IMPEACHMENT POWERS Ch. 14 §3 - gpo.gov was based on seven arti- ... this chapter as a synopsis of...

1955

IMPEACHMENT POWERS Ch. 14 § 3

19. 77 CONG. REC. 4055, 73d Cong. 1stSess.

20. Jefferson’s Manual states that: [B]ythe usage of Parliament, in impeach-ment for writing or speaking, theparticular words need not be speci-fied in the accusation. House Rulesand Manual (Jefferson’s Manual)§ 609 (1973).

privilege and offered a resolution(H. Res. 158) impeaching numer-ous members and former membersof the Federal Reserve Board.During the reading of the resolu-tion, a point of order against itwas raised by Mr. Carl E. Mapes,of Michigan:

I wish to submit the question to theSpeaker as to whether or not a personwho is not now in office is subject toimpeachment? This resolution of thegentleman from Pennsylvania refers toseveral people who are no longer hold-ing any public office. They are not nowat least civil officers. The Constitutionprovides that the ‘‘President, VicePresident, and all civil officers shall beremoved from office on impeachment’’,and so forth. I have had no opportunityto examine the precedents since thismatter came up, but it occurs to methat the resolution takes in too muchterritory to make it privileged.

Speaker Henry T. Rainey, of Il-linois, ruled as follows:

That is a constitutional questionwhich the Chair cannot pass upon, butshould be passed upon by the House.

The resolution was referred onmotion to the Committee on theJudiciary.(19)

§ 3. Grounds for Impeach-ment; Form of Articles

Article II, section 4 of the U.S.Constitution defines the grounds

for impeachment and convictionas ‘‘treason, bribery, or other highcrimes and misdemeanors.’’ A fur-ther provision of the Constitutionwhich has been construed to bearupon the impeachment of federaljudges is article III, section 1,which provides that judges of thesupreme and inferior courts ‘‘shallhold their offices during good be-haviour.’’

When the House determinesthat grounds for impeachmentexist, and they are adopted by theHouse, they are presented to theSenate in ‘‘articles’’ of impeach-ment.(20) Any one of the articlesmay provide a sufficient basis orground for impeachment. The im-peachment in 1936 of Halsted L.Ritter, a U.S. District CourtJudge, was based on seven arti-cles of impeachment as amendedby the House. The first six articlescharged him with several in-stances of judicial misconduct, in-cluding champerty, corrupt prac-tices, violations of the JudicialCode, and violations of criminallaw. Article VII charged actionsand conduct, including a restate-ment of some of the charges con-

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DESCHLER’S PRECEDENTSCh. 14 § 3

1. See § 3.2, infra.2. See § 3.4, infra.3. See § 3.5, infra.

4. See § 3.1, infra.5. See § 3.7, infra, for the majority

views and § 3.8, infra, for the minor-ity views on the articles of impeach-ment.

6. See § 3.3, infra, for the majority andminority views on article II.

In its final report the Committeeon the Judiciary cited a staff reportby the impeachment inquiry staff on

tained in the preceding articles,‘‘the reasonable and probable con-sequence’’ of which was ‘‘to bringhis court into scandal and disre-pute,’’ to the prejudice of hiscourt, of public confidence in hiscourt, and of public respect forand confidence in the federal judi-ciary.(1) However, in the Senate,Judge Ritter was convicted onlyon the seventh article. The re-spondent had moved, before com-mencement of trial, to strike arti-cle I, or in the alternative to re-quire election as to articles I andII, on the ground that the articlesduplicated the same offenses, butthe presiding officer overruled themotion and his decision was notchallenged in the Senate. The re-spondent also moved to strike ar-ticle VII, the ‘‘general’’ article, onthe ground that it improperly cu-mulated and duplicated offensesalready stated in the precedingarticles, but this motion was re-jected by the Senate.(2)

At the conclusion of the Rittertrial, and following conviction onlyon article VII, a point of order wasraised against the vote in that thearticle combined the grounds thatwere alleged for impeachment.The President pro tempore over-ruled the point of order.(3)

The various grounds for im-peachment and the form of im-peachment articles have been doc-umented during recent investiga-tions. Following the inquiry intocharges against President Nixon,the Committee on the Judiciaryreported to the House a reportrecommending impeachment,which report included the text of aresolution and articles impeachingthe President.(4) As indicated bythe articles, and by the conclu-sions of the report as to the spe-cific articles, the Committee onthe Judiciary determined that thegrounds for Presidential impeach-ment need not be indictable orcriminal; articles II and III im-peached the President for a courseof conduct constituting an abuseof power and for failure to complywith subpenas issued by the com-mittee during the impeachmentinquiry.(5) The committee also con-cluded that an article of impeach-ment could cumulate charges andfacts constituting a course of con-duct, as in article II.(6)

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the grounds for presidential im-peachment, prepared before the com-mittee had proceeded to compile allthe evidence and before the com-mittee had proceeded to consider aresolution and articles of impeach-ment. While the report and its con-clusions were not intended to rep-resent the views of the committee orof its individual members, the reportis printed in part in the appendix tothis chapter as a synopsis of the his-tory, origins, and concepts of the im-peachment process and of thegrounds for impeachment. See § 3.6,infra, and appendix, infra.

7. See § § 3.9–3.12, infra.

8. See § 3.13, infra.9. H. REPT. NO. 93–1305, Committee on

the Judiciary, printed in the Recordat 120 CONG. REC. 29219, 29220, 93dCong. 2d Sess., Aug. 20, 1974. Forcomplete text of H. REPT. NO. 93–1305, see id. at pp. 29219–361.

The grounds for impeachment offederal judges were scrutinized in1970, in the inquiry into the con-duct of Associate Justice Douglasof the Supreme Court. Concepts ofimpeachment were debated on thefloor of the House, as to the ascer-tainability of the definition of animpeachable offense, and as towhether a federal judge could beimpeached for conduct not relatedto the performance of his judicialfunction or for judicial conduct notcriminal in nature.(7)

A special subcommittee of theCommittee on the Judiciary wascreated to investigate and reporton the charges of impeachmentagainst Justice Douglas, and sub-mitted to the committee a final re-port recommending against im-peachment, finding the evidenceinsufficient. The report concluded

that a federal judge could be im-peached for judicial conduct whichis either criminal or a seriousabuse of public duty, or for non-judicial conduct which is crimi-nal.(8)

Cross References

Amendments to articles adopted by theHouse, see § 10, infra.

Charges not resulting in impeachment,see § 14, infra.

Grounds for conviction in the Ritter im-peachment trial, see § 18, infra.

Collateral Reference

Articles of Impeachment Voted by theHouse of Representatives, see Im-peachment, Selected Materials, Com-mittee on the Judiciary, H. Doc. No.93–7, 93d Cong. 1st Sess., Oct. 1973.

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Form of Resolution and Arti-cles of Impeachment

§ 3.1 Articles of impeachmentare reported from the Com-mittee on the Judiciary inthe form of a resolution.On Aug. 20, 1974,(9) the Com-

mittee on the Judiciary submittedto the House a report on its inves-

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tigation into charges of impeach-able offenses against PresidentRichard Nixon. The committee in-cluded in the text of the report aresolution and articles of impeach-ment which had been adopted bythe committee:

Impeaching Richard M. Nixon, Presi-dent of the United States, of highcrimes and misdemeanors.

Resolved, That Richard M. Nixon,President of the United States, is im-peached for high crimes and mis-demeanors, and that the following arti-cles of impeachment be exhibited tothe Senate:

Articles of impeachment exhibited bythe House of Representatives of theUnited States of America in the nameof itself and of all of the people of theUnited States of America, againstRichard M. Nixon, President of theUnited States of America, in mainte-nance and support of its impeachmentagainst him for high crimes and mis-demeanors.

ARTICLE I

In his conduct of the office of Presi-dent of the United States, Richard M.Nixon, in violation of his constitutionaloath faithfully to execute the office ofPresident of the United States and, tothe best of his ability, preserve, pro-tect, and defend the Constitution of theUnited States, and in violation of hisconstitutional duty to take care thatthe laws be faithfully executed, hasprevented, obstructed, and impededthe administration of justice, in that:

On June 17, 1972, and prior thereto,agents of the Committee for the Re-election of the President committed un-

lawful entry of the headquarters of theDemocratic National Committee inWashington, District of Columbia, forthe purpose of securing political intel-ligence. Subsequent thereto, RichardM. Nixon, using the powers of his highoffice, engaged personally and throughhis subordinates and agents, in acourse of conduct or plan designed todelay, impede, and obstruct the inves-tigation of such unlawful entry; tocover up, conceal and protect those re-sponsible; and to conceal the existenceand scope of other unlawful covert ac-tivities.

The means used to implement thiscourse of conduct or plan included oneor more of the following:

(1) making or causing to be madefalse or misleading statements tolawfully authorized investigative of-ficers and employees of the UnitedStates;

(2) withholding relevant and mate-rial evidence or information fromlawfully authorized investigative of-ficers and employees of the UnitedStates;

(3) approving, condoning, acqui-escing in, and counseling witnesseswith respect to the giving of false ormisleading statements to lawfullyauthorized investigative officers andemployees of the United States andfalse or misleading testimony in dulyinstituted judicial and congressionalproceedings;

(4) interfering or endeavoring tointerfere with the conduct of inves-tigations by the Department of Jus-tice of the United States, the FederalBureau of Investigation, the Office ofWatergate Special Prosecution Force,and Congressional Committees;

(5) approving, condoning, and ac-quiescing in, the surreptitious pay-ment of substantial sums of moneyfor the purpose of obtaining the si-lence or influencing the testimony of

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witnesses, potential witnesses or in-dividuals who participated in suchunlawful entry and other illegal ac-tivities;

(6) endeavoring to misuse the Cen-tral Intelligence Agency, an agencyof the United States;

(7) disseminating information re-ceived from officers of the Depart-ment of Justice of the United Statesto subjects of investigations con-ducted by lawfully authorized inves-tigative officers and employees of theUnited States, for the purpose of aid-ing and assisting such subjects intheir attempts to avoid criminal li-ability;

(8) making false or misleadingpublic statements for the purpose ofdeceiving the people of the UnitedStates into believing that a thoroughand complete investigation had beenconducted with respect to allegationsof misconduct on the part of per-sonnel of the executive branch of theUnited States and personnel of theCommittee for the Re-election of thePresident, and that there was no in-volvement of such personnel in suchmisconduct; or

(9) endeavoring to cause prospec-tive defendants, and individuals dulytried and convicted, to expect favoredtreatment and consideration in re-turn for their silence or false testi-mony, or rewarding individuals fortheir silence or false testimony.

In all of this, Richard M. Nixon hasacted in a manner contrary to his trustas President and subversive of con-stitutional government, to the greatprejudice of the cause of law and jus-tice and to the manifest injury of thepeople of the United States.

Wherefore Richard M. Nixon, bysuch conduct, warrants impeachmentand trial, and removal from office.

ARTICLE II

Using the powers of the office ofPresident of the United States, Rich-

ard M. Nixon, in violation of his con-stitutional oath faithfully to executethe office of President of the UnitedStates and, to the best of his ability,preserve, protect, and defend the Con-stitution of the United States, and indisregard of his constitutional duty totake care that the laws be faithfullyexecuted, has repeatedly engaged inconduct violating the constitutionalrights of citizens, impairing the dueand proper administration of justiceand the conduct of lawful inquiries, orcontravening the laws governing agen-cies of the executive branch and thepurposes of these agencies.

This conduct has included one ormore of the following:

(1) He has, acting personally andthrough his subordinates and agents,endeavored to obtain from the Inter-nal Revenue Service, in violation ofthe constitutional rights of citizens,confidential information contained inincome tax returns for purposes notauthorized by law, and to cause, inviolation of the constitutional rightsof citizens, income tax audits orother income tax investigations to beinitiated or conducted in a discrimi-natory manner.

(2) He misused the Federal Bu-reau of Investigation, the SecretService, and other executive per-sonnel, in violation or disregard ofthe constitutional rights of citizens,by directing or authorizing suchagencies or personnel to conduct orcontinue electronic surveillance orother investigations for purposes un-related to national security, the en-forcement of laws, or any other law-ful function of his office; he did di-rect, authorize, or permit the use ofinformation obtained thereby forpurposes unrelated to national secu-rity, the enforcement of laws, or anyother lawful function of his office;and he did direct the concealment of

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certain records made by the FederalBureau of Investigation of electronicsurveillance.

(3) He has, acting personally andthrough his subordinates and agents,in violation or disregard of the con-stitutional rights of citizens, author-ized and permitted to be maintaineda secret investigative unit within theoffice of the President, financed inpart with money derived from cam-paign contributions, which unlaw-fully utilized the resources of theCentral Intelligence Agency, engagedin covert and unlawful activities, andattempted to prejudice the constitu-tional right of an accused to a fairtrial.

(4) He has failed to take care thatthe laws were faithfully executed byfailing to act when he knew or hadreason to know that his close subor-dinates endeavored to impede andfrustrate lawful inquiries by dulyconstituted executive, judicial, andlegislative entities concerning theunlawful entry into the headquartersof the Democratic National Com-mittee, and the cover-up thereof, andconcerning other unlawful activities,including those relating to the con-firmation of Richard Kleindienst asAttorney General of the UnitedStates, the electronic surveillance ofprivate citizens, the break-in into theoffices of Dr. Lewis Fielding, and thecampaign financing practices of theCommittee to Reelect the President.

(5) In disregard of the rule of law,he knowingly misused the executivepower by interfering with agencies ofthe executive branch, including theFederal Bureau of Investigation, theCriminal Division, and the Office ofWatergate Special Prosecution Force,of the Department of Justice, andthe Central Intelligence Agency, inviolation of his duty to take care thatthe laws be faithfully executed.

In all of this, Richard M. Nixon hasacted in a manner contrary to his trustas President and subversive of con-

stitutional government, to the greatprejudice of the cause of law and jus-tice and to the manifest injury of thepeople of the United States.


ARTICLE III

In his conduct of the office of Presi-dent of the United States, Richard M.Nixon, contrary to his oath faithfully toexecute the office of President of theUnited States and, to the best of hisability, preserve, protect, and defendthe Constitution of the United States,and in violation of his constitutionalduty to take care that the laws befaithfully executed, has failed withoutlawful cause or excuse to produce pa-pers and things as directed by duly au-thorized subpoenas issued by the Com-mittee on the Judiciary of the House ofRepresentatives on April 11, 1974,May 15, 1974, May 30, 1974, and June24, 1974, and willfully disobeyed suchsubpoenas. The subpoenaed papersand things were deemed necessary bythe Committee in order to resolve bydirect evidence fundamental, factualquestions relating to Presidential di-rection, knowledge, or approval of ac-tions demonstrated by other evidenceto be substantial grounds for impeach-ment of the President. In refusing toproduce these papers and things, Rich-ard M. Nixon, substituting his judg-ment as to what materials were nec-essary for the inquiry, interposed thepowers of the Presidency against thelawful subpoenas of the House of Rep-resentatives, thereby assuming to him-self functions and judgments necessaryto the exercise of the sole power of im-peachment vested by the Constitutionin the House of Representatives.

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10. H. Res. 422, 80 CONG. REC. 3066–68,74th Cong. 2d Sess., Mar. 2, 1936(Articles I–IV); H. Res. 471, 80CONG. REC. 4597–99, 74th Cong. 2dSess., Mar. 30, 1936 (amending Arti-cle III and adding new Articles IV–VII).

In all of this, Richard M. Nixon hasacted in a manner contrary to his trustas President and subversive of con-stitutional government, to the greatprejudice of the cause of law and jus-tice, and to the manifest injury of thepeople of the United States.


§ 3.2 Articles impeachingJudge Halsted L. Ritter werereported to the House in twoseparate resolutions.In March 1936, articles of im-

peachment against Judge Ritterwere reported to the House: 10

[H. RES. 422]

Resolved, That Halsted L. Ritter,who is a United States district judgefor the southern district of Florida, beimpeached for misbehavior, and forhigh crimes and misdemeanors; andthat the evidence heretofore taken bythe subcommittee of the Committee onthe Judiciary of the House of Rep-resentatives under H. Res. 163 of theSeventy-third Congress sustains arti-cles of impeachment, which are herein-after set out; and that the said articlesbe, and they are hereby, adopted bythe House of Representatives, and thatthe same shall be exhibited to the Sen-

ate in the following words and figures,to wit:

Articles of impeachment of theHouse of Representatives of the UnitedStates of America in the name of them-selves and of all of the people of theUnited States of America against Hal-sted L. Ritter, who was appointed, dulyqualified, and commissioned to serve,during good behavior in office, asUnited States district judge for thesouthern district of Florida, on Feb-ruary 15, 1929.

ARTICLE I

That the said Halsted L. Ritter, hav-ing been nominated by the President ofthe United States, confirmed by theSenate of the United States, dulyqualified and commissioned, and whileacting as a United States district judgefor the southern district of Florida, wasand is guilty of misbehavior and of ahigh crime and misdemeanor in officein manner and form as follows, to wit:On or about October 11, 1929, A. L.Rankin (who had been a law partner ofsaid judge immediately before saidjudge’s appointment as judge), as solic-itor for the plaintiff, filed in the courtof the said Judge Ritter a certain fore-closure suit and receivership pro-ceeding, the same being styled ‘‘Bert E.Holland and others against WhitehallBuilding and Operating Company andothers’’ (Number 678–M–Eq.). On orabout May 15, 1930, the said JudgeRitter allowed the said Rankin an ad-vance of $2,500 on his fee for his serv-ices in said case. On or about July 2,1930, the said Judge Ritter by letterrequested another judge of the UnitedStates district court for the southerndistrict of Florida, to wit, HonorableAlexander Akerman, to fix and deter-

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mine the total allowance for the saidRankin for his services in said case forthe reason as stated by Judge Ritter insaid letter, that the said Rankin hadformerly been the law partner of thesaid Judge Ritter, and he did not feelthat he should pass upon the total al-lowance made said Rankin in that caseand that if Judge Akerman would fixthe allowance it would relieve the writ-er, Judge Ritter, from any embarrass-ment if thereafter any question shouldarise as to his, Judge Ritter’s, favoringsaid Rankin with an exorbitant fee.

Thereafterward, notwithstanding thesaid Judge Akerman, in compliancewith Judge Ritter’s request, allowedthe said Rankin a fee of $15,000 for hisservices in said case, from which sumthe said $2,500 theretofore allowed thesaid Rankin by Judge Ritter as an ad-vance on his fee was deducted, the saidJudge Ritter, well knowing that at hisrequest compensation had been fixedby Judge Akerman for the saidRankin’s services in said case, and not-withstanding the restraint of proprietyexpressed in his said letter to JudgeAkerman, and ignoring the danger ofembarrassment mentioned in said let-ter, did fix an additional and exorbi-tant fee for the said Rankin in saidcase. On or about December 24, 1930,when the final decree in said case wassigned, the said Judge Ritter allowedthe said Rankin, additional to the totalallowance of $15,000 theretofore al-lowed by Judge Akerman, a fee of$75,000 for his services in said case,out of which allowance the said JudgeRitter directly profited. On the sameday, December 24, 1930, the receiverin said case paid the said Rankin, aspart of his said additional fee, the sumof $25,000, and the said Rankin on the

same day privately paid and deliveredto the said Judge Ritter the sum of$2,500 in cash; $2,000 of said $2,500was deposited in bank by Judge Ritteron, to wit, December 29, 1930, the re-maining $500 being kept by Judge Rit-ter and not deposited in bank until, towit, July 10, 1931. Between the time ofsuch initial payment on said additionalfee and April 6, 1931, the said receiverpaid said Rankin thereon $5,000. Onor about April 6, 1931, the said Rankinreceived the balance of the said addi-tional fee allowed him by Judge Ritter,said balance amounting to $45,000.Shortly thereafter, on or about April14, 1931, the said Rankin paid and de-livered to the said Judge Ritter, pri-vately, in cash, an additional sum of$2,000. The said Judge Halsted L. Rit-ter corruptly and unlawfully acceptedand received for his own use and ben-efit from the said A. L. Rankin theaforesaid sums of money, amounting to$4,500.

Wherefore, the said Judge Halsted L.Ritter was and is guilty of misbehaviorand was and is guilty of a high crimeand misdemeanor.

ARTICLE II

That the said Halsted L. Ritter,while holding the office of UnitedStates district judge for the southerndistrict of Florida, having been nomi-nated by the President of the UnitedStates, confirmed by the Senate of theUnited States, duly qualified and com-missioned, and while acting as aUnited States district judge for thesouthern district of Florida, was and isguilty of misbehavior and of highcrimes and misdemeanors in office inmanner and form as follows, to wit:

On the 15th day of February 1929the said Halsted L. Ritter, having been

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appointed as United States districtjudge for the southern district of Flor-ida, was duly qualified and commis-sioned to serve as such during good be-havior in office. Immediately priorthereto and for several years the saidHalsted L. Ritter had practiced law insaid district in partnership with one A.L. Rankin, which partnership was dis-solved upon the appointment of saidRitter as said United States districtjudge.

On the 18th day of July 1928 oneWalter S. Richardson was electedtrustee in bankruptcy of the WhitehallBuilding and Operating Company,which company had been adjudicatedin said district as a bankrupt, and assuch trustee took charge of the assetsof said Whitehall Building and Oper-ating Company, which consisted of ahotel property located in Palm Beachin said district. That the said Richard-son as such trustee operated said hotelproperty from the time of his said ap-pointment until its sales on the 3d ofJanuary 1929, under the foreclosure ofa third mortgage thereon. On the 1stof November and the 13th of December1929, the said Judge Ritter made or-ders in said bankruptcy proceedings al-lowing the said Walter S. Richardsonas trustee the sum of $16,500 as com-pensation for his services as trustee.That before the discharge of said Wal-ter S. Richardson as such trustee, saidRichardson, together with said A. L.Rankin, one Ernest Metcalf, one Mar-tin Sweeney, and the said Halsted L.Ritter, entered into an arrangement tosecure permission of the holder orholders of at least $50,000 of firstmortgage bonds on said hotel propertyfor the purpose of filing a bill to fore-close the first mortgage on said prem-

ises in the court of said Halsted L. Rit-ter, by which means the said Richard-son, Rankin, Metcalf, Sweeney, andRitter were to continue said propertyin litigation before said Ritter. On the30th day of August 1929, the said Wal-ter S. Richardson, in furtherance ofsaid arrangement and understanding,wrote a letter to the said MartinSweeney, in New York, suggesting thedesirability of contacting as many first-mortgage bondholders as possible inorder that their cooperation might besecured, directing special attention toMr. Bert E. Holland, an attorney,whose address was in the TremontBuilding in Boston, and who, as co-trustee, was the holder of $50,000 offirst-mortgage bonds, the amount ofbonds required to institute the con-templated proceedings in Judge Rit-ter’s court.

On October 3, 1929, the said Bert E.Holland, being solicited by the saidSweeney, requested the said Rankinand Metcalf to prepare a complaint tofile in said Judge Ritter’s court forforeclosure of said first mortgage andthe appointment of a receiver. At thistime Judge Ritter was holding court inBrooklyn, New York, and the saidRankin and Richardson went fromWest Palm Beach, Florida, to Brook-lyn, New York, and called upon saidJudge Ritter a short time previous tofiling the bill for foreclosure and ap-pointment of a receiver of said hotelproperty.

On October 10, 1929, and before thefiling of said bill for foreclosure and re-ceiver, the said Holland withdrew hisauthority to said Rankin and Metcalfto file said bill and notified the saidRankin not to file the said bill. Not-withstanding the said instructions to

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said Rankin not to file said bill, saidRankin, on the 11th day of October1929, filed said bill with the clerk ofthe United States District Court forthe Southern District of Florida butwith the specific request to said clerkto lock up the said bill as soon as itwas filed and hold until Judge Ritter’sreturn so that there would be no news-paper publicity before the matter washeard by Judge Ritter for the appoint-ment of a receiver, which request onthe part of the said Rankin was com-plied with by the said clerk.

On October 16, 1929, the said Hol-land telegraphed to the said Rankin,referring to his previous wire request-ing him to refrain from filing the billand insisting that the matter remainin its then status until further instruc-tion was given; and on October 17,1929, the said Rankin wired to Hollandthat he would not make an applicationon his behalf for the appointment of areceiver. On October 28, 1929, a hear-ing on the complaint and petition forreceivership was heard before JudgeHalsted L. Ritter at Miami, at whichhearing the said Bert E. Holland ap-peared in person before said Judge Rit-ter and advised the judge that hewished to withdraw the suit and askedfor dismissal of the bill of complaint onthe ground that the bill was filed with-out his authority.

But the said Judge Ritter, fully ad-vised of the facts and circumstancesherein before recited, wrongfully andoppressively exercised the powers ofhis office to carry into execution saidplan and agreement theretofore ar-rived at, and refused to grant the re-quest of the said Holland and made ef-fective the champertous undertaking ofthe said Richardson and Rankin and

appointed the said Richardson receiverof the said hotel property, notwith-standing that objection was made toJudge Ritter that said Richardson hadbeen active in fomenting this litigationand was not a proper person to act asreceiver.

On October 15, 1929, said Rankinmade oath to each of the bills for inter-venors which were filed the next day.

On October 16, 1929, bills for inter-vention in said foreclosure suit werefiled by said Rankin and Metcalf in thenames of holders of approximately$5,000 of said first-mortgage bonds,which intervenors did not possess thesaid requisite $50,000 in bonds re-quired by said first mortgage to bringforeclosure proceedings on the part ofthe bondholders.

The said Rankin and Metcalf ap-peared as attorneys for complainantsand intervenors, and in response to asuggestion of the said Judge Ritter, thesaid Metcalf withdrew as attorney forcomplainants and intervenors and saidJudge Ritter thereupon appointed saidMetcalf as attorney for the said Rich-ardson, the receiver.

And in the further carrying out ofsaid arrangement and understanding,the said Richardson employed the saidMartin Sweeney and one Bemis, to-gether with Ed Sweeney, as managersof said property, for which they werepaid the sum of $60,000 for the man-agement of said hotel for the two sea-sons the property remained in the cus-tody of said Richardson as receiver.

On or about the 15th day of May1930 the said Judge Ritter allowed thesaid Rankin an advance on his fee of$2,500 for his services in said case.

On or about July 2, 1930, the saidJudge Ritter requested Judge Alex-

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ander Akerman, also a judge of theUnited States District Court for theSouthern District of Florida, to fix thetotal allowance for the said Rankin forhis services in said case, said requestand the reasons therefor being setforth in a letter by the said Judge Rit-ter, in words and figures as follows, towit:

JULY 2, 1930.Hon. ALEXANDER AKERMAN,United States District Judge, Tampa,Fla.

MY DEAR JUDGE: In the case of Hol-land et al. v. Whitehall Building & Op-erating Co. (No. 678–M–Eq.), pendingin my division, my former law partner,Judge A. L. Rankin, of West PalmBeach, has filed a petition for an orderallowing compensation for his serviceson behalf of the plaintiff.

I do not feel that I should pass,under the circumstances, upon thetotal allowance to be made JudgeRankin in this matter. I did issue anorder, which Judge Rankin will exhibitto you, approving an advance of $2,500on his claim, which was approved byall attorneys.

You will appreciate my position inthe matter, and I request you to passupon the total allowance which shouldbe made Judge Rankin in the premisesas an accommodation to me. This willrelieve me from any embarrassmenthereafter if the question should ariseas to my favoring Judge Rankin in thismatter by an exorbitant allowance.

Appreciating very much your kind-ness in this matter, I am,

Yours sincerely,HALSTED L. RITTER.

In compliance with said request thesaid Judge Akerman allowed the said

Rankin $12,500 in addition to the$2,500 theretofore allowed by JudgeRitter, making a total of $15,000 asthe fee of the said Rankin in the saidcase.

But notwithstanding the said re-quest on the part of said Ritter and thecompliance by the said Judge Akermanand the reasons for the making of saidrequest by said Judge Ritter of JudgeAkerman, the said Judge Ritter, on the24th day of December 1930, allowedthe said Rankin an additional fee of$75,000.

And on the same date when the re-ceiver in said case paid to the saidRankin as a part of said additional feethe sum of $25,000, said Rankin pri-vately paid and delivered to said JudgeRitter out of the said $25,000 the sumof $2,500 in cash, $2,000 of which thesaid Judge Ritter deposited in a bankand $500 of which was put in a tin boxand not deposited until the 10th day ofJuly 1931, when it was deposited in abank with an additional sum of $600.

On or about the 6th day of April1931, the said Rankin received as apart of the $75,000 additional fee thesum of $45,000, and shortly thereafter,on or before the 14th day of April1931, the said Rankin paid and deliv-ered to said judge Ritter, privately andin cash, out of said $45,000 the sum of$2,000.

The said Judge Halsted L. Ritter cor-ruptly and unlawfully accepted and re-ceived for his own use and benefit fromthe said Rankin the aforesaid sums of$2,500 in cash and $2,000 in cash,amounting in all to $4,500.

Of the total allowance made to saidA.L. Rankin in said foreclosure suit,amounting in all to $90,000, the fol-

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lowing sums were paid out by saidRankin with the knowledge and con-sent of said Judge Ritter, to wit: tosaid Walter S. Richardson, the sum of$5,000; to said Metcalf, the sum of$10,000; to Shutts and Bowen, also at-torneys for the receiver, the sum of$25,000; and to said Halsted L. Ritter,the sum of $4,500.

In addition to the said sum of $5,000received by the said Richardson asaforesaid, said Ritter by order in saidproceedings allowed said Richardson afee of $30,000 for services as such re-ceiver.

The said fees allowed by said JudgeRitter to A.L. Rankin (who had been alaw partner of said judge immediatelybefore said judge’s appointment asjudge) as solicitor for the plaintiff insaid case were excessive and unwar-ranted, and said judge profited person-ally thereby in that out of the moneyso allowed said solicitor he receivedpersonally, privately, and in cash$4,500 for his own use and benefit.

While the Whitehall Hotel was beingoperated in receivership under saidproceeding pending in said court (andin which proceeding the receiver incharge of said hotel by appointment ofsaid Judge was allowed large com-pensation by said judge) the said judgestayed at said hotel from time to timewithout cost to himself and receivedfree rooms, free meals, and free valetservice, and, with the knowledge andconsent of said judge, members of hisfamily, including his wife, his son,Thurston Ritter, his daughter, Mrs.M.R. Walker, his secretary, Mrs. LloydC. Hooks, and her husband, Lloyd C.Hooks, each likewise on various occa-sions stayed at said hotel without costto themselves or to said judge, and re-

ceived free rooms, and some or all ofthem received from said hotel freemeals and free valet service; all ofwhich expenses were borne by the saidreceivership to the loss and damage ofthe creditors whose interests were in-volved therein.

The said judge willfully failed andneglected to perform his duty to con-serve the assets of the WhitehallBuilding and Operating Company inreceivership in his court, but to thecontrary, permitted waste and dissipa-tion of its assets, to the loss and dam-age of the creditors of said corporation,and was a party to the waste and dis-sipation of such assets while under thecontrol of his said court, and person-ally profited thereby, in the mannerand form hereinabove specifically setout.

Wherefore, the said Judge Halsted L.Ritter was and is guilty of mis-behavior, and was and is guilty of ahigh crime and misdemeanor in office.

Articles III and IV in HouseResolution 422 are omitted be-cause House Resolution 471,adopted by the House on Mar. 30,1936, amended Article III, addednew Articles IV through VI afterArticle III, and amended formerArticle IV to read as new ArticleVII. Articles III through VII intheir amended form follow:

ARTICLE III

That the said Halsted L. Ritter, hav-ing been nominated by the President ofthe United States, confirmed by theSenate of the United States, dulyqualified and commissioned, and, while

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acting as a United States Districtjudge for the southern district of Flor-ida, was and is guilty of a high crimeand misdemeanor in office in mannerand form as follows, to wit:

That the said Halsted L. Ritter,while such judge, was guilty of a viola-tion of section 258 of the Judicial Codeof the United States of America(U.S.C., Annotated, title 28, sec. 373)making it unlawful for any judge ap-pointed under the authority of theUnited States to exercise the profes-sion or employment of counsel or attor-ney, or to be engaged in the practice ofthe law, in that after the employmentof the law firm of Ritter and Rankin(which at the time of the appointmentof Halsted L. Ritter to be judge of theUnited States District Court for theSouthern District of Florida, was com-posed of Halsted L. Ritter and A.L.Rankin) in the case of Trust Companyof Georgia and Robert G. Stephens,trustee, against Brazilian Court Build-ing Corporation, and others, numbered5704, in the Circuit Court of the Fif-teenth Judicial Circuit of Florida, andafter the fee of $4,000 which had beenagreed upon at the outset of said em-ployment had been fully paid to thefirm of Ritter and Rankin, and afterHalsted L. Ritter had, on, to wit, Feb-ruary 15, 1929, become judge of theUnited States District Court for theSouthern District of Florida, Judge Rit-ter on, to wit, March 11, 1929, wrote aletter to Charles A. Brodek, of counselfor Mulford Realty Corporation (the cli-ent which his former law firm hadbeen representing in said litigation),stating that there had been muchextra and unanticipated work in thecase, that he was then a FederalJudge; that his partner, A.L. Rankin,

would carry through further pro-ceedings in the case, but that he,Judge Ritter, would be consulted aboutthe matter until the case was all closedup; and that ‘‘this matter is one amongvery few which I am assuming to con-tinue my interest in until finally closedup’’; and stating specifically in said let-ter:

‘‘I do not know whether any appealwill be taken in the case or not but, ifso, we hope to get Mr. Howard Paschalor some other person as receiver whowill be amenable to our directions, andthe hotel can be operated at a profit, ofcourse, pending the appeal. We shalldemand a very heavy supersedeasbond, which I doubt whether D’Esterrecan give’’; and further that he was ‘‘ofcourse primarily interested in gettingsome money in the case’’, and that hethought ‘‘$2,000 more by way of attor-neys’ fees should be allowed’’, andasked that he be communicated withdirect about the matter, giving hispost-office-box number. On to wit,March 13, 1929, said Brodek repliedfavorably, and on March 30, 1929, acheck of Brodek, Raphael, and Eisner,a law firm of New York City, rep-resenting Mulford Realty Corporation,in which Charles A. Brodek, seniormember of the firm of Brodek, Raphaeland Eisner, was one of the directors,was drawn, payable to the order of‘‘Honorable Halsted L. Ritter’’ for$2,000 and which was duly endorsed‘‘Honorable Halsted L. Ritter. H. L.Ritter’’ and was paid on, to wit, April4, 1929, and the proceeds thereof werereceived and appropriated by JudgeRitter to his own individual use andbenefit, without advising his saidformer partner that said $2,000 hadbeen received, without consulting with

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his former partner thereabout, andwithout the knowledge or consent ofhis said former partner, appropriatedthe entire amount thus solicited andreceived to the use and benefit of him-self, the said Judge Ritter.

At the time said letter was writtenby Judge Ritter and said $2,000 re-ceived by him, Mulford Realty Cor-poration held and owned large inter-ests in Florida real estate and citrusgroves, and a large amount of securi-ties of the Olympia Improvement Cor-poration, which was a company orga-nized to develop and promote Olympia,Florida, said holdings being within theterritorial jurisdiction of the UnitedStates District Court, of which JudgeRitter was a judge from, to wit, Feb-ruary 15, 1929.

After writing said letter of March 11,1929, Judge Ritter further exercisedthe profession or employment of coun-sel or attorney, or engaged in the prac-tice of the law, with relation to saidcase.

Which acts of said judge were cal-culated to bring his office into disre-pute, constitute a violation of section258 of the Judicial Code of the UnitedStates of America (U.S.C., Annotated,title 28, sec. 373), and constitute ahigh crime and misdemeanor withinthe meaning and intent of section 4 ofarticle II of the Constitution of theUnited States.

Wherefore, the said Judge Halsted L.Ritter was and is guilty of a high mis-demeanor in office.

ARTICLE IV

That the said Halsted L. Ritter, hav-ing been nominated by the President ofthe United States, confirmed by the

Senate of the United States, dulyqualified and commissioned, and, whileacting as a United States district judgefor the southern district of Florida, wasand is guilty of a high crime and mis-demeanor in office in manner and formas follows to wit:

That the said Halsted L. Ritter,while such judge, was guilty of a viola-tion of section 258 of the Judicial Codeof the United States of America(U.S.C., Annotated, title 28, sec. 373),making it unlawful for any judge ap-pointed under the authority of theUnited States to exercise the profes-sion or employment of counsel or attor-ney, or to be engaged in the practice ofthe law, in that Judge Ritter did exer-cise the profession or employment ofcounsel or attorney, or engage in thepractice of the law, representing J.R.Francis, with relation to the BocaRaton matter and the segregation andsaving of the interest of J.R. Francisherein, or in obtaining a deed or deedsto J.R. Francis from the Spanish RiverLand Company to certain pieces of re-alty, and in the Edgewater OceanBeach Development Company matterfor which services the said Judge Rit-ter received from the said J.R. Francisthe sum of $7,500.

Which acts of said judge were cal-culated to bring his office into disre-pute constitute a violation of the lawabove recited, and constitute a highcrime and misdemeanor within themeaning and intent of section 4 of arti-cle II of the Constitution of the UnitedStates.

Wherefore, the said Judge Halsted L.Ritter was and is guilty of a high mis-demeanor in office.

ARTICLE V

That the said Halsted L. Ritter, hav-ing been nominated by the President of

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the United States, confirmed by theSenate of the United States, dulyqualified and commissioned, and, whileacting as a United States district judgefor the southern district of Florida, wasand is guilty of a high crime and mis-demeanor in office in manner and formas follows, to wit:

That the said Halsted L. Ritter,while such judge, was guilty of viola-tion of section 146(h) of the RevenueAct of 1928, making it unlawful forany person willfully to attempt in anymanner to evade or defend the pay-ment of the income tax levied in andby said Revenue Act of 1928, in thatduring the year 1929 said Judge Ritterreceived gross taxable income—overand above his salary as judge—to theamount of some $12,000, yet paid noincome tax thereon.

Among the fees included in saidgross taxable income for 1929 were theextra fee of $2,000 collected and re-ceived by Judge Ritter in the BrazilianCourt case as described in article III,and the fee of $7,500 received by JudgeRitter from J.R. Francis.

Wherefore the said Judge Halsted L.Ritter was and is guilty of a high mis-demeanor in office.

ARTICLE VI

That the said Halsted L. Ritter, hav-ing been nominated by the President ofthe United States, confirmed by theSenate of the United States, dulyqualified and commissioned, and, whileacting as a United States district judgefor the southern district of Florida, wasand is guilty of a high crime and mis-demeanor in office in manner and formas follows, to wit:

That the said Halsted L. Ritter,while such judge, was guilty of viola-

tion of section 146(b) of the RevenueAct of 1928, making it unlawful forany person willfully to attempt in anymanner to evade or defeat the paymentof the income tax levied in and by saidRevenue Act of 1928, in that duringthe year 1930 the said Judge Ritter re-ceived gross taxable income—over andabove his salary as judge—to theamount of to wit, $5,300, yet failed toreport any part thereof in his income-tax return for the year 1930 and paidno income tax thereon.

Two thousand five hundred dollarsof said gross taxable income for 1930was that amount of cash paid JudgeRitter by A. L. Rankin on December24, 1930, as described in article I.

Wherefore the said Judge Halsted L.Ritter was and is guilty of a high mis-demeanor in office.

ARTICLE VII

That the said Halsted L. Ritter,while holding the office of UnitedStates district judge for the southerndistrict of Florida, having been nomi-nated by the President of the UnitedStates, confirmed by the Senate of theUnited States, duly qualified and com-missioned, and, while acting as aUnited States district judge for thesouthern district of Florida, was and isguilty of misbehavior and of highcrimes and misdemeanors in office inmanner and form as follows, to wit:

The reasonable and probable con-sequence of the actions or conduct ofHalsted L. Ritter, hereunder specifiedor indicated in this article, since he be-came judge of said court, as an indi-vidual or as such judge, is to bring hiscourt into scandal and disrepute, to theprejudice of said court and public con-

1970


fidence in the administration of justicetherein, and to the prejudice of publicrespect for and confidence in the Fed-eral judiciary, and to render him unfitto continue to serve as such judge:

1. In that in the Florida Power Com-pany case (Florida Power and LightCompany against City of Miami andothers, numbered 1138–M–Eq.) whichwas a case wherein said judge hadgranted the complainant power com-pany a temporary injunction restrain-ing the enforcement of an ordinance ofthe city of Miami, which ordinance pre-scribed a reduction in the rates forelectric current being charged in saidcity, said judge improperly appointedone Cary T. Hutchinson, who had longbeen associated with and employed bypower and utility interests, specialmaster in chancery in said suit, andrefused to revoke his order so appoint-ing said Hutchinson. Thereafter, whencriticism of such action had becomecurrent in the city of Miami, and with-in two weeks after a resolution (H.Res. 163, Seventy-third Congress) hadbeen agreed to in the House of Rep-resentatives of the Congress of theUnited States, authorizing and direct-ing the Judicial Committee thereof toinvestigate the official conduct of saidjudge and to make a report concerningsaid conduct to said House of Rep-resentatives an arrangement was en-tered into with the city commissionersof the city of Miami or with the city at-torney of said city by which the saidcity commissioners were to pass a reso-lution expressing faith and confidencein the integrity of said judge, and thesaid judge recuse himself as judge insaid Dower suit. The said agreementwas carried out by the parties thereto,and said judge, after the passage of

such resolution, recused himself fromsitting as judge in said power suit,thereby bartering his judicial authorityin said case for a vote of confidence.Nevertheless, the succeeding judge al-lowed said Hutchinson as special mas-ter in chancery in said case a fee of$5,000, although he performed little, ifany, service as such, and in the ordermaking such allowance recited: ‘‘And itappearing to the court that a minimumfee of $5,000 was approved by thecourt for the said Cary T. Hutchinson,special master in this cause.’’

2. In that in the Trust Company ofFlorida cases (Illick against TrustCompany of Florida and others num-bered 1043–M–Eq., and EdmundsCommittee and others against MarionMortgage Company and others, num-bered 1124–M–Eq.) after the Statebanking department of Florida,through its comptroller, Honorable Er-nest Amos, had closed the doors of theTrust Company of Florida and ap-pointed J.H. Therrell liquidator forsaid trust company, and had inter-vened in the said Illick case, saidJudge Ritter wrongfully and erro-neously refused to recognize the rightof said State authority to administerthe affairs of the said trust companyand appointed Julian E. Eaton andClark D. Stearns as receivers of theproperty of said trust company. On ap-peal, the United States Circuit Courtof Appeals for the Fifth Circuit re-versed the said order or decree ofJudge Ritter and ordered the saidproperty surrendered to the State liq-uidator. Thereafter, on, to wit, Sep-tember 12, 1932, there was filed in theUnited States District Court for theSouthern District of Florida theEdmunds Committee case, supra. Mar-

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ion Mortgage Company was a sub-sidiary of the Trust Company of Flor-ida. Judge Ritter being absent from hisdistrict at the time of the filing of saidcase, an application for the appoint-ment of receivers therein was pre-sented to another judge of said district,namely, Honorable AlexanderAkerman. Judge Ritter, however, priorto the appointment of such receivers,telegraphed Judge Akerman, request-ing him to appoint the aforesaid Eatonand Stearns as receivers in said case,which appointments were made byJudge Akerman. Thereafter the UnitedStates Circuit Court of Appeals for theFifth Circuit reversed the order ofJudge Akerman, appointing said Eatonand Stearns as receivers in said case.In November 1932, J.H. Therrell, asliquidator, filed a bill of complaint inthe Circuit Court of Dade County,Florida—a court of the State of Flor-ida—alleging that the various trustproperties of the Trust Company ofFlorida were burdensome to the liqui-dator to keep, and asking that thecourt appoint a succeeding trustee.Upon petition for removal of said causefrom said State court into the UnitedStates District Court for the SouthernDistrict of Florida, Judge Ritter tookjurisdiction, notwithstanding the pre-vious rulings of the United States Cir-cuit Court of Appeals above referred to,and again appointed the said Eatonand Stearns as the receivers of thesaid trust properties. In December1932 the said Therrell surrendered allof the trust properties to said Eatonand Stearns as receivers, together withall records of the Trust Company ofFlorida pertaining thereto. During thetime said Eaton and Stearns, as suchreceivers, were in control of said trust

properties, Judge Ritter wrongfullyand improperly approved their ac-counts without notice or opportunityfor objection thereto to be heard.

With the knowledge of Judge Ritter,said receivers appointed the sister-in-law of Judge Ritter, namely, Mrs. G.M.Wickard, who had had no previoushotel-management experience, to bemanager of the Julia Tuttle Hotel andApartment Building, one of said trustproperties. On, to wit, January 1, 1933,Honorable J.M. Lee succeeded Honor-able Ernest Amos as comptroller of theState of Florida and appointed M.A.Smith liquidator in said Trust Com-pany of Florida cases to succeed J.H.Therrell. An appeal was again taken tothe United States Circuit Court of Ap-peals for the Fifth Circuit from thethen latest order or decree of JudgeRitter, and again the order or decree ofJudge Ritter appealed from was re-versed by the said circuit court of ap-peals which held that the State officerwas entitled to the custody of the prop-erty involved and that said Eaton andStearns as receivers were not entitledto such custody. Thereafter, and withthe knowledge of the decision of thesaid circuit court of appeals, Judge Rit-ter wrongfully and improperly allowedsaid Eaton and Stearns and their at-torneys some $26,000 as fees out ofsaid trust-estate properties and en-deavored to require, as a conditionprecedent to releasing said trust prop-erties from the control of his court, apromise from counsel for the said Stateliquidator not to appeal from his orderallowing the said fees to said Eatonand Stearns and their attorneys.

3. In that the said Halsted L. Ritter,while such Federal judge, accepted, inaddition to $4,500 from his former law

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partner as alleged in article I hereofother large fees or gratuities, to wit,$7,500 from J.R. Francis, on or aboutApril 19, 1929, J.R. Francis at thistime having large property interestswithin the territorial jurisdiction of thecourt of which Judge Ritter was ajudge; and on, to wit, the 4th day ofApril 1929 the said Judge Ritter ac-cepted the sum of $2,000 from Brodek,Raphael and Eisner, representingMulford Realty Corporation, as its at-torneys, through Charles A. Brodek,senior member of said firm and a di-rector of said corporation, as a fee orgratuity, at which time the saidMulford Realty Corporation held andowned large interests in Florida realestate and citrus groves, and a largeamount of securities of the OlympiaImprovement Corporation, which wasa company organized to develop andpromote Olympia, Florida, said holdingbeing within the territorial jurisdictionof the United States District Court ofwhich Judge Ritter was a judge from,to wit, February 15, 1929.

4. By his conduct as detailed in arti-cles I, II, III, and IV hereof, and by hisincome-tax evasions as set forth in ar-ticles V and VI hereof.

Wherefore, the said Judge Halsted L.Ritter was and is guilty of mis-behavior, and was and is guilty of highcrimes and misdemeanors in office.

Cumulative and DuplicatoryArticles of Impeachment

§ 3.3 Majority views and mi-nority views were includedin the report of the Com-mittee on the Judiciary rec-ommending the impeach-

ment of President RichardM. Nixon, such views relatingto Article II, containing anaccumulation of acts consti-tuting a course of conduct.On Aug. 20, 1974, the Com-

mittee on the Judiciary rec-ommended in its final report tothe House, pursuant to its inquiryinto charges of impeachable of-fenses against President Nixon,three articles of impeachment. Ar-ticle II charged that the Presidenthad ‘‘repeatedly engaged in con-duct’’ violative of his Presidentialoath and of his constitutional dutyto take care that the laws befaithfully executed. The article setforth, in five separate paragraphs,five patterns of conduct consti-tuting the offenses charged.

The conclusion of the commit-tee’s report on Article II read inpart as follows:

In recommending Article II to theHouse, the Committee finds clear andconvincing evidence that Richard M.Nixon, contrary to his trust as Presi-dent and unmindful of the solemn du-ties of his high office, has repeatedlyused his power as President to violatethe Constitution and the law of theland.

In so doing, he has failed in the obli-gation that every citizen has to liveunder the law. But he has done more,for it is the duty of the President notmerely to live by the law but to seethat law faithfully applied. Richard M.Nixon has repeatedly and willfully

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11. H. REPT. No. 93–1305, at pp. 180–183, Committee on the Judiciary,printed in the Record at 120 CONG.REC. 29270, 29271, 93d Cong. 2dSess., Aug. 20, 1974. For completetext of H. REPT. No. 93–1305, see id.at pp. 29219–361.

failed to perform that duty. He hasfailed to perform it by authorizing anddirecting actions that violated or dis-regarded the rights of citizens and thatcorrupted and attempted to corrupt thelawful functioning of executive agen-cies. He has failed to perform it bycondoning and ratifying, rather thanacting to stop, actions by his subordi-nates that interfered with lawful inves-tigations and impeded the enforcementof the laws. . . .

The conduct of Richard M. Nixon hasconstituted a repeated and continuingabuse of the powers of the Presidencyin disregard of the fundamental prin-ciple of the rule of law in our systemof government. This abuse of the pow-ers of the President was carried out byRichard M. Nixon, acting personallyand through his subordinates, for hisown political advantage, not for any le-gitimate governmental purpose andwithout due consideration for the na-tional good. . . .

The Committee has concluded that,to perform its constitutional duty, itmust approve this Article of Impeach-ment and recommend it to the House.If we had been unwilling to carry outthe principle that all those who govern,including ourselves, are accountable tothe law and the Constitution, wewould have failed in our responsibilityas representatives of the people electedunder the Constitution. If we had notbeen prepared to apply the principle ofPresidential accountability embodiedin the impeachment clause of the Con-stitution, but had instead condoned theconduct of Richard M. Nixon, then an-other President, perhaps with a dif-ferent political philosophy, might haveused this illegitimate power for furtherencroachments on the rights of citizens

and further usurpations of the powerof other branches of our government.By adopting this Article, the Com-mittee seeks to prevent the recurrenceof any such abuse of Presidentialpower.

The Committee finds that, in theperformance of his duties as President,Richard M. Nixon on many occasionshas acted to the detriment of justice,right, and the public good, in violationof his constitutional duty to see to thefaithful execution of the laws. Thisconduct has demonstrated a contemptfor the rule of law; it has posed athreat to our democratic republic. TheCommittee finds that this conduct con-stitutes ‘‘high crimes and mis-demeanors’’ within the meaning of theConstitution, that it warrants his im-peachment by the House, and that itrequires that he be put to trial in theSenate.(11)

Opposing minority views wereincluded in the report on the ‘‘du-plicity’’ of offenses charged in Ar-ticle II. The views (footnotes omit-ted) below are those of Messrs.Hutchinson, Smith, Sandman,Wiggins, Dennis, Mayne, Lott,Moorhead, Maraziti, and Latta:

Our opposition to the adoption of Ar-ticle II should not be misunderstood ascondonation of the presidential conductalleged therein. On the contrary, we

1974


deplore in strongest terms the aspectsof presidential wrongdoing to whichthe Article is addressed. However, wecould not in conscience recommendthat the House impeach and the Sen-ate try the President on the basis ofArticle II in its form as proposed, be-cause in our view the Article isduplicitous in both the ordinary andthe legal senses of the word. In com-mon usage, duplicity means belyingone’s true intentions by deceptivewords; as a legal term of art, duplicitydenotes the technical fault of unitingtwo or more offenses in the same countof an indictment. We submit that theimplications of a vote for or against Ar-ticle II are ambiguous and that theCommittee debate did not resolve theambiguities so as to enable the Mem-bers to vote intelligently. Indeed, thisdefect is symptomatic of a genericproblem inherent in the process ofdrafting Articles of impeachment, andits significance for posterity may be fargreater than the substantive merits ofthe particular charges embodied in Ar-ticle II. . . .

We do not take the position that thegrouping of charges in a single Articleis necessarily always invalid. To thecontrary, it would make good sense ifthe alleged offenses together compriseda common scheme or plan, or even ifthey were united by a specific legaltheory. Indeed, even if there were nological reason at all for so grouping thecharges (as is true of Article II), theArticle might still be acceptable if itsambiguous aspects had been satisfac-torily resolved. For the chief vice ofthis Article is that it is unclear fromits language whether a Member shouldvote for its adoption if he believes anyone of the five charges to be supported

by the evidence; or whether he mustbelieve in the sufficiency of all five; orwhether it is enough if he believes inthe sufficiency of more than half of thecharges. The only clue is the sentencewhich states, ‘‘This conduct has in-cluded one or more of the following[five specifications]’’. This sentence im-plies that a Member may—indeed,must—vote to impeach or to convict ifhe believes in the sufficiency of a sin-gle specification, even though he be-lieves that the accusations made underthe other four specifications have notbeen proved, or do not even constitutegrounds for impeachment. Thus ArticleII would have unfairly accumulated allguilty votes against the President, onwhatever charge. The President couldhave been removed from office eventhough no more than fourteen Senatorsbelieved him guilty of the acts chargedin any one of the five specifications.

Nor could the President have de-fended himself against the ambiguouscharges embodied in Article II. Inas-much as five specifications are in-cluded in support of three legal theo-ries, and all eight elements arephrased in the alternative, Article IIactually contains no fewer than fifteenseparate counts, any one of whichmight be deemed to constitute groundsfor impeachment and removal. In addi-tion, if the President were not in-formed which matters included in Arti-cle II were thought to constitute ‘‘highCrimes and Misdemeanors,’’ he wouldhave been deprived of his right underthe Sixth Amendment to ‘‘be informedof the nature and cause of the accusa-tion’’ against him.

This defect of Article II calls to mindthe impeachment trial of Judge Hal-sted Ritter in 1936. Ritter was nar-

1975


rowly acquitted of specific charges ofbribery and related offenses set forthin the first six Articles. He was con-victed by an exact two-thirds majority,however, under Article VII. That Arti-cle charged that because of the specificoffenses embodied in the other six Arti-cles, Ritter had ‘‘[brought] his courtinto scandal and disrepute, to the prej-udice of said court and public con-fidence in the administration of jus-tice. . . .’’ The propriety of convictinghim on the basis of this vague charge,after he had been acquitted on all ofthe specific charges, will long be de-bated. Suffice it to say that the puta-tive defect of Article VII is entirely dif-ferent from that of Article II in thepresent case, and the two should notbe confused.

A more relevant precedent may befound in the House debates during theimpeachment of Judge Charles Swaynein 1905. In that case the House hadfollowed the earlier practice of votingfirst on the general question of wheth-er or not to impeach, and then draftingthe Articles. Swayne was impeached inDecember 1904, by a vote of 198–61,on the basis of five instances of mis-conduct. During January 1905 thesefive grounds for impeachment were ar-ticulated in twelve Articles. In thecourse of debate prior to the adoptionof the Articles, it was discovered thatalthough the general proposition to im-peach had commanded a majority, in-dividual Members had reached thatconclusion for different reasons. Thisgave rise to the embarrassing possi-bility that none of the Articles wouldbe able to command a majority vote.Representative Parker regretted thatthe House had not voted on eachcharge separately before voting on im-peachment:

[W]here different crimes and mis-demeanors were alleged it was theduty of the House to have votedwhether each class of matter re-ported was impeachable before de-bating that resolution of impeach-ment, and that the committee wasentitled to the vote of a majority oneach branch, and that now for thefirst time the real question of im-peachment has come before thisHouse to be determined—not by fivemen on one charge, fifteen on an-other, and twenty on another comingin generally and saying that for oneor another of the charges JudgeSwayne should be impeached, but oneach particular branch of the case.

When we were asked to vote uponten charges at once, that there wassomething impeachable contained inone or another of those charges wehave already perhaps stultified our-selves in the mode of our proce-dure. . . .

In order to extricate the House fromits quandary, Representative Powersurged that the earlier vote to impeachshould be construed to imply that amajority of the House felt that each ofthe separate charges had been proved;

At that time the committee urgedthe impeachment upon five grounds,and those are the only groundswhich are covered by the articles. . . and we had assumed that whenthe House voted the impeachmentthey practically said that a probablecause was made out in these fivesubject-matters which were dis-cussed before the House.

Powers’ retrospective theory was ul-timately vindicated when the Houseapproved all twelve Articles.

If the episode from the Swayne im-peachment is accorded any preceden-tial value in the present controversyover Article II, it might be argued byanalogy that the Committee’s vote to

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12. H. REPT. NO. 93–1305, at pp. 427–431, Committee on the Judiciary,

printed in the Record at 120 CONG.REC. 29332–34, 93d Cong. 2d Sess.,Aug. 20, 1974.

13. 80 CONG. REC. 4898, 74th Cong. 2dSess. The motion was submitted onMar. 31, 1936, 80 CONG. REC. 4656,4657, and reserved for decision.

adopt that Article must be construed toimply that a majority believed that allfive specifications had been proved. Be-cause the Committee did not vote sepa-rately on each specification, however, itis impossible to know whether thoseMembers who voted for Article IIwould be willing to accept that con-struction. If so, then one of our majorobjections to the Article would vanish.However, it would still be necessary toamend the Article by removing thesentence ‘‘This has included one ormore of the following,’’ and sub-stituting language which would makeit plain that no Member of the Houseor Senate could vote for the Article un-less he was convinced of the inde-pendent sufficiency of each of the fivespecifications.

However, there remains another andmore subtle objection to the lumpingtogether of unrelated charges in ArticleII:

There is indeed always a dangerwhen several crimes are tied to-gether, that the jury will use the evi-dence cumulatively; that is, that al-though so much as would be admis-sible upon any one of the chargesmight not have persuaded them ofthe accused’s guilt, the sum of it willconvince them as to all.

It is thus not enough protection foran accused that the Senate may chooseto vote separately upon each section ofan omnibus article of impeachment:the prejudicial effect of grouping a di-verse mass of factual material underone heading, some of it adduced toprove one proposition and another toprove a proposition entirely unrelated,would still remain.(12)

§ 3.4 The Senate, sitting as aCourt of Impeachment, re-jected a motion to strike arti-cles of impeachment on theground that certain articleswere duplicatory and accu-mulative.On Apr. 3, 1936,(13) Judge Hal-

sted L. Ritter, respondent in animpeachment trial, moved in theSenate to strike certain articles onthe grounds of duplication and ac-cumulation of changes.

The motion as duly filed bycounsel for the respondent is asfollows:In the Senate of the United States of

America sitting as a Court of Impeach-ment. The United States of America v.Halsted L. Ritter, respondent

MOTION TO STRIKE ARTICLE I, OR, IN

THE ALTERNATIVE, TO REQUIRE

ELECTION AS TO ARTICLES I AND II;AND MOTION TO STRIKE ARTICLE VII

The respondent, Halsted L. Ritter,moves the honorable Senate, sitting asa Court of Impeachment, for an orderstriking and dismissing article I of thearticles of impeachment, or, in the al-ternative, to require the honorablemanagers on the part of the House ofRepresentatives to elect as to whetherthey will proceed upon article I or

1977


14. For a summary of the arguments bycounsel on the motions, and citationsthereto, see § 18.12, infra.

upon article II, and for grounds of suchmotion respondent says:

1. Article II reiterates and embracesall the charges and allegations of arti-cle I, and the respondent is thus andthereby twice charged in separate arti-cles with the same and identical of-fense, and twice required to defendagainst the charge presented in articleI.

2. The presentation of the same andidentical charge in the two articles inquestion tends to prejudice the re-spondent in his defense, and tends tooppress the respondent in that the ar-ticles are so framed as to collect, or ac-cumulate upon the second article, theadverse votes, if any, upon the first ar-ticle.

3. The Constitution of the UnitedStates contemplates but one vote of theSenate upon the charge contained ineach article of impeachment, whereasarticles I and II are constructed andarranged in such form and manner asto require and exact of the Senate asecond vote upon the subject matter ofarticle I.

MOTION TO STRIKE ARTICLE VII

And the respondent further movesthe honorable Senate, sitting as aCourt of Impeachment, for an orderstriking and dismissing article VII,and for grounds of such motion, re-spondent says:

1. Article VII includes and embracesall the charges set forth in articles I,II, III, IV, V, and VI.

2. Article VII constitutes an accumu-lation and massing of all charges inpreceding articles upon which theCourt is to pass judgment prior to thevote on article VII, and the prosecution

should be required to abide by thejudgment of the Senate rendered uponsuch prior articles and the Senateought not to countenance the arrange-ment of pleading designed to procure asecond vote and the collection or accu-mulation of adverse votes, if any, uponsuch matters.

3. The presentation in article VII ofmore than one subject and the chargesarising out of a single subject is unjustand prejudicial to respondent.

4. In fairness and justice to respond-ent, the Court ought to require separa-tion and singleness of the subject mat-ter of the charges in separate and dis-tinct articles, upon which a single andfinal vote of the Senate upon each arti-cle and charge can be had.

FRANK P. WALSH,CARL T. HOFFMAN,

Of Counsel for Respondent.

Presiding Officer Nathan L.Bachman, of Tennessee, overruledthat part of the motion to strikerelating to Articles I and II, find-ing that those articles presenteddistinct and different bases for im-peachment. This ruling was sus-tained. With respect to the appli-cation of the motion to Article VII,the Presiding Officer submittedthe question of duplication to theCourt of Impeachment for a deci-sion. The motion to strike ArticleVII was overruled on a voicevote.(14)

§ 3.5 During the Ritter im-peachment trial in the Sen-

1978


15. 80 CONG. REC. 5606, 74th Cong. 2dSess.

ate, the President pro tem-pore overruled a point oforder against a vote of con-viction on the seventh arti-cle, where the point of orderwas based on an accumula-tion or combination of factsand circumstances.On Apr. 17, 1936, President pro

tempore Key Pittman, of Nevada,stated that the Senate had by atwo-thirds vote adjudged the re-spondent Judge Halsted L. Ritterguilty as charged in Article VII ofthe articles of impeachment. Heover-ruled a point of order againstthe vote, as follows:

MR. [WARREN R.] AUSTIN [ofVermont]: The first reason for thepoint of order is that here is a com-bination of facts in the indictment, theingredients of which are the several ar-ticles which precede article VII, asseen by paragraph marked 4 on page36. The second reason is contained inthe Constitution of the United States,which provides that no person shall beconvicted without the concurrence oftwo-thirds of the members present.The third reason is that this matterhas been passed upon judicially, and ithas been held that an attempt to con-vict upon a combination ofcircumstances——

MR. [GEORGE] MCGILL, [of Kansas]:Mr. President, a parliamentary in-quiry.

MR. AUSTIN: Of which the respond-ent has been found innocent would bemonstrous. I refer to the case of An-drews v. King (77 Maine, 235). . . .

THE PRESIDENT PRO TEMPORE: Apoint of order is made as to article VII,in which the respondent is chargedwith general misbehavior. It is a sepa-rate charge from any other charge, andthe point of order is overruled.(15)

Use of Historical Precedents

§ 3.6 With respect to the con-duct of President RichardNixon, the impeachment in-quiry staff of the Committeeon the Judiciary reported tothe committee on ‘‘Constitu-tional Grounds for Presi-dential Impeachment,’’ whichincluded references to thevalue of historical prece-dents.During an inquiry into impeach-

able offenses against PresidentNixon in the 93d Congress by theCommittee on the Judiciary, thecommittee’s impeachment inquirystaff reported to the committee ongrounds for impeachment of thePresident. The report discussed indetail the historical bases and ori-gins, in both English parliamen-tary practice and in the practice ofthe U.S. Congress, of the impeach-ment power, and drew conclusionsas to the grounds for impeach-ment of the President and of otherfederal civil officers from the his-tory of impeachment proceedings

1979


16. The report is printed in full in theappendix to this chapter, infra. Thestaff report was printed as a com-mittee print, and the House author-ized on June 6, 1974, the printing of3,000 additional copies thereof. H.Res. 935, 93d Cong. 2d Sess.

17. H. REPT. No. 93–1305, at pp. 133 etseq., Committee on the Judiciary.

See the articles and conclusionsprinted in the Record in full at 120CONG. REC. 29219–79, 93d Cong. 2dSess., Aug. 20, 1974.

and from the history of the U.S.Constitution.(16)

Grounds for Presidential Im-peachment

§ 3.7 The Committee on the Ju-diciary concluded, in recom-mending articles impeachingPresident Richard Nixon tothe House, that the Presidentcould be impeached not onlyfor violations of federalcriminal statutes, but alsofor (1) serious abuse of thepowers of his office, and (2)refusal to comply with prop-er subpoenas of the com-mittee for evidence relevantto its impeachment inquiry.In its final report to the House

pursuant to its impeachment in-quiry into the conduct of Presi-dent Nixon in the 93d Congress,the Committee on the Judiciaryset forth the following conclusions(footnotes omitted) on the threearticles of impeachment adoptedby the committee and included inits report:(17)

[ARTICLE I]

CONCLUSION

After the Committee on the Judici-ary had debated whether or not itshould recommend Article I to theHouse of Representatives, 27 of the 38Members of the Committee found thatthe evidence before it could only leadto one conclusion; that Richard M.Nixon, using the powers of his high of-fice, engaged, personally and throughhis subordinates and agents, in acourse of conduct or plan designed todelay, impede, and obstruct the inves-tigation of the unlawful entry, on June17, 1972, into the headquarters of theDemocratic National Committee; tocover up, conceal and protect those re-sponsible; and to conceal the existenceand scope of other unlawful covert ac-tivities.

This finding is the only one that canexplain the President’s involvement ina pattern of undisputed acts that oc-curred after the break-in and that can-not otherwise be rationally explained.. . .

President Nixon’s course of conductfollowing the Watergate break-in, asdescribed in Article I, caused actionnot only by his subordinates but by theagencies of the United States, includ-ing the Department of Justice, theFBI, and the CIA. It required perjury,destruction of evidence, obstruction ofjustice, all crimes. But, most impor-tant, it required deliberate, contrived,and continuing deception of the Amer-ican people.

1980


President Nixon’s actions resulted inmanifest injury to the confidence of thenation and great prejudice to the causeof law and justice, and was subversiveof constitutional government. His ac-tions were contrary to his trust asPresident and unmindful of the solemnduties of his high office. It was this se-rious violation of Richard M. Nixon’sconstitutional obligations as President,and not the fact that violations of Fed-eral criminal statutes occurred, thatlies at the heart of Article I.

The Committee finds, based uponclear and convincing evidence, thatthis conduct, detailed in the foregoingpages of this report, constitutes ‘‘highcrimes and misdemeanors’’ as thatterm is used in Article II, Section 4 ofthe Constitution. Therefore, the Com-mittee recommends that the House ofRepresentatives exercise its constitu-tional power to impeach Richard M.Nixon.

On August 5, 1974, nine days afterthe Committee had voted on Article I,President Nixon released to the publicand submitted to the Committee on theJudiciary three additional edited WhiteHouse transcripts of Presidential con-versations that took place on June 23,1972, six days following the DNCbreak-in. Judge Sirica had that day re-leased to the Special Prosecutor tran-scripts of those conversations pursuantto the mandate of the United StatesSupreme Court. The Committee hadsubpoenaed the tape recordings ofthose conversations, but the Presidenthad refused to honor the subpoena.

These transcripts conclusively con-firm the finding that the Committeehad already made, on the basis of clearand convincing evidence, that fromshortly after the break-in on June 17,

1972, Richard M. Nixon, acting person-ally and through his subordinates andagents, made it his plan to and did di-rect his subordinates to engage in acourse of conduct designed to delay,impede and obstruct investigation ofthe unlawful entry of the headquartersof the Democratic National Committee;to cover up, conceal and protect thoseresponsible; and to conceal the exist-ence and scope of other unlawful covertactivities. . . .

[ARTICLE II]

CONCLUSION

In recommending Article II to theHouse, the Committee finds clear andconvincing evidence that Richard M.Nixon, contrary to his trust as Presi-dent and unmindful of the solemn du-ties of his high office, has repeatedlyused his power as President to violatethe Constitution and the law of theland.

In so doing, he has failed in the obli-gation that every citizen has to liveunder the law. But he has done more,for it is the duty of the President notmerely to live by that law but to seethat law faithfully applied. Richard M.Nixon has repeatedly and willfullyfailed to perform that duty. He hasfailed to perform it by authorizing anddirecting actions that violated or dis-regarded the rights of citizens and thatcorrupted and attempted to corrupt thelawful functioning of executive agen-cies. He has failed to perform it bycondoning and ratifying, rather thanacting to stop, actions by his subordi-nates that interfered with lawful inves-tigations and impeded the enforcementof the laws.

Article II, section 3 of the Constitu-tion requires that the President ‘‘shall

1981


take Care that the Laws be faithfullyexecuted.’’ Justice Felix Frankfurterdescribed this provision as ‘‘the em-bracing function of the President’’;President Benjamin Harrison called it‘‘the central idea of the office.’’ ‘‘[I]n arepublic,’’ Harrison wrote, ‘‘the thing tobe executed is the law, not the will ofthe ruler as in despotic governments.The President cannot go beyond thelaw, and he cannot stop short of it.’’

The conduct of Richard M. Nixon hasconstituted a repeated and continuingabuse of the powers of the Presidencyin disregard of the fundamental prin-ciple of the rule of law in our systemof government. This abuse of the pow-ers of the President was carried out byRichard M. Nixon, acting personallyand through his subordinates, for hisown political advantage, not for any le-gitimate governmental purpose andwithout due consideration for the na-tional good.

The rule of law needs no defense bythe Committee. Reverence for the laws,said Abraham Lincoln, should ‘‘becomethe political religion of the nation.’’Said Theodore Roosevelt, ‘‘No man isabove the law and no man is below it;nor do we ask any man’s permissionwhen we require him to obey it.’’

It is a basic principle of our govern-ment that ‘‘we submit ourselves to rul-ers only if [they are] under rules.’’ ‘‘De-cency, security, and liberty alike de-mand that government officials shallbe subjected to the same rules of con-duct that are commands to the citizen,’’wrote Justice Louis Brandeis. The Su-preme Court has said:

No man in this country is so highthat he is above the law. No officerof the law may set that law at defi-ance with impunity. All the officers

of the government, from the highestto the lowest, are creatures of thelaw, and are bound to obey it.

It is the only supreme power inour system of government, and everyman who by accepting office partici-pates in its functions is only themore strongly bound to submit tothat supremacy, and to observe thelimitations upon the exercise of theauthority which it gives.

Our nation owes its strength, its sta-bility, and its endurance to this prin-ciple.

In asserting the supremacy of therule of law among the principles of ourgovernment, the Committee is enun-ciating no new standard of Presidentialconduct. The possibility that Presi-dents have violated this standard inthe past does not diminish its cur-rent—and future—applicability. Re-peated abuse of power by one whoholds the highest public office requiresprompt and decisive remedial action,for it is in the nature of abuses ofpower that if they go unchecked theywill become overbearing, depriving thepeople and their representatives of thestrength of will or the wherewithal toresist.

Our Constitution provides for a re-sponsible Chief Executive, accountablefor his acts. The framers hoped, in thewords of Elbridge Gerry, that ‘‘themaxim would never be adopted herethat the chief Magistrate could do nowrong.’’ They provided for a single ex-ecutive because, as Alexander Ham-ilton wrote, ‘‘the executive power ismore easily confined when it is one’’and ‘‘there should be a single object forthe . . . watchfulness of the people.’’

The President, said James Wilson,one of the principal authors of the Con-

1982


stitution, ‘‘is the dignified, but account-able magistrate of a free and greatpeople.’’ Wilson said, ‘‘The executivepower is better to be trusted when ithas no screen. . . . [W]e have a re-sponsibility in the person of our Presi-dent . . . he cannot roll upon anyother person the weight of his crimi-nality. . . .’’ As both Wilson and Ham-ilton pointed out, the President shouldnot be able to hide behind his coun-sellors; he must ultimately be account-able for their acts on his behalf. JamesIredell of North Carolina, a leadingproponent of the proposed Constitutionand later a Supreme Court Justice,said that the President ‘‘is of a verydifferent nature from a monarch. He isto be . . . personally responsible forany abuse of the great trust reposed inhim.’’

In considering this Article the Com-mittee has relied on evidence of actsdirectly attributable to Richard M.Nixon himself. He has repeatedly at-tempted to conceal his accountabilityfor these acts and attempted to deceiveand mislead the American peopleabout his own responsibility. He gov-erned behind closed doors, directingthe operation of the executive branchthrough close subordinates, and soughtto conceal his knowledge of what theydid illegally on his behalf. Althoughthe Committee finds it unnecessary inthis case to take any position onwhether the President should be heldaccountable, through exercise of thepower of impeachment, for the actionsof his immediate subordinates, under-taken on his behalf, when his personalauthorization and knowledge of themcannot be proved, it is appropriate tocall attention to the dangers inherentin the performance of the highest pub-

lic office in the land in air of secrecyand concealment.

The abuse of a President’s powersposes a serious threat to the lawfuland proper functioning of the govern-ment and the people’s confidence in it.For just such Presidential misconductthe impeachment power was includedin the Constitution. The impeachmentprovision, wrote Justice Joseph Storyin 1833, ‘‘holds out a deep and imme-diate responsibility, as a check uponarbitrary power; and compels the chiefmagistrate, as well as the humblestcitizen, to bend to the majesty of thelaw.’’ And Chancellor James Kentwrote in 1826:

If . . . neither the sense of duty,the force of public opinion, nor thetransitory nature of the seat, are suf-ficient to secure a faithful exercise ofthe executive trust, but the Presi-dent will use the authority of his sta-tion to violate the Constitution orlaw of the land, the House of Rep-resentatives can arrest him in hiscareer, by resorting to the power ofimpeachment.

The Committee has concluded that,to perform its constitutional duty, itmust approve this Article of Impeach-ment and recommend it to the House.If we had been unwilling to carry outthe principle that all those who govern,including ourselves, are accountable tothe law and the Constitution, wewould have failed in our responsibilityas representatives of the people, elect-ed under the Constitution. If we hadnot been prepared to apply the prin-ciple of Presidential accountability em-bodied in the impeachment clause ofthe Constitution, but had instead con-doned the conduct of Richard M.Nixon, then another President, per-haps with a different political philos-

1983


18. H. REPT. NO. 93–1305, at p. 213,Committee on the Judiciary. See 120CONG. REC. 29279, 93d Cong. 2dSess., Aug. 20, 1974.

See also, for the subpena power ofa committee conducting an impeach-ment investigation, § 6, infra. TheHouse has declined to prosecute for

ophy, might have used this illegitimatepower for further encroachments onthe rights of citizens and furtherusurpations of the power of otherbranches of our government. By adopt-ing this Article, the Committee seeksto prevent the recurrence of any suchabuse of Presidential power.

In recommending Article II to theHouse, the Committee finds clear andconvincing evidence that Richard M.Nixon has not faithfully executed theexecutive trust, but has repeatedlyused his authority as President to vio-late the Constitution and the law ofthe land. In so doing, he violated theobligation that every citizen has to liveunder the law. But he did more, for itis the duty of the President not merelyto live by the law but to see that lawfaithfully applied. Richard M. Nixonrepeatedly and willfully failed to per-form that duty. He failed to perform itby authorizing and directing actionsthat violated the rights of citizens andthat interfered with the functioning ofexecutive agencies. And he failed toperform it by condoning and ratifying,rather than acting to stop, actions byhis subordinates interfering with theenforcement of the laws.

The Committee finds that, in theperformance of his duties as President,Richard M. Nixon on many occasionshas acted to the detriment of justice,right, and the public good, in violationof his constitutional duty to see to thefaithful execution of the laws. Thisconduct has demonstrated a contemptfor the rule of law; it has posed athreat to our democratic republic. TheCommittee finds that this conduct con-stitutes ‘‘high crimes and mis-demeanors’’ within the meaning of theConstitution, that it warrants his im-

peachment by the House, and that itrequires that he be put to trial in theSenate. . . .

[ARTICLE III]

CONCLUSION

The undisputed facts, historic prece-dent, and applicable legal principlessupport the Committee’s recommenda-tion of Article III. There can be noquestion that in refusing to complywith limited, narrowly drawn sub-poenas—issued only after the Com-mittee was satisfied that there wasother evidence pointing to the exist-ence of impeachable offenses—thePresident interfered with the exerciseof the House’s function as the ‘‘GrandInquest of the Nation.’’ Unless the defi-ance of the Committee’s subpoenasunder these circumstances is consid-ered grounds for impeachment, it isdifficult to conceive of any Presidentacknowledging that he is obligated tosupply the relevant evidence necessaryfor Congress to exercise its constitu-tional responsibility in an impeach-ment proceeding. If this were to occur,the impeachment power would bedrained of its vitality. Article III,therefore, seeks to preserve the integ-rity of the impeachment process itselfand the ability of Congress to act asthe ultimate safeguard against im-proper presidential conduct.(18)

1984


contempt of Congress officerscharged with impeachable offensesand refusing to comply with sub-penas (see § 6.12, infra).

19. H. REPT. NO. 93–1305, at pp.362372, Committee on the Judiciary,printed at 120 CONG. REC. 29312–15,93d Cong. 2d Sess., Aug. 20, 1974.

§ 3.8 In the report of the Com-mittee on the Judiciary rec-ommending the impeach-ment of President RichardNixon, the minority took theview that grounds for Presi-dential impeachment mustbe criminal conduct or actswith criminal intent.On Aug. 20, 1974, the Com-

mittee on the Judiciary submitteda report recommending the im-peachment of President Nixon. Inthe minority views set out below(footnotes omitted), Messrs.Hutchinson, Smith, Sandman,Wiggins, Dennis, Mayne, Lott,Moorhead, Maraziti, and Lattadiscussed the grounds for presi-dential impeachment: (19)

B. MEANING OF ‘‘TREASON, BRIBERY OR

OTHER HIGH CRIMES AND MIS-DEMEANORS’’

The Constitution of the UnitedStates provides that the President‘‘shall be removed from Office on Im-peachment for, and Conviction of,Treason, Bribery, or other high Crimesand Misdemeanors.’’ Upon impeach-ment and conviction, removal of thePresident from office is mandatory.

The offenses for which a President maybe impeached are limited to those enu-merated in the Constitution, namely‘‘Treason, Bribery, or other highCrimes and Misdemeanors.’’ We do notbelieve that a President or any othercivil officer of the United States gov-ernment may constitutionally be im-peached and convicted for errors in theadministration of his office.

1. ADOPTION OF ‘‘TREASON, BRIBERY, OR

OTHER HIGH CRIMES AND MIS-DEMEANORS’’ AT CONSTITUTIONAL

CONVENTION

The original version of the impeach-ment clause at the Constitutional Con-vention of 1787 had made ‘‘malpracticeor neglect of duty’’ the grounds for im-peachment. On July 20, 1787, theFramers debated whether to retainthis clause, and decided to do so.

Gouverneur Morris, who had movedto strike the impeachment clause alto-gether, began by arguing that it wasunnecessary because the executive‘‘can do no criminal act without Coad-jutors who may be punished.’’ GeorgeMason disagreed, arguing that ‘‘Whengreat crimes were committed he [fa-vored] punishing the principal as wellas the Coadjutors.’’ Fearing recourse toassassinations, Benjamin Franklin fa-vored impeachment ‘‘to provide in theConstitution for the regular punish-ment of the executive when his mis-conduct should deserve it, and for hishonorable acquittal when he should beunjustly accused.’’ Gouverneur Morristhen admitted that ‘‘corruption & somefew other offenses’’ should be impeach-able, but thought ‘‘the case ought to beenumerated & defined.’’

Rufus King, a co-sponsor of the mo-tion to strike the impeachment clause,

1985


pointed out that the executive, unlikethe judiciary, did not hold his officeduring good behavior, but during afixed, elective term; and accordinglyought not to be impeachable, like thejudiciary, for ‘‘misbehaviour:’’ thiswould be ‘‘destructive of his independ-ence and of the principles of the Con-stitution.’’ Edmund Randolph, how-ever, made a strong statement in favorof retaining the impeachment clause:

Guilt wherever found ought to bepunished. The Executive will havegreat opportunitys of abusing hispower, particularly in time of warwhen the military force, and in somerespects the public money will be inhis hands.

. . . He is aware of the necessityof proceeding with a cautious hand,and of excluding as much as possiblethe influence of the Legislature fromthe business. He suggested for con-sideration . . . requiring some pre-liminary inquest of whether justgrounds for impeachment existed.

Benjamin Franklin again suggestedthe role of impeachments in releasingtensions, using an example from inter-national affairs involving a secret plotto cause the failure of a rendezvous be-tween the French and Dutch fleets—anexample suggestive of treason.Gouverneur Morris, his opinion nowchanged by the discussion, closed thedebate on a note echoing the positionof Randolph:

Our Executive . . . may be bribedby a greater interest to betray histrust; and no one would say that weought to expose ourselves to the dan-ger of seeing the first Magistrate inforeign pay without being able toguard agst. it by displacing him. . . .The Executive ought therefore to beimpeachable for treachery; Cor-

rupting his electors, and incapacitywere other causes of impeachment.For the latter he should be punishednot as a man, but as an officer, andpunished only by degradation fromhis office. . . . When we make himamenable to Justice however weshould take care to provide somemode that will not make him de-pendent on the Legislature.

On the question, ‘‘Shall the Execu-tive be removable on impeachments,’’the proposition then carried by a voteof eight states to two.

A review of this debate hardly leavesthe impression that the Framers in-tended the grounds for impeachment tobe left to the discretion, even the‘‘sound’’ discretion, of the legislature.On a fair reading, Madison’s notes re-veal the Framers’ fear that the im-peachment power would render the ex-ecutive dependent on the legislature.The concrete examples used in the de-bate all refer not only to crimes, but toextremely grave crimes. George Masonmentioned the possibility that thePresident would corrupt his own elec-tors and then ‘‘repeat his guilt,’’ anddescribed grounds for impeachment as‘‘the most extensive injustice.’’ Frank-lin alluded to the beheading of CharlesI, the possibility of assassination, andthe example of the French and Dutchfleets, which connoted betrayal of a na-tional interest. Madison mentioned the‘‘perversion’’ of an ‘‘administration intoa scheme of peculation or oppression,’’or the ‘‘betrayal’’ of the executive’s‘‘trust to foreign powers.’’ EdmundRandolph mentioned the great oppor-tunities for abuse of the executivepower, ‘‘particularly in time of warwhen the military force, and in somerespects the public money will be inhis hands.’’ He cautioned against ‘‘tu-

1986


mults & insurrections.’’ GouveneurMorris similarly contemplated that theexecutive might corrupt his own elec-tors, or ‘‘be bribed by a greater interestto betray his trust’’—just as the Kingof England had been bribed by LouisXIV—and felt he should therefore beimpeachable for ‘‘treachery.’’

After the July 20 vote to retain theimpeachment clause, the resolutioncontaining it was referred to the Com-mittee on Detail, which substituted‘‘treason, bribery or corruption’’ for‘‘malpractice or neglect of duty.’’ Nosurviving records explain the reasonsfor the change, but they are not dif-ficult to understand, in light of thefloor discussion just summarized. Thechange fairly captured the sense of theJuly 20 debate, in which the groundsfor impeachment seem to have beensuch acts as would either cause dangerto the very existence of the UnitedStates, or involve the purchase andsale of the ‘‘Chief of Magistracy,’’ whichwould tend to the same result. It is nota fair summary of this debate—whichis the only surviving discussion of anylength by the Framers as to thegrounds for impeachment—to say thatthe Framers were principally con-cerned with reaching a course of con-duct whether or not criminal, generallyinconsistent with the proper and effec-tive exercise of the office of the presi-dency. They were concerned with pre-serving the government from beingoverthrown by the treachery or corrup-tion of one man. Even in the context ofthat purpose, they steadfastly reiter-ated the importance of putting a checkon the legislature’s use of power andrefused to expand the narrow defini-tion they had given to treason in theConstitution. They saw punishment as

a significant purpose of impeachment.The changes in language made by theCommittee on Detail can be taken toreflect a consensus of the debate that(1) impeachment would be the properremedy where grave crimes had beencommitted, and (2) adherence to thisstandard would satisfy the widely rec-ognized need for a check on potentialexcesses of the impeachment poweritself.

The impeachment clause, as amend-ed by the Committee on Detail to referto ‘‘treason, bribery or corruption,’’ wasreported to the full Convention on Au-gust 6, 1787, as part of the draft con-stitution. Together with other sections,it was referred to the Committee ofEleven on August 31. This Committeefurther narrowed the grounds to ‘‘trea-son or bribery,’’ while at the same timesubstituting trial by the Senate fortrial by the Supreme Court, and re-quiring a two-thirds vote to convict. Nosurviving records explain the purposeof this change. The mention of ‘‘corrup-tion’’ may have been thought redun-dant, in view of the provision for brib-ery. Or, corruption might have been re-garded by the Committee as too broad,because not a well-defined crime. Inany case, the change limited thegrounds for impeachment to two clear-ly understood and enumerated crimes.

The revised clause, containing thegrounds ‘‘treason and bribery,’’ camebefore the full body again on Sep-tember 8, late in the Convention.George Mason moved to add to theenumerated grounds for impeachment.Madison’s Journal reflects the fol-lowing exchange:

COL. MASON. Why is the provisionrestrained to Treason & bribery

1987


only? Treason as defined in the Con-stitution will not reach many greatand dangerous offenses. Hastings isnot guilty of Treason. Attempts tosubvert the Constitution may not beTreason as above defined—as bills ofattainder which have saved the Brit-ish Constitution are forbidden, it isthe more necessary to extend: thepower of impeachments. He movd. toadd after ‘‘bribery’’ ‘‘or maladmin-istration.’’ Mr. Gerry seconded him—

MR. MADISON. So vague a termwill be equivalent to a tenure duringpleasure of the Senate.

MR. GOVR. MORRIS., it will not beput in force & can do no harm—Anelection of every four years will pre-vent maladministration.

Col. Mason withdrew ‘‘maladmin-istration’’ & substitutes ‘‘other highcrimes and misdemeanors’’ agst. theState.

On the question thus altered, themotion of Colonel Mason passed by avote of eight states to three.

Madison’s notes reveal no debate asto the meaning of the phrase ‘‘otherhigh Crimes and Misdemeanors.’’ Allthat appears is that Mason was con-cerned with the narrowness of the defi-nition of treason; that his purpose inproposing ‘‘maladministration’’ was toreach great and dangerous offenses;and that Madison felt that ‘‘maladmin-istration,’’ which was included as aground for impeachment of public offi-cials in the constitutions of six states,including his own, would be too‘‘vague’’ and would imperil the inde-pendence of the President.

It is our judgment, based upon thisconstitutional history, that the Fram-ers of the United States Constitutionintended that the President should beremovable by the legislative branchonly for serious misconduct dangerousto the system of government estab-

lished by the Constitution. Absent theelement of danger to the State, we be-lieve the Delegates to the Federal Con-vention of 1787, in providing that thePresident should serve for a fixed elec-tive term rather than during good be-havior or popularity, struck the bal-ance in favor of stability in the execu-tive branch. We have never had a Brit-ish parliamentary system in this coun-try, and we have never adopted the de-vice of a parliamentary vote of no-con-fidence in the chief executive. If it isthought desirable to adopt such a sys-tem of government, the proper way todo so is by amending our written Con-stitution—not by removing the Presi-dent.

2. ARE ‘‘HIGH CRIMES AND

MISDEMEANORS’’ NON-CRIMINAL?a. Language of the Constitution

The language of the Constitution in-dicates that impeachment can lie onlyfor serious criminal offenses.

First, of course, treason and briberywere indictable offenses in 1787, asthey are now. The words ‘‘crime’’ and‘‘misdemeanor’’, as well, both had anaccepted meaning in the English law ofthe day, and referred to criminal acts.Sir William Blackstone’s Commentarieson the Laws of England, (1771), whichenjoyed a wide circulation in the Amer-ican colonies, defined the terms as fol-lows:

I. A crime, or misdemeanor is anact committed, or omitted, in viola-tion of a public law, either forbiddingor commanding it. This general defi-nition comprehends both crimes andmisdemeanors; which, properlyspeaking, are mere synonymousterms: though, in common usage, theword ‘‘crimes’’ is made to denote

1988


such offenses as are of a deeper andmore atrocious dye; while smallerfaults, and omissions of less con-sequence, are comprised under thegentler name of ‘‘misdemeanors’’only.

Thus, it appears that the word ‘‘mis-demeanor’’ was used at the time Black-stone wrote, as it is today, to refer toless serious crimes.

Second, the use of the word ‘‘other’’in the phrase ‘‘Treason, Bribery orother high Crimes and Misdemeanors’’seems to indicate that high Crimes andMisdemeanors had something in com-mon with Treason and Bribery—bothof which are, of course, serious crimi-nal offenses threatening the integrityof government.

Third, the extradition clause of theArticles of Confederation (1781), thegoverning instrument of the UnitedStates prior to the adoption of the Con-stitution, had provided for extraditionfrom one state to another of any per-son charged with ‘‘treason, felony orother high misdemeanor.’’ If ‘‘high mis-demeanor’’ had something in commonwith treason and felony in this clause,so as to warrant the use of the word‘‘other,’’ it is hard to see what it couldhave been except that all were re-garded as serious crimes. Certainly itwould not have been contemplated thata person could be extradited for an of-fense which was non-criminal.

Finally, the references to impeach-ment in the Constitution use the lan-guage of the criminal law. Removalfrom office follows ‘‘conviction,’’ whenthe Senate has ‘‘tried’’ the impeach-ment. The party convicted is ‘‘never-theless . . . liable and subject to In-dictment, Trial, Judgment and Punish-ment, according to Law.’’ The trial of

all Crimes is by Jury, ‘‘except in casesof Impeachment.’’ The President isgiven power to grant ‘‘Pardons for Of-fenses against the United States, ex-cept in Cases of Impeachment.’’

This constitutional usage, in its to-tality, strengthens the notion that thewords ‘‘Crime’’ and ‘‘Misdemeanor’’ inthe impeachment clause are to be un-derstood in their ordinary sense, i.e.,as importing criminality. At the veryleast, this terminology strongly sug-gests the criminal or quasi-criminalnature of the impeachment process.b. English impeachment practice

It is sometimes argued that officersmay be impeached for non-criminalconduct, because the origins of im-peachment in England in the four-teenth and seventeenth centuries showthat the procedure was not limited tocriminal conduct in that country.

Early English impeachment practice,however, often involved a straightpower struggle between the Parliamentand the King. After parliamentary su-premacy had been established, thepractice was not so open-ended as ithad been previously. Blackstone wrote(between 1765 and 1769) that

[A]n impeachment before theLords by the commons of Great Brit-ain, in parliament, is a prosecutionof the already known and establishedlaw. . . .

The development of English im-peachment practice in the eighteenthcentury is illustrated by the result ofthe first major nineteenth century im-peachment in that country—that ofLord Melville, Treasurer of the Navy,in 1805–1806. Melville was chargedwith wrongful use of public moneys.Before passing judgment, the House of

1989


Lords requested the formal opinion ofthe judges upon the following question:

Whether it was lawful for theTreasurer of the Navy, before thepassing of the Act 25 Geo. 3rd, c. 31,to apply any sum of money[imprested] to him for navy[sumpsimus] services to any otheruse whatsoever, public or private,without express authority for sodoing; and whether such applicationby such treasurer would have been amisdemeanor, or punishable by infor-mation or indictment?

The judges replied:

It was not unlawful for the Treas-urer of the Navy before the Act 25Geo. 3rd, c. 31 . . . to apply any sumof money impressed to him for navyservices, to other uses . . . withoutexpress authority for so doing, so asto constitute a misdemeanor punish-able by information or indictment.

Upon this ruling by the judges thatMelville had committed no crime, hewas acquitted. The case thus stronglysuggests that the Lords in 1805 be-lieved an impeachment conviction torequire a ‘‘misdemeanor punishable byinformation or indictment.’’ The casemay be taken to cast doubt on the vi-tality of precedents from an earlier,more turbid political era and to pointthe way to the Framers’ conception ofa valid exercise of the impeachmentpower in the future. As a matter of pol-icy, as well, it is an appropriate prece-dent to follow in the latter twentiethcentury.

The argument that the Presidentshould be impeachable for general mis-behavior, because some English im-peachments do not appear to have in-volved criminal charges, also takes toolittle account of the historical fact thatthe Framers, mindful of the turbulence

of parliamentary uses of the impeach-ment power, cut back on that power inseveral respects in adapting it to anAmerican context. Congressional billsof attainder and ex post facto laws,which had supplemented the impeach-ment power in England, were ex-pressly forbidden. Treason was definedin the Constitution—and defined nar-rowly—so that Congress acting alonecould not change the definition, as Par-liament had been able to do. The con-sequences of impeachment and convic-tion, which in England had frequentlymeant death, were limited to removalfrom office and disqualification to holdfurther federal office. Whereas a ma-jority vote of the Lords had sufficed forconviction, in America a two-thirdsvote of the Senate would be required.Whereas Parliament had had thepower to impeach private citizens, theAmerican procedure could be directedonly against civil officers of the na-tional government. The grounds for im-peachment—unlike the grounds for im-peachment in England—were stated inthe Constitution.

In the light of these modifications, itis misreading history to say that theFramers intended, by the mere ap-proval of Mason’s substitute amend-ment, to adopt in toto the Britishgrounds for impeachment. Havingcarefully narrowed the definition oftreason, for example, they could scarce-ly have intended that British treasonprecedents would guide ours.

c. American impeachment practice

The impeachment of President An-drew Johnson is the most importantprecedent for a consideration of whatconstitutes grounds for impeachmentof a President, even if it has been his-

1990


torically regarded (and probably fairlyso) as an excessively partisan exerciseof the impeachment power.

The Johnson impeachment was theproduct of a fundamental and bittersplit between the President and theCongress as to Reconstruction policy inthe Southern states following the CivilWar. Johnson’s vetoes of legislation,his use of pardons, and his choice ofappointees in the South all made it im-possible for the Reconstruction Acts tobe enforced in the manner which Con-gress not only desired, but thought ur-gently necessary.

On March 7, 1867, the House re-ferred to the Judiciary Committee aresolution authorizing it

to inquire into the official conduct ofAndrew Johnson . . . and to reportto this House whether, in their opin-ion, the said Andrew Johnson, whilein said office, has been guilty of actswhich were designed or calculated tooverthrow or corrupt the governmentof the United States . . . and wheth-er the said Andrew Johnson hasbeen guilty of any act, or has con-spired with others to do acts, which,in contemplation of the Constitution,are high crimes and misdemeanors,requiring the interposition of theconstitutional powers of this House.

On November 25, 1867, the Com-mittee reported to the full House a res-olution recommending impeachment,by a vote of 5 to 4. A minority of theCommittee, led by Rep. James F. Wil-son of Iowa, took the position thatthere could be no impeachment be-cause the President had committed nocrime:

In approaching a conclusion, we donot fail to recognize two standpointsfrom which this case can beviewed—the legal and the political.

. . . Judge him politically, wemust condemn him. But the day ofpolitical impeachments would be asad one for this country. Politicalunfitness and incapacity must betried at the ballot-box, not in thehigh court of impeachment. A con-trary rule might leave to Congressbut little time for other businessthan the trial of impeachments.

. . . [C]rimes and misdemeanorsare now demanding our attention.Do these, within the meaning of theConstitution, appear? Rest the caseupon political offenses, and we areprepared to pronounce against thePresident, for such offenses are nu-merous and grave . . . [yet] we stillaffirm that the conclusion at whichwe have arrived is correct.

The resolution recommending im-peachment was debated in the Houseon December 5 and 6, 1867, Rep.George S. Boutwell of Massachusettsspeaking for the Committee majorityin favor of impeachment, and Rep. Wil-son speaking in the negative. Asidefrom characterization of undisputedfacts discovered by the Committee, theonly point debated was whether thecommission of a crime was an essentialelement of impeachable conduct by thePresident. Rep. Boutwell began by say-ing, ‘‘If the theory of the law submittedby the minority of the committee be inthe judgment of this House a true the-ory, then the majority have no casewhatsoever.’’ ‘‘The country was dis-appointed, no doubt, in the report ofthe committee,’’ he continued, ‘‘andvery likely this House participated inthe disappointment, that there was nospecific, heinous, novel offense chargedupon and proved against the Presidentof the United States.’’ And again, ‘‘Itmay not be possible, by specific charge,to arraign him for this great crime, butis he therefore to escape?’’

1991


The House of Representatives an-swered this question the next day,when the majority resolution recom-mending, impeachment was defeatedby a vote of 57 to 108. The issue of im-peachment was thus laid to rest for thetime being.

Earlier in 1867, the Congress hadpassed the Tenure-of-Office Act, whichtook away the President’s authority toremove members of his own Cabinet,and provided that violation of the Actshould be punishable by imprisonmentof up to five years and a fine of up toten thousand dollars and ‘‘shall bedeemed a high misdemeanor’’—fair no-tice that Congress would consider vio-lation of the statute an impeachable,as well as a criminal, offense. It wasgenerally known that Johnson’s policytoward Reconstruction was not sharedby his Secretary of War, Edwin M.Stanton. Although Johnson believedthe Tenure-of-Office Act to be unconsti-tutional, he had not infringed its provi-sions at the time the 1867 impeach-ment attempt against him failed bysuch a decisive margin.

Two and a half months later, how-ever, Johnson removed Stanton fromoffice, in apparent disregard of theTenure-of-Office Act. The response ofCongress was immediate: Johnson wasimpeached three days later, on Feb-ruary 24, 1868, by a vote of 128 to47—an even greater margin than thatby which the first impeachment votehad failed.

The reversal is a dramatic dem-onstration that the House of Rep-resentatives believed it had to find thePresident guilty of a crime before im-peaching him. The nine articles of im-peachment which were adopted againstJohnson, on March 2, 1868, all related

to his removal of Secretary Stanton, al-legedly in deliberate violation of theTenure-of-Office Act, the Constitution,and certain other related statutes. Thevote had failed less than three monthsbefore; and except for Stanton’s re-moval and related matters, nothing inthe new Articles charged Johnson withany act committed subsequent to theprevious vote.

The only other case of impeachmentof an officer of the executive branch isthat of Secretary of War William W.Belknap in 1876. All five articles al-leged that Belknap ‘‘corruptly’’ accept-ed and received considerable sums ofmoney in exchange for exercising hisauthority to appoint a certain personas a military post trader. The facts al-leged would have sufficed to constitutethe crime of bribery. Belknap resignedbefore the adoption of the Articles andwas subsequently indicted for the con-duct alleged.

It may be acknowledged that in theimpeachment of federal judges, as op-posed to executive officers, the actualcommission of a crime does not appearalways to have been thought essential.However, the debates in the House andopinions filed by Senators have madeit clear that in the impeachments offederal judges, Congress has placedgreat reliance upon the ‘‘good behavior’’clause. The distinction between officerstenured during good behavior andelected officers, for purposes of groundsfor impeachment, was stressed byRufus King at the Constitutional Con-vention of 1787. A judge’s impeach-ment or conviction resting upon ‘‘gen-eral misbehavior,’’ in whatever degree,cannot be an appropriate guide for theimpeachment or conviction of an elect-ed officer serving for a fixed term.

1992


The impeachments of federal judgesare also different from the case of aPresident for other reasons: (1) Someof the President’s duties e.g., as chief ofa political party, are sufficiently dis-similar to those of the judiciary thatconduct perfectly appropriate for him,such as making a partisan politicalspeech, would be grossly improper fora judge. An officer charged with thecontinual adjudication of disputes la-bors under a more stringent injunctionagainst the appearance of partisanshipthan an officer directly charged withthe formulation and negotiation of pub-lic policy in the political arena—a factreflected in the adoption of Canons ofJudicial Ethics. (2) The phrase ‘‘and allcivil Officers’’ was not added until afterthe debates on the impeachment clausehad taken place. The words ‘‘highcrimes and misdemeanors’’ were addedwhile the Framers were debating aclause concerned exclusively with theimpeachment of the President. Therewas no discussion during the Conven-tion as to what would constitute im-peachable conduct for judges. (3) Fi-nally, the removal of a President fromoffice would obviously have a far great-er impact upon the equilibrium of oursystem of government than the re-moval of a single federal judge.

d. The need for a standard: criminalintent

When the Framers included thepower to impeach the President in ourConstitution, they desired to ‘‘providesome mode that will not make him de-pendent on the Legislature.’’ To thisend, they withheld from the Congressmany of the powers enjoyed by Par-liament in England; and they definedthe grounds for impeachment in their

written Constitution. It is hardly con-ceivable that the Framers wished thenew Congress to adopt as a startingpoint the record of all the excesses towhich desperate struggles for powerhad driven Parliament, or to use theimpeachment power freely wheneverCongress might deem it desirable. Thewhole tenor of the Framers’ discus-sions, the whole purpose of their manycareful departures from English im-peachment practice, was in the direc-tion of limits and of standards. An im-peachment power exercised without ex-trinsic and objective standards wouldbe tantamount to the use of bills of at-tainder and ex post facto laws, whichare expressly forbidden by the Con-stitution and are contrary to the Amer-ican spirit of justice.

It is beyond argument that a viola-tion of the President’s oath or a viola-tion of his duty to take care that thelaws be faithfully executed, must beimpeachable conduct or there would beno means of enforcing the Constitution.However, this elementary propositionis inadequate to define the impeach-ment power. It remains to determinewhat kind of conduct constitutes a vio-lation of the oath or the duty. Further-more, reliance on the summary phrase,‘‘violation of the Constitution,’’ wouldnot always be appropriate as a stand-ard, because actions constituting anapparent violation of one provision ofthe Constitution may be justified oreven required by other provisions ofthe Constitution.

There are types of misconduct bypublic officials—for example, inepti-tude, or unintentional or ‘‘technical’’violations of rules or statutes, or ‘‘mal-administration’’—which would not becriminal; nor could they be made crimi-

1993


nal, consonant with the Constitution,because the element of criminal intentor mens rea would be lacking. Withouta requirement of criminal acts or atleast criminal intent, Congress wouldbe free to impeach these officials. Theloss of this freedom should not bemourned; such a use of the impeach-ment power was never intended by theFramers, is not supported by the lan-guage of our Constitution, and, if his-tory is to guide us, would be seriouslyunwise as well.

As Alexander Simpson stated in hisTreatise on Federal Impeachments(1916):

The Senate must find an intent todo wrong. It is, of course, admittedthat a party will be presumed to in-tend the natural and necessary re-sults of his voluntary acts, but thatis a presumption only, and it is notalways inferable from the act done.So ancient is this principle, and souniversal is its application, that ithas long since ripened into themaxim, Actus non facit reun, [nisi]mens sit rea, and has come to be re-garded as one of the fundamentallegal principles of our system of ju-risprudence. (p. 29).

The point was thus stated byJames Iredell in the North Caro-lina ratifying convention: ‘‘I begleave to observe that, when anyman is impeached, it must be foran error of the heart, and not ofthe head. God forbid that a man,in any country in the world,should be liable to be punished forwant of judgment. This is not thecase here.

The minority views did supporta portion of Article I on the

ground that criminal conduct wasalleged therein and sustained bythe evidence; but found no im-peachable offenses constituted inArticles II and III:

(1) With respect to proposed ArticleI, we believe that the charges of con-spiracy to obstruct justice, and obstruc-tion of justice, which are contained inthe Article in essence, if not in terms,may be taken as substantially con-fessed by Mr. Nixon on August 5, 1974,and corroborated by ample other evi-dence in the record. Prior to Mr. Nix-on’s revelation of the contents of threeconversations between him and hisformer Chief of Staff, H. R. Haldeman,that took place on June 23, 1972, wedid not, and still do not, believe thatthe evidence of presidential involve-ment in the Watergate cover-up con-spiracy, as developed at that time, wassufficient to warrant Members of theHouse, or dispassionate jurors in theSenate, in finding Mr. Nixon guilty ofan impeachable offense beyond a rea-sonable doubt, which we believe to bethe appropriate standard.

(2) With respect to proposed ArticleII, we find sufficient evidence to war-rant a belief that isolated instances ofunlawful conduct by presidential aidesand subordinates did occur during thefive-and-one-half years of the NixonAdministration, with varying degreesof direct personal knowledge or in-volvement of the President in these re-spective illegal episodes. We roundlycondemn such abuses and unreservedlyfavor the invocation of existing legalsanctions, or the creation of new ones,where needed, to deter such reprehen-sible official conduct in the future, no

1994


20. H. REPT. NO. 93–1305, at pp. 360,361, Committee on the Judiciary,printed in the Record at 120 CONG.REC. 29311, 93d Cong. 2d Sess., Aug.20, 1974.

matter in whose Administration, or bywhat brand or partisan, it might beperpetrated.

Nevertheless, we cannot join withthose who claim to perceive an invid-ious, pervasive ‘‘pattern’’ of illegality inthe conduct of official government busi-ness generally by President Nixon. Insome instances, as noted below, we dis-agree with the majority’s interpreta-tion of the evidence regarding eitherthe intrinsic illegality of the conductstudied or the linkage of Mr. Nixonpersonally to it. Moreover, even as tothose acts which we would concur incharacterizing as abusive and whichthe President appeared to direct orcountenance, neither singly nor in theaggregate do they impress us as beingoffenses for which Richard Nixon, orany President, should be impeached orremoved from office, when considered,as they must be, on their own footing,apart from the obstruction of justicecharge under proposed Article I whichwe believe to be sustained by the evi-dence.

(3) Likewise, with respect to pro-posed Article III, we believe that thischarge, standing alone, affords insuffi-cient grounds for impeachment. Ourconcern here, as explicated in the dis-cussion below, is that the Congres-sional subpoena power itself not be tooeasily abused as a means of achievingthe impeachment and removal of aPresident against whom no other sub-stantive impeachable offense has beenproved by sufficient evidence derivedfrom sources other than the Presidenthimself. We believe it is particularlyimportant for the House to refrainfrom impeachment on the sole basis ofnoncompliance with subpoenas where,as here, colorable claims of privilege

have been asserted in defense of non-production of the subpoenaed mate-rials, and the validity of those claimshas not been adjudicated in any estab-lished, lawful adversary proceeding be-fore the House is called upon to decidewhether to impeach a President ongrounds of noncompliance with sub-poenas issued by a Committee inquir-ing into the existence of sufficientgrounds for impeachment.(20)

Grounds for Impeachment ofFederal Judges

§ 3.9 Following introductionand referral of impeachmentresolutions against a Su-preme Court Justice in the91st Congress, when groundsfor impeachment of federaljudges were discussed atlength in the House, the viewwas taken that federal civilofficers may be impeachedfor less than indictable of-fenses; that an impeachableoffense is what a majority ofthe House considers it to be;and that a higher standard ofconduct is expected of fed-eral judges than of other fed-eral civil officers.On Apr. 15, 1970, resolutions

relating to the impeachment of

1995


1. 116 CONG. REC. 11912–14, 91stCong. 2d Sess. Charges against Jus-tice Douglas were investigated by asubcommittee of the Committee onthe Judiciary, which recommendedagainst impeachment (see §§ 14.14,14.15, infra).

Associate Justice William O.Douglas of the Supreme Courtwere introduced and referred, fol-lowing a special-order speech bythe Minority Leader, Gerald R.Ford, of Michigan. Mr. Ford dis-cussed the grounds for impeach-ment of a federal judge, saying inpart: (1)

No, the Constitution does not guar-antee a lifetime of power and authorityto any public official. The terms ofMembers of the House are fixed at 2years; of the President and Vice Presi-dent at 4; of U.S. Senators at 6. Mem-bers of the Federal judiciary hold theiroffices only ‘‘during good behaviour.’’

Let me read the first section of arti-cle III of the Constitution in full:

The judicial power of the UnitedStates shall be vested in one su-preme Court, and in such inferiorCourts as the Congress may fromtime to time ordain and establish.The Judges, both of the supreme andinferior Courts, shall hold their Of-fices during good Behaviour, andshall, at stated Times, receive fortheir Services, a Compensation,which shall not be diminished duringtheir Continuance in Office. . . .

. . . Thus, we come quickly to thecentral question: What constitutes‘‘good behaviour’’ or, conversely,ungood or disqualifying behaviour?

The words employed by the Framersof the Constitution were, as the pro-

ceedings of the Convention detail, cho-sen with exceedingly great care andprecision. Note, for example, the word‘‘behaviour.’’ It relates to action, notmerely to thoughts or opinions; fur-ther, it refers not to a single act but toa pattern or continuing sequence of ac-tion. We cannot and should not removea Federal judge for the legal views heholds—this would be as contemptibleas to exclude him from serving on theSupreme Court for his ideology or pastdecisions. Nor should we remove himfor a minor or isolated mistake—thisdoes not constitute behaviour in thecommon meaning.

What we should scrutinize in sittingJudges is their continuing pattern ofaction, their behaviour. The Constitu-tion does not demand that it be ‘‘exem-plary’’ or ‘‘perfect.’’ But it does have tobe ‘‘good.’’

Naturally, there must be orderly pro-cedure for determining whether or nota Federal judge’s behaviour is good.The courts, arbiters in most such ques-tions of judgment, cannot judge them-selves. So the Founding Fathers vestedthis ultimate power where the ultimatesovereignty of our system is most di-rectly reflected—in the Congress, inthe elected Representatives of the peo-ple and of the States.

In this seldom-used procedure, calledimpeachment, the legislative branchexercises both executive and judicialfunctions. The roles of the two bodiesdiffer dramatically. The House servesas prosecutor and grand jury; the Sen-ate serves as judge and trial jury.

Article I of the Constitution has thisto say about the impeachment process:

The House of Representatives—shall have the sole power of Im-peachment.

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The Senate shall have the solePower to try all Impeachments.When sitting for that Purpose, theyshall be on Oath or Affirmation.When the President of the UnitedStates is tried, the Chief Justiceshall preside: And no Person shall beconvicted without the Concurrence oftwo-thirds of the Members present.

Article II, dealing with the executivebranch, states in section 4:

The President, Vice President, andall civil Officers of the United Statesshall be removed from office on im-peachment for, and conviction of,Treason, Bribery or other highcrimes and misdemeanors.

This has been the most controversialof the constitutional references to theimpeachment process. No consensusexists as to whether, in the case ofFederal judges, impeachment must de-pend upon conviction of one of the twospecified crimes of treason or briberyor be within the nebulous category of‘‘other high crimes and misdemeanors.’’There are pages upon pages of learnedargument whether the adjective ‘‘high’’modifies ‘‘misdemeanors’’ as well as‘‘crimes,’’ and over what, indeed, con-stitutes a ‘‘high misdemeanor.’’

In my view, one of the specific orgeneral offenses cited in article II is re-quired for removal of the indirectlyelected President and Vice Presidentand all appointed civil officers of theexecutive branch of the Federal Gov-ernment, whatever their terms of of-fice. But in the case of members of thejudicial branch, Federal judges andJustices, I believe an additional andmuch stricter requirement is imposedby article II, namely, ‘‘good behaviour.’’

Finally, and this is a most signifi-cant provision, article I of the Con-stitution specifies:

Judgment in Cases of Impeach-ment shall not extend further thanto removal from Office, and disquali-fication to hold and enjoy any officeof honor, Trust or Profit under theUnited States: but the Party con-victed shall nevertheless be liableand subject to Indictment, Trial,Judgment and Punishment, accord-ing to Law. . . .

With this brief review of the law, ofthe constitutional background for im-peachment, I have endeavored to cor-rect two common misconceptions: first,that Federal judges are appointed forlife and, second, that they can be re-moved only by being convicted, with allordinary protections and presumptionsof innocence to which an accused is en-titled, of violating the law.

This is not the case. Federal judgescan be and have been impeached forimproper personal habits such aschronic intoxication on the bench, andone of the charges brought againstPresident Andrew Johnson was that hedelivered ‘‘intemperate, inflammatory,and scandalous harangues.’’

I have studied the principal im-peachment actions that have been ini-tiated over the years and frankly,there are too few cases to make verygood law. About the only thing the au-thorities can agree upon in recent his-tory, though it was hotly argued up toPresident Johnson’s impeachment andthe trial of Judge Swayne, is that anoffense need not be indictable to be im-peachable. In other words, somethingless than a criminal act or criminaldereliction of duty may nevertheless besufficient grounds for impeachmentand removal from public office.

What, then, is an impeachable of-fense?

The only honest answer is that animpeachable offense is whatever a ma-

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jority of the House of Representativesconsiders to be at a given moment inhistory; conviction results from what-ever offense or offenses two-thirds ofthe other body considers to be suffi-ciently serious to require removal ofthe accused from office. Again, the his-torical context and political climate areimportant; there are few fixed prin-ciples among the handful of prece-dents.

I think it is fair to come to one con-clusion, however, from our history ofimpeachments: a higher standard isexpected of Federal judges than of anyother ‘‘civil officers’’ of the UnitedStates.

The President and Vice President,and all persons holding office at thepleasure of the President, can bethrown out of office by the voters atleast every 4 years. To remove them inmidterm—it has been tried only twiceand never done—would indeed requirecrimes of the magnitude of treason andbribery. Other elective officials, such asMembers of the Congress, are so vul-nerable to public displeasure that theirremoval by the complicated impeach-ment route has not even been triedsince 1798. But nine Federal judges,including one Associate Justice of theSupreme Court, have been impeachedby this House and tried by the Senate;four were acquitted; four convicted andremoved from office; and one resignedduring trial and the impeachment wasdismissed.

In the most recent impeachmenttrial conducted by the other body, thatof U.S. Judge Halsted L. Ritter of thesouthern district of Florida who wasremoved in 1936, the point of judicialbehavior was paramount, since thecriminal charges were admittedly thin.

This case was in the context of F.D.R.’seffort to pack the Supreme Court withJustices more to his liking; Judge Rit-ter was a transplanted conservativeColorado Republican appointed to theFederal bench in solidly DemocraticFlorida by President Coolidge. He wasconvicted by a coalition of liberal Re-publicans, New Deal Democrats, andFarmer-Labor and Progressive PartySenators in what might be called thenorthwestern strategy of that era. Nev-ertheless, the arguments were persua-sive:

In a joint statement, Senators Borah,La Follette, Frazier, and Shipsteadsaid:

We therefore did not, in passingupon the facts presented to us in thematter of the impeachment pro-ceedings against Judge Halsted L.Ritter, seek to satisfy ourselves as towhether technically a crime orcrimes had been committed, or as towhether the acts charged and proveddisclosed criminal intent or corruptmotive: we sought only to ascertainfrom these facts whether his conducthad been such as to amount to mis-behavior, misconduct—as to whetherhe had conducted himself in a waythat was calculated to underminepublic confidence in the courts andto create a sense of scandal.

There are a great many thingswhich one must readily admit wouldbe wholly unbecoming, wholly intol-erable, in the conduct of a judge, andyet these things might not amount toa crime.

Senator Elbert Thomas of Utah, cit-ing the Jeffersonian and colonial ante-cedents of the impeachment process,bluntly declared:

Tenure during good behavior . . .is in no sense a guaranty of a lifejob, and misbehavior in the ordinary,

1998


2. 116 CONG. REC. 12569–71, 91stCong. 2d Sess.

dictionary sense of the term willcause it to be cut short on the vote,under special oath, of two-thirds ofthe Senate, if charges are firstbrought by the House of Representa-tives. . . . To assume that good be-havior means anything but good be-havior would be to cast a reflectionupon the ability of the fathers to ex-press themselves in understandablelanguage.

But the best summary, in my opin-ion, was that of Senator William G.McAdoo of California, son-in-law ofWoodrow Wilson and his Secretary ofthe Treasury:

I approach this subject from thestandpoint of the general conduct ofthis judge while on the bench, asportrayed by the various counts inthe impeachment and the evidencesubmitted in the trial. The picturethus presented is, to my mind, thatof a man who is so lacking in anyproper conception of professional eth-ics and those high standards of judi-cial character and conduct as to con-stitute misbehavior in its most seri-ous aspects, and to render him unfitto hold a judicial office . . .

Good behavior, as it is used in theConstitution, exacts of a judge thehighest standards of public and pri-vate rectitude. No judge can be-smirch the robes he wears by relax-ing these standards, by compro-mising them through conduct whichbrings reproach upon himself person-ally, or upon the great office heholds. No more sacred trust is com-mitted to the bench of the UnitedStates than to keep shining with un-dimmed effulgence the brightestjewel in the crown of democracy—justice.

However disagreeable the dutymay be to those of us who constitutethis great body in determining theguilt of those who are entrustedunder the Constitution with the highresponsibilities of judicial office, we

must be as exacting in our concep-tion of the obligations of a judicial of-ficer as Mr. Justice Cardozo definedthem when he said, in connectionwith fiduciaries, that they should beheld ‘‘to something stricter than themorals of the market-place. Not hon-esty alone, but the punctilio of anhonor the most sensitive, is then thestandard of behavior.’’ (Meinhard v.Solmon, 249 N.Y. 458.)

§ 3.10 The view has been takenthat the term ‘‘good behav-ior,’’ as a requirement forfederal judges remaining inoffice, must be read in con-junction with the standard of‘‘high crimes and mis-demeanors,’’ and that theconduct of federal judges toconstitute an impeachable of-fense must be either criminalconduct or serious judicialmisconduct.On Apr. 21, 1970, Mr. Paul N.

McCloskey, Jr., of California, tookthe floor for a special-order speechin which he challenged the hy-pothesis of Mr. Gerald R. Ford, ofMichigan (see § 3.9, supra), as tothe grounds for impeachment offederal judges: (2)

I respectfully disagree with the basicpremise ‘‘that an impeachable offenseis whatever a majority of the House ofRepresentatives considers it to be at agiven moment in history.’’

To accept this view, in my judgment,would do grave damage to one of the

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most treasured cornerstones of our lib-erties, the constitutional principle ofan independent judiciary, free not onlyfrom public passions and emotions, butalso free from fear of executive or legis-lative disfavor except under already-defined rules and precedents. . . .

First, I should like to discuss theconcept of an impeachable offense as‘‘whatever the majority of the House ofRepresentatives considers it to be atany given time in history.’’ If this con-cept is accurate, then of course thereare no limitations on what a politicalmajority might determine to be lessthan good behavior. It follows thatjudges of the Court could conceivablybe removed whenever the majority ofthe House and two-thirds of the Senateagreed that a better judge might fillthe position. But this concept has nobasis, either in our constitutional his-tory or in actual case precedent.

The intent of the framers of the Con-stitution was clearly to protect judgesfrom political disagreement, ratherthan to simplify their ease of removal.

The Original Colonies had had along history of difficulties with the ad-ministration of justice under the Brit-ish Crown. The Declaration of Inde-pendence listed as one of its grievancesagainst the King:

He has made Judges dependent onhis Will alone, for the tenure of theiroffices and the amount and paymentof their salaries.

The signers of the Declaration ofIndependence were primarily con-cerned about preserving the independ-ence of the judiciary from direct or in-direct pressures, and particularly fromthe pressure of discretionary termi-nation of their jobs or diminution oftheir salaries.

In the debates which took place inthe Constitutional Convention 11 yearslater, this concern was expressed inboth of the major proposals presentedto the delegates. The Virginia and NewJersey plans both contained languagesubstantively similar to that finallyadopted, as follows:

Article III, Section 1 states ‘‘TheJudges, both of the Supreme and in-ferior Courts, shall hold their officesduring good Behavior, and shall, atstated times, receive for their Serv-ices, a Compensation, which shallnot be diminished during their Con-tinuance in Office.’’

The ‘‘good behavior’’ standard thusdoes not stand alone. It must be readwith reference to the clear intention ofthe framers to protect the independ-ence of the judiciary against executiveor legislative action on their compensa-tion, presumably because of the dangerof political disagreement.

If, in order to protect judicial inde-pendence, Congress is specifically pre-cluded from terminating or reducingthe salaries of Judges, it seems clearthat Congress was not intended tohave the power to designate ‘‘as an im-peachable offense whatever a majorityof the House of Representatives con-siders it to be at a given moment.’’

If an independent judiciary is to bepreserved, the House must exercise de-cent restraint and caution in its defini-tion of what is less than good behavior.As we honor the Court’s self-imposeddoctrine of judicial restraint, so wemight likewise honor the principle oflegislative restraint in considering seri-ous charges against members of a co-equal branch of Government which wehave wished to keep free from politicaltensions and emotions. . . .

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The term ‘‘good behavior,’’ as theFounding Fathers considered it, mustbe taken together with the specific pro-visions limiting cause for impeachmentof executive branch personnel to trea-son, bribery or other high crimes andmisdemeanors. The higher standard ofgood behavior required of Judgesmight well be considered as applicablesolely to their judicial performance andcapacity and not to their private andnonjudicial conduct unless the same isviolative of the law. Alcoholism, arro-gance, nonjudicial temperament, andsenility of course interfere with judicialperformance and properly justify im-peachment. I can find no precedent,however, for impeachment of a Judgefor nonjudicial conduct which fallsshort of violation of law.

In looking to the nine cases of im-peachment of Judges spanning 181years of our national history, in everycase involved, the impeachment wasbased on either improper judicial con-duct or nonjudicial conduct which wasconsidered as criminal in nature. . . .

From the brief research I have beenable to do on these nine cases, and asreflected in the Congressional Quar-terly of April 17, 1970, the chargeswere as follows:

District Judge John Pickering, 1804:Loose morals, intemperance, and irreg-ular judicial procedure.

Associate Supreme Court JusticeSamuel Chase, 1805: Partisan, harsh,and unfair conduct during trials.

District Judge James H. Peck, 1831:Imposing an unreasonably harsh pen-alty for contempt of court.

District Judge West H. Humphreys,1862: Supported secession and servedas a Confederate judge.

District Judge Charles Swayne,1905: Padding expense accounts, livingoutside his district, misuse of propertyand of the contempt power.

Associate Court of Commerce JudgeRobert Archbald, 1913: Improper use ofinfluence, and accepting favors fromlitigants.

District Judge George W. English,1926: Tyranny, oppression, and parti-ality.

District Judge Harold Louderback,1933: Favoritism, and conspiracy.

District Judge Halsted L. Ritter,1936: Judicial improprieties, acceptinglegal fees while on the bench, bringinghis court into scandal and disrepute,and failure to pay his income tax.

The bulk of these challenges to thecourt were thus on judicial misconduct,with scattered instances of nonjudicialbehavior. In all cases, however, insofaras I have been able to thus far deter-mine, the nonjudicial behavior involvedclear violation of criminal or civil law,and not just a ‘‘pattern of behavior’’that others might find less than‘‘good.’’

If the House accepts precedent as aguide, then, an impeachment of a Jus-tice of the Supreme Court based oncharges which are neither unlawful innature nor connected with the perform-ance of his judicial duties would rep-resent a highly dubious break withcustom and tradition at a time when,as the gentleman from New York (Mr.Horton), stated last Wednesday:

We are living in an era when theinstitutions of government and thepeople who man them are under-going the severest tests in history.

There is merit, I think, in a strictconstruction of the words ‘‘good behav-

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ior’’ as including conduct which com-plies with judicial ethics while on thebench and with the criminal and civillaws while off the bench. Any otherconstruction of the term would makejudges vulnerable to any majoritygroup in the Congress which held acommon view of impropriety of conductwhich was admittedly lawful. If lawfulconduct can nevertheless be deemed animpeachable offense by a majority ofthe House, how can any Judge feel freeto express opinions on controversialsubjects off the bench? Is there any-thing in our history to indicate thatthe framers of our Constitution in-tended to preclude a judge from statingpolitical views publicly, either orally orin writing? I have been unable to findany constitutional history to so indi-cate.

The gentleman from New Hampshire(Mr. Wyman) suggests that a judgeshould not publicly declare his per-sonal views on controversies likely tocome before the Court. This is cer-tainly true. But it certainly does notpreclude a judge from voicing personalpolitical views, since political issuesare not within the jurisdiction of thecourt and thus a judge’s opinions onpolitical matters would generally notbe prejudicial to interpretations of thelaw which his jurisdiction is properlylimited.

§ 3.11 The view has been takenthat a federal judge may beimpeached for misbehaviorof such nature as to cast sub-stantial doubt upon his in-tegrity.On Aug. 10, 1970, Minority

Leader Gerald R. Ford, of Michi-

gan, inserted in the CongressionalRecord a legal memorandum onimpeachment of a federal judgefor ‘‘misbehavior,’’ the memo-randum was prepared by a pri-vate attorney and reviewed con-stitutional provisions, views ofcommentators, and the precedentsof the House and Senate in im-peachment proceedings. Thememorandum concluded with thefollowing analysis: (3)

A review of the past impeachmentproceedings has clearly established lit-tle constitutional basis to the argu-ment that an impeachable offensemust be indictable as well. If this wereto be the case, the Constitution wouldthen merely provide an additional oralternate method of punishment, inspecific instances, to the traditionalcriminal law violator. If the framershad meant to remove from office onlythose officials who violated the crimi-nal law, a much simpler method thanimpeachment could have been devised.Since impeachment is such a complexand cumbersome procedure, it musthave been directed at conduct whichwould be outside the purview of thecriminal law. Moreover, the tradition-ally accepted purpose of impeachmentwould seem to work against such aconstruction. By restricting the punish-ment for impeachment to removal anddisqualification from office, impeach-ment seems to be a protective, ratherthan a punitive, device. It is meant toprotect the public from conduct by high

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public officials that undermines publicconfidence. Since that is the case, thenature of impeachment must be broad-er than this argument would make it.[Such] conduct on the part of a judge,while not criminal, would be detri-mental to the public welfare. Thereforeit seems clear that impeachment willlie for conduct not indictable nor evencriminal in nature. It will be remem-bered that Judge Archbald was re-moved from office for conduct which, inat least one commentator’s view, wouldhave been blameless if done by a pri-vate citizen. See Brown, The Impeach-ment of the Federal Judiciary, 26 Har.L. Rev. 684, 704–05 (1913).

A sound approach to the Constitu-tional provisions relating to the im-peachment power appears to be thatwhich was made during the impeach-ment of Judge Archbald. Article I, Sec-tions 2 and 3 give Congress jurisdic-tion to try impeachments. Article II,Section 4, is a mandatory provisionwhich requires removal of officials con-victed of ‘‘treason, bribery or otherhigh crimes and misdemeanors’’. Thelatter phrase is meant to include con-duct, which, while not indictable by thecriminal law, has at least the charac-teristics of a crime. However, this pro-vision is not conclusively restrictive.Congress may look elsewhere in theConstitution to determine if an im-peachable offense has occurred. In thecase of judges, such additional groundsof impeachment may be found in Arti-cle III, Section 1 where the judicialtenure is fixed at ‘‘good behavior’’.Since good behavior is the limit of thejudicial tenure, some method of re-moval must be available where a judgebreaches that condition of his office.That method is impeachment. Even

though this construction has been criti-cized by one writer as being logicallyfallacious, See Simpson, Federal Im-peachments, 64 U. of Penn. L. Rev.651, 806–08 (1916), it seems to be theconstruction adopted by the Senate inthe Archbald and Ritter cases. EvenSimpson, who criticized the approach,reaches the same result because he ar-gues that ‘‘misdemeanor’’ must, by def-inition, include misbehavior in office.Supra at 812–13.

In determining what constitutes im-peachable judicial misbehavior, re-course must be had to the previous im-peachment proceedings. Those pro-ceedings fall mainly into two cat-egories, misconduct in the actual ad-ministration of justice and financialimproprieties off the bench. Pickeringwas charged with holding court whileintoxicated and with mishandlingcases. Chase and Peck were chargedwith misconduct which was prejudicialto the impartial administration of jus-tice and with oppressive and corruptuse of their office to punish individualscritical of their actions. Swayne,Archbald, Louderback and Ritter wereall accused of using their office for per-sonal profit and with various types offinancial indiscretions. English wasimpeached both for oppressive mis-conduct while on the bench and for fi-nancial misdealings. The impeachmentof Humphries is the only one whichdoes not fall within this pattern andthe charges brought against him prob-ably amounted to treason. See Brown,The Impeachment of the Federal Judi-ciary, 26 Har. L. Rev. 684, 704 (1913).

While various definitions of impeach-able misbehavior have been advanced,the unifying factor in these definitionsis the notion that there must be such

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misconduct as to cast doubt on the in-tegrity and impartiality of the Federaljudiciary. Brown has defined that mis-behavior as follows:

It must act directly or by reflectedinfluence react upon the welfare ofthe State. It may constitute an in-tentional violation of positive law, orit may be an official dereliction ofcommission or omission, a seriousbreach of moral obligation, or othergross impropriety of personal con-duct which, in its natural con-sequences, tends to bring an officeinto contempt and disrepute . . . Anact or course of misbehavior whichrenders scandalous the personal lifeof a public officer, shakes the con-fidence of the people in his adminis-tration of the public affairs, and thusimpairs his official usefulness.Brown, supra at 692–93.

As Simpson stated with respect tothe outcome of the Archbald impeach-ment:

It determined that a judge oughtnot only be impartial, but he oughtso demean himself, both in and outof court, that litigants will have noreason to suspect his impartialityand that repeatedly failing in thatrespect constitutes a ‘‘high mis-demeanor’’ in regard to his office. Ifsuch be considered the result of thatcase, everyone must agree that it es-tablished a much needed precedent.Simpson, Federal Impeachments, 64U. of Penn. L. Rev. 651, 813 (1916).

John W. Davis, House Manager inthe Impeachment of Judge Archbald,defined judicial misbehavior as follows:

Usurpation of power, the enteringand enforcement of orders beyondhis jurisdiction, disregard or disobe-dience of the rulings of superior tri-bunals, unblushing and notoriouspartiality and favoritism, indolenceand neglect, are all violations of hisofficial oath . . . And it is easily pos-

sible to go further and imagine . . .such willingness to use his office toserve his personal ends as to bewithin reach of no branch of thecriminal law, yet calculated with ab-solute certainty to bring the courtinto public obloquy and contemptand to seriously affect the adminis-tration of justice. 6 Cannon 647.

Representative Summers, one of themanagers in the Louderback impeach-ment gave this definition:

When the facts proven with ref-erence to a respondent are such asare reasonably calculated to arouse asubstantial doubt in the minds of thepeople over whom that respondentexercises authority that he is notbrave, candid, honest, and true,there is no other alternative than toremove such a judge from the bench,because wherever doubt resides, con-fidence cannot be present.Louderback Proceedings 815.

IV. CONCLUSION

In conclusion, the history of the con-stitutional provisions relating to theimpeachment of Federal judges dem-onstrates that only the Congress hasthe power and duty to remove from of-fice any judge whose proven conduct,either in the administration of justiceor in his personal behavior, casts doubton his personal integrity and therebyon the integrity of the entire judiciary.Federal judges must maintain thehighest standards of conduct to pre-serve the independence of and respectfor the judicial system and the rule oflaw. As Representative Summers stat-ed during the Ritter impeachment:

Where a judge on the bench, byhis own conduct, arouses a substan-tial doubt as to his judicial integrityhe commits the highest crime that ajudge can commit under the Con-

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stitution. Ritter Proceedings 611(1936).

Finally, the application of the prin-ciples of the impeachment process isleft solely to the Congress. There is noappeal from Congress’ ultimate judg-ment. Thus, it can fairly be said that itis the conscience of Congress—actingin accordance with the constitutionallimitations—which determines whetherconduct of a judge constitutes mis-behavior requiring impeachment andremoval from office. If a judge’s mis-behavior is so grave as to cast substan-tial doubt upon his integrity, he mustbe removed from office regardless of allother considerations. If a judge has notabused his trust, Congress has theduty to reaffirm public trust and con-fidence in his actions.

Respectfully submitted,BETHEL B. KELLEY,DANIEL G. WYLLIE.

§ 3.12 The view has been takenthat the House impeachesfederal judges only for mis-conduct that is both criminalin nature and related to theperformance of the judicialfunction.On Nov. 16, 1970, Mr. Frank

Thompson, Jr., of New Jersey, in-serted into the CongressionalRecord a study by a professor ofconstitutional law of impeachmentproceedings against federal judgesand the grounds for such pro-ceedings. The memorandum dis-cussed in detail the substance ofsuch charges in all prior impeach-

ment proceedings and concludedas follows: (4)

In summary, the charges againstJustice William O. Douglas are uniquein our history of impeachment. TheHouse has stood ready to impeachjudges for Treason, Bribery, and re-lated financial crimes and mis-demeanors. It has refused to impeachjudges charged with on-the-job mis-conduct when that behavior is not alsoan indictable criminal offense. Onlyonce before has a judge even beencharged with impeachment for non-job-related activities—in 1921, whenJudge Kenesaw Mountain Landis wascharged with accepting the job as Com-missioner of big-league baseball—andthe House Judiciary Committee re-fused to dignify the charge with a re-port pro or con. Never in our impeach-ment history, until Congressman Fordleveled his charges against Mr. JusticeDouglas, has it ever been suggestedthat a judge could be impeached be-cause, while off the bench, he exercisedhis First Amendment rights to speakand write on issues of the day, to asso-ciate with others in educational enter-prises. . . .

This brief history of Congressionalimpeachment shows several things.First, it shows that it works. It is nota rusty, unused power. Since 1796,fifty-five judges have been charged onthe Floor of the House of Representa-tives, approximately one in every threeto four years. Presumably, most of thefederal judges who should be im-peached, are impeached. Thirty-threejudges have been charged with ‘‘Trea-

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son, Bribery, or other High Crimes andMisdemeanors.’’ Three of them havebeen found guilty by the Senate andremoved from office; twenty-two addi-tional judges have resigned ratherthan face Senate trial and public expo-sure. This is one ‘‘corrupt’’ judge forapproximately every seven years—hopefully, all there are.

Second, by its deeds and actions,Congress has recognized what ChiefJustice Burger recently described as‘‘the imperative need for total and ab-solute independence of judges in decid-ing cases or in any phase of thedecisional function.’’ With a few aber-rations in the early 1800’s, a period ofunprecedented political upheaval, Con-gress has refused to impeach a judgefor lack of ‘‘good behaviour’’ unless thebehavior is both job-related and crimi-nal. This is true whether the judgegets drunk on the bench, whether thejudge exploits and abuses the authorityof his robes, or whether the judgehands down unpopular or wrong deci-sions.

How could it be otherwise? The pur-pose of an ‘‘independent judiciary’’ inour system of government by separa-tion of powers, is to check the excessesof the legislative and executivebranches of the government, to cry ahalt when popular passions grip theCongress and laws are adopted whichabridge and infringe upon the rightsguaranteed to all citizens by the Con-stitution. The judges must be strongand secure if they are to do this jobwell.

John Dickinson proposed at the Con-stitutional Convention that federaljudges should be removed upon a peti-tion by the majority of each House ofCongress. This was rejected, because it

was contradictory to judicial tenureduring good behavior, because it wouldmake the judiciary ‘‘dangerously de-pendent’’ on the legislature.

During the Jeffersonian purge of thefederal bench, Senate leader WilliamGiles proclaimed that ‘‘removal by im-peachment’’ is nothing more than adeclaration by both Houses of Congressto the judge that ‘‘you hold dangerousopinions.’’ This theory of the impeach-ment power was rejected in 1804 be-cause it would put in peril ‘‘the integ-rity of the whole national judicial es-tablishment.’’

Now Congressman Ford suggeststhat ‘‘an impeachable offense’’ is noth-ing more than ‘‘whatever a majority ofthe House of Representatives considersit to be at a given moment in history.’’

Does he really mean that Chief Jus-tice Warren might have been im-peached because ‘‘at a given moment inhistory’’ a majority of the House andtwo-thirds of the Senate objectedstrongly to his opinion ordering an endto school-segregation, or to his equallycontroversial decision against schoolprayer? Does he really mean thatJudge Julius Hoffman is impeachableif a majority of this or the next Con-gress decides that he was wrong in hishandling of the Chicago Seven? Doeshe really want a situation where fed-eral judges must keep one eye on themood of Congress and the other on theproceedings before them in court, inorder to maintain their tenure in of-fice?

If Congressman Ford is right, itbodes ill for the concept of an inde-pendent judiciary and the corollarydoctrine of a Constitutional govern-ment of laws.

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5. Final report by the special sub-committee on H. Res. 920 (Impeach-ment of Associate Justice Douglas) ofthe Committee on the Judiciary,Committee Print, 91st Cong. 2dSess., Sept. 17, 1970.

In 1835, the French observer deTocqueville wrote that:

A decline of public morals in theUnited States will probably bemarked by the abuse of the power ofimpeachment as a means of crushingpolitical adversaries or ejecting themfrom office.

Let us hope that that day has notyet arrived.

Mr. Thompson summarized thestudy as follows:

. . . [I] requested Daniel H. Pollitt, aprofessor of constitutional law at theUniversity of North Carolina to surveythe 51 impeachment proceedings inthis House during the interveningyears.

I want to make several comments onthis survey.

First, it shows that impeachmentworks. Thirty-three judges have beencharged in this body with ‘‘treason,bribery, or other high crimes and mis-demeanors.’’ Twenty-two of them re-signed rather than face Senate trial;three chose to fight it out in the Sen-ate; and seven were acquitted by thevote of this Chamber against furtherimpeachment proceedings.

Second, it shows that never since theearliest days of this Republic has theHouse impeached a judge for conductwhich was not both job-related andcriminal. This body has consistently re-fused to impeach a judge unless hewas guilty of an indictable offense.

Third, it shows that never before Mr.Ford leveled his charges against Jus-tice Douglas has it ever been suggestedthat a judge could be impeached be-cause, while off the bench, he exercisedhis first amendment rights to speakand write on issues of the day.

§ 3.13 A special subcommitteeof the Committee on the Ju-diciary found in its final re-port on charges of impeach-ment against Associate Jus-tice William O. Douglas ofthe Supreme Court, that (1) ajudge could be impeached forjudicial conduct which wascriminal or which was a seri-ous dereliction of publicduty; (2) that a judge couldbe impeached for nonjudicialconduct which was criminal;and (3) that the evidencegathered did not warrant theimpeachment of JusticeDouglas.On Sept. 17, 1970, the special

subcommittee of the Committeeon the Judiciary, which had beencreated to investigate and reporton charges of impeachmentagainst Associate Justice Douglasof the Supreme Court, submittedits final report to the full com-mittee. The report reviewed thegrounds for impeachment andfound the evidence insufficient.The report provided in part: (5)

II. CONCEPTS OF IMPEACHMENT

The Constitution grants and definesthe authority for the use of impeach-

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ment procedures to remove officials ofthe Federal Government. Offenses sub-ject to impeachment are set forth inArticle II, Section 4:

The President, Vice President andall civil Officers of the United States,shall be removed from office on im-peachment for and Conviction of,Treason, Bribery, or other highCrimes and Misdemeanors.

An Associate Justice of the SupremeCourt is a civil officer of the UnitedStates and is a person subject to im-peachment. Article II, Section 2, au-thorizes the President to appoint ‘‘. . .Ambassadors, other public Ministersand Consuls, Judges of the SupremeCourt, and all other Officers of theUnited States . . .’’

Procedures established in the Con-stitution vest responsibility for im-peachment in the Legislative Branch ofthe government and require both theHouse of Representatives and the Sen-ate to participate in the trial and de-termination of removal from office. Ar-ticle I, Section 1, provides: ‘‘The Houseof Representatives shall chuse theirSpeaker and other Officers; and shallhave the sole Power of Impeachment.’’

After the House of Representativesvotes to approve Articles of Impeach-ment, the Senate must hear and decidethe issue. Article I, Section 3 provides:

The Senate shall have the solePower to try all Impeachments.When sitting for that Purpose, theyshall be on Oath or Affirmation.When the President of the UnitedStates is tried, the Chief Justiceshall preside: And no Person shall beconvicted without the Concurrence oftwo thirds of the Members present.

Decision for removal in an impeach-ment proceeding does not preclude

trial and punishment for the same of-fense in a court of law. Article III, Sec-tion 3 in this regard provides:

Judgment in Cases of Impeach-ment shall not extend further thanto removal from Office, and disquali-fication to hold and enjoy any Officeof honor, Trust or Profit under theUnited States: but the Party con-victed shall nevertheless be liableand subject to Indictment, Trial,Judgment and Punishment, accord-ing to Law.

Other provisions of the Constitutionunderscore the exceptional nature ofthe unique legislative trial. The Presi-dent’s power to grant reprieves andpardons for offenses against the UnitedStates does not extend to impeach-ments. Article 2, Section 2, provides:‘‘The President . . . shall have thepower to grant Reprieves and Pardonsfor Offenses against the United States,except in Cases of Impeachment.’’ Inas-much as the Senate itself hears theevidence and tries the case, the Con-stitutional right to a trial by jury whena crime has been charged is not avail-able. Article III, Section 2 provides:‘‘The Trial of all Crimes, except inCases of Impeachment, shall be byjury. . . .’’

The Constitution provides only oneinstrument to remove judges of boththe Supreme and inferior courts, andthat instrument is impeachment. Theprovisions of Article II, Section 4, de-fines the conduct that render federalofficials subject to impeachment proce-dures. For a judge to be impeachable,his conduct must constitute ‘‘. . . Trea-son, Bribery, or other High Crimes andMisdemeanors.’’

Some authorities on constitutionallaw have contended that the impeach-

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ment device is a cumbersome proce-dure. Characterized by a high degreeof formality, when used it preemptsvaluable time in both the House andSenate and obstructs accomplishmentof the law making function of the legis-lative branch. In addition to dis-tracting the attention of Congress fromits other responsibilities, impeach-ments invariably are divisive in natureand generate intense controversy inCongress and in the country at large.

Since the adoption of the Constitu-tion in 1787, there have been only 12impeachment proceedings, nine ofwhich have involved Federal judges.There have been only four convictions,all Federal judges.

The time devoted by the House andSenate to the impeachments that re-sulted in the trials of the nine Federaljudges varied substantially. The im-peachment of Robert Archbald in 1912consumed the shortest time. TheArchbald case required three monthsto be processed in the House, and sixmonths in the Senate. The impeach-ment of James H. Peck required themost time for trial of a Federal judge.The House took three years and fivemonths to complete its action, and theSenate was occupied for nine monthswith the trial. The most recent case,Halsted Ritter, in 1933, received theattention of the House for two yearsand eight months, and required onemonth and seven days for trial in theSenate.

Although the provisions of Article II,Section 4 define conduct that is subjectto impeachment, and Article I estab-lishes the impeachment procedure, im-peachments of Federal judges havebeen complicated by the tenure provi-sion in Article III, Section 1. ArticleIII, Section 1, provides:

The judicial Power of the UnitedStates shall be vested in one su-preme Court, and in such inferiorCourts as the Congress may fromtime to time ordain and establish.The Judges, both of the supreme andinferior Courts, shall hold their Of-fices during good Behaviour, andshall, at stated Times, receive fortheir Services, a Compensation,which shall not be diminished duringtheir Continuance in Office

The content of the phrase ‘‘duringgood Behaviour’’ and its relationship toArticle II, Section 4’s requirement forconduct that amounts to ‘‘treason, brib-ery, or other high crimes and mis-demeanors’’ have been matters of dis-pute in each of the impeachment pro-ceedings that have involved Federaljudges. The four decided cases do notresolve the problems and disputes thatthis relationship has generated. Dif-ferences in impeachment concepts as tothe meaning of the phrase ‘‘good be-havior’’ in Article III and its relation-ship to the meaning of the word ‘‘mis-demeanors’’ in Article II are apparentin the discussions of the charges thathave been made against Associate Jus-tice Douglas.

A primary concern of the FoundingFathers was to assure the creation ofan independent judiciary. AlexanderHamilton in The Federalist Papers (No.78) stated this objective:

The complete independence of thecourts of justice is peculiarly essen-tial in a limited Constitution. By alimited Constitution, I understandone which contains certain specifiedexceptions to the legislative author-ity; such for instance, as that it shallpass no bills of attainder, no ex postfacto laws, and the like. Limitationsof this kind can be preserved in prac-tice no other way than through the

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medium of courts of justice, whoseduty it must be to declare all actscontrary to the manifest tenor of theConstitution void. Without this, allthe reservations of particular rightsor privileges would amount to noth-ing.

The Federalist Papers (No. 79) dis-cusses the relationship of the impeach-ment procedures to judicial independ-ence:

The precautions for their responsi-bility are comprised in the article re-specting impeachments. They areliable to be impeached formalconduct by the House of Rep-resentatives and tried by the Senate;and, if convicted, may be dismissedfrom office and disqualified for hold-ing any other. This is the only provi-sion on the point which is consistentwith the necessary independence ofthe judicial character, and is theonly one which we find in our ownConstitution in respect to our ownjudges.

The want of a provision for remov-ing the judges on account of inabilityhas been a subject of complaint. Butall considerate men will be sensiblethat such a provision would eithernot be practiced upon or would bemore liable to abuse than calculatedto answer any good purpose. Themensuration of the faculties of themind has, I believe, no place in thecatalog of known arts. An attempt tofix the boundary between the regionsof ability and inability would muchoftener give scope to personal andparty attachments and enmitiesthan advance the interests of justiceor the public good. The result, exceptin the case of insanity, must for themost part be arbitrary; and insanity,without any formal or express provi-sion, may be safely pronounced to bea virtual disqualification.

The desire of the American people toassure independence of the judiciary

and to emphasize the exalted stationassigned to the judge by our society,have erected pervasive constitutionaland statutory safeguards. The judge ofa United States court holds office ‘‘dur-ing good behavior.’’ Further his salarymay not be reduced while he is in of-fice by any branch of Government. Ajudge may be removed from office onlyby the cumbersome procedure of im-peachment.

Accordingly, when the public is con-fronted with allegations of dishonestyor venality, and is forced to recognizethat judges are human, and hence fal-lible, the impact is severe. Exposure ofinfirmities in the judicial system is un-dertaken only with reluctance. It is anarea in which the bar, the judiciary,and the executive and legislativebranches alike have seen fit to movecautiously and painstakingly. Theremust be full recognition of the neces-sity to proceed in such a manner thatwill result in the least damage possibleto judicial independence, but which, atthe same time, will result in correctionor elimination of any condition thatbrings discredit to the judicial system.

Removal of a Federal judge, forwhatever reason, historically has beendifficult. Constitutional safeguards toassure a free and independent judici-ary make it difficult to remove a Fed-eral judge who may be unfit, whetherthrough incompetence, insanity, senil-ity, alcoholism, or corruption.

For a judge to be impeached, it mustbe shown that he has committed trea-son, accepted a bribe, or has committeda high crime or misdemeanor. All con-duct that can be impeached must atleast be a ‘‘misdemeanor.’’ A judge isentitled to remain a judge as long ashe holds his office ‘‘during good behav-

2010


ior.’’ The content of the word ‘‘mis-demeanor’’ must encompass some ac-tivities which fall below the standardof ‘‘good behavior.’’ Conduct which failsto meet the standard of ‘‘good behav-ior’’ but which does not come withinthe definition of ‘‘misdemeanor’’ is notsubject to impeachment.

In each of the nine impeachments in-volving judges, there has been con-troversy as to the meaning of the word‘‘misdemeanor.’’ Primarily the con-troversy concerned whether the activi-ties being attacked must be criminal orwhether the word ‘‘misdemeanor’’ en-compasses less serious departures fromsociety norms.

In his memorandum ‘‘Opinion on theImpeachment of Halsted L. Ritter,’’Senator H. W. Johnson described theconfusion of thought prevailing in theSenate on these concepts. He stated:

The confusion of thought pre-vailing among Senators is evidencedby their varying expressions. Onegroup eloquently argued any gift to ajudge, under any circumstances, con-stituted misbehavior, for which heshould be removed from office—andmoreover that neither corrupt motiveor evil intent need be shown in theacceptance of a gift or in any so-called misbehavior. Another prefacedhis opinion with the statement: ‘‘I donot take the view that an impeach-ment proceeding of a judge of the in-ferior Federal courts under the Con-stitution of the United States is acriminal proceeding. The Constitu-tion itself has expressly denuded im-peachment proceedings of every as-pect or characteristic of a criminalproceeding.’’

And yet another flatly takes a con-trary view, and states although find-ing the defendant guilty on the sev-enth count: ‘‘The procedure is crimi-nal in its nature, for upon conviction,

requires the removal of a judge,which is the highest punishmentthat could be administered such anofficer. The Senate, sitting as acourt, is required to conduct its pro-ceedings and reach its decisions inaccordance with the customs of ourlaw. In all criminal cases the defend-ant comes into court enjoying thepresumption of innocence, which pre-sumption continues until he is prov-en guilty beyond a reasonabledoubt.’’

And again we find this: ‘‘Impeach-ment, though, must be considered asa criminal proceeding.’’

In his April 15, 1970, speech, Rep-resentative Ford articulated the con-cept that an impeachable offense neednot be indictable and may be some-thing less than a criminal act or crimi-nal dereliction of duty. He said:

What, then, is an impeachable of-fense?

The only honest answer is that animpeachable offense is whatever amajority of the House of Representa-tives considers to be at a given mo-ment in history; conviction resultsfrom whatever offense or offensestwo-thirds of the other body con-siders to be sufficiently serious to re-quire removal of the accused from of-fice. Again, the historical context andpolitical climate are important; thereare few fixed principles among thehandful of precedents.

I think it is fair to come to oneconclusion, however, from our his-tory of impeachments: a higherstandard is expected of Federaljudges than of any other ‘‘civil offi-cers’’ of the United States. (First Re-port, p. 31).

The ‘‘Kelley Memorandum’’ sub-mitted by Mr. Ford enforces this posi-tion. The Kelley Memorandum assertsthat misbehavior by a Federal judgemay constitute an impeachable offense

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though the conduct may not be an in-dictable crime or misdemeanor. TheKelley Memorandum concludes:

In conclusion, the history of theconstitutional provisions relating tothe impeachment of Federal judgesdemonstrates that only the Congresshas the power and duty to removefrom office any judge whose provenconduct, either in the administrationof justice or in his personal behavior,casts doubt on his personal integrityand thereby on the integrity of theentire judiciary. Federal judges mustmaintain the highest standards ofconduct to preserve the independ-ence of and respect for the judicialsystem and the rule of law.

On the other hand, Counsel for Asso-ciate Justice Douglas, Simon H.Rifkind, has submitted a memorandumthat contends that a Federal judgemay not be impeached for anythingshort of criminal conduct. Mr. Rifkindalso contends that the other provisionsof the Constitution, i.e., the prohibitionof ex post facto laws, due process noticerequirement and the protection of theFirst Amendment prevent the employ-ment of any other standard in im-peachment proceedings. In conclusionMr. Rifkind stated:

The constitutional language, inplain terms, confines impeachmentto ‘‘Treason, Bribery, or other highCrimes and Misdemeanors.’’ The his-tory of those provisions reinforcestheir plain meaning. Even when theJeffersonians sought to purge thefederal bench of all Federalistjudges, they felt compelled to at leastassert that their political victimswere guilty of ‘‘high Crimes and Mis-demeanors.’’ The unsuccessful at-tempt to remove Justice Chase firm-ly established the proposition thatimpeachment is for criminal offensesonly, and is not a ‘‘general inquest’’

into the behavior of judges. Therehas developed the consistent prac-tice, rigorously followed in every casein this century, of impeaching fed-eral judges only when criminal of-fenses have been charged. Indeed,the House has never impeached ajudge except with respect to a ‘‘highCrime’’ or ‘‘Misdemeanor.’’ Charac-teristically, the basis for impeach-ment has been the soliciting ofbribes, selling of votes, manipulationof receivers’ fees, misappropriation ofproperties in receivership, and will-ful income tax evasion.

A vast body of literature has beendeveloped concerning the scope of theimpeachment power as it pertains tofederal judges. The precedents showthat the House of Representatives, par-ticularly in the arguments made by itsManagers in the Senate trials, favorsthe conclusion that the phrase ‘‘highcrimes and misdemeanors’’ encom-passes activity which is not necessarilycriminal in nature.

Although there may be divergence ofopinion as to whether impeachment ofa judge requires conduct that is crimi-nal in nature in that it is proscribed byspecific statutory or common law pro-hibition, all authorities hold that for ajudge to be impeached, the term ‘‘mis-demeanors’’ requires a showing of mis-conduct which is inherently serious inrelation to social standards. No re-spectable argument can be made tosupport the concept that a judge couldbe impeached if his conduct did notamount at least to a serious derelictionof his duty as a member of society.

The punishment imposed by theConstitution measures how seriousmisconduct need be to be impeachable.Only serious derelictions of duty owedto society would warrant the punish-

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ment provided. An impeachment pro-ceeding is a trial which results in pun-ishment after an appropriate findingby the trier of facts, the Senate. Depri-vation of office is a punishment. Dis-qualification to hold any future officeof honor, trust and profit is a greaterpunishment. The judgment of the Sen-ate confers upon that body discretion,in the words of the Federalist Papers‘‘. . . to doom to honor or to infamy themost influential and the most distin-guished characters of the community.. . .

Reconciliation of the differences be-tween the concept that a judge has aright to his office during ‘‘good behav-ior’’ and the concept that the legisla-ture has a duty to remove him if hisconduct constitutes a ‘‘misdemeanor’’ isfacilitated by distinguishing conductthat occurs in connection with the ex-ercise of his judicial office from conductthat is non-judicially connected. Such adistinction permits recognition that thecontent of the word ‘‘misdemeanor’’ forconduct that occurs in the course of ex-ercise of the power of the judicial officeincludes a broader spectrum of actionthan is the case when non-judicial ac-tivities are involved.

When such a distinction is made, thetwo concepts on the necessity for judi-cial conduct to be criminal in nature tobe subject to impeachment becomes de-fined and may be reconciled under theoverriding requirement that to be a‘‘misdemeanor’’, and hence impeach-able, conduct must amount to a seriousdereliction of an obligation owed to so-ciety.

To facilitate exposition, the two con-cepts may be summarized as follows:

Both concepts must satisfy the re-quirements of Article II, Section 4, that

the challenged activity must constitute‘‘. . . Treason, Bribery or High Crimesand Misdemeanors.’’

Both concepts would allow a judge tobe impeached for acts which occur inthe exercise of judicial office that (1)involve criminal conduct in violation oflaw, or (2) that involve serious derelic-tion from public duty, but not nec-essarily in violation of positive statu-tory law or forbidden by the commonlaw. Sloth, drunkenness on the benchor unwarranted and unreasonable im-partiality manifest for a prolonged pe-riod are examples of misconduct, notnecessarily criminal in nature thatwould support impeachment. Whensuch misbehavior occurs in connectionwith the federal office, actual criminalconduct should not be a requisite toimpeachment of a judge or any otherfederal official. While such conductneed not be criminal, it nonethelessmust be sufficiently serious to be of-fenses against good morals and inju-rious to the social body.

Both concepts would allow a judge tobe impeached for conduct not con-nected with the duties and responsibil-ities of the judicial office which involvecriminal acts in violation of law.

The two concepts differ only with re-spect to impeachability of judicial be-havior not connected with the dutiesand responsibilities of the judicial of-fice. Concept 2 would define ‘‘mis-demeanor’’ to permit impeachment forserious derelictions of public duty butnot necessarily violations of statutoryor common law.

In summary, an outline of the twoconcepts would look this way:

A judge may be impeached for ‘‘. . .Treason, Bribery, or High Crimes orMisdemeanors.’’

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A. Behavior, connected with judicialoffice or exercise of judicial power.

Concept I1. Criminal conduct.2. Serious dereliction from public

duty.Concept II

1. Criminal conduct.2. Serious dereliction from public

duty.B. Behavior not connected with the

duties and responsibilities of the judi-cial office.

Concept I1. Criminal conduct.

Concept II1. Criminal conduct.2. Serious dereliction from public

duty.Chapter III, Disposition of Charges

sets forth the Special Subcommittee’sanalysis of the charges that involve ac-tivities of Associate Justice William O.Douglas. Under this analysis it is notnecessary for the members of the Judi-ciary Committee to choose betweenConcept I and II.

The theories embodied in Concept Ihave been articulated by Representa-tive Paul N. McCloskey, Jr. In hisspeech to the House on April 21, 1970,Mr. McCloskey stated:

The term ‘‘good behavior,’’ as theFounding Fathers considered it,must be taken together with the spe-cific provisions limiting cause for im-peachment of executive branch per-sonnel to treason, bribery or otherhigh crimes and misdemeanors. Thehigher standard of good behavior re-quired of judges might well be con-sidered as applicable solely to theirjudicial performance and capacityand not to their private and non-judicial conduct unless the same is

violative of the law. Alcoholism, arro-gance, nonjudicial temperament, andsenility of course interfere with judi-cial performance and properly justifyimpeachment. I can find no prece-dent, however, for impeachment of aJudge for nonjudicial conduct whichfalls short of violation of law.

In looking to the nine cases of im-peachment of Judges spanning 181years of our national history, inevery case involved, the impeach-ment was based on either improperjudicial conduct or non-judicial con-duct which was considered as crimi-nal in nature. CONG. REC. 91stCong., 2nd Sess., H 3327.

In his August 18, 1970, letter to theSpecial Subcommittee embodying hiscomments on the ‘‘Kelley Memo-randum’’, Mr. McCloskey reaffirmedthis concept. He stated:

Conduct of a Judge, while it maybe less than criminal in nature toconstitute ‘‘less than good behavior’’,has never resulted in a successfulimpeachment unless the judge wasacting in his judicial capacity or mis-using his judicial power. In otherwords the precedents suggest thatmisconduct must either be ‘‘judicialmisconduct’’ or conduct which con-stitutes a crime. There is no basis forimpeachment on charges of non-judi-cial misconduct which occurs off thebench and does not constitute acrime. . . .

IV. RECOMMENDATIONS OF SPECIAL

SUBCOMMITTEE TO JUDICIARY COM-MITTEE

1. It is not necessary for the mem-bers of the Judiciary Committee totake a position on either of the con-cepts of impeachment that are dis-cussed in Chapter II.

2. Intensive investigation of the Spe-cial Subcommittee has not disclosedcreditable evidence that would warrant

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6. See § 14.16 infra.7. 119 CONG. REC. 31368, 93d Cong. 1st

Sess.

preparation of charges on any accept-able concept of an impeachable offense.

EMANUEL CELLER,BYRON G. ROGERS,JACK BROOKS.

The minority views of Mr. Ed-ward Hutchinson, of Michigan, amember of the special sub-committee, concluded as followson the ‘‘concepts of impeachment’’:

The report contains a chapter on theConcepts of Impeachment. At the sametime, it takes the position that it is un-necessary to choose among the con-cepts mentioned because it finds noimpeachable offense under any. It isevident, therefore, that while a discus-sion of the theory of impeachment isinteresting, it is unnecessary to a reso-lution of the case as the Subcommitteeviews it. This chapter on Concepts isnothing more than dicta under the cir-cumstances. Certainly the Sub-committee should not even indirectlynarrow the power of the House to im-peach through a recitation of two orthree theories and a very apparentchoice of one over the others, while atthe same time asserting that no choiceis necessary. The Subcommittee’s re-port adopts the view that a Federaljudge cannot be impeached unless he isfound to have committed a crime, or aserious indiscretion in his judiciallyconnected activities. Although it ispurely dicta, inclusion of this chapterin the report may be mischievous sinceit might unjustifiably restrict the scopeof further investigation.

Following the submission of thereport, further proceedingsagainst Justice Douglas were dis-continued.(8)

Offenses Committed Prior toTerm of Office

§ 3.14 The Speaker and theHouse declined to take anyaction on a request by theVice President for an inves-tigation into possible im-peachable offenses againsthim, where the offenses werenot related to his term of of-fice as Vice President andwhere the charges werepending before the courts.On Sept. 25, 1973,(7) Speaker

Carl Albert, of Oklahoma, laid be-fore the House a communicationfrom Vice President Spiro T.Agnew requesting that the Houseinvestigate offenses charged to theVice President in an investigationbeing conducted by a U.S. Attor-ney. The alleged offenses relatedto the Vice President’s conduct be-fore he became a civil officerunder the United States. No ac-tion was taken on the request.

Parliamentarian’s Note: TheVice President cited in his letter arequest made by Vice PresidentJohn C. Calhoun in 1826 (dis-cussed at 3 Hinds’ Precedents§ 1736). On that occasion, the al-leged charges related to the VicePresident’s prior service as Sec-retary of War. The communication

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8. House Rules and Manual § 620 (Jef-ferson’s Manual) (1973).

9. See 3 Hinds’ Precedents §§ 2319,2320, for the presentation of the res-

olution impeaching Judge Pickering,and § 4.1, infra, for the presentationto the Senate of the resolution im-peaching Judge Louderback.

10. See 3 Hinds’ Precedents § 2321. Forthe later practice of presenting tothe Senate a resolution togetherwith articles of impeachment, see§ 8.1, infra.

11. See § 4.2, infra.

was referred on motion to a selectcommittee which investigated thecharges and subsequently re-ported to the House that no im-propriety had been found in theVice President’s former conduct asa civil officer under the UnitedStates. The report of the selectcommittee was ordered to lie onthe table and the House took nofurther action thereon. The VicePresident’s letter did not cite theCommittee on the Judiciary’s rec-ommendation to the House (dis-cussed in 3 Hinds’ Precedents§ 2510) that conduct of Vice Presi-dent Colfax allegedly occurringprior to his term as Vice Presidentwas not grounds for impeachment,since not ‘‘an act done or omittedwhile the officer was in office.’’(See § 5.14, infra).

§ 4. Effect of Adjournment

Under parliamentary law, asstated in Jefferson’s Manual, ‘‘animpeachment is not discontinuedby the dissolution of Parliament,but may be resumed by the newParliament.’’ (8) Both Judge JohnPickering and Judge HaroldLouderback were impeached bythe House in one Congress andtried by the Senate in the next.(9)

The practice at the time of thePickering impeachment was topresent a resolution of impeach-ment to the Senate and then toprepare and adopt articles of im-peachment for presentation to theSenate. In that case, impeach-ment proceedings begun in the7th Congress were resumed by theHouse in the 8th Congress.(10)

The question arose in the 73dCongress whether the appoint-ment in the 72d Congress ofHouse managers to conduct im-peachment proceedings againstJudge Louderback was such as topermit them to act in that func-tion in the 73d Congress withouta further grant of authority. TheHouse adopted in the 73d Con-gress a resolution filling vacan-cies, making reappointments, andvesting the managers with powersand granting them funds.(11)

In the case of Judge Halsted L.Ritter, the House authorized andthe Committee on the Judiciaryconducted an impeachment inves-tigation in the 73d Congress, with

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