[Deschler's Precedents, Volume 3, Chapters 10 - 14]
[Chapter 14. Impeachment Powers]
[A. Generally]
[Â§ 3. Grounds for Impeachment; Form of Articles]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 1955-2015]
 
                               CHAPTER 14
 
                           Impeachment Powers
 
                              A. GENERALLY
 
Sec. 3. Grounds for Impeachment; Form of Articles

    Article II, section 4 of the U.S. Constitution defines the grounds 
for impeachment and conviction as ``treason, bribery, or other high 
crimes and misdemeanors.'' A further provision of the Constitution 
which has been construed to bear upon the impeachment of federal judges 
is article III, section 1, which provides that judges of the supreme 
and inferior courts ``shall hold their offices during good behaviour.''
    When the House determines that grounds for impeachment exist, and 
they are adopted by the House, they are presented to the Senate in 
``articles'' of impeachment.(20) Any one of the articles may 
provide a sufficient basis or ground for impeachment. The impeachment 
in 1936 of Halsted L. Ritter, a U.S. District Court Judge, was based on 
seven articles of impeachment as amended by the House. The first six 
articles charged him with several instances of judicial misconduct, 
including champerty, corrupt practices, violations of the Judicial 
Code, and violations of criminal law. Article VII charged actions and 
conduct, including a restatement of some of the charges con

[[Page 1956]]

tained in the preceding articles, ``the reasonable and probable 
consequence'' of which was ``to bring his court into scandal and 
disrepute,'' to the prejudice of his court, of public confidence in his 
court, and of public respect for and confidence in the federal 
judiciary.(1) However, in the Senate, Judge Ritter was 
convicted only on the seventh article. The respondent had moved, before 
commencement of trial, to strike article I, or in the alternative to 
require election as to articles I and II, on the ground that the 
articles duplicated the same offenses, but the presiding officer 
overruled the motion and his decision was not challenged in the Senate. 
The respondent also moved to strike article VII, the ``general'' 
article, on the ground that it improperly cumulated and duplicated 
offenses already stated in the preceding articles, but this motion was 
rejected by the Senate.(2)
---------------------------------------------------------------------------
20. Jefferson's Manual states that: [B]y the usage of Parliament, in 
        impeachment for writing or speaking, the particular words need 
        not be specified in the accusation. House Rules and Manual 
        (Jefferson's Manual) Sec. 609 (1973).
 1. See Sec. 3.2, infra.
 2. See Sec. 3.4, infra.
---------------------------------------------------------------------------

    At the conclusion of the Ritter trial, and following conviction 
only on article VII, a point of order was raised against the vote in 
that the article combined the grounds that were alleged for 
impeachment. The President pro tempore overruled the point of 
order.(3)
---------------------------------------------------------------------------
 3. See Sec. 3.5, infra.
---------------------------------------------------------------------------

    The various grounds for impeachment and the form of impeachment 
articles have been documented during recent investigations. Following 
the inquiry into charges against President Nixon, the Committee on the 
Judiciary reported to the House a report recommending impeachment, 
which report included the text of a resolution and articles impeaching 
the President.(4) As indicated by the articles, and by the 
conclusions of the report as to the specific articles, the Committee on 
the Judiciary determined that the grounds for Presidential impeachment 
need not be indictable or criminal; articles II and III impeached the 
President for a course of conduct constituting an abuse of power and 
for failure to comply with subpenas issued by the committee during the 
impeachment inquiry.(5) The committee also concluded that an 
article of impeachment could cumulate charges and facts constituting a 
course of conduct, as in article II.(6)
---------------------------------------------------------------------------
 4. See Sec. 3.1, infra.
 5. See Sec. 3.7, infra, for the majority views and Sec. 3.8, infra, 
        for the minority views on the articles of impeachment.
 6. See Sec. 3.3, infra, for the majority and minority views on article 
        II.
            In its final report the Committee on the Judiciary cited a 
        staff report by the impeachment inquiry staff on the grounds 
        for presidential impeachment, prepared before the committee had 
        proceeded to compile all the evidence and before the committee 
        had proceeded to consider a resolution and articles of 
        impeachment. While the report and its conclusions were not 
        intended to represent the views of the committee or of its 
        individual members, the report is printed in part in the 
        appendix to this chapter as a synopsis of the history, origins, 
        and concepts of the impeachment process and of the grounds for 
        impeachment. See Sec. 3.6, infra, and appendix, infra.

---------------------------------------------------------------------------

[[Page 1957]]

    The grounds for impeachment of federal judges were scrutinized in 
1970, in the inquiry into the conduct of Associate Justice Douglas of 
the Supreme Court. Concepts of impeachment were debated on the floor of 
the House, as to the ascertainability of the definition of an 
impeachable offense, and as to whether a federal judge could be 
impeached for conduct not related to the performance of his judicial 
function or for judicial conduct not criminal in nature.(7)
---------------------------------------------------------------------------
 7. See Sec. Sec. 3.9-3.12, infra.
---------------------------------------------------------------------------

    A special subcommittee of the Committee on the Judiciary was 
created to investigate and report on the charges of impeachment against 
Justice Douglas, and submitted to the committee a final report 
recommending against impeachment, finding the evidence insufficient. 
The report concluded that a federal judge could be impeached for 
judicial conduct which is either criminal or a serious abuse of public 
duty, or for nonjudicial conduct which is criminal.(8)
---------------------------------------------------------------------------
 8.  See Sec. 3.13, infra.
---------------------------------------------------------------------------

                            Cross References
Amendments to articles adopted by the House, see Sec. 10, infra.
Charges not resulting in impeachment, see Sec. 14, infra.
Grounds for conviction in the Ritter impeachment trial, see Sec. 18, 
    infra.

                          Collateral Reference
Articles of Impeachment Voted by the House of Representatives, see 
    Impeachment, Selected Materials, Committee on the Judiciary, H. 
    Doc. No. 93-7, 93d Cong. 1st Sess., Oct. 
    1973.                          -------------------

Form of Resolution and Articles of Impeachment

Sec. 3.1 Articles of impeachment are reported from the Committee on the 
    Judiciary in the form of a resolution.

    On Aug. 20, 1974,(9) the Committee on the Judiciary 
submitted to the House a report on its inves

[[Page 1958]]

tigation into charges of impeachable offenses against President Richard 
Nixon. The committee included in the text of the report a resolution 
and articles of impeachment which had been adopted by the committee:
---------------------------------------------------------------------------
 9. H. Rept. No. 93-1305, Committee on the Judiciary, printed in the 
        Record at 120 Cong. Rec. 29219, 29220, 93d Cong. 2d Sess., Aug. 
        20, 1974. For complete text of H. Rept. No. 93-1305, see id. at 
        pp. 29219-361.
---------------------------------------------------------------------------

        Impeaching Richard M. Nixon, President of the United States, of 
    high crimes and misdemeanors.
        Resolved, That Richard M. Nixon, President of the United 
    States, is impeached for high crimes and misdemeanors, and that the 
    following articles of impeachment be exhibited to the Senate:
        Articles of impeachment exhibited by the House of 
    Representatives of the United States of America in the name of 
    itself and of all of the people of the United States of America, 
    against Richard M. Nixon, President of the United States of 
    America, in maintenance and support of its impeachment against him 
    for high crimes and misdemeanors.

                                 Article I

        In his conduct of the office of President of the United States, 
    Richard M. Nixon, in violation of his constitutional oath 
    faithfully to execute the office of President of the United States 
    and, to the best of his ability, preserve, protect, and defend the 
    Constitution of the United States, and in violation of his 
    constitutional duty to take care that the laws be faithfully 
    executed, has prevented, obstructed, and impeded the administration 
    of justice, in that:
        On June 17, 1972, and prior thereto, agents of the Committee 
    for the Reelection of the President committed unlawful entry of the 
    headquarters of the Democratic National Committee in Washington, 
    District of Columbia, for the purpose of securing political 
    intelligence. Subsequent thereto, Richard M. Nixon, using the 
    powers of his high office, engaged personally and through his 
    subordinates and agents, in a course of conduct or plan designed to 
    delay, impede, and obstruct the investigation of such unlawful 
    entry; to cover up, conceal and protect those responsible; and to 
    conceal the existence and scope of other unlawful covert 
    activities.
        The means used to implement this course of conduct or plan 
    included one or more of the following:

            (1) making or causing to be made false or misleading 
        statements to lawfully authorized investigative officers and 
        employees of the United States;
            (2) withholding relevant and material evidence or 
        information from lawfully authorized investigative officers and 
        employees of the United States;
            (3) approving, condoning, acquiescing in, and counseling 
        witnesses with respect to the giving of false or misleading 
        statements to lawfully authorized investigative officers and 
        employees of the United States and false or misleading 
        testimony in duly instituted judicial and congressional 
        proceedings;
            (4) interfering or endeavoring to interfere with the 
        conduct of investigations by the Department of Justice of the 
        United States, the Federal Bureau of Investigation, the Office 
        of Watergate Special Prosecution Force, and Congressional 
        Committees;
            (5) approving, condoning, and acquiescing in, the 
        surreptitious payment of substantial sums of money for the 
        purpose of obtaining the silence or influencing the testimony 
        of

[[Page 1959]]

        witnesses, potential witnesses or individuals who participated 
        in such unlawful entry and other illegal activities;
            (6) endeavoring to misuse the Central Intelligence Agency, 
        an agency of the United States;
            (7) disseminating information received from officers of the 
        Department of Justice of the United States to subjects of 
        investigations conducted by lawfully authorized investigative 
        officers and employees of the United States, for the purpose of 
        aiding and assisting such subjects in their attempts to avoid 
        criminal liability;
            (8) making false or misleading public statements for the 
        purpose of deceiving the people of the United States into 
        believing that a thorough and complete investigation had been 
        conducted with respect to allegations of misconduct on the part 
        of personnel of the executive branch of the United States and 
        personnel of the Committee for the Re-election of the 
        President, and that there was no involvement of such personnel 
        in such misconduct; or
            (9) endeavoring to cause prospective defendants, and 
        individuals duly tried and convicted, to expect favored 
        treatment and consideration in return for their silence or 
        false testimony, or rewarding individuals for their silence or 
        false testimony.

        In all of this, Richard M. Nixon has acted in a manner contrary 
    to his trust as President and subversive of constitutional 
    government, to the great prejudice of the cause of law and justice 
    and to the manifest injury of the people of the United States.
        Wherefore Richard M. Nixon, by such conduct, warrants 
    impeachment and trial, and removal from office.

                                 Article II

        Using the powers of the office of President of the United 
    States, Richard M. Nixon, in violation of his constitutional oath 
    faithfully to execute the office of President of the United States 
    and, to the best of his ability, preserve, protect, and defend the 
    Constitution of the United States, and in disregard of his 
    constitutional duty to take care that the laws be faithfully 
    executed, has repeatedly engaged in conduct violating the 
    constitutional rights of citizens, impairing the due and proper 
    administration of justice and the conduct of lawful inquiries, or 
    contravening the laws governing agencies of the executive branch 
    and the purposes of these agencies.
        This conduct has included one or more of the following:

            (1) He has, acting personally and through his subordinates 
        and agents, endeavored to obtain from the Internal Revenue 
        Service, in violation of the constitutional rights of citizens, 
        confidential information contained in income tax returns for 
        purposes not authorized by law, and to cause, in violation of 
        the constitutional rights of citizens, income tax audits or 
        other income tax investigations to be initiated or conducted in 
        a discriminatory manner.
            (2) He misused the Federal Bureau of Investigation, the 
        Secret Service, and other executive personnel, in violation or 
        disregard of the constitutional rights of citizens, by 
        directing or authorizing such agencies or personnel to conduct 
        or continue electronic surveillance or other investigations for 
        purposes unrelated to national security, the enforcement of 
        laws, or any other lawful function of his office; he did 
        direct, authorize, or permit the use of information obtained 
        thereby for purposes unrelated to national security, the 
        enforcement of laws, or any other lawful function of his 
        office; and he did direct the concealment of

[[Page 1960]]

        certain records made by the Federal Bureau of Investigation of 
        electronic surveillance.
            (3) He has, acting personally and through his subordinates 
        and agents, in violation or disregard of the constitutional 
        rights of citizens, authorized and permitted to be maintained a 
        secret investigative unit within the office of the President, 
        financed in part with money derived from campaign 
        contributions, which unlawfully utilized the resources of the 
        Central Intelligence Agency, engaged in covert and unlawful 
        activities, and attempted to prejudice the constitutional right 
        of an accused to a fair trial.
            (4) He has failed to take care that the laws were 
        faithfully executed by failing to act when he knew or had 
        reason to know that his close subordinates endeavored to impede 
        and frustrate lawful inquiries by duly constituted executive, 
        judicial, and legislative entities concerning the unlawful 
        entry into the headquarters of the Democratic National 
        Committee, and the cover-up thereof, and concerning other 
        unlawful activities, including those relating to the 
        confirmation of Richard Kleindienst as Attorney General of the 
        United States, the electronic surveillance of private citizens, 
        the break-in into the offices of Dr. Lewis Fielding, and the 
        campaign financing practices of the Committee to Reelect the 
        President.
            (5) In disregard of the rule of law, he knowingly misused 
        the executive power by interfering with agencies of the 
        executive branch, including the Federal Bureau of 
        Investigation, the Criminal Division, and the Office of 
        Watergate Special Prosecution Force, of the Department of 
        Justice, and the Central Intelligence Agency, in violation of 
        his duty to take care that the laws be faithfully executed.

        In all of this, Richard M. Nixon has acted in a manner contrary 
    to his trust as President and subversive of constitutional 
    government, to the great prejudice of the cause of law and justice 
    and to the manifest injury of the people of the United States.
        Wherefore Richard M. Nixon, by such conduct, warrants 
    impeachment and trial, and removal from office.

                                Article III

        In his conduct of the office of President of the United States, 
    Richard M. Nixon, contrary to his oath faithfully to execute the 
    office of President of the United States and, to the best of his 
    ability, preserve, protect, and defend the Constitution of the 
    United States, and in violation of his constitutional duty to take 
    care that the laws be faithfully executed, has failed without 
    lawful cause or excuse to produce papers and things as directed by 
    duly authorized subpoenas issued by the Committee on the Judiciary 
    of the House of Representatives on April 11, 1974, May 15, 1974, 
    May 30, 1974, and June 24, 1974, and willfully disobeyed such 
    subpoenas. The subpoenaed papers and things were deemed necessary 
    by the Committee in order to resolve by direct evidence 
    fundamental, factual questions relating to Presidential direction, 
    knowledge, or approval of actions demonstrated by other evidence to 
    be substantial grounds for impeachment of the President. In 
    refusing to produce these papers and things, Richard M. Nixon, 
    substituting his judgment as to what materials were necessary for 
    the inquiry, interposed the powers of the Presidency against the 
    lawful subpoenas of the House of Representatives, thereby assuming 
    to himself functions and judgments necessary to the exercise of the 
    sole power of impeachment vested by the Constitution in the House 
    of Representatives.

[[Page 1961]]

        In all of this, Richard M. Nixon has acted in a manner contrary 
    to his trust as President and subversive of constitutional 
    government, to the great prejudice of the cause of law and justice, 
    and to the manifest injury of the people of the United States.
        Wherefore Richard M. Nixon, by such conduct, warrants 
    impeachment and trial, and removal from office.

Sec. 3.2 Articles impeaching Judge Halsted L. Ritter were reported to 
    the House in two separate resolutions.

    In March 1936, articles of impeachment against Judge Ritter were 
reported to the House: 10
---------------------------------------------------------------------------
10. H. Res. 422, 80 Cong. Rec. 3066-68, 74th Cong. 2d Sess., Mar. 2, 
        1936 (Articles I-IV); H. Res. 471, 80 Cong. Rec. 4597-99, 74th 
        Cong. 2d Sess., Mar. 30, 1936 (amending Article III and adding 
        new Articles IV-VII).
---------------------------------------------------------------------------

                               [H. Res. 422]

        Resolved, That Halsted L. Ritter, who is a United States 
    district judge for the southern district of Florida, be impeached 
    for misbehavior, and for high crimes and misdemeanors; and that the 
    evidence heretofore taken by the subcommittee of the Committee on 
    the Judiciary of the House of Representatives under H. Res. 163 of 
    the Seventy-third Congress sustains articles of impeachment, which 
    are hereinafter set out; and that the said articles be, and they 
    are hereby, adopted by the House of Representatives, and that the 
    same shall be exhibited to the Senate in the following words and 
    figures, to wit:
        Articles of impeachment of the House of Representatives of the 
    United States of America in the name of themselves and of all of 
    the people of the United States of America against Halsted L. 
    Ritter, who was appointed, duly qualified, and commissioned to 
    serve, during good behavior in office, as United States district 
    judge for the southern district of Florida, on February 15, 1929.

                                 Article I

        That the said Halsted L. Ritter, having been nominated by the 
    President of the United States, confirmed by the Senate of the 
    United States, duly qualified and commissioned, and while acting as 
    a United States district judge for the southern district of 
    Florida, was and is guilty of misbehavior and of a high crime and 
    misdemeanor in office in manner and form as follows, to wit: On or 
    about October 11, 1929, A. L. Rankin (who had been a law partner of 
    said judge immediately before said judge's appointment as judge), 
    as solicitor for the plaintiff, filed in the court of the said 
    Judge Ritter a certain foreclosure suit and receivership 
    proceeding, the same being styled ``Bert E. Holland and others 
    against Whitehall Building and Operating Company and others'' 
    (Number 678-M-Eq.). On or about May 15, 1930, the said Judge Ritter 
    allowed the said Rankin an advance of $2,500 on his fee for his 
    services in said case. On or about July 2, 1930, the said Judge 
    Ritter by letter requested another judge of the United States 
    district court for the southern district of Florida, to wit, 
    Honorable Alexander Akerman, to fix and deter

[[Page 1962]]

    mine the total allowance for the said Rankin for his services in 
    said case for the reason as stated by Judge Ritter in said letter, 
    that the said Rankin had formerly been the law partner of the said 
    Judge Ritter, and he did not feel that he should pass upon the 
    total allowance made said Rankin in that case and that if Judge 
    Akerman would fix the allowance it would relieve the writer, Judge 
    Ritter, from any embarrassment if thereafter any question should 
    arise as to his, Judge Ritter's, favoring said Rankin with an 
    exorbitant fee.
        Thereafterward, notwithstanding the said Judge Akerman, in 
    compliance with Judge Ritter's request, allowed the said Rankin a 
    fee of $15,000 for his services in said case, from which sum the 
    said $2,500 theretofore allowed the said Rankin by Judge Ritter as 
    an advance on his fee was deducted, the said Judge Ritter, well 
    knowing that at his request compensation had been fixed by Judge 
    Akerman for the said Rankin's services in said case, and 
    notwithstanding the restraint of propriety expressed in his said 
    letter to Judge Akerman, and ignoring the danger of embarrassment 
    mentioned in said letter, did fix an additional and exorbitant fee 
    for the said Rankin in said case. On or about December 24, 1930, 
    when the final decree in said case was signed, the said Judge 
    Ritter allowed the said Rankin, additional to the total allowance 
    of $15,000 theretofore allowed by Judge Akerman, a fee of $75,000 
    for his services in said case, out of which allowance the said 
    Judge Ritter directly profited. On the same day, December 24, 1930, 
    the receiver in said case paid the said Rankin, as part of his said 
    additional fee, the sum of $25,000, and the said Rankin on the same 
    day privately paid and delivered to the said Judge Ritter the sum 
    of $2,500 in cash; $2,000 of said $2,500 was deposited in bank by 
    Judge Ritter on, to wit, December 29, 1930, the remaining $500 
    being kept by Judge Ritter and not deposited in bank until, to wit, 
    July 10, 1931. Between the time of such initial payment on said 
    additional fee and April 6, 1931, the said receiver paid said 
    Rankin thereon $5,000. On or about April 6, 1931, the said Rankin 
    received the balance of the said additional fee allowed him by 
    Judge Ritter, said balance amounting to $45,000. Shortly 
    thereafter, on or about April 14, 1931, the said Rankin paid and 
    delivered to the said Judge Ritter, privately, in cash, an 
    additional sum of $2,000. The said Judge Halsted L. Ritter 
    corruptly and unlawfully accepted and received for his own use and 
    benefit from the said A. L. Rankin the aforesaid sums of money, 
    amounting to $4,500.
        Wherefore, the said Judge Halsted L. Ritter was and is guilty 
    of misbehavior and was and is guilty of a high crime and 
    misdemeanor.

                                 Article II

        That the said Halsted L. Ritter, while holding the office of 
    United States district judge for the southern district of Florida, 
    having been nominated by the President of the United States, 
    confirmed by the Senate of the United States, duly qualified and 
    commissioned, and while acting as a United States district judge 
    for the southern district of Florida, was and is guilty of 
    misbehavior and of high crimes and misdemeanors in office in manner 
    and form as follows, to wit:
        On the 15th day of February 1929 the said Halsted L. Ritter, 
    having been

[[Page 1963]]

    appointed as United States district judge for the southern district 
    of Florida, was duly qualified and commissioned to serve as such 
    during good behavior in office. Immediately prior thereto and for 
    several years the said Halsted L. Ritter had practiced law in said 
    district in partnership with one A. L. Rankin, which partnership 
    was dissolved upon the appointment of said Ritter as said United 
    States district judge.
        On the 18th day of July 1928 one Walter S. Richardson was 
    elected trustee in bankruptcy of the Whitehall Building and 
    Operating Company, which company had been adjudicated in said 
    district as a bankrupt, and as such trustee took charge of the 
    assets of said Whitehall Building and Operating Company, which 
    consisted of a hotel property located in Palm Beach in said 
    district. That the said Richardson as such trustee operated said 
    hotel property from the time of his said appointment until its 
    sales on the 3d of January 1929, under the foreclosure of a third 
    mortgage thereon. On the 1st of November and the 13th of December 
    1929, the said Judge Ritter made orders in said bankruptcy 
    proceedings allowing the said Walter S. Richardson as trustee the 
    sum of $16,500 as compensation for his services as trustee. That 
    before the discharge of said Walter S. Richardson as such trustee, 
    said Richardson, together with said A. L. Rankin, one Ernest 
    Metcalf, one Martin Sweeney, and the said Halsted L. Ritter, 
    entered into an arrangement to secure permission of the holder or 
    holders of at least $50,000 of first mortgage bonds on said hotel 
    property for the purpose of filing a bill to foreclose the first 
    mortgage on said premises in the court of said Halsted L. Ritter, 
    by which means the said Richardson, Rankin, Metcalf, Sweeney, and 
    Ritter were to continue said property in litigation before said 
    Ritter. On the 30th day of August 1929, the said Walter S. 
    Richardson, in furtherance of said arrangement and understanding, 
    wrote a letter to the said Martin Sweeney, in New York, suggesting 
    the desirability of contacting as many first-mortgage bondholders 
    as possible in order that their cooperation might be secured, 
    directing special attention to Mr. Bert E. Holland, an attorney, 
    whose address was in the Tremont Building in Boston, and who, as 
    cotrustee, was the holder of $50,000 of first-mortgage bonds, the 
    amount of bonds required to institute the contemplated proceedings 
    in Judge Ritter's court.
        On October 3, 1929, the said Bert E. Holland, being solicited 
    by the said Sweeney, requested the said Rankin and Metcalf to 
    prepare a complaint to file in said Judge Ritter's court for 
    foreclosure of said first mortgage and the appointment of a 
    receiver. At this time Judge Ritter was holding court in Brooklyn, 
    New York, and the said Rankin and Richardson went from West Palm 
    Beach, Florida, to Brooklyn, New York, and called upon said Judge 
    Ritter a short time previous to filing the bill for foreclosure and 
    appointment of a receiver of said hotel property.
        On October 10, 1929, and before the filing of said bill for 
    foreclosure and receiver, the said Holland withdrew his authority 
    to said Rankin and Metcalf to file said bill and notified the said 
    Rankin not to file the said bill. Notwithstanding the said 
    instructions to

[[Page 1964]]

    said Rankin not to file said bill, said Rankin, on the 11th day of 
    October 1929, filed said bill with the clerk of the United States 
    District Court for the Southern District of Florida but with the 
    specific request to said clerk to lock up the said bill as soon as 
    it was filed and hold until Judge Ritter's return so that there 
    would be no newspaper publicity before the matter was heard by 
    Judge Ritter for the appointment of a receiver, which request on 
    the part of the said Rankin was complied with by the said clerk.
        On October 16, 1929, the said Holland telegraphed to the said 
    Rankin, referring to his previous wire requesting him to refrain 
    from filing the bill and insisting that the matter remain in its 
    then status until further instruction was given; and on October 17, 
    1929, the said Rankin wired to Holland that he would not make an 
    application on his behalf for the appointment of a receiver. On 
    October 28, 1929, a hearing on the complaint and petition for 
    receivership was heard before Judge Halsted L. Ritter at Miami, at 
    which hearing the said Bert E. Holland appeared in person before 
    said Judge Ritter and advised the judge that he wished to withdraw 
    the suit and asked for dismissal of the bill of complaint on the 
    ground that the bill was filed without his authority.
        But the said Judge Ritter, fully advised of the facts and 
    circumstances herein before recited, wrongfully and oppressively 
    exercised the powers of his office to carry into execution said 
    plan and agreement theretofore arrived at, and refused to grant the 
    request of the said Holland and made effective the champertous 
    undertaking of the said Richardson and Rankin and appointed the 
    said Richardson receiver of the said hotel property, 
    notwithstanding that objection was made to Judge Ritter that said 
    Richardson had been active in fomenting this litigation and was not 
    a proper person to act as receiver.
        On October 15, 1929, said Rankin made oath to each of the bills 
    for intervenors which were filed the next day.
        On October 16, 1929, bills for intervention in said foreclosure 
    suit were filed by said Rankin and Metcalf in the names of holders 
    of approximately $5,000 of said first-mortgage bonds, which 
    intervenors did not possess the said requisite $50,000 in bonds 
    required by said first mortgage to bring foreclosure proceedings on 
    the part of the bondholders.
        The said Rankin and Metcalf appeared as attorneys for 
    complainants and intervenors, and in response to a suggestion of 
    the said Judge Ritter, the said Metcalf withdrew as attorney for 
    complainants and intervenors and said Judge Ritter thereupon 
    appointed said Metcalf as attorney for the said Richardson, the 
    receiver.
        And in the further carrying out of said arrangement and 
    understanding, the said Richardson employed the said Martin Sweeney 
    and one Bemis, together with Ed Sweeney, as managers of said 
    property, for which they were paid the sum of $60,000 for the 
    management of said hotel for the two seasons the property remained 
    in the custody of said Richardson as receiver.
        On or about the 15th day of May 1930 the said Judge Ritter 
    allowed the said Rankin an advance on his fee of $2,500 for his 
    services in said case.
        On or about July 2, 1930, the said Judge Ritter requested Judge 
    Alex

[[Page 1965]]

    ander Akerman, also a judge of the United States District Court for 
    the Southern District of Florida, to fix the total allowance for 
    the said Rankin for his services in said case, said request and the 
    reasons therefor being set forth in a letter by the said Judge 
    Ritter, in words and figures as follows, to wit:

                                                     July 2, 1930.
Hon. Alexander Akerman,
United States District Judge, Tampa, Fla.

        My Dear Judge: In the case of Holland et al. v. Whitehall 
    Building & Operating Co. (No. 678-M-Eq.), pending in my division, 
    my former law partner, Judge A. L. Rankin, of West Palm Beach, has 
    filed a petition for an order allowing compensation for his 
    services on behalf of the plaintiff.
        I do not feel that I should pass, under the circumstances, upon 
    the total allowance to be made Judge Rankin in this matter. I did 
    issue an order, which Judge Rankin will exhibit to you, approving 
    an advance of $2,500 on his claim, which was approved by all 
    attorneys.
        You will appreciate my position in the matter, and I request 
    you to pass upon the total allowance which should be made Judge 
    Rankin in the premises as an accommodation to me. This will relieve 
    me from any embarrassment hereafter if the question should arise as 
    to my favoring Judge Rankin in this matter by an exorbitant 
    allowance.
        Appreciating very much your kindness in this matter, I am,
          Yours sincerely,
                                                Halsted L. Ritter.

        In compliance with said request the said Judge Akerman allowed 
    the said Rankin $12,500 in addition to the $2,500 theretofore 
    allowed by Judge Ritter, making a total of $15,000 as the fee of 
    the said Rankin in the said case.

        But notwithstanding the said request on the part of said Ritter 
    and the compliance by the said Judge Akerman and the reasons for 
    the making of said request by said Judge Ritter of Judge Akerman, 
    the said Judge Ritter, on the 24th day of December 1930, allowed 
    the said Rankin an additional fee of $75,000.
        And on the same date when the receiver in said case paid to the 
    said Rankin as a part of said additional fee the sum of $25,000, 
    said Rankin privately paid and delivered to said Judge Ritter out 
    of the said $25,000 the sum of $2,500 in cash, $2,000 of which the 
    said Judge Ritter deposited in a bank and $500 of which was put in 
    a tin box and not deposited until the 10th day of July 1931, when 
    it was deposited in a bank with an additional sum of $600.
        On or about the 6th day of April 1931, the said Rankin received 
    as a part of the $75,000 additional fee the sum of $45,000, and 
    shortly thereafter, on or before the 14th day of April 1931, the 
    said Rankin paid and delivered to said judge Ritter, privately and 
    in cash, out of said $45,000 the sum of $2,000.
        The said Judge Halsted L. Ritter corruptly and unlawfully 
    accepted and received for his own use and benefit from the said 
    Rankin the aforesaid sums of $2,500 in cash and $2,000 in cash, 
    amounting in all to $4,500.
        Of the total allowance made to said A.L. Rankin in said 
    foreclosure suit, amounting in all to $90,000, the fol

[[Page 1966]]

    lowing sums were paid out by said Rankin with the knowledge and 
    consent of said Judge Ritter, to wit: to said Walter S. Richardson, 
    the sum of $5,000; to said Metcalf, the sum of $10,000; to Shutts 
    and Bowen, also attorneys for the receiver, the sum of $25,000; and 
    to said Halsted L. Ritter, the sum of $4,500.
        In addition to the said sum of $5,000 received by the said 
    Richardson as aforesaid, said Ritter by order in said proceedings 
    allowed said Richardson a fee of $30,000 for services as such 
    receiver.
        The said fees allowed by said Judge Ritter to A.L. Rankin (who 
    had been a law partner of said judge immediately before said 
    judge's appointment as judge) as solicitor for the plaintiff in 
    said case were excessive and unwarranted, and said judge profited 
    personally thereby in that out of the money so allowed said 
    solicitor he received personally, privately, and in cash $4,500 for 
    his own use and benefit.
        While the Whitehall Hotel was being operated in receivership 
    under said proceeding pending in said court (and in which 
    proceeding the receiver in charge of said hotel by appointment of 
    said Judge was allowed large compensation by said judge) the said 
    judge stayed at said hotel from time to time without cost to 
    himself and received free rooms, free meals, and free valet 
    service, and, with the knowledge and consent of said judge, members 
    of his family, including his wife, his son, Thurston Ritter, his 
    daughter, Mrs. M.R. Walker, his secretary, Mrs. Lloyd C. Hooks, and 
    her husband, Lloyd C. Hooks, each likewise on various occasions 
    stayed at said hotel without cost to themselves or to said judge, 
    and received free rooms, and some or all of them received from said 
    hotel free meals and free valet service; all of which expenses were 
    borne by the said receivership to the loss and damage of the 
    creditors whose interests were involved therein.
        The said judge willfully failed and neglected to perform his 
    duty to conserve the assets of the Whitehall Building and Operating 
    Company in receivership in his court, but to the contrary, 
    permitted waste and dissipation of its assets, to the loss and 
    damage of the creditors of said corporation, and was a party to the 
    waste and dissipation of such assets while under the control of his 
    said court, and personally profited thereby, in the manner and form 
    hereinabove specifically set out.
        Wherefore, the said Judge Halsted L. Ritter was and is guilty 
    of misbehavior, and was and is guilty of a high crime and 
    misdemeanor in office.

    Articles III and IV in House Resolution 422 are omitted because 
House Resolution 471, adopted by the House on Mar. 30, 1936, amended 
Article III, added new Articles IV through VI after Article III, and 
amended former Article IV to read as new Article VII. Articles III 
through VII in their amended form follow:

                                Article III

        That the said Halsted L. Ritter, having been nominated by the 
    President of the United States, confirmed by the Senate of the 
    United States, duly qualified and commissioned, and, while

[[Page 1967]]

    acting as a United States District judge for the southern district 
    of Florida, was and is guilty of a high crime and misdemeanor in 
    office in manner and form as follows, to wit:
        That the said Halsted L. Ritter, while such judge, was guilty 
    of a violation of section 258 of the Judicial Code of the United 
    States of America (U.S.C., Annotated, title 28, sec. 373) making it 
    unlawful for any judge appointed under the authority of the United 
    States to exercise the profession or employment of counsel or 
    attorney, or to be engaged in the practice of the law, in that 
    after the employment of the law firm of Ritter and Rankin (which at 
    the time of the appointment of Halsted L. Ritter to be judge of the 
    United States District Court for the Southern District of Florida, 
    was composed of Halsted L. Ritter and A.L. Rankin) in the case of 
    Trust Company of Georgia and Robert G. Stephens, trustee, against 
    Brazilian Court Building Corporation, and others, numbered 5704, in 
    the Circuit Court of the Fifteenth Judicial Circuit of Florida, and 
    after the fee of $4,000 which had been agreed upon at the outset of 
    said employment had been fully paid to the firm of Ritter and 
    Rankin, and after Halsted L. Ritter had, on, to wit, February 15, 
    1929, become judge of the United States District Court for the 
    Southern District of Florida, Judge Ritter on, to wit, March 11, 
    1929, wrote a letter to Charles A. Brodek, of counsel for Mulford 
    Realty Corporation (the client which his former law firm had been 
    representing in said litigation), stating that there had been much 
    extra and unanticipated work in the case, that he was then a 
    Federal Judge; that his partner, A.L. Rankin, would carry through 
    further proceedings in the case, but that he, Judge Ritter, would 
    be consulted about the matter until the case was all closed up; and 
    that ``this matter is one among very few which I am assuming to 
    continue my interest in until finally closed up''; and stating 
    specifically in said letter:
        ``I do not know whether any appeal will be taken in the case or 
    not but, if so, we hope to get Mr. Howard Paschal or some other 
    person as receiver who will be amenable to our directions, and the 
    hotel can be operated at a profit, of course, pending the appeal. 
    We shall demand a very heavy supersedeas bond, which I doubt 
    whether D'Esterre can give''; and further that he was ``of course 
    primarily interested in getting some money in the case'', and that 
    he thought ``$2,000 more by way of attorneys' fees should be 
    allowed'', and asked that he be communicated with direct about the 
    matter, giving his post-office-box number. On to wit, March 13, 
    1929, said Brodek replied favorably, and on March 30, 1929, a check 
    of Brodek, Raphael, and Eisner, a law firm of New York City, 
    representing Mulford Realty Corporation, in which Charles A. 
    Brodek, senior member of the firm of Brodek, Raphael and Eisner, 
    was one of the directors, was drawn, payable to the order of 
    ``Honorable Halsted L. Ritter'' for $2,000 and which was duly 
    endorsed ``Honorable Halsted L. Ritter. H. L. Ritter'' and was paid 
    on, to wit, April 4, 1929, and the proceeds thereof were received 
    and appropriated by Judge Ritter to his own individual use and 
    benefit, without advising his said former partner that said $2,000 
    had been received, without consulting with

[[Page 1968]]

    his former partner thereabout, and without the knowledge or consent 
    of his said former partner, appropriated the entire amount thus 
    solicited and received to the use and benefit of himself, the said 
    Judge Ritter.
        At the time said letter was written by Judge Ritter and said 
    $2,000 received by him, Mulford Realty Corporation held and owned 
    large interests in Florida real estate and citrus groves, and a 
    large amount of securities of the Olympia Improvement Corporation, 
    which was a company organized to develop and promote Olympia, 
    Florida, said holdings being within the territorial jurisdiction of 
    the United States District Court, of which Judge Ritter was a judge 
    from, to wit, February 15, 1929.
        After writing said letter of March 11, 1929, Judge Ritter 
    further exercised the profession or employment of counsel or 
    attorney, or engaged in the practice of the law, with relation to 
    said case.
        Which acts of said judge were calculated to bring his office 
    into disrepute, constitute a violation of section 258 of the 
    Judicial Code of the United States of America (U.S.C., Annotated, 
    title 28, sec. 373), and constitute a high crime and misdemeanor 
    within the meaning and intent of section 4 of article II of the 
    Constitution of the United States.
        Wherefore, the said Judge Halsted L. Ritter was and is guilty 
    of a high misdemeanor in office.

                                 Article IV

        That the said Halsted L. Ritter, having been nominated by the 
    President of the United States, confirmed by the Senate of the 
    United States, duly qualified and commissioned, and, while acting 
    as a United States district judge for the southern district of 
    Florida, was and is guilty of a high crime and misdemeanor in 
    office in manner and form as follows to wit:
        That the said Halsted L. Ritter, while such judge, was guilty 
    of a violation of section 258 of the Judicial Code of the United 
    States of America (U.S.C., Annotated, title 28, sec. 373), making 
    it unlawful for any judge appointed under the authority of the 
    United States to exercise the profession or employment of counsel 
    or attorney, or to be engaged in the practice of the law, in that 
    Judge Ritter did exercise the profession or employment of counsel 
    or attorney, or engage in the practice of the law, representing 
    J.R. Francis, with relation to the Boca Raton matter and the 
    segregation and saving of the interest of J.R. Francis herein, or 
    in obtaining a deed or deeds to J.R. Francis from the Spanish River 
    Land Company to certain pieces of realty, and in the Edgewater 
    Ocean Beach Development Company matter for which services the said 
    Judge Ritter received from the said J.R. Francis the sum of $7,500.
        Which acts of said judge were calculated to bring his office 
    into disrepute constitute a violation of the law above recited, and 
    constitute a high crime and misdemeanor within the meaning and 
    intent of section 4 of article II of the Constitution of the United 
    States.
        Wherefore, the said Judge Halsted L. Ritter was and is guilty 
    of a high misdemeanor in office.

                                 Article V

        That the said Halsted L. Ritter, having been nominated by the 
    President of

[[Page 1969]]

    the United States, confirmed by the Senate of the United States, 
    duly qualified and commissioned, and, while acting as a United 
    States district judge for the southern district of Florida, was and 
    is guilty of a high crime and misdemeanor in office in manner and 
    form as follows, to wit:
        That the said Halsted L. Ritter, while such judge, was guilty 
    of violation of section 146(h) of the Revenue Act of 1928, making 
    it unlawful for any person willfully to attempt in any manner to 
    evade or defend the payment of the income tax levied in and by said 
    Revenue Act of 1928, in that during the year 1929 said Judge Ritter 
    received gross taxable income--over and above his salary as judge--
    to the amount of some $12,000, yet paid no income tax thereon.
        Among the fees included in said gross taxable income for 1929 
    were the extra fee of $2,000 collected and received by Judge Ritter 
    in the Brazilian Court case as described in article III, and the 
    fee of $7,500 received by Judge Ritter from J.R. Francis.
        Wherefore the said Judge Halsted L. Ritter was and is guilty of 
    a high misdemeanor in office.

                                 Article VI

        That the said Halsted L. Ritter, having been nominated by the 
    President of the United States, confirmed by the Senate of the 
    United States, duly qualified and commissioned, and, while acting 
    as a United States district judge for the southern district of 
    Florida, was and is guilty of a high crime and misdemeanor in 
    office in manner and form as follows, to wit:
        That the said Halsted L. Ritter, while such judge, was guilty 
    of violation of section 146(b) of the Revenue Act of 1928, making 
    it unlawful for any person willfully to attempt in any manner to 
    evade or defeat the payment of the income tax levied in and by said 
    Revenue Act of 1928, in that during the year 1930 the said Judge 
    Ritter received gross taxable income--over and above his salary as 
    judge--to the amount of to wit, $5,300, yet failed to report any 
    part thereof in his income-tax return for the year 1930 and paid no 
    income tax thereon.
        Two thousand five hundred dollars of said gross taxable income 
    for 1930 was that amount of cash paid Judge Ritter by A. L. Rankin 
    on December 24, 1930, as described in article I.
        Wherefore the said Judge Halsted L. Ritter was and is guilty of 
    a high misdemeanor in office.

                                Article VII

        That the said Halsted L. Ritter, while holding the office of 
    United States district judge for the southern district of Florida, 
    having been nominated by the President of the United States, 
    confirmed by the Senate of the United States, duly qualified and 
    commissioned, and, while acting as a United States district judge 
    for the southern district of Florida, was and is guilty of 
    misbehavior and of high crimes and misdemeanors in office in manner 
    and form as follows, to wit:
        The reasonable and probable consequence of the actions or 
    conduct of Halsted L. Ritter, hereunder specified or indicated in 
    this article, since he became judge of said court, as an individual 
    or as such judge, is to bring his court into scandal and disrepute, 
    to the prejudice of said court and public con

[[Page 1970]]

    fidence in the administration of justice therein, and to the 
    prejudice of public respect for and confidence in the Federal 
    judiciary, and to render him unfit to continue to serve as such 
    judge:
        1. In that in the Florida Power Company case (Florida Power and 
    Light Company against City of Miami and others, numbered 1138-M-
    Eq.) which was a case wherein said judge had granted the 
    complainant power company a temporary injunction restraining the 
    enforcement of an ordinance of the city of Miami, which ordinance 
    prescribed a reduction in the rates for electric current being 
    charged in said city, said judge improperly appointed one Cary T. 
    Hutchinson, who had long been associated with and employed by power 
    and utility interests, special master in chancery in said suit, and 
    refused to revoke his order so appointing said Hutchinson. 
    Thereafter, when criticism of such action had become current in the 
    city of Miami, and within two weeks after a resolution (H. Res. 
    163, Seventy-third Congress) had been agreed to in the House of 
    Representatives of the Congress of the United States, authorizing 
    and directing the Judicial Committee thereof to investigate the 
    official conduct of said judge and to make a report concerning said 
    conduct to said House of Representatives an arrangement was entered 
    into with the city commissioners of the city of Miami or with the 
    city attorney of said city by which the said city commissioners 
    were to pass a resolution expressing faith and confidence in the 
    integrity of said judge, and the said judge recuse himself as judge 
    in said Dower suit. The said agreement was carried out by the 
    parties thereto, and said judge, after the passage of such 
    resolution, recused himself from sitting as judge in said power 
    suit, thereby bartering his judicial authority in said case for a 
    vote of confidence. Nevertheless, the succeeding judge allowed said 
    Hutchinson as special master in chancery in said case a fee of 
    $5,000, although he performed little, if any, service as such, and 
    in the order making such allowance recited: ``And it appearing to 
    the court that a minimum fee of $5,000 was approved by the court 
    for the said Cary T. Hutchinson, special master in this cause.''
        2. In that in the Trust Company of Florida cases (Illick 
    against Trust Company of Florida and others numbered 1043-M-Eq., 
    and Edmunds Committee and others against Marion Mortgage Company 
    and others, numbered 1124-M-Eq.) after the State banking department 
    of Florida, through its comptroller, Honorable Ernest Amos, had 
    closed the doors of the Trust Company of Florida and appointed J.H. 
    Therrell liquidator for said trust company, and had intervened in 
    the said Illick case, said Judge Ritter wrongfully and erroneously 
    refused to recognize the right of said State authority to 
    administer the affairs of the said trust company and appointed 
    Julian E. Eaton and Clark D. Stearns as receivers of the property 
    of said trust company. On appeal, the United States Circuit Court 
    of Appeals for the Fifth Circuit reversed the said order or decree 
    of Judge Ritter and ordered the said property surrendered to the 
    State liquidator. Thereafter, on, to wit, September 12, 1932, there 
    was filed in the United States District Court for the Southern 
    District of Florida the Edmunds Committee case, supra. Mar

[[Page 1971]]

    ion Mortgage Company was a subsidiary of the Trust Company of 
    Florida. Judge Ritter being absent from his district at the time of 
    the filing of said case, an application for the appointment of 
    receivers therein was presented to another judge of said district, 
    namely, Honorable Alexander Akerman. Judge Ritter, however, prior 
    to the appointment of such receivers, telegraphed Judge Akerman, 
    requesting him to appoint the aforesaid Eaton and Stearns as 
    receivers in said case, which appointments were made by Judge 
    Akerman. Thereafter the United States Circuit Court of Appeals for 
    the Fifth Circuit reversed the order of Judge Akerman, appointing 
    said Eaton and Stearns as receivers in said case. In November 1932, 
    J.H. Therrell, as liquidator, filed a bill of complaint in the 
    Circuit Court of Dade County, Florida--a court of the State of 
    Florida--alleging that the various trust properties of the Trust 
    Company of Florida were burdensome to the liquidator to keep, and 
    asking that the court appoint a succeeding trustee. Upon petition 
    for removal of said cause from said State court into the United 
    States District Court for the Southern District of Florida, Judge 
    Ritter took jurisdiction, notwithstanding the previous rulings of 
    the United States Circuit Court of Appeals above referred to, and 
    again appointed the said Eaton and Stearns as the receivers of the 
    said trust properties. In December 1932 the said Therrell 
    surrendered all of the trust properties to said Eaton and Stearns 
    as receivers, together with all records of the Trust Company of 
    Florida pertaining thereto. During the time said Eaton and Stearns, 
    as such receivers, were in control of said trust properties, Judge 
    Ritter wrongfully and improperly approved their accounts without 
    notice or opportunity for objection thereto to be heard.
        With the knowledge of Judge Ritter, said receivers appointed 
    the sister-in-law of Judge Ritter, namely, Mrs. G.M. Wickard, who 
    had had no previous hotel-management experience, to be manager of 
    the Julia Tuttle Hotel and Apartment Building, one of said trust 
    properties. On, to wit, January 1, 1933, Honorable J.M. Lee 
    succeeded Honorable Ernest Amos as comptroller of the State of 
    Florida and appointed M.A. Smith liquidator in said Trust Company 
    of Florida cases to succeed J.H. Therrell. An appeal was again 
    taken to the United States Circuit Court of Appeals for the Fifth 
    Circuit from the then latest order or decree of Judge Ritter, and 
    again the order or decree of Judge Ritter appealed from was 
    reversed by the said circuit court of appeals which held that the 
    State officer was entitled to the custody of the property involved 
    and that said Eaton and Stearns as receivers were not entitled to 
    such custody. Thereafter, and with the knowledge of the decision of 
    the said circuit court of appeals, Judge Ritter wrongfully and 
    improperly allowed said Eaton and Stearns and their attorneys some 
    $26,000 as fees out of said trust-estate properties and endeavored 
    to require, as a condition precedent to releasing said trust 
    properties from the control of his court, a promise from counsel 
    for the said State liquidator not to appeal from his order allowing 
    the said fees to said Eaton and Stearns and their attorneys.
        3. In that the said Halsted L. Ritter, while such Federal 
    judge, accepted, in addition to $4,500 from his former law

[[Page 1972]]

    partner as alleged in article I hereof other large fees or 
    gratuities, to wit, $7,500 from J.R. Francis, on or about April 19, 
    1929, J.R. Francis at this time having large property interests 
    within the territorial jurisdiction of the court of which Judge 
    Ritter was a judge; and on, to wit, the 4th day of April 1929 the 
    said Judge Ritter accepted the sum of $2,000 from Brodek, Raphael 
    and Eisner, representing Mulford Realty Corporation, as its 
    attorneys, through Charles A. Brodek, senior member of said firm 
    and a director of said corporation, as a fee or gratuity, at which 
    time the said Mulford Realty Corporation held and owned large 
    interests in Florida real estate and citrus groves, and a large 
    amount of securities of the Olympia Improvement Corporation, which 
    was a company organized to develop and promote Olympia, Florida, 
    said holding being within the territorial jurisdiction of the 
    United States District Court of which Judge Ritter was a judge 
    from, to wit, February 15, 1929.
        4. By his conduct as detailed in articles I, II, III, and IV 
    hereof, and by his income-tax evasions as set forth in articles V 
    and VI hereof.
        Wherefore, the said Judge Halsted L. Ritter was and is guilty 
    of misbehavior, and was and is guilty of high crimes and 
    misdemeanors in office.

Cumulative and Duplicatory Articles of Impeachment

Sec. 3.3 Majority views and minority views were included in the report 
    of the Committee on the Judiciary recommending the impeachment of 
    President Richard M. Nixon, such views relating to Article II, 
    containing an accumulation of acts constituting a course of 
    conduct.

    On Aug. 20, 1974, the Committee on the Judiciary recommended in its 
final report to the House, pursuant to its inquiry into charges of 
impeachable offenses against President Nixon, three articles of 
impeachment. Article II charged that the President had ``repeatedly 
engaged in conduct'' violative of his Presidential oath and of his 
constitutional duty to take care that the laws be faithfully executed. 
The article set forth, in five separate paragraphs, five patterns of 
conduct constituting the offenses charged.
    The conclusion of the committee's report on Article II read in part 
as follows:

        In recommending Article II to the House, the Committee finds 
    clear and convincing evidence that Richard M. Nixon, contrary to 
    his trust as President and unmindful of the solemn duties of his 
    high office, has repeatedly used his power as President to violate 
    the Constitution and the law of the land.
        In so doing, he has failed in the obligation that every citizen 
    has to live under the law. But he has done more, for it is the duty 
    of the President not merely to live by the law but to see that law 
    faithfully applied. Richard M. Nixon has repeatedly and willfully

[[Page 1973]]

    failed to perform that duty. He has failed to perform it by 
    authorizing and directing actions that violated or disregarded the 
    rights of citizens and that corrupted and attempted to corrupt the 
    lawful functioning of executive agencies. He has failed to perform 
    it by condoning and ratifying, rather than acting to stop, actions 
    by his subordinates that interfered with lawful investigations and 
    impeded the enforcement of the laws. . . .
        The conduct of Richard M. Nixon has constituted a repeated and 
    continuing abuse of the powers of the Presidency in disregard of 
    the fundamental principle of the rule of law in our system of 
    government. This abuse of the powers of the President was carried 
    out by Richard M. Nixon, acting personally and through his 
    subordinates, for his own political advantage, not for any 
    legitimate governmental purpose and without due consideration for 
    the national good. . . .
        The Committee has concluded that, to perform its constitutional 
    duty, it must approve this Article of Impeachment and recommend it 
    to the House. If we had been unwilling to carry out the principle 
    that all those who govern, including ourselves, are accountable to 
    the law and the Constitution, we would have failed in our 
    responsibility as representatives of the people elected under the 
    Constitution. If we had not been prepared to apply the principle of 
    Presidential accountability embodied in the impeachment clause of 
    the Constitution, but had instead condoned the conduct of Richard 
    M. Nixon, then another President, perhaps with a different 
    political philosophy, might have used this illegitimate power for 
    further encroachments on the rights of citizens and further 
    usurpations of the power of other branches of our government. By 
    adopting this Article, the Committee seeks to prevent the 
    recurrence of any such abuse of Presidential power.
        The Committee finds that, in the performance of his duties as 
    President, Richard M. Nixon on many occasions has acted to the 
    detriment of justice, right, and the public good, in violation of 
    his constitutional duty to see to the faithful execution of the 
    laws. This conduct has demonstrated a contempt for the rule of law; 
    it has posed a threat to our democratic republic. The Committee 
    finds that this conduct constitutes ``high crimes and 
    misdemeanors'' within the meaning of the Constitution, that it 
    warrants his impeachment by the House, and that it requires that he 
    be put to trial in the Senate.(11)
---------------------------------------------------------------------------
11. H. Rept. No. 93-1305, at pp. 180-183, Committee on the Judiciary, 
        printed in the Record at 120 Cong. Rec. 29270, 29271, 93d Cong. 
        2d Sess., Aug. 20, 1974. For complete text of H. Rept. No. 93-
        1305, see id. at pp. 29219-361.
---------------------------------------------------------------------------

    Opposing minority views were included in the report on the 
``duplicity'' of offenses charged in Article II. The views (footnotes 
omitted) below are those of Messrs. Hutchinson, Smith, Sandman, 
Wiggins, Dennis, Mayne, Lott, Moorhead, Maraziti, and Latta:

        Our opposition to the adoption of Article II should not be 
    misunderstood as condonation of the presidential conduct alleged 
    therein. On the contrary, we

[[Page 1974]]

    deplore in strongest terms the aspects of presidential wrongdoing 
    to which the Article is addressed. However, we could not in 
    conscience recommend that the House impeach and the Senate try the 
    President on the basis of Article II in its form as proposed, 
    because in our view the Article is duplicitous in both the ordinary 
    and the legal senses of the word. In common usage, duplicity means 
    belying one's true intentions by deceptive words; as a legal term 
    of art, duplicity denotes the technical fault of uniting two or 
    more offenses in the same count of an indictment. We submit that 
    the implications of a vote for or against Article II are ambiguous 
    and that the Committee debate did not resolve the ambiguities so as 
    to enable the Members to vote intelligently. Indeed, this defect is 
    symptomatic of a generic problem inherent in the process of 
    drafting Articles of impeachment, and its significance for 
    posterity may be far greater than the substantive merits of the 
    particular charges embodied in Article II. . . .
        We do not take the position that the grouping of charges in a 
    single Article is necessarily always invalid. To the contrary, it 
    would make good sense if the alleged offenses together comprised a 
    common scheme or plan, or even if they were united by a specific 
    legal theory. Indeed, even if there were no logical reason at all 
    for so grouping the charges (as is true of Article II), the Article 
    might still be acceptable if its ambiguous aspects had been 
    satisfactorily resolved. For the chief vice of this Article is that 
    it is unclear from its language whether a Member should vote for 
    its adoption if he believes any one of the five charges to be 
    supported by the evidence; or whether he must believe in the 
    sufficiency of all five; or whether it is enough if he believes in 
    the sufficiency of more than half of the charges. The only clue is 
    the sentence which states, ``This conduct has included one or more 
    of the following [five specifications]''. This sentence implies 
    that a Member may--indeed, must--vote to impeach or to convict if 
    he believes in the sufficiency of a single specification, even 
    though he believes that the accusations made under the other four 
    specifications have not been proved, or do not even constitute 
    grounds for impeachment. Thus Article II would have unfairly 
    accumulated all guilty votes against the President, on whatever 
    charge. The President could have been removed from office even 
    though no more than fourteen Senators believed him guilty of the 
    acts charged in any one of the five specifications.
        Nor could the President have defended himself against the 
    ambiguous charges embodied in Article II. Inasmuch as five 
    specifications are included in support of three legal theories, and 
    all eight elements are phrased in the alternative, Article II 
    actually contains no fewer than fifteen separate counts, any one of 
    which might be deemed to constitute grounds for impeachment and 
    removal. In addition, if the President were not informed which 
    matters included in Article II were thought to constitute ``high 
    Crimes and Misdemeanors,'' he would have been deprived of his right 
    under the Sixth Amendment to ``be informed of the nature and cause 
    of the accusation'' against him.
        This defect of Article II calls to mind the impeachment trial 
    of Judge Halsted Ritter in 1936. Ritter was nar

[[Page 1975]]

    rowly acquitted of specific charges of bribery and related offenses 
    set forth in the first six Articles. He was convicted by an exact 
    two-thirds majority, however, under Article VII. That Article 
    charged that because of the specific offenses embodied in the other 
    six Articles, Ritter had ``[brought] his court into scandal and 
    disrepute, to the prejudice of said court and public confidence in 
    the administration of justice. . . .'' The propriety of convicting 
    him on the basis of this vague charge, after he had been acquitted 
    on all of the specific charges, will long be debated. Suffice it to 
    say that the putative defect of Article VII is entirely different 
    from that of Article II in the present case, and the two should not 
    be confused.
        A more relevant precedent may be found in the House debates 
    during the impeachment of Judge Charles Swayne in 1905. In that 
    case the House had followed the earlier practice of voting first on 
    the general question of whether or not to impeach, and then 
    drafting the Articles. Swayne was impeached in December 1904, by a 
    vote of 198-61, on the basis of five instances of misconduct. 
    During January 1905 these five grounds for impeachment were 
    articulated in twelve Articles. In the course of debate prior to 
    the adoption of the Articles, it was discovered that although the 
    general proposition to impeach had commanded a majority, individual 
    Members had reached that conclusion for different reasons. This 
    gave rise to the embarrassing possibility that none of the Articles 
    would be able to command a majority vote. Representative Parker 
    regretted that the House had not voted on each charge separately 
    before voting on impeachment:

            [W]here different crimes and misdemeanors were alleged it 
        was the duty of the House to have voted whether each class of 
        matter reported was impeachable before debating that resolution 
        of impeachment, and that the committee was entitled to the vote 
        of a majority on each branch, and that now for the first time 
        the real question of impeachment has come before this House to 
        be determined--not by five men on one charge, fifteen on 
        another, and twenty on another coming in generally and saying 
        that for one or another of the charges Judge Swayne should be 
        impeached, but on each particular branch of the case.
            When we were asked to vote upon ten charges at once, that 
        there was something impeachable contained in one or another of 
        those charges we have already perhaps stultified ourselves in 
        the mode of our procedure. . . .

        In order to extricate the House from its quandary, 
    Representative Powers urged that the earlier vote to impeach should 
    be construed to imply that a majority of the House felt that each 
    of the separate charges had been proved;

            At that time the committee urged the impeachment upon five 
        grounds, and those are the only grounds which are covered by 
        the articles . . . and we had assumed that when the House voted 
        the impeachment they practically said that a probable cause was 
        made out in these five subject-matters which were discussed 
        before the House.

        Powers' retrospective theory was ultimately vindicated when the 
    House approved all twelve Articles.
        If the episode from the Swayne impeachment is accorded any 
    precedential value in the present controversy over Article II, it 
    might be argued by analogy that the Committee's vote to

[[Page 1976]]

    adopt that Article must be construed to imply that a majority 
    believed that all five specifications had been proved. Because the 
    Committee did not vote separately on each specification, however, 
    it is impossible to know whether those Members who voted for 
    Article II would be willing to accept that construction. If so, 
    then one of our major objections to the Article would vanish. 
    However, it would still be necessary to amend the Article by 
    removing the sentence ``This has included one or more of the 
    following,'' and substituting language which would make it plain 
    that no Member of the House or Senate could vote for the Article 
    unless he was convinced of the independent sufficiency of each of 
    the five specifications.
        However, there remains another and more subtle objection to the 
    lumping together of unrelated charges in Article II:

            There is indeed always a danger when several crimes are 
        tied together, that the jury will use the evidence 
        cumulatively; that is, that although so much as would be 
        admissible upon any one of the charges might not have persuaded 
        them of the accused's guilt, the sum of it will convince them 
        as to all.

        It is thus not enough protection for an accused that the Senate 
    may choose to vote separately upon each section of an omnibus 
    article of impeachment: the prejudicial effect of grouping a 
    diverse mass of factual material under one heading, some of it 
    adduced to prove one proposition and another to prove a proposition 
    entirely unrelated, would still remain.(12)
---------------------------------------------------------------------------
12. H. Rept. No. 93-1305, at pp. 427-431, Committee on the Judiciary, 
        printed in the Record at 120 Cong. Rec. 29332-34, 93d Cong. 2d 
        Sess., Aug. 20, 1974.
---------------------------------------------------------------------------

Sec. 3.4 The Senate, sitting as a Court of Impeachment, rejected a 
    motion to strike articles of impeachment on the ground that certain 
    articles were duplicatory and accumulative.

    On Apr. 3, 1936,(13) Judge Halsted L. Ritter, respondent 
in an impeachment trial, moved in the Senate to strike certain articles 
on the grounds of duplication and accumulation of changes.
---------------------------------------------------------------------------
13. 80 Cong. Rec. 4898, 74th Cong. 2d Sess. The motion was submitted on 
        Mar. 31, 1936, 80 Cong. Rec. 4656, 4657, and reserved for 
        decision.
---------------------------------------------------------------------------

    The motion as duly filed by counsel for the respondent is as 
follows:
In the Senate of the United States of America sitting as a Court of 
    Impeachment. The United States of America v. Halsted L. Ritter, 
    respondent

      Motion to Strike Article I, or, in the Alternative, to Require 
     Election as to Articles I and II; and Motion to Strike Article VII

        The respondent, Halsted L. Ritter, moves the honorable Senate, 
    sitting as a Court of Impeachment, for an order striking and 
    dismissing article I of the articles of impeachment, or, in the 
    alternative, to require the honorable managers on the part of the 
    House of Representatives to elect as to whether they will proceed 
    upon article I or

[[Page 1977]]

    upon article II, and for grounds of such motion respondent says:
        1. Article II reiterates and embraces all the charges and 
    allegations of article I, and the respondent is thus and thereby 
    twice charged in separate articles with the same and identical 
    offense, and twice required to defend against the charge presented 
    in article I.
        2. The presentation of the same and identical charge in the two 
    articles in question tends to prejudice the respondent in his 
    defense, and tends to oppress the respondent in that the articles 
    are so framed as to collect, or accumulate upon the second article, 
    the adverse votes, if any, upon the first article.
        3. The Constitution of the United States contemplates but one 
    vote of the Senate upon the charge contained in each article of 
    impeachment, whereas articles I and II are constructed and arranged 
    in such form and manner as to require and exact of the Senate a 
    second vote upon the subject matter of article I.

                        Motion to Strike Article VII

        And the respondent further moves the honorable Senate, sitting 
    as a Court of Impeachment, for an order striking and dismissing 
    article VII, and for grounds of such motion, respondent says:
        1. Article VII includes and embraces all the charges set forth 
    in articles I, II, III, IV, V, and VI.
        2. Article VII constitutes an accumulation and massing of all 
    charges in preceding articles upon which the Court is to pass 
    judgment prior to the vote on article VII, and the prosecution 
    should be required to abide by the judgment of the Senate rendered 
    upon such prior articles and the Senate ought not to countenance 
    the arrangement of pleading designed to procure a second vote and 
    the collection or accumulation of adverse votes, if any, upon such 
    matters.
        3. The presentation in article VII of more than one subject and 
    the charges arising out of a single subject is unjust and 
    prejudicial to respondent.
        4. In fairness and justice to respondent, the Court ought to 
    require separation and singleness of the subject matter of the 
    charges in separate and distinct articles, upon which a single and 
    final vote of the Senate upon each article and charge can be had.
                                                 Frank P. Walsh,
                                                Carl T. Hoffman,
                                        Of Counsel for Respondent.

    Presiding Officer Nathan L. Bachman, of Tennessee, overruled that 
part of the motion to strike relating to Articles I and II, finding 
that those articles presented distinct and different bases for 
impeachment. This ruling was sustained. With respect to the application 
of the motion to Article VII, the Presiding Officer submitted the 
question of duplication to the Court of Impeachment for a decision. The 
motion to strike Article VII was overruled on a voice 
vote.(14)
---------------------------------------------------------------------------
14. For a summary of the arguments by counsel on the motions, and 
        citations thereto, see Sec. 18.12, infra.
---------------------------------------------------------------------------

Sec. 3.5 During the Ritter impeachment trial in the Sen

[[Page 1978]]

    ate, the President pro tempore overruled a point of order against a 
    vote of conviction on the seventh article, where the point of order 
    was based on an accumulation or combination of facts and 
    circumstances.

    On Apr. 17, 1936, President pro tempore Key Pittman, of Nevada, 
stated that the Senate had by a two-thirds vote adjudged the respondent 
Judge Halsted L. Ritter guilty as charged in Article VII of the 
articles of impeachment. He over-ruled a point of order against the 
vote, as follows:

        Mr. [Warren R.] Austin [of Vermont]: The first reason for the 
    point of order is that here is a combination of facts in the 
    indictment, the ingredients of which are the several articles which 
    precede article VII, as seen by paragraph marked 4 on page 36. The 
    second reason is contained in the Constitution of the United 
    States, which provides that no person shall be convicted without 
    the concurrence of two-thirds of the members present. The third 
    reason is that this matter has been passed upon judicially, and it 
    has been held that an attempt to convict upon a combination of 
    circumstances----
        Mr. [George] McGill, [of Kansas]: Mr. President, a 
    parliamentary inquiry.
        Mr. Austin: Of which the respondent has been found innocent 
    would be monstrous. I refer to the case of Andrews v. King (77 
    Maine, 235). . . .
        The President Pro Tempore: A point of order is made as to 
    article VII, in which the respondent is charged with general 
    misbehavior. It is a separate charge from any other charge, and the 
    point of order is overruled.(15)
---------------------------------------------------------------------------
15. 80 Cong. Rec. 5606, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

Use of Historical Precedents

Sec. 3.6 With respect to the conduct of President Richard Nixon, the 
    impeachment inquiry staff of the Committee on the Judiciary 
    reported to the committee on ``Constitutional Grounds for 
    Presidential Impeachment,'' which included references to the value 
    of historical precedents.

    During an inquiry into impeachable offenses against President Nixon 
in the 93d Congress by the Committee on the Judiciary, the committee's 
impeachment inquiry staff reported to the committee on grounds for 
impeachment of the President. The report discussed in detail the 
historical bases and origins, in both English parliamentary practice 
and in the practice of the U.S. Congress, of the impeachment power, and 
drew conclusions as to the grounds for impeachment of the President and 
of other federal civil officers from the history of impeachment 
proceedings

[[Page 1979]]

and from the history of the U.S. Constitution.(1~6)
---------------------------------------------------------------------------
16. The report is printed in full in the appendix to this chapter, 
        infra. The staff report was printed as a committee print, and 
        the House authorized on June 6, 1974, the printing of 3,000 
        additional copies thereof. H. Res. 935, 93d Cong. 2d Sess.
---------------------------------------------------------------------------

Grounds for Presidential Impeachment

Sec. 3.7 The Committee on the Judiciary concluded, in recommending 
    articles impeaching President Richard Nixon to the House, that the 
    President could be impeached not only for violations of federal 
    criminal statutes, but also for (1) serious abuse of the powers of 
    his office, and (2) refusal to comply with proper subpoenas of the 
    committee for evidence relevant to its impeachment inquiry.

    In its final report to the House pursuant to its impeachment 
inquiry into the conduct of President Nixon in the 93d Congress, the 
Committee on the Judiciary set forth the following conclusions 
(footnotes omitted) on the three articles of impeachment adopted by the 
committee and included in its report:(17)
---------------------------------------------------------------------------
17. H. Rept. No. 93-1305, at pp. 133 et seq., Committee on the 
        Judiciary. See the articles and conclusions printed in the 
        Record in full at 120 Cong. Rec. 29219-79, 93d Cong. 2d Sess., 
        Aug. 20, 1974.
---------------------------------------------------------------------------

                                [Article I]

                                   conclusion

        After the Committee on the Judiciary had debated whether or not 
    it should recommend Article I to the House of Representatives, 27 
    of the 38 Members of the Committee found that the evidence before 
    it could only lead to one conclusion; that Richard M. Nixon, using 
    the powers of his high office, engaged, personally and through his 
    subordinates and agents, in a course of conduct or plan designed to 
    delay, impede, and obstruct the investigation of the unlawful 
    entry, on June 17, 1972, into the headquarters of the Democratic 
    National Committee; to cover up, conceal and protect those 
    responsible; and to conceal the existence and scope of other 
    unlawful covert activities.

        This finding is the only one that can explain the President's 
    involvement in a pattern of undisputed acts that occurred after the 
    break-in and that cannot otherwise be rationally explained. . . .
        President Nixon's course of conduct following the Watergate 
    break-in, as described in Article I, caused action not only by his 
    subordinates but by the agencies of the United States, including 
    the Department of Justice, the FBI, and the CIA. It required 
    perjury, destruction of evidence, obstruction of justice, all 
    crimes. But, most important, it required deliberate, contrived, and 
    continuing deception of the American people.

[[Page 1980]]

        President Nixon's actions resulted in manifest injury to the 
    confidence of the nation and great prejudice to the cause of law 
    and justice, and was subversive of constitutional government. His 
    actions were contrary to his trust as President and unmindful of 
    the solemn duties of his high office. It was this serious violation 
    of Richard M. Nixon's constitutional obligations as President, and 
    not the fact that violations of Federal criminal statutes occurred, 
    that lies at the heart of Article I.
        The Committee finds, based upon clear and convincing evidence, 
    that this conduct, detailed in the foregoing pages of this report, 
    constitutes ``high crimes and misdemeanors'' as that term is used 
    in Article II, Section 4 of the Constitution. Therefore, the 
    Committee recommends that the House of Representatives exercise its 
    constitutional power to impeach Richard M. Nixon.
        On August 5, 1974, nine days after the Committee had voted on 
    Article I, President Nixon released to the public and submitted to 
    the Committee on the Judiciary three additional edited White House 
    transcripts of Presidential conversations that took place on June 
    23, 1972, six days following the DNC break-in. Judge Sirica had 
    that day released to the Special Prosecutor transcripts of those 
    conversations pursuant to the mandate of the United States Supreme 
    Court. The Committee had subpoenaed the tape recordings of those 
    conversations, but the President had refused to honor the subpoena.
        These transcripts conclusively confirm the finding that the 
    Committee had already made, on the basis of clear and convincing 
    evidence, that from shortly after the break-in on June 17, 1972, 
    Richard M. Nixon, acting personally and through his subordinates 
    and agents, made it his plan to and did direct his subordinates to 
    engage in a course of conduct designed to delay, impede and 
    obstruct investigation of the unlawful entry of the headquarters of 
    the Democratic National Committee; to cover up, conceal and protect 
    those responsible; and to conceal the existence and scope of other 
    unlawful covert activities. . . .

                                [Article II]

                                   conclusion

        In recommending Article II to the House, the Committee finds 
    clear and convincing evidence that Richard M. Nixon, contrary to 
    his trust as President and unmindful of the solemn duties of his 
    high office, has repeatedly used his power as President to violate 
    the Constitution and the law of the land.
        In so doing, he has failed in the obligation that every citizen 
    has to live under the law. But he has done more, for it is the duty 
    of the President not merely to live by that law but to see that law 
    faithfully applied. Richard M. Nixon has repeatedly and willfully 
    failed to perform that duty. He has failed to perform it by 
    authorizing and directing actions that violated or disregarded the 
    rights of citizens and that corrupted and attempted to corrupt the 
    lawful functioning of executive agencies. He has failed to perform 
    it by condoning and ratifying, rather than acting to stop, actions 
    by his subordinates that interfered with lawful investigations and 
    impeded the enforcement of the laws.
        Article II, section 3 of the Constitution requires that the 
    President ``shall

[[Page 1981]]

    take Care that the Laws be faithfully executed.'' Justice Felix 
    Frankfurter described this provision as ``the embracing function of 
    the President''; President Benjamin Harrison called it ``the 
    central idea of the office.'' ``[I]n a republic,'' Harrison wrote, 
    ``the thing to be executed is the law, not the will of the ruler as 
    in despotic governments. The President cannot go beyond the law, 
    and he cannot stop short of it.''
        The conduct of Richard M. Nixon has constituted a repeated and 
    continuing abuse of the powers of the Presidency in disregard of 
    the fundamental principle of the rule of law in our system of 
    government. This abuse of the powers of the President was carried 
    out by Richard M. Nixon, acting personally and through his 
    subordinates, for his own political advantage, not for any 
    legitimate governmental purpose and without due consideration for 
    the national good.
        The rule of law needs no defense by the Committee. Reverence 
    for the laws, said Abraham Lincoln, should ``become the political 
    religion of the nation.'' Said Theodore Roosevelt, ``No man is 
    above the law and no man is below it; nor do we ask any man's 
    permission when we require him to obey it.''
        It is a basic principle of our government that ``we submit 
    ourselves to rulers only if [they are] under rules.'' ``Decency, 
    security, and liberty alike demand that government officials shall 
    be subjected to the same rules of conduct that are commands to the 
    citizen,'' wrote Justice Louis Brandeis. The Supreme Court has 
    said:

            No man in this country is so high that he is above the law. 
        No officer of the law may set that law at defiance with 
        impunity. All the officers of the government, from the highest 
        to the lowest, are creatures of the law, and are bound to obey 
        it.
            It is the only supreme power in our system of government, 
        and every man who by accepting office participates in its 
        functions is only the more strongly bound to submit to that 
        supremacy, and to observe the limitations upon the exercise of 
        the authority which it gives.
    Our nation owes its strength, its stability, and its endurance to 
    this principle.

        In asserting the supremacy of the rule of law among the 
    principles of our government, the Committee is enunciating no new 
    standard of Presidential conduct. The possibility that Presidents 
    have violated this standard in the past does not diminish its 
    current--and future--applicability. Repeated abuse of power by one 
    who holds the highest public office requires prompt and decisive 
    remedial action, for it is in the nature of abuses of power that if 
    they go unchecked they will become overbearing, depriving the 
    people and their representatives of the strength of will or the 
    wherewithal to resist.
        Our Constitution provides for a responsible Chief Executive, 
    accountable for his acts. The framers hoped, in the words of 
    Elbridge Gerry, that ``the maxim would never be adopted here that 
    the chief Magistrate could do no wrong.'' They provided for a 
    single executive because, as Alexander Hamilton wrote, ``the 
    executive power is more easily confined when it is one'' and 
    ``there should be a single object for the . . . watchfulness of the 
    people.''
        The President, said James Wilson, one of the principal authors 
    of the Con

[[Page 1982]]

    stitution, ``is the dignified, but accountable magistrate of a free 
    and great people.'' Wilson said, ``The executive power is better to 
    be trusted when it has no screen. . . . [W]e have a responsibility 
    in the person of our President . . . he cannot roll upon any other 
    person the weight of his criminality. . . .'' As both Wilson and 
    Hamilton pointed out, the President should not be able to hide 
    behind his counsellors; he must ultimately be accountable for their 
    acts on his behalf. James Iredell of North Carolina, a leading 
    proponent of the proposed Constitution and later a Supreme Court 
    Justice, said that the President ``is of a very different nature 
    from a monarch. He is to be . . . personally responsible for any 
    abuse of the great trust reposed in him.''
        In considering this Article the Committee has relied on 
    evidence of acts directly attributable to Richard M. Nixon himself. 
    He has repeatedly attempted to conceal his accountability for these 
    acts and attempted to deceive and mislead the American people about 
    his own responsibility. He governed behind closed doors, directing 
    the operation of the executive branch through close subordinates, 
    and sought to conceal his knowledge of what they did illegally on 
    his behalf. Although the Committee finds it unnecessary in this 
    case to take any position on whether the President should be held 
    accountable, through exercise of the power of impeachment, for the 
    actions of his immediate subordinates, undertaken on his behalf, 
    when his personal authorization and knowledge of them cannot be 
    proved, it is appropriate to call attention to the dangers inherent 
    in the performance of the highest public office in the land in air 
    of secrecy and concealment.
        The abuse of a President's powers poses a serious threat to the 
    lawful and proper functioning of the government and the people's 
    confidence in it. For just such Presidential misconduct the 
    impeachment power was included in the Constitution. The impeachment 
    provision, wrote Justice Joseph Story in 1833, ``holds out a deep 
    and immediate responsibility, as a check upon arbitrary power; and 
    compels the chief magistrate, as well as the humblest citizen, to 
    bend to the majesty of the law.'' And Chancellor James Kent wrote 
    in 1826:

            If . . . neither the sense of duty, the force of public 
        opinion, nor the transitory nature of the seat, are sufficient 
        to secure a faithful exercise of the executive trust, but the 
        President will use the authority of his station to violate the 
        Constitution or law of the land, the House of Representatives 
        can arrest him in his career, by resorting to the power of 
        impeachment.

        The Committee has concluded that, to perform its constitutional 
    duty, it must approve this Article of Impeachment and recommend it 
    to the House. If we had been unwilling to carry out the principle 
    that all those who govern, including ourselves, are accountable to 
    the law and the Constitution, we would have failed in our 
    responsibility as representatives of the people, elected under the 
    Constitution. If we had not been prepared to apply the principle of 
    Presidential accountability embodied in the impeachment clause of 
    the Constitution, but had instead condoned the conduct of Richard 
    M. Nixon, then another President, perhaps with a different 
    political philos

[[Page 1983]]

    ophy, might have used this illegitimate power for further 
    encroachments on the rights of citizens and further usurpations of 
    the power of other branches of our government. By adopting this 
    Article, the Committee seeks to prevent the recurrence of any such 
    abuse of Presidential power.
        In recommending Article II to the House, the Committee finds 
    clear and convincing evidence that Richard M. Nixon has not 
    faithfully executed the executive trust, but has repeatedly used 
    his authority as President to violate the Constitution and the law 
    of the land. In so doing, he violated the obligation that every 
    citizen has to live under the law. But he did more, for it is the 
    duty of the President not merely to live by the law but to see that 
    law faithfully applied. Richard M. Nixon repeatedly and willfully 
    failed to perform that duty. He failed to perform it by authorizing 
    and directing actions that violated the rights of citizens and that 
    interfered with the functioning of executive agencies. And he 
    failed to perform it by condoning and ratifying, rather than acting 
    to stop, actions by his subordinates interfering with the 
    enforcement of the laws.
        The Committee finds that, in the performance of his duties as 
    President, Richard M. Nixon on many occasions has acted to the 
    detriment of justice, right, and the public good, in violation of 
    his constitutional duty to see to the faithful execution of the 
    laws. This conduct has demonstrated a contempt for the rule of law; 
    it has posed a threat to our democratic republic. The Committee 
    finds that this conduct constitutes ``high crimes and 
    misdemeanors'' within the meaning of the Constitution, that it 
    warrants his impeachment by the House, and that it requires that he 
    be put to trial in the Senate. . . .

                               [Article III]

                                   conclusion

        The undisputed facts, historic precedent, and applicable legal 
    principles support the Committee's recommendation of Article III. 
    There can be no question that in refusing to comply with limited, 
    narrowly drawn subpoenas--issued only after the Committee was 
    satisfied that there was other evidence pointing to the existence 
    of impeachable offenses--the President interfered with the exercise 
    of the House's function as the ``Grand Inquest of the Nation.'' 
    Unless the defiance of the Committee's subpoenas under these 
    circumstances is considered grounds for impeachment, it is 
    difficult to conceive of any President acknowledging that he is 
    obligated to supply the relevant evidence necessary for Congress to 
    exercise its constitutional responsibility in an impeachment 
    proceeding. If this were to occur, the impeachment power would be 
    drained of its vitality. Article III, therefore, seeks to preserve 
    the integrity of the impeachment process itself and the ability of 
    Congress to act as the ultimate safeguard against improper 
    presidential conduct.(18)
---------------------------------------------------------------------------
18. H. Rept. No. 93-1305, at p. 213, Committee on the Judiciary. See 
        120 Cong. Rec. 29279, 93d Cong. 2d Sess., Aug. 20, 1974.
            See also, for the subpena power of a committee conducting 
        an impeachment investigation, Sec. 6, infra. The House has 
        declined to prosecute for contempt of Congress officers charged 
        with impeachable offenses and refusing to comply with subpenas 
        (see Sec. 6.12, infra).

---------------------------------------------------------------------------

[[Page 1984]]

Sec. 3.8 In the report of the Committee on the Judiciary recommending 
    the impeachment of President Richard Nixon, the minority took the 
    view that grounds for Presidential impeachment must be criminal 
    conduct or acts with criminal intent.

    On Aug. 20, 1974, the Committee on the Judiciary submitted a report 
recommending the impeachment of President Nixon. In the minority views 
set out below (footnotes omitted), Messrs. Hutchinson, Smith, Sandman, 
Wiggins, Dennis, Mayne, Lott, Moorhead, Maraziti, and Latta discussed 
the grounds for presidential impeachment: (19)
---------------------------------------------------------------------------
19. H. Rept. No. 93-1305, at pp. 362372, Committee on the Judiciary, 
        printed at 120 Cong. Rec. 29312-15, 93d Cong. 2d Sess., Aug. 
        20, 1974.
---------------------------------------------------------------------------

         B. Meaning of ``Treason, Bribery or other high Crimes and 
                               Misdemeanors''

        The Constitution of the United States provides that the 
    President ``shall be removed from Office on Impeachment for, and 
    Conviction of, Treason, Bribery, or other high Crimes and 
    Misdemeanors.'' Upon impeachment and conviction, removal of the 
    President from office is mandatory. The offenses for which a 
    President may be impeached are limited to those enumerated in the 
    Constitution, namely ``Treason, Bribery, or other high Crimes and 
    Misdemeanors.'' We do not believe that a President or any other 
    civil officer of the United States government may constitutionally 
    be impeached and convicted for errors in the administration of his 
    office.

        1. adoption of ``treason, bribery, or other high crimes and 
                misdemeanors'' at constitutional convention

        The original version of the impeachment clause at the 
    Constitutional Convention of 1787 had made ``malpractice or neglect 
    of duty'' the grounds for impeachment. On July 20, 1787, the 
    Framers debated whether to retain this clause, and decided to do 
    so.
        Gouverneur Morris, who had moved to strike the impeachment 
    clause altogether, began by arguing that it was unnecessary because 
    the executive ``can do no criminal act without Coadjutors who may 
    be punished.'' George Mason disagreed, arguing that ``When great 
    crimes were committed he [favored] punishing the principal as well 
    as the Coadjutors.'' Fearing recourse to assassinations, Benjamin 
    Franklin favored impeachment ``to provide in the Constitution for 
    the regular punishment of the executive when his misconduct should 
    deserve it, and for his honorable acquittal when he should be 
    unjustly accused.'' Gouverneur Morris then admitted that 
    ``corruption & some few other offenses'' should be impeachable, but 
    thought ``the case ought to be enumerated & defined.''
        Rufus King, a co-sponsor of the motion to strike the 
    impeachment clause,

[[Page 1985]]

    pointed out that the executive, unlike the judiciary, did not hold 
    his office during good behavior, but during a fixed, elective term; 
    and accordingly ought not to be impeachable, like the judiciary, 
    for ``misbehaviour:'' this would be ``destructive of his 
    independence and of the principles of the Constitution.'' Edmund 
    Randolph, however, made a strong statement in favor of retaining 
    the impeachment clause:
        Guilt wherever found ought to be punished. The Executive will 
    have great opportunitys of abusing his power, particularly in time 
    of war when the military force, and in some respects the public 
    money will be in his hands.

            . . . He is aware of the necessity of proceeding with a 
        cautious hand, and of excluding as much as possible the 
        influence of the Legislature from the business. He suggested 
        for consideration . . . requiring some preliminary inquest of 
        whether just grounds for impeachment existed.

        Benjamin Franklin again suggested the role of impeachments in 
    releasing tensions, using an example from international affairs 
    involving a secret plot to cause the failure of a rendezvous 
    between the French and Dutch fleets--an example suggestive of 
    treason. Gouverneur Morris, his opinion now changed by the 
    discussion, closed the debate on a note echoing the position of 
    Randolph:

            Our Executive . . . may be bribed by a greater interest to 
        betray his trust; and no one would say that we ought to expose 
        ourselves to the danger of seeing the first Magistrate in 
        foreign pay without being able to guard agst. it by displacing 
        him. . . . The Executive ought therefore to be impeachable for 
        treachery; Corrupting his electors, and incapacity were other 
        causes of impeachment. For the latter he should be punished not 
        as a man, but as an officer, and punished only by degradation 
        from his office. . . . When we make him amenable to Justice 
        however we should take care to provide some mode that will not 
        make him dependent on the Legislature.

        On the question, ``Shall the Executive be removable on 
    impeachments,'' the proposition then carried by a vote of eight 
    states to two.
        A review of this debate hardly leaves the impression that the 
    Framers intended the grounds for impeachment to be left to the 
    discretion, even the ``sound'' discretion, of the legislature. On a 
    fair reading, Madison's notes reveal the Framers' fear that the 
    impeachment power would render the executive dependent on the 
    legislature. The concrete examples used in the debate all refer not 
    only to crimes, but to extremely grave crimes. George Mason 
    mentioned the possibility that the President would corrupt his own 
    electors and then ``repeat his guilt,'' and described grounds for 
    impeachment as ``the most extensive injustice.'' Franklin alluded 
    to the beheading of Charles I, the possibility of assassination, 
    and the example of the French and Dutch fleets, which connoted 
    betrayal of a national interest. Madison mentioned the 
    ``perversion'' of an ``administration into a scheme of peculation 
    or oppression,'' or the ``betrayal'' of the executive's ``trust to 
    foreign powers.'' Edmund Randolph mentioned the great opportunities 
    for abuse of the executive power, ``particularly in time of war 
    when the military force, and in some respects the public money will 
    be in his hands.'' He cautioned against ``tu

[[Page 1986]]

    mults & insurrections.'' Gouveneur Morris similarly contemplated 
    that the executive might corrupt his own electors, or ``be bribed 
    by a greater interest to betray his trust''--just as the King of 
    England had been bribed by Louis XIV--and felt he should therefore 
    be impeachable for ``treachery.''
        After the July 20 vote to retain the impeachment clause, the 
    resolution containing it was referred to the Committee on Detail, 
    which substituted ``treason, bribery or corruption'' for 
    ``malpractice or neglect of duty.'' No surviving records explain 
    the reasons for the change, but they are not difficult to 
    understand, in light of the floor discussion just summarized. The 
    change fairly captured the sense of the July 20 debate, in which 
    the grounds for impeachment seem to have been such acts as would 
    either cause danger to the very existence of the United States, or 
    involve the purchase and sale of the ``Chief of Magistracy,'' which 
    would tend to the same result. It is not a fair summary of this 
    debate--which is the only surviving discussion of any length by the 
    Framers as to the grounds for impeachment--to say that the Framers 
    were principally concerned with reaching a course of conduct 
    whether or not criminal, generally inconsistent with the proper and 
    effective exercise of the office of the presidency. They were 
    concerned with preserving the government from being overthrown by 
    the treachery or corruption of one man. Even in the context of that 
    purpose, they steadfastly reiterated the importance of putting a 
    check on the legislature's use of power and refused to expand the 
    narrow definition they had given to treason in the Constitution. 
    They saw punishment as a significant purpose of impeachment. The 
    changes in language made by the Committee on Detail can be taken to 
    reflect a consensus of the debate that (1) impeachment would be the 
    proper remedy where grave crimes had been committed, and (2) 
    adherence to this standard would satisfy the widely recognized need 
    for a check on potential excesses of the impeachment power itself.
        The impeachment clause, as amended by the Committee on Detail 
    to refer to ``treason, bribery or corruption,'' was reported to the 
    full Convention on August 6, 1787, as part of the draft 
    constitution. Together with other sections, it was referred to the 
    Committee of Eleven on August 31. This Committee further narrowed 
    the grounds to ``treason or bribery,'' while at the same time 
    substituting trial by the Senate for trial by the Supreme Court, 
    and requiring a two-thirds vote to convict. No surviving records 
    explain the purpose of this change. The mention of ``corruption'' 
    may have been thought redundant, in view of the provision for 
    bribery. Or, corruption might have been regarded by the Committee 
    as too broad, because not a well-defined crime. In any case, the 
    change limited the grounds for impeachment to two clearly 
    understood and enumerated crimes.
        The revised clause, containing the grounds ``treason and 
    bribery,'' came before the full body again on September 8, late in 
    the Convention. George Mason moved to add to the enumerated grounds 
    for impeachment. Madison's Journal reflects the following exchange:

            Col. Mason. Why is the provision restrained to Treason & 
        bribery

[[Page 1987]]

        only? Treason as defined in the Constitution will not reach 
        many great and dangerous offenses. Hastings is not guilty of 
        Treason. Attempts to subvert the Constitution may not be 
        Treason as above defined--as bills of attainder which have 
        saved the British Constitution are forbidden, it is the more 
        necessary to extend: the power of impeachments. He movd. to add 
        after ``bribery'' ``or maladministration.'' Mr. Gerry seconded 
        him--
            Mr. Madison. So vague a term will be equivalent to a tenure 
        during pleasure of the Senate.

            Mr. Govr. Morris., it will not be put in force & can do no 
        harm--An election of every four years will prevent 
        maladministration.
            Col. Mason withdrew ``maladministration'' & substitutes 
        ``other high crimes and misdemeanors'' agst. the State.

        On the question thus altered, the motion of Colonel Mason 
    passed by a vote of eight states to three.
        Madison's notes reveal no debate as to the meaning of the 
    phrase ``other high Crimes and Misdemeanors.'' All that appears is 
    that Mason was concerned with the narrowness of the definition of 
    treason; that his purpose in proposing ``maladministration'' was to 
    reach great and dangerous offenses; and that Madison felt that 
    ``maladministration,'' which was included as a ground for 
    impeachment of public officials in the constitutions of six states, 
    including his own, would be too ``vague'' and would imperil the 
    independence of the President.
        It is our judgment, based upon this constitutional history, 
    that the Framers of the United States Constitution intended that 
    the President should be removable by the legislative branch only 
    for serious misconduct dangerous to the system of government 
    established by the Constitution. Absent the element of danger to 
    the State, we believe the Delegates to the Federal Convention of 
    1787, in providing that the President should serve for a fixed 
    elective term rather than during good behavior or popularity, 
    struck the balance in favor of stability in the executive branch. 
    We have never had a British parliamentary system in this country, 
    and we have never adopted the device of a parliamentary vote of no-
    confidence in the chief executive. If it is thought desirable to 
    adopt such a system of government, the proper way to do so is by 
    amending our written Constitution--not by removing the President.

           2. are ``high crimes and misdemeanors'' non-criminal?
    a. Language of the Constitution

        The language of the Constitution indicates that impeachment can 
    lie only for serious criminal offenses.
        First, of course, treason and bribery were indictable offenses 
    in 1787, as they are now. The words ``crime'' and ``misdemeanor'', 
    as well, both had an accepted meaning in the English law of the 
    day, and referred to criminal acts. Sir William Blackstone's 
    Commentaries on the Laws of England, (1771), which enjoyed a wide 
    circulation in the American colonies, defined the terms as follows:

            I. A crime, or misdemeanor is an act committed, or omitted, 
        in violation of a public law, either forbidding or commanding 
        it. This general definition comprehends both crimes and 
        misdemeanors; which, properly speaking, are mere synonymous 
        terms: though, in common usage, the word ``crimes'' is made to 
        denote

[[Page 1988]]

        such offenses as are of a deeper and more atrocious dye; while 
        smaller faults, and omissions of less consequence, are 
        comprised under the gentler name of ``misdemeanors'' only.
    Thus, it appears that the word ``misdemeanor'' was used at the time 
    Blackstone wrote, as it is today, to refer to less serious crimes.

        Second, the use of the word ``other'' in the phrase ``Treason, 
    Bribery or other high Crimes and Misdemeanors'' seems to indicate 
    that high Crimes and Misdemeanors had something in common with 
    Treason and Bribery--both of which are, of course, serious criminal 
    offenses threatening the integrity of government.
        Third, the extradition clause of the Articles of Confederation 
    (1781), the governing instrument of the United States prior to the 
    adoption of the Constitution, had provided for extradition from one 
    state to another of any person charged with ``treason, felony or 
    other high misdemeanor.'' If ``high misdemeanor'' had something in 
    common with treason and felony in this clause, so as to warrant the 
    use of the word ``other,'' it is hard to see what it could have 
    been except that all were regarded as serious crimes. Certainly it 
    would not have been contemplated that a person could be extradited 
    for an offense which was non-criminal.
        Finally, the references to impeachment in the Constitution use 
    the language of the criminal law. Removal from office follows 
    ``conviction,'' when the Senate has ``tried'' the impeachment. The 
    party convicted is ``nevertheless . . . liable and subject to 
    Indictment, Trial, Judgment and Punishment, according to Law.'' The 
    trial of all Crimes is by Jury, ``except in cases of Impeachment.'' 
    The President is given power to grant ``Pardons for Offenses 
    against the United States, except in Cases of Impeachment.''
        This constitutional usage, in its totality, strengthens the 
    notion that the words ``Crime'' and ``Misdemeanor'' in the 
    impeachment clause are to be understood in their ordinary sense, 
    i.e., as importing criminality. At the very least, this terminology 
    strongly suggests the criminal or quasi-criminal nature of the 
    impeachment process.
    b. English impeachment practice

        It is sometimes argued that officers may be impeached for non-
    criminal conduct, because the origins of impeachment in England in 
    the fourteenth and seventeenth centuries show that the procedure 
    was not limited to criminal conduct in that country.
        Early English impeachment practice, however, often involved a 
    straight power struggle between the Parliament and the King. After 
    parliamentary supremacy had been established, the practice was not 
    so open-ended as it had been previously. Blackstone wrote (between 
    1765 and 1769) that

            [A]n impeachment before the Lords by the commons of Great 
        Britain, in parliament, is a prosecution of the already known 
        and established law. . . .

        The development of English impeachment practice in the 
    eighteenth century is illustrated by the result of the first major 
    nineteenth century impeachment in that country--that of Lord 
    Melville, Treasurer of the Navy, in 1805-1806. Melville was charged 
    with wrongful use of public moneys. Before passing judgment, the 
    House of

[[Page 1989]]

    Lords requested the formal opinion of the judges upon the following 
    question:

            Whether it was lawful for the Treasurer of the Navy, before 
        the passing of the Act 25 Geo. 3rd, c. 31, to apply any sum of 
        money [imprested] to him for navy [sumpsimus] services to any 
        other use whatsoever, public or private, without express 
        authority for so doing; and whether such application by such 
        treasurer would have been a misdemeanor, or punishable by 
        information or indictment?

        The judges replied:

            It was not unlawful for the Treasurer of the Navy before 
        the Act 25 Geo. 3rd, c. 31 . . . to apply any sum of money 
        impressed to him for navy services, to other uses . . . without 
        express authority for so doing, so as to constitute a 
        misdemeanor punishable by information or indictment.
    Upon this ruling by the judges that Melville had committed no 
    crime, he was acquitted. The case thus strongly suggests that the 
    Lords in 1805 believed an impeachment conviction to require a 
    ``misdemeanor punishable by information or indictment.'' The case 
    may be taken to cast doubt on the vitality of precedents from an 
    earlier, more turbid political era and to point the way to the 
    Framers' conception of a valid exercise of the impeachment power in 
    the future. As a matter of policy, as well, it is an appropriate 
    precedent to follow in the latter twentieth century.

        The argument that the President should be impeachable for 
    general misbehavior, because some English impeachments do not 
    appear to have involved criminal charges, also takes too little 
    account of the historical fact that the Framers, mindful of the 
    turbulence of parliamentary uses of the impeachment power, cut back 
    on that power in several respects in adapting it to an American 
    context. Congressional bills of attainder and ex post facto laws, 
    which had supplemented the impeachment power in England, were 
    expressly forbidden. Treason was defined in the Constitution--and 
    defined narrowly--so that Congress acting alone could not change 
    the definition, as Parliament had been able to do. The consequences 
    of impeachment and conviction, which in England had frequently 
    meant death, were limited to removal from office and 
    disqualification to hold further federal office. Whereas a majority 
    vote of the Lords had sufficed for conviction, in America a two-
    thirds vote of the Senate would be required. Whereas Parliament had 
    had the power to impeach private citizens, the American procedure 
    could be directed only against civil officers of the national 
    government. The grounds for impeachment--unlike the grounds for 
    impeachment in England--were stated in the Constitution.
        In the light of these modifications, it is misreading history 
    to say that the Framers intended, by the mere approval of Mason's 
    substitute amendment, to adopt in toto the British grounds for 
    impeachment. Having carefully narrowed the definition of treason, 
    for example, they could scarcely have intended that British treason 
    precedents would guide ours.

    c. American impeachment practice

        The impeachment of President Andrew Johnson is the most 
    important precedent for a consideration of what constitutes grounds 
    for impeachment of a President, even if it has been his

[[Page 1990]]

    torically regarded (and probably fairly so) as an excessively 
    partisan exercise of the impeachment power.
        The Johnson impeachment was the product of a fundamental and 
    bitter split between the President and the Congress as to 
    Reconstruction policy in the Southern states following the Civil 
    War. Johnson's vetoes of legislation, his use of pardons, and his 
    choice of appointees in the South all made it impossible for the 
    Reconstruction Acts to be enforced in the manner which Congress not 
    only desired, but thought urgently necessary.
        On March 7, 1867, the House referred to the Judiciary Committee 
    a resolution authorizing it
        to inquire into the official conduct of Andrew Johnson . . . 
        and to report to this House whether, in their opinion, the said 
        Andrew Johnson, while in said office, has been guilty of acts 
        which were designed or calculated to overthrow or corrupt the 
        government of the United States . . . and whether the said 
        Andrew Johnson has been guilty of any act, or has conspired 
        with others to do acts, which, in contemplation of the 
        Constitution, are high crimes and misdemeanors, requiring the 
        interposition of the constitutional powers of this House.

        On November 25, 1867, the Committee reported to the full House 
    a resolution recommending impeachment, by a vote of 5 to 4. A 
    minority of the Committee, led by Rep. James F. Wilson of Iowa, 
    took the position that there could be no impeachment because the 
    President had committed no crime:

            In approaching a conclusion, we do not fail to recognize 
        two standpoints from which this case can be viewed--the legal 
        and the political.
            . . . Judge him politically, we must condemn him. But the 
        day of political impeachments would be a sad one for this 
        country. Political unfitness and incapacity must be tried at 
        the ballot-box, not in the high court of impeachment. A 
        contrary rule might leave to Congress but little time for other 
        business than the trial of impeachments.
            . . . [C]rimes and misdemeanors are now demanding our 
        attention. Do these, within the meaning of the Constitution, 
        appear? Rest the case upon political offenses, and we are 
        prepared to pronounce against the President, for such offenses 
        are numerous and grave . . . [yet] we still affirm that the 
        conclusion at which we have arrived is correct.

        The resolution recommending impeachment was debated in the 
    House on December 5 and 6, 1867, Rep. George S. Boutwell of 
    Massachusetts speaking for the Committee majority in favor of 
    impeachment, and Rep. Wilson speaking in the negative. Aside from 
    characterization of undisputed facts discovered by the Committee, 
    the only point debated was whether the commission of a crime was an 
    essential element of impeachable conduct by the President. Rep. 
    Boutwell began by saying, ``If the theory of the law submitted by 
    the minority of the committee be in the judgment of this House a 
    true theory, then the majority have no case whatsoever.'' ``The 
    country was disappointed, no doubt, in the report of the 
    committee,'' he continued, ``and very likely this House 
    participated in the disappointment, that there was no specific, 
    heinous, novel offense charged upon and proved against the 
    President of the United States.'' And again, ``It may not be 
    possible, by specific charge, to arraign him for this great crime, 
    but is he therefore to escape?''

[[Page 1991]]

        The House of Representatives answered this question the next 
    day, when the majority resolution recommending, impeachment was 
    defeated by a vote of 57 to 108. The issue of impeachment was thus 
    laid to rest for the time being.

        Earlier in 1867, the Congress had passed the Tenure-of-Office 
    Act, which took away the President's authority to remove members of 
    his own Cabinet, and provided that violation of the Act should be 
    punishable by imprisonment of up to five years and a fine of up to 
    ten thousand dollars and ``shall be deemed a high misdemeanor''--
    fair notice that Congress would consider violation of the statute 
    an impeachable, as well as a criminal, offense. It was generally 
    known that Johnson's policy toward Reconstruction was not shared by 
    his Secretary of War, Edwin M. Stanton. Although Johnson believed 
    the Tenure-of-Office Act to be unconstitutional, he had not 
    infringed its provisions at the time the 1867 impeachment attempt 
    against him failed by such a decisive margin.
        Two and a half months later, however, Johnson removed Stanton 
    from office, in apparent disregard of the Tenure-of-Office Act. The 
    response of Congress was immediate: Johnson was impeached three 
    days later, on February 24, 1868, by a vote of 128 to 47--an even 
    greater margin than that by which the first impeachment vote had 
    failed.
        The reversal is a dramatic demonstration that the House of 
    Representatives believed it had to find the President guilty of a 
    crime before impeaching him. The nine articles of impeachment which 
    were adopted against Johnson, on March 2, 1868, all related to his 
    removal of Secretary Stanton, allegedly in deliberate violation of 
    the Tenure-of-Office Act, the Constitution, and certain other 
    related statutes. The vote had failed less than three months 
    before; and except for Stanton's removal and related matters, 
    nothing in the new Articles charged Johnson with any act committed 
    subsequent to the previous vote.
        The only other case of impeachment of an officer of the 
    executive branch is that of Secretary of War William W. Belknap in 
    1876. All five articles alleged that Belknap ``corruptly'' accepted 
    and received considerable sums of money in exchange for exercising 
    his authority to appoint a certain person as a military post 
    trader. The facts alleged would have sufficed to constitute the 
    crime of bribery. Belknap resigned before the adoption of the 
    Articles and was subsequently indicted for the conduct alleged.
        It may be acknowledged that in the impeachment of federal 
    judges, as opposed to executive officers, the actual commission of 
    a crime does not appear always to have been thought essential. 
    However, the debates in the House and opinions filed by Senators 
    have made it clear that in the impeachments of federal judges, 
    Congress has placed great reliance upon the ``good behavior'' 
    clause. The distinction between officers tenured during good 
    behavior and elected officers, for purposes of grounds for 
    impeachment, was stressed by Rufus King at the Constitutional 
    Convention of 1787. A judge's impeachment or conviction resting 
    upon ``general misbehavior,'' in whatever degree, cannot be an 
    appropriate guide for the impeachment or conviction of an elected 
    officer serving for a fixed term.

[[Page 1992]]

        The impeachments of federal judges are also different from the 
    case of a President for other reasons: (1) Some of the President's 
    duties e.g., as chief of a political party, are sufficiently 
    dissimilar to those of the judiciary that conduct perfectly 
    appropriate for him, such as making a partisan political speech, 
    would be grossly improper for a judge. An officer charged with the 
    continual adjudication of disputes labors under a more stringent 
    injunction against the appearance of partisanship than an officer 
    directly charged with the formulation and negotiation of public 
    policy in the political arena--a fact reflected in the adoption of 
    Canons of Judicial Ethics. (2) The phrase ``and all civil 
    Officers'' was not added until after the debates on the impeachment 
    clause had taken place. The words ``high crimes and misdemeanors'' 
    were added while the Framers were debating a clause concerned 
    exclusively with the impeachment of the President. There was no 
    discussion during the Convention as to what would constitute 
    impeachable conduct for judges. (3) Finally, the removal of a 
    President from office would obviously have a far greater impact 
    upon the equilibrium of our system of government than the removal 
    of a single federal judge.

    d. The need for a standard: criminal intent

        When the Framers included the power to impeach the President in 
    our Constitution, they desired to ``provide some mode that will not 
    make him dependent on the Legislature.'' To this end, they withheld 
    from the Congress many of the powers enjoyed by Parliament in 
    England; and they defined the grounds for impeachment in their 
    written Constitution. It is hardly conceivable that the Framers 
    wished the new Congress to adopt as a starting point the record of 
    all the excesses to which desperate struggles for power had driven 
    Parliament, or to use the impeachment power freely whenever 
    Congress might deem it desirable. The whole tenor of the Framers' 
    discussions, the whole purpose of their many careful departures 
    from English impeachment practice, was in the direction of limits 
    and of standards. An impeachment power exercised without extrinsic 
    and objective standards would be tantamount to the use of bills of 
    attainder and ex post facto laws, which are expressly forbidden by 
    the Constitution and are contrary to the American spirit of 
    justice.
        It is beyond argument that a violation of the President's oath 
    or a violation of his duty to take care that the laws be faithfully 
    executed, must be impeachable conduct or there would be no means of 
    enforcing the Constitution. However, this elementary proposition is 
    inadequate to define the impeachment power. It remains to determine 
    what kind of conduct constitutes a violation of the oath or the 
    duty. Furthermore, reliance on the summary phrase, ``violation of 
    the Constitution,'' would not always be appropriate as a standard, 
    because actions constituting an apparent violation of one provision 
    of the Constitution may be justified or even required by other 
    provisions of the Constitution.
        There are types of misconduct by public officials--for example, 
    ineptitude, or unintentional or ``technical'' violations of rules 
    or statutes, or ``maladministration''--which would not be criminal; 
    nor could they be made crimi

[[Page 1993]]

    nal, consonant with the Constitution, because the element of 
    criminal intent or mens rea would be lacking. Without a requirement 
    of criminal acts or at least criminal intent, Congress would be 
    free to impeach these officials. The loss of this freedom should 
    not be mourned; such a use of the impeachment power was never 
    intended by the Framers, is not supported by the language of our 
    Constitution, and, if history is to guide us, would be seriously 
    unwise as well.
        As Alexander Simpson stated in his Treatise on Federal 
    Impeachments (1916):

            The Senate must find an intent to do wrong. It is, of 
        course, admitted that a party will be presumed to intend the 
        natural and necessary results of his voluntary acts, but that 
        is a presumption only, and it is not always inferable from the 
        act done. So ancient is this principle, and so universal is its 
        application, that it has long since ripened into the maxim, 
        Actus non facit reun, [nisi] mens sit rea, and has come to be 
        regarded as one of the fundamental legal principles of our 
        system of jurisprudence. (p. 29).

    The point was thus stated by James Iredell in the North Carolina 
ratifying convention: ``I beg leave to observe that, when any man is 
impeached, it must be for an error of the heart, and not of the head. 
God forbid that a man, in any country in the world, should be liable to 
be punished for want of judgment. This is not the case here.
    The minority views did support a portion of Article I on the ground 
that criminal conduct was alleged therein and sustained by the 
evidence; but found no impeachable offenses constituted in Articles II 
and III:

        (1) With respect to proposed Article I, we believe that the 
    charges of conspiracy to obstruct justice, and obstruction of 
    justice, which are contained in the Article in essence, if not in 
    terms, may be taken as substantially confessed by Mr. Nixon on 
    August 5, 1974, and corroborated by ample other evidence in the 
    record. Prior to Mr. Nixon's revelation of the contents of three 
    conversations between him and his former Chief of Staff, H. R. 
    Haldeman, that took place on June 23, 1972, we did not, and still 
    do not, believe that the evidence of presidential involvement in 
    the Watergate cover-up conspiracy, as developed at that time, was 
    sufficient to warrant Members of the House, or dispassionate jurors 
    in the Senate, in finding Mr. Nixon guilty of an impeachable 
    offense beyond a reasonable doubt, which we believe to be the 
    appropriate standard.
        (2) With respect to proposed Article II, we find sufficient 
    evidence to warrant a belief that isolated instances of unlawful 
    conduct by presidential aides and subordinates did occur during the 
    five-and-one-half years of the Nixon Administration, with varying 
    degrees of direct personal knowledge or involvement of the 
    President in these respective illegal episodes. We roundly condemn 
    such abuses and unreservedly favor the invocation of existing legal 
    sanctions, or the creation of new ones, where needed, to deter such 
    reprehensible official conduct in the future, no

[[Page 1994]]

    matter in whose Administration, or by what brand or partisan, it 
    might be perpetrated.

        Nevertheless, we cannot join with those who claim to perceive 
    an invidious, pervasive ``pattern'' of illegality in the conduct of 
    official government business generally by President Nixon. In some 
    instances, as noted below, we disagree with the majority's 
    interpretation of the evidence regarding either the intrinsic 
    illegality of the conduct studied or the linkage of Mr. Nixon 
    personally to it. Moreover, even as to those acts which we would 
    concur in characterizing as abusive and which the President 
    appeared to direct or countenance, neither singly nor in the 
    aggregate do they impress us as being offenses for which Richard 
    Nixon, or any President, should be impeached or removed from 
    office, when considered, as they must be, on their own footing, 
    apart from the obstruction of justice charge under proposed Article 
    I which we believe to be sustained by the evidence.
        (3) Likewise, with respect to proposed Article III, we believe 
    that this charge, standing alone, affords insufficient grounds for 
    impeachment. Our concern here, as explicated in the discussion 
    below, is that the Congressional subpoena power itself not be too 
    easily abused as a means of achieving the impeachment and removal 
    of a President against whom no other substantive impeachable 
    offense has been proved by sufficient evidence derived from sources 
    other than the President himself. We believe it is particularly 
    important for the House to refrain from impeachment on the sole 
    basis of noncompliance with subpoenas where, as here, colorable 
    claims of privilege have been asserted in defense of non-production 
    of the subpoenaed materials, and the validity of those claims has 
    not been adjudicated in any established, lawful adversary 
    proceeding before the House is called upon to decide whether to 
    impeach a President on grounds of noncompliance with subpoenas 
    issued by a Committee inquiring into the existence of sufficient 
    grounds for impeachment.(20)
---------------------------------------------------------------------------
20. H. Rept. No. 93-1305, at pp. 360, 361, Committee on the Judiciary, 
        printed in the Record at 120 Cong. Rec. 29311, 93d Cong. 2d 
        Sess., Aug. 20, 1974.
---------------------------------------------------------------------------

Grounds for Impeachment of Federal Judges

Sec. 3.9 Following introduction and referral of impeachment resolutions 
    against a Supreme Court Justice in the 91st Congress, when grounds 
    for impeachment of federal judges were discussed at length in the 
    House, the view was taken that federal civil officers may be 
    impeached for less than indictable offenses; that an impeachable 
    offense is what a majority of the House considers it to be; and 
    that a higher standard of conduct is expected of federal judges 
    than of other federal civil officers.

    On Apr. 15, 1970, resolutions relating to the impeachment of

[[Page 1995]]

Associate Justice William O. Douglas of the Supreme Court were 
introduced and referred, following a special-order speech by the 
Minority Leader, Gerald R. Ford, of Michigan. Mr. Ford discussed the 
grounds for impeachment of a federal judge, saying in part: 
(1)
---------------------------------------------------------------------------
 1. 116 Cong. Rec. 11912-14, 91st Cong. 2d Sess. Charges against 
        Justice Douglas were investigated by a subcommittee of the 
        Committee on the Judiciary, which recommended against 
        impeachment (see Sec. Sec. 14.14, 14.15, infra).
---------------------------------------------------------------------------

        No, the Constitution does not guarantee a lifetime of power and 
    authority to any public official. The terms of Members of the House 
    are fixed at 2 years; of the President and Vice President at 4; of 
    U.S. Senators at 6. Members of the Federal judiciary hold their 
    offices only ``during good behaviour.''
        Let me read the first section of article III of the 
    Constitution in full:

            The judicial power of the United States shall be vested in 
        one supreme Court, and in such inferior Courts as the Congress 
        may from time to time ordain and establish. The Judges, both of 
        the supreme and inferior Courts, shall hold their Offices 
        during good Behaviour, and shall, at stated Times, receive for 
        their Services, a Compensation, which shall not be diminished 
        during their Continuance in Office. . . .

        . . . Thus, we come quickly to the central question: What 
    constitutes ``good behaviour'' or, conversely, ungood or 
    disqualifying behaviour?
        The words employed by the Framers of the Constitution were, as 
    the proceedings of the Convention detail, chosen with exceedingly 
    great care and precision. Note, for example, the word 
    ``behaviour.'' It relates to action, not merely to thoughts or 
    opinions; further, it refers not to a single act but to a pattern 
    or continuing sequence of action. We cannot and should not remove a 
    Federal judge for the legal views he holds--this would be as 
    contemptible as to exclude him from serving on the Supreme Court 
    for his ideology or past decisions. Nor should we remove him for a 
    minor or isolated mistake--this does not constitute behaviour in 
    the common meaning.
        What we should scrutinize in sitting Judges is their continuing 
    pattern of action, their behaviour. The Constitution does not 
    demand that it be ``exemplary'' or ``perfect.'' But it does have to 
    be ``good.''
        Naturally, there must be orderly procedure for determining 
    whether or not a Federal judge's behaviour is good. The courts, 
    arbiters in most such questions of judgment, cannot judge 
    themselves. So the Founding Fathers vested this ultimate power 
    where the ultimate sovereignty of our system is most directly 
    reflected--in the Congress, in the elected Representatives of the 
    people and of the States.
        In this seldom-used procedure, called impeachment, the 
    legislative branch exercises both executive and judicial functions. 
    The roles of the two bodies differ dramatically. The House serves 
    as prosecutor and grand jury; the Senate serves as judge and trial 
    jury.
        Article I of the Constitution has this to say about the 
    impeachment process:

            The House of Representatives--shall have the sole power of 
        Impeachment.

[[Page 1996]]

            The Senate shall have the sole Power to try all 
        Impeachments. When sitting for that Purpose, they shall be on 
        Oath or Affirmation. When the President of the United States is 
        tried, the Chief Justice shall preside: And no Person shall be 
        convicted without the Concurrence of two-thirds of the Members 
        present.

        Article II, dealing with the executive branch, states in 
    section 4:

            The President, Vice President, and all civil Officers of 
        the United States shall be removed from office on impeachment 
        for, and conviction of, Treason, Bribery or other high crimes 
        and misdemeanors.

        This has been the most controversial of the constitutional 
    references to the impeachment process. No consensus exists as to 
    whether, in the case of Federal judges, impeachment must depend 
    upon conviction of one of the two specified crimes of treason or 
    bribery or be within the nebulous category of ``other high crimes 
    and misdemeanors.'' There are pages upon pages of learned argument 
    whether the adjective ``high'' modifies ``misdemeanors'' as well as 
    ``crimes,'' and over what, indeed, constitutes a ``high 
    misdemeanor.''
        In my view, one of the specific or general offenses cited in 
    article II is required for removal of the indirectly elected 
    President and Vice President and all appointed civil officers of 
    the executive branch of the Federal Government, whatever their 
    terms of office. But in the case of members of the judicial branch, 
    Federal judges and Justices, I believe an additional and much 
    stricter requirement is imposed by article II, namely, ``good 
    behaviour.''
        Finally, and this is a most significant provision, article I of 
    the Constitution specifies:

            Judgment in Cases of Impeachment shall not extend further 
        than to removal from Office, and disqualification to hold and 
        enjoy any office of honor, Trust or Profit under the United 
        States: but the Party convicted shall nevertheless be liable 
        and subject to Indictment, Trial, Judgment and Punishment, 
        according to Law. . . .

        With this brief review of the law, of the constitutional 
    background for impeachment, I have endeavored to correct two common 
    misconceptions: first, that Federal judges are appointed for life 
    and, second, that they can be removed only by being convicted, with 
    all ordinary protections and presumptions of innocence to which an 
    accused is entitled, of violating the law.
        This is not the case. Federal judges can be and have been 
    impeached for improper personal habits such as chronic intoxication 
    on the bench, and one of the charges brought against President 
    Andrew Johnson was that he delivered ``intemperate, inflammatory, 
    and scandalous harangues.''
        I have studied the principal impeachment actions that have been 
    initiated over the years and frankly, there are too few cases to 
    make very good law. About the only thing the authorities can agree 
    upon in recent history, though it was hotly argued up to President 
    Johnson's impeachment and the trial of Judge Swayne, is that an 
    offense need not be indictable to be impeachable. In other words, 
    something less than a criminal act or criminal dereliction of duty 
    may nevertheless be sufficient grounds for impeachment and removal 
    from public office.
        What, then, is an impeachable offense?
        The only honest answer is that an impeachable offense is 
    whatever a ma

[[Page 1997]]

    jority of the House of Representatives considers to be at a given 
    moment in history; conviction results from whatever offense or 
    offenses two-thirds of the other body considers to be sufficiently 
    serious to require removal of the accused from office. Again, the 
    historical context and political climate are important; there are 
    few fixed principles among the handful of precedents.
        I think it is fair to come to one conclusion, however, from our 
    history of impeachments: a higher standard is expected of Federal 
    judges than of any other ``civil officers'' of the United States.
        The President and Vice President, and all persons holding 
    office at the pleasure of the President, can be thrown out of 
    office by the voters at least every 4 years. To remove them in 
    midterm--it has been tried only twice and never done--would indeed 
    require crimes of the magnitude of treason and bribery. Other 
    elective officials, such as Members of the Congress, are so 
    vulnerable to public displeasure that their removal by the 
    complicated impeachment route has not even been tried since 1798. 
    But nine Federal judges, including one Associate Justice of the 
    Supreme Court, have been impeached by this House and tried by the 
    Senate; four were acquitted; four convicted and removed from 
    office; and one resigned during trial and the impeachment was 
    dismissed.
        In the most recent impeachment trial conducted by the other 
    body, that of U.S. Judge Halsted L. Ritter of the southern district 
    of Florida who was removed in 1936, the point of judicial behavior 
    was paramount, since the criminal charges were admittedly thin. 
    This case was in the context of F.D.R.'s effort to pack the Supreme 
    Court with Justices more to his liking; Judge Ritter was a 
    transplanted conservative Colorado Republican appointed to the 
    Federal bench in solidly Democratic Florida by President Coolidge. 
    He was convicted by a coalition of liberal Republicans, New Deal 
    Democrats, and Farmer-Labor and Progressive Party Senators in what 
    might be called the northwestern strategy of that era. 
    Nevertheless, the arguments were persuasive:
        In a joint statement, Senators Borah, La Follette, Frazier, and 
    Shipstead said:

            We therefore did not, in passing upon the facts presented 
        to us in the matter of the impeachment proceedings against 
        Judge Halsted L. Ritter, seek to satisfy ourselves as to 
        whether technically a crime or crimes had been committed, or as 
        to whether the acts charged and proved disclosed criminal 
        intent or corrupt motive: we sought only to ascertain from 
        these facts whether his conduct had been such as to amount to 
        misbehavior, misconduct--as to whether he had conducted himself 
        in a way that was calculated to undermine public confidence in 
        the courts and to create a sense of scandal.
            There are a great many things which one must readily admit 
        would be wholly unbecoming, wholly intolerable, in the conduct 
        of a judge, and yet these things might not amount to a crime.

        Senator Elbert Thomas of Utah, citing the Jeffersonian and 
    colonial antecedents of the impeachment process, bluntly declared:

            Tenure during good behavior . . . is in no sense a guaranty 
        of a life job, and misbehavior in the ordinary,

[[Page 1998]]

        dictionary sense of the term will cause it to be cut short on 
        the vote, under special oath, of two-thirds of the Senate, if 
        charges are first brought by the House of Representatives. . . 
        . To assume that good behavior means anything but good behavior 
        would be to cast a reflection upon the ability of the fathers 
        to express themselves in understandable language.

        But the best summary, in my opinion, was that of Senator 
    William G. McAdoo of California, son-in-law of Woodrow Wilson and 
    his Secretary of the Treasury:

            I approach this subject from the standpoint of the general 
        conduct of this judge while on the bench, as portrayed by the 
        various counts in the impeachment and the evidence submitted in 
        the trial. The picture thus presented is, to my mind, that of a 
        man who is so lacking in any proper conception of professional 
        ethics and those high standards of judicial character and 
        conduct as to constitute misbehavior in its most serious 
        aspects, and to render him unfit to hold a judicial office . . 
        .
            Good behavior, as it is used in the Constitution, exacts of 
        a judge the highest standards of public and private rectitude. 
        No judge can besmirch the robes he wears by relaxing these 
        standards, by compromising them through conduct which brings 
        reproach upon himself personally, or upon the great office he 
        holds. No more sacred trust is committed to the bench of the 
        United States than to keep shining with undimmed effulgence the 
        brightest jewel in the crown of democracy--justice.
            However disagreeable the duty may be to those of us who 
        constitute this great body in determining the guilt of those 
        who are entrusted under the Constitution with the high 
        responsibilities of judicial office, we must be as exacting in 
        our conception of the obligations of a judicial officer as Mr. 
        Justice Cardozo defined them when he said, in connection with 
        fiduciaries, that they should be held ``to something stricter 
        than the morals of the market-place. Not honesty alone, but the 
        punctilio of an honor the most sensitive, is then the standard 
        of behavior.'' (Meinhard v. Solmon, 249 N.Y. 458.)

Sec. 3.10 The view has been taken that the term ``good behavior,'' as a 
    requirement for federal judges remaining in office, must be read in 
    conjunction with the standard of ``high crimes and misdemeanors,'' 
    and that the conduct of federal judges to constitute an impeachable 
    offense must be either criminal conduct or serious judicial 
    misconduct.

    On Apr. 21, 1970, Mr. Paul N. McCloskey, Jr., of California, took 
the floor for a special-order speech in which he challenged the 
hypothesis of Mr. Gerald R. Ford, of Michigan (see Sec. 3.9, supra), as 
to the grounds for impeachment of federal judges: (2)
---------------------------------------------------------------------------
 2. 116 Cong. Rec. 12569-71, 91st Cong. 2d Sess.
---------------------------------------------------------------------------

        I respectfully disagree with the basic premise ``that an 
    impeachable offense is whatever a majority of the House of 
    Representatives considers it to be at a given moment in history.''
        To accept this view, in my judgment, would do grave damage to 
    one of the

[[Page 1999]]

    most treasured cornerstones of our liberties, the constitutional 
    principle of an independent judiciary, free not only from public 
    passions and emotions, but also free from fear of executive or 
    legislative disfavor except under already-defined rules and 
    precedents. . . .
        First, I should like to discuss the concept of an impeachable 
    offense as ``whatever the majority of the House of Representatives 
    considers it to be at any given time in history.'' If this concept 
    is accurate, then of course there are no limitations on what a 
    political majority might determine to be less than good behavior. 
    It follows that judges of the Court could conceivably be removed 
    whenever the majority of the House and two-thirds of the Senate 
    agreed that a better judge might fill the position. But this 
    concept has no basis, either in our constitutional history or in 
    actual case precedent.
        The intent of the framers of the Constitution was clearly to 
    protect judges from political disagreement, rather than to simplify 
    their ease of removal.
        The Original Colonies had had a long history of difficulties 
    with the administration of justice under the British Crown. The 
    Declaration of Independence listed as one of its grievances against 
    the King:

            He has made Judges dependent on his Will alone, for the 
        tenure of their offices and the amount and payment of their 
        salaries.

        The signers of the Declaration of Independence were primarily 
    concerned about preserving the independence of the judiciary from 
    direct or indirect pressures, and particularly from the pressure of 
    discretionary termination of their jobs or diminution of their 
    salaries.

        In the debates which took place in the Constitutional 
    Convention 11 years later, this concern was expressed in both of 
    the major proposals presented to the delegates. The Virginia and 
    New Jersey plans both contained language substantively similar to 
    that finally adopted, as follows:

            Article III, Section 1 states ``The Judges, both of the 
        Supreme and inferior Courts, shall hold their offices during 
        good Behavior, and shall, at stated times, receive for their 
        Services, a Compensation, which shall not be diminished during 
        their Continuance in Office.''

        The ``good behavior'' standard thus does not stand alone. It 
    must be read with reference to the clear intention of the framers 
    to protect the independence of the judiciary against executive or 
    legislative action on their compensation, presumably because of the 
    danger of political disagreement.
        If, in order to protect judicial independence, Congress is 
    specifically precluded from terminating or reducing the salaries of 
    Judges, it seems clear that Congress was not intended to have the 
    power to designate ``as an impeachable offense whatever a majority 
    of the House of Representatives considers it to be at a given 
    moment.''
        If an independent judiciary is to be preserved, the House must 
    exercise decent restraint and caution in its definition of what is 
    less than good behavior. As we honor the Court's self-imposed 
    doctrine of judicial restraint, so we might likewise honor the 
    principle of legislative restraint in considering serious charges 
    against members of a co-equal branch of Government which we have 
    wished to keep free from political tensions and emotions. . . .

[[Page 2000]]

        The term ``good behavior,'' as the Founding Fathers considered 
    it, must be taken together with the specific provisions limiting 
    cause for impeachment of executive branch personnel to treason, 
    bribery or other high crimes and misdemeanors. The higher standard 
    of good behavior required of Judges might well be considered as 
    applicable solely to their judicial performance and capacity and 
    not to their private and nonjudicial conduct unless the same is 
    violative of the law. Alcoholism, arrogance, nonjudicial 
    temperament, and senility of course interfere with judicial 
    performance and properly justify impeachment. I can find no 
    precedent, however, for impeachment of a Judge for nonjudicial 
    conduct which falls short of violation of law.
        In looking to the nine cases of impeachment of Judges spanning 
    181 years of our national history, in every case involved, the 
    impeachment was based on either improper judicial conduct or 
    nonjudicial conduct which was considered as criminal in nature. . . 
    .
        From the brief research I have been able to do on these nine 
    cases, and as reflected in the Congressional Quarterly of April 17, 
    1970, the charges were as follows:
        District Judge John Pickering, 1804: Loose morals, 
    intemperance, and irregular judicial procedure.
        Associate Supreme Court Justice Samuel Chase, 1805: Partisan, 
    harsh, and unfair conduct during trials.
        District Judge James H. Peck, 1831: Imposing an unreasonably 
    harsh penalty for contempt of court.
        District Judge West H. Humphreys, 1862: Supported secession and 
    served as a Confederate judge.
        District Judge Charles Swayne, 1905: Padding expense accounts, 
    living outside his district, misuse of property and of the contempt 
    power.
        Associate Court of Commerce Judge Robert Archbald, 1913: 
    Improper use of influence, and accepting favors from litigants.
        District Judge George W. English, 1926: Tyranny, oppression, 
    and partiality.
        District Judge Harold Louderback, 1933: Favoritism, and 
    conspiracy.
        District Judge Halsted L. Ritter, 1936: Judicial improprieties, 
    accepting legal fees while on the bench, bringing his court into 
    scandal and disrepute, and failure to pay his income tax.
        The bulk of these challenges to the court were thus on judicial 
    misconduct, with scattered instances of nonjudicial behavior. In 
    all cases, however, insofar as I have been able to thus far 
    determine, the nonjudicial behavior involved clear violation of 
    criminal or civil law, and not just a ``pattern of behavior'' that 
    others might find less than ``good.''
        If the House accepts precedent as a guide, then, an impeachment 
    of a Justice of the Supreme Court based on charges which are 
    neither unlawful in nature nor connected with the performance of 
    his judicial duties would represent a highly dubious break with 
    custom and tradition at a time when, as the gentleman from New York 
    (Mr. Horton), stated last Wednesday:

            We are living in an era when the institutions of government 
        and the people who man them are undergoing the severest tests 
        in history.

        There is merit, I think, in a strict construction of the words 
    ``good behav

[[Page 2001]]

    ior'' as including conduct which complies with judicial ethics 
    while on the bench and with the criminal and civil laws while off 
    the bench. Any other construction of the term would make judges 
    vulnerable to any majority group in the Congress which held a 
    common view of impropriety of conduct which was admittedly lawful. 
    If lawful conduct can nevertheless be deemed an impeachable offense 
    by a majority of the House, how can any Judge feel free to express 
    opinions on controversial subjects off the bench? Is there anything 
    in our history to indicate that the framers of our Constitution 
    intended to preclude a judge from stating political views publicly, 
    either orally or in writing? I have been unable to find any 
    constitutional history to so indicate.
        The gentleman from New Hampshire (Mr. Wyman) suggests that a 
    judge should not publicly declare his personal views on 
    controversies likely to come before the Court. This is certainly 
    true. But it certainly does not preclude a judge from voicing 
    personal political views, since political issues are not within the 
    jurisdiction of the court and thus a judge's opinions on political 
    matters would generally not be prejudicial to interpretations of 
    the law which his jurisdiction is properly limited.

Sec. 3.11 The view has been taken that a federal judge may be impeached 
    for misbehavior of such nature as to cast substantial doubt upon 
    his integrity.

    On Aug. 10, 1970, Minority Leader Gerald R. Ford, of Michigan, 
inserted in the Congressional Record a legal memorandum on impeachment 
of a federal judge for ``misbehavior,'' the memorandum was prepared by 
a private attorney and reviewed constitutional provisions, views of 
commentators, and the precedents of the House and Senate in impeachment 
proceedings. The memorandum concluded with the following analysis: 
(3)
---------------------------------------------------------------------------
 3. 116 Cong. Rec. 28091-96, 91st Cong. 2d Sess.
---------------------------------------------------------------------------

        A review of the past impeachment proceedings has clearly 
    established little constitutional basis to the argument that an 
    impeachable offense must be indictable as well. If this were to be 
    the case, the Constitution would then merely provide an additional 
    or alternate method of punishment, in specific instances, to the 
    traditional criminal law violator. If the framers had meant to 
    remove from office only those officials who violated the criminal 
    law, a much simpler method than impeachment could have been 
    devised. Since impeachment is such a complex and cumbersome 
    procedure, it must have been directed at conduct which would be 
    outside the purview of the criminal law. Moreover, the 
    traditionally accepted purpose of impeachment would seem to work 
    against such a construction. By restricting the punishment for 
    impeachment to removal and disqualification from office, 
    impeachment seems to be a protective, rather than a punitive, 
    device. It is meant to protect the public from conduct by high

[[Page 2002]]

    public officials that undermines public confidence. Since that is 
    the case, the nature of impeachment must be broader than this 
    argument would make it. [Such] conduct on the part of a judge, 
    while not criminal, would be detrimental to the public welfare. 
    Therefore it seems clear that impeachment will lie for conduct not 
    indictable nor even criminal in nature. It will be remembered that 
    Judge Archbald was removed from office for conduct which, in at 
    least one commentator's view, would have been blameless if done by 
    a private citizen. See Brown, The Impeachment of the Federal 
    Judiciary, 26 Har. L. Rev. 684, 704-05 (1913).
        A sound approach to the Constitutional provisions relating to 
    the impeachment power appears to be that which was made during the 
    impeachment of Judge Archbald. Article I, Sections 2 and 3 give 
    Congress jurisdiction to try impeachments. Article II, Section 4, 
    is a mandatory provision which requires removal of officials 
    convicted of ``treason, bribery or other high crimes and 
    misdemeanors''. The latter phrase is meant to include conduct, 
    which, while not indictable by the criminal law, has at least the 
    characteristics of a crime. However, this provision is not 
    conclusively restrictive. Congress may look elsewhere in the 
    Constitution to determine if an impeachable offense has occurred. 
    In the case of judges, such additional grounds of impeachment may 
    be found in Article III, Section 1 where the judicial tenure is 
    fixed at ``good behavior''. Since good behavior is the limit of the 
    judicial tenure, some method of removal must be available where a 
    judge breaches that condition of his office. That method is 
    impeachment. Even though this construction has been criticized by 
    one writer as being logically fallacious, See Simpson, Federal 
    Impeachments, 64 U. of Penn. L. Rev. 651, 806-08 (1916), it seems 
    to be the construction adopted by the Senate in the Archbald and 
    Ritter cases. Even Simpson, who criticized the approach, reaches 
    the same result because he argues that ``misdemeanor'' must, by 
    definition, include misbehavior in office. Supra at 812-13.

        In determining what constitutes impeachable judicial 
    misbehavior, recourse must be had to the previous impeachment 
    proceedings. Those proceedings fall mainly into two categories, 
    misconduct in the actual administration of justice and financial 
    improprieties off the bench. Pickering was charged with holding 
    court while intoxicated and with mishandling cases. Chase and Peck 
    were charged with misconduct which was prejudicial to the impartial 
    administration of justice and with oppressive and corrupt use of 
    their office to punish individuals critical of their actions. 
    Swayne, Archbald, Louderback and Ritter were all accused of using 
    their office for personal profit and with various types of 
    financial indiscretions. English was impeached both for oppressive 
    misconduct while on the bench and for financial misdealings. The 
    impeachment of Humphries is the only one which does not fall within 
    this pattern and the charges brought against him probably amounted 
    to treason. See Brown, The Impeachment of the Federal Judiciary, 26 
    Har. L. Rev. 684, 704 (1913).
        While various definitions of impeachable misbehavior have been 
    advanced, the unifying factor in these definitions is the notion 
    that there must be such

[[Page 2003]]

    misconduct as to cast doubt on the integrity and impartiality of 
    the Federal judiciary. Brown has defined that misbehavior as 
    follows:

            It must act directly or by reflected influence react upon 
        the welfare of the State. It may constitute an intentional 
        violation of positive law, or it may be an official dereliction 
        of commission or omission, a serious breach of moral 
        obligation, or other gross impropriety of personal conduct 
        which, in its natural consequences, tends to bring an office 
        into contempt and disrepute . . . An act or course of 
        misbehavior which renders scandalous the personal life of a 
        public officer, shakes the confidence of the people in his 
        administration of the public affairs, and thus impairs his 
        official usefulness. Brown, supra at 692-93.

        As Simpson stated with respect to the outcome of the Archbald 
    impeachment:

            It determined that a judge ought not only be impartial, but 
        he ought so demean himself, both in and out of court, that 
        litigants will have no reason to suspect his impartiality and 
        that repeatedly failing in that respect constitutes a ``high 
        misdemeanor'' in regard to his office. If such be considered 
        the result of that case, everyone must agree that it 
        established a much needed precedent. Simpson, Federal 
        Impeachments, 64 U. of Penn. L. Rev. 651, 813 (1916).

        John W. Davis, House Manager in the Impeachment of Judge 
    Archbald, defined judicial misbehavior as follows:

            Usurpation of power, the entering and enforcement of orders 
        beyond his jurisdiction, disregard or disobedience of the 
        rulings of superior tribunals, unblushing and notorious 
        partiality and favoritism, indolence and neglect, are all 
        violations of his official oath . . . And it is easily possible 
        to go further and imagine . . . such willingness to use his 
        office to serve his personal ends as to be within reach of no 
        branch of the criminal law, yet calculated with absolute 
        certainty to bring the court into public obloquy and contempt 
        and to seriously affect the administration of justice. 6 Cannon 
        647.

        Representative Summers, one of the managers in the Louderback 
    impeachment gave this definition:

            When the facts proven with reference to a respondent are 
        such as are reasonably calculated to arouse a substantial doubt 
        in the minds of the people over whom that respondent exercises 
        authority that he is not brave, candid, honest, and true, there 
        is no other alternative than to remove such a judge from the 
        bench, because wherever doubt resides, confidence cannot be 
        present. Louderback Proceedings 815.

                               IV. Conclusion

        In conclusion, the history of the constitutional provisions 
    relating to the impeachment of Federal judges demonstrates that 
    only the Congress has the power and duty to remove from office any 
    judge whose proven conduct, either in the administration of justice 
    or in his personal behavior, casts doubt on his personal integrity 
    and thereby on the integrity of the entire judiciary. Federal 
    judges must maintain the highest standards of conduct to preserve 
    the independence of and respect for the judicial system and the 
    rule of law. As Representative Summers stated during the Ritter 
    impeachment:

            Where a judge on the bench, by his own conduct, arouses a 
        substantial doubt as to his judicial integrity he commits the 
        highest crime that a judge can commit under the Con

[[Page 2004]]

        stitution. Ritter Proceedings 611 (1936).

        Finally, the application of the principles of the impeachment 
    process is left solely to the Congress. There is no appeal from 
    Congress' ultimate judgment. Thus, it can fairly be said that it is 
    the conscience of Congress--acting in accordance with the 
    constitutional limitations--which determines whether conduct of a 
    judge constitutes misbehavior requiring impeachment and removal 
    from office. If a judge's misbehavior is so grave as to cast 
    substantial doubt upon his integrity, he must be removed from 
    office regardless of all other considerations. If a judge has not 
    abused his trust, Congress has the duty to reaffirm public trust 
    and confidence in his actions.
        Respectfully submitted,
                          Bethel B. Kelley,
                          Daniel G. Wyllie.

Sec. 3.12 The view has been taken that the House impeaches federal 
    judges only for misconduct that is both criminal in nature and 
    related to the performance of the judicial function.

    On Nov. 16, 1970, Mr. Frank Thompson, Jr., of New Jersey, inserted 
into the Congressional Record a study by a professor of constitutional 
law of impeachment proceedings against federal judges and the grounds 
for such proceedings. The memorandum discussed in detail the substance 
of such charges in all prior impeachment proceedings and concluded as 
follows: (4)
---------------------------------------------------------------------------
 4. 116 Cong. Rec. 37464-70, 91st Cong. 2d Sess.
---------------------------------------------------------------------------

        In summary, the charges against Justice William O. Douglas are 
    unique in our history of impeachment. The House has stood ready to 
    impeach judges for Treason, Bribery, and related financial crimes 
    and misdemeanors. It has refused to impeach judges charged with on-
    the-job misconduct when that behavior is not also an indictable 
    criminal offense. Only once before has a judge even been charged 
    with impeachment for non-job-related activities--in 1921, when 
    Judge Kenesaw Mountain Landis was charged with accepting the job as 
    Commissioner of big-league baseball--and the House Judiciary 
    Committee refused to dignify the charge with a report pro or con. 
    Never in our impeachment history, until Congressman Ford leveled 
    his charges against Mr. Justice Douglas, has it ever been suggested 
    that a judge could be impeached because, while off the bench, he 
    exercised his First Amendment rights to speak and write on issues 
    of the day, to associate with others in educational enterprises. . 
    . .
        This brief history of Congressional impeachment shows several 
    things. First, it shows that it works. It is not a rusty, unused 
    power. Since 1796, fifty-five judges have been charged on the Floor 
    of the House of Representatives, approximately one in every three 
    to four years. Presumably, most of the federal judges who should be 
    impeached, are impeached. Thirty-three judges have been charged 
    with ``Trea

[[Page 2005]]

    son, Bribery, or other High Crimes and Misdemeanors.'' Three of 
    them have been found guilty by the Senate and removed from office; 
    twenty-two additional judges have resigned rather than face Senate 
    trial and public exposure. This is one ``corrupt'' judge for 
    approximately every seven years--hopefully, all there are.
        Second, by its deeds and actions, Congress has recognized what 
    Chief Justice Burger recently described as ``the imperative need 
    for total and absolute independence of judges in deciding cases or 
    in any phase of the decisional function.'' With a few aberrations 
    in the early 1800's, a period of unprecedented political upheaval, 
    Congress has refused to impeach a judge for lack of ``good 
    behaviour'' unless the behavior is both job-related and criminal. 
    This is true whether the judge gets drunk on the bench, whether the 
    judge exploits and abuses the authority of his robes, or whether 
    the judge hands down unpopular or wrong decisions.

        How could it be otherwise? The purpose of an ``independent 
    judiciary'' in our system of government by separation of powers, is 
    to check the excesses of the legislative and executive branches of 
    the government, to cry a halt when popular passions grip the 
    Congress and laws are adopted which abridge and infringe upon the 
    rights guaranteed to all citizens by the Constitution. The judges 
    must be strong and secure if they are to do this job well.
        John Dickinson proposed at the Constitutional Convention that 
    federal judges should be removed upon a petition by the majority of 
    each House of Congress. This was rejected, because it was 
    contradictory to judicial tenure during good behavior, because it 
    would make the judiciary ``dangerously dependent'' on the 
    legislature.
        During the Jeffersonian purge of the federal bench, Senate 
    leader William Giles proclaimed that ``removal by impeachment'' is 
    nothing more than a declaration by both Houses of Congress to the 
    judge that ``you hold dangerous opinions.'' This theory of the 
    impeachment power was rejected in 1804 because it would put in 
    peril ``the integrity of the whole national judicial 
    establishment.''
        Now Congressman Ford suggests that ``an impeachable offense'' 
    is nothing more than ``whatever a majority of the House of 
    Representatives considers it to be at a given moment in history.''
        Does he really mean that Chief Justice Warren might have been 
    impeached because ``at a given moment in history'' a majority of 
    the House and two-thirds of the Senate objected strongly to his 
    opinion ordering an end to school-segregation, or to his equally 
    controversial decision against school prayer? Does he really mean 
    that Judge Julius Hoffman is impeachable if a majority of this or 
    the next Congress decides that he was wrong in his handling of the 
    Chicago Seven? Does he really want a situation where federal judges 
    must keep one eye on the mood of Congress and the other on the 
    proceedings before them in court, in order to maintain their tenure 
    in office?
        If Congressman Ford is right, it bodes ill for the concept of 
    an independent judiciary and the corollary doctrine of a 
    Constitutional government of laws.

[[Page 2006]]

        In 1835, the French observer de Tocqueville wrote that:

            A decline of public morals in the United States will 
        probably be marked by the abuse of the power of impeachment as 
        a means of crushing political adversaries or ejecting them from 
        office.

        Let us hope that that day has not yet arrived.

    Mr. Thompson summarized the study as follows:

        . . . [I] requested Daniel H. Pollitt, a professor of 
    constitutional law at the University of North Carolina to survey 
    the 51 impeachment proceedings in this House during the intervening 
    years.
        I want to make several comments on this survey.
        First, it shows that impeachment works. Thirty-three judges 
    have been charged in this body with ``treason, bribery, or other 
    high crimes and misdemeanors.'' Twenty-two of them resigned rather 
    than face Senate trial; three chose to fight it out in the Senate; 
    and seven were acquitted by the vote of this Chamber against 
    further impeachment proceedings.
        Second, it shows that never since the earliest days of this 
    Republic has the House impeached a judge for conduct which was not 
    both job-related and criminal. This body has consistently refused 
    to impeach a judge unless he was guilty of an indictable offense.
        Third, it shows that never before Mr. Ford leveled his charges 
    against Justice Douglas has it ever been suggested that a judge 
    could be impeached because, while off the bench, he exercised his 
    first amendment rights to speak and write on issues of the day.

Sec. 3.13 A special subcommittee of the Committee on the Judiciary 
    found in its final report on charges of impeachment against 
    Associate Justice William O. Douglas of the Supreme Court, that (1) 
    a judge could be impeached for judicial conduct which was criminal 
    or which was a serious dereliction of public duty; (2) that a judge 
    could be impeached for nonjudicial conduct which was criminal; and 
    (3) that the evidence gathered did not warrant the impeachment of 
    Justice Douglas.

    On Sept. 17, 1970, the special subcommittee of the Committee on the 
Judiciary, which had been created to investigate and report on charges 
of impeachment against Associate Justice Douglas of the Supreme Court, 
submitted its final report to the full committee. The report reviewed 
the grounds for impeachment and found the evidence insufficient. The 
report provided in part: (5)
---------------------------------------------------------------------------
 5. Final report by the special subcommittee on H. Res. 920 
        (Impeachment of Associate Justice Douglas) of the Committee on 
        the Judiciary, Committee Print, 91st Cong. 2d Sess., Sept. 17, 
        1970.
---------------------------------------------------------------------------

                        II. Concepts of Impeachment

        The Constitution grants and defines the authority for the use 
    of impeach

[[Page 2007]]

    ment procedures to remove officials of the Federal Government. 
    Offenses subject to impeachment are set forth in Article II, 
    Section 4:

            The President, Vice President and all civil Officers of the 
        United States, shall be removed from office on impeachment for 
        and Conviction of, Treason, Bribery, or other high Crimes and 
        Misdemeanors.

        An Associate Justice of the Supreme Court is a civil officer of 
    the United States and is a person subject to impeachment. Article 
    II, Section 2, authorizes the President to appoint ``. . . 
    Ambassadors, other public Ministers and Consuls, Judges of the 
    Supreme Court, and all other Officers of the United States . . .''
        Procedures established in the Constitution vest responsibility 
    for impeachment in the Legislative Branch of the government and 
    require both the House of Representatives and the Senate to 
    participate in the trial and determination of removal from office. 
    Article I, Section 1, provides: ``The House of Representatives 
    shall chuse their Speaker and other Officers; and shall have the 
    sole Power of Impeachment.''
        After the House of Representatives votes to approve Articles of 
    Impeachment, the Senate must hear and decide the issue. Article I, 
    Section 3 provides:

            The Senate shall have the sole Power to try all 
        Impeachments. When sitting for that Purpose, they shall be on 
        Oath or Affirmation. When the President of the United States is 
        tried, the Chief Justice shall preside: And no Person shall be 
        convicted without the Concurrence of two thirds of the Members 
        present.
    Decision for removal in an impeachment proceeding does not preclude 
    trial and punishment for the same offense in a court of law. 
    Article III, Section 3 in this regard provides:

            Judgment in Cases of Impeachment shall not extend further 
        than to removal from Office, and disqualification to hold and 
        enjoy any Office of honor, Trust or Profit under the United 
        States: but the Party convicted shall nevertheless be liable 
        and subject to Indictment, Trial, Judgment and Punishment, 
        according to Law.

        Other provisions of the Constitution underscore the exceptional 
    nature of the unique legislative trial. The President's power to 
    grant reprieves and pardons for offenses against the United States 
    does not extend to impeachments. Article 2, Section 2, provides: 
    ``The President . . . shall have the power to grant Reprieves and 
    Pardons for Offenses against the United States, except in Cases of 
    Impeachment.'' Inasmuch as the Senate itself hears the evidence and 
    tries the case, the Constitutional right to a trial by jury when a 
    crime has been charged is not available. Article III, Section 2 
    provides: ``The Trial of all Crimes, except in Cases of 
    Impeachment, shall be by jury. . . .''
        The Constitution provides only one instrument to remove judges 
    of both the Supreme and inferior courts, and that instrument is 
    impeachment. The provisions of Article II, Section 4, defines the 
    conduct that render federal officials subject to impeachment 
    procedures. For a judge to be impeachable, his conduct must 
    constitute ``. . . Treason, Bribery, or other High Crimes and 
    Misdemeanors.''
        Some authorities on constitutional law have contended that the 
    impeach

[[Page 2008]]

    ment device is a cumbersome procedure. Characterized by a high 
    degree of formality, when used it preempts valuable time in both 
    the House and Senate and obstructs accomplishment of the law making 
    function of the legislative branch. In addition to distracting the 
    attention of Congress from its other responsibilities, impeachments 
    invariably are divisive in nature and generate intense controversy 
    in Congress and in the country at large.
        Since the adoption of the Constitution in 1787, there have been 
    only 12 impeachment proceedings, nine of which have involved 
    Federal judges. There have been only four convictions, all Federal 
    judges.
        The time devoted by the House and Senate to the impeachments 
    that resulted in the trials of the nine Federal judges varied 
    substantially. The impeachment of Robert Archbald in 1912 consumed 
    the shortest time. The Archbald case required three months to be 
    processed in the House, and six months in the Senate. The 
    impeachment of James H. Peck required the most time for trial of a 
    Federal judge. The House took three years and five months to 
    complete its action, and the Senate was occupied for nine months 
    with the trial. The most recent case, Halsted Ritter, in 1933, 
    received the attention of the House for two years and eight months, 
    and required one month and seven days for trial in the Senate.

        Although the provisions of Article II, Section 4 define conduct 
    that is subject to impeachment, and Article I establishes the 
    impeachment procedure, impeachments of Federal judges have been 
    complicated by the tenure provision in Article III, Section 1. 
    Article III, Section 1, provides:

            The judicial Power of the United States shall be vested in 
        one supreme Court, and in such inferior Courts as the Congress 
        may from time to time ordain and establish. The Judges, both of 
        the supreme and inferior Courts, shall hold their Offices 
        during good Behaviour, and shall, at stated Times, receive for 
        their Services, a Compensation, which shall not be diminished 
        during their Continuance in Office

        The content of the phrase ``during good Behaviour'' and its 
    relationship to Article II, Section 4's requirement for conduct 
    that amounts to ``treason, bribery, or other high crimes and 
    misdemeanors'' have been matters of dispute in each of the 
    impeachment proceedings that have involved Federal judges. The four 
    decided cases do not resolve the problems and disputes that this 
    relationship has generated. Differences in impeachment concepts as 
    to the meaning of the phrase ``good behavior'' in Article III and 
    its relationship to the meaning of the word ``misdemeanors'' in 
    Article II are apparent in the discussions of the charges that have 
    been made against Associate Justice Douglas.
        A primary concern of the Founding Fathers was to assure the 
    creation of an independent judiciary. Alexander Hamilton in The 
    Federalist Papers (No. 78) stated this objective:

            The complete independence of the courts of justice is 
        peculiarly essential in a limited Constitution. By a limited 
        Constitution, I understand one which contains certain specified 
        exceptions to the legislative authority; such for instance, as 
        that it shall pass no bills of attainder, no ex post facto 
        laws, and the like. Limitations of this kind can be preserved 
        in practice no other way than through the

[[Page 2009]]

        medium of courts of justice, whose duty it must be to declare 
        all acts contrary to the manifest tenor of the Constitution 
        void. Without this, all the reservations of particular rights 
        or privileges would amount to nothing.

        The Federalist Papers (No. 79) discusses the relationship of 
    the impeachment procedures to judicial independence:

            The precautions for their responsibility are comprised in 
        the article respecting impeachments. They are liable to be 
        impeached for malconduct by the House of Representatives and 
        tried by the Senate; and, if convicted, may be dismissed from 
        office and disqualified for holding any other. This is the only 
        provision on the point which is consistent with the necessary 
        independence of the judicial character, and is the only one 
        which we find in our own Constitution in respect to our own 
        judges.
            The want of a provision for removing the judges on account 
        of inability has been a subject of complaint. But all 
        considerate men will be sensible that such a provision would 
        either not be practiced upon or would be more liable to abuse 
        than calculated to answer any good purpose. The mensuration of 
        the faculties of the mind has, I believe, no place in the 
        catalog of known arts. An attempt to fix the boundary between 
        the regions of ability and inability would much oftener give 
        scope to personal and party attachments and enmities than 
        advance the interests of justice or the public good. The 
        result, except in the case of insanity, must for the most part 
        be arbitrary; and insanity, without any formal or express 
        provision, may be safely pronounced to be a virtual 
        disqualification.

        The desire of the American people to assure independence of the 
    judiciary and to emphasize the exalted station assigned to the 
    judge by our society, have erected pervasive constitutional and 
    statutory safeguards. The judge of a United States court holds 
    office ``during good behavior.'' Further his salary may not be 
    reduced while he is in office by any branch of Government. A judge 
    may be removed from office only by the cumbersome procedure of 
    impeachment.
        Accordingly, when the public is confronted with allegations of 
    dishonesty or venality, and is forced to recognize that judges are 
    human, and hence fallible, the impact is severe. Exposure of 
    infirmities in the judicial system is undertaken only with 
    reluctance. It is an area in which the bar, the judiciary, and the 
    executive and legislative branches alike have seen fit to move 
    cautiously and painstakingly. There must be full recognition of the 
    necessity to proceed in such a manner that will result in the least 
    damage possible to judicial independence, but which, at the same 
    time, will result in correction or elimination of any condition 
    that brings discredit to the judicial system.
        Removal of a Federal judge, for whatever reason, historically 
    has been difficult. Constitutional safeguards to assure a free and 
    independent judiciary make it difficult to remove a Federal judge 
    who may be unfit, whether through incompetence, insanity, senility, 
    alcoholism, or corruption.
        For a judge to be impeached, it must be shown that he has 
    committed treason, accepted a bribe, or has committed a high crime 
    or misdemeanor. All conduct that can be impeached must at least be 
    a ``misdemeanor.'' A judge is entitled to remain a judge as long as 
    he holds his office ``during good behav

[[Page 2010]]

    ior.'' The content of the word ``misdemeanor'' must encompass some 
    activities which fall below the standard of ``good behavior.'' 
    Conduct which fails to meet the standard of ``good behavior'' but 
    which does not come within the definition of ``misdemeanor'' is not 
    subject to impeachment.
        In each of the nine impeachments involving judges, there has 
    been controversy as to the meaning of the word ``misdemeanor.'' 
    Primarily the controversy concerned whether the activities being 
    attacked must be criminal or whether the word ``misdemeanor'' 
    encompasses less serious departures from society norms.
        In his memorandum ``Opinion on the Impeachment of Halsted L. 
    Ritter,'' Senator H. W. Johnson described the confusion of thought 
    prevailing in the Senate on these concepts. He stated:

            The confusion of thought prevailing among Senators is 
        evidenced by their varying expressions. One group eloquently 
        argued any gift to a judge, under any circumstances, 
        constituted misbehavior, for which he should be removed from 
        office--and moreover that neither corrupt motive or evil intent 
        need be shown in the acceptance of a gift or in any so-called 
        misbehavior. Another prefaced his opinion with the statement: 
        ``I do not take the view that an impeachment proceeding of a 
        judge of the inferior Federal courts under the Constitution of 
        the United States is a criminal proceeding. The Constitution 
        itself has expressly denuded impeachment proceedings of every 
        aspect or characteristic of a criminal proceeding.''
            And yet another flatly takes a contrary view, and states 
        although finding the defendant guilty on the seventh count: 
        ``The procedure is criminal in its nature, for upon conviction, 
        requires the removal of a judge, which is the highest 
        punishment that could be administered such an officer. The 
        Senate, sitting as a court, is required to conduct its 
        proceedings and reach its decisions in accordance with the 
        customs of our law. In all criminal cases the defendant comes 
        into court enjoying the presumption of innocence, which 
        presumption continues until he is proven guilty beyond a 
        reasonable doubt.''
            And again we find this: ``Impeachment, though, must be 
        considered as a criminal proceeding.''

        In his April 15, 1970, speech, Representative Ford articulated 
    the concept that an impeachable offense need not be indictable and 
    may be something less than a criminal act or criminal dereliction 
    of duty. He said:

            What, then, is an impeachable offense?
            The only honest answer is that an impeachable offense is 
        whatever a majority of the House of Representatives considers 
        to be at a given moment in history; conviction results from 
        whatever offense or offenses two-thirds of the other body 
        considers to be sufficiently serious to require removal of the 
        accused from office. Again, the historical context and 
        political climate are important; there are few fixed principles 
        among the handful of precedents.
            I think it is fair to come to one conclusion, however, from 
        our history of impeachments: a higher standard is expected of 
        Federal judges than of any other ``civil officers'' of the 
        United States. (First Report, p. 31).

        The ``Kelley Memorandum'' submitted by Mr. Ford enforces this 
    position. The Kelley Memorandum asserts that misbehavior by a 
    Federal judge may constitute an impeachable offense

[[Page 2011]]

    though the conduct may not be an indictable crime or misdemeanor. 
    The Kelley Memorandum concludes:

            In conclusion, the history of the constitutional provisions 
        relating to the impeachment of Federal judges demonstrates that 
        only the Congress has the power and duty to remove from office 
        any judge whose proven conduct, either in the administration of 
        justice or in his personal behavior, casts doubt on his 
        personal integrity and thereby on the integrity of the entire 
        judiciary. Federal judges must maintain the highest standards 
        of conduct to preserve the independence of and respect for the 
        judicial system and the rule of law.

        On the other hand, Counsel for Associate Justice Douglas, Simon 
    H. Rifkind, has submitted a memorandum that contends that a Federal 
    judge may not be impeached for anything short of criminal conduct. 
    Mr. Rifkind also contends that the other provisions of the 
    Constitution, i.e., the prohibition of ex post facto laws, due 
    process notice requirement and the protection of the First 
    Amendment prevent the employment of any other standard in 
    impeachment proceedings. In conclusion Mr. Rifkind stated:

            The constitutional language, in plain terms, confines 
        impeachment to ``Treason, Bribery, or other high Crimes and 
        Misdemeanors.'' The history of those provisions reinforces 
        their plain meaning. Even when the Jeffersonians sought to 
        purge the federal bench of all Federalist judges, they felt 
        compelled to at least assert that their political victims were 
        guilty of ``high Crimes and Misdemeanors.'' The unsuccessful 
        attempt to remove Justice Chase firmly established the 
        proposition that impeachment is for criminal offenses only, and 
        is not a ``general inquest'' into the behavior of judges. There 
        has developed the consistent practice, rigorously followed in 
        every case in this century, of impeaching federal judges only 
        when criminal offenses have been charged. Indeed, the House has 
        never impeached a judge except with respect to a ``high Crime'' 
        or ``Misdemeanor.'' Characteristically, the basis for 
        impeachment has been the soliciting of bribes, selling of 
        votes, manipulation of receivers' fees, misappropriation of 
        properties in receivership, and willful income tax evasion.

        A vast body of literature has been developed concerning the 
    scope of the impeachment power as it pertains to federal judges. 
    The precedents show that the House of Representatives, particularly 
    in the arguments made by its Managers in the Senate trials, favors 
    the conclusion that the phrase ``high crimes and misdemeanors'' 
    encompasses activity which is not necessarily criminal in nature.
        Although there may be divergence of opinion as to whether 
    impeachment of a judge requires conduct that is criminal in nature 
    in that it is proscribed by specific statutory or common law 
    prohibition, all authorities hold that for a judge to be impeached, 
    the term ``misdemeanors'' requires a showing of misconduct which is 
    inherently serious in relation to social standards. No respectable 
    argument can be made to support the concept that a judge could be 
    impeached if his conduct did not amount at least to a serious 
    dereliction of his duty as a member of society.
        The punishment imposed by the Constitution measures how serious 
    misconduct need be to be impeachable. Only serious derelictions of 
    duty owed to society would warrant the punish

[[Page 2012]]

    ment provided. An impeachment proceeding is a trial which results 
    in punishment after an appropriate finding by the trier of facts, 
    the Senate. Deprivation of office is a punishment. Disqualification 
    to hold any future office of honor, trust and profit is a greater 
    punishment. The judgment of the Senate confers upon that body 
    discretion, in the words of the Federalist Papers ``. . . to doom 
    to honor or to infamy the most influential and the most 
    distinguished characters of the community. . . .
        Reconciliation of the differences between the concept that a 
    judge has a right to his office during ``good behavior'' and the 
    concept that the legislature has a duty to remove him if his 
    conduct constitutes a ``misdemeanor'' is facilitated by 
    distinguishing conduct that occurs in connection with the exercise 
    of his judicial office from conduct that is non-judicially 
    connected. Such a distinction permits recognition that the content 
    of the word ``misdemeanor'' for conduct that occurs in the course 
    of exercise of the power of the judicial office includes a broader 
    spectrum of action than is the case when non-judicial activities 
    are involved.
        When such a distinction is made, the two concepts on the 
    necessity for judicial conduct to be criminal in nature to be 
    subject to impeachment becomes defined and may be reconciled under 
    the overriding requirement that to be a ``misdemeanor'', and hence 
    impeachable, conduct must amount to a serious dereliction of an 
    obligation owed to society.
        To facilitate exposition, the two concepts may be summarized as 
    follows:
        Both concepts must satisfy the requirements of Article II, 
    Section 4, that the challenged activity must constitute ``. . . 
    Treason, Bribery or High Crimes and Misdemeanors.''
        Both concepts would allow a judge to be impeached for acts 
    which occur in the exercise of judicial office that (1) involve 
    criminal conduct in violation of law, or (2) that involve serious 
    dereliction from public duty, but not necessarily in violation of 
    positive statutory law or forbidden by the common law. Sloth, 
    drunkenness on the bench or unwarranted and unreasonable 
    impartiality manifest for a prolonged period are examples of 
    misconduct, not necessarily criminal in nature that would support 
    impeachment. When such misbehavior occurs in connection with the 
    federal office, actual criminal conduct should not be a requisite 
    to impeachment of a judge or any other federal official. While such 
    conduct need not be criminal, it nonetheless must be sufficiently 
    serious to be offenses against good morals and injurious to the 
    social body.
        Both concepts would allow a judge to be impeached for conduct 
    not connected with the duties and responsibilities of the judicial 
    office which involve criminal acts in violation of law.
        The two concepts differ only with respect to impeachability of 
    judicial behavior not connected with the duties and 
    responsibilities of the judicial office. Concept 2 would define 
    ``misdemeanor'' to permit impeachment for serious derelictions of 
    public duty but not necessarily violations of statutory or common 
    law.
        In summary, an outline of the two concepts would look this way:
        A judge may be impeached for ``. . . Treason, Bribery, or High 
    Crimes or Misdemeanors.''

[[Page 2013]]

        A. Behavior, connected with judicial office or exercise of 
    judicial power.
        Concept I
          1. Criminal conduct.
          2. Serious dereliction from public duty.
        Concept II
          1. Criminal conduct.
          2. Serious dereliction from public duty.
        B. Behavior not connected with the duties and responsibilities 
    of the judicial office.
        Concept I
          1. Criminal conduct.
        Concept II
          1. Criminal conduct.
          2. Serious dereliction from public duty.
        Chapter III, Disposition of Charges sets forth the Special 
    Subcommittee's analysis of the charges that involve activities of 
    Associate Justice William O. Douglas. Under this analysis it is not 
    necessary for the members of the Judiciary Committee to choose 
    between Concept I and II.
        The theories embodied in Concept I have been articulated by 
    Representative Paul N. McCloskey, Jr. In his speech to the House on 
    April 21, 1970, Mr. McCloskey stated:

            The term ``good behavior,'' as the Founding Fathers 
        considered it, must be taken together with the specific 
        provisions limiting cause for impeachment of executive branch 
        personnel to treason, bribery or other high crimes and 
        misdemeanors. The higher standard of good behavior required of 
        judges might well be considered as applicable solely to their 
        judicial performance and capacity and not to their private and 
        nonjudicial conduct unless the same is violative of the law. 
        Alcoholism, arrogance, nonjudicial temperament, and senility of 
        course interfere with judicial performance and properly justify 
        impeachment. I can find no precedent, however, for impeachment 
        of a Judge for nonjudicial conduct which falls short of 
        violation of law.
            In looking to the nine cases of impeachment of Judges 
        spanning 181 years of our national history, in every case 
        involved, the impeachment was based on either improper judicial 
        conduct or non-judicial conduct which was considered as 
        criminal in nature. Cong. Rec. 91st Cong., 2nd Sess., H 3327.

        In his August 18, 1970, letter to the Special Subcommittee 
    embodying his comments on the ``Kelley Memorandum'', Mr. McCloskey 
    reaffirmed this concept. He stated:

            Conduct of a Judge, while it may be less than criminal in 
        nature to constitute ``less than good behavior'', has never 
        resulted in a successful impeachment unless the judge was 
        acting in his judicial capacity or misusing his judicial power. 
        In other words the precedents suggest that misconduct must 
        either be ``judicial misconduct'' or conduct which constitutes 
        a crime. There is no basis for impeachment on charges of non-
        judicial misconduct which occurs off the bench and does not 
        constitute a crime. . . .

     IV. Recommendations of Special Subcommittee to Judiciary Committee

        1. It is not necessary for the members of the Judiciary 
    Committee to take a position on either of the concepts of 
    impeachment that are discussed in Chapter II.
        2. Intensive investigation of the Special Subcommittee has not 
    disclosed creditable evidence that would warrant

[[Page 2014]]

    preparation of charges on any acceptable concept of an impeachable 
    offense.
                          Emanuel Celler,
                          Byron G. Rogers,
                          Jack Brooks.

    The minority views of Mr. Edward Hutchinson, of Michigan, a member 
of the special subcommittee, concluded as follows on the ``concepts of 
impeachment'':

        The report contains a chapter on the Concepts of Impeachment. 
    At the same time, it takes the position that it is unnecessary to 
    choose among the concepts mentioned because it finds no impeachable 
    offense under any. It is evident, therefore, that while a 
    discussion of the theory of impeachment is interesting, it is 
    unnecessary to a resolution of the case as the Subcommittee views 
    it. This chapter on Concepts is nothing more than dicta under the 
    circumstances. Certainly the Subcommittee should not even 
    indirectly narrow the power of the House to impeach through a 
    recitation of two or three theories and a very apparent choice of 
    one over the others, while at the same time asserting that no 
    choice is necessary. The Subcommittee's report adopts the view that 
    a Federal judge cannot be impeached unless he is found to have 
    committed a crime, or a serious indiscretion in his judicially 
    connected activities. Although it is purely dicta, inclusion of 
    this chapter in the report may be mischievous since it might 
    unjustifiably restrict the scope of further investigation.

    Following the submission of the report, further proceedings against 
Justice Douglas were discontinued.(8)
---------------------------------------------------------------------------
 6. See Sec. 14.16 infra.
---------------------------------------------------------------------------

Offenses Committed Prior to Term of Office

Sec. 3.14 The Speaker and the House declined to take any action on a 
    request by the Vice President for an investigation into possible 
    impeachable offenses against him, where the offenses were not 
    related to his term of office as Vice President and where the 
    charges were pending before the courts.

    On Sept. 25, 1973,(7) Speaker Carl Albert, of Oklahoma, 
laid before the House a communication from Vice President Spiro T. 
Agnew requesting that the House investigate offenses charged to the 
Vice President in an investigation being conducted by a U.S. Attorney. 
The alleged offenses related to the Vice President's conduct before he 
became a civil officer under the United States. No action was taken on 
the request.
---------------------------------------------------------------------------
 7. 119 Cong. Rec. 31368, 93d Cong. 1st Sess.
---------------------------------------------------------------------------

    Parliamentarian's Note: The Vice President cited in his letter a 
request made by Vice President John C. Calhoun in 1826 (discussed at 3 
Hinds' Precedents Sec. 1736). On that occasion, the alleged charges 
related to the Vice President's prior service as Secretary of War. The 
communication

[[Page 2015]]

was referred on motion to a select committee which investigated the 
charges and subsequently reported to the House that no impropriety had 
been found in the Vice President's former conduct as a civil officer 
under the United States. The report of the select committee was ordered 
to lie on the table and the House took no further action thereon. The 
Vice President's letter did not cite the Committee on the Judiciary's 
recommendation to the House (discussed in 3 Hinds' Precedents 
Sec. 2510) that conduct of Vice President Colfax allegedly occurring 
prior to his term as Vice President was not grounds for impeachment, 
since not ``an act done or omitted while the officer was in office.'' 
(See Sec. 5.14, infra).


