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4-15-1970 House of Representatives, IMPEACHMENT OF ASSOCIATE JUSTICE DOUGLAS Joe D. Waggoner Jr.
Louis C. Wyman
Gerald R. Ford
Robert Price
Charles H. Griffin
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Recommended Citation Joe D. Waggoner Jr., Louis C. Wyman, Gerald R. Ford, Robert Price, and Charles H. Griffin, House of Representatives, IMPEACHMENT OF ASSOCIATE JUSTICE DOUGLAS (1970). Available at: http://repository.uchastings.edu/publicity/22
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Vol. 116 WASHINGTON, WEDNESDAY) APRIL 15,1970 No. 60 House of Representatives CONDUCT OF ASSOCIATE JUSTICE DOUGLAS Speech in the House of Representatives by Republican Leader Gerald R. Ford of Michigan
Mr. GERALD R. FORD. Mr. Speaker, His private life, to the degree that it does should we remove him for a minor or last May 8 I joined with the gentleman not bring the Supreme Court into disre isolated mistake-this does not consti from Ohio (Mr. TAFT) in introducing pute, is his own business. One does not tute behaviour in the common meaning. H.R. 11109, a bill requiring financial dis need to be an ardent admirer of any What we should scrutinize in sitting closure by members of the Federal ju Judge or justice, or an advocate of his Judges is their continuing pattern of diciary. This was amid the allegations life style, to acknowledge his right to be action. their behaviour. The Constitution swirling around Mr. Justice Fortas. Be elevated to or remain on the bench. does not demand that it be "exemplary" fore and since, other Members of this We have heard a great deal of dis or "perfect." But it does have to be body have proposed legislation of similar cussion recently about the qual11lcations '·good." intent. To the best of my knowledge. all which a person should be required to Naturally, there must be orderly pro of them lie dormant in the Committee possess to be elevated to the U.S. Su- cedure for determining whether or not on the JUdiciary where they were re 1>reme Court. There has not been a Federal judge's behaviour is good. The ferred. sufficient consideration given, in my courts, arbiters in most such questions of On March 19 the U.S. Judicial Con judgment, to the quallfications which a judgment, cannot judge themselves. So ference announced the adoption of new person should possess to remain upon the Founding Fathers vested this ulti ethical standards on outside earnings and the U.S. Supreme ·Court. mate power where the ultimate sover conflict of interest. They were described For, contrary to a widepsread miscon eignty of our 'system is most directly re as somewhat watered down from the ception, Federal judges and the Justices fiected-in the Congress, in the elected strict proposals of former Chief Justice of the Supreme Court are not appointed Representatives of the people and of the Warren at the time of the Fortas affair. for life. The Founding Fathers would States. In any event, they are not binding upon ha ve been the last to make such a mis In this seldom-used procedure, called the Supreme Court. take; the American Revolution was impeachment. the legislative branch Neither are the 36-year-old Canon~ of waged against an hereditary monarchy exercises both executive and judicial Judicial Ethics of the American Bar As in which the King always had a life term functions. The roles of the two bodies sociation, among which are these: and, as English history bloodily demon differ dramatically. The House serves as Canon 4. Avotdance 01 Impropriety. A strated, could onlY 'be removed from office prosecutor and grand jury; the Senate Judge's omclal conduct should be free from by the headsman's ax or the assassin's serves as judge and b'ial jury. Impropriety and the appearance of Impro priety; he should avoid Infractions of law; dagger. Article I of the Constitution has tlllS and his personal behavior, not only upon the No, the Constitution does not guaran to say about the impeachment process : Bench and In the performance of Judicial tee a lifetime of power and autholi ty to The House of Representatives- shall h ave duties, but also In his everyday life, should any public official. The terms of Members t he sole power of Impeachment . be beyond reproach. of the House are fixed at 2 years; of The Senate 'shall h ave the sole Power to Canon 24. Inconsistent Obligati ons. A judge the President and Vice President a.t 4; t ry a ll Impeachments . When sitting for should not acoept Inconsistent duties; nor of U.S. Senators at 6. Members of the t hat Purpose. they shall be on Oath or Af Incur obligations, pecuniary or otherwise, Federal judiciary hold their offices only firmation. When the President of the United which w1ll In any way Interfere or appear to "during good behaviour." States Is tried, the Chief Justice shall Interfere with his devotion to the expe preside : And no Person shall be convicted ditious and proper administration of his of Let me read the first section of article without the Concurr.ence of two-thirds of ficial function. III of the c.onstitution in full : the Members present. Canon 31. Private Law Practice. In many The Judicial power of the United States states the practice of law by one holding shall be vested In one supreme Court, and Article II. dealing with the executive Judicial pOSition Is forbidden . .. I! forbid In slIch inferior Courts as the Congress may branch, states in section 4: den to practice law, he should refrain from from time to time ordain and establish. The The PreSident, Vice PreSident. and all civil accepting any professional employment while Judges, both of the -supreme and Inferior Omcers ot the United States, shall be re In omce. Courts. shall hold t heir Omces during flood moved from omce on Impeachment tor, and Bellat';oll-r, and shall, at stated Times, receive conviction of, Treason, Bribery or other high Following the public disclosure last (or their SerVices, a Compensation, which crimes and misdemeanors. year of the extrajudicial activities and shall not be diminished during their Con moonlighting employment of Justices ti nuance In Omce. This has been the most controversial of the constitutional references to the Fortas and Douglas, which resulted in The clause dealing with the compen the resignation from the Supreme Bench impeachment process. No concensus sation of Federal judges, which inciden exists as to whether, in the case of Fed of Mr. Justice Fortas but not of Mr. Jus tally we raised last year to $60,000 for tice Douglas, I received llterally hundreds eral judges, impeachment must depend Associate Justices of the Supreme Court, upon conviction of one of the two speci of inquiries and protests from concerned suggests that their "oontinuance in of ci tizens and colleagues. fice" is indeed limited. The prOvision fled Climes of treason or bribery or be In response to this evident interest I within the nebulous category of "other that it may not be decreased prevents high crimes and misdemeaners." There quietly undertook a study of both the the legislative or executive branches law of impeachment and the facts about from unduly infiuencing the judiciary by are pages upon pages of learned argu the behavior of Mr. Justice Douglas. I cutting judges' pay, and suggests that ment whether the adjective "high" assured inquirers that I would make my even in those bygone days the income of modifies "misdmeanors" as well as findings known at the appropriate time. "crimes," and ' over what, indeed, con jurists was a highly sensitive matter. stitutes a "high misdemeanor." That prellminary repo.rt is now ready. To me the Constitution is perfectly Let me say by way of preface that I am In my view, one of the specific or gen clear about the tenure, or term of office, eral offenses cited in article II is required a lawyer, admitted to the bar of the U.S. of all Federal judges-it is "during good Supreme Court. I have the most profound behaviour." It is implicit in this that for removal of the indirectly elected respect for the U.S. Supreme Court. I when behaviour ceases to be good, the President and Vice President and all ap would never advocate action against a right to hold judicial office ceases also. pOinted civil officers of the executive branch of the Federal Government. member of that Court because of his Thus, we come quickly to the central polltical philosophy or the legal opinions question: What constitutes "good be whatever their terms of office. But in the which he contributes to the decisions of haviour" or, conversely, ungood or dis case of members of the jUdicial branch, the Court. Mr. Justice Douglas has been qualifying behaviour? Federal judges and Justices, I believe an criticized for his llberal opinions and be The words employed by the Framers of additional and much stricter requirement cause he granted stays of execution to the Constitution were, as the proceedings is imposed by article II, namely, "good the convicted spies, the Rosenbergs, who of the Convention detail, chosen with behaviour." stole the atomic bomb for the Soviet exceedingly great care and precision. Finally, and this is a most significant Union. Probably I would disagree, were Note, for example, the word "behaviour." provision, article I of the Constitution I on the bench, with most of Mr. Justice It relates to action, not merely to specifies: Douglas' views, such as his defense of the thoughts or opinions; further, it refers Judgment In Cases of Impeachment shall filthy film, "I Am Curious (Yellow)." But not extend further than to removal from not to a single act but to a pattern or Omce, and disqualification to hold aud en a judge's right to his legal views, as continuing sequence of action. We can joy any omce of honor, Trust or Profit under suming they are not improperly infiu not and should not remove a Federal the United States: but the Party convicted enced or corrupted, is fundamental to our judge for the legal views he holds-this shall nevertheless be liable and subject to system of justice. would be as contemptible as to exclude Indictment, Trial, Judgment and Punish I should say also that I have no per him from serving on the Supreme Court ment, according to Law. sonal feellng toward Mr. Justice Douglas. for his ideology or past decisions. Nor 2
In other words, impeachment resem indeed require crimes of the magnitude aspects of the behavior of Mr. J ustice bles a regular criminal indictment and of treason and bribery. Other elective Douglas, and let us ask ourselves in the trial but it is n ot the same thing. It re officials such as Members of the Con words of Mr. Justice Cardozo, whether lates solely to the accused's right to hold gress, are so vulnerable to public dis they represent "not honesty alone, but civil office; not to the many other rights pleasure that their removal by the com the punctilio of an honor the most which are his as a citizen and which pro plicated impeachment route has not even sensitive." tect him in a court of law. By pointedly been tried since 1798. But nine Federal Ralph Ginzburg is editor and pub voiding any immunity an accused might judges, including one Associate Justice lisher of a number of magazines not claim under the double ,jeopardy princi of the Supreme Court, have been im commonly found on the family coffee ple, the framers of the Constitution peached by this House and tried by the table. For sending what was held to be clearly established that impeachment is Senate; four were acquitted; four con an obscene edition of one of them, Eros, a unique political device; designed ex victed and removed from office; and one through the U.S. mails, Mr. Ginzburg plicitly to dislodge from public office resigned during trial and the impeach was convicted and sentenced to 5 years' those who are patently unfit for it, but ment was dismissed. imprisonment in 1963. cannot otherwise be promptly removed. In the most recent impeachment trial His conviction was appealed and, in The distinction between impeachment conducted by the other body, that of U.S. 1966, was affirmed by the U.S. Supreme and ordinary climinal prosecution is Judge Halsted L. Ritter of the southern Court in a close 5-to-4 decision. Mr. Jus again evident when impeachment is district of Florida who was removed in tice Douglas dissented. His dissent fa made the sole exception to the guarantee 1936, the point of judicial behavior was vored Mr. Ginzburg and the publication, of article III, section 3 that trial of all paramount, since the criminal charges Eros. crimes shall be by jury-perhaps the were admittedly thin. This case was in most fundamental of all constitutional During the 1964 presidential campaign, the context of F. t>. R .'s effort to pack the another Ginzburg magazine, Fact, pub protections. Supreme Court with Justices more to his We must continually remember that liking; J udge Ritter was a transplanted lished an issue entitled "The Uncon the writers of our Constitution did their scious of a Conservative: A Special Issue conservative Colorado Republican ap on the Mind of BARRY GoLDWATER." work with the experience of the British pointed to the Federal bench in solidly Crown and Parliament freshly in mind. Democratic Florida by President Coo The thrust of the two main articles There is so much that resembles the lidge. He was convicted by a coalition of in Ginzburg's magazine was that Sena British system in our Constitution that liberal RepubliCans, New Deal Demo tor GOLDWATER, the Republican nolIlinee we sometimes overlook the even sharper crats, and Farmer-Labor and Progres for President of the United States, had a differenc'es-one of the sharpest is our sive Party Senators in what might be severely paranoid personality and was divergent view on impeachment. oo.lled the northwestern strategy of that psychological unfit to be President. In Great Britain the House of Lords era. Nevertheless, thie arguments were This was supported by a fraction of re sits as the court of highest appeal in the persuasive: plies to an alleged poll which the maga land, and upon accusation by Commons In a joint statement, Senators Borah, zine had mailed to some 12,000 psychia the Lords can try, convict, and punish trists-hardly a scientific diagnosis, but La Follette, Frazier, and Shipstead said: a potent political hatchet job. any impeached subject-private person We therefore did not, In passing upon the or Official-with any lawful penalty for facts presented to us In the matter of the Naturally, Senator GOLDWATER his crime-including death. Impeachment proceedings against Judge promptly sued Mr. Ginzburg and Fact Our Constitution. on the contrary. pro Halsted L. Ritter, seek to satisfy ourselves magazine for libel. A Federal court jUry vides only the relatively mild penalties of as to whether technically a crime or crimes in New York granted the Senator a total removal from office, and disqualification had been committed, or as to whether the of $75,000 in punitive dam:l.ges from for future office-the '\'orst punishment acts charged and proved disclosed criminal Ginzburg and Fact magazine. Fact Intent or corrupt motive; we sought only to shortly was to be incorporated into an t.he U.S. Senate can mete out is both re ascertain from these facts whether his con moval and disqualification. duct had been such as to am ount to mis other Ginzburg publication, Avant Moreover. to make sure impeachment behavior, misconduct-as to whether he had Garde. The U.S. court of appeals sus would not be frivolously attempted or conducted himself In a way that was cal tained this libel award. It held that un easily abused, and further to protect of culated to undermine public confidence In der the New York Times against Sullivan ficeholders against political reprisal, the t he courts and to create a sense of scandal. decision a public figure could be libelled Constitution requires a two-thirds vote There are a great many things which one if the publication was made with actual of the Senate to convict. must readily admit would be wholly unbe malice; that is, if the publisher knew it With this brief review of the law, of coming, wholly Intolerable, In the conduct of was false or acted with reckless disregard a judge, and yet these things might not of whether it was false or not. the constitutional background for im amount t o a crime. peachment, I have endeavored to correct .So once again Ralph Ginzburg ap two common misconceptions : fi rst, that Senator Elbert Thomas of Utah, citing pealed to the Supreme Court which, in Federal judges are appointed for life and, the Jeffersonian and colonial antecedents due course, upheld the lower courts' judg second, that they can be removed only by of the impeachment process, bluntly ment in favor of Senator GOLDWATER and being convicted, with all ordinary pro declared: declined to review the case. tections and p:esumptions of innocence Tenure during good behavior . .. Is In However, Mr. Justice Douglas again to which an accused is entiUed, of vio no sense a guaranty of a life Job, and mis dissented on the side of Mr. Ginzberg. behavior In the ordinary, dictionary sense of along with Mr. Justice Black, Al though lating the law. of the term will cause It to be cut short on This is not the case. Federal judges the Court's majority did not elaborate can be and have been impeached for im the vote, under special oath, of t'.'"o-thirds on its ruling, the dissenting minority de of the Senate, if charges are first brought by cision was based on the theory that the proper personal habits such as chronic the House of Representatives .... To as intoxication on the bench, and one of the sume that good behavior means anything but constitutional guarantees of free speech charges brought against President An good behavior would be to cast a reflection and free press are absolute. drew Johnson was that he delivered "in upon the ability of the fathers to express This decision was handed down Janu temperate, inflammatory and scandal themselves in understandable language. ary 26, 1970. ous harangues." Yet, while the Ginzberg-Goldwater But the best summary. in my opinion, suit was pending in the Federal courts, I have studied the principal impeach was that of Senator William G. McAdoo clearly headed for the highest court in ment actions that have been initiated of California, son-in-law of Woodrow the land, Mr. Justice Douglas appeared over the years and frankly. there are too Wilson and Secretary of the Treasury : as the author of an article in Avant few cases to make very good law. About I approach this subject from the stand Garde, the successor to Fact in the Ginz the only thing the authorities can agree p oint of the general conduct of this judge berg stable of magazines, and reportedly upon in recent history, though it was while on the bench, as portrayed by the accepted payment from Ginzberg for it. hotly argued up to President Johnson's various counts In the impeachment and the impeachment and the trial of Judge evidence submitted In the trial. The picture The March 1969 issue of Avant Garde, on Swayne, is that an offense need not be t h us p resented Is, to my m ind , t h at of a its title page, shows Ralph Ginzburg as indictable to be impeachable. In other m an who Is so lacking in any proper concep editor stating under oath that it incor wordS, something less tha n a criminal tion of profession al ethics and those h igh porates the former magazine Fact. act or criminal dereliction of duty may stan dards of Judicial character and conduct The table of contents, lists on page nevertheless be sufficient grounds for im as to constitute misbeh avior In Its m ost seri 16 an article titled "Appeal of Folk Sing ous aspects, and to render him u nfit to hold ing: A Landmark Opinion" by Justice peachment and removal from public a Judicial office ... office. William O. Douglas. Even his judicial Good behavior, as It is used In the Con title, conferred on only eight other Amer What, then, is an impeachable offense? stitution, exacts of a j\ldge the highest icans, is brazenly exploited, is standards of public and private rectitude. The only honest answer that an im No judge can besmirch the robes he wears Justice Douglas' contribution imme peachable offense is whatever a majority by relaxing these standards, by compromis diately follows one provocatively entitled o! the H!)U~ of Representatives considers Ing them through conduct which brings re "The Decline and Fall of the Female to b£ at " glven moment in history; con proach u pon himself personally, or upon the Breast." There are two other titles in the viction results from whatever offense or great office h e holds . No m ore sacred trust table of contents so vulgarly playing on offenses two-thirds of the other body Is committed to the bench of the United double meaning that I will not repeat cnnsiders to be sufficiently serious to re States than to keep shining with und immed effulgence the brightest jewel In the crown them aloud. quire removal of the accused from o~c~. of democracy-justice. Ralph Ginzburg's magazine Avant Again, the historical context and polltl However disagreeable the d uty may be to Garde paid the Associate Justice of the cal climate are important; there are few those of u s who constitute this great body U.S. Supreme Court the sum of $350 for fi xed principles among the handful of In determining the guilt of those who are his article on folk singing. The article precedents. entrusted under the Con stitution with the itself is not pornographic, although it I think it is fair to come to one con high responsibilities of judicial office, we praises the lusty, lurid, and risque along clusion however, from our history of must be as exactlng In ou r conception of the with the social protest of leftwing folk impeachments: a higher standard is ex obligations of a judicial officer as Mr. Justice singers. It 11 a matter of editorial judg pected of Federal judges th.an of any Cardozo defined them when he said, In con nection with fiduciaries, that they should ment whether it was worth the $350. other "civil officers" of the Umted States. be held "to something stricter than the Ginzburg claims he paid Justice Douglas The President and Vice President, and morals of the market-place. Not honesty for writing it. I would think, however, all persons holding office at the pleasure alon e, but the punctilio 01 an honor the that a byline clear across the page read of the President, ean be thrown out of most sensitive, 13 then t he standard 01 be ing "By William O. DoUglas, Associate office by the voters at least every 4 years. havior." (Melnhard v. Solmon, 249 N.Y. Justice, U.S. Supreme Court" and a full To remove them in midterm-it has been 458.) page picture would be worth something tried only twice and never done-would Let us now objectively examine certain to a publisher and a magazine with two 3 appeals pending In the U.S. courts. establishment activism, violent defiance not have prevented the publication of However, Mr. Justice Douglas did not of pOlice and public autho"rities, and his writings in such a place if he wanted disqualify himself from taking part in even the revolutionary restructuring of to, especially after widespread criticism the Goldwater against Ginzburg libel American society-does he not suppose of his earlier contributions to less ob appeal. Had the decision been a close that these confrontations and those ac jectionable magazines. 5-to-4 split, as was the earlier one, Ginz cused of unlawfully taking part in them No, Mr. Justice Douglas has been tell burg might have won with Douglas' vote. will not come soon before the Supreme ing us something and this time he wanted ActuallY, neither the quantity of the Court? By his own book, the Court surely to make it perfectly clear. His blunt mes sum that changed hands nor the position will have to rule on many such cases. sage to the American people and their taken by the Court's majority or the size I ask you, will Mr. Justice Douglas Representatives in the Congress of the of the majority makes a bit of difference then disqualify himself because of a bias United States is that he does not give a in the gross impropriety involved. previously expressed, and published for tinker's damn what we think of him and profit? Will he step aside as did a liberal his behaviour on the Bench. He believes Title 28, United States Code, section he sits there by some divine right and 455 states as follows: jurist of the utmost personal integrity, Chief Justice Warren, whenever any re that he can do and say anything he Any justice or judge of the United States pleases without being questioned and should dlsquall!y himself In any case In mote chance of conflict of interest arose? which he has a substantial Interest, has been Not if we may judge by Mr. Justice Doug with complete immunity. of counsel, Is or has been a material witness, las' action in the Ginzburg appeals, he Does he really believe this? Whatever or Is so related to or connected with any will not. else one may say, Mr. Justice Douglas party or his attorney as to render It Improper, When I first encountered the facts of does know the Constitution, and he In his opinion, for him to sit on the trial, ap Mr. Justice Douglas' involvement with knows the law of impeachment. Would peal or other proceeding therein. pornographic publications and espousal it not, I ask you, be much more reason Let me ask each one of you : Is this of hippie-yippie style revolution, I was able to suppose that Mr. Justice Douglas what the Constitution means by "good inclined to dismiss his fractious behavior is trying to shock and outrage us-but behaviour" ? Should such a person sit on as the first sign of senility. But I believe for his own reasons. our Supreme Court? I underestimated the Justice. Suppose his critics concentrate on his Writing signed articles for notorious In case there a're any "square" Amer outrageous opinions, expressed off the publications of a convicted pornographer icans who were too stupid to get the mes Bench, in books and magazines that is bad enough. Taking money from them sage Mr. Justice Douglas was trying to share, with their more reputable COUSins, is worse. Declining to disqualify one's tell us, he has now removed all possible the constitutional protections of free self in this case is inexcusable. misunderstanding. speech and free press. Suppose his im Here is the April 1970 current edition peachment is predicated on these But this is only the beginning of the grounds alone-will not the accusers of insolence by which Mr. Justice Douglas of a magazine innocently entitled "Ever green." Mr. Justice Douglas be instantly branded, has evidently decided to sully the high as we alreadY are in his new book-as standards of his profession and defy the Perhaps the name has some secret erotic significance, because otherwise it the modern Adolf Hitlers, the book conventions and convictions of decent burners, the defoliators of the tree of Americans. may be the only clean word in this pub lication. I am simply unable to describe liberty. Recently, there has appeared on the the prurient advertisements, the per Let us not be caught in a trap. There stands a little black book with the auto verted suggestions, the downright filthy is a prima facie case against Mr. Justice graph, "William O. Douglas," scrawled on illustrations and the shocking and exe Douglas that is-in my judgment-far the cover in red. Its title is "Points of crable four-letter language it employs. more grave. There is prima facie evidence Rebellion" and its thesis is that violence Alongside of Evergreen the old Avant that he was for nearly a decade the well may be justified and perhaps only revo Garde is a family publication. paid moonlighter for an organization lutionary overthrow of "the establish Just for a sample, here is an article by whose ties to the international gambling ment" can save the country. Tom Hayden of the "Chicago 5." It is fraternity never have been sufficiently The kindest thing I can say about this titled "Repression and Rebellion." It pos explored. 97-page tome' is that it is quick reading. sibly is somewhat more temperate than Are these longstanding connections, Had it been written by a militant sopho the published views of Mr. Justice Doug personal, professional, and profitable, the more, as it easily could, it would of course las, but no matter. skeleton in the closet which Mr. Justice have never found a prestige publisher Next we come to a 7-page rotogravure Douglas would like to divert us from like Random House. It is a fuzzy haran section of 13 half-page photographs. It looking into? What would bring an As gue evidently intended to give historic starts off with a relatively unobjection oociate Justice of the Supreme Court legitimacy to the militant hippie-yippie able arty nude. But the rest of the dozen into any sort of relationship with some movement and to bear testimony that a poses are hard-core pornography of the of the most unsavory and notorious ele 71-year-old Justice of the Supreme kind the U.S. Supreme Court's recent de ments of American society? What, after Court is one in spirit with them. cisions now permit to be sold to your some of this became public knowledge, Now, it is perfectly clear to me that children and mine on almost every news holds him still in truculent defiance the first amendment protects the right stand. There are nude models of both bordering upon the irrational? of Mr. Justice Douglas and his publishers sexes in poses that are 'perhaps more For example, there is the curious and to write and print this drivel if they shocking than the postcards that used to profitable relationship which Mr. Justice please. be sold only in the back alleys of Paris Douglas enjoyed, for nigh onto a decade, Mr. Justice Douglas is constitutionally and Panama City, Panama. and otherwise entitled to believe, though Immediately following the most ex with Mr. Albert Parvin and a mysteri it is difficult to understand how a grown plicit of these photographs, on pages 40 ous entity known as the Parvin Founda man can, that "a black silence of fear and 41, we find a full-page caricature of tion. possesses the Nation," and that "every the President of the United States, made Albert Parvin was born in Chicago conference room in Government build to look like Britain's King George ill and around the turn of the century, but little ings is assumed to be bugged." waiting, presumably, for the second is known of his life until he turns up as One wonders how this enthusiastic American Revolution to begin on Boston president and 30-percent owner of Hotel traveler inside the Iron Curtain is able Common, or is it Berkeley? Flamingo, Inc., which operated the hotel to warn seriously against alleged Wash This cartoon, while not very respectful and gambling casino in Las Vegas, Nev. ington hotel rooms equla>ped with two toward Mr. Nixon, is no worse than we It was first opened by Bugsy Siegel in way mirrors and microphones, or accuse see aimost daily in a local newspaper and 1946, a year before he was murdered. the "powers that be" of echoing Adolf all alone might be legitimate political Bugsy's contract for decorations and Hilter. Frankly, this is nonsense, but cer parody. But it is there to illustrate an furnishings of the Flamingo was with tainly not the only nonsense being print article on the opposite page titled much Albert Parvin & Co. Between Siegel and ed nowadays. like Tom Hayden's "Redress and Revolu Parvin there were three other heads, or But I wonder if it can be deemed "good tion." titular heads, of the Flamingo. After the behaviour" in the constitutional sense This article is authored "by the vener gangland rubout of Siegel in Los for such a distorted diatribe against the able Supreme Court Justice," William O. Angeles, Sanford Adler-who was a Government of the United States to be Douglas. It consists of the most extreme partner with Albert Parvin in another published, indeed publicly autographed excerpts from this book, given a some gambling establishment, El Rancho, and promoted, by an Associate Justice what more .seditious title. And it states took over. He subsequently fied to Mex plainly in the margin: ico to escape income tax charges and of the Supreme Court. the Flamingo passed into the hands of There are, as the book says, two ways Copyright 1970 by William O. Douglas ... Reprinted by permission. one Gus Greenbaum. by which the grievances of citizens can Greenbaum one day had a sudden be redressed. One is lawful procedure and Now you may be able to tell me that it urge to go to Cuba and was later mur one is violent protest, riot, and revolu is permissible for someone to write such dered. Next Albert Parvin teamed up tion. Should a judge who sits at the stuff, and this being a free country I with William Israel Alderman-known pinnacle of the orderly system of justice agree. You may tell me that nude couples as Ice Pick Willie-to head the Fla give sympathetic encouragement, on the cavorting in photographs are art, and mingo. But Alderman soon was off to side, to impressionable young students that morals are a matter of opinion, and the Riviera and Parvin took over. and hard-core fanatics who espouse the that such stuff is lawful to publish and On May 12, 1960, Parvin signed · a militant method? I think not. send through the U.S. mails at a postage contract with Meyer Lansky, one of the In other words, I concede that William rate subsidized by the taxpayers. I dis country's top gangsters, paying Lansky O. Douglas has a right to write and pub- . agree, but maybe I am old fashioned. what was purportedly a finder's fee of lish what he pleases; but I suggest that But you cannot tell me that an Asso $200 ,000 in the sale of the Flamingo. for Associate Justice Douglas to put his ciate Justice of the United States is The agreement stipulated that payment name to such an infiammatory volume as compelled to give his permiSSion to re would be made to Lansky in quarterly "Points of Rebellion"-at a critical time print his name and his title and his installments of $6 ,250 starting in 1961. in our history when peace and order is writings in a pornographic magazine If kept, final payment of the $200,000 what we need-is less than Judicial good with a portfolio of obscene photographs would have been in OCtober 1968. behavior. It is more serious than simply on one side of it and a literary admoni Parvin and the other ')wners Bold the "a summation of conventional liberal tion to get a gun and start shooting at Flamingo for a reported $10,500,000 to poppycock," as one columnist wrote. the first white face you see on the other. a group including Florida hotelmen Whatever Mr. Justice Douglas may You cannot tell me that an Associate Morris Lansburgh, Samuel Cohen, and have meant by his justification of anti- Justice of the U.s. Supreme Court could Daniel Lifter. His attorney in the deal 4 was Edward Levinson, who has been Also on hand in Santo Domingo to Nevada city, and in 1969 was denied per associated with Parvin in a number of celebrate Bosch's taking up the reins of mission by Nevada to buy the Riviera enterprises. The Nevada Gaming Com power were Mr, Albert Parvin, President Hotel and took over operation of the mission approved the sale on June I, of the Parvin-Dohrmann Co., and the StardUst Hotel. This brought an investi 1960. President of the Albert Parvin Founda gation which led to the suspension of In November of 1960, Parvin set up the tion, Mr. Justice William O. Douglas of trading in Parvin-Dohrmann stock by Albert Parvin Foundation. Accounts vary the U.S. Supreme Court. the SEC, which led further to the com as to whether it was funded with Fla Again there is conflicting testimony as pany's employment of Nathan Voloshen. mingo Hotel stock or with a first mort to the reason for Mr. Justice Douglas' But in the interim Albert Parvin is said gage on the Flamingo taken under the to have been bought out of the company terms of the sale. At any rate the foun presence in the Dominican Republic at this juncture, along with Parvin, Levin and to have retired to concentrate on his da tion was incorporated in New York and foundation, from which Mr. Justice Mr. Justice Douglas assisted in setting it son, and Bobby Baker, Obviously he was not there as an official representative of Douglas had been driven to resign by re up, according to Parvin. If the Justice lentless publicity. did indeed draft the articles of incorpo the United States, as he was not in the Vice President's party. On May 12, 1969, Mr. Justice Douglas ration, it was in patent violation of title reportedly wrote a letter to Albert Par 28, section 454, United States Code, which One story is that the Parvin Founda tion was offering to flnance an educa vin in which he discussed the pending states that "any justice or judge ap action by the Internal Revenue Service pOinted under the authority of the United tional television project for the Domini can Republic. Another is that Mr. Justice to revoke the foundation's tax-exempt States who engages in the practice of law status as a "manufactured case" de is gull ty of a high misdemeanor." Douglas was there to advise President Bosch on writing a new Constitution for signed to pressure him off the Supreme Please note that this offense Is spe the Dominican Republic. - Court. In this letter, as its contents were cifically stated in the Federal statute There is little about the reasons be paraphrased by the New York Times, to be a high misdemeanor, making it hind the presence of a singularly large Mr. J ustice Douglas apparently offered conform to one of the constitutional contingent of known gambling figures legal advice to Mr. Parvin as to how to grounds for impeachment. There is ad and Mafia types in Santo Domingo, h ow avoid future difficulties with the Internal ditional evidence that Mr. Justice Doug ever. With the change of political re Revenue Service, and this whole episode las later, while still on salary, gave legal gimes the rich gambling concessions of demands further examination under advice to the Albert Parvin Foundation the Dominican Republic were up for oath by a committee with subpena on dealing with an Internal Revenue powers. grabs. These were generally not owned When things got too hot on the Su in v'estiga tion. and operated by the hotels, but were The ostensible purpose of the P a rvin preme Court for Justices accepting large granted to concessionaires by the gov sums of money from private foundations Foundation was declared t o be educat ernment-specifically by the President ing the developing leadership in Latin for ill-defined services, Mr. Justice Doug It was one of the country's most lucra las finally gave up his open ties with the America. This had not previously been tive sources of revenue as well as private Albert Parvin Foundation. Although re a known concern of Parvin or his Las corruption. This brought such known Signing as its president and giving up his Vegas associates, but Cuba, where some gambling figures as Parvin and Levin $12 ,OOO-a-year salary, Mr. Justice Doug of them had business connections, was son, Angelo Bruno and John Simone, Jo las moved immediately into closer con then in the throes of Castro's Commu seph Sicarelli, Eugene Pozo, Santa Traf nection with the leftish Center for the nist revolution. ficante Jr., Louis Levinson, Leslie Earl Study of Democratic Institutions. In 19tH Mr. Justice Douglas was named Kruse, and Sam Giancanno to the island a life member of the Parvin Foundation's in the spring of 1963. The center is located in Santa Barbara ;)oaI'd, elected president and voted a sal Bobby Baker, in addition to serving as Calif" and is run by Dr. Robert M, Hut~ :: ry of $12 ,000 per year plus expenses. go-between for his Las Vegas friends such chins. former head of the University of Th(: l'e is some conflict in testimony as to as Ed LeVinson, was personally interested Chicago. h ow long Douglas drew his pay, but he in concessions for vending machines of A longtime "consultant" and member did not put a stop to it until last May- his Serv-U Corp., then represented by of the board of directors of the center, 1 :)69-in the wake of public revelations Washington Attorney Abe Fortas. Baker Mr. Justice Douglas was elevated last that forced th.e resignation of Mr. Justice has described Levinson as a former December to the post of chairman of the Fartas. partner. executive committee. It should be noted The Parvin Foundation in 1961 under Mrs. Fortas, also an attorney, was sub that the Santa Ba rbara Center was a took publication of Mr. Justice Douglas' sequently to be retained as tax counsel beneficiary of Parvin Foundation funds book, "America's Challenge," with costs by the Parvin Foundation. Her fee is not during the same period that Mr. Justice borne by the foundation but royalties exactly known but that year the founda Douglas was receiving $1,000 a month going to the author. tion spent $16,058 for professional serv salary from it and Mobster Meyer Lansky In April 1962 the Parvin Foundation ices. was drawing down installment payments applied for tax-exempt status. And There are reports that Douglas met of $25.000 a year. In addition to Douglas, thereafter some very interesting things with' Bosch and other officials of the new there are several others who serve on happened. government in February or early March both the Pa rvin Foundation and Center On October 22, 1962, Bobby Baker of 1963, and also that he met with Bobby for Democratic S tudies boards, so the turned up in Las Vegas for a 3-day stay. Baker and with Albert Parvin. In April break was not a very sharp one, His hotel bill was paid by Ed Levinson, 1963, Baker and Ed Levinson returned to The gentleman from New Hampshire Parvin's associate and sometime at the Dominican Republic and in that same (MI'. WYMAN ) has investigated Mr. Jus torney. On Baker's registration card a month the Albert Parvin Foundation was tice Douglas' connections with the center hotel employee had noted-"is with granted its tax-exempt status by the In and discovered that the Associate Jus Douglas." ternal Revenue Service. tice has been receiving money from it, Bobby was then, of course, majority In June, I believe it was June 20 , Bobby both during the time he was being paid secretary of the Senate and widely re Baker and Ed Levinson traveled to New by Parvin and even larger sums since. garded as the right hand of the then York where Baker introduced Levinson The distinguished gentleman, who Vice President of the United States. So to Mr. John Gates of the Intercontinental served as attorney general of his State it is unclear whether the note meant Hotel Corp. Mr. Gates has testified that and chairman of the American Bar As literally that Mr. Justice Douglas was Levinson was interested in the casino sociation's committee on jurisprudence also visiting Las Vegas at that time or concession in the Ambassador-EI Em before coming to the House, will detail whether it meant only to identify Baker bajador-Hotel in Santo Domingo. My his findings later. But one activity of the as a Douglas associate. information is that Baker and Levinson center, requires inclusion here because it In December 1962, I have learned, made at least one more trip to the Domin provides some explanation for Mr, Jus Bobby Baker met with Juan Bosch, soon ican R epublic about this time but tha t, tice Douglas' curious obsession with the to be President of the Dominican Re despite all this influence peddling, the current wave of violent youthful rebel public, in New York City, gambling franchise was not granted to lion, In J anuary 1963 the Albert Parvin the Parvin-Levinson-Lansky interests In 1965 the S'anta Barbara Center, Foundation decided to drop all its La tin after all. which is tax exempt and ostensibly Amelican projects and to concentrate on In August, P l' e~dent Bosch awarded serves as a scholarly retreat, sponsored the Dominican Republic. Douglas de the concession to Cliff Jones, former and financed the National Conference scribed President-elect Bosch as an old Lieutenant Governor of Nevada who, in for New Politics which was, in effect, the f riend. cidentally, also was an associate of Bobby birth of the New Left as a political move On February 26, 1963, however, we find Baker. ment. Two years later, in August 1967, Bobby Baker and Ed Levinson together When this happened, the further in the Center was the site of a very signif again-this time on the other side of the terest of the Albert Parvin Foundation icant conference of militant student continent in Florida-buying round-trip in the Dominican Republic abruptly leaders. Here plans were laid for the tickets on the same plane for the Domin ceased, I am told that some of the edu violent campus disruptions of the past ican Republic. cational television equipment already de few years, and the students were ex Since the Parvin Foundation was set livered was simply abandoned in its origi horted by at least one member of the up to develop leadership in Latin Amer nal crates. center's staff to sabotage American so ica, Trujillo had been toppled from On September 25, 1963, President Bosch ciety, block defense work by universities, power in a bloody uprising, and Juan was ousted and all deals were off. He was immobilize computerized record systems Bosch was about to be inaugurated as later to lead a comeback effort with Com and discredit the ROTC. the new, liberal President. Officially rep munist support which resulted in Presi This session at Mr. Justice Douglas' resenting the United States at the cere dent Johnson's dispatch of U.S. Marines second moonlighting base was thus the monies February 27 were the Vice Presi to the Dominican Republic. birthplace for the very excesses which he dent and Mrs. Johnson. But their Air Meanwhile" through the Parvin-Dohr applauds in his latest book in these Force plane was loaded with such celeb mann Co. which he had acquired, Albert words: rities as Senator and Mrs. Humphrey, Parvin bought the Fremont Hotel in Las Where grievances pile high and most of two Assistant Secretaries of State, Mr. Vegas in 1966 from Edward Levinson the elected spokesmen represent the Estab and Mrs. Valenti, and Mrs, Elizabeth and Edward Torres, for some $16 million, lishment, violence may be the only effeotive Carpenter. Bobby Baker and Eddie In 1968, Parvin-Dohrmann acquired the response. Levinson went commercial. Aladdin Hotel and casino in the same Mr, Speaker, we are the elected 5 spokesmen upon whom the Associate and the Wolfson Family Foundation, public confidence In the Supreme Court. Justice of the Supreme Court is attempt Louis Wolfson's troubles with the SEC That is the easiest to answer. Public con ing to place the blame for violent re and Wolfson's $20,OOO-a-year retainer to fidence in the U.S. Supreme Court dimin bellion in this country. What he means Associate Justice Fortas? Why, the cast ishes every day that Mr. Justice Douglas by representing the establishment I do of characters in these two cases Is vir remains on it. not know, except that he and his young tually Interchangeable. Finally, I have been asked, and I have hothead revolutionaries regard it as evil. Albert Parvin was named a coconspir asked myself, whether or not I should I know very well who I represent, how ator but not a defendant in the stock stand here and impeach Mr. Justice ever, and ,f the patriotic and law abiding manipulation IMPEACHMENT OF ASSOCIATE JUSTICE DOUGLAS The arm-In-arm posture Justice Doug las strikes with pornographer Ginzburg, HON. JOE D. WAGGONNER, JR. underworld figure Lansky, and radical HON. LOUIS C. WYMAN OF LOUISIANA Hutchins demeans the high position he 011' NEW HAMPSHIRE IN THE HOUSE OF REPRESENTATIVES holds and certainly calls into question IN THE HOUSE OF REPRESENTATIVES Wednesday, April 15, 1970 the propriety of his past and present Mr. JACOBS. Mr. Speaker, will the actions, gentleman yield for a three-sentence Mr. WAGGONNER. I thank the gen My cosponsorship of this resolution statement? tleman for yielding. The statement of stems from a single emotion, my outrage Mr. WYMAN. I yield to the gentleman the distinguished minoritY leader is to that Justice Douglas has not had the from Indiana. be commended. It is beyond reproach. decency to resign from the Court so that Mr. JACOBS. Mr. Speaker, the gentle Mr. Speaker on July 18, 1966, almost he could undertake this activity as a pri man from Michigan has stated publicly 4 years ago, I introduced House Resolu vate citizen, rather than drag the robes that he favors impeachment of Justice tion 920, calling for a complete investi of the Court through the mUd. Douglas. gation into the moral character of Jus Were he In retirement, removed from He, therefore, has a duty to this House tice William O. Douglas. It was patently any position of -responsibility, his intel and this country to file a resolution of clear to me at that time that this man lectual infirmity and his moral slippages impeachment. was totally lacking either the moral or could be overlooked, even pitied. But this Since he refuses to do so and since he ethical probity to occupy a seat on this man occupies one of the highest pOSitions raises grave questions, the answers to Nation's highest court. of honor this Nation has to offer. In it, which I do not know, but every Ameri Regretfully, too few Members of this he sits in judgment daily on the lives, can is entitled to know, I introduce at body would join me in seeking passage veritably, of both individuals and the this time the resolution of impeachment of my bill. I am happy to cosponsor with populace as a whole. His least whim, his in order that a proper and dignified in a number of others, a new resolution most casual aberration can suddenly, for quiry into this matter might be held. seeking that same end. I welcome their all intents, .become the law of the land. The SPEAKER pro tempore (Mr. support and I urge that every Member Certainly it comes within the ambit of PRICE of nlinois) . The gentletnan from now turn his full attention to this sub our responsibilities here in the House to New Hampshire has the fioor. ject. protect the people from the wavering Mr. WYMAN. I did not yield for that You have heard the gentleman from judgment of a man to whom no certain purpose. Michigan, Mr. Ford. The events he has morality can be ascribed; in whom no The SPEAKER pro tempore. The gen recounted, the statements and the pos undoubtable trust reposed, tleman from Indiana has introduced a tures which he has ascribed to Justice I will not take your time to reiterate resolution. Douglas must appall you as they did me. the evidence which Mr. FORD has pre Mr. WYMAN. Mr. Speaker, I have They must, regardless of your party or sented so thoroughly. It is sufficient to some remarks I want to make on my own demographic background, convince you say that a reasonable doubt has been here but at this time I would like to make that there is substantial cause to doubt created as to the integrity of Justice it very clear to all who are here and all the integrity, the morality and/or the Douglas. The select committee will have who may be interested in this very seri competence of Justice Douglas. ample opportunity to pursue the subject ous problem that what the gentleman in depth and either exonerate or indict. Tbe connlcts of Interest In which Jus from Indiana has just proposed is pre The House must not sidestep its re cisely what we have been working on and t1ee Douglas has been and apparently sponsibility to, at least, examine into still Ie involved are nothing short of do not believe is fair to the Justice of the these grave charges of misbehaVior and SupremeCaurt. scandalous. His assocIation, wittingly and confiict of interest. To do so would make We think there should be an investtga for profit, with notorious elements of the us derelict in our obligation to the pe0- gambling world, high priests of pomog ple we represent. The people deserve the tion under oath to determine just how rapny, and with the radical left ele facts and I, for one, am willing to see DUUlY. of these allegations are so, and that ment are too numerous to pass over that they get them. it should be attended by witneeaes who lightly or pass over at all. The appointment of this select com give tbeir evidence under oath with the Inittee must be undertaken. penalw. of perjury. On this I am'sure in my colleagues agree with me. 6 The situation before the House is that I believe it is important to observe at I have made reference at this point a resolution has been prepared and will this point that it would not make any almost exclusively to thE:: writings and be introduced tomorrow for myself, Mr. difference whether a Justice so conducts statements of Justice Douglas, but I SCOTT, Mr. WAGGONNER, Mr. siKES, and himself has a personal phi1osophy ori think ·tt is fair to ask these questions. many cosponsors, calling for an investi ented to the right or the left. It is imma Is it· good behavior for a judge of the gation of the activities of a Justice Gf terial to me what Justice Douglas' per Supreme Court to take pay on the side the Supreme Court of the United States. sonal views are. He has a right to hJs from corporate entities with tax exemp It is not a resolution of impeachment. views. But he has no right as a sitting tions provided that they do it right-and It is a resolution that calls for the estab· judge to publicly declare these views give them legal advice as to hGW to set lishment of a committee that happens tc when they refer to matters in contro up and oPeTate so as to continue with b~ compooed of six members, three from versy likely to come into controversy be their tax-exempt status? Of course nGt. each side of the aisle, to determine what fore the Court particularly in a manner Is it good behavior for a Justice of the should be done, and to bring in its report calculated to rile up the people and en Supreme Court to take an annual salary as to whether Justice William O. Douglas, courage further resort to violence when of thousands of dollars from a corporate on the basis of the committee findings, violence is already rampant in America. entity heavily involved in and related to should or should not be impeached. The situation facing this House at this gambling and known criminals? Of Mr. Speaker, with reference to what hour is one of a Justice of the Supreme course not. has been said, briefly, I would call the Court who has brazenly flaunted virtu Is it good behavior for a Justice of the attention of my colleagues to the fact ally every ethical standard applicable to Supreme Court to serve as a director and that at that time the will of the House the judiciary or orderly society. officer Gf a political action group that will be worked on the recommendations Now, in the first place, historicaly as finances, edits, and distributes directly of the committee'. This process is not well as conceptionally, judges are judges. or indirectly extremely controversial and going to destroy the Supreme Court. From the ancient days of Greece and provooative speeches and statements re Some o{ the more hvstile recent edi Rome through to the development of lating to violence and unrest in America torials have suggested that a subcom English corruilon law, judges must live in at a time when America, from commu mittee investigation of these rather seri a world apart. They must remain de nities in the gentleman's State to com ous charges will destroy or undermine the tached, objective, for they have the munities of my State and the big cities Q.1:preme Court of the United States. As a power to sentence to death or to im are having problems in how t:o make the 1n cl tter of fact, the contrary is true. If prisonment, or the power to make eco streets safe for orderly and law-abiding v, r' did not do anything about such con nomic judgments that are the equivalent members of sooiety to walk upon? duc't it would go further and it would of actual life and death for citizens. They In this connection the president of the oescroy confidence in the judiciary, be simply do not have and must not have Center for the Study of Democratic In l a use the activities of Justice Douglas the latitude to speak out on current issues stitutions at Santa Barbara, Calif., ac;l. lire continuing to bring the Supreme that are available to a private citizen. vised me in writing last month that Jus Court into disrepute. If they want to speak out. if they are so tice William O. Douglas has been a mem Now, this is serious business, but it is deeply motivated as to feel that they must ber of the board of directors of the Fund bask to anyone's understanding of the declare themselves as advooates of a for the Republic, directing the center, problem to realize that the Justice has cause, whatever that cause may be. then since 1962, and that the board meets brought it upon himself. In fact, to use they shJuld get off the court to be in a twice yearly to determine the general a commonplace manner of speaking, he position to do this. And, of course, this is policies of the center. He also advised has been asking for it for many years. what Justice' Douglas should do. me the Justice is chairman of the execu L",.st year, 1969, in May, the Chicago I think the Justice would be in a posi tive committee of the board, and he has 'Tlibune said about this subject, and I tion where as a private citizen he can been paid nearly $7,000 in "honoraria" quote from a lead editorial: write all the books and memoirs and since 1962 in theOfollowing amounts and Whatever the ABA committee decides, If make all the statements about how broad years: 1962, $900; 1963, $800; 1965, Douglas does not resign the House judiciary the first amendment liberties should b& $1,000; 1966, $1,000; 1968, $1,100; 1969, Committee should Init iate Impeachment pro that he wants or how justified violence $2,000. ceedin gs. As the House charged and t he Sen may be to restructure the Government The situation here, without belaboring ate decided by a two-thirds vote In the case the point-and my time has almost run of Judge Halsted L. Ritter, In 1936, Justice of the United States-that he wants to. That is, as a private citizen. Unfortu out--clearly, I believe, warrant a non Dcu glas' actions have tended "to bring his partisan, bipartisan select committee of court Into scandal and disrepute." nately the Justice has not only repeti tively ignored that basic requirement of three Republicans and three Democrats Of course, everyone is familiar with detachment, but he has done so in the that has a lot of questions to ask and a the fact that the ABA referred to is the lot of facts to ascertain, and I think it American Bar Assooiation. most provocative ways and settings is wholly irrelevant as to whether any And, on the same matter last year the imaginable. body serving on the committee is going to New York Times in a lead editorial on I think when a !Sitting Justice of the get any publicity or make any headlines May 24, said: Supreme Court writes th8lt t he Presi or anything else, because what is really Anyone who serves on the Federal bench dent of the United States and the Gov at stake here is the people's right to surren ders the right to engage In the arena ernment of the United States is George an independent and nonpartisan judici of public cont roversy or In the business III of England who denied religious free ary. The people of America have a right world. This self-denying ordinance had long dom to people and who was guilty of that their J ustices on the Supreme Court been taken for granted. but In the light of taxation without representation and shall remain judicial, shall remain recent disclosures an explicit code of con from whom our forefathers came to judges, and shall not become advocates duct for the judiciary may be useful. America to establish a government of for causes or against causes to come be Also, in the Washington Evening Star freedom and justice for our citizens and fore the Court. They have the right that in the same month the Star said in a when he suggsets that that revolution their judges should keep out of con lead editoriai entitled, "The Douglas Let· which is glorious in au:' tradition may be flicting financial dealings , that, at the ter" and addressed to Albert Parvin to the trigger for a revolution which would very least, tend to impair their objec which the gentleman from Michigan also be glorious to change the Govern tivity as judges. made reference: ment of the United States by violence And they have the right that this This Is too serious a matter to be hushed a government which he says plainly is no House of Representatives should insist up or dropped. The fitness of Justice Douglas longer responsive to the people of the that the judges not flagrantly violate the to stay on the Court Is very' much In ques United States through this House 01' American Bar Association's Canons of tion. It there Is reason to think there Is more through the other body, I think this is Judicial Ethics. Not only in this their to It than has yet appeared, the Department one concrete illustration of the inestima right, the people's right, but as the peo of Justice should take possession of all docu ble and incalculable amount of harm ple's Representatives" this is our obliga ments and correspon dence bearing on t he that 'is being done to the very structure tion. It is our obligation, on t he basis of relationship between the justice on the one of our society by this Justice. hand and the foundation and Parvin on the the charges that have been made here, other. This would make It possible to get to to look into this and to make a report the bottom of the matter. which most cer· I know there are many Members of and to determine whether or not the Jus talnly should be done. this body who feel that words alone are tice should be removed. not something on the basis of which the Mr. Speaker, I think our select com· House should impeach. But there is a I do not at this point use the word mittee, whomever may serve on it, with great dea1 more, to which the gell\tleman "impeachment" because many people do adequate staff and counsel, can get to from Michigan has made reference, that not quite understand. "Impeach" sounds the bottom of the matter within the pre warrants investigation. like a very bad word. I suppose in a sense scribed 90 days. it is. It might be akin to the resolutions I question whether you may give legal of censure that have been used in the But, Mr. Speaker, I can remember advice when you are on the CGurt. You other body. But actually all "impeach" I think it was 20 years ago, or there are not supposed to. I question whether means is a prooess of removal. The ques abouts-when Justice William O. Doug you may sit in judgment on somebGdy tion before us is whether the Justice has las, after a mountain-climbing expedi with whom you have financial connec so conducted himself that, in the 11.ldg tion in the Himalayas, returned and tions. You are not supposed to. But the ment of a majority of the Members of publicaly advooated the U.S. recogni problem here is very clear, that unless this House, he should be removed, and tion of Communist China, which was this body acts, there is no other place in if we think that is the case, we should regarded as a dangerous nation at that the world that can act to deal with this draw up the charges and send them over time, Many Americans, including myself, kind of situation. because under the Con to the other body. wondered why a Justice of the Supreme stitution, to which the gentleman from I hope that those Members who have Court would make public statements con Ohio and other people made 'reference not hail time to do so will take the time cerning matters relating to the respon here, this is the only body in the world to review the resolution for investigation that can impeach a judge of the Supreme and become cosponsors if they are so sibillty and the province of the execu inclined. tive branch and the Senate of the United Court of the United States or can even investigate to determine whether or not H . Res. 922. States. Whereas. the ConstitutIOn of the United there should be impeachment. States provides In Article m . Section 1, that Since then Justice William O. Douglas And there is no question. my friends, Justices of the Supreme Court shall hold has engaged himself in one matter after otllce only "during gOOd behavior", and that this is warranted at this parl;cular Whereas, the Constitution al90 provides In another that are not the proper func juncture in the activities of this partic tion and role of a Justice of the Supreme Article n , Section 4, that Justlees of the Court. ular Justice. Supreme Court shall be removed from OtllCE 7 on Impeachment for High Crimes and Mis "George III was the symbol against which existed since 1960 in the capacity of Presi demeanors, and our Founders made a revolution now con dent, and resulting in the receipt by the Whereas the Constitution also provides in sidered bright and glorious . ... We must said WilUain Orv1lle Douglas from the Parvin Article VI that Justices of the Supreme Court realize that today's Establishment Is the Foundation of fees aggregating at least shall be bound by "Oath or Affirmation to new George Ill. Whether it wUl continue $85,000, all while a memoo-r of the United support this Constitution" and the United to adhere to his tactic, we do not know. States Supreme Court, and ali while refe!' States Code (5 U.S .C. 16) prescribes the fol If It does, the redress, honored In tradi ring to Internal Revenue Service Investiga lowing form of ooth which was taken and tion, Is also Revolution." tion Of the Parvin Foundation while a Jus sworn to by W11liam OrvUle Douglas prior to and tice of the United States Supreme Court as his accession to incumbency on the United Whereas, the said W11llam Orville Douglas, a "manufactured case" intended to force States Supreme Court: prepared, authored, and received payment him to leave the bench, all while he was "I, William OrvUle Douglas, do solemnly for an article which appeared In the March still President and Director of the said swear that I w11l support and defend the 1969 Issue of the magazine, Avant Garde, pub Foundation and was earning a $12,000 an Constitution of the United states agalnst lished by Ralph Ginzburg, previously con nual salary in those posts, a patent conflict all enemies, foreign and domestic; that I w11l victed of sending obscene literature through of interest, and bear true faith and allegiance to the same; the United States' Mails, (see 383 U.S. 463) Whereas, It has been repeatedly alleged that I take this obligation freely, without at a time when the said Ralph Ginzburg that the said Willliam Orville Douglas In his r. any mental reservation or purpose of evasion, was actively pursuing an appeal from his position as President of' the Parwln Founda and tha·t I w1ll well and falthfully discharge conviction upon a charge of malicious libel tion did In fact give the saId Foundation the duties of the office on which I am about before the Supreme Court of the United tax advice, with particular referenCe to mat I to enter. So help me God." States, yet nevertheless the sald WUliam ters known by the said Wllllam Orville Doug and Orville Douglas, as a sitting member of the las at the time to have been under Investiga Whereas, integrity and objectivity in re Supreme Court of ~he United States, know tion by the United states Internal Revenue spect to Issues and causes to be presented to ing full. well his own financlal relationship Services, all contrary to the basic legal and the United States Supreme Court for final with this litigant before the Court, sat in judic:lal requirement that a Supreme Court determination make it mandatory that Mem judgment on the Ginzburg appeal, all in Justice may not give legal advice, and par bers thereof refrain from public advocacy of clear violation and conflict with his Oath ticularly not for a fee, and a position on any matter that may come of Office, the Canons of Judicial Ethics, and Whereas, the said Willlam Orv111e Douglas before the High Court lest public confidence Federal law (396 U.S. 1049), and hias, from time to time over the past ten in this constitutionally co-equal judicial Whereas, while an incumbent on the years, had deal1ngs 'wlth, Involved himseU body be undermined, and United States Supreme Court the said Wil with, and may actually have received fees Whereas, the said W11liam Orv1lle Douglas Ham Orville Douglas for hire has served and and ' travel expenses, either Committee or the R~es Comm1ttee. Court refused to hear Ralph Ginzburg's HON. ROBERT PRICE Since t he former has asserted its pri attack on a libel judgment against Avant Oll' TKl[AII mary jurisdiction in thJs matter,it is my Garde, another pornographic publication IN THE HOUSE OF R EPRESENTATIVES hope that.the investigators w1ll discharge from which Douglas has accepted money. Tuesday, April 28, 1970 their responsibilities in a truly objec Douglas' confession to this conflict of tive and nonpartisan matter . For, if interest makes it more d11Hcult to white Mr. PRICE of Tex-as. Mr. Speaker, an Justice DoUglas has been guilty of such wash his misbehavior. While confession other facet in the case against Justice misconduct as would warrant impeach is good for t he soul, it does not entitle Douglas unfO'lded earlier thJs week, the ment under the terms of the Constitu one to automatic absolQtion for past sins, chief initiator was none other than t·ne tion, the subcommittee members have Justice Douglas should be impeached for Justice himself. the solemn duty to fully report their these sins he now admits. Without explanation Justice Douglas findings. By the same token, if the re took himself out of a Supreme Court de sults of the investigation warrant it, the JUSTICE DOUGLAS' DIS cision to permi,t the filing of briefs by House must not hesitate one minute in QUALIFICATIONS outside parties in cases involving the instituting full impeachment ,proceed (Mr. WYMAN asked and was given lewd film, "I Am Curious Yellow." Despite ings. To adopt any other course of ac permiSSion to address the House for 1 the Justice's silence on the matter, I tion would be to make a mockery of our minute.) think the conclusion to be drawn is principles of justice and our judicial in Mr. WYMAN. Mr. Speaker, the fact rather obvious. In my opinion, he excused stitutions. that Justice William O. Douglas has yes himself because he has a conflict of in As a personal matter, I have grave res terday disqualified himself from par terest in the case. The film "I Am CUrious ervations about the judicial and extra ticipating in no less than three cases Yellow" is distributed in the United judicial activities of Justice Douglas. In States by Grove Press, Inc., whose presi my view, however, justice and fairness coming before the U.S. Supreme Court dent also published the Evergreen Re dictates I withhold my personal expres is some indication of the extent to which view, the magazine that printed excerpts sions until after all the evidence is in. I h is extrajudicial activities demonstrably from Douglas' new book next to' pictures plan on taking a dispassionate view of impair his usefulness on that body. One of nude couples engaged in highly sug the charges made against Justice Doug of the cases involves the publisher of gestive activity. While this candor on the las and whatever evidence is unearthed Evergreen magazine in which Justice part of the Justice is certainly refresh by the subcommittee's investigation. I do Douglas has written that the Govern ing, I think the question can be fairly this contrary to the examples set by those ment of the United States like George asked in light of his past activities: Why who prejudged Judges Clement Haynes III of England "may face a glorious revo is he so tardy a convert to the cause of worth and Harrold Carswell on the basis lution ." Another involves the company's impartial justice? He obviously did not of half-truths, innuendos, and outright promotion of the film "I Am CUrious feel quite so imbued with the spiri:t of misrepresentations made by certain Yellow," which has resJIlted in an appeal judicial impartiality when he took part enemies of constitutional government. from a lower court conviction on ob scenity charges. in the Jibel case concerning publisher It is in this fashion that I hope to Ralph Ginsberg and Senator BARRY contribute to an a tmoSphere that w1l1 in These disqualifications indicate two GOLDWATER. Douglas was not then both cure that the needs of justice and tr.e things of relevance. First, that Justice ered by the fact that while the Ginsberg Douglas should have disqualified him needs of society will be fully accorded self in handling the Ralph Ginsberg ap Goldwater suIt was headed for the High in Lht case against Justice DO L'l!la~ , Court, he had written an article for peal but did not. Second, that there are prOfit, for one of Ginsberg's magazines. going to be increasing numbers of cases DOUGLAS ACTION IS .c.U.:..\ HSSION O}o1 A CO NFLICT coming before the Court in which his On the contrary, he joined in a particu OF INTF.REST prior statements or activities off the larly strong dissent against the majority (By unanimous consent, Mr. WAGGON Court involve a confiict of interest if he of the Supreme Court Justices in regard NER was allowed to speak out of order.) sits in judgment on them. to the Court's ruling against Ginsberg. Mr. WAGGONNER . Mr. Speaker, by dis This 'derives not only from financial Mr. Speaker, I would suggest that the qualifying himself from taking part in a and policy associations but from his pen conflict of interest which caused Doug matter coming before the Supreme Court chant for publicly expressing his per las to excuse himself in the obscenity involving Grove Press from whom he sonal views on many issues to come be case presently before the Court, equally has accepted money for printing a por fore the Court. applied in the Ginsberg case. Moreover, tion of his book in one of their porno The latest development further con this is a matter which should be graphic publications, Justice William O. firms that the Justice's usefulness on the examined most closely by the House Douglas has tacitly admitted that he High Court is limited because of his own Judiciary Subcommittee which has met should have done the same tl$lg in other extrajudiCial activities in confilct with today to being a 60-day investigation of similar instances. the canons of judicial ethics and the re the misconduct charge against Justice To have partiCipated in any decision quirements that judges refrain from Douglas. in which Grove Press, publisher of the public partisan advocacy. The High "EVl!)'green Review" would have been a Court, already short one member, should Until the Judiciary Committee insti not be denied the participation of still tuted action, there had been some ques gros~ impropriety and Douglas' acti~ n confesses it. Yet, he did not see fit to dis another, yet this situation results from tion as to whlch committee should con Justice Douglas' continuing extrajudicial duct the investigation, the Judiciary qualify himself in J anuary when the activities and statements. THE INVESTIGATION OF JUSTICE DOUGLAS biJities of our constitutional system. a recent column by William Edwards HON. LOUIS C. WYMAN There is a serious question as to whether from the Chicago Tribune. 01' NEW HAMPSHIRE or not Justice Douglas has been prac The material follows: IN THE HOUSE OF REPRESENTATIVES ticing law while a. member of the Su [From the Washington (D.C.) Evening Star, preme Court. It is a matter of publiCI J uly 7, 1970) Tuesday, July 7, 1970 record that the Justice received a thou FOItTAS SHOWED DoUGLAS How To SPARE .£ Mr. WYMAN. Mr. Speaker, am con sand dollars a month from a foundation CO'UKT cerned that the special Judiciary Sub iilcorporated with his legal advice and committee looking into the question of assistance over a period of many years, (By James J . K ilpatrick) the impeachment of Justice William O. The longer one gazes upon Wllllam O. all while still on the Supreme Court. Douglas, associate Justlce of the U.S. Su Douglas has not yet taken a single word The Justice has also chosen to write preme Court, the better Abe Fortas looks. of testimony under oath. Just the other for pay, while on the court, articles and Partas had the grace to resign. Douglas is day this subcommittee was granted an a book, encouraging if not advocating adamantly staying on. additional 60 days within which to file a violence to "restructure" the present Some of the parallel circumstances doubt report. less will be developed by a House subcom novernment of the United States, which mittee now looking Into the Douglas record. This 60 days expires the 20th of next ne i'efers to as the "establishment." month and it is difficult to see how the Meanwhile, a paperback book has Just ap In addition tfr the foregoing there have peared, "Dossier on Douglas, H by Allan C. subcommittee can compile a meaningful been serious charges that the Justice has Brownfeld, In which the case against Doug- and reliable report UIiless it does ex written articles for pay for persons whose las is competently summarized. . amine witnesses under oath and subject cases have been pending before or on Brownfeld's book, to give him a plug, may to penalties of perjury. appeal to the Supreme coUrt on which be ordered at $3 from the New Majority Book Shortly after the investigation was be Club, 1835 R. St. N.W. In Washington. Un the Justice was sitting. happily, the work sulfers typograph1cally gun, I submitted to the subco~ittee a In these circumstances I believe that from the haste with which It was rushed seven-page letter outlining certam sug the Celler subcommittee should prompt Into print, but Brownfeld's tone is moder gestions with respect to the calling of ly proceed to implement the recommen ate, not shrlll. The author, a William and witnesses and making the point that in dations made to it for the taking of testi Mary law graduate, formerly was on the stalf the exercise of the ..r.esponsibility of the mony pursuant to subpena .and under of the Senate Internal security subcommit House of Representatives in impeach oath in open hearing, or turn the investi tee. Here he has done a workmanlike Job. ment proceedings it is unavoidable that gating responsibility over to the select The paralleis between Justice Portal! and to a certain extent, at least, such an in Justice Douglas emerge with remarkable committee called for by House Resolu clarity from Brownfeld's report. vestigation must be adversary. There is tion 922- and companion resolutions co disturbing indication that to this point sponsored by more than 110 Members One of the charges agalnst Portaa, It w1ll the investigation has not been conducted be recalled, was that he engaged as a Justlce of the House and now pending before the In extra-cun1cular polley matters unrelated in this tenor but rather in the spirit of .Rul~ Committee. to the law. Specl1l.cally, he was suppoeec1 to so-called voluntary eooperation. In this connection, the following arti haft advll!e4 Lyndon Johnson on Vietnam. At stake are some of the most impor cle by James Kilpatrick appearinl in to Douglu, for his part, alao baa Involved tant issues and fundamental resllOnsi- night's Evening Star is significant; also h1maeU In poUm. r.noM from tbe beDch. 9 regular staff of the Judiciary Commlttee He has publicly waged war upon the Anny seeking to be governor of New York. and Abe Corps of Engineers. He has urged recognition Fortas. who resigned under fire ] and a former already overloaded with a large accumulation of important pending legislation. Nominally. of Red China. In 1968. when Ernest Gruenlng defense secretary [Clark Clifford [. was running for re-election as 110 senator from In asking and obtaining the 60-day post six staff members were assigned to the ponement on June 24. the staff noted tha t a Douglas probe. but reportedly only half that Alaska. Douglas publicly endorsed him. number have worked on It at anyone time Another of the charges against Fortas huge mass of documents from government stemmed from his acceptance of 110 $15.000 agencies must be examined before "final as despite the fact that several hundred thou fee for conducting a few seminars for Amerl sessment of the validity of the charges." Such sand documents have been submitted by the ce.n University. The university served. In ef a "final assessment." critics note. Is not the Justice Department. Internal Revenue Serv feet. as a conduit for channeling tax-exempt subcommittee's assignment. That verdict Is Ice and other government agencies. This do-nothing record e~plalns why Irate private funds Into lUs hands. reserVed to the Senate. which sits as a trial court If the House finds probable cause for House members are saying It Is vlrtual1y Precisely the same situation has obtained such a proceeding In the publlc Interest. certain the subcommittee wll1 have to ask for with Douglas In his role as chalrmllon of the For those Interested In 110 scholarly. un another 60-day extension to do Its job. That Center for the Study of Democratic Institu biased and fascinating paperback summary will be the second. tions In Santa Barbara. Here Douglas re When the Investigation was first an ceived fees of $500 a day for participating In of this controversial case. "Dossier on Doug las," by Allan C. Brownfeld [New Maj~rlty nounced by Cel1er. longtime chairman of the seminars. Book Club. 1835 K St .• N.W., Washington. full Judiciary Committee. In a diversionary Stlll another charge against Fortas WIloS D.C.] . costing $3. is recommended. The pri move to prevent a probe by the full House. that he once refused to disqualify himself In vate and public lives of William O. Douglas he solemnly proInised to report In 60 days. a pornography case before the high court. provide the ingredients for a remarkable tale . But shortly before that deadline. he had the .., Involving a defendant he had represented In Judiciary ComInittee grant a 60-day exten the past. The C01llpanlon charge against SIOll-. Douglas Is that he refused to dlsquanty hlm INVESTIGATION OF WILLIAM O. That expires Aug. 20-when under present elf In January In a pornography case In- DOUGLAS plans. the House won't even be In session. volVlng a defendant. Ralph Ginzburg. pub With the House well caught up with Its lisher of a magazine that paid DougllloS for legislative calendar (thanks to no protracted an article. HON. CHARLES H. GRIFFIN "debates" over a meaningless Cooper-Church Fortas was charged with moonlighting all OF MISSISSIPPI anti-Cambodia amendment. the Hatfield-Mc Govern end-the-war resolution and other a justice by making lectures for high fees. IN THE HOUSE OF REPRESENTATIVES Douglas. for his part. Is a frequent oontrlbu politics-inspired proposals), bipartisan lead tor to Playboy magazine. which reportedly Monday, August 3, 1970 ers have decided to take a three-week sum pays the highest fees In the magazine field. mer' recess.--startlng around ~ug. 15. Under The most serious charge against Forta&- Mr. GRIFFIN. Mr. Speaker, several that arrangement. the Houae wll1 be shut the charge that led 'to his resignation-re months ago a bipartisan effort was down when the subcommittee Is supnosed to sulted from his agreement to serve as a $20. launched by more than one-fourth of submit Its findlng&--It anyl OOO-a-year adviser to a family foundation this body to investigate whether im That·s wny It Is taken a.-s a forgone con created by financier Louis Wolfson. peachment proceedings should be clusion that the probers will ask for-and the There Is no substantial difference In the brought against William O. Douglas, Judiciary Committee will approve-another matter of Douglas and the Albert Parvin Associate Justice of the U.S. Supreme 60-day extension. Foundation. Between 1961 and 1969. Douglas Court. And that Isn·t 11011. accepted $12.000 a year. plus expenses. for House members are openly voicing the se~lces (What services. one wonders?) as Serious questions have been raised over strong suspicion that the secret aim of Cel1er president of the outfit. Justice Douglas' behavior while on the and other subcommltteemen Is to stal1 mak There Is. however. this great difference be Court and I strongly feel that the Amer Ing a report untl1 after the Nov. 3 congres tween the two justices. Fortas felt keenly ican people are entitled to a full and sional elections. By that time. Congress may about the reputation of the court on Which complete inquiry. That is why I joined have wound up Its work and quit. he sat. The controversy over his role with the That would mean nothing could be done Wolfson Foundation. he concluded. would in the introduction of a resolution to create a select committee of six Members about Douglas until the new Congress con adversely affect that reputa.-tlon. venes In January-when. under the rules. the "In these Circumstances." said Fortas. "It of the House to investigate and deter Investigating c~mmlttee would have to be seems clear to me that It Is not my duty to mine whether Associate Justice Douglas reconstituted and the probe started all over remain on the court. but rather to resign has committed high crimes and misde again. assuming that is demanded. In view of In the hope that this wlll enable the court meanors as that phrase appears in the the fact that Celler set up the special panel to proceed with Its vital work free from Coll5titution. only when forced to do so. it·s highly con extraneous stress.H jectural what he w1l1 do in the next Congress. It IS the saddest part of the record of Jus After the introduction of the afore tice Douglas. perhaps. that he cannot see the mentioned resolution. the Committee on need for providing stlll one more parallel the Judiciary announced that it would HON. GERALD R. FORD With the record of the departed Justice conduct an investigation based on an OF MJ(,HIC.A.N Fortas. impeachment resolution that had been introduced. IN THE HOUSJ;: UF REPRESENTATIVES [From the Chicago (111.) Tribune] Mr. Speaker, many of us have been Thursday.. August 6. 1970 WORD roa DoUGLAS CASlr-DELAY anxiously awaiting results of the inquiry (By Willard Edwa.rds) by the Judiciary Committee which is now WASHINGTON. July S.-The votes are avall in its fourth month. We have had no ASSOCIATE JUSTICE WILLIAM O. able. In the opinion of Capitol mll head report of the committee·s progress. DOUGLAS counters. to Impeach Supreme Court Justice W1l11am O. Douglas. For t hat very reason. The Jackson, Miss .• Daily News. on (Mr. GERALD R. FORD asked and was legislative veterans agree. the posslb1l1ty of July 27, 1970, carried the Allen-Gold given permission to extend his remarks a vote before election day. Nov. 3. has a~ost smith syndicated column which discussed at this point in the RECORD and to in v8dllshed. the status of the Judiciary Committee clude extraneous matter.) An Impeachment resolution. entrusted probe. As a part of my remarks. I include Mr. GERALD R. FORD. Mr. Speaker. last Aprll to a special five-man House judlCII this column and the text of the resolu ary subcommittee. Is quietly being smoth because it deals with a matter concern ered thru delaying tactics which mock the tion introduced by over one-foUrth of ing the rights and the constitutional re lnItial promise of a.-ctlon WIthin 60 days. the Members in the House: sponsibilities of all Members of the The deadline for a report has now been CELLO PROBE OF DOUGLAS RAISES DOUBT or House. I am inserting herewith the text postponed untll late Augus·t. at a time when SINCERrry of a letter which I wrote last July 29 to the House will be anxious to adjourn for the (By Robert S. Allen and John A. Goldsmith) the distinguished gentleman from New fall campalgnlng. The preesures will be heavy WASHINGTON. D.C.-Increasingly crltlca.l York. chairman of the Committee of the to put off a record vote untll Congress re JUdiciary and of its special Subcommit turns next January. doubts are being raised as to just how sin cere that special House Judiciary subcom tee on the Impeachment of Associate Jus Such presswres w1ll come ma.lnly from pro mittee Is In making a thorough and forth tice William O. Douglas: . Douglas llberals who have Informed leaders right Investigation of Justice William O. that they oa.nnot take the polltlca.l risk of Douglas. HOUSE OF REPRESENTATIVES voting In support of Douglas. So far. there Is little Indication that very Washington, D.C., J1J1y 29. 1970. They have pleaded for escape from a record much has been done--If anything. Hon. EMANUEL CELLER. vote. Their cries are being heeded. In the three months the probe has been Chairman. Committee on the Judiciary. Cha1rm.an Emanuel Celler [D .• N. Y.] and underway. the backstage record Is one of House 01 Representatives. Washington. Rep. W1l11a.m M. McCulloch. [R.• Ohio] head persistent foot dragging and dawdling. D.C. the speCllal subcommittee. which Is loaded. " Aa a consequence. with the Investigators DEAR MR. CHAIRMAN: Upon learning from to 1. for clearing Douglas ot. charges of. mis due to report t o the ful1 Houae In three news reporters that you or your Special Sub behavior. They promised "neither wltch weeks (Aug. 20). both their Intent and non cOmmittee had. last Friday. removed the con hunt nor white-wash" when given the Im- chalant proceedings are being bluntly ques fidential classification from the Report dated pelWhment resolution. tioned by fellOW legislators. There Is consid June 20. 1970 and made It general1y available to press and publlc. I availed myself of a The subcommlttee's only product thus far erable evidence to support these Indignant copy. has been a 53-page sta.if study. stamped complaints and misgivings. as fol1ows: "Confidential." It Is so aecret that It has not The subcommittee. headed by Rep. Eman I am deeply concerned both by Its con been leaked to the press. Even the Republl uel Cel1er. D-N.Y.• 82. has held no hearlngs tents and by the fact that I was never offi oa.-n ,mlnorlty leader. Gerald R. Ford [MiCh.}. private or publlc. cially advised of the unwarranted threat and attack It contains upon me and other Mem who first raised the Impeachment Issue. had NO SUBPOENAS YET great difficulty In securing 110 copy. bers who have pressed for a thorough and No subpoenas have been Issued. and no objective investigation of AssOCiate Justice The reason for this extraordinary secrecy one has been questioned under oath. Last William O. Douglas. as Is their right and became a.pparent when the document's con month three staff members of the committee duty. I refer particularly to the last three It tents were studied. appears to be largely spent a day In Los Angeles talking to Albert par9.f(raphs of Judge P1ficj" .. •· Jettt'r the handiwork of Douglas' attorney. former Parvin. head of the foundation by t]lat name Wnlle r am aware tnat the document In Federal Judge Simon Rlfklnd. and Includes which paid Douglas around $100.000 osten question Is largely the work of a few mem a sla.-shlng attack on the "McCarthylte" tac sibly as a "director." The foundation derives bers of your staff. It bears the Imprimatur of tics ' of those who have Impugned Douglas' much of Its Income from Nevada gambling the Special SubcomInittee and the names of Integrity thru "gullt by association" with interests. Pardln was not put under oath. 11011 five of Its Members. Moreover. 'it is my unsavory chara.-cte~ and no subpoen'a was served on him for files understanding that It was distributed to the RUklnd. however. does not scorn to argue and records. The staffmen were content to ful1 Committee on the Judiciary at Its Ex "Innocence by association." noting that' his examine the documents he showed them. ecutive Session on June 24 last. without any client. cnjqyt'd t.he t'Onfidence of great men The same casual procedure was followed advance opportunity for the Members to read like the late Adlal E. Stevenson and John 1". In questioning Robert Hutchins and Harry It and with llt tle or no discussion of Its con Kennedy. Ashmore. who run the leftist Center for the tents except as they related to a 60-day ex Rltklnd supplied a detalled defense to the Study of Democratic Institutions at Santa tension of time for the staff "Investigation." charges aga,inst Douglas. which Include prac Barbara. Douglas got $6.800 from this outfit It was also promptly leaked to the press. ticing law for private benefit while on the as a "director." He Is not head of a newly (See copy of Los An!,eles Times report of June bench; writing for erotic magazines; espous created executive commIttee at $75 per diem 25 and AP rep :) r ~ c f June 27. attached.) Ing revolution; and profitable connections and expenses. It Is unknown how much he I am shocked. Mr. Chairman. that my posi with a foundation funded from Las Vegas has received under this arrangement. tion on this question could be so misstated gambling casinos. No special counsel has been employed by and my relations with your Special Subcom He reportedly has been alded by a "board the subcommittee to direct the investigation. mittee so misrepresente1, Indeed It is difficult of strategy" consisting of two former Su Also. no extra help has been hired. Chair to tel1 from this documen t whether tbe Spe preme Court .1ustlces rArthur Goldberg, now man Celler has Insisted on using only the cial Subcommittee staff has been engaged 10 In Investigating the behavior of Just ice good. and that this brings the Supreme Court page submission on June 1 by Judge Rlt and the entire Judicial process int<. d l ci Douglas or the behavior of the Minority kind. attorney for the accused, entitled "RoI~ Leader of t he House of Representatives. and ret-lutc. of Counsel and Related Procedural Matters. more than 100 other Members of both politi Of the five "charges" to which your st.aff Without questioning the rlghit and duty of cal parties. I have always ndmlred the cour has redt:~ e d my April 15 speech one (E) counsel to attempt any and every advan teous considerat ion of the Dean of the House ,c1aLUlg to the C~u l er for the Study of Dem tage for his cllent( Justice Douglas. I must for his colleagues. and have been particularly ocratic Institutions cannot be fairly con respectfully Inq~re whether Judge Rltklnd's appreciative of our personal friendship and strued as a "charge" at all. It is necessary unchallenged memorandum has been ac working relationship. to Inquire Into the Center because of Its cepted by the SubCommittee and is cur Knowing of your dedication to fairness and close relationship with the Albert Parvin rently guiding the staff Investigation. Ob facts. whatever your own previously held Foundation while Justice Douglas was asso viously Mr. Wyman's suggestions are not. opinions. may I cite some of the errors and ciated with and advising b ~ th. This becomes It seems to me that both submissions flAws In this Report to which I take particu relevant to Justice Douglas' practicing law should have been Included In this Report lar exception: and the propriety of his extra-Judicial moon and should now be made available prompUy (1) Page 2. paragraph 4 . states that "al lilthtlng. but constitut es n o separate to all Members of the House, together with though H. Re6. 920 does not contain a st ate "chargc" oJ' ~rltlclsm of t he Cen ter. the procedural guldellnes which the Special ment of charges. It encompasses all the My other "charges" a~e su=arlzed as Subcommittee Is In fact observing. charges made by Mr. Ford In his speech to (A). (B). (C ). and (0). wi t I i nc l'~ 8-" i!lg Particularly disturbing Is the apparently the House." This may be the opinion of the misrepresentation. In charge (B) the Report Inadvertent disclosure on page 50 of the Re drafter of H. Res. 920 but It Is not mine. Mr. utterly Ignores the careful qualifications port In the next to the last paragraph of Jacobs' Resolution of Impeachment (a word I stated regarding the First Amendment Judge Rlfklnd's letter. wherein he states: which curiously does not appear on the cover rights of free speech and free press. In charge "We have responded. at this pOint, to all of this Report) clearly excludes any misbe (C) the Report Includes the Irrelevant fact allegations made with some degree of par havior which Is unconnected with Judicial that a caricature of President Nixon appears ticularity. Since the gentlemen who made office or which Is not con strued to be a high In Evergreen magazine. but makes no men the charges have not yet accepted the sub crime or misdemeanor In the Constitutional tion of my straightforward concession that commlttee's Invitation to produce by May 8. sense. The careful wording of Mr. Jacobs it Is within the bounds of "legitimate politi 1970. evidence to support their allegations. resolution resolves In a single phrase the cal parody." there may remain one or two charges Insuffi historic and continuing debate over the The portfolio cf er "~ i c p ·',,·c ~r - 1'}hs In ciently defined to make an answer possible." "good behavior" provision of Article III. sec Evergreen magazine. copies of which pre How did the attorney for the accused on tion 1. to which you yourself referred In sumably are available to the Subco=lttee May 18 know (1) that the subcommittee had your letter to me of May 15. 1970. As Is well staff. are described blandly as "nude photo Invited other Members of Congress to sub known. my position Is that the Constitution graphs that are characterized by Mr. Ford mit evidence to support their allegations by sets "good behavior" as a separate, additional. as 'hard core pornography ... • As you know. May 8 and (2) whether they had or had not and more exacti n g standard for the Federal Mr. Chairman. several of these photographs replled to this Invitation? Judiciary. This argument is central to my portray sexual perversion between male and Clearly. here Is tacit admission of Improper April 15 speech and It Is neither "encom female nudes. The least an objective sum communication between the attorney for the passed" by Mr. JacGbs' resolution nor enter marizer should have done was describe them accused and the staft of the Special Subcom tained by the au thors of this Report . in my own words. The Report. on the con mittee with respect to internal communica (2) I am particularly disturbed. Mr. trary, suggests to anyone unacquainted with tions among Members 01 the House 01 Repre Chairman. that In relating my response of Evergreen magazine that I am a prude who sentatives. This paragraph also Indicates a May 20. 1970 to your request of May 15 for objects to artistic photographs and a par future expectation on the part of Judge my views on the foregoing subject. the au tisan incensed by irreverent cartoons of Rlfklnd that he will be advised of the con thors of this Report deliberately omitted my President Nixon-precisely contrary to clear tents of communications by Members of the ftrst three paragraph&-whlch are fully re statements in my speech. House to the Chairman of the Subcommittee aponslve to your question-and Included Charge (D) represents the most significant concerning charges against his client. distortion of my speech. In a total of ten The adversary proceeding of a formal im only my 1ast two paragraphs which. stand paragraphs the Report presumes t o sum peachment trial by the Senate clearly per Ing alone. appear to be evasive and r.rgu marize four '''charges'' from data which I mits the accused and/ or his counsel to be mentatlve. Here and In other Instances the presented t o the House by way of preface t o advised of the charges against him. When Report seemingly seeks to portray me and what I termed prima faCie evidence "far such charges are still unformulated and un other Members urging thorough investiga more grave." This "far more grave" portion appraised by the whole House or even by the tion of Justice Douglas as being uncoopera consumed almost one-fourth of my total Pull Co=fttee on the Judiciary no such tive and contributing llttle to the Special text. And all tl1ls Is cnmpros r od In t he right exists. Counsel Jor the accused doe8 not SUbcommittee. In my opinion. It Is the duty Report to five paragraphs under charge 8tt in the G r and Jury R oom. It any such pro of an investigating stalI to ferret out facts (D ) . There It Is not onlv I"a"-q"acv but cedure Is being pursued by the Special Sub for the benefit of the Members of the House inexcusably presented to misread my mean committee. or clandestinely by the staff. the of Representatives. and not the duty of the ing. result can only be a sweeping whitewash 01 Members to feed evidence to the stsff. Never I could cite several examples of this but every allegation as it appears. theless. I have endeavored to provide you and the worst is found on page 3 of the Report. In summary. this Report clearly demon your Special Subco=lttee with certain In as follows : "These associations (with Albert strates that while the demand for a full vestigative leads which were n :>t disclosed In Parvin. alleged International gamblers. and Investigation of the conduct of Justice Doug my Aprll 15 speech. or which subsequently the Albert Parvin Foundation) allegedly re las has truly been a bipartisan elIort. the came to my attention. It Is disheartening to sulted In practicing law in violation at Sec normal sa!eguards of the two-party system have m y communications with you edited tion 454. Title 28. U.S. Code, Practice of Law are not functioning In the staft investigation and twisted In this staII document. whlle the by .Justices an d Judges." I am unable to undertaken by the Special Subcommittee. attorneys for the accused and for Mr. Albert fathom t he meanl,.,,,, of t "" rpn t once but my Those Members who h ave publicly gone on Parvin have their letters reproduced In fu ll. speech contains n o such contention . ... record for a full Investigation Into the con It must be equally dlsheartenlng t o Mr. (5) The acoount of thp. l",,0,., .. 1 Sub,.nm duct of Justice Douglas are not. obviously, Wyman to be singled out for failure t o re mittee's t reat ment of information which properly represented at the staff level In t his spond to your req uest when the most im I person ally supplled concernin g former em investigation . They are not. it seems. repre portan t paragraphs of my response were de ployees and officials of the Parvin-Dohrmann sented at all. leted and his excellent letter of May 6 was Com pany Is related in t wo separate sec FrOm cover sheet to Its final sentence omitted entirely. In llght of the general tone tions at the Report with the result that my before the Chronology on page 26. the staff of this document I seriously q uestion wheth cooperation is c('In"'P? l eod Anrt ,..,...i""'mt""' COD1ldentlal nature of wblch Is expllO&ble [From the Los Angeles TImes, June 25,1970) [Prom the St. Louis Post-Dispatch, June 28, only on the basis of Its blas--does not reflect ACCUSATIONS Dl:NU:D BY DoUGLAS' ATTORNBY 1970) the attitude of your Special Subco,mmlttee L!:'rrER TO IMPI!:ACHIQNT PANBL ANSWERS PANEL STILL AWArrING JUSTICE DoUGLAS DATA or of yourself. MIscONDUCT CHARGES AGAINST JUSTICE WASHINGTON, June 27 (AP)-Desplte re No one knows better than I the leg!81&tlve (By Thomas J . Foley) peated requests, the Department of Jus worltload wblch stUl burdens the Oomm1ttee WASHINGToN.-The attorney for Supreme tice stlll has not supplied information con on the Judiciary. It was for this reason, l'IIIbher Court Justice WUllam O. Douglas has laBued cerning Justice William O. Douglas to the than any lack Of confidence In your thor a polnt-by-polnt reply to charges of mis House co=lttee Investigating Impeachment OUIJ,hneolS or fairness, tha.t I openly favored a conduct against Douglas. charges against him. bipartisan Select Co=lttee with an Inde The attorney also has Indicated he believes It has only been In the last week that tax dependent Investigative sta1f to undertake House members who launched the charges Information requested by the co=lttee this Important and wlde-raII@1ng Inquiry. It may have vlola~ the American Bar Assn.'s nearly two months ago has been made avail W8B for the same reason that I requested that code of professional responslbll1ty. able by the Internal Revenue Service. tru- Members who favored the Select Com Answers to charges launched against Because of the delays In getting such In mittee alternative be permitted staff repre Douglas by House Minority Leader Gerald R. formation, the co=lttee has asked and been sentation to augment your regular staff and Ford (R-Mlch.) were made by former Judge given 60 more days to oomplete Its inquiry to ensure thait their rights and their view Simon H. R1fk1nd In a letter to the special and assess the valid! ty of the charges against points would be protected and properly pre House Judiciary subco=lttee Investigating Douglas seIllted. C1e6rly, they are no.t. possible Impeachment proceedings against The difficulties and delays in gathering in I gave my informal agreement to a 60-day the justice. time extension for your Investlga.tlon because formation from the Government are detailed no responsible Member of the House, on a A G3-PAGE REPORT In a report by the co=lttee to the House Constitutional question of this moment, The letter was part of a confidential 53- Judiciary Co=lttee, which set up the spe would wish to aot In haste or In the absence page report made Wednesday by the sub cial Investigating panel In response to de of every available element of testimony and committee to the full House Judiciary Com mands from more than 100 House members. evidence. But I have grave reservations mittee. The subco=lttee requested and was The report was made available to a reporter. whether this will ever be obtained under the granted another 60 days to complete Its NIXON'S ASSURANCE cursOO'y and one-sided proceduers revealed by study. Both groups are headed by Rep. The committee asked President Richard M. this staff Report. Emanuel Celler (D-N.Y.)·. Nixon on April 29 to authorize any govern AIl I I>revlously advised you (In the portions The suboommlttee said more than 1,000 ment agencies with information bearing on Of my letter deleted from the Report) I am documents had been studied and more than Douglas to make It available, and on May 13 not only continuing my personal search for a dozen persons Interviewed since It began received Nixon's assurance there would be relevant information but am obtaining au Its Inve9t1gatlon two months ago. full co-operation. thoritative legal opinions both In response to "Much remains to be done before the Despite numerous telephone calls to the your specific requests and otherwise, which I special subcommittee will be In a position Justice Department and a personal visit with shall make avaUable to the House at the to repder a flnal assessment on the validity Attorney General John N. Mitchell last June proper time. In the Interim I moot respect of the charges that have been made," the 9, the committee said It st11! has not received fully renew my request for access to the in report said. the Information It wants from the depart formation being amassed by your Special Rlfklnd Is a senior partner In a New York ment. Subco=lttee, adequate staff representation, law firm that Includes former Justice Arthur The Internal Revenue Service, It said, re I>ubllc hea.r1ngs and the Inclusion of all per J . Goldberg, former White House a1de Theo quested an executive order from Mr. Nixon tinent documentary mat erials In the public dore Sorensen and former Atty. Gen. Ramsey before It would release the tax Information report of the committee. Clark. the committee sought. The order was signed While I an.tlclpate that you may no,t be dis His letter was submitted to the subcom by the Preslde.'l.t June 13 and last Monday the posed to change your position on some of my mittee May 18 along with a 138-page brief IRS notified the committee that It had 250,- requests, I respectfully submit that as a mini answering Ford's charges and a three-volume 000 documents the committee could look at. mum I be supplied with every Item of infor compendium of 666 documents from the flies The C;;ocuments were reviewed by the ms In mation and copies of all oommunlcations be of Douglas and groups Involved In the Its Investigation of Albert Parvin, the Albert tween the Special Subcommittee and the Ac charges. Parvin Foundation and Parvin-Dohrmann cused and his Counsel, Judge Rlfk1nd, and be In his letter Rltklnd sa1d, "I must say Co. Douglas served as the salaried president given the oourtesy of an opportunity to re that the exhaustive Inquiry we have con of the foundation from 1961 until 1969. spond to such communications prior to their cluded to date has totally vindicated my own Inclusion in a printed document or their con ta1th In the Integrity and character" of his sideration by the Members of the Special client. The Securities and Exchange Commission , Subcommittee or the full Co=lttee on the He said Douglas, In his tenure on the which has litigation pending against Par JudiCiary. . court since he was appointed by Franklin D. vin-Dohrmann Co. in connection \ct th some I also respectfully request that this' letter Roosevelt In 1939, "has partiCipated In the of Its securities transactions, promptl: deliv be made available as soon as practicable to effort to give genuine meaning to a 'BIll of ered Its doc),lments to the committee M oY ll. all Members of · the Special Subco=lttee Rights which too often In the past was hon The committee report discloses that Ihe with the suggestion that they reexamine the ored more In the breach than In the ob- panel has conducted numerous Interviews. June 20 staff Report In the light of my com servance. I' collected extensive Information on Its own ments. I must also ask that all my corre LIBERAL RECORD and received a voluminous file from Douglas spondence with you In this matter be made through his attoorney, Simon H. Rltkind. available to the Members of the Special Sub Douglas' defenders contend that the at co=lttee In full context and not In part tack on his out-of-court activities primarily In a letter to the committee, Included In or In paraphrase. I would think this Courtesy was motivated by his liberal record on the the report, Rifkind said his own Investiga should apply to similar communloo.tlons from court. tion of Douglas' affairs "has totally vindicated other Members. Ford has Eald he will Insist that the sub my own faith In the Integrity and character Please be assured Of my continuing and committee make public all pertinent in of this }llan ..." warm personal respect and regard. formation and documents when It reports to Rlfklnd supplied the committee also with Sincerely, the House this summer. a ISB-page legal brief answering point by In his letter Rlfklnd said, "Those who have (Tv,R o\ T.I\ R . F o~. point charges m&de against Douglas by House at tacked this great man of American law Republican minority leader Gerald R . Ford Mr. Speaker, I also insert 9.11 earlier ought carefully to examine Canon 9 of the letter I wrote to the chairman on May 20 of Michigan In a speech April 16. ABA's code of professional responslbll1ty Ford cited Douglas's authorship of the and two news reports which were enclo which warns that 'a lawyer shall not know book, "Points of Rebellion," his position as sures to my July 29 letter: ingly make false accusations against a the salaried head of the private foundation, HOUSE OF REPRESENTATIVES, judge.' " his participation In a court case Involving a Washington, D .C., May 20, 1970, Whether this would apply to charges made magazine publisher from whom he had re Hon. EMANUEL CELLER, In the House under the privilege of im ceived a $300 fee and the appearance of one Chairman, Committee on the Judiciary, munity was not Immediately known. Both of his articles In a magaZine containing nude U.S. House 01 Representatives. Ford and Rep. Louis Wyman (R-N.H.) , who photographs. DEAa MR. CHAmMAN : Thank you for your authored a resolution with 115 other mem CALLED DISTORTION bers asking for the Investigation, are law letter of May 15, requesting my views on the Rlfklnd, In his letter, said Ford's att.ack meaning oJ! the " gOOd behaviour" clause of yers. on Douglas's book "Is not only profoundly ArtIcle III, Section 1 of the Constitution Taking up the charges, Rlfk1nd noted that Ford and Wyman attacked Douglas' recent subverSive of the FIrst Amendment but Is with reference to Impeachments of members based upon an Inexcusable distortion of what of the Federal Judiciary. book, "Points of Rebellion," which the con gressmen characterized as advocating rebel the Justice o.ctually wrote." _ I am Indeed aware that this question has lion. Rlfklnd accused Ford also of "a flimsy at been vigorously debated throughout our his tempt" to link Douglas with gambling fig tory. My own review of the ba.ckground of Rlfklnd, In turn, characterized the attack tor ures through some of the business associates Impeachments and my views on "good be as a demand an InqulEltion Into Douglas' thoughts and beliefs and said It was "not of Parvin and the activities of Bobby Baker, havlour", supported by some distinguished former Senate majority secretary who has opinion In the other body on the occasion only profoundly subversive of the First Amendment but Is based upon an Inexcusable Since been convicted of tax evasion and Of the last Impeachment trial, oocupy per fraud. haps one-third of my April 16 speech to the distortion of what the Justice actually House. A marked oopy Is enclosed. wrote." Douglas has never been associated with The second charge Involved the reprint of Baker, Rlfklnd said, and the Parvin Founda I am also aware that Judge Rlfklnd, who Is part of the book In a magazine. Evergreen Re tion has no connection with "the Interna retained by Associate Justice Douglas, has view, immediately following a multipa:ge sec tional gambling fraternlty"-as Ford called taken publlc exoeptlon to a single sentence tion of photographs of naked men and wom It from my argument, which states not 80 en In furious forms ot sexual Intercourse. In accepting a $12,000 salary from the much my personal opinion as wbat I be RUklnd said "Whatever may be the merits foundation, Rillind said, Douglas was fOllow lieve to be a fa1r summary of the 1ew prec or demerits of Evergreen Review, the Justice Ing a long-established precedent. Other jus edents. Judge Rifkind has branded this "a did not authorize Its editors to reprint a tices, most recently Chief Justice Warren E. subversive notion" and I am haWY to have portion of his book. Pursuant to Its standard Burger and Justice Harry Blackmun, have your calmer conclusion that It is legIt imately contractual rights, Random House, one of the received compensation from foundatiOns, he arguable. nation's most prestigiOuS publishers, made said. WIth very real respect, however, I submit the decision. If that was a mistake, It was "It Is disquieting to me," said R1fklnd, that It puts the cart before the horse to not a mistake made by the justice." argue t he law In this spec.lfic Instance In "that In a major congreSSional address an the absence of all the facts. It certainly Is LmEL SUIT effort should be made to Impugn the Integ possible t hat a more compelling and learned A third attack centered on Douglas' ruling rity of an associate justice of the U.S. Su summary of precedents and prior argument In favor of magazine publisher Ralph Ginz preme Court by the assertion of one mIs on "good behaviour" can be made than the burg In a libel suit brought by Senator Barry ststement after another . , ," prellmlnary One I have made; Indeed, I am Goldwater (R-Arlz.) a year after another Mr. Speaker, finally I would like to in In the process of doing exactly that. This Ginzburg magazine published a Douglas arti sert a press release issued on August 5, will be useful, however, only In the context cle on folk singing. yesterday, by the distinguished chairman of the evldenoe and testimony which I have RItk1nd said Douglas had no reason to stay (Mr. CELLER) which constitutes an in every confidenoe the Special Subco=lttee out of the libel case, as Ford argued. "The direct reply at least part of my peace will. fully develop In 1m investigation for record demonstrates that Mr. Justice Doug to the Information of the House. AIl previously las has been exceedingly scrupulous with re ful protest: stated I stand ready to cooperate In every spect to disqualification In those cases whell STATEMENT OF SPECIAL SUBCOMMITTEE ON way In getting the truth and the whole truth he had some meaningful 'connection' t.o tho JUSTICE DOUGLAS INVESTIGATION on the record In this matter. . parties or the transaction Involved." Representative Emanuel Celler, Chairman It Is my conviction, Mr. Chairman, that The other charges grow out of Douglas' of the Special Subeo=lttee on H. Res. 920, when all the facts are known the Members '12,OOO-a-year position as president of the and of the Committee on the Judiciary, made will have little difficulty In deCiding whether Albert Parvin Foundation, founded a decade the fOllowing statement on behalf of the or not they square with the Constitutional ago by Parvin, a Los Angeles hotel supplier Subco=lttee members with respect to the standards of JudiCial oonduct. and part of whose Income was derived from a actlvltlee of the Special Subco=lttee and Warm personal regards, mortgage on a Las Vegas gambling casino, the procedures applicable to this Inveetlga- GERALD R . FoRD. 12 The letter in the main recommends to tlon. The members of the Special Subcom Judiciary Committee authorize tbe formal the calling of witnesses and the taking mittee on H. Res. 920 are: Emanuel Celler proceedings that look toward the impeach of testimony under oath in the investi (New York), Chairman; Byron G. Rogers ment In the Senate of a United States Su gation in public hearing. Submitted more (Colorado); Jack Brooks (Texas); William preme Court justice. Public hearings w(·uld M. McCulloch (Ohio); and Edward Hutchin be In order In Phase II. than 3 months ago, it is Significant son (Michigan). "Prior to publlc bearings, the Special Sub that the Celler subcommittee has failed Mr. Celler said: committee would adopt procedures appropri to yet take a single word of testimony "Since Its appointment on April 21, 1970, ate to tbe particular facts and circumstances under oath or call a single witness. the Special Subcommittee, and its staff, has of this case. Such procedures would Involve If. this investigation is to be truly worked carefully and assiduously to examine resolution of such questions, among others, meaningful, it is unavoidable that much each lead and to ferret out all pertinent facts as: testimony must be taken under oath and that are relevant to the charges that have "The role of counsel for the parties; subject to the penalties of perjury. In been made on the conduct of ASSOCiate Jus "Whetber public bearings should' be con tice Wllllam O. Douglas. ducted by the Special Subcommittee or by dications are inescapable that to date "A comprehensive report on the status 01 tbe full Judiciary Committee; the investigation of the Celler subcom the Special Subcommitt ee's investigation "AppUcable hearing procedure rules, In mittee has been less than adequate, .pro was m ade on June 20, 1970. Since its First cluding the right to cross examine witnesses; or con. Report, the Special Subcommittee h as pur "Whether bearing sessions sbould be open The charges that have been made are sued this Investigation In the Department or closed. quite serious and I believe it is the con of State, the Central Intelligence Agency, as "During public bearings In, an Impeacb stitutional responsibility of the House well as the Department of Justice. In addi ment Investigation, of course, testimony ~ , tion, numerous conferences have been held would be under oath. At tendance by rele of :Representatives to act to See that a with representatives of the Internal Revenue vant or material witnesses would be com meaningful investigation is promptly Service, the Central Intelligence Agency, pelled by subpena. undertaken by an objectivp.ly minded with Ed Levinson, and with Individuals re "Phase III would come at the conclusion and, if necessary, firmly compulsive in ) lated to the leads to Information that previ of the Judiciary Committee's investigation. vestigating committee. ously had been provided by Representative In Phase III, the Judiciary Committee would The letter follows : Gerald R. Ford. Further, tbe Special Sub render its report to the House. The Report CONGRESS 0" THE UNITED STATES, committee bas continued Its examination of would contain a recommendation on H. Res. HOUSE OF REPRESENTATIVES. the files of Justice Douglas. 920. If warranted, the Judiciary Committee Washington, D .O., May 6,1970. "The Special Subcommittee bas not de Report would contain a spectfl.c statement The Honorable EMANUEL CELLER, layed or bestltated In any respect in Its at of tbe charges to be submitted to the Senate. Ohair man, House JudiciaTY Oommi ttee, tempt to collect all relevant documentary and "This statement refl.ects the current status House 01 Representatives, Washington, factual materials. of the Special Subcommittee's investigation D .O. "The Special Subcommittee, h owever, has lind the procedures that are being followed. DEAR CHAIRMAN CELLER: In response to not received full cooperation from some of All of the members of the Special Subcom your request of last Friday, I am sending the Executive Departments. Such coopera mittee hope that greater cooperation will be this letter to you for incorporation In the tion Is essential for expeditious resolution of fortbcoming and that delays that Impair the Committee proceedings at this point in the the Issues. This lack of cooperation bas Im Speclal Subcommittee's progress may be re record. I appreciate the opportunity to make paired the ability of the Special Subcommit m oved so that a definite recommendation this comment and the following suggestions. tee to complete Its assigned task. shortly may be made to the Committee on As you know, I am the prinCipal sponsor the Judiciary." "On June 20, 1970, the Special Subcom of H. Res. 922 and companion resolutions, m ittee request ed the Department of State t o Mr. Speaker, I am gratified by this which have been joined in by 110 other Mem provide relpvant document ary and !:lctual bers of the House, t o establ;sh a Special degree of progress in the investigation Committee to investigate to determine material. As of August 5, 1970, no Informa and will continue to cooperate in every tion h ad been supplled by the Department whether or not Justice WlJllam O. Douglas rot Rtate pursuant t o this request. way for a full, fair, and open inquiry, should be Impeached. It has been my feellng "The CIA was r equested on June 22, 1970. without fear or favor, for the infonna that an Investigation under oath and subject t o provide relevant document ary and factual tion of the House of Representatives and t o penal t ies of perjury is the fairest and m " l ~ rials . On July 15, 1970, Richard Helms, the American people. most responsible way to look Into this D:r ector , wrote a letter In response to the m at ter. Special Subcommittee's request, but declined There have been demonstrably serious to furnish any documentary or factual ma com plaints concerning Justice Douglas' THE INVESTIGATION OF ASSOCIATE extra-judicial conduct. These have ranged terials ·from the CIA's files. Three confer JUSTICE WILLIAM O. DOUGLAS en ces h ave been held with representatives of from his allegedly practicing law while on the CIA in an effort to arrive at a mutually the Bench to inciting or encouraging violence satisfactory accommodation by which ma nON. LOUIS C. WYMAN by publlshed writings for pay. terials and Information In the files of the Although counsel to Justice Douglas bas CIA could be made 'avallable for this inves OF NEW HAMPSHIRE publicly contended that such an Investiga t igation . The CIA has to date furnish ed IN THE HOUSE OF REPRESENTATIVES tion unconstit utionally makes a Justice's n othing from Its files. tenure conditioned upon congreSSional in Thursday, August 6, 1970 terpret ation of "good behavior", It Is un "Department of Justice cooperation Is i:·. Mr. WYMAN. Mr. Speaker, in a pub deniable that this is precisely what the Con essentially the same posture that was de stitution provides. It is also highly probable scribed in tbe First Report of the Special lic account of the first 60 days' activities that impeachment and removal for misbe Subcommittee. There liave been furtber con of the House Judiciary Subcommittee havior, or for high misdemeanor , or for mis ferences and correspondence wi th Attorney chaired by the gentleman from New demeanor is n ot subject to appeal to the Su Gen eral Mitchell, but as of August 5, 1970, York (Mr. C!:LLER), charged with the in preme Court nor t o review by that Court. the l)(>partm en t still h as not supplied the vestigation of certain allegations con There has to be some medium for de dN'umentary and factual materials the Spe cerning activities of .Associate Justice of termining whet her a Judge, whose Federal cial Subcommittee bas requested. the Suprem E! Court Douglas, for some tenure on the Bench Is constitutionally llm "These delays and obstructions have ham reason failed to include an outline of ited to t enure "during good behavior", Is or p ~ r l" d the Special Subcommittee in this in is not "of good behavior". This medium is vestigation and hindered the completion of recommended procedures submitted by a majority of the House of Representatives, I t.~ tClSk. In the light of the lack of coopera me in May specifically in response to a quorum being present. At the risk of over t ion from the Executive Branch, criticism of prior request by Chairman CELLER. simpllfication, it would appear that "good the Special Subcommittee is not justified. Inasmuch as the Celler subcommittee behavior" is essentially the equivalent of "A brief summary of the procedures tbat has now made this report public, I am "misdemeanor" as tbat term is used In the h ave been adopted by tbe Special Subcom including in the RECORD today in an ex Constitution. mit tee In this Investigation Is appropriate. I am personally of the view that the dellb Impeachment of a member of the United tension of remarks a copy of this letter in erate writing and distribtulon throughout States Supreme Court Is a serious matter and of May 6 full. the United States for pay ' by J ustice Doug should not be undertaken Irresponsibly or in To this day it appears th at this sub las, to the effect that Congress no longer rep the absence of complete knowledge of all committee has failed to call a single wit resents t he people but rather tbe Establlsh relevant facts. In this Investigation, the Spe ness, or to take a single word of testi ment; that the Establlshment is today tbe cial Subcommittee seeks to avoid any crit money under oath. equivalent of George III of England; tha,t icism of partisan politiCS. Every effort Is be revolution by force and violence to over Ing made to pursue this In vestigation In a Conceived in deceit in that the resolu throw George III was In the glorious tradi profession al, objective and orderly manner. tion that it is cperating under was of tion of America; _that If peaceable protest " As tbe First Report makes clear on page fered as a palpable subterfuge, to avoid and dissent proves unavalllng to restructure 1 the Special Subcommittee on H. Res. 920 House Resolution 922 and companion res the Establlshment (a phrase which DouglB6 h'as been appointed and operates under t be olutions containing cosponsors this so plainly uses as a synonym for the American Rules of the House of Representatives. Dur called investigation by' the Celler sub government) vlolence t o overthrow it may Ing the In itial stages of t h is in vestigation, committee makes a mockery of the re also be glorious-is judicial m isbeh avior and 1 the Special Subcommit tee w ill operate un sumcient cause for Impeaohroent. der procedures establlsbed in paragraph 27, sponsibilities of this House to meaning Wholly regardless of his personal poll tical Rules of Gommlttee Procedure. of Rule XI fully investigate impeachments. philosophy, or of any oth er alleged miscon of the House of Represent atives. These pro Yesterday the chairman announced duct on the Bench , I do not belleve that such cedures will be followed. that there were going to be three phases incitation to or encouragement of violence "Pbase I of tbe Special Subcommittee's to the investigation, and that phase I In a Country sorely tom by violence a.t this investigation is a prellmlnary Inquiry to col very hour is "good behavior" for a Supreme lect all of the documentary and factual had been concluded. Court Justice. materials tbat bear upon any of the cbarges This phase staging is a palpable stall, Justice Wllliam O. Douglas bas deliber witbin the scope of H . Res. 9 20. To tbis end, to protract and drag out this investiga ately prepared and caused statements to be the Special Subcommittee bas requested in tion of Justice Douglas until this House printed in book form and sold throughout formation from every ot her known source is out of session and it is too late to do this Country and the World for profit that who may be In a position to provide relevant anything about it in this 9Ist Congress. undeniably Increase the tendency of many m a terials. persons to resort to violence in the United "In P hase ·1, the Investigation is ex parte. Mr. Speaker, the charges that have States. He has written this when, to his per The purpose of the preliminary inquiry is been made are quite serious ones. I be sonal knowledge, the United States Is smoul to enable tbe Special Subcommittee to de lieve testimony should be taken under dering from violence within. I believe it can termine what course of action it can recom oath in a public hearing by an inde and should be found as a fact by your Com mend to the full J udiciary Committee on pendently and objectively minded com mittee that Justice Wllllam O. Douglas bas tbe basis of tbe facts. The preliminary In mittee. I hope this body will act to see dellberately sought to encourage vloleru:e in qulry is analogous to the Investigation tbat that this is done without further delay, the United States and that for this, and Is necessary to make a determination that independently from any other facts, he su mcient facts exist to warrant bringing Mr. WYMAN. Mr. Speaker, supple should be impeached an d removed from omce mat ter t o the attention of a Grand Jury. menting my remarks made earlier on the by the Senate. "Phase I is n ot yet completed. Sou~ces, fioor of the House today, I include in However, there are other additional extra primarily in the Executive Branch. that pos the RECORD at this point, a copy of my judicial activities concerning which investi sess relevant Information t·hus far have not gation Is warranted. Not the least of these Is complied with t he Special SubcommIttee's letter of May 6, 1970, to Hon. EJlANUEL the extent of bls repeated public declara requests. Unt il tbese factual ma.terials are CELLER chainnan of the Special Judici tions of positions on issues coming or sched supplied to the Special Subcommittee, the ary S~bcommittee investigating the uled t o come before the Court. Indicating preUm inary inquiry stage of this Investiga Jacobs impeachment resolution. This how he would decide cases in lltlgatlon, and tion cannot be completed. letter was submitted to Chairman CELLER accordingly virtually requiring his disqual "Phase II Is tbe next step In the investi in response to his request, but for rea ification from hearing ' them or sitting in gat ion. When the Special Subcommittee IS judgment upon them. These have Included sons best known to Mr. CELLER, was sweeping a nd far-ranging written pro sa.tisfl.ed thl'. the facts in dicate that an im omitted from the recently published re peachable offense may have been committed, nouncements on the latitude of individual a r ecommendation will be made tbat the port of his subcommittee of its pro license under the First Amendment, on the ceedings to date. war, on the draft, and a bost of other mat- 13 The same should apply to Edward Levin ters which In my opinion your CommUtee son. with particular reference to the Fremont August 12, 1970 should document. It should also document Hotel and an Internal Revenue tax claim of the number of cases and LsBues Identifying '4.2 mUl!on with relation to alleged "skim PROPOSED SELECT COMMITTEE TO with these statements that have come before ming" 011 the top of Its crap table. Levin INVESTIGATE ACTIVITIES OF AS the Court In the periods subsequent to their son Is reported, to have stayed on at the Pre SOCIATE JUSTICE WILLIAM O. publication and sitting In judgment on mont after Parvin. with Douglas' knowledge. DOUGLAS which Douglas has faUed to dlsquaUfy him bought In. Levinson Is also reported to have self. filed a no-contest plea to charges of bUking In addition to the foregoing. there are the hotel corporation and fraud. it being re HON. LOUIS C. WYMAN matters specifically referred to In H. Res. 922 ported that he paid a $5.000 fine in 1967 when OF NEW HAMPSHIRE (a copy of which Is appended hereto) that the government dropped Its charges against IN THE HOUSE OF REPRE$ENTATIVES warrant detailed and extensive Investigation him. This become5 further ' compUcated by of papers. documents. files. telephone calls. the allegations that Levinson had been a pub Mr. WYMAN. Mr. Speaker. I am today etc. for the .purpose of detennlning whether lic partner of Bobby Baker. represented by requesting the distinguished chairman Justice William O. Douglas h ..... contrary to Abe Fortas' law firm. and had filed a $2 mU of the Rules Committee (Mr. COLMER) law and ethical standards. practiced law for lion suit against the United States govern to grant a rule on House Resolution 922 pay while on the Supreme Court of the ment alleging Invasion of privacy by elec United States; sat In judgment upon cases and companion resolutions. to establish tronic surveillance. Reportediy. It was two a select committee to investigate thp. on appeal to the Supreme Court In which he days after the fiUng of this suit that IRS let had a financial relationship past. present or Levinson off with the $5 .000 fine and he activities of Associate Justice William 0 future with parties before the Court; and dropped the suit! Douglas whether as Director and Executive Officer of Here again. It Is Important that the testi This matter has languished in the political action organizations he has under mony of each witness be impounded untU tender hands of Chairman EMANUEL CEL taken further encouragement to divisiveness. others have testified and that no witness be LER for more than 3 months. not in re revolt. revolution. clvU unrest and potential informed. directly or Indirectly. concerning anarchy In America. also for pay. sponse to the more than one-quarter of the testimony of a prior witness on relevant the Members of this body. but pursuant I respectfully recommend that the follow matters of major Importance in respect to Ing Investigation be conducted by the Com which prejury might reasonably be antici to a resolution of impeachment intro mittee before Justice William O. Douglas Is pated. duced by the gentleman from Indiana Invited to appear and testify. 4. Publisher Ralph Ginzburg should be I Mr. JACOBS) which was a notorious sub I believe It Is of m ajor Importance that subpoenaed duces for all correspondence and terfuge in the first instance. Mr. JACOBS the results of this Investigation and the tes business dealings with or relating to William having introduced this resolution while timony of separate witnesses be kept sepa O. Douglas since 1960. In particular. the ex I was speaking on the floor in support of rate and apart from the testimony of other tent of Douglas' connection with publica House Resolution 922 which calls for a witnesses. and that the contents of the tes tions either adjudicated obscene or other bipartisan select committee. timony of each be denied to oth'i/rs and to wise In!erably pornographic. either as author. The Celler subcommittee has not called the Justice before he Is Invited to testify advisor. writer. etc. Here. the business suc cession of the magazine Avant Garde as suc a single witness. nor held a single hear In his own behalf. ing. nor taken a single word of testimony I believe that Justice Douglas should be cessor to the magazine Fact should be estab placed under oath If he elects voluntar1ly l!shed. When did Douglas agree to write for under oath. To call its work an investi to appear and I think It should be made Ginzburg for pay? How much pay? .What gation of these serious complaints is to clear to him at the time he Is Invited to arrangements were made in respect to pay? make a joke of the solemn responsibili appear that If he does appear and testify When Douglas received it? etc. The chronol ties of this House. before the Subcommittee It must be under ogy of Glnzburg's appeal to the Supreme I include in the RECORD at this point oath. Court and Douglas' opinions thereon should also be established for the record as well as my request to the chairman of the Rules The range of cross-eximlnatlon of Doug Committee: las as a witness will be extensive. as will the alleged fa.!lure to d1squal!fy himself appear from the extent of the following sub while passing on Ginzburg's appeal whUe HOUSE bF REPRESENTATIVES. poenas and subpoenas duces tecum. The allegedly being on retainer from Ginzburg. Washington. D .O .• August 12. 1970. matter of what questions to ask of witnesses 5. The publisher of Evergreen magazine Hon. WILLIAM M. COLMER. and how they are to be asked. and · the should be subpoenaed duces for all corre Ohairman. Rules Oommittee, sequence In which they are to be asked. spondence and Information relative to con House 0/ Representati ves, Washington. D .O. requires consummate skU I and careful tracts or arrangements concerning the ar preparation lest relevant truths escape the ticle appearing In the April 1970 Issue of DEAR MR. CHAIRMAN: I respectfully request Committee by palpable Inadequacy of Evergreen written by William O. Douglas. that a Rule be granted on referenced resolu cross-examination. In particular. It should be determined wheth tions. More specifically. on the question of ac er or not from examination of Evergreen It Is now more than three months since tivities of Douglas whUe a member of the and Random House Publishers (who should the Celler Subcommitt ee purportedly inves Supreme Court In connection ·wlth the al also be subpoenaed duces) Douglas knew or tigating t he activities of Associate Justice leged practice of law on the side for pay In was given an opportunity to see. or did In William O. Douglas was activated and I am regard to the Parvin Foundation there fact have notice of the format In Evergteen Informed that this Subcommittee has not should be Issued : magazine in the context of which his writ Iet called a single witness. nor take;l a Single 1. A subpoena duces tecum to Albert Par ten remarks appeared; i.e. preceded by por word of testimony under oat h . nor held a vin for al! books. records and papers. Includ nography. a ma.!evolent demeaning and li &ingle hearing. Further. I strongly suspect Ing those originally connected with the es belous caricature of the President of the the Subcommittee will not request a further tabl!shment of the Foundation. All corre United States and punctuated by additional extension of time. which means It wi ll expire spondence and all files should be reviewed Incitements to racial confilcts Including sub on August 20th which Is while this Body is with care. not only for correspondence to stituting live bullets for blanks. Specifically. In Recess. and from Douglas.- but also for correspond it should be determined under oath what I think it can fairly be concluded that t he ence from any aources referring t o Douglas contractual arrangement Douglas had with necessary objective investigatory policy to and or advice or opinions from Douglas re Random House and the latitude (granted discharge the responsibilities of the House poUcy. tax consequences. real estate acqui by Douglas) which was ava.!)able to them (if of Representatives in these circumstances sitions. etc. any) to put articles signed by Douglas as a has not preva.!led in the Celler Subcommit The same subpoena d'uces tecum to those Supreme Court Justice Into any magazine tee. which is confirmatory of the recorded connected with the Parvin-Dohrman Corpo with the Imprimatur of the Supreme Court fact that it was conceived in subterfuge in ration. with specifiC reference to the Aladdin thereon. Specifically. questions should be tile first place. Hotel transaction. including Its Trustee In directed to whether or not Douglas had any It Is difficult to see how any member of Bankruptcy. et" .• In which It should be care notice of forthCOming publication In Ever t he House could call the work of the Celler fully checked to determine whether or not green. whether or not he was shown a galley Subcommittee an Investigation in any mean It was generally understood In the Las Vegas proof before the Apr!! Issue was published. ingfttl sense of the word. Community and by the Trustee of Aladdin etc. In these extraordinary circumstances there that Inasmuch as Parvin-Dohrman has a Tax returns of William O. Douglas should is a continuing responsibility of the House Supreme Court Justice as Its attorney It was be examined from 1960 to 1970. followed up to conduct a thorough and complete Investi purchased at a $5 million reduction In price. by appropriate field Investigation. including gation of the serious charges contained in Witnesses connected with any of these ·the use of subpoenas whenever these re referenced resolutions. I sincerely hope that transactions should be subpoenaed and ques turns are shown to relate to activities in you will act promptly and favorably on this tioned relative to their understanding and volving the practice of law or related to por request. including a directive that all the the significance of whether a Supreme Court nography or revolution. books. papers. records. documents and in Justice was of counselor so affil!ated with a Appropriate officials of the American Bar formation heretofore assembled by the Celler corresponding Interest as to allect the con Association and the Judicial Conference. In Subcommittee be transferred to the Select duct of business transactions. and If so on cluding the Chairman of the House of Dele Committ-ee provided for by H. Res. 922. upon what basis. etc. gates and the Standing Committee on Ju Its establishment. Telephone company records should be sub dicial Tenure. should be called to establish Cordially. poenaed and all calls checked as far back as t he various statutory limitations on extra LoUIS C. WYMAN . these records exist to an d f rom William O. judicial activity and the Canon s of Judicia.! Member 0/ Oongress . Douglas. by number. party. etc. Ethics applicable to the Federal J u diciary. 2. Subpoenas duces tecum should Issue to Complete and thorough examination Harry Ashmore and others at the Center for should be made. after a.ppropriate request. Democratic Institutions and the Fund for the of all of the files of the Department of Jus Republ!c for correspondence and records re tice relating to or having reference to Wil lating to the employment. retainer. consulta liam O. Douglas by a member or members tive or other advlces from or with WUlIam O. of the SubcOmmittee accompanied by stall. Douglas since 1960. From an examination of This should be followed up by such addi the foregoing It should be established spe tional field Investiga.tlon and subpoenas as cifically whether Douglas assisted In setting appear to be required to establish whether pol!cy at the Center. whether he approved or or not there has been extra-judicial activity was given the opportunity to disapprove of by Douglas of a .proscrlbed character. activities that have resulted In violence. any When the Investigation has been com publ!catlons that have encouraged violence. pleted to the point of the ascertainment of etc. the actual facts concerning the amoun.ts 3. Former Senate Secretary Robert Baker paid to William O. Douglas by the Parvin should be subpoenaed duces for all books. Foundation and from other sources for extra records and correspondence relating to com judicial employment. Including the Cen.ter munications with or advice from William O. for Democratic InstitutiOns. Ralph Ginzburg Douglas Since 1960 In policy or business ven and others. the Justice should then be re tures and these should be eJ!:.amIned carefully quested to appear and. as mentioned above. for any and all bUSiness deals In which If he does appear he should be examined Douglas has been Involved. When and as under oath just.lIke any other witness. these a,re ascertained they should be followed No doubt. substantial additional informa. up by slm1lar subpoenas duces to persons in tive procedures and alternatiVes will be de. vol ved insofar as they relate to con11lcts of veloped In .the course of the Committee·£ Interest. Among the things to be specifically Investigation. but i·t Is believed that the asked of Baker Is why he was In the Domini foregoing comprises a minimum of require can Republ!c with Douglas in 1963. on what ments for adequa.te Investigation In this kind of business venture. etc. ma.tter. Sincerely. LOUIS C. WYMAN. Member 0/ Oongre88. 14 POWER OF IMPEACHMENT Clr,mlt Judge for the Commerce Court, upon HON. GERALD R. FORD an Impeachable offense though the conduct thiJ-reen articles. The articles charged the OF MICHIGAN may not be an Indictable "crime 01' ;.n1sde juelle with the use of his official power and iffieanor". We refer you to the enclosed Infl~lence to secure business favors and con IN THE HOUSE OF REPRESENTATIVES Memorandum for our complete discussion of ces31ons. He was also charged with various the subject and for our reasons for our con misconduct while a District Court Judge, but Monday, August 10, 1970 clusions. was acquitted thereon apparently because Sincerely, the Senate did not wish to set a precedent BETHEL B. KELLEY. of impeaching a person for acts occurring Mr. GERALD R. FORD. Mr. Speaker, while In a former office. The judge was found I was gratified when the distinguished guilty on five of thirteen articles. chairman of the Committee on the Judi Kelley Memorandum No. 1 In 1926, George W. English, United States ciary agreed publicly to open hearings on District Judge from Illinois, was impeached the impeachment of Associate Justice for an abuse of power In the suspension and William O. Douglas, with witnesses ex disbarment of two attorneys and for using amined under oath, as I asked from the MEMORANDUM CONCERNING THE CONGRESSION his office for personal gain by appointing a personal ·frlend as the sole bankruptcy referee outset. AL IMPEACHMENT PoWER As IT RELATES TO THE FEDERAL JUDICIARY for his court. The charges against Judge Eng The gentleman from New York's com lish were dropped after he resigned from mitment is conditioned, however, as to I . INTRODUCl'ION office. time and circumstances. Public hearings The United states Constitution, Article In 1933, Harold Louderback, United States will be in order, he stated in an August 5 III, Section One, provides that "The judges, District Judge from California, was Im news release: hoth of the Supreme and inferior Courts, peached by the House of Representatives. shall hold their offices during good be When the special subcommittee Is satisfied The articles charged the judge with using havior . . ." Article II, Section Four provides his office for the enrichment of his personal that the facts Indicate that an Impeachable that "The PreSident, Vice President, and all offense may have been committed. friends and political allies by appointing civil officers of the United States, shall be them as receivers even though no receiver The definition of "an impeachable of removed from office on Impeachment for, should have been appOinted and though the fense" thus becomes crucial to the con and conviction of, treason, bribery, or other persons appointed did not qualify. Judge duct of free and full public hearings. high crimes and misdemeanors." The rela Louderback was acquitted on all articles. tionship of these provisions has been the The last Impeachment proceeding was The Constitution. clearly entrusts the subject of much controversy in virtually brought In 1936 against Halsted 1;. Ritter, determination of this question to the every Impeachment proceeding brought United States District Judge for Florida. Of conscience of the whole House of Repre against a Federal judge which has resulted the seven Articles of Impeachment, 'the first sentatives, which has the "sole power of in a Senate trial. The purpose of this memo six alleged speciflc Instances of wrongdoing randum is to trace the development of this impeachment." on the part of Judge Ritter involving the controversy and to attempt to delineate the use of his office for personal gain, Including In response to an earlier request from exact nature of the impeachment power as the chairman, Mr. CELLER, as detailed in the receipt of "kickbacks" from legal fees he It relates to the Federal Judiciary. The prob awarded to his former law partner. Judge I lem basically Involves the definition of my August 5 letter to him, last week an Ri tter was acquitted on all six of these ar impeachable offense. The basic source mate provided members of the Committee on ticles. The seventh article WRS a recitation of the JudiCiary with an independent and rial for such a determination is, first, the Constitution itself, second, the debates of the first six and charged the judge with brillging hla office Into disrespect by his q,ues comprellellsive legal memorandum on Congress In Interpretation of that power, tlonable conduct. On this article, Judge Rit this f!'lestion which was prepared by the third, the application of the constitutional ter was ronvict.eti Rnd l"p.moved from omce. IlPtroit, Micn .. law firm of Dykema, Gos provision in the nine (9) {mpeachment pro sett. Spenf'Pl·. Goodnow & Trigg. ceedings Involving the Federal Judiciary, As will be noted later, the Ritter case Is olle .T now make this excellent study by and fourth, the comments of scholars who of the most enlightening because it was tr.e Av orneys Bethel B. Kelley and Daniel G. ilP,Ye analyzed the prol>lem. only trial In which individual senators filed Defore an extensive examination of the written opinions expressing their reasons for WYllie available to all Members, together d"hates Is rlade, a brief review of the vari their votes. with two covering I€:LLc:rs which are self ous Impeachment proceedings resulting In a The Impeachment trial of Judge Picker explanatory: Senate trial of a 'Federal judge Is In order. Ing affords little precedental value because CONGRESS OF THE U N ITED STATES. The first· impeachment of a Federal judge, of the tragic circumstances under which he Wa.sh ington, D .C., August 5, 1970. and the first impeachment to succeed, was was Impeached and because he did not actu HOll. EMAN UEL CELLEfl, that of John Pickering. United States Dis ally defend himself at the trial. However, a Cilairman, Committee on the Judiciary. trict Judge for the District of New Hamp minor debate took place over the form of HOt/se 01 Representatives, Raybur" shire. Judge Pickering was charged with the the question to be put to the Senate. Some H ouse 0 Diae Euildi ng. Washi ngton, D.C. violation of a United States Statute by senators Insisted that they should be asked DEAR MR. CHAIRMAl< : Last May 15 you reo wrongfully releasing a vessel which had been whether the judge was guilty of "high crimes qucs ,ed me to furnish your Special Subcom seized by the government without requiring and misdemeanors". They took the position m ittee w.ith my views on the "good behavi the prescribed indemnity bond. He was also that the Senate must first determine whether our" provision of the Constitu t ion with r e charged with conducting court while Intoxi the facts alleged In the Articles of Im spect to the tenu i'E' of office of Federal judges cated and with blasphemy on the bench. peachment were true, and then It must de and jus tices. Judge Pickering did not respond to the cide whether they constituted Impeachable I responded on May 20, stating that my Articles of Impeachment but his son did and offenses. However, a majority of the Senate views on this subject had been set forth was .allowed to introduce testimony to show decided that the question should be merely rather fully in my April 15 speech to the that the judge was mentally Irresponsible. whether the judge was guilty as "charged". House, but adding that a more compelllng The Senate convicted the Judge on each of 3 Hind's Precedents of the House of Repre and learned legal exposition certainly was the articles and removed him from office on sentatives 707 (1970) , [Hereinafter cited possible and that I was in the process of March 12, 1804. Hind]. Although this form of question was obtaining sucll a study. On the same day, the House of Representa used In subsequent Impeachment trials, little I requested the distinguished Detroit, tives voted to impeach Samuel Chase, Asso emphasis has been placed on the fact that It Michigan law firm of Dykema, Gossett, ciate Justice of the Supreme Court on eight Implies that the Senate is not limited to Spencer, Goodnow & Trigg to independently articles. He was charged with certain mis removal by Impea\!hment for "high crimes research this Important question and pro conduct to the prejudice of impartial Justice and misdemeanors" only. Vide me, without reference to any current In the course of a trial for sedition, with mis The first extensive debate concerning the impeachment proceedings or to my personal conduct In improperly Inducing or coercing n ature of the Impeachment power occurred conclusions of last April 15, a comprehensive a grand jury to return an indictment during the trial of Justice Chase. In that case, and objectiVe opinion. I felt that this would against an editor of a newspaper for an al counsel for Chase stoutly maintained that be of greater value to Members of the House leged breach of the sedition laws and with Impeacll,ment would only lie for "Indictable and of your Committee than any mere elab misconduct In addressing an inflammatory offenses". Counsel for Chase advanced three oration of my views. harangue to a grand jury. In the course of major arguments In support of this proposi The resulting "Kelley Memorandum" with the trial an extensive debate was had con tion. The first contention was that the very covering letter to me from Bethel B. Kelley cerning the nature of the impeachment definition of the words "high crimes and Is enclosed pursuant to your request. power. The impeachment failed for want of misdemeanors" means an "Indictable of I most respectfully renew my request to a two- thirds majority even though a major fense". As Luther Martin, a member of the you In my letter of July 29, 1970 for a copy Ity voted to convict on several of the articles. Constitutional Convention, said on behalf of the June 1 submission by Judge Rifklnd J ames H . Peck, Judge of the United States of Justice Chase: setting forth the views of the attorney for District Court for the District of Missouri, "There can be no doubt but that treason the accused on the "Role of Counsel and Re was impeached in 1830 on one general article, and bribery are Indictable offenses. We have lated Procedural Matters" and his May 18 con taining eighteen speCifications, charging only to inquire, then, what Is meant by high legal submission described In his letter of abuse of official power and arbitrary conduct crimes and misdemeanors? What Is the true that date as "a separate legal memorandum In severely punishing for contempt of court meaning of the word 'crime?' It Is the breach on what constitutes grounds for Impeach an attorney who had published a criticism of some law which renders the person who ment." I would like to have an opportunity of one of the judge's opinions. In his an violates It liable to punishment. There can to study the legal questions raised In both swer, the judge alleged that his conduct was be no crime committed where no such law these papers. legally correct and Justifiable, and he denied is violated. Warm personal regards, the existence of a malicious motive. The trial "Thus it appears crimes and misdemeanors GERALD R . FORD, resulted in a majority of the Senate voting are the violation of a law exposing the per Member 01 Congress. aga inst Impeachment. son to punishment and are used In contra In 1862, Judge West H. Humphries was Im distinction to those breaches of law which DYKEMA, WHEAT, SPENCER, GOODNOW, peached and convicted for activities relating are mere private InJuries, and only entitle & TRIGG, to the secession of Tennessee and for serving the Injured to a civil remedy." 3 Hind 762. DetrOit, Mich., June 23, 1970. as a Confederate Judge. Judge HumphrieS The second assertion made In support of Re: The Impeachment Process. did not appear to defend the articles and the proposition that Impeachable offenses Han. GERALD R. FORD, Jr., was removed by a unanimous vote of the must be "Indictable" was that all the pro visions of the Constitution relating to im The Capital, Senate. Washington, D .C. The next impeachment affecting the judi peachment are couched In the terminology DEAR CONGRESSMAN FORD: Sometime ago, ciary was that of Charles Swayne, United of the criminal laws. Thus, a civil officer you asked me to review the authorities re States District Judge for Florida. In 1904, must be "convicted of high crimes and mis lating to the Impeachment Process as It ap Judge Swayne was Impeached on twelve arti demeanors". U.S. Const. Art. II, Sect. 4. "The plies to the Federal Judiciary, Rnd to discuss cles, charging that he had rendered false trial of all crimes, except In cases Of Im the authorities dealing with the subject. In claims in his expense accounts; that he had peachment, shall be by jury." U.S. Const. particular, you requested an opinion as to appropriated to his own use, without making Art. III, Sect. 2. "No person shall be con victed [Qf Impeachment] without the con whether Judicial "misbehavior" as It relates compensations therefor, a certain railroad currence ~ of two-thirds of the members to the Judicial Tenure Article of the Con car belonging to a defunct railroad company, stitution (Article III, Section One) may con then in the hands of a receiver appOinted by present." U.S . Const. Art. I, Sect. 3. These stitute an Independent ground for Impeach clauses of the Constitution, wrgued counsel the judge; that he had resided outside of his for Chase, support the principle that Im ment of a judicial officer even though such judiCial district In violation of the statute; peachment Is In effect a criminal prosecu misbehavior might not constitute an Indict and that he had maliciously adjudged cer tion which cannot be maintained without able "crime or misdemeanor" under Article tain parties to be In contempt of court and II, Section Four. With the assistance of my had Imposed excessive punishments upon the proof of some Indictable offense of the associate, Daniel G Wyllie, we have prepared them. The judge defended, and was acquitted laws. 3 mnd 767. and enclose herewith a Memorandum con by a majority On each article. The third point raised by Chase's counsel cerning the matte:-. We conclude, that mis was that the framers of the Constitution In 1912, the House of Representatives im Intentionally restricted Impeachment to In- behavior by a Federal Judge may constitute peached Robert W . Archbald, United States 15 dlctable ottens. to safeguard the Independ to have been settled by all parties In the greas to remove those olllcers who are con ence of the judiCiary. A Judge must be free trial of Judge Peck In 1830. The Mana.gers 10r victed of treason, bribery, or other high to decide the cuee before him be8ed on his the House of Representatives defined an im crimes and misdemeanors. The managers own conscience without havtng to fear Im peachable olfense on the part of a judge as stated tha.t there may be other olfen.ses for peachment because two-thirds Of the Senate follows : • which an olllcer may be Impeached. ArtIcle disagree with him. It should be ·noted that ';A judicial mlsdemea.nor consists . . . In III, Section 1 provides a definition of such ad the Impeachment of Justice Chase was ap doing an Illegal ' act, colore olJlcii, with bad ditional grounds In the case of the judiciary, parently motivated, to a large degree, by motives, or In doing a.n a.ct within the com I.e., misdemea.nor. 3 Hind 340. The managers political factors. Justice Chase was a Federal petency of the court or judge In some cases, concluded tha.t: Ist who had Incurred the wra.th of the Jef but unwarranted In a particular case from "Our fa.thers a.dopted a. Constitution under fersonian Republicans by many of his rul the facts existing In that c&lle, with ba.d which olllcial ma.lfeasance, and nonfeasance, Ings. His counsel contended that the stabil motives." 3 Hind 798. a.nd In some cases, misfeasance, ma.y be the Ity and Integrity of the Supreme Court de Former President Buchanan, then a mem subject of Impeachment, a.lthough not ma.de ma.nded a. strlet Interpretation of the Im ber of the House, of Representa.tlves, stated criminal by act of Congress, or so recognized peachment cla.use. As one of his counsel In the course of argument tha.t misbehavior by the common la.w of England, or of any stated In t he debate: on the pa.rt of a judge Is a forfeiture of the State of the Union. They a.dopted Impeach "I ha.ve considered these observations on olllce. He conceded tha.t the Chase trial set ment 80S a m eans of removing men from of the necessa.ri Independence of the judiciary tled that the judicial misbehavior must con fice whose misconduct Imperils the public appllca.ble and Importa.nt to the case before sist of a violation of the Constitution or sa.fety and renders them unfit to occupy 0111- this honora.ble court, to repea.l the wild Idea some known law O'f the land, but It need not claI position. All Amerlca.n text writers sup tha.t a. judge ma.y be Impeached a.nd re be "Indlcta.ble" because misbehavior could port this view " 3 Hind 340 moved from olllce a.lthough he has violated consist In the abuse of a power gra.nted to Indeed, the textual authorities ha.ve In fact no la.w of the country, but merely on the the judge, such as the contempt power, as unanimously rejected the position that a. vague a.nd changing opinions of right and well as In the usurpation of authority. 3 "high crime or misdemeanor" must be an wrong-propriety·· and Impropriety of de Hind 800. "Indlctanle" offense before an Impeachment meanor. For If this Is to be the tenure on Counsel for Peck did not dispute this will lie. As was sta.ted by Roger Foster: which a. judge holds his olllce and charac poSition, but argued that the abuse of olllcial "The Constitution provides tha.t 'the ter; If by such a standard his judicla.l con judges, of both the Supreme a.nd Inferior power must have been Intentiona.l. Their courts, shall hold their olllce during gOod be duct Is to be a.djudged crlmlna.l or innocent, position was tha.t a mere mistake on the part there Is an end to the Independence of our ha.vlor.' This necessarily Implies that they of the judge as to wha.t his powers were may be removed In case of bad behavior. But judlcla.ry." 3 Hind 760. could not constitute an Impea.chable offense. They claimed tha.t a judge must a.ct with the no mea.ns, except Impeachment, Is provided In response to the position a.dvanced by for their remova.l, and judicial misconduct Is the counsel for the Justice, the House Man knowledge tha.t he was violating the law In order to commit an Impeachable. olfense. 3 not Indictable by either a statu te of the agers contended that Impeachable offenses United States or the common law." 1 R . Fos are not limited to Indictable crimes. They Hind 802. Since the discussion of the power of Impeachment In the Peck case was merely ter, Commentaries on the Constitution of argued that the Constitution, In restrict the United Sta.tes 569. Ing punishment for Impeachment to remova.l prellmlna.ry with the main force of the a.rguments going to the question of law as George CurtiS looked to the purpose ot the from and disqua.llflcatlon for olllce, maltee Impeachment power In his sta.tement: a distinction between "Indictable" offenses the right of the judge to punish for con and "Impeachable" offenses. Insofar as the tempt and the question of fa.ct as to his "The purposes of a.n Impeachment lie conduct of a judge Is Injurtous to society be Intention, the Peck trial added little defini wholly beyond the penalties of the statute or the customary law. The object of the pro cause It Is an abuse of the olllce he hOlds, It tion to the preCise nat ure of the Impeach mentpower. ceeding Is to ascertain whether cause exists Is Impeachable. Insofar as the conduct Is for removing a public olllcer from office. crlmtnal In na.ture, It may be Indictable The major point of deba.te during the Im Such a. cause ma.y be found In the fact that, and punishable under the crlmtna.l law. 3 peachment trial of Judge Swayne In 1904 Hind 739. The Managers a.l80 contended that was whether a judge could be Impeached for either In the discharge of his olllce or &sIde the Justice, by violating his oath of olllce misconduct not directly rela.ted to his judl from Its functions, he has violated a law or to be fair and Impartial In the admtnlstra cla.l duties. As noted ea.rller, none of the committed wha.t Is technlca.lly denominated tlon of Justice, committed an Impeachable misconduct charges against Judge Swayne a crime. But a cause for remova.l from office offense. 3 Hind 753. took place while he was actua.lly holding may exist when no offense against positive The most Illuminating argument advanced court. His counsel a.rgued tha.t all previous law has been committed, as when the Indi by the House Managers Is that a judge may Impea.chments, both English and American, vidual has from Immorallty or imbecility or be Impeached for misbehavior without re conclusively established that Impeachment mala.dmlnlstra.tlon become unfit to exercise sort to the Impeachment provisions In Ar would lie only for misconduct In the exer the olllce." 2 G. Curtis, History of the Con stitution of the United States 260. ticle II, 'Sect. 4. Said the Managers: cise of the office since none had ever In vol ved the persona.l misbehavior of a. judge. Their See &Iso Cooley, Principles on Constitu "The Constitution declares that 'the judges tional Law 178; 1 Story on the Constitution of both the Supreme and Inferior Courts position rested on the proposition tha.t the term "high crimes and mlsdemea.nors" was § 796-799 (5th Ed); 2 Watson on the Con sha.ll hold their commiSSions during good stitution 1034; Ra.wle on the Constitution behavior,' The plain and correct Inference a. term of art which must be construed In light of English parliamentary usage. 3 Hind 209. As was sta.ted In the Amerlca.n and Eng to be drawn from the language Is, that a lish Encyclopedia of Law: judge Is to hold his olllce so long as he de 322-25. As counsel for Swayne stated: "The cases, then, s~m to esta.bllsh that means himself well In It; and whenever he "In English a.nd American Pa.rllamenta.ry Impeachment Is not a. 'mere mode of pro shall not demean himself well, he shall be and Constitutional law, the judicla.l mis cedure for the punishment of Indictable removed. I therefore contend that a judge conduct which rises to the dignity of a high crimes; that the phrase 'high crimes and mis would be liable to Impeachment under the crime and m lsdemea.nor must consist of demeanors' Is to be taken, not In Its common Constitution, even without the Insertion of judicial acts, performed with a.n evil or law but In Its broa.der parliamentary sense, that clause which declares, that 'all civil 0111- wicked Intent, by a judge while a.dmlnlster and Is to be Interpreted In the light of par cers of the United States shall be removed Ing justice In a. court, either between prlva.te lIa.mentary usage; that In this sense It In for the commission of treason, brl!Jery, or persons or between a. private pel'son and the cludes not only crimes for which an Indict other high crimea and · misdemeanors.' The governmen t of a State. All personal mis ment ma.y be brought, but grave political nature of the tenure by which a judge holds conduct of a judge occurring during his offenses, corruptions, maladministration. or his olllce Is such that, for any act of mis tenure of office and not coming within that neglect of duty Involving moral turpitude, behavior In olllce, he Is liable for remova.l. category must be classed a.mong the offenses a.rbltra.ry and oppressive conduct, and even These acts of misbehavior may be of various for which a judge may be removed by ad gross improprieties, by judges and high 0111- kinds, some which maY, lndeed, be punishable dress, a. method of a removal which the cers of sta.te, although such offenses be not under our laws by Indictment; but there frainers of our Constitution refused to em of a cha.racter to render the offender lia.ble may be others which the lawmakers ma.y not body therein." 3 Hind 336. to an Indictment either a.t common law or have point ed out, Involving such a flagrant The reference to "remova.l by a.ddress" under a.ny sta.tute," XV American and English breach of duty In a judge, either by doing referred to a. prac1;tce used In Engla.nd. In Encyclopedia of Law 1066 (2d Ed) (Emphasis that which he ought not to have done or In England, Impeachment had a. much broader a.dded) . oinlttlng to do that which he ought to have scope since It could be used aga.lnst any sub Although many excellent arguments were done, that no man of common understa.nd ject of the king a.nd the penalty was not raised by both sides In the Swayne trla.l, It Ing would heSitate to say he ought to be Im restricted to remova.l from olllce. A majority ca.nnot be conclusively stated which posi peached for It." 3 Hind 740. of both houses of Parlia.ment could request tion carried the day. Judge Swa.yne's acqult According to this argument, t he tenure the king to remove an olllcial without con ta.l could ha.ve been due to the fact tha.t the provision of the Constitution drnws a dis victing him of Impeachment. Counsel for Senate thought that Impeachable miscon tinction between judges and other civil of Swa.yne contended that the refusal to adopt duct must be directly related to the olllce ficers. Both judges and other civil olllcers this method of remova.l showed tha.t the im of that the facts charged were not proven, or may be Impeached for "treason, bribery, or peachment power was Intended to be re even tha.t the judge's proven con!luct, al other high crimes and misdemeanors." But stricted to "high crimes and misdemeanors" though Impeacha.ble, did not warra.nt re- judges may a.lso be Impeached for misbe committed In an olllcla.l capacity. Counsel mova.l from olllce. However, It Is dllllcult to havior. This additional ground for Impeach pOinted out tha.t "removal by a.ddress" was understa.nd how the Senate could have ment Is required In the case of judges b!l deliberately left out of the Constitution "with a.dopted the first position beca.use of Its ob cause of their life tenure while other civil a. view of giving stability to those who hold vious result In leaving no remedy as to re olllcers are subject to periodic removal for the Offices, a.nd especially the judges." 3 mova.l ot a. Judge who ha.s been Imprisoned misbehavior t hrough the ballot box. This Hind 329. Counsel for Swayne placed em by a state. or Federal Court for crimes com contention also relies on a construction of phasis on the fa.ct that during the Constitu mitted In his personal life, totally unrela.ted the Impeachment provision. Article II, Sec tional Convention, Randolph opposed the to his office or judicial duties. tion 4 provides that "clvU officers shall be motion to Include "remova.l by address" be The Impeachment trial In which Judge removed . . ," [Emphasis added] . Thus, It ca.use It would weaken too much the Inde Robert W. Archba.ld was found guilty In 1912 Is a ma.ndatory but not a restrictive provi pendence of the judges. 3 Hind 329. Counsel was the first proceeding resulting In removal sion. It leaves the power In the Congress to also argued tha.t the substitution of the term In which the nature of the Impeachment determine what, If any, other offenses or "high crimes a.nd misdemeanors" In Article power was extensively debated. In adopting conduct Is Impeachable. This argument Is II, Section 4, for the original term "ma.l the Articles of Impeachment, the House of Importa.nt because It supplies the basis for adminlstra.tlon" added further proof of an Representa.tlves took the position that a other arguments which were raised In sub Intentiona.l restriction of the Impea.chment breach of judicial "good behaVior", regardless sequent Impeachment proceedings. power. 3 Hind 327. of Its criminality, was Impeachable. The Although Justice Chase was acquitted, It In the Swayne case, the managers for the Cha.lrma.n of the Impeachment Committee cannot be said t h at his trial set a precedent House of Representa.tlves contended that the conceded tha.t none of the Articles would that only Indictable offenses are impeach Constitution was not Intended to restrict sustain a. crlmlna.l cha.rge. 3 Proceedings of able. It Is Impossible to determine upon Impeachment to conduct directly rela.ted to the United States Senate In the Trial of Im which factors the vote of an Indivldua.l sen the olllclaJ duties of a. judge. They referred pea.chmen·t of Robert W. Archbald 1745 ator turned. A vote' for acquittal could have to the absurdity In holding that a judge, who (1912) . The Chairma.n of tha.t Committee meant that the facts charged were not had been convicted and imprisoned for mur st ated the charges as fonows: proven or that the facts proven did not con der, could not be Impeached because of his "From 1908 to the present time we have stitute an Impeacha.ble offense. Unquestion conduct did not occur while on 1lhe bench. 3 shown that he has been acting Improperly ably, some votes a.lso were politically moti Hind 328. Instea.d, the managers submitted and violating gOod judicial ethics by prosti vat ed. However, a.t least one commentator tha.t the Constitution gave Congress the tuting his olllcial position for persona.l profit sta.ted that: . power to Impeach a judicial olllcer for any a.nd otherwise." Id. at 747. "A precedent was establlshed to the effect misbehavior that showed disqua.lIl1.ca.t1on to In the Senate, counsel for the Judge a.d tha.t the judges are not to be removed from hold and exercise the olllce, whether moral, hered to the argument which ha.d been made olllce because of the content of their de Intellectual or physical, since the judicial previously on the part of the counsel for cisions or because of unusual or olfenslve tenure Is e:xPt'essly conditioned upon the Justice Chase that an Impeachable olfense gOod behavior of the Judge. 3 HInd 339. ma.nnerlsms. Removal from oIIIce Is In order The House Managers In the Swayne trial must be, by the v~ry terms of the Constitu only for serious misConduct, or charges boI' again a.dva.nced an argument which had been tion, an Indictable olfense, or at the very least, must have the characteristics of a der!ng on the crlminal." Blackmur, On the ra.lsed In the Chase trial. They contended Removal 0/ Ju.d.ges : The Impeachment Triol tha.t Article I, sections 2 and 3, 'whlch give crime. They attempied to auetaln ~hIs propo 0/ Samuel Ohase, 48 J . of Am. Jud. Soc'y, the House and Sena.te the 90Ie Impeacl).ment Sition, as did counsel fOl' ChMe, b7 referring 1113,184 (1964) . power are merely jurlBdictional ·a.nd not defi to the fact that the Impeaehmen~ power throughout the Constitution 1B couched In The proposition that an Impeachable of nitional clauses. Article II, Section ~, they fense need not be "Indictable" was aaaumed sa.ld, Is a mandatory provl81on directing Con- the tarmlnalotn' of the crlmlnal law. Bee 6 Cannon's Precedents of the Houae of Rep- 16 r.entatlves 63&-37 (1938) [HerelDatter re DurIng the trial of Ju~ Harold Louder Senators Borah. LaFollette, Prazier and ferred to aa Cannon). bl\Ck, all partlea agreed ~t the Archbald Shipstead stated in a Joint opinion: On the other hlUld, the House Managers Impeachment did so settle the question. In "It Is our view that a Federal judge may be fact, counsel for Judge Louderback ex advanced several theories to prove tbat non removed from olllee If It Is shown that he III Indictable Judicial misbehavior was im pressly adopted the position that the judicial wanting In that "good behavior" deSignated peachable. The broadest <:>t these theories was tenure provision Implies that a judge may as a condition of his tenure of olllce by the that the Constitution lett the deftnltlon of be Impeached for a breech or good behavior. Constitution. although such acts as disclose tbe "high crimes and misdemeanors" and ju "The Constitution of this country pro his want of " good behavior" may not amount dicial "good behavior" to Congress. placing vides that an apPointment of this kind is to a crime... . If a judge Is guilty of such no restrictions on the Impeachment power for life, depending on good behavior. So I conduct as brings the court Into disrepute, except to limit Its uSe to civil olllcers and Its have concluded, and I respectfully submit to he Is not to be exempt from removal simply punishment to removal and disqualification you, that "high crimes and mlsdemee.nors" because his conduct does not amount to a from olllce. As Manager Sterling said In his so far as this proceeding Is concerned, means crime.. . . We //OUght only to ascertain from final argument: anything which Is bad behaVior, anything these fact. whether his conduct hod bem "And so. Mr. President, I say. that outside which Is not good behavior." Proceedings of such III to amount to misbehamor, misoen of the language of the Constitution which the United States Senate In the Trial of duct-as to whether he had conduoted him Impeachment of Harold Louderback 796 I quoted there Is no law which binds the sel/ in ftlch a way that was calculated to Senate In this case today. except that law (1933) [Hereinafter cited Louderback Pro ceedings) . undermine public conjldence in the courts which Is prescribed by their own conscience, and to create a Ben&e Of Bcandal." Ritter Pro and on that, and on that alone, ,must de Judge Louderback's defense basically was ceedings 644-4,5. (Emphasis added). pend the result of this trial. Each Senator that the judge's conduct was not Intrinsi must fix his own standard; and the result cally wrong and did not . amount to Im Senator Elbert D. Thomas noted in hla opinion that the standard of Impeachable of of this trial depends on whether or not these peachable misbehavior. fenses of a Federal judge Is different from offenses charged against Judge Archbald In attempting to defin4!' what constituted that of other civil olllcers. This Is due, he come within the law lald down by the con Impeachable misbehavior, the House Man stated, to the fact that the judicial tenure of science of each Senator himself." 6 Cannon agers pointed to the defensive nature of the olllce Is for life on good behavior whereas 634. Impeachment power. Since It was not a pu other olllces have a fixed time duration. The In rebutting the argument that conduct to nitive measure, the criminal law standard of judicial olllce Is a public trust and the judge be impeachable must be indictable, the man guilt beyond a reasonable doubt need not be who abuses that trust must be removed. Rit agers pOinted to the object of the Impeach met. Louderback Proceedings 779. Rather, If ter Proceedings 646. ment power. Impeachment, they said, Is not It be proven that a judge's conduct cast sub intended to punish the Individual but rather This then. Is the CongreSSional authority stantial doubt on the Integrity of the judi as to what constitutes an Impeachable of to protect the public "from Injury at the ciary, he has committed Impeachable mis hands of their own servants and to purify fense on the part of a Federal judge. It behavior. amounts to an evolutionary adoption of the the public service." 6 Cannon 643. Thus, ac "The duty of the Senate Is to protect the principle that a judge whose conduct casta cording to this argument, a Federal judge Federal Judiciary and to protect the people should be removed "whenever, by reason of a doubt on the integrity of the Federal from those persons connected with the Judi Judiciary has committed an Impeachable of misbehavior, miscon:iuct, malconduct, or ciary whose conduct arouses doubts as to fense. It Is a complete rejection of the notion maladministration, the judge has "demon their honesty .. . . From an examination of that "high crimes and misdemeanors" which strated h is unfitness to continue In olllce." the whole history of Impeachment and par amount to Indictable crimes are the only Id. ticularly as It relates Itself to our system of standard of Impeachment. Through the The managers also advanced the theory government, when the facts proven with ref years, Congress has Interpreted Article Iil, based upon a construction of the judicial erence to a respondent are such as are rea Section I, as providing either additional tenure provision [Article III, Section 1) and sonably calculated to arouse a substantial grounds of Impeachment or a definition of the removal provision [Article II, Section 4). doubt In the minds of the people over whom "high crimes and misdemeanors" as applied It must be assumed that the two provisions that respondent exercises authority, that he to Federal judges. Congress has recognized were not Intended to be mutually antago Is not brave, candid, honest, and true, there that Federal judges must be held to a dif nistic. therefore, the judicial tenure pro is no other alternative than to remove such ferent standard of conduct than other civil vision Is of necessity either an addition to a judge from the bench, because wherever olllcers because of the nature of their posi_ the enumerated offenses of the removal sec doubt resides confidence cannot be present. tions and the tenure of their olllce. Congress tion or a definition of "high crimes and mis It is not In the nature of free government has rejected Impeachment as a method of re demeanors" as applied to the judiciary to that the people must submit to the govern moving those judges whose only "offense" Is Include misbehavior. Any other Interpreta ment of a man 8.8 to whom they have sub to render unpopular opinions In the course tion would destroy the effect of the "good stantial doubt." Louderback Proceedings 815. of their duties or espouse unpopular political behavior" clause which would be a viola philosophies on or off the bench. tion of the basic rule of constitutional con In we last l1npeachm.ent trial held, that of struction which gives full effect to all words. Judge Halsted L . Ritter In 1936, the Managers In. ANALYSIS 6 Ca nnon 643. Thus, the managers con of the House of Representatives reiterated A review of the past Impeachment pro !Oh e position asserted In the trial of Judge tend~(1 that the Constitution adopted one ceedings has clearly established little con standard for the judiciary and another for Louderback. The Managers Insisted that con stitutional basis to the argument that an a ll nther civil Officers, saying: duct on the part of a Federal judge which Impeachable offense must be indictable as "In ot her words, our forefathers in framing casts doubts as to his Integrity constitutes well. If this were to be the case. the Con the Constitution have wisely seen fit to impeachable misbehavior. Their position was stitution would t hen merely provide an addi prm'ide a requisite of holding office on the t hat the public confidence In the Judiciary tional or alternate method of punish ment, parr of a judge that does not apply to demands a strict standard of judicial COIl In specific Instances, to the traditional crimi other civil officers. The reason for this Is duct. Manager Summers said In final argu nal law violator. If the farmers had meant to apparent. The President. Vice PreSident, and ment as to the meaning of "good behavior": remove from olllce only those olllcials who other ci vll Officers, except for judges, hold " It means obey the law, keep yourself free violated the criminal law. a much Simpler their positions for a definite fixed term, and from questlorta.ble conduct, free from em method than Impeachment could have been any m isbehavior In office on the part of any barrassing entanglements, free frorn acts devised. Since Impeachment Is such a com of them can be rectified by the people or which justify suspicion, hold In clean hands plex and cumbersome procedure, it must the appointing power when the term of office the scales of justice. That means that he have been directed at conduct which would expires. But the judge has no such tenure shall not take chances that would tend to be outside the purview of the criminal law. of office. He Is placed beyond the people or cause the people to question the Integrity Moreover, the traditionally accepted purpose the appoin ting power and Is. therefore, sub of the court, because where doubt enters, of impeachment would seem to work against ject only to removal for misbehavior. Since confidence departs . . . When a judge on such a construction. By restricting the pun he cannot be removed unless he be Im the bench, by his ·own conduct, arouses a Ishment for Impeachment to removal and peached by the House of Representatives, substantial doubt as to his judicial Integrity d isqualification from office, Impeachment tried and convicted by the Senate, it must he commits the highest crime that a judge seems to be a protective, rather than a puni n ecessarily follow that misbehavior in Office can commit under the Constitution. It Is tive, device. It IS meant to protect the pub is an impeachable Offense." 6 Cannon 650 not essential to prove guilt. There Is nothing lic from conduct by high public olllcials (Emphasis added) . in the ConstItution and nothing In the that undermines public confidence. Since In rebutting an argument that the Inde philosophy of a free government that holds that Is the case, the nature of Impeachment pendence of the judiciary demands a strict that a man shall continue to occupy office must be broader than this argument would Interpretation of the Constitution, the man until lit can be established beyond a reason make It. Much conduct on the part of a agers replied that the Constitution was not able doubt that he Is not fit for the olllce. judge, while not criminal, would be detri meant to establish an Irresponsible judiciary. It Is the other way. When there is resulting mental to the public welfare. Therefore It The office Is a public trust and someone must from the judge's conduct, a reasonable doubt seems clear that Impeachment will lie for det ermine whether that trust has been as to his Integrity he has no right to stay conduct not Indictable nor even criminal In abused. The Constitution required that longer." Proceedings of the United States nature. It will be remembered that Judge Congress make the determination. Said the Senate In the Trial of Impeachment of Hal Archbald was removed from office for conduct managers: sted L . Ritter 611 (1936) [Hereinafter cited which, In at least one co=entator's view, "In requiring first of all a majority of Ritter Proceedings) . would have been blameless If done by a pri the House of Representatives In order to Since Judge Ritter was convicted by the vate citizen. See Brown, The Impeachment Of prefer articles of Impeachment and then two Senate and since the counsel for the Judge the FedeTal JudlciaTY, 26 Har. L . Rev. 664. did not dispute the standard applied but 70f-05 (1913) . thirds of the Members of the Senate to con attempted to prove that the judge's conduct vict, they hedged the power about with all was proper, It Is reasonable to conclude that A sound approach to the Constitutional the safeguards n~essary to protect the up the Senate, In a relatively contemporaneous provisions relating to the Impeachment power right olllcial and yet leave It sufficient play trial. has adopted this standard for Impeach appears to be that which was made during to preserve the public welfare." 6 Cannon ment of a Federal judge. In this connection the Impeachment of Judge Archbald. Article 646. It Is important to note that Judge Ritter I, Sections 2 and 3 give Congress jurisdiction In summation, the Managers submitted was acquitted on the first six articles which to try Impeachments. Article II, Section 4, Is that a judge ought to be removed when' his accused him of specific acts of wrongdoing. a mandatory provision which requires re acts are "calculated with absolute certainty His conviction and removal was based on moval of otllclals convicted of "treason, bri to bring the court Into public obloquy and Article Seven which charged that: bery or other high crimes and misdemeanors". contempt and to seriously affect the admin "The reasonable and probable consequences The latter phrase is meant to Include con Istration of justice." 6 Cannon 647. of the actions or conduct of Halsted L. Rit duct, which, while not Indictable by the In commenting on the outcome of the criminal law, has at least the characteristiCS Archbald trial, one of the House Managers ter . . . since he became a judge of said court, as an Individual or as such judge, Is of a crime. However, this provision Is not subsequently wrote: to bring his court Into scandal and disrepute, conclusively restrictive .. Congress may look " [I) t w1ll be observed, none of the arllcles to the prejudice of said court and public elsewhere In the Constitution to determine exhibited against Judge Archbald charged confidence In the administration of justice If an Impeachabl& offense has occurred. In an indictable offense, or even a violation of therein, and to the prejudice of public re the case of judges, such additional grounds positive law. Indeed. most of the specific spect for and confidence In the Federal judi of Impeachment may be found In Article ill, acts proved In evidence were not Intrinsi ciary, and to render him unfit to continue sec~ron l wnere-the JUclfcfiJ.-t enure is lIxed cally wrong, and would have been blameless to serve as such judge." Ritter Proceedings at "good behavior". Since good bebavlor Is If committed by a private citizen. The case 34. the limit of the judicial tenure, some method rested on the alleged attempt of the respond The Import of the Ritter trial Is empha of removal must be available where a judge ent to commercialize his potentiality as a sized by the fact that various Senators filed breaches that condition of his olllce. That judge, but the facts would not have been wrl·tten opinions explalning their vote. All method is Impeachment. Even though this suftlcient to support a prosecution for Senator Key Pittman, who voted to acquit construction has been criticized by one bribery. Therefore, the judgment of the Sen on t he first six Articles said : writer as being logically fallacious, See Simp ate In this case has forever removed from "r voted for Article 7 because It contains son, Federal Impeachments, 64 U. of Penn. L . the domain of controversy the proposition a general charge that the judge, by reason of Rev. 651, 806-08 (1916). it seems to Qe the that the judges are only impeachable for biB conduct In the various matters charged, construction adopted by the Senate In the the comml86lon of crimes or misdemeanors has raised a substantial doubt as to the Integ. Archbald and Ritter cases. Even Simpson. against the laws of general appl~catlon ." rity of the judge and destroyed confidence who critiCized the approach, reaches the lame Brown, The Impeachment Of the Federal 1h such court and in the elllciency of the result because he argues that "misdeme'lUlor" Judiciary, 26 Harv. L. Rev. 684, 70f-05 (1913) judge." Ritter Proceedings 644. must, by definition, Include miSbehavior In (Emphasis added). olllce. Supra at 812-13. 17 Inablllty would more often give scope to per In determining what constitutes impeach sonal and party attachments and enmit y t han able Judicial misbehavior, recourse must be a dvance the In t erest of j udges In t h e publlc had to the previous Impeachment proceed Rifkind Memorandum No. 1 good." Ings. Those proceedings fall mainly Into two In short, In or d er to preserve judicial In categories, misconduct In the actual adminis depend ence, provision was made by the tration of justice and financial Impropr.1etles Founding Fathers to permit rem oval of off the bench. Pickering was charged wit h MEMORANDUM ON IMPEACHMENT 0 1' F'l:DJ:JlAL judges only when t hey could be shown to holding court while Intoxicated and with JUDGES have committed criminal offenses. Broad er mlshandllng cases. Chase and Peck were baEes for r emoval were rejected as being charged with misconduct which was preju A careful examination of the Constitution Itself, of the materials reflecting the Intent too dan gerou s." dicial to the Imp'artlal administration of jus And In the summer of 1789, In t he d ebate tice and with oppressive and corrupt use of of Its draftsmen, and of the records In actual Impeachment proceedings 'clearly demon on establishing the first executive depart their office to punish Individuals critical of ment, Congressman Livermore of New their actions. Swayne, Archbald, Louderback strates that federal,judges may be Impeached only upon charges of "Treason, Bribery, or Hampshire observed that federal judges and Ritter were all accused of using their "hold their offices during good behavior, they office for personal profit and with various other High Crimes and Misdemeanors." There Is nothing In the Constitution or In the uni have an Inheritance which they cannot be types of financial indiscretions. Engllsh was form practice under the Constitution to sug divested of but on conviction 01 some orime." Impeached both for oppressive misconduct gest that federal judges may be Impeached 4 Elliot's Debates, at 365. (EmphaSis sup ~hlle on the bench and for financial mlsdeal for anything short of criminal conduct. And Ings. The impeachment of Humphries Is the plied.) only one which does not fall within this pat the prohibition against ex post facto laws, Moreover, In 1802 Senator Stone of Nort.h the notice requirement of due process, the Carolina delivered a classic argument, which tern and the charges brought against him protection of the First Amendment, and probably amounted to treason. See Brown, appears to have persuaded the Senate which considerations of "separation of powers" pre was then considering abolition of certain In The Impeachment Of the Federal Judiciary, vent any other standard. 26 Har. L. Rev. 684, 704 (1913). ferior courts, that the Constitution provides for removal of judges by Impeachment only While various definitions of Impeachable t. THE CONSTITUTIONAL PROVISIONS misbehavior have been advanced, the unify In t,he case of hl~h crimes and misdemeanors, As Thomas Jefferson noted In his "Manual and t.hat accordingly judges might be guilty Ing factor In these definitions Is the notion of Parllamentary Practice," "the provisions of that there must be such misconduct as to of lapses from "good behavior" for which the Constitution of the United States on the they cannot be Impeached. In the Senator's cast doubt on the Integrity and 'Impartlallty SUbject of Impeachments" are found ex words: of the Federal judiciary. Brown has defined clusively In Article I ,. Sections 2 and 3; Ar that misbehavior as follows : "If the words, Impeachment of h igh crimes ticle II, Section 4; and Article III, Section 2. and misdemeanors, be understood accord ing "It must act directly or by refiected in Article I, Section 3 provides that the House fiuence react upon the welfare of the State. to a ny construction of them h it herto re shall have the "sole Power of Impeachment," ceived a nd established, It will be found , that It may constitute an intentional violation and that the Senate shall have the "sole of positive law, or it may be an official dere although a judge, guilty of high crimes and Power to try all Impeachments." Article II, misdemeanors, Is always gu11ty of misbeha v liction of commiSSion or omission a serious Section 4 provides that "the President, Vice breach of moral obllgatlon, or other gross Iour In office, yet that of the variou s species PreSident, and all clv11 Officers of the United of misbehaviour In office, which may render Impropriety of personal conduct which, in Its States, shall be removed from Office on Im natural consequences, tends to bring an office It exceedingly Improper that a judge shall peachment for, and Conviction of, Treason, continue In office, many of them are neither into contempt and disrepute ... An act or Bribery, or other high Crimes and Misde course of misbehavior which renders scanda treason, nor bribery, nor can they be proper ly meanors." dignified by the appellatloh of high crimes lous the personal life of a public officer shakes Section 2 of Article III provides tha.t "the the confidence of the people In h is adminis and misdemeanors; and for the Impeachment TrIal of all Crimes, except In Cases of Im of which no precedent can be found ; n or tration of the publlc affairs, an d thus Im peachment, shall be by Jury." pairs his official usefulness." Brown , supra at would the wor ds of the Constit ution justify 692-93. Note that Jefferson did not Include thE such impeachment." 11 Annals of Congo 72 As simpson stated with respect to the out provision , found In Article III, Section I, (1802) come of the Archbald Impeachment: that federal judges are to serve "during good On Apr11 9, 1970, Assistant Attorney Gen "It determined that a judge ought not only Behavior" among the provisions relating t o eral William E. Rehnqu lst testified before be impartial, but h e ought so demean him the Impeachmeilit power.' Senator Tydings' Subcommittee on Impr ove self, both In and out of court, that litigants It. THE DRAFTSMEN'S INTENT ments In Judicial Machinery, and said of Sen will have no reason to suspect his Impartial Tile records of the Constitutional Conven ator Stone's argument: Ity and that repeatedly falJlng in that re tion reinforces J efferson's conclusion that "The fact that It was persuasively set forth spect constitutes a 'high misdemeanor' ill Impeachment of federal judges Is to be con and really not refuted on t h e floor that early regard to his office. If such be considered the filled to cha.rges of "Treason, Bribery, or suggests to me that this Is probably con sist result of that case, everyone must agree that other high Crimes and Misdemeanors." In ent with the view of the framers on the it established a much needed precedent." the Convention, impeachment was discussed matter." (Tr. 9) Simpson, F ede,'al Impeachments, 64 U, of principally with reference to removal of the Ill. THE PRACTICE Penn. L. Rev. 651, 813 (1916) , President. Early drafts provided for "Im It has been our practice under the Con John W. DaviS, House Manager in the Im peachment and conviction for malconduct or stitution to Impeach only on the basis of peachment of Judge Archbald, defined ju neglect In the execution of his office," and charges which state criminal offenses. dicial misbehavior as follows: later for "malpractice or neglect of duty," The first Impeachment case, that of'Judge "Usurpation of power, the entering and 1 F arrand, Records of the Federal Conven John Pickering In 1803, although brought enforcement of orders beyond his jurisdic tion, pp. 89-90, 226, 230, 236. Later, the draft and decided on purely pOlitical grounds, 11- tion, disregard or disobedience of the rulings language was changed to focus more nar lust rates how wide was the recognition that of superior trIbun.a.ls, unblushing and ·no rowly upon charges of "treason, bribery or torious p&l1tlaUty and favoritism, Indolence impeachmen t was con fined t o "Treason, Brib corruption." 2 F arrand, pp. 185-86. It was ery, or ot h er high Crimes and Mlsdem ean and neglect, are all violations of his official thereafter suggested that the mOTe general ors"- t he criminal offenses enumerated In oath . . . And it Is easily possible to go phrase "maladmlnltratlon" be added. When Article II. Although Judge Pickering had further and imagine , , . such will1ngness to James Madison argued that "so vague a use his office to serve his personal ends as to been hopelessly insane for three years, was be within reach of no branch of t he criminal term wUl be equivalent to a tenure during an Incurable drunkard, and h ad miscon law, ,yet calculated with absolu te cer tainty the p leasure of the Sen ate," the general duct ed himself on the bench, t he leaders of to bring the court Into public obloquy and phrase was rejected In favor of "for other the effort to remove him felt It necessary to contempt and to seriously alfect the admin high Crimes an d Misdem ean ors against the couch their charges under the rubric "high istration of justice." 6 Cannon 647, United States." 2 F arrand, pp. 445, 450. When Crimes ' and Misdemeanors," 3 a n d to charge Representative Summers, one of the man an effo r t was made to Insert a separate jUdi him with three counts of w11lfully violating a agers In the Louderback Impeachment gave cial removal prOvision In Article III, fol Federal statute relating to the posting of this definition: lowing t he words "good beha vior ," It was re bond In certain attachment situations, and "When the facts proven with refer ence to jected upon tbe opposition or MorriS, the mlsdemea!l,.ors of publlc drunkeness and a respondent are such as are reasonably cal Randolph, Rutledge and W11son. 2 l' arrand, blasphemy. They not only belleved that culated to arouse a substantial doubt In the 428, 429. strong evidence of Insanity, dr u nkeness and minds of the people over whom that respcnd That It was the Intentiono f -the -Founding judicial misconduct wer e Insufficient to jus ent exercises authority that he Is not brave, Fathers to deal with Impeachment of judges tify impeachment, but because they viewed candid, honest, and true, there Is no other excl usl vely under the language of Article II impeachment as requiring proof of crim inal alternative than to remove such a judge from Is made clear by Ham11ton's writings In the conduct they found It necessary to atteinpt the bench, because wherever doubt resides, F ederalist Papers, o'ur most authoritative to exclude evidence of Pickering's Insanity cont!de~ce cannot be present." Louderback guide to the meaning of the Constitution. "only from the fear, that If insanity should Proceedings 815, In No. 79, Hani11ton wrote that It was the be proved, he cannot be convicted of high IV. CONCLUSION Intention of the draftsmen to make federal crimes and misdemeanors by acts of decisive judges more Independent than were any m adness." I MemOirs Of John Quincy Adams In conclusion, the history of the constitu state judges, and that-- 299-300. tional prOylslons relating to the impeach "The precautions for their responslb1l1ty ment of Federal judges d emonstrates tha t The next, and most Important, j udicial are comprised In t he article respecting Im I'm peachment case n ot only affirmed t h e rule only the Congress has the power and duty to peachments... . This Is the on ly provision remove from office any judge whose proven that Impeachment Is confined t o "h igh on the point which Is consistent with the conduct, either In the administration of jus Crimes and Misdemeanors," but made It clear necessary Independence of the judicial char tice or In his personal behavior, casts doubt that t o warrant impeachment actual crimi on his personal Integrity and thereby on the acter, and Is the only one which we find nal ~du_ct must be shown. The cas.: iu Integrity of the entire judiciary. Federal In our own Constitution with respect to our volved a major effort by the Jeffersonians, judges must m ain tain the highest standards own judges." newly In power, to remove Associate Justi<:e of conduct to preserve the 1,ndependence of Hamilton proceeded to indicate that there Samuel Chase from the Supreme Court. As and respect for the judicial system and the had been a dell berate decision not to make Senator Giles Of Virginia openly avowed, the rule of law. As Representative Summers judges Impeachable "on account of Inab11- impeachment of Justice Chase was to be the stated <'urln" the Ritter Impe!lChment: ity." He argued that "an attempt to fix the first step by the Je~ersonians in the removal "Where a judge on the bench, by his own ho' ndary between the regions of ab1l1ty and of all the Justices appointed by prior ad conduct, arouses a substantial doubt as to ministrations, Including Chief Justice John his judicial integrity he commits the high Marsh all-the principal target. est crime that a judge can commit under 'As Is Indicated later In this Memnrandwn, Chase was impeached In the House by a the Constitution." Ritter Proceedings 611 the settled construction of the Constitution vote on straight party llnes, Jeffersonians (1936) . Is to confine Impeachment to charges of against Federalists. Each of the eight articles Finally, the application of the principles "Treason, Bribery, high Crimes and other of the Impeachment process Is left solely to Misdemeanors," and without regard to the 2 Justice Story, writing a ha lf century later the Congress. There Is no appeal from Con "good behavior" provision. This Memo but relying not only on ,Ham1lton but also gress' ultimate judgment. Thus, It can fair randum has no bearing upon .the present on Mr. Justice W1lson's lectures of 1804, ly be said that It Is the conscience of Con debate between those who believe that im agreed, see 2 story, Commentaries on the gress--actlng In accordance with the con peachment for high crimes and misde ConstitUtion, § § 1624-26, 1631. Justice W1l stitutional llmltatlons-which determines meanors Is the exclusive avenue to remove son had written of Federal judges that "they whether conduct of a judge constitutes mis judges, and those who contend that the may be removed, however, as they ought to behavior requiring impeachment and re Constitution permits remedies short of im be, on conviction of high crimes and mis moval from office. If a judge's misbehavior peachment to deal with lapses from "good demeanors," Is so grave as to cast substantial doubt upon behavior" which do not amount to grave h is Integrity, he must be removed from office criminal offenses. With regard to this con • The removal of Pickering was sought, not regardless .of all other considerations. If a troversy, see Kurland "Constitution and the because of his incapacity, but to test the judge has not abused his trust, Congress Tenure of Federal Judges: Some Notes from procedure for purging the Federalist judges. has the duty to reaffirm public trust and History," 36 ChI. L.Rev. 665 (1969); Memo As the Jeffersonian leader, Senator G1les of con.t!dence In his actions. randum on the Constitutionality of a statu Virginia, asserted, "We want your offices, tor Respectfully submitted, tory Alternative to Impeachment, Submitted t he purpose of giving them to men who will BrrHEL B . KELLEY, by \he Senate Subcommittee on Improve fill them better." IDstorlan Henry Adams ob DANIEL G . WYLLIE. ments In Judicial Machinery, printed In tbe served it was "an Infamous 8jld certainly an Oomcnsaional Record for .June 5, 1969. ll1egal convictltm." S Beveridge, Lile 01 John Varsh41l, p . 157, 1"11. 18 of Impeachment dealt with his omclal con case, the articles of Impeachment charged duct during judicial proceedings and none acts amounting to "High Crimes and Mis In office," ana including' "Incom e t ax eva etated a criminal offense, although each one demeanors." Consider them case by case: Bl on s" with respect to Unlawft4! !nco:u.... captioned "high crimes and mlsdemea- IV. CONCLUSION waa A. Charles Sw ayne (District Judge-N.D . nors"-the House did not then, and never haa Fla. 1!)03 ): Judge Swayne was formally The constitu t ional language, In plain since, attempted formally to Impeach for oharged b y the House with three count s of terms, confines Impeachmen t to "Treason, want of " good behavior:' He was ch arged, for falsely certifying to excessive t ra veUng ex example wit h the "high crimes and misde Ed""r )" or other high Crimes and Misde p enses and t hereby unlawfully obtaining m ec nors." The h istory of those proviSIOns meanors" of usi ng Intemperate language In m on ey from the United St t aes, commit lnatructlng a grand jury, In conducting a r einforces t heir plain meaning. Even when t ing a "high crime and misdemeanor In his the JelIerson lans sought t o purge t he federal trial In an arbitrary way, and In unreason s aid office." He was also charged with t wo a bly ref u sing to excuse a juror from jury ben ch of all F ed eralist judges, t hey felt com counts of unlawfully appropriating to h is duty.' pelled t o at least assert that their p oll tical own use a rallroa d car for t he benefi t of him victims were r,ullty of " high Crimes and Mls Chase's Senate trial turned Into a great self; h is f amlly and f riends whlle the r all constitution al debate over wh ether a federal d eamean ors." T he unsu ccessful attempt to r oad involved was u nd er the receiver ap r emove Justice Chase firmly established the judge m ay be removed on charges wh ich do pointed by h im . In the Sena te t here was not amount t o " high Crim es and Misdem ea p ropcsltlon that impeachm ent Is for crim much d ebate over wh ether t he high crimes i nal offenses only. and Is not a "general In n ors." F or the J effersonians, George W ash and misdemeanors charged had to have been Ington Ca mpbell of Tennessee u nsuccessfully quest" Into the behavior of judges. There commltted In t he disch arge of S wa yn e's of has d eveloped the consisten t practice, r lg con t ended that Impeachment was "a k ind of fi cial duties-but no d ebate a bou t t he n eces an Inquest Into t he conduct of an officer ... oro usiy fol1owed in every case In this cen sity of estab Ushing actual crlm lnallty, wh ich tury.of Impeaching fed eral judges on ly when and t h e effect t h at his c o ndu · ~t ... m a y h ave was conceded . Swayne was acquitted In the c rtmtnal offenses have been charged . Indeed, on SOCiety." Sen ate. F or Chase an d the F ed er allst s, coun sel ar the House has n ever impeached a ju d ge ex gt:ed su ccessfully that Impeachment could B. R obert W . A rchbald (Circuit J u d ge c ~ p t with r e 3 p ~ ct t o a " hl,;:h Crime" or " Mis only be had for "an Indicta ble offense," not Commerce Court 1912) : Archbald, a former d emeanor ." Characteristically, the baSis for Ing t h at "high Crimes a nd Misdemea n ors" d istrict judge and later circuit JUdge as impeachm ent h as been t he sollcltln g of wer e t echnical legal t erms: signed to t he Commerce Court (which h ad b ribes, selling of votes, m anipulation of re " Well u n d erstood and d efin ed In la w .... jurisd iction over ICC orders ), was formally ceivers' fees, mi8approprtat ion of proper ties cha rged with Inducin g railroad s wit h cases In receiversh ip , and wlllful Incom e tax eva " A mlsdem eancr or a cri m e . . . is an act s ien . com mitted in violation of a publlc law either p ending before h im to sell or lease to him forbidd in g or comma nd in g it . By t his test, certain coal prop erties; wit h accepting $500 As Ham llt on noted in the F ederalist Pa let the r espondent . .. stand justified or from a coal oper ator for seekin g t o persu ade pers, this stringen t · standard for Impeach condemned." 3 Beveridge, L ife Of J ohn M ar a n oth er r ailroad with a m atter before h im III ' n t makes the u nwieldy procedure un shall, p . 199. to lease cer tain coal properties to the op P. '3, '!able to d eal with such problems as dls The Nation 's most distin guished lawyer, erator; wit h generally speculating In coal auled judges. But that, accord in g to Ha mil Luther Mar t in of Maryland, on Chase's be prop er ties while a member of the Commerce t on , and Story as well, was the price t he h alf r eiterated the p r in ciple t h at only "in Court a nd with s el1!ng h is services to com Foun ding F a,th <:,rs d ellberately p aid to In dictable offenses" could s upport Impeach prom ise matters p endin g before t he ICC for s u re the Indepen den ce of the federal judici ment, ar guing that an y oth er Interpretation h is own p erson al prOfi t . Wit h respect to h is ary. If federal judges commit grave crimes was barred by t h e ex post f acto clause of t he prior service as a d istrict judge, he was they may be Im peach ed. If not, they are n ot Constitution. 3 Beveridge, Marshall, p . 202. charged wit h "accep ting" loans from lawyers subject to . Im peach ment. I n consequence, In r espon se t o t he cha rge t h at Ch ase h ad a ~ld Ut lgan t s who h a d cases pending before whlle t h e f ed eral Judiciar y h as over the years given an Infia m mator y gra nd jury Instruc him . Archbald, wh o admitted t h e factual s uffered a few judges who were u nable to t ion with the int ent of stirrin g "the good b asis for t he cha rges but denied any crim perfor m their duties,' since 1805 It h as been p eople of Ma ryland against t h eir st ate gov ina l inten t, was con victed on five counts. f r ce from pOlitical purges and from harass ernmen t , and con stitution," counsel asser ted Sen a t or Elihu R oot, jo:n ed b y Sen ator Henry ment d i r e~ ted at the b eliefs, sp eech e6 a nd Chase's r ight to freed om of ~ p e~ c h . He ask ed Ca b ot Lod ge. explain ed t h at h e h ad voted to w rit ings of individual judges. In con se the Sen ate : con vict Archbald- quencc. it has n ot been n ecessary to test " Is It n ot lawful for an aged pat riot of "Because I find t hat h e u sed t he p ower and L u ther Ma rt in 's argumen t In t h e Chase case t h e Revolution to warn h is fellow-citizens of in fi u ?nce cf his offic e a. jud ge cf t h e C ;:> lI ·t that t he ex post f acto clause of the Constit u d a n gers, b y which he supposes t h eir liber of C o ~ erce to s ecure f avors of money value t Ion forbids legislatIve p u nishment for con ties and happiness to be t h reatened?" for himself a nd his f riends from railroad d uct n ot defined In ad vance as punishable , or The Sen ate was asked to d ecide whet her compan ies. som e of wh ich were Utlgan t s In to m ~ a " ur e Impeachment for a judge 's beliefs, Chase's a ppoInt men t to the bench d ep r ived h is c :>urt and a ll of which were under t he speeches an d writ ings again st the fiat pro h im of t he " Ilberty of sp eech wh ich belon gs r egulation of t he Intersta te Commerce Com hibition con tained In the F Irst Amendment to every citizen?" 3 Beverid ge, Mar sh all, p . mission , subject t o the review of t he Court of t h at Congress sh all n ot a bridge f reed om of 206 .- Commerce . . speech. H istor y h ..s, t herefore, d emons trat cd "I con sid er this cou rse of con d uct and th ~ wisdom of .t he ch'oice made by t h e Fvund The t urn in g p oint came whe n t h e lead I r g F athers. p rosecutor openly conced ed t hat Im p each each instance of It, to be a h igh ~ r i m e Re2p ectful1 y submitted , m ent wa.~ a "criminal prosecution." Alt h ough and misd em eanor. " I h ave vot ed 'not guilty ' upon t he ot h er S I MON H . R IFKINO, controlled b y J efferso n ians '(25 to 9) , shaken Counsel for Mr. J ustice D ouglas. b y t h e d ebat.e a nd by t he defenses resting a rticles. because while m ost of them involve o n the ex post f acto and free sp eech cla u ses, lmpraper condu ct, I d o n ot con sid er that t he t he Senat e on March I , 1805 acquitted Chase, a c ts p roved are high crimes and misde .,' In the Mulford Realty matter, he had mean ors .. . ." puttin g beyond doubt th" p rinclpl" that .... ritten to a former client to Indicate that he Impeachment was to be for criminal c.lfenses C. George W . En glish (Distr ict J u dge-E.D. would continue In the case while on t he only. No. 1925) : J ud ge EngHsh resigned a fter be banch and to demand a $2000 fee for him :::>0 ii. ha.~ !"€'mainpd in our h istor y. T ne mg Impeached but befor e t rial In t he Sen a te self-which was not report ed to his former p oint was driven h , ln~ dur lll~ t h e impeach on charges of personal corru p tlcn in t h e law partner. He earned h is fee. From anot her ...... ont. ('If p,. P c:!~ ~!'t _~"!~!"~'."., .! .... !": !"~::: ::~ ~£..&. 18 67 h andling of ban k r u p tcy cases , t o h is own cllent, he obtained $7500 for legal services In for a lleged "high Crimes and Misdemeanors." p e!'oonal p rofit and that of Char les B. connection with several real estate t ran sac T h e former Justice Curtis su=arized John Thomas. a referee In ban k r u p tcy with whom tions. Those fees were deliberately not re son's successful defense as resting on the h e was charged with conspirin g. p or t ed on his Income tax ret urns. proposition : D . H arold L. L otuler back (D istrict J udge • Indeed, a solid majority of the Senate " That when the Constitution speaks of N.D. Cal. 1932): J udge Louderback was' for foun d him guilty of all but two of the spe 't reason, bribery, and other high crimes and m ally ch arged by the House with imp roper cific charges of criminality. misdemeanors,' It refers to, and Includes conduct in t he a ppoin tment of receivers and only, high criminal off.enses against the r eceivers' attorneys in backruptcy and re United States, made so by some law of thE organ ization cases. In particular , It was U' ited States existing when the acts com charged t hat Louderback h ad im p r operly a p pla ined of were d one, and I say t hat t h is is p ,:nnted M a r ecei ver t h e son of a CaUfornia plainly to be Inferred from each and every ::;e~at o r , t u Wi' Ulli. h e o ':;cc. hi~ jnd lcial ap .. p r ovision of t he Constit ution on t he sub n :Hn tment. L oud e rbac k was R.couit,loed . ject of impeachment." 1 n 'lal Of A n drew E . H alsted L. R itter (Distr ict Judge-- S .D. J ohnson., p . 409. F la. 1936) : Judge Rit ter was Imocachermally charged wit h " high crimes an d mls OF MICHIGAN " ral ju d ges h ave been Impeached.· In every d cmeanors," including: "corruptly and u n IN THE HOUSE OF REPRESENTATIVES lawfully" reccivi ng ~4 500 ou t of a 575.000 receiver fee h e imp roperly ordered to be p aid Friday, August 14, 1970 t o his former law part ner, after an:>ther 'Chase was widely r egarded as one of the Mr: GERALD R. FORD. Mr. Speaker, m ost a ble members of the Supreme Court. j udge had set a much lower fee; commit t ing on August 5, I forwarded to the distin He h ad been a delegate to the Continenta l t he "high m isdemeanor" of contlnuina t c p ractice law and to receive fees for such p';.ac. guished chairman of the Committee on Congress, a signer of the Decla r ation of In t lce while on t he bench; 7 wlllful faHure t<. the Judiciary and of its special subcom dependence, a member of t he Ma r yland Con report $17,300 in In come on h is F ed eral In vention t o ratify the Constitution and Chief mittee, Mr. CELLER, investigating the im come tax retu rn s for 1929 and 1930; and con Justice of his state's Supreme Court. 3 Bev peachment of Associate Justice William spiracy In a champer tou s foreclosure p ro O. Douglas, a comprehensive legal eridge, Marshal!, pp. 184--185. c eeding. Althou gh t h e Sen ate n arrowly failed G According to then Professor F rankfurt er, memorandum on the impeachment proc t o con vict h im on t h e sp ecific crimin al polltical speeches by Just ices to grand jurieS ess as it relates to the Federal JudiCiary. (In those days the Justices "rode circuit " ) charges, it did con vict on a blan ket charge wh ich asserted t h at he was gullty of "h igh This study was independently prepared were no rarity around 1800: crimes and misdemean ors In offi ce," specifi at m~ request by the Detroit, Mich., law " They utlllzed charges to the grand juries cally including "in come tax evasion ." firm of Dykema, Gossett, Spencer, Good as opportunltles for popula r education, Jay, Cushing, Wilson, Iredell, all Indulged in the Some academics h ave b een rIusled by t he now and Trigg. The full text of this legal practice. . . . Having a Federalist flavor h eated statem ents of d isgru ntled suppor ters memorandum, together with related cor [the speeches] promptly aroused poUtlcal op of Impeached judges t o conclude that they respondence, appears in the CONGRES position," Frank1urter & Landis, Business Of h ave been impeached for less than crlmlnal SIONAL RECORD of August 10 at pages the Supr eme Court, 20-21 (1927). offenses. Professor Cor win , for example, re H8038 to H8043 inclusive. hes upon the A r ch bal d and R itter cases for the propOSition that In t his century the Under previous permission, I am here • After Chase's acquittal, Impeachment was meaning of "h igh Crimes and Misdeamean by placing in the RECORD an important u sed against judges in only two Isolated In ors" has broadened to Include elements of addendum to the basic memorandum s La nces before 1900. In 1830 Judge Peck was "good behavior." But Archbald was charged consisting of a letter from Dykema, Gos impeached for "high misdemeanors In of by the House with ext orting bribes f rom lltl sett, Spencer, Goodnow and Trigg, dated fice", but acquitted on a charge of having gants before his court, wit h Interfering In August 12, 1970, commenting particular harshly sentenced a lawyer for contempt cases before the ICC for a monetary com ly upon the legal memorandum prepared (on e day In jaU and 18 months suspension pensation, and other "corrupt conduct" for from practice.) The Impeachment and trial personal gain. R it t er was formally charged by the attorney for the accused sub of Judge Peck focused on the UlegaUty of his with receiving illegal kickbacks, with the mitted to the special subcommif;tee on action and his alleged guUty Intent, not his mlsdeameanor "of pract icing law" while on May 18, 1970. The text of the commen fitness to hold office. Judge Humphreys was the bench, with wlllful Income tax evasion tary follows: Impeached and convicted in absenti a In and with conspiracy; and having admltted 1862 for acts amounting t o treason, 1'llclud receiving the fees Involved and not reporting Illg aiding and abetting armed rebe!lIon them on his Income tax returns In violation a gainst the United States. of law, he W?~ convicted under an artlcre charging "high crimes and misdeameanors 19 "'I consider this course o! conduct, and the first three articles chargad violations of each Instance of It, to be high crime and mis statutory law, although such violations were Kelley Memorandum No.2 demeanor. not Indictable. Article four charged open and " 'I have voted 'not gullty' upon the other notorious drunkeness and public blasphemy, D~K:r.MA, GOSSETI', SPENCER, GOOD articles, because while most of them Involve which 'Would probably have been punishable NOW & TaIGG, Improper conduct, I do not conSider that the as misdemeanors at common law. In the case Detroit, Mich., August 12, 1970. act s proved are high crimes and misdemean of Judge Humphreys, articles three and four Hon. GERALD R . FORD, ors .. .' " . (End of Rifklnd quote.) charged treason against the United States. House Minority Leader, It is noted that the Rltklnd Memorandum, The offense charged In articles one and two The U.S . Capitol, relying solely upon Senator Root for its probably amounted to treason, inasmuch as Washington, D .C. inferences, Indicates no source for the Root the ordinance of secession of South Carolina DEAR CONGRESSMAN FORD : Several months statement and the Root quotation was clear had been passed prior to the alleged seces ago, you requested that we prepa.re a memo ly taken out of context. I repeat that Rlfklnd, slonary speeches of the respondent, and the randum concerning the Congressional Im as bis sole authority, relies upon remarks of offenses charged in articles five to seven, In peachment Power as It relates to the Federal the illustrious Senator Elihu Root. Carefully clusive, sa vored strongly of treason. But, it Judiciary. You asked that our analysis be ob rea d the quoted language does not in fact Wtll be observed, none of the articles ex jective, non-partisan and unbiased and that support R ifklnd's proposition. Other action hibi ted agai nst Judge Arcllbald charged an our conclusions be without regard to any by Senator R oot establishes the very con i~ictable Offense, or even a violation Of pasi pending controversy involving the Federal trary; tha t S en a t or Root considered the Arch t,ve law. Indeed, most of the specific acts Judiciary. I and my associate D . G . Wyllie bald case as "forever removing from the do proved in evidence w ere not intrinsically researched the problem thoroughly and' on main of controversy the proposition that wrong: and would have been blameless il June 23, 1970, we delivered that memoran judg es are only impeachable for the commis comm,tted by a private citizen. The case dum to you (the '~ Kelley Memorandum" ) . sion of crimes or misdemeanors against the rest ed on the alleged attempt .of the respon We reviewed each of the reported proceed laws of general a pplica tion", and as estab dent to commercialize h i s pootentiality as (l ings where federal judges were impeached, lishing the proposition that a Federal Judge judge, but the facts would not have been su j we discussed each proceeding and we con may be impeached for acts " that would have fietent to support a prosecution for bribery . cluded on the basis of precedents and au been blameless if committed by a private Therefore, the judgment Of the Senate in thorities that conduct of a F.ede·ral Judge citizen". It was none other tha n Senator this case has forever removed from the properly subject to impeachment need not be Root who on January 13, 1914 succes'llully domain Of controversy the proposition chat "indictable" or " criminal" and might even moved tha t a H a rvard Law Review Article the judges are only i mpeachable for the cum consist of conduct which would be " blame be printed as a public d ocument (Senate mission Of crimes or misdemeanors again st less if committed b y a private citizen" D ocument No. 358) terming it "very Instruc the laws Of general application. The "as p. •.• Since delivering the Kelley Memora ndum t ive" and "of very great value when Ilaken in instructiv e, and it will go down in the an to you, we have received a document ent itled connection with the proceedings In the Arch nals of the Congress as a great landma rk oi "Memorandum on Impeachment of Federa l b ald case" (Cong. Rec. 1914, p . 1561). The the law.''' (Emphasis added.) (End of Gan Judges" prepared by Simon H . Rlfkind as a ction of Senator Root, and the part of t be non quote.) counsel for Mr. Justice Douglas (the "Rif article dealing with the Issue with which I leave to you and any other falrlll.inded kind Memorandum" ) and submitted to the we are concerned here W!U: adopted as the and disorimlnatlng reader the judgment as Celler Subcommittee on May 18. The Rifklnd highest precedental authority by the House to whether or not the Archbald case did not Memorandum purports to establish the of Representatives. forever remove "from lthe domain of contro-' propoSition that "There Is nothing in the The article that was printed as Senate versy the proposl1:l10n that judges are only Constitution or in the uniform practice Document No. 358 ~as wrl ~t en by Mr. Wrisley impeachable for the commission of crimes or under the Constitution to suggest that Eed Brown, Special Assistant tQ the Attorney misdemeanors aga.ln~t the laws of general eral Judges may be impeached for anything General, who conducted th&orlglnal investi IWplicatlon," and did not establish that fed short of criminal conduct." (Rlfk ind Memo gation which resulted in the Impeachment 01 etal judges mag be Impeached for acts " not randum, p . 1. Emphasis In original.) Judge Robert W . Archbald and was desIg intrinsically wrong" and which "WOUld have On August 7 you requested that we review nat ed 'lY resolution of the managers on the been Qlamele9s if committed by a private the R;fkind Memorandum and advise you If p a rt of t~e House of Representatives to assist citizen". If this be so, what i~ there In ti. at Memorandum in any wa y a ffects th" In the trial of the casP. before the Senate. Archbald to suppor~the Rifkind thesis that op in ion s a n d conclusions expressed in t he The article is entitled "The lmpeachment of federal judges may not be impeached for any K ~ lle y Mem o·ra ndum. After a ca reful r eview, the Federal Judiciary", 26. Har. L. Rev. 689 conduct "short of crimina! conduct"? we con clude tha t there Is n othing In t he (1913). In this article Brown discusses In Rifkind Memorandum that In a ny way alte rs Following Archbald there were three im detail all of the six Impeachment proceed peachments, English (1926), Louderback the opinions and.... conclusions expressed in Ings against federal judges which had oc t ;"e K elley Memora ndum. In fact , the ref,' r (1933) and Ritter (1936) .' English resigned curred prior to 1913, the date of the article. and Louderback was acquitted and as Brown enees and sources of m ateria l in the Rlfkincl Brown states at page 704: "The impeach M ~:n"r " n cl um led u s to a uthorities not in stated these "are of little value as prece men ts that have failed of conviction are of cl ud ed in t h e K elley Mem orandum tha t co:: dents". Ritter is quite another matter-for fi r m b eyond a n y reasona ble d oubt the cor lit tle value as precedents because of their Ritter was convicted. If there could be the r e:,t :1ees of the con clucion s reach ed in t he c!ose Intermixture of fact and law, which slightest doubt as to the precedent estab makes It practica lly Impossible to determine o K elley Memorandum and t he absolute In lished In Archbald that impeachment Will va lid it y Of the prop osit ion a rgued in the whether the evidence was considered insuf ficient to support the allegations of the artl lie for non-criminal conduct by ' federal Rifltiu d Memorandum. We shall discuss judges, that doubt WIIB put to rest In the those a uthorities in this letter. cl c ~ or whet h er the acts alleged were ad judged insufficient in law to constitute im Ritter case. The Ritter conviction expressly The Rifklnd Memora ndum is to a con recognized that the judic1al tenure provision c peachable offens~ . " Prior to 1913, the date siderable degree grounded on historical In of the Constitut.1,Qn affords grounds of im accuracies. For. example, Rifklnd cla ims t hat of publication o('Brown's article, there had been six impeachments of Federal Judges; peachment for otller than criminal offeIlBe8. p ast Impeachment proceedings, notably that Specifically In the Ri·tter case, the first s1x of Justice' Chase, conclusively established three being acquitted (Chase impeached in 1804 , Peck impeached In 1830, and Swayne Artlcles'of Impelo.chmen.t alleged offenses that tha t Impeachment 'would lie on ly for "crim on their face appeared to be of a "rlmlnal inal conduct" or "criminal offenses". As we Im peached In 1904) and three convicted (Pickering impeached In 1804, Humphreys n aturA, On efl('h 01 t,hp<;1? -P.,1-f-""l" 'fIr~r: :1. tJ .. discussed at page 9 of the Kelley Memo quitted. The geventh Article of Impeachment r a ndum, the Chase Impeachment merely Impeached in 1862 and Archbald Impeached In 1912). Of the three impeachments result against Judge Ritter was phrased in genera! established t h a t impeachment was not to terms Of m isconduct only and It was only be a purely p artisan wea p on . Ing in convictions, Judge Pickering and Judge Humphreys did not defend. The only upon the seventh Article of Impeachment Rifklnd makes re'terence to impea ch ment that Judge Rit ter was found guilty. As set lII1~achment ~p tc 1913 re3ultlng In CCll proceedings against Preside nt Andrew John forth in the Kelley MeIl).orandum (pages 20- son. As the Kelley Mem omn dum clea rl y vlctlon (and during which proceedings th" entire subject matter WIIB concerned witt. 22)· the various written opinions of tbe Sen shows, different standards a re to be applied whether or not impeachment would lie fOl ators fi'Ied In that case confirm the conclu In the case of the Federal Judiciary. The non-Criminal offenses) was that of Judge sion that conduct on the part of a Federal tenure of office of t.he President Is not based Archbald which was concluded in 1913. The Judge need not const itute a criminal of upon "good behavior" as In the case of Fed fense to be impeachable and In fact, as es eral Judges and thus is in no wise an analogy Archbald case has been termed a "landmark" decision on the subject of whether impeach tablished In Ilrchbald, conduct is ImI1\lach as the decided cases involving the Fedp.J'al able that is non-criminal and even such con .111d lr.tary clearly demonstrate. ment will lie against a Federal Judge for noncriminal offenses and has been SO recog duct as "would have been blameless if com When Rifklnd attempts to support the ' nized by the House of Representatives In its mitted by a private citizen" is Imj>eachable. proposition that Impeachment of the Fed ow Precedents (Cannon's Precedents, Section The Impeachment Precedents alUl the con eral Judiciary will lie only for "crimi na! 457) .. We quote In its entirety that part of clusions to be derived therefrom as reflected conduct" he refers us to source material Cannon's Precedents dealing with Senator in Cannon establish, as stated by Cannon (and for authorit y not Included In the Kelley Root's motion and the extract from Senate "that the Archbald case removed from th~ Memorandum) which indisputa·bly estab Document No. 358 relating to the precise domain of controversy the proposition that lishes that the Rifklnd position Is completely judges are oniy impeachable for the com and utterly without foundation. Rifkind Issue concerning which there is such distinct variance between the Kelley and Rlfkind mission of crimes or misdemeanors against deals with the Archbald case at pages ·8 and the laws of general application" and the 9 of the Rltkind Memorandum. which in its Memoranda. We quote the entire extract as It appears In Cannon's Precedents: Ritter case, the only subsequent case involv entirety' reads as follows: "457. Summary of deductions dra wn from Ing successful impeachment of a Federal "B. Robert W. Archbald (Circuit Judge judgments of the Senate in impeachment Judge, supports this principle absolutely. Commerce Court 1912): Archbald, a former trials. The Ritk:1nd Memorandum airily dismisses district judge and later circuit judge as " The Archbald case r emoved from the do the principles established by the Archbald signed to the Commerce Court (which had main of controversy the proposition tha t and Ritter cases, the solemn recognition Jurisdiction over ICC orders), was formally judges are only Impeacha ble for the com given by the House of RepresentatiVes to the charged with Inducing railroads with cases mission of crimes or misdemeanors against principles in Cannon's Precedents and the pending be'fore him to sell or lease to him the laws of genera l application. virtually unandmous view of historians and certain coal properties; with accepting e500 "On January 13, 1914, on motwn Of Mr. other autp.orities supporting the prlnc1ples from 0. coal operator for seeking to persuade Eli hu Root, Of N ew York, (Emphasis added.) established In Archbald as announced ID another railroad with a .matter before him to a m onograph by Wrisley Brown, of counsel Cannon by stating: lease certain coal properties to the operator; on behalf of the m anagers in the impeach ''Some academics have been misled by the with generally speculating in co..al properties m ent t ria l of Judge R obert W . Archbald, was heated statements of disgruntled supporters whlle a member of the Commerce Court and printed as a public document. The following of Impeached judges to conclude that they with selling his services to comoromise mat is an excerpt: ters pending before the ICC for-his awn per have been impeached for less than criminal sonal profit. With " respect to his prior serv " 'The Impeachments that have failed of 0 offenses. Professor Corwin, for example, relies Ice as a district judge, he was charged with CQllvlction are of little value as precedents upon the Archbald and Ri tter cases for the 'accepting' loan& from lawyers and litigants because of their close Intermixture of fact proposition that In this century the mean who had cases pending before him. Archbald, a nd law, which m akes it practically Impossi ing of 'high crimes and misdemeanors' has who admitted the factual basis for the ble to det ermine whether the evidence was broadened to Include elements of 'good charges but denied any criminal intent, waS con s idered Insufficient to support the al behavior.' " convicted on five counts. Senator Elihu Root, legation of the a rticles, or whether the acts The Rltkind Memorandum neglects to re Joined by Senator Henry Cabot Lodge, ex alleged were adjudged insufficient In law to veal that virtually every learned student of plained that he had voted to convict Arch cOllBtltute Impeachable offenses. The action the Constitution since the founding ofo our of the House of Representatives in adopting bald- Government (and who were assuredly not .artlcles of impeachment in these cases has "'Because I find that he used the power just "disgruntled supporters. of impeached li ttle legal Significance, and the deductions judges") supports the c.oncluslons of the and infiuence of his office as judge of the which h ave been drawn from them are too Court of Commerce to secure favors of money Kelley Memorandum and denies the validity conjectural to carry much persuasive force. of Rlfklnd that oniy " criminal conduct" Is value for himself and his friends 'from rail Neither of the successful Impeachments prior road companies, some of which were litigants impeachable. Rifkind mentions the distin to the case of Judge Archbald was defended, guished RittetOcases but omits mention of In his court and all of which were under the and they are not entitled to great weight as regulation of the Interstal;e Commerce Com authorities. Inothe case of Judge Pickering, mission, subject to tlHl review of the Court of Commerce. 20 ples---aeparatlon of powers, the Independence of t.b.e judiciary, freedom of apeech, and tb" men who played a role In the drafting and other distinguished authorities who likewise ratification of the Constitution ItMllt. endorse those principles.' ImpermIssibility of ex post facto detenn1ua.. tlons.--.t.b.a.t It must not be al-lowed to I'le My May 18 memorandum was guilty c.f In conclusion, of the nine federal judiciary vall. nQ Such oml.salonil. CIting chapter anel verse It demonstrated that the debates at impeachments In this nation's history, there On MAy 18, I furni&hed the Subcommittee were four acquittals; two who did not defend the Constitutional Convention, Hamilton's wI.th an exteIl8llJVe and fully documented and one resignation (all proceedings lacking essays In the Federalist Papers, and state legal memorandum on the grounds provided ments by such contemporaries 6S' Jefferson, precedental value) and there Is the Archbald In the Constitution for Impeech·1ng Federal conviction Immortalized In Cannon's Pre Congressman Livermore, Senator Stone and judges. I there noted that the Constitution cedents, the Ritter conviction, Cannon and Justice Wilson decisively refUte the notion virtually every recognized authority to com ItseU confines Impeachment to '''I1reason, that Federal judges may be removed from pletely demOlish the RIfk1nd thesis that only :ijrLbery, or other high Crimes and Misde omce when a temporary legislative majori meanors," that lilt the Constitutional Con "criminal conduct" Is Impeachable. We ty concludes that they have not met the reiterate the opinions and conclusions ex vention .the Founding Fa.theT&-- led by James majority's then definition of "good be Madis:>n--expressly rejected a proposal to pressed In the Kelley Memorandum. havior." Respectfully, make judges Impeacha.ble for "misconduct" These essential source materials leave no or "ma.lad·mlnlstratlon," and that Madison room for the curious argument that the BETHEL B. KELLEY. explained that the proposal was rejected be "good behavior" clause or Article III was cause "so v·agtUe a. term will be equivalent Intended to define additional grounds for to a tenure during the pleasure of the Sen Impeaching Federal judges, grounds con 1 Wrisley Brown, Clarence Cannon, the dis a.te." tinguiShed House of RepresentatlvQS of the cedely not appllclllble to nonjudicial omcers. My memorandum noted that Thomas Jef At the Constitutional Convention, efforts United States In adopt ing Cannon's Prece ferson, In his Manual of Pe.rlla.mentary Prac dents (see Jefferson's Manual. 1969 ed. p . vi) to add an Impeachment provision to en tice, h1P.d conspicuously omLtted the "good force the "good behavior" clause failed, and and Senator Elihu Root, as discussed above; behavior" clause In enumera.tlng the con Rawle In his work on the Constitution (p. both Hamilton and Jefferson excluded Ar 211) ; stitutional provisions bearing on Impeach ticle III from any applicability to the Im ment. And I refen-ed .to Alexander Hamil Story on the Constitution (V. I, 5th ed. pp. peachment process. 584 and SectiOns 796. 799); ton's candid explanation In the Feaera/tst 3. Even With respect to the single source Papers that the aut hors of the Constitution. Cooley In his Principles ot ConstitUtional which the Kelley memorandum does ex Law-(p. 178); delLberately confined Impeachment ·to serious amine-past impeachment proceed·lngs "- crImes even at the prtce ot allOWll.ng unfit George Tickn01' Curtis In his ConstitUtional the results are extraordinarily shaky. The History of the United States, (V. I, pp. 481- judges ·to rema.ln on the bench-In order to author Is forced to concede that the attack 482) ; protect the Independence of t.b.e judiciary.' on Justice Chase was fought on the ground Watson In his Treatise on the Constitution, I observed that Congressman Livermore that Impe&cbment was avallalble only for (V. 2, pp.l034,1036-1037) ; of New Hampshire had stated In the very Violations of clearly defined IIIIWS , not to en American and English Encyclopedia of the first Congress-without dissent from Mem force the "good behavior" clause, and that Law (2nd ed .. V. 15, pp. 1066-1068); bers who had helped draft and ratify the the strict constructionists prevailed. Like Black In his work on Constitutional Law Constltutlon-tha.t Federal judges serving wise, he Is forced to concede that during the (2d ed. pp. 121-122) . " during good beha.vlor" could oniy be re Peck Impeachment, James Buchanan stated moved "on conviction of some crime." I that the Chase case had settled the prOipool referred t.he Subcommittee to the historic tlon ,that a jud!(" could only .be Impeached argument of Senator Stone In 1802 that only [or Y!ola.t1ng a clearly defined rule of law. September 14, 1970 clearly defined crimes, and not less serious The Kelley memorandum Is then compelled lapses from good behavior, could be the basis to fall back upon the cJa.lm .that in the 20th for Impeachment of judges. He stated, and century st:1ndards have loosened and that In IMPEACHMENT OF ASSOCIATE JUS was not disputed: that "the words of the several cases, particularly those Involving TICE WILLIAM O. DOUGLAS Constitution" would not justify Impeach Judge3 Archbald and Ritter, judges were ·Im ment of a judge who misconducted himself peached and convicted on charges which (Mr. GERALD R. FORD asked and but did not commit "Treason, Bribery, or amounted only to noncriminal ·Iapses from was given pennission to extend his re other high Crimes and Misdemeanors." I good behavior. marks at this point in the RECORD and to pointed out that such early constitutional The Archbald and Ritter cases prove no authorities. as Justice Wilson, one of the Im such propOSition. In both cases, &S. in every include extraneous material.) portant draftsmen of the Constitution, and other 1mpeachment voted by the House In Mr. GERALD R. FORD. Mr. Speaker, Justice Story agreed with this view. And I our Nation's history, the AI't1cles of Impeach in the CONGRESSIONAL RECORD of August noted that these materiels, pp.rtlcularly the ment charged the commiSSion of "high crimes 10, pages H8038 to H8043 inclusive, and Stone $peech, had led Assistant Attorney and misdemeanors," and allege specific crlm in the CONGRESSIONAL RECORD of August General Rehnqulst on April 9, 1970, to testify Inalconduct. Although one of Judge Arch 21, pages E7882 to E7886 inclusive, I before a Senate Subcommittee that Impeach bald's prosecutors later wrote a Ia.w .revlew have inserted for the infonnation of all ment was not a remedy avallable for enforc arti~le attempting to expand the Impeach Ing noncriminal lapses from good behavior. men·t power, there contending that Archibald Members certain legal memorandums I then reviewed each of the jud.lclal Im had been Impeached despite the 81b6ence of concerning the impeachment process as peachments In our history, noting that In criminal conduct, during the proceeding he it relates to the Federal Judiciary. I am every Instance the Articles of Impeachment and others saw the case In a quite different inserting herewith another exchange of adopted by the House had charged "high way. The House Managers, for example, re ",rguments in this important debate1:>e crimes and misdemeanors," that in every sisted a motion to dismiss In the Senate by tween Mr. Bethel Kelley of the Del;."Oit such case there was In fact alleged a viola insisting that "the said articles do severally law flrm in Dykema. Gosset, Sper.cer, tion of previously defined law, and that the set forth Impeacha.'ble offenses, high crimes, House had adhered to th-ls standard even and mISdemeanors as defined In the IOon Goodnow and Trigg, independently pre when It allowed Itself ·to be a par.ty to the stltutlon . ..." p.ned at'my request, and Judge Simon shameful attempted purge of Justice Chase. And 8enator3 ElIhu Root and Henry cabot T Rifkind, attorney for Associate Jus Finally, I reminded the Subcommittee that Lodge explained that t hey had voted to con . 1l,e .... ,lliam O . D:lIlglas: to Impeach for alleged noncriminal lapses vict Archbald on several counts of securing from good behavior would raise the most money and other favors from litigants .In his serious problems with respect to separation court ,bec:1use each such Instance was a "high of powers, ex post facto determination, and crime and misdemeanor." They explained Rifkind Memorandum No.2 freedom of speech. No canon of construction they had voted to acquit on thooe counts permits a reading of the Impeachment clause whIch were not shown to be "high crimes which would vlola.te these even more funda and m1sdemeanor." O' UL, WEISS, GOLDBERG, RIFKIND, mental provisions of the same document. I j ildge Ritter was charged with six specific counts of criminal conduct, Including "cor WHARTON & GARRISON, advanced the opinion that an Independent ruptly and unlawfully" receiving kickbacks, Washington, D .C., August 18. 1970 judiciary wlll not long survive such an In the "high misdemeanor" of practicing law Han. EMANUEL CELLER tel'pretatlon. 1 while on the bench, willful evasion of fed Chairman, Judiciary Committee, Nothing In .the Kelley memorandum de tracts from the arguments submitted by me eral Income tax, and conspiraCy In champer House Of Representatives, tous foreclosure proceedings. Indeed, Ritter Washington, D .C. on May 18. It does, however, call to mind the following points: admitted the underlying facts and defended My DEAR MR . CHAIRMAN : In his address himself on the ground that he ·Iacked the t o the House of Representatives on April 15. 1 There a.ppears to have been a problem of 'communlcatlon between Mr. Ford and requisite criminal Intent. The House Im 1970. Mr. Gerald Ford announced his view peached him on each of the£e charges and that an " Impeachable offense Is whatever a his attorney, for the Kelley memorandum on' a seventh blanket charge which did not Is largely addressed to the Irrelevant ques majority of the House of Representatives add less serious, noncriminal charges-bad considers lit 1 to be at a given moment In hls tion whether Impeachment Is to be confined behavior-but expressly Incorporated the t~rv . " to indictable "high crimes and misdemean more specific chat'ges of crime. A majority, Under date ot August 5, 1970, Mr. Ford ad ors." We do not suggest tha.t the crlmlnal short of the necessary two-thirds, voted to dressed a letter to you to advise you that he conduct w,hlch would constitutionally per convict Judge Ritter on each of the specific had obtained the opinion ot Mr. Bethuel E. mit Impeachment must be such as to require charges, while two thirds agreed that he had Kelley, a Michigan lawyer, to support his "Indictment ." Indeed, the constitutional ref' committed at least one criminal offense and view. "The Kelley memorandum" was at Mr. erence to "misdemeanor" suggests oth~,wlse, voted to convict on the blanket charge In Ford's request published In the Congressional f'or In the federal system not all mls corporating the specific allegations of crim Record cn August 10. demea.nors" require Indictment. The proper Inal conduct. In the face of these facts, the Mr. Ford's definition of an "Impeachable questIon Is not whether an indictable crime Kelley memorandum asserts that Judge Rit offense" means that judges serve at the must be shown, but whether a judge may ter was Impeached and convicted for non pleasure of Congress. This Is so utterly de be Impeached for conduct which had not criminal conduct. It cites statements by sev structive of the principles of an Independent previously been defined as unlawful, and eral Senators who were anxious to expand judiciary and the separation of powers, that which Is not of a sumclently grave nature their power to remove judges,' and purporta I could not believe that convincing historical to warrant the appellation "high crimes anti to set out the text of the blanket charge, support could be found for so radical a prop misdemeanors." Article 7. I find It necessa.ry to ca.ll to your csltlon. 2 It Is exceedingly strange that In a attention the fact that the author of the Now that I have read the Kelley memoran me~orandum purporting to examine "the Kelley memorandum has omitted a. substan dum I am more than ever convinced that Mr. basiC source material" for an Interpreta.tlon tial portion of the language of Article 7- Ford's view IS historically and legally as of the Constitution there Is no reference to the portion referring to the specific crlmlnal untenable as It Is mischievous. the records of the Constitutional Conven conduct with which Judge Ritter was tion to the Federalist Papers which are The Kelley memorandum should, however, charged. The omitted language charged Rit Wld~IY regarded as the next most aut'horlta ter with coIlU1l.lulon of "high crimes and be welcomed as a contribUtion to an exceed t1ve Interpretative aid, or to statements by Ingly Important debate. Mr. Ford's preoccu mISdemeanors In omce," and expressly Incor pation with the radical definition of "Im porated "his conduct as deta.lled In Articles peachable offense" makes It clear that the real objective of those who have launched 1 Contrary to Mr. Ford's present view that an attack on Justice Douglas Is to establish '. to achieve his alms. In print, at U.S. tax under authority of the United States whO payers' sufferance, the Fund for the Repub engages In the praotlce of law Is guilty of HON . GERALD R. FORD a high misdemeanor." Not simply a misde OF MICHIGAN Ilc's Center perIDlts Stephen Saltonstall to call for the 'Intimidation and hum\1latlon' meanor, but a "high misdemeanor." This Is I N rH'R HOHR'R OF REPR.ESENTATIVES of . pubUc figures such os Vice President all but Identical to the language of the Con Tuesday, May 12, 1970 Humphrey and Defense Secretary McNanlara. stitution, Which speaks of removal after Im What has 'Intimidation' to do with demo peachment of "treason, bribery or other high Mr. GERALD R. FORD. Mr. Speaker, cratic procedures and Institut ions? Intimida crimes and misdemeanors." 1 insert following these remarks the edi tion Is the weapon of autocracy an:1 tyranny." Mr. Justice Douglas ultimately may be torial comments of three eminent news In his recently-publ1shed volum e, "Points cleared of these charges. The fact remains: papers in different parts of the Nation, of Rebellion," Mr. Justice Douglas wrote: Mr. Ford has made his prima facie case, and " We must now reallze that today's Estab thus has fulfilled the constitutional require on a matter of interest to Members of Ilshment Is the new George III. Whether It ment. What the House wl11 decide remains to this body. These are the views of the will continue to adhere to his tactics, we do be seen, but the constitutional command [s Cheyenne, Wyo., Tribune; the Columbia, not know. If It does, the redress, honored In plain. Mr. Justice Douglas stands accused of S.C., State; and the Winona, Minn., tradition, Is also the revolution." disqual1fylng conduct. He should be Im News. In the I1berals' view, Judge Carswell 'was peached. The comments follow : some sort of monster because he once made a speech over 20 years ago approving segrega [FrOm the Winona (Minn.) News, Apr. 27 , IFrom the Cheyenne (Wyo.) Tribune, 1970J Apr. 21, 19701 tion which then was still the law of the land; and Judge Haynsworth was unfit to sit on the REPRESENTATIVE FoRD TAKES ON J USTICE AND WHY NOT IMPEACH DOCGLAS? Supreme Court because he owned stocks In DOUGLAS In the uproar over the Supreme Court's corporations that might have provided a con The biggest hurdle that Rep. Gerald R . newest controversy Involving Associate Jus flict of Interest In his renderings from that Ford has in pressing for Impeachment of tice W1l11am O. Douglas, no one seems to have high tribunal. But It Is heresy to suggest Justice William Douglas Is the unusualness yet detected the Irony that It Is a Carswell that an associate Justice of the same Court of the proposed action. In our history only Haynsworth sltuatfon In reverse. should be challenged for making utterances nine federal judges, Including one associate The conservatives who were t rying to get suggesting revolution against the very gov justice of the Supreme Court, have been Im the two southerners onto the Court now are ernment which he serves In high capacity, for peached by the House and tried by the Sen trying to get Its arch-llberal Impeached; and being part of an organization which organizes ate: four were acquitted, four convicted and the llberals who successfully kept President meetings of campus revolutionaries and .removed from office and one resigned during Nixon's "strict constructioniSts" from being publlshes their utterances, or draws a sal the t rial. confirmed on the Court are trying to save ary from a corporation with ownership con To help the members of the House accept Mr. Justice Douglas' Judicial hide. nections In a city where gambUng Is the the procedure as something less than ext ra In the effort to knock down House Repub economic m.a;lnstay. ordinary, despite Its rarity, he emphasizes: lican Leader Gerald Ford's Impeachment Isn't there something wrong here? Isn't 1. Justices do not have Ufe appOintments. move, the pro-Douglas people are demand this the rankest sort of double standard Article III of the Constltutlon-"The judges, ing to know what arguments for his removal that ever existed? Isn't this the most invidi both of the supreme and Inferior courts, shall from the Court are available other than ous hypocrisy and double-deaUng concelv hold their offices during good behavior"; that Douglas' attitudes. T ypical Is a current com able In men? Is, as Rep. Ford contends, their unspecified ment by Don Oakley of the Newspaper En If Douglas wants to preach revolution, If term of office Is based on "good behaviour," t erprise Association: "There Is plenty about he wants to serve as a consultant to organi which he then goes on to define as being an Douglas that rubs a lot of Americans the zations Ilke t he Center for the Study of offense that need not be criminally Indictable. wrong way-h is part In the Court's disman Democratic Institutions, or as the $12,000 a A Justice should not, says Ford, be Impeached tling of the country's sexual censorship and year head of a foundation that operates Las for his legal views, for a minor or Isolated Its alleged 'coddling' of criminals, his ac Vegas gambl1ng concerns, all very well-but m istake, or for his personal life. Ultimately, ceptance of a fee from a foundation associ he should do so off the U.S. Supreme Court. he concludes, an Impeach able offense Is ated with gambling Interests, his penchant "whatever a majority of the House considers for young wives. his aut horship of anti [From tbe Columbia (S.C.) State. Apr. 23 . to be at a given moment In history." establishment articles in magazines noted 1970) 2. Impeachment may resemble a regular more for erotiCism than erudition. criminal Indictment and trial but It Is not "But," writes Oakley, " unless Ford and THE CASE AGAINST DOUGLAS t he same thing. It relates solely to the ac Ilis colleagues can come up with more solid Judged strictly on the legal Issues. the cuse,i's right to hold clv11 office, not the many complaints t han these-which in reality case agalnst Wllllam O. Douglas. the swing other rights which are his as a citizen and amount to a little more than a formless dis Ing Justice, Is sufficient to require Impeach whl c:h protect him In the court of law. like and fear of Douglas' 'dangerous opinions' ment by the House. Whether It Is strong This Is reinforced by the constitutional de they may only make themselves look foolish enough to require removal Is something nial of jury trial-perhaps the mo&t funda and could do far more damage to the good else-something we shall never discover, In mental of all constitutional protection-In name of the Court than anyone has yet all probab11lty, unless the House Impeaches Impeachment proceedings. charged Douglas with doing." and sends the case to the Senate, where full Rep. Ford's case against Justice Douglas Where was Mr. Oakley when two esteemed testimony can be taken under oath. includes the well-aired cb.arges of his mone judges of the United States Court of Ap As R.ep. Gerald Ford was at pains to show, t ary associatiOns with the Albert Parvin peals who suffered the misfort une of being the function of the House In an Impeach Foundation, now terminated; hds writing for nominated to the Supreme Court were being ment proceeding is to serve In the capacity R alph Ginzburg's pornographic magazines smeared and p1l10rled by the same people of a grand jury. It hears the adverse evi while sitting on Supreme Court cases In who a,ready are falUng over themsel ves to dence. It decides whether this evidence con which Ginzburg was involved; .a recent book, organize a defense for Mr. Justice Douglas? stitutes a: prima facie case against the ac "Point s of Rebellion," which says there are Two jurists, It might be noted. who were cused. That Is, In the .language of the legal two ways by which grievances of citizens can a ttacked for their opinions and beliefs? definition, Is t he case against t he accused be redressed-"one Is lawful prooedure and The liberals of both the m edia and the strong enou gh to condemn him unless It' Is one Is violent protest, riot and revolution;" senate whipped t h emselves Into a lather refuted. If rebutting evidence Is required, and his authorization of the appearance of about Judge Haynswort h 's alleged "confilcts impeachment is the only constitutional excerpts from the beok In the April 1970 of Interest" which never could be proven. course, for the actual trial Is the responsl Evergreen m agazine which consists In the Yet there has been a provable confilct of blllty of the senate. main of nude photographs; and his recent Interest by Mr. J ustice Douglas who has The case against Mr. Justice Douglas, association with the Center for the Study of been on the Supreme Court for 30 years. The taken at face value, constitutes just such Democratic InstitUtions, "the birthplace for same individuals and Interests who worked evidence of malfeasance. It Is not even nec the very excesses which he applauds In his themselves up Into a holy frenzy of Inquisi essary to show, as Mr. Ford attempted to latest book." torial torture on both Haynsworth and Car show, that the Framers of the Constitution It Is Rep. Ford's contention that Douglas's swell, turn around and say: "How could you contemplated removal of federal judges for "blunt message to the American people and be so brutal as to challenge poor Justice anything short of "good behavior." Mr. Ford their representatives In the Congress Is that Douglas' Integrity!" . has made a prima facie case of 11legal con he does not give a tinker's damn what we Douglas has drawn a substantial stlpend duct-and not just Illegal conduct, but pre think of him and his behavior on the bench. that he dropped when it was exposed-from cisely the kind of Illegal conduct the Con He belleves he sits there by some divine right a foundation that operated Las Vegas casino stitution speaks of as grounds for impeach and that he can do and say anyt.lling he Interests; and he also has had Interesting ment and removal from office. pleases without being questIOned and with connections with an outfit called Center for On two separate occaSions, Mr. Justice oomplete immunity." tlje St,\ldy of Democratic Institutions at Douglas Is alleged to have engaged Illegally Rep. Ford holds that Abe Fortas resigned Santa Baroora, Call!., to which Douglas Wall In the practice of law. Once, acccrding to from the court after revelation of financial nanled olllcial consultant. Albert Parvin, Mr. Justice Douglas assisted arrangements akin to those of Justice Doug Another foundation called Fund for the in drafting the articles of Incorporation for las and that the standards of conduct de Republic f06ters the Center for the Study of the Albert Parvin Foundation, whose direc manded of President Nixon's two rejected Democratic Institutions and over two years tors subsequently named him president at a nominees are not exemplified by Douglas. ago Alice Widener wrote on an unusual con salary of $12,000 a year, plus expenses. Should there be two standards for Justices, ference of student revolutionaries held at the On a second occasion, just a year ago, Mr. one on appointment, one on retention? the Center In late August, 1967, which on the Justice Douglas Is reported to have written representative asks. basis of some of the papers presented appar Parvin about the foundation's tax-exempt The questions are good ones. ently turned Into a planning session for status, then under review .by the Internal Justice Douglas has been on the bench CanlPUS revolt. , Revenue Service. In a letter to Parvin, ac since 1939 and has given the court an ad Miss Widener wrote, anent a report pub cording to publ1shed accounts, the Justice mirable fiavor with his zest for life and his Ilshed of this meeting: "In the report Is a gave legal advice on how.. the foundation i ndependent thought. Now that he Is nearing paper presented to the' conference by student might avoid further dllllcultlee with the IR$. his 72nd birthday, he no longer Is taking Stephen Saltonstall of Yale University, who If these allegations are true, Mr. Justice MEMORANDUM The attached refers to a subject in which you are in terested, and is, therefore, referred for your information. Yours very truly