1. In Britain, impeachment—now considered obsolete, per the House of Commons—was a means by which Parliament could prosecute and try individuals, normally holders of public office, for high treason or other crimes and misdemeanors. The first recorded impeachment in Parliament was in 1376 and the last in 1806. Impeachment in Britain has been replaced now with “other forms of accountability” as modern Britain understands that “the rules underpinning [British impeachment] have not been adapted to modern standards of democracy or procedural fairness.” Caird, Jack Simpson, “Impeachment,” Briefing Paper Number CBP7612, House of Commons Library (June 6, 2016), 3.
2. Governor Edmund Randolph, part of the Virginia delegation to the Constitutional Convention, who favored impeachment, warned that without impeachment: “Should no regular punishment be provided, it will be irregularly inflicted by tumults and insurrection.” Doyle, Charles. “Impeachment Grounds: A Collection of Selected Materials” (Congressional Research Service, October 29, 1998), 9.
3. Alexander Hamilton in the Federalist papers No. 65 (1787) famously wrote that impeachment was designed as a “national inquest into the conduct of public men,” and the subjects would be “those offenses which proceed from the misconduct of public men, or in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be “denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself” (emphasis in original). Hamilton, Alexander, James Madison, and John Jay. The Federalist Papers (Dover Thrift Edition., Mineola, NY: Dover Publications), 2014, 318-19.
4. U.S. Congress Impeachment Inquiry Staff, Comm. on the Judiciary of the U.S. House of Representatives, 93rd Cong, Second Session, “Constitutional Grounds for Presidential Impeachment,” 1974.
5. In U.S. impeachment practice, treachery and treasonous activity is pled as “other high Crimes and Misdemeanors” or generically as an “Impeachable Offense” rather than the harder-to-prove Constitutional “Treason.” See, for example, the Humphreys case herein.
6. See the first impeachment conviction in U.S. history in Chapter 3 of this book: that of Judge Pickering, whose “insanity” was his uncontested defense. By 1803, when the House authorized impeachment, no one contested that he was incapable of forming the legal intent to commit his wrongdoings.
7. The impeachment conviction of the absent Judge Humphreys, who left his federal bench to wage war against the United States, was not pled as treason; the conviction required no proof of the elements of treason or intent to do wrong; the judge’s motives were not even raised at trial, according to author William Lawrence. See Lawrence, William. “The Law of Impeachment,” American Law Register 6 (1867): 679–80.
8. See generally the U.S. House of Representatives, Impeachment Inquiry Staff, Committee on the Judiciary of the U.S. House of Representatives, Constitutional Grounds for Presidential Impeachment staff report (hereafter cited as 1974 staff report) and its historical summary (26–7) showing that the emphasis has been on the significant effects of the conduct, emphasizing presidential impeachment, where “the crucial factor is not the intrinsic quality of behavior but the significance of its effect upon our constitutional system or the functioning of our government.”
9. Common articles of U.S. impeachment allege the officer has violated his duties or oath or seriously undermined public confidence in his ability to perform his official functions. 1974 staff report, 21, with the emphasis on the significant effects of the conduct: undermining the integrity of office, disregard of constitutional duties and oath of office, arrogation of power, abuse of the governmental process, adverse impact on the system of government. 1974 staff report, 26.
10. 1974 staff report, 12–13, n. 56–77 and cases cited therein.
11. Black, Charles, Impeachment: A Handbook (New Haven and London, Yale University Press, 1974), 49–52. Professor Black conceded that some framers knew “a general way” of English usage of impeachment and that they borrowed the term “high Crimes and Misdemeanors,” but did not concede any specialized knowledge: “…it is hard for me to think that many of them, or that many of the people at the state ratifying conventions, or many members of the late 18th-century American public” had specialized knowledge of the phrase “high Crimes and Misdemeanors.” Black stated that English law, practice, and history, beginning in 1386 with the use of “high Crimes and Misdemeanors,” provided no guidance beyond the meaning of the phrase as “including serious misconduct in office,” whether criminal or not. “Beyond that,” he wrote, “I have to confess that I can read no clear message.” With all due respect to Professor Black, the framers’ words and explanations, in debate, in their published writings, in the state ratifying conventions as they taught the delegates what they knew, in their speeches in Congress, and in their lectures as law professors demonstrated their legal training in England and America, an appreciation for history, and their highly specialized knowledge and direction in debates and in such works as the Federalist papers on how their adaptation of the English law of “high Crimes and Misdemeanors” should be interpreted.
12. Berger, Raoul. Impeachment: The Constitutional Problems (Cambridge, Mass.: Harvard University Press, 1973), 30, n. 107, citing Quincy’s Mass. Reports 1761–1772, Appendix IV, 581, 583–84.
13. The colonists’ libraries contained British law books. Thomas Jefferson “combed debates in Parliament and the [English] State Trials” in his research of English law and practice, including impeachment law, for his famous “Manual of Parliamentary Practice” used for American proceedings. Of the fifty-five members of the federal Convention, nine had studied law in England. Berger, 87, n. 87, paragraphs 3 and 4.
14. Brown, H. Lowell, High Crimes and Misdemeanors in Presidential Impeachment (New York: Palgrave Macmillan, 2010), 25–26.
15. Doyle, Impeachment Grounds, 5.
16. Ibid., citing 2 Wooddeson’s Lectures (1792 ed.), Lecture 40, pp. 596–597, 601, provides more information on Wooddeson’s lectures and excerpts from the constitutional and ratifying conventions and the First Congress, well gathered and annotated by the fine researchers of the Congressional Research Service. See for example, Doyle, Impeachment Grounds, 5 et seq.; the House of Representatives inquiry into the impeachment of President Nixon produced their well-respected, sixty-page document summarizing the history and status of constitutional grounds for impeachment (1974 staff report).
17. Ibid., 5, citing 2 Wooddeson’s Lectures, Lecture 40 (1792 ed.), 596–97, 601.
18. Although English kings and queens were determined to promote the idea that monarchs held a God-given right to rule, Parliament—especially the House of Commons—used impeachment to challenge misconduct of the king’s ministers and favorites and the idea of the king’s absolute supremacy. See Berger, ch. 1, 30–33.
19. The English power to impeach, even if a king dissolved Parliament or pardoned the wrongdoer, promoted a political goal of denying the claim of absolute power of the king. Berger, p. 51.
20. King Charles I pronounced his absolute power to Parliament in 1626: “Parliaments are altogether in my power for the calling, sitting and dissolution. Therefore as I find the fruits of them to be good or evil, they are to continue or not to be.” Berger, p. 31, citing Christopher Hill, The Century of Revolution 1603–1714 (New York: Routledge, 1961), 73; and Peter Zagorin, The Court and the Country. (London: Atheneum, 1969), 87.
21. Perfidy: Act of violating faith, or one’s vow or promise, or a trust; faithlessness; treachery. Madison also used the word peculate: to steal or misappropriate moneys, especially public moneys. Webster’s New Collegiate Dictionary.
22. “Mr. Madison—thought it indispensable that some provision should be made for defending the Community agst the incapacity, negligence or perfidy of the chief Magistrate. The limitation of the period of his service, was not a sufficient security. He might lose his capacity after his appointment. He might pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers…In the case of the Executive Magistracy which was to be administered by a single man, loss of capacity or corruption was more within the compass of probable events, and either of them might be fatal to the Republic.” Doyle, Impeachment Grounds, 8, citing James Madison, Notes of Debates in the Federal Convention of 1787 (New York: Norton, 1987), 332–33.
23. The Declaration of Independence summarized the “History of the present King of Great-Britain” acting with the object of “an absolute Tyranny over these States.” The Declaration made clear that the kings’ governors, judges, and “swarms of Officers” in America did not answer to the colonists or their efforts to legislate. The colonist’s complaints against the king included:
• Refusing “to Assent to Laws, the most wholesome and necessary for the public Good.”
• Forbidding “his Governors to pass Laws of immediate and pressing Importance, unless suspended in their Operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.”
• Refusing “to pass other Laws for the Accommodation of large Districts of People, unless those People would relinquish the Right of Representation in the Legislature, a Right inestimable to them, and formidable to Tyrants only.”
• Dissolving “Representative Houses repeatedly, for opposing with manly Firmness his Invasions on the Rights of the People.”
• Obstructing “the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.”
• Making “the Military independent of and superior to the Civil Power.”
• Making “Judges dependent on his Will alone, for the Tenure of their Offices, and the Amount and Payment of their Salaries.”
• Erecting a “Multitude of new Offices and sent hither Swarms of Officers to harass our People and eat out their Substance.”
• Cutting off U.S. “Trade with all Parts of the World.”
• Allowing others to make laws of “pretended Legislation” and “suspending” the colonial “Legislatures” that should be writing the laws.
Declaration of Independence, 1776. See also Berger, 5.
24. Berger, 5, “Governor and Judges had been saddled on the Colonists by the King or his minions.”
25. Ibid., 4–5.
26. Ibid., 4, n. 25, 26, and accompanying text; Ibid., 99, n. 216.
27. Gouverneur Morris contributed multiple ideas to the U.S. Constitutional Convention, which he attended as a delegate from Pennsylvania. Morris had helped promote the Revolution’s cause in New York, helped write New York’s first constitution and, although called away from the U.S. Constitutional Convention, was asked to perform much of the polishing work in stylistic rewriting of the Constitution. He is credited with the wording of the Preamble of the Constitution. Whitney, David C, Founders of Freedom in America; Lives of the Men Who Signed the Constitution (Chicago: J. G. Ferguson, 1965), 158, 161–62.
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
U.S. Constitution. Preamble.
28. Doyle, Impeachment Grounds, 9.
29. The Secret Treaty of Dover (1670) was a deal separate from a formal treaty made by King Charles II of England with King Louis XIV of France. Charles II of England was to receive money and troop support, if necessary, for his use when he declared himself a Roman Catholic (which didn’t happen), with further moneys for joining in war against the Dutch. Charles II agreed that England would support Louis XIV of France in any claims Louis might have to Spanish succession. “Treaty of Dover England-France 1670.” Accessed April 12, 2017: https://www.britannica.com/event/Treaty-of-Dover. The promise, by a king of England to convert to what was “regarded by most English people for a hundred years as the bitterest enemy of their own church” was extraordinary. Hutton, R. The Making of the Secret Treaty of Dover, 1668–1670 (Cambridge: Cambridge University Press), 1986. Abstract accessed May 14, 2017: http://www.jstor.org/stable/2639064.
The reference by Morris to the Secret Treaty is found at Doyle, Impeachment Grounds, 9, citing II Farrand 64–9 (Madison). Farrand’s three-volume The Records of the Federal Convention of 1787 was published in New Haven by Yale University Press in 1966 per H. Lowell Brown, 225; The Records are a chronologically arranged collection of notes of the various delegates (primarily Madison), per Doyle, Impeachment Grounds, 7, n. 6.
Despite Morris’s wit giving him a tendency to shoot from the hip, President Washington appointed Morris his Minister to France. Morris witnessed the great tumults of the French Revolution. He unsuccessfully attempted to obtain the release of Washington’s dear friend the Marquis de Lafayette. New York governor DeWitt Clinton eulogized his friend Morris in 1816: “[h]e united wit, logic, pathos and intelligence.” Whitney, David C., Founders of Freedom…Constitution, 162–63.
30. See generally Berger, ch. 1, “The Parliamentary Power to Declare Retrospective Treasons,” 8–17 regarding the salvo, and 7–52 explaining English history and use of treason law, and for examples of the fluid concept of treason, 33–34. Berger explains in detail the famous impeachment of the Earl of Stratford, carrying diverse treason theories, “a great watershed in English constitutional history of which the Founders were aware.” Ibid., 30, n. 7.
31. English impeachment carried criminal penalties, including death. Treason under English impeachment was a fluid concept, and Parliament could declare a treason retroactively. Berger, 8–13; see Doyle, Impeachment Grounds, 2–4, citing Blackstone, Commentaries on the Laws of England, 126–28 (1769). Commoners, too, could be impeached before the lords, but only for “high misdemeanors,” not for capital offenses (punishable by death). Doyle, Impeachment Grounds, 4.
32. The Founding Fathers, familiar with impeachment in their state constitutions, understood American impeachment as “a bridle in the hands of the legislative body upon the executive servants of the government.” Federalist 65, 320.
33. Berger, 5.
34. Under the U.S. Constitution, the Americans explicitly barred any federal or state ex post facto law (U.S. Const. Art. I, Sec. 9, Clause 3; Art. I, Sec. 10, Clause 1) and prohibited Bills of Attainder (an act declaring a group of people guilty, and then proceeding to punish them) in Art. I, Sec. 9. The United States grants no noble titles without Congress agreeing, and the president may not take any present, emolument, office, or title from any king, prince, or foreign state (U.S. Const. Art. I, Sec. 9, Clause 8); the president cannot receive any emolument from the states (Art. II, Sec. 1, Clause 7). A presidential veto checks the legislative power of Congress, but Congress may override the veto (U.S. Const. Art. I, Sec. 7, Clause 2). A president may not pardon in cases of impeachment. U.S. Const. Art. II, Sec. 2, Clause 1, allows presidential pardons “except in Cases of Impeachment.”
35. See Berger, 8. British treason law included the terms “levying war against…, or adhering to his enemies.”
36. U.S. Const. Art. III, Sec. 3, Clause 1.
37. The president, according to the earlier draft language: “shall be removed from office on impeachment by the House of Representatives, and conviction by the Senate, for Treason, or bribery.” Doyle, Impeachment Grounds, 10. The clause would represent a change from British law in several ways. In the proposed U.S. impeachment clause at issue in Philadelphia at the Constitutional Convention, impeachment was no longer applicable to everyone, as it was in Britain; U.S. impeachment applied only to public officers. The Americans had eliminated the criminality element, and eliminated the application to anyone other than “officers of the U.S.,” in addition to eliminating the clause (known as “the salvo”) that allowed the determination of English treason to be made after the fact. See Berger, 16–20. “The Framers were highly conscious they were writing a document for posterity.” Berger, 123, n. 8.
38. Brown, H. Lowell, 5, text and accompanying notes 21, 22, and 23, citing James Madison, Notes of Debates in the Federal Convention of 1787 (New York: Norton, 1987).
39. The Hastings trial, in progress during the Constitutional Convention, included “high Crimes and Misdemeanors,” gross maladministration, corruption in office, and “cruelty towards the people of India.” 1974 staff report, 7.
40. 1974 staff report, 7. The famous, short impeachment debate resulting in the choice of the Impeachment Clause language, allows us to eavesdrop on legendary Founding Fathers Mason, Madison, and Morris talking about the “avidly” followed British impeachment trial of Governor-General Warren Hastings, as the Constitutional Convention attendees worked in Philadelphia. As the U.S. Senate website explains: “Even as the Constitution’s framers toiled in Philadelphia in 1787, the impeachment trial of British official Warren Hastings was in progress in London and avidly followed in America. Hastings, who was eventually acquitted, was charged with oppression, bribery, and fraud as colonial administrator and first governor-general in India.” U.S. Senate website, “Impeachment.” Accessed March 9, 2017: https://www.senate.gov/artandhistory/history/common/briefing/Senate_Impeachment_Role.htm.
41. The famous debate excerpt reads as follows: “The clause referring to the Senate, the trial of impeachments agst. The President, for Treason & bribery, was taken up.
“Col. Mason. Why is the provision restrained to Treason & bribery only? Treason as defined in the Constitution will not reach many great and dangerous offences. Hastings is not guilty of Treason. Attempts to subvert the Constitution may not be Treason as above defined—As bills of attainder which have saved the British Constitution are forbidden, it is the more necessary to extend: the power of impeachments.’ He moved to add after ‘bribery’ or ‘maladministration.’ Mr. Gerry seconded him—
“Mr Madison So vague a term will be equivalent to a tenure during pleasure of the Senate.
“Mr Govr Morris, it will not be put in force & can do no harm—An election of every four years will prevent maladministration.
“Col. Mason withdrew ‘maladministration’ & substitutes ‘other high crimes & misdemeanors’<agst. the State’>
“On the question thus altered [the Convention agreed].
“In the amendment of Col. Mason just agreed to, the word ‘State’ after the words [‘]misdemeanors against’ was struck out, and the words ‘United States’ inserted, <unanimously> in order to remove ambiguity—
“On the question to agree to clause as amended, [the Convention agreed]
“On motion ‘The vice-President and other Civil officers and the U.S. shall be removed from office on impeachment and conviction as aforesaid’ was added to the clause on the subject of impeachments.
“A Committee was then appointed by Ballot to revise the stile of and arrange the articles which had been agreed to by the House.” Doyle, Impeachment Grounds, 10–11, n. 7–9; See also Black, 28; Simpson, 18; Berger, 163, n. 183. For a discussion and acceptance of the Committee of Style’s faithful work, capturing the intent of the framers and the vote to approve, see Nixon v. United States, 506 U.S. 224, 231 (1993).
42. Mason didn’t sign the Constitution, siding with the anti-Federalists and seeking more concessions for the Southern states. Mason was insulted—as was Patrick Henry—by Federalists referring to their absence from active military service in the War of Independence. Alden, John, George Washington: A Biography (New York and Avenel: Wings Books, 1984), 227. See also Alden, 106 (preparation of militia with George Washington) and 232–33 (detailing the contest over the Constitution marked by strong language, minor mob action, and rancor left over from the struggle for ratification).
43. Morison, Samuel Eliot, The Oxford History of the American People (New York: Oxford University Press, 1965), 271; Ellis, Joseph, His Excellency: George Washington (New York: Alfred A. Knopf, 2004), 62–63.
44. On Mason and his role in the Virginia constitution, see Brown, 12; Morison, 221.
45. Morison, 221, 272.
46. Whitney, Founders of Freedom…Constitution, 236.
47. 1974 staff report, 16, and 9, and accompanying n. 31. The staff noted that “…the impeachability of the President was considered to be an important element of his responsibility.”
48. Whitney, Founders of Freedom…Constitution, 231–35.
49. James Wilson vigorously debated against a system involving a three-man executive proposal, in favor of his single-executive proposal. History can credit Wilson’s forceful debating with the 7–3 vote favoring one chief executive. Whitney, Founders of Freedom…Constitution, 232. It was Wilson, too, who argued strongly, persuasively, and effectively against use of “wealth” for criteria in reapportionment for the House of Representatives. Whitney, Founders of Freedom…Constitution, 235–236.
50. Hamilton wrote that the model for the American impeachment process—trying public men for the “abuse or violation of some public trust”—was “borrowed[.]…In Great Britain it is the province of the House of Commons to prefer the impeachment and of the House of Lords to decide upon it.” Federalist 65, pars. 2, 5.
51. Chernow, Ronald, Washington: A Life (New York: Penguin, 2010), 204, 291–292, 442, 598.
52. Hamilton accomplished much in a life cut short by his political criticism of Aaron Burr, leading to a quarrel and Hamilton’s death following his fatal injury in a duel with Burr. George Washington wrote of Hamilton: “That he is ambitious I shall readily grant, but it is of that laudable kind which prompts a man to excel in whatever he takes in hand. He is enterprising, quick in his perception, and his judgment is intuitively great…” Whitney, Founders of Freedom…Constitution, 105–09.
53. Hamilton et al., The Federalist Papers, Federalist 65. Hamilton, a self-made man who borrowed money to come to America to attend college, spoke eloquently defending the patriots dumping tea in Boston Harbor, published well-respected pamphlets, and volunteered for the War of Independence.
Hamilton literally had George Washington’s back; a captain of artillery, “[h]is company fought in the rear guard in the retreat of the Continental Army from Long Island. Whitney, Founders of Freedom…Constitution, 107. He saw action in battle at White Plains, Trenton, and Princeton, and later, at Yorktown, after service as aide-de-camp to General Washington. Ibid., 105–107. Hamilton, Washington’s “most gifted scribe,” had impressed his general with his artillery work at White Plains and the Raritan River. Chernow, 292–293. Washington greatly valued Hamilton’s judgment. Whitney, Founders of Freedom…Constitution, 105–09.
54. Federalist 65, pars. 5–8. Hamilton discussed judicial power of the Senate, explaining the rationale of having the Senate “dignified” and “independent,” impartial and confident in its own situation (par. 6) to try the impeachment case, citing in paragraph five the English model, and the fact that several State constitutions follow the example, regarding “the practice of impeachment as a bridle in the hands of the legislative body upon the executive servants of the government.” Federalist No. 65, par. 5.
In pars. 8 and 9, Hamilton addresses the reasoning for not utilizing the Supreme Court, or some other entity for the trial, while still obtaining the benefits of union with the Supreme Court by using its chief justice to preside over the court of impeachment. Hamilton continues to address the objections to use of the Senate in Federalist 66, defending the use of a legislative body for a judicial function, dividing the right of accusing to the House and the right of judging to the Senate in Federalist 66, par. 2.
Here Hamilton continues to acknowledge the objection that impeachment places much power in the Senate, but finds the objection too imprecise, and he continues his justifications for his confidence in the Senate, emphasizing the duration of their terms, and the balance of other powers into the House, for example, the exclusive origination of money bills and the sole power to institute impeachment. Federalist 66, pars. 4–7. He also acknowledges—and defends—the power and role of the Senate providing advice and consent “in the business of appointments.” Federalist 66, pars. 8–9.
Of great interest is Hamilton’s emphasis on the “security essentially intended by the Constitution against corruption and treachery in the formation of treaties,” in paragraph 12 of Federalist 66. In Federalist 65, par. 7, he previously recognized the “awful discretion” lying with the Senate in impeachment, which forbids trusting impeachment power to a “small number of persons.” In Federalist 66, in concluding par. 13, Hamilton reinforces the idea that the Senate should be allowed massive powers involving treaties as well as trying impeachment cases, as a collective body, to serve “the public good.” Hamilton emphasizes a hope and trust that the Senate will do right in the treaty-making as well as impeachment arena:
“So far as might concern the misbehavior of the executive in perverting the instructions or contravening the views of the Senate, we need not be apprehensive of the want of disposition in that body to punish or abuse of their confidence or to vindicate their own authority. We may thus count upon their pride, if not upon their virtue.”
Hamilton admits the system devised may not be perfect, but the lack of perfection would not justify rejection of the Constitution, embracing the idea of the institution of government:
“If mankind were to resolve to agree in no institution of government, until every part of it had been adjusted to the most exact standard of perfection, society would soon become a general scene of anarchy, and the world a desert.”
Federalist 65, par. 10.
55. Doyle, Impeachment Grounds, 12. See also 1974 staff report, 15.
56. For historical dates and events see U.S. Congress, Constitution with Index and Declaration of Independence, 108th Cong., 1st sess, H. Doc. 108-96, 40. For Madison’s intent that some level of maladministration serve as “other high Crimes and Misdemeanors” for impeachment, see Brown, 35–36.
57. Whitney, Founders of Freedom…Constitution, 141–142.
58. Brown, 35, citing Gates, Joseph ed. The Debates and Proceedings in the Congress of the United States, vol. 1 (Washington, DC: Gales and Seaton, 1834), 495–496.
59. “The danger, then, consists merely in this—the President can displace from office a man whose merits require that he should be continued in it. What will be the motives which the President can feel for such abuse of his power, and the restraints that operate to prevent it? In the first place, he will be impeachable by this house, before the Senate, for such an act of maladministration; for I contend that the wanton removal of a meritorious officer would subject him to impeachment and removal from his own high trust.” Doyle, Impeachment Grounds, 12; see also 1974 staff report, 15.
60. Madison was supported in his congressional speech by another framer, Abraham Baldwin of Georgia:
Mr. Baldwin: If the President, “in a fit of passion” removed “all the good officers of government” and the Senate were unable to choose successors, the consequences would be that the President “would be obligated to do the duties himself; or if he did not, we would impeach him, and turn him out of office, as he had others.”
1974 staff report, 15.
61. Whitney, Founders of Freedom…Constitution, 141.
62. Whitney, Founders of Freedom…Constitution, 146.
63. Bazan, Impeachment: An Overview of Constitutional Provisions, Procedure and Practice, Congressional Research Service, 2010, 9, n. 38–39. The president can provide information to Congress, as did President Adams in the case of Senator Blount’s treachery. President Adams forwarded information and documents exposing Blount’s involvement in the plan to stir Native Americans into hostilities with Spain, and other actions in violation of U.S. neutrality. Brown, p. 37. President Thomas Jefferson provided to Congress the information on Judge John Pickering’s misconduct, gathered by the president’s secretary of the treasury Albert Gallatan and U.S. Attorney Samuel Sherburne. Brown, 40. Outside groups or individuals also may supply information leading to impeachment activities. In 1932, the House of Representatives learned of allegations against federal judge Harold Louderback from a petition from the Bar Association of San Francisco alleging the judge appointed friends and allies to receivership positions. The petition led to hearings by an investigative committee, which recommended impeachment to the House Judiciary Committee, which instead recommended only censure. The House of Representatives, however, voted to impeach. The Senate acquitted Judge Louderback.
64. Nixon v. United States, 506 U.S., 224, 228–38. Chief Justice Rehnquist also noted the harms, including lack of finality, particularly if the president were impeached, to months or years of chaos during judicial review or retrial, with a different Senate, and the great difficulty of fashioning judicial review of the Senate’s impeachment verdict. Nixon v. United States, 236.
65. Nixon v. United States, 224, 233 (1993).
66. Nixon v. United States, 224 (1993); Bazan, Overview of Constitutional Provisions, 1–6, discusses in detail twenty-first-century impeachment processes under House and Senate rules in two twenty-first-century impeachment proceedings. Rule XI of the “Rules of Procedure and Practice in the Senate when Sitting on Impeachment Trials” enables creation of a trial committee. In making determinations in an impeachment trial, the Senate may rely on evidence gathered by a Senate impeachment trial committee or gather further evidence. Bazan, Overview of Constitutional Provisions, 3–4.
67. Bazan, Overview of Constitutional Provisions, 10, n. 40.
68. Cole, Jared and Todd Garvey. Impeachment: Grounds for Removal. Congressional Research Service, 2015, i (“Summary”). See also Bazan, Overview of Constitutional Provisions, 20–21, providing examples and the possible significance of United States v. Mouat, 124 U.S. 303 (1888) stating that, absent appointment, federal judgeship, or service as head of department, an individual is not “strictly speaking” an officer of the United States in interacting with the Appointments Clause of the Constitution, Art. II, Sec. 2., Clause 2, buttressing the argument that, at least, impeachment covers officers appointed in accordance with the Appointments Clause. For a massive list of investigations, impeachment resolution, and inquiries involving judges or executive branch persons or officers that did not culminate in impeachment in the House. See Bazan, Overview of Constitutional Provisions, 18–20.
69. See impeachment cases in Chapter 2 herein of Judges Claiborne, W. Nixon, and Kent each criminally convicted, which conviction did not prevent impeachment and impeachment convictions (Claiborne and W. Nixon) or resignation (Kent), and impeachment of Judge Alcee Hastings, whose acquittal did not prevent impeachment and conviction.
70. Federalist 65, par. 8.
71. The 1974 staff report from the Watergate impeachment investigation is consistent with the intent of the Founding Fathers, as the report made clear:
“It would be anomalous if the framers, having barred criminal sanctions from the impeachment remedy and limited it to removal and possible disqualification from office, intended to restrict the grounds to conduct that was criminal.”
1974 staff report, 27.
72. Rehnquist, William H. Grand Inquests: The Historic Impeachments of Samuel Chase and President Andrew Johnson. New York: William Morrow, 1992, 274. U.S. Supreme Court Chief Justice Rehnquist, in praising the House Judiciary Committee, noted that “the preparation and spotlight of the Nixon Watergate Impeachment” produced “much reasoned discussion, both within and without the Committee, as to the nature of Impeachment. All members of the Judiciary Committee—even the ten Republicans who voted no on each proposed article—appear to have rejected the view that a constitutional ‘high crime or misdemeanor’ must be an indictable offense under the criminal law.”
73. See Bazan, Overview of Constitutional Provisions, generally and 10, 22; see cases of Judges Pickering, W. Nixon, and Kent. Does Hamilton’s word “after” Federalist 65, par. 8 mean that a president—or any official—may be temporarily immune from prosecution? The answer is no as to judges, probably no as to anyone other than the president, and debated as to the president.
Scholars have long debated whether the president should be immune—while in office—from indictment and conviction, using a variety of arguments, including the “after” language of Alexander Hamilton in Federalist 65, par. 8 (“After having been sentenced…”). Compare Moss, Randolph. Assistant Attorney General, Office of Legal Counsel, “A Sitting President’s Amenability to Indictment and Criminal Prosecution.” Oct. 16, 2000. Moss; Freedman, Eric M. “On Protecting Accountability.” 27 Hofstra Law Review: Iss. 4, 1999.
Moss, in a Department of Justice memorandum in 2000 reaffirming a 1973 memorandum argues that the president should not be tied up with the criminal process. Freedman argues that, if “Law is King” (and not, as in ancient Britain, king is law), then a sitting president should be treated as any other person. He notes that Vice President Aaron Burr was indicted in office for the murder of Alexander Hamilton, with Founding Fathers still alive and not objecting. Yet Freedman concedes that the Founding Fathers were clearly divided on the issue at the time of the Constitutional and state ratifying conventions with no clear Constitutional-era original intent; the issue was discussed and argued, put off, and never resolved.
Clearly, sitting judges have been indicted and convicted, remaining in office, then impeached and convicted under the Impeachment Clause. Some claimed immunity. Freedman details the judges’ claims rejected on appeal, with the Supreme Court declining to revisit/hear the appeal.
Moss argues that the presidency is different from any other office. The Clinton impeachment activity and actions by the House managers, citing judicial impeachment cases as clear, usable precedent, confirmed that there is one constitutional standard for judges and a president, not two, for impeachment: “high Crimes and Misdemeanors,” as this Citizen’s Guide explains.
Nonetheless, the question remains open as to whether the president is so important as to be treated differently than every other sitting officer of the United States. Indeed, in the Clinton impeachment, the prosecution argued that the president’s massive duties and powers (e.g., as head of the Department of Justice and thereby law enforcement) increased his responsibility for impeachable acts, such as lying and undermining faith in the administration of justice.
74. In the impeachment of Samuel Kent, the House members took pains to note that, while this case certainly involved criminal conduct, impeachment did not require a crime. The House Resolution H. Rep. 111-159, sess. of 2001, pertaining to Judge Kent contained “A Brief Discussion of Impeachment,” specifically citing the House Report accompanying the Resolutions to Impeach Judges Nixon and Hasting concerning the meaning of “high Crimes and Misdemeanors,” noting that impeachment is “non criminal” and serves “simply to remove the offender from office” and that impeachment is “the ultimate means of preserving our constitutional form of government from the depredations of those who abuse or violate the public trust.”
H.R. 520, 111th Cong., citing H. Rep. 101-36 (1989), Impeachment of Walter L. Nixon, Jr., Report of the Committee on the Judiciary to Accompany H.R. Res. 87, 101st Cong., 5; and H. Rep. 100-810 (1988), Impeachment of Alcee L. Hastings, Report of the Committee on the Judiciary to accompany H.R. Res. 499, 100th Cong., 6. The “Brief Discussion of Impeachment” then concluded by reemphasizing, recognizing the criminal nature of Judge Kent’s misconduct, that: “…the principles that underpin the propriety of impeachment do not require the conduct of issue be criminal in nature, or that there have been a criminal prosecution.” Ibid.
75. Report Accompanying H.R. 520, 111th Cong., citing H. Rep. 101-36 (1989), Impeachment of Walter L. Nixon, Jr., Report of the Committee on the Judiciary to Accompany H.R. Res. 87, 101st Cong., 5; and H. Rep. 100-810 (1988), Impeachment of Alcee L. Hastings, Report of the Committee on the Judiciary to accompany H.R. Res. 499, 100th Cong., 6. Sections 2.1 and 2.2 provide more background and proof on this issue. See also H. Rep. 111–159, sess. of 2009, Impeachment of Judge Samuel B. Kent.
76. Report Accompanying H.R. Res. 520, 111th Cong., citing H. Rep. 101-36 (1989), Impeachment of Walter L. Nixon, Jr., Report of the Committee on the Judiciary to Accompany H.R. Res. 87, 101st Cong., 5; and H. Rep. 100-810 (1988), Impeachment of Alcee L. Hastings, Report of the Committee on the Judiciary to accompany H.R. Res. 499, 100th Cong., 6. See also H. Rep. 111–59, sess. of 2009, Impeachment of Judge Samuel B. Kent.
77. “No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office or Title, of any kind whatever, from any King, Prince, or foreign State.” U.S. Const. Art. I, Sec. 9, Clause 8. The Constitution prohibits any state from granting “any Title or Nobility” in Article I, Section 10.
78. “The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.” U.S. Const. Art. II, Sec. 1, Clause 7.
79. Federalist 65.
80. 1974 staff report, 27.
81. Doyle, Impeachment Grounds, 5, citing 2 Wooddeson’s Lectures, Lecture 40, 596–97, 601 (1792 ed.). The Founding Fathers kept that goal—preventing injury to the commonwealth—but improved and modernized the ancient impeachment system to permit peaceful removal—without criminal punishment—of their president, maintaining the integrity of our government. The Americans gave the people the rights denied to English people of the eighteenth century, who had no power to impeach and remove their king; he wielded absolute power.
82. See Doyle, Impeachment Grounds, 8, reproducing discussions of impeachment at the Constitutional Convention.
83. See Doyle, Impeachment Grounds, 8–9, reproducing discussions of impeachment at the Constitutional Convention.
84. Cole and Garvey: https://fas.org/sgp/crs/misc/R44260.pdf, 9, citing Brown, W., House Practice: A Guide to the Rules, Precedents, and Procedures of the House, ch. 27, sec. 4 (2011). Committee on the Judiciary, 93d Cong., Impeachment—Selected Material 692 (comm. print 1973), 666; Brown, W., House Practice: A Guide to the Rules, Precedents, and Procedures of the House, ch. 27 §1 (2011); Impeachment of William Jefferson Clinton, H. Rep. 105-830 at 110–18 (1998). Committee on the Judiciary, Constitutional Grounds for Presidential Impeachment, Report of the Staff of the Impeachment Inquiry, U.S. House of Representatives, 105th Cong. 2d sess. (1998); Brown, 104.
85. U.S. Const. Art. III, Sec. 1.
86. “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.” U.S. Const. Art. III, Sec. 1.
87. The clear law is that U.S. constitutional impeachment is governed by the Impeachment Clause. The phrase “good behavior” is viewed as a designation of judicial tenure with one standard for both judges and executive branch officers. “[A] 1973 discussion of impeachment grounds released by the House Judiciary Committee reviewed the history of the phrase and concluded that the ‘Constitutional Convention…quite clearly rejected’ a ‘dual standard’ for judges and civil officers.” Cole and Garvey, 9–10, n. 74; see also Cole and Garvey, 9, citing Brown, W., House Practice: A Guide to the Rules, Precedents, and Procedures of the House, ch. 27, sec. 4 (2011). Committee on the Judiciary, 93d Cong., Impeachment—Selected Material 692 (comm. print 1973), p. 666; Brown, W., House Practice: A Guide to the Rules, Precedents, and Procedures of the House, ch. 27 §1 (2011); Impeachment of William Jefferson Clinton, H. Rep. 105-830 at 110–18 (1998). Committee on the Judiciary, Constitutional Grounds for Presidential Impeachment, Report of the Staff of the Impeachment Inquiry, U.S. House of Representatives, 105th Cong. 2d sess. (1998); Brown, 104.
88. Cole and Garvey, 9–10, citing Committee on the Judiciary, 93d Cong., Impeachment—Selected Material 692 (comm. print 1973), 666; Brown, W., House Practice: A Guide to the Rules, Precedents, and Procedures of the House ch. 27 §1 (2011); Impeachment of William Jefferson Clinton, H. Rep. 105-830, at 110–18 (1998).
89. Brown, 104; see Committee on the Judiciary, Constitutional Grounds for Presidential Impeachment, Report of the Staff of the Impeachment Inquiry, U.S. House of Representatives, 105th Cong. 2d sess. (1998).
90. Fernandez, Justin. High Crimes and Misdemeanors: The Impeachment Process. Philadelphia: Chelsea House Publishers, 2001, 96. While it is “devastating” for the judiciary when judges are perceived as dishonest, the report argued, perjury by the president was “just as devastating to our system of government.” Cole and Garvey, 9–10, citing H. Rep. 105-830, at 113 (1998).
91. 1974 staff report, 27.
92. Bazan, Overview of Constitutional Provisions, 24, citing H. Rep. 101-36, at 5 (1989), also quoted in H. Rep. 111-159, at 5 (2009).
93. 1974 staff report, 21.
94. U.S. Const. Art. II, Sec. 1, Clause 8 (Oath); Art. II, Sec. 3 (“Take Care” clause).
95. A presidential veto checks the legislative power of Congress, but Congress may override the veto. U.S. Const. Art. I, Sec. 7, Clause 2.
96. Pardon power is broad, and the only limits mentioned in the Constitution are: pardons are limited to offenses against the United States—that is, not state or civil cases—and “they cannot affect an impeachment process.” Pardons have great use: Founding Father James Wilson stated, “pardon before conviction might be necessary in order to obtain the testimony of accomplices.” Pfiffner, James. “The President’s Broad Power to Pardon and Commute.” The Heritage Foundation, July 7, 2007, 2–5; Schick v. Reed 419 U.S. 256 (1974) (affirming power of President Eisenhower’s addition of “no parole” in a commutation of a death sentence to life sentence, at hard labor, dishonorable discharge and forfeiture of pay, on condition of no parole; the Court makes clear the Founding Fathers’ knowledge of English law: “familiarity with the English law and practice,” and stating “…the conclusion is inescapable that the pardoning power was intended to commute sentences on conditions which do not, in themselves, offend the Constitution, but which are not specifically provided for by statute.”) Schick v. Reed 419 U.S., 263–64.
97. 1974 staff report, 13–14.
98. Regarding “substantiality,” see 1974 staff report generally, and 21, 26. Regarding pardons: Several authors have given examples of single acts warranting impeachment, particularly abuse of pardons. For example, since the Constitution Art. II, Sec. 2, Clause 1, allows presidential pardons “except in Cases of Impeachment,” an unconstitutional pardoning has been described as impeachable, as have wanton acts of guaranteeing pardons in advance under unjustified circumstances. One extreme hypothetical referenced an offensive, hypothetical policy for pardons promised in advance for any federal agents or police killing anyone in the District of Columbia in the line of duty, however unnecessary the killing. Black, 34.
99. See Pfiffner, 2; 1974 staff report, 21, 26.
100. Doyle, Impeachment Grounds, 5 cites Blackstone on bribery: Bribery is the next species of offense against public justice; it is when a judge, or other person concerned in the administration of justice, takes any undue reward to influence his behavior and his office. For bribery by statute see for example, 18 USC Sec. 201 “Bribery of Public Officials and Witnesses,” U.S. Department of Justice, Office of the United States Attorneys, U.S. Attorneys Manual [USAM], Sec. 2041: https://www.justice.gov/usam.
Treason under the U.S. Constitution is very narrowly defined. “Treason against the United States, shall consist only in levying War against them, or in adhering to their enemies, giving them Aid and Comfort.” The Constitution provides rules providing that: “No person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” U.S. Const. Art. III, Sec. 3, Clause 1.
101. See cases of Judges Humphreys and English, and secretary of war Belknap.
102. See cases of Presidents Johnson, Nixon, and Clinton; and Judges Johnson, Pickering, and Blount.
103. 1974 staff report, 18–21, 26.
104. Acting to “defeat the claims of the United States…”: Pickering, per Impeachment Art. I, acted “contrary to his trust and duty as judge of the said district court.” Simpson, Appendix at 193. Art. II complained of Judge Pickering’s refusal to hear the testimony of the U.S. Attorney’s witnesses, ready to prove the forfeiture right of the United States to the vessel, as the Judge acted “with the intent to defeat the just claims of the United States,” ordering the vessel restored to Eliphat Ladd, “contrary to his [Pickering’s] trust and duty.”
105. George Mason and James Madison in the Virginia Ratifying Convention, cited in 1974 staff report, 13, including Mason’s comment: The president might use his pardoning power to “pardon crimes which were advised against himself” or before indictment or conviction “to stop inquiry and prevent detection.”
Madison: “[I]f the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty.”
106. The Clinton Impeachment Articles (in paragraphs three of each of the two Articles) specifically asserted he had undermined integrity of the office, “brought disrepute on the Presidency, has betrayed his trust as President and has acted in a manner subversive of the rule of law and justice, to the manifest injury of the people of the United States.” Brown, 157-159. The Nixon proposed Impeachment Articles 1 and 2, each concluded: “In all of this, Richard M. Nixon has acted in a manner contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of justice and to the manifest injury of the United States.” Impeachment Articles, Brown, 153–54. Nixon Proposed Article 3 (regarding refusal to produce subpoenaed items) stated “In all of this Richard Nixon has acted in a manner contrary to his trust as President and subversive of constitutional government…” Brown, 156.
107. James Madison in debate on need for Impeachment Clause: “[The president] might betray his trust to foreign powers.” To Madison, loss of capacity or corruption “might be fatal to the republic.” Brown, 5–6, quoting James Madison, Notes of Debates in the Federal Convention of 1787 (New York: Norton), 1987, 332–33.
Gouverneur Morris at Constitutional Convention: “Mr.Govr. Morris’s opinion had been changed by the arguments used in the discussion. He was now sensible of the necessity of impeachments, if the Executive was to continue for any time in office. Our Executive was not like a Magistrate having a life interest, much less like one having an hereditary interest in his office. He may be bribed by a greater interest to betray his trust; and no one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in foreign pay without being able to guard agst it by displacing him.” Doyle, Impeachment Grounds, 9 (emphasis added).
From Wooddeson, English impeachment law on examples of impeachable abuses, including trust betrayal: “Such kind of misdeeds however as peculiarly injure the commonwealth by the abuse of high offices of trust, are the most proper and have been the most usual grounds for this kind of prosecution. Thus, if a lord chancellor be guilty of bribery, or of acting grossly contrary to the duty of his office, if the judges mislead their sovereign by unconstitutional opinions, if any other magistrate attempt to subvert the fundamental laws, or introduce arbitrary power, these have been deemed cases adapted to parliamentary inquiry and decision. So where a lord chancellor has been thought to have put the seal to an ignominious treaty, a lord admiral to neglect the safeguard of the sea, an ambassador to betray his trust, a privy counselor to propound or support pernicious and dishonorable measures, or a confidential advisor of his sovereign to obtain exorbitant grants or incompatible employments, these imputations have properly occasioned impeachments; because it is apparent how little the ordinary tribunals are calculated to take cognizance of such offences, or to investigate and reform the general polity of the state…” Doyle, Impeachment Grounds, 5, citing 2 Wooddeson’s Lectures, Lecture 40, 596–97, 601 (1792 ed.) (emphasis added).
108. Regarding abuse of office and words used by James Madison (“Perfidy,” and “schemes of peculation or oppression”), see note 22 above. See charges against President Nixon and cases against President Clinton; see cases of Judges Peck, Swayne, Archbald, English, Louderback, Ritter, Claiborne, Hastings, Nixon, Kent, and Porteous.
109. Regarding corruption and personal gain, see, for example, charges against Judges English, Louderback and Ritter (abuse of power to appoint and set the fees of bankruptcy receivers for personal profit). See cases of Peck and English (vindictiveness, violation of rights); see also cases of Judges Claiborne, Hastings, W. Nixon, and Porteous.
See Judge Archbald’s case, Charge 1, stating that the judge induced companies who were litigants to effect a sale so that he could make a profit: “through the influence exercised by reason of his position as such judge, willfully, unlawfully and corruptly did induce” parties before him to conduct the transaction.
See Cole and Garvey generally, 14, and footnotes accompanying text citing Staff of H. Comm. on the Judiciary, 93d Cong., Constitutional Grounds for Presidential Impeachment 20 (comm. print 1974); VI Cannon’s §§500–512; 514–524; 545–574; and Impeachment of Alcee L. Hastings, H. Rep. 100-810, at 1–5 (1988); House Practice ch. 27 §4.
See also the cases of Judge Ritter; Judge Hastings; Judge Archbald; Judge English; and Judge Louderback for other abuses of office and financial improprieties. In addition to the wiretap disclosure allegations against Judge Hastings, see Bazan “Overview of Constitutional Provisions,” 5, referencing introduction of 1993 H.R. Res. 177, 103rd Cong., to impeach Judge Robert P. Aguilar, indicted in 1989 and convicted of unlawful disclosure of a wiretap, with sentencing to prison, community service, and a fine. The conviction was reversed on appeal. After seven years of trials, retrials, and appeals, he resigned from office. No further action was taken on H.R. Res. 177, 103rd Cong. See the case of secretary of war William Belknap.
110. For example of abuse of office with obstruction of justice, coercion, intimidation, and sexual assault of employees, see the case of Judge Samuel Kent.
111. See H. Rep. 100-810 (1988), Impeachment of Alcee L. Hastings, Report of the Committee on the Judiciary to accompany H.R. Res. 499, 100th Cong., 6. See also case of Judge Samuel Kent, and H. Rep. 111-159 (2009), Impeachment of Judge Samuel B. Kent.
112. Language in impeachment charge against President Nixon:
• AGENCY: “using the powers of his high office, engaged personally through his subordinates and agents” in a course of conduct or plan designed to delay, impede and obstruct investigation; to cover up, conceal and protect those responsible to conceal the existence and scope of other unlawful, covert activities.
• RESPONSIBILITY FOR COVER-UPS OF SUBORDINATES: Knew or had reason to know that his close subordinates were impeding investigation into illegal activity and cover-ups, including those related to attorney-general confirmation, surveillance of citizens, break-in of the psychiatrist for Daniel Ellsberg, the leaker of the Pentagon Papers, and campaign financing practices of the Committee to Re-Elect the President.
Language in impeachment charge against President Clinton (originally numbered 3 in the House Proposal, this is Number 2 before the Senate): “Prevented, obstructed and impeded the administration of justice and, to that end, engaged personally, and through his subordinates and agents, in a course of conduct or scheme designed to delay, impede, cover up and conceal the existence of evidence and testimony related to a civil rights action brought against him in a duly instituted judicial proceeding.”
Note the allegation of use of agents for whom the president would be liable.
Framers’ intent: Framers James Madison and Abraham Baldwin both spoke to the president’s responsibility and impeachment liability for his hires, and for his firing decisions, in debate in the First Congress.
James Iredell, later to become a Supreme Court justice, at North Carolina Ratifying Convention: The president “is of a very different nature from a monarch. He is to be…personally responsible for any abuse of the great trust reposed in him” (emphasis added). 1974 staff report, 9.
Responsibility of president as “Principal”: “Col. Mason. No point is of more importance than that the right of impeachment should be continued. Shall any man be above Justice? Above all shall that man be above it, who can commit the most extensive injustice? When great crimes were committed he was for punishing the principal as well as the Coadjutors.” Doyle, Impeachment Grounds, 9.
See also Hamilton, Federalist 70, “The Executive Department Further Considered,” pars. 17–19, discussing the virtues of a single executive as opposed to the monarch of Great Britain, who can claim he was overruled by his council (par. 15). Hamilton argues the superiority of the American model, where the magistrate “ought to be personally responsible for his behavior in office, the reason which in the British Constitution dictates the propriety of a council not only ceases to apply, but turns against the institution” (par. 19, emphasis added). In Federalist 77, Hamilton emphasizes, with regard to the presidential liability for his appointments: “The blame of a bad nomination would fall upon the President singly and absolutely.” Federalist 77, par. 5. Hamilton concludes in the final paragraph of that the President is “at all times liable to impeachment and trial…” Federalist 77, par. 11.
Use of agents for misconduct: See impeachment charges against Presidents Nixon and Clinton regarding use of agents, in Clinton pleading: acting “through his subordinates and agency”: “Prevented, obstructed and impeded the administration of justice and, to that end, engaged personally, and through his subordinates and agents, in a course of conduct or scheme designed to delay, impede, cover-up and conceal the existence of evidence and testimony related to a civil rights action brought against him in a duly instituted judicial proceeding.”
Use of agents for financial misconduct: See Secretary of War William Belknap who used intermediaries on both sides to obscure financial payoff, was impeached by the House, and resigned.
113. James Wilson, signer of both the Declaration of the Independence and the Constitution: “The executive power is better to be trusted when it has no screen. Sir, we have a responsibility in the person of our President; he cannot act improperly, and hide either his negligence or inattention; he cannot roll upon any other person his criminality; no appointment can take place without his nomination; and he is responsible for every nomination he makes…far from being above the laws, he is amenable to them in his private character as a citizen, and in his public character by impeachment” (emphasis in original). 1974 staff report, 9.
114. Regarding firing official “whose merits require he should be continued in the Office”; failure to choose successors or do the duties himself:
“Mr. Madison…The danger, then, consists merely in this—the President can displace from office a man whose merits require that he should be continued in it. What will be the motives which the President can feel for such abuse of his power, and the restraints that operate to prevent it? In the first place, he will be impeachable by this house, before the Senate, for such an act of maladministration; for I contend that the wanton removal of a meritorious officer would subject him to impeachment and removal from his own high trust,” Doyle, Impeachment Grounds, 12.
The president had authority to remove subordinates, Madison reasoned, making “him, in a peculiar manner, responsible for the conduct” of executive officers. It would, Madison said, “subject him to impeachment himself, if he suffers them to perpetrate with impunity high crimes and misdemeanors against the United States, or neglects to superintend their conduct, so as to check their excesses.” 1974 staff report, 15. Madison was supported by another framer, Abraham Baldwin of Georgia:
Mr. Baldwin: “If the President, ‘in a fit of passion’ removed ‘all the good officers of government’ and the Senate were unable to choose successors, the consequences would be that the President would be obligated to do the duties himself; or if he did not, we would impeach him, and turn him out of office, as he had others.” 1974 staff report, 15.
115. See impeachment charges against Judges Porteous and Kent; Presidents Nixon and Clinton.
116. Regarding obstruction of justice: see impeachment charges against Judges Kent and Porteous; Presidents Nixon and Clinton.
117. Regarding conflicts of interest: “Incompatible Employment” in Doyle, Impeachment Grounds, 5, n. 5, quoting and discussing Wooddeson, who explained impeachments had been proper where a confidential advisor to the King had obtained “exorbitant grants or incompatible employment.” The lectures by Wooddeson on English impeachment provide the foundation for much of the impeachment discussion in Jefferson’s manual.
See also Federalist 73, par. 2, at the close of which Hamilton makes a clear statement of the purpose of emoluments prohibitions, and the importance of an independent president: “He can, of course, have no pecuniary inducement to renounce or desert the independence intended for him by the Constitution.”
118. Regarding corruption and elections: George Mason of Virginia felt that “displacing an unfit magistrate” was “indispensable” in view of the “fallibility of those who choose, as well as by the corruptibility of the man chosen.” Brown, 4. Later, at the Constitutional Convention, as it met as a Committee of the Whole on July 20, Mason adamantly defended the idea of impeachment, responding to an argument that reelection of the chief executive would be sufficient proof of his innocence:
“Col. Mason. No point is of more importance than that the right of impeachment should be continued. Shall any man be above Justice? Above all shall that man be above it, who can commit the most extensive injustice? When great crimes were committed he was for punishing the principal as well as the Coadjutors…One objection agst. Electors was the danger of their being corrupted by the Candidates: & this furnished a peculiar reason in favor of impeachments whilst in office. Shall the man who has practiced corruption & by that means procured his appointment in the first instance, be suffered to escape punishment, by repeating his guilt?” Brown, 4–5.
Morris at Constitutional Convention: “Mr.Govr. Morris’s opinion had been changed by the arguments used in the discussion…The Executive ought therefore to be impeachable for treachery; Corrupting his electors, and incapacity were other causes of impeachment…This Magistrate [later named “President”] is not the King but the prime-Minister. The people are the King…” Doyle, Impeachment Grounds, 9.
Hamilton, too, feared for corruption. In his Federalist 68, “The Mode of Electing the President,” he explained goals. “Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils.” Hamilton, Federalist 68, par. 5.
119. Regarding corrupt pattern of behavior, corrupt financial relationship, even prior to taking office and continuing in office: Readers should take care in citing Porteous as proof that impeachment may lie for misconduct preceding both nomination and service as a U.S. official. Judge Porteous’s long-standing relationships with crooked colleagues predated his federal position, but these wrongful acts were mixed in with the allegations of federal misconduct. Importantly, however, Porteous impeachment Article 4, an independent ground for conviction, focused on the judge’s misconduct during his nomination process. The judge’s lies, cover-up, and other misconduct gave rise to independent impeachment liability.
Judge Porteous’s impeachment Article 1 alleged that Porteous, beginning as a state judge and while a federal judge, engaged in a corrupt pattern of conduct. As a federal judge he “engaged in a pattern of conduct incompatible with the trust and confidence placed in him” when he denied a motion to recuse himself in a case where he had a “corrupt financial relationship with the law firm representing one of the parties.” Against canons of judicial ethics, Article 1 alleged, he failed to disclose that he had engaged in a corrupt scheme with two lawyers in that firm beginning while he was a state court judge in the late 1980s.
120. See Archbald (prior federal position misconduct) and Porteous (nomination misconduct) cases. Pre-federal nomination misconduct was not isolated as impeachable, or not in the Porteous impeachment articles.
121. See case of Judge Claiborne, impeached and convicted for providing false information on federal income tax forms, and President Clinton case, alleging cover-up of an affair, with the House managers making use of the Claiborne case as useful precedent; see Judge Porteous case involving bankruptcy fraud.
122. Regarding “Too ignorant to perform duties”: Judge Lawrence defined misdemeanor as “bad conduct” and misdemeanor in England, without intent, as being too ignorant to perform duties, impeachable even if the official believed what he said. Lawrence, 648–650, 680, noting that the United States should construe the language equally with England. Lawrence, 644.
123. Judge Nixon was impeached for making false statements to the grand jury about whether he had discussed a criminal case with the prosecutor and attempted to influence the case, as well as for concealing such matters from federal investigators.
Regarding perjury and violation of court order: see Judge Porteous impeachment articles. Judge Porteous was charged and convicted under impeachment Article 3 for perjury in connection with the judge’s personal bankruptcy filing, “and by repeatedly violating a court order in his bankruptcy case, thereby bringing his court into scandal and disrepute, prejudicing public respect for and confidence in the federal judiciary, and demonstrating that he is unfit for the office of federal judge.” Article 3 then generally declared that the Judge was guilty of high crimes and misdemeanors and should be removed from office.
Regarding perjury and obstruction of justice: see case of Judge Sam Kent.
Regarding lying, perjury, and subornation of perjury: see Presidents Clinton and Nixon impeachment charges.
124. Regarding overreaching, abuse of authority, and self dealing, see discussion of Parliament’s ability to deal with officials’ “misconduct in office due to overreaching, abuse of authority, or self-dealing, each of which would constitute a high crime and misdemeanor…It was in this way that Quincy, Adams, and ultimately the framers of the Constitution understood the meaning of high crimes and misdemeanors by a public official and parliamentary usage.” Brown, 26; see, for example, Judge Archbald impeachment.
125. Regarding depriving the public of “right to honest services of his office”: Judge Porteous was charged, and convicted of making misleading statements in a recusal hearing, “depriving the higher court of critical information” for its review involving his denial of recusal, “depriving the parties and the public of the right to the honest services of his office.”
126. Corruption of judicial process: See Clinton impeachment charges.
127. See Judge English impeachment Article 1 alleging that Judge English “did on divers and various occasions so abuse the powers of his high office that he is hereby charged with tyranny and oppression, whereby he has brought the administration of justice in [his] court…into disrepute, and…is guilty of misbehavior falling under the constitutional provision as ground for impeachment and removal from office.” See Presidents Nixon and Clinton impeachment charges.
128. See impeachment of Judge Porteous. By virtue of “corrupt relationship” (Article 1) and his “corrupt conduct” (Article 2) as a federal judge, Judge Porteous was charged and convicted of having “brought his court into scandal and disrepute,” having “prejudiced public respect for, and confidence in, the federal judiciary and demonstrated” that he was “unfit for the office of federal judge.” Bazan, “Overview of Constitutional Provisions,” 1.
129. Judge Claiborne, first convicted in a separate criminal proceeding, was impeached by the House for providing false information on federal income tax forms, the same basis as his criminal conviction. The Senate convicted on three of the four articles that described the judge’s clearly wrongful conduct, as the House charged and proved to the Senate under Articles 1 and 2 that the Judge engaged in misbehavior and “high crimes and misdemeanors” warranting removal for violations of federal law. Article 4 stated that the judge’s actions brought the “judiciary into disrepute, thereby undermining public confidence in the integrity and impartiality of the administration of justice.” The Senate convicted the judge on the Article 4 ground, as well as on Articles 1 and 2.
130. See President Clinton impeachment charges.
131. To Madison, it was “indispensable” that provision be made for “defending the Community agst [sic] the incapacity, negligence or perfidy of the chief magistrate.” Doyle, Impeachment Grounds, 8.
132. Regarding revealing confidential information (wiretap): See Bazan, “Overview of Constitutional Provisions” 5, n. 24 referencing introduction of H.R. Res. 177, 103rd Cong., to impeach Judge Robert P. Aguilar; see impeachment of Judge Hastings: Article 16 alleged that, as supervising judge, Judge Hastings learned highly confidential information obtained through a wiretap and revealed highly confidential information that he learned as the supervising judge of the wiretap. “As a result of this improper disclosure, certain investigations then being conducted by law enforcement agents of the United States were thwarted and ultimately terminated.” Article 17 was a catch-all provision, joining together all the other charges, also summarizing his judicial duties as including being “required to enforce and obey the Constitution and laws of the United States, to uphold the integrity of the judiciary, to avoid impropriety and the appearance of impropriety, and to perform the duties of his office impartially.” His actions regarding the wiretap were said to “undermine confidence in the integrity and impartiality of the judiciary and betray the trust of the people of the United States, thereby bringing disrepute on the Federal courts and the administration of justice by the Federal courts.” U.S. Senate website: https://www.senate.gov/artandhistory/history/common/briefing/Senate_Impeachment_Role.htm (accessed March 2017). See also H. Rep. No. 100-810 (1988), Impeachment of Alcee L. Hastings, Report of the Committee on the Judiciary to accompany H.R. Res. 499, 100th Cong.
133. See impeachment of Judge Kent; James Madison, on concerns warranting provisions for protecting the community from Executive Magistracy (later president): “He might divert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers.” Brown, 6.
134. Resubverting the fundamental laws; introducing arbitrary power, supporting pernicious and dishonorable measures, see Wooddeson on English impeachment law, Doyle, Impeachment Grounds, 5.
135. Professor Arthur Hellman explained during House hearings concerning the impeachment of Judge Samuel Kent that Judge Kent’s conduct fit within two broad, overlapping impeachment categories: “serious abuses of power” and “conduct that demonstrates that an official is unworthy to fill the office that he holds.” H.R. Rep 111–159, sess. of 2009, citing testimony of Professor Hellman, Sec. V.B.4.
136. See impeachment charges against Presidents Nixon and Clinton. See Pickering impeachment articles.
137. Regarding failure to provide Senate “every material intelligence he receives”; “giving false information to the Senate”; and “concealing important intelligence which he ought to have communicated:” James Iredell (later a Supreme Court justice), speaking at North Carolina Ratifying Convention about impeachment, said that the “President must certainly be punishable for giving false information to the Senate. He is to regulate all intercourse with foreign powers, and it is his duty to impart to the Senate every material intelligence he receives. If it should appear that he has not given them full information, but has concealed important intelligence which he ought to have communicated, and by that means induced them to enter into measures injurious to their country, and which they would not have consented to had the true state of things been disclosed to them, in this case, I ask whether, upon an impeachment for a misdemeanor upon such an account, the Senate would probably favor him.” 1974 staff report, 14. In the Porteous impeachment case, Article 4, a separate ground for conviction, also explained that Judge Porteous’s wrongdoing “deprived the United States Senate and the public of information that would have had a material impact on his confirmation.”
138. Violating court order: Judge Porteous was charged and convicted under impeachment Article 3 for perjury in connection with his personal bankruptcy filing, “and by repeatedly violating a court order in his bankruptcy case, thereby bringing his court into scandal and disrepute, prejudicing public respect for and confidence in the federal judiciary, and demonstrating that he is unfit for the office of federal judge.” Article 3 then generally declared that the judge was guilty of high crimes and misdemeanors and should be removed from office.
139. See Bazan, Elizabeth. Summary of Impeachment Proceedings in the 111th Congress. Congressional Research Service, April 2010 (electronic version in December 2010, updating her April 2010 book).
140. U.S. Senate website: https://www.senate.gov/artandhistory/history/common/briefing/Senate_Impeachment_Role.htm (accessed March 9, 2017); see also Bazan, Overview of Constitutional Provisions, providing details on the impeachment of Judge Samuel Kent and dismissal of his trial upon his resignation, and the impeachment and December 8, 2010 conviction of Judge G. Thomas Porteous, with disqualification from holding federal office.
141. Rehnquist, William, Grand Inquests, 27. Throughout Grand Inquests, the chief justice made clear his supreme respect for the U.S. constitutional system, the independence of the judiciary, the great idea of a presidential, not parliamentary. system of government, and the importance of the U.S. impeachment process as part of the constitutional framework.
142. Whitney, Founders of Freedom…Constitution, 55.
143. During the Revolution, Blount avoided fighting as his father arranged his job as paymaster, which he parlayed into the army’s chief commissary agent, profiting greatly. He also drew his officer’s salary, while serving himself as a merchant, investor, and land speculator. He served in state and federal legislatures in the 1780s, was a delegate to the Constitutional Convention in Philadelphia, and a signer of the U.S. Constitution, although he claimed his signature meant no approval, but rather merely showed that he was present. Whitney, Founders of Freedom…Constitution, 55–58.
144. Whitney, Founders of Freedom…Constitution, 55–59.
145. Whitney, Founders of Freedom…Constitution, 59.
146. See Morison, generally, 336–353. The tumultuous 1793–1796 time period saw the Barbary pirates enslaving American sailors, requiring rebuilding of the U.S. Navy, and the ransoming of the captured Americans in 1796. The United States found itself on the brink of war with England, as Britain declared any neutral ship sailing with provisions to the French West Indies a “good prize.” Britain captured many American trading vessels in the Caribbean. As the British foreign minister exercised diplomacy to calm matters, President Washington sent Chief Justice John Jay to Great Britain. The goal: avoid war and accomplish British evacuation of Northwest American posts, all accomplished by Jay in a poorly received, but important treaty in late 1794. Ibid., 336–353. Washington also faced and successfully put down a tax rebellion of “moonshiners” in the “Whiskey Rebellion.” The President made use of his pardon power in pacifying the rebel leaders, convicted of treason.
Washington managed multiple crises on multiple fronts. The United States Army battled Native Americans, including the Miami, the Shawnee, the Ottawa, Chippewa, Potawatomi, and Iroquois. The Battle of Fallen Timbers ended with Major General “Mad Anthony” Wayne’s destruction of villages and building of Ft. Wayne, and a peace treaty in mid 1795, with Native American loss of lands, with promised enclaves for the tribes eventually lost to a wave of settlers, violating the Treaty of Greenville.
Washington also used diplomacy, sending Thomas Pinckney to Spain to successfully secure, in late 1795, rights of transit in New Orleans and navigation rights on the lower Mississippi. Spain left its posts on the east bank of the Mississippi, giving the U.S. control of its territory.
See Morison in general, and 343–45.
147. Morison, 343.
148. Whitney, Founders of Freedom…Constitution, 59.
149. The Blount impeachment articles charged the senator with high crimes and misdemeanors, conduct “contrary to the duty of his trust and station as a Senator, and against the peace and interests thereof” as follows:
Article 1 charged Blount with engaging in a military hostile operation “for the purpose of wresting” the Floridas and Louisiana, or parts thereof, from Spain, and of conquering the land for the king of Great Britain, in disregard of his duties and obligations of his high station as a U.S. senator, infringing and violating U.S. neutrality.
Articles 2 and 5 alleged that Blount conspired to incite the Creek and Cherokee nations to go to war against the Spanish subjects in the same lands, for the benefit of Great Britain; and foment discontent among the Cherokee nations against the United States.
Articles 3 and 4 charged Blount with interference with a temporary federal Indian agents’ relationship and job functions with the Cherokee and Creek nations, in furtherance of his criminal designs. Simpson, Alex, A Treatise on Federal Impeachments (Philadelphia: Law Association of Philadelphia, 1916), Appendix, 191–92; see also Doyle, Impeachment Grounds, 16.
150. Whitney, Founders of Freedom…Constitution, 59; Brown,37.
151. Brown, 36–38, and n. 4–14.
152. Brown, 37–38.
153. Whitney, Founders of Freedom…Constitution, 60.
154. Ibid.
155. Brown, 38–39; regarding history of Blount’s return and welcoming: Whitney, Founders of Freedom…Constitution, 60.
156. 1974 staff report, 42; Whitney, Founders of Freedom…Constitution, 60.
157. Whitney, Founders of Freedom…Constitution, 60.
158. Brown, 40, n. 29–31.
159. Judge Pickering was censured by his state legislature in 1794 due to erratic behavior and absences from the bench as chief of the New Hampshire Supreme Court, as his deteriorating condition became known as he was becoming a federal judge, with an appointment in 1795. Sadly, by 1803, Pickering was senile, habitually drunk, and “a pathetic relic of a once honored and effective statesman.” Brown, 40, n. 29–31.
Pickering in years past had been a respected advocate for ratification of the Constitution and a drafter of the New Hampshire State Constitution. By 1803, when the House authorized impeachment, no one contested the facts alleged: he was incapable of forming the legal intent to commit his wrongdoings; the judge’s actions violated an Act of Congress; he refused to hear evidence from the U.S. Attorney; he refused to allow an appeal; and he gave away an entire, provisioned ship (seized by the Collector of Customs in the custody of the United States for non-payment) to the man who, while claiming ownership had no legal right to the vessel or cargo, having failed to prove any payment. Brown, 39–49; Simpson, 192–94.
160. Charge 1 summarized judicial misconduct of Judge Pickering in ordering a fully provisioned vessel with foreign merchandise to be delivered to a certain Eliphalet Ladd who produced no certificate of his claim, “contrary to his trust and duty as judge of the said district Clerk.”
Charge 2 complained of Judge Pickering’s refusal to hear the testimony of the U.S. Attorney’s witnesses, ready to prove the forfeiture right of the United States to the vessel, as the Judge acted “with the intent to defeat the just claims of the United States,” ordering the vessel restored to Eliphalet Ladd, “contrary to his trust and duty, as judge of the said district court.”
Charge 3 described the judge’s reaction to the U.S. appeal request “disregarding the authority of the laws, wickedly meaning and intending to injure the revenues of the United States, and thereby to impair their public credit, did absolutely and refuse to allow the said appeal…contrary to his trust and duty as judge.”
Charge 4 described the need for faithful and impartial administration of justice, temperance, and sobriety in a judge, charging the judge with appearance on the bench “for administering justice, in a state of total intoxication, and did then frequently and in a most profane and indecent manner, invoke the name of the Supreme Being…and was then and there guilty of other high misdemeanors, disgraceful to his own character as a judge, and degrading to the honor and dignity of the United States.” Simpson, Appendix, 193. See generally Simpson, Appendix, 192–94.
161. Founding Fathers Morris and Madison each spoke of incapacity as impeachment grounds. Doyle, Impeachment Grounds, 8–9, citing II FARRAND 64–9 (Madison) (July 20, 1787).
Pickering was regarded as “insane and infirm.” Brown, 39–41 (Senate acknowledging Pickering’s incapacity to serve as a judge). See also Berger, 183–184 regarding evidence of Pickering’s incapacity.
The son alleged his father’s insanity made him “incapable of corruption of judgment,” and much of the Senate’s debate centered on whether Pickering’s incapacity was sufficient grounds. Brown, 40. The Senate vote (19–7) convicted Pickering. Doyle, Impeachment Grounds, 17.
162. Decades later, eighteenth- to nineteenth-century writer Henry Adams, great-grandson of John Adams, called into question the Pickering case result, with political discord over judiciary appointments and removal issues, political anger over outgoing President Adams’s last-minute appointments, and incoming Republicans supporting President Jefferson in efforts to control the judiciary. Brown, 41, n. 43, 46. Brown quotes Henry Adams disparaging any use of the matter as precedent, for trying an insane man who was not present and punished without counsel, and other irregularities. Brown, 41.
163. Hamilton boldly wrote that impeachable offenses “are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done to the society itself.” Federalist 65, par. 2 (emphasis in original).
164. 1974 staff report, 26–27.
165. Per Berger, Henry Adams conceded that the insane man’s lack of responsibility did not render the United States incapable of removing him “for the good of the public service.” Berger, 184.
166. Berger certainly appears to agree that not only was Pickering’s conviction the right result, it was consistent with the Founders’ intent. Berger added additional compelling facts about Pickering’s incapacity, offering further proof from Albert Beveridge’s, The Life of John Marshall (Boston: Houghton Mifflin, 1916), 164–65, that Pickering “had been hopelessly insane for at least three years…and had become an incurable drunkard.” Berger 183, n. 11 and accompanying text.
Berger agrees with Hamilton’s assumption that insanity afforded ground for removal; and adds “I would venture that is was doubtless shared by the Framers; and it was buttressed by the centuries-old rule that a document should be construed to avoid an unreasonable or absurd result.” Berger, 184.
For Madison on incapacity as grounds for impeachment, see note 22.
167. The Twenty-fifth Amendment does not eclipse congressional impeachment power. While the Constitution allowed for congressional law for “inability” both of the president and vice president per Art. II, Sec. 1, Clause 6, and the Twelfth Amendment, replaced by the Twenty-fifth Amendment, there is nothing in the language or in the Twenty-fifth Amendment to the U.S. Constitution inconsistent with Congress using its powers of impeachment.
168. While an impeached officer could exercise his constitutional rights against self-incrimination, that right doesn’t make the proceeding a criminal trial. The Constitution makes clear that the office-holder, independent of his or her impeachment trial, could still be liable for criminal indictment, trial, judgment, and punishment:
Judgment in Cases of Impeachment shall not extend further than to removal from office, and disqualification to hold any Office of honor, Trust or Profit under the United States, but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. U.S. Constitution, Art. I, Sec. 3, Clause 7.
Alexander Hamilton, in Federalist 65, made it clear that the impeached offender could be further chastised separately from impeachment: “The punishment which may be the consequence of conviction upon impeachment is not to terminate the chastisement of the offender. After having been sentenced to permanent ostracism from the esteem and confidence and honors and emoluments of his country, he will still be liable to prosecution and punishment in the ordinary course of law.” Federalist 65, par. 8.
169. The 1974 staff report noted that the crucial factor is not the intrinsic quality of behavior but the “significance of its effect upon our constitutional system or the functioning of government.” 1974 staff report, 27. Pickering’s removal from his high position as federal judge avoided future abuses.
170. Justice Chase, whose mother died during his birth, was raised and tutored with a classical education by his father, a professor from England before emigrating to America, and the rector of St. Paul’s parish in Baltimore, Maryland. After admission to the bar and election to the colonial legislature, Chase battled the royal governor, instigated mob action against the Stamp Act and other British tyrannies, and, as a delegate to the First Continental Congress in 1774, was disappointed in his colleagues’ efforts to find a peaceful solution. Whitney, David C., Founders of Freedom in America: Lives of the Men Who Signed the Declaration of Independence (Chicago: J. G. Ferguson, 1965), 63–64.
171. After the fighting began at Lexington and Concord, Chase spoke with force “shocking” to the Continental Congress delegates and won admiration for his “fearless exposure” of a fellow delegate to the 1775 Congress, who disclosed independence plans to the king’s governor of Georgia. The Congress tasked Chase to recruit Canadians to join the rebellion, after which efforts he successfully roused the people of Maryland to change the voting directions of their delegation to support the Declaration of Independence, which Chase signed on August 2, 1776 after its approval on July 4. Whitney, Founders of Freedom…Declaration of Independence, 64–66.
172. Brown, 42; Whitney, Founders of Freedom…Declaration of Independence, 62–66.
173. See Rehnquist, 97–98.
174. See Marbury v. Madison, 5 U.S. 137 (1803), authored by Chief Justice John Marshall, who is also credited with developing the doctrine of “implied powers” inspired by George Washington’s bold steps in signing the bill establishing the United States’ first central bank, in an expansive view of the presidency. Chernow, 648–650. In the decision to sign the bill, President Washington turned to many for advice, then ultimately to Hamilton who “rose to the occasion as might be expected.” Rehnquist, 38. Three decades later, Chief Justice Marshall upheld the constitutionality of the bank chartered by Congress, giving discretion to the legislature: “Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adopted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.” Rehnquist, 38–39, citing McCullough v. Maryland, 17 U.S. 316 (1819). Regarding Chase’s and Jefferson’s actions, see Brown, 42, and Rehnquist, 90–104.
175. Grounds reproduced at Brown, App., pp. 135–39.
176. Brown, 43, n. 61.
177. See Brown, 42–43, n. 61–63.
178. Brown, 43.
179. Brown, 45.
180. For example, Chase took pains to ensure the defense counsel stayed on, and gave a light sentence. Rehnquist, 88.
181. Rehnquist, 89.
182. The first question boiled down to whether Chase had properly instructed the jury on the law. Chase had refused to hear argument on the definition of treason; Chief Justice Rehnquist in painstaking detailed analysis concluded in modern times, that, at most, it was an error of judgment, and surely not a ground for removal from office. The second and third charges—refusing to allow counsel to argue their view of the law to the jury—apparently weren’t proved to the Senate. See Rehnquist, 58–73. The various remaining charges concerning the conduct of the Callender trial, on failing to properly apply Virginia law, failing to grant a continuance, and behaving in his rulings in a manner that would appear to dominate the proceedings, requiring, for example, that questions be put in writing or ridiculing defense counsel or insisting they abide by his earlier decisions or interrupting (albeit not in closing argument). Rehnquist acknowledged Chase’s “overbearing” manner (Rehnquist, 85), but considering the law at the time found nothing so grave as to warrant impeachment. Rehnquist, 74–99. The law at the time—indeed until 1911—allowed, for example, for a judge to sit in a trial where he might have bias or favor; he was disqualified for a financial interest in the case, but no other disqualifications were permitted. Bias—the most controversial ground for disqualification—was rejected by the English common law practice entirely. Rehnquist, 87, n. 8. Berger took the position that Chase’s charges were not trumped up and that he should have been convicted of the impeachment charges. See Berger, 224–251. Rehnquist strongly answered those allegations; indeed, he took a detailed half a book to do so. A point-by-point, fact-by-fact, detailed analysis by modern chief justice Rehnquist—applying the law at the time—demonstrates insufficient evidence or insufficient legal merit on many of these points, and painstakingly shows that the remaining attacks on Justice Chase’s conduct to be unworthy of impeachment. Rehnquist, 15–105.
183. Rehnquist marshalled detailed evidence showing other judges’ politicized speeches at the time of Chase. The differences between Chase’s charge and the other judges’ grand jury charges were political differences. Rehnquist offers multiple examples of other justices of Chase’s vintage delivering politicized speeches no more partisan than the alleged words of Chase to the grand jury. Grand jury charges at the time evolved from “general reflections of the relative situations between the United States and France,” “defense of the Alien and Sedition laws,” “the present situation of the country,” and “virtuous administration of government,” to judges’ charges that reflected “an increasing sense of apostolic mission.” Rehnquist, 96–97.
184. Rehnquist, 94.
185. Rehnquist, 95.
186. Associate Supreme Court justice Joseph Story, who succeeded Justice Chase upon his death, described him with fondness. “His manners are coarse, and in appearance harsh, but in reality he abounds with good humor…In person, in manners, in unwieldly strength, in severity of reproof, in real tenderness of heart, and above all in intellect, he is the living…image of Samuel Johnson.” Whitney, Founders of Freedom…Declaration of Independence, 67.
187. Chief Justice Rehnquist tells the story that the acquittal of Chase (of great importance to the future of an independent judiciary) didn’t prevent President Jefferson’s continued sparring with the federal judiciary. When Aaron Burr’s vice presidential term ended, Burr found himself in trouble and was indicted for treason for his alleged travel plans west of the Mississippi, via discussions with activists, to cause the secession of the southwestern states. President Jefferson took great interest in Burr’s trial.
Justice John Marshall presided over the trial of Burr, who was acquitted, but held on a separate charge (a misdemeanor) of organizing an expedition against Spain. Such a charge, which was required to be brought in Ohio, never materialized. Marshall ruled against the U.S. government on a preliminary motion. Jefferson, displeased with yet another federal judge, wrote to Senate leader Giles of his wish that the Constitution be amended so as to correct the error “which makes any branch independent of the nation.” Rehnquist, 117–118. Jefferson’s annual message to Congress then suggested that “the legislature alone can apply or originate the remedy,” referencing the outcome of the Burr trial. Congress didn’t take the bait to pursue Marshall. Rehnquist, 118. Justice Chase had joined in Chief Justice Marshall’s Marbury v. Madison opinion; the impeachment charges against Chase focused on his actions as a trial judge on circuit, not as an associate justice of the U.S. Supreme Court. Rehnquist, 115.
188. See Federalist 65 and 66, and note 57 above, for a summary of Hamilton’s defense of the framers’ choice of the Senate for the trial of impeachment. The Chase result is a case Chief Justice Rehnquist lauds, with the impeachment of President Andrew Johnson as one which “surely contributed as much to the maintenance of our tripartite federal system of government as any case decided by any court.” Rehnquist, 278.
189. 1974 staff report, 46; Brown, 185, n. 77 (one may disregard Brown’s typo at the top of page 46, indicating that Peck was convicted in the Senate; the error is set right in his superb note on page 185). The House Judiciary Committee recommended Peck’s impeachment for his misconduct toward lawyer Lawless, as a high crime and misdemeanor involving “abuse of judicial authority” and “subversion of the liberty of the people.”
190. Simpson, 197.
191. Brown, 185, n. 77.
192. 1974 staff report, 46.
193. Brown, 185, n. 77.
194. Humphreys and President Andrew Johnson, the Civil War–era impeachments, were prefaced by political shifts in the United States as the Founding Fathers departed the world, a world which experienced a growth in the abolition of slavery movement. With the entry of Texas to the union in 1845 and acquisition of Oregon Territory, and Mexican cession, the country continued to make compromises over slavery, postponing but not solving the need for decision-making as to whether this country would continue to embrace the ownership of human beings. See Rehnquist, 150–211; Morison, 593–700.
195. See Rehnquist, 168; Morison, 592–93. “Flabby James Buchanan” ran against the Republican’s promise of “Free soil, free speech, Fremont,” but the only real issue was whether slavery would be permitted in the U.S. territories. Although Buchanan did well in the electoral vote, carrying every slave state except Maryland, he also carried Pennsylvania, Illinois, and Indiana, giving him 174 electoral votes to Fremont’s 114 to Fillmore’s 8. The Republican’s “pathfinder” impressed with his 1.34 million votes to Buchanan’s 1.838. The ominous numbers were seen in the source of Fremont’s votes: all but 1,200 came from non–slave holding states. Morison, 593–700.
196. Morison, 593–700.
197. Alex Simpson, Jr., in his Appendix with Charges from English and American Impeachments, relied on the Congressional Globe, 2nd Session, 37th Congress, page 2,277 (1862) in reproducing the first line, which reads “Charge: High Crimes and Misdemeanors.” The charges also allege that Judge Humphreys unlawfully conspired with Jefferson Davis and J. C. Ramsay to oppose by force the authority of the government of the United States (Charge 4) and unlawfully and in conjunction with other persons organize armed rebellion against the United States and levy war against them (Charge 3). He was convicted on all charges as high crimes and misdemeanors, with the exception of no conviction on 6(2) noted below.
Charges 1–7 accused Judge Humphreys of high crimes and misdemeanors. “Regardless of his duties” as a U.S. citizen and “unmindful of his duties” of his office, he publicly advocated secession, revolt, and rebellion; agreed to an act of secession; organized armed rebellion against the United States and levied war against them; conspired to oppose the United States; refused to hold court; acted as a judge for the Confederacy; and unlawfully arrested and imprisoned U.S. citizens. One of the Charges (No. 6) was split into three sections. Judge Humphreys was found guilty of all charges except 6(2) (confiscation of property of one Andrew Johnson and one John Catron). Simpson, Appendix, 197–99.
198. Catron was a U.S. Supreme Court Justice appointed by President Andrew Jackson.
199. Simpson, Appendix, 199.
200. “…this consideration [motive] was so unimportant that it was never once mentioned on the trial…” Lawrence, 679–80.
201. See Simpson, Appendix, 197–99.
202. See 1974 staff report, 20, n. 92; see Simpson, Appendix, 197–199.
203. President Lincoln announced emancipation effective January 1, 1863, and was reelected in 1864 over McClellan, who garnered some votes in the hopes of a strong military showing. Northern victory came on April 9, 1865 at Appomattox, with General Grant ordering his troops to calm: “The war is over; the rebels are our countrymen again.” See Morison, 593–700.
204. Rehnquist, 162–68.
205. Rehnquist, 168.
206. Morison, 740–41.
207. Morison, 711.
208. Morison, 712–13.
209. Rehnquist, 250.
210. Morison, 746.
211. Adversity and poverty in early life left Johnson—“essentially a Jacksonian Democrat”—with a chip on his shoulder, a vindictive and perverse temper, and great, “almost morbidly sensitive” pride. Rehnquist, 200, n. 1, 2; 205, 250–51.
212. Rehnquist, pp. 169–211.
213. Morison, 719–720; Rehnquist, pp. 250–51.
214. The Tenure of Office Act was finally repealed in the presidency of Grover Cleveland, at the executive’s request, in 1887. Rehnquist, 261.
215. U.S. Senate website: https://www.senate.gov/artandhistory/history/common/briefing/Senate_Impeachment_Role.htm (accessed March 13, 2017).
216. Ibid.
217. Ibid.
218. Kennedy, John Fitzgerald. Profiles in Courage. (Illustrated edition) New York: Black Dog & Leventhal, 1998. Kennedy noted that the actual cause for which Johnson was tried “was not fundamental to the welfare of the nation,” recognizing the absence of substantiality to the effect of Johnson’s alleged maladministration; he also recognized the inadequacy of the “catch-all” clause, a conglomeration of all other articles (Art. 11), designed by Thaddeus Stevens in an attempt to furnish a common ground to convict. Kennedy also complimented President Johnson’s “able counsel” in demonstrating that the Tenure of Office Act was null and void as unconstitutional, but even if it were valid, it would not apply to Secretary Stanton. Profiles in Courage, 144–46.
219. Chief Justice Rehnquist lists and analyzes the three “ablest and most respected” of the seven “Republican recusants” and their reasons for acquittal. Rehnquist, 240–45. Each had valid, legal reasons for acquittal, including highly debatable application of the Tenure of Office Act (for which Johnson likely had the better interpretation); the unfairness to impeach a president of the United States for commenting freely on the conduct of other branches, and the importance of resisting the clamor of public opinion, and instead properly viewing the evidence. Radical Republicans such as Senator Sumner viewed impeachment, not as a trial, but as a vote of confidence under the British parliamentary system, and Johnson had stood in the way of the Reconstruction policies of the Republican Congress. Rehnquist, 245. Rehnquist analogized the attitude of Sumner to that of Senator William Giles, who, according to John Quincy Adams, said shortly before the Chase trial that he had tried to persuade another senator that impeachment meant “We want your office in order to give it to a better man.” Rehnquist, 125.
220. The result from the President Johnson impeachment did not rely on some technical issue of failure to find criminal intent; apparently, a majority would not have required criminal intent to convict. During the trial, the debate raged as to whether the president must have some criminal intent, with a majority apparently deciding no criminal intent was required. Brown, 55–58. “…the criminal law limitation can fairly be said to have been rejected by a majority of the senators.” Brown, 60–61. One senator also criticized the “catch-all” charge repeating certain articles (Art. 11); he found it hard “to ascertain what it really charges.” Brown, 59. Strategies of test use, “catchall” and repetition are acknowledged in the U.S. Senate website: https://www.senate.gov/artandhistory/history/common/briefing/Senate_Impeachment_Role.htm (accessed March 13, 2017). The catchall became a recognized practice used historically in judicial impeachments, and passed muster, over objection, in the Ritter case.
221. Rehnquist, 245.
222. Rehnquist, 125.
223. 1974 staff report, 49.
224. 1974 staff report, p. 50; Belknap was not charged with bribery. Brown, 196, n. 1. Charges 1–5 alleged under “High Crimes and Misdemeanors in Office” financial improprieties by the secretary of war, who used his power and authority to appoint a person to maintain a trading post at Fort Sill, in order to receive personally or have paid to his wife, large sums of money, via an intermediary, from his appointee. Simpson, Appendix, 203–05.
225. The 1974 staff report explains that argument in the Senate included that the resignation prior to impeachment should cause the case to be dropped. The Senate decided to proceed, but twenty-two of the senators voting “not guilty” on each article indicated that, in their view, the Senate had no jurisdiction. 1974 staff report, 50.
Simpson’s massive Appendix to his Treatise on Federal Impeachments reports: “He was acquitted upon the ground that he had resigned his office as Secretary of War, and his resignation had been accepted by the President a couple of hours before the actual adoption of the articles of impeachment by the House.” Simpson, Appendix, 203–05.
226. 1974 staff report, 20.
227. See generally 1974 staff report, 45–46, 50–53.
228. Simpson, Appendix, 207–13; see also Doyle, Impeachment Grounds, 18–19. Judge Archbald was removed from office and disqualified from holding any future office. 1974 staff report, 52, n. 5.
229. 1974 staff report, 51–52; Bazan, Overview of Constitutional Provisions, 27. See case of Judge Thomas Porteous for impeachment, which included a continuing pattern of misconduct dating back to nomination and, indeed, prior to federal service.
230. Bazan, Overview of Constitutional Provisions, 27–28. This CRS publication also lists several instances of allegations of prior misconduct in former capacities and their outcomes; Judge Porteous appears to be the first case where misconduct as a nominee for the federal position gave rise to independent impeachment liability and conviction.
231. Simpson, 213.
232. 1974 staff report, 53–54; Doyle, Impeachment Grounds, 23; House Comm. On the Judiciary, Constitutional Grounds for Impeachment Inquiry, 93d Cong., 2d sess. (1974), 50–54.
233. 1974 staff report, 20. Judge Ritter’s misconduct also included income tax evasion, practicing law, and acceptance of gratuities, included as charges in a “catch-all” Article 7—the one article on which he was convicted. 1974 staff report, 55–57.
234. 1974 staff report, 55.
235. Rehnquist, 119.
236. Doyle, Impeachment Grounds, 20. Article 7 referenced the other six charges, the first two of which were dropped, but the fourth charge aggregated the other articles including income tax evasion, alleged in Articles 5 and 6 as “high misdemeanors in office” and willful failure to report or pay tax on income received by him. Ritter accepted, per the third charge, fees and gratuities from persons with large property interests within his territorial jurisdiction. The Senate convicted Judge Ritter on the one count re-incorporating articles. See also 1974 staff report, 20, 55–57.
The Chairman had overruled Ritter’s complaint that his acquittal on the first six, specific charges rendered conviction on the “catch-all” clause improper, and found that the general charge number 7 was a separate charge. Ritter had been convicted on that sole charge. Ritter’s attempt to attack the validity of the Senate proceedings in the Federal Court of Claims was dismissed on the broad “ground that no judicial court of the United States has authority to review the action of the Senate in an impeachment trial.” 1974 staff report, 55–57 and n. 93, citing Ritter v. United States, 84 Ct. Cl. 293, 300, cert. denied, 300 U.S. 668 (1936).
237. Consider the early strategy in the case of Peck; the House decided to use only one, single article in the impeachment of Federal judge James H. Peck, stated the tenure provision of “good behavior” in addition to “high misdemeanors,” and did not emphasize the substantial effect on society from the wrongdoing. The House emphasized the bad behavior of the judge but not the future risks he posed. The House voted to impeach in 1826 on a single article for Judge Peck’s abuse of power in imprisoning and disbarring lawyer Mr. Lawless, who had publicly criticized the judge in a newspaper. The Peck charges included “subversion of the liberties of the people of the United States.” The Senate acquitted Judge Peck on the one charge they were given.
238. In April 1952, when President Truman attempted to nationalize the country’s steel mills, following unsuccessful negotiations with the United Steelworkers, Representatives in the House offered Resolutions to Impeach. Congress took no action on various resolutions, which included complaints regarding President Truman’s firing of General Douglas MacArthur (in consultation with Generals Bradley and Marshall, plus respected civilian advisors, all of whom agreed that MacArthur must go for his declarations that war must be fought in Korea “for global supremacy”; Morison, 1071–1073), and for assigning U.S. armed forces to the United Nations command in Korea, as well as complaints of “attempting to disgrace the U.S., withholding information, and making reckless and inaccurate public statements.” No committee action resulted. Stathis, Stephen, Congressional Resolutions on Presidential Impeachment: A Historical Overview, Congressional Research Service, September 16, 1998, 8–11. Representatives had filed Resolutions against Presidents Tyler, Andrew Johnson, Cleveland, and Hoover, as well as these Resolutions against President Truman, and the practice continues. Stathis summarizes instances in which Congress has considered proposals to impeach or to investigate the possibility of impeaching a president of the United States, citing the formal impeachment charges that have previously been brought against eight presidents (Tyler, Andrew Johnson, Cleveland, Hoover, Truman, Nixon, Reagan, and Bush) leading up to the Resolutions against President Clinton, the first president impeached since Andrew Johnson.
239. Brown, 64–79. H. Lowell Brown provides a concise, readable, well-documented summary in High Crimes and Misdemeanors in Presidential Impeachment, 64–90. Leading authors involved in the matter provide firsthand knowledge and detail: Dash, Samuel, Chief Counsel (New York: Random House, 1976); Doyle, James, Not Above the Law (New York: William Morrow and Company, 1977); Sirica, John J., To Set the Record Straight (New York and London: W. W. Norton & Co., 1979); Dean, John, Blind Ambition (New York: Simon and Schuster, 1976).
240. Sirica, 299.
241. Rehnquist, 272.
242. Sirica wrote: “The grand jury’s vote to name Nixon an unindicted co-conspirator tied the President to the cover-up and made the tapes germane to the proceedings.” Sirica, 223. The president lost his fight to protect the tape recordings as the subpoena of the tapes was directly upheld without dissent by the Supreme Court, “the final demonstration that the judiciary was in fact a truly independent branch of our government.” Sirica, 225–26; United States v. Nixon, 418 U.S. 683 (1974); see also Rehnquist, 272.
243. Sirica, 221–23.
244. The Senate Judiciary Committee developed key information on presidential wrongdoing from John Dean. Senate committee chief counsel Sam Dash describes his efforts to obtain Dean’s story and to make the judgment as to whether to recommend immunity, a fascinating story of great lawyering. Dash, 97–125. Dash explains the difference between the methodical Watergate prosecution team and the Senate select committee. Senator Sam Ervin, chairman of the Senate select committee, explained how he regarded his duty: “When there is wrongdoing in the executive branch,” the Senator said, citing Supreme Court authority, “it is the constitutional duty of the Congress to inform the public and provide remedial legislation.” Dash, 124–25.
245. H.R. 803, 93rd Cong.; H. Rep. 93-1305 (1974).
246. These were the toughest Watergate sentences, except those given to the original Watergate burglars. Twenty-seven corporate executives pled guilty of providing dirty money to Nixon’s 1972 reelection campaign. Doyle, Not Above the Law, 373–404.
247. Sirica, 301–02.
248. Sirica, 302.
249. Rehnquist, 74; 1974 staff report.
250. Brown 153–156; Cole and Garvey, 12, citing Impeachment of Richard. M. Nixon, H. Rep. 93-1305, at 1–4 (1974).
251. Impeachment Grounds v. President Nixon. The House Judiciary Committee considered five articles of impeachment against President Nixon. Three articles were referred by the House Committee on the Judiciary, but President Nixon resigned before they could be voted upon.
1. Referred to House 27–11; 2. Referred to House 28–10; 3. Referred to House 21–17; Committee on the Judiciary, Debate on Articles of Impeachment Hearings Before the Committee on the Judiciary of the House of Representatives, 93d Cong., 2d sess. (1974); Brown, 63–90; Appendix 5, 153–56.
Two other articles were considered, but not referred to the House, relating to (1) American bombing operations in Cambodia, false statements concerning those operations, disclosures resulting in illegal telephone interceptions, and creation of the “Plumbers Unit,” formed initially in connection with Daniel Ellsberg’s obtaining of the Pentagon Papers and their leakage; and (2) alleged benefits to the president at his homes from government expenditures and claims of improper and fraudulently claimed income tax deductions. Ibid.
252. 1974 staff report, 21.
253. 1974 staff report, 25–27.
254. “The decision of the judiciary committee to impeach Nixon for abusive but not criminal conduct is highly significant…The committee found in Nixon’s conduct of the presidency the type of abuse and overreaching of presidential powers that threatened the constitutional order if left unremedied.” Brown, 89. See generally Brown, 63–90; 1974 staff report.
255. Committee on the Judiciary, Debate on Articles of Impeachment Hearings Before the Committee on the Judiciary of the House of Representatives, 93d Cong., 2d sess. (1974); Brown, 63–90.
256. Dash, 265. The Senate Watergate committee—the Select Committee on Presidential Campaign Activities—was created by a 77–0 vote, and chaired by Senator Sam Ervin. The members were chosen with the goal of an objective, bipartisan investigation “that would have the confidence of the public.” Dash, “Chief Counsel,” 8–10. The Committee contributed much to the result in the Nixon impeachment investigation. Chief counsel for that committee, Sam Dash, explains his role, including his initial questioning of White House counsel John Dean and leading to discovery, via questioning of Alexander Butterfield, revealing that the president of the United States had taped many White House conversations. See, for example, Dash, 55–175 regarding conversations with Dean and the phone call with an unhinged president; see 176–197 for stories of the tapes.
257. Dash, 265–66.
258. See Rehnquist, 119; Cole and Garvey, 12–13, Impeachment of Judge Harry E. Claiborne, H. Rep. 99-688, at 22–23 (1986); Impeachment of Judge Harry E. Claiborne, 132 CONG. REC. 29870-872 (1986); Doyle, Impeachment Grounds, 21.
259. See Cole and Garvey, 12–13, Impeachment of Judge Harry E. Claiborne, H.R Rep. 99–688, sess. of 1986, 22–23; Impeachment of Judge Harry E. Claiborne, 132 CONG. REC. 29870-872 (1986); Doyle, Impeachment Grounds, 21.
260. U.S. Senate website: https://www.senate.gov/artandhistory/history/common/briefing/Senate_Impeachment_Role.htm (accessed March 9, 2017).
261. See, for example, the Judge Kent case.
262. U.S. Senate website https://www.senate.gov/artandhistory/history/common/briefing/Senate_Impeachment_Role.htm (accessed March 9, 2017). See also H. Rep. 100-810 (1988), Impeachment of Alcee L. Hastings, Report of the Committee on the Judiciary to Accompany H.R. Res. 499, 100th Cong.
263. Bazan, Overview of Constitutional Provisions, 5, referencing introduction of H.R. Res. 177, 103rd Cong., to impeach Judge Robert P. Aguilar, indicted in 1989, and convicted of unlawful disclosure of a wiretap, with sentencing to prison, community service, and a fine. The criminal conviction was reversed on appeal. After seven years of trials, retrials, and appeals, he resigned from office. No further action was taken on H.R. Res. 177, 103rd Cong. Bazan, Overview of Constitutional Provisions, 5, n. 24.
264. U.S. Senate website: https://www.senate.gov/artandhistory/history/common/briefing/Senate_Impeachment_Role.htm (accessed March 2017). Impeachment of Judge Alcee L. Hastings Article 1 alleged that the judge “engaged in a corrupt conspiracy to obtain $150,000 from defendants” in a case tried before him, in return for the imposition of sentences which would not require incarceration of the defendants. He was convicted on Article 1.
Articles 2 through 15 listed and described alleged, specific perjurious actions concerning solicitation of bribe, making the deal to give probation for the bribe, nature of the bribe and the false versus true reasons he had meetings, coded conversations and telephone calls about the bribe and his motive. He was convicted on seven of these articles, involving lying and submitting false evidence in his criminal trial, which preceded his impeachment.
Article 16 alleged that, as supervising judge, Judge Hastings learned highly confidential information obtained through a wiretap and revealed highly confidential information that he learned as the supervising judge of the wiretap; Judge Hastings told the Mayor of Dade County, Florida, to stay away from a person known as “Waxy,” who was “hot” and was using the mayor’s name in Hialeah, Florida. “As a result of this improper disclosure, certain investigations then being conducted by law enforcement agents of the United States were thwarted and ultimately terminated.” He was not convicted of this charge.
Article 17 was a “catch-all” (or aggregated or omnibus) provision, joining together the other charges, also summarizing the judge’s judicial duties, including being “required to enforce and obey the Constitution and laws of the United States, to uphold the integrity of the judiciary, to avoid impropriety and the appearance of impropriety, and to perform the duties of his office impartially.” The judge’s misconduct served to “undermine confidence in the integrity and impartiality of the judiciary and betray the trust of the people of the United States, thereby bringing disrepute on the Federal courts and the administration of justice by the Federal courts.” He was not convicted of this charge. See also H. Rep. 100-810 (1988), Impeachment of Alcee L. Hastings, Report of the Committee on the Judiciary to accompany H.R. Res. 499, 100th Cong.
265. Nixon v. United States, 506 U.S., 224, 226–7 (1993).
266. Nixon v. United States, 506 U.S., 226; see H. Rep. 101-36, at 13 (1989).
267. Nixon v. United States, 506 U.S., 224, 231 (1993). The chief justice added proof that the Founding Fathers’ intent and words had not been altered by polishing work on the Constitution by the Committee of Style (which also polished the Impeachment Clause). Rehnquist explained that the Constitutional Convention’s Committee of Style, in adding “sole,” had no authority to alter the meaning of the clause, and captured what the framers meant, as a legal presumption. In fact, the chief justice continued, the Constitutional Convention voted on and accepted the Committee of Style’s version that had polished the document.
268. Nixon v. United States, 506 U.S., 236. The impeachment charges against Judge Nixon alleged specific lies to a grand jury in a criminal matter, making the judge “guilty of an impeachable offense” for which “he should be removed from office.” Judge Nixon was convicted on Articles 1 and 2. Judge Nixon’s underlying conviction involved his ties to a businessman whose son benefited from the district attorney’s dismissal of charges for drug smuggling. Judge Nixon tried to obtain a $150,000 bribe, and lied about it. Lewis, Neil A. “Senate Convicts U.S. Judge, Removing Him from Bench,” The New York Times, November 4, 1989.
Article 3 against Judge Nixon alleged the same underlying facts, raising “substantial doubt as to his judicial integrity, undermined confidence in the integrity and impartiality of the judiciary, betrayed the trust of the people of the United States and brought disrepute on the Federal Courts and administration of justice by the Federal Courts.” There was no conviction on the general Article 3. Judge Nixon had been convicted in a criminal case for the perjury to the grand jury, then received the impeachment and conviction described above, in 1989, for his behavior, including making false statements to the grand jury about whether he had discussed a criminal case with the prosecutor and attempted to influence the case, as well as for concealing such matters from federal investigators.
Doyle, 22, citing Cong. Record 27101-104 (1989); Cole and Garvey, 14, citing Impeachment of Walter L. Nixon, Jr., H. Rep. 101-136, at 1–2 (1989), and House Practice, ch. 27, §4.
269. Nixon v. United States, 506 U.S., 228. Nixon v. United States also had an immediate effect on the appeal of Judge Hastings. The Nixon decision compelled dismissal of Hastings’ appeal, which had met with success at the trial court level. Bazan, 11–12.
270. Brown, 92.
271. Brown, 92–97. The court in the Paula Jones case ruled, after the president’s deposition, that the Lewinsky relationship was not essential to the core of the Jones case. Brown, 96.
272. The Washington Post website: http://www.washingtonpost.com/wp-srv/politics/special/clinton/stories/mltestimony.htm (accessed July 4, 2017); Fernandez, 37.
273. Fernandez, 38.
274. Brown, 96.
275. Fernandez, 43.
276. Fernandez, 43–44; Brown, 97.
277. Brown, 97; Fernandez, 43; Office of Independent Counsel, Communication from Kenneth W Starr, Independent Counsel Transmitting a Referral to the U.S. House of Representatives in Conformity with the Requirements of Title 28, USC, Sec. 595c, Committee on the Judiciary, U.S. House of Representatives, 105th Congress, 2d Session, House document 105310 1998 U.S. Government Printing Office. See also Brown, 97; Fernandez, 43.
278. Brown, 100–101.
279. Brown, 108.
280. Brown, Appendix V1, 157–59, citing Impeachment of William Jefferson Clinton, H. Rep. 105-830, at 2, 4 (1988).
281. Fernandez, 99.
282. The Minority argued that, even if the misconduct (which focused on the president’s lying under oath—perjury—and subornation of perjury, as he covered up an extra-marital affair) was a crime, it was not impeachable. The Minority report argued that, even if the criminal law violations were true, breaking the law to conceal a personal relationship did not amount to what they claimed was “an abuse of official power which is an historically rooted prerequisite for impeaching a President.” See Bazan, Overview of Constitutional Provisions,” 25 and accompanying footnotes. Breaking the law—or actions falling short of law-breaking—outside official duties, may be actionable in impeachment. See for example, Judges Clairborne, Nixon, Kent and Pickering cases.
283. The Majority staff report was adamant that the constitutional standard for impeachable offenses is the same for federal judges, as it is for all other civil officers, concluding that personal and professional misconduct may be involved and that impeachable offenses need not be federal or state crimes. The House rejected the Minority approach (regarding the lying, perjury issue as nonactionable personal misconduct), leading the way for future use of claims of “dishonesty” and violations of duty as measured by the particular responsibilities and duties of the job, against sitting presidents, enhanced by prior precedent from the Judge Claiborne and Judge Nixon cases (involving impeachment, perjury, and false statements unrelated to their official duties) that judicial cases were applicable.
In the Clinton impeachment process, the House of Representatives and their impeachment managers made full use, in the Senate trial, of judicial impeachments, viewing those judicial impeachment activities as comparable, important, usable, and valid in evaluating the conduct of a president of the United States.
“The House of Representatives impeached President Clinton for (1) providing perjurious and misleading testimony to a federal grand jury and (2) obstruction of justice in regards to a civil rights action against him. The House Judiciary Committee report that recommended articles of impeachment argued that perjury by the President was an impeachable offense, even if committed with regard to matters outside his official duties. The report rejected the notion that conduct such as perjury was ‘more detrimental when committed by judges and therefore only impeachable when committed by judges.’
“The report pointed to the impeachment of Judge Claiborne, who was impeached and convicted for falsifying his income tax returns—an act which ‘betrayed the trust of the people of the United States and reduced confidence in the integrity and impartiality of the judiciary.’ While it is ‘devastating’ for the judiciary when judges are perceived as dishonest, the report argued, perjury by the President was ‘just as devastating to our system of government.’ In addition, the report continued, both Judge Claiborne and Judge Nixon were impeached and convicted for perjury and false statements in matters distinct from their official duties. Likewise, the report noted the President’s perjurious conduct, though seemingly falling outside of his official duties, nonetheless constituted grounds for impeachment.”
Cole and Garvey, 10–11, citing Impeachment of William Jefferson Clinton, H. Rep. 105-830, at 108, 110, 112, 113, 118, 119, and 132 (1988), Cong. Rec. S15, 760–62 (daily ed., October 9, 1986). “The Majority Staff endorsed the conclusion that the same constitutional standards should apply to both judicial and other civil officers, including the President.” Brown, 104; see generally Committee on the Judiciary, Constitutional Grounds for Presidential Impeachment, Report of the Staff of the Impeachment Inquiry, U.S. House of Representatives, 105th Cong. 2d sess. (1998).
284. Cole and Garvey, 10–11, n. 81–84. citing Impeachment of William Jefferson Clinton, H.R Rep. 105–830, sess. of 1998, 108, 112, 113, 118, and 132 Cong. Rec. S15, 760–62 (daily ed., October. 9, 1986) (quotation marks omitted). House Impeachment Resolution with respect to William Jefferson Clinton H.R. 611, 105th Cong. Congress now has a long history of reliance on the 1974 staff report, post–Clinton impeachment, and its many key, controlling concepts, adopting the modern practice of use of judicial impeachment cases as precedent in a presidential impeachment.
285. Brown, 104–05, n. 89–90.
286. Ibid. “The House of Representatives impeached President Clinton for (1) providing perjurious and misleading testimony to a federal grand jury and (2) obstruction of justice in regard to a civil rights action against him. The House Judiciary Committee report that recommended articles of impeachment argued that perjury by the president was an impeachable offense, even if committed with regard to matters outside his official duties. The report rejected the notion that conduct such as perjury was “more detrimental when committed by judges and therefore only impeachable when committed by judges.
“The report pointed to the impeachment of Judge Claiborne, who was impeached and convicted for falsifying his income tax returns—an act that “betrayed the trust of the people of the United States and reduced confidence in the integrity and impartiality of the judiciary.” While it is “devastating” for the judiciary when judges are perceived as dishonest, the report argued, perjury by the president was “just as devastating to our system of government.” In addition, the report continued, both Judge Claiborne and Judge Nixon were impeached and convicted for perjury and false statements in matters distinct from their official duties. Likewise, the report noted the president’s perjurious conduct, though seemingly falling outside of his official duties, nonetheless constituted grounds for impeachment.”
Cole and Garvey, 10–11, citing Impeachment of William Jefferson Clinton, H. Rep. 105-830, at 108–19 and 132 (1998), Cong. Rec. S15, 760-62 (daily ed. October 9, 1986) (quotation marks omitted).
Impeachment covers much more than large-scale abuses commensurate with the intent and heavy evidentiary proof requirements of treason and bribery, as the history of American impeachment demonstrates in practice, as well as in the storied history of the colonists incorporating British impeachment concepts.
The concept of high Crimes and Misdemeanors encompasses a wide variety of conduct because the focus is on the harm caused by a public official, and not the person’s intent; even great treachery and clear bribe-taking cases (Confederacy judge West Humphreys and appointer-of-friend-to-lucrative-position-for-big-bucks Secretary of War Belknap) are not charged as such in U.S. impeachments. Congress wisely choses to consider the offenses as belonging to “high Crimes and Misdemeanors.”
Certainly many people argue whether the Clinton facts supported an impeachment charge, for example, whether the lies involved were “material” so as to even rise to the level of “perjury” in ordinary, prosecutorial discretion; but perjury—and other forms of personal and official misconduct—have indeed served as a legal basis for impeachments other than that of president Clinton. The key factor is not the claimed offense or intent; rather, the harm to society is the paramount consideration.
287. Ibid. H.R. 611, 106th Cong.
288. The words “manifest injury” did appear in the impeachment articles against President Clinton.
289. Brown, 102.
290. Alexander Hamilton wrote of division of power between the House, holding the power to “accuse,” and the Senate with power to judge the case. He justified and explained his faith in Congress and why the framers of the Constitution placed all impeachment powers in Congress; he believed the House and Senate best suited for impeachment responsibilities.
For defending the use of a legislative body for divided rights of accusing to the House and judging to the Senate, see Federalist 66, par. 2. In Federalist 66, Hamilton continues to acknowledge the objection that this division places much power in the Senate, but finds the objection too imprecise; and he continues his justifications for his confidence in the Senate, emphasizing the duration of senators’ terms, and the balance of other powers into the House; for example, the House has exclusive power for origination of money bills and the sole power to institute impeachment. Federalist 66, pars. 4–7. In Federalist 65, par. 7, he previously recognized the “awful discretion” lying with the Senate in impeachment, which forbids trusting impeachment power to a “small number of persons.”
As with many cases, particularly those of Judge Peck, Justice Chase, and President Johnson, the ultimate responsibility fell to the Senate, where the question would necessarily involve substantiality of effect on society of the charges; in certain cases, the impact is insufficient and the Senate can choose, by acquittal, not to exercise their power to remove.
291. Fernandez, 78. This House approach, in retrospect, seems akin to an apology for not considering the key factor of “substantiality” of effect, as expressed in the 1974 staff report. Yet, the House willingness to impeach, and thereby overlook the lack of substantial effect of President Clinton’s conduct was countered by the end result by the Senate, where the vote never came close to two-thirds. This is the result predicted by Alexander Hamilton in his writings, in Federalist 65, describing a divided process, and Federalist 66 explaining the House possesses the “the right of accusing” while lauding the ability of the Senate to come to a more deliberative solution than the House or any other body. In Federalist 65, paragraphs 8 and 9, Hamilton addresses the reasoning for not utilizing the Supreme Court, or some other entity, for the trial, while still obtaining the benefits of union with the Supreme Court by using the chief justice of the Supreme Court to preside over the court of impeachment. The Senate, clearly, holds the right of judging and the House holds the right to accuse. Federalist 66, par. 2.
292. Brown, 107.
293. Procedurally, members of the president’s party (Democrats) on the House Judiciary Committee had argued against prolonged hearings, but political results intervened, as the Democrats gained five House seats in the November 3, 1998 elections. The tables turned and Republicans urged a faster process; the Republican Chairman Hyde committed to end hearings by the end of 1998, preventing any material witnesses from testifying and causing use of eighty-one written questions to the president. Fernandez, 76–77.
294. Fernandez, 76–77.
295. House managers began with a fact presentation on January 15, 1999, and closed with arguments on January 16, followed by the president’s counsel presenting defense and closing statements.
Senators used written questions to the parties in a question-and-answer session. The Senate voted to make the deliberations closed to the public. On January 27, 1999, the Senate voted 56–44 to not dismiss charges; therefore, the trial went on. The number of witnesses was limited, and witnesses did not appear live but rather by video depositions. See generally Fernandez, 85–97.
296. Kent eventually confessed to the assaults in connection with his plea to obstruction of justice, having lied and falsely claimed that any sexual activity was consensual. House report-recommended articles of impeachment alleged and marshalled proof that, between 2003 and 2007, then-Judge Kent repeatedly sexually assaulted his employees and then repeatedly lied about his conduct after the women reported it (to the Fifth Circuit, the FBI agents investigating, and the Department of Justice). See H. Rep. 111-159 (2009), H.R. 520, 111th Cong.
297. H. Rep. 111-159 (2009)—Impeachment of Judge Samuel B. Kent: www.gpo.gov/fdsys/pkg/CRPT-111hrpt159/html/CRPT-111hrpt159.htm.
298. H. Rep. 111-159, at sec. IV (2009) citing Transcript of Sentencing, United States v. Kent (U.S. So. Dist. Tex. Houston Div.), May 11, 2009.
299. Ibid. at note 14. Transcript of Sentencing, United States v. Kent, Crim. No. 4:08CR0596-RV (U.S. So. Dist. Tex., Houston Div.), May 11, 2009.
300. At sentencing, the prosecutor explained that Judge Kent didn’t just lie, he confessed to one of the victims that he had denied her allegations and sent a clear message to his victim that she must also repeat the lie. H.Rep 111-159 (June 17, 2009), sec. IV, n. 9. Citing Transcript of Sentencing, United States v. Kent (U.S. So. Dist. Tex. Houston Div.), May 11, 2009.
301. H. Rep. 111-159, at sec. IV.B, n. 7 (2009), Order of Reprimand and Reasons, in re Complaint of Judicial Misconduct against U.S. D. Judge Samuel B. Kent, Judicial Council of the Fifth Circuit, September 28, 2007.
302. Kent asked for meetings with the FBI and other law enforcement and lied to them in December 2007. Prior to the first indictment in August 2008, Judge Kent, through his lawyers, asked for and received a meeting with major players at Main Justice Headquarters. Kent proceeded to lie to the trial team, to the FBI agents present, to the chief of the Public Integrity Section, and to the acting assistant attorney general. For example, then-Judge Kent said that any attempt to characterize his conduct with the deputy clerk as nonconsensual was “absolutely nonsense.” H. Rep. 111-159, at sec. IV.B (2009).
303. H. Rep. 111-159, at sec. IV.D. and E. (2009), citing Transcript of Sentencing, United States v. Kent (U.S. So. Dist. Tex. Houston Div.), May 11, 2009. Regarding procedural history, Kent’s sentencing and the Fifth Circuit’s recommendation of impeachment following conviction, see Bazan, Overview of Constitutional Provisions, 5–6, n. 25–31.
304. H.R. Rep 111–59, sess. of 2009, sec. IV.E.
305. Paschenko, Chris, “U.S. House approves Kent Impeachment.” Houston Chronicle, June 20, 2009; Bazan, Overview of Constitutional Provisions, 5–6. See also H.R. 520, 111th Cong.
306. See generally Bazan, Overview of Constitutional Provisions, 5–6; H.R. 520, 111th Cong.; H.R. Rep 111–159, sess. of 2009 at V.E.; on May 12, 2009, Congressmen John Conyers, Jr., and James Sensenbrenner introduced Impeachment Resolutions, H.R. Res. 424, 111th Cong, and H.R. Res. 431, 111th Cong.
307. The House Task Force took expert testimony from Professor Arthur D. Hellman on the origin of “high Crimes and Misdemeanors,” and the importance of English law Historian Richard Wooddeson. Hellman explained that Judge Kent’s conduct fit within two broad, overlapping impeachment categories: “serious abuses of power” and “conduct that demonstrates that an official is unworthy to fill the office that he holds.” H. Rep. 111-159, at sec. V.B.4 (2009).
308. Witness testimony provided more details of assaults, including the last sexual assault on March 23, 2007, where the witness said she left in tears, was asked by a security officer if Judge Kent had “tried to hit on me,” and indicated “yes.” H.R. Rep 111-159, at sec. V.B. (2009).
309. H. Rep. 111-159, at V.B. (2009).
310. Ibid.
311. The Congressional Research Service cites the Congressional Record in stating that the House agreed to each of the four articles of impeachment, by unanimous consent, in separate votes. Bazan, Summary of Impeachment, 4, n. 15, citing 155 Cong. Rec. H7066-7067 (daily ed., June 19, 2009). See also H. Rep. 111-159 (2009)—Impeachment of Judge Samuel B. Kent: www.gpo.gov/fdsys/pkg/CRPT-111hrpt159/html/CRPT-111hrpt159.htm.
An interesting historical footnote to the Kent impeachment involves former Judge Hastings, removed from office by impeachment but not barred from future office-holding. Alcee Hastings, elected to the U.S. Congress, sat in the House during the impeachment of Judge Samuel Kent. Gamboa, Susan, “House Impeaches Federal Judge from Texas,” Houston Chronicle, June 19, 2009.
312. See H.R. 520, 111th Cong., and Bazan, Summary of Impeachment, 4–5.
313. Olsen, Lise, “Judge Kent resigns amid impeachment proceeding,” Houston Chronicle, June 25, 2009; Paschenko, Houston Chronicle, June 20, 2009; Gamboa, Susan, “House Impeaches Federal Judge from Texas,” Houston Chronicle, June 19, 2009. Judge Kent handed a “letter of resignation, effective June 30, 2009, to Senate officials who served a summons on him to appear in connection with ongoing Congressional impeachment proceedings. The Senate agreed to the dismissal of the articles of impeachment against former Judge Kent on July 22, 2009. Bazan, Overview of Constitutional Provisions, 6. Congressman Jim Sensenbrenner, R-Wisconsin, who served as one of the House managers, spoke to the Houston Chronicle of the resignation letter: “Kent’s realization that we would not allow him to take advantage of the system proves that the system works and justice has been served. I hope the process reminds other judges that they are not above the laws they took an oath to uphold. I hope the women Mr. Kent assaulted will find some closure that he is behind bars and no longer being able to serve on the bench or collect a taxpayer funded paycheck. Olsen, Houston Chronicle, June 25, 2009. See also H. Rep. 111-159, at 111 (2009)
314. Nixon v. United States, 506 U.S., 224 (1993).
315. See H. R.Rep. 111-159 (2009), H.R. 520, 111th Cong. See Bazan, Overview of Constitutional Provisions, 5–6 for much procedural detail on Judge Kent; Tennissen, Marilyn, “Fifth Circuit Denies Kent’s Disability Status, Recommends Impeachment,” Southeast Texas Record, May 28, 2009; Witherspoon, Tommy, “Rep. Flores: Judge’s Punishment Did Not Fit the Crime,” Waco Tribune-Herald, January 22, 2016 (referring to sexual assaults by U.S. District Judge Walter S. Smith, reprimanded, and Rep. Bill Flores’s intentions to explore impeachment of Judge Smith; Olsen, Houston Chronicle, June 25, 2009; Paschenko, Houston Chronicle, June 20, 2009; Gamboa, Houston Chronicle, June 19, 2009.
The House impeachment was by no means based on the criminal conviction. H. Rep. 111-159 (2009). The House performed its own investigation, and cited devastating statements from the victims, contained within H. Rep. 111-159 (2009), as, for example, a June 2009 victim statement specifically describing sexual assaults and the judge’s response that even security who might hear would do nothing, since everyone feared the judge. Three of the four articles received unanimous consent; the fourth was unanimous with the exception of one “present.”
The lead House manager, Adam Schiff, D-California, said, “Judge Kent’s conduct undermined the institution of the judiciary and the public’s confidence…Regrettably, impeachment was necessary to secure his removal from office, but I believe his resignation, when accepted will obviate the need to put his victims through any further ordeal.” Olsen, Houston Chronicle, June 25, 2009.
316. H. Rep. 111-159 (2009).
317. H.R. 520, 111th Cong. (citing H. Rep. 101-36 (1989), Impeachment of Walter L. Nixon Jr. Report of the Committee on the Judiciary to Accompany H.R. Res. 87, 101st Cong,), p. 5; and H. Rep. No. 100-810 (1988), Impeachment of Alcee L. Hastings, Report of the Committee on the Judiciary to accompany H.R. 499, 100th Cong., 6. The “Brief Discussion of Impeachment” then concluded by reemphasizing, again recognizing the criminal nature of Judge Kent’s misconduct, that “…the principles that underpin the propriety of impeachment do not require the conduct of issue be criminal in nature, or that there have been a criminal prosecution.” Ibid.
318. Article 1:
• Alleged that Judge Porteous, beginning as a state judge and while a federal judge, engaged in a corrupt pattern of conduct. As a federal judge he “engaged in a pattern of conduct incompatible with the trust and confidence placed in him” when he denied a motion to recuse himself in a case where he had a “corrupt financial relationship with the law firm representing one of the parties.” Against canons of judicial ethics, the article alleged, he failed to disclose that he had engaged in a corrupt scheme with two lawyers in that firm beginning while he was a state court judge in the late 1980s.
• Alleged the judge made misleading statements in the recusal hearing, “depriving the higher court of critical information” for its review involving Judge Porteous’s denial of recusal, “depriving the parties and the public of the right to the honest services of his office.”
• Alleged he solicited and accepted things of value from those attorneys while the case was pending before him, and, without disclosing this, ruled in favor of those attorneys’ client.
• By virtue of the “corrupt relationship” and his conduct as a federal judge, Judge Porteous
• Brought his court” into scandal and disrepute,
• Prejudiced public respect for, and confidence in, the federal judiciary, and
• Demonstrated that he was unfit for the office of federal judge.
For this conduct, Article 1 then declared that Judge Porteous was “guilty of high crimes and misdemeanors and should be removed from office.”
Article 2:
• Alleged the judge, both as a state court judge and as a federal judge, engaged in a “longstanding pattern of corrupt conduct that demonstrates his unfitness to serve as a U.S. district court judge, by engaging in a corrupt relationship with a bail bondsman and his sister, soliciting and accepting numerous things of value from them while taking official actions that benefitted them and using the power and prestige of his office to assist their business.”
• Alleged the judge knew the bail bondsman made false statements to the FBI in an effort to assist the judge in being appointed to the federal bench.
Article 2 then generally declared that the judge engaged in conduct so utterly lacking in honesty and integrity that he is guilty of high crimes and misdemeanors, is unfit to hold the office of federal judge, and should be removed from office.
Article 3 alleged perjury in connection with the judge’s personal bankruptcy filing, “and by repeatedly violating a court order in his bankruptcy case, thereby bringing his court into scandal and disrepute, prejudicing public respect for and confidence in the federal judiciary, and demonstrating that he is unfit for the office of federal judge.”
Article 3 then generally declared that the judge was guilty of high crimes and misdemeanors and should be removed from office. Article 4 alleged that:
• Prior to his appointment, and in connection with his nomination to be a U.S. district court judge, Judge Porteous “knowingly made material false statements about his past to both the United States Senate and to the FBI” in order to obtain his office;
• Failed to disclose the corrupt relationships with the law firm and the bail bondsman described in the first two articles or to disclose his knowledge that such bail bondsman had given false statements to the FBI in an effort to assist the judge in being appointed to the federal bench;
• Deprived the United States Senate and the public of information that would have had a material impact on his confirmation.
Article 4 then generally declared that the judge was guilty of high crimes and misdemeanors and should be removed from office.
Bazan, Overview of Constitutional Provisions, 1–2, n. 1–2. Judge Porteous was convicted on all four of the quoted articles, covering the described variety of financial, corruption, and other abuses.
319. Bazan, Overview of Constitutional Provisions,” 2–6, 27–28.
320. See Bazan, Summary of Impeachment, 28; n. 1–3; Bazan, Overview of Constitutional Provisions, 1–6. The impeachment investigation of Judge Porteous began in 2008; he was impeached on March 11, 2010, and he was convicted on December 8, 2010 on each of the four articles of impeachment. The vote on Article 1: 96–0; on Article 2: 69–27; on Article 3: 88–8; and on Article 4: 90–6. He was therefore removed from office and in an unusual additional judgment (94–2), the Senate voted to disqualify Judge Porteous from holding any future federal office. Porteous therefore joined two other judges impeached in the House and convicted in the Senate (and therefore removed from office) and also disqualified by separate Senate vote from holding any future federal office. Bazan, Overview of Constitutional Provisions, 5.
321. The Congressional Research Service explains:
“Judge G. Thomas Porteous was the first person to have been impeached by the House and convicted by the Senate based, in part, upon conduct occurring before he began his tenure in his federal office…The allegations in article IV involve entirely pre-federal conduct, albeit conduct directly related to his appointment to the federal bench. Article III alleged personal misconduct in connection with his Chapter 13 bankruptcy case.” Bazan, Overview of Constitutional Provisions, 28.
322. In addition to convicting Porteous, the Senate voted 94–2 to disqualify him from holding any future federal office. Porteous therefore joined two other impeached, convicted Judges (Humphreys and Archbald) removed from office, who were also disqualified by separate Senate vote from holding future federal office. See Bazan, Overview of Constitutional Provisions, 5, 28.
323. Chief Justice Rehnquist recognized that the preparation and spotlight of the Nixon Watergate impeachment produced “much reasoned discussion, both within and without the [Judiciary] Committee, as to the nature of Impeachment.” Rehnquist, 274.
324. Chief Justice Rehnquist prefaced his history book on impeachments by quoting the Constitution’s Impeachment Clause, including “other high Crimes and Misdemeanors,” noting:
“The framers were sufficiently practical to know that no charter of government could possibly anticipate every future contingency, and they therefore left considerable room for ‘play in the joints.’ Nor did they try to foresee exactly how each of the many powers and checks and balances they conferred and established would work out in particular situations. That was of necessity left to future generations.” Rehnquist,10.
325. Simpson, 192–94; Brown, 39–41, including 40 acknowledging Pickering’s incapacity to serve as a judge; Berger, 183–84 regarding evidence of Pickering’s incapacity. The concept of injury to the United States—regardless of intent or crime—as the main factor for impeachability was demonstrated in the first impeachment conviction: Judge Pickering’s for conduct “degrading to the honor and dignity of the United States.” See charges against Judge Pickering for “high Crimes and Misdemeanors,” and accounts of the conduct of the trial; the House pled both intentional acts—unprovable in this case—as well as “other high misdemeanors…degrading to the honor and dignity of the United States.” Simpson, 192–94. The Senate convicted Judge Pickering.
The Clinton presidential impeachment also pled injury to the United States in charging “high Crimes and Misdemeanors”: The Clinton impeachment included allegations that the president “has undermined the integrity of his office, has brought disrepute on the Presidency, has betrayed his trust as President, and has acted in a manner subversive of the rule of law and justice, to the manifest injury of the people of the United States.” Impeachment of William Jefferson Clinton, H. Rep. 105-830, at 2,4 (1998). The Senate acquitted President Clinton.