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CRS Annotated Constitution

Article II -- Table of ContentsPrev | Next

Practice over the years, however, insofar as the Senate deems itself bound by the actions of previous Senates, would appear to limit the grounds of conviction to indictable criminal offenses for all officers, with the possible exception of judges.

The Chase Impeachment.—The issue was early joined as a consequence of the Jefferson Administration’s efforts to rid itself of[p.588]some of the Federalist judges who were propagandizing the country through grand jury charges and other means. The theory of extreme latitude was enunciated by Senator Giles of Virginia during the impeachment trial of Justice Chase. “The power of impeachment was given without limitation to the House of Representatives; and the power of trying impeachments was given equally without limitation to the Senate. . . . A trial and removal of a judge upon impeachment need not imply any criminality or corruption in him . . . [but] nothing more than a declaration of Congress to this effect: You hold dangerous opinions, and if you are suffered to carry them into effect you will work the destruction of the nation. We want your offices, for the purpose of giving them to men who will fill them better.”772 Chase’s counsel responded that to be impeachable, conduct must constitute an indictable offense.773 Though Chase’s acquittal owed more to the political divisions in the Senate than to the merits of the arguments, it did go far to affix the latter reading to the phrase “high Crimes and Misdemeanors” until the turbulent period following the Civil War.774

The Johnson Impeachment.—President Johnson was impeached by the House on the ground that he had violated the “Tenure of Office” Act775 by dismissing a Cabinet chief. The theory of the proponents of impeachment was succinctly put by Representative Butler, one of the managers of the impeachment in the Senate trial. “An impeachable high crime or misdemeanor is one in its nature or consequences subversive of some fundamental or essential principle of government or highly prejudicial to the public interest, and this may consist of a violation of the Constitution, of law, of an official oath, or of duty, by an act committed or omitted, or, without violating a positive law, by the abuse of discretionary powers from improper motives or for an improper purpose.”776 Former Justice Benjamin Curtis controverted this argument, saying: “My first position is, that when the Constitution speaks of ‘treason, bribery, and other high crimes and misdemeanors,’ it refers to, and includes only, high criminal offences against the United States, made so by some law of the United States existing when the acts[p.589]complained of were done, and I say that this is plainly to be inferred from each and every provision of the Constitution on the subject of impeachment.”777 The President’s acquittal by a single vote was no doubt not the result of a choice between the two theories, but the result may be said to have placed a gloss on the impeachment language approximating the theory of the defense.

Later Judicial Impeachments.—With regard to federal judges, however, several successful impeachments in this Century appear to establish that the constitutional requirement of “good behavior” and “high crimes and misdemeanors” may conjoin to allow the removal of judges who have engaged in seriously questionable conduct, although no specific criminal statute may have been violated. Thus, both Judge Archbald and Judge Ritter were convicted on articles of impeachment that charged questionable conduct probably not amounting to indictable offenses.778 It is possible that Members of Congress may employ different standards with regard to judges who have life tenure than they do with regard to other officers of the Government who either serve for a term of years or who serve at the pleasure of others who serve for a term of years, but such a differentiation places a substantial burden upon the language of the Constitution.

With regard to the three most recent judicial impeachments, Judges Claiborne and Nixon had previously been convicted of criminal offenses, while Judge Hastings had been acquitted of criminal charges after trial. The impeachment articles charged both the conduct for which he had been indicted and trial conduct. Clearly, he was charged and convicted with criminal offenses, it being a separate question what effect the court acquittal should have.779

The Nixon Impeachment.—For the first time in over a hundred years and for only the second time in the Nation’s history, Congress moved to impeach the President of the United States, a move forestalled only by the resignation of President Nixon on August 9, 1974. In the course of the proceedings, there recurred strenuous argument with regard to the nature of an impeachable offense, whether only criminally– indictable actions qualify for that status or whether the definition is broader, and, of course, no resolution was reached.780

[p.590]

A second issue arose that apparently had not been considered before: whether persons subject to impeachment could be indicted and tried prior to impeachment and conviction or whether indictment could only follow the removal from office. In fact, the argument was really directed only to the status of the President, inasmuch as it was argued that he embodied the Executive Branch itself, while lesser executive officials and judges were not of that calibre.781 That issue similarly remained unsettled, the Supreme Court declining to provide some guidance in the course of deciding a case on executive privilege.782

Judicial Review of Impeachments.—It was long assumed that no judicial review of the impeachment process was possible, that impeachment presents a true “political question” case. That assumption was not contested until very recently, when Judges Nixon and Hastings challenged their Senate convictions.783 But[p.591]federal courts, setting the stage for Supreme Court consideration, held the challenges to be nonjusticiable, that the Constitution’s conferral on the Senate of the “sole” power to try impeachments demonstrated a textually demonstrable constitutional commitment of trial procedures to the Senate to decide without court review.784

Supplement: [P. 591, add to text following n.784:]

Upon at last reaching the question, the Court has held that a claim to judicial review of an issue arising in an impeachment trial in the Senate presents a nonjusticiable question, a “political question.” 11 Specifically, the Court held that a claim that the Senate had not followed the proper meaning of the word “try” in the impeachment clause, a special committee being appointed to take testimony and to make a report to the full Senate, complete with a full transcript, on which the Senate acted, could not be reviewed. But the analysis of the Court applies to all impeachment clause questions, thus seemingly putting off– limits to judicial review the whole process.


Footnotes

772 1 J. Q. Adams, Memoirs (Philadelphia: 1874), 322. See also 3 A. Hinds’ Precedents of the House of Representatives of the United States (Washington: 1907), 739, 753.
773 Id., 762.
774 The full record is S. Smith & T. Lloyd (eds.), Trial of Samuel Chase, An Associate Justice of the Supreme Court of the United States . . . (Washington: 1805). On the political background and the meaning of the trial and acquittal, see Lillich, The Chase Impeachment, 4 J. Legal Hist.49 (1960).
775 Act of March 2, 1867, 14 Stat. 430 .
776 1 Trial of Andrew Johnson, President of the United States on Impeachment (Washington: 1868), 88, 147.
777 Id., 409.
778 ten Broek, Partisan Politics and Federal Judgeship Impeachments Since 1903, 23 L. Rev.185 (1939).
779 Grimes, Hundred–Ton–Gun Control: Preserving Impeachment as the Exclusive Removal Mechanism for Federal Judges, 38 UCLA L. Rev. 1209, 1229–1233 (1991).
780 Analyses of the issue from different points of view are contained in Impeachment Inquiry Staff, House Judiciary Committee, Constitutional Grounds for Presidential Impeachments, 93d Congress, 2d sess. (1974) (Comm. Print); J. St. Clair, et al., Legal Staff of the President, Analysis of the Constitutional Standard for Presidential Impeachment (Washington: 1974); Office of Legal Counsel, Department of Justice, Legal Aspects of Impeachment: An Overview, and Appendix I (Washington: 1974). And see R. Berger, Impeachment: The Constitutional Problems (Cambridge: 1973), which preceded the instant controversy. The House Judiciary Committee recommended three articles of impeachment, for conduct at least one of which, refusal to honor the Committee’s subpoenas, was not an indictable offense, and a second that mixed indictable and nonindictable offenses. Impeachment of Richard M. Nixon, President of the United States, H. Rept. No. 93–1305, 93d Cong., 2d sess. (1974). Mr. Nixon’s resignation of course precluded further action on the issue, although the articles were submitted to and “accepted” by the House of Representatives. 120 Cong. Rec. 29219–29362 (1974).
781 The question first arose during the grand jury investigation of former Vice President Agnew, during which the United States, through the Solicitor General, argued that the Vice President and all civil officers were not immune from the judicial process and that removal need not precede indictment, but as to the President it was argued that for a number of constitutional and practical reasons the President was not subject to the ordinary criminal process. Memorandum for the United States, Application of Spiro T. Agnew, Civil No. 73–965 (D.Md., filed October 5, 1973). Courts have specifically held that a federal judge is indictable and may be convicted prior to removal from office. United States v. Claiborne, 727 F.2d 842, 847–848 (9th Cir.), cert. den., 469 U.S. 829 (1984); United States v. Hastings, 681 F.2d 706, 710–711 (11th Cir.), cert. den., 459 U.S. 1203 (1983); United States, v. Isaacs, 493 F.2d 1124, 1142 (7th Cir.), cert. den. sub nom., Kerner v. United States, 417 U.S. 976 (1974).
782 The grand jury had named the President as an unindicted coconspirator in the case of United States v. Mitchell, et al., No. 74– 110 (D.D.C.), apparently in the belief that he was not actually indictable while in office. The Supreme Court agreed to hear the President’s claim that the grand jury acted outside its authority, but finding that resolution of the issue was unnecessary to decision of the executive privilege claim it dismissed the petition for certiorari of the President as improvidently granted. United States v. Nixon, 418 U.S. 683, 687 n. 2 (1974).
783 Both sought to challenge the use under Rule XI of a trial committee to hear the evidence and report to the full Senate, which would then carry out the trial. The rule was adopted in the aftermath of an embarrassingly sparse attendance at the trial of Judge Louderback in 1935. National Comm. Report, op. cit., n.755, 50–53, 54–57; Grimes, op. cit., n.779, 1233–1237.
784 Nixon v. United States, 744 F.Supp. 9 (D.D.C. 1990), affd. 938 F.2d 239 (D.C.Cir. 1991), cert. granted, 112Ct.1158 (1992). However, in Hastings v. United States, 802 F.Supp. 490 (D.D.C. 1992), the court did reach the merits and held that at least in the instance of Judge Hastings, who had been acquitted in court of the criminal charges for the conduct relied on by the Senate, he was entitled to a trial before the full Senate without the interposition of the trial committee.

Supplement Footnotes

11 Nixon v. United States, 506 U.S. 224 (1993) . Nixon at the time of his conviction and removal from office was a federal district judge in Mississippi.
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