reso- (A) the attendance and testimony of lution authorizing the Com- any person (including at a taking of a deposition by counsel for the committee on the Judiciary, in mittee); and holding hearings in its im- (B) the production of such things; peachment inquiry into the and conduct of President Richard (2) by interrogatory, the furnishing Nixon, to proceed without re- of such information as it deems necessary to such investigation. gard to the House rule re- (b) Such authority of the committee quiring the application of may be exercised— the five-minute rule in the (1) by the chairman and the ranking interrogation of witnesses. minority member acting jointly, or, if either declines to act, by the other act- On July 1, 1974, Chairman ing alone, except that in the event ei- Peter W. Rodino, Jr., of New Jer- ther so declines, either shall have the sey, moved to suspend the rules right to refer to the committee for deci- and sought agreement to a resolu- sion the question whether such authority shall be so exercised and the com- tion governing the Committee on mittee shall be convened promptly to the Judiciary in hearings con- render that decision; or ducted in its impeachment inquiry (2) by the committee acting as a against President Nixon: whole or by subcommittee. In explanation of the provisions H. RES. 1210 of the resolution, Chairman Peter Resolved, That in conducting hear- W. Rodino, Jr., of New Jersey, of ings held pursuant to House Resolu- the Committee on the Judiciary, tion 803, 93d Congress, the Committee on the Judiciary is authorized to pro- stated that the taking of deposi- ceed without regard to the second sen- tions by counsel was intended to tence of clause 27(f) (4) of rule XI of expedite the proceedings and in- the rules of the House. vestigation. Mr. Rodino explained the pur- Parliamentarian’s Note: Rule XI pose of the resolution: clause 27(h) House Rules and Manual § 735 (1973), provided MR. RODINO: Mr. Speaker, this is a that each committee may fix the simple resolution which was voted by number of its members to con- the House Committee on the Judiciary by an overwhelming vote of 31 to 6. stitute a quorum for taking testi- The committee is attempting to meet mony and receiving evidence, its responsibilities and to exercise its which shall not be less than two. responsibilities under House Resolu- tion 803 with an eye toward achieving § 6.4 The House in the 93d two objectives: conducting the fairest Congress failed to suspend and most thorough inquiry, and arriv-

2044 IMPEACHMENT POWERS Ch. 14 § 6

ing at the same time at a prompt con- adopted procedures for presenting clusion to that inquiry as is consistent evidentiary materials to the com- with our responsibility. I believe this resolution authorizing mittee in hearings during its in- the committee to proceed without re- quiry into charges of impeachable gard to the 5-minute rule in the inter- conduct against President rogation of witnesses would greatly fa- Nixon: (3) cilitate the achievement of those objectives. It would permit both probing and IMPEACHMENT INQUIRY PROCEDURES orderly examination of witnesses and still provide great flexibility to Mem- The Committee on the Judiciary bers seeking answers to specific rel- states the following procedures appli- evant questions. cable to the presentation of evidence in the impeachment inquiry pursuant to Mr. David W. Dennis, of Indi- H. Res. 803, subject to modification by ana, also of the Committee on the the Committee as it deems proper as Judiciary, demanded a second on the presentation proceeds. the motion and opposed it on the A. The Committee shall receive from ground that abrogating the five- Committee counsel at a hearing an ini- minute rule for witness interroga- tial presentation consisting of (i) a tion derogated the privileges and written statement detailing, in para- duties of the individual Members graph form, information believed by the staff to be pertinent to the inquiry, of the House. (ii) a general description of the scope On a recorded vote, two-thirds and manner of the presentation of evi- did not vote in favor of the motion dence, and (iii) a detailed presentation to suspend the rules, and it was of the evidentiary material, other than rejected.(2) the testimony of witnesses. 1. Each Member of the Committee Evidentiary Hearing Proce- shall receive a copy of (i) the statement dures of information, (ii) the related documents and other evidentiary material, § 6.5 The Committee on the Ju- and (iii) an index of all testimony, papers, and things that have been ob- diciary adopted procedures tained by the Committee, whether or in the 93d Congress for pre- not relied upon in the statement of in- senting evidence and holding formation. hearings in its inquiry into 2. Each paragraph of the statement the conduct of President of information shall be annotated to re- Richard Nixon. lated evidentiary material (e.g., documents, recordings and transcripts On May 2, 1974, the Committee on the Judiciary unanimously 3. See H. REPT. NO. 93–1305, at p. 8, Committee on the Judiciary, 93d 2. 120 CONG. REC. 21849–55, 93d Cong. Cong. 2d Sess., reported Aug. 20, 2d Sess. 1974.

2045 Ch. 14 § 6 DESCHLER’S PRECEDENTS

thereof, transcripts of grand jury or he would propose to show, and in the congressional testimony, or affidavits). case of a witness precisely and in de- Where applicable, the annotations will tail what it is expected the testimony identify witnesses believed by the staff of the witness would be, if called. On to be sources of additional information the basis of such requests and sum- important to the Committee’s under- maries and of the record then before it, standing of the subject matter of the the Committee shall determine wheth- paragraph in question. er the suggested evidence is necessary 3. On the commencement of the or desirable to a full and fair record in presentation, each Member of the Com- the inquiry, and, if so, whether the mittee and full Committee staff, major- summaries shall be accepted as part of ity and minority, as designated by the the record or additional testimony or Chairman and the Ranking Minority evidence in some other form shall be Member, shall be given access to and received. the opportunity to examine all testi- C. If and when witnesses are to be mony, papers and things that have called, the following additional proce- been obtained by the inquiry staff, dures shall be applicable to hearings whether or not relied upon in the held for that purpose: statement of information. 1. The President and his counsel 4. The President’s counsel shall be shall be invited to attend all hearings, furnished a copy of the statement of in- including any held in executive ses- formation and related documents and sion. other evidentiary material at the time 2. Objections relating to the exam- that those materials are furnished to ination of witnesses or to the admissi- the Members and the President and bility of testimony and evidence may his counsel shall be invited to attend be raised only by a witness or his and observe the presentation. counsel, a Member of the Committee, B. Following that presentation the Committee counsel or the President’s Committee shall determine whether it counsel and shall be ruled upon [by] desires additional evidence, after op- the Chairman or presiding Member. portunity for the following has been Such rulings shall be final, unless provided: overruled by a vote of a majority of the 1. Any Committee Member may Members present. In the case of a tie bring additional evidence to the Com- vote, the ruling of the Chair shall pre- mittee’s attention. vail. 2. The President’s counsel shall be 3. Committee Counsel shall com- invited to respond to the presentation, mence the questioning of each witness orally or in writing as shall be deter- and may also be permitted by the mined by the Committee. Chairman or presiding Member to 3. Should the President’s counsel question a witness at any point during wish the Committee to receive addi- the appearance of the witness. tional testimony or other evidence, he 4. The President’s counsel may ques- shall be invited to submit written re- tion any witness called before the Com- quests and precise summaries of what mittee, subject to instructions from the

2046 IMPEACHMENT POWERS Ch. 14 § 6

Chairman or presiding Member re- held hearings in executive specting the time, scope and duration session for the presentation of the examination. of statements of information D. The Committee shall determine, pursuant to the Rules of the House, and supporting evidentiary whether and to what extent the evi- material by the inquiry staff dence to be presented shall be received and for the presentation of in executive session. materials by the President’s E. Any portion of the hearings open counsel. to the public may be covered by television broadcast, radio broadcast, still In its final report recom- photography, or by any of such meth- mending the impeachment of ods of coverage in accord with the President Nixon in the 93d Con- Rules of the House and the Rules of gress, the Committee on the Judi- Procedure of the Committee as amend- ciary summarized the proceedings ed on November 13, 1973. of the committee which had been F. The Chairman shall make public (4) announcement of the date, time, place conducted in executive session: and subject matter of any Committee From May 9, 1974 through June 21, hearing as soon as practicable and in 1974, the Committee considered in ex- no event less than twenty-four hours ecutive session approximately six hun- before the commencement of the hear- dred fifty ‘‘statements of information’’ ing. and more than 7,200 pages of sup- G. The Chairman is authorized to porting evidentiary material presented promulgate additional procedures as by the inquiry staff. The statements of he deems necessary for the fair and ef- information and supporting evidentiary ficient conduct of Committee hearings material, furnished to each Member of held pursuant to H. Res. 803, provided the Committee in 36 notebooks, pre- that the additional procedures are not sented material on several subjects of inconsistent with these Procedures, the the inquiry: the Watergate break-in Rules of the Committee, and the Rules and its aftermath, ITT, dairy price of the House. Such procedures shall supports, domestic surveillance, abuse govern the conduct of the hearings, un- of the IRS, and the activities of the less overruled by a vote of a majority Special Prosecutor. The staff also pre- of the Members present. sented to the Committee written re- H. For purposes of hearings held ports on President Nixon’s income pursuant to these rules, a quorum taxes, presidential impoundment of shall consist of ten Members of the funds appropriated by Congress, and the bombing of Cambodia. Committee.

§ 6.6 In its impeachment in- 4. H. REPT. NO. 93–1305, at p. 9, Com- mittee on the Judiciary, 93d Cong. quiry into the conduct of 2d Sess., reported Aug. 20, 1974, President Richard Nixon, the printed at 120 CONG. REC. 29221, Committee on the Judiciary 93d Cong. 2d Sess., Aug. 20, 1974. 2047 Ch. 14 § 6 DESCHLER’S PRECEDENTS

In each notebook, a statement of in- and inspect federal tax data, formation relating to a particular and the President promul- phase of the investigation was immediately followed by supporting evi- gated an executive order per- dentiary material, which included cop- mitting such inspection. ies of documents and testimony (much On May 26, 1970, the Com- of it already on public record), tran- mittee on the Judiciary authorized scripts of presidential conversations, and affidavits. A deliberate and scru- by resolution a subcommittee in- pulous abstention from conclusions, vestigation of federal tax records even by implication, was observed. of Justice William O. Douglas and The Committee heard recordings of others: nineteen presidential conversations and dictabelt recollections. The presi- RESOLUTION FOR SPECIAL SUB- dential conversations were neither COMMITTEE TO CONSIDER HOUSE paraphrased nor summarized by the RESOLUTION 920 inquiry staff. Thus, no inferences or Resolved, That the Special Sub- conclusions were drawn for the Com- committee to consider H. Res. 920, a mittee. During the course of the hear- resolution impeaching William O. ings, Members of the Committee lis- Douglas, Associate Justice of the Su- tened to each recording and simulta- preme Court of the United States, of neously followed transcripts prepared high crimes and misdemeanors in of- by the inquiry staff. fice, hereby is authorized and directed On June 27 and 28, 1974, Mr. James to obtain and inspect from the Internal St. Clair, Special Counsel to the Presi- Revenue Service any and all materials dent made a further presentation in a and information relevant to its inves- similar manner and form as the in- tigation in the files of the Internal quiry staff’s initial presentation. The Revenue Service, including tax re- Committee voted to make public the turns, investigative reports, or other initial presentation by the inquiry documents, that the Special Sub- staff, including substantially all of the committee to consider H. Res. 920 de- supporting materials presented at the termines to be within the scope of H. hearings, as well as the President’s re- Res. 920 and the various related reso- sponse. lutions that have been introduced into the House of Representatives. Evidence in Impeachment In- The Special Subcommittee on H. quiries Res. 920 is authorized to make such requests to the Internal Revenue Serv- § 6.7 During an investigation ice as the Subcommittee determines to into charges of impeachable be appropriate, and the Subcommittee offenses against a Supreme is authorized to amend its requests to designate such additional persons, tax- Court Justice, the Committee payers, tax returns, investigative re- on the Judiciary authorized ports, and other documents as the Sub- its subcommittee to request committee determines to be appro- 2048 IMPEACHMENT POWERS Ch. 14 § 6

priate during the course of this inves- Internal Revenue Code of 1939, as tigation. amended (26 U.S.C. (1952 Ed.) 55(a), The Special Subcommittee on H. 1604(c)), and by sections 6103(a) and Res. 920 may designate agents to ex- 6106 of the Internal Revenue Code of amine and receive information from 1954, as amended (26 U.S.C. 6103(a), the Internal Revenue Service. 6106), it is hereby ordered that any in- This resolution specifically author- come, excess-profits, estate, gift, unem- izes and directs the Special Sub- ployment, or excise tax return, includ- committee to obtain and inspect from ing all reports, documents, or other the Internal Revenue Service the docu- factual data relating thereto, shall, ments and other file materials de- during the Ninety-first Congress, be scribed in the letter dated May 12, open to inspection by the Committee 1970, from Chairman Emanuel Celler on the Judiciary, House of Representa- to the Honorable Randolph Thrower. tives, or any duly authorized sub- The tax returns for the following tax- committee thereof, in connection with payers, and the returns for such addi- its consideration of House Resolution tional taxpayers as the Subcommittee 920, a resolution impeaching William subsequently may request, are in- O. Douglas, Associate Justice of the cluded in this resolution: Supreme Court of the United States. Associate Justice William O. Doug- Whenever a return is open to inspec- las, Supreme Court of the United tion by such Committee or sub- States, Washington, D.C. 20036. committee, a copy thereof shall, upon Albert Parvin, 1900 Avenue of the Stars, Suite 1790, Century City, request, be furnished to such Com- Calif. 90067. mittee or subcommittee. Such inspec- Albert Parvin Foundation, c/o Ar- tion shall be in accordance and upon nold & Porter, 1229 19th Street, compliance with the rules and regula- N.W., Washington, D.C. 20036. tions prescribed by the Secretary of the The Center for the Study of Demo- Treasury in Treasury Decisions 6132 cratic Institutions, Box 4068, Santa Barbara, Calif. 93103. and 6133, relating to the inspection of Fund for the Republic, 136 East returns by committees of the Congress, 57th Street, New York, N.Y. 10022. approved by the President on May 3, Parvin-Dohrmann Corp. (Now 1955.(5) Recrion Corp.), 120 N. Robertson Blvd., Los Angeles, Calif. 90048. § 6.8 During an impeachment On June 12, 1970, President investigation in the House Richard Nixon promulgated Exec- into the conduct of the Presi- utive Order No. 11535 to allow dent, the Senate adopted a such inspection: resolution releasing records

INSPECTION OF TAX RETURNS BY THE 5. See first report by the special sub- COMMITTEE ON THE JUDICIARY, committee on H. Res. 920 of the HOUSE OF REPRESENTATIVES Committee on the Judiciary, com- By virtue of the authority vested in mittee print, 91st Cong. 2d Sess., me by sections 55(a) and 1604(c) of the June 20, 1970, at pp. 14–20.

2049 Ch. 14 § 6 DESCHLER’S PRECEDENTS

of a Senate select committee gress the Senate Committee on Rules on Presidential campaign ac- and Administration shall control the tivities to congressional com- access to the records and either by special orders or by general regulations mittees and other persons shall make the records available to and agencies with a legiti- courts, congressional committees, con- mate need therefore. gressional subcommittees, Federal de- (6) partments and agencies, and any other On July 29, 1974, Senator persons who may satisfy the Senate Samuel J. Ervin, Jr., of North Committee on Rules and Administra- Carolina, offered in the Senate a tion that they have a legitimate need resolution (S. Res. 369), relative to for the records. the records of a Senate select com- It provides that the records shall be mittee. The Senate adopted the maintained intact and that none of the resolution following Senator original records shall be released to any agency or any person. Ervin’s explanation as to the It provides further that pending the needs and requests of the Com- transfer of the records to the Library of mittee on the Judiciary of the Congress and the assumption of such House: control by the Senate Committee on Rules and Administration, that the Se- MR. ERVIN: Mr. President, under its lect Committee, acting through its present charter, the Senate Select chairman or through its vice chairman, Committee on Presidential Campaign Activities has 90 days after the 28th can make these records available to day of June of this year in which to courts or to congressional committees wind up its affairs. This resolution is or subcommittees or to other persons proposed with the consent of the com- showing a legitimate need for them. mittee, and its immediate consider- I might state this is placed in here ation has been cleared by the leader- because of the fact that we have had ship on both sides of the aisle. many requests from congressional com- The purpose of this resolution is to mittees for the records. We have had facilitate the winding up of the affairs requests from the Special Prosecutor of the Senate Select Committee. The and from the courts. . . . resolution provides that all of the I might state in the past the com- records of the committee shall be mittee has made available some of the transferred to the Library of Congress records to the House Judiciary Com- which shall hold them subject to the mittee, at its request, and to the Spe- control of the Senate Committee on cial Prosecutor at his request. The res- Rules and Administration. olution also provides that the action of It provides that after these records the committee in doing so is ratified by are transferred to the Library of Con- the Senate.

6. 120 CONG. REC. 25392, 25393, 93d § 6.9 In its inquiry into Cong. 2d Sess. charges of impeachable of- 2050 IMPEACHMENT POWERS Ch. 14 § 6

fenses against President heard or papers and things considered, Richard Nixon, the Com- each committee member will be fur- mittee on the Judiciary nished with a list of all papers and things that have been obtained by the adopted procedures which committee by subpena or otherwise. No ensured the confidentiality member shall make the list or any part of impeachment inquiry ma- thereof public unless authorized by a terials and which limited ac- majority vote of the committee, a cess to such materials. quorum being present. 3. The special counsel and the coun- On Feb. 22, 1974, the Com- sel to the minority, after discussion mittee on the Judiciary unani- with the chairman and the ranking mi- mously adopted a set of proce- nority member, shall initially rec- dures to preserve the confiden- ommend to the committee the testi- tiality of evidentiary and other mony, papers, and things to be pre- materials compiled in its impeach- sented to the committee. The deter- ment inquiry relating to the con- mination as to whether such testi- duct of President Nixon: (7) mony, papers, and things shall be presented in open or executive session PROCEDURES FOR HANDLING shall be made pursuant to the rules of IMPEACHMENT INQUIRY MATERIAL the House. 1. The chairman, the ranking minor- 4. Before the committee is called ity member, the special counsel, and upon to make any disposition with re- the counsel to the minority shall at all spect to the testimony or papers and times have access to and be respon- things presented to it, the committee sible for all papers and things received members shall have a reasonable op- from any source by subpena or other- portunity to examine all testimony, pa- wise. Other members of the committee pers, and things that have been ob- shall have access in accordance with tained by the inquiry staff. No member the procedures hereafter set forth. shall make any of that testimony or 2. At the commencement of any presentation at which testimony will be those papers or things public unless authorized by a majority vote of the 7. See H. REPT. NO. 93–1305, at p. 8, committee, a quorum being present. Committee on the Judiciary, printed 5. All examination of papers and in the Record at 120 CONG. REC. things other than in a presentation 29219, 29221, 93d Cong. 2d Sess., shall be made in a secure area des- Aug. 20, 1974, for brief discussion of ignated for that purpose. Copying, du- the adoption of the procedures. plicating, or removal is prohibited. The House had authorized the 6. Any committee member may bring printing of additional copies of the additional testimony, papers, or things procedures for handling impeach- to the committee’s attention. ment inquiry materials. See H. Res. 7. Only testimony, papers, or things 1072, 93d Cong. 2d Sess., May 23, that are included in the record will be 1974. reported to the House; all other testi-

2051 Ch. 14 § 6 DESCHLER’S PRECEDENTS

mony, papers, or things will be consid- Parliamentarian’s Note: On ered as executive session material. June 21, 1974, a Member, John N. RULES FOR THE IMPEACHMENT INQUIRY Erlenborn, of Illinois, took the STAFF floor to allege that he was being 1. The staff of the impeachment in- denied permission to study files quiry shall not discuss with anyone and records gathered by the Com- outside the staff either the substance mittee on the Judiciary in its im- or procedure of their work or that of peachment inquiry into the con- the committee. duct of the President, in violation 2. Staff offices on the second floor of of Rule XI clause 27(c) of the the Congressional Annex shall operate (8) under strict security precautions. One House rules. Rule XI clause guard shall be on duty at all times by 27(c) provided that committee the elevator to control entry. All per- hearings and records are to be sons entering the floor shall identify kept separate from the records of themselves. An additional guard shall the committee chairman and that be posted at night for surveillance of all Members of the House have ac- the secure area where sensitive documents are kept. cess to such records. Other provi- 3. Sensitive documents and other sions of the rule require that a things shall be segregated in a secure committee may receive testimony storage area. They may be examined or evidence in executive session, only at supervised reading facilities and that the proceedings of such within the secure area. Copying or du- sessions may not be released un- plicating of such documents and other things is prohibited. less the committee so determines. 4. Access to classified information And non-committee Members of supplied to the committee shall be lim- the House are not permitted to at- ited by the special counsel and the tend executive committee ses- counsel to the minority to those staff sions.(9) members with appropriate security clearances and a need to know. 8. 120 CONG. REC. 20624, 93d Cong. 2d 5. Testimony taken or papers and Sess. things received by the staff shall not 9. Although Jefferson’s Manual states be disclosed or made public by the staff that any Member may be present at unless authorized by a majority of the ‘‘any select committee’’ (House Rules committee. and Manual § 410 [1973]), a select 6. Executive session transcripts and committee appointed in 1834 held records shall be available to designated that its proceedings should be con- committee staff for inspection in per- fidential, not to be attended by any son but may not be released or dis- person not invited or required. 3 closed to any other person without the Hinds’ Precedents § 1732. See also 4 consent of a majority of the committee. Hinds’ Precedents § 4540 for the

2052 IMPEACHMENT POWERS Ch. 14 § 6

§ 6.10 The Speaker laid before tives adopted H. Res. 803, which authorized and directed the Committee the House a communication on the Judiciary to investigate fully from the Chairman of the and completely whether sufficient Committee on the Judiciary, grounds exist for the House of Rep- resentatives to exercise under Article submitting to the House a I, Section 2 of the Constitution, its ‘‘statement of information’’ power to impeach President Richard M. Nixon. concerning the income tax In carrying out its responsibility returns of President Richard under H. Res. 803, the Judiciary Nixon examined by that com- Committee investigated allegations regarding President Nixon’s income mittee in executive session tax returns. The Committee re- during its impeachment in- quested access to the President’s returns and reports on those returns quiry, in order to comply in the files of the Internal Revenue with a Treasury Department Service. This access was granted by regulation requiring submis- the President in Executive Order 11786, dated June 7, 1974, and in- sion of Internal Revenue formation from the returns and IRS Service files to the House documents was subsequently presented to the Committee in executive prior to public release. session. On July 25, 1974, Speaker Carl The Committee is now publicly de- Albert, of Oklahoma, laid before bating whether to report various articles of impeachment to the House. the House a communication from In the course of this debate reference Chairman Peter W. Rodino, Jr., of will surely be made to income tax in- New Jersey, of the Committee on formation regarding the President. the Judiciary: (10) Under the Constitution and H. Res. 803, it is appropriate, indeed nec- COMMUNICATTON FROM THE CHAIRMAN essary, to refer to this information in a debate which is of the highest Con- OF THE COMMITTEE ON THE JUDICIARY stitutional significance. The Speaker laid before the House Commissioner Donald Alexander the following communication from the of the Internal Revenue Service has chairman of the Committee on the Ju- requested that before information diciary: from IRS files is released publicly it be submitted to the House, thus WASHINGTON, D.C., July 26, 1974. complying with Treasury Depart- Hon. CARL ALBERT, Speaker, House of Representatives, ment regulations. While this proce- Washington, D.C. dure is undoubtedly unnecessary in view of this Committee’s Constitu- DEAR MR. SPEAKER: On February tional responsibility and the author- 6, 1974, the House of Representa- ity granted it by H. Res. 803, in consideration of the Commissioner’s po- principle that committees may make sition, I am herewith submitting the their sessions executive and exclude enclosed Statement of Information, Book X. This Book will be part of the persons not members thereof. Committee’s record when it makes 10. 120 CONG. REC. 25306, 25307, 93d its recommendation to the House. Cong. 2d Sess. Sincerely,

2053 Ch. 14 § 6 DESCHLER’S PRECEDENTS

PETER W. RODINO, Jr., under the Rules of the House of Rep- Chairman. resentatives. Rule XI 13(f) empowers the Committee on the Judiciary to act Subcommittee Procedures on all proposed legislation, messages, petitions, memorials, or other matters § 6.11 The Committee on the relating to ‘‘. . . Federal courts and Judiciary authorized a spe- judges.’’ In the 91st Congress, Rule XI cial subcommittee to inves- has been implemented by H. Res. 93, February 5, 1969. H. Res. 93 author- tigate and report on charges izes the Committee on the Judiciary, of impeachable offenses acting as a whole or by subcommittee, against a federal judge. to conduct full and complete investiga- On June 20, 1970, a special sub- tions and studies on the matters coming within its jurisdiction, specifically committee of the Committee on ‘‘. . . (4) relating to judicial pro- the Judiciary, investigating ceedings and the administration of charges of impeachment against Federal courts and personnel thereof, Associate Justice William O. including local courts in territories and Douglas, made an interim report possessions’’. to the committee as to its author- H. Res. 93 empowers the Committee ity and procedures: (11) to issue subpenas, over the signature of the Chairman of the Committee or I. AUTHORITY any Member of the Committee des- On April 21, 1970, the Committee on ignated by him. Subpenas issued by the Judiciary adopted a resolution to the Committee may be served by any authorize the appointment of a Special person designated by the Chairman or Subcommittee on H. Res. 920, a resolu- such designated Member. tion impeaching William O. Douglas, On April 28, 1970, the Special Sub- Associate Justice of the Supreme Court committee on H. Res. 920 held its or- of the United States, of high crimes ganization meeting, appointed staff, and misdemeanors in office. Pursuant and adopted procedures to be applied to this resolution, the following mem- during the investigation. Although the bers were appointed: Emanuel Celler power to issue subpenas is available, (New York), Chairman; Byron G. Rog- and the Subcommittee is prepared to ers (Colorado); Jack Brooks (Texas); use subpenas if necessary to carry out William M. McCulloch (Ohio); and Ed- this investigation, thus far all potential ward Hutchinson (Michigan). witnesses have been cooperative and it The Special Subcommittee on H. has not been necessary to employ this Res. 920 is appointed and operates investigatory tool. The Special Sub- committee operates under procedures 11. First report of the special sub- established in paragraph 27, Rules of committee on H. Res. 920 of the Committee Procedure, of Rule XI of the Committee on the Judiciary, com- House of Representatives. These proce- mittee print, 91st Cong. 2d Sess., dures will be followed until additional June 20, 1970. rules are adopted, which, on the basis

2054 IMPEACHMENT POWERS Ch. 14 § 6

of precedent in other impeachment Parliamentarian’s Note: The proceedings, are determined by the House has in the past considered Special Subcommittee to be appro- the question whether a federal priate. civil officer was subject to con- Issuance of Subpenas; Effect of tempt proceedings for declining to Noncompliance honor a subpena issued in the course of an impeachment inves- § 6.12 The Committee on the tigation or investigation directed Judiciary determined in the toward impeachment. In 1879, a 93d Congress that a federal committee of the House was con- civil officer could be im- ducting an investigation, as au- peached for failing to comply thorized by the House, into the with duly authorized sub- conduct of the then Minister to penas issued by the com- China, George Seward. In the mittee in the course of its in- course of its impeachment inquiry, vestigation into impeach- the committee issued subpenas to ment charges against him. Mr. Seward commanding him to produce papers in relation to the On Aug. 20, 1974, the Com- inquiry. Upon his refusal, he was mittee on the Judiciary submitted arraigned at the bar of the House to the House a report (H. Rept. for contempt. The contempt No. 93–1305) recommending the charge was referred to the inves- impeachment of President Richard tigating committee, which con- Nixon on three articles of im- cluded in its report (not consid- peachment, without an accom- ered by the House) that an official panying resolution of impeach- threatened with impeachment was ment, the President having re- not in contempt for declining to be signed. Article III, adopted by the sworn as a witness or to produce committee on July 30, 1974, im- documentary evidence.(13) Like- peached the former President for wise, in 1837, a committee was in- failing without lawful cause or ex- vestigating expenditures in cer- cuse to comply with subpenas issued by the committee for things 361, 93d Cong. 2d Sess., Aug. 20, and papers relative to the im- 1974. For the articles impeaching peachment inquiry.(12) President Nixon, see § 3.1, supra. The minority views challenge such a 12. H. REPT. NO. 93–1305, Committee on refusal to comply with a subpena as the Judiciary, 93d Cong. 2d Sess., grounds for impeachment (see § 3.8, Aug. 20, 1974, printed in full in the supra). Record at 120 CONG. REC. 29219– 13. 3 Hinds’ Precedents §§ 1699, 1700.

2055 Ch. 14 § 6 DESCHLER’S PRECEDENTS tain executive departments, with fore the House subpenas issued by a view towards impeachment (of a federal district court in a crimi- heads of departments or of Presi- nal case, requesting certain evident Andrew Jackson). The com- dence gathered by the Committee mittee adopted a resolution re- on the Judiciary and its sub- questing papers from the Presi- dent, who declined to produce committee on impeachment, in the them and submitted a letter criti- inquiry into the conduct of Presi- cizing the committee for request- dent Richard Nixon. The House ing that he and the department adopted a resolution (H. Res. heads ‘‘become our own accusers.’’ 1341) which granted such limited The committee laid on the table access to the evidence as would resolutions censuring the Presi- not violate the privileges or con- dent for such action and the com- stitutional powers of the House. mittee report concluded that there The resolution read as follows: was no privilege of the House to compel public officers to furnish H. RES. 1341 evidence against themselves.(14) Whereas in the case of United States Court Access to Committee Evi- of America against John N. Mitchell et al. (Criminal Case No. 74–110), pend- dence ing in the United States District Court for the District of Columbia, subpenas § 6.13 Where a federal court duces tecum were issued by the said subpenaed in a criminal case court and addressed to Representative certain evidence gathered by Peter W. Rodino, United States House the Committee on the Judici- of Representatives, and to John Doar, ary in an impeachment in- Chief Counsel, House Judicial Sub- quiry, the House adopted a committee on Impeachment, House of Representatives, directing them to ap- resolution granting such lim- pear as witnesses before said court at ited access to the evidence as 10:00 antemeridian on the 9th day of would not violate the privi- September, 1974, and to bring with leges of the House or its sole them certain and sundry papers in the power of impeachment under possession and under the control of the the United States Constitu- House of Representatives: Therefore be it tion. Resolved, That by the privileges of On Aug. 22, 1974,(15) Speaker this House no evidence of a documen- Carl Albert, of Oklahoma, laid be- tary character under the control and in the possession of the House of Rep- 14. 3 Hinds’ Precedents § 1737. resentatives can, by the mandate of 15. 120 CONG REC. 30026, 93d Cong. 2d process of the ordinary courts of jus- Sess. tice, be taken from such control or pos-

2056 IMPEACHMENT POWERS Ch. 14 § 7 session but by its permission; be it fur- authorized to supply certified copies of ther such documents and papers in posses- Resolved, That the House of Rep- sion or control of the House of Rep- resentatives under Article I, Section 2 resentatives that the court has found of the Constitution has the sole power to be material and relevant (except of impeachment and has the sole that under no circumstances shall any power to investigate and gather evi- minutes or transcripts of executive ses- dence to determine whether the House sions, or any evidence of witnesses in of Representatives shall exercise its respect thereto, be disclosed or copied) constitutional power of impeachment; and which the court or other proper of- be it further ficer thereof shall desire, so as, how- Resolved, That when it appears by ever, the possession of said papers, the order of the court or of the judge documents, and records by the House thereof, or of any legal officer charged of Representatives shall not be dis- with the administration of the orders turbed, or the same shall not be re- of such court or judge, that documen- moved from their place of file or cus- tary evidence in the possession and tody under any Members, officer, or under the control of the House is need- employee of the House of Representa- ful for use in any court of justice, or tives; and be it further before any judge or such legal officer, Resolved, That a copy of these reso- for the promotion of justice, this House lutions be transmitted to the said court will take such action thereon as will as a respectful answer to the subpenas promote the ends of justice consistently aforementioned. with the privileges and rights of this House; be it further Resolved, That when said court determines upon the materiality and the § 7. Committee Consider- relevancy of the papers and documents ation; Reports called for in the subpenas duces tecum, then the said court, through any of its Under Rule XI, the rules of the officers or agents, have full permission House are the rules of its commit- to attend with all proper parties to the proceeding and then always at any tees and subcommittees where ap- ( ) place under the orders and control of plicable. 1 Consideration by com- this House and take copies of all mittees of impeachment propo- memoranda and notes, in the files of sitions to be reported to the House the Committee on the Judiciary, of is therefore generally governed by interviews with those persons who sub- the principles of consideration and sequently appeared as witnesses in the proceedings before the full Committee debate that are normally followed pursuant to House Resolution 803, in taking up any proposition. such limited access in this instance not Thus, in the 93d Congress, the being an interference with the Con- stitutional impeachment power of the 1. Rule XI clause 27(a), House Rules House, and the Clerk of the House is and Manual § 735 (1973).

2057 Ch. 14 § 7 DESCHLER’S PRECEDENTS

Committee on the Judiciary Consideration of Resolution adopted a resolution for the con- and Articles of Impeachment sideration of articles impeaching § 7.1 Under the modern prac- President Richard Nixon, pro- tice, the Committee on the viding for general debate, and per- Judiciary may report to the mitting amendment under the House, when recommending (2) five-minute rule. impeachment, both a resolu- Cross References tion and articles of impeachment, to be considered to- Committee consideration and reports gether by the House. generally, see Ch. 17, infra. Committee powers and procedures as to On July 8, 1912, Mr. Henry D. impeachment investigations, see § 6, Clayton, of Alabama, of the Com- supra. mittee on the Judiciary reported Committee procedure generally, see Ch. to the House a resolution (H. Res. 17, infra. 524) impeaching Judge Robert Committee reports on grounds for im- Archbald. The resolution not only peachment, see § 3, supra. impeached but set out articles of Management by reporting committee of impeachment which the resolution impeachment propositions in the stated were sustained by the evi- House, see § 8, infra. dence.(3) A similar procedure was followed in the impeachment of Collateral References certain other judges—George Debates on Articles of Impeachment, English,(4) Harold Louderback,(5) Hearings of the Committee on the Ju- and Halsted Ritter. The resolution diciary pursuant to H. Res. 803, July of impeachment in the Ritter case 24, 25, 26, 27, 29, and 30, 1974, 93d incorporated the articles (the arti- Cong. 2d Sess. cles themselves which followed Impeachment of Richard M. Nixon, the text below have been omit- President of the United States, H. ted): (6) REPT. NO. 93–1305, Committee on the Judiciary, 93d Cong. 2d Sess., Aug. 20, 3. 48 CONG. REC. 8697, 8698, 62d Cong. 1974. 2d Sess. (report and resolution print- Associate Justice William O. Douglas, ed in full in the Record). final report by the Special Sub- 4. 67 CONG. REC. 6280, 69th Cong. 1st committee on H. Res. 920, Committee Sess., Mar. 25, 1926. on the Judiciary, 91st Cong. 2d Sess., 5. 76 CONG. REC. 4913, 4914, 72d Cong. Sept. 17 1970. 2d Sess., Feb. 24, 1933. 6. 80 CONG. REC. 3066, 74th Cong. 2d 2. See § 7.2. infra. Sess., Mar. 2, 1936.

2058 IMPEACHMENT POWERS Ch. 14 § 7

[H. RES. 422, 74TH CONG., 2D SESS. Richard Nixon; the resolu- (Rept. No. 2025)] tion provided for general de- RESOLUTION bate on the resolution, read- Resolved, That Halsted L. Ritter, ing the articles for amend- who is a United States district judge ment under the five-minute for the southern district of Florida, be rule, and considering the impeached for misbehavior, and for original motion as adopted high crimes and misdemeanors; and should any article be agreed that the evidence heretofore taken by the subcommittee of the Committee on to. the Judiciary of the House of Rep- On July 23, 1974, the Com- resentatives under House Resolution mittee on the Judiciary adopted a 163 of the Seventy-third Congress sus- resolution providing that on July tains articles of impeachment, which 24 the committee should com- are hereinafter set out, and that the said articles be, and they are hereby, mence general debate on reporting adopted by the House of Representa- to the House a resolution and ar- tives, and that the same shall be ex- ticles of impeachment against hibited to the Senate in the following President Nixon; the resolution words and figures, to wit: provided for general debate and Articles of impeachment of the reading of the articles for amend- House of Representatives of the United ment under the five-minute States of America in the name of them- rule: (7) selves and of all of the people of the United States of America against Hal- Resolved, That at a business meeting sted L. Ritter, who was appointed, duly on July 24, 1974, the Committee shall qualified, and commissioned to serve, commence general debate on a motion during good behavior in office, as to report to the House a Resolution, to- United States district judge for the gether with articles of impeachment, southern district of Florida, on Feb- impeaching Richard M. Nixon, Presi- ruary 15, 1929. dent of the United States. Such general debate shall consume no more than ten hours, during which time no Resolutions for Committee Member shall be recognized for a pe- Consideration riod to exceed 15 minutes. At the conclusion of general debate, the proposed § 7.2 The Committee on the Ju- articles shall be read for amendment diciary adopted in the 93d and Members shall be recognized for a Congress a resolution gov- period of five minutes to speak on each erning its consideration of a 7. H. REPT. NO. 93–1305, at p. 10, motion to report to the Committee on the Judiciary, 93d House a resolution and arti- Cong. 2d Sess., reported Aug. 20, 1 cles impeaching President 1974. 2059 Ch. 14 § 7 DESCHLER’S PRECEDENTS

proposed article and on any and all resolution (H. Res. 1107) amend- amendments thereto, unless by motion ing the rules of the House.(8) debate is terminated thereon. Each Debate on the resolution indi- proposed article, and any additional article, shall be separately considered for cated that it was intended to clar- amendment and immediately there- ify the rules of the House to per- after voted upon as amended for rec- mit all committees to allow broad- ommendation to the House. At the con- casting of their meetings as well clusion of consideration of the articles as hearings by majority vote, but for amendment and recommendation to that its immediate purpose was to the House, if any article has been allow the broadcasting of the pro- agreed to, the original motion shall be ceedings of the Committee on the considered as adopted and the Chair- Judiciary in considering a resolu- man shall report to the House said tion and articles of impeachment Resolution of impeachment, together with such articles as have been agreed against President Nixon (to com- to, or if no article is agreed to, the mence on July 24, 1974). The Committee shall consider such resolu- House discussed the advisability tions or other recommendations as it of, and procedures for, televising deems proper. the proceedings of the Committee on the Judiciary, and adopted the Broadcasting Committee Meet- resolution.(9) ings During Consideration of Impeachment Privilege of Reports on Im- peachment Questions § 7.3 The House in the 93d Congress amended Rule XI of § 7.4 The reports of a com- the rules of the House to pro- mittee to which has been re- vide for broadcasting of ferred resolutions for the im- meetings, as well as hear- peachment of a federal civil ings, of committees, thereby officer are privileged for im- permitting radio and tele- mediate consideration. vision coverage of the con- 8. 120 CONG. REC. 24436, 93d Cong. 2d sideration by the Committee Sess. on the Judiciary of a resolu- 9. Speaker Carl Albert (Okla.) over- tion and articles of impeach- ruled a point of order against consid- ment against President Rich- eration of the resolution and held ard Nixon. that the question whether a committee meeting was properly called On July 22, 1974, Mr. B.F. Sisk, was a matter for the committee and of California, called up by direc- not the House to consider. 120 CONG. tion of the Committee on Rules a REC. 24437, 93d Con. 2d Sess. 2060 IMPEACHMENT POWERS Ch. 14 § 7

Resolutions impeaching federal proceedings are privileged civil officers, or resolutions inci- for immediate consideration dental to an impeachment ques- when reported from the tion, are highly privileged under Committee on the Judiciary. the U.S. Constitution (§ 5, supra); reports thereon are likewise con- On Feb. 13, 1932, Mr. Hatton sidered as privileged.(10) W. Sumners, of Texas, offered House Report No. 444 and House Privilege of Reports as to Dis- Resolution 143, discontinuing im- continuance of Impeachment peachment proceedings against Proceedings Secretary of the Treasury Andrew Mellon. He offered the report as § 7.5 Reports proposing dis- privileged and it was immediately continuance of impeachment considered and adopted by the ( ) 10. Rule XI clause 27 (d) (4), House House. 11 Rules and Manual § 735 (1973) re- On Mar. 24, 1939, Mr. Sam quires that, with certain exceptions, Hobbs, of Alabama, called up a a measure not be considered in the House until the third calendar day privileged report of the Committee on which the report thereon has on the Judiciary on House Resolu- been available to Members. How- tion 67, which report rec- ever, on July 13, 1971, Speaker Carl ommended against the impeach- Albert (Okla.) held that a committee ment of Secretary of Labor report relating to the refusal of a witness to respond to a subpena was Frances Perkins. The report was not subject to the three-day rule. See called up as privileged and the 117 CONG. REC. 24720–23, 92d Cong. House immediately agreed to Mr. 1st Sess. (H. REPT. NO. 92–349). The Hobbs’ motion to lay the report on Speaker held in that case that ‘‘the (12) report is of such high privilege under the table. the inherent constitutional powers of the House and under Rule IX that Calendaring and Printing of the provisions of clause 27(d) (4) of Impeachment Reports Rule XI are not applicable.’’ See also the dicta of Speaker Fred- § 7.6 Reports of the Committee erick H. Gillett (Mass.), at 6 Can- on the Judiciary recom- non’s Precedents § 48, that impeachment charges were privileged for im- mending impeachment of mediate consideration due to their civil officers and judges of particularly privileged status under the U.S. Constitution. 11. 75 CONG. REC. 3850, 72d Cong. 1st These arguments seem persuasive Sess. with respect to impeachment cases 12. 84 CONG. REC. 3273, 76th Cong. 1st when reported. Sess.

2061 Ch. 14 § 7 DESCHLER’S PRECEDENTS

the United States are re- peachment against President ferred to the House Calendar Nixon and adopted articles, as and ordered printed. amended, on July 27, 29, and 30, A committee report on the im- 1974. Before the committee report peachment of a federal civil officer with articles of impeachment were is referred to the House Calendar, reported to the House, the Presi- ordered printed, and may be dent resigned his office. The com- printed in full in the Record ei- mittee’s report was therefore sub- ther by resolution or pursuant to mitted to the House without an a unanimous consent request.(13) accompanying resolution of impeachment. The report summa- Report Submitted Without Res- rized in detail the evidence olution of impeachment against the President and the committee’s investigation and con- § 7.7 President Richard Nixon sideration of impeachment having resigned following charges, and included supple- the decision of the Com- mental, additional, separate, dis- mittee on the Judiciary to resenting, minority, and concurring port to the House recom- views as to the separate articles, mending his impeachment, the evidence before the committee the committee’s report, with- and its sufficiency for impeach- out an accompanying resolu- ment, and the standards and grounds for impeachment of fed- tion, was submitted to and eral and civil officers. accepted by the House. The committee’s recommenda- The Committee on the Judiciary tion read as follows: considered proposed articles of im- The Committee on the Judiciary, to whom was referred the consideration 13. 48 CONG. REC. 8697, 8698, 62d Cong. 2d Sess., July 8, 1912 (Judge Robert of recommendations concerning the exercise of the constitutional power to Archbald); see also H. REPT. No. 653, impeach Richard M. Nixon, President 67 CONG. REC. 6280, 69th Cong. 1st of the United States, having considered Sess., Mar. 25, 1926 (Judge George the same, reports thereon pursuant to English), printed in full in the H. Res. 803 as follows and recommends Record by unanimous consent; H. that the House exercise its constitu- REPT. No. 2025, 80 CONG. REC. 2528, tional power to impeach Richard M. 74th Cong. 2d Sess., Feb. 20, 1936 Nixon, President of the United States, (Judge Halsted Ritter); H. REPT. No. and that articles of impeachment be 1305, 120 CONG. REC. 29219, 93d exhibited to the Senate as follows: Cong. 2d Sess., Aug. 20, 1974 (Presi- ...(14) dent Richard Nixon), printed in full in the Record pursuant to H. Res. 14. H. REPT. NO. 93–1305, at p. 1, Com- 1333, 120 CONG. REC. 29361, 29362. mittee on the Judiciary, printed in

2062 IMPEACHMENT POWERS Ch. 14 § 7

The report was referred by the 93–1305) and authorizes and directs that the said report, together with sup- Speaker to the House Calendar, plemental, additional, separate, dis- and accepted and ordered printed senting, minority, individual and con- in full in the Record pursuant to curring views, be printed in full in the the following resolution, agreed to Congressional Record and as a House Document; and under suspension of the rules, (3) commends the chairman and which acknowledged the inter- other members of the Committee on vening resignation of the Presi- the Judiciary for their conscientious and capable efforts in carrying out the dent: Committee’s responsibilities under House Resolution 803.(15) H. RES. 1333 Resolved, That the House of Rep- Reports Discontinuing Im- resentatives peachment Proceedings (1) takes notice that (a) the House of Representatives, by § 7.8 The Committee on the Ju- House Resolution 803, approved Feb- diciary unanimously agreed ruary 6, 1974, authorized and directed to report adversely a resolu- the Committee on the Judiciary to investigate fully and completely whether tion authorizing an impeach- sufficient grounds existed for the ment investigation into the House of Representatives to exercise conduct of the Secretary of its constitutional power to impeach Labor. Richard M. Nixon, President of the (16) United States of America; and On Mar. 24, 1939, a privi- (b) the Committee on the Judiciary, leged report of the Committee on after conducting a full and complete in- the Judiciary was presented to the vestigation pursuant to House Resolu- House; the report was adverse to tion 803, voted on July 27, 29, and 30, a resolution (H. Res. 67) author- 1974 to recommend Articles of im- izing an investigation of impeach- peachment against Richard M. Nixon, ment charges against Secretary of President of the United States of Labor Frances Perkins and two America; and other officials of the Labor De- (c) Richard M. Nixon on August 9, partment: 1974 resigned the Office of President of the United States of America; IMPEACHMENT PROCEEDINGS—FRANCES (2) accepts the report submitted by PERKINS the Committee on the Judiciary pursu- MR. [SAM] HOBBS [of Alabama]: Mr. ant to House Resolution 803 (H. Rept. Speaker, by direction of the Committee

the Record at 120 CONG. REC. 29219, 15. 120 CONG. REC. 29361, 93d Cong. 2d 93d Cong. 2d Sess., Aug. 20, 1974. Sess., Aug. 20, 1974. For complete text of H. REPT. No. 16. 84 CONG. REC. 3273, 76th Cong. 1st 93–1305, see id. at pp 29219–361. Sess.

2063 Ch. 14 § 7 DESCHLER’S PRECEDENTS

on the Judiciary I present a privileged THE SPEAKER: (19) The gentleman report upon House Resolution 67, from Texas offers a report, which the which I send to the desk. Clerk will read. THE SPEAKER: (17) The Clerk will re- The Clerk read the report, as fol- port the resolution. lows: The Clerk read House Resolution 67. HOUSE OF REPRESENTATIVES—REL- MR. HOBBS: Mr. Speaker, this is a ATIVE TO THE ACTION OF THE COM- unanimous report from the Committee MITTEE ON THE JUDICIARY WITH on the Judiciary adversing this resolu- REFERENCE TO HOUSE RESOLUTION tion. I move to lay the resolution on 92 the table. Mr. Sumners of Texas, from the THE SPEAKER: The question is on the Committee on the Judiciary, sub- motion of the gentleman from Alabama mitted the following report (to ac- to lay the resolution on the table. company H. Res. 143): The motion was agreed to. I am directed by the Committee on the Judiciary to submit to the House, as its report to the House, § 7.9 Where an impeachment the following resolution adopted by resolution was pending be- the Committee on the Judiciary indicating its action with reference to fore the Committee on the House Resolution No. 92 heretofore Judiciary, and the official referred by the House to the Com- charged resigned, the committee on the Judiciary: Whereas Hon. Wright Patman, mittee reported out a resolu- Member of the House of Representa- tion recommending that the tives, filed certain impeachment charges against Hon. Andrew W. further consideration of the Mellon, Secretary of the Treasury, charges be discontinued. which were referred to this committee; and (18) On Feb. 13, 1932, the Com- Whereas pending the investigation mittee on the Judiciary reported of said charges by said committee, adversely on impeachment and before said investigation had been completed, the said Hon. An- charges and its resolution was drew W. Mellon was nominated by adopted by the House: the President of the United States for the post of ambassador to the IMPEACHMENT CHARGES—REPORT Court of St. James and the said FROM COMMITTEE ON THE JUDICIARY nomination was duly confirmed by the United States Senate pursuant MR. [HATTON W.] SUMNERS of Texas: to law, and the said Andrew W. Mel- Mr. Speaker, I offer a report from the lon has resigned the position of Sec- Committee on the Judiciary, and I retary of the Treasury: Be it would like to give notice that imme- Resolved by this committee, That diately upon the reading of the report the further consideration of the said I shall move the previous question. charges made against the said An- drew W. Mellon, as Secretary of the Treasury, be, and the same are here- 17. William B. Bankhead (Ala.). by discontinued. 18. 75 CONG. REC. 3850, 72d Cong. 1st Sess. 19. John N. Garner (Tex.).

2064 IMPEACHMENT POWERS Ch. 14 § 8

MINORITY VIEWS (H. Rept. No. 2065) from the Com- We can not join in the majority mittee on the Judiciary, which in- views and findings. While we concur cluded the finding that charges in the conclusions of the majority that section 243 of the Revised Stat- against Judge Harold Louderback utes, upon which the proceedings did not warrant impeachment. herein were based, provides for ac- Under a previous unanimous-con- tion in the nature of an ouster proceeding, it is our view that the Hon. sent agreement, an amendment in Andrew W. Mellon, the former Sec- the nature of a substitute, rec- retary of the Treasury, having removed himself from that office, no ommended by the minority of the useful purpose would be served by committee and impeaching the ac- continuing the investigation of the cused, was offered. The previous charges filed by the Hon. Wright Patman. We desire to stress that the question was ordered on the action of the undersigned is based on amendment and it was adopted by that reason alone, particularly when the House.(20) the prohibition contained in said section 243 is not applicable to the office now held by Mr. Mellon. FIORELLO H. LAGUARDIA. § 8. Consideration and De- GORDON BROWNING. M. C. TARVER. bate in the House FRANCIS B. CONDON.

MR. SUMNERS of Texas: Mr. Speaker Reports on impeachment are I think the resolution is fairly explana- privileged for immediate consider- tory of the views held by the different ation in the House.(1) Unless the members of the committee. No useful purpose could be served by the con- House otherwise provides by spe- sumption of the usual 40 minutes, so I cial order, propositions of im- move the previous question. peachment are considered under The previous question was ordered. THE SPEAKER: The question is on 20. 76 CONG. REC. 4913–25, 72d Cong. agreeing to the resolution. 2d Sess. For analyses of the The resolution was agreed to. Louderback proceedings in the § 7.10 On one occasion, the House, see §§ 17.1–17.4, infra, and 6 Cannon’s Precedents § 514. Committee on the Judiciary 1. See § 8.2, infra, for the privilege of reported adversely on im- impeachment reports and § 7.6, peachment charges, finding supra, for their referral to the House the evidence did not warrant Calendar. Impeachment reports have impeachment, but the House usually been printed in full in the rejected the report and voted Congressional Record and have laid over for a period of days before con- for impeachment. sideration by the House, so that On Feb. 24, 1933, the House Members could acquaint themselves considered House Resolution 387 with the contents of the reports. 2065 Ch. 14 § 8 DESCHLER’S PRECEDENTS the general rules of the House ap- Consideration of resolutions electing plicable to other simple House managers, granting them powers and resolutions. Since 1912, the House funds, and notifying the Senate, see § 9, infra. has considered together the reso- Consideration and debate in Committee lution and articles of impeach- of the Whole generally, see Ch. 19, ment, although prior practice was infra. to adopt a resolution of impeach- Consideration and debate in the House ment and later to consider sepa- generally, see Ch. 29, infra. rate articles of impeachment.(2) Division of the question for voting, see The House has typically consid- Ch. 30, infra. ered the resolution and articles Privileged questions and reports interrupting regular order of business, see under unanimous-consent agree- Ch. 21, infra. ments, providing for a certain Summary of House consideration of spe- number of hours of debate, equal- cific impeachment resolutions, see ly divided and controlled by the §§ 14–18, infra. proponents and opposition, at the conclusion of which the previous question was considered as or- Controlling Time for Debate dered. In one case, an amendment was specifically made in order § 8.1 Under the later practice, under the unanimous-consent resolutions and articles of agreement governing consider- impeachment have been con- ation of the resolution.(3) sidered together in the The motion for the previous House pursuant to unani- question and the motion to recom- mous-consent agreements mit are applicable to a resolution fixing the time for and con- and articles of impeachment being trol of debate. considered in the House, and a On Mar. 2, 1936, the House con- separate vote may be demanded sidered House Resolution 422, im- on substantive propositions con- peaching Judge Halsted Ritter, tained in the resolution.(4) pursuant to a unanimous-consent Cross References agreement propounded by Chair- Amendments generally, see Ch. 27, infra. man Hatton W. Sumners, of Consideration in the House of amend- Texas, of the Committee on the ments to articles, see § 10, infra. Judiciary, who had called up the report: (5) 2. See § 8.1, infra. 3. §§ 8.1, 8.4, infra. 5. 80 CONG. REC. 3066, 3069, 74th 4. See §§ 8.8–8.10, infra. Cong. 2d Sess.

2066 IMPEACHMENT POWERS Ch. 14 § 8

THE SPEAKER: (6) The gentleman Oklahoma, that at the end of that time from Texas asks unanimous consent the previous question shall be consid- that debate on this resolution be con- ered as ordered, with the privilege, tinued for 41⁄2 hours, 21⁄2 hours to be however, of a substitute resolution controlled by himself and 2 hours by being offered, to be included in the pre- the gentleman from New York [Mr. vious question. Is there objection? Hancock]; and at the expiration of the MR. [WILLIAM B.] BANKHEAD [of Ala- time the previous question shall be bama]: Mr. Speaker, reserving the considered as ordered. Is there objec- right to object for the purpose of get- tion? ting the parliamentary situation clari- There was no objection. fied before we get to the merits, is there any question in the mind of the On Feb. 24, 1933, House Reso- Speaker, if it is fair to submit such a lution 387, recommending against suggestion, as to whether or not the the impeachment of Judge Harold substitute providing for absolute im- Louderback, was considered pur- peachment would be in order as a sub- suant to a unanimous-consent stitute for this report? agreement, propounded by Mr. THE SPEAKER: That is the understanding of the Chair, that the unani- Thomas D. McKeown, of Okla- mous-consent agreement is, that the homa, who called up the resolu- gentleman from New York [Mr. tion, to allow a substitute amend- LaGuardia] may offer a substitute, the ment recommending impeachment previous question to be considered as to be offered: (7) ordered on the substitute and the original resolution at the expiration of the MR. MCKEOWN: Mr. Speaker, I ask two hours. Is there objection? unanimous consent that the time for There was no objection. debate be limited to two hours to be controlled by myself, that during that On Mar. 30, 1926, the House by time the gentleman from New York unanimous consent agreed to a [Mr. La Guardia] be permitted to offer procedure for the consideration of a substitute for the resolution and at a resolution impeaching Judge the conclusion of the time for debate George English; the request was the previous question be considered as ordered. propounded by Chairman George ( ) S. Graham, of Pennsylvania, of THE SPEAKER: 8 Then the Chair submits this: The gentleman from the Committee on the Judiciary: Oklahoma asks unanimous consent THE SPEAKER: (9) The gentleman that debate be limited to two hours, to from Pennsylvania [Mr. Graham] asks be controlled by the gentleman from unanimous consent that during today the debate be equally divided between 6. Joseph W. Byrns (Tenn.). the affirmative and the negative, and 7. 76 CONG. REC. 4914, 72d Cong. 2d that he control one-half of the time and Sess. 8. John N. Garner (Tex.). 9. Nicholas Longworth (Ohio).

2067 Ch. 14 § 8 DESCHLER’S PRECEDENTS

that the other half be controlled by the articles of impeachment together gentleman from Alabama [Mr. Bowl- in the House, as opposed to the (10) ing]. Committee of the Whole.(14) In earlier practice, resolutions and articles were considered sepa- Reports Privileged for Imme- rately, the articles being consid- diate Consideration ered in the Committee of the Whole on occasion. For example, § 8.2 Resolutions of impeach- the articles of impeachment ment, resolutions proposing against Justice Samuel Chase abatement of proceedings, were considered in the Committee and resolutions incidental to of the Whole and were read for the question of impeachment amendment, although the resolu- are privileged for immediate tion to impeach was earlier con- consideration when reported sidered in the House.(11) Again, from the committee to which during proceedings against Presi- propositions of impeachment dent Andrew Johnson, the House have been referred adopted a resolution which pro- On Mar. 2, 1936, Chairman vided for consideration and Hatton W. Sumners, of Texas, of amendment of the articles in the the Committee on the Judiciary, Committee of the Whole under the called up as privileged House Res- five-minute rule, at the conclusion olution 422, impeaching Judge of general debate.(12) Halsted Ritter, and the House The resolution and the articles proceeded to its immediate consid- of impeachment against Judge eration.(15) Charles Swayne (1904, 1905) were On Feb. 24, 1933, Speaker John considered separately but were N. Garner, of Texas, held that a both considered in the House.(13) resolution reported from the Com- In the impeachment of Judge mittee on the Judiciary, proposing Robert Archbald (1912) the House discontinuance of impeachment instituted the modern practice of proceedings, was privileged for considering the resolution and the immediate consideration: THE SPEAKER: The Clerk will report 10. 67 CONG. REC. 6585–90, 69th Cong. the resolution. 1st Sess. New agreements were ob- The Clerk read the resolution, as fol- tained on each succeeding day dur- lows: ing debate on the resolution. 11. 3 Hinds’ Precedents § § 2343, 2344. 14. 6 Cannon’s Precedents §§ 499, 500. 12. 3 Hinds’ Precedents § 2414. 15. 80 CONG. REC. 3066, 74th Cong. 2d 13. 3 Hinds’ Precedents § § 2472, 2474. Sess.

2068 IMPEACHMENT POWERS Ch. 14 § 8

HOUSE RESOLUTION 387 House immediately agreed to Mr. Resolved, That the evidence sub- Hobbs’ motion to lay the resolu- mitted on the charges against Hon. tion on the table.(17) Harold Louderback, district judge for On Feb. 6, 1974, Chairman the northern district of California, does Peter W. Rodino, Jr., of New Jer- not warrant the interposition of the constitutional powers of impeachment sey, of the Committee on the Judi- of the House. ciary, called up as privileged MR. [BERTRAND H.] SNELL [of New House Resolution 803, authorizing York]: Mr. Speaker, when they report that committee to investigate the back a resolution of that kind, is it a sufficiency of grounds for im- privileged matter? peachment of President Richard THE SPEAKER: It is not only a privi- Nixon, various resolutions of im- leged matter but a highly privileged matter. peachment having been referred MR. [LEONIDAS C.] DYER [of Mis- to the committee. The House pro- souri]: Mr. Speaker, this is the first in- ceeded to its immediate consider- stance to my knowledge, in my service ation.(18) here, where the committee has reported adversely on an impeachment Motion to Discharge Committee charge. From Consideration of Im- THE SPEAKER: The gentleman’s memory should be refreshed. The Mel- peachment Proposal lon case was reported back from the committee, recommending that im- § 8.3 A Member announced his peachment proceedings be discon- filing of a motion to dis- tinued. charge the Committee on the MR. SNELL: Was that taken up on Judiciary from further con- the floor as a privileged matter? sideration of a resolution ( ) THE SPEAKER: It was. 16 proposing impeachment of On Mar. 24, 1939, Mr. Sam the President. Hobbs, of Alabama, called up a report of the Committee on the Ju- 17. 84 CONG. REC. 3273, 76th Cong. 1st diciary, which report was adverse Sess. 18. 120 CONG. REC. 2349–63, 93d Cong. to House Resolution 67, on the im- 2d Sess. For additional discussion as peachment of Secretary of Labor to high privilege for consideration of Frances Perkins. The report was impeachment resolutions notwith- called up as privileged and the standing the normal application of House rules, and of other resolutions 16. 76 CONG. REC. 4913, 72d Cong. 2d incidental to impeachment called up Sess. (See also 6 Cannon’s Prece- by the investigating committee, see dents § 514.) § 7.4, supra.

2069 Ch. 14 § 8 DESCHLER’S PRECEDENTS

On June 17, 1952,(19) a Member the Court, prior to the Court decision made an announcement relating he reasserted his claim to the powers to impeachment charges against then in question, and subsequent to that decision he has contemptuously President Harry S. Truman: called into question ‘‘the intention of MR. [PAUL W.] SHAFER [of Michigan]: the Court’s majority’’ and contemp- Mr. Speaker, on April 28 of this year I tuously attributed the limits set on the introduced House Resolution 614, to President’s powers not to Congress, or impeach Harry S. Truman, President to the Court, or to the Constitution, of the United States, of high crimes but to ‘‘the Court’s majority.’’ and misdemeanors in office. This reso- Third. The Court, in its finding in lution was referred to the Committee the steel case, emphasized not only the on the Judiciary, which committee has unconstitutionality of the Presidential failed to take action thereon. seizure but also stressed his failure to Thirty legislative days having now utilize and exhaust existing and avail- elapsed since introduction of this reso- able legal resources for dealing with lution, I today have placed on the the situation, including the Taft-Hart- Clerk’s desk a petition to discharge the ley law. committee from further consideration Fourth. The President’s failure and of the resolution. refusal to utilize and exhaust existing In my judgment, developments since and available legal resources for deal- I introduced the Resolution April 28 ing with the emergency has persisted have immeasurably enlarged and since the Court decision and in spite of strengthened the case for impeachment clear and unmistakable evidences of and have added new urgency for such the will and intent of Congress given action by this House. in response to his latest request for First. Since the introduction of this special legislation authorizing seizure resolution, the United States Supreme or other special procedures. Court, by a 6-to-3 vote, has held that The discharge petition did not in his seizure of the steel mills Harry gain the requisite number of sig- S. Truman, President of the United States, exceeded his authority and natures for its consideration by powers, violated the Constitution of the House. the United States, and flouted the expressed will and intent of the Con- Amendment of Resolution and gress—and, in so finding, the Court Articles gave unprecedented warnings against the threat to freedom and constitu- § 8.4 A resolution with articles tional government implicit in his act. of impeachment, being con- Second. Despite the President’s tech- sidered in the House under a nical compliance with the finding of unanimous-consent agree- 19. 98 CONG. REC. 7424, 82d Cong. 2d ment fixing control of de- Sess. bate, is not subject to amend- 2070 IMPEACHMENT POWERS Ch. 14 § 8

ment unless the agreement specifically allowed the substitute allows an amendment to be resolution to be offered and voted offered, or the Member in upon.(1) control offers an amendment In the Charles Swayne im- or yields for amendment. peachment, Mr. Henry W. Palmer, On Apr. 1, 1926, the House was of Pennsylvania, of the Committee considering a resolution impeach- on the Judiciary called up the res- ing Judge George English. Pursu- olution of impeachment and con- ant to a unanimous-consent agree- trolled the time thereon. Before ment, the time for debate was moving the previous question, he being controlled by two Members. offered an amendment to the reso- Following the ordering of the pre- lution of impeachment, to add vious question on the resolution, clarifying and technical changes. ( ) Speaker Nicholas Longworth, of The amendment was agreed to. 2 Ohio, answered a parliamentary inquiry propounded by Mr. Tom Debate on Impeachment Reso- T. Connally, of Texas: lutions and Articles Under the rules of the House would § 8.5 In debating articles of im- not this resolution be subject to consid- peachment, a Member may eration under the five-minute rule for refer to the political, social, amendment? and family background of THE SPEAKER: The Chair thinks not.(20) the accused. In the Harold Louderback im- On Mar. 2, 1936,(3) the House peachment proceedings in the was debating articles of impeach- House, the resolution reported by ment against Judge Halsted Rit- the Committee on the Judiciary ter. Mr. Louis Ludlow, of Indiana, recommended against impeach- had the floor, and Speaker Joseph ment, but the minority of the com- W. Byrns, of Tennessee, overruled mittee proposed a resolution im- 1. 76 CONG. REC. 4913, 4914, 72d Cong. peaching Judge Louderback. The 2d Sess., Feb. 24, 1933. For a com- substitute impeaching the accused plete analysis of the procedure fol- was offered and adopted by the lowed for consideration of the House, pursuant to a unanimous- Louderback impeachment, see consent agreement which fixed §§ 17.1 et seq., infra. control and time of debate, but 2. 39 CONG. REC. 248, 58th Cong. 3d Sess., Dec. 13, 1904. 20. 67 CONG. REC. 6733, 69th Cong. 1st 3. 80 CONG. REC. 3069, 74th Cong. 2d Sess. Sess.

2071 Ch. 14 § 8 DESCHLER’S PRECEDENTS a point of order based on the whom these impeachment proceedings irrelevancy of his remarks. The are pending. He is referring to something that should not affect the judg- proceedings were as follows: ment of the House one way or the MR. LUDLOW: . . . I feel there is im- other, and, in my judgment, it is highly posed upon me today a duty and a re- improper, and the gentleman should sponsibility to raise my voice in this not be allowed to continue. case if for no other purpose than to THE SPEAKER PRO TEMPORE: The present myself as a character wit- chairman understands the gentleman ness—a duty which I could not con- is proceeding under the order of the scientiously avoid and which I am very House, which provided for two hours glad to perform. Judge Ritter was born and a half on one side and 2 hours on in Indianapolis, Ind. He springs from a the other. Of course, the Chair cannot long and honored Hoosier ancestry, dictate to the gentleman just how he rooted in the pioneer life of our Com- shall proceed in his discussion of this monwealth. There are no better people resolution. than those who comprised his ances- MR. TARVER: It is then the ruling of tral train. People do not come any bet- the Speaker that during the time for ter anywhere on this globe. Rugged general debate Members may address honesty, outspoken truthfulness, and themselves to whatever subject they high ideals are characteristics of his desire. family. His father, Col. Eli F. Ritter, THE SPEAKER: Members must ad- was a man of outstanding character dress themselves to the resolution. and personality, one of the most pub- MR. LUDLOW: That is what I am try- lic-spirited men I ever have known, a ing to do, Mr. Speaker. lawyer of distinction, ranking high in a THE SPEAKER: The gentleman will bar of great brilliancy that included proceed in order. such stellar lights as Thomas A. Hen- dricks, Joseph E. McDonald, and Ben- § 8.6 During debate on a reso- jamin Harrison, an unofficial advocate lution of impeachment, the of the people’s cause in many a fight Speaker ruled that unparlia- against vice and privilege, for whom mentary language, even if a even those who felt his steel had a recitation of testimony or wholesome respect because of his mili- tant ardor on the side of right and civic evidence, could not be used virtue. in debate. MR. [MALCOLM C.] TARVER [of Geor- On Mar. 30, 1926, during de- gia]: Mr. Speaker, I rise to a point of bate on the resolution and articles order. of impeachment against Judge THE SPEAKER PRO TEMPORE: The gentleman will state it. George English, Speaker Nicholas Longworth, of Ohio, delivered a MR. TARVER: The gentleman is endeavoring to read into the Record a ruling on the use of unparliamen- statement with regard to the pro- tary language in debate, and the genitors of the gentleman against House discussed his decision: 2072 IMPEACHMENT POWERS Ch. 14 § 8

THE SPEAKER: The Chair desires to precedent in the future. The House, as make a statement. The Chair has been I understand it, at the present moment in doubt on one or two occasions this is proceeding as an inquisitorial body, afternoon whether he should permit somewhat as a grand jury, as in a the use of certain language even by semijudicial proceeding; and if we have way of quotation. The Chair at the unpleasant matters in court, the court time realized, of course, that the mem- can not avoid its duty because they are bers of the majority of the committee unpleasant, and if it becomes nec- might think the use of this language essary in this Chamber for Members to would be material in describing an in- properly present this case or to quote dividual. The Chair hopes that it will the testimony in the record to use un- not be used further during this debate pleasant and offensive language to es- and suggests also that those words be tablish the truth, I think the House stricken from the Record. [Applause.] ought to hear it. It is neither wise nor MR. [JOHN N.] TILLMAN [of Arkan- safe to censor the evidence. We must sas]: I think the Speaker will remem- hear it, good or bad, because it is the ber I stated when I put the speech in evidence. If it is suppressed or colored, the Record that I intended to strike it is no longer the true evidence in the out those words. case. I sympathize with the Chair’s position, and I know he is prompted by THE SPEAKER: There were other occasions besides that to which the gen- the best motives, by a sense of delicacy tleman refers. and consideration for the galleries. I think it is well for the House and MR. [EDWARD J.] KING [of Illinois]: Chair now to understand that the rul- Mr. Speaker, a parliamentary inquiry. ing of the Chair ought not to be re- THE SPEAKER: The gentleman will garded as a precedent in the future state it. which might operate to exclude com- MR. KING: Will the language also be petent evidence, because when we are stricken out of the evidence in the case dealing with a matter of this kind, se- and in the report of the committee? rious and important as it is, we want THE SPEAKER: The Chair does not to know the truth, whatever it may be, think that has anything to do with the and those who come here to hear these use of language on the floor of the proceedings of course do so at their House. own risk. [Laughter.] MR. [TOM T.] CONNALLY of Texas: THE SPEAKER: The Chair thinks his Mr. Speaker, a parliamentary inquiry. ruling ought to be regarded as a prece- THE SPEAKER: The gentleman will dent as far as these proceedings in the state it. House are concerned. If the Chair MR. CONNALLY of Texas: Without should be officially advised that the taking any exception to the Chair’s use of this language is actually nec- views as to striking from the printed essary, he might order the galleries Record what has already happened, it cleared. seems to me the Chair ought to make MR. [FIORELLO H.] LAGUARDIA [of clear his ruling so that we may know New York]: Mr. Speaker, a parliamen- as to how far it shall be regarded as a tary inquiry.

2073 Ch. 14 § 8 DESCHLER’S PRECEDENTS

THE SPEAKER: The gentleman will spired and what was said.’’ He in- state it. dicated that no objection would be MR. LAGUARDIA: The Chair’s ruling, made to the extension of remarks as I understand it, is that under the after the vote had occurred on the rules of the House language that is not (5) parliamentary should not be used; but resolution of impeachment. that does not prevent the consideration of whether or not a particular judge Motion for Previous Question whose case we are trying used the language or not? § 8.8 The motion for the pre- THE SPEAKER: Not at all. It is simply vious question is applicable the use of certain language on the floor to a resolution of impeach- of the House. ment. MR. [CHARLES R.] CRISP [of Georgia]: Mr. Speaker, I want to enter my ap- On Dec. 13, 1904, the House proval of the course the Speaker has was considering a resolution im- taken. Members of this House, if they peaching Judge Charles Swayne desire to know what the language is, of high crimes and misdemeanors. can read the record, and I thoroughly The manager of the resolution, endorse the course the Speaker pur- Mr. Henry W. Palmer, of Pennsyl- sued. vania, moved the previous question on the resolution at the con- § 8.7 During debate in the clusion of debate thereon. Mr. House objection was made to Richard Wayne Parker, of New extensions of remarks in the Jersey, made a point of order Congressional Record in against the offering of the motion, order that an accurate on the ground that the previous record of impeachment pro- question should not be directly or- ceedings be preserved. dered upon a question of high In April 1926,(4) the House was privilege such as impeachment. considering a resolution impeach- Speaker Joseph G. Cannon, of Illi- ing Judge George English. When nois, ruled that under the precedents the previous question was a Member asked unanimous con- in order.(6) sent to revise and extend his remarks in the Record, Mr. C. Wil- Motion to Recommit liam Ramseyer, of Iowa, objected stating that his object was to § 8.9 After the previous ques- ‘‘have the Record, preceding the tion has been ordered on a vote, show exactly what tran- 5. Id. at p. 6717. 4. 67 CONG. REC. 6602, 69th Cong. 1st 6. 39 CONG. REC. 248, 58th Cong. 3d Sess. Sess.

2074 IMPEACHMENT POWERS Ch. 14 § 8

resolution of impeachment, a stantive proposition con- motion to recommit, with or tained in a resolution of im- without instructions, is in peachment, when the ques- order, but is not debatable. tion recurs on the resolution. On Apr. 1, 1926, the House was On Mar. 30, 1926, the House considering House Resolution 195, was considering a resolution and impeaching Judge George English, articles of impeachment against United States District Judge for Judge George English. Mr. the Eastern District of Illinois. After the previous question was Charles R. Crisp, of Georgia, in- ordered, a motion was offered to quired whether, under Rule XVI recommit the resolution with in- clause 6, a separate vote could be structions. The instructions di- demanded on any substantive rected the Committee on the Judi- proposition contained in the reso- ciary to take the testimony of cer- lution of impeachment. Speaker tain persons and authorized the Nicholas Longworth, of Ohio, re- committee to send for persons and sponded in the affirmative.(9) papers, administer oaths, and re- When the vote recurred on the port at any time. resolution of impeachment, on The motion was rejected on a Apr. 1, 1926, a separate vote was yea and nay vote.(7) Parliamentarian’s Note: A mo- demanded on Article I. The House rejected the motion to strike the tion to recommit, with or without ( ) instructions, on a resolution of im- article. 10 peachment, is not debatable. Rule Parliamentarian’s Note: A divi- XVI clause 4, House Rules and sion of the question may be de- Manual § 782 (1973), amended in manded at any time before the the 92d Congress to allow debate question is put on the resolution. on certain motions to recommit During the Judge English pro- with instructions, does not apply ceedings, the Speaker put the to simple resolutions but only to question on the resolution and an- bills or joint resolutions.(8) nounced that it was adopted. A Division of the Question Member objected that he had meant to ask for a separate vote § 8.10 A separate vote may be and the Speaker allowed such a demanded on any sub- 9. 67 CONG. REC. 6589, 6590, 69th 7. 67 CONG. REC. 6734, 69th Cong. 1st Cong. 1st Sess. See House Rules and Sess. Manual § 791 (1973). 8. See Ch. 23, infra, for the motion to 10. 67 CONG. REC. 6734, 69th Cong. 1st recommit and debate thereon. Sess.

2075 Ch. 14 § 8 DESCHLER’S PRECEDENTS demand (thereby vacating the proceedings in the Chamber of the House ceedings by unanimous consent) of Representatives relating to the resolution reported from the Committee on because of confusion in the Cham- the Judiciary, recommending the im- ber, although he stated that the peachment of Richard M. Nixon, Presi- demand was untimely.(11) dent of the United States, may be broadcast by radio and television and Broadcasting House Pro- may be open to photographic coverage, subject to the provisions of section 2 of ceedings this resolution. Sec. 2. A special committee of four § 8.11 The House adopted a members, composed of the majority resolution in the 93d Con- and minority leaders of the House, and gress authorizing television, the majority and minority whips of the radio, and photographic cov- House, is hereby authorized to arrange for the coverage made in order by this erage of projected House resolution and to establish such regu- consideration of a resolution lations as they may deem necessary impeaching President Rich- and appropriate with respect to such broadcast or photographic coverage: ard Nixon, thereby waiving Provided, however, That any such ar- rulings of the Speaker pro- rangements or regulations shall be hibiting such coverage of subject to the final approval of the House proceedings. Speaker; and if the special committee or the Speaker shall determine that On Aug. 7, 1974,(12) Mr. Ray J. the actual coverage is not in con- Madden, of Indiana, called up by formity with such arrangements and direction of the Committee on regulations, the Speaker is authorized and directed to terminate or limit such Rules House Resolution 802, with coverage in such manner as may pro- committee amendments, for the tect the interests of the House of Rep- broadcasting of House proceedings resentatives. on the impeachment of President The House briefly debated the Nixon, the Committee on the Ju- resolution before adopting it, and diciary having decided on July 27, discussed suitable restrictions on 29, and 30 to report to the House broadcast coverage as well as the recommending the President’s im- broadcasting of the Committee on peachment. The House agreed to the Judiciary meetings on the res- the resolution as amended by the olution and articles of impeach- committee amendments: ment pursuant to House Resolu- That, notwithstanding any rule, rul- tion 1107, adopted on July 18, ing, or custom to the contrary, the pro- 1974.(13)

11. Id. at pp. 6734, 6735. 13. See § 7.3, Supra, for the adoption of 12. 120 CONG. REC. 27266–69, 93d Cong. H. Res. 1107, amending the rules of 2d Sess. the House.

2076 IMPEACHMENT POWERS Ch. 14 § 9

Parliamentarian’s Note: The to the articles impeaching him, Speaker of the House has consist- and may prepare the replication ently ruled that coverage of House of the House to the respondent’s proceedings, either by radio, tele- answer. The replication has not in vision or still photography, was the last two impeachment cases prohibited under the rules and been submitted to the House for precedents of the House. See for approval.(16) example, the statements of Speak- In the Harold Louderback pro- er Sam Rayburn, of Texas, on ceedings, where the accused was Feb. 25, 1952, and on Jan. 24, impeached in one Congress and ( ) 1955. 14 tried in the next, the issue arose as to the authority of the managers beyond the expiration of the § 9. Presentation to Sen- Congress in which elected. In that ate; Managers case, the resolution authorizing the managers powers and funds Following the adoption of a res- was not offered and adopted until olution and articles of impeach- the succeeding Congress.(17) ment, the House proceeds to the adoption of privileged resolutions Forms (1) appointing managers to con- Form of resolution appointing duct the trial on the part of the managers to conduct an impeach- House and directing them to ment trial: (18) present the articles to the Senate; (2) notifying the Senate of the HOUSE RESOLUTION 439 adoption of articles and appoint- Resolved, That Hatton W. Sumners, ment of managers; and (3) grant- Randolph Perkins, and Sam Hobbs, ing the managers necessary pow- Members of this House, be, and they are hereby, appointed managers to con- (15) ers and funds. duct the impeachment against Halsted The managers have jurisdiction L. Ritter, United States district judge over the answer of the respondent for the southern district of Florida; that said managers are hereby in- 14. 98 CONG. REC. 1334, 1335, 82d Cong. structed to appear before the Senate of 2d Sess.; 101 CONG. REC. 628, 629, the United States and at the bar there- 84th Cong. 1st Sess. of in the name of the House of Rep- 15. See § 9.1, infra. In former Congresses, managers 16. See § 10, infra. were elected by ballot or appointed 17. See § 4.2, supra. by the Speaker pursuant to an au- 18. 80 CONG. REC. 3393, 74th Cong. 2d thorizing resolution (see § 9.3, infra). Sess., Mar. 6, 1936.

2077 Ch. 14 § 9 DESCHLER’S PRECEDENTS

resentatives and of all the people of impeachment of Halsted L. Ritter, the United States to impeach the said United States district judge for the Halsted L. Ritter of high crimes and southern district of Florida, be, and misdemeanors in office and to exhibit they are hereby, authorized to employ to the Senate of the United States the legal, clerical, and other necessary as- articles of impeachment against said sistants and to incur such expenses as judge which have been agreed upon by may be necessary in the preparation this House; and that the said man- and conduct of the case, to be paid out agers do demand that the Senate take of the contingent fund of the House on order for the appearance of said Hal- vouchers approved by the managers, sted L. Ritter to answer said impeach- and the managers have power to send ment, and demand his impeachment, for persons and papers, and also that conviction, and removal from office. the managers have authority to file with the Secretary of the Senate, on Form of resolution notifying the the part of the House of Representa- Senate of the adoption of articles tives, any subsequent pleadings which and the appointment of man- they shall deem necessary: Provided, agers: (19) That the total expenditures authorized by this resolution shall not exceed HOUSE RESOLUTION 440 $2,500. Resolved, That a message be sent to Cross References the Senate to inform them that this House has impeached for high crimes Arguments and conduct of trial by man- and misdemeanors Halsted L. Ritter, agers, see § 12, infra. United States District Judge for the Effect of adjournment on managers’ au- southern district of Florida, and that thority, see § 4, supra. the House adopted articles of impeach- Managers’ appearance and functions in ment against said Halsted L. Ritter, the Senate sitting as a Court of Im- judge as aforesaid, which the man- peachment, see §§ 11–13, infra. agers on the part of the House have Managers’ jurisdiction over replication been directed to carry to the Senate, and amendments to articles, see § 10, and that Hatton W. Sumners, Ran- infra. dolph Perkins, and Sam Hobbs, Mem- bers of this House, have been appointed such managers. Electing and Empowering Form of resolution empowering Managers; Notifying the Sen- (20) managers: ate HOUSE RESOLUTION 441 § 9.1 After the House has Resolved, That the managers on the adopted a resolution and ar- part of the House in the matter of the ticles of impeachment, the 19. Id. House considers resolutions 20. Id. at p. 3394. appointing managers to ap- 2078 IMPEACHMENT POWERS Ch. 14 § 9

pear before the Senate, noti- House of Representatives and of all the people of the United States to fying the Senate of the adop- impeach the said Harold Louderback tion of articles and election of misdemeanors in office and to exhibit to the Senate of the United of managers, and authorizing States the articles of impeachment the managers to prepare for against said judge which have been and conduct the trial in the agreed upon by the House; and that the said managers do demand the Senate, to employ assistants, Senate take order for the appearance and to incur expenses pay- of said Harold Louderback to answer said impeachment, and demand his able from the contingent impeachment, conviction, and re- fund of the House. moval from office. On Feb. 27, 1933, the House THE SPEAKER PRO TEMPORE: The question is on agreeing to the resolu- having adopted articles of im- tion. . . . peachment against Judge Harold The resolution was agreed to. Louderback on Feb. 24, Mr. Hat- A motion to reconsider the vote by ton W. Sumners, of Texas, offered which the resolution was agreed to was laid on the table. resolutions electing managers and MR. SUMNERS of Texas: Mr. Speaker, notifying the Senate of House ac- I desire to present a privileged resolution: tion. The Clerk read as follows: IMPEACHMENT OF JUDGE HAROLD OUSE ESOLUTION LOUDERBACK H R 403 Resolved, That a message be sent MR. SUMNERS of Texas: Mr. Speaker, to the Senate to inform them that I offer the following privileged report this House has impeached Harold from the Committee on the Judiciary, Louderback, United States district which I send to the desk and ask to judge for the Northern District of have read, and ask its immediate California, for misdemeanors in office, and that the House has adopted adoption. articles of impeachment against said The Clerk read as follows: Harold Louderback, judge as aforesaid, which the managers on the HOUSE RESOLUTION 402 part of the House have been directed to carry to the Senate, and that Hat- Resolved, That Hatton W. Sum- ton W. Sumners, Gordon Browning, ners, Gordon Browning, Malcolm C. Malcolm C. Tarver, Fiorello H. Tarver, Fiorello H. LaGuardia, and LaGuardia, and Charles I. Sparks, Charles I. Sparks, Members of this Members of this House, have been House, be, and they are hereby, ap- appointed such managers. pointed managers to conduct the impeachment against Harold The resolution was agreed to.(1) Louderback, United States district judge for the northern district of On Mar. 6, 1936, Mr. Sumners California; and said managers are offered three resolutions relating hereby instructed to appear before the Senate of the United States and 1. 76 CONG. REC. 5177, 5178, 72d Cong. at the bar thereof in the name of the 2d Sess.

2079 Ch. 14 § 9 DESCHLER’S PRECEDENTS to the impeachment proceedings his impeachment, conviction, and re- against Judge Halsted Ritter, the moval from office. House having adopted articles of HOUSE RESOLUTION 440 impeachment on Mar. 2. The reso- Resolved, That a message be sent lutions elected managers, in- to the Senate to inform them that formed the Senate that articles this House has impeached for high crimes and misdemeanors Halsted L. had been adopted and managers Ritter, United States district judge appointed, and gave the managers for the southern district of Florida, (2) and that the House adopted articles powers and funds: of impeachment against said Halsted L. Ritter, judge as aforesaid, which IMPEACHMENT OF HALSTED L. RITTER the managers on the part of the MR. SUMNERS of Texas: Mr. Speaker, House have been directed to carry to I send to the desk the three resolutions the Senate, and that Hatton W. Sumners, Randolph Perkins, and which are the usual resolutions offered Sam Hobbs, Members of this House, when an impeachment has been voted have been appointed such managers. by the House, and I ask unanimous consent that they may be read and HOUSE RESOLUTION 441 considered en bloc. . . . Resolved, That the managers on the part of the House in the matter HOUSE RESOLUTION 439 of the impeachment of Halsted L. Resolved, That Hatton W. Sum- Ritter, United States district judge ners, Randolph Perkins, and Sam for the southern district of Florida, Hobbs, Members of this House, be, be, and they are hereby, authorized and they are hereby, appointed man- to employ legal, clerical, and other agers to conduct the impeachment necessary assistants and to incur against Halsted L. Ritter, United such expenses as may be necessary States district judge for the southern in the preparation and conduct of district of Florida; that said man- the case, to be paid out of the contin- agers are hereby instructed to ap- gent fund of the House on vouchers pear before the Senate of the United approved by the managers, and the States and at the bar thereof in the managers have power to send for name of the House of Representa- persons and papers, and also that tives and of all the people of the the managers have authority to file United States to impeach the said with the Secretary of the Senate, on Halsted L. Ritter of high crimes and the part of the House of Representa- misdemeanors in office and to ex- tives, any subsequent pleadings hibit to the Senate of the United which they shall deem necessary: States the articles of impeachment Provided, That the total expendi- against said judge which have been tures authorized by this resolution agreed upon by this House; and that shall not exceed $2,500. the said managers do demand that MR ERTRAND NELL the Senate take order for the appear- . [B H.] S [of New ance of said Halsted L. Ritter to an- York]: Mr. Speaker, may I ask the gen- swer said impeachment, and demand tleman from Texas one further question? Is this exactly the procedure that 2. 80 CONG. REC. 3393, 3394, 74th has always been followed by the House Cong. 2d Sess. under similar conditions?

2080 IMPEACHMENT POWERS Ch. 14 § 9

MR. SUMNERS of Texas: Insofar as I tion—all from the Committee on know, it does not vary from the proce- the Judiciary—three from the ma- dure that has been followed since the jority party and two from the mi- beginning of the Government. nority party.(4) In the Halsted Rit- MR. SNELL: If that is true, while, of course, I think the House made a mis- ter impeachment in 1936, three take, I have no desire to delay carrying managers were elected from the out the will of the majority of the Committee on the Judiciary, two House in the matter. from the majority party and one ( ) MR. [THOMAS L.] BLANTON [of from the minority party. 5 In both Texas]: Mr. Speaker, will the gen- the Louderback and Ritter im- tleman yield? peachments, the Chairman of the MR. SUMNERS of Texas: I yield to the Committee on the Judiciary, Hat- gentleman from Texas. ton W. Sumners, of Texas, was MR. BLANTON: The only difference elected as a manager. Ordinarily, between this and other such cases is the managers are chosen from that our colleague from Texas has asked only for $2,500, which is very among those Members who have small in comparison with amounts voted for the resolution and arti- ( ) heretofore appropriated under such cles of impeachment. 6 conditions. Appointment of Managers by The resolutions were agreed to. Resolution Composition and Number of § 9.3 In the later practice, Managers managers on the part of the § 9.2 Managers elected by the House to conduct impeach- House, or appointed by the ment trials have been ap- Speaker, have always been pointed by resolution. Members of the House and On Mar. 6, 1936, the House have always constituted an adopted a resolution offered by odd number.(3) 4. Cannon’s Precedents § 514. In 1933, in the Harold 5. 80 CONG. REC. 3393, 74th Cong. 2d Louderback impeachment five Sess. managers were elected by resolu- 6. During the Belknap proceedings, it was proposed to elect a minority 3. For a summary of the composition of Member to fill a vacancy created managers from the William Blount when a manager was excused from impeachment in 1797 through the service. The House discussed the Robert Archbald impeachment in principle that managers should be in 1912, see 6 Cannon’s Precedents accord with the sentiments of the § 467. House. 3 Hinds’ Precedents § 2448.

2081 Ch. 14 § 9 DESCHLER’S PRECEDENTS

Hatton W. Sumners, of Texas, On two occasions, in the Chairman of the Committee on Charles Swayne and West Hum- the Judiciary, appointing Mem- phreys impeachments, managers bers of the House to serve as man- were appointed by the Speaker agers in the impeachment trial of pursuant to authorizing resolu- Judge Halsted Ritter: tion.(9) HOUSE RESOLUTION 439 In other impeachments, man- Resolved, That Hatton W. Sumners, agers were elected by ballot, a Randolph Perkins, and Sam Hobbs, procedure largely obsolete in the Members of this House, be, and they House, its last use having been for are hereby, appointed managers to conduct the impeachment against Halsted the election of managers in the L. Ritter, United States district judge Andrew Johnson impeachment. In for the southern district of Florida; that case, the motion adopted by that said managers are hereby in- the House providing for the constructed to appear before the Senate of the United States and at the bar there- sideration of the articles against of in the name of the House of Rep- President Johnson provided that resentatives and of all the people of in the event any articles were the United States to impeach the said Halsted L. Ritter of high crimes and adopted, the House was to proceed ( ) misdemeanors in office and to exhibit by ballot to elect managers. 10 to the Senate of the United States the articles of impeachment against said Managers, Excused From At- judge which have been agreed upon by this House; and that the said man- tending House Sessions agers do demand that the Senate take order for the appearance of said Hal- § 9.4 Managers on the part of sted L. Ritter to answer said impeach- the House to conduct im- ment, and demand his impeachment, peachment proceedings may (7) conviction, and removal from office. be excused from attending This method, of appointing the sessions of the House by managers by House resolution, unanimous consent. was also used in 1912 in the Rob- ert Archbald impeachment, in On Apr. 10, 1933, Mr. Hatton 1926 in the George English im- W. Sumners, of Texas, one of the peachment, and in 1933 in the managers on the part of the Harold Louderback impeach- House for impeachment pro- ment.(8) Secretary of War William Belknap 7. 80 CONG. REC. 3393, 74th Cong. 2d were also chosen by resolution. See 3 Sess. Hinds’ Precedents § 2448. 8. 6 Cannon’s Precedents §§ 500, 514, 9. 3 Hinds’ Precedents §§ 2388, 2475. 545. Managers for the trial of former 10. 3 Hinds’ Precedents § 2414.

2082 IMPEACHMENT POWERS Ch. 14 § 9 ceedings against Judge Harold the managers appointed by the House for the purpose of exhibiting Louderback, made a unanimous- articles of impeachment against Hal- consent request: (11) sted L. Ritter, United States district judge for the southern district of MR. SUMNERS of Texas: Mr. Speaker, Florida, agreeably to the notice com- I ask unanimous consent that the municated to the Senate, and that at managers on the part of the House in the hour of 1 o’clock p.m. on Tues- the Louderback impeachment matter day, March 10, 1936, the Senate will be excused from attending upon the receive the honorable managers on sessions of the House during this the part of the House of Representa- tives, in order that they may present week. and exhibit the said articles of im- THE SPEAKER: (12) Is there objection peachment against the said Halsted to the request of the gentleman from L. Ritter, United States district Texas? judge for the southern district of (14) There was no objection. Florida.

Appearance of Managers in Jurisdiction of Managers Over Senate Related Matters § 9.5 The managers on the part § 9.6 Where the House has em- of the House appear in the powered its managers in an Senate for the opening of an impeachment proceeding to impeachment trial on the take all steps necessary in date messaged by the Senate. the prosecution of the case, the managers may report to (13) On Mar. 9, 1936, the Senate the House a resolution pro- messaged to the House the date posing to amend the original the Senate would be ready to re- articles of impeachment. ceive the managers on the part of ( ) the House for the impeachment On Mar. 30, 1936, 15 Mr. Hat- trial of Judge Halsted Ritter: ton W. Sumners, of Texas, one of the managers on the part of the A message from the Senate, by Mr. Horne, its enrolling clerk, announced House to conduct the impeach- that the Senate had— ment trial against Judge Halsted Ordered, That the Secretary in- Ritter, reported House Resolution form the House of Representatives 471, which amended the articles that the Senate is ready to receive 14. For the proceedings in the Senate 11. 77 CONG. REC. 1449, 73d Cong. 1st upon the appearance of the man- Sess. agers for the presentation of articles, 12. Henry T. Rainey (Ill.). see § 11.4, infra (Ritter proceedings). 13. 80 CONG. REC. 3449, 74th Cong. 2d 15. 80 CONG. REC. 4597–99, 74th Cong. Sess. 2d Sess.

2083 Ch. 14 § 9 DESCHLER’S PRECEDENTS originally voted by the House on formation that has come to you as Mar. 2, 1936. Mr. Sumners dis- managers that never was presented to cussed the power and jurisdiction the Committee on the Judiciary? of the managers to consider and MR. SUMNERS of Texas: Perhaps it would not be true to answer that en- report amendments to the original tirely in the affirmative, but the articles: changes are made largely by reason of MR. [BERTRAND H.] SNELL [of New new evidence which has come to the York]: Mr. Speaker, will the gentleman attention of the committee, and some yield? of these changes, more or less changes MR. SUMNERS of Texas: Yes. in form, have resulted from further ex- MR. SNELL: I may not be entirely fa- amination of the question. This is miliar with all this procedure, but as I somewhat as lawyers do in their plead- understand, what the gentleman is ings. They often ask the privilege of doing here today, is to amend the origi- making an amendment. nal articles of impeachment passed by MR. SNELL: And the gentleman’s po- the House. sition is that as agents of the House it MR. SUMNERS of Texas: That is cor- is not necessary to have the approval rect. of his committee, which made the MR. SNELL: The original articles of original impeachment charges? impeachment came to the House as a MR. SUMNERS of Texas: I have no result of the evidence before the gen- doubt about that; I have no doubt tleman’s committee. Has the gentle- about the accuracy of that state- man’s committee had anything to do ment.(16) with the change or amendment of these charges? Parliamentarian’s Note: After MR. SUMNERS of Texas: No; just the articles of impeachment had been managers. adopted against President Andrew MR. SNELL: As a matter of proce- Johnson in 1868, the managers on dure, would not that be the proper thing to do? the part of the House reported to MR. SUMNERS of Texas: I do not the House, as privileged, an addi- think it is at all necessary, for this rea- tional article of impeachment. A son: The managers are now acting as point of order was made that the the agents of the House, and not as the managers could not so report, agents of the Committee on the Judici- ary. Mr. Manager Perkins and Mr. their functions being different Manager Hobbs have recently ex- from those of a standing com- tended the investigation made by the mittee. Speaker Schuyler Colfax, committee. MR. SNELL: Mr. Speaker, will the 16. See also 6 Cannon’s Precedents § 520 gentleman yield further? (amendment to articles of impeach- MR. SUMNERS of Texas: Yes. ment against Judge Harold Louder MR. SNELL: Do I understand that the back prepared and called up by amendments come because of new in- House managers).

2084 IMPEACHMENT POWERS Ch. 14 § 10 of Indiana, overruled the point of swer to the articles of impeach- order on two grounds: (1) the an- ment. In recent instances, the swer of the respondent is always, managers on the part of the when messaged to the House, re- House have submitted the replica- ferred to the managers, who then tion to the Senate on their own prepare a replication to the House initiative, without the House vot- and (2) any Member of the House, ing thereon.(19) whether a manager or not, may The House has always reserved propose additional articles of im- the right to amend the articles of peachment.(17) impeachment presented to the Senate and has frequently so § 9.7 The answer of the re- amended the articles pursuant to spondent to articles of im- the recommendations of the man- peachment, and supple- agers on the part of the House.(20) mental rules to govern the trial, are messaged to the Cross References House by the Senate and re- Managers and their powers generally, ferred to the managers on see § 9, supra. the part of the House. Motions to strike articles of impeachment in the Senate, see § 12, infra. On Apr. 6, 1936, the answer of Respondent’s answer filed in the Senate, respondent Judge Halsted Ritter see § 11, infra. to the articles of impeachment against him, and supplemental Senate rules, were messaged to Reservation of Right to Amend the House by the Senate and re- Articles ferred to the managers on the part of the House.(18) § 10.1 In the later practice, the reservation by the House of the right to amend articles of § 10. Replication; Amend- impeachment presented to ing Adopted Articles the Senate has been delivered orally in the Senate by The replication is the answer of the House managers, and has the House to the respondents’ an- 19. See § 10.3, infra. 17. 3 Hinds’ Precedents § 2418. 20. See § 10.1, infra, for the reservation For preparation of the replication of the right to amend articles and in the later practice see § 10.3, infra. §§ 10.4–10.6, infra, for the procedure 18. See 110.2, infra. in so amending them.

2085 Ch. 14 § 10 DESCHLER’S PRECEDENTS

not been included in the res- have just been read to the Senate, do olution of impeachment. now demand that the Senate take order for the appearance of the said On Mar. 10, 1936, the managers Halsted L. Ritter to answer said im- on the part of the House to con- peachment, and do now demand his impeachment, conviction, and removal duct the trial of impeachment from office.(1) against Judge Halsted Ritter appeared in the Senate. After the ar- A similar procedure had been followed in the Robert Archbald ticles of impeachment adopted by and Harold Louderback impeach- the House had been read to the ment proceedings, with the man- Senate, Manager Hatton W. Sum- agers orally reserving in the Sen- ners, of Texas, orally reserved the ate the right of the House to right of the House to further amend articles, without such res- amend or supplement them: ervation being included in the res- MR. MANAGER SUMNERS: Mr. Presi- olution and articles of impeach- dent, the House of Representatives, by ment.(2) protestation, saving themselves the lib- Prior to the Archbald impeach- erty of exhibiting at any time hereafter ment, language reserving the any further articles of accusation or right of the House to amend arti- impeachment against the said Halsted cles was voted on by the House L. Ritter, district judge of the United States for the southern district of Flor- and included at the end of the ar- ida, and also of replying to his answers ticles presented to the Senate. For which he shall make unto the articles example, the House in the An- preferred against him, and of offering drew Johnson impeachment proof to the same and every part there- agreed to a reservation-of-amend- of, and to all and every other article of ment clause by unanimous con- accusation or impeachment which shall sent following the adoption of arti- be exhibited by them as the case shall cles against the President, and it require, do demand that the said Hal- was included in the formal arti- sted L. Ritter may be put to answer cles presented to the Senate.(3) the misdemeanors in office which have been charged against him in the articles which have been exhibited to the Answer of Respondent and Senate, and that such proceedings, ex- Replication of House aminations, trials, and judgments may be thereupon had and given as may be § 10.2 The answer of the re- agreeable to law and justice. spondent in impeachment Mr. President, the managers on the part of the House of Representatives, 1. 80 CONG. REC. 3488, 74th Cong. 2d in pursuance of the action of the House Sess. of Representatives by the adoption of 2. 6 Cannon’s Precedents §§ 501, 515. the articles of impeachment which 3. 3 Hinds’ Precedents § 2416.

2086 IMPEACHMENT POWERS Ch. 14 § 10

proceedings is messaged by were referred to the House managers the Senate to the House to- and ordered printed. gether with any supple- § 10.3 In the Halsted Ritter mental Senate rules there- and Harold Louderback im- fore, and are referred to the peachments, the managers managers on the part of the on the part of the House pre- House. pared the replication of the On Apr. 6, 1936,(4) the answer House to the respondent’s of respondent Judge Halsted Rit- answer; in contrast to earlier ter to the articles of impeachment practice, the replication was against him and the supplemental submitted to the Senate rules adopted by the Senate for without being voted on by the trial were messaged to the the House. House by the Senate and referred to the managers on the part of the On Apr. 6, 1936, Mr. Hatton W. House: Sumners, of Texas, one of the managers on the part of the IMPEACHMENT OF HALSTED L. RITTER House in the impeachment trial of The Speaker laid before the House Judge Ritter, filed in the Senate the following order from the Senate of the replication of the House to the the United States: answer filed by the respondent, In the Senate of the United States sit- the answer having been referred ting for the trial of the impeachment of Halsted L. Ritter, United States dis- in the House to the managers. trict judge for the southern district of The replication had been prepared Florida and submitted to the Senate by APRIL 3, 1936. the managers alone, and it was Ordered, That the Secretary of the not reported to or considered by Senate communicate to the House of ( ) Representatives an attested copy of the House for adoption. 5 the answer of Halsted L. Ritter Similarly, the replication in the United States district judge for the southern district of Florida, to the impeachment of Judge articles of impeachment, as amend- Louderback was filed in the Sen- ed, and also a copy of the order en- ate by the managers without tered on the 12th ultimo prescribing supplemental rules for the said im- being reported to or considered by peachment trial. the House.(6) In the impeachment The answer and the supplemental trial of Judge Robert Archbald in rules to govern the impeachment trial 5. 80 CONG. REC. 4971, 4972, 74th 4. 80 CONG. REC. 5020, 74th Cong. 2d Cong. 2d Sess. Sess. 6. 6 Cannon’s Precedents § 522.

2087 Ch. 14 § 10 DESCHLER’S PRECEDENTS

1912, however, the replication was new articles deal with income taxes, reported by the managers to the and one with practicing law by Judge Ritter, after he went on the bench. In House where it was considered the original resolution, the charge is ( ) and adopted. 7 made that Judge Ritter received certain fees or gratuities and had written Procedure in Amending Arti- a letter, and so forth. No change is pro- cles of Impeachment posed in articles 1 and 2. In article 3, as stated, Judge Ritter is charged with § 10.4 Articles of impeachment practicing law after he went on the which have been exhibited to bench. That same thing, in effect, was charged, as members of the committee the Senate may be subse- will remember, in the original resolu- quently modified or amended tion, but the form of the charge, in the by the adoption of a resolu- judgment of the managers, could be tion in the House. improved. These charges go further and charge that in the matter con- On Mar. 30, 1936,(8) a resolu- nected with G.R. Francis, the judge tion (H. Res. 471) was offered in acted as counsel in two transactions the House by Mr. Hatton W. Sum- after he went on the bench, and received $7,500 in compensation. Article ners, of Texas, a manager on the 7 is amended to include a reference to part of the House for the impeach- these new charges. There is a change ment trial against Judge Halsted in the tense used with reference to the Ritter. The resolution amended effect of the conduct alleged. It is the articles voted by the House charged, in the resolution pending at the desk, that the reasonable and prob- against Judge Ritter on Mar. 2, able consequence of the alleged con- 1936, by adding three new arti- duct is to injure the confidence of the cles. The House agreed to the res- people in the courts—I am not at- olution after a discussion by Mr. tempting to quote the exact language— which is a matter of form, I think, Sumners of the nature of the more than a matter of substance.(9) changes and of the power of the managers to report amendments § 10.5 A resolution reported by to the articles. Mr. Sumners sum- the managers proposing marized the changes as follows: amendments to the articles MR. SUMNERS of Texas: Mr. Speaker, of impeachment previously the resolution which has just been adopted by the House is priv- read proposes three new articles. The ileged. change is not as important as that statement would indicate. Two of the 9. For discussion of the power of the managers on the part of the House 7. 6 Cannon’s Precedents § 506. to prepare amendments to the arti- 8. 80 CONG. REC. 4597–99, 74th Cong. cles and to report them to the House, 2d Sess. see § 9, supra.

2088 IMPEACHMENT POWERS Ch. 14 § 11

On Mar. 30, 1936,(10) Mr. Hat- adopted a privileged resolution in- ton W. Sumners, of Texas, one of forming the Senate of such action: the managers on the part of the MR. SUMNERS of Texas: Mr. Speaker, House for the Halsted Ritter im- I offer the following privileged resolu- peachment trial, offered as privi- tion. leged a resolution amending the The Clerk read as follows: articles of impeachment that had HOUSE RESOLUTION 472 been adopted by the House.(11) Resolved, That a message be sent to the Senate by the Clerk of the § 10.6 Where the House agrees House informing the Senate that the to an amendment to articles House of Representatives has adopted an amendment to the articles of of impeachment it has adopt- impeachment heretofore exhibited ed, the House directs the against Halsted L. Ritter, United States district judge for the southern Clerk by resolution to so in- district of Florida, and that the same form the Senate. will be presented to the Senate by ( ) the managers on the part of the On Mar. 30, 1936, 12 the House House. adopted amendments to the arti- And also, that the managers have cles previously adopted in the im- authority to file with the Secretary of the Senate, on the part of the peachment of Judge Halsted Rit- House any subsequent pleadings ter. Mr. Hatton W. Sumners, of they shall deem necessary. Texas, offered and the House The resolution was agreed to.

C. TRIAL IN THE SENATE § 11. Organization and Congress unless amended; the Rules rules are set forth in the Senate Manual as ‘‘Rules of Procedure The standing Senate rules gov- and Practice in the Senate When erning procedure in impeachment Sitting on Impeachment trials originally date from 1804 Trials.’’ (13) The last amendment to and continue from Congress to the impeachment trial rules was

10. 80 CONG. REC. 4597, 74th Cong. 2d 13. See Senate Manual §§ 100–126 Sess. (1973). The rules are set out in full 11. For a discussion of the power of the managers to prepare and report to below. the House amendments to the arti- For adoption of rules to govern im- cles of impeachment, see § 9, supra. peachment trials in 1804, see 3 12. 80 CONG. REC. 4601, 74th Cong. 2d Sess. Hinds’ Precedents § 2099.

2089 Ch. 14 § 11 DESCHLER’S PRECEDENTS adopted in 1935, to allow the ap- proceeds as on a plea of not guilty pointment of a committee to re- if the respondent does not appear ceive evidence (Rule XI). Amend- either in person or by attorney.(17) ments to the rules were also re- Under Rule III, the Senate pro- ported in the 93d Congress, pend- ceeds to consider the articles of ing impeachment proceedings in impeachment on the day following the House in relation to President the presentation of articles. Orga- Richard Nixon, but the Senate did nizational questions arising before ( ) not formally consider them. 14 the actual commencement of an The Senate has also, when com- impeachment trial have been held mencing a particular impeach- debatable and not subject to Rule ment trial, adopted supplemental XXIV of the rules for impeach- rules governing pleadings, re- ment trials, which prohibits de- quests, stipulations, and mo- bate except when the doors of the (15) tions. Senate are closed for delibera- When the Senate is notified by tion.(18) the House of the adoption of a resolution and articles of impeach- Senate Rules for Impeachment ment, the Senate messages to the Trials House, pursuant to Rule I of the Senate Manual §§ 100–126 (1973). For impeachment trial rules, its readi- amendments to the rules for impeach- ness to receive the managers for ment trials, reported in the 93d Con- the presentation of articles; Rule gress but not considered by the Senate, see § 11.2, infra. II provides the procedure for the appearance of the managers and I. Whensoever the Senate shall re- exhibition of the articles to the ceive notice from the House of Rep- (16) resentatives that managers are ap- Senate. pointed on their part to conduct an im- Rules VIII through X of the peachment against any person and are rules for impeachment trials pro- directed to carry articles of impeach- vide that a summons be issued to ment to the Senate, the Secretary of the person impeached, that the the Senate shall immediately inform summons be returned, and that the House of Representatives that the the respondent appear and an- 17. See §§ 11.5, 11.9, infra, for the sum- swer the articles against him. mons and its return. As indicated in Under Rules VIII and X, the trial § 11.9, the respondent has not always appeared in person before the 14. See § 11.2, infra. Senate sitting as a Court of Im- 15. See §§ 11.7, 11.8, infra. peachment. 16. See § 111.4, infra. 18. See § 11.11, infra.

2090 IMPEACHMENT POWERS Ch. 14 § 11

Senate is ready to receive the man- appear, whose duty it shall be to take agers for the purpose of exhibiting the same. such articles of impeachment, IV. When the President of the agreeably to such notice. United States or the Vice President of II. When the managers of an im- the United States, upon whom the peachment shall be introduced at the powers and duties of the office of Presi- bar of the Senate and shall signify that dent shall have devolved, shall be im- they are ready to exhibit articles of impeached, the Chief Justice of the Su- peachment against any person, the preme Court of the United States shall Presiding Officer of the Senate shall preside; and in a case requiring the direct the Sergeant at Arms to make said Chief Justice to preside notice proclamation, who shall, after making shall be given to him by the Presiding proclamation, repeat the following Officer of the Senate of the time and words, viz: ‘‘All persons are com- place fixed for the consideration of the manded to keep silence, on pain of im- articles of impeachment, as aforesaid, prisonment, while the House of Rep- with a request to attend; and the said resentatives is exhibiting to the Senate Chief Justice shall preside over the of the United States articles of im- Senate during the consideration of said peachment against ——— ———’’: articles and upon the trial of the per- after which the articles shall be exhib- son impeached therein. ited, and then the Presiding Officer of V. The Presiding Officer shall have the Senate shall inform the managers power to make and issue, by himself or that the Senate will take proper order by the Secretary of the Senate, all or- on the subject of the impeachment, of ders, mandates, writs, and precepts which due notice shall be given to the authorized by these rules or by the House of Representatives. Senate, and to make and enforce such III. Upon such articles being pre- other regulations and orders in the sented to the Senate, the Senate shall, premises as the Senate may authorize at 1 o’clock afternoon of the day (Sun- or provide. day excepted) following such presen- VI. The Senate shall have power to tation, or sooner if ordered by the Sen- compel the attendance of witnesses, to ate, proceed to the consideration of enforce obedience to its orders, man- such articles and shall continue in ses- dates, writs, precepts, and judgments, sion from day to day (Sundays ex- to preserve order, and to punish in a cepted) after the trial shall commence summary way contempts of, and dis- (unless otherwise ordered by the Sen- obedience to, its authority, orders, ate) until final judgment shall be ren- mandates, writs, precepts, or judg- dered, and so much longer as may, in ments, and to make all lawful orders, its judgment, be needful. Before pro- rules, and regulations which it may ceeding to the consideration of the arti- deem essential or conducive to the cles of impeachment, the Presiding Of- ends of justice. And the Sergeant at ficer shall administer the oath herein- Arms, under the direction of the Sen- after provided to the members of the ate, may employ such aid and assist- Senate then present and to the other ance as may be necessary to enforce, members of the Senate as they shall execute, and carry into effect the law-

2091 Ch. 14 § 11 DESCHLER’S PRECEDENTS

ful orders, mandates, writs, and pre- conveniently be done, by leaving such cepts of the Senate. copy at the last known place of abode VII. The Presiding Officer of the of such person, or at his usual place of Senate shall direct all necessary prep- business in some conspicuous place arations in the Senate Chamber, and therein; or if such service shall be, in the Presiding Officer on the trial shall the judgment of the Senate, impracti- direct all the forms of proceedings cable, notice to the accused to appear while the Senate is sitting for the pur- shall be given in such other manner, pose of trying an impeachment, and all by publication or otherwise, as shall be forms during the trial not otherwise deemed just; and if the writ aforesaid specially provided for. And the Pre- shall fail of service in the manner siding Officer on the trial may rule all aforesaid, the proceedings shall not questions of evidence and incidental thereby abate, but further service may questions, which ruling shall stand as be made in such manner as the Senate the judgment of the Senate, unless shall direct. If the accused, after serv- some member of the Senate shall ask ice, shall fail to appear, either in per- that a formal vote be taken thereon, in son or by attorney, on the day so fixed which case it shall be submitted to the therefore as aforesaid, or, appearing, Senate for decision; or he may at his shall fail to file his answer to such ar- option, in the first instance, submit ticles of impeachment, the trial shall any such question to a vote of the proceed, nevertheless, as upon a plea members of the Senate. Upon all such of not guilty. If a plea of guilty shall be questions the vote shall be without a entered, judgment may be entered division, unless the yeas and nays be thereon without further proceedings. demanded by one-fifth of the members IX. At 12:30 o’clock afternoon of the present, when the same shall be taken. day appointed for the return of the VIII. Upon the presentation of arti- summons against the person im- cles of impeachment and the organiza- peached, the legislative and executive tion of the Senate as hereinbefore pro- business of the Senate shall be sus- vided, a writ of summons shall issue to pended, and the Secretary of the Sen- the accused, reciting said articles, and ate shall administer an oath to the re- notifying him to appear before the Sen- turning officer in the form following, ate upon a day and at a place to be viz: ‘‘I, ——— ———, do solemnly fixed by the Senate and named in such swear that the return made by me writ, and file his answer to said arti- upon the process issued on the ——— cles of impeachment, and to stand to day of ———, by the Senate of the and abide the orders and judgments of United States, against ——— ———, the Senate thereon; which writ shall be is truly made, and that I have per- served by such officer or person as formed such service as therein de- shall be named in the precept thereof, scribed: So help me God.’’ Which oath such number of days prior to the day shall be entered at large on the fixed for such appearance as shall be records. named in such precept, either by the X. The person impeached shall then delivery of an attested copy thereof to be called to appear and answer the ar- the person accused, or if that can not ticles of impeachment against him. If

2092 IMPEACHMENT POWERS Ch. 14 § 11 he appear, or any person for him, the witness and hearing his testimony in appearance shall be recorded, stating open Senate, or by order of the Senate particularly if by himself, or by agent having the entire trial in open Senate. or attorney, naming the person appear- XII. At 12:30 o’clock afternoon of the ing and the capacity in which he ap- day appointed for the trial of an im- pears. If he do not appear, either per- peachment, the legislative and execu- sonally or by agent or attorney, the tive business of the Senate shall be same shall be recorded. suspended, and the Secretary shall XI. That in the trial of any impeach- give notice to the House of Representa- ment the Presiding Officer of the Sen- tives that the Senate is ready to pro- ate, upon the order of the Senate, shall ceed upon the impeachment of ——— appoint a committee of twelve Senators ———, in the Senate Chamber, which to receive evidence and take testimony chamber is prepared with accommoda- at such times and places as the com- tions for the reception of the House of mittee may determine, and for such Representatives. purpose the committee so appointed XIII. The hour of the day at which and the chairman thereof, to be elected the Senate shall sit upon the trial of by the committee, shall (unless other- an impeachment shall be (unless otherwise ordered by the Senate) exercise wise ordered) 12 o’clock m.; and when all the powers and functions conferred the hour for such thing shall arrive, upon the Senate and the Presiding Of- the Presiding Officer of the Senate ficer of the Senate, respectively, under shall so announce; and thereupon the the rules of procedure and practice in Presiding Officer upon such trial shall the Senate when sitting on impeach- cause proclamation to be made, and ment trials. the business of the trial shall proceed. Unless otherwise ordered by the The adjournment of the Senate sitting Senate, the rules of procedure and in said trial shall not operate as an ad- practice in the Senate when sitting on journment of the Senate; but on such impeachment trials shall govern the adjournment the Senate shall resume procedure and practice of the com- the consideration of its legislative and mittee so appointed. The committee so executive business. appointed shall report to the Senate in writing a certified copy of the tran- XIV. The Secretary of the Senate script of the proceedings and testimony shall record the proceedings in cases of had and given before such committee, impeachment as in the case of legisla- and such report shall be received by tive proceedings, and the same shall be the Senate and the evidence so re- reported in the same manner as the ceived and the testimony so taken legislative proceedings of the Senate. shall be considered to all intents and XV. Counsel for the parties shall be purposes, subject to the right of the admitted to appear and be heard upon Senate to determine competency, rel- an impeachment. evancy, and materiality, as having XVI. All motions made by the parties been received and taken before the or their counsel shall be addressed to Senate, but nothing herein shall pre- the Presiding Officer, and if he, or any vent the Senate from sending for any Senator, shall require it, they shall be

2093 Ch. 14 § 11 DESCHLER’S PRECEDENTS

committed to writing, and read at the ticles by the votes of two-thirds of the Secretary’s table. members present, the Senate shall pro- XVII. Witnesses shall be examined ceed to pronounce judgment, and a cer- by one person on behalf of the party tified copy of such judgment shall be producing them, and then cross-exam- deposited in the office of the Secretary ined by one person on the other side. of State. XVIII. If a Senator is called as a wit- XXIV. All the orders and decisions shall be made and had by yeas and ness, he shall be sworn, and give his nays, which shall be entered on the testimony standing in his place. record, and without debate, subject, XIX. If a Senator wishes a question however, to the operation of Rule VII, to be put to a witness, or to offer a mo- except when the doors shall be closed tion or order (except a motion to ad- for deliberation, and in that case no journ), it shall be reduced to writing, member shall speak more than once on and put by the Presiding Officer. one question, and for not more than XX. At all times while the Senate is ten minutes on an interlocutory ques- sitting upon the trial of an impeach- tion, and for not more than fifteen ment the doors of the Senate shall be minutes on the final question, unless kept open, unless the Senate shall di- by consent of the Senate, to be had rect the doors to be closed while delib- without debate; but a motion to ad- erating upon its decisions. journ may be decided without the yeas XXI. All preliminary or interlocutory and nays, unless they be demanded by questions, and all motions, shall be ar- one-fifth of the members present. The gued for not exceeding one hour on fifteen minutes herein allowed shall be for the whole deliberation on the final each side, unless the Senate shall, by question, and not on the final question order, extend the time. on each article of impeachment. XXII. The case, on each side, shall be XXV. Witnesses shall be sworn in opened by one person. The final argu- the following form, viz: ‘‘You, ——— ment on the merits may be made by ———, do swear (or affirm, as the case two persons on each side (unless other- may be) that the evidence you shall wise ordered by the Senate upon appli- give in the case now pending between cation for that purpose), and the argu- the United States and ——— ———, ment shall be opened and closed on the shall be the truth, the whole truth, part of the House of Representatives. and nothing but the truth: So help you XXIII. On the final question whether God.’’ Which oath shall be adminis- the impeachment is sustained, the tered by the Secretary, or any other yeas and nays shall be taken on each duly authorized person. article of impeachment separately; and Form of a subpena be issued on the ap- if the impeachment shall not, upon any plication of the managers of the im- of the articles presented, be sustained peachment, or of the party im- by the votes of two-thirds of the mem- peached, or of his counsel bers present, a judgment of acquittal shall be entered; but if the person ac- To ——— ———, greeting: cused in such articles of impeachment You and each of you are hereby com- shall be convicted upon any of said ar- manded to appear before the Senate of

2094 IMPEACHMENT POWERS Ch. 14 § 11 the United States, on the ——— day of did, on the ——— day of ———, ex- ———, at the Senate Chamber in the hibit to the Senate articles of impeach- city of Washington, then and there to ment against you, the said ——— testify your knowledge in the cause ———, in the words following: which is before the Senate in which the House of Representatives have im- [Here insert the articles] peached ——— ———. Fail not. And demand that you, the said ——— Witness ——— ———, and Presiding ———, should be put to answer the ac- Officer of the Senate, at the city of cusations as set forth in said articles, Washington, this ——— day of ———, and that such proceedings, examina- in the year of our Lord ———, and of tions, trials, and judgments might be the Independence of the United States thereupon had as are agreeable to law the ———. ——— ———, and justice. Presiding Officer of the Senate. You, the said ——— ———, are Form of direction for the service of said therefore hereby summoned to be and subpena appear before the Senate of the United The Senate of the United States to States of America, at their Chamber in ——— ———, greeting: the city of Washington, on the ——— You are hereby commanded to serve day of ———, at 12:30 o’clock after- and return the within subpena accord- noon, then and there to answer to the ing to law. said articles of impeachment, and then Dated at Washington, this ——— and there to abide by, obey, and per- day of ———, in the year of our Lord form such orders, directions, and judg- ———, and of the Independence of the ments as the Senate of the United United States the ———. States shall make in the premises ac- ——— ———, Secretary of the Senate. cording to the Constitution and laws of the United States. Form of oath to be administered to the Hereof you are not to fail. members of the Senate sitting in the Witness ——— ———, and Presiding trial of impeachments Officer of the said Senate, at the city of ‘‘I solemnly swear (or affirm, as the Washington, this ——— day of ———, case may be) that in all things apper- in the year of our Lord ———, and of taining to the trial of the impeachment the Independence of the United States of ——— ———, now pending, I will the ———. do impartial justice according to the ——— ———, Constitution and laws: So help me Presiding Officer of the Senate. God.’’ Form of precept to be indorsed on said Form of summons to be issued and writ of summons served upon the person impeached THE UNITED STATES OF AMERICA, ss: THE UNITED STATES OF AMERICA, ss: The Senate of the United States to The Senate of the United States to ——— ———, greeting: ——— ———, greeting: Whereas the House of Representa- You are hereby commanded to de- tives of the United States of America liver to and leave with ——— ———, if

2095 Ch. 14 § 11 DESCHLER’S PRECEDENTS

conveniently to be found, or if not, to Procedure 495–504, S. Doc. No. 93–21, leave at his usual place of abode, or at 93d Cong. 1st Sess. (1973); Riddick, his usual place of business in some Procedure and Guidelines for Impeach- conspicuous place, a true and attested ment Trials in the United States Sen- copy of the within writ of summons, to- ate, S. Doc. No. 93–102, 93d Cong. 2d gether with a like copy of this precept; Sess. (1974). and in whichsoever way you perform Standing rules of the Senate generally, the service, let it be done at least see Riddick, Senate Procedure 774– ——— days before the appearance day 779, S. Doc. No. 93–21, 93d Cong. 1st mentioned in the said writ of summons. Sess. (1973). Fail not, and make return of this writ of summons and precept, with your proceedings thereon indorsed, on Senate Rules for Impeachment or before the appearance day mentioned in the said writ of summons. Trials Witness ——— ———, and Presiding Officer of the Senate, at the city of § 11.1 After impeachment pro- Washington, this ——— day of ———, ceedings had been instituted in the year of our Lord ———, and of in the House against Presi- the Independence of the United States the ———. dent Richard Nixon, the Sen- ——— ———, ate adopted a resolution for Presiding Officer of the Senate. the study and review of Sen- All process shall be served by the ate rules and precedents ap- Sergeant at Arms of the Senate, unless otherwise ordered by the court. plicable to impeachment XXVI. If the Senate shall at any trials. time fail to sit for the consideration of On July 29, 1974,(19) during the articles of impeachment on the day or hour fixed therefor, the Senate may, by pendency of an investigation in an order to be adopted without debate, the House of alleged impeachable fix a day and hour for resuming such offenses committed by President consideration. Nixon, the Senate adopted a reso- Cross References lution related to its rules on impeachment: Functions of the Senate in impeachment generally, see § 1, supra. MR. [MICHAEL J.] MANSFIELD [of House-Senate relations generally, see Montana]: Mr. President, I have at the Ch. 32, infra. desk a resolution, submitted on behalf Senate notified of adoption of impeach- of the distinguished Republican leader, ment resolution and election of man- the Senator from Pennsylvania (Mr. agers by the House, see § 9, supra. Hugh Scott), the assistant majority leader, the distinguished Senator from Collateral References Functions and practice of the Senate in 19. 120 CONG. REC. 25468, 93d Cong. 2d impeachments, see Riddick, Senate Sess.

2096 IMPEACHMENT POWERS Ch. 14 § 11

West Virginia (Mr. Robert C. Byrd), § 11.2 The Senate having di- the assistant Republican leader, the distinguished Senator from Michigan rected its Committee on (Mr. Griffin), and myself, and I ask Rules and Administration to that it be called up and given imme- review Senate rules and diate consideration. precedents applicable to im- THE PRESIDING OFFICER: (20) The clerk will state the resolution. peachment trials (pending The legislative clerk read as follows: impeachment proceedings in

S. RES. 370 the House against President Resolved, That the Committee on Richard Nixon), the com- Rules and Administration is directed mittee reported back various to review any and all existing rules amendments to those Senate and precedents that apply to impeachment trials with a view to rec- rules, which amendments ommending any revisions, if nec- were not considered in the essary, which may be required if the Senate is called upon to conduct Senate. such a trial. On July 29, 1974, during the Resolved further, That the Com- mittee on Rules and Administration pendency of an investigation in is instructed to report back no later the House of alleged impeachable than 1 September 1974, or on such earlier date as the Majority and Mi- offenses committed by President nority Leaders may designate, and Nixon, the Senate adopted Senate Resolved further, That such review Resolution 370, directing its Com- by that Committee shall be held entirely in executive sessions. mittee on Rules and Administra- tion to review any and all existing THE PRESIDING OFFICER: Without objection, the Senate will proceed to its rules and precedents that apply to immediate consideration. impeachment trials, with a view The question is on agreeing to the to recommending any necessary resolution. revisions. The resolution (S. 370) was agreed to. The Committee on Rules and Parliamentarian’s Note: The Administration reported (S. Rept. Senate, unlike the House, is a No. 93–1125) on Aug. 22, 1974, a continuing legislative body. There- resolution (S. Res. 390) amending fore, the standing rules of the the Rules of Procedure and Prac- Senate, including the rules for im- tice in the Senate when Sitting on peachment trials, continue from Impeachment Trials. The resolu- Congress to Congress unless tion was not considered by the (21) amended. Senate. 20. Jesse Helms (N.C.). The amendments provided: (1) 21. See Rule XXXII, Senate Manual that the Chief Justice, when pre- § 32.2 (1973). siding over impeachment trials of 2097 Ch. 14 § 11 DESCHLER’S PRECEDENTS the President or Vice President, and if he, or any Senator, shall require be administered the oath by the it, they shall be committed to writing, Presiding Officer; (2) that the and read at the Secretary’s table. . . . term ‘‘person accused’’ in reference XIX. If a Senator wishes a question to be put to a witness, or to a manager, to the respondent, be changed in or to counsel of the person impeached, all cases to ‘‘person impeached’’; or to offer a motion or order (except a (3) that the Presiding Officer rule motion to adjourn), it shall be reduced on all questions of evidence ‘‘in- to writing, and put by the Presiding cluding, but not limited to, ques- Officer. The parties or their counsel tions of relevancy, materiality, may interpose objections to witnesses answering questions propounded at the and redundancy,’’ such decision to request of any Senator and the merits be voted upon on demand ‘‘with- of any such objection may be argued by out debate’’ and such vote to be the parties or their counsel. Ruling on ‘‘taken in accordance with the any such objection shall be made as Standing Rules of the Senate’’; (4) provided in Rule VII. It shall not be in that a committee of 12 Senators order for any Senator to engage in col- may receive evidence ‘‘if the Sen- loquy. XX. At all times while the Senate is ate so orders’’ the appointment of sitting upon the trial of an impeach- such a committee by the Presiding ment the doors of the Senate shall be Officer; (5) that the Senate may kept open, unless the Senate shall di- order another hour than 12:30 m. rect the doors to be closed while delib- o’clock for commencing impeach- erating upon its decisions. A motion to ment proceedings; and other clari- close the doors may be acted upon fying changes. Other amendments without objection, or, if objection is heard, the motions shall be voted on proposed certain rules governing without debate by the yeas and nays, the trial and procedures for voting which shall be entered on the record. ( ) on the articles: 1 XXI. All preliminary or interlocutory XVI. All motions, objections, re- questions, and all motions, shall be ar- quests, or applications whether relat- gued for not exceeding one hour (un- ing to the procedure of the Senate or less the Senate otherwise orders) on relating immediately to the trial (in- each side. . . . cluding questions with respect to ad- XXIII. An article of impeachment mission of evidence or other questions shall not be divisible for the purpose of arising during the trial) made by the voting thereon at any time during the parties or their counsel shall be ad- trial. Once voting has commenced on dressed to the Presiding Officer only, an article of impeachment, voting shall be continued until voting has been 1. S. Res. 390, 120 CONG. REC. 29811– completed on all articles of impeach- 13, 93d Cong. 2d Sess., Aug. 22, ment unless the Senate adjourns for a 1974. period not to exceed one day or ad-

2098 IMPEACHMENT POWERS Ch. 14 § 11 journs sine die. On the final question decided without the yeas and nays, un- whether the impeachment is sustained, less they be demanded by one-fifth of the yeas and nays shall be taken on the members present. The fifteen min- each article of impeachment sepa- utes here in allowed shall be for the rately; and if the impeachment shall whole deliberation on the final ques- not, upon any of the articles presented, tion, and not on the final question on be sustained by the votes of two-thirds each article of impeachment. of the members present, a judgment of acquittal shall be entered; but if the § 11.3 The Senate amended its person impeached shall be convicted rules for impeachment trials upon any such article by the votes of two-thirds of the members present, the in the 74th Congress to allow Senate may proceed to the consider- a committee of 12 Senators to ation of such other matters as may be receive evidence and take determined to be appropriate prior to testimony. pronouncing judgment. Upon pronouncing judgment, a certified copy of On May 28, 1935, the Senate such judgment shall be deposited in considered and agreed to a resolu- the office of the Secretary of State. A tion (S. Res. 18) amending the motion to reconsider the vote by which rules of procedure and practice in any article of impeachment is sus- the Senate when sitting on im- tained or rejected shall not be in order. peachment trials. The resolution FORM OF PUTTING THE QUESTION ON added a new rule relating to the EACH ARTICLE OF IMPEACHMENT reception of evidence by a com- The Presiding Officer shall first state mittee appointed by the Presiding the question; thereafter each Senator, Officer: as his name is called, shall rise in his place and answer: guilty or not guilty. Resolved, That in the trial of any im- XXIV. All the orders and decisions peachment the Presiding Officer of the may be acted upon without objection, Senate, upon the order of the Senate, or, if objection is heard, the orders and shall appoint a committee of twelve decisions shall be voted on without de- Senators to receive evidence and take bate by yeas and nays, which shall be testimony at such times and places as entered on the record, subject, how- the committee may determine, and for ever, to the operation of Rule VII, ex- such purpose the committee so ap- cept when the doors shall be closed for pointed and the chairman thereof, to deliberation, and in that case no mem- be elected by the committee, shall (un- ber shall speak more than once on one less otherwise ordered by the Senate) question, and for not more than ten exercise all the powers and functions minutes on an interlocutory question, conferred upon the Senate and the Pre- and for not more than fifteen minutes siding Officer of the Senate, respec- on the final question, unless by con- tively, under the rules of procedure sent of the Senate, to be had without and practice in the Senate when sit- debate; but a motion to adjourn may be ting on impeachment trials.

2099 Ch. 14 § 11 DESCHLER’S PRECEDENTS

Unless otherwise ordered by the U.S. District Judge Halsted Ritter Senate, the rules of procedure and at a specified time: practice in the Senate when sitting on impeachment trials shall govern the A message from the Senate, by Mr. procedure and practice of the com- Horne, its enrolling clerk, announced that the Senate had— mittee so appointed. The committee so appointed shall report to the Senate in Ordered, That the Secretary in- writing a certified copy of the tran- form the House of Representatives script of the proceedings and testimony that the Senate is ready to receive the managers appointed by the had and given before such committee, House for the purpose of exhibiting and such report shall be received by articles of impeachment against Hal- the Senate and the evidence so rested L. Ritter, United States district ceived and the testimony so taken judge for the southern district of shall be considered to all intents and Florida, agreeably to the notice com- purposes, subject to the right of the municated to the Senate and that at the hour of 1 o’clock p.m. on Tues- Senate to determine competency, rel- day, March 10, 1936, the Senate will evancy, and materiality, as having receive the honorable managers on been received and taken before the the part of the House of Representa- Senate, but nothing herein shall pre- tives, in order that they may present vent the Senate from sending for any and exhibit the said articles of im- witness and hearing his testimony in peachment against the said Halsted L. Ritter, United States district open Senate, or by order of the Senate judge for the southern district of having the entire trial in open Sen- Florida. ate.(2) On Mar. 10, the managers on Appearance of Managers the part of the House appeared in the Senate pursuant to the order § 11.4 The managers on the and the following proceedings took part of the House appear in place: the Senate to exhibit the ar- THE VICE PRESIDENT: (4) Will the ticles of impeachment at the Senator from North Carolina suspend in order to permit the managers on the time messaged for that pur- part of the House of Representatives in pose by the Senate. the impeachment proceedings to appear and present the articles of im- (3) On Mar. 9, 1936, the Senate peachment? messaged to the House its readi- MR. [JOSIAH W.] BAILEY [of North ness to receive the managers on Carolina]: Mr. President, may I take the part of the House to present my seat with the right to resume at the end of the impeachment pro- articles of impeachment against ceedings? THE VICE PRESIDENT: The Senator 2. 79 CONG. REC. 8309, 8310, 74th will have the floor when the Senate re- Cong. 1st Sess. sumes legislative session. 3. 80 CONG. REC. 3449, 74th Cong. 2d Sess. 4. John N. Garner (Tex.).

2100 IMPEACHMENT POWERS Ch. 14 § 11

IMPEACHMENT OF HALSTED L. RITTER THE VICE PRESIDENT: The clerk will call the roll. At 1 o’clock p.m. the managers on the part of the House of Representa- The legislative clerk (Emery L. tives of the impeachment of Halsted L. Frazier) galled the roll, and the fol- Ritter appeared below the bar of the lowing Senators answered to their Senate, and the secretary to the major- names. . . . ity, Leslie L. Biffle, announced their THE VICE PRESIDENT: Eighty-six presence, as follows: Senators have answered to their I have the honor to announce the names. A quorum is present. The man- managers on the part of the House of agers on the part of the House will Representatives to conduct the pro- proceed. ceedings in the impeachment of Hal- MR. MANAGER [HATTON W.] SUM- sted L. Ritter, United States district NERS [of Texas]: Mr. President, the judge in and for the southern district managers on the part of the House of of Florida. Representatives are here present and THE VICE PRESIDENT: The managers ready to present the articles of im- on the part of the House will be re- peachment which have been preferred ceived and assigned their seats. by the House of Representatives The managers, accompanied by the against Halsted L. Ritter, a district Deputy Sergeant at Arms of the House judge of the United States for the of Representatives, William K. Weber, southern district of Florida. were thereupon escorted by the sec- The House adopted the following res- retary to the majority to the seats as- olution, which, with the permission of signed to them in the area in front and the Senate, I will read: to the left of the Chair. HOUSE RESOLUTION 439 THE VICE PRESIDENT: The Chair understands the managers on the part of IN THE HOUSE the House of Representatives are ready OF REPRESENTATIVES, March 6, 1936. to proceed with the impeachment. The Sergeant at Arms will make proclama- Resolved, That Hatton W. Sum- tion. ners, Randolph Perkins, and Sam Hobbs, Members of this House, be, The Sergeant at Arms, Chesley W. and they are hereby, appointed man- Jurney, made proclamation, as follows: agers to conduct the impeachment Hear ye! Hear ye! Hear ye! All per- against Halsted L. Ritter, United sons are commanded to keep silent, on States district judge for the southern pain of imprisonment, while the House district of Florida; that said managers are hereby instructed to ap- of Representatives is exhibiting to the pear before the Senate of the United Senate of the United States articles of States and at the bar thereof in the impeachment against Halsted L. Rit- name of the House of Representa- ter, United States district judge in and tives and of all the people of the for the southern district of Florida. United States to impeach the said Halsted L. Ritter of high crimes and MR. [JOSEPH T.] ROBINSON [of Ar- misdemeanors in office and to ex- kansas]: I suggest the absence of a hibit to the Senate of the United quorum. States the articles of impeachment

2101 Ch. 14 § 11 DESCHLER’S PRECEDENTS

against said judge which have been States for the southern district of Flor- agreed upon by this House; and that ida, and also of replying to his answers the said managers do demand that which he shall make unto the articles the Senate take order for the appearance of said Halsted L. Ritter to an- preferred against him, and of offering swer said impeachment, and demand proof to the same and every part there- his impeachment, conviction, and re- of, and to all and every other article of moval from office. accusation or impeachment which shall JOSEPH W. BYRNS, be exhibited by them as the case shall Speaker of the require, do demand that the said Hal- House of Representatives. sted L. Ritter may be put to answer Attest: the misdemeanors in office which have SOUTH TRIMBLE, Clerk. been charged against him in the arti- [Seal of the House of Representa- cles which have been exhibited to the tives.] Senate, and that such proceedings, ex- aminations, trials, and judgments may Mr. President, with the permission be thereupon had and given as may be of the Vice President and the Senate, I agreeable to law and justice. will ask Mr. Manager Hobbs to read Mr. President, the managers on the the articles of impeachment. part of the House of Representatives, THE VICE PRESIDENT: Mr. Manager in pursuance of the action of the House Hobbs will proceed, and the Chair will of Representatives by the adoption of take the liberty of suggesting that he the articles of impeachment which stand at the desk in front of the Chair, have just been read to the Senate, do as from that position the Senate will now demand that the Senate take probably be able to hear him better. order for the appearance of the said Mr. Manager Hobbs, from the place Halsted L. Ritter to answer said im- suggested by the Vice President, said: peachment, and do now demand his Mr. President and gentlemen of the impeachment, conviction, and removal Senate: from office. THE VICE PRESIDENT: The Senate ARTICLES OF IMPEACHMENT AGAINST will take proper order and notify the HALSTED L. RITTER House of Representatives.(5) House Resolution 422, Seventy-fourth Congress, second session, Congress Organization of Senate as of the United States of America Court of Impeachment [Mr. Hobbs read the resolution and articles of impeachment]. § 11.5 Following the appearance of the managers and MR. MANAGER SUMNERS: Mr. Presi- dent, the House of Representatives, by their presentation of the arti- protestation, saving themselves the lib- cles of impeachment to the erty of exhibiting at any time hereafter Senate, the oath is adminis- any further articles of accusation or impeachment against the said Halsted 5. 80 CONG. REC. 3485–89, 74th Cong. L. Ritter, district judge of the United 2d Sess.

2102 IMPEACHMENT POWERS Ch. 14 § 11

tered, the Senate organizes to all the Senators, but I should make for the trial of impeachment the observation that if any Senator desires to be excused from this service, and notifies the House there- now is the appropriate time to make of, the articles are printed known such desire. If there be no Sen- for the use of the Senate, a ator who desires to be excused, I move summons is issued for the that the Presiding Officer administer appearance of the respond- the oath to the Senators, so that they ent, and provision is made may form a Court of Impeachment. THE VICE PRESIDENT: (7) Is there ob- for payment of trial ex- jection? The Chair hears none, and it penses. is so ordered. Senators will now be On Mar. 10, 1936,(6) imme- sworn. diately following the presentation Thereupon the Vice President ad- of articles of impeachment against ministered the oath to the Senators Judge Halsted Ritter by the man- present, as follows: agers on the part of the House to You do each solemnly swear that in all things appertaining to the trial the Senate, the following proof the impeachment of Halsted L. ceedings took place in the Senate: Ritter, United States district judge for the southern district of Florida, MR. [HENRY F.] ASHURST [of Ari- now pending, you will do impartial zona]: Mr. President, I move that the justice according to the Constitution senior Senator from Idaho [Mr. Borah], and laws. So help you God. who is the senior Senator in point of service in the Senate, be now des- THE VICE PRESIDENT: The Sergeant ignated by the Senate to administer at Arms will now make proclamation the oath to the Presiding Officer of the that the Senate is sitting as a Court of Court of Impeachment. Impeachment. The motion was agreed to; and Mr. THE SERGEANT AT ARMS: Hear ye! Borah advanced to the Vice President’s Hear ye! Hear ye! All persons are com- desk and administered the oath to Vice manded to keep silence on pain of im- President Garner as Presiding Officer, prisonment while the Senate of the as follows: United States is sitting for the trial of You do solemnly swear that in all the articles of impeachment exhibited things appertaining to the trial of by the House of Representatives the impeachment of Halsted L. Rit- ter, United States district judge for against Halsted L. Ritter, United the southern district of Florida, now States district judge for the southern pending, you will do impartial justice district of Florida. according to the Constitution and MR. ASHURST: Mr. President, I send laws. So help you God. to the desk an order, which I ask to MR. ASHURST: Mr. President, at this have read and agreed to. time the oath should be administered THE VICE PRESIDENT: The clerk will read. 6. 80 CONG. REC. 3488, 3489, 74th Cong. 2d Sess. 7. John N. Garner (Tex.).

2103 Ch. 14 § 11 DESCHLER’S PRECEDENTS

The Chief Clerk (John C. Crockett) THE VICE PRESIDENT: The Senator read as follows: will make it. Ordered, That the Secretary notify MR. MCNARY: What record is being the House of Representatives that made of the Senators who have taken the Senate is now organized for the their oaths as jurors? trial of articles of impeachment THE VICE PRESIDENT: No record has against Halsted L. Ritter, United been made so far as the Chair knows; States district judge for the southern district of Florida. but the Chair assumes that any Sen- ator who was not in the Senate Cham- THE VICE PRESIDENT: Without objec- ber at the time the oath was adminis- tion, the order will be entered. tered to Senators en bloc will make the MR. ASHURST: Mr. President, I send fact known to the Chair, so that he another proposed order to the desk, may take the oath at some future time. and ask for its adoption. MR. ASHURST: The Chair is correct THE VICE PRESIDENT: The clerk will read the proposed order. in his statement in that any Senator The Chief Clerk read as follows: who was not I resent when the oath was taken en bloc, and who desires to Ordered, That the articles of im- take the oath, may do so at any time peachment presented against Hal- before the admission of evidence be- sted L. Ritter, United States district judge for the southern district of gins. Florida, be printed for the use of the MR. MCNARY subsequently said: Mr. Senate. President, I am advised that the able Senator from New Jersey [Mr. THE VICE PRESIDENT: Without objection, the order will be entered. Barbour] will be absent from the city MR. ASHURST: Mr. President, I send on next Thursday, and would like to be a further order to the desk, and ask for sworn at this time. its adoption. THE VICE PRESIDENT: The Senator THE VICE PRESIDENT: The clerk will from Oregon asks unanimous consent read the proposed order. that the Senator from New Jersey may The Chief Clerk read as follows: take the oath at this time as a juror in Ordered, That a summons to the the impeachment trial of Halsted L. accused be issued as required by the Ritter. rules of procedure and practice in MR. [ELLISON D.] SMITH [of South the Senate, when sitting for the trial Carolina]: Mr. President, in order to of the impeachment against Halsted save time, I ask the same privilege. I L. Ritter, United States district judge for the southern district of was absent when Senators were sworn Florida, returnable on Thursday, the as jurors en bloc. 12th day of March 1936, at 1 o’clock THE VICE PRESIDENT: If there are in the afternoon. any other Senators in the Senate THE VICE PRESIDENT: Is there objec- Chamber at the moment who did not tion? Without objection, the order will take their oaths as jurors when Sen- be entered. ators were sworn en bloc, it would be MR. [CHARLES L.] MCNARY [of Or- advisable that they make it known; egon]: Mr. President, permit me to and, if agreeable to the Senate, they make an inquiry. may all be sworn as jurors at one time.

2104 IMPEACHMENT POWERS Ch. 14 § 11

MR. ASHURST: The Senator from Resolved, That not to exceed Texas [Mr. Sheppard], who was not $5,000 is authorized to be expended present when other Senators were from the appropriation for miscella- sworn, is now present, and wishes to neous items, contingent expenses of the Senate, to defray the expenses of be sworn. the Senate in the impeachment trial THE VICE PRESIDENT: Is there objec- of Halsted L. Ritter. tion to such action being taken at this time? The Chair hears none. Such Sen- § 11.6 Senators who have not ators as are in the Chamber at this taken the oath following the time who were not present when Sen- commencement of the trial ators were sworn en bloc as jurors will raise their right hands and be sworn. take the oath not in legisla- Mr. Barbour, Mr. Overton, Mr. tive session but while the Sheppard, Mr. Smith, and Mr. Town- Senate is sitting as a Court send rose, and the oath was adminis- of Impeachment, and the tered to them by the Vice President. Journal Clerk maintains MR. ASHURST: Mr. President, I move records of those Senators that the Senate, sitting as a Court of Impeachment, adjourn until Thursday who have taken the oath. next at 1 p.m. On Mar. 12, 1936, the Senate The motion was agreed to; and (at 1 was conducting legislative busi- o’clock and 50 minutes p.m.) the Sen- ness before resolving itself into a ate, sitting as a Court of Impeachment, Court of Impeachment for further adjourned until Thursday, March 12, proceedings in the trial of Judge 1936, at 1 p.m. Halsted L. Ritter. When a Senator IMPEACHMENT OF HALSTED L. RITTER— who had not yet taken the oath EXPENSES OF TRIAL for the impeachment trial indicated he wished to be sworn at MR. [JAMES F.] BYRNES [of South that time, Vice President John N. Carolina]: From the Committee to Audit and Control the Contingent Ex- Garner, of Texas, ruled as follows: penses of the Senate, I report back fa- THE VICE PRESIDENT: After a thor- vorably, without amendment, Senate ough survey of the situation, the best Resolution 244, providing for defraying judgment of the Chair is that Sen- ators who have not heretofore taken the expenses of the impeachment pro- the oath as jurors of the court should ceedings relative to Halsted L. Ritter. I take it after the Senate resolves ask unanimous consent for the present itself into a court; all Senators who consideration of the resolution. have not as yet taken the oath as ju- THE VICE PRESIDENT: The resolution rors will take the oath at that (8) will be read. time. The Chief Clerk read Senate Resolu- Later on the same day, it was tion 244, submitted by Mr. Ashurst on announced that the Journal Clerk the 9th instant, and it was considered by unanimous consent and agreed to, 8. 80 CONG. REC. 3641, 74th Cong. 2d as follows: Sess.

2105 Ch. 14 § 11 DESCHLER’S PRECEDENTS had the duty to record the names 1. In all matters relating to the procedure of the Senate, whether as of those Senators already having to form or otherwise, the managers taken the oath, there being no on the part of the House or the coun- other record thereof.(9) sel representing the respondent may submit a request or application orally to the Presiding Officer, or, if re- Supplemental Rules for Trial quired by him or requested by any Senator, shall submit the same in § 11.7 For the Halsted Ritter writing. 2. In all matters relating imme- impeachment trial, the Sen- diately to the trial, such as the ad- ate sitting as a Court of Im- mission, rejection, or striking out of evidence, or other questions usually peachment adopted supple- arising in the trial of causes in mental rules similar to those courts of justice, if the managers on in the Harold Louderback the part of the House or counsel representing the respondent desire to trial. make any application, request, or objection, the same shall be addressed On Mar. 12, 1936, the Court of directly to the Presiding Officer and Impeachment in the impeachment not otherwise. trial of Judge Ritter adopted sup- 3. It shall not be in order for any Senator, except as provided in the plemental rules: rules of procedure and practice in the Senate when sitting on impeach- MR. [HENRY F.] ASHURST [of Ari- ment trials, to engage in colloquy or zona]: . . . Mr. President, in order that to address questions either to the Senators, sitting as judges and jurors, managers on the part of the House may have an opportunity to study this or to counsel for the respondent, nor matter, I ask for the adoption, after it shall it be in order for Senators to address each other; but they shall shall have been read, of the order address their remarks directly to the which I send to the desk. This is in Presiding Officer and not otherwise. haec verba the same order that was 4. The parties may, by stipulation adopted in the Louderback case. in writing filed with the Secretary of THE VICE PRESIDENT: (10) The clerk the Senate and by him laid before the Senate or presented at the trial, will read. agree upon any facts involved in the The Chief Clerk read as follows: trial; and such stipulation shall be Ordered, That in addition to the received by the Senate for all intents rules of procedure and practice in and purposes as though the facts the Senate when sitting on impeach- therein agreed upon had been estab- ment trials, heretofore adopted, and lished by legal evidence adduced at supplementary to such rules, the fol- the trial. lowing rules shall be applicable in 5. The parties or their counsel may the trial of the impeachment of Hal- interpose objection to witnesses an- sted L. Ritter, United States judge swering questions propounded at the for the southern district of Florida: request of any Senator, and the merits of any such objection may be argued by the parties or their counsel; 9. Id. at p. 3646. and the Presiding Officer may rule 10. John N. Garner (Tex.). on any such objection, which ruling

2106 IMPEACHMENT POWERS Ch. 14 § 11

shall stand as the judgment of the Ordered, That the Secretary of the Senate, unless some Member of the Senate communicate to the House of Senate shall ask that a formal vote Representatives an attested copy of be taken thereon, in which case it the answer of Halsted L. Ritter, shall be submitted to the Senate for United States district judge for the decision; or he may, at his option, in southern district of Florida, to the the first instance submit any such articles of impeachment, as amend- question to a vote of the Members of ed, and also a copy of the order en- the Senate. Upon all such questions tered on the 12th ultimo prescribing the vote shall be without debate and supplemental rules for the said im- without a division, unless the ayes peachment trial. and nays be demanded by one-fifth of the Members present, when the The answer and the supplemental same shall be taken.(11) rules to govern the impeachment trial were referred to the House managers § 11.8 Supplemental rules and ordered printed. adopted by the Senate for an impeachment trial are mes- Appearance and Answer of Re- saged to the House and respondent ferred to the managers on the part of the House. § 11.9 When and if the respondent appears before the On Apr. 6, 1936,(12) there was laid before the House a message Court of Impeachment, the from the Senate informing the return of the summons by House of the adoption of supple- the Sergeant at Arms is pre- mental rules to govern the im- sented and the respondent peachment trial against Judge files an entry of appearance. Halsted Ritter. They were re- (13) ferred to the managers: On Mar. 12, 1936, the following proceedings took place be- The Speaker laid before the House the following order from the Senate of fore the Court of Impeachment in the United States: the Halsted Ritter case:

In the Senate of the United States THE VICE PRESIDENT: (14) ... The sitting for the trial of the impeach- Secretary will read the return of the ment of Halsted L. Ritter, United Sergeant at Arms. States district judge for the southern district of Florida The Chief Clerk read as follows: APRIL 3, 1936. SENATE OF THE UNITED STATES, OFFICE OF THE 11. 80 CONG. REC. 3648, 3649, 74th SERGEANT AT ARMS. Cong. 2d Sess. For the adoption of The foregoing writ of summons ad- identical supplemental rules in the dressed to Halsted L. Ritter and the Louderback case, see 6 Cannon’s Precedents § 519. 13. 80 CONG. REC. 3646, 3647, 74th 12. 80 CONG. REC. 5020, 74th Cong. 2d Cong. 2d Sess. Sess. 14. John N. Garner (Tex.).

2107 Ch. 14 § 11 DESCHLER’S PRECEDENTS

foregoing precept, addressed to me, THE VICE PRESIDENT: Counsel for were duly served upon the said Hal- the respondent are advised that the sted L. Ritter by me by delivering Senate is now sitting for the trial of ar- true and attested copies of the same to the said Halsted L. Ritter at the ticles of impeachment exhibited by the Carlton Hotel, Washington, D.C., on House of Representatives against Hal- Thursday, the 12th day of March sted L. Ritter, United States district 1936, at 11 o’clock in the forenoon of judge for the southern district of Flor- that day. ida. CHESLEY W. JURNEY, Sergeant at Arms, MR. WALSH (of counsel): May it United States Senate. please you, Mr. President, and honorable Members of the Senate, I beg to THE VICE PRESIDENT: The Secretary inform you that, in response to your of the Senate will administer the oath summons, the respondent, Halsted L. to the Sergeant at Arms. Ritter, is now present with his counsel The Secretary of the Senate, Edwin and asks leave to file a forma1 entry of A. Halsey, administered the oath to appearance. the Sergeant at Arms, as follows: THE VICE PRESIDENT: Is there objec- You, Chesley W. Jurney, do sol- tion? The Chair hears none, and the emnly swear that the return made appearance will be filed with the Sec- by you upon the process issued on retary, and will be read. the 10th day of March 1936 by the Senate of the United States against The Chief Clerk read as follows: Halsted L. Ritter, United States district judge for the southern district IN THE SENATE OF THE UNITED of Florida, is truly made, and that STATES OF AMERICA SITTING AS A you have performed such service as COURT OF IMPEACHMENT therein described. So help you God. MARCH 12, 1936.

THE VICE PRESIDENT: The Sergeant The United States of America v. at Arms will make proclamation. Halsted L. Ritter The Sergeant at Arms made procla- The respondent, Halsted L. Ritter, mation as follows: having this day been served with a Halsted L. Ritter! Halsted L. Ritter! summons requiring him to appear before the Senate of the United Halsted L. Ritter! United States dis- States of America in the city of trict judge for the southern district of Washington, D.C., on March 12, Florida, appear and answer to the arti- 1936, at 1 o’clock afternoon to an- cles of impeachment exhibited by the swer certain articles of impeachment House of Representatives against you. presented against him by the House of Representatives of the United The respondent, Halsted L. Ritter, States of America, now appears in and his counsel, Frank P. Walsh, Esq., his proper person and also by his of New York City, N.Y., and Carl T. counsel, who are instructed by this Hoffman, Esq., of Miami, Fla., entered respondent to inform the Senate that respondent stands ready to file his the Chamber and were conducted to pleadings to such articles of im- the seats assigned them in the space in peachment within such reasonable front of the Secretary’s desk, on the period of time as may be fixed. right of the Chair. Dated March 12, 1936.

2108 IMPEACHMENT POWERS Ch. 14 § 11

HALSTED L. RITTER, Debate on Organizational Respondent. CARL T. HOFFMAN, Questions FRANK P. WALSH, Counsel for Respondent. § 11.11 Where the Senate is sit- Parliamentarian’s Note: The re- ting as a Court of Impeach- spondent has not appeared in all ment, organizational ques- cases before the Senate. In this tions arising prior to trial century, Judges Ritter, Harold are debatable. Louderback, and Robert Archbald On May 5, 1926, Vice President appeared in person, but Judge Charles G. Dawes, of Illinois, held Charles Swayne appeared by at- that debate was in order on a mo- torney. President Andrew Johnson tion to fix the opening date of an did not appear in 1868. Pursuant impeachment trial (of Judge to Rule X of the Rules of Proce- George English), notwithstanding dure and Practice in the Senate Rule XXIII (now Rule XIV), pre- when Sitting on Impeachment cluding debate during impeach- Trials, the respondent may appear ment trials: by attorney, and if neither the re- The Chair will state that in im- spondent or his counsel appear, peachment trials had heretofore such the trial proceeds as upon a plea questions have been considered as de- of not guilty, under Rule VIII. batable, and that Rule XXIII, which refers to the decision of questions with- § 11.10 The answer of the re- out debate, has been held to apply spondent in an impeachment after the trial has actually commenced. proceeding is messaged to The Senate has always debated the question of the time at which the trial the House and referred to should start, and the Chair is inclined the managers on the part of to hold that debate is in order on a the House. question of this sort.(16) On Apr. 6, 1936,(15) the answer Likewise, the rule on debate of Judge Halsted Ritter to the ar- was held not applicable to an or- ticles of impeachment against him ganizational question preceding was messaged by order from the the trial of President Andrew Senate to the House. Johnson.(17) The answer was referred to the On Mar. 3, 1933, however, fol- managers on the part of the lowing the presentation to the House and ordered printed. 16. 67 CONG. REC. 8725, 69th Cong. 1st 15. 80 CONG. REC. 5020, 74th Cong. 2d Sess. Sess. 17. 3 Hinds’ Precedents § 2100.

2109 Ch. 14 § 11 DESCHLER’S PRECEDENTS

Senate of articles of impeachment substitution in the case of either the against Judge Harold Louderback Vice President or the President pro by the managers on the part of tempore shall not extend beyond an adjournment or recess, except by unan- the House, the Vice President, imous consent.(19) Charles Curtis, of Kansas, held that a motion to defer further con- Floor Privileges sideration of the impeachment charges was not debatable.(18) § 11.13 The Senate sitting as a Court of Impeachment may Appointment of Presiding Offi- allow floor privileges during cer the trial to assistants and clerks, to the managers, and § 11.12 The Senate adopted in to the respondent’s counsel. the Harold Louderback impeachment trial an order au- On Apr. 8, 1936, requests were thorizing the Vice President made in the Senate, sitting as a or President pro tempore to Court of Impeachment in the trial name a Presiding Officer to of Judge Halsted Ritter, to allow perform the duties of the certain assistants and others the Chair. privilege of the Senate floor. By unanimous consent, the Senate On May 15, 1933, in the Senate extended floor privileges to the sitting as a Court of Impeachment clerk of the House Committee on for the trial of Judge Louderback, the Judiciary, a special agent of the following order was adopted: the FBI, and an assistant to the Ordered, That during the trial of the respondent’s counsel.(20) impeachment of Harold Louderback, In the Louderback trial, re- United States district judge for the northern district of California, the Vice quests were made by the House President, in the absence of the Presi- managers that the clerk of the dent pro tempore, shall have the right House Committee on the Judici- to name in open Senate, sitting for ary and a member of the bar be said trial, a Senator to perform the du- permitted to sit with the man- ties of the Chair. agers during the trial. The Senate The President pro tempore shall likewise have the right to name in voted to allow the requests, after open Senate, sitting for said trial, or, if the Presiding Officer of the Senate absent, in writing, a Senator to perform the duties of the Chair; but such 19. 77 CONG. REC. 3394, 73d Cong. 1st Sess. 18. 76 CONG. REC. 5473, 72d Cong. 2d 20. 80 CONG. REC. 5132, 74th Cong. 2d Sess. Sess.

2110 IMPEACHMENT POWERS Ch. 14 § 12 indicated he wished to submit the The Presiding Officer rules on question to the Senate.(1) questions of evidence and on inci- Parliamentarian’s Note: In an dental questions subject to a de- impeachment trial, the managers mand for a formal vote, or may on the part of the House and submit questions in the first in- counsel for the respondent have stance to the Senate under Rule the privilege of the Senate floor VII of the rules for impeachment under the Senate rules for im- ( ) peachment trials. trials. 4 The trial may be temporarily suspended for the transaction of § 12. Conduct of Trial legislative business or for the reception of messages.(5) The conduct of an impeachment Collateral Reference trial is governed by the standing rules of the Senate on impeach- Riddick, Procedure and Guidelines for ment trials and by any supple- Impeachment Trials in the United mental rules or orders adopted by States Senate, S. Doc. No. 93–102 93d the Senate for a particular trial.(2) Cong. 2d Sess. (1974). An impeachment trial is a full adversary proceeding, and counsel are admitted to appear, to be Opening Arguments heard, to argue on preliminary and interlocutory questions, to de- § 12.1 The Senate sitting as a liver opening and final arguments, Court of Impeachment cus- to submit motions, and to present tomarily adopts an order evidence and examine and cross- providing for opening argu- examine witnesses.(3) ments to be made by one per- 1. 6 Cannon’s Precedents § 522. son on behalf of the man- 2. For the text of the rules for impeachment trials, see § 11, supra. For sup- 4. See § 12.7, infra, for rulings on ad- plemental rules adopted by the Sen- missibility of evidence and §§ 12.3, ate, see §§ 11.7, 11.8, supra. For ex- 12.4, infra, for rulings on motions to amples of orders adopted during or strike articles. for the trial, see §§ 11.12, supra (ap- 5. See §§ 12.5, 12.6, infra. Rule XIII of pointment of Presiding Officer), 12.1, the rules for impeachment trials pro- infra (opening arguments), 12.9, vides that the adjournment of the infra (return of evidence), and 12.12, Senate sitting as a Court of Im- infra (final arguments). peachment shall not operate to ad- 3. See Rules XV–XXII of the rules for journ the Senate, but that the Sen- impeachment trials set out in § 11, ate may then resume consideration supra. of legislative and executive business.

2111 Ch. 14 § 12 DESCHLER’S PRECEDENTS

agers and one person on be- desk in front of the Vice President): half of the respondent. Mr. President, the suggestion which the managers desire to make at this On Apr. 6, 1936, the Senate sit- time has reference to specifications 1 ting as a Court of Impeachment and 2 of article VII. These two speci- for the trial of Judge Halsted L. fications have reference to what I as- Ritter adopted the following order sume counsel for respondent and the on opening arguments: managers as well, recognize are rather involved matters, which would possibly Ordered, That the opening statement require as much time to develop and to on the part of the managers shall be made by one person, to be immediately argue as would be required on the re- followed by one person who shall make mainder of the case. the opening statement on behalf of the The managers respectfully move that respondent.(6) those two counts be stricken. If that Identical orders had been adopt- motion shall be sustained, the managers will stand upon the other speci- (7) ed in past impeachment trials. fications in article VII to establish article VII. The suggestion on the part of Motions to Strike the managers is that those two specifications in article VII be stricken from § 12.2 During an impeachment the article. trial, the managers on the THE PRESIDING OFFICER: (9) What is part of the House made and the response of counsel for the re- the Senate granted a motion spondent? to strike certain specifica- MR. [CHARLES L.] MCNARY [of Or- tions from an article of im- egon]: Mr. President, there was so much rumbling and noise in the Cham- peachment. ber that I did not hear the position On Apr. 3, 1936,(8) the following taken by the managers on the part of proceedings occurred on the floor the House. of the Senate during the impeach- THE PRESIDING OFFICER: The man- ment trial of Judge Halsted L. agers on the part of the House have Ritter: suggested that specifications 1 and 2 of article VII be stricken on their motion. MR. MANAGER [HATTON W.] SUM- ... NERS [of Texas] (speaking from the MR. HOFFMAN [of counsel]: Mr. President, the respondent is ready to 6. 80 CONG. REC. 4971, 74th Cong. 2d file his answer to article I, to articles Sess. II and III as amended, and to articles 7. See, for example, 6 Cannon’s Prece- IV, V, and VI. In view of the announce- dents § 524 (Harold Louderback); 6 ment just made asking that specifica- Cannon’s Precedents § 509 (Robert tions 1 and 2 of article VII be stricken, Archbald). it will be necessary for us to revise our 8. 80 CONG. REC. 4899, 74th Cong. 2d Sess. 9. Nathan L. Bachman (Tenn.).

2112 IMPEACHMENT POWERS Ch. 14 § 12

answer to article VII and to eliminate The motion as duly filed by counsel paragraphs 1 and 2 thereof. That can for the respondent is as follows: be very speedily done with 15 or 20 minutes if it can be arranged for the IN THE SENATE OF THE UNITED STATES OF AMERICA SITTING AS A Senate to indulge us for that length of COURT OF IMPEACHMENT. The time. United States of America v Halsted THE PRESIDING OFFICER: Is there ob- L. Ritter, respondent jection to the motion submitted on the part of the managers? MOTION TO STRIKE ARTICLE I, OR, IN THE ALTERNATIVE, TO REQUIRE MR. HOFFMAN: We have no objection. ELECTION AS TO ARTICLES I AND II; THE PRESIDING OFFICER: The motion AND MOTION TO STRIKE ARTICLE is made. Is there objection? The Chair VII hears none, and the motion to strike is The respondent, Halsted L. Ritter, granted. moves the honorable Senate, sitting as a Court of Impeachment, for an § 12.3 Where the respondent in order striking and dismissing article an impeachment trial moves I of the articles of impeachment, or, in the alternative, to require the to strike certain articles or, honorable managers on the part of in the alternative, to require the House of Representatives to elect election as to which articles as to whether they will proceed upon article I or upon article II, and for the managers on the part of grounds of such motion respondent the House will stand upon, says: 1. Article II reiterates and em- the Presiding Officer may braces all the charges and allega- rule on the motion in the tions of article I, and the respondent first instance subject to the is thus and thereby twice charged in separate articles with the same and approval of the Senate. identical offense, and twice required to defend against the charge pre- On Mar. 31, 1936, the respond- sented in article I. ent in an impeachment trial, 2. The presentation of the same Judge Halsted Ritter, offered a and identical charge in the two arti- motion to strike certain articles, cles in question tends to prejudice the respondent in his defense, and his purpose being to compel the tends to oppress the respondent in House to proceed on the basis of that the articles are so framed as to Article I or Article II, but not collect, or accumulate upon the second article, the adverse votes, if any, both. On Apr. 3, the Chair (Pre- upon the first article. siding Officer Nathan L. 3. The Constitution of the United Bachman, of Tennessee) ruled States contemplates but one vote of the Senate upon the charge con- that the motion was not well tained in each article of impeach- taken and overruled it. The pro- ment, whereas articles I and II are ceedings were as follows: (10) constructed and arranged in such

10. 80 CONG. REC. 4656, 4657, 74th 80 CONG. REC. 4898, 74th Cong. 2d Cong. 2d Sess., Mar. 31, 1936, and Sess., Apr. 3, 1936.

2113 Ch. 14 § 12 DESCHLER’S PRECEDENTS

form and manner as to require and native, to require the honorable man- exact of the Senate a second vote agers on the part of the House to make upon the subject matter of article I. an election as to whether they will MOTION TO STRIKE ARTICLE VII stand upon article I or upon article II, the Chair is ready to rule. And the respondent further moves the honorable Senate, sitting as a The Chair is clearly of the opinion Court of Impeachment, for an order that the motion to strike article I or to striking and dismissing article VII, require an election is not well taken and for grounds of such motion, re- and should be overruled. spondent says: His reason for such opinion is that 1. Article VII includes and embraces all the charges set forth in ar- articles I and II present entirely dif- ticles I, II, III, IV, V, and VI. ferent bases for impeachment. 2. Article VII constitutes an accu- Article I alleges the illegal and cor- mulation and massing of all charges rupt receipt by the respondent of in preceding articles upon which the $4,500 from his former law partner, Court is to pass judgment prior to Mr. Rankin. the vote on article VII, and the prosecution should be required to abide Article II sets out as a basis for im- by the judgment of the Senate ren- peachment an alleged conspiracy be- dered upon such prior articles and tween Judge Ritter; his former part- the Senate ought not to countenance ner, Mr. Rankin; one Richardson, the arrangement of pleading designed to procure a second vote and Metcalf & Sweeney; and goes into de- the collection or accumulation of ad- tail as to the means and manner em- verse votes, if any, upon such mat- ployed whereby the respondent is al- ters. leged to have corruptly received the 3. The presentation in article VII $4,500 above mentioned. of more than one subject and the The two allegations, one of corrupt charges arising out of a single subject is unjust and prejudicial to re- and illegal receipt and the other of con- spondent. spiracy to effectuate the purpose, are, 4. In fairness and justice to re- in the judgment of the Chair, wholly spondent, the Court ought to require distinct, and the respondent should be separation and singleness of the sub- called to answer each of the articles. ject matter of the charges in separate and distinct articles, upon What is the judgment of the Court which a single and final vote of the with reference to that particular phase Senate upon each article and charge of the motion to strike? can be had. MR. [WILLIAM H.] KING [of Utah]: FRANK P. WALSH, Mr. President, if it be necessary, I CARL T. HOFFMAN, Of Counsel for Respondent. move that the ruling of the honorable Presiding Officer be considered as and RULING ON THE MOTION OF stand for the judgment of the Senate RESPONDENT TO STRIKE OUT sitting as a Court of Impeachment. THE PRESIDING OFFICER: On the mo- THE PRESIDING OFFICER: Is there ob- tion of the honorable counsel for the jection? The Chair hears none, and the respondent to strike article I of the ar- ruling of the Chair is sustained by the ticles of impeachment or, in the alter- Senate.

2114 IMPEACHMENT POWERS Ch. 14 § 12

§ 12.4 Where the respondent in tion and singleness of the subject mat- an impeachment trial moves ter of the charges in separate and distinct articles, upon which a single and to strike an article on final vote of the Senate upon each arti- grounds that have not been cle and charge can be had. previously presented in im- On Apr. 3, 1936, Presiding Offi- peachment proceedings in cer Nathan L. Bachman, of Ten- the Senate, the Presiding Of- nessee, submitted the motion to ficer may submit the motion the Court of Impeachment for de- to the Senate sitting as a cision: (12) Court of Impeachment for THE PRESIDING OFFICER: . . . With decision. reference to article VII of the articles On Mar. 31, 1936,(11) Judge of impeachment, formerly article IV, Halsted Ritter, the respondent in the Chair desires to exercise his pre- an impeachment trial, moved to rogative of calling on the Court for a determination of this question. strike Article VII of the articles His reason for so doing is that an presented against him, on the fol- impeachment proceeding before the lowing grounds: Senate sitting as a Court is sui ge- 1. Article VII includes and embraces neris, partaking neither of the harsh- all the charges set forth in articles I, ness and rigidity of the criminal law II, III, IV, V, and VI. nor of the civil proceedings requiring 2. Article VII constitutes an accumu- less particularity. lation and massing of all charges in The question of duplicity in impeach- preceding articles upon which the ment proceedings presented by the Court is to pass judgment prior to the honorable counsel for the respondent is vote on article VII, and the prosecution a controversial one, and the Chair feels should be required to abide by the that it is the right and duty of each judgment of the Senate rendered upon Member of the Senate, sitting as a such prior articles and the Senate Court, to express his views thereon. ought not to countenance the arrange- Precedents in proceedings of this ment of pleading designed to procure a character are rare and not binding second vote and the collection or accu- upon this Court in any course that it mulation of adverse votes, if any, upon might desire to pursue. such matters. The question presented in the mo- 3. The presentation in article VII of tion to strike article VII on account of more than one subject and the charges duplicity has not, so far as the Chair is arising out of a single subject is unjust advised, been presented in any im- and prejudicial to respondent. peachment proceeding heretofore had 4. In fairness and justice to respond- before this body. ent, the Court ought to require separa- The Chair therefore submits the question to the Court. 11. 80 CONG. REC. 4656, 4657, 74th Cong. 2d Sess. 12. Id. at p. 4898.

2115 Ch. 14 § 12 DESCHLER’S PRECEDENTS

MR. [HENRY F.] ASHURST [of Ari- the Court suspend its proceedings and zona]: Mr. President, under the rules that the Senate proceed to the consid- of the Senate, sitting as a Court of Im- eration of legislative business; and I peachment, all such questions, when should like to make a brief statement submitted by the Presiding Officer, as to the reasons for the motion. Some shall be decided without debate and Senators have said that they desire an without division, unless the yeas and opportunity to present amendments to nays are demanded by one-fifth of the general appropriation bills which are Members present, when the yeas and pending, and that it will be necessary nays shall be taken. that the amendments be presented THE PRESIDING OFFICER: The Chair, today in order that they may be con- therefore, will put the motion. All sidered by the committee having juris- those in favor of the motion of counsel diction of the subject matter. I make for the respondent to strike article VII the motion. will say ‘‘aye.’’ Those opposed will say The motion was agreed to; and the ‘‘no.’’ Senate proceeded to the consideration (13) The noes have it, and the motion in of legislative business. its entirety is overruled. § 12.6 Impeachment pro- Suspension of Trial for Mes- ceedings in the Senate, sit- sages and Legislative Busi- ting as a Court of Impeach- ness ment, may be suspended for the reception of a message § 12.5 While the Senate is sit- from the House. ting as a Court of Impeach- On Apr. 8, 1936, the Senate was ment, the impeachment pro- sitting as a Court of Impeachment ceedings may be suspended in the trial of Judge Halsted Rit- by motion in order that legis- ter and examination of witnesses lative business be consid- was in progress. A message was ered. then received:

On Apr. 6, 1936, the Senate was MR. [JOSEPH T.] ROBINSON [of Ar- sitting as a Court of Impeachment kansas]: Mr. President, may I inter- in the trial of Judge Halsted Rit- rupt the proceedings for a moment? In ter. A motion was made and order that a message may be received from the House of Representatives, I adopted to proceed to the consid- ask that the proceedings of the Senate eration of legislative business, the sitting as a Court of Impeachment be regular order for the termination suspended temporarily, and that the of the session (5 :30 p.m.) not hav- Senate proceed with the consideration ing arrived: of legislative business.

MR. [JOSEPH T.] ROBINSON [of Ar- 13. 80 CONG. REC. 4994, 74th Cong. 2d kansas]: Mr. President, I move that Sess.

2116 IMPEACHMENT POWERS Ch. 14 § 12

THE PRESIDENT PRO TEMPORE: (14) Is which a general objection was there objection? raised: (16) There being no objection, the Senate resumed the consideration of legisla- MR. WALSH (of counsel): For the sake tive business. of saving time, we have these letters (The message from the House of which have gotten into our possession, Representatives appears elsewhere in which have been given to us, and I the legislative proceedings of today’s suggest to the House managers that RECORD.) we have copies of this entire correspondence, a continuous list of them IMPEACHMENT OF HALSTED L. RITTER chronologically copied. We are going to ask you, if you will agree, that instead MR. ROBINSON: I move that the Sen- of reading these letters to Mr. Sweeny ate, in legislative session, take a recess we be permitted to offer them all in in order that the Court may resume its evidence and give you copies of them. business. MR. MANAGER [RANDOBPH] PERKINS The motion was agreed to; and the [of New Jersey]: Mr. President, the Senate, sitting as a Court of Impeach- ment, resumed the trial of the articles managers on the part of the House ob- of impeachment against Halsted L. ject to that procedure. These letters Ritter, United States district judge for are incompetent, immaterial, and irrel- the southern district of Florida.(15) evant, and will only encumber the record. Evidence MR. WALSH (of counsel): I desire to say that these letters predate and § 12.7 The Presiding Officer at antedate this transaction. They show the effort that was being made, and an impeachment trial rules they throw a strong light upon the on the admissibility of docu- proposition that this was not a mentary evidence when a champertous proceeding, but that it document is offered and spe- was a proceeding started by these men cific objection is made there- who had invested their money, and upon whose names and credit these to. bonds were sold. It is in answer to During the impeachment trial of that. Judge Halsted Ritter in the 74th THE PRESIDING OFFICER: (17) It is the Congress, the Presiding Officer ruling of the Chair that the letters set out guidelines under which shall be exhibited to the managers on the part of the House, and that the rulings on the admissibility of evi- managers on the part of the House dence would be made. At issue may make specific objections to each was a large number of letters, to document to which they wish to lodge

14. Key Pittman (Nev.). 16. 80 CONG. REC. 5245–53, 74th Cong. 15. 80 CONG. REC. 5129, 74th Cong. 2d 2d Sess., Apr. 9, 1936. Sess. 17. Walter F. George (Ga.).

2117 Ch. 14 § 12 DESCHLER’S PRECEDENTS

objection. There can be no ruling with witness knows matters that he himself respect to a large number of docu- attended to, the original documents not ments without specific objection. being in question, he has a right to an- MR. WALSH (of counsel): Will you swer the question. take that suggestion of the Presiding [JUDGE RITTER]: A. I have no inde- Officer and go through these docu- pendent recollection of the matter at ments? all. The official court records or this MR. MANAGER PERKINS: Mr. Presi- memorandum would have to control. dent, we understand that these letters are to be offered, and objection made § 12.8 Exhibits in evidence in as they are offered; or are we to exam- an impeachment trial should ine the file and find out what documents we object to? be identified and printed in THE PRESIDING OFFICER: The ruling the Record if necessary. of the Chair was that the letters shall On Apr. 8, 1936, a proposal was be exhibited to the managers on the made in the Senate, sitting as a part of the House, and that specific objection shall be lodged to documents to Court of Impeachment in the Hal- which the managers wish to lodge ob- sted Ritter trial, as to the identi- jections. fication of certain exhibits: (19) MR. MANAGER PERKINS: Mr. Presi- MR. WALSH (of counsel): Have you dent, we will examine them during the the letter that is referred to in that let- recess and be prepared to follow that ter? procedure. . . . MR. MANAGER [RANDOLPH] PERKINS MR. MANAGER [SAM] HOBBS [of Ala- bama]: . . . [of New Jersey]: I have not it at hand at this moment, but I have it here Q. Judge, I will ask you if the matter somewhere. of the requirement of a supersedeas bond, and fixing the amount thereof, MR. WALSH (of counsel): I should like was one of the questions which would to see the letter if it is here. probably come up immediately after MR. MANAGER PERKINS: I understood the final decree was rendered. that Mr. Rankin would resume the MR. WALSH (of counsel): I wish to ob- stand at this time. ject to that question for the reason MR. [SHERMAN] MINTON [of Indiana]: that the record in the case and the pa- Mr. President, far be it from me to pers in the case are the best evidence. suggest to eminent counsel engaged in I should like to have them here. I this case how they should conduct a should like to have them identified, so lawsuit, but I respectfully suggest that that, if we thought it necessary, we they identify their exhibits in some could interrogate the witness on cross- way, and also the papers that are in- examination. troduced in the record, so that we may THE PRESIDENT PRO TEMPORE: (18) keep track of them. The Presiding Officer thinks, if the 19. 80 CONG. REC. 5137, 74th Cong. 2d 18. Key Pittman (Nev.). Sess.

2118 IMPEACHMENT POWERS Ch. 14 § 12

THE PRESIDING OFFICER: (20) The would be sufficient to advise those of Chair takes the liberty of suggesting the Senators who have not heard it. that the statement made by the Sen- However, as to this particular order, I ator from Indiana is a wise one, and is will ask that it be printed in the followed in court. The Chair sees no Record. reason why identification should not be THE PRESIDING OFFICER: Is there ob- made of the exhibits which are rejection? ceived in evidence. Counsel will proceed. Federal income-tax returns of the respondent, offered in evi- Certain exhibits were ordered dence by the managers, were printed, while others were merely printed in full in the, Record.(2) introduced in evidence. One exhibit was printed in the Record by § 12.9 The Senate sitting as a unanimous consent.(21) Court of Impeachment may MR. [HOMER T.] BONE [of Wash- at the conclusion of the trial ington]: Mr. President, may I inquire provide by order for the re- of the Chair if all the exhibits counsel turn of evidence to proper are introducing are to be printed in the daily Record? owners or officials. THE PRESIDING OFFICER: (1) The On Apr. 16, 1936, the Senate Chair thinks not. sitting as a Court of Impeachment MR. BONE: I am wondering how we in the trial of Judge Halsted Rit- may later scrutinize them if counsel ter adopted, at the conclusion of are going to rely on them. trial, orders for the return of evi- THE PRESIDING OFFICER: Some of the (3) exhibits are being ordered printed and dence: others are merely introduced in evi- Ordered, That the Secretary be, and dence for the use of counsel upon argu- he is hereby, directed to return to A. L. ment and consideration of the court. Rankin, a witness on the part of the MR. WALSH (of counsel): I had sup- United States, the two documents posed that all correspondence would be showing the lists of cases, pending and printed in full in the Record. closed, in the law office of said A. L. THE PRESIDING OFFICER: The Chair Rankin, introduced in evidence during assumes that all documents and cor- the trial of the impeachment of Hal- respondence which have been read or sted L. Ritter, United States district which have been ordered printed have judge for the southern district of Flor- been or will be printed in the Record. ida. . . . MR. WALSH (of counsel): I think per- Ordered, That the Secretary of the haps a mere reference to this order Senate be, and he is hereby, directed

20. William H. King (Utah). 2. 80 CONG. REC. 5256–61, 74th Cong. 21. 80 CONG. REC. 5341, 74th Cong. 2d 2d Sess., Apr. 9, 1936. Sess., Apr. 10, 1936. 3. 80 CONG. REC. 5558, 5559, 74th 1. Matthew M. Neely (W. Va.). Cong. 2d Sess.

2119 Ch. 14 § 12 DESCHLER’S PRECEDENTS

to return to the clerk of the United The legislative clerk read as follows: States District Court for the Southern Ordered, That the witnesses shall District of Florida and the clerk of the stand while giving their testimony. circuit court, Palm Beach County, Fla., sitting in chancery, the original papers THE VICE PRESIDENT: Is there objec- filed in said courts which were offered tion to the adoption of the order? The in evidence during the proceedings of Chair hears none, and the order is en- the Senate sitting for the trial of the tered. impeachment of Halsted L. Ritter, United States district judge for the § 12.11 The respondent may southern district of Florida. take the stand and be exam- In the Harold Louderback trial, ined and cross-examined at the Senate returned papers by his impeachment trial. order to a U.S. District Court.(4) On Apr. 11, 1936, Judge Hal- Witnesses sted Ritter, the respondent in a trial of impeachment, was called § 12.10 The Senate sitting as a as a witness by his counsel. He Court of Impeachment has was cross examined by the man- adopted orders requiring agers on the part of the House witnesses to stand while giv- and by Senators sitting on the Court of Impeachment, who sub- ing testimony during im- mitted their questions in writ- peachment trials. ing.(7) On Apr. 6, 1936, during the Parliamentarian’s Note: The re- trial of Judge Halsted Ritter be- spondent in an impeachment trial fore the Senate sitting as a Court is not required to appear, and the of Impeachment, an order was trial may proceed in his absence. adopted as to the position of wit- ( ) Impeachment rules VIII and IX nesses while testifying: 5 provide for appearance and an- MR. [WILLIAM H.] KING [of Utah]: swer by attorney and provide for Pursuant to the practice heretofore ob- continuance of trial in the absence served in impeachment cases, I send to of any appearance. The respond- the desk an order, and ask for its adoption. ent first testified in his own be- THE VICE PRESIDENT: (6) The order half in the Robert Archbald im- will be stated. peachment trial in 1913, and Judge Harold Louderback testified 4. 77 CONG. REC. 4142, 73d Cong. 1st at his trial in 1933.(8) Sess., May 25, 1933. 5. 80 CONG. REC. 4971, 74th Cong. 2d 7. 80 CONG. REC. 5370–86, 74th Cong. Sess. See also 6 Cannon’s Precedents 2d Sess. § 488. 8. See 6 Cannon’s Precedents §§ 511 6. John N. Garner (Tex.). (Archbald), 524 (Louderback).

2120 IMPEACHMENT POWERS Ch. 14 § 13

Final Arguments § 13. Voting; Deliberation and Judgment § 12.12 Following the presentation of evidence in an im- The applicable rules on impeachment trial, the Court of peachment trials provide for delib- Impeachment adopts an eration behind closed doors, for a order setting the time to be vote on the articles of impeach- allocated for final argument, and for pronouncement of ments. judgment. (See Rules XXIII and XXIV.) (10) Except for organiza- On Apr. 13, 1936, the Senate tional questions, debate is in sitting as a Court of Impeachment order during an impeachment in the trial of Judge Halsted Rit- trial only while the Senate is deter adopted, at the close of the liberating behind closed doors, at which time the respondent, his presentation of evidence, an order counsel, and the managers are not limiting final arguments: present. Rule XXIV, of the rules for impeachment trials, provides Ordered, That the time for final ar- that orders and decisions shall be gument of the case of Halsted L. Ritter determined by the yeas and nays shall be limited to 4 hours, which said without debate.(11) time shall be divided equally between Under article I, section 3, clause the managers on the part of the House 6 of the U.S. Constitution, a two- of Representatives and the counsel for thirds vote is required to convict the respondent, and the time thus as- the respondent on an article of signed to each side shall be divided as impeachment, the articles being each side for itself may determine.(9) voted on separately under Rule XXIII of the rules for impeach- (12) 9. 80 CONG. REC. 5401, 74th Cong. 2d ment trials. Sess. An identical order was adopted in the Harold Louderback impeach- 10. The Senate rules on impeachment ment trial (see 6 Cannon’s Prece- are set out in § 11, supra. dents § 524). 11. For debate on organizational ques- Orders for final arguments have tions before trial commences, see varied as to the time and number of § 11.11, supra. arguments permitted, although in 12. Overruled in the Ritter impeachment one instance—the trial of President trial was a point of order that the re- Andrew Johnson—no limitations spondent was not properly convicted, were imposed as to the time for and a two-thirds vote having been ob- number of final arguments. See 3 tained on an article which cumulated Hinds’ Precedents § 2434. offenses (see §§ 13.5, 13.6, infra).

2121 Ch. 14 § 13 DESCHLER’S PRECEDENTS

Article I, section 3, clause 7 pro- Deliberation Behind Closed vides for removal from office upon Doors conviction and also allows the further judgment of disqualification § 13.1 Final arguments having from holding and enjoying ‘‘any of- been presented to a Court of fice of honor, trust or profit under Impeachment, the Senate the United States.’’ In the most closes the doors in order to recent conviction by the Senate, of deliberate in closed session, Judge Ritter in 1936, it was held and the respondent, his for the first time that no vote was counsel, and the managers withdraw. required on removal following conviction, inasmuch as removal fol- On Apr. 15, 1936, the Senate lows automatically from conviction convened sitting as a Court of Im- under article II, section 4.(13) But peachment in the trial of Judge the further judgment of disquali- Halsted Ritter. Final arguments fication requires a majority had been completed on the pre- vote.(14) ceding day. The following proceedings took place: Cross References IMPEACHMENT OF HALSTED L. RITTER Constitutional provisions governing judgment in impeachment trials, see § 1, The Senate, sitting for the trial of supra. the articles of impeachment against Deliberation, vote and judgment in the Halsted L. Ritter, judge of the United Ritter impeachment trial, see § 18, States District Court for the Southern infra. District of Florida, met at 12 o’clock Grounds for impeachment and conviction meridian. generally, see § 3, supra. The respondent, Halsted L. Ritter, with his counsel, Frank P. Walsh, Esq., Judicial review of impeachment convic- and Carl T. Hoffman, Esq., appeared tions, see § 1, supra. in the seats assigned them. Trial and judgment where person im- THE VICE PRESIDENT: (15) The Ser- peached has resigned, see § 2, supra. geant at Arms by proclamation will Collateral Reference open the proceedings of the Senate sitting for the trial of the articles of im- Riddick, Procedure and Guidelines for peachment. Impeachment Trials in the United The Sergeant at Arms made the States Senate, S. Doc. No. 93–102, 93d usual proclamation. Cong. 2d Sess. (1974). On request of Mr. Ashurst, and by unanimous consent, the reading of the 13. See § 13.9, infra. 14. See § 13.10, infra. 15. John N. Garner (Tex.).

2122 IMPEACHMENT POWERS Ch. 14 § 13

Journal of the proceedings of the Sen- Rule XXIV provides for debate, ate, sitting for the trial of the articles during impeachment trials, only of impeachment, for Tuesday, April 14, 1936, was dispensed with, and the when the Senate is deliberating in Journal was approved. . . . closed session, wherein ‘‘no mem- THE VICE PRESIDENT: Eighty-six ber shall speak more than once on Senators have answered to their one question, and for not more names. A quorum is present. than ten minutes on an interlocu-

DELIBERATION WITH CLOSED DOORS tory question, and for not more than fifteen minutes on the final MR. [HENRY F.] ASHURST [of Ari- question, unless by consent of the zona]: I move that the doors of the Senate be closed for deliberation. Senate, to be had without debate. THE VICE PRESIDENT: The question . . . The fifteen minutes herein is on the motion of the Senator from allowed shall be for the whole de- Arizona. liberation on the final question, The motion was agreed to. and not on the final question on The respondent and his counsel each article of impeachment.’’ withdrew from the Chamber. The galleries having been previously Orders for Time and Method of cleared, the Senate (at 12 o’clock and 8 minutes p.m.) proceeded to deliberate Voting with closed doors. At 4 o’clock and 45 minutes p.m. the § 13.2 Following or during de- doors were opened.(16) liberation behind closed Rule XX of the rules of the Sen- doors, the Senate sitting as a ate on impeachment trials pro- Court of Impeachment vides: ‘‘At all times while the Sen- adopts orders to provide the ate is sitting upon the trial of an time and method of voting. impeachment the doors of the On Apr. 15, 1936, the Senate, Senate shall be kept open, unless sitting as a Court of Impeachment the Senate shall direct the doors in the trial of Judge Halsted Rit- to be closed while deliberating ter, opened its doors after having upon its decisions.’’ deliberated in closed session. By unanimous consent, the order set- 16. 80 CONG. REC. 5505, 74th Cong. 2d ting a date for the taking of a vote Sess. In the Ritter case, the managers on the part of the House were was published in the Record: not present when the Senate closed Ordered, by unanimous consent, its doors. Where they are present, That when the Senate, sitting as a they withdraw. See, for example, 6 Court, concludes its session on today it Cannon’s Precedents § 524 (Harold take a recess until 12 o’clock tomorrow, Louderback). and that upon the convening of the

2123 Ch. 14 § 13 DESCHLER’S PRECEDENTS

Court on Friday it proceed to vote Johnson trial Article XI was first upon the various articles of impeach- voted on.(19) ment. The form of putting the ques- Senate Majority Leader Joseph tion and calling the roll in the T. Robinson, of Arkansas, ex- Johnson trial also differed from plained the purpose of the agree- current practice, the Chief Justice ment, which was to postpone the in that case putting the question vote until Friday so that a num- ‘‘Mr. Senator ———, how say you? ber of Senators who wished to Is the respondent, Andrew John- vote could be present for that pur- son, President of the United ( ) pose. 17 States, guilty or not guilty of a On Apr. 16, 1936, the Senate, high misdemeanor, as charged in after deliberating behind closed this article?’’ (20) doors, agreed to an order providing a method of voting: Recognition of Pairs Ordered, That upon the final vote in the pending impeachment of Halsted § 13.3 Pairs are not recognized L. Ritter, the Secretary shall read the during the vote by a Court of articles of impeachment separately and Impeachment on articles of successively, and when the reading of impeachment. each article shall have been concluded the Presiding Officer shall state the On Apr. 17, 1936, the Senate question thereon as follows: sitting as a Court of Impeachment ‘‘Senators, how say you? Is the re- in the trial of Judge Halsted Rit- spondent, Halsted L. Ritter, guilty or ter convened to vote on the arti- not guilty?’’ cles of impeachment. Preceding Thereupon the roll of the Senate shall be called, and each Senator as his the vote, Senator Joseph T. Robin- name is called, unless excused, shall son, of Arkansas, the Majority arise in his place and answer ‘‘guilty’’ Leader, announced as follows: or ‘‘not guilty.’’ (18) I have been asked to announce also This method of consideration— that pairs are not recognized in this that of reading and voting on the proceeding. (1) articles separately and in se- Likewise, it was announced on quence—has been used consist- May 23, 1933, preceding the vote ently in impeachment proceedings, though in the Andrew 19. See 3 Hinds’ Precedents § § 2439– 2443. 6 Cannon’s Precedents § 524. 17. 80 CONG. REC. 5505, 74th Cong. 2d 20. 3 Hinds’ Precedents § 2440. Sess. 1. 80 CONG. REC. 5602, 74th Cong. 2d 18. Id. at p. 5558. Sess.

2124 IMPEACHMENT POWERS Ch. 14 § 13 on the articles impeaching Judge as Blount, of North Carolina, a Harold Louderback, that pairs Member of the House, asked to be would not be recognized.(2) excused from voting on any matter affecting his brother.(5) Excuse or Disqualification In the impeachment of Judge From Voting Harold Louderback, two Members of the Senate were excused from § 13.4 Members of the House voting thereon since they had and Senate have been ex- been Members of the House when cused but not disqualified Judge Louderback was im- from voting on articles of impeached.(6) peachment. The issue of disqualification On Mar. 12, 1936, preceding the from voting either in the House on appearance of respondent Judge impeachment or in the Senate on Halsted Ritter before the Senate conviction has not been directly sitting as a Court of Impeach- presented. During the trial of ment, Senator Edward P. President Andrew Johnson, a Sen- Costigan, of Colorado, asked to be ator offered and then withdrew a excused from participation in the challenge to the competency of the impeachment proceedings. He in- President pro tempore of the Sen- serted in the Record a statement ate, Benjamin F. Wade, of Ohio, to assigning the reasons for his re- preside over or vote in the trial of quest, based on personal acquaint- the President. Before withdrawing ance with the respondent.(3) Simi- his objection, Senator Thomas A. larly, on Mar. 31, Senator Millard Hendricks, of Indiana, argued E. Tydings, of Maryland, asked to that the President pro tempore be excused from participating in was an interested party because the proceedings and from voting of his possible succession to the on the ground of family illness.(4) Presidency. The President pro (7) During the consideration in the tempore voted on that occasion. House of the resolution impeach- 5. 3 Hinds’ Precedents § 2295. ing Senator William Blount, of 6. 6 Cannon’s Precedents § 516. Tennessee, his brother, Mr. Thom- 7. 3 Hinds’ Precedents § 2061. During the Johnson impeachment, 2. 77 CONG. REC. 4083, 73d Cong. 1st succession to the Presidency was Sess. governed by an Act of 1792 providing 3. 80 CONG. REC. 3646, 74th Cong. 2d that the President pro tempore and Sess. then the Speaker of the House 4. Id. at p. 4654. should succeed to the Presidency,

2125 Ch. 14 § 13 DESCHLER’S PRECEDENTS

Speaker Schuyler Colfax, of In- Points of Order Against Vote diana, chose to vote on the resolution impeaching President John- § 13.5 In making a point of son in 1868, and delivered the fol- order against the result of a lowing explanatory statement: vote on an article of im- The Speaker said: The occupant of peachment, a Senator may the Chair cannot consent that his con- state the grounds for his stituents should be silent on so grave a point of order but debate or question, and therefore, as a member argument thereon is not in of this House, he votes ‘‘ay.’’ On agreeing to the resolution, there are—yeas order. 126, nays 47. So the resolution is On Apr. 17, 1936, following a adopted.(8) two-thirds vote for conviction by It has been generally deter- the Senate, sitting as a Court of mined in the House that the indi- Impeachment in the trial of Judge vidual Member should decide the Halsted Ritter, Senator Warren R. question whether he is disquali- Austin, of Vermont, made a point fied from voting because of a per- of order against the vote. The (9) President pro tempore, Key Pitt- sonal interest in the vote. man, of Nevada, subsequently after the Vice President. 1 Stat. 239. ruled against allowing debate or Presently, 3 USC § 19 provides for argument on that point of ( ) the Speaker and then the President order: 10 pro tempore to succeed to the Presi- MR. AUSTIN: Mr. President, a point dency after the Vice President, but of order. the 25th amendment to the U.S. THE PRESIDENT PRO TEMPORE: The Constitution provides a mechanism Senator will state the point of order. for selection of a Vice President upon MR. AUSTIN: I make the point of vacancy in that office, by succession order that the respondent is not guilty, to the Presidency or otherwise. not having been found guilty by a vote of two-thirds of the Senators present. 8. 66 CONG. GLOBE 1400, 40th Cong. 2d Article VII is an omnibus article, the Sess., Feb. 24, 1868. ingredients of which, as stated on page In the Johnson impeachment, the 36, paragraph 4, are—— minority party members generally refrained from voting on the ballot In Senate practice, no rule re- for the choice of managers following quires a Member of the Senate to the adoption of articles, where a re- withdraw from voting because of per- quest to excuse all who sought to be sonal interest, but a Member may be excused had been objected to. 3 excused from voting under Rule XII Hinds’ Precedents § 2417. clause 2, Senate Manual § 12.2 9. See Rule VIII clause 1 and com- (1973). ments thereto, House Rules and 10. 80 CONG. REC. 5606, 74th Cong. 2d Manual §§ 656–659 (1973). Sess.

2126 IMPEACHMENT POWERS Ch. 14 § 13

MR. [ROBERT M.] LA FOLLETTE [Jr., MR. AUSTIN: Of which the respond- of Wisconsin]: Mr. President, I rise to ent has been found innocent would be a parliamentary inquiry. monstrous. I refer to the case of An- THE PRESIDENT PRO TEMPORE: The drews v. King (77 Maine, 235). Senator will state it. MR. [JOSEPH T.] ROBINSON [of Ar- MR. LA FOLLETTE: Is debate upon kansas]: Mr. President, I rise to a the point of order in order? point of order. THE PRESIDENT PRO TEMPORE: It is THE PRESIDENT PRO TEMPORE: The not in order. Senator from Arkansas will state the MR. LA FOLLETTE: I ask for the reg- point of order. ular order. MR. ROBINSON: The Senator from MR. AUSTIN: Mr. President, a par- Vermont is not in order. liamentary inquiry. THE PRESIDENT PRO TEMPORE: The THE PRESIDENT PRO TEMPORE: The point of order is sustained. The Sen- Senator will state it. ator from Vermont is making an argu- MR. AUSTIN: In stating a point of ment on the point of order he has order, is it not appropriate to state the made. grounds of the point of order? THE PRESIDENT PRO TEMPORE: Pro- § 13.6 During the Halsted Rit- viding the statement is not argument. MR. AUSTIN: That is what the Sen- ter impeachment trial, the ator from Vermont is undertaking to President pro tempore over- do, and no more. ruled a point of order THE PRESIDENT PRO TEMPORE: If the against a vote of conviction statement is argument, the point of on the seventh article (charg- order may be made against the argument. ing general misbehavior), MR. AUSTIN: The first reason for the where the point of order was point of order is that here is a com- based on the contention that bination of facts in the indictment, the the article repeated and com- ingredients of which are the several articles which precede article VII, as bined facts, circumstances, seen by paragraph marked 4 on page and charges contained in the 36. The second reason is contained in preceding articles. the Constitution of the United States, (11) which provides that no person shall be On Apr. 17, 1936, the Presi- convicted without the concurrence of dent pro tempore, Key Pittman, of two-thirds of the members present. Nevada, stated that the Senate The third reason is that this matter had by a two-thirds vote adjudged has been passed upon judicially, and it has been held that an attempt to con- the respondent Judge Ritter guilty vict upon a combination of as charged in Article VII of the ar- circumstances—— ticles of impeachment. He over- MR. [GEORGE] MCGILL [of Kansas]: Mr. President, a parliamentary in- 11. 80 CONG. REC. 5606, 74th Cong. 2d quiry. Sess.

2127 Ch. 14 § 13 DESCHLER’S PRECEDENTS ruled a point of order that had MR. [JOSEPH T.] ROBINSON [of Ar- been raised against the vote, as kansas]: Mr. President, I rise to a follows: point of order. THE PRESIDENT PRO TEMPORE: The MR. [WARREN R.] AUSTIN [of Senator from Arkansas will state the Vermont]: Mr. President, a point of point of order. order. MR. ROBINSON: The Senator from THE PRESIDENT PRO TEMPORE: The Vermont is not in order. Senator will state the point of order. THE PRESIDENT PRO TEMPORE: The MR. AUSTIN: I make the point of point of order is sustained. The Sen- order that the respondent is not guilty, ator from Vermont is making an argu- not having been found guilty by a vote ment on the point of order he has of two-thirds of the Senators present. made. Article VII is an omnibus article, the MR. AUSTIN: Mr. President, I have ingredients of which, as stated on page concluded my motion. 36, paragraph 4, are—— THE PRESIDENT PRO TEMPORE: A A point of order was made point of order is made as to article VII, against debate or argument on the in which the respondent is charged point of order.(12) with general misbehavior. It is a separate charge from any other charge, and MR. AUSTIN: The first reason for the the point of order is overruled. point of order is that here is a combination of facts in the indictment, the Judgment as Debatable ingredients of which are the several articles which precede article VII, as seen by paragraph marked 4 on page § 13.7 An order of judgment in 36. The second reason is contained in an impeachment trial is not the Constitution of the United States, debatable. which provides that no person shall be convicted without the concurrence of On Apr. 17, 1936, the President two-thirds of the members present. pro tempore, Key Pittman, of Ne- The third reason is that this matter vada, answered a parliamentary has been passed upon judicially, and it inquiry relating to debate on an has been held that an attempt to con- order of judgment in the impeach- vict upon a combination of circumstances—— ment trial of Halsted Ritter: MR. [GEORGE] MCGILL [of Kansas]: THE PRESIDENT PRO TEMPORE: The Mr. President, a parliamentary in- Senator from Arizona submits an quiry. order, which will be read. MR. AUSTIN: Of which the respond- The legislative clerk read as follows: ent has been found innocent would be Ordered further, That the respond- monstrous. I refer to the case of An- ent, Halsted L. Ritter, United States drews v. King (77 Maine, 235). district judge for the southern district of Florida, be forever disquali- 12. See § 13.5 supra. fied from holding and enjoying any

2128 IMPEACHMENT POWERS Ch. 14 § 13

office of honor, trust, or profit under The Senate hereby orders and de- the United States. crees and it is hereby adjudged that the respondent, Halsted L. Ritter, MR. [DANIEL O.] HASTINGS [of Dela- United States district judge for the ware]: Mr. President, I understand southern district of Florida, be, and he that matter is subject to debate. is hereby, removed from office, and MR. [HENRY F.] ASHURST [of Ari- that he be, and is hereby, forever dis- zona]: No, Mr. President. The yeas and qualified to hold and enjoy any office of nays are in order, if Senators wish, but honor, trust, or profit under the United it is not subject to debate. States, and that the Secretary be di- MR. HASTINGS: Will the Chair state rected to communicate to the President just why it is not subject to debate? of the United States and to the House THE PRESIDENT PRO TEMPORE: The of Representatives the foregoing order Chair is of opinion that the rules gov- and judgment of the Senate, and trans- erning impeachment proceedings re- mit a copy of same to each. quire that all orders or decisions be de- MR. [ROBERT M.] LA FOLLETTE [Jr., termined without debate, but the yeas of Wisconsin]: Mr. President, I ask for and nays may be ordered.(13) a division of the question. MR. ASHURST: Mr. President, to di- Divisibility of Order of Judg- vide the question is perfectly proper. ment Any Senator who desires that the order be divided is within his rights in § 13.8 An order of judgment on thus asking that it be divided. The judgment of removal from office would conviction in an impeach- ipso facto follow the vote of guilty. ment trial is divisible where MR. [WILLIAM E.] BORAH [of Idaho]: it contains provisions for re- Mr. President, do I understand there is moval from office and for to be a division of the question? disqualification of the re- MR. LA FOLLETTE: I have asked for a spondent. division of the question. On Apr. 17, 1936, Senator In the trial of Judge Robert Henry F. Ashurst, of Arizona, of- Archbald, a division was demanded fered an order of judgment fol- on the order of judgment, which both lowing the conviction of Halsted removed and disqualified the respondent. 6 Cannon’s Precedents Ritter on an article of impeach- § 512. A division of the question was ment. It was agreed, before the likewise demanded in the West order was withdrawn, that it was Humphreys impeachment. See 3 divisible: (14) Hinds’ Precedents § 2397. In the John Pickering impeachment, the 13. 80 CONG. REC. 5607, 74th Cong. 2d Court of Impeachment voted on re- Sess. moval but did not consider disquali- 14. 80 CONG. REC. 5606, 5607, 74th fication. See 3 Hinds’ Precedents Cong. 2d Sess. § 2341.

2129 Ch. 14 § 13 DESCHLER’S PRECEDENTS

MR. [GEORGE W.] NORRIS [of Ne- trict judge for the southern district braska]: Mr. President, it seems to me of Florida, be removed from office. the chairman of the Committee on the THE PRESIDENT PRO TEMPORE: Are Judiciary should submit two orders. the yeas and nays desired on the ques- One follows from what we have done. The other does not follow, but we tion of agreeing to the order? ought to vote on it. MR. [HENRY F.] ASHURST [of Ari- MR. ASHURST: I accept the sugges- zona]: The yeas and nays are not nection. I believe the Senator from Ne- essary. braska is correct. Therefore, I with- MR. [HIRAM W.] JOHNSON [of Cali- draw the order sent to the desk. fornia]: Mr. President, how, affirma- tively, do we adopt the order, unless it Vote on Removal Following is put before the Senate, and unless Conviction the roll be called upon it or the Senate otherwise votes? § 13.9 On conviction of the re- THE PRESIDENT PRO TEMPORE: The Chair is of the opinion that the order spondent on an article of im- would follow the final vote as a matter peachment, no vote is re- of course, and no vote is required. quired on judgment of re- MR. ASHURST: Mr. President, the moval, since removal follows vote of guilty, in and of itself, is suffi- automatically after convic- cient without the order, under the Con- tion under section 4, article stitution, but to be precisely formal I have presented the order, in accord- II, of the U.S. Constitution. ance with established precedent, and I On Apr. 17, 1936, following the ask for a vote on its adoption. conviction by the Senate, sitting MR. [DANIEL O.] HASTINGS [of Dela- as a Court of Impeachment, of ware]: Mr. President, will the Senator Halsted Ritter on Article VII of yield? the articles of impeachment, MR. ASHURST: I yield. President pro tempore Key Pitt- MR. HASTINGS: Just what is the language in the Constitution as to what man, of Nevada, ruled that no necessarily follows conviction on an ar- vote was required on judgment of ticle of impeachment? (15) removal: MR. [GEORGE] MCGILL, [of Kansas]: THE PRESIDENT PRO TEMPORE: The It is found in section 4, article II, of Senator from Arizona, having with- the Constitution. drawn the first order, submits another MR. HASTINGS: What is the language one, which the clerk will read. of the Constitution which makes re- The legislative clerk read as follows: moval from office necessary, and to fol- Ordered, That the respondent, low as a matter of course? Halsted L. Ritter, United States dis- MR. MCGILL: Mr. President—— MR. ASHURST: If the Senator from 15. 80 CONG. REC. 5607, 74th Cong. 2d Kansas has the reference, I shall ask Sess. him to read it.

2130 IMPEACHMENT POWERS Ch. 14 § 13

MR. MCGILL: Section 4 of article II of impeachment trial, for automatic the constitution reads: removal on conviction of at least The President, Vice President, and one article of impeachment, differs all civil officers of the United States shall be removed from office on im- from the practice in three prior peachment for, and conviction of cases where the Senate sitting as treason, bribery, or other high crimes and misdemeanors. a Court of Impeachment has voted to convict. In the John Pickering MR. HASTINGS: I thank the Senator. Then may I suggest was not the Chair trial, the vote was taken, in the correct in the first instance? Does not affirmative, on the question of re- the removal from office follow without moval, following the vote on the any vote of the Senate? articles; the question of disquali- THE PRESIDENT PRO TEMPORE: That fication was apparently not con- was the opinion of the Chair. (16) MR. HASTINGS: I think the President sidered. In the West Hum- pro tempore was correct. phreys impeachment, following THE PRESIDENT PRO TEMPORE: The conviction on five articles of im- Chair will then direct that the order be peachment, the Court of Impeach- entered. ment proceeded to vote, under a MR. [GEORGE W.] NORRIS [of Ne- braska]: Mr. President, upon the action division of the question, on re- of the Senate why does not the Chair moval and disqualification, both make the proper declaration without decided in the affirmative.(17) And anything further? in the Robert Archbald impeach- THE PRESIDENT PRO TEMPORE: The Chair was about to do so. The Chair ment, the Court of Impeachment directs judgment to be entered in ac- voted first on removal and then on cordance with the vote of the Senate, disqualification, under a division as follows: of the question. Both orders were ( ) JUDGMENT voted in the affirmative. 18 The Senate having tried Halsted L. Ritter, United States district Vote Required for Disqualifica- judge for the southern district of tion Florida, upon seven several articles of impeachment exhibited against him by the House of Representa- § 13.10 The question of dis- tives, and two-thirds of the Senators qualification from holding an present having found him guilty of charges contained therein: It is office of honor, trust, or prof- therefore it under the United States, Ordered and adjudged, That the following conviction and said Halsted L. Ritter be, and he is hereby, removed from office. 16. 3 Hinds’ Precedents § 2341. Parliamentarian’s Note: The 17. 3 Hinds’ Precedents § 2397. procedure and ruling in the Ritter 18. 6 Cannon’s Precedents § 512. 2131 Ch. 14 § 13 DESCHLER’S PRECEDENTS

judgment of removal in an quiry, I may say that in the Archbald impeachment trial, requires case that very question arose. A Sen- ator asked that a question be divided, only a majority vote of the and on the second part of the order, Senate sitting as a Court of which was identical with the order now Impeachment. proposed, the yeas and nays were or- On Apr. 17, 1936, the Senate dered, and the result was yeas 39, sitting as a Court of Impeachment nays 35, so the order further disqualifying respondent from holding any of- in the trial of Halsted Ritter pro- fice of honor, trust, or profit under the ceeded to consider an order dis- United States was entered. It requires qualifying the respondent from only a majority vote. ever holding an office of honor, THE PRESIDENT PRO TEMPORE: The trust, or profit under the United question is on agreeing to the order States; the court had convicted submitted by the Senator from Ari- the respondent and he had been zona.(20) ordered removed from office. Parliamentarian’s Note: In the A parliamentary inquiry was impeachment trial of Robert propounded as to the vote re- Archbald, a division of the ques- quired on the question of disquali- tion was demanded on an order fication: removing and disqualifying the re- THE PRESIDENT PRO TEMPORE: (19) spondent. Removal was agreed to The Senator from Arizona submits an by voice vote and disqualification order, which will be read. was agreed to by the yeas and The legislative clerk read as follows: nays—yeas 39, nays 35.(21) Ordered further, That the respondent, Halsted L. Ritter, United States district judge for the southern dis- Filing of Separate Opinions trict of Florida, be forever disqualified from holding and enjoying any § 13.11 The Senate, sitting as a office of honor, trust, or profit under the United States.... Court of Impeachment, may provide by order at the con- MR. [F. RYAN] DUFFY [of Wisconsin]: clusion of the trial for Sen- A parliamentary inquiry. THE PRESIDENT PRO TEMPORE: The ators to file written opinions Senator will state it. following the final vote. MR. DUFFY: Upon this question is a On Apr. 16, 1936, the Senate majority vote sufficient to adopt the order, or must there be a two-thirds sitting as a Court of Impeachment vote? in the trial of Judge Halsted Rit- MR. [HENRY F.] ASHURST [of Ari- zona]: Mr. President, in reply to the in- 20. 80 CONG. REC. 5607, 74th Cong. 2d Sess. 19. Key Pittman (Nev.). 21. 6 Cannon’s Precedents § 512.

2132 IMPEACHMENT POWERS Ch. 14 § 13 ter adopted the following order at America, do hereby certify that the hereto attached document is a true the conclusion of the trial: and correct copy of the order and Ordered, That upon the final vote in judgment of the Senate, sitting for the pending impeachment of Halsted the trial of the impeachment of Hal- L. Ritter each Senator may, within 4 sted L. Ritter, United States district judge for the southern district of days after the final vote, file his opin- Florida, entered in the said trial on ion in writing, to be published in the April 17, 1936. ( ) printed proceedings in the case. 22 In testimony whereof, I hereunto subscribe my name and affix the seal House Informed of Judgment of the Senate of the United States of America, this the 18th day of April, § 13.12 The Senate informs the A. D. 1936. President and the House of EDWIN A. HALSEY, the order and judgment of Secretary of the Senate of the United States. the Senate in an impeach- In the Senate of the United States of ment trial. America, sitting for the trial of the On Apr. 20, 1936,(1) a message impeachment of Halsted L. Ritter, United States district judge for the from the Senate was received in southern district of Florida the House informing the House of the order and judgment in the im- JUDGMENT peachment trial of Judge Halsted APRIL 17, 1936. Ritter: The Senate having tried Halsted MESSAGE FROM THE SENATE L. Ritter, United States district judge for the southern district of A message from the Senate, by Mr. Florida, upon seven several articles Horne, its enrolling clerk, announced of impeachment exhibited against that the Senate had ordered that the him by the House of Representa- Secretary be directed to communicate tives, and two-thirds of the Senators present having found him guilty of to the President of the United States charges contained therein: It is and to the House of Representatives therefore the order and judgment of the Senate Ordered and adjudged, That the in the case of Halsted L. Ritter, and said Halsted L. Ritter be, and he is transmit a certified copy of same to hereby removed from office. each, as follows: Attest: I, Edwin A. Halsey, Secretary of EDWIN A. HALSEY, the Senate of the United States of Secretary.

22. 80 CONG. REC. 5558, 74th Cong. 2d 1. 80 CONG. REC. 5703, 5704, 74th Sess. Cong. 2d Sess.

2133 Ch. 14 § 14 DESCHLER’S PRECEDENTS

D. HISTORY OF PROCEEDINGS § 14. Charges Not Result- tigate the charges, which res- ing in Impeachment olution was referred to the Committee on the Judiciary. The following is a compilation of On Jan. 6, 1932, Mr. Wright impeachment charges made from Patman, of Texas, rose to impeach 1932 to the present which did not Mr. Mellon, Secretary of the result in impeachment by the Treasury: House. IMPEACHMENT OF ANDREW W. MELLON, Cross References SECRETARY OF THE TREASURY

Committee reports adverse to impeach- MR. PATMAN: Mr. Speaker, I rise to ment, their privilege and consider- a question of constitutional privilege. ation, see §§ 7.8–7.10, 8.2, supra. On my own responsibility as a Member House proceedings against Associate Jus- of this House, I impeach Andrew Wil- tice Douglas, discussion in the House, liam Mellon, Secretary of the Treasury and portions of final subcommittee re- of the United States for high crimes port relative to grounds for impeach- and misdemeanors, and offer the fol- ment of federal judges, see §§ 3.9–3.13, lowing resolution: supra. Whereas the said Andrew William House proceedings on impeachment dis- Mellon, of Pennsylvania, was nomi- continued against President Nixon, fol- nated Secretary of the Treasury of lowing his resignation, see § 15, infra. the United States by the then Chief Executive of the Nation, Warren G. Resignations and effect on impeachment Harding, March 4, 1921; his nomina- and trial, see § 2, supra. tion was confirmed by the Senate of Trial of Judge English dismissed fol- the United States on March 4, 1921; lowing his resignation, see § 16, infra. he has held said office since March 4, 1921, without further nominations or confirmations. Whereas section 243 of title 5 of the Code of Laws of the United Charges Against Secretary of States provides: the Treasury Mellon ‘‘Sec. 243. Restrictions upon Sec- retary of Treasury: No person ap- § 14.1 In the 72d Congress a pointed to the office of Secretary of the Treasury, or Treasurer, or reg- Member rose to a question of ister, shall directly or indirectly be constitutional privilege, im- concerned or interested in carrying peached Secretary of the on the business of trade or commerce, or be owner in whole or in Treasury Andrew Mellon, part of any sea vessel, or purchase and submitted a resolution by himself, of another in trust for him, any public lands or other public authorizing the Committee property, or be concerned in the pur- on the Judiciary to inves- chase or disposal of any public secu- 2134 IMPEACHMENT POWERS Ch. 14 § 14 rities of any State, or of the United erties, bauxite, magnesium, carbon States, or take or apply to his own electrodes, aluminum, sales, rail- use any emolument or gain for nego- roads, Pullman cars, gas, electric tiating or transacting any business light, street railways, copper, glass, in the Treasury Department other brass, steel, tar, banking, loco- than what shall be allowed by law; motives, water power, steamship, and every person who offends shipbuilding, oil, coke, coal, and against any of the prohibitions of many other different industries; said this section shall be deemed guilty of corporations are directly interested a high misdemeanor and forfeit to in the tariff, in the levying and col- the United States the penalty of lections of Federal taxes, and in the $3,000, and shall upon conviction be shipping of products upon the high removed from office, and forever seas; many of the products of these thereafter be incapable of holding corporations are protected by our any office under the United States; tariff laws and the Secretary of the and if any other person than a public Treasury has direct charge of the en- prosecutor shall give information of forcement of these laws. any such offense, upon which a prosecution and conviction shall be had, MELLON’S OWNERSHIP OF SEA VES- one-half the aforesaid penalty of SELS AND CONTROL OF UNITED $3,000 when recovered shall be for STATES COAST GUARD the use of the person giving such in- Whereas the Coast Guard (sec. 1, formation. ch. 1, title 14, of the United States Whereas the said Andrew William Code) is a part of the military forces Mellon has not only been indirectly of the United States and is operated concerned in carrying on the busi- under the Treasury Department in ness of trade and commerce in viola- time of peace; that the Secretary of tion of the above-quoted section of the Treasury directs the performance the law but has been directly inter- of the Coast Guard (sec. 51, ch. 1, ested in carrying on the business of title 14, of the Code of Laws of the trade and commerce in that he is United States); that officers of the now and has been since taking the Coast Guard are deemed officers of oath of office as Secretary of the the customs (sec. 6, ch. 2, title 14, Treasury of the United States the United States Code), and it is their owner of a substantial interest in the duty to go on board the vessels form of voting stock in more than which arrive within the United 300 corporations with resources ag- States, or within 4 leagues of the gregating more than $3,000,000,000, coast thereof, and search and exam- being some of the largest corpora- ine the same, and every part thereof, tions on earth, and he and his family and shall demand, receive, and cer- and close business associates in tify the manifests required to be on many instances own a majority of board certain vessels shall affix and the stock of said corporations and, in put proper fastenings on the hatches some instances, constitute ownership and other communications with the of practically the entire outstanding hold of any vessel, and shall remain capital stock; said corporations are on board such vessels until they ar- engaged in the business of trade and rive at the port of their destination; commerce in every State, county, that the said Andrew William Mellon and village in the United States, is now, and has been since becoming every country in the world, and upon Secretary of the Treasury, the owner the Seven Seas; said corporations in whole or in part of many sea ves- are extensively engaged in the fol- sels operating to and from the lowing businesses: Mining prop- United States, and in competition

2135 Ch. 14 § 14 DESCHLER’S PRECEDENTS

with other steamship lines; that his Venezuelan flag: 14 tankers, of interest in the sea vessels and his 36,654 gross tons. control over the Coast Guard rep- United States flag: S. Haiti; 13 resent a violation of section 243 of general cargo vessels, Conemaugh, title 5 of the Code of Laws of the Gulf of Mexico, Gulfbird, Gulfcoast, United States. Gulfgem, Gulfking, Gulflight, Gulfoil, Gulfpoint, Gulfprince, CUSTOMS OFFICERS Gulfstar, Gulfstream, Gulfwax, Har- Whereas the Secretary of the mony, Ligonier, Ohio, Susquehanna, Treasury of the United States super- Winifred, Currier, Gulf of Venezuela, intends the collection of the duties Gulf breeze, Gulfcrest, Gulfhawk, on imports (sec. 3, ch. 1, title 19, Gulfland, Gulfmaid, Gulfpenn, Code of Laws of the United States); Gulfpride, Gulfqueen, Gulfstate, he establishes and promulgates rules Gulftrade, Gulfwing, Juniata, and regulations for the appraisement Monongahela, Supreme, of imported merchandise and the Trinidadian. classification and assessment of duties thereon at various ports of entry (sec. 382, ch. 3, title 19, Code of INCOME TAXES PAID BY MELLON Laws of United States); that the COMPANIES AND REFUNDS MADE present Secretary of the Treasury, TO THEM—BY HIMSELF Andrew W. Mellon, is now and has been since becoming Secretary of the Whereas section 1 (2), chapter 1, Treasury personally interested in the title 26, of the Code of laws of the importation of goods, wares, articles, United States, provides ‘‘The Com- and merchandise in substantial missioner of Internal Revenue, under quantities and large amounts; that it the direction of the Secretary of the is repugnant to American principles Treasury, shall have general super- and a violation of the laws of the intendence of the assessment and United States for such an officer to collection of all duties and taxes im- hold the dual position of serving two posed by any law providing internal masters—himself and the United States. revenue. . . .’’ The tax laws of the United States, including the granting of refunds, credits, and abate- OWNERSHIP OF SEA VESSELS ments, are administered in secret Whereas the said Andrew W. Mel- under the direction of the Secretary lon is now, and has been since be- of the Treasury; that income-tax re- coming Secretary of the Treasury of turns and evidence upon which re- the United States, holding said office funds are made, or granted, to tax- in violation of that part of section payers are not subject to public in- 243 of title 5 of the Code of Laws of spection; that under the direction of the United States, which provides the present Secretary of the Treas- that ‘‘no person appointed to the of- ury, Andrew W. Mellon, many hun- fice of Secretary of the Treasury . . . shall be the owner in whole or in dred corporations that are substan- part of any sea vessel,’’ in that he tially owned by him annually make was and is now the owner in whole settlement for their taxes and many or in part of the following sea ves- such corporations have been granted sels: under his direction large tax refunds Registered in Norway: Austvangen, amounting to tens of millions of dol- Nordvangen, Sorvangen, Vestvangen. lars.

2136 IMPEACHMENT POWERS Ch. 14 § 14

OWNERSHIP OF BANK STOCK embrace the following: Preparation of drawings, estimates, specifica- Whereas section 244, chapter 3, tions, etc., for and the superintend- title 12, of the Code of Laws of the ence of the work of constructing, re- United States, provides: building, extending, or repairing ‘‘Sec. 244. Chairman of the board; public buildings; under the super- qualifications of members; vacan- vision of the Supervising Architect cies.—The Secretary of the Treasury and subject to the direction and ap- shall be ex officio chairman of the proval of the Secretary of the Treas- Federal Reserve Board. No member ury the Government of the United of the Federal Reserve Board shall States has spent and will soon spend be an officer or director of any bank, several hundred million dollars in banking institution, trust company, the construction of public buildings. or Federal reserve bank, nor hold The said Andrew W. Mellon is the stock in any bank, banking institu- principal owner and controls the tion, or trust company. . . .’’ Aluminum Co. of America, which That the present Secretary of the produces and markets practically all Treasury, Andrew W. Mellon, is now of the aluminum in the United and has been since-becoming Sec- States used for all purposes. The retary of the Treasury the owner of said Andrew W. Mellon has, while stock in a bank, banking institution, occupying the position as Secretary and trust company in violation of of the Treasury, directly interested this law. himself in the carrying on and promotion of the business of the Alu- WHISKY BUSINESS minum Co. of America by causing to Whereas the said Andrew W. Mel- be published in Room 410 of the lon has held the office of Secretary of Treasury Building of the United the Treasury in violation of section States, located between the United 243 of title 5 of the Code of Laws of States Capitol and the White House, the United States, in that from a magazine known as the Federal March 4, 1921, to October 2, 1928, Architect, published quarterly, which he was interested in and received his carries the pictures of public build- share of the proceeds and profits ings in which aluminum is used in from the sale of distilled whisky, their construction and carries arti- which said whisky was sold as a cles concerning the use of aluminum commodity in trade and commerce. in architecture which suggest how aluminum can be used for different ALUMINUM IN PUBLIC BUILDINGS purposes in the construction of public buildings for the purpose of con- Whereas the said Andrew W. Mel- vincing the architects who draw the lon has further violated the law plans and specifications for public which prohibits the Secretary of the buildings that aluminum can and Treasury from being directly or indi- should be used for certain construc- rectly interested or concerned in the tion work and ornamental purposes. carrying on of business or trade or The use of aluminum in the con- commerce, in that as Secretary of struction of public buildings dis- the Treasury he controls the con- places materials which can be pur- struction and maintenance of public chased on competitive bids, whereas buildings; the Office of the Super- the Aluminum Co. of America holds vising Architect is subject to the di- a monopoly and has no competitors. rection and approval of the Secretary Said magazine is published by em- of the Treasury; the duties per- ployees of the United States Govern- formed by the Supervising Architect ment in the Office of the Supervising

2137 Ch. 14 § 14 DESCHLER’S PRECEDENTS

Architect and distributed to the ar- ried into effect, and the said Andrew chitects of the Nation, many of W. Mellon is financially interested in whom have been or will be employed its success; that his interest in this by the Supervising Architect to draw contract with the Soviet Union de- plans and specifications for public stroys his impartiality as an officer buildings in their local communities. of the United States to enforce the More aluminum is now being used in above-quoted law; his interest in the construction of public buildings, said company, which is engaged in under the direction of the Secretary the business of carrying on trade and of the Treasury, than has ever before commerce, disqualifies him as Sec- been used, as a result of this advan- retary of the Treasury under section tage. 243 of title 5 of the Code of Laws of the United States and makes him MELLON INTEREST IN SOVIET UNION guilty of a high misdemeanor and (RUSSIA) subject to impeachment: Therefore Whereas section 140 of title 19 of be it the Code of Laws of the United Resolved, That the Committee on States provides— the Judiciary is authorized and di- ‘‘Sec. 140. Goods manufactured by rected, as a whole or by sub- convict labor prohibited.—All goods, committee, to investigate the official wares, articles, and merchandise conduct of Andrew W. Mellon, Sec- manufactured wholly or in part in retary of the Treasury, to determine any foreign country by convict labor whether, in its opinion, he has been shall not be entitled to entry at any guilty of any high crime or mis- of the ports of the United States, and demeanor which, in the contempla- the importation thereof is prohibited, tion of the Constitution, requires the and the Secretary of the Treasury is interposition of the constitutional authorized and directed to prescribe powers of the House. Such com- such regulations as may be nec- mittee shall report its findings to the essary for the enforcement of this House together with such resolution provision’’— of impeachment or other recommendation as it deems proper. charges are now being made that Sec. 2. For the purposes of this goods, wares, articles, and merchan- resolution, the committee is author- dise are being transported to the ized to sit and act during the present United States from the Soviet Union Congress at such times and places in (Russia) in violation of this act; the the District of Columbia or else- present Secretary of the Treasury, where, whether or not the House is Andrew W. Mellon, whose duty it is sitting, has recessed, or has ad- to enforce this provision of the law, journed, to hold such hearings, to is one of the principal owners of the employ such experts, and such cler- Koppers Co., a company with re- ical, stenographic, and other assist- sources amounting to $143,379,352, ants, to require the attendance of which is carrying on trade and com- such witnesses and the production of merce in all parts of the world; that such books, papers, and documents, said company during the year 1930 to take such testimony, to have such made a contract with the Soviet printing and binding done, and to Union whereby the Koppers Co. obli- make such expenditures not exceed- gated itself to build coke ovens and ing $5,000, as it deems necessary. steel mills in the Soviet Union aggregating in value $200,000,000, in fur- MR. [JOSEPH W.] BYRNS [of Ten- therance of the Soviet’s 5-year plan; nessee]: Mr. Speaker, I move that the that said contract is now being car- articles just read be referred to the

2138 IMPEACHMENT POWERS Ch. 14 § 14

Committee on the Judiciary, and upon The Clerk read the report, as fol- that motion I demand the previous lows: question. HOUSE OF REPRESENTATIVES—REL- The previous question was ordered. ATIVE TO THE ACTION OF THE COM- ( ) THE SPEAKER: 2 The question is on MITTEE ON THE JUDICIARY WITH the motion of the gentleman from Ten- REFERENCE TO HOUSE RESOLUTION nessee, that the articles be referred to 92 the Committee on the Judiciary. Mr. Sumners of Texas, from the The motion was agreed to.(3) Committee on the Judiciary, submitted the following report (to ac- § 14.2 The House discontinued company H. Res. 143): I am directed by the Committee on by resolution further pro- the Judiciary to submit to the ceedings of impeachment House, as its report to the House, the following resolution adopted by against Secretary of the the Committee on the Judiciary indi- Treasury Andrew Mellon, cating its action with reference to after he had been nominated House Resolution No. 92 heretofore referred by the House to the Com- and confirmed for another mittee on the Judiciary: position and had resigned Whereas Hon. Wright Patman, Member of the House of Representa- his Cabinet post. tives, filed certain impeachment On Feb. 13, 1932, Mr. Hatton charges against Hon. Andrew W. Mellon, Secretary of the Treasury, W. Sumners, of Texas, presented which were referred to this com- House Report No. 444 and House mittee; and Resolution 143, discontinuing pro- Whereas pending the investigation of said charges by said committee, ceedings against Secretary of the and before said investigation had Treasury Mellon: been completed, the said Hon. An- drew W. Mellon was nominated by IMPEACHMENT CHARGES—REPORT the President of the United States FROM COMMITTEE ON THE JUDICIARY for the post of ambassador to the Court of St. James and the said MR. SUMNERS of Texas: Mr. Speaker, nomination was duly confirmed by I offer a report from the Committee on the United States Senate pursuant the Judiciary, and I would like to give to law, and the said Andrew W. Mel- lon has resigned the position of Sec- notice that immediately upon the read- retary of the Treasury: Be it ing of the report I shall move the pre- Resolved by this committee, That vious question. the further consideration of the said THE SPEAKER: (4) The gentleman charges made against the said An- from Texas offers a report, which the drew W. Mellon, as Secretary of the Clerk will read. Treasury, be, and the same are hereby, discontinued.

2. John N. Garner (Tex.). MINORITY VIEWS 3. 75 CONG REC. 1400 72d Cong. 1st We cannot join in the majority Sess. views and findings. While we concur 4. John N. Garner (Tex.). in the conclusions of the majority

2139 Ch. 14 § 14 DESCHLER’S PRECEDENTS

that section 243 of the Revised Stat- by the House or by com- utes, upon which the proceedings herein were based, provides for ac- mittee in the 72d Congress. tion in the nature of an ouster pro- On Jan. 17, 1933, Mr. Louis T. ceeding, it is our view that the Hon. Andrew W. Mellon, the former Sec- McFadden, of Pennsylvania, rose retary of the Treasury, having re- and on his own responsibility as a moved himself from that office, no Member of the House impeached useful purpose would be served by continuing the investigation of the President Hoover as follows: charges filed by the Hon. Wright Patman. We desire to stress that the MR. MCFADDEN: On my own respon- action of the undersigned is based on sibility, as a Member of the House of that reason alone, particularly when Representatives, I impeach Herbert the prohibition contained in said sec- Hoover, President of the United States, tion 243 is not applicable to the of- for high crimes and misdemeanors. fice now held by Mr. Mellon. FIORELLO H. LAGUARDIA. He offered a resolution with a GORDON BROWNING. lengthy preamble, which con- M. C. TARVER. cluded as follows: FRANCIS B. CONDON. Resolved, That the Committee on the MR. SUMNERS of Texas: Mr. Speaker, Judiciary is authorized to investigate I think the resolution is fairly explana- the official conduct of Herbert Hoover, tory of the views held by the different President of the United States, and all members of the committee. No useful matters related thereto, to determine purpose could be served by the con- whether, in the opinion of the said sumption of the usual 40 minutes, so I committee, he has been guilty of any move the previous question. high crime or misdemeanor which, in The previous question was ordered. the contemplation of the Constitution, THE SPEAKER: The question is on requires the interposition of the con- agreeing to the resolution. stitutional powers of the House. Such The resolution was agreed to.(5) committee shall report its findings to the House, together with such resolu- Charges Against President tion of impeachment or other recommendation as it deems proper, in Hoover order that the House of Representa- tives may, if necessary, present its § 14.3 Impeachment of Presi- complaint to the Senate, to the end dent Herbert Hoover was that Herbert Hoover may be tried ac- proposed but not considered cording to the manner prescribed for the trial of the Executive by the Con- 5. 75 CONG. REC. 3850, 72d Cong. 1st stitution and the people be given their Sess. constitutional remedy and be relieved The House Journal (p. 382) for this of their present apprehension that a date indicates that Mr. Sumners criminal may be in office. called up H. Res. 143 which was de- For the purposes of this resolution bated prior to its adoption. the committee is authorized to sit and

2140 IMPEACHMENT POWERS Ch. 14 § 14

act during the present Congress at distinguished from a question of such times and places in the District of personal privilege, could not be Columbia or elsewhere, whether or not presented until a motion or reso- the House is sitting, has recessed, or has adjourned, to hold such hearings, lution was submitted. He declined to employ such experts, and such cler- to recognize Mr. McFadden since ical, stenographic, and other assist- no resolution was presented.(7) ants, to require the attendance of such witnesses and the production of such Charges Against U.S. District books, papers, and documents, to take Judge Lowell such testimony, to have such printing and binding done, and to make such § 14.4 In the 73d Congress the expenditures as it deems necessary. Committee on the Judiciary Mr. Henry T. Rainey, of Illinois, conducted an investigation moved that the resolution be laid into impeachment charges on the table and the House adopt- against District Judge James ed the motion, precluding any de- Lowell and later rec- bate by Mr. McFadden on his res- ommended that further pro- olution of impeachment. ceedings be discontinued. Pending a vote on the motion, On Apr. 26, 1933, Mr. Howard Speaker John N. Garner, of W. Smith, of Virginia, rose to a Texas, stated in response to a par- question of constitutional privilege liamentary inquiry that the lan- and impeached Mr. Lowell, a U.S. guage which had transpired could District Judge for the District of not be expunged from the Con- Massachusetts. He specified the gressional Record by motion but following charges: must be done by unanimous consent since no unparliamentary First. I charge that the said James (6) A. Lowell, having been nominated by language was involved. the President of the United States and On Jan. 18, 1933, Mr. McFad- confirmed by the Senate of the United den rose to state a question of States, duly qualified and commis- privilege, with the intention of im- sioned, and while acting as district peaching President Hoover. In re- judge for the district of Massachusetts, sponse to a point of order, Speak- did on divers and various occasions so abuse the powers of his high office and er Garner held that a question of so misconduct himself as to be guilty of constitutional privilege or a ques- favoritism, oppression, and judicial tion of privilege of the House, as misconduct, whereby he has brought the administration of justice in said 6. 76 CONG. REC. 1965–68, 72d Cong. 2d Sess. 7. Id. at pp. 2041, 2042.

2141 Ch. 14 § 14 DESCHLER’S PRECEDENTS

district in the court of which he is diction thereof for the crime with judge into disrepute by his aforesaid which he is charged, to which he had misconduct and acts, and is guilty of confessed. misbehavior and misconduct, falling Fifth. I charge that the said James under the constitutional provision as A. Lowell did on the said 24th day of ground for impeachment and removal April 1933 willfully, deliberately, and from office. viciously attempt to nullify the oper- Second. I charge that the said James ation of the laws for the punishment of A. Lowell did knowingly and willfully crime of the State of Virginia and violate his oath to support the Con- many other States in the Union, not- stitution in his refusal to comply with withstanding numerous decisions directly to the contrary by the Supreme the provisions of article IV, section 2, Court of the United States, all of which clause 2, of the Constitution of the decisions were brought to the attention United States, wherein it is provided: of the said judge by the attorney gen- A person charged in any State eral of Massachusetts and the Com- with treason, felony, or other crime, monwealth’s attorney of Loudoun who shall flee from justice and be County, Va., at the time of said action. found in another State, shall, on demand of the executive authority of Sixth. I further charge that the said the State from which he fled, be de- James A. Lowell, on the said 24th day livered up, to be removed to the of April 1933, in rendering said deci- State having jurisdiction of the sion did use his judicial position for the crime. unlawful purpose of casting aspersions upon and attempting to bring disre- Third. I charge that the said James pute upon the administration of law in A. Lowell did, on the 24th day of April, the Commonwealth of Virginia and 1933, unlawfully, willfully, and con- various other States in this Union, and trary to well-established law, order the that in so doing he used the following discharge from custody of one George language: Crawford, who had been regularly indicted for first-degree murder in I say this whole thing is absolutely wrong. It goes against my Yankee Loudoun County, Va., had confessed common sense to have a case go on his crime, and whose extradition from trial for 2 or 3 years and then have the State of Massachusetts had, after the whole thing thrown out by the full hearing and investigation, been of- Supreme Court. ficially ordered by Joseph B. Ely, Gov- They say justice is blind. Justice ernor of the State of Massachusetts. should not be as blind as a bat. In this case it would be if a writ of ha- Fourth. I charge that the said James beas corpus were denied. A. Lowell did deliberately and willfully Why should I send a negro back by ordering the release of said George from Boston to Virginia, when I Crawford, unlawfully and contrary to know and everybody knows that the the law in such cases made and pro- Supreme Court will say that the trial is illegal? The only persons who vided, seek to defeat the ends of justice would get any good out of it would and to prevent the said George be the lawyers. Crawford from being duly and regu- Governor Ely in signing the extra- larly tried in the tribunal having juris- dition papers was bound only by the

2142 IMPEACHMENT POWERS Ch. 14 § 14

question of whether the indictment demeanor which in the contemplation from Virginia is in order. But why of the Constitution requires the inter- shouldn’t I, sitting here in this court, position of the constitutional powers of have a different constitutional out- look from the governor who sits on the House. Said committee shall report the case merely to see if the indict- its findings to the House, together with ment satisfies the law in Virginia? such resolution of impeachment or I keep on good terms with Chief other recommendation as it deems Justice Rugg, of the Massachusetts proper. Supreme Court, but I don’t have to Sec. 2. For the purpose of this reso- keep on good terms with the chief justice of Virginia, because I don’t lution the committee is authorized to have to see him. sit and act during the present Con- I’d rather be wrong on my law gress at such times and places in the than give my sanction to legal non- District of Columbia and elsewhere, sense. whether or not the House is sitting, Seventh. I further charge that the has recessed, or has adjourned, to hold said James A. Lowell has been arbi- such hearings, to employ such clerical, trary, capricious, and czarlike in the stenographic, and other assistance, to administration of the duties of his high require the attendance of such wit- office and has been grossly and will- nesses and the production of such fully indifferent to the rights of liti- books, papers, and documents, and to gants in his court, particularly in the take such testimony, to have such case of George Crawford against Frank printing and binding done, and to G. Hale.(8) make such expenditures, not exceeding $5,000, as it deems necessary.(9) The charges were referred to the Committee on the Judiciary. On May 4, 1933, Mr. Smith of- Mr. Smith then offered House fered House Resolution 132, pro- Resolution 120, authorizing an in- viding for payment out of the con- vestigation of such charges, which tingent fund for the expenses of resolution was adopted by the the Committee on the Judiciary House: incurred under House Resolution 120. The resolution was referred Resolved, That the Committee on the Judiciary is authorized and directed, to the Committee on Accounts and as a whole or by subcommittee, to in- was called up by that committee quire into and investigate the official on May 8, when it was adopted by conduct of James A. Lowell, a district the House.(10) judge for the United States District On Feb. 6, 1934, the House Court for the District of Massachu- setts, to determine whether in the agreed to House Resolution 226, opinion of said committee he has been reported by Mr. Gordon Browning, guilty of any high crime or mis- of Tennessee, of the Committee on

8. H. JOUR. 205, 206, 73d Cong. 1st 9. Id. at p. 206. Sess. 10. Id. at pp. 233, 238.

2143 Ch. 14 § 14 DESCHLER’S PRECEDENTS the Judiciary, providing that no mittee took no action on the reso- further proceedings be had under lution. House Resolution 120: During debate on the resolution, Resolved, That no further pro- Mr. Carl E. Mapes, of Michigan, ceedings be had under H. Res. 120, rose to a point of order against agreed to April 26, 1933, providing for the resolution, claiming it was not an investigation of the official conduct privileged because it called for the of James A. Lowell, United States district judge for the district of Massachu- impeachment of various persons setts, and that the Committee on the who were no longer U.S. civil offi- Judiciary be discharged.(11) cers. Speaker Henry T. Rainey, of Illinois, held that the issue pre- Charges Against Federal Re- sented was a constitutional ques- serve Board Members tion upon which the House and not the Chair should pass.(12) § 14.5 After a Member of the House offered a resolution to Charges Against U.S. District impeach various members Judge Molyneaux and former members of the Federal Reserve Board, and § 14.6 Impeachment of U.S. Federal Reserve agents, his District Judge Joseph resolution was referred to Molyneaux was proposed in the Committee on the Judici- the 73d Congress but not ary and not acted upon. acted upon by the House or On May 23, 1933, Mr. Louis T. the Committee on the Judici- McFadden, of Pennsylvania, rose ary, to which the charges to a question of constitutional were referred. privilege and impeached on his On Jan. 22, 1934, Mr. Francis own responsibility Eugene Meyer, H. Shoemaker, of Minnesota, in- former member of the Federal Re- troduced House Resolution 233, serve Board, and a number of authorizing an investigation by other former members, members, the Committee on the Judiciary and Federal Reserve agents. His into the official conduct of Mr. resolution, House Resolution 1458, Molyneaux, a U.S. District Judge was referred to the Committee on for the District of Minnesota, to the Judiciary, pursuant to a mo- determine whether he was guilty tion to refer offered by Mr. Joseph of high crimes or misdemeanors W. Byrns, of Tennessee. The com- 12. H. JOUR. 298–302, 73d Cong. 1st 11. H. JOUR. 137, 73d Cong. 2d Sess. Sess.

2144 IMPEACHMENT POWERS Ch. 14 § 14 requiring the ‘‘interposition of the tion of ‘‘high constitutional privi- constitutional powers of the lege’’ and impeached Samuel House.’’ The resolution was re- Alschuler, U.S. Circuit Judge for ferred to the Committee on the the seventh circuit. He discussed Judiciary.(13) his charges (principally that the The Committee on the Judiciary accused improperly favored a liti- having taken no action on his res- gant before his court) and offered olution, Mr. Shoemaker rose to a House Resolution 214, authorizing an investigation by the Committee question of constitutional privilege on the Judiciary. The resolution on Apr. 20, 1934, and impeached was referred on motion of Mr. Judge Molyneaux on his own re- Hatton W. Sumners, of Texas, to sponsibility. He offered charges the Committee on the Judici- and a resolution (H. Res. 344) im- ary.(15) peaching the judge, which resolu- On Aug. 15, 1935, Mr. Sumners tion was referred on motion to the reported adversely (H. Rept. No. Committee on the Judiciary. The 1802) on House Resolution 214, by resolution charged corruption in direction of the Committee on the the appointment of receivers, in Judiciary. Mr. Sumners moved to the disposal of estates, inter- lay the resolution on the table, ference with justice, and mental and the House agreed to the mo- senility, and dishonesty. The com- tion.(16) mittee took no action thereon.(14) Charges Against Secretary of Charges Against U.S. Circuit Labor Perkins Judge Alschuler § 14.8 In the 76th Congress, a § 14.7 A Member having im- resolution was offered impeached Judge Samuel peaching Secretary of Labor Alschuler, a Circuit Judge Frances Perkins and two for the seventh circuit, the other officials of the Depart- Committee on the Judiciary ment of Labor, and was re- reported adversely on the ferred on motion to the Com- resolution authorizing an in- mittee on the Judiciary. vestigation, and the resolu- On Jan. 24, 1939,(17) a Member tion was laid on the table. impeached certain officials of the

On May 7, 1935, Mr. Everett M. 15. H. JOUR. 668–71, 74th Cong. 1st Dirksen, of Illinois, rose to a ques- Sess. 16. Id. at p. 1093. 13. H. JOUR. 87, 73d Cong. 2d Sess. 17. 84 CONG. REC. 702–11, 76th Cong. 14. Id. at p. 423. 1st Sess.

2145 Ch. 14 § 14 DESCHLER’S PRECEDENTS executive branch and introduced a or affiliated with an organization, asso- resolution authorizing an inves- ciation, society, or group that advises, advocates, or teaches the overthrow by tigation: force or violence of the Government of IMPEACHMENT OF FRANCES PERKINS, the United States, or the unlawful damage, injury, or destruction of prop- SECRETARY OF LABOR; JAMES L. erty, or sabotage; and that the afore- HOUGHTELING; AND GERARD D. said Frances Perkins, James L. REILLY Houghteling, and Gerard D. Reilly MR. [J. PARNELL] THOMAS of New have unlawfully conspired together to Jersey: Mr. Speaker, on my own re- release said alien after his arrest on sponsibility as a Member of the House his own recognizance, without requir- of Representatives, I impeach Frances ing a bond of not less than $500; and Perkins, Secretary of Labor of the that said Frances Perkins, James L. United States; James L. Houghteling, Houghteling, and Gerard D. Reilly and Commissioner of the Immigration and each of them have committed many Naturalization Service of the Depart- overt acts to effect the object of said ment of Labor; and Gerard D. Reilly, conspiracy, all in violation of the Con- Solicitor of the Department of Labor, stitution of the United States in such as civil officers of the United States, cases made and provided. for high crimes and misdemeanors in And I further charge that Frances violation of the Constitution and laws Perkins, James L. Houghteling, and of the United States, and I charge that Gerard D. Reilly, as civil officers of the the aforesaid Frances Perkins, James United States, were and are guilty of L. Houghteling, and Gerard D. Reilly, high crimes and misdemeanors by unlawfully conspiring together to commit as civil officers of the United States, offenses against the United States and were and are guilty of high crimes and to defraud the United States by caus- misdemeanors in office in manner and ing the Strecker case to be appealed to form as follows, to wit: That they did the Supreme Court of the United willfully, unlawfully, and feloniously States, and by failing, neglecting, and conspire, confederate, and agree to- refusing to enforce section 137, United gether from on or about September 1, States Code, against other aliens ille- 1937, to and including this date, to gally within the United States contrary commit offenses against the United to the Constitution of the United States and to defraud the United States and the statutes of the United States by failing, neglecting, and refus- States in such cases made and pro- ing to enforce the immigration laws of vided. the United States, including to wit sec- In support of the foregoing charges tion 137, title 8, United States Code, and impeachment, I now present a res- and section 156, title 8, United States olution setting forth specifically, facts, Code, against Alfred Renton Bryant circumstances, and allegations with a Bridges, alias Harry Renton Bridges, view to their consideration by a com- alias Harry Dorgan, alias Canfield, mittee of the House and by the House alias Rossi, an alien, who advises, ad- itself to determine their truth or fal- vocates, or teaches and is a member of sity.

2146 IMPEACHMENT POWERS Ch. 14 § 14

Mr. Speaker, I offer the following official conduct of Frances Perkins, resolution and ask that it be consid- Secretary of Labor; James L. ered at this time. Houghteling, Commissioner of Immi- (18) gration and Naturalization Service, THE SPEAKER: The Clerk will re- Department of Labor; and Gerard D. port the resolution. Reilly, Solicitor, Department of The Clerk read as follows: Labor, to determine whether, in its opinion, they have been guilty of any HOUSE RESOLUTION 67 high crimes or misdemeanors which, in the contemplation of the Constitu- Whereas Frances Perkins, of New tion, requires the interposition of the York, was nominated by the Presi- constitutional powers of the House. dent of the United States, confirmed Such committee shall report its find- by the Senate of the United States, ings to the House, together with duly qualified and commissioned on such articles of impeachment as the March 4, 1933, and has since March facts may warrant. 4, 1933, without further nominations or confirmations, acted as Secretary For the purposes of this resolution of Labor and as a civil officer of the the committee is authorized and di- United States. rected to sit and act, during the present session of Congress, at such Whereas James L. Houghteling, of times and places in the District of Illinois, was nominated by the Presi- Columbia, or elsewhere, whether or dent of the United States, confirmed not the House is sitting, has re- by the Senate of the United States, cessed, or has adjourned; to hold duly qualified and commissioned on hearings; to employ such experts and August 4, 1937, as Commissioner of such clerical, stenographic and other the Immigration and Naturalization assistance; and to require the at- Service of the Department of Labor tendance of such witnesses and the and has since August 4, 1937, with- production of such books, papers, out further nominations or confirma- and documents; and to take such tes- tions, acted as Commissioner of the timony and to have such printing Immigration and Naturalization and binding done; and to make such Service of the Department of Labor expenditures not exceeding $10,000, and as a civil officer of the United as it deems necessary. States. Whereas Gerard D. Reilly, of Mas- The resolution was referred as sachusetts, was nominated by the follows: President of the United States, confirmed by the Senate of the United MR. [SAM] RAYBURN [of Texas]: Mr. States, duly qualified and commis- Speaker, I move that the resolution be sioned on August 10, 1937, as Solic- referred to the Committee on the Judi- itor of the Department of Labor, and ciary of the House and upon that I de- has since August 10, 1937, without sire to say just a word. A great many further nominations or confirma- suggestions have been made as to what tions, acted as Solicitor of the De- should be done with this resolution, partment of Labor and as a civil offi- but I think this would be the orderly cer of the United States. procedure so that the facts may be de- Resolved, That the Committee on veloped. The resolution will come out the Judiciary be and is hereby au- of that committee or remain in it ac- thorized and directed, as a whole or cording to the testimony adduced. by subcommittee, to investigate the I therefore move the previous question on my motion to refer, Mr. Speak- 18. William B. Bankhead (Ala.). er.

2147 Ch. 14 § 14 DESCHLER’S PRECEDENTS

The previous question was ordered. Charges Against U.S. District The motion was agreed to. Judges Johnson and Watson § 14.9 The Committee on the § 14.10 The House authorized Judiciary agreed unani- the Committee on the Judici- mously to report adversely ary to investigate allegations the resolution urging an in- of impeachable offenses vestigation of Secretary of charged against U.S. District Labor Frances Perkins and Court Judges Johnson and the House agreed to a motion Watson but no final report to lay the resolution on the was submitted. table. On Jan. 24, 1944, Mr. Hatton On Mar. 24, 1939,(19) charges of W. Sumners, of Texas, introduced impeachment against Secretary of House Resolution 406 authorizing Labor Perkins were finally and an investigation by the Committee adversely disposed of: on the Judiciary into the conduct of U.S. District Court Judges Al- IMPEACHMENT PROCEEDINGS—FRANCES bert Johnson and Albert Watson PERKINS from Pennsylvania. The resolution MR. [SAM] HOBBS [of Alabama]: Mr. was referred to the Committee on Speaker, by direction of the Committee the Judiciary. House Resolution on the Judiciary I present a privileged 407, also introduced by Mr. Sum- report upon House Resolution 67, ners and providing for the ex- which I send to the desk. penses of the committee in con- ( ) THE SPEAKER: 20 The Clerk will re- ducting such an investigation, was port the resolution. referred to the Committee on the The Clerk read House Resolution 67. Judiciary.(1) MR. HOBBS: Mr. Speaker, this is a On Jan. 26, 1944, Mr. Sumners unanimous report from the Committee on the Judiciary adversing this resolu- called up by direction of the Com- tion. I move to lay the resolution on mittee on the Judiciary House the table. Resolution 406, authorizing the THE SPEAKER: The question is on the investigation and the House motion of the gentleman from Alabama agreed thereto.(2) to lay the resolution on the table. Parliamentarian’s Note: Exten- The motion was agreed to. sive hearings, presided over by Mr. Estes Kefauver, of Tennessee, 19. 84 CONG. REC. 3273, 76th Cong. 1st Sess. 1. H. JOUR. 46, 78th Cong. 2d Sess. 20. William B. Bankhead (Ala.). 2. Id. at p. 57.

2148 IMPEACHMENT POWERS Ch. 14 § 14 were held relative to the conduct the Judiciary from the fur- of Judge Johnson. The sub- ther consideration of a reso- committee report recommended lution impeaching President impeachment based on evidence of Harry Truman but did not corrupt practices and acts includ- gain the requisite number of ing corrupt appointment to court signatures. offices. Judge Johnson having resigned, the Committee on the Ju- On June 17, 1952, Mr. John C. diciary discontinued the pro- Schafer, of Wisconsin, announced ceedings. that he was filing a petition to discharge the Committee on the Charges Against President Judiciary from the further consid- Truman eration of House Resolution 614, impeaching President Truman: (4) § 14.11 In the 82d Congress, a MR. SCHAFER: Mr. Speaker, on April resolution proposing an in- 28 of this year I introduced House Res- quiry as to whether Presi- olution 614, to impeach Harry S. Tru- dent Harry Truman should man, President of the United States, of be impeached was referred high crimes and misdemeanors in of- to the Committee on the Ju- fice. This resolution was referred to the diciary, which took no action Committee on the Judiciary, which committee has failed to take action thereon. thereon. On Apr. 23, 1952,(3) a resolution Thirty legislative days having now relating to impeachment was re- elapsed since introduction of this reso- ferred to the Committee on the lution, I today have placed on the Judiciary, which took no action Clerk’s desk a petition to discharge the committee from further consideration thereon: of the resolution. By Mr. [George H.] Bender [of In my judgment, developments since Ohio]: I introduced the Resolution April 28 H. Res. 607. Resolution creating a have immeasurably enlarged and select committee to inquire and report strengthened the case for impeachment to the House whether Harry S. Tru- and have added new urgency for such man, President of the United States, action by this House. shall be impeached; to the Committee First. Since the introduction of this on the Judiciary. resolution, the United States Supreme Court, by a 6-to-3 vote, has held that § 14.12 A petition was filed to in his seizure of the steel mills Harry discharge the Committee on S. Truman, President of the United

3. 98 CONG. REC. 4325, 82d Cong. 2d 4. 98 CONG. REC. 7424, 82d Cong. 2d Sess. Sess.

2149 Ch. 14 § 14 DESCHLER’S PRECEDENTS

States, exceeded his authority and Rule XXVII clause 4, House Rules powers, violated the Constitution of and Manual § 908 (1973). the United States, and flouted the expressed will and intent of the Con- Charges Against Judges gress—and, in so finding, the Court gave unprecedented warnings against Murrah, Chandler, and the threat to freedom and constitu- Bohanon tional government implicit in his act. Second. Despite the President’s tech- § 14.13 A resolution author- nical compliance with the finding of izing an investigation in the the Court, prior to the Court decision 89th Congress into the con- he reasserted his claim to the powers duct of three federal judges then in question, and subsequent to was referred to the Com- that decision he has contemptuously called into question ‘‘the intention of mittee on Rules but not the Court’s majority’’ and contemp- acted on. tuously attributed the limits set on the On Feb. 22, 1966, Mr. H. R. President’s powers not to Congress, or Gross, of Iowa, introduced House to the Court, or to the Constitution, Resolution 739, authorizing the but to ‘‘the Court’s majority.’’ Third. The Court, in its finding in Committee on the Judiciary to in- the steel case, emphasized not only the quire into and investigate the con- unconstitutionality of the Presidential duct of Alfred Murrah, Chief seizure but also stressed his failure to Judge of the 10th Circuit, Stephen utilize and exhaust existing and avail- Chandler, District Judge, Western able legal resources for dealing with District of Oklahoma, and Luther the situation, including the Taft-Hart- Bohanon, District Judge, Eastern, ley law. Northern, and Western Districts Fourth. The President’s failure and refusal to utilize and exhaust existing of Oklahoma, in order to deter- and available legal resources for deal- mine whether any of the three ing with the emergency has persisted judges had been guilty of high since the Court decision and in spite of crimes or misdemeanors. The res- clear and unmistakable evidence of the olution was referred to the Com- will and intent of Congress given in re- mittee on Rules.(5) sponse to his latest request for special legislation authorizing seizure or other Mr. Gross stated the purpose of special procedures. the resolution as follows: The discharge petition, No. 14, Mr. Segal, Judge John Biggs, Jr., the was not signed by a majority of chairman of the judicial conference committee on court administration, the Members of the House and was therefore not eligible for con- 5. 112 CONG. REC. 3665, 89th Cong. 2d sideration in the House under Sess. 2150 IMPEACHMENT POWERS Ch. 14 § 14 and Mr. Joseph Borkin, Washington ment, the courts, or the Congress attorney and author of the book, ‘‘The would initiate or suggest a proper legal Corrupt Judge,’’ were in agreement investigation to clear the air and put that impeachment is the only remedy an end to this outrageous situation in available today for action against judi- the judiciary in the 10th circuit. cial misconduct. There has been no effective action Both Mr. Borkin and the chairman taken, or even started. Therefore, I am of the subcommittee emphasized the today instituting the only action avail- serious problem that has arisen in able to try to get to the bottom of this. Oklahoma where the Judicial Council I have introduced a House resolution of the 10th Judicial Circuit made an authorizing and directing the House attempt to bar Judge Stephen S. Chan- Committee on the Judiciary to inves- dler from handling cases because it tigate the conduct of the three Federal was stated he was ‘‘either unwilling or judges in Oklahoma involved in this unable’’ to perform his judicial func- controversy. Upon its finding of fact, tions adequately. the House Judiciary Committee would be empowered to institute impeach- Mr. Borkin, a man with an impres- ment proceedings or make any other sive background in the study of the recommendations it deems proper. problems of corruption and misconduct The committee would also be empow- in the judiciary, pointed out that Judge ered to require the attendance of wit- Chandler, in return, has made serious nesses and the production of such charges of attempted bribery and other books, papers, and documents—includ- misconduct against two other judges— ing financial statements, contracts, Alfred P. Murrah, chief judge, 10th and bank accounts—as it deems nec- Circuit, U.S. Court of Appeals, and Lu- essary. ther Bohanon, district judge, U.S. Dis- The resolution in no way establishes trict Court for the Eastern, Northern, the guilt of the principals involved. It and Western Districts of Oklahoma. is necessary to the launching of an in- Mr. Borkin stressed that this dispute vestigation for the purpose of deter- in Oklahoma has been an upsetting mining the facts essential to an intel- factor in the Federal courts in Okla- ligent conclusion and eliminating the homa since 1962, and he declared that cloud now hanging over the Federal ju- these charges should not be permitted diciary.(6) to stand. He emphasized that there can be no compromise short of a full The Committee on Rules took investigation to clear the judges or to no action on the resolution. force their removal. I agree with Mr. Borkin that great Charges Against Associate Su- damage has been done because the preme Court Justice Douglas courts, the executive branch, and the Congress have taken no effective steps § 14.14 When the Minority to clear up this scandalous situation. I Leader criticized the conduct have waited patiently for months, and I have hoped that the Justice Depart- 6. Id. at p. 3653.

2151 Ch. 14 § 14 DESCHLER’S PRECEDENTS

of Associate Justice William yielded time to Mr. Andrew Ja- O. Douglas of the U.S. Su- cobs, Jr., of Indiana, as follows: preme Court during a special MR. JACOBS: Mr. Speaker, will the order speech in the 91st Con- gentleman yield for a three-sentence gress and suggested the cre- statement? ation of a select committee to MR. WYMAN: I yield to the gentleman from Indiana. investigate such conduct to MR. JACOBS: Mr. Speaker, the gen- determine whether impeach- tleman from Michigan has stated pub- ment was warranted, an- licly that he favors impeachment of other Member announced on Justice Douglas. He, therefore, has a duty to this the floor that he was intro- House and this country to file a resolu- ducing a resolution of im- tion of impeachment. peachment; the resolution Since he refuses to do so and since was referred to the Com- he raises grave questions, the answers mittee on the Judiciary. to which I do not know, but every American is entitled to know, I intro- On Apr. 15, 1970, Minority duce at this time the resolution of im- Leader Gerald R. Ford, of Michi- peachment in order that a proper and gan, took the floor for a special dignified inquiry into this matter order speech in which he criticized might be held. the conduct of Associate Justice At this point Mr. Jacobs intro- Douglas of the U.S. Supreme duced the resolution by placing it Court. Mr. Ford suggested that a in the hopper at the Clerk’s desk. select committee of the House be THE SPEAKER PRO TEMPORE: (8) The created to investigate such con- gentleman from New Hampshire has duct in order to determine wheth- the floor. er impeachment proceedings MR. WYMAN: I did not yield for that might be warranted.(7) purpose. Mr. Louis C. Wyman, of New THE SPEAKER PRO TEMPORE: The gentleman from Indiana has intro- Hampshire, then took the floor duced a resolution.(9) under a special order speech to discuss the same subject. He Mr. Jacobs’ resolution, House Resolution 920, which was re- 7. 116 CONG. REC. 11912–17, 91st ferred to the Committee on the Cong. 2d Sess. Mr. Ford discussed Judiciary (10) declared: the standard for impeachable offenses and concluded in part that 8. Charles M. Price (Ill.). such an offense was ‘‘whatever a ma- 9. 116 CONG. REC. 11920, 91st Cong. 2d jority of the House of Representa- Sess. tives considers [it] to be at a given 10. Id. at p. 11942. For a similar resolu- moment in history.’’ Id. at p. 11913. tion proposed in the 83d Congress,

2152 IMPEACHMENT POWERS Ch. 14 § 14

Resolved, That William O. Douglas, Code (5 U.S.C. 16) prescribes the fol- Associate Justice of the Supreme Court lowing form of oath which was taken of the United States be impeached [for] and sworn to by William Orville Doug- high crimes and misdemeanors and las prior to his accession to incum- misbehavior in office. bency on the United States Supreme Court: Other resolutions, all of which called for the creation of a select I, William Orville Douglas, do solemnly swear that I will support and committee to conduct an inves- defend the Constitution of the tigation and to determine whether United States against all enemies, foreign and domestic; that I will bear impeachment proceedings were true faith and allegiance to the warranted, were referred to the same; that I take this obligation Committee on Rules. For example, freely, without any mental reservation or purpose of evasion, and that House Resolution 922, introduced I will well and faithfully discharge by Mr. Wyman, with 24 cospon- the duties of the office on which I am sors, read as follows: (11) about to enter. So help me God. and Whereas, the Constitution of the Whereas, integrity and objectivity in United States provides in Article III, respect to issues and causes to be pre- Section 1, that Justices of the Supreme sented to the United States Supreme Court shall hold office only ‘‘during Court for final determination make it good behavior’’, and mandatory that Members thereof re- Whereas, the Constitution also pro- frain from public advocacy of a position vides in Article II, Section 4, that Jus- on any matter that may come before tices of the Supreme Court shall be re- the High Court lest public confidence moved from Office on Impeachment for in this constitutionally co-equal judi- High Crimes and Misdemeanors, and cial body be undermined, and Whereas the Constitution also pro- Whereas, the said William Orville vides in Article VI that Justices of the Douglas has, on frequent occasions in Supreme Court shall be bound by published writings, speeches, lectures ‘‘Oath or Affirmation to support this and statements, declared a personal Constitution’’ and the United States position on issues to come before the United States Supreme Court indic- but not acted upon, impeaching Jus- ative of a prejudiced and nonjudicial tice Douglas, see H. Res. 290, intro- attitude incompatible with good behav- duced June 17, 1953, 99 CONG. REC. ior and contrary to the requirements of 6760, 83d Cong. 1st Sess. judicial decorum obligatory upon the 11. H. Res. 922 was referred to the Com- Federal judiciary in general and mem- mittee on Rules. 116 CONG. REC. bers of the United States Supreme 12130, 12131, 91st Cong. 2d Sess., Court in particular, and Apr. 16, 1970. Whereas, by the aforementioned con- See also H. Res. 923, H. Res. 924, duct and writings, the said William H. Res. 925, H. Res. 926, H. Res. Orville Douglas has established him- 927, H. Res. 928, 91st Cong. 2d Sess. self before the public, including liti-

2153 Ch. 14 § 14 DESCHLER’S PRECEDENTS

gants whose lives, rights and future People march and protest but they are seriously affected by decisions of are not heard (ibid, p. 88). the Court of which the said William Where there is a persistent sense Orville Douglas is a member, as a par- of futility, there is violence; and that is where we are today (ibid, p. 56). tisan advocate and not as a judge, and The two parties have become al- Whereas, by indicating in advance of most indistinguishable; and each is Supreme Court decisions, on the basis controlled by the Establishment. The of declared, printed, or quoted convic- modern day dissenters and pro- tions, how he would decide matters in testers are functioning as the loyal controversy pending and to become opposition functions in England. pending before the Court of which he They are the mounting voice of political opposition to the status quo, is a member, the said William Orville calling for revolutionary changes in Douglas has committed the high mis- our institutions. Yet the powers-that- demeanor of undermining the integrity be faintly echo Adolph Hitler (ibid, p. of the highest constitutional Court in 57). America, and has willfully and delib- Yet American protesters need not erately undermined public confidence be submissive. A speaker who resists in the said Court as an institution, and arrest is acting as a free man (ibid, p. 6). Whereas, contrary to his Oath of Of- We must realize that today’s Es- fice as well as patently in conflict with tablishment is the new George III. the Canons of Ethics for the Judiciary Whether it will continue to adhere to of the American Bar Association, the his tactics, we do not know. If it said William Orville Douglas neverthe- does, the redress, honored in tradi- less on February 19, 1970, did publish tion, is also revolution (ibid, p. 95). and publicly distribute throughout the and thus willfully and deliberately United States, statements encouraging, fanned the fires of unrest, rebellion, and aggravating and inciting violence, an- revolution in the United States, and archy and civil unrest in the form of a Whereas, in the April 1970 issue of book entitled ‘‘Points of Rebellion’’ in Evergreen Magazine, the said William which the said William Orville Doug- Orville Douglas for pay did, while an las, all the while an incumbent on the incumbent on the United States Su- Highest Court of last resort in the preme Court, publish an article enti- United States, stated, among other things, that: tled Redress and Revolution, appearing on page 41 of said issue immediately But where grievances pile high following a malicious caricature of the and most of the elected spokesmen represent the Establishment, vio- President of the United States as lence may be the only effective re- George III, as well as photographs of sponse. (pp. 88–89, ‘‘Points of Rebel- nudes engaging in various acts of sex- lion,’’ Random House, Inc., February ual intercourse, in which article the 19, 1970, William O. Douglas.) said William Orville Douglas again The special interests that control wrote for pay that: government use its powers to favor themselves and to perpetuate re- George III was the symbol against gimes of oppression, exploitation, which our Founders made a revolu- and discrimination against the many tion now considered bright and glo- (ibid, p. 92). rious. . . . We must realize that to-

2154 IMPEACHMENT POWERS Ch. 14 § 14

day’s Establishment is the new violation of the Logan Act, sponsored George III. Whether it will continue and financed a ‘‘Pacem in Terris II to adhere to his tactics, we do not Convocation’’ at Geneva, Switzerland, know. If it does, the redress, honored in tradition, is also Revolution. May 28–31, 1967, to discuss foreign affairs and U.S. foreign policy including and the ‘‘Case of Vietnam’’ and the ‘‘Case of Whereas, the said William Orville Germany’’, to which Ho Chi Minh was Douglas, prepared, authored, and re- publicly invited, and all while the ceived payment for an article which United States was in the midst of war appeared in the March 1969 issue of in which Communists directed by the the magazine, Avant Garde, published same Ho Chi Minh were killing Amer- ican boys fighting to give South Viet- by Ralph Ginzburg, previously con- nam the independence and freedom victed of sending obscene literature from aggression we had promised that through the United States Mails, (see Nation, and from this same Center 383 U.S. 463) at a time when the said there were paid to the said William Ralph Ginzburg was actively pursuing Orville Douglas fees of $500 per day an appeal from his conviction upon a for Seminars and Articles, and charge of malicious libel before the Su- Whereas, paid activity of this type preme Court of the United States, yet by a sitting Justice of the Supreme nevertheless the said William Orville Court of the United States is contrary Douglas, as a sitting member of the to his Oath of Office to uphold the Supreme Court of the United States, United States Constitution, violative knowing full well his own financial re- the Canons of Ethics of the American lationship with this litigant before the Bar Association and is believed to con- Court, sat in judgment on the stitute misdemeanors of the most fun- Ginzburg appeal, all in clear violation damental type in the context in which and conflict with his Oath of Office, that term appears in the United States the Canons of Judicial Ethics, and Fed- Constitution (Article II, Section 4) as eral law (396 U.S. 1049), and well as failing to constitute ‘‘good be- Whereas, while an incumbent on the havior’’ as that term appears in the United States Supreme Court the said Constitution (Article III, Section 1), William Orville Douglas for hire has upon which the tenure of all Federal served and is reported to still serve as judges is expressly conditioned, and a Director and as Chairman of the Ex- Whereas, moneys paid to the said ecutive Committee of the Center for William Orville Douglas from and by the Study of Democratic Institutions in the aforementioned Center are at least Santa Barbara, California, a politically as follows: 1962, $900; 1963, $800; oriented action organization which, 1965, $1,000; 1966, $1,000; 1968, among other things, has organized na- $1,100; 1969, $2,000; all during tenure tional conferences designed to seek de- on the United States Supreme Court, tente with the Soviet Union and openly and all while a Director on a Board of encouraged student radicalism, and Directors that meets (and met) bian- Whereas, the said Center for the nually to determine the general poli- Study of Democratic Institutions, in cies of the Center, and

2155 Ch. 14 § 14 DESCHLER’S PRECEDENTS

Whereas, the said William Orville was and is a member, the tenure of the Douglas, contrary to his sworn obliga- said William Orville Douglas with the tion to refrain therefrom and in viola- Parvin Foundation being reported to tion of the Canons of Ethics, has re- have existed since 1960 in the capacity peatedly engaged in political activity of President, and resulting in the re- while an incumbent of the High Court, ceipt by the said William Orville Doug- evidenced in part by his authorization las from the Parvin Foundation of fees for the use of his name in a recent po- aggregating at least $85,000, all while litical fund-raising letter, has contin- a member of the United States Su- ued public advocacy of the recognition preme Court, and all while referring to of Red China by the United States, has Internal Revenue Service investigation publicly criticized the military posture of the Parvin Foundation while a Jus- of the United States, has authored for tice of the United States Supreme pay several articles on subjects pat- Court as a ‘‘manufactured case’’ in- ently related to causes pending or to be tended to force him to leave the bench pending before the United States Su- all while he was still President and Di- rector of the said Foundation and was preme Court in Playboy Magazine on earning a $12,000 annual salary in such subjects as invasions of privacy those posts, a patent conflict of inter- and civil liberties, and most recently est, and has expressed in Brazil public criticism Whereas, it has been repeatedly al- of United States foreign policy while on leged that the said William Orville a visit to Brazil in 1969, plainly de- Douglas in his position as President of signed to undermine public confidence the Parvin Foundation did in fact give in South and Latin American countries the said Foundation tax advice, with in the motives and objectives of the particular reference to matters known foreign policy of the United States in by the said William Orville Douglas at Latin America, and the time to have been under investiga- Whereas, in addition to the fore- tion by the United States Internal Rev- going, and while a sitting Justice on enue Service, all contrary to the basic the Supreme Court of the United legal and judicial requirement that a States, the said William Orville Doug- Supreme Court Justice may not give las has charged, been paid and re- legal advice, and particularly not for a ceived $12,000 per annum as President fee, and and Director of the Parvin Foundation Whereas, the said William Orville from 1960 to 1969, which Foundation Douglas has, from time to time over received substantial income from gam- the past ten years, had dealings with, bling interests in the Freemont Casino involved himself with, and may actu- at Las Vegas, Nevada, as well as the ally have received fees and travel ex- Flamingo at the same location, accom- penses, either directly or indirectly, panied by innumerable conflicts of in- from known criminals, gamblers, and terest and overlapping financial ma- gangsters or their representatives and neuvers frequently involved in litiga- associates, for services, both within the tion the ultimate appeal from which United States and abroad, and could only be to the Supreme Court of Whereas, the foregoing conduct on which the said William Orville Douglas the part of the said William Orville

2156 IMPEACHMENT POWERS Ch. 14 § 14

Douglas while a Justice of the Su- (1) The Speaker of the House shall preme Court is incompatible with his within fourteen days hereafter appoint constitutional obligation to refrain a select committee of six Members of from non-judicial activity of a patently the House, equally divided between the unethical nature, and majority and the minority parties and Whereas, the foregoing conduct and shall designate one member to serve as other activities on the part of the said chairman, which select committee shall William Orville Douglas while a sitting proceed to investigate and determine Justice on the United States Supreme whether Associate Justice William Court, establishes that the said Wil- Orville Douglas has committed high liam Orville Douglas in the conduct of crimes and misdemeanors as that his solemn judicial responsibilities has phrase appears in the Constitution, Ar- become a prejudiced advocate of pre- ticle II, Section 4, or has, while an in- determined position on matters in con- cumbent, failed to be of the good be- troversy or to become in controversy havior upon which his Commission as before the High Court to the dem- said Justice is conditioned by the Con- onstrated detriment of American juris- stitution, Article III, Section 1. The se- prudence, and lect committee shall report to the Whereas, from the foregoing, and House the results of its investigation, without reference to whatever addi- together with its recommendations on tional relevant information may be de- this resolution for impeachment of the veloped through investigation under said William Orville Douglas not later oath, it appears that the said William than ninety days following the designa- Orville Douglas, among other things, tion of its full membership by the has sat in judgment on a case involv- Speaker. ing a party from whom the said Wil- (2) For the purpose of carrying out liam Orville Douglas to his knowledge this resolution the committee, or any received financial gain, as well as that subcommittee thereof, is authorized to the said William Orville Douglas for sit and act during the present Con- personal financial gain, while a mem- gress at such times and places within ber of the United States Supreme the United States whether the House Court, has encouraged violence to alter is sitting, has recessed, or has ad- the present form of government of the journed, to hold such hearings, and to United States of America, and has re- require by subpena or otherwise, the ceived and accepted substantial finan- attendance and testimony of such wit- cial compensation from various sources nesses and the production of such for various duties incompatible with books, records, correspondence, memo- his judicial position and constitutional randums, papers, and documents as it obligation, and has publicly and re- deems necessary. Subpenas may be peatedly, both orally and in writings, issued under the signature of the declared himself a partisan on issues chairman of the committee or any pending or likely to become pending member of the committee designated before the Court of which he is a mem- by him, and may be served by any per- ber: Now, therefore, be it son designated by such chairman or Resolved, That— member.

2157 Ch. 14 § 14 DESCHLER’S PRECEDENTS

Parliamentarian’s Note: On Apr. scope of its authority was set out 24, 1970, Chairman William M. on the first page of the report: Colmer, of Mississippi, of the I. AUTHORITY Committee on Rules stated that pursuant to the statement of On April 21, 1970, the Committee on the Judiciary adopted a resolution to Emanuel Celler, of New York, authorize the appointment of a Special Chairman of the Committee on Subcommittee on H. Res. 920, a resolu- the Judiciary, that the latter com- tion impeaching William O. Douglas, mittee would hold hearings and Associate Justice of the Supreme Court of the United States, of high crimes take action on the impeachment and misdemeanors in office. Pursuant within 60 days, he would not pro- to this resolution, the following mem- gram for consideration by the bers were appointed: Emanuel Celler Committee on Rules the resolu- (New York), Chairman; Byron G. Rog- tions creating a select committee ers (Colorado); Jack Brooks (Texas); William M. McCulloch (Ohio); and Ed- to study the charges of impeach- ward Hutchinson (Michigan). ment. The Special Subcommittee on H. Res. 920 is appointed and operates § 14.15 A subcommittee of the under the Rules of the House of Rep- Committee on the Judiciary resentatives. Rule XI, 13(f) empowers investigated charges of im- the Committee on the Judiciary to act peachable offenses against on all proposed legislation, messages, Associate Justice William O. petitions, memorials, or other matters relating to ‘‘. . . Federal courts and Douglas and issued an in- judges.’’ In the 91st Congress, Rule XI terim report. has been implemented by H. Res. 93, On June 20, 1970, the special February 5, 1969. H. Res. 93 authorizes the Committee on the Judiciary, subcommittee of the Committee acting as a whole or by subcommittee, on the Judiciary on House Resolu- to conduct full and complete investigation 920, impeaching Associate tions and studies on the matters com- Justice Douglas, issued an interim ing within its jurisdiction, specifically report on the progress of its inves- ‘‘. . . (4) relating to judicial proceedings and the administration of (12) tigation of the charges. The cre- Federal courts and personnel thereof, ation of the subcommittee and including local courts in territories and possessions’’. 12. First report by the special sub- H. Res. 93 empowers the Committee committee on H. Res. 920 of the to issue subpenas, over the signature Committee on the Judiciary, com- of the Chairman of the Committee or mittee print, 91st Cong; 2d Sess., any Member of the Committee des- June 20, 1970. ignated by him. Subpenas issued by

2158 IMPEACHMENT POWERS Ch. 14 § 14

the Committee may be served by any resolution impeaching William O. person designated by the Chairman or Douglas, Associate Justice of the Su- such designated Member. preme Court of the United States, of On April 28, 1970, the Special Sub- high crimes and misdemeanors in of- committee on H. Res. 920 held its or- fice, hereby is authorized and directed ganization meeting, appointed staff, to obtain and inspect from the Internal and adopted procedures to be applied Revenue Service any and all materials during the investigation. Although the and information relevant to its inves- power to issue subpenas is available, tigation in the files of the Internal and the Subcommittee is prepared to Revenue Service, including tax re- use subpenas if necessary to carry out turns, investigative reports, or other this investigation, thus far all potential documents, that the Special Sub- witnesses have been cooperative and it committee to consider H. Res. 920 de- has not been necessary to employ this investigatory tool. The Special Sub- termines to be within the scope of H. committee operates under procedures Res. 920 and the various related reso- established in paragraph 27, Rules of lutions that have been introduced into Committee Procedure, of Rule XI of the the House of Representatives. House of Representatives. These proce- The Special Subcommittee on H. dures will be followed until additional Res. 920 is authorized to make such rules are adopted, which, on the basis requests to the Internal Revenue Serv- of precedent in other impeachment ice as the Subcommittee determines to proceedings, are determined by the be appropriate, and the Subcommittee Special Subcommittee to be appro- is authorized to amend its requests to priate. designate such additional persons, tax- The subcommittee held no hear- payers, tax returns, investigative re- ings but gathered information on ports, and other documents as the Sub- committee determines to be appro- the various charges contained in priate during the course of this inves- House Resolution 922. As stated tigation. in the report, the subcommittee The Special Subcommittee on H. requested inspection of tax re- Res. 920 may designate agents to ex- turns of Justice Douglas. Pursu- amine and receive information from ant to advice by the Internal Rev- the Internal Revenue Service. enue Service that a special resolu- This resolution specifically author- tion of the full committee would izes and directs the Special Sub- be required, as well as an execu- committee to obtain and inspect from the Internal Revenue Service the docu- tive order by the President, the ments and other file materials de- committee adopted the following scribed in the letter dated May 12, resolution on May 26, 1970: 1970, from Chairman Emanuel Celler to the Honorable Randolph Thrower. RESOLUTION FOR SPECIAL SUB- The tax returns for the following tax- COMMITTEE TO CONSIDER HOUSE payers, and the returns for such addi- RESOLUTION 920 tional taxpayers as the Subcommittee Resolved, That the Special Sub- subsequently may request, are in- committee to consider H. Res. 920, a cluded in this resolution:

2159 Ch. 14 § 14 DESCHLER’S PRECEDENTS

Associate Justice William O. Doug- Supreme Court of the United States. las, Supreme Court of the United Whenever a return is open to inspec- States, Washington, D. C. 20036. tion by such Committee or sub- Albert Parvin, 1900 Avenue of the committee, a copy thereof shall, upon Stars, Suite 1790, Century City, Calif. 90067. request, be furnished to such Com- Albert Parvin Foundation, c/o Ar- mittee or subcommittee. Such inspec- nold & Porter, 1229–19th Street, N. tion shall be in accordance and upon W., Washington, D.C. 20036. compliance with the rules and regula- The Center for the Study of Demo- tions prescribed by the Secretary of the cratic Institutions, Box 4068, Santa Treasury in Treasury Decisions 6132 Barbara, Calif. 93103. and 6133, relating to the inspection of Fund for the Republic, 136 East 57th Street, New York, N.Y. 10022. returns by committees of the Congress, Parvin-Dohrmann Corp., (Now approved by the President on May 3, Recrion Corp.), 120 N. Robertson 1955.(14) (13) Blvd., Los Angeles, Calif. 90048. The subcommittee rec- The President subsequently ommended in its first report that issued the following executive the Committee on the Judiciary order: authorize an additional 60 days

INSPECTION OF TAX RETURNS BY THE for the subcommittee to complete (15) COMMITTEE ON THE JUDICIARY, its investigation. HOUSE OF REPRESENTATIVES § 14.16 In its final report on its By virtue of the authority vested in investigation into charges of me by sections 55(a) and 1604(c) of the Internal Revenue Code of 1939, as impeachment against Asso- amended (26 U.S.C. (1952 ea.) 55(a), ciate Justice William O. 1604(c)), and by sections 6103(a) and Douglas, a subcommittee of 6106 of the Internal Revenue Code of the Committee on the Judici- 1954, as amended (26 U.S.C. 6103(a), ary concluded that a federal 6106), it is hereby ordered that any income, excess-profits, estate, gift, unem- judge could be impeached (1) ployment, or excise tax return, includ- for judicial conduct which is ing all reports, documents, or other criminal or which is a seri- factual data relating thereto, shall, ous dereliction from public during the Ninety-first Congress, be duty, and (2) for nonjudicial open to inspection by the Committee conduct which is criminal; on the Judiciary, House of Representa- tives, or any duly authorized sub- the subcommittee rec- committee thereof, in connection with ommended that the evidence its consideration of House Resolution 920, a resolution impeaching William 14. Exec. Order No. 11535, issued June O. Douglas, Associate Justice of the 12, 1970, subcommittee report at p. 19. 13. Subcommittee report at pp. 18, 19. 15. Subcommittee report at pp. 25, 26.

2160 IMPEACHMENT POWERS Ch. 14 § 14

against Justice Douglas did The report discussed concepts of not warrant impeachment. impeachment and grounds for im- On Sept. 17, 1970, the Special peachment of federal civil officers Subcommittee on House Resolu- and of federal judges in par- tion 920 of the Committee on the ticular. The report concluded as Judiciary, which subcommittee follows on the grounds for im- had been created by the com- peachment of a federal judge: mittee to investigate and report Reconciliation of the differences be- on charges of impeachment tween the concept that a judge has a against Associate Justice Douglas right to his office during ‘‘good behavior’’ and the concept that the legisla- of the Supreme Court, submitted ture has a duty to remove him if his its final report to the com- conduct constitutes a ‘‘misdemeanor’’ is mittee.(16) facilitated by distinguishing conduct The report cited the 60-day ex- that occurs in connection with the extension granted the subcommittee ercise of his judicial office from conduct that is non-judicially connected. Such a by the Committee on the Judici- distinction permits recognition that the ary on June 24, 1970, to complete content of the word ‘‘misdemeanor’’ for its investigation. The report sum- conduct that occurs in the course of ex- marized the further investigation ercise of the power of the judicial office undertaken during the 60-day pe- includes a broader spectrum of action than is the case when nonjudicial ac- riod and the additional requests tivities are involved. for information from the Depart- When such a distinction is made, the ment of State, the Central Intel- two concepts on the necessity for judi- ligence Agency, and various indi- cial conduct to be criminal in nature to viduals.(17) be subject to impeachment becomes defined and may be reconciled under the 16. Final report by the Special Sub- overriding requirement that to be a committee on H. Res. 920 of the ‘‘misdemeanor,’’ and hence impeach- Committee on the Judiciary, com- able, conduct must amount to a serious mittee print, Committee on the Judi- dereliction of an obligation owed to so- ciary, 91st Cong. 2d Sess., Sept. 17, ciety. 1970. To facilitate exposition, the two con- 17. The subcommittee issued on Aug. 11, cepts may be summarized as follows: 1970, a special subcommittee publi- Both concepts must satisfy the re- cation entitled ‘‘Legal Materials on quirements of Article II, Section 4, Impeachment,’’ containing briefs on that the challenged activity must the impeachment of Justice Douglas, constitute ‘‘. . . Treason, Bribery or High Crimes and Misdemeanors.’’ information from the Library of Con- Both concepts would allow a judge gress, and relevant extracts from to be impeached for acts which occur Hinds’ and Cannon’s Precedents. in the exercise of judicial office that

2161 Ch. 14 § 14 DESCHLER’S PRECEDENTS

(1) involve criminal conduct in viola- Concept I tion of law, or (2) that involve serious dereliction from public duty, but 1. Criminal conduct. not necessarily in violation of posi- Concept II tive statutory law or forbidden by the common law. . . . When such 1. Criminal conduct. misbehavior occurs in connection 2. Serious dereliction from public with the federal office, actual crimi- duty. nal conduct should not be a requisite to impeachment of a judge or any Chapter III, Disposition of Charges other federal official. While such con- sets forth the Special Subcommittee’s duct need not be criminal, it none- analysis of the charges that involve ac- theless must be sufficiently serious tivities of Associate Justice William O. to be offenses [sic] against good mor- Douglas. Under this analysis it is not als and injurious to the social body. necessary for the members of the Judi- Both concepts would allow a judge to be impeached for conduct not con- ciary Committee to choose between nected with the duties and respon- Concept I and II.(18) sibilities of the judicial office which involve criminal acts in violation of The subcommittee’s rec- law. ommendation to the full com- The two concepts differ only with mittee read as follows: respect to impeachability of judicial behavior not connected with the du- IV. RECOMMENDATIONS OF SPECIAL ties and responsibilities of the judi- SUBCOMMITTEE TO JUDICIARY COM- cial office. Concept 2 would define ‘‘misdemeanor’’ to permit impeach- MITTEE ment for serious derelictions of pub- 1. It is not necessary for the mem- lic duty but not necessarily viola- bers of the Judiciary Committee to tions of statutory or common law. take a position on either of the con- In summary, an outline of the two cepts of impeachment that are dis- concepts would look this way: cussed in Chapter II. A judge may be impeached for ‘‘. . . 2. Intensive investigation of the Spe- Treason, Bribery, or High Crimes or cial Subcommittee has not disclosed Misdemeanors.’’ creditable evidence that would warrant A. Behavior, connected with judicial preparation of charges on any accept- office or exercise of judicial power. able concept of an impeachable of- Concept I fense.(19) 1. Criminal conduct. EMANUEL CELLER, 2. Serious dereliction from public BYRON G. ROGERS, duty. JACK BROOKS.

Concept II 18. Special subcommittee report at pp. 1. Criminal conduct. 37–39. For the entire portion of the 2. Serious dereliction from public subcommittee report entitled ‘‘Con- duty. cepts of Impeachment’’, see § 3.13, B. Behavior not connected with the supra. duties and responsibilities of the judi- 19. Special subcommittee report at p. cial office. 349.

2162 IMPEACHMENT POWERS Ch. 14 § 14

The report included minority only to the question of impeachment. views of Mr. Edward Hutchinson, Admittedly no investigation has been of Michigan, stating (1) that the undertaken to determine whether some of the Justice’s activities, if not portion of the report on concepts impeachable, seem so improper as to of impeachment was mere dicta merit congressional censure or other under the circumstances and (2) official criticism by the House. There is that the investigation was incom- considerable precedent for censure or plete and should have been fur- other official rebuke even though a ther pursued, not only as to im- particular activity, while improper, was found not impeachable. This Sub- peachment for improper conduct committee, however, did not inves- but also as to other action such as tigate with the thoroughness requisite censure or official rebuke: for judging questionable activities The report contains a chapter on the short of impeachment. The majority Concepts of Impeachment. At the same concludes that it finds no grounds for time, it takes the position that it is un- impeachment and stops there. In my necessary to choose among the con- opinion, it should have pursued the ( ) cepts mentioned because it finds no matter further. 20 impeachable offense under any. It is The Committee on the Judiciary evident, therefore, that while a discus- discontinued further proceedings sion of the theory of impeachment is interesting, it is unnecessary to a reso- against Justice Douglas, and the lution of the case as the Subcommittee matter was not further considered views it. This chapter on Concepts is by the House.(1) nothing more than dicta under the circumstances. Certainly the Sub- Charges Against Vice Presi- committee should not even indirectly dent Agnew narrow the power of the House to impeach through a recitation of two or three theories and a very apparent § 14.17 The Speaker laid before choice of one over the others, while at the House in the 93d Con- the same time asserting that no choice is necessary. The Subcommittee’s re- 20. Id. at pp. 351, 352. port adopts the view that a Federal 1. For remarks on the final sub- judge cannot be impeached unless he is committee report and the Judiciary found to have committed a crime, or a Committee’s failure to act on the serious indiscretion in his judicially final report, see 116 CONG. REC. connected activities. Although it is 43147, 43148, 91st Cong. 2d Sess., purely dicta, inclusion of this chapter Dec. 21, 1970 (remarks of Mr. David in the report may be mischievous since W. Dennis [Ind.]). For the minority it might unjustifiably restrict the scope views on the report of Mr. Hutch- of further investigation. inson, printed in the Record, see 116 The Subcommittee’s report, which is CONG. REC. 43486, 91st Cong. 2d called a final report, addresses itself Sess., Dec. 22, 1970.

2163 Ch. 14 § 14 DESCHLER’S PRECEDENTS

gress a communication from After the most careful study, my counsel have advised me that the Vice President Spiro Agnew Constitution bars a criminal pro- requesting the House to ini- ceeding of any kind—federal or state, county or town—against a President tiate an investigation of or Vice President while he holds of- charges which might ‘‘as- fice. sume the character of im- Accordingly, I cannot acquiesce in any criminal proceeding being lodged peachable offenses,’’ made against me in Maryland or else- against him during an inves- where. And I cannot look to any such tigation by a U.S. Attorney, proceeding for vindication. In these circumstances, I believe, and offering the House full it is the right and duty of the Vice cooperation in such a House President to turn to the House. A closely parallel precedent so sug- investigation. No action was gests. taken on the request. Almost a century and a half ago, (2) Vice President Calhoun was beset On Sept. 25, 1973, Speaker with charges of improper participa- Carl Albert, of Oklahoma, laid be- tion in the profits of an Army con- fore the House a communication tract made while he had been Sec- retary of War. On December 29, from Vice President Agnew re- 1826, he addressed to your Body a questing that the House inves- communication whose eloquent lan- tigate certain charges brought guage I can better quote than rival: against him by a U.S. Attorney: ‘‘An imperious sense of duty, and a sacred regard to the honor of the sta- The Speaker laid before the House tion which I occupy, compel me to the following communication from the approach your body in its high char- Vice President of the United States: acter of grand inquest of the nation. THE VICE PRESIDENT, ‘‘Charges have been made against Washington, September 25, 1973. me of the most serious nature, and Hon. CARL ALBERT, which, if true ought to degrade me Speaker of the House of Representa- from the high station in which I tives, the House of Representa- have been placed by the choice of my tives, Washington, D.C. fellow-citizens, and to consign my DEAR MR. SPEAKER: I respectfully name to perpetual infamy. request that the House of Represent- ‘‘In claiming the investigation of atives undertake a full inquiry into the House, I am sensible that, under the charges which have apparently our free and happy institutions, the been made against me in the course conduct of public servants is a fair of an investigation by the United subject of the closest scrutiny and States Attorney for the District of the freest remarks, and that a firm Maryland. and faithful discharge of duty af- This request is made in the dual fords, ordinarily, ample protection interests of preserving the Constitu- against political attacks; but, when tional stature of my Office and ac- such attacks assume the character of complishing my personal vindication. impeachable offenses, and become, in some degree, official, by being placed among the public records, an officer 2. 119 CONG. REC. 31368, 93d Cong. 1st thus assailed, however base the in- Sess. strument used, if conscious of inno-

2164 IMPEACHMENT POWERS Ch. 14 § 14 cence, can look for refuge only to the jury could fairly consider this matter Hall of the immediate Representa- on the merits. tives of the People.’’ I therefore respectfully call upon Vice President Calhoun concluded the House to discharge its Constitu- his communication with a ‘‘chal- tional obligation. lenge’’ to ‘‘the freest investigation of I shall, of course, cooperate fully. the House, as the only means effec- As I have said before, I have nothing tively to repel this premeditated at- to hide. I have directed my counsel tack.’’ Your Body responded at once to deliver forthwith to the Clerk of by establishing a select committee, the House all of my original records which subpoenaed witnesses and of which copies have previously been documents, held exhaustive hear- furnished to the United States Attor- ings, and submitted a Report on Feb- ney. If there is any other way in ruary 13, 1827. The Report, exon- which I can be of aid, I am wholly at erating the Vice President of any the disposal of the House. wrongdoing, was laid on the table I am confident that, like Vice (together with minority views even President Calhoun, I shall be vindi- more strongly in his favor) and the cated by the House. accusations were thereby put to rest. Respectfully yours Like my predecessor Calhoun I am SPIRO T. AGNEW. the subject of public attacks that (3) may ‘‘assume the character of im- On Sept. 26, 1973, Majority peachable offenses,’’ and thus re- Leader Thomas P. O’Neill, Jr., of quire investigation by the House as Massachusetts, made an an- the repository of ‘‘the sole Power of Impeachment’’ and the ‘‘grand in- nouncement in relation to Vice quest of the nation.’’ No investiga- President Agnew’s request for an tion in any other forum could either substitute for the investigation by investigation into possible im- the House contemplated by Article I, peachable offenses against him: Section 2, Clause 5 of the Constitu- tion or lay to rest in a timely and de- (Mr. O’Neill asked and was given finitive manner the unfounded permission to address the House for 1 charges whose currency unavoidably minute and to revise and extend his jeopardizes the functions of my Of- remarks.) fice. MR. O’NEILL: Mr. Speaker, I rise at The wisdom of the Framers of the Constitution in making the House this time merely to make an announce- the only proper agency to investigate ment to the House that in the press the conduct of a President or Vice conference the Speaker made the fol- President has been borne out by re- lowing statement: cent events. Since the Maryland investigation became a matter of pub- The Vice President’s letter relates lic knowledge some seven weeks ago, to matters before the courts. In view there has been a constant and ever- of that fact, I, as Speaker, will not broadening stream of rumors, accu- take any action on the letter at this sations and speculations aimed at time. me. I regret to say that the source, The House took no action on the in many instances, can have been only the prosecutors themselves. Vice President’s request, although The result has been so to foul the atmosphere that no grand or petit 3. Id. at p. 31453.

2165 Ch. 14 § 14 DESCHLER’S PRECEDENTS resolutions were introduced on cer under the United States. The Sept. 26, 1973, calling for inves- committee had investigated tigation of the charges referred to whether Vice President Colfax by the Vice President, such had, during his prior term as charges to be investigated by the Speaker of the House, been in- Committee on the Judiciary or by volved in bribes of Members. As a select committee.(4) reported in 3 Hinds’ Precedents Parliamentarian’s Note: The re- § 2510, the committee concluded quest cited by the Vice President as follows in its report to the in his letter was made by Vice House: President John Calhoun in 1826 But we are to consider, taking the and is discussed at 3 Hinds’ harshest construction of the evidence, Precedents § 1736. On that occa- whether the receipt of a bribe by a per- sion, the alleged charges related son who afterwards becomes a civil of- to the Vice President’s former ten- ficer of the United States, even while ure as Secretary of War. The com- holding another official position, is an act upon which an impeachment can munication was referred on mo- be grounded to subject him to removal tion to a select committee which from an office which he afterwards investigated the charges and sub- holds. To elucidate this we first turn to sequently reported to the House the precedents. that no impropriety had been Your committee find that in all cases found in the Vice President’s of impeachment or attempted impeachment under our Constitution there is former conduct as a civil officer no instance where the accusation was under the United States. The re- not in regard to an act done or omitted port of the select committee was to be done while the officer was in of- ordered to lie on the table and the fice. In every case it has been here- House took no further action tofore considered material that the ar- thereon. ticles of impeachment should allege in substance that, being such officer, and In 1873, however, the Com- while in the exercise of the duties of mittee on the Judiciary reported his office, the accused committed the that a civil officer, in that case acts of alleged inculpation. Vice President Schuyler Colfax, Vice President Agnew resigned could not be impeached for of- his office as Vice President on fenses allegedly committed prior Oct. 10, 1973. A resolution of in- to his term of office as a civil offi- quiry (H. Res. 572), referred to 4. See H. Res. 566, H. Res. 567, H. Res. the Committee on the Judiciary 569, H. Res. 570, referred to the on Oct. 1, 1973, and directing the Committee on Rules. Attorney General to inform the

2166 IMPEACHMENT POWERS Ch. 14 § 15

House of facts relating to Vice Committee Print, 93d Cong. 2d Sess., President Agnew’s conduct, was Jan. 1974. discharged by unanimous consent on Oct. 10, 1973, and laid on the table.(5) Introduction of Impeachment Charges Against the Presi- dent § 15. Impeachment Pro- § 15.1 Various resolutions were ceedings Against Presi- introduced in the 93d Con- dent Nixon gress, first session, relating to the impeachment of Presi- Cross Reference dent Richard M. Nixon, some Portions of the final report of the Com- directly calling for his cen- mittee on the Judiciary, pursuant to sure or impeachment and its investigation into the conduct of the some calling for an investiga- President, relating to grounds for Pres- idential impeachment and forms of ar- tion by the Committee on the ticles of impeachment, see § § 3.3, 3.7, Judiciary or by a select com- 3.8, supra. mittee; the former were re- Collateral References ferred to the Committee on the Judiciary and the latter Debate on Articles of Impeachment, were referred to the Com- Hearings of the Committee on the Ju- diciary pursuant to House Resolution mittee on Rules. 803, 93d Cong. 2d Sess., July 24, 25, On Oct. 23, 1973, resolutions 26, 27, 29, and 30, 1974. calling for the impeachment of Impeachment of Richard M. Nixon, President Nixon or for investiga- President of the United States, Report tions towards that end were intro- of the Committee on the Judiciary, H. duced in the House by their being REPT. No. 93-1305, 93d Cong. 2d Sess., placed in the hopper pursuant to Aug. 20, 1974, printed in full in the Rule XXII clause 4. The resolu- Congressional Record, 120 CONG. REC. 29219-361, 93d Cong. 2d Sess., Aug. tions were referred as follows: 20, 1974. By Mr. Long of Maryland: Impeachment, Selected Materials, Com- H. Con. Res. 365. Concurrent resolu- mittee on the Judiciary, H. Doc. No. tion of censureship without prejudice 93-7, 93d Cong. 1st Sess., Oct. 1973. to impeachment; to the Committee on Impeachment, Selected Materials on Pro- the Judiciary. cedure, Committee on the Judiciary, By Ms. Abzug: 5. 119 CONG. REC. 33687, 93d Cong. 1st H. Res. 625. Resolution impeaching Sess. Richard M. Nixon, President of the

2167 Ch. 14 § 15 DESCHLER’S PRECEDENTS

United States, for high crimes and H. Res. 632. Resolution to appoint a misdemeanors; to the Committee on Special Prosecutor; to the Committee the Judiciary. on the Judiciary. . . . By Mr. Ashley: By Mr. McCloskey: H. Res. 626. Resolution directing the H. Res. 634. Resolution of inquiry; to Committee on the Judiciary to inves- the Committee on the Judiciary. tigate whether there are grounds for H. Res. 635. Resolution for the im- the impeachment of Richard M. Nixon; peachment of Richard M. Nixon; to the to the Committee on Rules. Committee on the Judiciary. By Mr. Bingham: By Mr. Mazzoli: H. Res. 627. Resolution directing the H. Res. 636. Resolution: an inquiry Committee on the Judiciary to inquire into the existence of grounds for the into and investigate whether grounds impeachment of Richard M. Nixon, exist for the impeachment of Richard President of the United States; to the M. Nixon; to the Committee on Rules. Committee on Rules. By Mr. Burton (for himself, Ms. By Mr. Milford: Abzug, Mr. Anderson of Cali- H. Res. 637. Resolution providing for fornia, Mr. Aspin, Mr. Bergland, the establishment of an Investigative Mr. Bingham, Mr. Brasco, Mr. Committee to investigate alleged Presi- Brown of California, Mr. Boland, dential misconduct; to the Committee Mr. Brademas, Mrs. Chisholm, on Rules. Mr. Culver, Mr. Conyers, Mr. Dellums, Mr. Drinan, Mr. By Mr. Mitchell of Maryland (for Eckhardt, Mr. Edwards of Cali- himself, Mr. Burton, and Mr. fornia, Mr. Evans of Colorado, Fauntroy): Mr. Fascell, Mr. Fauntroy, Mr. H. Res. 638. Resolution impeaching Foley, Mr. William D. Ford, Mr. Richard M. Nixon, President of the Fraser, Mr. Giaimo, and Ms. United States, of high crimes and mis- Grasso): demeanors; to the Committee on the H. Res. 628. Resolution directing the Judiciary.(6) Committee on the Judiciary to inquire into and investigate whether grounds 6. 119 CONG. REC. 34873, 93d Cong. 1st exist for the impeachment of Richard Sess. M. Nixon; to the Committee on Rules. The first resolution in the 93d ... Congress calling for President Nix- By Mr. Hechler of West Virginia: on’s impeachment was introduced by Mr. Robert F. Drinan (Mass.), on H. Res. 631. Resolution that Richard July 31, 1973, H. Res. 513, 93d M. Nixon, President of the United Cong. 1st Sess. (placed in hopper States, is impeached of high crimes and referred to Committee on the and misdemeanors; to the Committee Judiciary). on the Judiciary. In the 92d Congress, second ses- By Mrs. Heckler of Massachusetts: sion, resolutions were introduced im-

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Parliamentarian’s Note: The mittee reported and called resolutions were introduced fol- up as privileged a subse- lowing the President’s dismissal of quent resolution specifically Special Prosecutor Cox, of the Wa- mandating an impeachment tergate Special Prosecution Force investigation and continuing investigating Presidential cam- the availability of funds, in paign activities, and the resignation of Attorney General Richard- order to confirm the delega- son.(7) tion of authority from the House to that committee to Authority for Judiciary Com- conduct the investigation. mittee Investigation On Feb. 6, 1974, Peter W. Ro- dino, Jr., of New Jersey, Chair- § 15.2 Although the House had man of the Committee on the Ju- adopted a resolution author- diciary, called up for immediate izing the Committee on the consideration House Resolution Judiciary, to which had been 803, authorizing the committee to referred resolutions im- investigate the sufficiency of peaching President Richard grounds for the impeachment of M. Nixon, to conduct inves- President Nixon, which resolution tigations (with subpena had been reported by the com- power) within its jurisdiction mittee on Feb. 1, 1974. as such jurisdiction was de- The resolution read as follows: fined in Rule XI clause 13, H. RES. 803 and although the House had Resolved, That the Committee on the adopted a resolution in- Judiciary, acting as a whole or by any tended to fund expenses of subcommittee thereof appointed by the chairman for the purposes hereof and the impeachment inquiry by in accordance with the rules of the the committee, the com- committee, is authorized and directed to investigate fully and completely peaching the President for his con- whether sufficient grounds exist for duct of the Vietnam conflict. See H. the House of Representatives to exer- Res. 976 and H. Res. 989, 92d Cong. cise its constitutional power to im- 2d Sess. peach Richard M. Nixon, President of the United States of America. The 7. Comments were delivered in the committee shall report to the House of House on Oct. 23, 1973, on actions of Representatives such resolutions, arti- the President. See, for example, the cles of impeachment, or other rec- comments of Majority Leader Thom- ommendations as it deems proper. as P. O’Neill, Jr. (Mass.), at 119 Sec. 2. (a) For the purpose of making CONG. REC. 34819, 93d Cong. 1st such investigation, the committee is Sess. authorized to require—

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(1) by subpena or otherwise— photographs, reproductions, recordings, (A) the attendance and testimony of tapes, transcripts, printouts, data com- any person (including at a taking of a pilations from which information can deposition by counsel for the com- be obtained (translated if necessary, mittee); and through detection devices into reason- (B) the production of such things; ably usable form), tangible objects, and and other things of any kind. (2) by interrogatory, the furnishing Sec. 3. For the purpose of making of such information; as it deems nec- such investigation, the committee, and essary to such investigation. any subcommittee thereof, are author- (b) Such authority of the committee ized to sit and act, without regard to may be exercised— clause 31 of rule XI of the Rules of the (1) by the chairman and the ranking House of Representatives, during the minority member acting jointly, or, if present Congress at such times and either declines to act, by the other act- places within or without the United ing alone, except that in the event ei- States, whether the House is meeting, ther so declines, either shall have the has recessed, or has adjourned, and to right to refer to the committee for deci- hold such hearings, as it deems nec- sion the question whether such author- essary. ity shall be so exercised and the com- Sec. 4. Any funds made available to mittee shall be convened promptly to the Committee on the Judiciary under render that decision; or House Resolution 702 of the Ninety- (2) by the committee acting as a third Congress, adopted November 15, whole or by subcommittee. Subpenas 1973, or made available for the pur- and interrogatories so authorized may pose hereafter, may be expended for be issued over the signature of the the purpose of carrying out the inves- chairman, or ranking minority mem- tigation authorized and directed by ber, or any member designated by ei- this resolution. ther of them, and may be served by Mr. Rodino and Mr. Edward any person designated by the chair- Hutchinson, of Michigan, the man, or ranking minority member, or any member designated by either of ranking minority member of the them. The chairman, or ranking minor- Committee on the Jucliciary, ex- ity member, or any member designated plained the purpose of the resolu- by either of them (or, with respect to tion, which had been adopted any deposition, answer to interrog- unanimously by the committee, as atory, or affidavit, any person author- follows: ized by law to administer oaths) may administer oaths to any witness. For MR. RODINO: Mr. Speaker, I yield the purposes of this section, ‘‘things’’ myself such time as I may consume. includes, without limitation, books, Mr. Speaker, the English statesman records, correspondence, logs, journals, Edmund Burke said, in addressing an memorandums, papers, documents, important constitutional question, writings, drawings, graphs, charts, more than 200 years ago:

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We stand in a situation very hon- that the House of Representatives orable to ourselves and very useful adopt this resolution. It is a necessary to our country, if we do not abuse or step if we are to meet our obligations. abandon the trust that is placed in us. ... MR. HUTCHINSON: Mr. Speaker, the We stand in such a position now, first section of this resolution author- and—whatever the result—we are izes and directs your Judiciary Com- going to be just, and honorable, and mittee to investigate fully whether suf- worthy of the public trust. ficient grounds exist to impeach the Our responsibility in this is clear. President of the United States. This The Constitution says, in article I; sec- constitutes the first explicit and formal tion 2, clause 5: action in the whole House to authorize The House of Representatives, such an inquiry. shall have the sole power of im- The last section of the resolution peachment. validates the use by the committee of A number of impeachment resolu- that million dollars allotted to it last tions were introduced by Members of November for purposes of the impeach- the House in the last session of the ment inquiry. Members will recall that Congress. They were referred to the the million dollar resolution made no Judiciary Committee by the Speaker. reference to the impeachment inquiry but merely allotted that sum of money We have reached the point when it is to the committee to be expended on important that the House explicitly matters within its jurisdiction. All confirm our responsibility under the Members of the House understood its Constitution. intended purpose. We are asking the House of Rep- But the rule of the House defining resentatives, by this resolution, to au- the jurisdiction of committees does not thorize and direct the Committee on place jurisdiction over impeachment the Judiciary to investigate the con- matters in the Judiciary Committee. In duct of the President of the United fact, it does not place such jurisdiction States, to determine whether or not anywhere. So this resolution vests ju- evidence exists that the President is risdiction in the committee over this responsible for any acts that in the particular impeachment matter, and it contemplation of the Constitution are ratifies the authority of the committee grounds for impeachment, and if such to expend for the purpose those funds evidence exists, whether or not it is allocated to it last November, as well sufficient to require the House to exer- as whatever additional funds may be cise its constitutional powers. hereafter authorized.8 As part of that resolution, we are asking the House to give the Judiciary Parliamentarian’s Note: Until Committee the power of subpena in its the adoption of House Resolution investigations. 803, the Committee on the Judici- Such a resolution has always been passed by the House. The committee 8. 120 CONG. REC. 2349–51, 93d Cong. has voted unanimously to recommend 2d Sess.

2171 Ch. 14 § 15 DESCHLER’S PRECEDENTS ary had been conducting an inves- part for use in conducting an im- tigation into the charges of impeachment inquiry in relation to peachment against President the President.(9) Nixon under its general investiga- It was considered necessary for tory authority, granted by the the House to specifically vest the House on Feb. 28, 1973 (H. Res. Committee on the Judiciary with 74). The committee had hired spe- the investigatory and subpena cial counsel for the impeachment power to conduct the impeach- inquiry on Dec. 20, 1973, and had ment investigation and to specifi- authorized the chairman to issue cally provide for payment of re- subpenas in relation to the in- sultant expenses from the contin- quiry on Oct. 30, 1973. House gent fund of the House.(10) Resolution 74 authorized the As discussed in section 6, supra, Committee on the Judiciary to House Resolution 803 was privi- conduct investigations, and to leged, since reported by the com- issue subpenas during such inves- mittee to which resolutions of im- tigations, within its jurisdiction peachment had been referred and ‘‘as set forth in clause 13 of rule since incidental to consideration of XI of the Rules of the House of the impeachment question, al- Representatives.’’ though resolutions providing for That clause did not specifically funding from the contingent fund include impeachments within the of the House are normally only jurisdiction of the Committee on 9. See H. Res. 702, 93d Cong. 1st Sess., the Judiciary. Nov. 15, 1973. The House had provided for the 10. On Apr. 29, 1974, subsequent to the payment, from the contingent adoption of H. Res. 803, the House fund, of further expenses of the adopted H. Res. 1027, authorizing Committee on the Judiciary, in further funds from the contingent conducting investigations, fol- fund for the expenses of the impeachment inquiry and other inves- lowing the introduction and refer- tigations within the jurisdiction of ral to the committee of various the Committee on the Judiciary. The resolutions proposing the im- report on the resolution, from the peachment of President Nixon. Committee on House Administration Debate on one such resolution, (H. REPT. NO. 93–1009) included a House Resolution 702, indicated statement by Mr. Rodino on the status of the impeachment inquiry and that the additional funds for the on the funds required for expenses investigations of the Committee and salaries of the impeachment in- on the Judiciary were intended in quiry staff.

2172 IMPEACHMENT POWERS Ch. 14 § 15 privileged when called up by the work product of the inquiry Committee on House Administra- staff.(11) tion, and resolutions authorizing investigations are normally only Determining Grounds for Pres- privileged when called up by the idential Impeachment Committee on Rules. § 15.4 During the inquiry into Preserving Confidentiality of charges against President Inquiry Materials Richard M. Nixon by the Committee on the Judiciary, § 15.3 The Committee on the the impeachment inquiry Judiciary adopted Proce- staff reported to the com- dures preserving the con- mittee on the constitutional fidentiality of impeachment grounds for Presidential im- inquiry materials. peachment, as drawn from On Feb. 22, 1974, the Com- the historical origins of im- mittee on the Judiciary unani- peachment and the American mously adopted procedures gov- impeachment cases. erning the confidentiality of the On Feb. 22, 1974, Peter W. Ro- materials gathered in the im- dino, Jr., of New Jersey, Chair- peachment inquiry into the con- man of the Committee on the Ju- duct of President Richard Nixon. diciary, made available a report The first set of procedures, enti- by the inquiry staff on the conduct tled ‘‘Procedures for Handling Im- of President Nixon. The report, peachment Inquiry Material,’’ lim- entitled ‘‘Constitutional Grounds ited access to such materials to for Presidential Impeachment,’’ the chairman, ranking minority summarized the historical origins member, special counsel, and spe- and constitutional bases for im- cial counsel to the minority of the peachment and chronicled the committee, until the actual pres- American impeachment cases. entation of evidence at hearings. The report, printed as a com- Confidentiality was to be strictly mittee print, did not necessarily preserved. reflect the views of the committee The second set of procedures, or its members, but was entirely a entitled ‘‘Rules for the Impeach- staff report. The staff concluded, ment Inquiry Staff,’’ provided for in reviewing the issue whether security and nondisclosure of im- 11. For the text of the rules, see § 6.9, peachment inquiry materials and supra.

2173 Ch. 14 § 15 DESCHLER’S PRECEDENTS impeachable offenses were re- A. Allegations concerning domestic quired to be criminal or indictable surveillance activities conducted by or offenses, that such was not the at the direction of the White House. case under the English and Amer- B. Allegations concerning intel- (12) ligence activities conducted by or at ican impeachment precedents. the direction of the White House for the purpose of the Presidential election Status Reports of 1972. C. Allegations concerning the Water- § 15.5 During the impeachment gate break-in and related activities, in- inquiry involving President cluding alleged efforts by persons in Richard M. Nixon, the in- the White House and others to ‘‘cover quiry staff of the Committee up’’ such activities and others. on the Judiciary reported to D. Allegations concerning improprieties in connection with the personal the committee on the status finances of the President. of its investigation. E. Allegations concerning efforts by On Mar. 1, 1974, the staff for the White House to use agencies of the the impeachment inquiry reported executive branch for political purposes, and alleged White House involvement to the Committee on the Judiciary with election campaign contributions. on the status of its investigative F. Allegations concerning other mis- work (summarized in the commit- conduct.(13) tee’s final report) with respect to specified allegations: Presenting Evidence and Ex- 12. For the text of the report, see the ap- amining Witnesses pendix to this chapter, infra. The conclusion of the staff report § 15.6 In the Nixon impeach- was included in the final report of ment inquiry, the Committee the Committee on the Judiciary recommending impeachment of the 13. H. REPT. NO. 93–1305, at p. 8, Com- President. (H. REPT. NO. 93–1305, by mittee on the Judiciary, 93d Cong. the Committee on the Judiciary.) See 2d Sess., reported Aug. 20, 1974. 120 CONG. REC. 29220, 29221, 93d On May 23, 1974, the House au- Cong. 2d Sess., Aug. 20, 1974. thorized by resolution the printing of The minority views included in the 2,000 additional copies of a com- committee report reached an oppo- mittee print containing the staff re- site conclusion from that of the staff port. H. Res. 1074, 93d Cong. 2d report and from that of the majority Sess. of the committee, which determined The House also adopted on May to impeach the President for both 23, H. Res. 1073, authorizing the criminal and noncriminal conduct printing of additional copies of a (see § 3.8, supra, for the minority committee print on the work of the views and § 3.7, supra, for the major- impeachment inquiry staff as of Feb. ity views on the issue). 5, 1974.

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on the Judiciary adopted by the inquiry staff. The statements of certain procedures to be fol- information and supporting evidentiary material, furnished to each Member of lowed in presenting evidence the Committee in 36 notebooks, pre- and hearing witnesses. sented material on several subjects of On May 2, 1974, the Committee the inquiry: the Watergate break-in on the Judiciary unanimously and its aftermath, ITT, dairy price supports, domestic surveillance, abuse adopted special procedures for of the IRS, and the activities of the presenting the evidence compiled Special Prosecutor. The staff also pre- by the committee staff to the full sented to the Committee written re- committee in hearings. The proce- ports on President Nixon’s income dures provided for a statement of taxes, presidential impoundment of information to be presented, with funds appropriated by Congress and the bombing of Cambodia. annotated evidentiary materials, In each notebook, a statement of in- to committee members and to the formation relating to a particular ( ) President’s counsel. 14 phase of the investigation was imme- The procedures allowed for the diately followed by supporting evi- compilation and presentation of dentiary material, which included cop- additional evidence by committee ies of documents and testimony (much of it already on public record), tran- members or on request of the scripts of presidential conversations, President’s counsel. and affidavits. A deliberate and scru- Procedures were also adopted pulous abstention from conclusions, for holding hearings to examine even by implication, was observed. witnesses. Under the procedures, The Committee heard recordings of hearings were to be attended by nineteen presidential conversations and dictabelt recollections. The presi- the President’s counsel, and he dential conversations were neither was permitted to examine wit- paraphrased nor summarized by the nesses. inquiry staff. Thus, no inferences or The procedures followed in the conclusions were drawn for the Com- presentation of evidence are re- mittee. During the course of the hear- flected in the summary from the ings, Members of the Committee listened to each recording and simulta- committee’s final report: neously followed transcripts prepared From May 9, 1974 through June 21, by the inquiry staff. 1974, the Committee considered in ex- On June 27 and 28, 1974, Mr. James ecutive session approximately six hun- St. Clair, Special Counsel to the Presi- dred fifty ‘‘statements of information’’ dent made a further presentation in a and more than 7,200 pages of sup- similar manner and form as the in- porting evidentiary material presented quiry staff’s initial presentation. The Committee voted to make public the 14. See § 6.5, supra. initial presentation by the inquiry

2175 Ch. 14 § 15 DESCHLER’S PRECEDENTS

staff, including substantially all of the § 735 (1973), requiring the appli- supporting materials presented at the cation of the five-minute rule for hearings, as well as the President’s re- interrogation of witnesses by com- sponse. Between July 2, 1974, and July 17, mittees. The House had rejected 1974, after the initial presentation, the the motion to suspend the rules Committee heard testimony from nine and thereby denied to the com- witnesses, including all the witnesses mittee the authorization to dis- proposed by the President’s counsel. pense with the five-minute rule in The witnesses were interrogated by the interrogation of witnesses.(16) counsel for the Committee, by Special counsel to the President pursuant to the rules of the Committee, and by Committee Consideration of Members of the Committee. The Com- Resolution and Articles Im- mittee then heard an oral summation peaching the President by Mr. St. Clair and received a written brief in support of the President’s posi- § 15.7 Consideration by the tion. Committee on the Judiciary The Committee concluded its hear- of the resolution and articles ings on July 17, a week in advance of of impeachment against its public debate on whether or not to recommend to the House that it exer- President Richard M. Nixon cise its constitutional power of im- was made in order by com- peachment. In preparation for that de- mittee resolution. bate the majority and minority mem- On July 23, 1974, the Com- bers of the impeachment inquiry staff mittee on the Judiciary adopted a presented to the Committee ‘‘summaries of information.’’ (15) resolution making in order its consideration of a motion to report a The Committee on the Judiciary resolution and articles of impeach- had previously adopted a resolu- ment to the House. The resolution tion which was called up in the provided: House under a motion to suspend the rules, on July 1, 1974, to au- Resolved, That at a business meeting on July 24, 1974, the Committee shall thorize the committee to proceed commence general debate on a motion without regard to Rule XI clause to report to the House a Resolution, to- 27(f)(4), House Rules and Manual gether with articles of impeachment, impeaching Richard M. Nixon, Presi- 15. H. REPT. NO. 93–1305 at p. 9, Com- dent of the United States. Such gen- mittee on the Judiciary, 93d Cong. eral debate shall consume no more 2d Sess., reported Aug. 20, 1974, than ten hours, during which time no printed in the Record at 120 CONG. REC. 29221, 93d Cong. 2d Sess., Aug. 16. 120 CONG. REC. 21849–55, 93d Cong. 20, 1974. 2d Sess.

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Member shall be recognized for a pe- that the proposed article of impeach- riod to exceed 15 minutes. At the con- ment was not sufficiently specific. Pro- clusion of general debate, the proposed ponents of the substitute argued that articles shall be read for amendment it met the requirements of specificity and Members shall be recognized for a under modern pleading practice in period of five minutes to speak on each both criminal and civil litigation, proposed article and on any and all which provide for notice pleading. They amendments thereto, unless by motion further argued that the President had debate is terminated thereon. Each notice of the charge, that his counsel proposed article, and any additional ar- had participated in the Committee’s ticle, shall be separately considered for deliberations, and that the factual de- amendment and immediately there- tails would be provided in the Commit- after voted upon as amended for rec- tee’s report. ommendation to the House. At the con- On July 27, the Committee agreed to clusion of consideration of the articles the amendment in the nature of a sub- for amendment and recommendation to stitute for Article I by a vote of 27 to the House, if any article has been 11. The Committee then adopted Arti- agreed to, the original motion shall be cle I, as amended, by a vote of 27 to considered as adopted and the Chair- 11. Article I, as adopted by the Com- man shall report to the House said mittee charged that President Nixon, Resolution of impeachment, together using the power of his high office, en- with such articles as have been agreed gaged, personally and through his sub- to, or if no article is agreed to, the ordinates and agents, in a course of Committee shall consider such resolu- conduct or plan designed to delay, im- tions or other recommendations as it pede, and obstruct the investigation of deems proper.(17) the unlawful entry into the headquarters of the Democratic National As stated in the committee’s Committee in Washington, D.C., for final report, consideration of the the purpose of securing political intel- motion to report and of the arti- ligence; to cover up, conceal and pro- cles of impeachment proceeded as tect those responsible; and to conceal follows on July 24 through July the existence and scope of other unlaw- 30: ful covert activities. On July 29, an amendment in the On July 24, at the commencement of nature of a substitute was offered for general debate, a resolution was of- Article II of the proposed resolution. fered including two articles of impeach- After debate, the substitute was agreed ment. On July 26, an amendment in to by a vote of 28 to 10. The Com- the nature of a substitute was offered mittee then adopted Article II, as to Article I. In the course of the debate amended, by a vote of 28 to 10. Article on the substitute, it was contended II, as amended, charged that President Nixon, using the power of the office of 17. H. REPT. No. 93–1305, at p. 10, Com- President of the United States, repeat- mittee on the Judiciary, 93d Cong. edly engaged in conduct which violated 2d Sess., reported Aug. 20, 1974. the constitutional rights of citizens;

2177 Ch. 14 § 15 DESCHLER’S PRECEDENTS

which impaired the due and proper ad- Also on July 30, the Committee con- ministration of justice and the conduct sidered an amendment to add a proof lawful inquiries, or which con- posed Article, charging that President travened the laws governing agencies Nixon knowingly and fraudulently of the executive branch and the pur- failed to report income and claimed de- poses of these agencies. ductions that were not authorized by On July 30, an additional article was law on his Federal income tax returns for the years 1969 through 1972. In ad- offered as an amendment to the resolu- dition, the proposed Article charged tion. After debate, this amendment that, in violation of Article II, Section was adopted by a vote of 21 to 17 and 1 of the Constitution, President Nixon became Article III. Article III charged had unlawfully received emoluments, that President Nixon, by failing, within excess of the compensation provided out lawful cause or excuse and in will- by law, in the form of government ex- ful disobedience of the subpoenas of penditures at his privately owned the House, to produce papers and properties at San Clemente, California, things that the Committee had subpoe- and Key Biscayne, Florida. By a vote naed in the course of its impeachment of 26 to 12, the amendment to add the inquiry, assumed to himself functions article was not agreed to. and judgments necessary to the exer- The Committee on the Judiciary cise of the constitutional power of im- based its decision to recommend that peachment vested in the House. The the House of Representatives exercise subpoenaed papers and things had its constitutional power to impeach been deemed necessary by the Com- Richard M. Nixon, President of the mittee in order to resolve, by direct United States, on evidence which is evidence, fundamental, factual ques- summarized in the following report. ...(18) tions related to presidential direction, knowledge, or approval of actions dem- The debate on the resolution onstrated by other evidence to be sub- and articles of impeachment were stantial grounds for impeachment. televised pursuant to House Reso- On July 30, the Committee consid- lution 1107, adopted by the House ered an amendment to add a proposed on July 22, 1974, amending Rule Article, which charged that President XI clause 34 of the rules of the Nixon authorized, ordered and ratified the concealment of information from House to permit committee meet- the Congress and supplied to Congress ings, as well as hearings, to be ( ) false and misleading statements con- broadcast by live coverage. 19 cerning the existence, scope and nature of American bombing operations in 18. H. REPT. NO. 93–1305, at pp. 10, 11, Cambodia. The proposed Article stated Committee on the Judiciary, 93d that these acts were in derogation of Cong. 2d Sess., reported Aug. 20, the powers of Congress to declare war, 1974, printed in the Record at 120 make appropriations, and raise and CONG. REC. 29221, 29222, 93d Cong. support armies. By a vote of 26 to 12, 2d Sess., Aug. 20, 1974. the amendment to add this Article was 19. 120 CONG. REC. 24436–48, 93d Cong. not agreed to. 2d Sess.

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The transcript of the debate by distinguished Senator from Michigan the Committee on the Judiciary (Mr. Griffin), and myself, and I ask was printed in full as a public doc- that it be called up and given immediate consideration. ument.(20) THE PRESIDING OFFICER: The clerk will state the resolution. Senate Review of Impeachment The legislative clerk read as follows: Trial Rules S. RES. 370 § 15.8 After impeachment pro- Resolved, That the Committee on ceedings had been instituted Rules and Administration is directed to review any and all existing rules in the House against Presi- and precedents that apply to im- dent Richard M. Nixon, the peachment trials with a view to rec- Senate adopted a resolution ommending any revisions, if necessary, which may be required if the for the study and review of Senate is called upon to conduct Senate rules and precedents such a trial. Resolved further, That the Com- applicable to impeachment mittee on Rules and Administration trials. is instructed to report back no later (1) than 1 September 1974, or on such On July 29, l974, during the earlier date as the Majority and Mi- pendency of an investigation in nority Leaders may designate, and the House of alleged impeachable Resolved further, That such review by that Committee shall be held en- offenses committed by President tirely in executive sessions. Nixon, the Senate adopted a resolution related to its rules on im- THE PRESIDING OFFICER: Without objection, the Senate will proceed to its peachment: immediate consideration. MR. [MICHAEL J.] MANSFIELD [of The question is on agreeing to the Montana]: Mr. President, I have at the resolution. desk a resolution, submitted on behalf The resolution (S. Res. 370) was of the distinguished Republican leader, agreed to.(2) the Senator from Pennsylvania (Mr. Hugh Scott), the assistant majority The Committee on Rules and leader, the distinguished Senator from Administration reported out Sen- West Virginia (Mr. Robert C. Byrd), ate Resolution 390, amending the the assistant Republican leader, the 2. The Senate Parliamentarian pre- 20. See Debate on Articles of Impeach- pared and published, at the request ment, Hearings of the Committee on of Senator Robert C. Byrd (W. Va.) a the Judiciary pursuant to H. Res. study entitled ‘‘Procedure and Guide- 803, 93d Cong. 2d Sess., July 24, 25, lines for Impeachment Trials in the 26, 29, and 30, 1974. United States Senate,’’ S. Doc. No. 1. 120 CONG. REC. 25468, 93d Cong. 2d 102, 93d Cong. 2d Sess., Aug. 8, Sess. 1974.

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Rules and Procedure and Practice Committee on Presidential Campaign in the Senate when Sitting on Im- Activities has 90 days after the 28th peachment Trials, which was not day of June of this year in which to acted on by the Senate. The wind up its affairs. This resolution is proposed with the consent of the com- amendments reported were clari- mittee, and its immediate consider- (3) fying and modernizing changes. ation has been cleared by the leadership on both sides of the aisle. Disclosure of Evidence of Presi- The purpose of this resolution is to dential Activities facilitate the winding up of the affairs of the Senate Select Committee. The § 15.9 Pending the investiga- resolution provides that all of the tion by the House Committee records of the committee shall be on the Judiciary into con- transferred to the Library of Congress duct of the President, the which shall hold them subject to the Senate adopted a resolution control of the Senate Committee on Rules and Administration. releasing records of a Senate It provides that after these records select committee on Presi- are transferred to the Library of Con- dential activities to congres- gress the Senate Committee on Rules sional committees and other and Administration shall control the agencies and persons with a access to the records and either by spe- legitimate need therefor. cial orders or by general regulations shall make the records available to ( ) On July 29, 1974, 4 Senator courts, congressional committees, con- Samuel J. Ervin, Jr., of North gressional subcommittees, Federal de- Carolina, offered in the Senate partments and agencies, and any other Senate Resolution 369, relating to persons who may satisfy the Senate the records of a Senate select com- Committee on Rules and Administra- mittee. The Senate adopted the tion that they have a legitimate need resolution, following Senator for the records. Ervin’s remarks thereon, in which It provides that the records shall be he mentioned the needs and re- maintained intact and that none of the original records shall be released to quests of the Committee on the any agency or any person. Judiciary of the House: It provides further that pending the MR. ERVIN: Mr. President, under its transfer of the records to the Library of present charter, the Senate Select Congress and the assumption of such control by the Senate Committee on 3. See § 11.2, supra, for the committee Rules and Administration, that the Se- amendments to the rules for im- lect Committee, acting through its peachment trials. chairman or through its vice chairman, 4. 120 CONG. REC. 25392, 25393, 93d can make these records available to Cong. 2d Sess. courts or to congressional committees

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or subcommittees or to other persons lution (with committee amend- showing a legitimate need for them. ments), cited the prior action of I might state this is placed in here the House in changing the rules of because of the fact that we have had the House to permit the delibera- many requests from congressional committees for the records. We have had tions of the Committee on the Ju- ( ) requests from the Special Prosecutor diciary to be televised. 5 and from the courts. . . . I might state in the past the com- § 15.11 After impeachment pro- mittee has made available some of the ceedings had been instituted records to the House Judiciary Com- in the House against Presi- mittee, at its request, and to the Spe- dent Richard M. Nixon, the cial Prosecutor at his request. The resolution also provides that the action of Senate Committee on Rules the committee in doing so is ratified by and Administration reported the Senate. a resolution for televising any resultant trial. Broadcasting Impeachment On Aug. 8, 1974,(6) Senator Proceedings Howard W. Cannon, of Nevada, § 15.10 The House adopted a reported in the Senate, from the Committee on Rules and Adminis- resolution providing for the tration, Senate Resolution 371, to broadcast of the proceedings permit television and radio cov- in the House in which it was erage of any impeachment trial to consider the resolution that might occur with respect to and articles of impeachment President Nixon. The resolution against President Richard M. was subsequently laid on the Nixon. table. On Aug. 7, 1974, the Committee on the Judiciary, having pre- Procedures for Consideration viously determined to report af- by the House firmatively to the House on the § 15.12 The House leadership impeachment of the President, the considered a number of spe- House adopted House Resolution 802, called up by direction of the cial procedures to be fol- Committee on Rules, authorizing lowed in the consideration of the broadcast of the anticipated a resolution and articles im- impeachment proceedings in the 5. 120 CONG. REC. 27266–69, 93d Cong. House. Ray J. Madden, of Indi- 2d Sess. ana, Chairman of the Committee 6. 120 CONG. REC. 27325, 93d Cong. 2d on Rules, who called up the reso- Sess. 2181 Ch. 14 § 15 DESCHLER’S PRECEDENTS

peaching President Richard Although the bipartisan gathering M. Nixon. reached no official decision, there was agreement that after the Judiciary On Aug. 2, 1974, Ray J. Mad- Committee files its report on the im- den, of Indiana, Chairman of the peachment proceedings next week, Au- Committee on Rules, addressed gust 8, the Committee on Rules will then convene—on August 13 for the the House on a recent meeting of purpose of defining the rules and pro- the leadership as to the proposed cedures for House debate. It was also hearings of the committee relative agreed by the members of the Demo- to the consideration by the House cratic and Republican leadership of the impeachment of President present that the impeachment debate will begin on the floor of the House on Nixon: Monday, August 19. Among the impeachment procedures CONFERENCE OF HOUSE RULES to be given consideration by the Com- COMMITTEE ON IMPEACHMENT DEBATE mittee on Rules will be: The overall (Mr. Madden asked and was given time of debate; division of debate time permission to address the House for 1 during the floor discussion; the control minute and to revise and extend his of the time; the question of whether remarks, and include extraneous mat- the three articles of impeachment rec- ter.) ommended by the Judiciary Committee MR. MADDEN: Mr. Speaker, the com- should be amended; and whether or ing Presidential impeachment debate not the electronic media should be al- calls for the House to adopt certain lowed to broadcast the proceedings of (7) special procedures which are not other- the House floor. wise necessary when considering reg- Later on that day, Thomas P. ular congressional business. O’Neill, Jr., of Massachusetts, the The members of the Rules Com- Majority Leader, and Peter W. Ro- mittee, Speaker Carl Albert, House dino, Jr., of New Jersey, the Majority Leader Tip O’Neill, House Majority Whip John McFall, House Mi- Chairman of the Committee on nority Leader John Rhodes, House Mi- the Judiciary, discussed tentative nority Whip Les Arends, Judiciary scheduling of the resolution of im- Committee Chairman Peter Rodino, peachment and arrangements for and Representative Edward Hutch- Members of the House to listen to inson, the ranking minority member of tape recordings containing evi- the Judiciary Committee, met in an dence relating to the impeach- unofficial capacity Thursday afternoon, ment inquiry: August 1. In the 21⁄2 hour meeting thoughts were exchanged and rec- (Mr. [Leslie C.] Arends [of Illinois] ommendations made regarding the asked and was given permission to ad- rules and procedures which would be dress the House for 1 minute.) most practical in allowing the entire House membership participation in 7. 120 CONG. REC. 26489, 93d Cong. 2d this historical legislative event. Sess.

2182 IMPEACHMENT POWERS Ch. 14 § 15

MR. ARENDS: Mr. Speaker, I take will not be somehow or other just laid this time to ask the majority leader if aside. I think the Members are going he will kindly advise us of the program to be interested in seeing it and know- for next week. ing that there is a schedule for them, and we will allow them sufficient time MR. O’NEILL: Mr. Speaker, will the gentleman yield to the gentleman from within which to be briefed regarding these various materials that are avail- New Jersey (Mr. Rodino), chairman of able and the facilities that are avail- the Committee on the Judiciary, so we able to them. may have some indication of his plans? MR. O’NEILL: Mr. Speaker, will the MR. ARENDS: I yield to the gen- gentleman yield? tleman from New Jersey. MR. ARENDS: I yield to the distin- MR. RODINO: I thank the gentleman guished majority leader. for yielding. MR. O’NEILL: I thank the gentleman I would really like to announce that for yielding. today I have circulated a letter that I should like to address some re- should be in the offices of each of the marks to the gentleman from New Jer- Members which sets up a schedule so sey (Mr. Rodino), the chairman of the that Members who are interested may Committee on the Judiciary, in view of listen to the tapes that are going to be the fact that the leadership on both available in the Congressional Building sides of the aisle met yesterday with where the impeachment inquiry staff is members of the Committee on Rules trying to put together a schedule, located. There will be assistance pro- which, of course, we understand is ten- vided to all of the Members, and this is tative. spelled out in this letter—the schedule It was my understanding from that as to the time when the tapes will be meeting that the Judiciary Committee available, together with the tran- would be planning to report next scripts, and assistance will be provided Wednesday, and would be going to the by members of the impeachment in- Rules Committee on Tuesday, August quiry staff. 13, with the anticipation that the mat- In addition to that, there is also in ter of impeachment would be on the the letter pertinent information which floor on Monday, the 19th. relates to the particular pieces of infor- Would the gentleman want to com- mation or documents that are avail- ment on that? able. All of the documents that have MR. RODINO: If the gentleman will been printed and the President’s coun- yield, that is correct. That is the sched- sel’s brief will be included. Members ule that we hope to follow. I have discussed this with the gentleman from will have available to them all that the Michigan, the ranking minority mem- Committee on the Judiciary has pre- ber, and we have agreed that the sented and printed and published up to scheduling is the kind of scheduling this particular time, which I am sure dates that we can meet. On Tuesday, all Members will be interested in. the 13th, we would go before the Rules I thought that I would make this an- Committee. I thank the gentleman.(8) nouncement so that this letter will come to the Members’ attention and 8. Id. at p. 26512.

2183 Ch. 14 § 15 DESCHLER’S PRECEDENTS

Committee Report as to Im- the Committee on the Judiciary peachment; Resignation of (H. Rept. No. 93–1305) to the the President House. The report summarized the committee’s investigation and § 15.13 After the Committee on included supplemental, additional, the Judiciary had deter- separate, dissenting, minority, in- mined to report to the House dividual, and concurring views. a resolution and articles im- The committee’s recommendation peaching President Richard and adopted articles of impeach- M. Nixon, the President re- ment read as follows: signed; the committee submitted its report recom- The Committee on the Judiciary, to whom was referred the consideration mending impeachment to the of recommendations concerning the ex- House, without an accom- ercise of the constitutional power to panying resolution of im- impeach Richard M. Nixon, President peachment. The House then of the United States, having considered adopted a resolution under the same, reports thereon pursuant to suspension of the rules ac- H. Res. 803 as follows and recommends that the House exercise its constitu- cepting the committee’s re- tional power to impeach Richard M. port, noting the committee’s Nixon, President of the United States, action and commending the and that articles of impeachment be chairman and members of exhibited to the Senate as follows:

the committee for their ef- RESOLUTION forts. Impeaching Richard M. Nixon, Presi- On Aug. 9, 1974, President Nix- dent of the United States, of high on’s written resignation was re- crimes and misdemeanors. ceived in the office of the Sec- Resolved, That Richard M. Nixon, retary of State, pursuant to the President of the United States, is im- provisions of the United States peached for high crimes and mis- Code.(9) demeanors, and that the following arti- On Aug. 20, 1974, Mr. Peter W. cles of impeachment be exhibited to Rodino, Jr., of New Jersey, sub- the Senate: mitted as privileged the report of Articles of impeachment exhibited by the House of Representatives of the 9. 3 USC § 20 provides that the res- United States of America in the name ignation of the office of the President of itself and of all of the people of the shall be an instrument in writing, United States of America, against subscribed by the person resigning, Richard M. Nixon, President of the and delivered to the office of the Sec- United States of America, in mainte- retary of State. nance and support of its impeachment

2184 IMPEACHMENT POWERS Ch. 14 § 15 against him for high crimes and mis- (3) approving, condoning, acquiescing demeanors. in, and counseling witnesses with respect to the giving of false or mis- ARTICLE I leading statements to lawfully author- In his conduct of the office of Presi- ized investigative officers and employ- dent of the United States, Richard M. ees of the United States and false or Nixon, in violation of his constitutional misleading testimony in duly insti- oath faithfully to execute the office of tuted judicial and congressional pro- President of the United States and, to ceedings; the best of his ability, preserve, pro- (4) interfering or endeavoring to tect, and defend the Constitution of the interfere with the conduct of investiga- United States, and in violation of his tions by the Department of Justice of constitutional duty to take care that the United States, the Federal Bureau the laws be faithfully executed, has of Investigation, the Office of Water- prevented, obstructed, and impeded gate Special Prosecution Force, and the administration of justice, in that: Congressional Committees; On June 17, 1972, and prior thereto, (5) approving, condoning, and acqui- agents of the Committee for the Re- escing in, the surreptitious payment of election of the President committed un- substantial sums of money for the pur- lawful entry of the headquarters of the pose of obtaining the silence or influ- Democratic National Committee in encing the testimony of witnesses, po- Washington, District of Columbia, for tential witnesses or individuals who the purpose of securing political intel- participated in such unlawful entry ligence. Subsequent thereto, Richard and other illegal activities; M. Nixon, using the powers of his high office, engaged personally and through (6) endeavoring to misuse the Cen- his subordinates and agents, in a tral Intelligence Agency, an agency of course of conduct or plan designed to the United States; delay, impede, and obstruct the inves- (7) disseminating information re- tigation of such unlawful entry; to ceived from officers of the Department cover up, conceal and protect those re- of Justice of the United States to sub- sponsible; and to conceal the existence jects of investigations conducted by and scope of other unlawful covert ac- lawfully authorized investigative offi- tivities. cers and employees of the United The means used to implement this States, for the purpose of aiding and course of conduct or plan included one assisting such subjects in their at- or more of the following: tempts to avoid criminal liability; (1) making or causing to be made (8) making false or misleading public false or misleading statements to law- statements for the purpose of deceiving fully authorized investigative officers the people of the United States into be- and employees of the United States; lieving that a thorough and complete (2) withholding relevant and mate- investigation had been conducted with rial evidence or information from law- respect to allegations of misconduct on fully authorized investigative officers the part of personnel of the executive and employees of the United States; branch of the United States and per-

2185 Ch. 14 § 15 DESCHLER’S PRECEDENTS

sonnel of the Committee for the Reelec- endeavored to obtain from the Internal tion of the President, and that there Revenue Service, in violation of the was no involvement of such personnel constitutional rights of citizens, con- in such misconduct; or fidential information contained in in- (9) endeavoring to cause prospective come tax returns for purposes not au- defendants, and individuals duly tried thorized by law, and to cause, in viola- and convicted, to expect favored treat- tion of the constitutional rights of citi- ment and consideration in return for zens, income tax audits or other in- their silence or false testimony, or re- come tax investigations to be initiated warding individuals for their silence or or conducted in a discriminatory man- false testimony. ner. In all of this, Richard M. Nixon has (2) He misused the Federal Bureau acted in a manner contrary to his trust of Investigation, the Secret Service, as President and subversive of con- and other executive personnel, in viola- stitutional government, to the great tion or disregard of the constitutional prejudice of the cause of law and jus- rights of citizens, by directing or au- tice and to the manifest injury of the thorizing such agencies or personnel to people of the United States. conduct or continue electronic surveil- Wherefore Richard M. Nixon, by lance or other investigations for pur- such conduct, warrants impeachment poses unrelated to national security, and trial, and removal from office. the enforcement of laws, or any other lawful function of his office; he did di- ARTICLE II rect, authorize, or permit the use of information obtained thereby for pur- Using the powers of the office of poses unrelated to national security, President of the United States, Rich- the enforcement of laws, or any other ard M. Nixon, in violation of his con- lawful function of his office; and he did stitutional oath faithfully to execute direct the concealment of certain the office of President of the United records made by the Federal Bureau of States and, to the best of his ability, Investigation of electronic surveillance. preserve, protect, and defend the Con- (3) He has, acting personally and stitution of the United States, and in through his subordinates and agents, disregard of his constitutional duty to in violation or disregard of the con- take care that the laws be faithfully stitutional rights of citizens, author- executed, has repeatedly engaged in ized and permitted to be maintained a conduct violating the constitutional secret investigative unit within the of- rights of citizens, impairing the due fice of the President, financed in part and proper administration of justice with money derived from campaign and the conduct of lawful inquiries, or contributions, which unlawfully uti- contravening the laws governing agen- lized the resources of the Central Intel- cies of the executive branch and the ligence Agency, engaged in covert and purposes of these agencies. unlawful activities, and attempted to This conduct has included one or prejudice the constitutional right of an more of the following: accused to a fair trial. (1) He has, acting personally and (4) He has failed to take care that through his subordinates and agents, the laws were faithfully executed by

2186 IMPEACHMENT POWERS Ch. 14 § 15 failing to act when he knew or had execute the office of President of the reason to know that his close subordi- United States and, to the best of his nates endeavored to impede and frus- ability, preserve, protect, and defend trate lawful inquiries by duly con- the Constitution of the United States, stituted executive, judicial, and legisla- and in violation of his constitutional tive entities concerning the unlawful duty to take care that the laws be entry into the headquarters of the faithfully executed, has failed without Democratic National Committee, and lawful cause or excuse to produce papers and things as directed by duly au- the cover-up thereof, and concerning thorized subpoenas issued by the Com- other unlawful activities, including mittee on the Judiciary of the House of those relating to the confirmation of Representatives on April 11, 1974, Richard Kleindienst as Attorney Gen- May 15, 1974, May 30, 1974, and June eral of the United States, the electronic 24, 1974, and willfully disobeyed such surveillance of private citizens, the subpoenas. The subpoenaed papers break-in into the offices of Dr. Lewis and things were deemed necessary by Fielding, and the campaign financing the Committee in order to resolve by practices of the Committee to Reelect direct evidence fundamental, factual the President. questions relating to Presidential di- (5) In disregard of the rule of law, he rection, knowledge, or approval of ac- knowingly misused the executive tions demonstrated by other evidence power by interfering with agencies of to be substantial grounds for impeachment of the President. In refusing to the executive branch, including the produce these papers and things, Rich- Federal Bureau of Investigation, the ard M. Nixon, substituting his judg- Criminal Division, and the Offlce of ment as to what materials were nec- Watergate Special Prosecution Force, essary for the inquiry, interposed the of the Department of Justice, and the powers of the Presidency against the Central Intelligence Agency, in viola- lawful subpoenas of the House of Rep- tion of his duty to take care that the resentatives, thereby assuming to him- laws be faithfully executed. self functions and judgments necessary In all of this, Richard M. Nixon has to the exercise of the sole power of im- acted in a manner contrary to his trust peachment vested by the Constitution as President and subversive of con- in the House of Representatives. stitutional government, to the great In all of this, Richard M. Nixon has prejudice of the cause of law and jus- acted in a manner contrary to his trust tice and to the manifest injury of the as President and subversive of con- people of the United States. stitutional government, to the great prejudice of the cause of law and jus- Wherefore Richard M. Nixon, by tice, and to the manifest injury of the such conduct, warrants impeachment people of the United States. and trial, and removal from office. Wherefore Richard M. Nixon, by ARTICLE III such conduct, warrants impeachment and trial, and removal from office.(10) In his conduct of the office of Presi- dent of the United States, Richard M. 10. H. REPT. NO. 93–1305, pp. 1–4, Com- Nixon, contrary to his oath faithfully to mittee on the Judiciary, printed in

2187 Ch. 14 § 15 DESCHLER’S PRECEDENTS

The report was referred by the its constitutional power to impeach Speaker to the House Calendar Richard M. Nixon, President of the United States of America; and and ordered printed. (b) the Committee on the Judiciary, The Committee did not report a after conducting a full and complete in- separate resolution and articles of vestigation pursuant to House Resolu- impeachment for action by the tion 803, voted on July 27, 29, and 30, 1974 to recommend Articles of im- House, the President having re- peachment against Richard M. Nixon, signed. President of the United States of Thomas P. O’Neill, Jr., of Mas- America; and sachusetts, the Majority Leader, (c) Richard M. Nixon on August 9, moved to suspend the rules and 1974 resigned the Office of President of the United States of America; adopt House Resolution 1333, ac- (2) accepts the report submitted by cepting the report of the Com- the Committee on the Judiciary pursu- mittee on the Judiciary and pro- ant to House Resolution 803 (H. Rept. viding for its printing, and the 93–1305) and authorizes and directs House adopted the resolution that the said report, together with supplemental, additional, separate, dis- without debate—yeas 412, nays 3, senting, minority, individual and con- not voting 19: curring views, be printed in full in the Congressional Record and as a House H. RES. 1333 Document; and Resolved, That the House of Rep- (3) commends the chairman and resentatives: other members of the Committee on (1) takes notice that the Judiciary for their conscientious and capable efforts in carrying out the (a) the House of Representatives, by Committee’s responsibilities under House Resolution 803, approved Feb- House Resolution 803. ruary 6, 1974, authorized and directed the Committee on the Judiciary to in- Following the adoption of House vestigate fully and completely whether Resolution 1333, Mr. O’Neill sufficient grounds existed for the asked unanimous consent that all House of Representatives to exercise Members have five legislative days in which to revise and ex- the Record at 120 CONG. REC. 29219, 29220, 93d Cong. 2d Sess., Aug. 20, tend their remarks on House Res- 1974. For complete text of H. REPT. olution 1333, but Mr. Robert E. NO. 93–1305, see id. at pp. 29219– Bauman, of Maryland, objected to 361. the request on the ground that no Pursuant to H. Con. Res. 566, 93d debate had been had on the re- Cong. 2d Sess., 10,000 additional port.(11) copies of the report were printed for the use of the Committee on the Ju- 11. 120 CONG. REC. 29361, 29362, 93d diciary. Cong. 2d Sess. The Majority Leader

2188 IMPEACHMENT POWERS Ch. 14 § 15

Neither the House nor the Com- fore the House a communication mittee on the Judiciary took any and subpoena from the Chairman further action on the matter of the of the Committee on the Judiciary impeachment of former President as follows: Nixon in the 93d Congress. COMMUNICATION FROM THE CHAIRMAN Impeachment Inquiry Evidence OF THE COMMITTEE ON THE JUDICIARY Subpoenaed by Courts The Speaker laid before the House § 15.14 The Speaker laid before the following communication and sub- the House subpoenas duces poena from the chairman of the Com- mittee on the Judiciary, which was tecum from a federal district read and ordered to be printed: court in a criminal case, ad- WASHINGTON, D.C., dressed to the Chairman of August 21, 1974. the Committee on the Judici- Hon. CARL ALBERT, ary and to the chief counsel Speaker, House of Representatives, of its subcommittee on im- Washington, D.C. peachment. The subpoenas DEAR MR. SPEAKER: On July 29, 1974 two subpoenas duces tecum sought evidence gathered by issued by the United States District the committee in its im- Court for the District of Columbia, one naming myself and one naming peachment inquiry into the Mr. John Doar, an employee of the conduct of President Richard Committee, were served com- M. Nixon. The House adopted manding appearance in the United States District Court on September a resolution granting such 9, 1974 and the production of all limited access as would not tapes and other electronic and/or mechanical recordings or reproductions, violate the privileges of the and any memoranda, papers, tran- House or its sole power of scripts, and other writings, relating impeachment under the U.S. to all nonpublic statements, testimony and interviews of witnesses re- Constitution. lating to the matters being inves- On Aug. 22, 1974,(12) Speaker tigated pursuant to House Resolu- tion No. 803. Carl Albert, of Oklahoma, laid be- The subpoenas were issued upon application of defendant H. R. had announced on the previous day, Haldeman in the case of U. S. v Aug. 19, his intention to offer the John Mitchell, et al. resolution, and had read the text of The subpoenas in question are for- the resolution on the floor of the warded herewith and the matter presented for such action as the House House. 120 CONG. REC. 29005, deems appropriate. 29006, 93d Cong. 2d Sess. Sincerely, 12. 120 CONG. REC. 30025, 30026, 93d PETER W. RODINO, Jr., Cong. 2d Sess. Chairman.

2189 Ch. 14 § 15 DESCHLER’S PRECEDENTS

—— The Clerk read the resolution, as fol- [Subpoena] lows: [U.S. District Court for the District H. RES. 1341 of Columbia, No. 74–110] Whereas in the case of United States of America against John N. UNITED STATES OF AMERICA V. JOHN Mitchell et al. (Criminal Case No. N. MITCHELL, ET AL., DEFENDANTS 74–110), pending in the United To: Congressman Peter W. Rodino, States District Court for the District United States House of Represent- of Columbia, subpoenas duces tecum atives, Washington, D.C. were issued by the said court and addressed to Representative Peter You are hereby commanded to ap- W. Rodino, United States House of pear in the United States District Representatives, and to John Doar, Court for the District of Columbia at Chief Counsel, House Judicial Sub- Constitution Avenue and John Mar- committee on Impeachment, House shall Place, N.W. in the city of of Representatives, directing them to Washington on the 9th day of Sep- appear as witnesses before said court tember 1974 at 10 o’clock A.M. to at 10:00 antemeridian on the 9th testify in the case of United States v. day of September, 1974, and to bring John N. Mitchell, et al., and bring with them certain and sundry papers with you all tapes and other elec- in the possession and under the con- tronic and/or mechanical recordings trol of the House of Representatives: or reproductions, and any memo- Therefore be it randa, papers, transcripts, and other Resolved, That by the privileges of writings, relating to: this House no evidence of a docu- All non-public statements and tes- mentary character under the control timony of witnesses relating to the and in the possession of the House of matters being investigated pursuant Representatives can, by the mandate to House Resolution No. 803. of process of the ordinary courts of This subpoena is issued upon ap- justice, be taken from such control or plication of the Defendant, H. R. possession but by its permission; be Haldeman, 1974. it further FRANK H. STRUTH, Attorney for Defendant, Resolved, That the House of Rep- H. R. Haldeman. resentatives under Article I, Section JAMES F. DAVEY, 2 of the Constitution has the sole Clerk. power of impeachment and has the By ROBERT L. LINE, sole power to investigate and gather Deputy Clerk. evidence to determine whether the The following resolution, in re- House of Representatives shall exercise its constitutional power of im- sponse to such subpoenas, was of- peachment; be it further fered by Mr. Thomas P. O’Neill, Resolved, That when it appears by Jr., of Massachusetts: the order of the court or of the judge thereof, or of any legal officer CONCERNING SUBPOENAS ISSUED IN charged with the administration of UNITED STATES VERSUS JOHN N. the orders of such court or judge, MITCHELL, ET AL. that documentary evidence in the possession and under the control of MR. O’NEILL: Mr. Speaker, I call up the House is needful for use in any House Resolution 1341 and ask for its court of justice, or before any judge immediate consideration. or such legal officer, for the pro-

2190 IMPEACHMENT POWERS Ch. 14 § 15

motion of justice, this House will Pardon of the Former Presi- take such action thereon as will promote the ends of justice consistently dent with the privileges and rights of this House; he it further § 15.15 The House having dis- Resolved, That when said court determines upon the materiality and continued impeachment pro- the relevancy of the papers and doc- ceedings against former uments called for in the subpoenas duces tecum, then the said court, President Richard M. Nixon through any of its officers or agents, following his resignation, have full permission to attend with President Gerald R. Ford all proper parties to the proceeding and then always at any place under granted a full pardon to the the orders and control of this House former President for all of- and take copies of all memoranda and notes, in the files of the Com- fenses against the United mittee on the Judiciary, of inter- States committed by him views with those persons who subsequently appeared as witnesses in the during his terms in office. proceedings before the full Com- mittee pursuant to House Resolution On Sept. 8, 1974, President 803, such limited access in this in- Ford issued Proclamation 4311, stance not being an interference with the Constitutional impeachment granting a pardon to Richard power of the House, and the Clerk of Nixon: the House is authorized to supply certified copies of such documents GRANTING PARDON TO RICHARD NIXON and papers in possession or control BY THE PRESIDENT OF THE UNITED of the House of Representatives that STATES OF AMERICA the court has found to be material and relevant (except that under no A PROCLAMATION circumstances shall any minutes or transcripts of executive sessions, or Richard Nixon became the thirty- any evidence of witnesses in respect seventh President of the United States thereto, be disclosed or copied) and on January 20, 1969 and was reelected which the court or other proper officer thereof shall desire, so as, how- in 1972 for a second term by the elec- ever, the possession of said papers, tors of forty-nine of the fifty states. His documents, and records by the term in office continued until his res- House of Representatives shall not ignation on August 9, 1974. be disturbed, or the same shall not be removed from their place of file or Pursuant to resolutions of the House custody under any Members, officer, of Representatives, its Committee on or employee of the House of Rep- the Judiciary conducted an inquiry and resentatives, and be it further investigation on the impeachment of Resolved, That a copy of these res- the President extending over more olutions be transmitted to the said than eight months. The hearings of the court as a respectful answer to the subpoenas aforementioned. Committee and its deliberations, which received wide national publicity over The House adopted the resolu- television, radio, and in printed media, tion. resulted in votes adverse to Richard

2191 Ch. 14 § 15 DESCHLER’S PRECEDENTS

Nixon on recommended Articles of Im- In witness whereof, I have hereunto peachment. set my hand this eighth day of Sep- As a result of certain acts or omis- tember, in the year of our Lord nine- sions occurring before his resignation teen hundred and seventy-four, and of from the Office of President, Richard the Independence of the United States Nixon has become liable to possible in- of America the one hundred and nine- dictment and trial for offenses against ty-ninth.(13) the United States. Whether or not he Some Members of the House shall be so prosecuted depends on findings of the appropriate grand jury and suggested in debate that impeach- on the discretion of the authorized ment proceedings be resumed, prosecutor. Should an indictment notwithstanding the resignation of ensue, the accused shall then be enti- the President; for example on tled to a fair trial by an impartial jury, Sept. 11, 1974, Mr. Ralph H. as guaranteed to every individual by the Constitution. Metcalfe, of Illinois, declared: It is believed that a trial of Richard On August 20, 1974, Mr. Speaker, Nixon, if it became necessary, could the House adopted House Resolution not fairly begin until a year or more 1033. This resolution took notice of the has elapsed. In the meantime, the fact that on February 6, 1974, the tranquility to which this nation has House, by adoption of House Resolu- been restored by the events of recent tion 803, authorized and directed the weeks could be irreparably lost by the Judiciary Committee ‘‘to investigate prospects of bringing to trial a former fully and completely whether sufficient President of the United States. The grounds existed for the House of Rep- prospects of such trial will cause pro- resentatives to exercise its constitu- longed and divisive debate over the tional power to impeach Richard M. propriety of exposing to further pun- Nixon’’; further, House Resolution 1033 ishment and degradation a man who noted that the Committee on the Judi- has already paid the unprecedented ciary recommended articles of im- penalty of relinquishing the highest peachment; that Richard M. Nixon re- elective office of the United States. signed the office of President of the Now, therefore, I, Gerald R. Ford, United States; and further, this resolu- President of the United States, pursu- tion accepted the report submitted by ant to the pardon power conferred the Committee on the Judiciary pursu- upon me by Article II, Section 2, of the ant to House Resolution 803. Constitution, have granted and by The articles of impeachment voted these presents do grant a full, free, out by the full committee, Mr. Speaker, and absolute pardon unto Richard were never debated and voted upon by Nixon for all offenses against the the full House. At that time there was United States which he, Richard the strong possibility that the former Nixon, has committed or may have President would be indicted, and that committed or taken part in during the period from January 20, 1969 through 13. 39 FED. REG. 32601, 32602 (Sept. 10, August 9, 1974. 1974).

2192 IMPEACHMENT POWERS Ch. 14 § 15 the President would be held account- Bestor specifically cites the constitu- able for his actions in a court of law. tions of two States-Virginia and Dela- President Ford’s action on September ware-which were adopted in 1776. 8, 1974, has effectively nullified that Bestor also cites a statement of John course of action.... Quincy Adams, made in 1846 after he Is there a precedent for the impeach- left the White House, made on the ment of a civil officer after his resigna- Floor of the House: tion? I think there is. I hold myself, so long as I have the In Federalist Paper 65, Hamilton breath of life in my body, amenable states: to impeachment by this House for everything I did during the time I The Model from which the idea of held any public office. this institution (Impeachment) has been borrowed pointed out that Another historical precedent is that course to the convention. of William W. Belknap, Secretary of The model that Hamilton refers to is War in President Grant’s cabinet. As Bestor summarizes it: clearly that of Great Britain. The course of action that Hamilton refers Belknap resigned at 10:20 a.m. on to is impeachment by the House of the 2nd of March (1876), a few hours Commons and trial before the Lords. before the House of Representatives voted to impeach him, the latter de- And, consequently, it is to the English cision being officially notified to the precedent that we must first turn. Senate at 12:55 p.m. on the 3rd . . . Contemporaneous with the drafting on May 27, 1876, in a roll-call vote of and adopting of our own Constitution 37 to 29 (with seven not voting) the was the impeachment trial of Warren Senate ruled that Belknap was ame- Hastings in Great Britain. Hastings re- nable to trial by impeachment for acts done as Secretary of War, not- signed the governor-generalship of withstanding his resignation of said India before he left India in February office before he was impeached. 1785, 2 years before articles of impeachment were voted by the House of Mr. Speaker, there is precedent for Commons for his conduct in India. The the impeachment of a civil officer after impeachment of Hastings was cer- he has resigned. tainly a fact known to the drafters of Another point to make, Mr. Speaker, the Constitution. is that article I of section 3 of the Con- stitution states, inter alia: George Mason, in discussing the impeachment provision on September 8, Judgment in Cases of Impeach- 1787, in the Constitutional Conven- ment shall not extend further than tion, makes a clear reference to the to removal from Office, and disqualification to hold and enjoy any Office trial of Hastings. Further, Prof. Arthur of honor, Trust or Profit under the Bestor states that— United States. American constitutional docu- There is a twofold penalty provided ments adopted prior to the Federal for in this article and removal from of- Convention of 1787 . . . refute the notion that officials no longer in office is but one part of the penalty. fice were supposed by the framers to Mr. Speaker, the former President be beyond the reach of impeachment. has not been held accountable for his

2193 Ch. 14 § 15 DESCHLER’S PRECEDENTS

actions. He has avoided accountability furnish the House, within ten days, through the impeachment process by with the following information: resigning, and he has avoided trial on 1. What are the specific offenses charges of alleged criminal misconduct against the United States for which a as contained in the first article of im- pardon was granted to Richard M. peachment through the Presidential pardon of his successor. Nixon on September 8, 1974? Mr. Speaker, history can conclude 2. What are the certain acts or omis- that the Congress of the United States sions occurring before his resignation was confronted with a series of actions from the office of President for which by the Chief Executive, actions which Richard Nixon had become liable to constituted a serious danger to our po- possible indictment and trial for of- litical processes and that we did noth- fenses against the United States, as ing. The proper forum, and now the stated in your Proclamation of Pardon? only forum, for a debate and a vote on these most serious charges is here in 3. Did you or your representatives the House. We have no other recourse have specific knowledge of any formal but to proceed if we are to assure that criminal charges pending against Rich- all future Presidents will be held ac- ard M. Nixon prior to issuance of the countable for their actions whether pardon? If so, what were these such future Chief Executives resign or charges? not. 4. Did Alexander Haig refer to or Mr. Speaker, I urge that the im- discuss a pardon with Richard M. peachment report of the House Judici- Nixon or representatives of Mr. Nixon ary Committee be debated and that we at any time during the week of August proceed to vote on the articles of impeachment.(14) 4, 1974 or at any subsequent time? If so, what promises were made or condi- On Sept. 12, 1974, Ms. Bella S. tions set for a pardon, if any? If so, Abzug, of New York, introduced a were tapes or transcriptions of any resolution of inquiry related to the kind made of these conversations or pardon: (15) were any notes taken? If so, please provide such tapes, transcriptions or H. RES. 1363 notes. Resolved, That the President of the 5. When was a pardon for Richard United States is hereby requested to M. Nixon first referred to or discussed with Mr. Nixon, or representatives of 14. 120 CONG. REC. 30695, 30696, 93d Mr. Nixon, by you or your representa- Cong. 2d Sess. (footnotes omitted). tives or aides, including the period For a memo inserted in the Record when you were a member of Congress by Senate Majority Leader Michael or Vice President? J. Mansfield (Mont.) on the power of 6. Who participated in these and Congress to impeach and try a Presi- subsequent discussions or negotiations dent after he has resigned, see 120 with Richard M. Nixon or his rep- CONG. REC. 31346–48, 93d Cong. 2d resentatives regarding a pardon, and Sess., Sept. 17, 1974. at what specific times and locations? 15. 120 CONG. REC. 30964, 30965, 93d 7. Did you consult with Attorney Cong. 2d Sess. General William Saxbe or Special

2194 IMPEACHMENT POWERS Ch. 14 § 16

Prosecutor Leon Jaworski before mak- and President Ford appeared in ing the decision to pardon Richard M. person and testified before such Nixon and, if so, what facts and legal subcommittee on Oct. 17, 1974. authorities did they give to you? 8. Did you consult with the Vice Presidential nominee, Nelson Rocke- feller, before making the decision to § 16. Impeachment of pardon Richard M. Nixon and, if so, Judge English what facts and legal authorities did he give to you? Committee Report on Resolu- 9. Did you consult with any other at- tion and Articles of Impeach- torneys or professors of law before ment making the decision to pardon Richard M. Nixon, and, if so, what facts or § 16.1 In the 69th Congress, the legal authorities did they give to you? Committee on the Judiciary 10. Did you or your representatives reported a resolution of im- ask Richard M. Nixon to make a confession or statement of criminal guilt, peachment accompanied and, if so, what language was sug- with five articles of impeach- gested or requested by you, your rep- ment against Judge George resentatives, Mr. Nixon, or his rep- English, which report was re- resentatives? Was any statement of ferred to the House Cal- any kind requested from Mr. Nixon in endar, ordered printed, and exchange for the pardon, and, if so, please provide the suggested or reprinted in full in the Con- quested language. gressional Record. 11. Was the statement issued by On Mar. 25, 1926, Mr. George Richard M. Nixon immediately subse- S. Graham, of Pennsylvania, of- quent to announcement of the pardon fered a privileged report from the made known to you or your representa- Committee on the Judiciary in the tives prior to its announcement, and impeachment case against George was it approved by you or your rep- English, U.S. District Judge for resentatives? the Eastern District of Illinois. 12. Did you receive any report from Speaker Nicholas Longworth, of a psychiatrist or other physician stat- Ohio, ordered the report printed ing that Richard M. Nixon was in and referred to the House Cal- other than good health? If so, please endar.(16) By unanimous consent, provide such reports the entire report (H. Rept. No. The resolution of inquiry was 653) was printed in the Congres- referred to the Committee on the sional Record.(17) Judiciary. A subcommittee thereof 16. 67 CONG. REC. 6280, 69th Cong. 1st held hearings on the matter of the Sess. pardon of former President Nixon, 17. Id. at pp. 6280–87. 2195 Ch. 14 § 16 DESCHLER’S PRECEDENTS

The committee’s recommenda- House Consideration and De- tion and resolution read as fol- bate lows: § 16.2 The resolution and arti- RECOMMENDATION cles of impeachment in the Your committee reports herewith the George English impeachment accompanying resolution and articles were considered in the of impeachment against Judge George W. English, and recommends that they House pursuant to unani- be adopted by the House and that they mous-consent agreements be presented to the Senate with a de- fixing the control and dis- mand for the conviction and removal tribution of debate. from office of said George W. English, United States district judge for the On Mar. 30, 1926, Mr. George eastern district of Illinois. S. Graham, of Pennsylvania, called up for consideration in the RESOLUTION House the resolution impeaching Resolved, That George W. English, Judge English. By unanimous United States district judge for the eastern district of Illinois, be im- consent, the House agreed to pro- peached of misdemeanors in office; and cedures for the control and dis- that the evidence heretofore taken by tribution of debate, thereby allow- the special committee of the House of ing every Member who wished to Representatives under House Joint speak to do so: Resolution 347, sustains five articles of impeachment, which are hereinafter THE SPEAKER: (19) The gentleman set out; and that said articles be, and from Pennsylvania [Mr. Graham] asks they are hereby, adopted by the House unanimous consent that during today of Representatives, and that the same the debate be equally divided between shall be exhibited to the Senate in the the affirmative and the negative, and following words and figures, to wit: that he control one-half of the time and the other half be controlled by the gen- Articles of impeachment of the House tleman from Alabama [Mr. Bowl- of Representatives of the United ing].(20) States of America in the name of themselves and of all of the people of On Mar. 31, the second day of the United States of America against debate on the resolution, debate George W. English, who was ap- proceeded under a unanimous- pointed, duly qualified, and commissioned to serve during good behavior consent agreement that debate in office, as United States District Judge for the Eastern District of Illi- against Judge English, see 6 Can- nois, on May 3, 1918 (18) non’s Precedents §§ 544–547. 19. Nicholas Longworth (Ohio). 18. For a more comprehensive discussion 20. 67 CONG. REC. 6585–90, 69th Cong. of the impeachment proceedings 1st Sess.

2196 IMPEACHMENT POWERS Ch. 14 § 16 continue to be equally divided be- Texas, stated a parliamentary in- tween Mr. Graham and Mr. Wil- quiry: (1) liam B. Bowling. Mr. Graham Under the rules of the House, would obtained unanimous consent that not this resolution be subject to consid- debate be concluded in 71⁄2 hours, eration under the five-minute rule for such time to be equally divided as amendment? before.(2) Speaker Nicholas Longworth, of Ohio, responded, ‘‘The Chair Voting; Motions thinks not.’’ (4) § 16.3 The previous question Following the rejection of the having been ordered on the motion to recommit, the Speaker resolution of impeachment put the question on the resolution against Judge George of impeachment and stated that it English, a motion to recom- was agreed to. Mr. William B. mit with instructions was of- Bowling, of Alabama, objected and fered and rejected, and a sep- stated that his attention had been arate vote was demanded on diverted and that he had meant to the first article, followed by ask for a separate vote on the first a vote on the resolution. article of impeachment. The Speaker stated that the demand On Apr. 1, 1926, Mr. George S. for a separate vote then came too Graham, of Pennsylvania, moved the previous question and it was late, since the demand was in ordered on the resolution im- order when the question recurred peaching Judge English. A motion on the resolution. Because of the to recommit the resolution with apparent confusion in the Cham- instructions was offered, the in- ber, the Speaker allowed Mr. structions directing the Com- Bowling to ask for a separate vote mittee on the Judiciary to take (thereby vacating, by unanimous further testimony. The motion consent, the proceedings whereby was rejected on a division vote- the resolution had been agreed yeas 101, noes 260.(3) to). Pending the motion to recom- The Speaker put the question mit, Mr. Tom T. Connally, of on Mr. Bowling’s motion to strike out Article I, which motion was 1. Id. at p. 6645. rejected. The vote then recurred 2. Id. at pp. 6662, 6663. on the resolution, which was 3. 67 CONG. REC. 6733, 6734, 69th Cong. 1st Sess. 4. Id. at p. 6733.

2197 Ch. 14 § 16 DESCHLER’S PRECEDENTS adopted by the yeas and nays— said cause, and advise the Senate that yeas 306, nays 62.(5) in consideration of the fact that said George W. English is no longer a civil The Speaker had previously officer of the United States, having stated, in response to a par- ceased to be a district judge of the liamentary inquiry by Mr. Charles United States for the eastern district R. Crisp, of Georgia, that pursu- of Illinois, the House of Representa- ant to Rule XVI clause 6, a sepa- tives does not desire further to urge rate vote could be demanded on the articles of impeachment heretofore filed in the Senate against said George any substantive proposition con- W. English.(7) tained in the resolution of impeachment.(6) On Dec. 13, 1926, the Senate adjourned sine die as a court of Discontinuance of Proceedings impeachment after agreeing to the following order, which was mes- § 16.4 Judge George English saged to the House: having resigned from the Ordered, That the impeachment pro- bench, the House adopted a ceedings against George W. English, resolution instructing the late judge of the District Court of the managers to advise the Sen- United States for the Eastern District ate that the House declined of Illinois, be and the same are, duly dismissed.(8) to further prosecute charges of impeachment. On Dec. 11, 1926, the House § 17. Impeachment of adopted the following resolution Judge Louderback in relation to the impeachment proceedings against Judge Consideration of Committee English: Report Resolved, That the managers on the part of the House of Representatives in § 17.1 The House considered the impeachment proceedings now the matter of the impeach- pending in the Senate against George ment of U.S. District Judge W. English, late judge of the District Harold Louderback under a Court of the United States for the Eastern District of Illinois, be in- unanimous-consent agree- structed to appear before the Senate, ment which allowed the mi- sitting as a court of impeachment in nority of the Committee on

5. Id. at pp. 6734, 6735. 7. 68 CONG. REC. 297, 69th Cong. 2d 6. Id. at pp. 6589, 6590, see House Sess. Rules and Manual § 791 (1973). 8. Id. at p. 344.

2198 IMPEACHMENT POWERS Ch. 14 § 17

the Judiciary to offer, to the Committee on the Judiciary finds those reported resolution recom- facts exist, then the Committee on the Judiciary makes a report to the House mending abatement of pro- recommending impeachment, and that ceedings, a substitute amend- undoubtedly is privileged. However, a ment impeaching Judge custom has grown up recently in the Louderback and setting forth Committee on the Judiciary of including in the report a censure. I do not be- articles of impeachment. lieve that the constitutional power of On Feb. 24, 1933, Speaker John impeachment includes censure. We N. Garner, of Texas, recognized have but one duty, and that is to impeach or not to impeach. Today we find Mr. Thomas D. McKeown, of a committee report censuring the Oklahoma, to call up a resolution, judge. The resolution before the House reported by the Committee on the presented by a majority of the com- Judiciary, recommending that mittee is against impeachment. The charges against Harold minority members have filed a minority report, recommending impeach- Louderback, U.S. District Judge ment. I am making this observation for the Northern District of Cali- with the hope that we may get back to fornia, did not merit impeachment the constitutional power of impeach- (H. Res. 387; H. Rept. No. 2065). ment.(10) The minority report dissented Discussion ensued as to control- from that recommendation and ling debate on the resolution so as proposed a resolution and articles to effectuate the understanding of impeachment.(9) agreed on in committee that the Mr. Earl C. Michener, of Michi- previous question not be ordered gan, commented on the fact that until the minority had an oppor- the report of the committee rec- tunity to offer an amendment in ommended censure of the judge, the nature of a substitute for the rather than impeachment: resolution. The House agreed to the fol- MR. MICHENER. Mr. Speaker, in answer to the gentleman from Alabama, lowing unanimous-consent request let me make this observation. The purpose of referring a matter of this kind 10. Id. at p. 4914. The committee report to the Committee on the Judiciary is to stated ‘‘the committee censures the determine whether or not in the opin- judge for conduct prejudicial to the ion of the Committee on the Judiciary dignity of the judiciary in appointing there is sufficient evidence to warrant incompetent receivers . . . for allow- impeachment by the House. If the ing fees that seem excessive, and for a high degree of indifference to the 9. 76 CONG. REC. 4913, 4914, 72d Cong. interest of litigants in receiverships.’’ 2d Sess. See, generally, 6 Cannon’s H. REPT. NO. 2065, Committee on Precedents § 514. the Judiciary, 72d Cong. 2d Sess.

2199 Ch. 14 § 17 DESCHLER’S PRECEDENTS propounded by Mr. McKeown (and MR. MCKEOWN: I want one-half of suggested by Speaker Garner): my time to be yielded to the gentleman from Missouri, and that the other hour THE SPEAKER: Under the rules of the shall be controlled by the gentleman House the gentleman from Oklahoma from Texas. [Mr. McKeown] has one hour in which THE SPEAKER: Then the Chair sug- to discuss this resolution, unless some gests that the gentleman from Okla- other arrangement is made. homa control all of the time. MR. MCKEOWN: Mr. Speaker, I ask MR. [HATTON W.] SUMNERS [of unanimous consent that two hours’ Texas]: Mr. Speaker, I am quite willing time be granted on a side. One-half of that the gentleman from Oklahoma mine I shall yield to the gentleman may control the time, because I am from Missouri [Mr. Dyer]. At the end sure that he will make a fair distribu- of the two hours’ time, that the pre- tion of it. vious question shall be considered as MR. MCKEOWN: Mr. Speaker, I ask ordered. unanimous consent that the time for MR. [FIORELLO H.] LAGUARDIA [of debate be limited to two hours to be New York]: Mr. Speaker, will the gen- controlled by myself, that during that tleman yield? time the gentleman from New York MR. MCKEOWN: Yes. [Mr. La Guardia] be permitted to offer MR. LAGUARDIA: The gentleman will a substitute for the resolution and at remember that the committee unani- the conclusion of the time for debate mously voted that the previous ques- the previous question be considered as tion should not be considered as or- ordered. dered until the majority had oppor- THE SPEAKER: Then the Chair sub- tunity to offer the articles of impeach- mits this: The gentleman from Okla- ment. homa asks unanimous consent that de- MR. MCKEOWN: I yield now to the bate be limited to two hours, to be con- gentleman for that purpose. trolled by the gentleman from Okla- THE SPEAKER: If gentlemen will per- homa, that at the end of that time the mit, let the Chair make a suggestion. previous question shall be considered The Chair understands that the com- as ordered, with the privilege, how- mittee has something of an under- ever, of a substitute resolution being standing that there would be an oppor- offered, to be included in the previous tunity to vote upon the substitute for question. Is there objection? the majority resolution. Is that correct? MR. [WILLIAM B.] BANKHEAD [of Ala- MR. MCKEOWN: Yes. bama]: Mr. Speaker, reserving the THE SPEAKER: Then the Chair sug- right to object for the purpose of get- gests to the gentleman from Oklahoma ting the parliamentary situation clari- that he ask unanimous consent that fied before we get to the merits, is general debate be limited to two hours, there any question in the mind of the one-half to be controlled by himself, Speaker, if it is fair to submit such a and one-half to be controlled by the suggestion, as to whether or not the gentleman from New York. substitute providing for absolute im-

2200 IMPEACHMENT POWERS Ch. 14 § 17

peachment would be in order as a sub- previous question shall be considered stitute for this report? as ordered, with the privilege, how- THE SPEAKER: That is the under- ever, of a substitute resolution being standing of the Chair, that the unani- offered, to be included in the previous mous-consent agreement is, that the question. . . . gentleman from New York [Mr. There was no objection.(13) LaGuardia] may offer a substitute, the At the conclusion of the two previous question to be considered as ordered on the substitute and the origi- hours’ debate on the resolution nal resolution at the expiration of the abating the impeachment pro- two hours. Is there objection? ceedings and on the amendment There was no objection.(11) in the nature of a substitute, the Speaker put the question on the Voting substitute and answered a parliamentary inquiry as to the effect § 17.2 At the conclusion of de- of the vote: bate on the resolution and substitute therefor, in the THE SPEAKER: The question is on the substitute of the gentleman from New Harold Louderback impeach- York [Mr. LaGuardia]. ment proceedings, a yea and The question was taken, and the nay vote was taken on the Chair announced that he was in doubt. substitute, which was agreed MR. [THOMAS D.] MCKEOWN of Okla- to. homa]: Mr. Speaker, a division. MR. [CARL G.] BACHMANN [of West On Feb. 24, 1933, the House Virginia]: Mr. Speaker, I ask for the had under consideration a resolu- yeas and nays. tion abating impeachment pro- The yeas and nays were ordered. ceedings against Judge MR. [EARL C.] MICHENER [of Michi- Louderback. A unanimous-consent gan]: Mr. Speaker, a parliamentary in- agreement was adopted, as fol- quiry. lows: THE SPEAKER: The gentleman will state it. ( ) THE SPEAKER: 12 . . . The gen- MR. MICHENER: As I understand, a tleman from Oklahoma (Mr. Thomas vote of ‘‘aye’’ is a vote for impeachment D. McKeown] asks unanimous consent and a vote of ‘‘no’’ is against impeach- that debate be limited to two hours ment; is that correct? . . . that at the end of that time the THE SPEAKER: An aye vote on the substitute of the gentleman from New 11. Id. For more comprehensive treat- York is a vote to impeach and a ‘‘no’’ ment of impeachment proceedings vote is a vote against impeachment. against Judge Louderback, see 6 Cannon’s Precedents §§ 513–524. 13. 76 CONG. REC. 4914, 72d Cong. 2d 12. John N. Garner (Tex.). Sess.

2201 Ch. 14 § 17 DESCHLER’S PRECEDENTS

The Clerk will call the roll. IMPEACHMENT OF JUDGE HAROLD The question was taken; and there LOUDERBACK were—yeas 183, nays 142, answered MR. SUMNERS of Texas: Mr. Speaker, (14) ‘‘present’’ 4, not voting 97. I offer the following privileged report from the Committee on the Judiciary, Election of Managers; Continu- which I send to the desk and ask to ation of Proceedings Into have read, and ask its immediate New Congress adoption. The Clerk read as follows:

§ 17.3 The House having adopt- HOUSE RESOLUTION 402 ed articles of impeachment Resolved, That Hatton W. Sum- against Judge Harold ners, Gordon Browning, Malcolm C. Louderback, the House Tarver, Fiorello H. LaGuardia, and Charles I. Sparks, Members of this adopted resolutions appoint- House, be, and they are hereby, ap- ing managers and notifying pointed managers to conduct the impeachment against Harold the Senate of its actions, but Louderback, United States district did not resolve the question judge for the northern district of whether such managers California; and said managers are hereby instructed to appear before could, without further au- the Senate of the United States and thority, continue to rep- at the bar thereof in the name of the House of Representatives and of all resent the House in the suc- the people of the United States to ceeding Congress. impeach the said Harold Louderback of misdemeanors in office and to ex- The House having adopted the hibit to the Senate of the United articles of impeachment against States the articles of impeachment against said judge which have been Judge Louderback on Feb. 24, agreed upon by the House; and that 1933, Chairman Hatton W. Sum- the said managers do demand the ners, of Texas, of the Committee Senate take order for the appearance of said Harold Louderback to answer on the Judiciary, called up on Feb. said impeachment, and demand his 27, 1933, resolutions appointing impeachment, conviction, and re- managers and notifying the Sen- moval from office. ate of the action of the House. THE SPEAKER PRO TEMPORE: The Discussion ensued as to the power question is on agreeing to the resolu- of the managers beyond the termi- tion. MR. [THOMAS L.] BLANTON [of nation of the Congress (the Con- Texas]: Mr. Speaker, will the gen- gress was to expire on Mar. 3): tleman yield? MR. SUMNERS of Texas: Yes. 14. Id. at p. 4925. The resolution, as MR. BLANTON: Is it not usual in such amended by the substitute, was then cases to provide for the managers on agreed to. H. JOUR. 306, 72d Cong. the part of the House to interrogate 2d Sess., Feb. 24, 1933. witnesses?

2202 IMPEACHMENT POWERS Ch. 14 § 17

MR. SUMNERS of Texas: This is the Members of this Congress from serving usual resolution which is adopted. as representatives of this House before MR. BLANTON: But this resolution the Senate in the next Congress, even does embrace that power and author- though they be not Members of that ity? Congress. MR. SUMNERS of Texas: Yes. It is the MR. SUMNERS of Texas: I hope my usual resolution. friend will excuse me for not taking MR. [WILLIAM H.] STAFFORD [of Wis- the time of the House to discuss that consin]: Mr. Speaker, will the gen- feature of the matter. tleman yield? MR. STAFFORD: It is quite an impor- MR. SUMNERS of Texas: Yes. tant subject. MR. STAFFORD: This House, which is MR. SUMNERS of Texas: It is an un- about to expire, has leveled impeach- settled subject, and one we have tried ment articles against a sitting judge. It to avoid. is impracticable to have the trial of THE SPEAKER PRO TEMPORE: The that judge in the expiring days of the question is on agreeing to the resolu- Congress. Has the gentleman consid- tion. ered what the procedure will be in re- The resolution was agreed to. spect to having the trial before the Senate in the next Congress? A motion to reconsider the vote by which the resolution was agreed to was MR. SUMNERS of Texas: The Com- mittee on the Judiciary today gave full laid on the table. consideration to all of the angles that MR. SUMNERS of Texas: Mr. Speaker, suggested themselves to the committee I desire to present a privileged resolu- for consideration, and this arrange- tion. ment seems to be more in line with the The Clerk read as follows: precedents and to be most definitely suggested by the situation in which we HOUSE RESOLUTION 403 find ourselves. Resolved, That a message be sent MR. STAFFORD: Then, I assume, from to the Senate to inform them that this House has impeached Harold the gentleman’s statement, that it is Louderback, United States district the purpose that the gentlemen named judge for the Northern District of in the resolution shall represent the California, for misdemeanors in of- House in the next Congress? fice, and that the House has adopted articles of impeachment against said MR. SUMNERS of Texas: No; I believe Harold Louderback, judge as afore- not. I think it is pretty well agreed said, which the managers on the that the next Congress will probably part of the House have been directed have to appoint new managers before to carry to the Senate, and that Hat- they may proceed. I think gentlemen ton W. Sumners, Gordon Browning, on each side agree substantially with Malcolm C. Tarver, Fiorello H. LaGuardia, and Charles I. Sparks, that statement as to what probably Members of this House, have been would be required. appointed such managers. MR. STAFFORD: There is nothing in the Constitution that would prevent The resolution was agreed to.

2203 Ch. 14 § 17 DESCHLER’S PRECEDENTS

A motion to reconsider the vote by in a succeeding Congress, Chair- which the resolution was agreed to was man Sumners referred to the ( ) laid on the table. 15 lengthy period of time that could Parliamentarian’s Note: In the occur between the appointment of succeeding Congress, an issue managers, the adjournment of arose as to the power of managers Congress, and the commencement elected in one Congress to con- of a trial.(17) tinue their functions in a new § 17.4 The resolution of im- Congress. On Mar. 13, 1933, the peachment against Judge 73d Congress having convened, the Senate convened as a Court of Louderback having been pre- Impeachment and received the sented to the Senate on the managers on the part of the last day of the 72d Congress, House, who were those Members the Senate conducted the re-elected to the House who had trial in the 73d Congress. been appointed as managers in On Mar. 3, 1933, the last day of the 72d Congress (two of the five the 72d Congress under constitu- managers were not reelected to tional practice prior to the adop- the House). On Mar. 22, Mr. Sum- tion of the 20th amendment, the ners called up a resolution ap- managers on the part of the pointing two new Members, and House in the Harold Louderback reappointing the three re-elected impeachment appeared before the Senate and read the resolution Members, as managers on the and articles of impeachment. The part of the House to conduct the Senate adopted a special order impeachment trial of Judge that the Senate begin sitting for Louderback. Nevertheless, Mr. trial on the first day of the 73d Sumners asserted that the man- Congress.(18) agers elected in one Congress had President Franklin D. Roosevelt the capacity to continue in that convened the 73d Congress on function in a new Congress with- Mar. 9,1933, prior to the constitu- ( ) out reappointment. 16 tional day of the first Monday in In arguing that the impeach- December, and the Senate orga- ment managers elected by one nized for trial on that date, pursu- House should retain their powers ant to its special order.(19)

15. 76 CONG. REC. 5177, 5178, 72d Cong. 17. See 6 Cannon’s Precedents § 517. 2d Sess. 18. 6 Cannon’s Precedents § 515. 16. See 6 Cannon’s Precedents §§ 516, 19. 6 Cannon’s Precedents § 516. For the 517. proclamation convening the 73d Con-

2204 IMPEACHMENT POWERS Ch. 14 § 18

§ 18. Impeachment of On June 1, 1933, the Committee Judge Ritter on the Judiciary reported House Resolution 163 (H. Rept. No. 191) Authorization of Investigation with committee amendments; the resolution was referred to the § 18.1 The Committee on the Committee of the Whole House on Judiciary reported in the 73d the state of the Union, since the Congress a resolution au- original resolution contained an thorizing an investigation appropriation.(21) into the conduct of Halsted On the same day, Hatton W. Ritter, a U.S. District Court Sumners, of Texas, Chairman of judge; the resolution was re- the Committee on the Judiciary, ferred to the Union Calendar asked unanimous consent to con- and considered and adopted sider House Resolution 163 in the in the House as in the Com- House as in the Committee of the mittee of the Whole by unani- Whole. The resolution and com- mous consent. mittee amendments read as fol- On May 29, 1933, Mr. J. Mark lows: Wilcox, of Florida, placed in the HOUSE RESOLUTION 163 hopper a resolution (H. Res. 163) authorizing the Committee on the Resolved, That the Committee on the Judiciary is authorized and directed, Judiciary to investigate the con- as a whole or by subcommittee, to in- duct of Halsted Ritter, District quire into and investigate the official Judge for the U.S. District Court conduct of Halsted L. Ritter, a district for the Southern District of Flor- judge for the United States District ida, to determine whether in the Court for the Southern District of Flor- opinion of the committee he had ida, to determine whether in the opin- been guilty of any high crime or ion of said committee he has been guilty of any high crime or mis- misdemeanor. The resolution was demeanor which in the contemplation referred to the Committee on the of the Constitution requires the inter- ( ) Judiciary. 20 position of the Constitutional powers of the House. Said committee shall report gress, see H. JOUR. 3, 73d Cong. 1st its findings to the House, together with Sess., Mar. 9, 1933. such resolution of impeachment or On May 24, 1933, the Senate ac- other recommendation as it deems quitted Judge Louderback on all ar- proper. ticles. See 6 Cannon’s Precedents Sec. 2. For the purpose of this reso- § 524. lution, the committee is authorized to 20. 77 CONG. REC. 4575, 73d Cong. 1st Sess. 21. Id. at p. 4796.

2205 Ch. 14 § 18 DESCHLER’S PRECEDENTS

sit and act during the present Con- against Judge Ritter, but a sub- gress at such times and places in the committee of the committee inves- District of Columbia and elsewhere, tigated the charges and gathered whether or not the House is sitting, has recessed, or has adjourned, to hold testimony and evidence pursuant such hearing, to employ such clerical, to House Resolution 163. stenographic, and other assistance, to The evidence gathered was the require the attendance of such wit- basis for House Resolution 422 in nesses and the production of such the 74th Congress, impeaching books, papers, and documents, and to take such testimony, to have such Judge Ritter, and both that reso- printing and binding done, and to lution and the report of the Com- make such expenditures not exceeding mittee on the Judiciary in the $5,000, as it deems necessary. 74th Congress (H. Rept. No. 2025) With the following committee referred to the investigation con- amendments: ducted under House Resolution Page 2, line 5, strike out the words 163, 73d Congress. ‘‘to employ such clerical, stenographic, and other assistance’’; and in line 9, on The Chairman of the sub- page 2, strike out ‘‘to have such print- committee, Malcolm C. Tarver, of ing and binding done, and to make Georgia, made a report recom- such expenditures, not exceeding mending impeachment to the full $5,000.’’ committee; the report was printed After brief debate, the House as in the Record in the 74th Con- in the Committee of the Whole gress.(2) adopted the resolution as amended by the committee amend- Presentation of Charges ments.(1) The Committee on the Judiciary § 18.2 In the 74th Congress, a made no report to the House, Member rose to a question of prior to the expiration of the 73d constitutional privilege and Congress, in the matter of charges presented charges against Judge Ritter, which were re- 1. Id. at pp. 4784, 4785. ferred to the Committee on The House adopted a resolution, the Judiciary. reported by the Committee on Ac- counts, authorizing payment out of On Jan. 14, 1936, Mr. Robert A. the contingent fund for expenses of Green, of Florida, a member of the the Committee on the Judiciary in Committee on the Judiciary, rose conducting its investigation under H. to a question of constitutional Res. 163; see H. Res. 172, 77 CONG. REC. 5429, 5430, 73d Cong. 1st Sess., 2. 80 CONG. REC. 408–10, 74th Cong. June 9. 1933. 2d Sess., Jan. 14, 1936.

2206 IMPEACHMENT POWERS Ch. 14 § 18 privilege and on his own responsi- MR. BLANTON: What action was bility impeached Judge Halsted taken on the Tarver report? If this offi- Ritter for high crimes and mis- cial is the kind of judge the Tarver report indicates, why was he not then demeanors. Although he pre- impeached and tried by the Senate? sented no resolution, he delivered MR. GREEN: That is the question lengthy and specific charges that is now foremost in my mind. Since against the accused. He indicated Judge Tarver’s service as chairman of his intention to read, as part of the Judiciary Subcommittee he has his speech, a report submitted to been transferred from the House Judi- ciary Committee to the House Com- the Committee on the Judiciary mittee on Appropriations. He is not by Malcolm C. Tarver, of Georgia, now a member of the Judiciary Com- past Chairman of a subcommittee mittee. of the Committee on the Judici- I firmly believe that when our col- ary, which subcommittee had in- leagues understand the situation thor- vestigated the charges against oughly, there will be no hesitancy in Judge Ritter pursuant to House bringing about Ritter’s impeachment by a direct vote on the floor of the Resolution 163, adopted by the House. My purpose in this is to get it House in the 73d Congress. in concrete form, in compliance with In response to inquiries, Mr. the rules of the House, so that the di- Green summarized the status of rect impeachment will be handled by the investigation and his reason the Committee on the Judiciary. At present impeachment is not before the for rising to a question of constitu- committee. This will give the Judiciary tional privilege: something to act upon. MR. [JOHN J.] O’CONNOR [of New MR. BLANTON: Was he not im- York]: Of course, ordinarily the matter peached in the House before when the would be referred to the Committee on Tarver investigation was made? the Judiciary. Does the gentleman Mr. Green: No. He was never im- think he must proceed longer in the peached. There was a resolution matter at this time? passed by the House directing an in- MR. GREEN: My understanding is, I vestigation to be made by the Judiciary may say to the chairman of the Rules Committee. Committee, that the articles of im- MR. BLANTON: Was that not a reso- peachment will be referred to the Com- lution that followed just such impeach- mittee on the Judiciary for its further ment charges in the House as the gen- consideration and action. I do not in- tleman from Florida is now making? tend to consume any more time than is MR. GREEN: I understand that arti- absolutely necessary. cles of impeachment have not been MR. [THOMAS L.] BLANTON [of heretofore filed in this case. Texas]: Will the gentleman yield? MR. BLANTON: Was the Tarver re- Mr. Green: I yield. port, to which the gentleman has re-

2207 Ch. 14 § 18 DESCHLER’S PRECEDENTS

ferred, filed with the Judiciary Com- conduct against Judge Ritter (H. mittee? Rept. No. 2025). The report, which MR. GREEN: It is my understanding was referred to the House Cal- that it is now in their hands.(3) endar and ordered printed, read Mr. Green inserted the text of as follows: the Tarver report, which recommended impeachment, in his The Committee on the Judiciary, remarks.(4) having had under consideration charges of official misconduct against At the conclusion of Mr. Green’s Halsted L. Ritter, a district judge of remarks, Mr. O’Connor moved the United States for the Southern that ‘‘the proceedings be referred District of Florida, and having taken to the Committee on the Judici- testimony with regard to the official ary.’’ The motion was agreed to.(5) conduct of said judge under the authority of House Resolution 163 of the Sev- § 18.3 The Committee on the enty-third Congress, report the accom- Judiciary reported in the panying resolution of impeachment 74th Congress a resolution and articles of impeachment against Halsted L. Ritter to the House of Rep- impeaching Judge Halsted resentatives with the recommendation Ritter on four articles of im- that the same be adopted by the House peachment; the resolution re- and presented to the Senate.(7) ferred to the investigation The resolving clause of the reso- undertaken pursuant to au- lution recited that the evidence thorizing resolution in the taken by a subcommittee of the 73d Congress. Committee on the Judiciary under On Feb. 20, 1936, Mr. Hatton House Resolution 163 of the 73d W. Sumners, of Texas, introduced Congress sustained impeach- House Resolution 422, impeaching ment.(8) Judge Ritter; the resolution was referred to the Committee on the Consideration and Adoption of Judiciary.(6) On the same day, Mr. Articles of Impeachment Sumners, Chairman of the committee, submitted a privileged re- § 18.4 The House considered port on the charges of official mis- and adopted a resolution and articles of impeachment 3. 80 CONG. REC. 404, 405, 74th Cong. against Judge Halsted Ritter, 2d Sess. 4. Id. at pp. 408–410. 7. Id. at p. 2528. 5. Id. at p. 410. 8. For the text of the resolution and ar- 6. 80 CONG. REC. 2534, 74th Cong. 2d ticles of impeachment, see § 18.7, Sess. infra.

2208 IMPEACHMENT POWERS Ch. 14 § 18

pursuant to a unanimous- the subcommittee of the Committee on consent agreement fixing the the Judiciary of the House of Rep- time for and control of de- resentatives under House Resolution 163 of the Seventy-third Congress sus- bate. tains articles of impeachment, which On Mar. 2, 1936, Mr. Hatton W. are hereinafter set out; and that the Sumners, of Texas, called up for said articles be, and they are hereby, immediate consideration a resolu- adopted by the House of Representa- tives, and that the same shall be ex- tion (H. Res. 422), which the hibited to the Senate in the following Clerk read at the direction of words and figures, to wit: . . . (10) Speaker Joseph W. Byrns, of Ten- The House then discussed the nessee. Mr. Sumners indicated his maintenance of order during de- intention to conclude the pro- bate on the resolution: ceedings and have a vote on the resolution before adjournment. MR. [WILLIAM B.] BANKHEAD [of Ala- The House agreed to his unani- bama]: Mr. Speaker, I realize that there is a full membership of the mous-consent request for consider- House here today, and properly so, be- ( ) ation of the resolution: 9 cause impeachment proceedings are a matter of grave importance. THE SPEAKER: The gentleman from Texas asks unanimous consent that de- The proceedings are inquisitorial, bate on this resolution be continued for and in order that we may arrive at a 41⁄2 hours, 21⁄2 hours to be controlled correct judgment with reference to the by himself and 2 hours by the gen- matter and form an intelligent opinion tleman from New York [Mr. Hancock]; as to how we shall vote, it is absolutely and at the expiration of the time the necessary and essential that we have previous question shall be considered order in the Chamber during the pro- as ordered. Is there objection? ceedings. There was no objection. I know it is difficult at all times to get gentlemen to refrain from con- The resolving clause to the arti- versation, but I make a special appeal cles read as follows: to the membership of the House on this occasion, in view of the serious im- RESOLUTION portance of the proceedings, that they Resolved, That Halsted L. Ritter, will be quiet and listen to the speakers who is a United States district judge so that we may vote intelligently on for the southern district of Florida, be this matter. [Applause.] impeached for misbehavior, and for THE SPEAKER: The Chair wishes to high crimes and misdemeanors; and emphasize what the gentleman from that the evidence heretofore taken by 10. Id. at p. 3066. For the full text of the 9. 80 CONG. REC. 3066–69, 74th Cong. resolution and articles, see § 18.7, 2d Sess. infra.

2209 Ch. 14 § 18 DESCHLER’S PRECEDENTS

Alabama has said. There is but one lated to impeachment proceedings way to maintain order, and that is for against Judge Ritter: Members to cease conversation, because a little conversation here and a IMPEACHMENT OF HALSTED L. RITTER little there creates confusion that MR. SUMNERS of Texas: Mr. Speaker, makes it difficult for speakers to be I send to the desk the three resolutions heard.(11) which are the usual resolutions offered when an impeachment has been voted Time for debate having expired, by the House, and I ask unanimous Speaker Byrns stated that pursu- consent that they may be read and ant to the order of the House the considered en bloc. previous question was ordered. By MR. [BERTRAND H.] SNELL [of New the yeas and nays, the House York]: Mr. Speaker, reserving the right to object, I do not know that I under- agreed to the resolution of im- stand the situation we are in at the peachment—yeas 181, nays 146, present time. Will the gentleman represent 7, not voting 96.(12) state his request? THE SPEAKER: (14) The request is to Election of Managers have read the three resolutions and have them considered en bloc. § 18.5 The House adopted reso- MR. SUMNERS of Texas: I may say to the gentleman from New York, they lutions appointing managers are the three resolutions usually of- to conduct the impeachment fered and they are in the language trial, empowering the man- used when the House has voted an im- agers to employ staff and to peachment. prepare and conduct im- MR. SNELL: And the gentleman from peachment proceedings, and Texas wants them considered at one time? notifying the Senate that the MR. SUMNERS of Texas: Yes. House had adopted articles There being no objection, the Clerk and appointed managers. read the resolutions, as follows: (13) On Mar. 6, 1936, following HOUSE RESOLUTION 439 the adoption of articles of im- Resolved, That Hatton W. Sum- peachment on Mar. 2, Mr. Hatton ners, Randolph Perkins, and Sam W. Sumners, of Texas, offered res- Hobbs, Members of this House, be, and they are hereby, appointed man- olutions of a privileged nature re- agers to conduct the impeachment against Halsted L. Ritter, United 11. Id. at p. 3069. States district judge for the southern district of Florida; that said man- 12. Id. at p. 3091. agers are hereby instructed to ap- 13. 80 CONG. REC. 3393, 3394, 74th Cong. 2d Sess. 14. Joseph W. Byrns (Tenn.).

2210 IMPEACHMENT POWERS Ch. 14 § 18 pear before the Senate of the United with the Secretary of the Senate, on States and at the bar thereof in the the part of the House of Representa- name of the House of Representa- tives, any subsequent pleadings tives and of all the people of the which they shall deem necessary: United States to impeach the said Provided, That the total expendi- Halsted L. Ritter of high crimes and tures authorized by this resolution misdemeanors in office and to ex- shall not exceed $2,500. hibit to the Senate of the United States the articles of impeachment MR. SNELL: Mr. Speaker, may I ask against said judge which have been the gentleman from Texas one further agreed upon by this House; and that question? Is this exactly the procedure the said managers do demand that that has always been followed by the the Senate take order for the appearance of said Halsted L. Ritter to an- House under similar conditions? swer said impeachment, and demand MR. SUMNERS of Texas: Insofar as I his impeachment, conviction, and re- know, it does not vary from the proce- moval from office. dure that has been followed since the beginning of the Government. HOUSE RESOLUTION 440 Resolved, That a message be sent The resolutions were agreed to. to the Senate to inform them that this House has impeached for high House-Senate Communications crimes and misdemeanors Halsted L. Ritter, United States district judge for the southern district of Florida, § 18.6 The House having noti- and that the House adopted articles fied the Senate of its im- of impeachment against said Halsted peachment of Judge Halsted L. Ritter, judge as aforesaid, which the managers on the part of the Ritter, the Senate commu- House have been directed to carry to nicated its readiness to re- the Senate, and that Hatton W. Sumners, Randolph Perkins, and ceive the House managers Sam Hobbs, Members of this House, and discussed the Senate have been appointed such managers. rules for impeachment trials. HOUSE RESOLUTION 441 On Mar. 9, 1936, Vice President Resolved, That the managers on John N. Garner laid before the the part of the House in the matter Senate a communication from the of the impeachment of Halsted L. Ritter, United States district judge House of Representatives: for the southern district of Florida, HOUSE RESOLUTION 440 be, and they are hereby, authorized IN THE HOUSE to employ legal, clerical, and other OF REPRESENTATIVES, necessary assistants and to incur United States, March 6, 1936. such expenses as may be necessary in the preparation and conduct of Resolved, That a message be sent to the case, to be paid out of the contin- the Senate to inform them that this gent fund of the House on vouchers House has impeached for high crimes approved by the managers, and the managers have power to send for and misdemeanors Halsted L. Ritter, persons and papers, and also that United States district judge for the the managers have authority to file southern district of Florida, and that

2211 Ch. 14 § 18 DESCHLER’S PRECEDENTS

the House adopted articles of impeach- Senator Henry F. Ashurst, of ment against said Halsted L. Ritter, Arizona, responded that the Sen- judge as aforesaid, which the man- ate Committee on the Judiciary agers on the part of the House have been directed to carry to the Senate, had considered the rules and cited and that Hatton W. Sumners, Ran- a change recently made in the dolph Perkins, and Sam Hobbs, Mem- rules for impeachment trials: bers of this House, have been ap- It will be remembered that in the pointed such managers. trial of the Louderback case it was The Senate adopted the fol- suggested that the trial was dreary, in- lowing order: volved, and protracted, and that it was not according to public policy to have Ordered, That the Secretary inform 96 Senators sit and take testimony. the House of Representatives that the Subsequently, not a dozen, not 20, but Senate is ready to receive the man- at least 40 Senators urged that the agers appointed by the House for the Senate Committee on the Judiciary purpose of exhibiting articles of im- give its attention to the question peachment against Halsted L. Ritter, whether or not a committee appointed United States district judge for the by the Presiding Officer could take the southern district of Florida, agreeably testimony in impeachment trials, to the notice communicated to the Sen- whereupon a resolution was introduced ate, and that at the hour of 1 o’clock by the chairman of the Senate Com- p.m. on Tuesday, March 10, 1936, the mittee on the Judiciary and was adopt- Senate will receive the honorable man- ed. I ask that that resolution be incor- agers on the part of the House of Rep- porated in my remarks at this point. resentatives, in order that they may THE PRESIDENT PRO TEMPORE:(16) present and exhibit the said articles of Without objection, it is so ordered. impeachment against the said Halsted The resolution is as follows (Sub- L. Ritter, United States district judge mitted by Mr. Ashurst): for the southern district of Florida. THE VICE PRESIDENT: The Secretary Resolved, That in the trial of any will carry out the order of the sen- impeachment the Presiding Officer ( ) of the Senate, upon the order of the ate 15 Senate, shall appoint a committee of 12 Senators to receive evidence and Senator Elbert D. Thomas, of take testimony at such times and Utah, discussed the function of places as the committee may deter- the Senate in sitting as a court of mine, and for such purpose the committee so appointed and the chair- impeachment and inquired wheth- man thereof, to be elected by the er any review was being under- committee, shall (unless otherwise taken of the Senate rules for im- ordered by the Senate) exercise all the powers and functions conferred peachment trials. upon the Senate and the Presiding Officer of the Senate, respectively, 15. 80 CONG. REC. 3423, 3424, 74th Cong. 2d Sess. 16. Key Pittman (Nev.).

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under the rules of procedure and quently decline to defend it, but I am practice in the Senate when sitting not defending it more than to say that, on impeachment trials. in my opinion, it is perfectly constitu- Unless otherwise ordered by the tional to do what the resolution pro- Senate, the rules of procedure and vides. If the Senate so desired, it could practice in the Senate when sitting on impeachment trials shall govern appoint a committee to take the testi- the procedure and practice of the mony, which would be reduced to writ- committee so appointed. The coming, and be laid before the Senators mittee so appointed shall report to the next morning in the Congressional the Senate in writing a certified copy Record. If a Senator were absent dur- of the transcript of the proceedings ing one day of the trial, he could read and testimony had and given before the testimony as printed the next such committee, and such report ( ) shall be received by the Senate and morning. 17 the evidence so received and the tes- Senator Warren R. Austin, of timony so taken shall be considered to all intents and purposes, subject Vermont, of the Committee on the to the right of the Senate to deter- Judiciary, asked unanimous con- mine competency, relevancy, and sent to have printed in the Record materiality, as having been received and taken before the Senate, but a ruling, cited in 3 Hinds’ Prece- nothing herein shall prevent the dents section 2006, that an im- Senate from sending for any witness and hearing his testimony in open peachment trial could only pro- Senate, or by order of the Senate ceed when Congress was in ses- having the entire trial in open Sen- sion.(18) ate.

MR. ASHURST: The resolution was Initiation of Impeachment agreed to by the Senate. It does not Trial provide for a trial by 12 Senators. It simply provides that a committee of § 18.7 The managers on the 12, appointed by the Presiding Officer part of the House appeared of the Senate, may take the testimony, the Senate declaring and determining in the Senate, read the arti- in advance whether it desires that pro- cles, reserved their right to cedure, or otherwise, and that after amend them, and demanded such evidence is taken by this com- that Judge Halsted Ritter be mittee of 12, the Senate reviews the testimony in its printed form, and the put to answer the charges; Senate may take additional testimony the Senate organized for or may then rehear the testimony of any of the witnesses heard by the com- 17. 80 CONG. REC. 3424, 3425, 74th mittee. The Senate reserves to itself Cong. 2d Sess. For the adoption of every power and every authority it has the change referred to by Senator under the Constitution. Ashurst, see 79 CONG. REC. 8309, It could not be expected that I would 8310, 74th Cong. 1st Sess., May 28, draw, present, and urge the Senate to 1935. pass such resolution and then subse- 18. Id. at p. 3426.

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trial as a Court of Impeach- stand at the desk in front of the ment. Chair: (20) On Mar. 10, 1936, pursuant to Mr. Manager Hobbs, from the place the Senate’s order of Mar. 9, the suggested by the Vice President, said: managers on the part of the Mr. President and gentlemen of the House appeared before the bar of Senate: the Senate and were announced ARTICLES OF IMPEACHMENT AGAINST by the Secretary to the majority, HALSTED L. RITTER who escorted them to their as- House Resolution 422, Seventy- signed seats. fourth Congress, second session Vice President John N. Garner Congress of the United States of directed the Sergeant at Arms to America make proclamation: IN THE HOUSE OF REPRESENTATIVES, The Sergeant at Arms, Chesley W. UNITED STATES Jurney, made proclamation, as follows: March 2, 1936. Hear ye! Hear ye! Hear ye! All per- Resolved, That Halsted L. Ritter, sons are commanded to keep silent, on who is a United States district judge pain of imprisonment, while the House for the southern district of Florida, of Representatives is exhibiting to the be impeached for misbehavior and Senate of the United States articles of for high crimes and misdemeanors; impeachment against Halsted L. Rit- and that the evidence heretofore taken by the subcommittee of the ter, United States district judge in and Committee on the Judiciary of the for the southern district of Florida.(19) House of Representatives under House Resolution 163 of the Sev- Representative Hatton W. Sum- enty-third Congress sustains articles ners, of Texas, read the resolution of impeachment, which are herein- adopted by the House (H. Res. after set out; and that the said articles be, and they are hereby, adopted 439) which directed the managers by the House of Representatives, and to appear before the bar of the that the same shall be exhibited to the Senate in the following words Senate. Representative Sam and figures, to wit: Hobbs, of Alabama, read the arti- Articles of impeachment of the cles of impeachment, the Vice House of Representatives of the President requesting that he United States of America in the name of themselves and of all of 19. 80 CONG. REC. 3485, 74th Cong. 2d the people of the United States of Sess. America against Halsted L. Ritter, who was appointed, duly qualified, For the text of the proceedings in and commissioned to serve, during the Senate upon the appearance of good behavior in office, as United the managers to present the articles of impeachment against Judge Rit- 20. 80 CONG. REC. 3486–88, 74th Cong. ter, see § 11.4, supra. 2d Sess.

2214 IMPEACHMENT POWERS Ch. 14 § 18

States district judge for the south- Thereafterward, notwithstanding ern district of Florida, on February the said Judge Akerman, in compli- 15, 1929. ance with Judge Ritter’s request, allowed the said Rankin a fee of ARTICLE I $15,000 for his services in said case, from which sum the said $2,500 That the said Halsted L. Ritter, theretofore allowed the said Rankin having been nominated by the Presi- by Judge Ritter as an advance on his dent of the United States, confirmed fee was deducted, the said Judge Rit- by the Senate of the United States, ter, well knowing that at his request duly qualified and commissioned, compensation had been fixed by and while acting as a United States Judge Akerman for the said Rankin’s district judge for the southern dis- services in said case, and notwith- trict of Florida, was and is guilty of standing the restraint of propriety misbehavior and of a high crime and expressed in his said letter to Judge misdemeanor in office in manner Akerman, and ignoring the danger of and form as follows, to wit: On or embarrassment mentioned in said about October 11, 1929, A. L. Rankin letter, did fix an additional and exor- (who had been a law partner of said bitant fee for the said Rankin in said judge immediately before said case. On or about December 24, judge’s appointment as judge), as so- 1930, when the final decree in said licitor for the plaintiff, filed in the case was signed, the said Judge Rit- court of the said Judge Ritter a cer- ter allowed the said Rankin, addi- tain foreclosure suit and receivership tional to the total allowance of proceeding, the same being styled $15,000 theretofore allowed by Judge ‘‘Bert E. Holland and others against Akerman, a fee of $75,000 for his Whitehall Building and Operating services in said case, out of which al- Company and others’’ (No. 678–M– lowance the said Judge Ritter di- Eq.). On or about May 15, 1930, the rectly profited. On the same day, De- said Judge Ritter allowed the said cember 24, 1930, the receiver in said Rankin an advance of $2,500 on his case paid the said Rankin, as part of fee for his services in said case. On his said additional fee, the sum of or about July 2, 1930, the said Judge $25,000, and the said Rankin on the Ritter by letter requested another same day privately paid and deliv- judge of the United States District ered to the said Judge Ritter the Court for the Southern District of sum of $2,500 in cash; $2,000 of said Florida, to wit, Hon. Alexander $2,500 was deposited in bank by Akerman, to fix and determine the Judge Ritter on, to wit, December total allowance for the said Rankin 29, 1930, the remaining $500 being for his services in said case for the kept by Judge Ritter and not depos- reason as stated by Judge Ritter in ited in bank until, to wit, July 10, said letter, that the said Rankin had 1931. Between the time of such ini- formerly been the law partner of the tial payment on said additional fee said Judge Ritter, and he did not feel and April 6, 1931, the said receiver that he should pass upon the total paid said Rankin thereon $5,000. On allowance made said Rankin in that or about April 6, 1931, the said case, and that if Judge Akerman Rankin received the balance of the would fix the allowance it would re- said additional fee allowed him by lieve the writer, Judge Ritter, from Judge Ritter, said balance amount- any embarrassment if thereafter any ing to $45,000. Shortly thereafter, on question should arise as to his, or about April 14, 1931, the said Judge Ritter’s favoring said Rankin Rankin paid and delivered to the with an exorbitant fee. said Judge Ritter, privately, in cash,

2215 Ch. 14 § 18 DESCHLER’S PRECEDENTS

an additional sum of $2,000. The said appointment until its sale on said Judge Halsted L. Ritter cor- the 3d of January 1929, under the ruptly and unlawfully accepted and foreclosure of a third mortgage received for his own use and benefit thereon. On the 1st of November and from the said A. L. Rankin the afore- the 13th of December 1929, the said said sums of money, amounting to Judge Ritter made orders in said $4,500. bankruptcy proceedings allowing the Wherefore the said Judge Halsted said Walter S. Richardson as trustee L. Ritter was and is guilty of mis- the sum of $16,500 as compensation behavior and was and is guilty of a for his services as trustee. That be- high crime and misdemeanor. fore the discharge of said Walter S. Richardson as such trustee, said ARTICLE II Richardson, together with said A. L. That the said Halsted L. Ritter, Rankin, one Ernest Metcalf, one while holding the office of United Martin Sweeney, and the said Hal- States district judge for the southern sted L. Ritter, entered into an ar- district of Florida, having been nomi- rangement to secure permission of nated by the President of the United the holder or holders of at least States, confirmed by the Senate of $50,000 of first-mortgage bonds on the United States, duly qualified and said hotel property for the purpose of commissioned, and while acting as a filing a bill to foreclose the first United States district judge for the mortgage on said premises in the southern district of Florida, was and court of said Halsted L. Ritter, by is guilty of misbehavior and of high which means the said Richardson, crimes and misdemeanors in office in Rankin, Metcalf, Sweeney, and Rit- manner and form as follows, to wit: ter were to continue said property in On the 15th day of February 1929 litigation before said Ritter. On the the said Halsted L. Ritter, having 30th day of August 1929, the said been appointed as United States dis- Walter S. Richardson, in furtherance trict judge for the southern district of said arrangement and under- of Florida, was duly qualified and standing, wrote a letter to the said commissioned to serve as such dur- Martin Sweeney, in New York, sug- ing good behavior in office. Imme- gesting the desirability of contacting diately prior thereto and for several as many first mortgage bondholders years the said Halsted L. Ritter had as possible in order that their co- practiced law in said district in part- operation might be secured, directing nership with one A. L. Rankin, special attention to Mr. Bert E. Hol- which partnership was dissolved land, an attorney, whose address upon the appointment of said Ritter was in the Tremont Building in Bos- as said United States district judge. ton, and who, as cotrustee, was the On the 18th day of July 1928 one holder of $50,000 of first-mortgage Walter S. Richardson was elected bonds, the amount of bonds required trustee in bankruptcy of the White- to institute the contemplated pro- hall Building & Operating Co., which ceedings in Judge Ritter’s court. company had been adjudicated in On October 3, 1929, the said Bert said district as a bankrupt, and as E. Holland, being solicited by the such trustee took charge of the as- said Sweeney, requested the said sets of said Whitehall Building & Rankin and Metcalf to prepare a Operating Co., which consisted of a complaint to file in said Judge Rit- hotel property located in Palm Beach ter’s court for foreclosure of said first in said district. That the said Rich- mortgage and the appointment of a ardson as such trustee operated said receiver. At this time Judge Ritter hotel property from the time of his was holding court in Brooklyn, N.Y.,

2216 IMPEACHMENT POWERS Ch. 14 § 18 and the said Rankin and Richardson hereinbefore recited, wrongfully and went from West Palm Beach, Fla., to oppressively exercised the powers of Brooklyn, N.Y., and called upon said his office to carry into execution said Judge Ritter a short time previous to plan and agreement theretofore ar- filing the bill for foreclosure and ap- rived at, and refused to grant the re- pointment of a receiver of said hotel quest of the said Holland and made property. effective the champertous under- On October 10, 1929, and before taking of the said Richardson and the filing of said bill for foreclosure Rankin and appointed the said Rich- and receiver, the said Holland with- ardson receiver of the said hotel drew his authority to said Rankin property, notwithstanding that objec- and Metcalf to file said bill and noti- tion was made to Judge Ritter that fied the said Rankin not to file the said Richardson had been active in said bill. Notwithstanding the said fomenting this litigation and was not instructions to said Rankin not to a proper person to act as receiver. file said bill, said Rankin, on the On October 15, 1929, said Rankin 11th day of October, 1929, filed said made oath to each of the bills for in- bill with the clerk of the United tervenors which were filed the next States District Court for the South- day. ern District of Florida, but with the On October 16, 1929, bills for specific request to said clerk to lock intervention in said foreclosure suit up the said bill as soon as it was were filed by said Rankin and filed and hold until Judge Ritter’s re- Metcalf in the names of holders of turn so that there would be no news- approximately $5,000 of said first- paper publicity before the matter mortgage bonds, which intervenors was heard by Judge Ritter for the did not possess the said requisite appointment of a receiver, which re- $50,000 in bonds required by said quest on the part of the said Rankin first mortgage to bring foreclosure was complied with by the said clerk. proceedings on the part of the bond- On October 16, 1929, the said Hol- holders. land telegraphed to the said Rankin, The said Rankin and Metcalf ap- referring to his previous wire re- peared as attorneys for complainants questing him to refrain from filing and intervenors, and in response to a the bill and insisting that the matter suggestion of the said Judge Ritter, remain in its then status until fur- the said Metcalf withdrew as attor- ther instruction was given; and on ney for complainants and interve- October 17, 1929, the said Rankin nors and said Judge Ritter there- wired to Holland that he would not upon appointed said Metcalf as at- make an application on his behalf for torney for the said Richardson, the the appointment of a receiver. On receiver. October 28, 1929, a hearing on the And in the further carrying out of complaint and petition for receiver- said arrangement and under- ship was heard before Judge Halsted standing, the said Richardson em- L. Ritter at Miami, at which hearing ployed the said Martin Sweeney and the said Bert E. Holland appeared in one Bemis, together with Ed person before said Judge Ritter and Sweeney, as managers of said prop- advised the judge that he wished to erty, for which they were paid the withdraw the suit and asked for dis- sum of $60,000 for the management missal of the bill of complaint on the of said hotel for the two seasons the ground that the bill was filed with- property remained in the custody of out his authority. said Richardson as receiver. But the said Judge Ritter, fully ad- On or about the 15th of May 1930 vised of the facts and circumstances the said Judge Ritter allowed the

2217 Ch. 14 § 18 DESCHLER’S PRECEDENTS

said Rankin an advance on his fee of the $2,500 theretofore allowed by $2,500 for his services in said case. Judge Ritter, making a total of On or about July 2, 1930, the said $15,000 as the fee of the said Rankin Judge Ritter requested Judge Alex- in the said case. ander Akerman, also a judge of the But notwithstanding the said re- United States District Court for the quest on the part of said Ritter and Southern District of Florida, to fix the compliance by the said Judge the total allowance for the said Akerman and the reasons for the Rankin for his services in said case, making of said request by said Judge said request and the reasons there- Ritter of Judge Akerman, the said for being set forth in a letter by the Judge Ritter, on the 24th day of De- said Judge Ritter, in words and fig- cember 1930, allowed the said ures as follows, to wit: Rankin an additional fee of $75,000. JULY 2, 1930. And on the same date when the Hon. ALEXANDER AKERMAN, receiver in said case paid to the said United States District Judge, Rankin as a part of said additional Tampa, Fla. fee the sum of $25,000, said Rankin privately paid and delivered to said MY DEAR JUDGE: In the case of Judge Ritter out of the said $25,000 Holland et al. v. Whitehall Building the sum of $2,500 in cash, $2,000 of & Operating Co. (No. 678–M–Eq.), which the said Judge Ritter depos- pending in my division, my former ited in a bank and $500 of which law partner, Judge A. L. Rankin, of was put in a tin box and not depos- West Palm Beach, has filed a peti- ited until the 10th day of July 1931, tion for an order allowing compensa- when it was deposited in a bank tion for his services on behalf of the with an additional sum of $600. plaintiff. On or about the 6th day of April I do not feel that I should pass, 1931, the said Rankin received as a under the circumstances, upon the part of the $75,000 additional fee the total allowance to be made Judge sum of $45,000, and shortly there- Rankin in this matter. I did issue an after, on or before the 14th day of order, which Judge Rankin will ex- April 1931, the said Rankin paid and hibit to you, approving an advance of delivered to said Judge Ritter, pri- $2,500 on his claim, which was ap- vately and in cash, out of said proved by all attorneys. $45,000 the sum of $2,000. You will appreciate my position in The said Judge Halsted L. Ritter the matter, and I request you to pass corruptly and unlawfully accepted upon the total allowance which and received for his own use and should be made Judge Rankin in the benefit from the said Rankin the premises as an accommodation to aforesaid sums of $2,500 in cash and me. This will relieve me from any $2,000 in cash, amounting in all to embarrassment hereafter if the ques- $4,500. tion should arise as to my favoring Judge Rankin in this matter by an Of the total allowance made to exorbitant allowance. said A. L. Rankin in said foreclosure suit, amounting in all to $90,000, the Appreciating very much your kind- ness in this matter, I am, following sums were paid out by said Rankin with the knowledge and con- Yours sincerely, sent of said Judge Ritter, to wit, to HALSTED L. RITTER. said Walter S. Richardson, the sum In compliance with said request of $5,000; to said Metcalf, the sum of the said Judge Akerman allowed the $10,000; to Shutts and Bowen, also said Rankin $12,500 in addition to attorneys for the receiver, the sum of

2218 IMPEACHMENT POWERS Ch. 14 § 18

$25,000; and to said Halsted L. Rit- tion of its assets, to the loss and ter, the sum of $4,500. damage of the creditors of said cor- In addition to the said sum of poration, and was a party to the $5,000 received by the said Richard- waste and dissipation of such assets son, as aforesaid, said Ritter by while under the control of his said order in said proceedings allowed court, and personally profited there- said Richardson a fee of $30,000 for by, in the manner and form herein- services as such receiver. above specifically set out. The said fees allowed by said Wherefore the said Judge Halsted Judge Ritter to A. L. Rankin (who L. Ritter was and is guilty of mis- had been a law partner of said judge behavior and was and is guilty of a immediately before said judge’s ap- high crime and misdemeanor in of- pointment as judge) as solicitor for fice. the plaintiff in said case were excessive and unwarranted, and said ARTICLE III judge profited personally thereby in That the said Halsted L. Ritter, that out of the money so allowed having been nominated by the Presi- said solicitor he received personally, dent of the United States, confirmed privately, and in cash $4,500 for his by the Senate of the United States, own use and benefit. duly qualified and commissioned, While the Whitehall Hotel was and while acting as a United States being operated in receivership under district judge for the southern dis- said proceeding pending in said court trict of Florida, was and is guilty of (and in which proceeding the re- a high crime and misdemeanor in of- ceiver in charge of said hotel by ap- fice in manner and form as follows, pointment of said judge was allowed to wit: large compensation by said judge) That the said Halsted L. Ritter, the said judge stayed at said hotel while such judge, was guilty of a vio- from time to time without cost to lation of section 258 of the Judicial himself and received free rooms, free Code of the United States of America meals, and free valet service, and, (U.S.C. Annotated, title 28, sec. 373), with the knowledge and consent of making it unlawful for any judge ap- said judge, members of his family, pointed under the authority of the including his wife, his son, Thurston United States to exercise the profes- Ritter, his daughter, Mrs. M. R. sion or employment of counsel or at- Walker, his secretary, Mrs. Lloyd C. torney, or to be engaged in the prac- Hooks, and her husband, Lloyd C. tice of the law, in that after the em- Hooks, each likewise on various oc- ployment of the law firm of Ritter & casions stayed at said hotel without Rankin (which, at the time of the ap- cost to themselves or to said judge, pointment of Halsted L. Ritter to be and received free rooms, and some or judge of the United States District all of them received from said hotel Court for the Southern District of free meals and free valet service; all Florida, was composed of Halsted L. of which expenses were borne by the Ritter and A. L. Rankin) in the case said receivership to the loss and of Trust Co. of Georgia and Robert damage of the creditors whose inter- G. Stephens, trustees, against Bra- ests were involved therein. zilian Court Building Corporation The said judge willfully failed and and others, No. 5704 in the Circuit neglected to perform his duty to con- Court of the Fifteenth Judicial Cir- serve the assets of the Whitehall cuit of Florida, and after the final Building & Operating Co. in receiv- decree had been entered in said ership in his court, but to the con- cause, and after the fee of $4,000 trary, permitted waste and dissipa- which had been agreed upon at the

2219 Ch. 14 § 18 DESCHLER’S PRECEDENTS

outset of said employment had been ter’’ for $2,000, and which was duly fully paid to the firm of Ritter & endorsed ‘‘Hon. Halsted L. Ritter. H. Rankin, and after Halsted L. Ritter L. Ritter’’ and was paid on, to wit, had on, to wit, February 15, 1929, April 4, 1929, and the proceeds become judge of the United States thereof were received and appro- District Court for the Southern Dis- priated by Judge Ritter to his own trict of Florida, Judge Ritter on, to individual use and benefit, without wit, March 11, 1929, wrote a letter advising his said former partner that to Charles A. Brodek, of counsel for said $2,000 had been received, with- Mulford Realty Corporation (the cli- out consulting with his said former ent which his former law firm had partner thereabout, and without the been representing in said litigation), knowledge or consent of his said stating that there had been much former partner, appropriated the en- extra and unanticipated work in the tire amount thus solicited and re- case; that he was then a Federal ceived to the use and benefit of him- judge; that his partner, A. L. self, the said Judge Ritter. Rankin, would carry through further At the time said letter was written proceedings in the case, but that he, by Judge Ritter and said $2,000 re- Judge Ritter, would be consulted ceived by him, Mulford Realty Cor- about the matter until the case was poration held and owned large inter- all closed up; and that ‘‘this matter ests in Florida real estate and citrus is one among very few which I am groves, and a large amount of securi- assuming to continue my interest in ties of the Olympia Improvement until finally closed up’’; and stating Corporation, which was a company specifically in said letter: organized to develop and promote ‘‘I do not know whether any appeal Olympia, Fla., said holdings being will be taken in the case or not; but within the territorial jurisdiction of if so, we hope to get Mr. Howard the United States district court, of Paschal or some other person as re- which Judge Ritter was a judge from ceiver who will be amenable to our February 15, 1929. directions, and the hotel can be oper- Which acts of said judge were cal- ated at a profit, of course, pending culated to bring his office into disre- the appeal. We shall demand a very pute, constitute a violation of section heavy supersedeas bond, which I 258 of the Judicial Code of the doubt whether D’Esterre can give.’’ United States of America (U.S.C., And further that he was ‘‘of Annotated, title 28, sec. 373), and course, primarily interested in get- constitute a high crime and mis- ting some money in the case,’’ and demeanor within the meaning and that he thought ‘‘$2,000 more by way intent of section 4 of article II of the of attorneys’ fees should be allowed’’; Constitution of the United States. and asked that he be communicated Wherefore, the said Judge Halsted with direct about the matter, giving L. Ritter was and is guilty of a high his post-office box number. On, to misdemeanor in office. wit, March 13, 1929, said Brodek re- ARTICLE IV plied favorably, and on March 30, 1929, a check of Brodek, Raphael & That the said Halsted L. Ritter, Eisner, a law firm of New York City, while holding the office of United representing Mulford Realty Cor- States district judge for the southern poration, in which Charles A. district of Florida, having been nomi- Brodek, senior member of the firm of nated by the President of the United Brodek, Raphael & Eisner, was one States, confirmed by the Senate of of the directors, was drawn, payable the United States, duly qualified and to the order of ‘‘Hon. Halsted L. Rit- commissioned, and while acting as a

2220 IMPEACHMENT POWERS Ch. 14 § 18

United States district judge for the ment was carried out by the parties southern district of Florida, was and thereto, and said judge, after the is guilty of misbehavior and of high passage of such resolution, recused crimes and misdemeanors in office in himself from sitting as judge in said manner and form as follows, to wit: power suit, thereby bartering his ju- The said Judge Ritter by his ac- dicial authority in said case for a tions and conduct, as an individual vote of confidence. Nevertheless, the and as such judge, has brought his succeeding judge allowed said court into scandal and disrepute, to Hutchinson as special master in the prejudice of said court and public chancery in said case a fee of $5,000, confidence in the administration of although he performed little, if any, justice in his said court, and to the service as such, and in the order prejudice of public respect for and making such allowance recited: ‘‘And confidence in the Federal judiciary: it appearing to the court that a min- 1. In that in the Florida Power Co. imum fee of $5,000 was approved by case (Florida Power & Light Co. the court for the said Cary T. Hutch- against City of Miami and others, inson, special master in this cause.’’ No. 1183–M–Eq.), which was a case 2. In that in the Trust Co. of Flor- wherein said judge had granted the ida cases (Illick against Trust Co. of complainant power company a tem- Florida et al., No. 1043–M–Eq., and porary injunction restraining the en- Edmunds Committee et al. against forcement of an ordinance of the city Marlon Mortgage Co. et al., No. of Miami, which ordinance pre- 1124–M–Eq.) after the State banking scribed a reduction in the rates for department of Florida, through its electric current being charged in said comptroller, Honorable Ernest Amos, city, said judge improperly appointed had closed the doors of the Trust Co. one Cary T. Hutchinson, who had of Florida and appointed J. H. long been associated with and em- Therrell liquidator for said trust ployed by power and utility interests, company, and had interviewed in the special master in chancery in said said Illick case, said Judge Ritter suit, and refused to revoke his order wrongfully and erroneously refused so appointing said Hutchinson. to recognize the right of said State Thereafter, when criticism of such authority to administer the affairs of action had become current in the city the said trust company, and ap- of Miami, and within 2 weeks after a pointed Julian S. Eaton and Clark resolution (H. Res. 163, 73d Cong.) D. Stearns as receivers of the prop- had been agreed to in the House of erty of said trust company. On ap- Representatives of the Congress of peal, the United States Circuit Court the United States authorizing and of Appeals for the Fifth Circuit re- directing the Judiciary Committee versed the said order or decree of thereof to investigate the official con- Judge Ritter, and ordered the said duct of said judge and to make a re- property surrendered to the State port concerning said conduct to said liquidator. Thereafter, on, to wit, House of Representatives, an ar- September 12, 1932, there was filed rangement was entered into with the in the United States District Court city commissioners of the city of for the Southern District of Florida Miami or with the city attorney of the Edmunds Committee case, said city by which the said city com- supra. Marion Mortgage Co. was a missioners were to pass a resolution subsidiary of the Trust Co. of Flor- expressing faith and confidence in ida. Judge Ritter being absent from the integrity of said judge, and the his district at the time of the filing of said judge recuse himself as judge said case, an application for the ap- [in] said power suit. The said agree- pointment of receivers therein was

2221 Ch. 14 § 18 DESCHLER’S PRECEDENTS

presented to another judge of said to wit, January ], 1933, Honorable J. district, namely, Honorable Alex- M. Lee succeeded Honorable Ernest ander Akerman. Judge Ritter, how- Amos as comptroller of the State of ever, prior to the appointment of Florida and appointed M. A. Smith such receivers, telegraphed Judge liquidator in said Trust Co. of Flor- Akerman, requesting him to appoint ida cases to succeed J. H. Therrell. the aforesaid Eaton and Stearns as An appeal was again taken to the receivers in said case, which appoint- United States Circuit Court of Ap- ments were made by Judge peals for the Fifth Circuit from the Akerman. Thereafter the United then latest order or decree of Judge States Circuit Court of Appeals for Ritter, and again the order or decree the Fifth Circuit reversed the order of Judge Ritter appealed from was of Judge Akerman, appointing said reversed by the said circuit court of Eaton and Stearns as receivers in appeals, which held that Judge Rit- said case. In November 1932 J. H. ter, or the court in which he pre- Therrell, as liquidator, filed a bill of sided, had been without jurisdiction complaint in the Circuit Court of in the matter of the appointment of Dade County, Fla.—a court of the said Eaton and Stearns as receivers. State of Florida—alleging that the Thereafter, and with the knowledge various trust properties of the Trust of the decision of the said circuit Co. of Florida were burdensome to court of appeals, Judge Ritter wrong- the liquidator to keep, and asking fully and improperly allowed said that the court appoint a succeeding Eaton and Stearns and their attor- trustee. Upon petition for removal of neys some $26,000 as fees out of said said cause from said State court into trust-estate properties, and endeav- the United States District Court for ored to require, as a condition prece- the Southern District of Florida, dent to releasing said trust prop- Judge Ritter took jurisdiction, not- erties from the control of his court, a withstanding the previous rulings of promise from counsel for the said the United States Circuit Court of State liquidator not to appeal from Appeals above referred to, and again his order allowing the said fees to appointed the said Eaton and said Eaton and Stearns and their at- Stearns as the receivers of the said torneys. trust properties. In December 1932 3. In that the said Halsted L. Rit- the said Therrell surrendered all of ter, while such Federal judge, accept- the trust properties to said Eaton ed, in addition to $4,500 from his and Stearns as receivers, together former law partner as alleged in ar- with all records of the Trust Co. of ticle I hereof, other large fees or gra- Florida pertaining thereto. During tuities, to wit, $7,500 from J. R. the time said Eaton and Stearns, as Francis, on or about April 19, 1929, such receivers, were in control of J. R. Francis at this said time hav- said trust properties, Judge Ritter ing large property interests within wrongfully and improperly approved the territorial jurisdiction of the their accounts without notice or op- court of which Judge Ritter was a portunity for objection thereto to be judge. On, to wit, the 4th day of heard. With the knowledge of Judge April 1929 the said Judge Ritter ac- Ritter, said receivers appointed the cepted the sum of $2,000 from said sister-in-law of Judge Ritter, namely, Brodek, Raphael & Eisner, rep- Mrs. G. M. Wickard, who had had no resenting Mulford Realty Corpora- previous hotel-management experi- tion, through his attorney, Charles ence, to be manager of the Julia A. Brodek, as a fee or gratuity, at Tuttle Hotel and Apartment Build- which time the said Mulford Realty ing, one of said trust properties. On, Corporation held and owned large

2222 IMPEACHMENT POWERS Ch. 14 § 18

interests in Florida real estate and the misdemeanors in office which have citrus groves, and a large amount of been charged against him in the arti- securities of the Olympia Improve- cles which have been exhibited to the ment Corporation, which was a com- Senate, and that such proceedings, ex- pany organized to develop and pro- aminations, trials, and judgments may mote Olympia, Fla., said holdings being within the territorial jurisdic- be thereupon had and given as may be tion of the United States District agreeable to law and justice. Court of which Judge Ritter was a Mr. President, the managers on the judge from February 15, 1929. part of the House of Representatives, 4. By his conduct as detailed in ar- in pursuance of the action of the House ticles I and II hereof. of Representatives by the adoption of Wherefore, the said Judge Halsted the articles of impeachment which L. Ritter was and is guilty of mis- have just been read to the Senate, do behavior, and was and is guilty of now demand that the Senate take high crimes and misdemeanors in of- order for the appearance of the said fice. Halsted L. Ritter to answer said im- Attest: peachment, and do now demand his JOSEPH W. BYRNS, Speaker of the impeachment, conviction, and removal House of Representatives. from office. SOUTH TRIMBLE, THE VICE PRESIDENT: The Senate Clerk. wild take proper order and notify the ( ) Representative Sumners en- House of Representatives. 1 tered a reservation of the right of The most senior Member of the the House to amend or supple- Senate, Senator William E. Borah, ment the articles and demanded of Idaho, then administered the that the respondent be put to oath to Vice President Garner, trial: who administered the oath to the other Senators present. MR. MANAGER SUMNERS: Mr. Presi- The Sergeant at Arms made dent, the House of Representatives, by proclamation that the Senate was protestation, saving themselves the lib- then sitting as a Court of Im- erty of exhibiting at any time hereafter any further articles of accusation or peachment. Orders were adopted impeachment against the said Halsted notifying the House of the organi- L. Ritter, district judge of the United zation of the court and issuing a ( ) States for the southern district of Flor- summons to the respondent. 2 ida, and also of replying to his answers which he shall make unto the articles § 18.8 In response to a sum- preferred against him, and of offering mons, Judge Halsted Ritter proof to the same and every part thereof, and to all and every other article of 1. Id. at p. 3488. accusation or impeachment which shall 2. Id. at pp. 3488, 3489. For the text of be exhibited by them as the case shall the proceedings whereby the Senate require, do demand that the said Hal- organized for the Ritter impeach- sted L. Ritter may be put to answer ment trial, see § 11.5, supra.

2223 Ch. 14 § 18 DESCHLER’S PRECEDENTS

appeared before the Senate Senate of the United States against Halsted L. Ritter, United States dis- sitting as a Court of Im- trict judge for the southern district peachment. of Florida, is truly made, and that you have performed such service as On Mar. 12, 1936, respondent therein described. So help you God. Halsted Ritter appeared before THE VICE PRESIDENT: The Sergeant the Court of Impeachment pursu- at Arms will make proclamation. ant to the summons previously The Sergeant at Arms made procla- issued, and filed an entry of ap- mation as follows: pearance: (3) Halsted L. Ritter! Halsted L. Ritter! Halsted L. Ritter! United States dis- (4) THE VICE PRESIDENT: ... The trict judge for the southern district of Secretary will read the return of the Florida, appear and answer to the arti- Sergeant at Arms. cles of impeachment exhibited by the The Chief Clerk read as follows: House of Representatives against you. The respondent, Halsted L. Ritter, SENATE OF THE UNITED STATES, OFFICE OF THE SERGEANT AT ARMS. and his counsel, Frank P. Walsh, Esq., of New York City, N.Y., and Carl T. The foregoing writ of summons ad- Hoffman, Esq., of Miami, Fla., entered dressed to Halsted L. Ritter, and the foregoing precept, addressed to me, the Chamber and were conducted to were duly served upon the said Hal- the seats assigned them in the space in sted L. Ritter by me by delivering front of the Secretary’s desk, on the true and attested copies of the same right of the Chair. to the said Halsted L. Ritter at the THE VICE PRESIDENT: Counsel for Carlton Hotel, Washington, D.C., on Thursday, the 12th day of March the respondent are advised that the 1936, at 11 o’clock in the forenoon of Senate is now sitting for the trial of ar- that day. ticles of impeachment exhibited by the CHESLEY W. JURNEY, House of Representatives against Hal- Sergeant at Arms, sted L. Ritter, United States district United States Senate. judge for the southern district of Flor- THE VICE PRESIDENT: The Secretary ida. of the Senate will administer the oath MR. WALSH (of counsel): May it to the Sergeant at Arms. please you, Mr. President, and honor- The Secretary of the Senate, Edwin able Members of the Senate, I beg to A. Halsey, administered the oath to inform you that, in response to your the Sergeant at Arms, as follows: summons, the respondent, Halsted L. Ritter, is now present with his counsel You, Chesley W. Jurney, do solemnly swear that the return made and asks leave to file a formal entry of by you upon the process issued on appearance. the 10th day of March 1936 by the THE VICE PRESIDENT: Is there objection? The Chair hears none, and the 3. 80 CONG. REC. 3646, 3647, 74th appearance will be filed with the Sec- Cong. 2d Sess. retary, and will be read. 4. John N. Garner (Tex.). The Chief Clerk read as follows:

2224 IMPEACHMENT POWERS Ch. 14 § 18

IN THE SENATE OF THE UNITED STATES caused to be printed in the Record OF AMERICA SITTING AS A COURT OF the reasons for his request, based IMPEACHMENT on a long personal acquaintance MARCH 12, 1936. with the respondent.(5) The United States of America v. The Senate ratified an agree- Halsted L. Ritter ment, between the managers and The respondent, Halsted L. Ritter, having this day been served with a counsel for the respondent, as to summons requiring him to appear the time permitted the respondent before the Senate of the United to file his answer with the Court States of America in the city of Washington, D.C., on March 12, of Impeachment: 1936, at 1 o’clock afternoon to an- MR. [JOSEPH T.] ROBINSON [of Ar- swer certain articles of impeachment presented against him by the House kansas]: Mr. President, I think there is of Representatives of the United not a clear understanding as to the ar- States of America, now appears in rangement which has been entered his proper person and also by his into between the managers and the counsel, who are instructed by this counsel for the respondent. It is my respondent to inform the Senate that understanding, and if I am in error respondent stands ready to file his pleadings to such articles of im- someone who is better informed will peachment within such reasonable please correct me, that the agreement period of time as may be fixed. is that counsel for the respondent will Dated March 12, 1936. place their response in the possession of the managers on the part of the § 18.9 The Senate, sitting as a House not later than the 26th instant, Court of Impeachment, ex- and that the Court may reconvene cused a Senator from service again on the 30th when the response at his request, fixed a trial will be filed in the Senate. THE VICE PRESIDENT: (6) Is there ob- date, allowed respondent 18 jection to that agreement? days to file his answer, and (7) adopted supplemental rules There was no objection. for trial. The Court of Impeachment adopted a motion fixing the trial On Mar. 12, 1936, the Senate date at Apr. 6, 1936.(8) convened as a Court of Impeach- The court adopted supplemental ment in the Halsted Ritter case. rules, which Senator Henry F. Preceding the administration of the oath to members not thereto- 5. 80 CONG. REC. 3646, 74th Cong. 2d fore sworn, the court granted the Sess. request of Senator Edward P. 6. John N. Garner (Tex.). Costigan, of Colorado, that he be 7. 80 CONG. REC. 3647, 74th Cong. 2d excused from service on the Court Sess. of Impeachment. Senator Costigan 8. Id. at p. 3648.

2225 Ch. 14 § 18 DESCHLER’S PRECEDENTS

Ashurst, of Arizona, stated to be 4. The parties may, by stipulation in the same as those adopted in the writing filed with the Secretary of the Senate and by him laid before the Sen- trial of Judge Harold Louderback: ate or presented at the trial, agree Ordered, That in addition to the upon any facts involved in the trial; rules of procedure and practice in the and such stipulation shall be received Senate when sitting on impeachment by the Senate for all intents and pur- trials, heretofore adopted, and supple- poses as though the facts therein mentary to such rules, the following agreed upon had been established by rules shall be applicable in the trial of legal evidence adduced at the trial. the impeachment of Halsted L. Ritter, 5. The parties or their counsel may United States judge for the southern interpose objection to witnesses an- district of Florida: swering questions propounded at the 1. In all matters relating to the pro- request of any Senator, and the merits cedure of the Senate, whether as to of any such objection may be argued by form or otherwise, the managers on the parties or their counsel; and the the part of the House or the counsel Presiding Officer may rule on any such representing the respondent may sub- objection, which ruling shall stand as mit a request or application orally to the judgment of the Senate, unless the Presiding Officer, or, if required by some Member of the Senate shall ask him or requested by any Senator, shall that a formal vote be taken thereon, in submit the same in writing. which case it shall be submitted to the 2. In all matters relating imme- Senate for decision; or he may, at his diately to the trial, such as the admis- option, in the first instance submit any sion, rejection, or striking out of evi- such question to a vote of the Members dence, or other questions usually aris- of the Senate. Upon all such questions ing in the trial of causes in courts of the vote shall be without debate and justice, if the managers on the part of without a division, unless the ayes and the House or counsel representing the nays be demanded by one-fifth of the respondent desire to make any applica- Members present when the same shall (9) tion, request, or objection, the same be taken. shall be addressed directly to the Pre- siding Officer and not otherwise. Amendment of Articles of Im- 3. It shall not be in order for any peachment Senator, except as provided in the rules of procedure and practice in the § 18.10 The House adopted a Senate when sitting on impeachment resolution, reported as privi- trials, to engage in colloquy or to ad- leged by the managers on the dress questions either to the managers part of the House in the Hal- on the part of the House or to counsel for the respondent, nor shall it be in sted Ritter impeachment, order for Senators to address each amending the articles pre- other; but they shall address their re- viously voted by the House. marks directly to the Presiding Officer and not otherwise. 9. Id.

2226 IMPEACHMENT POWERS Ch. 14 § 18

On Mar. 30, 1936,(10) Mr. Hat- case of Trust Co. of Georgia and Robert G. Stephens, Trustee v. Bra- ton W. Sumners, of Texas, called zilian Court Building Corporation et up the following privileged resolu- al., no. 5704, in the Circuit Court of tion (H. Res. 471) amending the the Fifteenth Judicial Circuit of Flor- ida, and after the fee of $4,000 which articles of impeachment against had been agreed upon at the outset Judge Ritter: of said employment had been fully paid to the firm of Ritter & Rankin, Resolved, That the articles of im- and after Halsted L. Ritter had, on, peachment heretofore adopted by the to wit, February 15, 1929, become House of Representatives in and by judge of the United States District House Resolution 422, House Calendar Court for the Southern District of No. 279, be, and they are hereby, Florida, Judge Ritter on, to wit, March 11, 1929, wrote a letter to amended as follows: Charles A. Brodek, of counsel for Article III is amended so as to read Mulford Realty Corporation (the cli- as follows: ent which his former law firm had been representing in said litigation), ARTICLE II stating that there had been much That the said Halsted L. Ritter, extra and unanticipated work in the having been nominated by the Presi- case, that he was then a Federal dent of the United States, confirmed judge; that his partner, A. L. by the Senate of the United States, Rankin, would carry through further duly qualified and commissioned, proceedings in the case, but that he, and, while acting as a United States Judge Ritter, would be consulted district judge for the southern dis- about the matter until the case was trict of Florida, was and is guilty of all closed up; and that ‘‘this matter a high crime and misdemeanor in of- is one among very few which I am fice in manner and form as follows, assuming to continue my interest in to wit: until finally closed up’’; and stating specifically in said letter: That the said Halsted L. Ritter, while such judge, was guilty of a vio- ‘‘I do not know whether any appeal lation of section 258 of the Judicial will be taken in the case or not, but, Code of the United States of America if so, we hope to get Mr. Howard (U.S.C., Annotated, title 28, sec. Paschal or some other person as re- 373), making it unlawful for any ceiver who will be amenable to our judge appointed under the authority directions, and the hotel can be oper- of the United States to exercise the ated at a profit, of course, pending profession or employment of counsel the appeal. We shall demand a very or attorney, or to be engaged in the heavy supersedeas bond, which I practice of the law, in that after the doubt whether D’Esterre can give’’; employment of the law firm of Ritter and further that he was ‘‘of course & Rankin (which at the time of the primarily interested in getting some appointment of Halsted L. Ritter to money in the case’’, and that he be judge of the United States Dis- thought ‘‘$2,000 more by way of at- trict Court for the Southern District torney’s fees should be allowed’’; and of Florida, was composed of Halsted asked that he be communicated with L. Ritter and A. L. Rankin) in the direct about the matter, giving his post-office box number. On, to wit, March 13, 1929, said Brodek replied 10. 80 CONG. REC. 4597–99. 74th Cong. favorably, and on March 30, 1929, a 2d Sess. check of Brodek, Raphael & Eisner,

2227 Ch. 14 § 18 DESCHLER’S PRECEDENTS

a law firm of New York City, rep- Wherefore, the said Judge Halsted resenting Mulford Realty Corpora- L. Ritter was and is guilty of a high tion, in which Charles A. Brodek, misdemeanor in office. senior member of the firm of Brodek, Raphael & Eisner, was one of the di- By adding the following articles im- rectors, was drawn, payable to the mediately after article III as amended: order of ‘‘Hon. Halsted L. Ritter’’ for $2,000 and which was duly endorsed ARTICLE IV ‘‘Hon. Halsted L. Ritter. H. L. Ritter’’ That the said Halsted L. Ritter, and was paid on, to wit, April 4, having been nominated by the Presi- 1929, and the proceeds thereof were dent of the United States, confirmed received and appropriated by Judge by the Senate of the United States, Ritter to his own individual use and duly qualified and commissioned, benefit, without advising his said and, while acting as a United States former partner that said $2,000 had district judge for the southern dis- been received, without consulting trict of Florida, was and is guilty of with his former partner thereabout, a high crime and misdemeanor in of- and without the knowledge or con- fice in manner and form as follows, sent of his said former partner, ap- to wit: propriated the entire amount thus That the said Halsted L. Ritter, solicited and received to the use and while such judge, was guilty of a vio- benefit of himself, the said Judge lation of section 258 of the Judicial Ritter. Code of the United States of America At the time said letter was written (U.S.C., Annotated, title 28, sec. by Judge Ritter and said $2,000 re- 373), making it unlawful for any ceived by him, Mulford Realty Cor- judge appointed under the authority poration held and owned large inter- of the United States to exercise the ests in Florida real estate and citrus profession or employment of counsel groves, and a large amount of securi- or attorney, or to be engaged in the ties of the Olympia Improvement practice of the law, in that Judge Corporation, which was a company Ritter did exercise the profession or organized to develop and promote employment of counsel or attorney, Olympia, Fla., said holdings being or engaged in the practice of the law, within the territorial jurisdiction of representing J. R. Francis, with rela- the United States district court, of tion to the Boca Raton matter and which Judge Ritter was a judge the segregation and saving of the in- from, to wit, February 15, 1929. terest of J. R. Francis therein, or in After writing said letter of March obtaining a deed or deeds to J. R. 11, 1929, Judge Ritter further exer- Francis from the Spanish River cised the profession or employment Land Co. to certain pieces of realty, of counsel or attorney, or engaged in and in the Edgewater Ocean Beach the practice of the law, with relation Development Co. matter, for which to said case. services the said Judge Ritter re- Which acts of said judge were cal- ceived from the said J. R. Francis culated to bring his office into disre- the sum of $7,500. pute, constitute a violation of section Which acts of said judge were cal- 258 of the Judicial Code of the culated to bring his office into disre- United States of America (U.S.C., pute, constitute a violation of the Annotated, title 28, sec. 373), and law above recited, and constitute a constitute a high crime and mis- high crime and misdemeanor within demeanor within the meaning and the meaning and intent of section 4 intent of section 4 of article II of the of article II of the Constitution of the Constitution of the United States. United States.

2228 IMPEACHMENT POWERS Ch. 14 § 18

Wherefore the said Judge Halsted fice in manner and form as follows, L. Ritter was and is guilty of a high to wit: misdemeanor in office. That the said Halsted L. Ritter, while such judge, was guilty of viola- ARTICLE V tion of section 146(b) of the Revenue That the said Halsted L. Ritter, Act of 1928, making it unlawful for having been nominated by the Presi- any person willfully to attempt in dent of the United States, confirmed any manner to evade or defeat the by the Senate of the United States, payment of the income tax levied in duly qualified and commissioned, and by said Revenue Act of 1928, in and, while acting as a United States that during the year 1930 the said district judge for the southern dis- Judge Ritter received gross taxable trict of Florida, was and is guilty of income—over and above his salary a high crime and misdemeanor in of- as judge—to the amount of, to wit, fice in manner and form as follows, $5,300, yet failed to report any part to wit: thereof in his income-tax return for That the said Halsted L. Ritter, the year 1930, and paid no income while such judge, was guilty of viola- tax thereon. tion of section 146(b) of the Revenue Two thousand five hundred dollars Act of 1928, making it unlawful for of said gross taxable income for 1930 any person willfully to attempt in was that amount of cash paid Judge any manner to evade or defeat the Ritter by A. L. Rankin on December payment of the income tax levied in 24, 1930, as described in article I. and by said Revenue Act of 1928, in Wherefore the said Judge Halsted that during the year 1929 said Judge L. Ritter was and is guilty of a high Ritter received gross taxable in- misdemeanor in office. come—over and above his salary as Original article IV is amended so judge—to the amount of some as to read as follows: $12,000, yet paid no income tax thereon. ‘‘ARTICLE VII Among the fees included in said ‘‘That the said Halsted L. Ritter, gross taxable income for 1929 were while holding the office of United the extra fee of $2,000 solicited and States district judge for the southern received by Judge Ritter in the Bra- district of Florida, having been nomi- zilian Court case, as described in ar- nated by the President of the United ticle III, and the fee of $7,500 re- States, confirmed by the Senate of ceived by Judge Ritter from J. R. the United States, duly qualified and Francis. commissioned, and, while acting as a Wherefore the said Judge Halsted United States district judge for the L. Ritter was and is guilty of a high southern district of Florida, was and misdemeanor in office. is guilty of misbehavior and of high crimes and misdemeanors in office in ARTICLE VI manner and form as follows, to wit: That the said Halsted L. Ritter, ‘‘The reasonable and probable con- having been nominated by the Presi- sequence of the actions or conduct of dent of the United States, confirmed Halsted L. Ritter, hereunder speci- by the Senate of the United States, fied or indicated in this article, since duly qualified and commissioned, he became judge of said court, as an and, while acting as a United States individual or as such judge, is to district judge for the southern dis- bring his court into scandal and district of Florida, was and is guilty of repute, to the prejudice of said court a high crime and misdemeanor in of- and public confidence in the admin-

2229 Ch. 14 § 18 DESCHLER’S PRECEDENTS

istration of justice therein, and to in said case a fee of $5,000, although the prejudice of public respect for he performed little, if any, service as and confidence in the Federal judici- such, and in the order making such ary, and to render him unfit to con- allowance recited: ‘And it appearing tinue to serve as such judge: to the court that a minimum fee of ‘‘1. In that in the Florida Power $5,000 was approved by the court for Co. case (Florida Power & Light Co. the said Cary T. Hutchinson, special v. City of Miami et al., no. 1183–M– master in this cause.’ Eq.), which was a case wherein said ‘‘2. In that in the Trust Co. of Flor- judge had granted the complainant ida cases (Illick v. Trust Co. of Flor- power company a temporary injunc- ida et al., no. 1043–M–Eq., and tion restraining the enforcement of Edmunds Committee et al. v. Marion an ordinance of the city of Miami, Mortgage Co. et al., no. 1124–M– which ordinance prescribed a reduc- Eq.), after the State Banking De- tion in the rates for electric current partment of Florida, through its being charged in said city, said judge comptroller, Hon. Ernest Amos, had improperly appointed one Cary T. closed the doors of the Trust Co. of Hutchinson, who had long been asso- Florida and appointed J. H. Therrell ciated with and employed by power liquidator for said trust company, and utility interests, special master and had intervened in the said Illick in chancery in said suit, and refused case, said Judge Ritter wrongfully to revoke his order so appointing and erroneously refused to recognize said Hutchinson. Thereafter, when the right of said State authority to criticism of such action had become administer the affairs of the said current in the city of Miami, and trust company and appointed Julian within 2 weeks after a resolution (H. S. Eaton and Clark D. Stearns as re- Res. 163, 73d Cong.) had been ceivers of the property of said trust agreed to in the House of Represent- company. On appeal the United atives of the Congress of the United States Circuit Court of Appeals for States, authorizing and directing the the Fifth Circuit reversed the said Judiciary Committee thereof to in- order or decree of Judge Ritter and vestigate the official conduct of said ordered the said property surren- judge and to make a report con- dered to the State liquidator. There- cerning said conduct to said House of after, on, to wit, September 12, 1932, Representatives, an arrangement there was filed in the United States was entered into with the city com- District Court for the Southern Dis- missioners of the city of Miami or trict of Florida the Edmunds Com- with the city attorney of said city by mittee case, supra. Marion Mortgage which the said city commissioners Co. was a subsidiary of the Trust Co. were to pass a resolution expressing of Florida. Judge Ritter being absent faith and confidence in the integrity from his district at the time of the of said judge, and the said judge filing of said case, an application for recuse himself as judge in said the appointment of receivers therein power suit. The said agreement was was presented to another judge of carried out by the parties thereto, said district, namely, Hon. Alex- and said judge; after the passage of ander Akerman. Judge Ritter, how- such resolution, recused himself ever, prior to the appointment of from sitting as judge in said power such receivers, telegraphed Judge suit, thereby bartering his judicial Akerman, requesting him to appoint authority in said case for a vote of the aforesaid Eaton and Stearns as confidence. Nevertheless, the suc- receivers in said case, which appoint- ceeding judge allowed said Hutch- ments were made by Judge inson as special master in chancery Akerman. Thereafter the United

2230 IMPEACHMENT POWERS Ch. 14 § 18

States Circuit Court of Appeals for Ritter, and again the order or decree the Fifth Circuit reversed the order of Judge Ritter appealed from was of Judge Akerman, appointing said reversed by the said circuit court of Eaton and Stearns as receivers in appeals which held that the State of- said case. In November 1932 J. H. ficer was entitled to the custody of Therrell, as liquidator, filed a bill of the property involved and that said complaint in the Circuit Court of Eaton and Stearns as receivers were Dade County, Fla.—a court of the not entitled to such custody. There- State of Florida—alleging that the after, and with the knowledge of the various trust properties of the Trust decision of the-said circuit court of Co. of Florida were burdensome to appeals, Judge Ritter wrongfully and the liquidator to keep, and asking improperly allowed said Eaton and that the court appoint a succeeding Stearns and their attorneys some trustee. Upon petition for removal of $26,000 as fees out of said trust-es- said cause from said State court into tate properties and endeavored to re- the United States District Court for quire, as a condition precedent to re- the Southern District of Florida, leasing said trust properties from Judge Ritter took jurisdiction, not- the control of his court, a promise withstanding the previous rulings of from counsel for the said State liqui- the United States Circuit Court of dator not to appeal from his order al- Appeals above referred to, and again lowing the said fees to said Eaton appointed the said Eaton and and Stearns and their attorneys. Stearns as the receivers of the said trust properties. In December 1932 ‘‘3. In that the said Halsted L. Rit- the said Therrell surrendered all of ter, while such Federal judge, accept- the trust properties to said Eaton ed, in addition to $4,500 from his and Stearns as receivers, together former law partner, as alleged in ar- with all records of the Trust Co. of ticle I hereof, other large fees or gra- Florida pertaining thereto. During tuities, to wit, $7,500 from J. R. the time said Eaton and Stearns, as Francis, on or about April 19, 1929, such receivers, were in control of J. R. Francis at this said time hav- said trust properties. Judge Ritter ing large property interests within wrongfully and improperly approved the territorial jurisdiction of the their accounts without notice or op- court of which Judge Ritter was a portunity for objection thereto to be judge; and on, to wit, the 4th day of heard. With the knowledge of Judge April 1929 the said Judge Ritter ac- Ritter, said receivers appointed the cepted the sum of $2,000 from sister-in-law of Judge Ritter, namely, Brodek, Raphael & Eisner, rep- Mrs. G. M. Wickard, who had had no resenting Mulford Realty Corpora- previous hotel-management experi- tion as its attorneys, through ence, to be manager of the Julia Charles A. Brodek, senior member of Tuttle Hotel and Apartment Build- said firm and a director of said cor- ing, one of said trust properties. On, poration, as a fee or gratuity, at to wit, January 1, 1933, Hon. J. M. which time the said Mulford Realty Lee succeeded Hon. Ernest Amos as Corporation held and owned large comptroller of the State of Florida interests in Florida real estate and and appointed M. A. Smith liqui- citrus groves and a large amount of dator in said Trust Co. of Florida securities of the Olympia Improve- cases to succeed J. H. Therrell. An ment Corporation, which was a com- appeal was again taken to the pany organized to develop and pro- United States Circuit Court of Ap- mote Olympia, Florida, said holdings peals for the Fifth Circuit from the being within the territorial jurisdic- then latest order or decree of Judge tion of the United States District

2231 Ch. 14 § 18 DESCHLER’S PRECEDENTS

Court of which Ritter was a judge these new charges. There is a change from, to wit, February 15, 1929. in the tense used with reference to the ‘‘4. By his conduct as detailed in effect of the conduct alleged. It is articles I, II, III, and IV hereof, and charged, in the resolution pending at by his income-tax evasions as set forth in articles V and VI hereof. the desk, that the reasonable and prob- ‘‘Wherefore the said Judge Halsted able consequence of the alleged con- L. Ritter was and is guilty of mis- duct is to injure the confidence of the behavior, and was and is guilty of people in the courts—I am not at- high crimes and misdemeanors in of- tempting to quote the exact language— fice.’’ which is a matter of form, I think, The House adopted the resolu- more than a matter of substance. tion amending the articles after MR. [BERTRAND H.] SNELL [of New Mr. Sumners discussed its provi- York]: Mr. Speaker, will the gentleman sions and stated his opinion that yield? MR. SUMNERS of Texas: Yes. the managers had the power to re- MR. SNELL: I may not be entirely fa- port amendments to the articles: miliar with all this procedure, but as I MR. SUMNERS of Texas: Mr. Speaker, understand, what the gentleman is the resolution which has just been doing here today, is to amend the origi- read proposes three new articles. The nal articles of impeachment passed by change is not as important as that the House. statement would indicate. Two of the MR. SUMNERS of Texas: That is cor- new articles deal with income taxes, rect. and one with practicing law by Judge MR. SNELL: The original articles of Ritter, after he went on the bench. In impeachment came to the House as a the original resolution, the charge is result of the evidence before the gen- made that Judge Ritter received cer- tleman’s committee. Has the gentle- tain fees or gratuities and had written man’s committee had anything to do a letter, and so forth. No change is pro- with the change or amendment of posed in articles 1 and 2. In article 3, these charges? as stated, Judge Ritter is charged with MR. SUMNERS of Texas: No; just the practicing law after he went on the managers. bench. That same thing, in effect, was MR. SNELL: As a matter of proce- charged, as members of the committee dure, would not that be the proper will remember, in the original resolu- thing to do? tion, but the form of the charge, in the MR. SUMNERS of Texas: I do not judgment of the managers, could be think it is at all necessary, for this rea- improved. These charges go further son: The managers are now acting as and charge that in the matter con- the agents of the House, and not as the nected with J. R. Francis, the judge agents of the Committee on the Judici- acted as counsel in two transactions ary. Mr. Manager Perkins and Mr. after he went on the bench, and re- Manager Hobbs have recently ex- ceived $7,500 in compensation. Article tended the investigation made by the 7 is amended to include a reference to committee.

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MR. SNELL: Mr. Speaker, will the was informed by resolution there- gentleman yield further? of: MR. SUMNERS of Texas: Yes. MR. [HATTON W.] SUMNERS of Texas: MR. SNELL: Do I understand that the Mr. Speaker, I offer the following privi- amendments come because of new in- leged resolution. formation that has come to you as The Clerk read as follows: managers that never was presented to the Committee on the Judiciary? HOUSE RESOLUTION 472 MR. SUMNERS of Texas: Perhaps it Resolved, That a message be sent would not be true to answer that en- to the Senate by the Clerk of the tirely in the affirmative, but the House informing the Senate that the changes are made largely by reason of House of Representatives has adopt- new evidence which has come to the ed an amendment to the articles of impeachment heretofore exhibited attention of the committee, and some against Halsted L. Ritter, United of these changes, more or less changes States district judge for the southern in form, have resulted from further ex- district of Florida, and that the same amination of the question. This is will be presented to the Senate by somewhat as lawyers do in their plead- the managers on the part of the House. ings. They often ask the privilege of And also, that the managers have making an amendment. authority to file with the Secretary MR. SNELL: And the gentleman’s po- of the Senate, on the part of the sition is that as agents of the House it House any subsequent pleadings is not necessary to have the approval they shall deem necessary. of his committee, which made the The resolution was agreed to. original impeachment charges? A motion to reconsider was laid on MR. SUMNERS of Texas: I have no the table. doubt about that; I have no doubt about the accuracy of that statement. On Mar. 31, the amendments to the articles were presented to the § 18.11 Following the amend- Court of Impeachment and print- ment of the articles of im- ed in the Record; (12) counsel for peachment against Judge the respondent was granted 48 Halsted Ritter, the House hours to file his response to the adopted a resolution to in- new articles. form the Senate thereof. Motions to Strike Articles On Mar. 30, 1936,(11) following the amendment by the House of § 18.12 During the impeach- the articles in the impeachment ment trial of Judge Halsted against Judge Ritter, the Senate Ritter, the respondent moved to strike Article I or, in the 11. 80 CONG. REC. 4601, 74th Cong. 2d Sess. 12. Id. at pp. 4654–56.

2233 Ch. 14 § 18 DESCHLER’S PRECEDENTS

alternative, to require elec- oppress the respondent in that the ar- tion as to Articles I and II, ticles are so framed as to collect, or ac- and moved to strike Article cumulate upon the second article, the adverse votes, if any, upon the first ar- VII. ticle. On Mar. 31, 1936,(13) the re- 3. The Constitution of the United spondent, Judge Ritter, filed the States contemplates but one vote of the following motion: Senate upon the charge contained in each article of impeachment, whereas In the Senate of the United States of articles I and II are constructed and America sitting as a Court of Im- arranged in such form and manner as peachment. The United States of to require and exact of the Senate a America v. Halsted L. Ritter, re- second vote upon the subject matter of spondent article I.

MOTION TO STRIKE ARTICLE I, OR, IN MOTION TO STRIKE ARTICLE VII THE ALTERNATIVE, TO REQUIRE ELECTION AS TO ARTICLES I AND II; And the respondent further moves AND MOTION TO STRIKE ARTICLE VII the honorable Senate, sitting as a Court of Impeachment, for an order The respondent, Halsted L. Ritter, striking and dismissing article VII, moves the honorable Senate, sitting as and for grounds of such motion, re- a Court of Impeachment, for an order spondent says: striking and dismissing article I of the 1. Article VII includes and embraces articles of impeachment, or, in the al- all the charges set forth in articles I, ternative, to require the honorable II, III, IV, V, and VI. managers on the part of the House of Representatives to elect as to whether 2. Article VII constitutes an accumu- they will proceed upon article I or lation and massing of all charges in upon article II, and for grounds of such preceding articles upon which the motion respondent says: Court is to pass judgment prior to the vote on article VII, and the prosecution 1. Article II reiterates and embraces all the charges and allegations of arti- should be required to abide by the cle I, and the respondent is thus and judgment of the Senate rendered upon thereby twice charged in separate arti- such prior articles and the Senate cles with the same and identical of- ought not to countenance the arrange- fense, and twice required to defend ment of pleading designed to procure a against the charge presented in article second vote and the collection or accu- I. mulation of adverse votes, if any, upon 2. The presentation of the same and such matters. identical charge in the two articles in 3. The presentation in article VII of question tends to prejudice the re- more than one subject and the charges spondent in his defense, and tends to arising out of a single subject is unjust and prejudicial to respondent. 13. 80 CONG. REC. 4656, 4657, 74th 4. In fairness and justice to respond- Cong. 2d Sess. ent, the Court ought to require separa-

2234 IMPEACHMENT POWERS Ch. 14 § 18

tion and singleness of the subject mat- At the suggestion of the Chair, ter of the charges in separate and dis- decision on the motions of re- tinct articles, upon which a single and spondent were reserved for inves- final vote of the Senate upon each article and charge can be had. tigation and deliberation: (Signed) FRANK P. WALSH, MR. [HENRY F.] ASHURST [of Ari- CARL T. HOFFMAN, zona]: Mr. President, I assume that the Of Counsel for Respondent. Presiding Officer will desire to take Mr. Hoffman, counsel for re- some time to examine all the pleadings spondent, argued that Article II and will not be prepared to announce a decision on this point until the next duplicated charges set forth in Ar- session of the Court? ticle I. He also contended that the THE PRESIDING OFFICER [NATHAN L. rule of duplicity, or the principle BACHMAN (Tenn.)]: It is the opinion of of civil and criminal pleading that the present occupant of the chair that one count should contain no more while the necessity for early decision is than one charge or cause of ac- apparent, the importance of the matter would justify the occupant of the chair tion, was violated by Article VII. in saying that no decision should be Mr. Sumners argued in re- made until the proceedings are printed sponse that Article II was clearly and every member of the Court has an not a duplication of Article I, two opportunity to investigate and consider distinct charges being presented. them. Is there objection to that suggestion of the Chair? The Chair hears As to Article VII, Mr. Sumners none.(15) contended that impeachment was essentially an ouster proceeding § 18.13 On the respondent’s as opposed to a criminal promotion to strike, the Chair ceeding. He referred to the fact overruled that part of the that the articles of impeachment motion which sought to against Judge Harold Louderback strike Article I or to require had contained a similar article election between Articles I charging that ‘‘by specifically al- and II; the Chair submitted leged conduct’’ the respondent that part of the motion ‘‘has done those things the reason- which sought to strike Arti- able and probable consequences of cle VII to the Court of Im- which are to arouse a substantial peachment, which overruled doubt as to his judicial integ- that part of the motion. rity.(14) such conduct as to destroy public 14. Id. at p. 4658. confidence in the court, see 6 Can- For Article V, as amended, in the non’s Precedents § 520. Louderback impeachment, charging 15. Id. at p. 4659.

2235 Ch. 14 § 18 DESCHLER’S PRECEDENTS

On Apr. 3, 1936,(16) the fol- What is the judgment of the Court lowing disposition was made of with reference to that particular phase the motion of the respondent, of the motion to strike? Judge Halsted Ritter, to strike MR. [WILLIAM H.] KING [of Utah]: Mr. President, if it be necessary, I certain articles: move that the ruling of the honorable THE PRESIDING OFFICER [NATHAN L. Presiding Officer be considered as and BACHMAN (Tenn.)]: On the motion of stand for the judgment of the Senate the honorable counsel for the respond- sitting as a Court of Impeachment. ent to strike article I of the articles of THE PRESIDING OFFICER: Is there ob- impeachment or, in the alternative, to jection? The Chair hears none, and the require the honorable managers on the ruling of the Chair is sustained, by the part of the House to make an election Senate. as to whether they will stand upon ar- With reference to article VII of the ticle I or upon article II, the Chair is articles of impeachment, formerly arti- ready to rule. cle IV, the Chair desires to exercise his The Chair is clearly of the opinion prerogative of calling on the Court for that the motion to strike article I or to a determination of this question. require an election is not well taken His reason for so doing is that an and should be overruled. impeachment proceeding before the His reason for such opinion is that Senate sitting as a Court is sui ge- articles I and II present entirely dif- neris, partaking neither of the harsh- ferent bases for impeachment. ness and rigidity of the criminal law Article I alleges the illegal and cor- nor of the civil proceedings requiring rupt receipt by the respondent of less particularity. $4,500 from his former law partner, The question of duplicity in impeach- Mr. Rankin. ment proceedings presented by the Article II sets out as a basis for im- honorable counsel for the respondent is peachment an alleged conspiracy be- a controversial one, and the Chair feels tween Judge Ritter; his former part- that it is the right and duty of each ner, Mr. Rankin; one Richardson, Member of the Senate, sitting as a Metcalf & Sweeny; and goes into detail Court, to express his views thereon. as to the means and manner employed whereby the respondent is alleged to Precedents in proceedings of this have corruptly received the $4,500 character are rare and not binding above mentioned. upon this Court in any course that it The two allegations, one of corrupt might desire to pursue. and illegal receipt and the other of con- The question presented in the mo- spiracy to effectuate the purpose, are, tion to strike article VII on account of in the judgment of the Chair, wholly duplicity has not, so far as the Chair is distinct, and the respondent should be advised, been presented in any im- called to answer each of the articles. peachment proceeding heretofore had before this body. 16. 80 CONG. REC. 4898, 74th Cong. 2d The Chair therefore submits the Sess. question to the Court.

2236 IMPEACHMENT POWERS Ch. 14 § 18

MR. [HENRY F.] ASHURST [of Ari- and 2 of article VII. These two speci- zona]: Mr. President, under the rules fications have reference to what I as- of the Senate, sitting as a Court of Im- sume counsel for respondent and the peachment, all such questions, when managers as well, recognize are rather submitted by the Presiding Officer, involved matters, which would possibly shall be decided without debate and require as much time to develop and to without division, unless the yeas and argue as would be required on the re- nays are demanded by one-fifth of the mainder of the case. Members present, when the yeas and The managers respectfully move that nays shall be taken. those two counts be stricken. If that THE PRESIDING OFFICER: The Chair motion shall be sustained, the man- therefore, will put the motion. All agers will stand upon the other speci- those in favor of the motion of counsel fications in article VII to establish arti- for the respondent to strike article VII cle VII. The suggestion on the part of will say ‘‘aye.’’ Those opposed will say the managers is that those two speci- ‘‘no.’’ fications in article VII be stricken from The noes have it, and the motion in the article. its entirety is overruled. THE PRESIDING OFFICER: (18) What is the response of counsel for the re- § 18.14 During the impeach- spondent? ment trial of Judge Halsted MR. [CHARLES L.] MCNARY [of Or- Ritter, the managers on the egon]: Mr. President, there was so part of the House made and much rumbling and noise in the Cham- ber that I did not hear the position the Senate granted a motion taken by the managers on the part of to strike certain specifica- the House. tions from an article of im- THE PRESIDING OFFICER: The man- peachment. agers on the part of the House have suggested that specifications 1 and 2 of (17) On Apr. 3, 1936, during the article VII be stricken on their motion. impeachment trial of Judge Rit- ... ter, the managers on the part of MR. HOFFMAN [of counsel]: Mr. the House moved that two counts President, the respondent is ready to be stricken. The motion was file his answer to article I, to articles granted by the Senate: II and III as amended, and to articles IV, V, and VI. In view of the announce- MR. MANAGER [HATTON W.] SUM- ment just made asking that specifica- NERS [of Texas] (speaking from the tions 1 and 2 of article VII be stricken, desk in front of the Vice President): it will be necessary for us to revise our Mr. President, the suggestion which answer to article VII and to eliminate the managers desire to make at this paragraphs 1 and 2 thereof. That can time has reference to specifications 1 be very speedily done with 15 or 20 minutes if it can be arranged for the 17. 80 CONG. REC. 4899, 74th Cong. 2d Sess. 18. Nathan L. Bachman (Tenn.).

2237 Ch. 14 § 18 DESCHLER’S PRECEDENTS

Senate to indulge us for that length of On Apr. 6, the respondent’s an- time. swer was laid before the House THE PRESIDING OFFICER: Is there ob- and referred to the managers on jection to the motion submitted on the (20) part of the managers? the part of the House. On the MR. HOFFMAN: We have no objection. same day, the managers filed a THE PRESIDING OFFICER: The motion replication in the Senate, sitting is made. Is there objection? The Chair as a Court of Impeachment, to the hears none, and the motion to strike is answer of the respondent Judge granted. Ritter. The replication was pre- MR. [JOSEPH T.] ROBINSON [of Ar- pared and submitted by the man- kansas]: Mr. President, it would seem agers on their own initiative, the that in the interest of the conservation ( ) of time and for the convenience of the House not having voted thereon: 1 Court, the motion should have been REPLICATION OF THE HOUSE OF REP- made prior to the decision on the question involved in the motion of counsel RESENTATIVES OF THE UNITED to strike certain articles. I merely STATES OF AMERICA TO THE ANSWER make that observation for the consider- OF HALSTED L. RITTER, DISTRICT ation of the Court. JUDGE OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF FLOR- Answer and Replication IDA, TO THE ARTICLES OF IMPEACH- MENT, AS AMENDED, EXHIBITED § 18.15 In the Ritter impeach- AGAINST HIM BY THE HOUSE OF REP- ment trial, an answer to the RESENTATIVES OF THE UNITED STATES OF AMERICA charges was filed by the respondent, and a replication The House of Representatives of the United States of America, having con- thereto was submitted by the sidered the several answers of Halsted managers. L. Ritter, district judge of the United On Apr. 3, 1936, the answer of States for the southern district of Flor- ida, to the several articles of impeach- the respondent in the Ritter im- ment, as amended, against him by peachment was read in the Sen- them exhibited in the name of them- ate, ordered printed, and mes- selves and of all the people of the saged to the House. The answer United States, and reserving to them- stated that the facts set forth selves all advantages of exception to therein did not constitute im- the insufficiency, irrelevancy, and im- pertinency of his answer to each and peachable high crimes and mis- all of the several articles of impeach- demeanors and that the respond- ment, as amended, so exhibited against ent was not guilty of the offenses the said Halsted L. Ritter, judge as charged.(19) aforesaid, do say:

19. 80 CONG. REC. 4899–4906, 74th 20. Id. at p. 5020. Cong. 2d Sess. 1. Id. at pp. 4971, 4972.

2238 IMPEACHMENT POWERS Ch. 14 § 18

(1) That the said articles, as amend- Ritter, opening statements were ed do severally set forth impeachable made in the Senate by the man- offenses, misbehaviors, and misdemeanors as defined in the Constitu- agers on the part of the House tion of the United States, and that the and by counsel for the accused.(3) same are proper to be answered unto The respondent himself testified by the said Halsted L. Ritter, judge as before the Court of Impeach- aforesaid, and sufficient to be enter- (4) tained and adjudicated by the Senate ment. Final arguments were sitting as a Court of Impeachment. made on Apr. 13 and 14 first by (2) That the said House of Rep- Mr. Sam Hobbs, of Alabama, for resentatives of the United States of the managers, then by Mr. Walsh America do deny each and every aver- for the respondent, and finally by ment in said several answers, or either of them, which denies or traverses the Mr. Hatton W. Sumners, of Texas, acts, intents, misbehaviors, or mis- for the managers, the arguments demeanors charged against the said being limited by an order adopted Halsted L. Ritter in said articles of im- on Apr. 13: peachment, as amended, or either of them, and for replication to said an- Ordered, That the time for final ar- swers do say that Halsted L. Ritter, gument of the case of Halsted L. Ritter district judge of the United States for shall be limited to 4 hours, which said the southern district of Florida, is time shall be divided equally between guilty of the impeachable offenses, mis- the managers on the part of the House behaviors, and misdemeanors charged of Representatives and the counsel for in said articles, as amended, and that the respondent, and the time thus as- the House of Representatives are ready signed to each side shall be divided as to prove the same. (5) HATTON W. SUMNERS, each side for itself may determine. On behalf of the Managers. Mr. Hobbs argued three prin- The Trial; Arguments ciples bearing on the weight of evidence and burden of proof in § 18.16 Opening statements an impeachment trial: and closing arguments in an The statement of the law of the case, impeachment trial may con- as we see it, will largely be left to the sist of statements by the distinguished chairman of the Judici- managers on the part of the House and statements by 3. For precedents during the trial as to the evidence, see §§ 12.7–12.9, supra. counsel for the accused. 4. 80 CONG. REC. 5370–86, 74th Cong. On Apr. 6, 1936,(2) in the im- 2d Sess., Apr. 11 and Apr. 13, 1936. peachment trial of Judge Halsted 5. Id. at p. 5401. For final arguments on Apr. 13, 2. 80 CONG. REC. 4972–82, 74th Cong. 1936, see id. at pp. 5401–10; for Apr. 2d Sess. 14, 1936, see id. at pp. 5464–73.

2239 Ch. 14 § 18 DESCHLER’S PRECEDENTS

ary Committee of the House [Mr. Man- Mr. Walsh concluded his argu- ager Sumners], the chairman of the ment based on the lack of evi- managers on the part of the House in this case, and I will not attempt to go dence of charges and on the good into that, save to observe these three character and reputation of the points which, to my mind, should be in respondent: the minds of the Members of this high Court of Impeachment at all times in Gentlemen, all I can say to you is weighing this evidence: that if this case were being tried in an First, that impeachment trials are ordinary court a demurrer to the evi- not criminal trials in any sense of the dence would be sustained. The law is word. that those bringing these charges must Second, that the burden of proof in prove the receipt of income; they must this case is not ‘‘beyond a reasonable prove the amount that was paid out doubt’’, as it is in criminal cases. against that income; they must prove Third, that the presumption of inno- what his exemptions were; they must cence, which attends a defendant in a prove what his allowances were; they criminal case, is not to be indulged in must prove a tax liability. Those mat- behalf of the respondent in an im- ters would all have been looked into, peachment trial. Those three principles and as we look into them in this case of law, I believe, are well recognized, there is no tax liability. When Judge and we respectfully ask the Members Ritter swears he did not defraud the of this high Court of Impeachment to Government of a dollar, when he says bear them in mind. that the $6.25 tax was not due because The present distinguished senior his exemptions exceeded that sum, the Senator from Nebraska [Mr. Norris], court would direct a verdict in his when acting as one of the managers on favor. the part of the House in the impeach- In 1930 Judge Ritter had a loss ment trial of Judge Robert W. which, added to his taxes and other ex- Archbald, made as clear and cogent a penditures, gave him a leeway of statement as has ever been made upon the subject of impeachable conduct. $4,600 over and above the income that With his kind permission, I should like he could be charged with having re- to take that as my text, so to speak, for ceived. He testified to this, and you the remarks that will follow: ought to believe that he testified to the truth, for a charge must be supported If judges can hold their offices only by something greater, I say, than the during good behavior, then it necessarily and logically follows that mere assertion of counsel, and nothing they cannot hold their offices when else has been introduced in this case in they have been convicted of any be- support of that charge. If Judge Ritter havior that is not good. If good be- were found guilty upon that charge, havior is an essential of holding the which was filed in this Court on March office, then misbehavior is a sufficient reason for removal from of- 30, 1936—after he came here to defend fice.(6) himself against the other charges— that would be a monstrous thing. 6. Id. at p. 5401. Those bringing the charge did not, nor

2240 IMPEACHMENT POWERS Ch. 14 § 18

could they, make proof that Judge Rit- is known to criminal jurisprudence. We ter owed his Government a cent of indo assume the responsibility of bring- come taxes or that Judge Ritter did ing before you a case, proven facts, the anything improper in the filing of his reasonable and probable consequences return. It ought to be the pleasure of of which are to cause the people to this body to acquit him of the charges doubt the integrity of the respondent with respect to income taxes, because presiding as a judge among a free peo- the law protects him, because he is in- ple. nocent of any offense in that regard. We take the position, first, that jus- Take this whole case in its entirety, tice must be done to the respondent. gentlemen. I have tried to argue it on The respondent must be protected the facts. I have drawn no conclusions against those who would make him which I did not honestly believe came afraid. But we take the position also from these facts. My argument is that when a judge on the bench, by his backed up by the belief that you must own conduct, does that which makes recognize and accept his innocence as an ordinary person doubt his integrity, he stood here, a brave and manly man, doubt whether his court is a fair place to go, doubt whether he, that ordinary testifying in opposition to these person, will get a square deal there; charges which have been made against doubt whether the judge will be influ- him. It will not do to say that he un- enced by something other than the dermined the dignity or the honor of sworn testimony, that judge must go. the court. He did nothing in his whole This august body writes the code of career in Florida, according to the wit- judicial ethics. This Court fixes the nesses, which would belittle that dig- standard of permissible judicial con- nity or besmirch his honor. duct. It will not be, it cannot be, that There is another thing I wish to call someone on the street corner will de- to your attention. I know and you stroy the confidence of the American know that a judge ought to have a people in the courts of this country. good reputation. In this case, however, That cannot happen if the courts are where a charge is made against his in- kept clean. If confidence in the courts tegrity, where a charge of corruption is of this country is destroyed it is going made against him, he put his reputa- to be destroyed from within by the tion in that community in evidence be- judges themselves. I declare to you, ( ) fore this body. 7 standing in my place of responsibility, Mr. Sumners began and con- that that is one thing which neither cluded his argument, the final ar- the House nor the Senate can permit to be tampered with or which they can gument in the case, as follows: be easy about. . . . We do not assume the responsibility, Now, let us look at this case. I do not Members of this distinguished Court, know anything about what happened of proving that the respondent in this in Colorado, but when we see this re- case is guilty of a crime as that term spondent in this record he is down there in Florida as the secretary of a 7. Id. at p. 5468. real-estate concern. After that he forms

2241 Ch. 14 § 18 DESCHLER’S PRECEDENTS

a copartnership with Mr. Rankin. Two dalusia, Ala.’’ Why did he do that? Be- years and three months after that time cause the job Rankin was trying to get he occupies a position on the Federal was in Alabama. Just think of that, bench, and when the Government put and weigh it. him there, when the people put him In another letter he said: there, they said to him, ‘‘All we ask of I want to say that Judge Rankin is you is to behave yourself.’’ Good behav- a man of the highest character and ior! What does that mean? It means integrity. He is one of the ablest obey the law, keep yourself free from common-law lawyers in the South. questionable conduct, free from embar- That is a statement made by a judge rassing entanglements, free from acts upon his responsibility. which justify suspicion; hold in clean hands the scales of justice. That means We were partners in the practice that he shall not take chances that of law in West Palm Beach before would tend to cause the people to ques- my appointment on the bench. I know of no man better qualified from tion the integrity of the court, because the standpoint of experience, ability, where doubt enters confidence departs. and character for the position. Is not that sound? When a judge on the bench, by his own conduct, arouses And so forth. Then he writes again a substantial doubt as to his judicial in another letter that if he is appointed integrity he commits the highest crime he will raise the bench to a high place. that a judge can commit under the I say a man who will not speak the Constitution. It is not essential to truth above his signed name will not prove guilt. There is nothing in the swear it, and a man who will not state Constitution and nothing in the philos- the truth, and who does those things ophy of a free government that holds which arouse doubt as to his integrity that a man shall continue to occupy of- must go from the bench. fice until it can be established beyond I appreciate profoundly the attention a reasonable doubt that he is not fit for which the Members of this honorable the office. It is the other way. When Court have given the case. there is resulting from the judge’s con- There ought to be a unanimous judg- duct a reasonable doubt as to his integ- ment in this case, and let it ring out rity he has no right to stay longer. He from this Chamber all over the Nation has forfeited his right. It is the high that from now on men who hold posi- duty of this Court to write the judg- tions in the Federal judiciary must be ment and make effective the terms of obedient to the high principles which that contract....(8) in the nature of things it is essential MR. MANAGER SUMNERS: I do not for a judge to manifest. want to be tedious, but this is very im- A few Federal judges can reflect portant, because these things go down upon the great body of honorable men to the depths of this man’s character. who hold these high positions. When he wrote this letter he re- There is another thing I was about ferred to him as ‘‘A. L. Rankin, of An- to forget. Of course, the bondholders in Chicago did not protest the $90,000 fee 8. Id. at p. 5469. to Rankin. The attorneys for the bond-

2242 IMPEACHMENT POWERS Ch. 14 § 18 holders and Mr. Holland were in the I thank this honorable Court for the respondent’s court at the same time. courtesy and consideration which have They came to represent 93 percent of been shown to my colleagues and to the $2,500,000 of the first-mortgage me as we have tried to discharge our bonds. They heard the respondent ad- constitutional duty in this matter.(9) vised of the champertous conduct of Richardson, Rankin et al., and they Deliberation and Judgment saw the respondent approve. They were virtually kicked out of the court. § 18.17 Deliberation was fol- They wanted the case out of that court and away from Rankin and the re- lowed by conviction on a spondent just as quickly as they could general article of impeach- get it out, and they would have stood ment and by judgment of re- not only for that fee of $90,000 but for moval from office in the trial more; and any of you practicing law of Judge Halsted Ritter. would have done the same thing under the circumstances. You remember Final arguments in the Ritter McPherson said respondent was posi- trial having been concluded on tive, very positive, about Mr. Holland. Apr. 14, 1936, the Court of Im- Respondent was a great deal stronger peachment adjourned until Apr. with regard to the attorney for the bondholders. Remember the judge 15, when the doors of the Senate asked Holland, ‘‘Who bought you off?’’ were closed for deliberation on of course they were glad to get out at motion of Senator Henry F. almost any price. Ashurst, of Arizona. The Senate Members of the Court, there is a deliberated with closed doors for 4 great deal more which ought to be said, but you have the record and my hours and 37 minutes. A unani- time has about expired. I have a duty mous-consent agreement entered to perform and you have yours. Mine is into while the Senate was delib- finished. erating with closed doors was The House has done all the House printed in the Record; the order can do toward protecting the judiciary provided for a vote on the articles of the country. The people have trusted in you. Counsel for the respondent of impeachment on Friday, Apr. ( ) kept emphasizing the fact that this re- 17. 10 spondent stood and swore, stood and Deliberation with closed doors swore, stood and swore. I remember was continued on Apr. 16, 1936, that I saw the Members of this honor- for 5 hours and 48 minutes. When able Court lift their hands to God Al- mighty, and, in that oath which they the doors were opened, the Senate took, pledge themselves to rise above adopted orders to return evidence section and party entanglements and to be true to the people of the Nation 9. Id. at pp. 5472, 5473. in the exercise of this high power. I 10. 80 CONG. REC. 5505, 74th Cong. 2d have no doubt you will do it. Sess.

2243 Ch. 14 § 18 DESCHLER’S PRECEDENTS to proper persons, to allow each was insufficient to convict on the Senator to file written opinions first six articles: Article I: 55 within four days after the final ‘‘guilty’’;—29 ‘‘not guilty’’; Article vote, and to provide a method of II: 52 ‘‘guilty’’—32 ‘‘not guilty’’; vote. The latter order read as fol- Article III: 44 ‘‘guilty’’—39 ‘‘not lows: guilty’’; Article IV: 36 ‘‘guilty’’—48 Ordered, That upon the final vote in ‘‘not guilty’’; Article V: 36 the pending impeachment of Halsted ‘‘guilty’’—48 ‘‘not guilty’’; Article L. Ritter, the Secretary shall read the VI: 46 ‘‘guilty’’—37 ‘‘not guilty.’’ articles of impeachment separately and But on the final Article, Article successively, and when the reading of VII, the vote was: 56 ‘‘guilty’’—28 each article shall have been concluded ‘‘not guilty.’’ So the Senate con- the Presiding Officer shall state the victed Judge Ritter on the seventh question thereon as follows: article of impeachment, charging ‘‘Senators, how say you? Is the respondent, Halsted L. Ritter, guilty or general misbehavior and conduct not guilty?’’ that brought his court into scan- Thereupon the roll of the Senate dal and disrepute. shall be called, and each Senator as his Senator Warren R. Austin, of name is called, unless excused, shall Vermont, made a point of order arise in his place and answer ‘‘guilty’’ against the vote on the ground or ‘‘not guilty.’’ (11) that two-thirds had not voted to On Apr. 17, 1936, the Senate convict, Article VII being an accu- convened as a Court of Impeach- mulation of facts and cir- ment to vote on the articles cumstances. The President pro against Judge Ritter. Senator Jo- tempore sustained a point of order seph T. Robinson, of Arkansas, that Senator Austin was indulging announced those Senators absent in argument rather than stating and excused and announced that the grounds for his point of order, pairs would not be recognized in and overruled Senator Austin’s the proceedings. Eighty-four Sen- point of order.(12) ators answered to their names on Senator Ashurst submitted an the quorum call. order both removing Judge Ritter President pro tempore Key Pitt- from office and disqualifying him man, of Nevada, proceeded to put from holding and enjoying any of- the vote on the articles of im- fice of honor, trust, or profit under peachment, a two-thirds vote the United States. Senator Robert being required to convict. The vote M. La Follette, Jr., of Wisconsin,

11. Id. at pp. 5558, 5559. 12. Id. at p. 5606.

2244 IMPEACHMENT POWERS Ch. 14 § 18 asked for a division of the ques- The order for disqualification tion, but Senator George W. Nor- failed on a yea and nay vote— ris, of Nebraska, suggested that yeas 0, nays 76. Senator Ashurst should submit The Senate adopted an order two orders, since removal followed communicating the order and from conviction but disqualifica- judgment to the House, and the tion did not. Senator Ashurst Senate adjourned sine die from ( ) thereupon withdrew the original the Court of Impeachment. 13 order and submitted an order re- Subsequent to his conviction moving Judge Ritter from office. and removal from office, the re- The President pro tempore ruled spondent brought an action in the that no vote was required on the U.S. Court of Claims for back sal- order, removal automatically fol- ary, claiming that the Senate had exceeded its jurisdiction in trying lowing conviction for high crimes him for nonimpeachable charges. and misdemeanors under section The Court of Claims dismissed the 4 of article II of the U.S. Constitu- claim for want of jurisdiction on tion. The President pro tempore the ground that the impeachment then pronounced judgment: power was vested in Congress and JUDGMENT was not subject to judicial review.(14) The Senate having tried Halsted L. Ritter, United States district judge for § 18.18 The order and judg- the southern district of Florida, upon seven several articles of impeachment ment of the Senate in the exhibited against him by the House of Ritter impeachment trial Representatives, and two-thirds of the were messaged to the House. Senators present having found him On Apr. 20, 1936,(15) the order guilty of charges contained therein: It and judgment in the Halsted Rit- is therefore Ordered and adjudged, That the said 13. Id. at pp. 5606, 5607. Halsted L. Ritter be, and he is hereby, 14. Ritter v United States, 84 Ct. Cl 293 removed from office. (1936), cert. denied, 300 U.S. 668 Senator Ashurst submitted a (1937). The opinion of the Court of second order disqualifying the re- Claims cited dicta in the case of Mis- spondent from holding an office of sissippi v Johnson, 71 U.S. 475 honor, trust, or profit under the (1866), to support the conclusion that the impeachment power was po- United States. It was agreed, in litical in nature and not subject to reliance on the Robert Archbald judicial review. proceedings, that only a majority 15. 80 CONG. REC. 5703, 5704, 74th vote was required for passage. Cong. 2d Sess.

2245 Ch. 14 § 18 DESCHLER’S PRECEDENTS ter impeachment trial were re- America, this the 18th day of April, ceived in the House: A.D. 1936. EDWIN A. HALSEY, MESSAGE FROM THE SENATE Secretary of the Senate of the United States. A message from the Senate, by Mr. In the Senate of the United States of Home, its enrolling clerk, announced America, sitting for the trial of the that the Senate had ordered that the impeachment of Halsted L. Ritter, Secretary be directed to communicate United States district judge for the to the President of the United States southern district of Florida and the House of Representatives the order and judgment of the Senate in JUDGMENT the case of Halsted L. Ritter, and APRIL 17, 1936. transmit a certified copy of same to The Senate having tried Halsted each, as follows: L. Ritter, United States district I, Edwin A. Halsey, Secretary of judge for the southern district of the Senate of the United States of Florida, upon seven several articles America, do hereby certify that the of impeachment exhibited against hereto attached document is a true him by the House of Representa- and correct copy of the order and tives, and two-thirds of the Senators judgment of the Senate, sitting for present having found him guilty of the trial of the impeachment of Hal- charges contained therein: It is sted L. Ritter, United States district therefore judge for the southern district of Ordered and adjudged, That the Florida, entered in the said trial on said Halsted L. Ritter be, and he is April 17, 1936. hereby, removed from office. In testimony whereof, I hereunto Attest: subscribe my name and affix the seal EDWIN A. HALSEY of the Senate of the United States of Secretary.

2246 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, except 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 [impeachment] 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 central 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 debates 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 the Federalist Papers 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 censure judicial and executive departments. and to punishment.’’ When censure is divided 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 delegates 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 nomination; 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 impracticable 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 conduct 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 principal as well as the Coadjutors.(39) 32. The Virginia Plan, 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 defined 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’ treason.’’ 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,’’ especially 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 described 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 South Carolina 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 impeachment, 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 quorum 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 conventions, 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 department 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 officers, 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 amend 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 impeachment, 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 impeach 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 conviction 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 purpose 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, Ohio 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 unit 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 inflammatory 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 aris in keeping with the nature of the rem- ticles were not prepared until after impeachment 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 conduct. 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 constituent 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 general, 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 imposed 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 principles of our government or the proper the presidential office.

2273