IMPEACHMENT

The impeachment provisions of the Constitution839 were derived from English practice, but there are important differences. In England, impeachment had a far broader scope. While impeachment was a device to remove from office one who abused his office or misbehaved but who was protected by the Crown, it could be used against anyone—office holder or not—and was penal in nature, with possible penalties of fines, imprisonment, or even death.840 By contrast, the American impeachment process is remedial, not penal: it is limited to office holders, and judgments are limited to no more than removal from office and disqualification to hold future office.

Impeachment was a device that figured from the first in the plans proposed to the Convention; discussion addressed such questions as what body was to try impeachments and what grounds were to be stated as warranting impeachment.841 The attention of the Framers was for the most part fixed on the President and his removal, and the results of this narrow frame of reference are reflected in the questions unresolved by the language of the Constitution.

Persons Subject to Impeachment

During the debate in the First Congress on the “removal” controversy, it was contended by some members that impeachment was the exclusive way to remove any officer of the government from his post,842 but Madison and others contended that this position was destructive of sound governmental practice,843 and the view did not prevail. Impeachment, said Madison, was to be used to reach a bad officer sheltered by the President and to remove him “even against the will of the President; so that the declaration in the Constitution was intended as a supplementary security for the good behavior of the public officers.”844 While the language of section 4 covers any “civil officer” in the executive branch,845 and covers judges as well,846 it excludes military officers,847 and the precedent was early established that it does not apply to members of Congress.848

Judges.

Article III, section 1 specifically provides judges with “good behavior” tenure, but the Constitution nowhere expressly vests the power to remove upon bad behavior, and it has been assumed that judges are made subject to the impeachment power through being labeled “civil officers.”849 The records in the Convention make this a plausible though not necessary interpretation.850 And, in fact, eleven of the fifteen impeachments reaching trial in the Senate have been directed at federal judges, and all seven of those convicted in impeachment trials have been judges.851 So settled apparently is this interpretation that the major arguments, scholarly and political, have concerned the question of whether judges, as well as others, are subject to impeachment for conduct that does not constitute an indictable offense, and the question of whether impeachment is the exclusive removal device for judges.852

Judgment—Removal and Disqualification

Article II, section 4 provides that officers impeached and convicted “shall be removed from office”; Article I, section 3, clause 7 provides further that “judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States.” These restrictions on judgment, both of which relate to capacity to hold public office, emphasize the non-penal nature of impeachment, and help to distinguish American impeachment from the open-ended English practice under which criminal penalties could be imposed.853

The plain language of section 4 seems to require removal from office upon conviction, and in fact the Senate has removed those persons whom it has convicted. In the 1936 trial of Judge Ritter, the Senate determined that removal is automatic upon conviction, and does not require a separate vote.854 This practice has continued. Because conviction requires a two-thirds vote, this means that removal can occur only as a result of a two-thirds vote. Unlike removal, disqualification from office is a discretionary judgment, and there is no explicit constitutional linkage to the two-thirds vote on conviction. Although an argument can be made that disqualification should nonetheless require a two-thirds vote,855 the Senate has determined that disqualification may be accomplished by a simple majority vote.856

Impeachable Offenses

The Convention came to its choice of words describing the grounds for impeachment after much deliberation, but the phrasing derived directly from the English practice. On June 2, 1787, the framers adopted a provision that the executive should “be removable on impeachment & conviction of mal-practice or neglect of duty.”857 The Committee of Detail reported as grounds “Treason (or) Bribery or Corruption.”858 And the Committee of Eleven reduced the phrase to “Treason, or bribery.”859 On September 8, Mason objected to this limitation, observing that the term did not encompass all the conduct that should be grounds for removal; he therefore proposed to add “or maladministration” following “bribery.” Upon Madison’s objection that “[s]o vague a term will be equivalent to a tenure during pleasure of the Senate,” Mason suggested “other high crimes & misdemeanors,” which was adopted without further recorded debate.860

The phrase “high crimes and misdemeanors” in the context of impeachments has an ancient English history, first turning up in the impeachment of the Earl of Suffolk in 1388.861 Treason is defined in the Constitution.862 Bribery is not, but it had a clear common law meaning and is now well covered by statute.863 “High crimes and misdemeanors,” however, is an undefined and indefinite phrase, which, in England, had comprehended conduct not constituting indictable offenses.864 Use of the word “other” to link “high crimes and misdemeanors” with “treason” and “bribery” is arguably indicative of the types and seriousness of conduct encompassed by “high crimes and misdemeanors.” Similarly, the word “high” apparently carried with it a restrictive meaning.865

Debate prior to adoption of the phrase866 and comments thereafter in the ratifying conventions867 were to the effect that the President (all the debate was in terms of the President) should be removable by impeachment for commissions or omissions in office which were not criminally cognizable. And in the First Congress’s “removal” debate, Madison maintained that the wanton dismissal of meritorious officers would be an act of maladministration which would render the President subject to impeachment.868 Other comments, especially in the ratifying conventions, tend toward a limitation of the term to criminal, perhaps gross criminal, behavior.869 The scope of the power has been the subject of continuing debate.870

The Chase Impeachment

The issue of the scope of impeachable offenses was early joined as a consequence of the Jefferson Administration’s efforts to rid itself of 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.”871 Chase’s counsel responded that to be impeachable, conduct must constitute an indictable offense.872 The issue was left unresolved, Chase’s acquittal owing more to the political divisions in the Senate than to the merits of the arguments.873

Other Impeachments of Judges

The 1803 impeachment and conviction of Judge Pickering as well as several successful 20th century impeachments of judges appear to establish that judges may be removed for seriously questionable conduct that does not violate a criminal statute.874 The articles on which Judge Pickering was impeached and convicted focused on allegations of mishandling a case before him and appearing on the bench in an intemperate and intoxicated state.875 Both Judge Archbald and Judge Ritter were convicted on articles of impeachment that charged questionable conduct probably not amounting to indictable offenses.876

Of the three most recent judicial impeachments, Judges Claiborne and Nixon had previously been convicted of criminal offenses, and Judge Hastings had been acquitted of criminal charges after trial. The impeachment articles against Judge Hastings charged both the conduct for which he had been indicted and trial conduct. A separate question was what effect the court acquittal should have had.877

Although the language of the Constitution makes no such distinction, some argue that, because of the different nature of their responsibilities and because of different tenure, different standards should govern impeachment of judges and impeachment of executive officers.878

The Johnson Impeachment

President Andrew Johnson was impeached by the House on the ground that he had violated the “Tenure of Office” Act879 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.”880 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 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.”881 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.882

The Nixon Impeachment Proceedings

For the first time in more than a hundred years,883 Congress moved to impeach the President of the United States, a move forestalled only by the resignation of President Nixon on August 9, 1974.884 Three articles of impeachment were approved by the House Judiciary Committee, charging obstruction of the investigation of the “Watergate” burglary inquiry, misuse of law enforcement and intelligence agencies for political purposes, and refusal to comply with the Judiciary Committee’s subpoenas.885 Following President Nixon’s resignation, the House adopted a resolution to “accept” the House Judiciary Committee’s report recommending impeachment,886 but there was no vote adopting the articles and thereby impeaching the former President, and consequently there was no Senate trial.

In the course of the proceedings, there was strenuous argument about the nature of an impeachable offense, whether only criminally-indictable actions qualify for that status or whether the definition is broader.887 The three articles approved by the Judiciary Committee were all premised on abuse of power, although the first article, involving obstruction of justice, also involved a criminal violation.888 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 occur only after removal from office. In fact, the argument was really directed only to the status of the President, as it was argued that he embodied the Executive Branch itself, while lesser executive officials and judges were not of that calibre.889 That issue also remained unsettled, the Supreme Court declining to provide guidance in the course of deciding a case on executive privilege.890

The Clinton Impeachment

President Clinton was impeached by the House, but acquitted by vote of the Senate. The House approved two articles of impeachment against the President stemming from the President’s response to a sexual harassment civil lawsuit and to a subsequent grand jury investigation instigated by an Independent Counsel. The first article charged the President with committing perjury in testifying before the grand jury about his sexual relationship with a White House intern and his efforts to cover it up;891 the second article charged the President with obstruction of justice relating both to the civil lawsuit and to the grand jury proceedings.892 Two additional articles of impeachment had been approved by the House Judiciary Committee but were rejected by the full House.893 The Senate trial resulted in acquittal on both articles.894

A number of legal issues surfaced during congressional consideration of the Clinton impeachment.895 Although the congressional votes on the different impeachment articles were not neatly divided between legal and factual matters and therefore cannot be said to have resolved the legal issues,896 several aspects of the proceedings merit consideration for possible precedential significance. The House’s acceptance of the grand jury perjury charge and its rejection of the civil deposition perjury charge may reflect a belief among some members that perjury in the criminal context is more serious than perjury in the civil context. Acceptance of the obstruction of justice charge may also have been based in part on an assessment of the seriousness of the charge. On the other hand, the House’s rejection of the article relating to President Clinton’s alleged non-cooperation with the Judiciary Committee’s interrogatories can be contrasted with the House’s 1974 “acceptance” of the Judiciary Committee’s report recommending897 a similar type of charge against President Nixon, and raises the issue of whether the different circumstances (e.g., the relative importance of the information sought, and the nature and extent of the responses) may account for the different approaches. So too, the acquittal of President Clinton on the perjury charge can be contrasted with convictions of Judges Hastings and Nixon on perjury charges, and presents the issue of whether different standards should govern Presidents and judges. The role of the Independent Counsel in complying with a statutory mandate to refer to the House “any substantial and credible information . . . that may constitute grounds for an impeachment” occasioned commentary.898 The relationship of censure to impeachment was another issue that arose. Some members advocated censure of President Clinton as an alternative to impeachment, as an alternative to trial, or as a post-trial means for those Senators who voted to acquit to register their disapproval of the President’s conduct, but there was no vote on censure.899

Finally, the Clinton impeachment raised the issue of what the threshold is for “high crimes and misdemeanors.” While the Nixon charges were premised on the assumption that an abuse of power need not be a criminal offense to be an impeachable offense,900 the Clinton proceedings—or at least the perjury charge—raised the issue of whether criminal offenses that do not rise to the level of an abuse of power may nonetheless be impeachable offenses.901 The House’s vote to impeach President Clinton arguably amounted to an affirmative answer,902 but the Senate’s acquittal leaves the matter somewhat unsettled.903 There appeared to be broad consensus in the Senate that some private crimes not involving an abuse of power (e.g., murder for personal reasons) are so outrageous as to constitute grounds for removal,904 but there was no consensus on where the threshold for outrageousness lies, and there was no consensus that the perjury and obstruction of justice with which President Clinton was charged were so outrageous as to impair his ability to govern, and hence to justify removal.905 Similarly, the almost evenly divided Senate vote to acquit meant that there was no consensus that removal was justified on the alternative theory that the alleged perjury and obstruction of justice so damaged the judiciary as to constitute an impeachable “offense against the state.”906

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, i.e., that the Constitution’s conferral on the Senate of the “sole” power to try impeachments is a textually demonstrable constitutional commitment of trial procedures to the Senate to decide without court review. That assumption was not contested until very recently, when Judges Nixon and Hastings challenged their Senate convictions.907

In the Judge Nixon case, the Court held that a claim to judicial review of an issue arising in an impeachment trial in the Senate presents a nonjusticiable “political question.”908 Specifically, the Court rejected a claim that the Senate had departed from the meaning of the word “try” in the impeachment clause by relying on a special committee to take evidence, including testimony. But the Court’s “political question” analysis has broader application, and appears to place the whole impeachment process off limits to judicial review.909

Footnotes

839
Impeachment is the subject of several other provisions of the Constitution. Article I, § 2, cl. 5, gives to the House of Representatives “the sole power of impeachment.” Article I, § 3, cl. 6, gives to the Senate “the sole power to try all impeachments,” requires that Senators be under oath or affirmation when sitting for that purpose, stipulates that the Chief Justice of the United States is to preside when the President of the United States is tried, and provides for conviction on the vote of two-thirds of the members present. Article I, § 3, cl. 7, limits the judgment after impeachment to removal from office and disqualification from future federal office holding, but it allows criminal trial following conviction upon impeachment. Article II, § 2, cl. 1, deprives the President of the power to grant pardons or reprieves in cases of impeachment. Article III,§ 2, cl. 3, excepts impeachment cases from the jury trial requirement. Although the word “impeachment” is sometimes used to refer to the process by which any member of the House may “impeach” an officer of the United States under a question of constitutional privilege (see 3 HINDS ’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES §§ 2398 (impeachment of President John Tyler by a member) and 2469 (impeachment of Judge John Swayne by a member) (1907), the word as used in Article II, § 4 refers to impeachment by vote of the House, the consequence of which is that the Senate may then try the impeached officer. [Back to text]
840
1 W. HOLDSWORTH, HISTORY OF ENGLISH COURTS 379–85 (7th ed. 1956); Clarke, The Origin of Impeachment, in OXFORD ESSAYS IN MEDIEVAL HISTORY, PRESENTED TO HERBERT EDWARD SALTER 164 (1934); Alex Simpson, Jr., Federal Impeachments, 64 U. PA. L. REV. 651 (1916). [Back to text]
841
Alex Simpson, Jr., Federal Impeachments, 64 U. PA. L. REV.at 653–67 (1916). [Back to text]
842
1 ANNALS OF CONG. 457, 473, 536 (1789). [Back to text]
843
Id. at 375, 480, 496–97, 562. [Back to text]
844
Id. at 372. [Back to text]
845
The term “civil officers of the United States” is not defined in the Constitution, although there may be a parallel with “officers of the United States” under the Appointments Clause, Art. II, § 2, cl. 2, and it may be assumed that not all executive branch employees are “officers.” For precedents relating to the definition, see 3 HINDS ’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES §§ 1785, 2022, 2486, 2493, and 2515 (1907). See also Ronald D. Rotunda, An Essay on the Constitutional Parameters of Federal Impeachment, 76 KY. L. REV. 707, 715–18 (1988). [Back to text]
846
See the following section on Judges. [Back to text]
847
3 W. Willoughby, supra at 1448. [Back to text]
848
This point was established by a vote of the Senate holding a plea to this effect good in the impeachment trial of Senator William Blount in 1797. 3 HINDSPRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES §§ 2294–2318 (1907); F. WHARTON, STATE TRIALS OF THE UNITED STATES DURING THE ADMINISTRATIONS OF WASHINGTON AND ADAMS 200–321 (1849); BUCKNER F. MELTON, JR., THE FIRST IMPEACHMENT: THE CONSTITUTIONS FRAMERS AND THE CASE OF SENATOR WILLIAM BLOUNT (1998). [Back to text]
849
See NATIONAL COMMN ON JUDICIAL DISCIPLINE & REMOVAL, REPORT OF THE NATIONAL COMMN ON JUDICIAL DISCIPLINE & REMOVAL 9–11 (1993). The Commission was charged by Congress with investigating and studying problems and issues relating to discipline and removal of federal judges, to evaluate the advisability of developing alternatives to impeachment, and to report to the three Government Branches. Pub. L. 101–650, 104 Stat. 5124. The report and the research papers produced for it contain a wealth of information on the subject. [Back to text]
850
For practically the entire Convention, the plans presented and adopted provided that the Supreme Court was to try impeachments. 1 M. Farrand, supra, at 22, 244, 223–24, 231; 2 id. at 186. On August 27, it was successfully moved that the provision in the draft of the Committee on Detail giving the Supreme Court jurisdiction of trials of impeachment be postponed, id. at 430, 431, which was one of the issues committed to the Committee of Eleven. Id. at 481. That Committee reported the provision giving the Senate power to try all impeachments, id. at 497, which the Convention thereafter approved. Id. at 551. It may be assumed that so long as trial was in the Supreme Court, the Framers did not intend that the Justices, at least, were to be subject to the process. The Committee of Five on August 20 was directed to report “a mode for trying the supreme Judges in cases of impeachment,” id. at 337, and it returned a provision making Supreme Court Justices triable by the Senate on impeachment by the House. Id. at 367. Consideration of this report was postponed. On August 27, it was proposed that all federal judges should be removable by the executive upon the application of both houses of Congress, but the motion was rejected. Id. at 428–29. The matter was not resolved by the report of the Committee on Style, which left in the “good behavior” tenure but contained nothing about removal. Id. at 575. Therefore, unless judges were included in the term “civil officers,” which had been added without comment on September 8 to the impeachment clause, id. at 552, they were not made removable. [Back to text]
851
The following judges faced impeachment trials in the Senate: John Pickering, District Judge, 1803 (convicted), 3 HINDS ’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES §§ 2319–2341 (1907); Justice Samuel Chase, 1804 (acquitted), id. at §§ 2342–2363; James H. Peck, District Judge, 1830 (acquitted), id. at 2364–2384; West H. Humphreys, District Judge, 1862 (convicted), id. at §§ 2385–2397; Charles Swayne, District Judge, 1904 (acquitted), id. at §§ 2469–2485; Robert W. Archbald, Judge of Commerce Court, 1912 (convicted), 6 CANNONS PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES §§ 498–512 (1936); Harold Louderback, District Judge, 1932 (acquitted), id. at §§ 513–524; Halsted L. Ritter, District Judge, 1936 (convicted), Proceedings of the United States Senate in the Trial of Impeachment of Halsted L. Ritter, S. Doc. No. 200, 74th Congress, 2d Sess. (1936); Harry Claiborne, District Judge, 1986 (convicted), Proceedings of the United States Senate in the Impeachment Trial of Harry E. Claiborne, S. Doc. 99–48, 99th Cong., 2d Sess. (1986); Alcee Hastings, District Judge, 1989 (convicted), Proceedings of the United States Senate in the Impeachment Trial of Alcee L. Hastings, S. Doc. 101–18, 101st Cong., 1st Sess. (1989); Walter Nixon, District Judge, 1989 (convicted), Proceedings of the United States Senate in the Impeachment Trial of Walter L. Nixon, Jr., S. Doc. 101–22, 101st Cong., 1st Sess. (1989). In addition, impeachment proceedings against district judge George W. English were dismissed in 1926 following his resignation six days prior to the scheduled start of his Senate trial. 68 CONG. REC. 344, 348 (1926). See also ten Broek, Partisan Politics and Federal Judgeship Impeachments Since 1903, 23 M1903, 23 MINN. L. REV. 185, 194–96 (1939). The others who have faced impeachment trials in the Senate are Senator William Blount (acquitted); Secretary of War William Belknap (acquitted); President Andrew Johnson (acquitted); and President William J. Clinton (acquitted). For summary and discussion of the earlier cases, seeCONSTITUTIONAL ASPECTS OF WATERGATE: DOCUMENTS AND MATERIALS (A. Boyan ed., 1976); and Paul S. Fenton, The Scope of the Impeachment Power, 65 NW. U. L. REV. 719 (1970) (appendix), reprinted in Staff of the House Committee on the Judiciary, 105th Cong., Impeachment: Selected Materials 1818 (Comm. Print. 1998). [Back to text]
852
It has been argued that the impeachment clause of Article II is a limitation on the power of Congress to remove judges and that Article III is a limitation on the executive power of removal, but that it is open to Congress to define “good behavior” and establish a mechanism by which judges may be judicially removed. Shartel, Federal Judges—Appointment, Supervision, and Removal—Some Possibilities Under the Constitution, 28 MICH. L. REV. 485, 723, 870 (1930). Proposals to this effect were considered in Congress in the 1930s and 1940s and revived in the late 1960s, stimulating much controversy in scholarly circles. E.g., Kramer & Barron, The Constitutionality of Removal and Mandatory Retirement Procedures for the Federal Judiciary: The Meaning of “During Good Behavior,” 35 GEO. WASH. L. REV. 455 (1967); Ziskind, Judicial Tenure in the American Constitution: English and American Precedents, 1969 SUP. CT. REV. 135; Berger, Impeachment of Judges and “Good Behavior” Tenure, 79 YALE L. J. 1475 (1970). Congress did in the Judicial Conduct and Disability Act of 1980, Pub. L. 96–458, 94 Stat. 2035, 28 U.S.C. § 1 note, 331, 332, 372, 604, provide for disciplinary powers over federal judges, but it specifically denied any removal power. The National Commission, supra at 17–26, found impeachment to be the exclusive means of removal and recommended against adoption of an alternative. Congress repealed 28 U.S.C. § 372 in the Judicial Improvements Act of 2002, Pub. L. 107–273 and created a new chapter (28 U.S.C. §§ 351–64) dealing with judicial discipline short of removal for Article III judges, and authorizing discipline including removal for magistrate judges. The issue was obliquely before the Court as a result of a judicial conference action disciplining a district judge, but it was not reached, Chandler v. Judicial Council, 382 U.S. 1003 (1966); 398 U.S. 74 (1970), except by Justices Black and Douglas in dissent, who argued that impeachment was the exclusive power. [Back to text]
853
See discussion supra of the differences between English and American impeachment. [Back to text]
854
3 DESCHLERS PRECEDENTS OF THE UNITED STATES HOUSE OF REPRESENTATIVES ch. 14, § 13.9. [Back to text]
855
See MICHAEL J. GERHARDT, THE FEDERAL IMPEACHMENT PROCESS: A CONSTITUTIONAL AND HISTORICAL ANALYSIS 77–79 (2d ed. 2000). [Back to text]
856
The Senate imposed disqualification twice, on Judges Humphreys and Archbald. In the Humphreys trial the Senate determined that the issues of removal and disqualification are divisible, 3 HINDS ’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES § 2397 (1907), and in the Archbald trial the Senate imposed judgment of disqualification by vote of 39 to 35. 6 CANNONS PRECEDENTS OF THE HOUSE OF REPRESENTATIVES § 512 (1936). During the 1936 trial of Judge Ritter, a parliamentary inquiry as to whether a two-thirds vote or a simple majority vote is required for disqualification was answered by reference to the simple majority vote in the Archbald trial. 3 DESCHLERS PRECEDENTS ch. 14, § 13.10. The Senate then rejected disqualification of Judge Ritter by vote of 76–0. 80 CONG. REC. 5607 (1936). [Back to text]
857
1 M. Farrand, supra, at 88. [Back to text]
858
2 M. Farrand at 172, 186. [Back to text]
859
Id. at 499. [Back to text]
860
Id. at 550. [Back to text]
861
1 T. HOWELL, STATE TRIALS AND PROCEEDINGS FOR HIGH TREASON AND OTHER CRIMES AND MISDEMEANORS FROM THE EARLIEST PERIOD TO THE PRESENT TIMES 90, 91 (1809); A. SIMPSON, TREATISE ON FEDERAL IMPEACHMENTS 86 (1916). [Back to text]
862
Article III, § 3. [Back to text]
863
The use of a technical term known in the common law would require resort to the common law for its meaning, United States v. Palmer, 16 U.S. (3 Wheat.) 610, 630 (1818) (per Chief Justice Marshall); United States v. Jones, 26 Fed. Cas. 653, 655 (No. 15,494) (C.C.Pa. 1813) (per Justice Washington), leaving aside the issue of the cognizability of common law crimes in federal courts. See Act of April 30, 1790, § 21, 1 Stat. 117. [Back to text]
864
Berger, Impeachment for “High Crimes and Misdemeanors,” 44 S. CAL. L. REV. 395, 400–415 (1971). [Back to text]
865
The extradition provision reported by the Committee on Detail had provided for the delivering up of persons charged with “Treason[,] Felony or high Misdemeanors.” 2 M. Farrand, supra, at 174. But the phrase “high Misdemeanors” was replaced with “other crimes” “in order to comprehend all proper cases: it being doubtful whether ‘high misdemeanor’ had not a technical meaning too limited.” Id. at 443. [Back to text]
866
See id. at 64–69, 550–51. [Back to text]
867
E.g., 3 J. ELLIOT, DEBATES IN THE SEVERAL STATE CONVENTIONS ON ADOPTION OF THE CONSTITUTION 341, 498, 500, 528 (1836) (Madison); 4 id. at 276, 281 ©. C. Pinckney: Rutledge): 3 id. at 516 (Corbin): 4 id. at 263 (Pendleton). Cf. THE FEDERALIST, No. 65 (J. Cooke ed. 1961), 439–45 (Hamilton). [Back to text]
868
1 ANNALS OF CONG. 372–73 (1789). [Back to text]
869
4 J. Elliot, supra at 126 (Iredell); 2 id. at 478 (Wilson). For a good account of the debate at the Constitutional Convention and in the ratifying conventions, see Alex Simpson, Jr., Federal Impeachments, 64 U. PA. L. REV. 651, 676–95 (1916) [Back to text]
870
See generally CHARLES L. BLACK, IMPEACHMENT: A HANDBOOK (1974); RAOUL BERGER, IMPEACHMENT: THE CONSTITUTIONAL PROBLEMS (1973); MICHAEL J. GERHARDT, THE FEDERAL IMPEACHMENT PROCESS: A CONSTITUTIONAL AND HISTORICAL ANALYSIS (2d ed. 2000); PETER CHARLES HOFFER AND N.E.H. HULL, IMPEACHMENT IN AMERICA, 1635–1805 (1984); JOHN R. LABOVITZ, PRESIDENTIAL IMPEACHMENT (1978); 3 DESCHLERS PRECEDENTS OF THE HOUSE OF REPRESENTATIVES, ch. 14, § 3 “Grounds for Impeachments,” H.R. Doc. No. 661, 94th Cong. 2d Sess. (1977); Charles Doyle, Impeachment Grounds: A Collection of Selected Materials, CRS Report for Congress 98–882A (1998); and Elizabeth B. Bazan, Impeachment: An Overview of Constitutional Provisions, Procedure, and Practice, CRS Report for Congress 98–186A (1998). [Back to text]
871
1 J. Q. ADAMS, MEMOIRS 322 (1874). See also 3 HINDS ’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES §§ 2356–2362 (1907). [Back to text]
872
3 HINDS ’ PRECEDENTS at § 2361. [Back to text]
873
The full record is TRIAL OF SAMUEL CHASE, AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES (S. Smith & T. Lloyd eds., 1805). For analysis of the trial and acquittal, see Lillich, The Chase Impeachment, 4 AMER. J. LEGAL HIST. 49 (1960); and WILLIAM H. REHNQUIST, GRAND INQUESTS: THE HISTORIC IMPEACHMENTS OF JUSTICE SAMUEL CHASE AND PRESIDENT ANDREW JOHNSON (1992). The proceedings against Presidents Tyler and Johnson and the investigation of Justice Douglas are also generally viewed as precedents that restrict the use of impeachment as a political weapon. [Back to text]
874
Some have argued that the constitutional requirement of “good behavior” and “high crimes and misdemeanors” conjoin to allow the removal of judges who have engaged in non-criminal conduct inconsistent with their responsibilities, or that the standard of “good behavior”—not that of “high crimes and misdemeanors”—should govern impeachment of judges. See 3 DESCHLERS PRECEDENTS OF THE HOUSE OF REPRESENTATIVES, ch. 14, §§ 3.10 and 3.13, H.R. Doc. No. 661, 94th Cong. 2d Sess. (1977) (summarizing arguments made during the impeachment investigation of Justice William O. Douglas in 1970). For a critique of these views, see Paul S. Fenton, The Scope of the Impeachment Power, 65 NW. U. L. REV.719 (1970), reprinted in Staff of the House Committee on the Judiciary, 105th Cong., Impeachment: Selected Materials 1801–03 (Comm. Print. 1998). [Back to text]
875
See 3 HINDS ’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES §§ 2319–2341 (1907) [Back to text]
876
Ten Broek, Partisan Politics and Federal Judgeship Impeachments Since 1903, 23 MINN. L. REV. 185 (1939). Judge Ritter was acquitted on six of the seven articles brought against him, but convicted on a seventh charge that summarized the first six articles and charged that the consequence of that conduct was “to bring his court into scandal and disrepute, to the prejudice of said court and public confidence in the Federal judiciary, and to render him unfit to continue to serve as such judge.” This seventh charge was challenged unsuccessfully on a point of order, but was ruled to be a separate charge of “general misbehavior.” [Back to text]
877
Warren S. Grimes, Hundred-Ton-Gun Control: Preserving Impeachment as the Exclusive Removal Mechanism for Federal Judges, 38 UCLA L. REV. 1209, 1229–1233 (1991). [Back to text]
878
See, e.g., Frank O. Bowman, III and Stephen L. Sepinuck, “High Crimes and Misdemeanors”: Defining the Constitutional Limits on Presidential Impeachment, 72 S. CAL. L. REV. 1517, 1534–38 (1999). Congressional practice may reflect this view. Judges Ritter and Claiborne were convicted on charges of income tax evasion, while the House Judiciary Committee voted not to press such charges against President Nixon. So too, the convictions of Judges Hastings and Nixon on perjury charges may be contrasted with President Clinton’s acquittal on a perjury charge. [Back to text]
879
Act of March 2, 1867, ch. 154, 14 Stat. 430. [Back to text]
880
1 TRIAL OF ANDREW JOHNSON, PRESIDENT OF THE UNITED STATES ON IMPEACHMENT 88, 147 (1868). [Back to text]
881
Id. at 409. [Back to text]
882
For an account of the Johnson proceedings, see WILLIAM H. REHNQUIST, GRAND INQUESTS: THE HISTORIC IMPEACHMENTS OF JUSTICE SAMUEL CHASE AND PRESIDENT ANDREW JOHNSON (1992). [Back to text]
883
The only occasion before the Johnson impeachment when impeachment of a President had come to a House vote was the House’s rejection in 1843 of an impeachment resolution against President John Tyler. The resolution, which listed nine separate counts and which was proposed by a member rather than by a committee, was defeated by vote of 127 to 84. See 3 HINDS ’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES § 2398 (1907); CONG. GLOBE, 27th Cong. 3d Sess. 144–46 (1843). [Back to text]
884
The President’s resignation did not necessarily require dismissal of the impeachment charges. Judgment upon conviction can include disqualification as well as removal. Art. I, § 3, cl. 7. Precedent from the 1876 impeachment of Secretary of War William Belknap, who had resigned prior to his impeachment by the House, suggests that impeachment can proceed even after a resignation. See 3 HINDS ’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES, § 2445 (1907). The Belknap precedent may be somewhat weakened, however, by the fact that his acquittal was based in part on the views of some Senators that impeachment should not be applied to someone no longer in office, id. at § 2467, although the Senate had earlier rejected (by majority vote of 37–29) a resolution disclaiming jurisdiction, and had adopted by vote of 35–22 a resolution affirming that result See id. at § 2007 for an extensive summary of the Senate’s consideration of the issue. See also id, § 2317 (it had been conceded during the 1797 proceedings against Senator William Blount, who had been sequestered from his seat in the Senate, that an impeached officer could not escape punishment by resignation). [Back to text]
885
H.R. REP. NO. 93–1305. [Back to text]
886
120 CONG. REC. 29361–62 (1974). [Back to text]
887
Analyses of the issue from different points of view are contained in Impeachment Inquiry Staff, House Judiciary Committee, 93d Cong., Constitutional Grounds for Presidential Impeachments, (Comm. Print 1974); 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). See alsoRAOUL BERGER, IMPEACHMENT: THE CONSTITUTIONAL PROBLEMS (1973), which preceded the instant controversy; and MICHAEL J. GERHARDT, THE FEDERAL IMPEACHMENT PROCESS: A CONSTITUTIONAL AND HISTORICAL ANALYSIS 103–06 (2d ed. 2000). [Back to text]
888
Indeed, the Committee voted not to recommend impeachment for alleged income tax fraud, an essentially private crime not amounting to an abuse of power. [Back to text]
889
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 could be indicted prior to removal, but that the President for a number of constitutional and practical reasons 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 held that a federal judge was indictable and could be convicted prior to removal from office. United States v. Claiborne, 727 F.2d 842, 847–848 (9th Cir.), cert. denied, 469 U.S. 829 (1984); United States v. Hastings, 681 F.2d 706, 710–711 (11th Cir.), cert. denied, 459 U.S. 1203 (1983); United States v. Isaacs, 493 F.2d 1124 (7th Cir.), cert. denied sub nom. Kerner v. United States, 417 U.S. 976 (1974). [Back to text]
890
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. 1974), 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 as improvidently granted the President’s petition for certiorari. United States v. Nixon, 418 U.S. 683, 687 n.2 (1974). [Back to text]
891
Approved by a vote of 228–206. 144 CONG. REC. H12,040 (daily ed. Dec. 19, 1998). [Back to text]
892
Approved by a vote of 221–212. 144 CONG. REC. H12,041 (daily ed. Dec. 19, 1998). [Back to text]
893
An article charging the President with perjury in the civil sexual harassment suit brought against him was defeated by a vote of 229–205; another article charging him with abuse of office by false responses to the House Judiciary Committee’s written request for factual admissions was defeated by vote of 285 to 148. 144 CONG. REC. H12,042 (daily ed. Dec. 19, 1998). [Back to text]
894
The vote for acquittal was 55 to 45 on the grand jury perjury charge, and 50 to 50 on the obstruction of justice charge. 145 CONG. REC. S1458–59 (daily ed. Feb. 12, 1999). [Back to text]
895
For analysis and different perspectives on the Clinton impeachment, see Background and History of Impeachment: Hearing Before the Subcomm. on the Constitution of the House Comm. on the Judiciary, 105th Cong., 2d Sess. (1998); and Staff of the House Comm. on the Judiciary, 105th Cong., Impeachment: Selected Materials (Comm. Print 1998). See also MICHAEL J. GERHARDT, THE FEDERAL IMPEACHMENT PROCESS: A CONSTITUTIONAL AND HISTORICAL ANALYSIS (2d ed. 2000); RICHARD A. POSNER, AN AFFAIR OF STATE: THE INVESTIGATION, IMPEACHMENT, AND TRIAL OF PRESIDENT CLINTON (1999); LAURENCE H. TRIBE, 1 AMERICAN CONSTITUTIONAL LAW 181–202 (3d ed. 2000); and Michael Stokes Paulsen, Impeachment (Update), 3 ENCYCLOPEDIA OF THE AMERICAN CONSTITUTION 1340–43 (2d ed. 2000). Much of the documentation can be found in Impeachment of William Jefferson Clinton, President of the United States, H.R. REP. NO. 105–380 (1998); Staff of the House Comm. on the Judiciary, 105th Cong., 2d Sess., Impeachment Inquiry: William Jefferson Clinton, President of the United States; Consideration of Articles of Impeachment (Comm. Print 1998); and Impeachment of President William Jefferson Clinton: The Evidentiary Record Pursuant to S. Res. 16, S. Doc. No. 106–3 (1999) (21-volume set). [Back to text]
896
Following the trial, a number of Senators placed statements in the record explaining their votes. See 145 CONG. REC. S1462–1637 (daily ed. Feb. 12, 1999). [Back to text]
897
Note that the Judiciary Committee deleted from the article a charge based on President Clinton’s allegedly frivolous assertions of executive privilege in response to subpoenas from the Office of Independent Counsel. Similarly, the Committee in 1974 distinguished between President Nixon’s refusal to respond to congressional subpoenas and his refusal to respond to those of the special prosecutor; only the refusal to provide information to the impeachment inquiry was cited as an impeachable abuse of power. [Back to text]
898
The requirement was contained in the Ethics in Government Act, since lapsed, and codified at 28 U.S.C. § 595(c). For commentary, see Ken Gormley, Impeachment and the Independent Counsel: A Dysfunctional Union, 51 STAN. L. REV. 309 (1999). [Back to text]
899
For analysis of the issue, see Jack Maskell, Censure of the President by Congress, CRS Report for Congress 98–843. [Back to text]
900
According to one scholar, the three articles of impeachment against President Nixon epitomized the “paradigm” for presidential impeachment—abuse of power in which there is “not only serious injury to the constitutional order but also a nexus between the misconduct of an impeachable official and the official’s formal duties.” Michael J. Gerhardt, The Lessons of Impeachment History, 67 GEO. WASH. L. REV. 603, 617 (1999). [Back to text]
901
Although committing perjury in a judicial proceeding—regardless of purpose or subject matter—impedes the proper functioning of the judiciary both by frustrating the search for truth and by breeding disrespect for courts, and consequently may be viewed as an (impeachable) “offense against the state” (see 145 CONG. REC. S1556 (daily ed. Feb. 12, 1999) (statement of Sen. Thompson)), such perjury arguably constitutes an abuse of power only if the purpose or subject matter of the perjury relates to official duties or to aggrandizement of power. Note that one of the charges against President Clinton recommended by the House Judiciary Committee but rejected by the full House—providing false responses to the Committee’s interrogatories— was squarely premised on an abuse of power. [Back to text]
902
The House vote can be viewed as rejecting the views of a number of law professors, presented in a letter to the Speaker entered into the Congressional Record, arguing that high crimes and misdemeanors must involve “grossly derelict exercise of official power.” 144 CONG. REC. H9649 (daily ed. Oct. 6, 1998). [Back to text]
903
Some Senators who explained their acquittal votes rejected the idea that the particular crimes that President Clinton was alleged to have committed amounted to impeachable offenses (see, e.g., 145 CONG. REC. S1560 (daily ed. Feb. 12, 1999) (statement of Sen. Moynihan); id. at 1601 (statement of Sen. Lieberman)), some alleged failure of proof (see, e.g., id. at 1539 (statement of Sen. Specter); id. at 1581 (statement of Sen. Akaka)), and some cited both grounds (see, e.g., id. at S1578–91 (statement of Sen. Leahy), and id. at S1627 (statement of Sen. Hollings)). [Back to text]
904
See, e.g., 145 CONG. REC. S1525 (daily ed. Feb. 12, 1999) (statement of Sen. Cleland) (accepting the proposition that murder and other crimes would qualify for impeachment and removal, but contending that “the current case does not reach the necessary high standard”); id. at S1533 (statement of Sen. Kyl) (impeachment cannot be limited to wrongful official conduct, but must include murder); and id. at S1592 (statement of Sen. Leahy) (acknowledging that “heinous” crimes such as murder would warrant removal). This idea, incidentally, was not new; one Senator in the First Congress apparently assumed that impeachment would be the first recourse if a President were to commit a murder. IX DOCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS, 1789–1790, THE DIARY OF WILLIAM MACLAY AND OTHER NOTES ON SENATE DEBATES 168 (Kenneth R. Bowling and Helen E. Veit, eds. 1988). [Back to text]
905
One commentator, analogizing to the impeachment and conviction of Judge Claiborne for income tax evasion, viewed the basic issue in the Clinton case as whether his alleged misconduct was so outrageous as to “effectively rob[ ] him of the requisite moral authority to continue to function as President.” Gerhardt, supra n.817, at 619. Under this view, the Claiborne conviction established that income tax evasion by a judge, although unrelated to official duties, reveals the judge as lacking the unquestioned integrity and moral authority necessary to preside over criminal trials, especially those involving tax evasion. [Back to text]
906
Senator Thompson propounded this theory in arguing that “abuse of power” is too narrow a category to encompass all forms of subversion of government that should be grounds for removal. 145 CONG. REC. S1556 (daily ed. Feb. 12, 1999). [Back to text]
907
Both judges challenged 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, supra at 50–53, 54–57; Grimes, supra at 1233–37. In the Nixon case, the lower courts held the issue to be non-justiciable (Nixon v. United States, 744 F. Supp. 9 (D.D.C. 1990), aff’d, 938 F.2d 239 (D.C. Cir. 1991), but a year later a district court initially ruled in Judge Hastings’ favor. Hastings v. United States, 802 F. Supp. 490 (D.D.C. 1992), vacated, 988 F.2d 1280 (D.C. Cir. 1993). [Back to text]
908
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. [Back to text]
909
The Court listed “reasons why the Judiciary, and the Supreme Court in particular, were not chosen to have any role in impeachments,” and elsewhere agreed with the appeals court that “opening the door of judicial review to the procedures used by the Senate in trying impeachments would expose the political life of the country to months, or perhaps years, of chaos.” 506 U.S. at 234, 236. [Back to text]