[Cannon's Precedents, Volume 6]
[Chapter 201 - The Impeachment and Trial of Harold Louderback]
[From the U.S. Government Publishing Office, www.gpo.gov]
THE IMPEACHMENT AND TRIAL OF HAROLD LOUDERBACK.
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1. Preliminary inquiry by the House. Section 513.
2. Appointment of managers. Section 514.
3. Presentation of articles and postponement of trial. Section
515.
4. Organization of Senate for trial. Section 516.
5. Changes in managers. Section 517.
6. Answer and motion to make more definite. Section 518.
7. Adoption of rules. Section 519.
8. Amendment of articles. Section 520.
9. Answer of respondent to amended articles. Section 521.
10. The replication of the House. Section 522.
11. Presentation of testimony. Section 523.
12. Arguments and judgment. Section 524.
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513. The impeachment and trial of Harold Louderback, Judge of the
Northern District of California.
Instance wherein the local bar association initiated proceedings by
recommending impeachment.
The impeachment proceedings were set in motion through a resolution
introduced by delivery to the Clerk and referred to the Committee on
the Judiciary.
Form of resolution authorizing investigation with a view to
impeachment.
On May 26, 1932,\1\ Mr. Fiorello H. LaGuardia, of New York,
introduced, by delivery at the Clerk's desk, the following resolution
(H. Res. 329):
Resolved, That a special committee of five Members of the House of
Representatives who are members of the Committee on the Judiciary of
the House, the same to be designated by the chairman of said committee,
be, and is hereby, authorized and directed to inquire into the official
conduct of Harold Louderback, a district judge of the United States
District Court for the Northern District of California, and to report
to the Committee on the Judiciary of the House whether in their opinion
the said Harold Louderback has been guilty of any acts which in
contemplation of the Constitution are high crimes or misdemeanors
requiring the interposition of the constitutional powers of the House;
and that the said special committee have power to hold meetings in the
city of Washington, D. C., and elsewhere, and to send for persons and
papers, to administer the customary oaths to witnesses, all process to
be signed by the Clerk of the House of Representatives under its seal
and be served by the Sergeant at Arms of the House or his special
messenger; to sit during the session of the House and until adjournment
of the first session of the Seventy-second Congress and thereafter
until said inquiry is completed, and report to the Committee on the
Judiciary of the House; and be it further
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\1\ First session Seventy-second Congress, Record, p. 11358.
Sec. 513
Resolved, That said special committee be, and the same is hereby,
authorized to employ such stenographic, clerical, and other assistance
as they may deem necessary; and all expenses incurred by said special
committee, including the expenses of such committee when sitting in or
outside the District of Columbia, shall be paid out of the contingent
fund of the House of Representatives on vouchers ordered by said
committee, signed by the chairman of said committee: Provided, however,
That the total expenditures authorized by this resolution shall not
exceed the sum of $5,000.
The resolution was referred to the Committee on the Judiciary, which
reported it back on May 31 \1\ with the conclusion that--
the committee feels that under the circumstances the matter of Judge
Louderback's conduct should be investigated.
On June 9,\2\ on motion of Mr. Hatton W. Sumners, of Texas, from the
Committee on the Judiciary, by unanimous consent, the House proceeded
to the consideration of the resolution and after brief debate agreed to
it without division.
Mr. Sumners included as a part of his remarks a letter from the Bar
Association of San Francisco reciting certain occurrences leading up to
the proposal of impeachment as follows:
San Francisco, Calif., May 24,1932.
Judiciary Committee,
House of Representatives, Washington, D. C.
Sirs: Under date of May 2, 1932, the Bar Association of San Francisco
addressed a communication to His Excellency Herbert Hoover, President
of the United States, with reference to certain matters published in
the press of San Francisco concerning Hon. Harold C. Louderback, judge
of the United States district court at San Francisco, Calif.,
accompanying said communication with clippings from San Francisco
newspapers.
Under date of May 9, 1932, we received an acknowledgment of said
communication from Mr. Lawrence Richey, Secretary to the President,
stating that the matter ``is being referred for consideration of the
Attorney General,'' and thereafter we received a letter dated May 12,
1932, from Mr. Charles P. Sisson, Assistant Attorney General, stating
in effect that our letter addressed to the President had been referred
to the Department of Justice for consideration, and further stating
``that the Department of Justice has no jurisdiction whatsoever over
the United States judges. Criticisms of Federal judges are ordinarily
addressed to the Judiciary Committee of the House of Representatives.''
Pursuant to the suggestion contained in the letter from the Assistant
Attorney General, we are hereby addressing your honorable committee and
forwarding copies of the above-mentioned correspondence, together with
duplicate press clippings, for such action as your committee may deem
proper.
We feel certain that you will readily realize that the interest of
the Bar Association of San Francisco in this matter is solely a public
one and that it is concerned only in preserving the integrity of the
bench, public confidence in, and respect for, the courts and the due
administration of justice. We believe that no department of the
Government should occupy a higher position in the public mind, or
performs a more important function, than that of the courts, and that
it is of the utmost importance they shall be maintained on a plane of
the strictest honesty and efficiency and shall be above suspicion.
Charges against a court or judge, especially when publicly made,
require thorough investigation, not only in the interest of the public
and respect for our judicial system but also in the interest of the
incumbent.
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\1\ House report No. 1461.
\2\ Record, p. 12470.
Sec. 514
If your committee should undertake an investigation of the matters in
question, our association will cheerfully render such assistance as is
within its power, in the hope that whatever the outcome may be the
result will contribute to the maintenance of public confidence in our
courts. Respectfully submitted.
Bar Association of San Francisco,
By Randolph V. Whiting, President.
514. The special committee authorized to conduct the investigation
held hearings at which Judge Louderback appeared in person and by
counsel.
A resolution proposing abatement of impeachment proceedings was held
to be of high privilege.
The member reporting a bill from a committee is entitled to
recognition when the bill is taken up for consideration in the House.
The House, disregarding the majority report of the committee, adopted
the minority recommendation and passed articles of impeachment.
The House by resolution elected five managers, chosen from the
Committee on the Judiciary and from both parties, to carry the
impeachment of Judge Louderback to the Senate.
Pursuant to the terms of the resolution, a special committee was
appointed by the Chairman of the Committee on the Judiciary, from the
membership of the committee, consisting of Mr. Sumners, Mr. Tom D.
McKeown, of Oklahoma, Mr. Gordon Browning, of Tennessee, Mr. Leonidas
C. Dyer, of Missouri, and Mr. LaGuardia.
The special committee held hearings in San Francisco the week of
September 6, 1932, at which Judge Louderback was represented by
counsel, and in Washington, January 16 and 17, at which he appeared in
person.
The special committee then submitted a divided report to the
Committee on the Judiciary.
On February 17, 1933,\1\ Mr. McKeown, by direction of the Committee
on the Judiciary, presented a report to the effect that the special
committee authorized to conduct the investigation had transmitted its
conclusions to the Committee on the Judiciary, and that after
consideration of the findings--
The committee censures the judge for conduct prejudicial to the dignity
of the judiciary in appointing incompetent receivers, for the method of
selecting receivers, for allowing fees that seem excessive, and for a
high degree of indifference to the interest of litigants in
receiverships.
The committee, however, did not consider the circumstances
sufficiently flagrant to warrant impeachment and recommended the
adoption of this resolution:
Resolved, That the evidence submitted on the charges against
Honorable Harold Louderback, district judge for the northern district
of California, does not warrant the interposition of the constitutional
powers of impeachment of the House.
The minority dissented from the majority recommendation and, after
summarizing the several charges of misconduct involved, proposed
articles of impeachment.
On February 24, 1933, \2\ Mr. Sumners, who had submitted minority
views, rising in the House, asked whether he as Chairman of the
Committee on the Judiciary or the Member reporting the resolution by
direction of the committee, was entitled to recognition to debate it.
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\1\ H. Rept. No. 2065.
\2\ Second session Seventy-second Congress, Record, p. 4913.
Sec. 515
The Speaker \1\ replied:
The usual custom is that the Member who has been directed by the
committee to report the bill and who reports the legislation coming
before the House is the one the Chair recognizes.
Whereupon, the Speaker recognized Mr. McKeown, who called up the
resolution reported by the committee.
Mr. Bertrand H. Snell, of New York, inquired whether a resolution of
this character could be considered as privileged.
The Speaker replied that, inasmuch as it related to the abatement of
impeachment proceedings, it was of the highest privilege.
In the course of the debate on the resolution, Mr. LaGuardia offered
the following as a substitute:
Resolved, That Harold Louderback, who is a United States district
judge of the northern district of California, be impeached of
misdemeanors in office; and that the evidence heretofore taken by the
special committee of the House of Representatives under House
Resolution 239 sustains five articles of impeachment, which are
hereinafter set out; and that the said articles be, and they are
hereby, adopted by the House of Representatives, and that the same
shall be exhibited to the Senate in the following words and figures, to
wit:
Articles of impeachment of the House of Representatives of the United
States of America in the name of themselves and of all of the people of
the United States of America against Harold Louderback, who was
appointed, duly qualified, and commissioned to serve during good
behavior in office as United States district judge for the northern
district of California on April 17, 1928.
(The substitute then set forth the articles of impeachment proposed
by the minority.)
After extended debate, the substitute was agreed to on a yea and nay
vote, and on February 27,\2\ on motion of Mr. Sumners, it was--further:
Resolved, That Hatton W. Sumners, Gordon Browning, Malcolm C. Tarver,
Fiorello H. LaGuardia, and Charles I. Sparks, Members of this House,
be, and they are hereby, appointed managers to conduct the impeachment
against Harold Louderback, United States district judge for the
northern district of California; and said managers are hereby
instructed to appear before the Senate of the United States and at the
bar thereof in the name of the House of Representatives and of all the
people of the United States to impeach the said Harold Louderback of
misdemeanors in office and to exhibit to the Senate of the United
States the articles of impeachment against said judge which have been
agreed upon by the House; and that the said managers do demand the
Senate take order for The appearance of said Harold Louderback to
answer said impeachment, and demand his impeachment, conviction, and
removal from office.
Of the five managers thus selected to conduct the impeachment
proceedings on behalf of the House, three were of the majority party,
two were of the minority, and all were members of the Committee on the
Judiciary.
515. The ceremonies of presenting to the Senate the articles of
impeachment.
The impeachment proceedings having been presented in the Senate
during the closing days of the Seventy-second Congress, were made the
special order for the first day of the first session of the succeeding
Congress.
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\1\ John N. Garner, of Texas, Speaker.
\2\ Second session Seventy-second Congress, Record, p. 5177.
Sec. 515
A decision holding that a motion relating to a question of the Senate
sitting as a court of impeachment is not debatable.
The Senate having been informed, on February 28,\1\ by message, of
the action \2\ of the House of Representatives, transmitted to the
House on the same day \3\ a message announcing its readiness to receive
the managers appointed by the House for the purpose of exhibiting the
articles of impeachment.
On March 3,\4\ the managers on the part of the House appeared before
the Senate and were received with the formalities customarily observed
on such occasions.
Mr. Manager Sumners read the resolution \5\ agreed to by the House
appointing its managers, and yielded to Mr. Manager Browning, who read
the articles of impeachment, as follows:
articles of impeachment against harold louderback
Congress of the United States of America,
In the House of Representative,
February 24, 1933.
Resolution
Resolved, That Harold Louderback, who is a United States district
judge of the northern district of California, be impeached of
misdemeanors in office; and that the evidence heretofore taken by the
special committee of the House of Representatives under House
Resolution 239, sustains five articles of impeachment, which are
hereinafter set out; and that the said articles be, and they are
hereby, adopted by the House of Representatives, and that the same
shall be exhibited to the Senate in the following words and figures, to
wit:
Articles of impeachment of the House of Representatives of the United
States of America in the name of themselves and of all of the people of
the United States of America against Harold Louderback, who was
appointed, duly qualified, and commissioned to serve during good
behavior in office, as United States district judge for the northern
district of California, on April 17, 1928.
Article I
That the said Harold Louderback, having been nominated by the
President of the United States, confirmed by the Senate of the United
States, duly qualified and commissioned and while acting as a district
judge for the northern district of California did on divers and various
occasions so abuse the power of his high office, that he is hereby
charged with tyranny and oppression, favoritism and conspiracy, whereby
he has brought the administration of justice in said district in the
court of which he is a judge into disrepute, and by his conduct is
guilty of misbehavior, falling under the constitutional provision as
ground for impeachment and removal from office.
In that the said Harold Louderback on or about the 13th day of March,
1930, at his chambers and in his capacity as judge aforesaid, did
willfully, tyrannically, and oppressively discharge one Addison G.
Strong, whom he had on the 11th day of March, 1930, appointed as equity
receiver in the matter of Olmsted against Russell-Colvin Co. after
having attempted to force and coerce the said Strong to appoint one
Douglas Short as attorney for the receiver in said case.
In that the said Harold Louderback improperly did attempt to cause
the said Addison G. Strong to appoint the said Douglas Short as
attorney for the receiver by promises of allowance of large fees and by
threats of reduced fees did he refuse to appoint said Douglas Short.
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\1\ H. Res. 403, Record, p. 5178.
\2\ Record, p. 5193.
\3\ Record, p. 5195.
\4\ Record, p. 5473.
\5\ H. Res. 402, Record, p. 5177.
Sec. 515
In that the said Harold Louderback improperly did use his office and
power of district judge in his own personal interest by causing the
appointment of the said Douglas Short as attorney for the receiver, at
the instance, suggestion, or demand of one Sam Leake, to whom the said
Harold Louderback was under personal obligation, the said Sam Leake
having entered into a certain arrangement and conspiracy with the said
Harold Louderback to provide him, the said Harold Louderback, with a
room at the Fairmont Hotel in the city of San Francisco, Calif., and
made arrangements for registering said room in his, Sam Leake's name
and paying all bills therefor in cash under an arrangement with the
said Harold Louderback, to be reimbursed in full or in part in order
that the said Harold Louderback might continue to actually reside in
the city and county of San Francisco after having improperly and
unlawfully established a fictitious residence in Contra Costa County
for the sole purpose of improperly removing for trial to said Contra
Costa, County a cause of action which the said Harold Louderback
expected to be filed against him; and that the said Douglas Short did
receive large and exorbitant fees for his services as attorney for the
receiver in said action, and the said Sam Leake did receive certain
fees, gratuities, and loans directly or indirectly from the said
Douglas Short amounting approximately to $1,200.
In that the said Harold Louderback entered into a conspiracy with the
said Sam Leake to violate the provisions of the California Political
Code in establishing a residence in the county of Contra Costa when the
said Harold Louderback in fact did not reside in said county and could
not have established a residence without the concealment of his actual
residence in the county of San Francisco, covered and concealed by
means of the said conspiracy with the said Sam Leake, all in violation
of the law of the State of California.
In that the said Harold Louderback, in order to give color to his
fictitious residence in the county of Contra Costa, all for the purpose
of preparing and falsely creating proof necessary to establish himself
as a resident of Contra Costa County in anticipation of an action he
expected to be brought against him, for the sole purpose of meeting the
requirements of the Code of Civil Procedure of the State of California
providing that all causes of action must be tried in the county in
which the defendant resides at the commencement of the action, did in
accordance with the conspiracy entered into with the said Sam Leake
unlawfully register as a voter in said Contra Costa County, when in law
and in fact he did not reside in said county and could not so register,
and that the said acts of Harold Louderback constitute a felony defined
by section 42 of the Penal Code of California.
Wherefore the said Harold Louderback was and is guilty of a course of
conduct improper, oppressive, and unlawful and is guilty of misbehavior
in office as such judge and was and is guilty of a misdemeanor in
office.
Article II
That Harold Louderback, judge as aforesaid, was guilty of a course of
improper and unlawful conduct as a judge, filled with partiality and
favoritism in improperly granting excessive, exorbitant, and
unreasonable allowances as disbursements to one Marshall Woodward and
to one Samuel Shortridge, jr., as receiver and attorney, respectively,
in the matter of the Lumbermen's Reciprocal Association.
And in that the said Harold Louderback, judge as aforesaid, having
improperly acquired jurisdiction of the case of the Lumbermen's
Reciprocal Association contrary to the law of the United States and the
rules of the court did, on or about the 29th day of July, 1930, appoint
one Marshall Woodward and one Samuel Shortridge, jr., receiver and
attorney, respectively, in said case, and after an appeal was taken
from the order and other acts of the judge in said case to the United
States Circuit Court of Appeals for the Ninth Circuit and the said
order and acts of the said Harold Louderback having been reversed by
said United States Circuit Court of Appeals and the mandate of said
circuit court of appeals directed the court to cause the said receiver
to turn over all of the assets of said association in his possession as
receiver to the commissioner of insurance of the State of California,
the said Harold Louderback unlawfully, improperly, and oppressively did
sign and enter an order so directing the receiver to turn over said
property to said State commissioner of insurance but improperly and
unlawfully made such order conditional that the said State commissioner
of insurance and any other party in interest would not take an
Sec. 515
appeal from the allowance of fees and disbursements granted by the said
Harold Louderback to the said Marshall Woodward and Samuel Shortridge,
jr., receiver and attorney, respectively, thereby improperly using his
said office as a district judge to favor and enrich his personal and
political friends and associates to the detriment and loss of litigants
in his, said judge's court, and forcing said State commissioner of
insurance and parties in interest in said action unnecessary delay,
labor, and expense in protecting the rights of all parties against such
arbitrary, improper, and unlawful order of said judge; and that the
said Harold Louderback did improperly and unlawfully seek to coerce
said State commissioner of insurance and parties in interest in said
action to accept and acquiesce in the excessive fees and the exorbitant
and unreasonable disbursements granted by him to said Marshall Woodward
and Samuel Shortridge, jr., receiver and attorney, respectively, and
did improperly and unlawfully force and coerce the said parties to
enter into a stipulation modifying said improper and unlawful order and
did thereby make it necessary for the State commissioner of insurance
to take another appeal from the said arbitrary, improper, and unlawful
action of the said Harold Louderback.
In that the said Harold Louderback did not give his fair, impartial,
and judicial consideration to the objections of the said State
commissioner of insurance against the allowance of excessive fees and
unreasonable disbursements to the said Marshall Woodward and Samuel
Shortridge, jr., receiver and attorney, respectively, in the case of
the Lumbermen's Reciprocal Association, in order to favor and enrich
his friends at the expense of the litigants and parties in interest in
said matter, and did thereby cause said State commissioner of insurance
and the parties in interest additional delay, expense, and labor in
taking an appeal to the United States Circuit Court of Appeals in order
to protect their rights and property in the matter against the partial,
oppressive, and unjudicial conduct of said Harold Louderback.
Wherefore, said Harold Louderback was and is guilty of a course of
conduct oppressive and unjudicial and is guilty of misbehavior in
office as such judge and was and is guilty of a misdemeanor in office.
Article III
The said Harold Louderback, judge aforesaid, was guilty of
misbehavior in office resulting in expense, disadvantage, annoyance,
and hindrance to litigants in his court in the case of the Fageol Motor
Co., for which he appointed one Guy H. Gilbert receiver, knowing that
the said Gilbert was incompetent, unqualified, and inexperienced to act
as such receiver in said case.
In that the said Harold Louderback, judge as aforesaid, oppressively
and in disregard of the rights and interests of litigants in his court
did appoint one Guy H. Gilbert as receiver for the Fageol Motor Co.,
knowing the said Guy H. Gilbert to be incompetent, unfit, and
inexperienced for such duties, and did refuse to grant a hearing to the
plaintiff, defendant, creditors, and parties in interest in the matter
of the Fageol Motor Co. on the appointment of said receiver, and the
said Harold Louderback did cause sad litigants and parties in interest
in said matter to be misinformed of his action while said Guy H.
Gilbert took steps necessary to qualify as receiver, thereby depriving
said litigants and parties in interest of presenting the facts,
circumstances, and conditions of the said equity receivership, the
nature of the business and the type of person necessary to operate said
business in order to protect creditors, litigants, and all parties in
interest, and thereby depriving said parties in interest of the
opportunity of protesting against the appointment of an incompetent
receiver.
Wherefore the said Harold Louderback was and is guilty of a course of
conduct constituting misbehavior as said judge and that said Harold
Louderback was and is guilty of a misdemeanor in office.
Article IV
That the said Harold Louderback, judge aforesaid, was guilty of
misbehavior in office, filled with partiality and favoritism, in
improperly, willfully, and unlawfully granting on insufficient and
improper papers an application for the appointment of a receiver in the
Prudential Holding Co. case for the sole purpose of benefiting and
enriching his personal friends and associates.
In that the said Harold Louderback did on or about the 15th day of
August, 1931, on insufficient and improper application, appoint one Guy
H. Gilbert receiver for the Prudential
Sec. 515
Holding Co. case when as a matter of fact and law and under conditions
then existing no receiver should have been appointed, but the said
Harold Louderback did accept a petition verified on information and
belief by an attorney in the case and without notice to the said
Prudential Holding Co. did so appoint Guy H. Gilbert the receiver and
the firm of Dinkelspiel and Dinkelspiel attorneys for the receiver;
that the said Harold Louderback in an attempt to benefit and enrich the
said Guy H. Gilbert and his attorneys, Dinkelspiel and Dinkelspiel,
failed to give his fair, impartial, and judicial consideration to the
application of the said Prudential Holding Co. for a dismissal of the
petition and a discharge of the receiver, although the said Prudential
Holding Co. was in law entitled to such dismissal of the petition and
discharge of the receiver; that during the pendency of the application
for the dismissal of the petition and for the discharge of the receiver
a petition in bankruptcy was filed against the said Prudential Holding
Co. based entirely and solely on an allegation that a receiver in
equity had been appointed for the said Prudential Holding Co., and the
said Harold Louderback then and there willfully, improperly, and
unlawfully, sitting in a part of the court to which he had not been
assigned at the time, took jurisdiction of the case in bankruptcy and
though knowing the facts in the case and of the application then
pending before him for the dismissal of the petition and the discharge
of the equity receiver, granted the petition in bankruptcy and did on
the 2d day of October, 1930, appoint the same Guy H. Gilbert receiver
in bankruptcy and the said Dinkelspiel and Dinkelspiel attorneys for
the receiver, knowing all of the time that the said Prudential Holding
Co. was entitled as a matter of law to have the said petition in equity
dismissed; in that through the oppressive, deliberate, and willful
action of the said Harold Louderback acting in his capacity as a judge
and misusing the powers of his judicial office for the sole purpose of
benefiting and enriching said Guy H. Gilbert and Dinkelspiel and
Dinkelspiel, did cause the said Prudential Holding Co. to be put to
unnecessary delay, expense, and labor and did deprive them of a fair,
impartial, and judicial consideration of their rights and the
protection of their property, to which they were entitled.
Wherefore the said Harold Louderback was, and is, guilty of a course
of conduct constituting misbehavior as said judge and that said Harold
Louderback was, and is, guilty of a misdemeanor in office.
Article V
That Harold Louderback, on the 17th day of April, 1928, was duly
appointed United States district judge for the northern district of
California, and has held such office to the present day.
That the said Harold Louderback as judge aforesaid, during his said
term of office, at divers times and places when acting as such judge,
did so conduct himself in his said court and in his capacity as judge
in making decisions and orders in actions pending in his said court and
before him as said judge, and in the method of appointing receivers and
attorneys for receivers, in appointing incompetent receivers, and in
displaying a high degree of indifference to the litigants in equity
receiverships, as to excite fear and distrust and to inspire a
widespread belief in and beyond said northern district of California
that causes were not decided in said court according to their merits,
but were decided with partiality and with prejudice and favoritism to
certain individuals, particularly to receivers and attorneys for
receivers by him so appointed, all of which is prejudicial to the
dignity of the judiciary.
All to the scandal and disrepute of said court and the administration
of justice therein.
Wherefore the said Harold Louderback was, and is, guilty of
misbehavior as such judge and of a misdemeanor in office.
[SEAL.]
Jno. N. Garner,
Speaker of the House of Representatives.
Attest:
South Trimble, Clerk.
Mr. Manager Sumners then entered a reservation of the right to
exhibit at any time thereafter any further articles of accusation or
impeachment, and made formal announcement that the managers on the part
of the House of Representatives--
do now demand that the Senate take order for the appearance of said
Harold Louderback to answer said impeachment, and do now demand his
impeachment, conviction, and removal from office.
Sec. 516
The Vice President responded:
The Chair will state to the managers on the part of the House that
the Senate will take proper order on the subject of impeachment, of
which due notice shall be given to the House of Representatives.
On motion of Mr. George W. Norris, of Nebraska, the articles of
impeachment were ordered printed for the use of the Senate.
Mr. Norris further submitted:
Mr. President, under the Rules of the Senate governing impeachment
trials, it would be the duty of the Senate tomorrow at 1 o'clock to
organize itself into a court and take the necessary oath, and then
proceed with the trial.
It is evident that we shall not be able to comply with the rules now,
because this session of Congress will adjourn at 12 o'clock to-morrow,
and therefore I ask unanimous consent that the further consideration of
the impeachment charges presented by the managers on the part of the
House of Representatives be deferred until 2 o'clock on the first day
of the first session of the Seventy-third Congress.
The Vice President submitted the request to the Senate, when Mr. Huey
P. Long, of Louisiana, objected.
Thereupon, Mr. Norris moved that the impeachment proceedings be made
the special order for 2 o'clock on the first day of the first session
of the Seventy-third Congress.
Mr. Henry F. Ashurst, of Arizona, addressed the Chair and asked for
recognition to debate the motion.
The Vice President held that inasmuch as the motion related to a
question of the Senate sitting as a Court of Impeachment, it was not
debatable, and recognized all who addressed themselves to the question
by unanimous consent only.
Discussion by consent having been concluded, the motion was agreed
to; the managers on the part of the House withdrew; and the Senate
proceeded to its legislative business.
516. The organization of the Senate for the impeachment trial of
Judge Louderback.
A Senator was designated by resolution to administer the oath to the
Presiding Officer, who in turn administered the oath simultaneously to
all Senators standing in their places.
Certain Senators on their statements were excused from participation
in the impeachment proceedings.
Various Senators were excused from voting on a part or all of the
articles of impeachment.
On March 9, 1933,\1\ the Senate, sitting as a Court of Impeachment,
met at 2 o'clock p.m. under its previous order.
On motion of Mr. Norris, Mr. William F. Borah, of Idaho, was
designated by the Senate to administer the oath to the presiding
officer of the Court of Impeachment.
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\1\ First session, Seventy-third Congress, Record, p. 47.
Sec. 516
Mr. Borah administered the oath to the Vice President as follows:
You do solemnly swear that in all things appertaining to the trial of
the impeachment of Harold Louderback, a district judge for the northern
district of California, now pending, you will do impartial justice
according to the Constitution and laws. So help you God.
Mr. Borah then announced:
Mr. President, I want to make a personal statement before the oath is
taken. I feel that I ought not to sit in this matter by reason of some
things which transpired at the time of the appointment of Judge
Louderback. The question which I wish to submit now is, Should I make
that excuse definite at this time or will it be proper after the oath
is taken?
Mr. Ashurst suggested:
In my judgment, such statement should be made after Senators shall
have taken the oath as members of the court; only the court should
excuse Senators from duties to be performed in the court. Care should
be taken as to establishing precedents. In strict practice, under the
English procedure and under the American procedure, there is no such
thing as an impeachment juror or Senator escaping from his
responsibility to compose the court. Indeed, in the Andrew Johnson
impeachment case, Senator Ben. F. Wade, then the President pro tempore,
who would have become President had the impeachment succeeded, was
asked to stand aside, but it was determined that there was no way by
which he, Senator Wade, could be disqualified and thus made to stand
aside. But I am sure, if a Senator should declare that he is
disqualified, he could not and should not be required to hear evidence
or to render a verdict.
Mr. Hiram W. Johnson, of California, dissented and said:
Mr. President, in order that the matter may be brought to a head, I
ask unanimous consent of those who sit here as a court of impeachment
or are about to take the oath as jurors or Senators in the court of
impeachment, that I be permitted to stand aside in this trial. There
are certain incidents which have occurred which, in my opinion, render
it improper that I should sit as a judge in this case. I do not wish to
detail them, of course, because I feel that in the detailing of them I
might do or say something which ought not to be done or said. But while
certain of myself, Mr. President, perhaps feeling that I might lean
backward one way or the other in a case of this sort, I do not think
that I ought to sit in the case, and I ask unanimous consent of the
Senate that I may stand aside in the trial of Harold Louderback about
to begin.
The question being put, there was no objection and the Vice President
announced that the Senator from California was excused.
A similar request by Mr. Borah was agreed to.
Subsequently,\1\ Mr. John H. Overton, of Louisiana, requested:
Mr. President, I wish to make a statement. I was a Member of the
House of Representatives at the time the articles of impeachment were
preferred against Judge Louderback. I voted against the impeachment. I
thought that matter should be tendered to the Chair and Members of the
Senate before the court convened; but other Senators occupy the same
position that I occupy and I wished to consult with them before making
the statement. After consulting with them and consulting with some
senior Senators who are experienced in such matters, I have come to the
conclusion that under all the circumstances it would be proper that I
ask to be excused from sitting as a member of the court which I
accordingly do.
-----------------------------------------------------------------------
\1\ First session, Seventy-third Congress, Record, p. 49.
Sec. 516
The request was granted.
Requests by Mr. Augustine Lonergan,\1\ of Connecticut, and Mr.
William H. Dieterich,\2\ of Illinois, to be excused for the same reason
were likewise agreed to.
Thereupon the Vice President said:
Will members of the court permit the Chair to make a statement? The
Chair presided in the House at the time impeachment proceedings were
considered by that body. The Chair did not have occasion to vote or in
any way express himself concerning the merits of the case. The Chair
thought that members of the court ought to know the situation so that
if they have any doubt as to the qualifications of the Chair to act as
the presiding officer of the court, they may act accordingly.
There was no response.
On May 23,\3\ at the conclusion of the testimony in the trial, Mr.
Royal S. Copeland, of New York, submitted:
Mr. President, on account of illness, I have been away from the
Chamber for a number of days. I have heard none of the testimony, and
feel myself incompetent either to vote or to continue as a member of
the court. Therefore I ask unanimous consent that I may be excused from
further attendance and from voting in the Impeachment Court.
The request being submitted to the Senate by the Presiding Officer,
there was no objection, and Mr. Copeland was excused.
On the succeeding day \4\ and following the deliberative session of
the Senate immediately preceding the vote on the articles of
impeachment, Mr. Carter Glass, of Virginia, requested:
Mr. President, on the advice of the distinguished chairman of the
Judiciary Committee, the Senator from Arizona, Mr. Ashurst, I am taking
the first and last opportunity to say that I shall ask the Senate to
excuse me from voting on these various articles of impeachment, for the
reason that other public duties have made it impossible for me to be
present and hear more than fragments of the testimony adduced in this
proceeding and none, of the arguments presented. Therefore I feel that
under my oath I am not so advised as to be able to render a verdict as
a juror, and I shall ask the Senate to excuse me from voting.
There being no objection, the Senator was excused from voting on the
impeachment.
At this stage of the proceedings, by unanimous consent, Mr. Thomas P.
Gore, of Oklahoma, was also excused from voting, on account of
unavoidable absence, and Mr. Henrik Shipstead, of Minnesota, and Mr.
Edward P. Costigan, of Colorado, were excused from voting on the first
four articles.
On motion of Mr. Joseph T. Robinson, of Arkansas, by unanimous
consent, the oath was administered simultaneously to all the Senators
present as follows:
You do each solemnly swear that in all things appertaining to the
trial of the impeachment of Harold Louderback, United States district
judge for the northern district of California, now pending, you will do
impartial justice according to the Constitution and laws. So help you
God.
On motion of Mr. Norris it was--
Ordered, That the Secretary notify the House of Representatives that
the Senate is now organized for the trial of articles of impeachment
against Harold Louderback, United States
-----------------------------------------------------------------------
\1\ Record, p. 49.
\2\ Record, p. 1469.
\3\ Record, p. 3994.
\4\ Record, p. 4082.
Sec. 517
district judge for the northern district of California, and is ready to
receive the managers on the part of the House at its bar.
On March 13, 1933,\1\ at the hour previously designated for the court
to assemble, the Senate sitting as a Court of Impeachment convened; by
unanimous consent, the journal of the court was considered as read and
approved; the managers of the impeachment on the part of the House of
Representatives appeared, were announced, and conducted to the seats
assigned them; and proclamation of the sitting of the court was made by
the Sergeant at Arms.
Mr. Ashurst announced that if it met with the approval of the
managers on the part of the House he proposed to submit the following:
Ordered, That a summons be issued as required by the rules of
procedure and practice in the Senate, when sitting for the trial of the
impeachment against Harold Louderback, United States district judge for
the northern district of California, returnable on Tuesday, the 11th
day of April, 1933, at 12.30 o'clock in the afternoon.
Mr. Manager Sumners, speaking for the managers, approved the form of
the order and it was agreed to.
517. Managers of an impeachment being no longer Members of the House
by reason of the expiration of their terms, successors were elected.
Discussion of the power of the House to appoint managers to continue
in office in that capacity after the expiration of the term for which
they were elected to the House.
A resolution providing for the selection of managers of an
impeachment was admitted as a matter of privilege.
Instance wherein the number of managers of an impeachment was
increased after the institution of proceedings in the Senate.
On March 22,\2\ Mr. Manager Sumners rising in the House, offered this
resolution:
Whereas in the Seventy-second Congress, on the 27th day of February,
1933, Hatton W. Sumners, Gordon Browning, Malcolm C. Tarver, Fiorello
H. LaGuardia, and Charles 1. Sparks, Members of the House of
Representatives, were appointed managers on the part of the House of
Representatives to conduct the impeachment against Harold Louderback, a
United States district judge for the northern district of California;
and
Whereas the said LaGuardia and Sparks are no longer Members of the
House of Representatives:
Resolved, That Randolph Perkins and U. S. Guyer, Members of the House
of Representatives, be, and they are hereby, appointed to serve with
the said Hatton W. Sumners,- Gordon Browning, and Malcolm C. Tarver as
the managers on the part of the House of Representatives to conduct the
impeachment pending in the United States Senate against Harold
Louderback, a United States district judge for the northern district of
California.
Mr. Edward W. Goss, of Connecticut, submitted a parliamentary inquiry
as to the privilege of the resolution.
The Speaker held it to be privileged.
Mr. Robert Luce, of Massachusetts, raised a question as to the power
of the House to appoint managers beyond the term of their office as
Representatives.
-----------------------------------------------------------------------
\1\ Record, p. 260.
\2\ Record, p. 768.
Sec. 517
In reply, Mr. Sumners said:
My judgment, after careful examination, is that the House of
Representatives may appoint managers who can continue after the
expiration of the term for which that House has been elected.
I want to be very candid with the House. I am anxious to go as far as
we may safely go toward establishing a precedent in that direction. We
find upon examination of the Constitution that there lie between the
provisions of the Constitution spaces that have to be filled in either
by judicial construction or by precedent. Only precedent can occupy the
space, for instance, which lies between the provision granting to the
House--not as a part of the Congress, however--the power to originate
and prosecute impeachments and that great constitutional guaranty of a
speedy trial. Judicial construction may not enter there. We barely
escaped a very difficult situation in this case. As the Members of the
House here present who were Members of the preceding House will
remember, this impeachment was sent to the Senate near the expiration
of the Seventy-second Congress. If the Congress had not been called
into extraordinary session, in the absence of any recognized right on
the part of a House to empower managers to proceed after the expiration
of that House, this judge would have rested under impeachment for a
year, without possibility of trial, notwithstanding the general
principles which run through our whole system of giving the right of
speedy trial. Not only is the duty to make effective to the individual
a great constitutional right but there is involved a great public
interest. Precedents are not unakin to legislative enactments. When
established they come to have the force of law. It is as much a duty to
set helpful and proper precedents as it is to make wise and helpful
laws. I am anxious to go as far in this instance as we may safely go in
establishing a proper and helpful precedent.
Mr. Bertrand H. Snell, of New York, questioned the right of the House
to extend the powers or privileges of such managers, or other
appointees, beyond the life of the House itself, and after debate, Mr.
Sumners withdrew the resolution and reintroduced it in this form:
Whereas in the Seventy-second Congress on the 27th day of February,
1933, Hatton W. Sumners, Gordon Browning, Malcolm C. Tarver, Fiorello
H. LaGuardia, and Charles I. Sparks, Members of the House of
Representatives, were appointed managers on the part of the House of
Representatives to conduct the impeachment against Harold Louderback, a
United States district judge for the northern district of California;
and
Whereas the said LaGuardia and Sparks are no longer Members of the
House of Representatives:
Resolved, That Randolph Perkins and U. S. Guyer, Members of the House
of Representatives, be, and they are hereby, appointed in lieu of the
said LaGuardia and Sparks to serve with the said Hatton W. Sumners,
Gordon Browning, and Malcolm C. Tarver as the managers on the part of
the House of Representatives to conduct the impeachment pending in the
United States Senate against Harold Louderback, a United States
district judge for the northern district of California.
The resolution as revised was agreed to; the Clerk was directed to
notify the Senate; and on the motion of Mr. Sumners, it was further--
Resolved, That the managers on the part of the House in the matter of
the impeachment of Harold Louderback, United States district judge for
the northern district of California, be, and they are hereby,
authorized to employ legal, clerical, and other necessary assistants
and to incur such expenses as may be necessary in the preparation and
conduct of the case, to be paid out of the contingent fund of the House
on vouchers approved by the managers; and the managers have power to
send for persons and papers, and also that the managers have authority
to file with the Secretary of the Senate, on the part of the House of
Representatives, any subsequent pleadings which they shall deem
necessary: Provided, That the total expenditures authorized by this
resolution shall not exceed $3,230.25, being the amount of the
unexpended balance of $5,000 authorized to be expended by the special
committee designated under authority of House Resolution 239, Seventy-
second Congress, first session, approved June 9, 1932, to inquire into
the official conduct of said Harold Louderback.
Sec. 518
On March 27,\1\ the Chair laid before the House the following
communication:
House of Representatives,
Washington, D. C., March 27, 1933.
Hon. Henry T. Rainey,
Speaker of the House of Representatives, Washington, D.C.
Dear Mr. Rainey: I hereby submit my resignation as one of the
managers on the part of the House in the pending impeachment
proceedings against Harold Louderback, a United States judge for the
northern district of California.
Yours truly,
M. C. Tarver.
The resignation was accepted, and on April 3,\2\ a resolution offered
by Mr. Sumners, as privileged, was agreed to and messaged to the Senate
as follows:
Whereas Malcolm C. Tarver, on the 27th day of March, 1933, submitted
to the House of Representatives his resignation as a manager on the
part of the House in the pending impeachment against Harold Louderback,
a district judge of the United States for the northern district of
California, which resignation on said date was accepted by the House of
Representatives,
Resolved, That J. Earl Major and Lawrence Lewis, Members of the House
of Representatives, be, and they are hereby, appointed managers on the
part of the House of Representatives, with the managers on the part of
the House heretofore appointed and acting, to conduct the impeachment
pending in the United States Senate against Harold Louderback, a
district judge of the United States for the northern district of
California.
518. The respondent having waived personal service, the oath was not
administered to the Sergeant at Arms on the return of the writ.
Form of proclamation by the Sergeant at Arms calling. Judge
Louderback to appear and answer the articles of impeachment.
Judge Louderback appeared in person, attended by counsel, to answer
the articles.
The answer of Judge Louderback to the articles of impeachment.
A motion entered by respondent to make more definite and certain an
article of the articles of impeachment was agreed to by the managers on
the part of the House without action by the Senate.
Allowance of time in which to file pleadings.
On April 11,\3\ the managers on the part of the House were received
in the Senate with the usual formalities and the respondent, Harold
Louderback, and his counsel, James M. Hanley, Esq., and Walter H.
Linforth, Esq., appeared and were conducted to the seats assigned to
them in the space in front of the Secretary's desk on the right of the
Chair.
Mr. Ashurst offered the following resolution:
In the Senate of the United States,
Sitting as a Court of Impeachment.
Whereas on March 13, 1933, John N. Garner, Vice President and
President of the Senate, acting under authority of the Senate, sitting
as a Court of Impeachment, and in accordance with the Rules for
Impeachment Trials, issued a writ of summons to Harold Louderback,
United States district judge for the northern district of California,
commanding him to appear before the Senate of the United States of
America at their Chamber in the city of Washington on the 11th
-----------------------------------------------------------------------
\1\ Record, p. 876.
\2\ Record, p. 1155.
\3\ Record, p. 1462.
Sec. 518
day of April, 1933, at 12:30 o'clock afternoon, to answer to articles
of impeachment exhibited against him by the House of Representatives of
the United States of America, and addressed to Chesley W. Jurney,
Sergeant at Arms of the Senate, a precept commanding him to serve true
and attested copies of said writ of summons and precept upon the said
Harold Louderback personally or by leaving same at his usual place of
abode or at his usual place of business; and
Whereas since the recess of the Senate, sitting as a Court of
Impeachment, the said Chesley W. Jurney, as Sergeant at Arms, acting
upon a suggestion of the Committee on the Judiciary of the Senate, with
a view to securing a waiver of personal service of said writ of summons
as required by the precept, communicated by telegraph with the said
Harold Louderback, who consented to such waiver, and who subsequently
forwarded to said Chesley W. Jurney, as Sergeant at Arms, a waiver, in
writing, of personal service of said writ of summons, signed by him and
witnessed on the 28th day of March, 1933, agreeing voluntarily to
appear in person before the Senate of the United States at the time and
place specified in said writ of summons and acknowledging receipt of
true and attested copies of said writ of summons and precept,
transmitted to him by the said Chesley W. Jurney, Sergeant at Arms:
Now, therefore, be it
Resolved, That the action of the said Chesley W. Jurney, Sergeant at
Arms of the Senate, in securing waiver of personal service of said writ
of summons upon the said Harold Louderback be, and the same is hereby,
ratified and approved; that the delivery, by registered mail, of true
and attested copies of the said writ of summons and precept to the said
Harold Louderback, and his acceptance thereof, be deemed and taken to
have been a satisfactory and sufficient compliance by the said Chesley
W. Jurney, Sergeant at Arms, with the said precept, and that the said
Chesley W. Jurney, as Sergeant at Arms, be, and he is hereby,
authorized to make return of said writ of summons and precept
accordingly.
The resolution having been agreed to, the Secretary, by direction of
the Vice President, read the return of the Sergeant at Arms to the
summons as follows:
Senate of The United States.
Office of The Sergeant at Arms.
The foregoing writ of summons, addressed to Harold Louderback, and
the foregoing precept, addressed to me, were duly served upon the said
Harold Louderback by the transmittal, by registered mail, to the said
Harold Louderback of true and attested copies of the same, and by his
receipt thereof, as shown in the attached waiver by the said Harold
Louderback of personal service of summons, said waiver being made a
part of this return.
Chesley W. Jurney,
Sergeant at Arms, United States Senate.
in the senate of the united states, sitting as a court of impeachment
in the case of harold louderback, united states district judge for the
northern district of california
Waiver of personal service of Harold Louderback, United States
district judge for the northern district of California.
I, Harold Louderback, United States district judge for the northern
district of California, do hereby waive personal service of summons
issued on the 13th day of March, 1933, by Hon. John N. Garner, Vice
President and President of the Senate, which commands me to appear
before the Senate of the United States on April 11, 1933, at 12.30 p.
m., to answer specific articles of impeachment exhibited to the Senate
by the House of Representatives, and agree to voluntarily appear in
person before the Senate of the United States at the aforesaid time.
I acknowledge receipt of a true and attested copy of the writ of
summons issued in this case, together with a like copy of the precept.
Witness my signature this 28th day of March, 1933, at the city of San
Francisco, State of California.
Harold Louderback,
Respondent.
Signature of witness:
James M. Hanley.
Sec. 518
The Vice President announced that in view of the waiver of summons by
the respondent, the administration of the oath to the Sergeant at Arms
would be dispensed with, and directed the Sergeant at Arms to make
proclamation.
The Sergeant at Arms made proclamation:
Harold Louderback! Harold Louderback! Harold Louderback, United
States district judge for the northern district of California: Appear
and answer to the articles of impeachment exhibited by the House of
Representatives against you.
The Vice President resumed:
The Chair advises the counsel for the respondent that the Senate is
now sitting for the trial of Harold Louderback, United States district
judge for the northern district of California, upon the articles of
impeachment exhibited by the House of Representatives, and will hear
his answer thereto.
Mr. Linforth, of counsel for the respondent, announced that the
respondent appeared in person and by counsel, and submitted a written
appearance which he asked to have filed and which was read by the
Secretary as follows:
In the Senate of the United States,
Sitting as a Court of Impeachment.
the united states of america v. harold louderback, appearance of
respondent.
The respondent, Harold Louderback, having been served with a summons
requiring him to appear before the Senate of the United States of
America at their Chamber in the city of Washington, on the 11th day of
April, 1933, at 12.30 o'clock afternoon, to answer certain articles of
impeachment presented against him by the House of Representatives of
the United States, now appears in his proper person and also by his
counsel, who are instructed by this respondent to inform the Senate
that respondent is ready to file his answer to said articles of
impeachment at this time.
Dated this 11th day of April, 1933.
Harold Louderback.
Walter H. Linforth,
James M. Hanley,
Counsel for Respondent.
The Vice President directed that the appearance be placed on file,
and said:
Counsel for the respondent may make a statement, or the respondent in
person may do so.
Mr. Linforth then presented the answer of the respondent to the
articles of impeachment which, by direction of the Vice President, was
read by the Secretary as follows:
In The Senate of The United States,
Sitting as a Court of Impeachment.
The United States of America v. Harold Louderback, Upon Articles of
Impeachment Presented by The House of Representatives of The United
States of America.
Answer of respondent Harold Louderback to the articles of impeachment
exhibited against him by the House of Representatives of the United
States
answer to article i
For answer to the first article the respondent says that this
honorable court ought not to have or take further cognizance of the
first of said articles of impeachment so exhibited and presented
against him, because, he says, the facts set forth in said first
article do not if true, constitute an impeachable high crime and
misdemeanor as defined in the Constitution of the United
Sec. 518
States, and that therefore the Senate, sitting as a Court of
Impeachment, should not further entertain the charge contained in said
first article.
And now, not waiving the foregoing plea to the jurisdiction of the
honorable Senate of the United States, sitting as a Court of
Impeachment, as to said first article, said respondent saving to
himself all advantages of exception to said first article, for answer
thereto saith:
i
Admits that he is now and was at all times mentioned in said article
a duly appointed, qualified, and acting judge of the United States
District Court for the Northern District of California.
ii
Further answering said article, the respondent admits, denies, and
alleges as follows:
Admits that on the 11th day of March, 1930, by an order duly made and
entered in that certain action then pending in the United States
District Court for the Northern District of California, in which
Gardner M. Olmstead was plaintiff and Russell Colvin Co. was defendant,
he appointed one Addison G. Strong as equity receiver.
Admits that on the 13th day of March, 1930, by an order duly made and
entered in said action he revoked and set aside the order appointing
said Addison G. Strong as receiver in said action.
Alleges that the facts and circumstances surrounding and leading up
to the making of the said order on the 13th day of March, 1930, setting
aside the appointment of the said Addison G. Strong were as follows,
and not otherwise:
(The remainder of Article II and Articles III, IV, and V set forth in
detail the respondent's answer to the specific charges in the articles
of impeachment.)
Article V of the answer includes the following:
i
That said Article V is so uncertain and indefinite as to time, place,
and proceedings that respondent can not ascertain therefrom with
reasonable, or any, certainty, in what proceeding or proceedings, or at
what time or times, or at what place or places, his conduct was, as set
forth in said Article V, and respondent can not safely proceed to trial
as to said fifth article before this honorable Senate, sitting as a
Court of Impeachment, at a distance of more than 3,000 miles from where
respondent has presided as such judge, as aforesaid, without being
apprised in advance in the particulars aforesaid, in order to procure
the attendance of such witnesses as may be necessary to meet such
charge or charges.
Wherefore respondent, upon the reading and filing of this answer will
move the honorable Senate of the United States, sitting as a Court of
Impeachment, to require the honorable House of Representatives of the
United States, within a reasonable time, to be by it specified, to make
said fifth article more definite and certain in the particulars
aforesaid, and failing so to do, this honorable body dismiss said
Article V.
And without waiving but expressly reserving his right to make said
motion and to have the same passed upon by the honorable Senate of the
United States, sitting as a Court of Impeachment, respondent, answering
said Article V, admits and denies as follows, to wit:
The answer concluded:
v
Respondent further denies that he ever was or now is guilty of
misbehavior as such judge and/or of a misdemeanor in office.
Except as hereinbefore specifically admitted, respondent denies each
and every allegation in said Article V contained.
Sec. 518
And this respondent in submitting to this honorable court this his
answer to the articles of impeachment exhibited against him,
respectfully insists that he is not guilty of any of the charges
contained in any of the said 5 articles of impeachment, and
respectfully reserves leave to amend and add to this his said answer
from time to time as may become necessary or proper and when said
necessity and propriety shall appear.
Dated April 11, 1933.
Harold Louderback,
Respondent.
Walter H. Linforth,
James M. Hanley,
Of Counsel for Respondent.
Mr. Linforth then submitted written notice of a motion to make the
fifth article in the articles of impeachment more definite and certain.
The notice was read by the Secretary, as follows:
In the Senate of the United States,
Sitting as a Court of Impeachment,
the united states of america v. harold louderback--motion to make
article v of the articles of impeachment more definite and certain
The respondent, Harold Louderback, moves the honorable Senate sitting
as a Court of Impeachment, for an order requiring the honorable House
of Representatives of the United States, within a reasonable specified
time, to make more definite and certain the charges contained in
Article V of the articles of impeachment herein in the following
particular or particulars, that is to say:
To specify the time and times, and the place or places, and the name
or title of the proceeding or proceedings, and the circumstance or
circumstances wherein in said fifth article it is claimed the said
respondent was guilty of the conduct referred to and set forth therein.
Said motion is made for the reason and on the ground that it is
impossible for respondent to be prepared to meet said charges and to
summon witnesses in regard thereto without first being advised of the
time and times, and the place and places, and the name or title of the
proceeding or proceedings, and the circumstance or circumstances
wherein in said fifth article it is claimed the said respondent was
guilty of the conduct referred to and set forth therein.
And, in the event of the failure of said House of Representatives
within the time so fixed to amend said fifth article in the particulars
aforesaid, that this honorable body dismiss the charges contained in
said fifth article.
Dated April 11, 1933.
Walter H. Linforth,
James M. Hanley,
Counsel for Said Respondent.
In conformity with the notice, Mr. Linforth, on behalf of the
respondent, moved to require the House to specify, in the particulars
set forth, the fifth count of the articles of impeachment, and failing
to do so within a reasonable time, that the article be dismissed.
Mr. Manager Sumners responded:
Mr. President, the managers on the part of the House, in order to
comply with the suggestion of counsel for the respondent and to save
the necessity of considering the motion, consent to attempt to make
article 5 more specific and to procure the endorsement of the House of
Representatives. It is understood that we can not of ourselves do these
things. They have to be done through the House, but we will undertake
to do the best we can.
Accordingly, on motion of Mr. Ashurst, it was--
Ordered. That the managers on the part of the House be allowed until
the 15th day of May, 1933, at 1 o'clock in the afternoon, to present a
replication or other pleading, of the House of
Sec. 519
Representatives to the answer of the respondent. That any subsequent
pleadings, either on the part of the Managers or of the respondent,
shall be filed with the Secretary of the Senate, of which notice shall
be given to the House of Representatives and the respondent,
respectively, so that all pleadings shall be closed on or before the
15th day of May, 1933, and that the trial shall proceed on the said
15th day of May, 1933, at 1 o'clock p. m.
During the discussion occasioned by the proposed order, Mr. Long
dissented and was proceeding in debate, when Mr. Sam G. Bratton, of New
Mexico, made the point of order that under the rules governing
impeachment trials Senators were not permitted to engage in colloquies.
The Vice President said:
The point of order is sustained.
An order having been made for printing the answer of the respondent
for the use of the Senate, it was further:
Ordered, That lists of witnesses be furnished to the Sergeant at Arms
by the managers and by the respondent, and said witnesses shall be
subpoenaed to appear on Monday, the 15th day of May, 1933, at 1 o'clock
p. m.
519. Certain rules adopted by the Senate for the trial of Judge
Louderback.
Managers and counsel for respondent might submit applications orally
to the Presiding Officer but if requested by any Senator should reduce
them to writing.
Managers and counsel for respondent were required to address motions
or objections directly to the Presiding Officer and not otherwise.
Senators might not engage in colloquies or address directly the
managers, the counsel, or each other.
Stipulations in writing by parties were received by the Senate as
though the facts therein agreed upon had been established by evidence.
Decisions of the Presiding Officer on questions raised by parties in
the course of the trial stood as the judgment of the Senate unless a
Senator made formal request for a vote thereon.
Mr. Bratton, from the Senate Committee on the Judiciary, offered the
following:
Ordered, That in addition to the rules of procedure and practice in
the Senate when sitting on impeachment trials, heretofore adopted, and
supplementary to such rules, the following rules shall be applicable in
the trial of the impeachment of Harold Louderback, United States judge
for the northern district of California:
1. In all matters relating to the procedure of the Senate, whether as
to form or otherwise, the managers on the part of the House or the
counsel representing the respondent may submit a request or application
orally to the Presiding Officer, or, if required by him or requested by
any Senator, shall submit the same in writing.
2. In all matters relating immediately to the trial, such as the
admission, rejection, or striking out of evidence, or other questions
usually arising in the trial of causes in courts of justice, if the
managers on the part of the House or counsel representing the
respondent desire to make any application, request, or objection, the
same shall be addressed directly to the Presiding Officer and not
otherwise.
3. It shall not be in order for any Senator, except as provided in
the rules of procedure and practice in the Senate when sitting on
impeachment trials, to engage in colloquy or to address questions
either to the managers on the part of the House or to counsel for the
respondent, nor
Sec. 520
shall it be in order for Senators to address each other; but they shall
address their remarks directly to the Presiding Officer and not
otherwise.
4. The parties may, by stipulation in writing filed with the
Secretary of the Senate and by him laid before the Senate or presented
at the trial, agree upon any facts involved in the trial; and such
stipulation shall be received by the Senate for all intents and
purposes as though the facts therein agreed upon had been established
by legal evidence adduced at the trial.
5. The parties or their counsel may interpose objection to witnesses
answering questions propounded at the request of any Senator, and the
merits of any such objection may be argued by the parties or their
counsel; and the Presiding Officer may rule on any such objection,
which ruling shall stand as the judgment of the Senate, unless some
Member of the Senate shall ask that a formal vote be taken thereon, in
which case it shall be submitted to the Senate for decision; or he may,
at his option, in the first instance submit any such question to a vote
of the Members of the Senate. Upon all such questions the vote shall be
without debate and without a division, unless the ayes and nays be
demanded by one fifth of the Members present, when the same shall be
taken.
The order was agreed to, and the Senate sitting as a court of
impeachment stood in recess.
520. In response to respondent's motion to make more certain, the
House revised an article of the articles of impeachment and transmitted
it to the Senate as amended.--On April 17 \1\ the Speaker laid before
the House the following communication from the Senate:
I, Edwin A. Halsey, Secretary of the Senate of the United States of
America, certify that the Senate, sitting for the trial of Harold
Louderback, United States district judge for the northern district of
California, upon articles of impeachment exhibited against him by the
House of Representatives of the United States of America, did on April
11, 1933, adopt an order, of which the following is a full, true,
correct, and compared copy:
``Ordered, That the Secretary of the Senate communicate to the House
of Representatives an attested copy of the answer of Harold Louderback,
judge of the United States district court in and for the northern
district of California, to the articles of impeachment, and also a copy
of the foregoing order.''
I do hereby further certify that the document hereto attached,
consisting of 38 sheets, is a photostatic copy of the answer of said
Harold Louderback to the articles of impeachment exhibited against him
by the House of Representatives, presented by said Harold Louderback to
the Senate, sitting as Court of Impeachment, on April 11, 1933.
In testimony whereof I hereunto subscribe my name and affix the seal
of the Senate of the United States of America this 12th day of April,
A. D. 1933.
[seal.]
Edwin A. Halsey,
Secretary of the Senate of the United States.
Mr. Sumners called up as privileged a proposed amendment to article 5
of the articles of impeachment as follows:
amendment to article 5 of the articles of impeachment by the house of
representatives
exhibited against harold louderback, judge of the united states in
and for
the northern district of california.
Article 5 is amended to read as follows:
``Article 5.
``It is intended by article 5 to charge, and it is charged, that the
reasonable and probable result of Harold Louderback's action in his
capacity as judge in making decisions and orders in
-----------------------------------------------------------------------
\1\ Record, p. 1846.
Sec. 520
actions pending in his court and before him as said judge and by the
method of appointing receivers and attorneys for receivers, by
appointing incompetent receivers and attorneys, by his relationship and
transactions with one Sam Leake, and by the relationship and
transactions of the said Sam Leake with such appointees of the said
respondent made possible and probable by the action and attitude of the
said Harold Louderback, and by displaying a high degree of indifference
to the interest of estates and parties in interest in receiverships
before him and his court, and by displaying a high degree of interest
in making it possible for certain individuals and firms to derive large
fees from the funds of such estates, has been to create a general
condition of wide-spread fear and distrust and disbelief in the
fairness and disinterestedness of the official actions of the said
Harold Louderback, and to create by his said acts, deeds, and
relationships, contrary to his individual and official duty, a
favorable condition and a cause for the development naturally and
inevitably of rumors and suspicions destructive of public confidence in
and respect for the said Harold Louderback as an individual and a judge
to the scandal and disrepute of his said court and the administration
of justice therein and prejudicial generally to the public respect for
and public confidence in the Federal judiciary. Wherefore the said
Harold Louderback was and is guilty of misbehavior as such judge and of
misdemeanors in office.
``It is hereby alleged and charged that the conduct of said Harold
Louderback, as alleged in articles 1, 2, 3, and 4, and as hereinafter
alleged, in its general and aggregate result has been such as
reasonably and probably calculated to destroy public confidence in so
far as he and his court are concerned in that degree of
disinterestedness and fidelity to judicial duty and responsibility
which the public interest requires shall be held by the people in the
Federal courts and in those who administer them, and which for a
Federal judge to hurt or destroy is a crime and misdemeanor of the
highest order;
``First, specifying as indicative of and disclosing the character and
judicial attitude of said Harold Louderback revealed by his acts and
official conduct to the people among whom he has jurisdiction, and the
cause for the loss of public confidence of the bar and people of the
northern district of California and particularly of the city of San
Francisco, where the principal business of such court is transacted, on
or about December 19, 1929, the said Harold Louderback appointed one
Guy H. Gilbert receiver of the Sonora Phonograph Co., a going concern
extensively engaged in the business of receiving and distributing
radios and phonographs, the said Guy H. Gilbert being a personal and
political friend of the said Harold Louderback, and an intimate friend
and financial contributor to one Sam Leake, hereinafter referred to,
the said Harold Louderback knowing at the time of such appointment that
the whole training and experience of the said Guy H. Gilbert had been
as operator and employee of a telegraph company, and the said Harold
Louderback at the time of such appointment knowing with certainty that
the said Guy H. Gilbert was without qualification to discharge the
duties of such receivership, that the said Guy H. Gilbert was appointed
such receiver by the said Harold Louderback without regard to the
interest of such estate in receivership and in disregard thereof and of
the interest of creditors and parties in interest and in violation of
the official duty of the said Harold Louderback. That the said Gilbert
after said appointment continued in his regular and usual duties and
employment as employee of said telegraph company, drawing his
accustomed salary during his employment of approximately 6 months as
such receiver and received for such services from the funds of the
estate of said Sonora Phonograph Co. the sum of $6,800, all of which
facts became the subject of newspaper comments and matters of common
knowledge throughout and beyond the northern judicial district of
California, to the hurt of public confidence in the said Harold
Louderback, judge of said court, and to the hurt and standing of the
Federal judiciary.
The proposed amendment then recounted the appointment of Guy H.
Gilbert as receiver in various other cases and charged that he was
incompetent and had not in fact discharged the duties of receiver but
had merely signed the papers in such
Sec. 521
cases and accepted sums which were a small part of the compensation
allowed by the respondent in his capacity as judge. The amendment
concluded:
All of which facts and circumstances became published and known in
said northern district of California. By such acts the said Harold
Louderback exhibited himself to the public as being willing to obstruct
the officials of the State of California in their effort to conserve
for citizens of California the assets of said insurance company which
they had impounded, willing to assert a jurisdiction which he did not
possess, willing to defy a mandate of the circuit court of appeals and
attach an illegal and unconscionable condition to said mandate in order
to penalize and discourage the exercise of a constitutional right of
appeal for the definite and obvious purpose of making sure, so far as
possible by such illegal action and coercion, that the said Shortridge
and his attorney would be paid from the assets of said insurance
company so impounded the fees which he, the said Harold Louderback, had
allowed, all to the scandal and discredit of the said Harold Louderback
and his court and prejudicial to the dignity of the judiciary.
``Wherefore the said Harold Louderback has been and is guilty of high
crimes and misdemeanors in office and has not conducted himself with
good behavior.''
After brief debate, the amendment was agreed to and on motion of Mr.
Sumners it was--
Resolved, That a message be sent to the Senate by the Clerk of the
House informing the Senate that the House of Representatives has
adopted an amendment to article 5 of the articles of impeachment
heretofore exhibited against Harold Louderback, United States district
judge for the northern district of California, and that the same will
be presented to the Senate by the managers on the part of the House.
And also that the managers have authority to file with the Secretary
of the Senate, on the part of the House, any subsequent pleadings they
shall deem necessary.
521. The amended article of impeachment when received in the Senate
was filed without being read, it having previously appeared in full in
the Record.
The answer of the respondent to the amended article of impeachment.
The managers were excused from attendance on the sessions of the
House during the course of the trial in the Senate.
On April 18,\1\ in the Senate sitting as a Court of Impeachment, on
motion of Mr. Ashurst, by unanimous consent, the reading of the
amendment adopted by the House to Article 5 of the articles of
impeachment was dispensed with, it having appeared in full in the
Record of the previous day.
The respondent, by counsel, tendered his answer to Article 5 as
amended by the House and proposed to enter a motion to strike out
certain portions of the amended article and asked to be heard on the
motion.
The answer was received and filed without reading as follows:
answer to article 5, as amended
For answer to Article 5, as amended, the respondent says that this
honorable court ought not to have or take further cognizance of said
fifth article of impeachment so exhibited and presented against him,
because, he says, the facts set forth in said fifth article, as
amended, do not, if true, constitute an impeachable high crime and
misdemeanor as defined by the Constitution of the United States, and
that therefore the Senate, sitting as a Court of Impeachment, should
not further entertain the charge contained in said fifth article as so
amended.
-----------------------------------------------------------------------
\1\ Record, p. 1877.
Sec. 521
And now, not waiving the foregoing plea to the jurisdiction of the
honorable Senate of the United States, sitting as a Court of
Impeachment, as to said fifth article, as amended, said respondent
saving to himself all advantages of exception to said fifth article, as
amended, for answer thereto saith:
Further answering said Article 5 as so amended, the respondent
admits, denies, and alleges as follows:
Then follow specific admissions, denials, and allegations.
The answer concluded:
And, except as hereinbefore specifically admitted herein, respondent
denies each and every allegation contained in said article 5, as so
amended, relating or referring to the said Golden State Asparagus Co.
case, so called.
Wherefore respondent having fully answered said article 5, as
amended, declares that he is not guilty of any of the charges therein
contained and denies that he has been or that he is guilty of high
crimes and misdemeanors in office, or has been guilty of any high crime
or any misdemeanor in office, and likewise denies that he has not
conducted himself with good behavior.
Harold Louderback,
Respondent.
Walter H. Linforth,
James M. Hanley,
April 18, 1933.
Attorneys for Respondent.
The following motion was filed on behalf of the respondent:
motion to strike out or make more certain portions of article 5, as
amended
The respondent, Harold Louderback, moves the Honorable Senate,
sitting as a Court of Impeachment, for an order as follows:
1. Striking from article 5, as amended, the first paragraph thereof,
constituting the entire first page; and
2. Striking therefrom the following part and portion thereof
contained on pages 3 and 4 and reading as follows:
``It also became a matter of newspaper comment in connection with
that receivership matter and others that theretofore, about 1925 or
1926, the said Gilbert had been appointed by the said Harold Louderback
when the said Harold Louderback was a judge of the Superior Court of
California, an appraiser of certain real estate, the said Harold
Louderback well knowing at the time of such appointments that the said
Gilbert was without any qualification to appraise the value of such
real estate, and in truth the said Gilbert never saw said real estate,
and that the said Gilbert did not undertake to assist in the appraisal
of said real estate, only signing the report which was presented to
him, for which services he was snowed the sum of $500.''
The first part of said motion is based upon the ground and for the
reason that it is impossible for respondent to be prepared to meet the
said charge therein contained or to summons witnesses in respect
thereto without being advised, first, the nature of the act or acts
there attempted to be complained of; second, the time or times of said
act or acts were committed by respondent; third, in what action or
actions, proceeding or proceedings, such alleged acts occurred; fourth,
the nature of the relationship and transactions of said Leake there
attempted to be referred to and, fifth, with what appointee or
appointees of respondent said ``relationship and transactions'' with
the said Leake occurred.
And the second part of said motion is based upon the grounds that the
alleged offense there referred to was not committed in the office now
occupied by respondent and that this honorable Senate, sitting as a
Court of Impeachment, has not jurisdiction to inquire into the
transaction attempted to be complained of in said article 5, as
amended, in that the act there attempted to be complained of is not and
can not be the subject of this article of impeachment, and is not
Sec. 522
and can not be a high crime or misdemeanor as defined by the
Constitution of the United. States, but if true is an act committed by
respondent while an officer of a State and not a Federal court.
And, in the event of the denial of said motion, or either part
thereof, then and in such event, respondents moves this honorable
Senate, sitting as a Court of Impeachment, to require the House of
Representative of the United States within a time so to be fixed, to
further amend said article 5 in the particulars and each thereof
specified herein as the reason and grounds for the making of said
motion to strike therefrom the portions of said article 5, as amended,
above specified.
Dated: April 18, 1933.
Walter H. Linforth,
James M. Hanley,
Counsel for Said Respondent.
Mr. Hanley, of counsel for the respondent, being recognized, said
that an agreement had been reached with the managers on the part of the
House under which the reference in paragraph 1 of the amended article 5
should refer only to matters set out in articles 1, 2, 3, and 4 and the
rest of the amended article 5, and that no testimony relating to other
matters would be offered.
Mr. Hanley cited a reference in paragraph 1 of the articles of
impeachment referring to the conduct of the respondent while he was
serving as a State judge and submitted that the conduct of the
respondent as State judge was not within the jurisdiction of the
Senate.
Mr. Manager Sumners, in reply, corroborated the statement of
respondent's counsel with reference to the terms of the agreement
between counsel for respondent and the managers on the part of the
House; disclaimed any intention on the part. of the managers to impeach
the respondent on the strength of his conduct as a member of the State
judiciary; and justified the inclusion of the matter referred to as
admissible under ``at least two well-recognized rules'' governing the
admissibility of evidence.
In the House on May 9,\1\ on motion of Mr. Sumners, by unanimous
consent, the managers on the part of the House in the impeachment
proceedings before the Senate were excused from attendance upon the
sessions of the House until the conclusion of the trial.
522. The replication of the House to the answer of the respondent in
the Louderback trial.
On motion of the managers, a clerk and additional counsel were
authorized to sit with them in the conduct of the trial.
The managers announced that they had omitted the presentation of
certain formal evidence, customary to impeachment proceedings, as
relating to facts too obvious to require proof.
The Senate, by resolution, limited the opening statements to one
person, on each side.
The Vice President was authorized to name a Senator to preside in the
absence of the President pro tempore.
Questions of order raised in the course of an impeachment trial are
decided without debate.
A question put by a Senator to a witness in an impeachment trial is
reduced to writing and put by the Presiding Officer.
-----------------------------------------------------------------------
\1\ Record, p. 3084.
Sec. 522
On May 15,\1\ in the Senate, sitting for the trial, Mr. Manager
Sumners submitted the replication of the House of Representatives to
the answer of the respondent as follows:
replication of the house of representatives of the united states of
america to the answer
of harold louderback, district judge of the united states for the
northern district of
california, to the articles of impeachment, as amended, exhibited
against him by the
house of representatives of the united states of america
The House of Representatives of the United States of America, having
considered the several answers of Harold Louderback, district judge of
the United States for the northern district of California, to the
several articles of impeachment, as amended, against him by them
exhibited in the name of themselves and of all the people of the United
States, and reserving to themselves all advantages of exception to the
insufficiency, irrelevancy, and impertinency of his answer to each and
all of the several articles of impeachment, as amended, so exhibited
against the said Harold Louderback, judge as aforesaid, do say:
(1) That the said articles, as amended, do severally set forth
impeachable offenses, misbehaviors, and misdemeanors as defined in the
Constitution of the United States, and that the same are proper to be
answered unto by the Said Harold Louderback, judge as aforesaid, and
sufficient to be entertained and adjudicated by the Senate sitting as a
Court of Impeachment.
(2) That the said House of Representatives of the United States of
America do deny each and every averment in said several answers, or
either of them, which denies or traverses the acts, intents,
misbehaviors, or misdemeanors charged against the said Harold
Louderback in said articles of impeachment, as amended, or either of
them, and for replication to said answers do say that Harold
Louderback, district judge of the United States for the northern
district of California, is guilty of the impeachable offenses,
misbehaviors, and misdemeanors charged in said articles, as amended,
and that the House of Representatives are ready to prove the same.
Hatton W. Sumners,
On Behalf of the Managers.
In response to the motion of the respondent that certain allegations
in article 5 of the articles of impeachment be made, more certain, Mr.
Sumners presented the following:
making more specific an allegation contained in article 5, articles of
impeachment, as amended
Whereas on April 17, 1933, the managers on the part of the House of
Representatives, in the impeachment against Harold Louderback, filed an
amendment to article 5 of the Articles of Impeachment, which contains
the following language:
``It also became a matter of newspaper comment in connection with
that receivership matter and others that theretofore, about 1925 or
1926, the said Gilbert had been appointed by the said Harold ouderback
when the said Harold Louderback was a judge of the Superior Court of
California, an appraiser of certain real estate, the said Harold
Louderback well knowing at the time of such appointment that the said
Gilbert was without any qualification to appraise the value of such
real estate, and in truth the said Gilbert never saw said real estate,
and that the said Gilbert did not undertake to assist in the appraisal
of said real estate, only signing the report which was presented to
him, for which services he was allowed the sum of $500.''
And whereas said language and allegation was objected to by counsel
for Harold Louderback by a motion to strike out said language on the
ground that the said Harold Louderback was not advised of ``the time or
times (of) said acts were commited by respondent,'' or ``in what action
or actions, proceeding or proceedings such alleged acts occurred;
``whereupon the managers agreed with counsel for the said Harold
Louderback that they would endeavor to give to said counsel more exact
information with regard to said transaction, and filing to do so by the
5th of May the said allegations would be withdrawn and no evidence
offered in their support, counsel
-----------------------------------------------------------------------
Record, p. 3394.
Sec. 522
for the said Harold Louderback agreeing that they would exert
themselves to try to ascertain the facts with regard to the transaction
referred to and advise the managers.
Since such agreement and understanding, the managers have ascertained
more definite information with reference to this transaction, and now
allege the facts to be that on or about April 5, 1927, in the matter of
the estate of Howard Brickell, No. 46618, pending in probate that said
Harold Louderback appointed the said Guy H. Gilbert an appraiser of
property of said estate and also appointed with him as appraiser of
said property Sam Leake, referred to in said article 5 of the Articles
of Impeachment as amended; that on or about December 21, 1927, the said
Harold Louderback made an order awarding to the said Guy H. Gilbert and
to the said Sam Leake the sum of $500 each for their services; which
information has been furnished to the said counsel for Harold
Louderback.
Hatton W. Sumners, Chairman,
On Behalf of the Managers.
Mr. William H. King, of Utah, offered a resolution which was agreed
to as follows:
Ordered, That the opening statement on behalf of the managers shall
be made by one person, to be immediately followed by one person who
shall make the opening statement on behalf of the respondent.
The managers on the part of the House requested the privilege of
having with them in the trial the clerk of the House Committee on the
Judiciary to assist them in handling the documents in the case; and
that Mr. Bianchi, a member of the bar of San Francisco, also be
permitted to sit with them.
Mr. Hanley inquired whether Mr. Bianchi was to be called as a
witness, and Mr. Manager Sumners, in reply, proposed to discuss the
question, when Mr. Bratton raised the question of order that under the
rules of the Senate the point should be decided by the Chair without
comment or debate from the floor.
The Vice President sustained the point of order.
The Vice President, having entertained the request of the managers
that the clerk of the House Judiciary Committee and Mr. Bianchi be
permitted to sit with them, preferred to submit it to the Senate; and
the question being put, it was decided in the affirmative, and the
permission was granted, as requested.
By direction of the Vice President, on request of counsel for the
respondent, the Secretary of the Senate read the answer of the
respondent to article 5 as last amended, as follows:
Answer of respondent to Article V as last amended.
Respondent admits that on or about the 5th day of April, 1927, while
acting as judge of the Superior Court of the State of California in and
for the city and county of San Francisco, in the matter of the estate
of Howard Brickell, deceased, he made an order appointing Guy H.
Gilbert, W. S. Leake, and R. F. Mogan appraisers; that in said matter
Crocker First Federal Trust Co., of San Francisco, was special
administrator of said estate; that in the first and final account of
said trust company was included the sum of $500 each paid to said
Gilbert and said Leake as appraisers' fees therein; that upon the
hearing of the settlement of said account, an officer of said trust
company testified that said account was in all respects true and
correct; that the inventory on file in said estate showed its appraised
value to be $1,020,804.38; that thereupon respondent, as judge of said
superior court, made an order settling and allowing said account. Other
than as hereinabove specifically set forth, respondent denies that he
made any order awarding said Gilbert and said Leake, or either of them,
$500 for their said services as such appraiser.
Harold Louderback,
Respondent.
Walter H. Linforth,
James M. Hanley,
Attorneys for Respondent.
Sec. 523
In his opening statement, Mr. Manager Sumners informed the Court that
he would deviate from the practice usually observed in such proceedings
and would not introduce the commission of the respondent or make
specific reference to the preliminary action on the part of the House
of Representatives, taking it for granted that the respondent was known
to be a Federal judge for the northern district of California, and that
it was understood that the ordinary routine has been followed in the
House leading up to the proceedings in the court of impeachment.
In the course of the opening statement in behalf of the respondent,
Mr. Ashurst addressed the Chair and asked recognition to offer a
resolution.
The Vice President inquired:
Will counsel suspend for that purpose?
The counsel for the respondent having answered in the affirmative,
the resolution was offered by Mr. Ashurst and agreed to as follows:
Ordered, That during the trial of the impeachment of Harold
Louderback, United States district judge for the Northern District of
California, the Vice President, in the absence of the President pro
tempore, shall have the right to name in open Senate, sitting for said
trial, a Senator to perform the duties of the Chair.
The President pro tempore shall likewise have the right to name in
open Senate, sitting for said trial, or, if absent, in writing, a
Senator to perform the duties of the Chair; but such substitution in
the case of either the Vice President or the President pro tempore
shall not extend beyond an adjournment or recess, except by unanimous
consent.
Under the provisions of the resolution, the Vice President called Mr.
Bratton to the Chair, and the counsel for the respondent resumed his
statement.
During the further course of the statement Mr. Long addressed the
Chair and desired to submit a question to be answered by the counsel
for the respondent.
Mr. Ashurst interposed the point of order that all questions
propounded by Senators should be in writing.
The Presiding Officer sustained the point of order.
523. Witnesses in an impeachment trial were required to give their
testimony standing, but this requirement was held not to apply to
counsel.
In the Louderback impeachment trial witnesses were sworn as called
and not en banc.
In the Louderback impeachment the Senate ordered process to compel
the attendance of a witness who declined to appear in response to
subpoena.
Evidence relating to events occurring prior to Sudge Louderback's
appointment to the Federal bench were admitted to establish matters
pertinent to the impeachment proceedings.
Exhibits relating to the case at bar but also embodying extraneous
and irrelevant material were admitted in full over the objection that
only the pertinent matters should be read into the record.
The issuance of process for the attachment of a witness was held not
to bar the admission of depositions by such witness pending his
arrival.
The opening statements having been concluded, on the proposal of Mr.
Ashurst it was--
Ordered, That the witnesses shall stand while giving their testimony.
Sec. 523
In response to an inquiry by Mr. Manager Sumners, as to whether
counsel should also stand while examining the witness, the Presiding
Officer \1\ held--
It is the judgment of the present occupant of the chair that counsel
may sit or stand, according to their convenience.
Mr. Manager Sumners further inquired if each witness should be sworn
as examined or if all witnesses should be called and sworn at once.
The Presiding Officer said:
The Chair thinks that the business of the court would be expedited by
swearing each witness as he enters the Chamber. The oath can be
administered quickly.
The introduction of testimony on behalf of the managers then began
and continued through May 15,16,17, and 18. On May 18 \2\ Mr. Manager
Sumners announced that the managers had no further evidence to offer at
that time, and the introduction of testimony on behalf of the
respondent began and continued until May 23, when both parties rested.
On May 16 \3\ the Vice President laid before the Senate the return of
the Sergeant at Arms which was printed and noted in the Journal as
follows:
Senate of the United States,
Office of the Sergeant at Arms,
Washington, DC., May 15, 1933.
Hon. John N. Garner,
Vice President and President of the Senate,
Washington, D. C.
My Dear Mr. Vice President: There are attached hereto a list of
witnesses for the Government submitted to me by the managers on the
part of the House of Representatives, and a list of witnesses for the
respondent submitted to me by his counsel, all of said witnesses to be
subpaned for the trial of Harold Louderback, United States district
judge for the northern district of California.
There are also attached hereto original subpoenas personally served
by me on the witnesses desired by both parties, said subpoenas being
duly served and return made according to law.
Respectfully,
Chesley W. Jurney,
Sergeant at Arms.
(Then followed the list of witnesses for the Government and the list
of witnesses for the respondent.)
On motion of Mr. Ashurst it was--
Ordered, That the daily sessions of the Senate sitting for the trial
of the impeachment of Harold Louderback, United States district judge
for the northern district of California, shall, unless otherwise
ordered, commence at 10 o'clock in the forenoon.
Mr. Hanley, of counsel for the respondent, moved that commission
issue for taking the deposition of one W. S. Leake in San Francisco,
and in support of his motion read this telegram:
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\1\ Sam G. Bratton, of New Mexico, Presiding Officer.
\2\ Record, p. 36,33.
\3\ Record, p. 3444.
Sec. 523
Hon. John N. Garner,
Vice President of United States and President of Senate,
Washington, D. C.:
Mr. Leake, under subpoena Louderback trial, quite weak physically,
due age and cerebral arteriosclerosis. Been his family doctor many
years. Travel to Washington impractical, but if imperative should be
accompanied by a nurse. Please instruct.
Russel C. Ryan, M. D.,
Fairmont Hotel.
Mr. Manager Perkins resisted the motion and submitted the following
excerpt from stipulations, previously entered into by counsel for the
respondent and the managers on the part of the House, relative to
certain testimony elicited before the special committee of the House of
Representatives in San Francisco, in September, 1932.
It is further stipulated that the testimony of W. S. Leake and Miriam
McKenzie, hotel maid, taken at the hearing above referred to, may be
read upon said trial by either party hereto with the same force and
effect as if said witness were present and testified in person. This
stipulation, however, in so far as the said W. S. Leake is concerned is
without waiver by either party hereto to insist upon the attendance of
said Leake before the court above referred to, and shall become
operative only in the event of the nonappearance of the said Leake at
Washington before the said Court of Impeachment.
Dated May 3, 1933.
Gordon Browning,
Randolph Perkins,
For the House Managers.
Walter H. Linforth,
James M. Hanley,
Attorneys for Respondent.
The question being submitted to the court by the Vice President it
was ordered, on motion of Mr. Bratton, that the Vice President be
authorized to arrange for the attendance of the witness, to be
accompanied by a nurse if that was deemed necessary.
Subsequently,\1\ Mr. Manager Browning proposed to offer the testimony
referred to in the stipulation before the arrival of the witness.
Mr. Hanley, of counsel for the respondent, objected on the ground
that the witness would shortly arrive for examination in person.
The Vice President ruled:
The Chair overrules the objection. It seems to the Chair that reading
the testimony, in view of the fact that Mr. Leake may be present in the
Chamber, will not injure the cause of the respondent in any way.
In the course of the proceedings Mr. Manager Perkins proposed to
offer in evidence certified copies of orders made by Judge Louderback
appointing W. S. Leake and G. H. Gilbert appraisers in cases which had
come before him in 1927 while on the State bench and prior to his
appointment and confirmation by the Senate as a Federal judge.
Counsel for the respondent objected to the admission of the evidence
on the ground that it related to matters occurring prior to the
respondent's appointment as
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\1\ Record, p. 3503.
Sec. 523
Federal judge and which for that reason were without the jurisdiction
of the Court of Impeachment.
Mr. Manager Perkins rejoined that the orders were offered for the
purpose of showing the long and intimate relation existing between
Judge Louderback and W. S. Leake and G. H. Gilbert with whose
appointment by respondent the case in trial was largely concerned.
The Presiding Officer \1\ ruled:
The present occupant of the chair is very clear that it is admissible
for whatever it may be worth for the purpose stated by the manager on
the part of the House.
The orders being produced, respondent's counsel objected to their
being admitted in full and contended that the announced purpose for
which they were offered was fully served by the reading into the Record
of the material parts germane to the case and that to admit them in
full would admit many irrelevant matters not pertinent to the issues of
the case at bar.
The Presiding Officer submitted the question of admissibility to the
Court and in stating the question said:
The managers on the part of the House offered these papers for the
record. Objection was made, and, after argument, the Chair held that
these records were pertinent for one purpose, namely, to show the
connection between the persons named in the papers and the respondent.
The Inn sought to have the counsel on both sides agree that the
material parts should be read into the record; but that was not
satisfactory to the managers on the part of the House, who insisted
that the whole records should be admitted. Counsel for the respondent
objects to that because there are many things in the records themselves
that are not in any sense material; and the question is whether or not
the papers offered for the record shall be admitted.
The question having been taken, the Presiding Officer announced:
On this vote the yeas are 67 and the nays are 4, so the papers are
admitted.
The Vice President laid before the Senate the following
communication:
Senate of the United States,
Office of the Sergeant at Arms,
Washington, D. C., May 17, 1933.
Hon. John N. Garner,
Vice President and President of the Senate, Washington, D. C.
My Dear Mr. Vice President: I was commanded to serve and return a
subpoena issued in the impeachment trial of Harold Louderback on one W.
S. Leake, of San Francisco, Calif. Said subpoena was personally served
by me on the said W. S. Leake on May 2,1933, at San Francisco, and a
return was duly made by me.
W. S. Leake was commanded to appear and testify on the 15th day of
May, 1933, at 1 p. m., at the Senate Chamber in the city of Washington,
and he has not appeared and refuses to appear and testify for the
reason as stated by him to me personally on this day, that he is
physically unable to do so.
This information is given to you so that the Senate of the United
States may be officially informed in the matter.
Respectfully,
Chesley W. Jurney,
Sergeant at Arm.
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\1\ Daniel O. Hastings, of Delaware, Presiding Officer.
Sec. 524
Thereupon, a resolution presented by Mr. Ashurst was agreed to, as
follows:
Whereas the Senate of the United States pursuant to House Resolution
403, Seventy-second Congress, second session, and orders of the Senate
of the United States adopted in relation thereto, has authorized that
witnesses be summoned as required by the rules of procedure and
practice of the Senate; and
Whereas it appears from the letter of Chesley W. Jurney, Sergeant at
Arms of the United States Senate, to Hon. John N. Garner, Vice
President and President of the Senate, dated May 15, 1933, that one W.
S. Leake, of San Francisco, Calif., was duly served with a subpoena on
May 2, 1933, to appear on Monday, May 15, 1933, at 1 p. m., before the
Senate of the United States at Washington, D.C., and then and there to
testify his knowledge in the cause which is before the Senate in which
the House of Representatives have impeached Harold Louderback, district
judge of the United States for the Northern District of California; and
Whereas it appears from a letter of Chesley W. Jurney, Sergeant at
Arms of the United States Senate to Hon. John N. Garner, Vice President
and President of the Senate, dated May 16, 1933, that said W. S. Leake
has not appeared in response to said subpoena, duly issued and served,
and the said W. S. Leake has failed, in disobedience of such subpoena,
so to appear and answer; and
Whereas the appearance and testimony of said W. S. Leake is material
and necessary in order that the Senate of the United States may
properly execute the functions imposed upon it by the Constitution of
the United States, and other action as the Senate may deem necessary
and proper: Therefore be it
Ordered, That the Vice President and President of the Senate issue
his warrant commanding the Sergeant at Arms or his deputy, to take into
custody the body of the Said W. S. Leake, where-ever found, to bring
the Said W. S. Leake before the bar of the Senate, then and there to
answer such questions pertinent to the matter under inquiry; and to
keep the said W. S. Leake to await the further order of the Senate.
On May 22,\1\ the Vice President laid before the Senate a further
communication as follows:
Senate of the United States,
Office of the Sergeant at Arms,
Washington, D. C., May 20, 1933.
Hon. John N. Garner,
Vice President and President of Senate, Washington, D.C.
My Dear Mr. Vice President: In pursuance of the order of the Senate
dated May 17, 1933, commanding me to forthwith arrest and take into
custody and bring to the bar of the Senate W. S. Leake, of San
Francisco, Calif., I did, acting through my deputy, W. A. Rorer, on May
17, 1933, arrest and take Mr. Leake into custody.
The said W. S. Leake is now in my custody, and I await the further
order of the Senate.
The original warrant issued in the case is attached hereto.
Respectfully yours,
Chesley W. Jurney,
Sergeant at Arms.
Whereupon counsel for respondent called the witness W. S. Leake who
appeared and testified.
524. The respondent in impeachment proceedings attended throughout
the trial and was present when the articles were voted on and judgment
rendered.
In the Louderback impeachment trial the respondent appeared and
testified at length in his own behalf.
-----------------------------------------------------------------------
\1\ Record, p. 3844.
Sec. 524
After testimony had been closed and the opening argument concluded in
the Louderback trial, further questions were propounded in writing and
were answered by the respondent.
The Senate limited the time but did not restrict the number
participating in the final arguments in the Louderback impeachment.
The counsel for the respondent having touched on extraneous matters
in his final argument in the Louderback trial, was admonished by the
presiding officer to confine himself to the record.
In the Louderback trial the Senate deliberated behind closed doors
before voting on the articles of impeachment.
Form of question prescribed for ascertaining the judgment of the
court in the Louderback trial.
It was announced that pairs would not be arranged or recognized in
the final vote on the articles of impeachment in the Louderback trial.
Senators were permitted to excuse themselves from voting on articles
of impeachment as they were reached without having given notice of such
intention prior to the vote on Article 1.
Two-thirds not having voted guilty on any article, the presiding
officer declared Judge Louderback acquitted.
On May 23,\1\ the respondent, Harold Louderback, was called and
testified in his own behalf on direct examination by his counsel and on
cross-examination by the managers. At the conclusion of his testimony,
Mr. Linforth announced that the respondent rested. After brief
testimony in rebuttal introduced by the managers, Mr. Manager Sumners
on conference with Mr. Linforth, informed the court that all testimony
had been concluded.
Whereupon, on motion of Mr. Ashurst, an order was entered finally
excusing all witnesses from further attendance, and it was further--
Ordered, That the time for final argument of the case of Harold
Louderback shall be limited to 4 hours, which said time shall be
divided equally between the managers on the part of the House of
Representatives and the counsel for the respondent, and the time thus
assigned to each side shall be divided as each side for itself may
determine.
On May 24,\2\ Mr. Manager Browning opened the argument on behalf of
the House of Representatives. At the conclusion of his remarks, Mr. Tom
Connally, of Texas, addressed the Chair and asked, as a parliamentary
inquiry, if it would be in order to propound further questions in
writing to the respondent.
The Vice President replied:
The Chair does not think so. The case has been closed, as the Chair
understands it, unless the Senate orders otherwise. If there is no
objection on the part of the respondent, the Chair will admit the
question.
There was no objection and Mr. Connally submitted certain questions
in writing which were answered by the respondent.
-----------------------------------------------------------------------
\1\ Record, p. 3971.
\2\ Record, p. 4064.
Sec. 524
Mr. Linforth then argued in behalf of the respondent. In the course
of Mr. Linforth's argument, Mr. Manager Sumners interposed and said:
Mr. President, I do not desire to interrupt counsel, but I give
notice that if this is going to be the line of argument we shall
endeavor to some degree to avail ourselves of it. We say that counsel
is testifying at this time. I do not desire to object. I merely desire
to serve notice now that we are going to avail ourselves of that line
of argument.
The Presiding Officer admonished:
Counsel will confine themselves to the record.
Mr. Manager Sumners concluded the argument on behalf of the managers.
Thereupon, a motion presented by Mr. Ashurst that the doors of the
Senate be closed for deliberation was agreed to; the managers on the
part of the House and the respondent with his counsel withdrew from the
Chamber; the galleries were cleared; and at 3 o'clock and 5 minutes
p.m. the Senate proceeded to deliberate with closed doors.
At 4 o'clock and 45 minutes p. m. the doors were reopened, and the
managers on the part of the House and respondent with his counsel
appeared in the seats provided for them.
Mr. Joseph T. Robinson, of Arkansas, announced:
I have been requested to state that on these votes pairs will not be
arranged or recognized.
The following order submitted by Mr. Ashurst was agreed to:
Ordered, That upon the final vote in the pending impeachment of
Harold Louderback, the Secretary shall read the articles of impeachment
separately and successively, and when the reading of each article shall
have been concluded the Presiding Officer shall state the question
thereon as follows:
``Senators, how say you? Is the respondent, Harold Louderback, guilty
or not guilty as charged in this article?''
Thereupon the roll of the Senate shall be called, and each Senator,
as his name is called, unless excused, shall arise in his place and
answer ``Guilty'' or ``Not guilty.''
In response to a parliamentary inquiry from Mr. Alben W. Barkley, of
Kentucky, as to whether a Senator could be excused from voting on any
article as it was reached in its order or whether notice should be
given in advance of the reading of the first article, the Vice
President held:
The Chair is of opinion that a Senator can ask to be excused from
voting on any article at any time.
On motion of Mr. Ashurst, it was further--
Ordered, That upon the final vote in the pending impeachment of
Harold Louderback, each Senator may, within 2 days after the final
vote, file his opinion in writing to be published in the printed
proceedings in the case.
The Vice President directed the Secretary to read the first article
of the articles of impeachment, and following the reading, put the
question:
Senators, how say you? Is the respondent, Harold Louderback, guilty
or not guilty as charged in this article? The secretary will proceed to
call the roll, and as the name of each Senator is called, he will rise
in his place and deliver his vote.
Sec. 524
The roll having been called, the Vice President announced:
On the first article of impeachment 34 Senators have voted ``guilty''
and 42 Senators have voted ``not guilty.'' Less than two-thirds having
voted in favor of his guilt, the Senate adjudges that the respondent,
Harold Louderback, is not guilty as charged in the article. The clerk
will read the next article.
In like manner the vote was taken and announced on each of the
remaining articles, with the following results:
------------------------------------------------------------------------
Guilty. Not guilty
------------------------------------------------------------------------
Article I....................................... 34 42
Article II...................................... 23 47
Article III..................................... 11 63
Article IV...................................... 30 47
Article V (as amended).......................... 45 34
------------------------------------------------------------------------
The Vice President summarized:
That completes the articles of impeachment, and, with the permission
of the Senate sitting as a court, the Chair will enter in the record
the following judgment, which the clerk will read.
The legislative clerk read:
judgment.
The Senate having tried Harold Louderback, judge of the District
Court of the United States for the Northern District of California,
upon five several articles of impeachment exhibited against him by the
House of Representatives, and two-thirds of the Senators present not
having found him guilty of the charges contained therein: It is
therefore
Ordered and adjudged, That the said Harold Louderback be, and he is,
acquitted of all the charges in said articles made and set forth.
And then,
On motion of Mr. Ashurst, at 6 o'clock and 5 minutes p.m. the Senate
sitting as a court of impeachment in the case of Harold Louderback
adjourned sine die.