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Impeachment Powers
The following government article provides useful information
regarding impeachment:
[Deschler's Precedents] [From the U.S. Government Printing Office via
GPO Access] [DOCID:52093c14_txt-4]
[Page 1955-2015]
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=deschler_precedents&docid=52093c14_txt-4.txt
CHAPTER 14
Impeachment Powers
A. GENERALLY
Sec. 3. Grounds for Impeachment; Form of Articles
Article II, section 4 of the U.S. Constitution defines the grounds
for impeachment and conviction as ``treason, bribery, or other high
crimes and misdemeanors.'' A further provision of the Constitution which
has been construed to bear upon the impeachment of federal judges is
article III, section 1, which provides that judges of the supreme and
inferior courts ``shall hold their offices during good behaviour.'' When
the House determines that grounds for impeachment exist, and they are
adopted by the House, they are presented to the Senate in ``articles''
of impeachment.<SUP>(20)</SUP> Any one of the articles may provide a
sufficient basis or ground for impeachment. The impeachment in 1936 of
Halsted L. Ritter, a U.S. District Court Judge, was based on seven
articles of impeachment as amended by the House. The first six articles
charged him with several instances of judicial misconduct, including
champerty, corrupt practices, violations of the Judicial Code, and
violations of criminal law. Article VII charged actions and conduct,
including a restatement of some of the charges con
[[Page 1956]]
tained in the preceding articles, ``the reasonable and probable
consequence'' of which was ``to bring his court into scandal and
disrepute,'' to the prejudice of his court, of public confidence in his
court, and of public respect for and confidence in the federal
judiciary.<SUP>(1)</SUP> However, in the Senate, Judge Ritter was
convicted only on the seventh article. The respondent had moved, before
commencement of trial, to strike article I, or in the alternative to
require election as to articles I and II, on the ground that the
articles duplicated the same offenses, but the presiding officer
overruled the motion and his decision was not challenged in the Senate.
The respondent also moved to strike article VII, the ``general''
article, on the ground that it improperly cumulated and duplicated
offenses already stated in the preceding articles, but this motion was
rejected by the Senate.<SUP>(2)</SUP>
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20. Jefferson's Manual states that: [B]y the usage of Parliament, in
impeachment for writing or speaking, the particular words need not be
specified in the accusation. House Rules and Manual (Jefferson's Manual)
Sec. 609 (1973). 1. See Sec. 3.2, infra. 2. See Sec. 3.4, infra.
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At the conclusion of the Ritter trial, and following conviction only
on article VII, a point of order was raised against the vote in that the
article combined the grounds that were alleged for impeachment. The
President pro tempore overruled the point of order.<SUP>(3)</SUP>
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3. See Sec. 3.5, infra.
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The various grounds for impeachment and the form of impeachment
articles have been documented during recent investigations. Following
the inquiry into charges against President Nixon, the Committee on the
Judiciary reported to the House a report recommending impeachment, which
report included the text of a resolution and articles impeaching the
President.<SUP>(4)</SUP> As indicated by the articles, and by the
conclusions of the report as to the specific articles, the Committee on
the Judiciary determined that the grounds for Presidential impeachment
need not be indictable or criminal; articles II and III impeached the
President for a course of conduct constituting an abuse of power and for
failure to comply with subpenas issued by the committee during the
impeachment inquiry.<SUP>(5)</SUP> The committee also concluded that an
article of impeachment could cumulate charges and facts constituting a
course of conduct, as in article II.<SUP>(6)</SUP>
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4. See Sec. 3.1, infra. 5. See Sec. 3.7, infra, for the majority views
and Sec. 3.8, infra, for the minority views on the articles of
impeachment. 6. See Sec. 3.3, infra, for the majority and minority views
on article II. In its final report the Committee on the Judiciary cited
a staff report by the impeachment inquiry staff on the grounds for
presidential impeachment, prepared before the committee had proceeded to
compile all the evidence and before the committee had proceeded to
consider a resolution and articles of impeachment. While the report and
its conclusions were not intended to represent the views of the
committee or of its individual members, the report is printed in part in
the appendix to this chapter as a synopsis of the history, origins, and
concepts of the impeachment process and of the grounds for impeachment.
See Sec. 3.6, infra, and appendix, infra.
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[[Page 1957]]
The grounds for impeachment of federal judges were scrutinized in
1970, in the inquiry into the conduct of Associate Justice Douglas of
the Supreme Court. Concepts of impeachment were debated on the floor of
the House, as to the ascertainability of the definition of an
impeachable offense, and as to whether a federal judge could be
impeached for conduct not related to the performance of his judicial
function or for judicial conduct not criminal in nature.<SUP>(7)</SUP>
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7. See Sec. Sec. 3.9-3.12, infra.
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A special subcommittee of the Committee on the Judiciary was created
to investigate and report on the charges of impeachment against Justice
Douglas, and submitted to the committee a final report recommending
against impeachment, finding the evidence insufficient. The report
concluded that a federal judge could be impeached for judicial conduct
which is either criminal or a serious abuse of public duty, or for
nonjudicial conduct which is criminal.<SUP>(8)</SUP>
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8. See Sec. 3.13, infra.
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Cross References Amendments to articles adopted by the House, see
Sec. 10, infra. Charges not resulting in impeachment, see Sec. 14,
infra. Grounds for conviction in the Ritter impeachment trial, see Sec.
18, infra.
Collateral Reference Articles of Impeachment Voted by the House of
Representatives, see Impeachment, Selected Materials, Committee on the
Judiciary, H. Doc. No. 93-7, 93d Cong. 1st Sess., Oct. 1973.
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Form of Resolution and Articles of Impeachment
Sec. 3.1 Articles of impeachment are reported from the Committee on
the Judiciary in the form of a resolution.
On Aug. 20, 1974,<SUP>(9)</SUP> the Committee on the Judiciary
submitted to the House a report on its inves
[[Page 1958]]
tigation into charges of impeachable offenses against President
Richard Nixon. The committee included in the text of the report a
resolution and articles of impeachment which had been adopted by the
committee:
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9. H. Rept. No. 93-1305, Committee on the Judiciary, printed in the
Record at 120 Cong. Rec. 29219, 29220, 93d Cong. 2d Sess., Aug. 20,
1974. For complete text of H. Rept. No. 93-1305, see id. at pp.
29219-361.
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Impeaching Richard M. Nixon, President of the United States, of high
crimes and misdemeanors. Resolved, That Richard M. Nixon, President of
the United States, is impeached for high crimes and misdemeanors, and
that the following articles of impeachment be exhibited to the Senate:
Articles of impeachment exhibited by the House of Representatives of the
United States of America in the name of itself and of all of the people
of the United States of America, against Richard M. Nixon, President of
the United States of America, in maintenance and support of its
impeachment against him for high crimes and misdemeanors.
Article I
In his conduct of the office of President of the United States,
Richard M. Nixon, in violation of his constitutional oath faithfully to
execute the office of President of the United States and, to the best of
his ability, preserve, protect, and defend the Constitution of the
United States, and in violation of his constitutional duty to take care
that the laws be faithfully executed, has prevented, obstructed, and
impeded the administration of justice, in that: On June 17, 1972, and
prior thereto, agents of the Committee for the Reelection of the
President committed unlawful entry of the headquarters of the Democratic
National Committee in Washington, District of Columbia, for the purpose
of securing political intelligence. Subsequent thereto, Richard M.
Nixon, using the powers of his high office, engaged personally and
through his subordinates and agents, in a course of conduct or plan
designed to delay, impede, and obstruct the investigation of such
unlawful entry; to cover up, conceal and protect those responsible; and
to conceal the existence and scope of other unlawful covert activities.
The means used to implement this course of conduct or plan included one
or more of the following:
(1) making or causing to be made false or misleading statements to
lawfully authorized investigative officers and employees of the United
States; (2) withholding relevant and material evidence or information
from lawfully authorized investigative officers and employees of the
United States; (3) approving, condoning, acquiescing in, and counseling
witnesses with respect to the giving of false or misleading statements
to lawfully authorized investigative officers and employees of the
United States and false or misleading testimony in duly instituted
judicial and congressional proceedings; (4) interfering or endeavoring
to interfere with the conduct of investigations by the Department of
Justice of the United States, the Federal Bureau of Investigation, the
Office of Watergate Special Prosecution Force, and Congressional
Committees; (5) approving, condoning, and acquiescing in, the
surreptitious payment of substantial sums of money for the purpose of
obtaining the silence or influencing the testimony of
[[Page 1959]]
witnesses, potential witnesses or individuals who participated in
such unlawful entry and other illegal activities; (6) endeavoring to
misuse the Central Intelligence Agency, an agency of the United States;
(7) disseminating information received from officers of the Department
of Justice of the United States to subjects of investigations conducted
by lawfully authorized investigative officers and employees of the
United States, for the purpose of aiding and assisting such subjects in
their attempts to avoid criminal liability; (8) making false or
misleading public statements for the purpose of deceiving the people of
the United States into believing that a thorough and complete
investigation had been conducted with respect to allegations of
misconduct on the part of personnel of the executive branch of the
United States and personnel of the Committee for the Re-election of the
President, and that there was no involvement of such personnel in such
misconduct; or (9) endeavoring to cause prospective defendants, and
individuals duly tried and convicted, to expect favored treatment and
consideration in return for their silence or false testimony, or
rewarding individuals for their silence or false testimony.
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 law and justice and to the manifest
injury of the people of the United States. Wherefore Richard M. Nixon,
by such conduct, warrants impeachment and trial, and removal from
office.
Article II
Using the powers of the office of President of the United States,
Richard M. Nixon, in violation of his constitutional oath faithfully to
execute the office of President of the United States and, to the best of
his ability, preserve, protect, and defend the Constitution of the
United States, and in disregard of his constitutional duty to take care
that the laws be faithfully executed, has repeatedly engaged in conduct
violating the constitutional rights of citizens, impairing the due and
proper administration of justice and the conduct of lawful inquiries, or
contravening the laws governing agencies of the executive branch and the
purposes of these agencies. This conduct has included one or more of the
following:
(1) He has, acting personally and through his subordinates and
agents, endeavored to obtain from the Internal Revenue Service, in
violation of the constitutional rights of citizens, confidential
information contained in income tax returns for purposes not authorized
by law, and to cause, in violation of the constitutional rights of
citizens, income tax audits or other income tax investigations to be
initiated or conducted in a discriminatory manner. (2) He misused the
Federal Bureau of Investigation, the Secret Service, and other executive
personnel, in violation or disregard of the constitutional rights of
citizens, by directing or authorizing such agencies or personnel to
conduct or continue electronic surveillance or other investigations for
purposes unrelated to national security, the enforcement of laws, or any
other lawful function of his office; he did direct, authorize, or permit
the use of information obtained thereby for purposes unrelated to
national security, the enforcement of laws, or any other lawful function
of his office; and he did direct the concealment of
[[Page 1960]]
certain records made by the Federal Bureau of Investigation of
electronic surveillance. (3) He has, acting personally and through his
subordinates and agents, in violation or disregard of the constitutional
rights of citizens, authorized and permitted to be maintained a secret
investigative unit within the office of the President, financed in part
with money derived from campaign contributions, which unlawfully
utilized the resources of the Central Intelligence Agency, engaged in
covert and unlawful activities, and attempted to prejudice the
constitutional right of an accused to a fair trial. (4) He has failed to
take care that the laws were faithfully executed by failing to act when
he knew or had reason to know that his close subordinates endeavored to
impede and frustrate lawful inquiries by duly constituted executive,
judicial, and legislative entities concerning the unlawful entry into
the headquarters of the Democratic National Committee, and the cover-up
thereof, and concerning other unlawful activities, including those
relating to the confirmation of Richard Kleindienst as Attorney General
of the United States, the electronic surveillance of private citizens,
the break-in into the offices of Dr. Lewis Fielding, and the campaign
financing practices of the Committee to Reelect the President. (5) In
disregard of the rule of law, he knowingly misused the executive power
by interfering with agencies of the executive branch, including the
Federal Bureau of Investigation, the Criminal Division, and the Office
of Watergate Special Prosecution Force, of the Department of Justice,
and the Central Intelligence Agency, in violation of his duty to take
care that the laws be faithfully executed.
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 law and justice and to the manifest
injury of the people of the United States. Wherefore Richard M. Nixon,
by such conduct, warrants impeachment and trial, and removal from
office.
Article III
In his conduct of the office of President of the United States,
Richard M. Nixon, contrary to his oath faithfully to execute the office
of President of the United States and, to the best of his ability,
preserve, protect, and defend the Constitution of the United States, and
in violation of his constitutional duty to take care that the laws be
faithfully executed, has failed without lawful cause or excuse to
produce papers and things as directed by duly authorized subpoenas
issued by the Committee on the Judiciary of the House of Representatives
on April 11, 1974, May 15, 1974, May 30, 1974, and June 24, 1974, and
willfully disobeyed such subpoenas. The subpoenaed papers and things
were deemed necessary by the Committee in order to resolve by direct
evidence fundamental, factual questions relating to Presidential
direction, knowledge, or approval of actions demonstrated by other
evidence to be substantial grounds for impeachment of the President. In
refusing to produce these papers and things, Richard M. Nixon,
substituting his judgment as to what materials were necessary for the
inquiry, interposed the powers of the Presidency against the lawful
subpoenas of the House of Representatives, thereby assuming to himself
functions and judgments necessary to the exercise of the sole power of
impeachment vested by the Constitution in the House of Representatives.
[[Page 1961]]
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 law and justice, and to the manifest
injury of the people of the United States. Wherefore Richard M. Nixon,
by such conduct, warrants impeachment and trial, and removal from
office.
Sec. 3.2 Articles impeaching Judge Halsted L. Ritter were reported to
the House in two separate resolutions.
In March 1936, articles of impeachment against Judge Ritter were
reported to the House: <SUP>10</SUP>
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10. H. Res. 422, 80 Cong. Rec. 3066-68, 74th Cong. 2d Sess., Mar. 2,
1936 (Articles I-IV); H. Res. 471, 80 Cong. Rec. 4597-99, 74th Cong. 2d
Sess., Mar. 30, 1936 (amending Article III and adding new Articles
IV-VII).
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[H. Res. 422]
Resolved, That Halsted L. Ritter, who is a United States district
judge for the southern district of Florida, be impeached for
misbehavior, and for high crimes and misdemeanors; and that the evidence
heretofore taken by the subcommittee of the Committee on the Judiciary
of the House of Representatives under H. Res. 163 of the Seventy-third
Congress sustains articles of impeachment, which are hereinafter set
out; and that the said articles be, and they are hereby, adopted by the
House of Representatives, and that the same shall be exhibited to the
Senate in the following words and figures, to wit: Articles of
impeachment of the House of Representatives of the United States of
America in the name of themselves and of all of the people of the United
States of America against Halsted L. Ritter, who was appointed, duly
qualified, and commissioned to serve, during good behavior in office, as
United States district judge for the southern district of Florida, on
February 15, 1929.
Article I
That the said Halsted L. Ritter, having been nominated by the
President of the United States, confirmed by the Senate of the United
States, duly qualified and commissioned, and while acting as a United
States district judge for the southern district of Florida, was and is
guilty of misbehavior and of a high crime and misdemeanor in office in
manner and form as follows, to wit: On or about October 11, 1929, A. L.
Rankin (who had been a law partner of said judge immediately before said
judge's appointment as judge), as solicitor for the plaintiff, filed in
the court of the said Judge Ritter a certain foreclosure suit and
receivership proceeding, the same being styled ``Bert E. Holland and
others against Whitehall Building and Operating Company and others''
(Number 678-M-Eq.). On or about May 15, 1930, the said Judge Ritter
allowed the said Rankin an advance of $2,500 on his fee for his services
in said case. On or about July 2, 1930, the said Judge Ritter by letter
requested another judge of the United States district court for the
southern district of Florida, to wit, Honorable Alexander Akerman, to
fix and deter
[[Page 1962]]
mine the total allowance for the said Rankin for his services in said
case for the reason as stated by Judge Ritter in said letter, that the
said Rankin had formerly been the law partner of the said Judge Ritter,
and he did not feel that he should pass upon the total allowance made
said Rankin in that case and that if Judge Akerman would fix the
allowance it would relieve the writer, Judge Ritter, from any
embarrassment if thereafter any question should arise as to his, Judge
Ritter's, favoring said Rankin with an exorbitant fee. Thereafterward,
notwithstanding the said Judge Akerman, in compliance with Judge
Ritter's request, allowed the said Rankin a fee of $15,000 for his
services in said case, from which sum the said $2,500 theretofore
allowed the said Rankin by Judge Ritter as an advance on his fee was
deducted, the said Judge Ritter, well knowing that at his request
compensation had been fixed by Judge Akerman for the said Rankin's
services in said case, and notwithstanding the restraint of propriety
expressed in his said letter to Judge Akerman, and ignoring the danger
of embarrassment mentioned in said letter, did fix an additional and
exorbitant fee for the said Rankin in said case. On or about December
24, 1930, when the final decree in said case was signed, the said Judge
Ritter allowed the said Rankin, additional to the total allowance of
$15,000 theretofore allowed by Judge Akerman, a fee of $75,000 for his
services in said case, out of which allowance the said Judge Ritter
directly profited. On the same day, December 24, 1930, the receiver in
said case paid the said Rankin, as part of his said additional fee, the
sum of $25,000, and the said Rankin on the same day privately paid and
delivered to the said Judge Ritter the sum of $2,500 in cash; $2,000 of
said $2,500 was deposited in bank by Judge Ritter on, to wit, December
29, 1930, the remaining $500 being kept by Judge Ritter and not
deposited in bank until, to wit, July 10, 1931. Between the time of such
initial payment on said additional fee and April 6, 1931, the said
receiver paid said Rankin thereon $5,000. On or about April 6, 1931, the
said Rankin received the balance of the said additional fee allowed him
by Judge Ritter, said balance amounting to $45,000. Shortly thereafter,
on or about April 14, 1931, the said Rankin paid and delivered to the
said Judge Ritter, privately, in cash, an additional sum of $2,000. The
said Judge Halsted L. Ritter corruptly and unlawfully accepted and
received for his own use and benefit from the said A. L. Rankin the
aforesaid sums of money, amounting to $4,500. Wherefore, the said Judge
Halsted L. Ritter was and is guilty of misbehavior and was and is guilty
of a high crime and misdemeanor.
Article II
That the said Halsted L. Ritter, while holding the office of United
States district judge for the southern district of Florida, having been
nominated by the President of the United States, confirmed by the Senate
of the United States, duly qualified and commissioned, and while acting
as a United States district judge for the southern district of Florida,
was and is guilty of misbehavior and of high crimes and misdemeanors in
office in manner and form as follows, to wit: On the 15th day of
February 1929 the said Halsted L. Ritter, having been
[[Page 1963]]
appointed as United States district judge for the southern district
of Florida, was duly qualified and commissioned to serve as such during
good behavior in office. Immediately prior thereto and for several years
the said Halsted L. Ritter had practiced law in said district in
partnership with one A. L. Rankin, which partnership was dissolved upon
the appointment of said Ritter as said United States district judge. On
the 18th day of July 1928 one Walter S. Richardson was elected trustee
in bankruptcy of the Whitehall Building and Operating Company, which
company had been adjudicated in said district as a bankrupt, and as such
trustee took charge of the assets of said Whitehall Building and
Operating Company, which consisted of a hotel property located in Palm
Beach in said district. That the said Richardson as such trustee
operated said hotel property from the time of his said appointment until
its sales on the 3d of January 1929, under the foreclosure of a third
mortgage thereon. On the 1st of November and the 13th of December 1929,
the said Judge Ritter made orders in said bankruptcy proceedings
allowing the said Walter S. Richardson as trustee the sum of $16,500 as
compensation for his services as trustee. That before the discharge of
said Walter S. Richardson as such trustee, said Richardson, together
with said A. L. Rankin, one Ernest Metcalf, one Martin Sweeney, and the
said Halsted L. Ritter, entered into an arrangement to secure permission
of the holder or holders of at least $50,000 of first mortgage bonds on
said hotel property for the purpose of filing a bill to foreclose the
first mortgage on said premises in the court of said Halsted L. Ritter,
by which means the said Richardson, Rankin, Metcalf, Sweeney, and Ritter
were to continue said property in litigation before said Ritter. On the
30th day of August 1929, the said Walter S. Richardson, in furtherance
of said arrangement and understanding, wrote a letter to the said Martin
Sweeney, in New York, suggesting the desirability of contacting as many
first-mortgage bondholders as possible in order that their cooperation
might be secured, directing special attention to Mr. Bert E. Holland, an
attorney, whose address was in the Tremont Building in Boston, and who,
as cotrustee, was the holder of $50,000 of first-mortgage bonds, the
amount of bonds required to institute the contemplated proceedings in
Judge Ritter's court. On October 3, 1929, the said Bert E. Holland,
being solicited by the said Sweeney, requested the said Rankin and
Metcalf to prepare a complaint to file in said Judge Ritter's court for
foreclosure of said first mortgage and the appointment of a receiver. At
this time Judge Ritter was holding court in Brooklyn, New York, and the
said Rankin and Richardson went from West Palm Beach, Florida, to
Brooklyn, New York, and called upon said Judge Ritter a short time
previous to filing the bill for foreclosure and appointment of a
receiver of said hotel property. On October 10, 1929, and before the
filing of said bill for foreclosure and receiver, the said Holland
withdrew his authority to said Rankin and Metcalf to file said bill and
notified the said Rankin not to file the said bill. Notwithstanding the
said instructions to
[[Page 1964]]
said Rankin not to file said bill, said Rankin, on the 11th day of
October 1929, filed said bill with the clerk of the United States
District Court for the Southern District of Florida but with the
specific request to said clerk to lock up the said bill as soon as it
was filed and hold until Judge Ritter's return so that there would be no
newspaper publicity before the matter was heard by Judge Ritter for the
appointment of a receiver, which request on the part of the said Rankin
was complied with by the said clerk. On October 16, 1929, the said
Holland telegraphed to the said Rankin, referring to his previous wire
requesting him to refrain from filing the bill and insisting that the
matter remain in its then status until further instruction was given;
and on October 17, 1929, the said Rankin wired to Holland that he would
not make an application on his behalf for the appointment of a receiver.
On October 28, 1929, a hearing on the complaint and petition for
receivership was heard before Judge Halsted L. Ritter at Miami, at which
hearing the said Bert E. Holland appeared in person before said Judge
Ritter and advised the judge that he wished to withdraw the suit and
asked for dismissal of the bill of complaint on the ground that the bill
was filed without his authority. But the said Judge Ritter, fully
advised of the facts and circumstances herein before recited, wrongfully
and oppressively exercised the powers of his office to carry into
execution said plan and agreement theretofore arrived at, and refused to
grant the request of the said Holland and made effective the champertous
undertaking of the said Richardson and Rankin and appointed the said
Richardson receiver of the said hotel property, notwithstanding that
objection was made to Judge Ritter that said Richardson had been active
in fomenting this litigation and was not a proper person to act as
receiver. On October 15, 1929, said Rankin made oath to each of the
bills for intervenors which were filed the next day. On October 16,
1929, bills for intervention in said foreclosure suit were filed by said
Rankin and Metcalf in the names of holders of approximately $5,000 of
said first-mortgage bonds, which intervenors did not possess the said
requisite $50,000 in bonds required by said first mortgage to bring
foreclosure proceedings on the part of the bondholders. The said Rankin
and Metcalf appeared as attorneys for complainants and intervenors, and
in response to a suggestion of the said Judge Ritter, the said Metcalf
withdrew as attorney for complainants and intervenors and said Judge
Ritter thereupon appointed said Metcalf as attorney for the said
Richardson, the receiver. And in the further carrying out of said
arrangement and understanding, the said Richardson employed the said
Martin Sweeney and one Bemis, together with Ed Sweeney, as managers of
said property, for which they were paid the sum of $60,000 for the
management of said hotel for the two seasons the property remained in
the custody of said Richardson as receiver. On or about the 15th day of
May 1930 the said Judge Ritter allowed the said Rankin an advance on his
fee of $2,500 for his services in said case. On or about July 2, 1930,
the said Judge Ritter requested Judge Alex
[[Page 1965]]
ander Akerman, also a judge of the United States District Court for
the Southern District of Florida, to fix the total allowance for the
said Rankin for his services in said case, said request and the reasons
therefor being set forth in a letter by the said Judge Ritter, in words
and figures as follows, to wit:
July 2, 1930. Hon. Alexander Akerman, United States District Judge,
Tampa, Fla.
My Dear Judge: In the case of Holland et al. v. Whitehall Building &
Operating Co. (No. 678-M-Eq.), pending in my division, my former law
partner, Judge A. L. Rankin, of West Palm Beach, has filed a petition
for an order allowing compensation for his services on behalf of the
plaintiff. I do not feel that I should pass, under the circumstances,
upon the total allowance to be made Judge Rankin in this matter. I did
issue an order, which Judge Rankin will exhibit to you, approving an
advance of $2,500 on his claim, which was approved by all attorneys. You
will appreciate my position in the matter, and I request you to pass
upon the total allowance which should be made Judge Rankin in the
premises as an accommodation to me. This will relieve me from any
embarrassment hereafter if the question should arise as to my favoring
Judge Rankin in this matter by an exorbitant allowance. Appreciating
very much your kindness in this matter, I am, Yours sincerely, Halsted
L. Ritter.
In compliance with said request the said Judge Akerman allowed the
said Rankin $12,500 in addition to the $2,500 theretofore allowed by
Judge Ritter, making a total of $15,000 as the fee of the said Rankin in
the said case.
But notwithstanding the said request on the part of said Ritter and
the compliance by the said Judge Akerman and the reasons for the making
of said request by said Judge Ritter of Judge Akerman, the said Judge
Ritter, on the 24th day of December 1930, allowed the said Rankin an
additional fee of $75,000. And on the same date when the receiver in
said case paid to the said Rankin as a part of said additional fee the
sum of $25,000, said Rankin privately paid and delivered to said Judge
Ritter out of the said $25,000 the sum of $2,500 in cash, $2,000 of
which the said Judge Ritter deposited in a bank and $500 of which was
put in a tin box and not deposited until the 10th day of July 1931, when
it was deposited in a bank with an additional sum of $600. On or about
the 6th day of April 1931, the said Rankin received as a part of the
$75,000 additional fee the sum of $45,000, and shortly thereafter, on or
before the 14th day of April 1931, the said Rankin paid and delivered to
said judge Ritter, privately and in cash, out of said $45,000 the sum of
$2,000. The said Judge Halsted L. Ritter corruptly and unlawfully
accepted and received for his own use and benefit from the said Rankin
the aforesaid sums of $2,500 in cash and $2,000 in cash, amounting in
all to $4,500. Of the total allowance made to said A.L. Rankin in said
foreclosure suit, amounting in all to $90,000, the fol
[[Page 1966]]
lowing sums were paid out by said Rankin with the knowledge and
consent of said Judge Ritter, to wit: to said Walter S. Richardson, the
sum of $5,000; to said Metcalf, the sum of $10,000; to Shutts and Bowen,
also attorneys for the receiver, the sum of $25,000; and to said Halsted
L. Ritter, the sum of $4,500. In addition to the said sum of $5,000
received by the said Richardson as aforesaid, said Ritter by order in
said proceedings allowed said Richardson a fee of $30,000 for services
as such receiver. The said fees allowed by said Judge Ritter to A.L.
Rankin (who had been a law partner of said judge immediately before said
judge's appointment as judge) as solicitor for the plaintiff in said
case were excessive and unwarranted, and said judge profited personally
thereby in that out of the money so allowed said solicitor he received
personally, privately, and in cash $4,500 for his own use and benefit.
While the Whitehall Hotel was being operated in receivership under said
proceeding pending in said court (and in which proceeding the receiver
in charge of said hotel by appointment of said Judge was allowed large
compensation by said judge) the said judge stayed at said hotel from
time to time without cost to himself and received free rooms, free
meals, and free valet service, and, with the knowledge and consent of
said judge, members of his family, including his wife, his son, Thurston
Ritter, his daughter, Mrs. M.R. Walker, his secretary, Mrs. Lloyd C.
Hooks, and her husband, Lloyd C. Hooks, each likewise on various
occasions stayed at said hotel without cost to themselves or to said
judge, and received free rooms, and some or all of them received from
said hotel free meals and free valet service; all of which expenses were
borne by the said receivership to the loss and damage of the creditors
whose interests were involved therein. The said judge willfully failed
and neglected to perform his duty to conserve the assets of the
Whitehall Building and Operating Company in receivership in his court,
but to the contrary, permitted waste and dissipation of its assets, to
the loss and damage of the creditors of said corporation, and was a
party to the waste and dissipation of such assets while under the
control of his said court, and personally profited thereby, in the
manner and form hereinabove specifically set out. Wherefore, the said
Judge Halsted L. Ritter was and is guilty of misbehavior, and was and is
guilty of a high crime and misdemeanor in office.
Articles III and IV in House Resolution 422 are omitted because House
Resolution 471, adopted by the House on Mar. 30, 1936, amended Article
III, added new Articles IV through VI after Article III, and amended
former Article IV to read as new Article VII. Articles III through VII
in their amended form follow:
Article III
That the said Halsted L. Ritter, having been nominated by the
President of the United States, confirmed by the Senate of the United
States, duly qualified and commissioned, and, while
[[Page 1967]]
acting as a United States District judge for the southern district of
Florida, was and is guilty of a high crime and misdemeanor in office in
manner and form as follows, to wit: That the said Halsted L. Ritter,
while such judge, was guilty of a violation of section 258 of the
Judicial Code of the United States of America (U.S.C., Annotated, title
28, sec. 373) making it unlawful for any judge appointed under the
authority of the United States to exercise the profession or employment
of counsel or attorney, or to be engaged in the practice of the law, in
that after the employment of the law firm of Ritter and Rankin (which at
the time of the appointment of Halsted L. Ritter to be judge of the
United States District Court for the Southern District of Florida, was
composed of Halsted L. Ritter and A.L. Rankin) in the case of Trust
Company of Georgia and Robert G. Stephens, trustee, against Brazilian
Court Building Corporation, and others, numbered 5704, in the Circuit
Court of the Fifteenth Judicial Circuit of Florida, and after the fee of
$4,000 which had been agreed upon at the outset of said employment had
been fully paid to the firm of Ritter and Rankin, and after Halsted L.
Ritter had, on, to wit, February 15, 1929, become judge of the United
States District Court for the Southern District of Florida, Judge Ritter
on, to wit, March 11, 1929, wrote a letter to Charles A. Brodek, of
counsel for Mulford Realty Corporation (the client which his former law
firm had been representing in said litigation), stating that there had
been much extra and unanticipated work in the case, that he was then a
Federal Judge; that his partner, A.L. Rankin, would carry through
further proceedings in the case, but that he, Judge Ritter, would be
consulted about the matter until the case was all closed up; and that
``this matter is one among very few which I am assuming to continue my
interest in until finally closed up''; and stating specifically in said
letter: ``I do not know whether any appeal will be taken in the case or
not but, if so, we hope to get Mr. Howard Paschal or some other person
as receiver who will be amenable to our directions, and the hotel can be
operated at a profit, of course, pending the appeal. We shall demand a
very heavy supersedeas bond, which I doubt whether D'Esterre can give'';
and further that he was ``of course primarily interested in getting some
money in the case'', and that he thought ``$2,000 more by way of
attorneys' fees should be allowed'', and asked that he be communicated
with direct about the matter, giving his post-office-box number. On to
wit, March 13, 1929, said Brodek replied favorably, and on March 30,
1929, a check of Brodek, Raphael, and Eisner, a law firm of New York
City, representing Mulford Realty Corporation, in which Charles A.
Brodek, senior member of the firm of Brodek, Raphael and Eisner, was one
of the directors, was drawn, payable to the order of ``Honorable Halsted
L. Ritter'' for $2,000 and which was duly endorsed ``Honorable Halsted
L. Ritter. H. L. Ritter'' and was paid on, to wit, April 4, 1929, and
the proceeds thereof were received and appropriated by Judge Ritter to
his own individual use and benefit, without advising his said former
partner that said $2,000 had been received, without consulting with
[[Page 1968]]
his former partner thereabout, and without the knowledge or consent
of his said former partner, appropriated the entire amount thus
solicited and received to the use and benefit of himself, the said Judge
Ritter. At the time said letter was written by Judge Ritter and said
$2,000 received by him, Mulford Realty Corporation held and owned large
interests in Florida real estate and citrus groves, and a large amount
of securities of the Olympia Improvement Corporation, which was a
company organized to develop and promote Olympia, Florida, said holdings
being within the territorial jurisdiction of the United States District
Court, of which Judge Ritter was a judge from, to wit, February 15,
1929. After writing said letter of March 11, 1929, Judge Ritter further
exercised the profession or employment of counsel or attorney, or
engaged in the practice of the law, with relation to said case. Which
acts of said judge were calculated to bring his office into disrepute,
constitute a violation of section 258 of the Judicial Code of the United
States of America (U.S.C., Annotated, title 28, sec. 373), and
constitute a high crime and misdemeanor within the meaning and intent of
section 4 of article II of the Constitution of the United States.
Wherefore, the said Judge Halsted L. Ritter was and is guilty of a high
misdemeanor in office.
Article IV
That the said Halsted L. Ritter, having been nominated by the
President of the United States, confirmed by the Senate of the United
States, duly qualified and commissioned, and, while acting as a United
States district judge for the southern district of Florida, was and is
guilty of a high crime and misdemeanor in office in manner and form as
follows to wit: That the said Halsted L. Ritter, while such judge, was
guilty of a violation of section 258 of the Judicial Code of the United
States of America (U.S.C., Annotated, title 28, sec. 373), making it
unlawful for any judge appointed under the authority of the United
States to exercise the profession or employment of counsel or attorney,
or to be engaged in the practice of the law, in that Judge Ritter did
exercise the profession or employment of counsel or attorney, or engage
in the practice of the law, representing J.R. Francis, with relation to
the Boca Raton matter and the segregation and saving of the interest of
J.R. Francis herein, or in obtaining a deed or deeds to J.R. Francis
from the Spanish River Land Company to certain pieces of realty, and in
the Edgewater Ocean Beach Development Company matter for which services
the said Judge Ritter received from the said J.R. Francis the sum of
$7,500. Which acts of said judge were calculated to bring his office
into disrepute constitute a violation of the law above recited, and
constitute a high crime and misdemeanor within the meaning and intent of
section 4 of article II of the Constitution of the United States.
Wherefore, the said Judge Halsted L. Ritter was and is guilty of a high
misdemeanor in office.
Article V
That the said Halsted L. Ritter, having been nominated by the
President of
[[Page 1969]]
the United States, confirmed by the Senate of the United States, duly
qualified and commissioned, and, while acting as a United States
district judge for the southern district of Florida, was and is guilty
of a high crime and misdemeanor in office in manner and form as follows,
to wit: That the said Halsted L. Ritter, while such judge, was guilty of
violation of section 146(h) of the Revenue Act of 1928, making it
unlawful for any person willfully to attempt in any manner to evade or
defend the payment of the income tax levied in and by said Revenue Act
of 1928, in that during the year 1929 said Judge Ritter received gross
taxable income--over and above his salary as judge-- to the amount of
some $12,000, yet paid no income tax thereon. Among the fees included in
said gross taxable income for 1929 were the extra fee of $2,000
collected and received by Judge Ritter in the Brazilian Court case as
described in article III, and the fee of $7,500 received by Judge Ritter
from J.R. Francis. Wherefore the said Judge Halsted L. Ritter was and is
guilty of a high misdemeanor in office.
Article VI
That the said Halsted L. Ritter, having been nominated by the
President of the United States, confirmed by the Senate of the United
States, duly qualified and commissioned, and, while acting as a United
States district judge for the southern district of Florida, was and is
guilty of a high crime and misdemeanor in office in manner and form as
follows, to wit: That the said Halsted L. Ritter, while such judge, was
guilty of violation of section 146(b) of the Revenue Act of 1928, making
it unlawful for any person willfully to attempt in any manner to evade
or defeat the payment of the income tax levied in and by said Revenue
Act of 1928, in that during the year 1930 the said Judge Ritter received
gross taxable income--over and above his salary as judge--to the amount
of to wit, $5,300, yet failed to report any part thereof in his
income-tax return for the year 1930 and paid no income tax thereon. Two
thousand five hundred dollars of said gross taxable income for 1930 was
that amount of cash paid Judge Ritter by A. L. Rankin on December 24,
1930, as described in article I. Wherefore the said Judge Halsted L.
Ritter was and is guilty of a high misdemeanor in office.
Article VII
That the said Halsted L. Ritter, while holding the office of United
States district judge for the southern district of Florida, having been
nominated by the President of the United States, confirmed by the Senate
of the United States, duly qualified and commissioned, and, while acting
as a United States district judge for the southern district of Florida,
was and is guilty of misbehavior and of high crimes and misdemeanors in
office in manner and form as follows, to wit: The reasonable and
probable consequence of the actions or conduct of Halsted L. Ritter,
hereunder specified or indicated in this article, since he became judge
of said court, as an individual or as such judge, is to bring his court
into scandal and disrepute, to the prejudice of said court and public
con
[[Page 1970]]
fidence in the administration of justice therein, and to the
prejudice of public respect for and confidence in the Federal judiciary,
and to render him unfit to continue to serve as such judge: 1. In that
in the Florida Power Company case (Florida Power and Light Company
against City of Miami and others, numbered 1138-M- Eq.) which was a case
wherein said judge had granted the complainant power company a temporary
injunction restraining the enforcement of an ordinance of the city of
Miami, which ordinance prescribed a reduction in the rates for electric
current being charged in said city, said judge improperly appointed one
Cary T. Hutchinson, who had long been associated with and employed by
power and utility interests, special master in chancery in said suit,
and refused to revoke his order so appointing said Hutchinson.
Thereafter, when criticism of such action had become current in the city
of Miami, and within two weeks after a resolution (H. Res. 163,
Seventy-third Congress) had been agreed to in the House of
Representatives of the Congress of the United States, authorizing and
directing the Judicial Committee thereof to investigate the official
conduct of said judge and to make a report concerning said conduct to
said House of Representatives an arrangement was entered into with the
city commissioners of the city of Miami or with the city attorney of
said city by which the said city commissioners were to pass a resolution
expressing faith and confidence in the integrity of said judge, and the
said judge recuse himself as judge in said Dower suit. The said
agreement was carried out by the parties thereto, and said judge, after
the passage of such resolution, recused himself from sitting as judge in
said power suit, thereby bartering his judicial authority in said case
for a vote of confidence. Nevertheless, the succeeding judge allowed
said Hutchinson as special master in chancery in said case a fee of
$5,000, although he performed little, if any, service as such, and in
the order making such allowance recited: ``And it appearing to the court
that a minimum fee of $5,000 was approved by the court for the said Cary
T. Hutchinson, special master in this cause.'' 2. In that in the Trust
Company of Florida cases (Illick against Trust Company of Florida and
others numbered 1043-M-Eq., and Edmunds Committee and others against
Marion Mortgage Company and others, numbered 1124-M-Eq.) after the State
banking department of Florida, through its comptroller, Honorable Ernest
Amos, had closed the doors of the Trust Company of Florida and appointed
J.H. Therrell liquidator for said trust company, and had intervened in
the said Illick case, said Judge Ritter wrongfully and erroneously
refused to recognize the right of said State authority to administer the
affairs of the said trust company and appointed Julian E. Eaton and
Clark D. Stearns as receivers of the property of said trust company. On
appeal, the United States Circuit Court of Appeals for the Fifth Circuit
reversed the said order or decree of Judge Ritter and ordered the said
property surrendered to the State liquidator. Thereafter, on, to wit,
September 12, 1932, there was filed in the United States District Court
for the Southern District of Florida the Edmunds Committee case, supra.
Mar
[[Page 1971]]
ion Mortgage Company was a subsidiary of the Trust Company of
Florida. Judge Ritter being absent from his district at the time of the
filing of said case, an application for the appointment of receivers
therein was presented to another judge of said district, namely,
Honorable Alexander Akerman. Judge Ritter, however, prior to the
appointment of such receivers, telegraphed Judge Akerman, requesting him
to appoint the aforesaid Eaton and Stearns as receivers in said case,
which appointments were made by Judge Akerman. Thereafter the United
States Circuit Court of Appeals for the Fifth Circuit reversed the order
of Judge Akerman, appointing said Eaton and Stearns as receivers in said
case. In November 1932, J.H. Therrell, as liquidator, filed a bill of
complaint in the Circuit Court of Dade County, Florida--a court of the
State of Florida--alleging that the various trust properties of the
Trust Company of Florida were burdensome to the liquidator to keep, and
asking that the court appoint a succeeding trustee. Upon petition for
removal of said cause from said State court into the United States
District Court for the Southern District of Florida, Judge Ritter took
jurisdiction, notwithstanding the previous rulings of the United States
Circuit Court of Appeals above referred to, and again appointed the said
Eaton and Stearns as the receivers of the said trust properties. In
December 1932 the said Therrell surrendered all of the trust properties
to said Eaton and Stearns as receivers, together with all records of the
Trust Company of Florida pertaining thereto. During the time said Eaton
and Stearns, as such receivers, were in control of said trust
properties, Judge Ritter wrongfully and improperly approved their
accounts without notice or opportunity for objection thereto to be
heard. With the knowledge of Judge Ritter, said receivers appointed the
sister-in-law of Judge Ritter, namely, Mrs. G.M. Wickard, who had had no
previous hotel-management experience, to be manager of the Julia Tuttle
Hotel and Apartment Building, one of said trust properties. On, to wit,
January 1, 1933, Honorable J.M. Lee succeeded Honorable Ernest Amos as
comptroller of the State of Florida and appointed M.A. Smith liquidator
in said Trust Company of Florida cases to succeed J.H. Therrell. An
appeal was again taken to the United States Circuit Court of Appeals for
the Fifth Circuit from the then latest order or decree of Judge Ritter,
and again the order or decree of Judge Ritter appealed from was reversed
by the said circuit court of appeals which held that the State officer
was entitled to the custody of the property involved and that said Eaton
and Stearns as receivers were not entitled to such custody. Thereafter,
and with the knowledge of the decision of the said circuit court of
appeals, Judge Ritter wrongfully and improperly allowed said Eaton and
Stearns and their attorneys some $26,000 as fees out of said
trust-estate properties and endeavored to require, as a condition
precedent to releasing said trust properties from the control of his
court, a promise from counsel for the said State liquidator not to
appeal from his order allowing the said fees to said Eaton and Stearns
and their attorneys. 3. In that the said Halsted L. Ritter, while such
Federal judge, accepted, in addition to $4,500 from his former law
[[Page 1972]]
partner as alleged in article I hereof other large fees or
gratuities, to wit, $7,500 from J.R. Francis, on or about April 19,
1929, J.R. Francis at this time having large property interests within
the territorial jurisdiction of the court of which Judge Ritter was a
judge; and on, to wit, the 4th day of April 1929 the said Judge Ritter
accepted the sum of $2,000 from Brodek, Raphael and Eisner, representing
Mulford Realty Corporation, as its attorneys, through Charles A. Brodek,
senior member of said firm and a director of said corporation, as a fee
or gratuity, at which time the said Mulford Realty Corporation held and
owned large interests in Florida real estate and citrus groves, and a
large amount of securities of the Olympia Improvement Corporation, which
was a company organized to develop and promote Olympia, Florida, said
holding being within the territorial jurisdiction of the United States
District Court of which Judge Ritter was a judge from, to wit, February
15, 1929. 4. By his conduct as detailed in articles I, II, III, and IV
hereof, and by his income-tax evasions as set forth in articles V and VI
hereof. Wherefore, the said Judge Halsted L. Ritter was and is guilty of
misbehavior, and was and is guilty of high crimes and misdemeanors in
office.
Cumulative and Duplicatory Articles of Impeachment
Sec. 3.3 Majority views and minority views were included in the
report of the Committee on the Judiciary recommending the impeachment of
President Richard M. Nixon, such views relating to Article II,
containing an accumulation of acts constituting a course of conduct.
On Aug. 20, 1974, the Committee on the Judiciary recommended in its
final report to the House, pursuant to its inquiry into charges of
impeachable offenses against President Nixon, three articles of
impeachment. Article II charged that the President had ``repeatedly
engaged in conduct'' violative of his Presidential oath and of his
constitutional duty to take care that the laws be faithfully executed.
The article set forth, in five separate paragraphs, five patterns of
conduct constituting the offenses charged. The conclusion of the
committee's report on Article II read in part as follows:
In recommending Article II to the House, the Committee finds clear
and convincing evidence that Richard M. Nixon, contrary to his trust as
President and unmindful of the solemn duties of his high office, has
repeatedly used his power as President to violate the Constitution and
the law of the land. In so doing, he has failed in the obligation that
every citizen has to live under the law. But he has done more, for it is
the duty of the President not merely to live by the law but to see that
law faithfully applied. Richard M. Nixon has repeatedly and willfully
[[Page 1973]]
failed to perform that duty. He has failed to perform it by
authorizing and directing actions that violated or disregarded the
rights of citizens and that corrupted and attempted to corrupt the
lawful functioning of executive agencies. He has failed to perform it by
condoning and ratifying, rather than acting to stop, actions by his
subordinates that interfered with lawful investigations and impeded the
enforcement of the laws. . . . The conduct of Richard M. Nixon has
constituted a repeated and continuing abuse of the powers of the
Presidency in disregard of the fundamental principle of the rule of law
in our system of government. This abuse of the powers of the President
was carried out by Richard M. Nixon, acting personally and through his
subordinates, for his own political advantage, not for any legitimate
governmental purpose and without due consideration for the national
good. . . . The Committee has concluded that, to perform its
constitutional duty, it must approve this Article of Impeachment and
recommend it to the House. If we had been unwilling to carry out the
principle that all those who govern, including ourselves, are
accountable to the law and the Constitution, we would have failed in our
responsibility as representatives of the people elected under the
Constitution. If we had not been prepared to apply the principle of
Presidential accountability embodied in the impeachment clause of the
Constitution, but had instead condoned the conduct of Richard M. Nixon,
then another President, perhaps with a different political philosophy,
might have used this illegitimate power for further encroachments on the
rights of citizens and further usurpations of the power of other
branches of our government. By adopting this Article, the Committee
seeks to prevent the recurrence of any such abuse of Presidential power.
The Committee finds that, in the performance of his duties as President,
Richard M. Nixon on many occasions has acted to the detriment of
justice, right, and the public good, in violation of his constitutional
duty to see to the faithful execution of the laws. This conduct has
demonstrated a contempt for the rule of law; it has posed a threat to
our democratic republic. The Committee finds that this conduct
constitutes ``high crimes and misdemeanors'' within the meaning of the
Constitution, that it warrants his impeachment by the House, and that it
requires that he be put to trial in the Senate.<SUP>(11)</SUP>
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11. H. Rept. No. 93-1305, at pp. 180-183, Committee on the Judiciary,
printed in the Record at 120 Cong. Rec. 29270, 29271, 93d Cong. 2d
Sess., Aug. 20, 1974. For complete text of H. Rept. No. 93- 1305, see
id. at pp. 29219-361.
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Opposing minority views were included in the report on the
``duplicity'' of offenses charged in Article II. The views (footnotes
omitted) below are those of Messrs. Hutchinson, Smith, Sandman, Wiggins,
Dennis, Mayne, Lott, Moorhead, Maraziti, and Latta:
Our opposition to the adoption of Article II should not be
misunderstood as condonation of the presidential conduct alleged
therein. On the contrary, we
[[Page 1974]]
deplore in strongest terms the aspects of presidential wrongdoing to
which the Article is addressed. However, we could not in conscience
recommend that the House impeach and the Senate try the President on the
basis of Article II in its form as proposed, because in our view the
Article is duplicitous in both the ordinary and the legal senses of the
word. In common usage, duplicity means belying one's true intentions by
deceptive words; as a legal term of art, duplicity denotes the technical
fault of uniting two or more offenses in the same count of an
indictment. We submit that the implications of a vote for or against
Article II are ambiguous and that the Committee debate did not resolve
the ambiguities so as to enable the Members to vote intelligently.
Indeed, this defect is symptomatic of a generic problem inherent in the
process of drafting Articles of impeachment, and its significance for
posterity may be far greater than the substantive merits of the
particular charges embodied in Article II. . . . We do not take the
position that the grouping of charges in a single Article is necessarily
always invalid. To the contrary, it would make good sense if the alleged
offenses together comprised a common scheme or plan, or even if they
were united by a specific legal theory. Indeed, even if there were no
logical reason at all for so grouping the charges (as is true of Article
II), the Article might still be acceptable if its ambiguous aspects had
been satisfactorily resolved. For the chief vice of this Article is that
it is unclear from its language whether a Member should vote for its
adoption if he believes any one of the five charges to be supported by
the evidence; or whether he must believe in the sufficiency of all five;
or whether it is enough if he believes in the sufficiency of more than
half of the charges. The only clue is the sentence which states, ``This
conduct has included one or more of the following [five
specifications]''. This sentence implies that a Member may--indeed,
must--vote to impeach or to convict if he believes in the sufficiency of
a single specification, even though he believes that the accusations
made under the other four specifications have not been proved, or do not
even constitute grounds for impeachment. Thus Article II would have
unfairly accumulated all guilty votes against the President, on whatever
charge. The President could have been removed from office even though no
more than fourteen Senators believed him guilty of the acts charged in
any one of the five specifications. Nor could the President have
defended himself against the ambiguous charges embodied in Article II.
Inasmuch as five specifications are included in support of three legal
theories, and all eight elements are phrased in the alternative, Article
II actually contains no fewer than fifteen separate counts, any one of
which might be deemed to constitute grounds for impeachment and removal.
In addition, if the President were not informed which matters included
in Article II were thought to constitute ``high Crimes and
Misdemeanors,'' he would have been deprived of his right under the Sixth
Amendment to ``be informed of the nature and cause of the accusation''
against him. This defect of Article II calls to mind the impeachment
trial of Judge Halsted Ritter in 1936. Ritter was nar
[[Page 1975]]
rowly acquitted of specific charges of bribery and related offenses
set forth in the first six Articles. He was convicted by an exact
two-thirds majority, however, under Article VII. That Article charged
that because of the specific offenses embodied in the other six
Articles, Ritter had ``[brought] his court into scandal and disrepute,
to the prejudice of said court and public confidence in the
administration of justice. . . .'' The propriety of convicting him on
the basis of this vague charge, after he had been acquitted on all of
the specific charges, will long be debated. Suffice it to say that the
putative defect of Article VII is entirely different from that of
Article II in the present case, and the two should not be confused. A
more relevant precedent may be found in the House debates during the
impeachment of Judge Charles Swayne in 1905. In that case the House had
followed the earlier practice of voting first on the general question of
whether or not to impeach, and then drafting the Articles. Swayne was
impeached in December 1904, by a vote of 198-61, on the basis of five
instances of misconduct. During January 1905 these five grounds for
impeachment were articulated in twelve Articles. In the course of debate
prior to the adoption of the Articles, it was discovered that although
the general proposition to impeach had commanded a majority, individual
Members had reached that conclusion for different reasons. This gave
rise to the embarrassing possibility that none of the Articles would be
able to command a majority vote. Representative Parker regretted that
the House had not voted on each charge separately before voting on
impeachment:
[W]here different crimes and misdemeanors were alleged it was the
duty of the House to have voted whether each class of matter reported
was impeachable before debating that resolution of impeachment, and that
the committee was entitled to the vote of a majority on each branch, and
that now for the first time the real question of impeachment has come
before this House to be determined--not by five men on one charge,
fifteen on another, and twenty on another coming in generally and saying
that for one or another of the charges Judge Swayne should be impeached,
but on each particular branch of the case. When we were asked to vote
upon ten charges at once, that there was something impeachable contained
in one or another of those charges we have already perhaps stultified
ourselves in the mode of our procedure. . . .
In order to extricate the House from its quandary, Representative
Powers urged that the earlier vote to impeach should be construed to
imply that a majority of the House felt that each of the separate
charges had been proved;
At that time the committee urged the impeachment upon five grounds,
and those are the only grounds which are covered by the articles . . .
and we had assumed that when the House voted the impeachment they
practically said that a probable cause was made out in these five
subject-matters which were discussed before the House.
Powers' retrospective theory was ultimately vindicated when the House
approved all twelve Articles. If the episode from the Swayne impeachment
is accorded any precedential value in the present controversy over
Article II, it might be argued by analogy that the Committee's vote to
[[Page 1976]]
adopt that Article must be construed to imply that a majority
believed that all five specifications had been proved. Because the
Committee did not vote separately on each specification, however, it is
impossible to know whether those Members who voted for Article II would
be willing to accept that construction. If so, then one of our major
objections to the Article would vanish. However, it would still be
necessary to amend the Article by removing the sentence ``This has
included one or more of the following,'' and substituting language which
would make it plain that no Member of the House or Senate could vote for
the Article unless he was convinced of the independent sufficiency of
each of the five specifications. However, there remains another and more
subtle objection to the lumping together of unrelated charges in Article
II:
There is indeed always a danger when several crimes are tied
together, that the jury will use the evidence cumulatively; that is,
that although so much as would be admissible upon any one of the charges
might not have persuaded them of the accused's guilt, the sum of it will
convince them as to all.
It is thus not enough protection for an accused that the Senate may
choose to vote separately upon each section of an omnibus article of
impeachment: the prejudicial effect of grouping a diverse mass of
factual material under one heading, some of it adduced to prove one
proposition and another to prove a proposition entirely unrelated, would
still remain.<SUP>(12)</SUP>
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12. H. Rept. No. 93-1305, at pp. 427-431, Committee on the Judiciary,
printed in the Record at 120 Cong. Rec. 29332-34, 93d Cong. 2d Sess.,
Aug. 20, 1974.
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Sec. 3.4 The Senate, sitting as a Court of Impeachment, rejected a
motion to strike articles of impeachment on the ground that certain
articles were duplicatory and accumulative.
On Apr. 3, 1936,<SUP>(13)</SUP> Judge Halsted L. Ritter, respondent
in an impeachment trial, moved in the Senate to strike certain articles
on the grounds of duplication and accumulation of changes.
---------------------------------------------------------------------------
13. 80 Cong. Rec. 4898, 74th Cong. 2d Sess. The motion was submitted on
Mar. 31, 1936, 80 Cong. Rec. 4656, 4657, and reserved for decision.
---------------------------------------------------------------------------
The motion as duly filed by counsel for the respondent is as follows:
In the Senate of the United States of America sitting as a Court of
Impeachment. The United States of America v. Halsted L. Ritter,
respondent
Motion to Strike Article I, or, in the Alternative, to Require
Election as to Articles I and II; and Motion to Strike Article VII
The respondent, Halsted L. Ritter, moves the honorable Senate,
sitting as a Court of Impeachment, for an order striking and dismissing
article I of the articles of impeachment, or, in the alternative, to
require the honorable managers on the part of the House of
Representatives to elect as to whether they will proceed upon article I
or
[[Page 1977]]
upon article II, and for grounds of such motion respondent says: 1.
Article II reiterates and embraces all the charges and allegations of
article I, and the respondent is thus and thereby twice charged in
separate articles with the same and identical offense, and twice
required to defend against the charge presented in article I. 2. The
presentation of the same and identical charge in the two articles in
question tends to prejudice the respondent in his defense, and tends to
oppress the respondent in that the articles are so framed as to collect,
or accumulate upon the second article, the adverse votes, if any, upon
the first article. 3. The Constitution of the United States contemplates
but one vote of the Senate upon the charge contained in each article of
impeachment, whereas articles I and II are constructed and arranged in
such form and manner as to require and exact of the Senate a second vote
upon the subject matter of article I.
Motion to Strike Article VII
And the respondent further moves the honorable Senate, sitting as a
Court of Impeachment, for an order striking and dismissing article VII,
and for grounds of such motion, respondent says: 1. Article VII includes
and embraces all the charges set forth in articles I, II, III, IV, V,
and VI. 2. Article VII constitutes an accumulation and massing of all
charges in preceding articles upon which the Court is to pass judgment
prior to the vote on article VII, and the prosecution should be required
to abide by the judgment of the Senate rendered upon such prior articles
and the Senate ought not to countenance the arrangement of pleading
designed to procure a second vote and the collection or accumulation of
adverse votes, if any, upon such matters. 3. The presentation in article
VII of more than one subject and the charges arising out of a single
subject is unjust and prejudicial to respondent. 4. In fairness and
justice to respondent, the Court ought to require separation and
singleness of the subject matter of the charges in separate and distinct
articles, upon which a single and final vote of the Senate upon each
article and charge can be had. Frank P. Walsh, Carl T. Hoffman, Of
Counsel for Respondent.
Presiding Officer Nathan L. Bachman, of Tennessee, overruled that
part of the motion to strike relating to Articles I and II, finding that
those articles presented distinct and different bases for impeachment.
This ruling was sustained. With respect to the application of the motion
to Article VII, the Presiding Officer submitted the question of
duplication to the Court of Impeachment for a decision. The motion to
strike Article VII was overruled on a voice vote.<SUP>(14)</SUP>
---------------------------------------------------------------------------
14. For a summary of the arguments by counsel on the motions, and
citations thereto, see Sec. 18.12, infra.
---------------------------------------------------------------------------
Sec. 3.5 During the Ritter impeachment trial in the Sen
[[Page 1978]]
ate, the President pro tempore overruled a point of order against a
vote of conviction on the seventh article, where the point of order was
based on an accumulation or combination of facts and circumstances.
On Apr. 17, 1936, President pro tempore Key Pittman, of Nevada,
stated that the Senate had by a two-thirds vote adjudged the respondent
Judge Halsted L. Ritter guilty as charged in Article VII of the articles
of impeachment. He over-ruled a point of order against the vote, as
follows:
Mr. [Warren R.] Austin [of Vermont]: The first reason for the point
of order is that here is a combination of facts in the indictment, the
ingredients of which are the several articles which precede article VII,
as seen by paragraph marked 4 on page 36. The second reason is contained
in the Constitution of the United States, which provides that no person
shall be convicted without the concurrence of two-thirds of the members
present. The third reason is that this matter has been passed upon
judicially, and it has been held that an attempt to convict upon a
combination of circumstances---- Mr. [George] McGill, [of Kansas]: Mr.
President, a parliamentary inquiry. Mr. Austin: Of which the respondent
has been found innocent would be monstrous. I refer to the case of
Andrews v. King (77 Maine, 235). . . . The President Pro Tempore: A
point of order is made as to article VII, in which the respondent is
charged with general misbehavior. It is a separate charge from any other
charge, and the point of order is overruled.<SUP>(15)</SUP>
---------------------------------------------------------------------------
15. 80 Cong. Rec. 5606, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
Use of Historical Precedents
Sec. 3.6 With respect to the conduct of President Richard Nixon, the
impeachment inquiry staff of the Committee on the Judiciary reported to
the committee on ``Constitutional Grounds for Presidential
Impeachment,'' which included references to the value of historical
precedents.
During an inquiry into impeachable offenses against President Nixon
in the 93d Congress by the Committee on the Judiciary, the committee's
impeachment inquiry staff reported to the committee on grounds for
impeachment of the President. The report discussed in detail the
historical bases and origins, in both English parliamentary practice and
in the practice of the U.S. Congress, of the impeachment power, and drew
conclusions as to the grounds for impeachment of the President and of
other federal civil officers from the history of impeachment proceedings
[[Page 1979]]
and from the history of the U.S. Constitution.<SUP>(1~6)</SUP>
---------------------------------------------------------------------------
16. The report is printed in full in the appendix to this chapter,
infra. The staff report was printed as a committee print, and the House
authorized on June 6, 1974, the printing of 3,000 additional copies
thereof. H. Res. 935, 93d Cong. 2d Sess.
---------------------------------------------------------------------------
Grounds for Presidential Impeachment
Sec. 3.7 The Committee on the Judiciary concluded, in recommending
articles impeaching President Richard Nixon to the House, that the
President could be impeached not only for violations of federal criminal
statutes, but also for (1) serious abuse of the powers of his office,
and (2) refusal to comply with proper subpoenas of the committee for
evidence relevant to its impeachment inquiry.
In its final report to the House pursuant to its impeachment inquiry
into the conduct of President Nixon in the 93d Congress, the Committee
on the Judiciary set forth the following conclusions (footnotes omitted)
on the three articles of impeachment adopted by the committee and
included in its report:<SUP>(17)</SUP>
---------------------------------------------------------------------------
17. H. Rept. No. 93-1305, at pp. 133 et seq., Committee on the
Judiciary. See the articles and conclusions printed in the Record in
full at 120 Cong. Rec. 29219-79, 93d Cong. 2d Sess., Aug. 20, 1974.
---------------------------------------------------------------------------
[Article I]
conclusion
After the Committee on the Judiciary had debated whether or not it
should recommend Article I to the House of Representatives, 27 of the 38
Members of the Committee found that the evidence before it could only
lead to one conclusion; that Richard M. Nixon, using the powers of his
high office, engaged, personally and through his subordinates and
agents, in a course of conduct or plan designed to delay, impede, and
obstruct the investigation of the unlawful entry, on June 17, 1972, into
the headquarters of the Democratic National Committee; to cover up,
conceal and protect those responsible; and to conceal the existence and
scope of other unlawful covert activities.
This finding is the only one that can explain the President's
involvement in a pattern of undisputed acts that occurred after the
break-in and that cannot otherwise be rationally explained. . . .
President Nixon's course of conduct following the Watergate break-in, as
described in Article I, caused action not only by his subordinates but
by the agencies of the United States, including the Department of
Justice, the FBI, and the CIA. It required perjury, destruction of
evidence, obstruction of justice, all crimes. But, most important, it
required deliberate, contrived, and continuing deception of the American
people.
[[Page 1980]]
President Nixon's actions resulted in manifest injury to the
confidence of the nation and great prejudice to the cause of law and
justice, and was subversive of constitutional government. His actions
were contrary to his trust as President and unmindful of the solemn
duties of his high office. It was this serious violation of Richard M.
Nixon's constitutional obligations as President, and not the fact that
violations of Federal criminal statutes occurred, that lies at the heart
of Article I. The Committee finds, based upon clear and convincing
evidence, that this conduct, detailed in the foregoing pages of this
report, constitutes ``high crimes and misdemeanors'' as that term is
used in Article II, Section 4 of the Constitution. Therefore, the
Committee recommends that the House of Representatives exercise its
constitutional power to impeach Richard M. Nixon. On August 5, 1974,
nine days after the Committee had voted on Article I, President Nixon
released to the public and submitted to the Committee on the Judiciary
three additional edited White House transcripts of Presidential
conversations that took place on June 23, 1972, six days following the
DNC break-in. Judge Sirica had that day released to the Special
Prosecutor transcripts of those conversations pursuant to the mandate of
the United States Supreme Court. The Committee had subpoenaed the tape
recordings of those conversations, but the President had refused to
honor the subpoena. These transcripts conclusively confirm the finding
that the Committee had already made, on the basis of clear and
convincing evidence, that from shortly after the break-in on June 17,
1972, Richard M. Nixon, acting personally and through his subordinates
and agents, made it his plan to and did direct his subordinates to
engage in a course of conduct designed to delay, impede and obstruct
investigation of the unlawful entry of the headquarters of the
Democratic National Committee; to cover up, conceal and protect those
responsible; and to conceal the existence and scope of other unlawful
covert activities. . . .
[Article II]
conclusion
In recommending Article II to the House, the Committee finds clear
and convincing evidence that Richard M. Nixon, contrary to his trust as
President and unmindful of the solemn duties of his high office, has
repeatedly used his power as President to violate the Constitution and
the law of the land. In so doing, he has failed in the obligation that
every citizen has to live under the law. But he has done more, for it is
the duty of the President not merely to live by that law but to see that
law faithfully applied. Richard M. Nixon has repeatedly and willfully
failed to perform that duty. He has failed to perform it by authorizing
and directing actions that violated or disregarded the rights of
citizens and that corrupted and attempted to corrupt the lawful
functioning of executive agencies. He has failed to perform it by
condoning and ratifying, rather than acting to stop, actions by his
subordinates that interfered with lawful investigations and impeded the
enforcement of the laws. Article II, section 3 of the Constitution
requires that the President ``shall
[[Page 1981]]
take Care that the Laws be faithfully executed.'' Justice Felix
Frankfurter described this provision as ``the embracing function of the
President''; President Benjamin Harrison called it ``the central idea of
the office.'' ``[I]n a republic,'' Harrison wrote, ``the thing to be
executed is the law, not the will of the ruler as in despotic
governments. The President cannot go beyond the law, and he cannot stop
short of it.'' The conduct of Richard M. Nixon has constituted a
repeated and continuing abuse of the powers of the Presidency in
disregard of the fundamental principle of the rule of law in our system
of government. This abuse of the powers of the President was carried out
by Richard M. Nixon, acting personally and through his subordinates, for
his own political advantage, not for any legitimate governmental purpose
and without due consideration for the national good. The rule of law
needs no defense by the Committee. Reverence for the laws, said Abraham
Lincoln, should ``become the political religion of the nation.'' Said
Theodore Roosevelt, ``No man is above the law and no man is below it;
nor do we ask any man's permission when we require him to obey it.'' It
is a basic principle of our government that ``we submit ourselves to
rulers only if [they are] under rules.'' ``Decency, security, and
liberty alike demand that government officials shall be subjected to the
same rules of conduct that are commands to the citizen,'' wrote Justice
Louis Brandeis. The Supreme Court has said:
No man in this country is so high that he is above the law. No
officer of the law may set that law at defiance with impunity. All the
officers of the government, from the highest to the lowest, are
creatures of the law, and are bound to obey it. It is the only supreme
power in our system of government, and every man who by accepting office
participates in its functions is only the more strongly bound to submit
to that supremacy, and to observe the limitations upon the exercise of
the authority which it gives. Our nation owes its strength, its
stability, and its endurance to this principle.
In asserting the supremacy of the rule of law among the principles of
our government, the Committee is enunciating no new standard of
Presidential conduct. The possibility that Presidents have violated this
standard in the past does not diminish its current--and
future--applicability. Repeated abuse of power by one who holds the
highest public office requires prompt and decisive remedial action, for
it is in the nature of abuses of power that if they go unchecked they
will become overbearing, depriving the people and their representatives
of the strength of will or the wherewithal to resist. Our Constitution
provides for a responsible Chief Executive, accountable for his acts.
The framers hoped, in the words of Elbridge Gerry, that ``the maxim
would never be adopted here that the chief Magistrate could do no
wrong.'' They provided for a single executive because, as Alexander
Hamilton wrote, ``the executive power is more easily confined when it is
one'' and ``there should be a single object for the . . . watchfulness
of the people.'' The President, said James Wilson, one of the principal
authors of the Con
[[Page 1982]]
stitution, ``is the dignified, but accountable magistrate of a free
and great people.'' Wilson said, ``The executive power is better to be
trusted when it has no screen. . . . [W]e have a responsibility in the
person of our President . . . he cannot roll upon any other person the
weight of his criminality. . . .'' As both Wilson and Hamilton pointed
out, the President should not be able to hide behind his counsellors; he
must ultimately be accountable for their acts on his behalf. James
Iredell of North Carolina, a leading proponent of the proposed
Constitution and later a Supreme Court Justice, said that 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.'' In considering this Article the Committee has relied on evidence
of acts directly attributable to Richard M. Nixon himself. He has
repeatedly attempted to conceal his accountability for these acts and
attempted to deceive and mislead the American people about his own
responsibility. He governed behind closed doors, directing the operation
of the executive branch through close subordinates, and sought to
conceal his knowledge of what they did illegally on his behalf. Although
the Committee finds it unnecessary in this case to take any position on
whether the President should be held accountable, through exercise of
the power of impeachment, for the actions of his immediate subordinates,
undertaken on his behalf, when his personal authorization and knowledge
of them cannot be proved, it is appropriate to call attention to the
dangers inherent in the performance of the highest public office in the
land in air of secrecy and concealment. The abuse of a President's
powers poses a serious threat to the lawful and proper functioning of
the government and the people's confidence in it. For just such
Presidential misconduct the impeachment power was included in the
Constitution. The impeachment provision, wrote Justice Joseph Story in
1833, ``holds out a deep and immediate responsibility, as a check upon
arbitrary power; and compels the chief magistrate, as well as the
humblest citizen, to bend to the majesty of the law.'' And Chancellor
James Kent wrote in 1826:
If . . . neither the sense of duty, the force of public opinion, nor
the transitory nature of the seat, are sufficient to secure a faithful
exercise of the executive trust, but the President will use the
authority of his station to violate the Constitution or law of the land,
the House of Representatives can arrest him in his career, by resorting
to the power of impeachment.
The Committee has concluded that, to perform its constitutional duty,
it must approve this Article of Impeachment and recommend it to the
House. If we had been unwilling to carry out the principle that all
those who govern, including ourselves, are accountable to the law and
the Constitution, we would have failed in our responsibility as
representatives of the people, elected under the Constitution. If we had
not been prepared to apply the principle of Presidential accountability
embodied in the impeachment clause of the Constitution, but had instead
condoned the conduct of Richard M. Nixon, then another President,
perhaps with a different political philos
[[Page 1983]]
ophy, might have used this illegitimate power for further
encroachments on the rights of citizens and further usurpations of the
power of other branches of our government. By adopting this Article, the
Committee seeks to prevent the recurrence of any such abuse of
Presidential power. In recommending Article II to the House, the
Committee finds clear and convincing evidence that Richard M. Nixon has
not faithfully executed the executive trust, but has repeatedly used his
authority as President to violate the Constitution and the law of the
land. In so doing, he violated the obligation that every citizen has to
live under the law. But he did more, for it is the duty of the President
not merely to live by the law but to see that law faithfully applied.
Richard M. Nixon repeatedly and willfully failed to perform that duty.
He failed to perform it by authorizing and directing actions that
violated the rights of citizens and that interfered with the functioning
of executive agencies. And he failed to perform it by condoning and
ratifying, rather than acting to stop, actions by his subordinates
interfering with the enforcement of the laws. The Committee finds that,
in the performance of his duties as President, Richard M. Nixon on many
occasions has acted to the detriment of justice, right, and the public
good, in violation of his constitutional duty to see to the faithful
execution of the laws. This conduct has demonstrated a contempt for the
rule of law; it has posed a threat to our democratic republic. The
Committee finds that this conduct constitutes ``high crimes and
misdemeanors'' within the meaning of the Constitution, that it warrants
his impeachment by the House, and that it requires that he be put to
trial in the Senate. . . .
[Article III]
conclusion
The undisputed facts, historic precedent, and applicable legal
principles support the Committee's recommendation of Article III. There
can be no question that in refusing to comply with limited, narrowly
drawn subpoenas--issued only after the Committee was satisfied that
there was other evidence pointing to the existence of impeachable
offenses--the President interfered with the exercise of the House's
function as the ``Grand Inquest of the Nation.'' Unless the defiance of
the Committee's subpoenas under these circumstances is considered
grounds for impeachment, it is difficult to conceive of any President
acknowledging that he is obligated to supply the relevant evidence
necessary for Congress to exercise its constitutional responsibility in
an impeachment proceeding. If this were to occur, the impeachment power
would be drained of its vitality. Article III, therefore, seeks to
preserve the integrity of the impeachment process itself and the ability
of Congress to act as the ultimate safeguard against improper
presidential conduct.<SUP>(18)</SUP>
---------------------------------------------------------------------------
18. H. Rept. No. 93-1305, at p. 213, Committee on the Judiciary. See 120
Cong. Rec. 29279, 93d Cong. 2d Sess., Aug. 20, 1974. See also, for the
subpena power of a committee conducting an impeachment investigation,
Sec. 6, infra. The House has declined to prosecute for contempt of
Congress officers charged with impeachable offenses and refusing to
comply with subpenas (see Sec. 6.12, infra).
---------------------------------------------------------------------------
[[Page 1984]]
Sec. 3.8 In the report of the Committee on the Judiciary recommending
the impeachment of President Richard Nixon, the minority took the view
that grounds for Presidential impeachment must be criminal conduct or
acts with criminal intent.
On Aug. 20, 1974, the Committee on the Judiciary submitted a report
recommending the impeachment of President Nixon. In the minority views
set out below (footnotes omitted), Messrs. Hutchinson, Smith, Sandman,
Wiggins, Dennis, Mayne, Lott, Moorhead, Maraziti, and Latta discussed
the grounds for presidential impeachment: <SUP>(19)</SUP>
---------------------------------------------------------------------------
19. H. Rept. No. 93-1305, at pp. 362372, Committee on the Judiciary,
printed at 120 Cong. Rec. 29312-15, 93d Cong. 2d Sess., Aug. 20, 1974.
---------------------------------------------------------------------------
B. Meaning of ``Treason, Bribery or other high Crimes and
Misdemeanors''
The Constitution of the United States provides that the President
``shall be removed from Office on Impeachment for, and Conviction of,
Treason, Bribery, or other high Crimes and Misdemeanors.'' Upon
impeachment and conviction, removal of the President from office is
mandatory. The offenses for which a President may be impeached are
limited to those enumerated in the Constitution, namely ``Treason,
Bribery, or other high Crimes and Misdemeanors.'' We do not believe that
a President or any other civil officer of the United States government
may constitutionally be impeached and convicted for errors in the
administration of his office.
1. adoption of ``treason, bribery, or other high crimes and
misdemeanors'' at constitutional convention
The original version of the impeachment clause at the Constitutional
Convention of 1787 had made ``malpractice or neglect of duty'' the
grounds for impeachment. On July 20, 1787, the Framers debated whether
to retain this clause, and decided to do so. Gouverneur Morris, who had
moved to strike the impeachment clause altogether, began by arguing that
it was unnecessary because the executive ``can do no criminal act
without Coadjutors who may be punished.'' George Mason disagreed,
arguing that ``When great crimes were committed he [favored] punishing
the principal as well as the Coadjutors.'' Fearing recourse to
assassinations, Benjamin Franklin favored impeachment ``to provide in
the Constitution for the regular punishment of the executive when his
misconduct should deserve it, and for his honorable acquittal when he
should be unjustly accused.'' Gouverneur Morris then admitted that
``corruption & some few other offenses'' should be impeachable, but
thought ``the case ought to be enumerated & defined.'' Rufus King, a
co-sponsor of the motion to strike the impeachment clause,
[[Page 1985]]
pointed out that the executive, unlike the judiciary, did not hold
his office during good behavior, but during a fixed, elective term; and
accordingly ought not to be impeachable, like the judiciary, for
``misbehaviour:'' this would be ``destructive of his independence and of
the principles of the Constitution.'' Edmund Randolph, however, made a
strong statement in favor of retaining the impeachment clause: Guilt
wherever found ought to be punished. The Executive will have great
opportunitys of abusing his power, particularly in time of war when the
military force, and in some respects the public money will be in his
hands.
. . . He is aware of the necessity of proceeding with a cautious
hand, and of excluding as much as possible the influence of the
Legislature from the business. He suggested for consideration . . .
requiring some preliminary inquest of whether just grounds for
impeachment existed.
Benjamin Franklin again suggested the role of impeachments in
releasing tensions, using an example from international affairs
involving a secret plot to cause the failure of a rendezvous between the
French and Dutch fleets--an example suggestive of treason. Gouverneur
Morris, his opinion now changed by the discussion, closed the debate on
a note echoing the position of Randolph:
Our Executive . . . 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. . . . The Executive ought therefore
to be impeachable for treachery; Corrupting his electors, and incapacity
were other causes of impeachment. For the latter he should be punished
not as a man, but as an officer, and punished only by degradation from
his office. . . . When we make him amenable to Justice however we should
take care to provide some mode that will not make him dependent on the
Legislature.
On the question, ``Shall the Executive be removable on
impeachments,'' the proposition then carried by a vote of eight states
to two. A review of this debate hardly leaves the impression that the
Framers intended the grounds for impeachment to be left to the
discretion, even the ``sound'' discretion, of the legislature. On a fair
reading, Madison's notes reveal the Framers' fear that the impeachment
power would render the executive dependent on the legislature. The
concrete examples used in the debate all refer not only to crimes, but
to extremely grave crimes. George Mason mentioned the possibility that
the President would corrupt his own electors and then ``repeat his
guilt,'' and described grounds for impeachment as ``the most extensive
injustice.'' Franklin alluded to the beheading of Charles I, the
possibility of assassination, and the example of the French and Dutch
fleets, which connoted betrayal of a national interest. Madison
mentioned the ``perversion'' of an ``administration into a scheme of
peculation or oppression,'' or the ``betrayal'' of the executive's
``trust to foreign powers.'' Edmund Randolph mentioned the great
opportunities for abuse of the executive power, ``particularly in time
of war when the military force, and in some respects the public money
will be in his hands.'' He cautioned against ``tu
[[Page 1986]]
mults & insurrections.'' Gouveneur Morris similarly contemplated that
the executive might corrupt his own electors, or ``be bribed by a
greater interest to betray his trust''--just as the King of England had
been bribed by Louis XIV--and felt he should therefore be impeachable
for ``treachery.'' After the July 20 vote to retain the impeachment
clause, the resolution containing it was referred to the Committee on
Detail, which substituted ``treason, bribery or corruption'' for
``malpractice or neglect of duty.'' No surviving records explain the
reasons for the change, but they are not difficult to understand, in
light of the floor discussion just summarized. The change fairly
captured the sense of the July 20 debate, in which the grounds for
impeachment seem to have been such acts as would either cause danger to
the very existence of the United States, or involve the purchase and
sale of the ``Chief of Magistracy,'' which would tend to the same
result. It is not a fair summary of this debate--which is the only
surviving discussion of any length by the Framers as to the grounds for
impeachment--to say that the Framers were principally concerned with
reaching a course of conduct whether or not criminal, generally
inconsistent with the proper and effective exercise of the office of the
presidency. They were concerned with preserving the government from
being overthrown by the treachery or corruption of one man. Even in the
context of that purpose, they steadfastly reiterated the importance of
putting a check on the legislature's use of power and refused to expand
the narrow definition they had given to treason in the Constitution.
They saw punishment as a significant purpose of impeachment. The changes
in language made by the Committee on Detail can be taken to reflect a
consensus of the debate that (1) impeachment would be the proper remedy
where grave crimes had been committed, and (2) adherence to this
standard would satisfy the widely recognized need for a check on
potential excesses of the impeachment power itself. The impeachment
clause, as amended by the Committee on Detail to refer to ``treason,
bribery or corruption,'' was reported to the full Convention on August
6, 1787, as part of the draft constitution. Together with other
sections, it was referred to the Committee of Eleven on August 31. This
Committee further narrowed the grounds to ``treason or bribery,'' while
at the same time substituting trial by the Senate for trial by the
Supreme Court, and requiring a two-thirds vote to convict. No surviving
records explain the purpose of this change. The mention of
``corruption'' may have been thought redundant, in view of the provision
for bribery. Or, corruption might have been regarded by the Committee as
too broad, because not a well-defined crime. In any case, the change
limited the grounds for impeachment to two clearly understood and
enumerated crimes. The revised clause, containing the grounds ``treason
and bribery,'' came before the full body again on September 8, late in
the Convention. George Mason moved to add to the enumerated grounds for
impeachment. Madison's Journal reflects the following exchange:
Col. Mason. Why is the provision restrained to Treason & bribery
[[Page 1987]]
only? Treason as defined in the Constitution will not reach many
great and dangerous offenses. 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 movd. 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 and
misdemeanors'' agst. the State.
On the question thus altered, the motion of Colonel Mason passed by a
vote of eight states to three. Madison's notes reveal no debate as to
the meaning of the phrase ``other high Crimes and Misdemeanors.'' All
that appears is that Mason was concerned with the narrowness of the
definition of treason; that his purpose in proposing
``maladministration'' was to reach great and dangerous offenses; and
that Madison felt that ``maladministration,'' which was included as a
ground for impeachment of public officials in the constitutions of six
states, including his own, would be too ``vague'' and would imperil the
independence of the President. It is our judgment, based upon this
constitutional history, that the Framers of the United States
Constitution intended that the President should be removable by the
legislative branch only for serious misconduct dangerous to the system
of government established by the Constitution. Absent the element of
danger to the State, we believe the Delegates to the Federal Convention
of 1787, in providing that the President should serve for a fixed
elective term rather than during good behavior or popularity, struck the
balance in favor of stability in the executive branch. We have never had
a British parliamentary system in this country, and we have never
adopted the device of a parliamentary vote of no- confidence in the
chief executive. If it is thought desirable to adopt such a system of
government, the proper way to do so is by amending our written
Constitution--not by removing the President.
2. are ``high crimes and misdemeanors'' non-criminal? a. Language of
the Constitution
The language of the Constitution indicates that impeachment can lie
only for serious criminal offenses. First, of course, treason and
bribery were indictable offenses in 1787, as they are now. The words
``crime'' and ``misdemeanor'', as well, both had an accepted meaning in
the English law of the day, and referred to criminal acts. Sir William
Blackstone's Commentaries on the Laws of England, (1771), which enjoyed
a wide circulation in the American colonies, defined the terms as
follows:
I. A crime, or misdemeanor is an act committed, or omitted, in
violation of a public law, either forbidding or commanding it. This
general definition comprehends both crimes and misdemeanors; which,
properly speaking, are mere synonymous terms: though, in common usage,
the word ``crimes'' is made to denote
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such offenses as are of a deeper and more atrocious dye; while
smaller faults, and omissions of less consequence, are comprised under
the gentler name of ``misdemeanors'' only. Thus, it appears that the
word ``misdemeanor'' was used at the time Blackstone wrote, as it is
today, to refer to less serious crimes.
Second, the use of the word ``other'' in the phrase ``Treason,
Bribery or other high Crimes and Misdemeanors'' seems to indicate that
high Crimes and Misdemeanors had something in common with Treason and
Bribery--both of which are, of course, serious criminal offenses
threatening the integrity of government. Third, the extradition clause
of the Articles of Confederation (1781), the governing instrument of the
United States prior to the adoption of the Constitution, had provided
for extradition from one state to another of any person charged with
``treason, felony or other high misdemeanor.'' If ``high misdemeanor''
had something in common with treason and felony in this clause, so as to
warrant the use of the word ``other,'' it is hard to see what it could
have been except that all were regarded as serious crimes. Certainly it
would not have been contemplated that a person could be extradited for
an offense which was non-criminal. Finally, the references to
impeachment in the Constitution use the language of the criminal law.
Removal from office follows ``conviction,'' when the Senate has
``tried'' the impeachment. The party convicted is ``nevertheless . . .
liable and subject to Indictment, Trial, Judgment and Punishment,
according to Law.'' The trial of all Crimes is by Jury, ``except in
cases of Impeachment.'' The President is given power to grant ``Pardons
for Offenses against the United States, except in Cases of
Impeachment.'' This constitutional usage, in its totality, strengthens
the notion that the words ``Crime'' and ``Misdemeanor'' in the
impeachment clause are to be understood in their ordinary sense, i.e.,
as importing criminality. At the very least, this terminology strongly
suggests the criminal or quasi-criminal nature of the impeachment
process. b. English impeachment practice
It is sometimes argued that officers may be impeached for non-
criminal conduct, because the origins of impeachment in England in the
fourteenth and seventeenth centuries show that the procedure was not
limited to criminal conduct in that country. Early English impeachment
practice, however, often involved a straight power struggle between the
Parliament and the King. After parliamentary supremacy had been
established, the practice was not so open-ended as it had been
previously. Blackstone wrote (between 1765 and 1769) that
[A]n impeachment before the Lords by the commons of Great Britain, in
parliament, is a prosecution of the already known and established law. .
. .
The development of English impeachment practice in the eighteenth
century is illustrated by the result of the first major nineteenth
century impeachment in that country--that of Lord Melville, Treasurer of
the Navy, in 1805-1806. Melville was charged with wrongful use of public
moneys. Before passing judgment, the House of
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Lords requested the formal opinion of the judges upon the following
question:
Whether it was lawful for the Treasurer of the Navy, before the
passing of the Act 25 Geo. 3rd, c. 31, to apply any sum of money
[imprested] to him for navy [sumpsimus] services to any other use
whatsoever, public or private, without express authority for so doing;
and whether such application by such treasurer would have been a
misdemeanor, or punishable by information or indictment?
The judges replied:
It was not unlawful for the Treasurer of the Navy before the Act 25
Geo. 3rd, c. 31 . . . to apply any sum of money impressed to him for
navy services, to other uses . . . without express authority for so
doing, so as to constitute a misdemeanor punishable by information or
indictment. Upon this ruling by the judges that Melville had committed
no crime, he was acquitted. The case thus strongly suggests that the
Lords in 1805 believed an impeachment conviction to require a
``misdemeanor punishable by information or indictment.'' The case may be
taken to cast doubt on the vitality of precedents from an earlier, more
turbid political era and to point the way to the Framers' conception of
a valid exercise of the impeachment power in the future. As a matter of
policy, as well, it is an appropriate precedent to follow in the latter
twentieth century.
The argument that the President should be impeachable for general
misbehavior, because some English impeachments do not appear to have
involved criminal charges, also takes too little account of the
historical fact that the Framers, mindful of the turbulence of
parliamentary uses of the impeachment power, cut back on that power in
several respects in adapting it to an American context. Congressional
bills of attainder and ex post facto laws, which had supplemented the
impeachment power in England, were expressly forbidden. Treason was
defined in the Constitution--and defined narrowly--so that Congress
acting alone could not change the definition, as Parliament had been
able to do. The consequences of impeachment and conviction, which in
England had frequently meant death, were limited to removal from office
and disqualification to hold further federal office. Whereas a majority
vote of the Lords had sufficed for conviction, in America a two- thirds
vote of the Senate would be required. Whereas Parliament had had the
power to impeach private citizens, the American procedure could be
directed only against civil officers of the national government. The
grounds for impeachment--unlike the grounds for impeachment in
England--were stated in the Constitution. In the light of these
modifications, it is misreading history to say that the Framers
intended, by the mere approval of Mason's substitute amendment, to adopt
in toto the British grounds for impeachment. Having carefully narrowed
the definition of treason, for example, they could scarcely have
intended that British treason precedents would guide ours.
c. American impeachment practice
The impeachment of President Andrew Johnson is the most important
precedent for a consideration of what constitutes grounds for
impeachment of a President, even if it has been his
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torically regarded (and probably fairly so) as an excessively
partisan exercise of the impeachment power. The Johnson impeachment was
the product of a fundamental and bitter split between the President and
the Congress as to Reconstruction policy in the Southern states
following the Civil War. Johnson's vetoes of legislation, his use of
pardons, and his choice of appointees in the South all made it
impossible for the Reconstruction Acts to be enforced in the manner
which Congress not only desired, but thought urgently necessary. On
March 7, 1867, the House referred to the Judiciary Committee a
resolution authorizing it to inquire into the official conduct of Andrew
Johnson . . . and to report to this House whether, in their opinion, the
said Andrew Johnson, while in said office, has been guilty of acts which
were designed or calculated to overthrow or corrupt the government of
the United States . . . and whether the said Andrew Johnson has been
guilty of any act, or has conspired with others to do acts, which, in
contemplation of the Constitution, are high crimes and misdemeanors,
requiring the interposition of the constitutional powers of this House.
On November 25, 1867, the Committee reported to the full House a
resolution recommending impeachment, by a vote of 5 to 4. A minority of
the Committee, led by Rep. James F. Wilson of Iowa, took the position
that there could be no impeachment because the President had committed
no crime:
In approaching a conclusion, we do not fail to recognize two
standpoints from which this case can be viewed--the legal and the
political. . . . Judge him politically, we must condemn him. But the day
of political impeachments would be a sad one for this country. Political
unfitness and incapacity must be tried at the ballot-box, not in the
high court of impeachment. A contrary rule might leave to Congress but
little time for other business than the trial of impeachments. . . .
[C]rimes and misdemeanors are now demanding our attention. Do these,
within the meaning of the Constitution, appear? Rest the case upon
political offenses, and we are prepared to pronounce against the
President, for such offenses are numerous and grave . . . [yet] we still
affirm that the conclusion at which we have arrived is correct.
The resolution recommending impeachment was debated in the House on
December 5 and 6, 1867, Rep. George S. Boutwell of Massachusetts
speaking for the Committee majority in favor of impeachment, and Rep.
Wilson speaking in the negative. Aside from characterization of
undisputed facts discovered by the Committee, the only point debated was
whether the commission of a crime was an essential element of
impeachable conduct by the President. Rep. Boutwell began by saying,
``If the theory of the law submitted by the minority of the committee be
in the judgment of this House a true theory, then the majority have no
case whatsoever.'' ``The country was disappointed, no doubt, in the
report of the committee,'' he continued, ``and very likely this House
participated in the disappointment, that there was no specific, heinous,
novel offense charged upon and proved against the President of the
United States.'' And again, ``It may not be possible, by specific
charge, to arraign him for this great crime, but is he therefore to
escape?''
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The House of Representatives answered this question the next day,
when the majority resolution recommending, impeachment was defeated by a
vote of 57 to 108. The issue of impeachment was thus laid to rest for
the time being.
Earlier in 1867, the Congress had passed the Tenure-of-Office Act,
which took away the President's authority to remove members of his own
Cabinet, and provided that violation of the Act should be punishable by
imprisonment of up to five years and a fine of up to ten thousand
dollars and ``shall be deemed a high misdemeanor''-- fair notice that
Congress would consider violation of the statute an impeachable, as well
as a criminal, offense. It was generally known that Johnson's policy
toward Reconstruction was not shared by his Secretary of War, Edwin M.
Stanton. Although Johnson believed the Tenure-of-Office Act to be
unconstitutional, he had not infringed its provisions at the time the
1867 impeachment attempt against him failed by such a decisive margin.
Two and a half months later, however, Johnson removed Stanton from
office, in apparent disregard of the Tenure-of-Office Act. The response
of Congress was immediate: Johnson was impeached three days later, on
February 24, 1868, by a vote of 128 to 47--an even greater margin than
that by which the first impeachment vote had failed. The reversal is a
dramatic demonstration that the House of Representatives believed it had
to find the President guilty of a crime before impeaching him. The nine
articles of impeachment which were adopted against Johnson, on March 2,
1868, all related to his removal of Secretary Stanton, allegedly in
deliberate violation of the Tenure-of-Office Act, the Constitution, and
certain other related statutes. The vote had failed less than three
months before; and except for Stanton's removal and related matters,
nothing in the new Articles charged Johnson with any act committed
subsequent to the previous vote. The only other case of impeachment of
an officer of the executive branch is that of Secretary of War William
W. Belknap in 1876. All five articles alleged that Belknap ``corruptly''
accepted and received considerable sums of money in exchange for
exercising his authority to appoint a certain person as a military post
trader. The facts alleged would have sufficed to constitute the crime of
bribery. Belknap resigned before the adoption of the Articles and was
subsequently indicted for the conduct alleged. It may be acknowledged
that in the impeachment of federal judges, as opposed to executive
officers, the actual commission of a crime does not appear always to
have been thought essential. However, the debates in the House and
opinions filed by Senators have made it clear that in the impeachments
of federal judges, Congress has placed great reliance upon the ``good
behavior'' clause. The distinction between offic |
