Impeachment Powers

Home , Andrew Mellon, Charles Swayne, Contempt of Congress, Discharge petition, Extradition Clause, Floor Services Chief

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 in- action 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 co- in said district as a bankrupt, and as trustee, was the holder of $50,000 of such trustee took charge of the assets first-mortgage bonds, the amount of of said Whitehall Building and Oper- bonds required to institute the con- ating Company, which consisted of a templated proceedings in Judge Rit- hotel property located in Palm Beach ter’s court. in said district. That the said Richard- On October 3, 1929, the said Bert E. son as such trustee operated said hotel Holland, being solicited by the said property from the time of his said ap- Sweeney, requested the said Rankin pointment until its sales on the 3d of and Metcalf to prepare a complaint to January 1929, under the foreclosure of file in said Judge Ritter’s court for a third mortgage thereon. On the 1st foreclosure of said first mortgage and of November and the 13th of December the appointment of a receiver. At this 1929, the said Judge Ritter made or- time Judge Ritter was holding court in ders in said bankruptcy proceedings al- Brooklyn, New York, and the said lowing the said Walter S. Richardson Rankin and Richardson went from as trustee the sum of $16,500 as com- West Palm Beach, Florida, to Brook- pensation for his services as trustee. lyn, New York, and called upon said That before the discharge of said Wal- Judge Ritter a short time previous to ter S. Richardson as such trustee, said filing the bill for foreclosure and ap- Richardson, together with said A. L. pointment of a receiver of said hotel Rankin, one Ernest Metcalf, one Mar- property. tin Sweeney, and the said Halsted L. On October 10, 1929, and before the Ritter, entered into an arrangement to filing of said bill for foreclosure and re- secure permission of the holder or ceiver, the said Holland withdrew his holders of at least $50,000 of first authority to said Rankin and Metcalf mortgage bonds on said hotel property to file said bill and notified the said for the purpose of filing a bill to fore- Rankin not to file the said bill. Not- close the first mortgage on said prem- withstanding the said instructions to

1963 Ch. 14 § 3 DESCHLER’S PRECEDENTS

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

1964 IMPEACHMENT POWERS Ch. 14 § 3

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

1965 Ch. 14 § 3 DESCHLER’S PRECEDENTS

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

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

1967 Ch. 14 § 3 DESCHLER’S PRECEDENTS

his former partner thereabout, and Senate of the United States, duly without the knowledge or consent of qualified and commissioned, and, while his said former partner, appropriated acting as a United States district judge the entire amount thus solicited and for the southern district of Florida, was received to the use and benefit of him- and is guilty of a high crime and mis- self, the said Judge Ritter. demeanor in office in manner and form as follows to wit: At the time said letter was written That the said Halsted L. Ritter, by Judge Ritter and said $2,000 re- while such judge, was guilty of a viola- ceived by him, Mulford Realty Cor- tion of section 258 of the Judicial Code poration held and owned large inter- of the United States of America ests in Florida real estate and citrus (U.S.C., Annotated, title 28, sec. 373), groves, and a large amount of securi- making it unlawful for any judge ap- ties of the Olympia Improvement Cor- pointed under the authority of the poration, which was a company orga- United States to exercise the profes- nized to develop and promote Olympia, sion or employment of counsel or attor- Florida, said holdings being within the ney, or to be engaged in the practice of territorial jurisdiction of the United the law, in that Judge Ritter did exer- States District Court, of which Judge cise the profession or employment of Ritter was a judge from, to wit, Feb- counsel or attorney, or engage in the ruary 15, 1929. practice of the law, representing J.R. After writing said letter of March 11, Francis, with relation to the Boca Raton matter and the segregation and 1929, Judge Ritter further exercised saving of the interest of J.R. Francis the profession or employment of coun- herein, or in obtaining a deed or deeds sel or attorney, or engaged in the prac- to J.R. Francis from the Spanish River tice of the law, with relation to said Land Company to certain pieces of re- case. alty, and in the Edgewater Ocean Which acts of said judge were cal- Beach Development Company matter culated to bring his office into disre- for which services the said Judge Rit- pute, constitute a violation of section ter received from the said J.R. Francis 258 of the Judicial Code of the United the sum of $7,500. States of America (U.S.C., Annotated, Which acts of said judge were cal- title 28, sec. 373), and constitute a culated to bring his office into disre- high crime and misdemeanor within pute constitute a violation of the law the meaning and intent of section 4 of above recited, and constitute a high article II of the Constitution of the crime and misdemeanor within the meaning and intent of section 4 of arti- United States. cle II of the Constitution of the United Wherefore, the said Judge Halsted L. States. Ritter was and is guilty of a high mis- Wherefore, the said Judge Halsted L. demeanor in office. Ritter was and is guilty of a high 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 admis- sible upon any one of the charges The respondent, Halsted L. Ritter, might not have persuaded them of moves the honorable Senate, sitting as the accused’s guilt, the sum of it will a Court of Impeachment, for an order convince them as to all. striking and dismissing article I of the It is thus not enough protection for articles of impeachment, or, in the al- an accused that the Senate may choose ternative, to require the honorable to vote separately upon each section of managers on the part of the House of an omnibus article of impeachment: Representatives to elect as to whether the prejudicial effect of grouping a di- they will proceed upon article I or verse mass of factual material under one heading, some of it adduced to printed in the Record at 120 CONG. prove one proposition and another to REC. 29332–34, 93d Cong. 2d Sess., prove a proposition entirely unrelated, Aug. 20, 1974. would still remain.(12) 13. 80 CONG. REC. 4898, 74th Cong. 2d Sess. The motion was submitted on 12. H. REPT. NO. 93–1305, at pp. 427– Mar. 31, 1936, 80 CONG. REC. 4656, 431, Committee on the Judiciary, 4657, and reserved for decision.

1976 IMPEACHMENT POWERS Ch. 14 § 3 upon article II, and for grounds of such should be required to abide by the motion respondent says: judgment of the Senate rendered upon 1. Article II reiterates and embraces such prior articles and the Senate all the charges and allegations of arti- ought not to countenance the arrange- cle I, and the respondent is thus and ment of pleading designed to procure a thereby twice charged in separate arti- second vote and the collection or 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 op- ment attempt against him failed by posed to executive officers, the actual such a decisive margin. commission of a crime does not appear Two and a half months later, how- always to have been thought essential. ever, Johnson removed Stanton from However, the debates in the House and office, in apparent disregard of the opinions filed by Senators have made Tenure-of-Office Act. The response of it clear that in the impeachments of Congress was immediate: Johnson was federal judges, Congress has placed impeached three days later, on Feb- great reliance upon the ‘‘good behavior’’ ruary 24, 1868, by a vote of 128 to clause. The distinction between officers 47—an even greater margin than that tenured during good behavior and by which the first impeachment vote elected officers, for purposes of grounds had failed. for impeachment, was stressed by The reversal is a dramatic dem- Rufus King at the Constitutional Con- onstration that the House of Rep- vention of 1787. A judge’s impeach- resentatives believed it had to find the ment or conviction resting upon ‘‘gen- President guilty of a crime before im- eral misbehavior,’’ in whatever degree, peaching him. The nine articles of im- cannot be an appropriate guide for the peachment which were adopted against impeachment or conviction of an elect- Johnson, on March 2, 1868, all related ed officer serving for a fixed term.

1991 Ch. 14 § 3 DESCHLER’S PRECEDENTS

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

1992 IMPEACHMENT POWERS Ch. 14 § 3

nal, consonant with the Constitution, ground that criminal conduct was because the element of criminal intent alleged therein and sustained by or mens rea would be lacking. Without the evidence; but found no im- a requirement of criminal acts or at least criminal intent, Congress would peachable offenses constituted in be free to impeach these officials. The Articles II and III: loss of this freedom should not be (1) With respect to proposed Article mourned; such a use of the impeach- I, we believe that the charges of con- ment power was never intended by the spiracy to obstruct justice, and obstruc- Framers, is not supported by the lan- tion of justice, which are contained in guage of our Constitution, and, if his- the Article in essence, if not in terms, tory is to guide us, would be seriously may be taken as substantially con- unwise as well. fessed by Mr. Nixon on August 5, 1974, As Alexander Simpson stated in his and corroborated by ample other evi- Treatise on Federal Impeachments dence in the record. Prior to Mr. Nix- (1916): on’s revelation of the contents of three The Senate must find an intent to conversations between him and his do wrong. It is, of course, admitted former Chief of Staff, H. R. Haldeman, that a party will be presumed to in- that took place on June 23, 1972, we tend the natural and necessary 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 im- ple, 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 nec- tion. 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 con- fession 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 re- printed 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 in- do 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 constitu- ent that balance between the executive tional wrongs that subvert the structure and legislative branches be maintained of government, or undermine the integ- so that the executive would not become rity of office and even the Constitution the creature of the legislature, itself, and thus are ‘‘high’’ offenses in the dismissable at its will, the framers also sense that word was used in English im- recognized that some means would be peachments. needed to deal with excesses by the exec- The framers of our Constitution con- utive. Impeachment was familiar to sciously adopted a particular phrase from them. They understood its essential con- the English practice to help define the stitutional functions and perceived its constitutional grounds for removal. The adaptability to the American contest. content of the phrase ‘‘high Crimes and While it may be argued that some arti- Misdemeanors’’ for the framers is to be cles of impeachment have charged con- related to what the framers knew, on the duct that constituted crime and thus that whole, about the English practice—the criminality is an essential ingredient, or broad sweep of English constitutional that some have charged conduct that was history and the vital role impeachment not criminal and thus that criminality is had played in the limitation of royal pre- not essential, the fact remains that in rogative and the control of abuses of min- the English practice and in several of the isterial and judicial power. American impeachments the criminality Impeachment was not a remote subject issue was not raised at all. The emphasis for the framers. Even as they labored in has been on the significant effects of the Philadelphia, the impeachment trial of conduct—undermining the integrity of of- Warren Hastings, Governor-General of fice, disregard of constitutional duties India, was pending in London, a fact to and oath of office, arrogation of power, which George Mason made explicit ref- abuse of the governmental process, ad- erence in the Convention. Whatever may verse impact on the system of govern-

2271 Ch. 14 App. DESCHLER’S PRECEDENTS ment. Clearly, these effects can be tionally prescribed oath that the Presi- brought about in ways not anticipated by dent is required to take before he enters the criminal law. Criminal standards and upon the execution of his office and are, criminal courts were established to con- therefore, also expressly imposed by the trol individual conduct. Impeachment Constitution. was evolved by Parliament to cope with The duty to take care is affirmative. So both the inadequacy of criminal stand- is the duty faithfully to execute the of- ards and the impotence of courts to deal fice. A President must carry out the obli- with the conduct of great public figures. gations of his office diligently and in It would be anomalous if the framers, good faith. The elective character and po- having barred criminal sanctions from litical role of a President make it difficult the impeachment remedy and limited it to define faithful exercise of his powers to removal and possible disqualification in the abstract. A President must make from office, intended to restrict the policy and exercise discretion. This dis- grounds for impeachment to conduct that cretion necessarily is broad, especially in was criminal. emergency situations, but the constitu- The longing for precise criteria is un- tional duties of a President impose limi- derstandable; advance, precise definition tations on its exercise. of objective limits would seemingly serve The ‘‘take care’’ duty emphasizes the both to direct future conduct and to in- responsibility of a President for the over- hibit arbitrary reaction to past conduct. all conduct of the executive branch, In private affairs the objective is the con- which the Constitution vests in him trol of personal behavior, in part through alone. He must take care that the execu- the punishment of misbehavior. In 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