ArtII.S4.4.6 Early Twentieth Century Jurisprudence on Impeachable Offenses

Article II, Section 4:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

The twentieth century saw further development of the scope of conduct considered by Congress to be impeachable, including the extent to which non-criminal conduct can constitute impeachable behavior and the proper role of a federal judge. Further, the question of judicial review of impeachments received its first treatment in the federal courts.

The question of whether Congress can designate particular behavior as a “high crime or misdemeanor” via statute arose in the impeachment of Charles Swayne, a federal district judge for the Northern District of Florida, during the first decade of the twentieth century. A federal statute provided that federal district judges live in their districts and that anyone violating this requirement was “guilty of a high misdemeanor.” 1 Judge Swayne’s impeachment originated from a resolution passed by the Florida legislature requesting the state’s congressional delegation to recommend an investigation into his behavior.2 The procedures followed by the House in impeaching Judge Swayne were somewhat unique. First, the House referred the impeachment request to the Judiciary Committee for investigation. Following this investigation, the House voted to impeach Judge Swayne based on the report prepared by the Committee.3 The Committee was then tasked with preparing articles of impeachment to present to the Senate.4 The House then voted again on these individual articles, each of which received less support than the single prior impeachment vote had received.5 The impeachment articles accused Judge Swayne of a variety of offenses, including misusing the office, abusing the contempt power, and living outside his judicial district. At the trial in the Senate, Judge Swayne essentially admitted to certain accused behavior, although his attorneys did dispute the residency charge, and Swayne instead argued that his actions were not impeachable.6 The Senate vote failed to convict Judge Swayne on any of the charges brought by the House.7

The impeachability of certain non-criminal behavior for federal judges was firmly established by the impeachment of Judge Robert W. Archbald in 1912. Judge Archbald served as a federal district judge before being appointed to the short-lived U.S. Commerce Court, which was created to review decisions of the Interstate Commerce Commission.8 He was impeached by the House for behavior occurring both as a federal district judge and as a judge on the Commerce Court.9 The impeachment articles accused Judge Archbald of, among other things, using his position as a judge to generate profitable business deals with potential future litigants in his court.10 This behavior did not violate any criminal statute and did not appear to violate any laws regulating judges.11 Judge Archbald argued at trial that non-criminal conduct was not impeachable. The Senate voted to convict him on five articles and also voted to disqualify him from holding office in the future.12 Four of those articles centered on behavior that occurred while Judge Archbald sat on the Commerce Court, the fifth described his conduct over the course of his career.13

In the 1920s, a series of corruption scandals swirled around the administration of President Warren G. Harding. Most prominently, the Teapot Dome Scandal, which involved the noncompetitive lease of government land to oil companies, implicated numerous government officials and led to resignations and the criminal conviction and incarceration of a cabinet-level official.14 The Secretary of the Navy, at the time Edwin Denby, was entrusted with overseeing the development of oil reserves that had recently been located. The Secretary of the Interior, Albert Fall, convinced Denby that the Interior Department should assume responsibility for two of the reserve locations, including in Teapot Dome, Wyoming. Secretary Fall then leased the reserves to two of his friends, Harry F. Sinclair and Edward L. Doheny. Revelations of the lease without competitive bidding launched a lengthy congressional investigation which sparked the eventual criminal conviction of Fall for bribery and conspiracy and Sinclair for jury tampering. President Harding, however, died in 1923, before congressional hearings began. The affair also generated significant judicial decisions examining the scope of Congress’s investigatory powers.15

One aspect of the controversy included an impeachment investigation into the decisions of then-Attorney General Harry M. Daugherty.16 In 1922 the House of Representatives referred a resolution to impeach Daugherty for a variety of activities, including his failure to prosecute those involved in the Teapot Dome Scandal, to the House Judiciary Committee.17 The House Judiciary Committee eventually found there was not sufficient evidence to impeach Daugherty. However, in 1924, a Senate special committee was formed to investigate similar matters.18 That investigation spawned allegations of a variety of improper activities in the Justice Department. Daugherty resigned on March 28, 1924.19

In 1926, federal district judge George W. English was impeached for a variety of alleged offenses, including (1) directing a U.S. marshal to gather a number of state and local officials into court in an imaginary case where Judge English proceeded to denounce them; (2) threatening two members of the press with imprisonment without sufficient cause; and (3) showing favoritism to certain litigants before his court.20 Judge English resigned before a trial in the Senate occurred and the Senate dismissed the charges without conducting a trial in his absence.21

Federal district judge Harold Louderback was impeached in 1933 for showing favoritism in the appointment of bankruptcy receivers, which were coveted positions following the stock market crash of 1929 and the ensuing Depression.22 The House authorized a subcommittee to investigate, which held hearings and recommended to the Judiciary Committee that Judge Louderback be impeached.23 The Judiciary Committee actually voted against recommending impeachment, urging censure of Judge Louderback instead, but permitted the minority report that favored impeachment to be reported to the House together with the majority report.24 The full House voted to impeach anyway,25 but the Senate failed to convict him.26

Shortly thereafter, the House impeached federal district judge Halsted L. Ritter for showing favoritism in and profiting from appointing receivers in bankruptcy proceedings; practicing law while a judge; and failing to fully report his income on his tax returns.27 The Senate acquitted Judge Ritter on each individual count alleging specific behavior, but convicted him on the final count which referenced the previous articles, and charged him with bringing his court into disrepute and undermining the public’s confidence in the judiciary.28

Congress’s impeachment of Judge Ritter was the first to be challenged in court.29 Judge Ritter brought a suit in the Federal Court of Claims seeking back pay, arguing that the charges brought against him were not impeachable under the Constitution and that the Senate improperly voted to acquit on six specific articles but to convict on a single omnibus article.30 In rejecting Judge Ritter’s suit, the court held that the Senate has exclusive jurisdiction over impeachments and courts lack authority to review the Senate’s verdict.31

Revised Statutes of the United States, 2d Edition, Title XIII, Ch. 2 § 551 (1878); Emily F.V. Tassel & Paul Finkelman, Impeachable Offenses: A Documentary History from 1787 to the Present 123–24 (1999). back
Eleanore Bushnell, Crimes, Follies, and Misfortunes: The Federal Impeachment Trials 191 (1992). back
39 Cong. Rec. 248 (1905). back
Bushnell, supra note 2, at 191–92. back
Id. at 191–93. back
Tassel & Finkelman, supra note 1, at 123–25. back
39 Cong. Rec. 3467–72 (1905). back
Tassel & Finkelman, supra note 1, at 132. back
48 Cong. Rec. 8904–34 (1912). back
Tassel & Finkelman, supra note 1, at 133. back
Id. at 134. back
49 Cong. Rec. 1438–48 (1913). back
Bushnell, supra note 2, at 221. back
See The Teapot Dome Scandal, 1922–24, in Congress Investigates: A Critical and Documentary History 460–74 (Roger A. Bruns, David L. Hostetter, Raymond W. Smock, eds., 2011). back
See McGrain v. Daugherty, 273 U.S. 135, 174–75 (1927) ( “We are of opinion that the power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function.” ); Sinclair v. United States, 279 U.S. 263, 295 (1929) (observing that Congress has authority to require disclosures in aid of its constitutional powers). back
6 Clarence Cannon, Cannon’s Precedents of the House of Representatives of the United States § 536–38 (1936) [hereinafter Cannon]. back
See 62 Cong. Rec. 12,381 (1922); Charges of Hon. Oscar E. Keller Against the Attorney General and the Attorney General’s Answers Thereto Before the Committee on the Judiciary, House of Representatives, H. Res. 425, 67th Cong. (1922). back
S. Res. 157, 68th Cong., 1st Sess. (1924); Investigation of Hon. Harry M. Daugherty, Formerly Attorney General of the United States: Hearings Before the Select Comm. on Investigation of the Att’y Gen., United States Senate, 68th Cong. (1924). back
See The Teapot Dome Scandal, 1922–24, in Congress Investigates: A Critical and Documentary History 460–74 (Roger A. Bruns, David L. Hostetter, Raymond W. Smock, eds., 2011). back
67 Cong. Rec. 6705–55 (1926); 6 Cannon, supra note 16, at §§ 544–47. back
Tassel & Finkelman, supra note 1, at 144–46. back
76 Cong. Rec. 4913–26 (1933); 6 Cannon, supra note 16, at §§ 514–24. back
Bushnell, supra note 2, at 191. back
Id. at 246. back
Id. at 245. back
77 Cong. Rec. 4064–88 (1933). back
80 Cong. Rec. 3066–92 (1936); Tassel & Finkelman, supra note 1, at 157. back
80 Cong. Rec. 5602–08 (1936); Proceedings of the U.S. Senate in the Trial of Impeachment of Halsted L. Ritter, United States District Judge for the Southern District of Florida, S. Doc. No. 74–200, 74th Cong. 637–38 (1936); Tassel & Finkelman, supra note 1, at 158–59. back
Ritter v. United States, 84 Ct. Cl. 293, 296 (1936), cert. denied, 300 U.S. 668 (1937). back
Bushnell, supra note 2, at 286–87. back
Ritter v. United States, 84 Ct. Cl. 293, 296 (1936), cert. denied, 300 U.S. 668 (1937). back