[Impeachment of President William Jefferson Clinton - The Evidentiary Record Pursuant to S. Res. 16 - Index to Senate Document 106-3, Vols. I-XXIV]
[Volume XVII - "Constitutional Grounds for Presidential Impeachment: Modern Precedents" Committee Print, Ser. No. 9, November 1998]
[From the U.S. Government Publishing Office, www.gpo.gov]
106th Congress Document
1st Session SENATE 106-3
_______________________________________________________________________
IMPEACHMENT OF PRESIDENT
WILLIAM JEFFERSON CLINTON
__________
THE EVIDENTIARY RECORD
PURSUANT TO S. RES. 16
VOLUME XVII
``Constitutional Grounds for Presidential Impeachment: Modern
Precedents'' Committee Print, Ser. No. 9, November 1998
[GRAPHIC] [TIFF OMITTED] TONGRESS.#13
Printed at the direction of Gary Sisco, Secretary of the Senate,
pursuant to S. Res. 16, 106th Cong., 1st Sess. (1999)
January 8, 1999.--Ordered to be printed
105th Congress
2d Session COMMITTEE PRINT Ser. No. 9
_______________________________________________________________________
CONSTITUTIONAL GROUNDS FOR PRESIDENTIAL IMPEACHMENT:
MODERN PRECEDENTS
__________
REPORT BY THE STAFF OF THE IMPEACHMENT INQUIRY
__________
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
Henry J. Hyde, Chairman
[GRAPHIC] [TIFF OMITTED] TONGRESS.#13
NOVEMBER 1998
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin BARNEY FRANK, Massachusetts
BILL McCOLLUM, Florida CHARLES E. SCHUMER, New York
GEORGE W. GEKAS, Pennsylvania HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina RICK BOUCHER, Virginia
LAMAR SMITH, Texas JERROLD NADLER, New York
ELTON GALLEGLY, California ROBERT C. SCOTT, Virginia
CHARLES T. CANADY, Florida MELVIN L. WATT, North Carolina
BOB INGLIS, South Carolina ZOE LOFGREN, California
BOB GOODLATTE, Virginia SHEILA JACKSON LEE, Texas
STEPHEN E. BUYER, Indiana MAXINE WATERS, California
ED BRYANT, Tennessee MARTIN T. MEEHAN, Massachusetts
STEVE CHABOT, Ohio WILLIAM D. DELAHUNT, Massachusetts
BOB BARR, Georgia ROBERT WEXLER, Florida
WILLIAM L. JENKINS, Tennessee STEVEN R. ROTHMAN, New Jersey
ASA HUTCHINSON, Arkansas THOMAS BARRETT, Wisconsin
EDWARD A. PEASE, Indiana
CHRISTOPHER B. CANNON, Utah
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
MARY BONO, California
Majority Staff
Thomas E. Mooney, Sr., Chief of Staff-General Counsel
Jon W. Dudas, Deputy General Counsel-Staff Director
Diana L. Schacht, Deputy Staff Director-Chief Counsel
Daniel M. Freeman, Parliamentarian-Counsel
Paul J. McNulty, Director of Communications-Chief Counsel
Joseph H. Gibson, Chief Counsel
Rick Filkins, Counsel
Sharee M. Freeman, Counsel
Peter J. Levinson, Counsel
John F. Mautz, IV, Counsel
William E. Moschella, Counsel
Stephen Pinkos, Counsel
George M. Fishman, Chief Counsel David P. Schippers, Chief
Mitch Glazier, Chief Counsel Investigative Counsel
John H. Ladd, Chief Counsel
Raymond V. Smietanka, Chief Counsel Susan Bogart, Investigative
Laura Ann Baxter, Counsel Counsel
Daniel J. Bryant, Counsel John C. Kocoras, Counsel
Cathleen A. Cleaver, Counsel Berle S. Littmann, Investigator
Vince Garlock, Counsel Charles F. Marino, Counsel
James W. Harper, Counsel Jeffery J. Pavletic, Investigative
Susan Jensen-Conklin, Counsel Counsel
Debra K. Laman, Counsel Thomas M. Schippers, Investigative
Blaine S. Merritt, Counsel Counsel
Nicole R. Nason, Counsel Albert F. Tracy, Investigator
Glenn R. Schmitt, Counsel Peter J. Wacks, Investigator
Jim Y. Wilon, Counsel Diana L. Woznicki, Investigator
Minority Staff
Julian Epstein, Minority Chief Counsel-Staff Director
Perry H. Apelbaum, Minority General Abbe D. Lowell, Minority Chief
Counsel Investigative Counsel
David G. Lachman, Counsel Sampack P. Garg, Investigative
Cynthia A. R. Martin, Counsel Counsel
Stephanie J. Peters, Counsel Stephen F. Reich, Investigative
Samara T. Ryder, Counsel Counsel
Brian P. Woolfolk, Counsel Deborah L. Rhode, Investigative
Counsel
Kevin M. Simpson, Investigative
Counsel
Lis W. Wiehl, Investigative
Counsel
C O N T E N T S
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Page
Foreword......................................................... 1
Introduction..................................................... 2
Impeachment ``Standards''........................................ 3
Impeachments of the 1980's....................................... 4
A. The Impeachment of Judge Claiborne........................ 5
B. The Impeachment of Judge Nixon............................ 9
C. The Impeachment of Judge Hastings......................... 13
Impeachment Proceedings Against President Nixon.................. 14
Conclusion....................................................... 16
Appendix 1
Recent American Impeachment Proceedings.......................... 19
1. President Richard Nixon................................... 19
2. District Judge Harry Claiborne............................ 21
3. District Judge Walter Nixon, Jr........................... 23
4. District Judge Alcee Hastings............................. 25
Appendix 2
Constitutional Grounds for Presidential Impeachment, report
written in 1974 by the impeachment inquiry staff of the House
Committee on the Judici- ary................................... 28
[GRAPHIC] [TIFF OMITTED] T3456.000
INTRODUCTION
The United States Constitution provides that ``[t]he
President, Vice President and all civil Officers of the United
States, shall be removed from Office on Impeachment for, and
Conviction of, Treason, Bribery, or other high Crimes and
Misdemeanors.'' \1\
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\1\ U.S. Const. art. II, Sec. 4. ``The House of Representatives . .
. shall have the sole Power of Impeachment.'' Id. at art. I, Sec. 2,
cl. 5. ``The Senate shall have the sole Power to try all
Impeachments.'' Id. at art. I, Sec. 3, cl. 6. ``Judgment in Cases of
Impeachment shall not extend further than to removal from Office, and
disqualification to hold and enjoy any Office of honor, Trust or Profit
under the United States.'' Id. at art. I, Sec. 3, cl. 7.
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In 1974, the House of Representatives directed the
Judiciary Committee to investigate whether sufficient grounds
existed for the House to impeach President Richard Nixon. The
impeachment inquiry staff prepared a memorandum on the
constitutional grounds for presidential impeachment. The staff
memorandum, entitled Constitutional Grounds for Presidential
Impeachment, reported on ``the history, purpose and meaning of
the constitutional phrase, `Treason, Bribery, or other high
Crimes and Misdemeanors.' '' \2\ Then Judiciary Committee
Chairman Peter Rodino, Jr., stated in a foreword that ``the
views and conclusions contained in the report are staff views
and do not necessarily reflect those of the committee or any of
its members.'' \3\ In any event, over the ensuing years the
memorandum has become one of the leading and most cited sources
as to the grounds for impeachment.
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\2\ Staff of House Comm. on the Judiciary, 93rd Cong., 2d Sess.,
Constitutional Grounds for Presidential Impeachment 3 (Comm. Print
1974)(hereinafter cited as ``1974 Staff Report'').
\3\ Id. at iii.
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In 1998, the Committee has again been directed to
investigate whether sufficient grounds exist for the House to
impeach a president. On September 11, the House of
Representatives passed H.Res. 525, which provided that the
Committee review the communication received on September 9 from
Independent Counsel Kenneth Starr in which he transmitted his
determination that substantial and credible information
received by his office might constitute grounds for an
impeachment of President Clinton, and determine whether
sufficient grounds did in fact exist to recommend to the House
that an impeachment inquiry be commenced. \4\ After reviewing
the evidence submitted, the Committee voted to recommend that
an impeachment inquiry be commenced and reported a resolution
to the House authorizing an inquiry. On October 8, the House
passed H.Res. 581, which directed the Committee to conduct such
an inquiry to investigate fully and completely whether
sufficient grounds exist for the House to exercise its
constitutional power to impeach President Clinton.
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\4\ The Ethics in Government Act of 1978, Pub. L. No. 95-521, 92
Stat. 1824 (codified as amended at 28 U.S.C. Sec. Sec. 591-99 (1994 &
Supp. 1996)) provides that an independent counsel ``shall advise the
House of Representatives of any substantial and credible information
which such independent counsel receives, in carrying out the
independent counsel's responsibilities under this chapter, that may
constitute grounds for an impeachment.'' 28 U.S.C. Sec. 595(c) (1994).
See Referral from Independent Counsel Kenneth W. Starr in Conformity
with the Requirements of Title 28, United States Code, Section 595(c),
H.R. Doc. No. 105-310, 105th Cong., 2d Sess. (1998).
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The Chairman of the Committee has asked the impeachment
inquiry staff to update the 1974 report for the benefit of the
Committee's members. The present memorandum was written for
that purpose and is designed to be read in conjunction with the
1974 report (which is attached as an appendix).
This memorandum takes into account the four impeachment
inquiries and three convictions that have taken place since the
1974 report was written. The 1974 report stated that the
``American experience with impeachment [is among the] best
available sources for developing an understanding of the
function of impeachment and the circumstances in which it may
become appropriate in relation to the presidency.'' \5\ The
present memorandum relies on this insight and will utilize the
impeachment proceedings of the last quarter century to provide
guidance to the members of this Committee in the difficult
duties they must perform.
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\5\ 1974 Staff Report, supra note 2, at 4.
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As with the 1974 report, this memorandum's views and
conclusions are those of the staff and do not necessarily
reflect those of the Committee or any of its members.
IMPEACHMENT ``STANDARDS''
The goal of this memorandum is not to define which offenses
in the abstract render a federal official impeachable. The 1974
report recognized why such an effort would be ill-conceived:
Delicate issues of basic constitutional law are
involved. Those issues cannot be defined in detail in
advance of full investigation of the facts. The Supreme
Court of the United States does not reach out, in the
abstract, to rule on the constitutionality of statutes
or of conduct. Cases must be brought and adjudicated on
particular facts in terms of the Constitution.
Similarly, the House does not engage in abstract,
advisory or hypothetical debates about the precise
nature of conduct that calls for the exercise of its
constitutional powers; rather, it must await full
development of the facts and understanding of the
events to which those facts relate.
. . . . [This memorandum] is intended to be a review
of the precedents and available interpretive materials,
seeking general principles to guide the Committee.
This memorandum offers no fixed standards for
determining whether grounds for impeachment exist. The
framers did not write a fixed standard. Instead they
adopted from English history a standard sufficiently
general and flexible to meet future circumstances and
events, the nature and character of which they could
not foresee. \6\
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\6\ Id. at 2.
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A commentator, Michael Gerhardt, writes in his recent book
The Federal Impeachment Process: A Constitutional and
Historical Analysis, \7\ that both Alexander Hamilton and
Supreme Court Justice Joseph Story, the document's greatest
nineteenth century interpreter, share this view. He finds that:
``[t]he implicit understanding shared by Hamilton and Justice
Story was that subsequent generations would have to define on a
case-by-case basis the political crimes comprising impeachable
offenses to replace the federal common law of crimes that never
developed.'' \8\ He quotes Hamilton as stating that ``the
impeachment court could not be `tied down' by strict rules
`either in the delineation of the offense by the prosecutors
[the House of Representatives] or in the construction of it by
the judges [the Senate].' '' \9\ He quotes Story as stating
that `` `political offenses are of so various and complex a
character, so utterly incapable of being defined, or
classified, that the task of positive legislation would be
impracticable, if it were not almost absurd to attempt it.' ''
\10\
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\7\ Michael J. Gerhardt, The Federal Impeachment Process: A
Constitutional and Historical Analysis (1996).
\8\ Id. at 106 (emphasis added).
\9\ Id. at 105 (footnote omitted), quoting The Federalist No. 65,
at 396 (Alexander Hamilton)(Clinton Rossiter ed., 1961).
\10\ Gerhardt, supra note 7, at 105-06 (footnote omitted), quoting
J. Story, Commentaries on the Constitution (R. Rotunda & J. Nowak eds.,
1987).
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The impeachment clause is not the only example of a
constitutional provision that must be interpreted in the
context of the facts of particular cases. The due process
clauses of the fifth and fourteenth amendments are others. \11\
The Supreme Court has stated that ``[i]t is by now well
established that ` `due process,' unlike some legal rules, is
not a technical conception with a fixed content unrelated to
time, place and circumstances.' . . . `[D]ue process is
flexible and calls for such procedural protections as the
particular situation demands.' '' \12\ The Fifth Circuit adds
that `` ` `due process is an elusive concept. Its exact
boundaries are undefinable, and its content varies according to
specific factual contexts.' ' '' \13\
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\11\ ``[N]or shall any person . . . be deprived of life, liberty,
or property, without due process of law. . . .'' U.S. Const. amend. V.
``[N]or shall any State deprive any person of life, liberty, or
property, without due process of law . . . .'' U.S. Const. amend. XIV,
Sec. 1.
\12\ Gilbert v. Homar, 138 L. Ed.2d 121, 127 (1997), quoting
Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 895 (1961) &
Morrissey v. Brewer, 408 U.S. 471, 481 (1972). The Supreme Court has
developed a three factor balancing test to help determine the specific
dictates of due process. See Mathews v. Eldridge, 424 U.S. 319, 335
(1976).
\13\ Hernandez v. Cremer, 913 F.2d 230, 237 (5th Cir. 1990),
quoting Continental Air Lines, Inc. v. Dole, 784 F.2d 1245, 1248 (5th
Cir. 1986) (quoting Woodbury v. McKinnon, 447 F.2d 839, 843 (5th Cir.
1971))(quoting Hannah v. Larche, 363 U.S. 420, 442 (1960)).
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These principles should be kept in mind when interpreting
the impeachment proceedings that follow. Different fact
patterns might lead to different results.
IMPEACHMENTS OF THE 1980's
Three sitting federal judges were impeached in the 1980's.
It is to be hoped that their misdeeds were isolated instances
and not indications of a broader problem in our federal
judicial system. In any event, they were extremely troubling.
The judicial impeachments of the 1980's provide insights
for members of the Committee as they consider possible articles
of impeachment against President Clinton. The offenses
committed by the three judges that led to their impeachments
have some similarities to the offenses President Clinton is
charged with committing.
It has been argued, however, that offenses that can lead to
impeachment when committed by federal judges do not necessarily
rise to this level when committed by a president, because a
different constitutional standard applies. The basis for this
argument is said to be that Article III judges under the
Constitution ``shall hold their Offices during good Behavior''
\14\ and thus that judges are impeachable for ``misbehavior''
while other federal officials are only impeachable for treason,
bribery, and other high crimes and misdemeanors.
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\14\ U.S. Const. art. III, Sec. 1.
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The 1974 Staff Report rejected this argument. The report
asked whether the good behavior clause ``limit[s] the relevance
of the . . . impeachments of judges with respect to
presidential impeachment standards as has been argued by
some[.]'' \15\ The report answered: ``It does not. . . . [T]he
only impeachment provision . . . included in the Constitution .
. . applies to all civil officers, including judges, and
defines impeachment offenses as `Treason, Bribery, and other
high Crimes and Misdemeanors.' '' \16\
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\15\ 1974 Staff Report, supra note 2, at 17.
\16\ Id.
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The conclusion of the staff report is bolstered by the
findings of the National Commission on Judicial Discipline and
Removal, chaired by Robert Kastenmeier, former Chairman of the
Committee's then Subcommittee on Courts, Civil Liberties and
the Administration of Justice and one of the House managers
during the Senate trial of Judge Claiborne. The Commission
concluded that ``the most plausible reading of the phrase
`during good Behavior' is that it means tenure for life,
subject to the impeachment power. . . . The ratification
debates about the federal judiciary seem to have proceeded on
the assumption that good-behavior tenure meant removal only
through impeachment and conviction.'' \17\
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\17\ National Commission on Judicial Discipline and Removal, Report
of the National Commission on Judicial Discipline and Removal 17-18
(1993)(footnote omitted).
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The record of the judicial impeachments which follows also
argues against different standards for impeachable offenses
when committed by federal judges as when committed by
presidents.
A. THE IMPEACHMENT OF JUDGE CLAIBORNE \18\
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\18\ See Appendix 1 for sources and a description of the articles
of impeachment and the proceedings against Judge Claiborne.
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U.S. District Court Judge Harry E. Claiborne was impeached
in 1986. At the time of his impeachment, he was serving a
sentence in federal prison for filing false federal income tax
returns. Judge Claiborne had signed written declarations that
the returns were made under penalty of perjury. The crimes of
violating the Internal Revenue Code for which he was convicted
formed the basis for the three articles of impeachment on which
he was also convicted.
The judgement by Congress regarding Judge Claiborne was
harsh. Hamilton Fish, ranking member of the Judiciary Committee
and one of the House managers in the Senate trial, stated that:
Judge Claiborne's actions raise fundamental questions
about public confidence in, and the public's perception
of, the Federal court system. They serve to undermine
the confidence of the American people in our judicial
system. . . . Judge Claiborne is more than a mere
embarrassment. He is a disgrace--an affront--to the
judicial office and the judicial branch he was
appointed to serve. \19\
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\19\ 132 Cong. Rec. H4713 (daily ed. July 22, 1986).
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Committee Chairman and House manager Peter Rodino, Jr.,
said on the Senate floor that:
Judge Harry E. Claiborne is, and will forever remain,
a convicted felon--a man who cannot legitimately
preside over judicial proceedings, who cannot with any
respect for decency pass judgement on other persons,
and who cannot hope to maintain the trust and the
respect of the American people.
. . . . He has earned a mark of shame, which the
evidence proves is sadly but unequivocally deserved.
\20\
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\20\ 132 Cong. Rec. S15,495-96 (daily ed. Oct. 7, 1986).
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The record of Judge Claiborne's impeachment proceedings
says much about what offenses might justify impeachment. The
proceedings make it clear that an individual can be impeached
for conduct not related to his or her official duties. Hamilton
Fish stated that ``[i]mpeachable conduct does not have to occur
in the course of the performance of an officer's official
duties. Evidence of misconduct, misbehavior, high crimes, and
misdemeanors can be justified upon one's private dealings as
well as one's exercise of public office. That, of course, is
the situation in this case.'' \21\
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\21\ 132 Cong. Rec. H4713 (daily ed. July 22, 1986).
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Representative Fish's views were reinforced by now chairman
of the Judiciary Committee and then House manager Henry Hyde,
who stated that ``the decision to impeach and convict . . .
stands as an admonition to others in public life. It is an
opportunity for Congress to restate and reemphasize the
standards of both personal and professional conduct expected of
those holding high Federal office.'' \22\ House manager Romano
Mazzoli stated that impeachment reached ``corruption,
maladministration, gross neglect of duties and other public and
private improprieties committed by judges and high Government
officials which rendered them unfit to continue in office.''
\23\
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\22\ 132 Cong. Rec. H4716 (daily ed. July 22, 1986).
\23\ 132 Cong. Rec. H4717 (daily ed. July 22, 1986).
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Additional evidence that personal misconduct can lead to
impeachment is provided by the fact that Judge Claiborne's
motion that the Senate dismiss the articles of impeachment for
failure to state impeachable offenses was unsuccessful. One of
the arguments his attorney made for the motion was that ``there
is no allegation . . . that the behavior of Judge Claiborne in
any way was related to misbehavior in his official function as
a judge; it was private misbehavior.'' \24\
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\24\ Hearings Before the Senate Impeachment Trial Committee, 99th
Cong., 2d Sess. 77 (1986)(hereinafter cited as ``Senate Claiborne
Hearings'')(statement of Judge Claiborne's counsel, Oscar Goodman). See
also Memorandum in Support of Motion to Dismiss the Articles of
Impeachment on the Grounds They Do Not State Impeachable Offenses 3
(hereinafter cited as ``Claiborne Motion''), reprinted in Senate
Claiborne Hearings at 245, 246.
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Representative Kastenmeier responded by stating that ``it
would be absurd to conclude that a judge who had committed
murder, mayhem, rape, or perhaps espionage in his private life,
could not be removed from office by the U.S. Senate.'' \25\
Kastenmeier's response was repeated by the House of
Representatives in its pleading opposing Claiborne's motion to
dismiss. \26\
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\25\ Senate Claiborne Hearings, supra note 24, at 81.
\26\ U.S. House of Representatives, Opposition to Motion to Dismiss
Articles of Impeachment for Failure to State Impeachable Offenses 2
(hereinafter cited as ``Opposition to Claiborne Motion''), reprinted in
Senate Claiborne Hearings, supra note 24, at 441, 442.
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The House went on to state that:
[Claiborne's] narrow view of impeachable offenses
expressly was offered and rejected by the Framers of
the Constitution.
. . . . As originally drafted, the impeachment clause
provided that the President should be ``removable on
impeachment and conviction of malpractice or neglect of
duty.'' . . . The provision was subsequently revised to
make the President impeachable for ``treason, bribery
or corruption.'' . . . Colonel Mason moved to add the
phrase ``or maladministration'' after ``bribery.'' . .
. In response, James Madison objected that
``maladministration'' was too narrow a standard. Mason
soon withdrew his amendment and substituted the phrase
``or other high crimes and misdemeanors.'' This
formulation was accepted, along with an amendment to
extend the impeachment sanction to the Vice President
and all other civil officers. . . . The Framers thus
rejected . . . the concepts of professional
``malpractice'' or ``maladministration'' as the sole
basis for the impeachment of federal officials.
The contrary position urged by Judge Claiborne is
incompatible with common sense and the orderly conduct
of government. Little can be added to the succinct
argument of Representative Clayton in 1913 on this
identical point, during the impeachment proceedings
involving Judge Charles Swayne:
. . . . [The contention is that] however serious the
crime, the misdemeanor, or misbehavior of the judge may
be, if it can be said to be extrajudicial, he can not
be impeached. To illustrate this contention, the judge
may have committed murder or burglary and be confined
under a sentence in a penitentiary for any period of
time, however long, but because he has not committed
the murder or burglary in his capacity as judge he can
not be impeached. That contention, carried out
logically, might lead to the very defeat of the
performance of the function confided to the judicial
branch of the government.
. . . . As also noted in one commentary:
An act or a course of misbehavior which renders
scandalous the personal life of a public officer,
shakes the confidence of the people in his
administration of the public affairs, and thus impairs
his official usefulness, although it may not directly
affect his official integrity or otherwise incapacitate
him properly to perform his ascribed functions.
Thus, Judge Claiborne's argument is both inaccurate
and illogical in its extraordinary premise that a
federal judge may intentionally commit a felonious act
outside his judicial functions and automatically find
protection from the impeachment sanction. \27\
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\27\ Opposition to Claiborne Motion, supra note 26, at 3-5
(citations omitted)(emphasis in original).
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Senator Charles Mathias, Jr., chairman of the impeachment
trial committee, referred Judge Claiborne's motion to the full
Senate, it having jurisdiction over the articles of
impeachment. \28\ He did state, however, that:
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\28\ Senate Claiborne Hearings, supra note 24, at 113.
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[I]t is my opinion . . . that the impeachment power
is not as narrow as Judge Claiborne suggests. There is
neither historical nor logical reason to believe that
the Framers of the Constitution sought to prohibit the
House from impeaching . . . an officer of the United
States who had committed treason or bribery or any
other high crime or misdemeanor which is a serious
offense against the government of the United States and
which indicates that the official is unfit to exercise
public responsibilities, but which is an offense which
is technically unrelated to the officer's particular
job responsibilities. \29\
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\29\ Id. at 113-14.
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The Senate never voted on Judge Claiborne's motion.
However, the Senate was clearly not swayed by the arguments
contained therein because the body later voted to convict Judge
Claiborne. The Senate thus agreed with the House that private
improprieties could be, and were in this instance, impeachable
offenses.
The rejection of Judge Claiborne's motion also provides
evidence that the offenses that can lead to impeachment are
similar for both judges and presidents. The motion argued that
``[t]he standard for impeachment of a judge is different than
that for other officers'' and that the Constitution limited
``removal of the judiciary to acts involving misconduct related
to discharge of office.'' \30\
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\30\ Claiborne Motion, supra note 24, at 4.
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Judge Claiborne's attorney stated to the Senate trial
committee that:
[B]ecause of the separation of powers contemplated by
the framers . . . . the standard for impeachment of a
Federal judge is distinct from the standard of
impeachment for the President, Vice President, or other
civil officers of the United States because as we know,
under article II, section 4, the President, Vice
President, and civil officers may be removed on
impeachment for conviction of treason, bribery, or
other high crimes and misdemeanors.
It is our contention that the Federal judiciary, in
order to remain an independent branch, has a different
standard, a separate and distinct standard, as far as
the ability or the disability to be impeached, and that
is that the impeachment process would take place if in
fact the judge, who is the sole . . . lifetime
appointment of all the officers which are referred to
in the Constitution, is not on good behavior, a
separate and distinct standard than that which is
applicable to the elected officials and the officials
who are appointed for a specific term. \31\
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\31\ Senate Claiborne Hearings, supra note 24, at 76-77 (statement
of Oscar Goodman).
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Judge Claiborne's attorney was arguing that federal judges
are not ``civil officers'' and thus that the impeachment
standard in article II, section 4, does not apply; instead,
``misbehavior'' would be the grounds for impeaching a federal
judge. \32\ He admitted his theory would fall if the Senate
concluded that a federal judge was a civil officer. \33\
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\32\ Id. at 78-79. See also Claiborne Motion, supra note 24, at 3-
4.
\33\ Senate Claiborne Hearings, supra note 24, at 79.
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Representative Kastenmeier responded that ``reliance on the
term `good behavior' as stating a sanction for judges is
totally misplaced and virtually all commentators agree that
that is directed to affirming the life tenure of judges during
good behavior. It is not to set them down, differently, as
judicial officers from civil officers.'' \34\ He further stated
that ``[n]or . . . is there any support for the notion that . .
. Federal judges are not civil officers of the United States,
subject to the impeachment clause of article II of the
Constitution.'' \35\
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\34\ Id. at 81-82.
\35\ Id. at 81.
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Kastenmeier's argument was repeated by the House of
Representatives. \36\ The House stated that:
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\36\ Opposition to Claiborne Motion, supra note 26.
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If lack of good behavior were the sole standard for
impeaching federal judges, then a different standard
would apply to civil officers other than judges.
Nowhere in the proceedings of the Constitutional
Convention was such a distinction made. On the
contrary, the proceedings of the Convention show an
intention to limit the grounds of impeachment for all
civil officers, including federal judges, to those
contained in Article II.
On August 20, 1787, a committee was directed to
report on ``a mode of trying the supreme Judges in
cases of impeachment.'' The committee reported back on
August 22 that ``the Judges should be triable by the
Senate.'' . . . Several days later, a judicial removal
provision was added to the impeachment clause. On
September 8, 1787, the judicial removal clause was
deleted and the impeachment clause was expanded to
include the Vice President and all civil officers. . .
. In so doing, the Constitutional Convention rejected a
dual test of ``misbehavior'' for judges and ``high
crimes and misdemeanors'' for all other federal
officials.
In Federalist No. 79, Alexander Hamilton confirmed
this reading of the Convention's actions with respect
to the impeachment standard:
The precautions for [judges'] responsibility, are
comprised in the article respecting impeachments. . . .
This is the only provision on the point, which is
consistent with the necessary independence of the
judicial character, and is the only one which we find
in our Constitution with respect to our own judges.
\37\
---------------------------------------------------------------------------
\37\ Id. at 6-7 (citations omitted).
---------------------------------------------------------------------------
Again, while the Senate never voted on Claiborne's motion,
it did vote to convict the judge. The Senate was not convinced
by Claiborne's argument that the standard of impeachable
offenses was different for judges than for presidents.
In addition to the two articles charging him with filing
false tax returns, Judge Claiborne was found guilty on an
article of impeachment that found that by willfully and
knowingly falsifying his income on his tax returns, he had
``betrayed the trust of the people of the United States and
reduced confidence in the integrity and impartiality of the
judiciary, thereby bringing disrepute on the Federal courts and
the administration of justice by the courts.''
B. THE IMPEACHMENT OF JUDGE NIXON \38\
---------------------------------------------------------------------------
\38\ See Appendix 1 for sources and a description of the articles
of impeachment and the proceedings against Judge Nixon.
---------------------------------------------------------------------------
U.S. District Court Judge Walter L. Nixon, Jr. was
impeached in 1989. At the time of his impeachment, he was
serving a sentence in federal prison for making false
statements to a federal grand jury. He made the false
statements in an attempt to conceal his involvement with an
aborted state prosecution for drug smuggling against the son of
a man who had benefitted Judge Nixon financially with a
``sweetheart'' oil and gas investment. Judge Nixon lied about
whether he had discussed the case with the state prosecutor and
had influenced the state prosecutor to essentially drop the
case. Judge Nixon was acquitted of the charge of accepting an
illegal gratuity. The perjury convictions alone formed the
basis of the two articles of impeachment on which he was found
guilty.
As with Judge Claiborne, Congress was harsh in its
judgement of Judge Nixon. Representative Don Edwards, chairman
of the Judiciary Committee's subcommittee that held hearings on
Judge Nixon and a House manager in the Senate trial, stated
before the Senate trial committee that the judge had
``disobeyed the law, soiled his own reputation, and undermined
the integrity of the judiciary.'' \39\ As to why the crime was
so heinous, Edwards further stated that ``[t]he crime for which
he was convicted, lying to a grand jury in testimony under
oath, is particularly serious because a judge must bear the
awesome responsibility of swearing witnesses, judging
credibility, and finding the truth in cases that come before
him.'' \40\ There was only one answer--impeachment: ``The
pattern of lies, concealment and deceit on the part of Judge
Nixon led the committee, by clear and convincing evidence, to
the unavoidable conclusion that he must be impeached.'' \41\ On
the Senate floor, Edwards asked ``[i]s a man who repeatedly
lied fit to hold the high office of Federal judge? I hope you
agree that the answer is obvious.'' \42\
---------------------------------------------------------------------------
\39\ Hearings Before the Senate Impeachment Trial Committee on the
Articles of Impeachment Against Judge Walter L. Nixon, Jr., a Judge of
the United States District Court for the Southern District of
Mississippi, for High Crimes and Misdemeanors, 101st Cong., 1st Sess.
304 (1989)(hereinafter cited as ``Senate Nixon Hearings'').
\40\ 135 Cong. Rec. 8816 (1989).
\41\ 135 Cong. Rec. 8817 (1989).
\42\ Proceedings of the United States Senate in the Impeachment
Trial of Walter L. Nixon, Jr., a Judge of the United States District
Court for the Southern District of Mississippi, S. Doc. No. 101-22,
101st Cong., 1st Sess. 367 (1989)(hereinafter cited as ``Proceedings of
the United States Senate''). Senator Herbert Kohl asked whether
concealing information from a grand jury is the same as perjury.
Representative Edwards responded that ``the managers firmly believe
that if you make an affirmative statement to a grand jury and purposely
leave material facts out, that would constitute perjury.'' Id. at 418.
---------------------------------------------------------------------------
James Sensenbrenner, ranking member of the Judiciary
Committee's subcommittee that held hearings on Judge Nixon, and
a House manager, also emphasized the damage done by Nixon's
perjury:
Our hearings have produced clear and convincing
evidence that Judge Nixon lied to the law enforcement
authorities during the investigation of the criminal
case as well as to the Federal grand jury. . . . Judge
Nixon thwarted the entire fact finding process by
defining the ``truth, the whole truth, and nothing but
the truth'' as only that which was convenient for Judge
Nixon to disclose at that particular time. \43\
---------------------------------------------------------------------------
\43\ 135 Cong. Rec. 8820 (1989).
---------------------------------------------------------------------------
Representative Charles Schumer, a member of the Judiciary
Committee, reiterated that perjury was worthy of impeachment:
[This] is a case where some of the charges were
dropped and the only conviction was for perjury.
Perjury, of course, is a very difficult, difficult
thing to decide; but as we looked and examined all of
the records and in fact found many things that were not
in the record it became very clear to us that this
impeachment was meritorious.
My colleagues, in conclusion, impeachment is a grave
issue. In this case it is deserved. \44\
---------------------------------------------------------------------------
\44\ 135 Cong. Rec. 8822 (1989).
---------------------------------------------------------------------------
Judge Nixon argued that the third article of impeachment
should be dismissed. This article stated that ``Judge Nixon has
raised substantial doubt as to his judicial integrity,
undermined confidence in the integrity and impartiality of the
judiciary, betrayed the trust of the people of the United
States . . . and brought disrepute on the Federal courts and
the administration of justice by the federal courts . . . .''
It charged that he did this by making a total of 14 false
statements to officials from the Department of Justice and the
Federal Bureau of Investigation and to a federal grand jury,
all regarding the events surrounding the drug smuggling
prosecution.
One of Judge Nixon's arguments against article III was that
``[t]hese allegations do not make out an impeachable offense .
. . .'' \45\ Judge Nixon's contention was that ``an impeachable
offense may be only (i) a judge's abuse of office or (ii) grave
criminal acts.'' \46\ Nixon stated that this was the intent of
the framers of the Constitution, who only intended impeachment
to ``protect the community from abuse of the public trust and
misconduct in office'' \47\ and who believed that `` `[t]he
complete independence of the courts of justice is peculiarly
essential in a limited Constitution.' '' \48\
---------------------------------------------------------------------------
\45\ Judge Nixon's Motion to Dismiss Impeachment Article III 1
(June 23, 1989), reprinted in Senate Nixon Hearings, supra note 39, at
121. The other arguments were that article III contained allegations
that were ``redundant and multiplicitous'' of allegations in other
articles of impeachment and that the article was so ``complex and
confusing'' that it was both ``unfair and completely unworkable.''
Judge Nixon's Motion to Dismiss Impeachment Article III at 1-2.
\46\ Memorandum in Support of Judge Nixon's Motion to Dismiss
Impeachment Article III 3 (hereinafter cited as ``Memorandum in Support
of Nixon Motion''), reprinted in Senate Nixon Hearings, supra note 39,
at 123, 127. Judge Nixon thus disagrees with Judge Claiborne, stating
that ``[I] do not argue that impeachment is . . . limited [to acts
performed in an official capacity] and agree that private criminal
offenses of a grave nature are also impeachable offenses.'' Memorandum
in Support of Nixon Motion at 7 n.3.
\47\ Id. at 7 (footnote omitted).
\48\ Id. at 11-12, quoting The Federalist No. 78, at 466 (Alexander
Hamilton).
---------------------------------------------------------------------------
Nixon argued that article III of the impeachment resolution
did not allege either crimes or abuses of office, but instead
focused on his ``general reputation and character.'' \49\ The
framers' goal would be thwarted by article III, which ``alleges
vague and subjective offenses,'' and ``encompasses almost any
act that the political majority may fine offensive or
distasteful, thereby exposing a judge to impeachment for
controversial acts or conduct.'' \50\ Under the standard of
article III, a judge could be impeached for ``issuing unpopular
judicial decisions,'' ``smoking marijuana'' as a youth,
``driving while intoxicated,'' associating with ``disreputable
members of the community,'' ``openly engaging in an
extramarital affair,'' or ``attending a meeting of the
Communist Party.'' \51\ Finally, ``[w]hat evidence or facts
will a Senator examine to determine whether the courts have
been brought into disrepute . . . [o]r whether public
confidence has been undermined?'' \52\
---------------------------------------------------------------------------
\49\ Memorandum in Support of Nixon Motion, supra note 46, at 15.
\50\ Id. at 3-4.
\51\ Id. at 16.
\52\ Id. at 17.
---------------------------------------------------------------------------
Judge Nixon complained that:
In recent impeachments . . . the House has become
enamored of the tactical device of charging the
respondent with being a generally bad person who has
brought discredit on the judiciary. . . . Judge
Claiborne . . . [was] convicted on such [a] ``catch-
all'' article[]. . . . Both Judges Hastings and Nixon
now face similar catch-all articles. The Senate should
no longer allow such a blatantly unfair prosecutorial
device. . . . \53\
---------------------------------------------------------------------------
\53\ Id. at 14.
---------------------------------------------------------------------------
The House of Representatives responded by arguing that
article III was ``modeled on articles of impeachment from prior
cases that focus on the impact of a judge's misconduct on the
integrity of the judiciary.'' \54\ Article III was ``modeled
upon `omnibus' or `catch-all' articles of impeachment presented
by the House and voted on by the Senate in every impeachment
trial this century that resulted in conviction. . . . Past
`omnibus' impeachment articles contain phraseology virtually
identical to that alleged in Article III. . . .'' \55\
---------------------------------------------------------------------------
\54\ United States House of Representatives, The House of
Representatives' Response to Judge Nixon's Motion to Dismiss
Impeachment Article III 5 (hereinafter cited as ``Response to Nixon
Motion''), reprinted in Senate Nixon Hearings, supra note 39, at 261,
265.
\55\ Response to Nixon Motion, supra note 54, at 8 (emphasis in
original).
---------------------------------------------------------------------------
The House then pointed out that Judge Nixon had conceded
that criminal conduct constituted an impeachable offense and
therefore must agree that ``the alleged concealment of
information by committing perjury before a federal grand jury,
a federal crime . . . state[s] an impeachable offense.'' \56\
---------------------------------------------------------------------------
\56\ Id. at 5-6.
---------------------------------------------------------------------------
The House argued that it was not charging Judge Nixon with
just being a ``bad person,'' but with committing specific acts
which raised doubts about his integrity and that of the
judicial system. \57\ Specifically:
---------------------------------------------------------------------------
\57\ Id. at 6-7.
---------------------------------------------------------------------------
Giving false testimony under oath to a grand jury is
a crime. . . . Because truth is such an indispensable
element of our judicial system, with federal judges
entrusted with the important task of assessing
credibility and finding the truth in cases that come
before them, the notion of permitting a proven liar to
sit on the bench strikes at the heart of the integrity
of the judicial process.
It is difficult to imagine an act more subversive to
the legal process [than] lying from the witness stand.
. . . If a judge's truthfulness cannot be guaranteed,
if he sets less than the highest standard for candor,
how can ordinary citizens who appear in court be
expected to abide by their testimonial oath? \58\
---------------------------------------------------------------------------
\58\ United States House of Representatives, The House of
Representatives' Brief in Support of the Articles of Impeachment 58-59,
reprinted in Proceedings of the United States Senate, supra note 42, at
28, 88-89.
---------------------------------------------------------------------------
The House asserted that ``[t]he Framers would applaud both
Judge Nixon's criminal prosecution and his removal from
office.'' \59\
---------------------------------------------------------------------------
\59\ Response to Nixon Motion, supra note 54, at 8.
---------------------------------------------------------------------------
The Senate voted to deny Judge Nixon's motion to dismiss
the third article of impeachment by a vote of 34 to 63. \60\ It
had done the same when Judge Hastings made a similar motion as
to an omnibus article. \61\
---------------------------------------------------------------------------
\60\ Proceedings of the United States Senate, supra note 42, at
431.
\61\ 135 Cong. Rec. 4533 (1989). See footnotes 124-25 and
accompanying text.
---------------------------------------------------------------------------
The Senate did vote in the end to find Judge Nixon not
guilty as charged in article III. \62\ A possible explanation
for this vote is provided by Senator Herbert Kohl, who found
Judge Nixon guilty as charged in articles I and II but found
him not guilty on article III:
---------------------------------------------------------------------------
\62\ Proceedings of the United States Senate, supra note 42, at
436.
---------------------------------------------------------------------------
Article III is phrased in the disjunctive. It says
that Judge Nixon concealed his conversations through
``one or more'' of 14 false statements. This wording
presents a variety of problems. First of all, it means
that Judge Nixon can be convicted even if two thirds of
the Senate does not agree on which of his particular
statements were false. . . .
The House is telling us that it's OK to convict Judge
Nixon on article III even if we have different visions
of what he did wrong. But that's not fair to Judge
Nixon, to the Senate, or to the American people. . . .
Article III reminds me of the kind [of] menu that
some Chinese restaurants use. We are asked to choose a
combination of selections from column ``A'' and from
column ``B.'' This complicates our deliberations and
puts a tremendous burden on the accused.
I realize that we have used omnibus articles before.
But they did not contain the word ``OR,'' and they did
not allege 14 crimes. In the Claiborne case, for
example, the omnibus article accused him of just two
crimes--falsifying tax returns in 1979 and 1980.
But my basic objection is more fundamental: the
prosecution should not be allowed to use a shotgun or
blunderbuss. We should send a message to the House:
``Please do not bunch up your allegations. From here on
out, charge each act of wrongdoing in a separate count.
Follow the example of prosecutors in court.'' . . .
[E]ven if article III is technically permissible under
the Constitution, Congress can do better. \63\
---------------------------------------------------------------------------
\63\ Id. at 449-50.
---------------------------------------------------------------------------
In any event, the Senate voted to convict Judge Nixon on
two articles of impeachment, both founded upon his making false
statements to a grand jury. The body seems to have agreed with
the House of Representatives as to the seriousness of such
perjury.
C. THE IMPEACHMENT OF JUDGE HASTINGS \64\
---------------------------------------------------------------------------
\64\ See Appendix 1 for sources and a description of the articles
of impeachment and the proceedings against Judge Hastings.
---------------------------------------------------------------------------
U.S. District Court Judge Alcee L. Hastings was impeached
in 1989. He had been acquitted of charges that he and a friend
had conspired to solicit a $150,000 bribe from defendants in a
racketeering and embezzlement case heard by Judge Hastings in
exchange for lenient sentencing. However, in a separate trial,
a jury convicted his alleged co-conspirator on these charges,
and it was alleged that Judge Hastings won acquittal by
committing perjury on the witness stand. Judge Hastings'
involvement in the bribery scheme and his perjury in his
criminal trial formed the basis of the eight articles of
impeachment on which he was convicted.
As with the other judges, the reaction of Congress was
harsh. John Conyers, who was chairman of the Subcommittee on
Criminal Justice (which held the investigatory hearings into
Judge Hastings' conduct) and a House manager, stated that the
judge was ``the architect of his own undoing'' and that ``[w]e
did not wage th[e] civil rights struggle merely to replace one
form of judicial corruption for another.'' \65\ George Gekas,
ranking member of the Subcommittee and a House manager, said
that ``this look that we have just given into the conduct of
Alcee Hastings makes one sick in the stomach.'' \66\
---------------------------------------------------------------------------
\65\ 134 Cong. Rec. 20,214 (1988).
\66\ 134 Cong. Rec. 20,215 (1988).
---------------------------------------------------------------------------
Hamilton Fish, ranking member of the Judiciary Committee
and a House manager, stated that ``Judge Hastings . . . sought
to sell his judicial office for private gain--and later
perverted the legal process by testifying falsely. Such conduct
cannot be tolerated in a public official responsible for
dispensing equal justice under the law.'' \67\
---------------------------------------------------------------------------
\67\ 134 Cong. Rec. 20,217 (1988).
---------------------------------------------------------------------------
The House of Representatives' position before the Senate
was that ``[e]ach and every one of the fourteen instances of
false testimony charged in the Articles of Impeachment
justifies Judge Hastings' removal from the Federal bench.''
\68\ Further, ``[f]ew actions are more subversive of the legal
process than lying on the stand. A judge who has sought to
mislead persons engaged in any aspect of the legal process is
unfit to remain on the bench.'' \69\
---------------------------------------------------------------------------
\68\ United States House of Representatives, Revised Pretrial
Statement of the House of Representatives 3 (July 7, 1989), reprinted
in Hearings Before the Senate Impeachment Trial Committee on the
Articles of Impeachment Against Judge Alcee L. Hastings, a Judge of the
United States District Court for the Southern District of Florida, for
High Crimes and Misdemeanors, 101st Cong., 1st Sess. 941, 943 (1989).
This might be considered hyperbole in that it only takes conviction on
one article of impeachment to remove a federal official from office.
\69\ Revised Pretrial Statement of the House of Representatives,
supra note 68, at 17.
---------------------------------------------------------------------------
Judge Hastings was found guilty by the Senate on seven of
the 12 articles involving false testimony and on the article
stating that he was a participant in the bribery conspiracy. It
is clear from his impeachment that perjury is an impeachable
offense.
The Senate found Judge Hastings not guilty on the last
article of impeachment, which charged that through his actions,
he undermined ``confidence in the integrity and impartiality of
the judiciary and betray[ed] the trust of the people of the
United States, thereby bringing disrepute on the Federal courts
and the administration of justice by the Federal courts.'' The
Senate had earlier, though, refused to dismiss this article.
IMPEACHMENT PROCEEDINGS AGAINST PRESIDENT NIXON \70\
---------------------------------------------------------------------------
\70\ See Appendix 1 for sources and a description of the articles
of impeachment articles and the proceedings against President Nixon.
---------------------------------------------------------------------------
President Richard Nixon resigned in 1974 after the
Judiciary Committee had approved three articles of impeachment
against him. The articles generally revolved around the 1972
burglary at the Washington, D.C., headquarters of the
Democratic National Committee and the president's role in the
ensuing cover-up of the break-in.
The Committee characterized the first article as charging
that:
President Nixon, using the power 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 into the headquarters of the Democratic
National Committee in Washington, D.C., for the purpose
of securing political intelligence; to cover up,
conceal and protect those responsible; and to conceal
the existence and scope of other unlawful covert
activities. \71\
---------------------------------------------------------------------------
\71\ Impeachment of Richard M. Nixon, President of the United
States, H.R. Rep. No. 93-1305, 93rd Cong., 2d Sess. 10
(1974)(hereinafter cited as ``Impeachment of Richard M. Nixon'').
---------------------------------------------------------------------------
The Committee believed that this course of conduct by
President Nixon required ``perjury, destruction of evidence,
obstruction of justice, all crimes. But, most important, it
required deliberate, contrived, and continuing deception of the
American people.'' \72\ The Committee went on to say that:
---------------------------------------------------------------------------
\72\ Id. at 136.
---------------------------------------------------------------------------
[His] 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. \73\
---------------------------------------------------------------------------
\73\ Id.
---------------------------------------------------------------------------
The Committee characterized the second article as charging
that:
President Nixon, using the power of the office of
President of the United States, repeatedly engaged in
conduct which violated the constitutional rights of
citizens; which impaired the due and proper
administration of justice and the conduct of lawful
inquiries, or which contravened the laws governing
agencies of the executive branch and the purposes of
these agencies. \74\
---------------------------------------------------------------------------
\74\ Id. at 10.
---------------------------------------------------------------------------
As to this article, the Committee believed that:
[I]t 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 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. . . . This abuse of the powers of the
President was carried out by Richard M. Nixon . . . for
his own political advantage, not for any legitimate
governmental purpose and without due consideration for
the national good. \75\
---------------------------------------------------------------------------
\75\ Id. at 180.
---------------------------------------------------------------------------
The Committee characterized the third article as charging
that President Nixon failed ``without lawful cause or excuse
and in willful disobedience of the subpoenas of the House, to
produce papers and things that the Committee had subpoenaed in
the course of its impeachment inquiry . . . .'' \76\
---------------------------------------------------------------------------
\76\ Id. at 10-11.
---------------------------------------------------------------------------
The Committee believed that:
[I]n refusing to comply with limited, narrowly drawn
subpoenas . . . 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 obliged to
supply the relevant evidence necessary for Congress to
exercise its constitutional responsibility in an
impeachment proceeding. \77\
---------------------------------------------------------------------------
\77\ Id. at 213.
---------------------------------------------------------------------------
The impeachment proceedings against President Nixon have
become the most famous, or infamous, in the history of the
republic. Unfortunately, it is impossible to know how the House
of Representatives and the Senate would have viewed the
articles of impeachment.
However, it can be said that the first article emphasized
the obstruction of justice by President Nixon and the second
article emphasized his abuse of power. The first article
charged that President Nixon tried to delay, impede, and
obstruct the investigation of the break-in at the Democratic
National Committee by engaging in activities such as making
false and misleading statements to the public and to
governmental investigators, counseling witnesses to give false
or misleading statements to such investigators and in judicial
and congressional proceedings, withholding evidence and
information from such investigators, approving surreptitious
payments to witnesses to obtain their silence or influence
their testimony, and interfering in the conduct of federal
investigations.
The second article charged that President Nixon violated
the constitutional rights of citizens, impaired the
administration of justice and contravened the laws governing
executive agencies by engaging in activities such as trying to
obtain data on persons from the Internal Revenue Service and
causing the agency to engage in improper audits, using
executive branch personnel to conduct improper investigations,
keeping a secret investigative unit in his office, failing to
act when he knew or had reason to know that subordinates were
trying to impede governmental investigations, and interfering
with agencies of the executive branch.
CONCLUSION
Our nation's recent experience with impeachments under the
United States Constitution provides a number of clear guiding
principles for those who must conduct future impeachment
inquiries, draft future articles of impeachment, and vote on
those articles:
First, in most instances of impeachment since
1974, making false and misleading statements under oath
has been the most common compelling basis for
impeachment--whether it is before a jury, a grand jury,
or on a tax return.
Second, the constitutional standard for
impeachable offenses is the same for federal judges as
it is for presidents and all other civil officers.
Third, impeachable offenses can involve both
personal and professional misconduct.
Fourth, impeachable offenses do not have to be
federal or state crimes. \78\
---------------------------------------------------------------------------
\78\ This was also the conclusion of the 1974 Staff Report. See
1974 Staff Report, supra note 2, at 22-25.
---------------------------------------------------------------------------
The research conducted by the staff in 1974, and this
update, are meant to provide guidance and background to members
as they prepare to undertake this constitutional responsibility
of determining whether or not any acts allegedly committed by
the president rise to the level of an impeachable offense.
Impeachment is a unique and distinct procedure established by
the Constitution. Each member must decide for himself or
herself, after the conclusion of the fact-finding process and
in the light of historical precedents, based on his or her own
judgment and conscience, whether the proven acts constitute a
High Crime or Misdemeanor.
A P P E N D I X E S
APPENDIX 1
RECENT AMERICAN IMPEACHMENT PROCEEDINGS
1. PRESIDENT RICHARD NIXON
A. PROCEEDINGS IN THE HOUSE
Various resolutions to impeach President Nixon were
introduced and referred to the Judiciary Committee. \79\ The
House adopted H.Res. 702 on November 15, 1973, which provided
additional funds for the Committee for purposes of considering
the resolutions. \80\ On February 6, 1974, the House adopted
H.Res. 803, a resolution that authorized the Committee to
investigate whether grounds existed to impeach President Nixon.
\81\ From May 9, 1974, until July 17, 1974, the impeachment
inquiry staff made presentations to the Committee of the
results of their investigation and the Committee heard
witnesses. \82\
---------------------------------------------------------------------------
\79\ Impeachment of Richard M. Nixon, supra note 71, at 6.
\80\ Id.
\81\ Id.
\82\ Id. at 9.
---------------------------------------------------------------------------
Beginning on July 24, 1974, the Committee considered a
resolution containing two articles of impeachment, and on July
27, 1974, the Committee agreed to an amended version of the
first article by a vote of 27 to 11.\83\ On July 29, 1974, the
Committee approved an amended version of the second article by
a vote of 28 to 10.\84\ On July 30, 1974, an additional article
(regarding the president's failure to produce items demanded by
congressional subpoenas) was offered and was adopted by a vote
of 21 to 17.\85\
---------------------------------------------------------------------------
\83\ Id. at 10.
\84\ Id.
\85\ Id.
---------------------------------------------------------------------------
Also on July 30, the Committee considered and rejected (by
votes of 12-26) two additional articles. The first charged that
President Nixon authorized and concealed from Congress the
bombing of Cambodia in derogation of the powers of Congress.
The second charged the president with filing false income tax
returns for the years 1969-72 and having received unlawful
emoluments in the form of government expenditures at properties
at San Clemente, California, and Key Biscayne, Florida.\86\
---------------------------------------------------------------------------
\86\ Id. at 11.
---------------------------------------------------------------------------
President Nixon resigned on August 9, 1974.\87\ The
Judiciary Committee report, which recommended that the House
impeach President Nixon and which adopted articles of
impeachment, was accepted by the House through the passage of
H.Res. 1333 on August 20, 1974.\88\ No further proceedings
occurred.
---------------------------------------------------------------------------
\87\ 3 Deschler's Precedents of the United States House of
Representatives, H. Doc. No. 94-661, 94th Cong., 2d Sess., Ch. 14,
Sec. 15.13, 638 (1974).
\88\ Id. at 642.
---------------------------------------------------------------------------
B. ARTICLES OF IMPEACHMENT \89\
---------------------------------------------------------------------------
\89\ Impeachment of Richard M. Nixon, supra note 71, at 1-4.
---------------------------------------------------------------------------
Article I charged that President Nixon had violated his
constitutional duty to faithfully execute his office, preserve,
protect, and defend the Constitution, and take care that the
laws be faithfully executed by interfering with the
investigation of events relating to the June 17, 1972, unlawful
entry at the Washington, D.C., headquarters of the Democratic
National Committee for the purpose of securing political
intelligence. Using the powers of his office, the president
``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.''
Implementation of the course of conduct included (1) making
or causing to be made false or misleading statements to
investigative officers and employees of the United States, (2)
withholding relevant and material evidence or information from
such persons, (3) approving, condoning, acquiescing in, and
counseling witnesses with respect to the giving of false or
misleading statements to such persons as well as in judicial
and congressional proceedings, (4) interfering or endeavoring
to interfere with the conduct of investigations by the
Department of Justice, the Federal Bureau of Investigation, the
Office of Watergate Special Prosecution Force and congressional
committees, (5) approving, condoning, and acquiescing in
surreptitious payments for the purpose of obtaining the silence
of or influencing the testimony of witnesses, potential
witnesses or participants in the unlawful entry or other
illegal activities, (6) endeavoring to misuse the Central
Intelligence Agency, (7) disseminating information received
from the Department of Justice to subjects of investigations,
(8) making false or misleading public statements for the
purpose of deceiving the people of the United States into
believing that a thorough investigation of ``Watergate'' had
taken place, and (9) endeavoring to cause prospective
defendants and persons convicted to expect favored treatment or
rewards in return for silence or false testimony. President
Nixon ``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.''
Article II charged that the President had violated his
constitutional duty to faithfully execute his office, preserve,
protect, and defend the Constitution, and take care that the
laws be faithfully executed by ``repeatedly engag[ing] 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.''
The president did such by (1) personally and through
subordinates trying to obtain for purposes not authorized by
law confidential information maintained by the Internal Revenue
Service and causing the IRS to engage in improper tax audits
and investigations, (2) misusing the FBI, the Secret Service
and other executive personnel by directing them to conduct
improper electronic surveillance and other investigations and
permitting the improper use of information so obtained, (3)
authorizing the maintenance of a secret investigative unit
within the office of the president, partially financed with
campaign contributions, which unlawfully utilized resources of
the CIA and engaged in covert and unlawful activities and
attempted to prejudice the constitutional right of an accused
individual to a fair trial, (4) failing to act when he knew or
had reason to know that subordinates were trying to impede and
frustrate inquiries by governmental entities into the break-in
at the Democratic National Committee and the cover-up and other
matters, and (5) knowingly misusing the executive power by
interfering with agencies of the executive branch, including
the FBI, the Department of Justice, and the CIA, in violation
of his duty to take care that the laws be faithfully executed.
He 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.''
Article III charged that the president had violated his
constitutional duty to faithfully execute his office, preserve,
protect, and defend the Constitution, and take care that the
laws be faithfully executed by, without lawful cause or excuse,
failing to produce items relating to ``Watergate'' as directed
by subpoenas issued by the Judiciary Committee and willfully
disobeying such subpoenas. President Nixon had thus interposed
the powers of the presidency against the lawful subpoenas of
the House of Representatives, ``assuming to himself functions
and judgments necessary to the exercise of the sole power of
impeachment vested by the Constitution in the House. . . .'' He
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.''
C. PROCEEDINGS IN THE SENATE
None.
2. DISTRICT JUDGE HARRY CLAIBORNE
A. PROCEEDINGS IN THE HOUSE
Harry E. Claiborne was a judge of the United States
District Court for the District of Nevada. A resolution to
impeach him, H.Res. 461, was introduced June 3, 1986, and
referred to the Judiciary Committee.\90\ An investigatory
hearing into the conduct of Judge Claiborne was held on June
19, 1986, by the Subcommittee on Courts, Civil Liberties and
the Administration of Justice.\91\ On June 24, 1986, the
Subcommittee amended H.Res. 461 and passed it by a 15 to 0
vote; on June 26, 1986, the full Committee amended the
resolution and ordered it favorably reported to the House by a
vote of 35 to 0.\92\ On June 30, 1986, the Judicial Conference
of the United States notified the House that it had made its
own determination that Judge Claiborne's conduct in violating
section 7206(1) of the Internal Revenue Code could constitute
grounds for impeachment under Article I of the
Constitution.\93\ On July 22, 1986, the House agreed to H.Res.
461 by a vote of 406 to 0.\94\
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\90\ Impeachment of Judge Harry E. Claiborne, H.R. Rep. 99-688,
99th Cong., 2d Sess. 1 (1986).
\91\ Id. at 4.
\92\ Id. at 6-7.
\93\ 132 Cong. Rec. H4712 (daily ed. July 22, 1986). Forwarding a
determination that a judge's impeachment might be warranted is the
severest disciplinary action against a judge that the Judicial
Conference can take under the Judicial Councils Reform and Judicial
Conduct and Disability Act of 1980. See 28 U.S.C. Sec. 372(c)(8)(a)
(1994).
\94\ 132 Cong. Rec. H4721 (daily ed. July 22, 1986).
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B. ARTICLES OF IMPEACHMENT \95\
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\95\ 132 Cong. Rec. S15,760-61 (daily ed. Oct. 9, 1986).
---------------------------------------------------------------------------
Article I charged that, while serving as a federal judge,
Judge Claiborne had filed an income tax return for 1979,
knowing that it substantially understated his income. The
return, filed with the Internal Revenue Service, was verified
by a written declaration that it was made under penalty of
perjury. A jury found beyond a reasonable doubt that Judge
Claiborne had failed to report substantial income in violation
of federal law.
Article II charged that, while serving as a federal judge,
Judge Claiborne had filed an income tax return for 1980,
knowing that it substantially understated his income. The
return, filed with the Internal Revenue Service, was verified
by a written declaration that it was made under penalty of
perjury. A jury found beyond a reasonable doubt that Judge
Claiborne had failed to report substantial income in violation
of federal law.
Article III charged that, while serving as a federal judge,
Judge Claiborne had been found guilty of making and subscribing
false income tax returns for 1979 and 1980 in violation of
federal law and was sentenced to two years imprisonment (with
the terms of imprisonment to be served concurrently) and a fine
of $5000 for each violation.
Article IV charged that Judge Claiborne was ``required to
discharge and perform all the duties incumbent on him and to
uphold and obey the Constitution and laws of the United
States'' and was ``required to uphold the integrity of the
judiciary and to perform the duties of his office
impartially.'' The article concluded that by willfully and
knowingly falsifying his income on his tax returns, he had
``betrayed the trust of the people of the United States and
reduced confidence in the integrity and impartiality of the
judiciary, thereby bringing disrepute on the Federal courts and
the administration of justice by the courts.''
C. PROCEEDINGS IN THE SENATE
Pursuant to S.Res. 481 and rule XI of the Rules of
Procedure and Practice in the Senate When Sitting on
Impeachment Trials, a committee of twelve Senators received
evidence and heard testimony relating to the articles of
impeachment and then provided the transcripts of the
proceedings to the Senate.\96\ Rule XI does not allow the trial
committee to make recommendations to the Senate as to how
Senators should vote on articles of impeachment.\97\ The Senate
found Judge Claiborne guilty as charged in article I by a vote
of 87 to 10 (with one ``present'') and guilty as charged in
article II by a vote of 90 to 7 (with one ``present'').\98\ He
was found not guilty on article III by vote of 46 (guilty) to
17 (not guilty) with 35 ``present''--a two-thirds majority of
Senators present being required for conviction on an article of
impeachment.\99\ Judge Claiborne was convicted of the charge in
article IV by vote of 89 to 8 (with one ``present''). \100\
---------------------------------------------------------------------------
\96\ 132 Cong. Rec. S11,673 (daily ed. Aug. 14, 1986).
\97\ On the Impeachment of Harry E. Claiborne, S. Rep. No. 99-511,
99th Cong., 2d Sess. 1 (1986).
\98\ 132 Cong. Rec. S15,760-61 (daily ed. Oct. 9, 1986).
\99\ 132 Cong. Rec. S15,761 (daily ed. Oct. 9, 1986). See U.S.
Const. art. I, Sec. 3, cl. 6.
The reason for the Senate's vote on this article might have been
that many Senators were concerned that in voting in favor of the
article, they wouldn't be making their own finding of guilt, but would
be accepting as dispositive the jury verdict. See 132 Cong. Rec.
S15,763 (daily ed. Oct. 9, 1986)(statement of Senator Bingaman) & 132
Cong. Rec. S15,767 (daily ed. Oct. 9, 1986)(statement of Senator
Specter).
\100\ 132 Cong. Rec. S15,762 (daily ed. Oct. 9, 1986).
---------------------------------------------------------------------------
3. DISTRICT JUDGE WALTER NIXON
A. PROCEEDINGS IN THE HOUSE
Walter L. Nixon, Jr., was a judge of the United States
District Court for the Southern District of Mississippi. A
federal jury convicted Judge Nixon of two counts of perjury on
February 9, 1986 (acquitting him of an illegal gratuity count),
and he was sentenced to five years imprisonment on each count,
the terms to run concurrently.\101\ Subsequent to the
exhaustion of his appellate rights, on March 15, 1988, the
Judicial Conference transmitted to the House of Representatives
a determination that Judge Nixon's impeachment might be
warranted.\102\ On March 17, 1988, H.Res. 407, a bill
impeaching Judge Nixon, was introduced and referred to the
Judiciary Committee, which in turn referred it to the
Subcommittee on Civil and Constitutional Rights.\103\ The
Subcommittee's investigation, including hearings, proceeded to
the end of the 100th Congress.\104\ H.Res. 87, impeaching Judge
Nixon, was introduced on February 22, 1989, and also referred
to the Subcommittee on Civil and Constitutional Rights.\105\ On
March 21, 1989, the Subcommittee amended the resolution and
voted 8 to 0 to favorably report it to the full Judiciary
Committee, which, on April 25, 1989, voted 34 to 0 to report
the resolution favorably to the House floor.\106\ On May 10,
1989, the House passed H.Res. 87 by vote of 417 to 0.\107\
---------------------------------------------------------------------------
\101\ Impeachment of Walter L. Nixon, Jr., H.R. Rep. No. 101-36,
101st Cong., 1st Sess. 12 (1989).
\102\ Id. at 13.
\103\ Id.
\104\ Id. at 14-15.
\105\ Id. at 15.
\106\ Id. at 15-16.
\107\ 135 Cong. Rec. 8823 (1989).
---------------------------------------------------------------------------
B. ARTICLES OF IMPEACHMENT \108\
---------------------------------------------------------------------------
\108\ Proceedings of the United States Senate, supra note 42, at
432-35.
---------------------------------------------------------------------------
Article I charged that in testimony before a grand jury
investigating his business relationship with an individual and
a state prosecutor's handling of a drug smuggling prosecution
of that individual's son, Judge Nixon knowingly made a false or
misleading statement in violation of his oath to tell the truth
to the effect that he never discussed the prosecution with the
state prosecutor.
Article II charged that in testimony before the same grand
jury, Judge Nixon knowingly made a false or misleading
statement in violation of his oath to tell the truth to the
effect that he never influenced anyone with respect to the drug
smuggling case.
Article III charged that by virtue of his office, Judge
Nixon had ``raised substantial doubt as to his judicial
integrity, undermined confidence in the integrity and
impartiality of the judiciary, betrayed the trust of the people
of the United States, disobeyed the laws of the United States
and brought disrepute on the Federal courts and the
administration of justice by the Federal courts. . . .'' It was
charged that after entering into an oil and gas investment with
an individual, Judge Nixon had conversations with a state
prosecutor and others relative to a pending criminal
proceedings in state court in which the individual's son was
facing drug conspiracy charges. Judge Nixon was charged with
concealing those conversations through a series of false or
misleading statements knowingly made to an attorney from the
Department of Justice and a special agent of the FBI. He was
also charged with concealing those conversations by knowingly
making a series of false or misleading statements to a federal
grand jury during testimony under oath.
C. PROCEEDINGS IN THE SENATE
On May 11, 1989, the Senate passed S.Res. 128.\109\ The
resolution, in conjunction with rule XI of the Rules of
Procedure and Practice in the Senate When Sitting on
Impeachment Trials, provided that a committee of twelve
Senators would receive evidence and hear testimony relating to
the articles of impeachment against Judge Nixon and provide the
transcripts of its proceedings to the Senate. The committee
carried out its duties and transmitted a record of its
proceedings to the Senate on October 16, 1989.\110\ On November
3, 1989, the Senate first rejected Judge Nixon's motion for a
trial by the full Senate by vote of 7 to 90.\111\ It also
rejected his motion to dismiss impeachment article III by vote
of 34 to 63.\112\ He was then found guilty on article I by vote
of 89 to 8 and on article II by vote of 78 to 19, and not
guilty on article III by a vote of 57 (guilty) to 40.\113\
---------------------------------------------------------------------------
\109\ 135 Cong. Rec. 8989 (1989).
\110\ Proceedings of the United States Senate, supra note 42, at
363.
\111\ Id. at 430.
\112\ Id. at 431.
\113\ Id. at 432-36.
---------------------------------------------------------------------------
D. MISCELLANEOUS
Judge Nixon's claim that the Senate had not properly tried
him under the impeachment clause of the Constitution was
rejected by the Supreme Court in Nixon v. United States \114\
as non-justiciable, involving a political question that should
be left to the Senate to decide. He had alleged that Senate
rule XI, which allowed a committee of Senators to hear evidence
and report to the full Senate regarding articles of
impeachment, violated article I, section 3, clause 6 of the
Constitution, which provides that the ``Senate shall have the
sole Power to try all Impeachments.''
---------------------------------------------------------------------------
\114\ 506 U.S. 224 (1993).
---------------------------------------------------------------------------
4. DISTRICT JUDGE ALCEE HASTINGS
A. PROCEEDINGS IN THE HOUSE
Alcee L. Hastings was a judge of the United States District
Court for the Southern District of Florida. On February 4,
1983, a federal jury acquitted Judge Hastings of charges that
he and a friend had conspired to solicit a bribe from
defendants in a criminal case heard by Judge Hastings (while in
a separate trial, a jury had convicted his alleged co-
conspirator on these charges).\115\ On March 17, 1987, the
Chief Justice of the United States, acting on behalf of the
Judicial Conference, transmitted a determination to the House
of Representatives stating that Judge Hastings had engaged in
conduct that might constitute one or more grounds for
impeachment.\116\ The Subcommittee on Criminal Justice
investigated the matter and held numerous hearings.\117\ It was
learned that Judge Hastings had allegedly improperly disclosed
confidential information that he had received while supervising
a wiretap.\118\ On July 7, 1988, the Subcommittee unanimously
voted to adopt articles of impeachment that were introduced as
H.Res. 499; on July 26, 1988, the Committee voted to adopt the
resolution, as amended, by a vote of 32 to 1 (two of the 17
articles were adopted by voice vote).\119\ On August 3, 1988,
the resolution was passed by the House by a vote of 413 to 3
with 4 members answering ``present.'' \120\
---------------------------------------------------------------------------
\115\ Impeachment of Alcee L. Hastings, H.R. Rep. No. 100-810,
100th Cong., 2d Sess. at 8 (1988).
\116\ Id. at 7.
\117\ Id. at 10.
\118\ Id. at 9.
\119\ Id. at 12-13.
\120\ 134 Cong. Rec. 20,221 (1988).
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B. ARTICLES OF IMPEACHMENT \121\
---------------------------------------------------------------------------
\121\ 134 Cong. Rec. 20,206-07 (1988).
---------------------------------------------------------------------------
Article I charged that in 1981, Judge Hastings and a friend
engaged in a conspiracy to obtain $150,000 from defendants in a
racketeering and embezzlement case tried before Judge Hastings
in return for sentences which would not require incarceration.
Article II charged that during the course of his defense
while on trial for the conspiracy, Judge Hastings made a false
statement under oath intending to mislead the trier of fact
regarding whether he had entered into an agreement to seek the
$150,000 bribe.
Article III charged that during the course of his defense,
Judge Hastings made a false statement under oath intending to
mislead the trier of fact regarding whether he had agreed to
modify the sentences of the defendants in the racketeering and
embezzlement case in return for the bribe.
Article IV charged that during the course of his defense,
Judge Hastings made a false statement under oath intending to
mislead the trier of fact regarding whether he had agreed in
connection with the bribe to return property of the defendants
in the racketeering and embezzlement case that he had
previously ordered forfeited.
Article V charged that during the course of his defense,
Judge Hastings made a false statement under oath intending to
mislead the trier of fact regarding whether he had appeared at
a hotel to demonstrate his participation in the bribery scheme.
Article VI charged that during the course of his defense,
Judge Hastings made a false statement under oath intending to
mislead the trier of fact regarding whether he expected his co-
conspirator to show up at his hotel room one day.
Article VII charged that during the course of his defense,
Judge Hastings made a false statement under oath intending to
mislead the trier of fact regarding whether he instructed his
law clerk to prepare an order returning property to the
defendants in the racketeering and embezzlement case in
furtherance of the bribery scheme.
Article VIII charged that during the course of his defense,
Judge Hastings made a false statement under oath intending to
mislead the trier of fact regarding whether a telephone
conversation with his co-conspirator was made in furtherance of
the bribery scheme.
Article IX charged that during the course of his defense,
Judge Hastings made a false statement under oath intending to
mislead the trier of fact regarding whether certain letters
were fabricated in an effort to hide the bribery scheme.
Article X charged that during the course of his defense,
Judge Hastings made a false statement under oath intending to
mislead the trier of fact regarding whether he had actually
spoken to a certain individual during a phone call that was
being offered as exculpatory evidence.
Article XI charged that during the course of his defense,
Judge Hastings made a false statement under oath intending to
mislead the trier of fact regarding whether he had actually
spoken to a certain individual during a phone call that was
being offered as exculpatory evidence.
Article XII charged that during the course of his defense,
Judge Hastings made a false statement under oath intending to
mislead the trier of fact regarding whether he had actually
spoken to a certain individual during a phone call that was
being offered as exculpatory evidence.
Article XIII charged that during the course of his defense,
Judge Hastings made a false statement under oath intending to
mislead the trier of fact regarding whether he could actually
reach a certain individual at a certain phone number.
Article XIV charged that during the course of his defense,
Judge Hastings made a false statement under oath intending to
mislead the trier of fact regarding whether he had actually
made two phone calls that were being offered as exculpatory
evidence.
Article XV charged that during the course of his defense,
Judge Hastings made a false statement under oath intending to
mislead the trier of fact regarding his motive in taking an
airline trip after his co-conspirator had been arrested.
Article XVI charged that while acting as supervising judge
of a federal wiretap, Judge Hastings revealed to certain
individuals highly confidential information disclosed by the
wiretap. The disclosure thwarted, and ultimately led to the
termination of, an investigation by federal law enforcement
agents.
Article XVII charged that through his actions, Judge
Hastings undermined ``confidence in the integrity and
impartiality of the judiciary and betray[ed] the trust of the
people of the United States, thereby bringing disrepute on the
Federal courts and the administration of justice by the Federal
courts.''
C. PROCEEDINGS IN THE SENATE
On September 30, 1988, the Senate passed S.Res. 480 to
carry the impeachment proceedings against Judge Hastings over
to the 101st Congress.'' \122\ On March 16, 1989, the Senate
agreed to S.Res. 38.\123\ The resolution, in conjunction with
rule XI of the Rules of Procedure and Practice in the Senate
When Sitting on Impeachment Trials, provided that a committee
of twelve Senators would receive evidence and hear testimony
relating to the articles of impeachment and provide transcripts
of its proceedings to the Senate. The same day, the Senate
dismissed two motions of Judge Hastings, the first seeking the
dismissal of articles of impeachment I-XV based upon his prior
acquittal and the ensuing lapse of time, and the second seeking
the dismissal of article XVII for its failure to state an
impeachable offense.\124\ The first motion lost by a vote of 1
to 92 and the second motion lost by a vote of 0 to 93.\125\
---------------------------------------------------------------------------
\122\ 134 Cong. Rec. 26,867-68 (1988).
\123\ 135 Cong. Rec. 4533 (1989).
\124\ 135 Cong. Rec. 4532-33 (1989).
\125\ Id.
---------------------------------------------------------------------------
The trial committee sent a record of its proceedings to the
Senate on October 2, 1989.\126\ On October 20, 1989, the Senate
found Judge Hastings to be: guilty on article I by a vote of 69
to 26; guilty on article II by a vote of 68 to 27; guilty on
article III by a vote of 69 to 26; guilty on article IV by a
vote of 67 to 28; guilty on article V by a vote of 67 to 28;
not guilty on article VI by a vote of 48 (guilty) to 47; guilty
on article VII by a vote of 69 to 26; guilty on article VIII by
a vote of 68 to 27; guilty on article IX by a vote of 70 to 25;
not guilty on article XVI by a vote of 0 to 95; and not guilty
on article XVII by a vote of 60 (guilty) to 35.\127\ The Senate
did not vote on articles X through XV.
---------------------------------------------------------------------------
\126\ 135 Cong. Rec. 22,639 (1989).
\127\ 135 Cong. Rec. 25,330-35 (1989).
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D. MISCELLANEOUS
Judge Hastings (with Judge Walter Nixon as intervening
plaintiff) brought suit to stop the impeachment proceedings
alleging that the Senate's use of a trial committee violated
article I, section 3, clause 6 of the Constitution and thus
denied him due process.\128\ The court found the complaint to
be a non-justiciable political question.\129\ Subsequent to his
removal from office, Judge Hastings brought suit challenging
his impeachment on similar grounds. While Hastings initially
prevailed, his victory did not survive the Supreme Court's
decision in Nixon v. United States.\130\
---------------------------------------------------------------------------
\128\ Hastings v. United States Senate, 716 F. Supp. 38 (D.D.C.
1989).
\129\ Id. at 40. The court also rejected other claims of Judge
Hastings, including that his fifth amendment right against double
jeopardy was being violated because he was being impeached after having
been acquitted in a criminal trial, and that he was being denied the
effective assistance of counsel because the Senate would not pay his
attorney's fees. Id. at 41-42.
\130\ Hastings v. United States, 802 F. Supp. 490 (D.D.C. 1992),
vacated and remanded, 988 F.2d 1280 (D.C. Cir. 1993), dismissed 837 F.
Supp. 3 (D.D.C. 1993).
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APPENDIX 2
Constitutional Grounds for Presidential Impeachment, report
written in 1974 by the impeachment inquiry staff of the House
Committee on the Judiciary.
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