[Deschler's Precedents, Volume 3, Chapters 10 - 14]
[Chapter 14. Impeachment Powers]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 1939-1943]
 
                               CHAPTER 14
 
                           Impeachment Powers


[[Page 1939]]



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    Commentary and editing by Peter D. Robinson. J.D.
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A. Generally

    Sec. 1. Constitutional Provisions; House and Senate Functions
    Sec. 2. Who May Be Impeached; Effect of Resignation
    Sec. 3. Grounds for Impeachment; Form of Articles
    Sec. 4. Effect of Adjournment

B. Investigation and Impeachment

    Sec. 5. Introduction and Referral of Charges
    Sec. 6. Committee Investigations
    Sec. 7. Committee Consideration; Reports
    Sec. 8. Consideration and Debate in the House
    Sec. 9. Presentation to Senate; Managers
   Sec. 10. Replication; Amending Adopted Articles

C. Trial in the Senate

   Sec. 11. Organization and Rules
   Sec. 12. Conduct of Trial
   Sec. 13. Voting; Deliberation and Judgment

D. History of Proceedings

   Sec. 14. Charges Not Resulting in Impeachment
   Sec. 15. Impeachment Proceedings Against President Nixon
   Sec. 16. Impeachment of Judge English
   Sec. 17. Impeachment of Judge Louderback
   Sec. 18. Impeachment of Judge Ritter

Appendix
                         DESCHLER'S PRECEDENTS

deschler's precedents

Ch. 14

Ch. 14

[[Page 1940]]

                          INDEX TO PRECEDENTS

Adjournment sine die, effect on impeachment proceedings
    authority of managers following expiration of Congress, Sec. 4.2
    impeachment in one Congress and trial in the next, Sec. 4.1
    investigation in one Congress and impeachment in the next, 
        Sec. Sec. 4.3, 4.4
Amending articles of impeachment
    privilege of resolution reported by managers, Sec. 10.5
    procedure, Sec. Sec. 10.4-10.6
    right to amend articles reserved by House, Sec. 10.1
    Senate notified of amendments, Sec. 10.6
Censure as related to impeachment, Sec. 1.3
Charges not resulting in impeachment
    Agnew, Spiro, Vice President, request for investigation not acted 
        upon, Sec. 14.17
    Alschuler, Samuel, judge, adverse report by investigating 
        committee, Sec. 14.7
    committee reports as to discontinuation of impeachment, 
        Sec. Sec. 7.8-7.10
    Douglas, William, Supreme Court Justice, investigation of charges 
        and adverse report, Sec. Sec. 14.14-14.16
    Federal Reserve Board members, charges not acted on, Sec. 14.5
    Hoover, Herbert, President, charges not acted on, Sec. 14.3
    Johnson Albert, judge, charges not acted on, Sec. 14.10
    Lowell, James, judge, adverse report by investigating committee, 
        Sec. 14.4
    Mellon, Andrew, Secretary of the Treasury, investigation 
        discontinued following resignation, Sec. 14.2
    Molyneaux, Joseph, judge, charges not acted on, Sec. 14.6
    Perkins, Frances, Secretary of Labor, adverse report by committee, 
        Sec. 14.9
    Truman, Harry, President, charges not acted on, Sec. Sec. 14.11, 
        14.12
    Watson, Albert, judge, charges not acted on, Sec. 14.10
Committee consideration and report
    broadcast of committee meeting, Sec. 7.3
    order of business, Sec. 7.2
    report submitted without resolution of impeachment, Sec. 7.7
    reports as to discontinuation of impeachment, Sec. Sec. 7.8-7.10
    reports authorizing investigations as privileged, Sec. Sec. 5.8, 
        6.2, 6.3
    reports recommending impeachment, calendaring and printing of, 
        Sec. 7.6
    resolution and articles of impeachment considered together, 
        Sec. 7.1
Committee investigations
    evidence in impeachment inquiry, Sec. Sec. 6.7-6.10
    hearing procedures, Sec. Sec. 6.5, 6.6
    privilege of House as to impeachment evidence, Sec. 6.13
    resolutions authorizing, consideration of, Sec. 6.2
    resolutions authorizing, referral of, Sec. 6.1
    resolutions authorizing, reported by investigating committee, 
        Sec. 6.2
    subcommittee, creation and powers of, Sec. 6.11
    subpenas, failure to comply with, Sec. 6.12
    witnesses, interrogation of, Sec. Sec. 6.3, 6.4
Committee jurisdiction
    Judiciary Committee, over resolutions proposing impeachment, 
        Sec. 5.10
    Rules Committee, over resolutions authorizing investigations, 
        Sec. 5.11

[[Page 1941]]

Consideration and debate
    as to resolution and articles of impeachment, Sec. Sec. 8.5-8.10
    broadcast of proceedings, Sec. 8.11
    control of time for, Sec. 8.1
    division of the question, Sec. 8.10
    motion for previous question, Sec. 8.8
    privilege for consideration of committee reports, Sec. 8.2
    question of consideration, Sec. 5.12
    question of privilege to present charges, Sec. Sec. 5.6, 5.7
    resolution and articles of impeachment considered together, 
        Sec. 8.1
    unanimous-consent agreements governing, Sec. 8.1
    voting, excuse or disqualification from, Sec. 13.4
Courts and the power of impeachment, Sec. Sec. 1.1, 1.2
Dismissal of proceedings in Senate pursuant to House request, Sec. 2.2
English, George, judge, impeachment of
    consideration and debate in House, Sec. 16.2
    impeachment by the House, Sec. Sec. 16.1-16.4
    motion to recommit resolution, Sec. 16.3
    report by investigating committee recommending impeachment, 
        Sec. 16.1
    separate vote on articles, Sec. 16.3
    trial discontinued following resignation of respondent, Sec. 16.4
Grounds for impeachment and form of articles
    cumulative and duplicatory articles, Sec. Sec. 3.3-3.5
    form of resolutions and articles of impeachment, Sec. Sec. 3.1, 3.2
    judges, federal, grounds for impeachment of, Sec. Sec. 3.9-3.13
    offenses not committed during term of office, Sec. 3.14
    President, grounds for impeachment of, Sec. Sec. 3.6-3.8
Judgment
    division of the question, Sec. 13.8
    notification of, to House, Sec. 13.12
    order of, not debatable, Sec. 13.7
    removal from office after conviction, Sec. 13.9
Louderback, Harold, judge, impeachment of
    committee report adverse to impeachment, Sec. 17.1
    consideration in the House and adoption of substitute resolution of 
        impeachment, Sec. Sec. 17.1, 17.2
    continuation of proceedings into next Congress, Sec. 17.4
    election of managers, Sec. 17.3
Managers to conduct trial on part of House
    answer of respondent referred to managers, Sec. 10.2
    appearance in Senate to present articles, Sec. Sec. 9.5, 11.4
    appointed by resolution, Sec. Sec. 9.1, 9.3
    authority of, following expiration of Congress, Sec. 4.2
    authority to prepare and submit replication, Sec. 10.3
    composition and number of, Sec. 9.2
    excused from attending House sessions, Sec. 9.4
    jurisdiction of, over related matters, Sec. Sec. 9.6, 9.7
    powers and funds granted by resolution, Sec. 9.1
    supplemental Senate rules referred to, Sec. 10.2
    withdrawal of, while Senate deliberates, Sec. 13.1
Motions relating to impeachment proposals
    for the previous question, Sec. 8.8

[[Page 1942]]

    to discharge, Sec. 8.3
    to lay on table or to refer, Sec. Sec. 5.12, 5.13
    to recommit, Sec. 8.9
Nixon, Richard M., President, proceedings against
    authority for investigation by Committee on Judiciary, Sec. 15.2
    broadcasting House and Senate proceedings, resolutions authorizing, 
        Sec. Sec. 15.10, 15.11
    confidentiality of inquiry materials, Sec. 15.3
    consideration by committee of articles of impeachment, Sec. 15.7
    consideration by House of articles of impeachment, Sec. 15.12
    evidence in House inquiry, subpenaed by court, Sec. 15.14
    introduction of impeachment charges, Sec. 15.1
    pardon following resignation, Sec. 15.15
    procedures for presenting evidence and examining witnesses, 
        Sec. 15.6
    report of committee, acceptance by House, Sec. 15.13
    report of committee following resignation of President, Sec. 15.13
    reports by inquiry staff, Sec. Sec. 15.4, 15.5
    resignation of President, Sec. 15.13
    Senate review of impeachment trial rules, Sec. 15.8
    Senate select committee, evidence released by, Sec. 15.9
Presentation of articles to Senate
    appearance of managers to present articles, Sec. Sec. 9.5, 11.4
    date for, messaged to House from Senate, Sec. 9.5
    managers authorized to present articles to Senate, Sec. 9.1
Privilege of impeachment propositions
    charges and resolutions directly impeaching, Sec. Sec. 5.1-5.3
    questions incidental to impeachment, Sec. Sec. 5.8, 5.9
Resignation of accused, discontinuance of proceedings, Sec. Sec. 2.1-
    2.3
Ritter, Halsted, judge, impeachment of
    amendment of articles by the House, Sec. Sec. 18.10, 18.11
    answer of respondent, Sec. 18.15
    appearance of respondent before the Senate, Sec. 18.8
    conduct of trial, Sec. 18.16
    consideration of resolution and articles by the House, Sec. 18.4
    conviction of, Sec. 18.17
    deliberation of Senate behind closed doors, Sec. 18.17
    election of managers and their authority, Sec. 18.5
    final arguments, Sec. 18.16
    House notified of order and judgment, Sec. 18.18
    judgment ordered, Sec. 18.17
    motions to strike articles and specifications, Sec. Sec. 18.12-
        18.14
    organization of Senate for trial, Sec. Sec. 18.6, 18.7
    presentation of articles to Senate, Sec. 18.7
    replication to respondent's answer, Sec. 18.15
    report of Judiciary Committee recommending impeachment, Sec. 18.3
Trial in the Senate
    appearance of managers to present articles, Sec. 11.4
    appearance of respondent, Sec. 11.9
    debate on organizational questions, Sec. 11.11
    deliberation behind closed doors, Sec. 13.1
    House notified of order and judgment, Sec. 13.12

[[Page 1943]]

    oath and organization, Sec. Sec. 11.5, 11.6
    opinions of individual Senators, filing of, Sec. 13.11
    presiding officer, appointment of, Sec. 11.12
    privileges of Senate floor during, Sec. 11.13
Trial procedure
    evidence, presiding officer rules on admissibility of, Sec. 12.7
    evidence returned at close of trial, Sec. 12.9
    exhibits offered in evidence, Sec. 12.8
    final arguments, Sec. 12.12
    motions to strike articles, Sec. Sec. 12.2-12.4
    opening arguments, Sec. 12.1
    rules for trial, nature and amendment of, Sec. Sec. 11.1-11.3
    supplemental rules to govern, Sec. Sec. 11.7, 11.8
    suspension of trial for messages and legislative business, 
        Sec. Sec. 12.5, 12.6
    witness, respondent as, Sec. 12.11
Voting on conviction and judgment
    excuse or disqualification from, Sec. 13.4
    majority vote for judgment of disqualification, Sec. 13.10
    on removal following conviction, Sec. 13.9
    orders governing, Sec. 13.2
    pairs not recognized, Sec. 13.3
    points of order against vote on conviction, Sec. Sec. 13.5, 13.6
    putting the question, Sec. 13.2
    two-thirds vote required for conviction Sec. 13.5

[[Page 1945]]



 
                               CHAPTER 14
 
                           Impeachment Powers
 
                              A. GENERALLY
 
Sec. 1. Constitutional Provisions; House and Senate Functions



    The impeachment power is delineated and circumscribed by several 
provisions of the U.S. Constitution. They state:

        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. Article II, Section 4.
        . . . and [the House of Representatives] shall have the sole 
    Power of Impeachment. Article I, Section 2, clause 5.
        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 I, Section 3, clause 6.
        Judgment in Cases of Impeachment shall not extend further than 
    to removal from Office, and disqualification to hold and enjoy any 
    Office of honor, Trust or Profit under the United States: but the 
    Party convicted shall nevertheless be liable and subject to 
    Indictment, Trial, Judgment and Punishment, according to Law. 
    Article I, Section 3, clause 7.

    Two other sections of the U.S. Constitution also mention 
impeachment:

        The President . . . shall have Power to grant Reprieves and 
    Pardons for Offences against the United States, except in Cases of 
    Impeachment. Article II, section 2, clause 1.
        The Trial of all Crimes, except in Cases of Impeachment, shall 
    be by Jury. . . . Article III, section 2, clause 3.

    Since the First Congress of the United States, the House of 
Representatives has impeached 13 officers of the United States, of whom 
10 were federal judges, one was a cabinet officer, one a U.S. Senator, 
and one the President of the United States.
    Conviction has been voted by the Senate in four cases, all 
involving federal judges. The judges so convicted were John Pickering 
in 1804, West H. Humphreys in 1862, Robert W. Archbald in 1912, and 
Halsted L. Ritter in 1936.
    On numerous other occasions, the impeachment process has

[[Page 1946]]

been initiated in the House as to civil officers and judges but has not 
resulted in consideration by the House of a report recommending 
impeachment. In the two most recent cases where investigations have 
been conducted by the Committee on the Judiciary and its subcommittees, 
in relation to Supreme Court Associate Justice William O. Douglas in 
1970 and in relation to President Richard M. Nixon in 1974, the 
proceedings have occasioned intense congressional and national debate 
as to the scope of the impeachment power, the grounds for impeachment 
and for conviction, the analogy if any between the impeachment process 
and the judicial criminal process, and the amenability of the 
impeachment process to judicial review.
    It should be noted at this point that of the four judges convicted 
and removed from office, none has directly sought to challenge through 
the judicial process his impeachment by the House and conviction by the 
Senate. Judge Halsted L. Ritter, convicted by the Senate in 1936, 
indirectly challenged his conviction by filing suit for back salary in 
the U.S. Court of Claims, where he alleged that the Senate had tried 
him on grounds not constituting impeachable offenses under the 
Constitution. The Court of Claims dismissed the claim for want of 
jurisdiction, holding that the Senate's power to try impeachments was 
exclusive under the Constitution. The court cited the Supreme Court 
case of Mississippi v Johnson, wherein Chief Justice Samuel Chase had 
stated in dictum that the impeachment process was not subject to 
judicial review.(1) The Court of Claims opinion read in 
part:
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 1. Ritter v United States, 84 Ct. Cls. 293 (1936), cert. denied, 300 
        U.S. 668 (1937), citing Mississippi v Johnson, 71 U.S. (4 
        Wall.) 475, 501 (1867).
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        While the Senate in one sense acts as a court on the trial of 
    an impeachment, it is essentially a political body and in its 
    actions is influenced by the views of its members on the public 
    welfare. The courts, on the other hand, are expected to render 
    their decisions according to the law regardless of the 
    consequences. This must have been realized by the members of the 
    Constitutional Convention and in rejecting proposals to have 
    impeachments tried by a court composed of regularly appointed 
    judges we think it avoided the possibility of unseemly conflicts 
    between a political body such as the Senate and the judicial 
    tribunals which might determine the case on different 
    principles.(2)
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 2. Ritter v United States, 84 Ct. Cls. 293, 300 (1936).
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                            Cross References
Discussions of the impeachment process generally, see Sec. Sec. 3.6-
    3.14 and appendix, infra.

[[Page 1947]]

High privilege of impeachment propositions, see Sec. Sec. 5, 8, infra.
Pardon of officer who has resigned before his impeachment by the House, 
    see Sec. 15.15. infra.

                         Collateral References
For early precedents on the impeachment power and process, see the 
    following chapters in Hinds' Precedents: Ch. 63 (Nature of 
    Impeachment); Ch. 64 (Function of the House in Impeachment); Ch. 65 
    (Function of the Senate in Impeachment); Ch. 66 (Procedure of the 
    Senate in Impeachment); Ch. 67 (Conduct of Impeachment Trials); Ch. 
    68 (Presentation of Testimony in an Impeachment Trial); Ch. 69 
    (Rules of Evidence in an Impeachment Trial); Ch. 70 (Impeachment 
    and Trial of William Blount); Ch. 71 (Impeachment and Trial of John 
    Pickering); Ch. 72 (Impeachment and Trial of Samuel Chase); Ch. 73 
    (Impeachment and Trial of James H. Peck); Ch. 74 (Impeachment and 
    Trial of West H. Humphreys); Ch. 75 (First Attempts to Impeach the 
    President); Ch. 76 (Impeachment and Trial of President Andrew 
    Johnson); Ch. 77 (Impeachment and Trial of William W. Belknap); Ch. 
    78 (Impeachment and Trial of Charles Swayne); Ch. 79 (Impeachment 
    Proceedings not Resulting in Trial).

        See also the following chapters in Cannon's Precedents: Ch. 193 
    (Nature of Impeachment); Ch. 194 (Function of the House in 
    Impeachment); Ch. 195 (Function of the Senate in Impeachment); Ch. 
    196 (Procedure of the Senate in Impeachment); Ch. 197 (Conduct of 
    Impeachment Trials); Ch. 198 (Presentation of Testimony in an 
    Impeachment Trial); Ch. 199 (Rules of Evidence in an Impeachment 
    Trial); Ch. 200 (Impeachment and Trial of Robert W. Archbald); Ch. 
    201 (Impeachment and Trial of Harold Louderback); Ch. 202 
    (Impeachment Proceedings not Resulting in Trial).
The impeachment power under parliamentary law, see House Rules and 
    Manual Sec. Sec. 601-620 (Jefferson's Manual) (1973).
Impeachment, Selected Materials, Committee on the Judiciary, H. Doc. 
    No. 93-7, 93d Cong. 1st Sess., Oct. 1973 (constitutional provisions 
    and historical precedents and debate).
Impeachment, Selected Materials on Procedure, Committee on the 
    Judiciary, Committee Print, 93d Cong. 2d Sess., Jan. 1974 (relevant 
    extracts from Hinds' and Cannon's Precedents of the House of 
    Representatives).                          -------------------

Impeachment and the Federal Courts

Sec. 1.1 The Speaker laid before the House a communication from the 
    Clerk, informing the House of the receipt of a summons and 
    complaint naming the House as a defendant in a civil action, 
    instituted in a U.S. District Court, seeking to enjoin impeachment 
    proceedings pending in the House.

    On May 28, 1974, Speaker Carl Albert, of Oklahoma, laid before the 
House a communication from the Clerk, advising of his receipt

[[Page 1948]]

of a summons and complaint issued by the U.S. District Court for the 
Eastern District of Virginia, in connection with Civil Action No. 74-
54-NN, The National Citizens' Committee for Fairness to the President v 
United States House of Representatives.(3)
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 3. 120 Cong. Rec. 16496, 93d Cong. 2d Sess.
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    Parliamentarian's Note: The plaintiff in this action sought to 
enjoin the impeachment proceedings pending in the House against 
President Richard M. Nixon. The Clerk did not request representation by 
the appropriate U.S. Attorney, under 2 USC Sec. 118, because the House 
has the sole power of impeachment under the U.S. Constitution and 
because of the application of the doctrine under the Constitution of 
the separation of powers of the executive, legislative, and judicial 
branches of government.

Sec. 1.2 Where a federal court subpenaed in a criminal case certain 
    evidence gathered by the Committee on the Judiciary in an 
    impeachment inquiry, the House adopted a resolution granting such 
    limited access to the evidence, except executive session materials, 
    as would not violate the privileges of the House or its sole power 
    of impeachment under the U.S. Constitution.

    On Aug. 22, 1974,(4) Speaker Carl Albert, of Oklahoma, 
laid before the House certain subpenas issued by a U.S. District Court 
in a criminal case, requesting certain evidence gathered by the 
Committee on the Judiciary and its subcommittee on impeachment, in the 
inquiry into the conduct of President Richard Nixon. The House adopted 
House Resolution 1341, which granted such limited access to the 
evidence as would not violate the privileges or constitutional powers 
of the House. The resolution read as follows:
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 4. 120 Cong. Rec. 30026, 93d Cong. 2d Sess.
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                                H. Res. 1341

        Whereas in the case of United States of America against John N. 
    Mitchell et al. (Criminal Case No. 74-110), pending in the United 
    States District Court for the District of Columbia, subpenas duces 
    tecum were issued by the said court and addressed to Representative 
    Peter W. Rodino, United States House of Representatives, and to 
    John Doar, Chief Counsel, House Judicial Subcommittee on 
    Impeachment, House of Representatives, directing them to appear as 
    witnesses before said court at 10:00 antemeridian on the 9th day of 
    September, 1974, and to bring with them certain and sundry papers 
    in the possession and under the control of the

[[Page 1949]]

    House of Representatives: Therefore be it
        Resolved, That by the privileges of this House no evidence of a 
    documentary character under the control and in the possession of 
    the House of Representatives can, by the mandate of process of the 
    ordinary courts of justice, be taken from such control or 
    possession but by its permission; be it further
        Resolved, That the House of Representatives under Article I, 
    Section 2 of the Constitution has the sole power of impeachment and 
    has the sole power to investigate and gather evidence to determine 
    whether the House of Representatives shall exercise its 
    constitutional power of impeachment; be it further
        Resolved, That when it appears by the order of the court or of 
    the judge thereof, or of any legal officer charged with the 
    administration of the orders of such court or judge, that 
    documentary evidence in the possession and under the control of the 
    House is needful for use in any court of justice, or before any 
    judge or such legal officer, for the promotion of justice, this 
    House will take such action thereon as will promote the ends of 
    justice consistently with the privileges and rights of this House; 
    be it further
        Resolved, That when said court determines upon the materiality 
    and the relevancy of the papers and documents called for in the 
    subpenas duces tecum, then the said court, through any of its 
    officers or agents, have full permission to attend with all proper 
    parties to the proceeding and then always at any place under the 
    orders and control of this House and take copies of all memoranda 
    and notes, in the files of the Committee on the Judiciary, of 
    interviews with those persons who subsequently appeared as 
    witnesses in the proceedings before the full Committee pursuant to 
    House Resolution 803, such limited access in this instance not 
    being an interference with the Constitutional impeachment power of 
    the House, and the Clerk of the House is authorized to supply 
    certified copies of such documents and papers in possession or 
    control of the House of Representatives that the court has found to 
    be material and relevant (except that under no circumstances shall 
    any minutes or transcripts of executive sessions, or any evidence 
    of witnesses in respect thereto, be disclosed or copied) and which 
    the court or other proper officer thereof shall desire, so as, 
    however, the possession of said papers, documents, and records by 
    the House of Representatives shall not be disturbed, or the same 
    shall not be removed from their place of file or custody under any 
    Members, officer, or employee of the House of Representatives; and 
    be it further
        Resolved, That a copy of these resolutions be transmitted to 
    the said court as a respectful answer to the subpenas 
    aforementioned.

Censure of Federal Civil Officers

Sec. 1.3 In the 72d Congress, the House amended a resolution abating 
    impeachment proceedings against a federal judge where the committee 
    report censured him for improper conduct, and voted to

[[Page 1950]]

    impeach him by adopting the resolution as amended.

    On Feb. 24, 1933, a resolution (H. Res. 387) was called up by Mr. 
Thomas D. McKeown, of Oklahoma, at the direction of the Committee on 
the Judiciary; the resolution stated that the evidence against U.S. 
District Court Judge Harold Louderback did not warrant impeachment. The 
committee report (H. Rept. No. 2065), censured the judge as follows:

        The committee censures the judge for conduct prejudicial to the 
    dignity of the judiciary in appointing incompetent receivers, for 
    the method of selecting receivers, for allowing fees that seem 
    excessive, and for a high degree of indifference to the interest of 
    litigants in receiverships.(5)
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 5. 76 Cong. Rec. 4913, 4914, 72d Cong. 2d Sess. See, generally, 6 
        Cannon's Precedents Sec. 514, and Sec. Sec. 17.1, 17.2, infra.
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    The House rejected the recommendation of the committee by adopting 
an amendment in the nature of a substitute impeaching the judge for 
misdemeanors in office. During debate on the resolution, Mr. Earl C. 
Michener, of Michigan, addressed remarks to the power of censure in 
relation to civil officers under the United States:

        Mr. Michener: Mr. Speaker, in answer to the gentleman from 
    Alabama, let me make this observation. The purpose of referring a 
    matter of this kind to the Committee on the Judiciary is to 
    determine whether or not in the opinion of the Committee on the 
    Judiciary there is sufficient evidence to warrant impeachment by 
    the House. If the Committee on the Judiciary finds those facts 
    exist, then the Committee on the Judiciary makes a report to the 
    House recommending impeachment, and that undoubtedly is privileged. 
    However, a custom has grown up recently in the Committee on the 
    Judiciary of including in the report a censure. I do not believe 
    that the constitutional power of impeachment includes censure. We 
    have but one duty, and that is to impeach or not to impeach. Today 
    we find a committee report censuring the judge. The resolution 
    before the House presented by a majority of the committee is 
    against impeachment. The minority members have filed a minority 
    report, recommending impeachment. I am making this observation with 
    the hope that we may get back to the constitutional power of 
    impeachment.

    Parliamentarian's Note: On several past occasions, the resolution 
reported to the House by the committee investigating impeachment has 
proposed the censure of the officer involved.(6) Such resolu
---------------------------------------------------------------------------
 6. See, for example, 3 Hinds' Precedents Sec. Sec. 2519, 2520.
            When a subcommittee report recommended against the 
        impeachment of Associate Judge William O. Douglas in the 91st 
        Congress, the minority views of Mr. Edward Hutchinson (Mich.) 
        indicated the view that Justice Douglas could have been 
        censured or officially rebuked for misconduct by the House (see 
        Sec. 14.16, infra).
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[[Page 1951]]

tions were not submitted as privileged and were not considered by the 
House. Although censure of a Member by the House is a privileged 
matter,(7) censure of an executive official has not been 
held privileged for consideration by the House and has on occasion been 
held improper.(8)

---------------------------------------------------------------------------
 7. See 3 Hinds' Precedents Sec. Sec. 2649-2651.
            Members of the House are not subject to impeachment under 
        the Constitution (see Sec. 2, infra) but are subject to 
        punishment for disorderly behavior. See U.S. Const. art. I, 
        Sec. 5, clause 2.
 8. See 2 Hinds' Precedents Sec. Sec. 1569-1572.
            The issue whether a proposition to censure a federal civil 
        officer would be germane to a proposition for his impeachment 
        has not arisen, but it is not in order to amend a pending 
        privileged resolution by adding or substituting a matter not 
        privileged and not germane to the original proposition. 5 
        Hinds' Precedents Sec. 5810.
            See 6 Cannon's Precedents Sec. 236 for the ruling that a 
        proposition to censure a Member of the House is not germane to 
        a proposition for his expulsion. Speaker Frederick H. Gillett 
        (Mass.) ruled in that instance that although censure and 
        expulsion of a Member were both privileged propositions, they 
        were ``intrinsically'' different.
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                               CHAPTER 14
 
                           Impeachment Powers
 
                              A. GENERALLY
 
Sec. 2. Who May Be Impeached; Effect of Resignation

    Article II, section 4 of the U.S. Constitution subjects the 
President, Vice President, and all civil officers of the United States 
to impeachment, conviction, and removal from office. It has been 
settled that a private citizen is not subject to the impeachment 
process except for offenses committed while a civil officer under the 
United States.(9)
---------------------------------------------------------------------------
 9. 3 Hinds' Precedents Sec. Sec. 2315, 2007.
            A commissioner of the District of Columbia was held not to 
        be a civil officer subject to impeachment under the 
        Constitution. 6 Cannon's Precedents Sec. 548.
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    In one case, it was determined by the Senate that a U.S. Senator 
(William Blount [Tenn.]) was not a civil officer under article II, 
section 4, and the Senate disclaimed jurisdiction to try 
him.(10)
---------------------------------------------------------------------------
10. 3 Hinds' Precedents Sec. Sec. 2310, 2316.
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    In view of the fact that the Constitution provides not only for 
automatic removal of an officer upon impeachment and conviction, but 
also for the disqualification from holding further office under the 
United States (art. I, Sec. 3, clause 7), the House and Senate have 
affirmed their respective power to impeach and try an accused who has 
resigned.(11)
---------------------------------------------------------------------------
11. The question whether the House may impeach a civil officer who has 
        resigned is a constitutional issue for the House and not the 
        Chair to decide (see Sec. 2.4, infra).

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

[[Page 1952]]

    The latter question first arose in the Blount case, where the 
Senate expelled Senator Blount after his impeachment by the House but 
before articles had been drafted and before his trial in the Senate had 
begun. The House proceeded to adopt articles, and it was conceded in 
the Senate that a person impeached could not escape punishment by 
resignation; the Senate decided that it had no jurisdiction, however, 
to try the former Senator since he had not been a civil officer for 
purposes of impeachment.(12)
---------------------------------------------------------------------------
12. 3 Hinds' Precedents Sec. Sec. 2317, 2318.
---------------------------------------------------------------------------

    William W. Belknap, Secretary of War, resigned from office before 
his impeachment by the House and before his trial in the Senate. The 
House and Senate debated the power of impeachment at length and 
determined that the former Secretary was amenable to impeachment and 
trial; at the conclusion of trial the respondent was acquitted of all 
charges by the Senate.(13)
---------------------------------------------------------------------------
13. 3 Hinds' Precedents Sec. Sec. 2007, 2467.
---------------------------------------------------------------------------

                            Cross References
Members of Congress not subject to impeachment but to punishment, 
    censure, or expulsion, see Ch. 12, supra.
Powers of the House as related to the executive generally, see Ch. 13, 
    supra.                          -------------------

Impeachment Proceedings Following Resignation

Sec. 2.1 President Richard Nixon having resigned following the decision 
    of the Committee on the Judiciary to report to the House 
    recommending his impeachment, the report without an accompanying 
    resolution of impeachment was submitted to the House, and further 
    proceedings were discontinued.

    On Aug. 20, 1974, Peter W. Rodino, Jr., of New Jersey, Chairman of 
the Committee on the Judiciary, submitted a privileged report (H. Rept. 
No. 93-1305) recommending the impeachment of President Nixon, following 
a full investigation by the committee, and after its consideration and 
adoption of articles of impeachment.
    The committee had previously (in July 1974) decided to recommend 
articles of impeachment against President Nixon. The President resigned 
his office shortly thereafter--on Aug. 9, 1974--by submitting his 
written resignation to the office of the Secretary of State. 
(14)
---------------------------------------------------------------------------
14. 3 USC Sec. 20 provides that the only evidence of the resignation of 
        the office of the President of the United States shall be an 
        instrument in writing, signed, and delivered into the office of 
        the Secretary of State.

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

[[Page 1953]]

    Upon submission of the report of the Committee on the Judiciary, 
Speaker Carl Albert, of Oklahoma, ordered it referred to the House 
Calendar. No separate accompanying resolution of impeachment was 
reported to the House.
    The House adopted without debate a resolution (H. Res. 1333), 
offered by Mr. Thomas P. O'Neill, Jr., of Massachusetts, under 
suspension of the rules on Aug. 20, accepting the report. No further 
action was taken on the proposed impeachment of the President. 
(15)
---------------------------------------------------------------------------
15. 120 Cong. Rec. 29361, 29362, 93d Cong. 2d Sess. For the text of H. 
        Res. 1333 and the events surrounding its adoption, see 
        Sec. 15.13, infra.
            For a memorandum prepared for Senate Majority Leader 
        Michael J. Mansfield (Mont.) and inserted in the Record, 
        concluding that Congress could impeach and try the President 
        after he had resigned, see 120 Cong. Rec. 31346-48, 93d Cong. 
        2d Sess., Sept. 17, 1974.
---------------------------------------------------------------------------

Sec. 2.2 A federal judge having resigned from the bench pending his 
    impeachment trial in the Senate, the House adopted a resolution 
    instructing the managers to advise the Senate that the House 
    declined to further prosecute charges of impeachment, and the 
    Senate dismissed the impeachment proceedings.

    On Dec. 11, 1926, the House adopted the following resolution in 
relation to the impeachment proceedings against Judge George W. 
English:

        Resolved, That the managers on the part of the House of 
    Representatives in the impeachment proceedings now pending in the 
    Senate against George W. English, late judge of the District Court 
    of the United States for the Eastern District of Illinois, be 
    instructed to appear before the Senate, sitting as a court of 
    impeachment in said cause, and advise the Senate that in 
    consideration of the fact that said George W. English is no longer 
    a civil officer of the United States, having ceased to be a 
    district judge of the United States for the eastern district of 
    Illinois, the House of Representatives does not desire further to 
    urge the articles of impeachment heretofore filed in the Senate 
    against said George W. English.(16)
---------------------------------------------------------------------------
16. 68 Cong. Rec. 297, 69th Cong. 2d Sess.
---------------------------------------------------------------------------

    On Dec. 13, 1926, the Senate adjourned sine die as a court of 
impeachment after agreeing to the following order, which was messaged 
to the House:

        Ordered, That the impeachment proceedings against George W. 
    English, late judge of the District Court of the United States for 
    the Eastern District of Illinois, be and the same are, duly 
    dismissed.(17)
---------------------------------------------------------------------------
17. Id. at p. 344.

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

[[Page 1954]]

Sec. 2.3 The House discontinued further investigation and proceedings 
    of impeachment against a cabinet official who had resigned his 
    post, after his nomination and confirmation to hold another 
    governmental position.

    On Feb. 13, 1932, the House adopted House Resolution 143 offered by 
Hatton W. Sumners, of Texas, Chairman of the Committee on the 
Judiciary. The resolution, which discontinued certain impeachment 
proceedings due to resignation of the officer charged, read as follows:

        Whereas Hon. Wright Patman, Member of the House of 
    Representatives, filed certain impeachment charges against Hon. 
    Andrew W. Mellon, Secretary of the Treasury, which were referred to 
    this committee; and
        Whereas pending the investigation of said charges by said 
    committee, and before said investigation had been completed, the 
    said Hon. Andrew W. Mellon was nominated by the President of the 
    United States for the post of ambassador to the Court of St. James 
    and the said nomination was duly confirmed by the United States 
    Senate pursuant to law, and the said Andrew W. Mellon has resigned 
    the position of Secretary of the Treasury: Be it
        Resolved by this committee, That the further consideration of 
    the said charges made against the said Andrew W. Mellon, as 
    Secretary of the Treasury, be, and the same are hereby, 
    discontinued.

                               Minority Views

        We cannot join in the majority views and findings. While we 
    concur in the conclusions of the majority that section 243 of the 
    Revised Statutes, upon which the proceedings herein were based, 
    provides for action in the nature of an ouster proceeding, it is 
    our view that the Hon. Andrew W. Mellon, the former Secretary of 
    the Treasury, having removed himself from that office, no useful 
    purpose would be served by continuing the investigation of the 
    charges filed by the Hon. Wright Patman. We desire to stress that 
    the action of the undersigned is based on that reason alone, 
    particularly when the prohibition contained in said section 243 is 
    not applicable to the office now held by Mr. Mellon.(18)
---------------------------------------------------------------------------
18. 75 Cong. Rec. 3850, 72d Cong. 1st Sess.
---------------------------------------------------------------------------
                    Fiorello H. LaGuardia.
                    Gordon Browning.
                    M. C. Tarver.
                    Francis B. Condon.

Sec. 2.4 Where a point of order was raised that a resolution of 
    impeachment was not privileged because it called for the 
    impeachment of persons no longer civil officers under the United 
    States, the Speaker stated that the question was a constitutional 
    issue for the House and not the Chair to decide.

    On May 23, 1933, Mr. Louis T. McFadden, of Pennsylvania, rose to a 
question of constitutional

[[Page 1955]]

privilege and offered a resolution (H. Res. 158) impeaching numerous 
members and former members of the Federal Reserve Board. During the 
reading of the resolution, a point of order against it was raised by 
Mr. Carl E. Mapes, of Michigan:

        I wish to submit the question to the Speaker as to whether or 
    not a person who is not now in office is subject to impeachment? 
    This resolution of the gentleman from Pennsylvania refers to 
    several people who are no longer holding any public office. They 
    are not now at least civil officers. The Constitution provides that 
    the ``President, Vice President, and all civil officers shall be 
    removed from office on impeachment'', and so forth. I have had no 
    opportunity to examine the precedents since this matter came up, 
    but it occurs to me that the resolution takes in too much territory 
    to make it privileged.

    Speaker Henry T. Rainey, of Illinois, ruled as follows:

        That is a constitutional question which the Chair cannot pass 
    upon, but should be passed upon by the House.

    The resolution was referred on motion to the Committee on the 
Judiciary.(19)
---------------------------------------------------------------------------
19. 77 Cong. Rec. 4055, 73d Cong. 1st Sess.
---------------------------------------------------------------------------



 
                               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).



 
                               CHAPTER 14
 
                           Impeachment Powers
 
                              A. GENERALLY
 
Sec. 4. Effect of Adjournment

    Under parliamentary law, as stated in Jefferson's Manual, ``an 
impeachment is not discontinued by the dissolution of Parliament, but 
may be resumed by the new Parliament.'' (8) Both Judge John 
Pickering and Judge Harold Louderback were impeached by the House in 
one Congress and tried by the Senate in the next.(9) The 
practice at the time of the Pickering impeachment was to present a 
resolution of impeachment to the Senate and then to prepare and adopt 
articles of impeachment for presentation to the Senate. In that case, 
impeachment proceedings begun in the 7th Congress were resumed by the 
House in the 8th Congress.(10)
---------------------------------------------------------------------------
 8. House Rules and Manual Sec. 620 (Jefferson's Manual) (1973).
 9. See 3 Hinds' Precedents Sec. Sec. 2319, 2320, for the presentation 
        of the resolution impeaching Judge Pickering, and Sec. 4.1, 
        infra, for the presentation to the Senate of the resolution 
        impeaching Judge Louderback.
10. See 3 Hinds' Precedents Sec. 2321. For the later practice of 
        presenting to the Senate a resolution together with articles of 
        impeachment, see Sec. 8.1, infra.
---------------------------------------------------------------------------

    The question arose in the 73d Congress whether the appointment in 
the 72d Congress of House managers to conduct impeachment proceedings 
against Judge Louderback was such as to permit them to act in that 
function in the 73d Congress without a further grant of authority. The 
House adopted in the 73d Congress a resolution filling vacancies, 
making reappointments, and vesting the managers with powers and 
granting them funds.(11)
---------------------------------------------------------------------------
11. See Sec. 4.2, infra.
---------------------------------------------------------------------------

    In the case of Judge Halsted L. Ritter, the House authorized and 
the Committee on the Judiciary conducted an impeachment investigation 
in the 73d Congress, with

[[Page 2016]]

the resolution and articles of impeachment being reported and adopted 
in the 74th Congress. Charges of impeachment were offered and referred 
anew to the Committee on the Judiciary in the 74th Congress, but the 
resolution reported and adopted by the House specifically referred to 
the evidence gathered during the 73d Congress as the basis for 
impeachment.(12)
---------------------------------------------------------------------------
12. See Sec. Sec. 4.3, 4.4, infra.
---------------------------------------------------------------------------

                            Cross References
Adjournments generally and their effect on business, see Ch. 40, infra.
Resumption of business in a new Congress, see Ch. 1, supra.
Resumption of committee investigation into conduct of Judge Ritter, see 
    Sec. 18, infra.
Resumption of proceedings against Judge Louderback in succeeding 
    Congress, see Sec. 17, 
    infra.                          -------------------

Impeachment in One Congress and Trial in the Next

Sec. 4.1 The managers on the part of the House presented articles of 
    impeachment against Judge Harold Louderback on the final day of the 
    72d Congress, and the Senate organized for and conducted the trial 
    in the 73d Congress.

    On Mar. 3, 1933, the last day of the 72d Congress, the managers on 
the part of the House in the Louderback impeachment proceeding appeared 
before the Senate and read the resolution and articles of impeachment. 
The Senate adopted a motion that the proceedings be made a special 
order of business on the first day of the first session of the 73d 
Congress.(13)
---------------------------------------------------------------------------
13. 6 Cannon's Precedents Sec. 515.
---------------------------------------------------------------------------

    The only other occasion where impeachment proceedings continued 
into a new Congress occurred in 1803-04, the resolution of impeachment 
of Judge John Pickering being carried to the Senate by a House 
committee of two members on Mar. 3, 1803, the final day of the 7th 
Congress. The Senate organized for and conducted the trial in the 8th 
Congress.(14)
---------------------------------------------------------------------------
14. 3 Hinds' Precedents Sec. Sec. 2319, 2320. Managers had not been 
        appointed nor articles considered in the House by the end of 
        the 7th Congress.
---------------------------------------------------------------------------

    It should be noted that in neither the Louderback nor Pickering 
impeachments did the trial in the Senate begin before the adjournment 
sine die of the Congress. The issue whether the Senate could conduct a 
bifurcated trial, part in one Congress and part in the next, has not 
been presented.(15)
---------------------------------------------------------------------------
15. For a memorandum as to whether an impeachment trial begun in one 
        Congress could be continued into the next, see 120 Cong. Rec. 
        31346-48, 93d Cong. 2d Sess., Sept. 17, 1974 (insertion by 
        Michael J. Mansfield [Mont.], Majority Leader of the Senate).
            Under parliamentary law, an impeachment is not discontinued 
        by the dissolution of Parliament but may be resumed by the new 
        Parliament. See House Rules and Manual Sec. 620 (Jefferson's 
        Manual) (1973).

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

[[Page 2017]]

Authority of Managers Following Expiration of Congress

Sec. 4.2 Where the House had impeached Judge Louderback in the 72d 
    Congress but the Senate did not organize for or conduct the trial 
    until the 73d Congress, the House in the 73d Congress adopted 
    resolutions (1) appointing Members to fill vacancies for managers 
    not re-elected and reappointing managers elected in the 72d 
    Congress and (2) granting the managers powers and funds.

    On Mar. 9, 1933, the first day of the 73d Congress, the Senate 
sitting as a Court of Impeachment for the trial of Judge Harold 
Louderback met at 2 p.m., articles of impeachment having been presented 
in the Senate on the last day of the 72d Congress. On Mar. 13, the 
managers on the part of the House, being those Members appointed in the 
72d Congress to conduct the inquiry and re-elected to the 73d Congress, 
appeared for the proceedings of the Senate sitting as a Court of 
Impeachment.(16)
---------------------------------------------------------------------------
16. 6 Cannon's Precedents Sec. 516.
---------------------------------------------------------------------------

    On Mar. 22, the House adopted a resolution electing successors for 
those managers elected in the 72d Congress who were no longer Members 
of the House, and reappointing the former managers. The House discussed 
the power of the House to appoint managers to continue in office in 
that capacity after the expiration of the term to which elected to the 
House.(17)
---------------------------------------------------------------------------
17. 6 Cannon's Precedents Sec. 517.
---------------------------------------------------------------------------

Investigation in One Congress and Impeachment in the Next

Sec. 4.3 The Committee on the Judiciary determined in the 74th Congress 
    that its authority to report out a resolution impeaching a federal 
    judge expired with the termination of the Congress in which the 
    resolution containing charges was introduced and referred to the 
    committee.

    On Mar. 2, 1936, in the 74th Congress, the House was considering a 
resolution and articles of

[[Page 2018]]

impeachment, reported by the Committee on the Judiciary, against Judge 
Halsted L. Ritter, an investigation of his conduct having been made in 
the 73d Congress. Mr. William V. Gregory, of Kentucky, a member of the 
committee, remarked on the effect, in the 74th Congress, of an 
authorizing resolution passed in the 73d Congress: (18)
---------------------------------------------------------------------------
18. 80 Cong. Rec. 3089, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. Gregory: Mr. Speaker, in view of the statement made by the 
    gentleman from Florida [Mr. Wilcox], and more recently by the 
    gentleman from New York [Mr. Hancock], with reference to what 
    happened in committee, I think it proper I should make a statement 
    at this time.
        The first proceedings in this matter were instituted in the 
    Seventy-third Congress. A simple resolution of investigation was 
    introduced by the gentleman from Florida [Mr. Wilcox]. No one 
    during that session of Congress attempted by resolution or upon his 
    own authority on the floor of the House to prefer impeachment 
    charges against the judge. The Seventy-third Congress died, and the 
    gentleman from Florida [Mr. Green] came before the Seventy-fourth 
    Congress and wanted some action taken upon the resolution which had 
    been introduced in the Seventy-third Congress. I took the position 
    before the Committee--and I think others agreed with me--that with 
    the passing of the Seventy-third Congress it had no power over the 
    resolution of investigation which had been introduced any more than 
    it did in connection with any other bill or resolution that might 
    have been introduced in a previous Congress. Therefore, when the 
    question came up as to voting impeachment charges upon a resolution 
    which was introduced in the Seventy-third Congress, I voted against 
    such action, and I think other Members voted the same way. But when 
    the matter was properly presented at this session of Congress and 
    impeachment charges were made on this floor on the responsibility 
    of the gentleman from Florida [Mr. Green], the matter came before 
    the committee again in regular and proper form, and I then voted to 
    report out this resolution of impeachment.
        I want the Members of the House to understand that the 
    Committee on the Judiciary has not changed its position on this 
    proposition at any time. These are the facts.

Sec. 4.4 Where the Committee on the Judiciary investigated charges of 
    impeachable offenses against a federal judge in one Congress and 
    reported to the House a resolution of impeachment in the next, the 
    resolution indicated that impeachment was warranted by the evidence 
    gathered in the investigation conducted in the preceding Congress.

    On Feb. 20, 1936, the Committee on the Judiciary submitted a 
privileged report (H. Rept. No. 74-2025) on the impeachment of

[[Page 2019]]

District Judge Halsted L. Ritter to the House. The report and the 
accompanying resolution recited that the evidence taken by the 
Committee on the Judiciary in the prior Congress, the 73d Congress, 
pursuant to authorizing resolution, sustained articles of impeachment 
(the charges of impeachable offenses had been presented anew in the 
74th Congress and referred to the committee):

        The Committee on the Judiciary, having had under consideration 
    charges of official misconduct against Halsted L. Ritter, a 
    district judge of the United States for the Southern District of 
    Florida, and having taken testimony with regard to the official 
    conduct of said judge under the authority of House Resolution 163 
    of the Seventy-third Congress, report the accompanying resolution 
    of impeachment and articles of impeachment against Halsted L. 
    Ritter to the House of Representatives with the recommendation that 
    the same be adopted by the House and presented to the Senate.

              [H. Res. 422, 74th Cong., 2d sess. (Rept. No. 2025)]

                                 Resolution

        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 House 
    Resolution 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: . . .(19)
---------------------------------------------------------------------------
19. 80 Cong. Rec. 2528, 74th Cong. 2d Sess. (report submitted); 80 
        Cong. Rec. 3066, 74th Cong. 2d Sess., Mar. 2, 1936 (report 
        considered in the House).
            For detailed discussion of committee consideration and 
        report in the Ritter impeachment proceedings, see 
        Sec. Sec. 18.1-18.4, infra.
---------------------------------------------------------------------------

    Parliamentarian's Note: No resolution was adopted in the 74th 
Congress to specifically authorize an investigation in that Congress by 
the Committee on the Judiciary of charges of impeachment against Judge 
Ritter, the investigation apparently having been completed in the 73d 
Congress but not reported on to the House. Charges were introduced in 
the 74th Congress against Judge Ritter and referred to the committee, 
since the committee could not report resolutions and charges referred 
in the 73d Congress, all business expiring in the House with a 
Congress.(20)
---------------------------------------------------------------------------
20. For introduction of charges and a resolution impeaching Judge 
        Ritter in the 74th Congress, see Sec. Sec. 18.2, 18.3, infra.

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

[[Page 2020]]



 
                               CHAPTER 14
 
                           Impeachment Powers
 
                    B. INVESTIGATION AND IMPEACHMENT
 
Sec. 5. Introduction and Referral of Charges


    In the majority of cases, impeachment proceedings in the House have 
been initiated either by introducing resolutions of impeachment by 
placing them in the hopper, or by offering charges on the floor of the 
House under a question of constitutional privilege. Resolutions dropped 
in the hopper were used to initiate impeachment proceedings against 
Associate Justice William O. Douglas and President Richard M. Nixon. 
Where such resolutions have directly impeached federal civil officers, 
they have been referred by the Speaker to the Committee on the 
Judiciary, which has jurisdiction over federal judges and presidential 
succession; where they have called for an investigation into such 
charges by the Committee on the Judiciary or by a select committee they 
have been referred by the Speaker to the Committee on Rules, which has 
had jurisdiction over resolutions authorizing investigations by 
committees of the House.(1)
---------------------------------------------------------------------------
 1. See Sec. Sec. 5.10, 5.11, infra. In the case of Justice Douglas, 
        the Committee on the Judiciary authorized a special 
        subcommittee to investigate the charges, without the adoption 
        by the House of a resolution specifically authorizing an 
        investigation (see Sec. 6.11, infra). In the case of President 
        Nixon, the Committee on the Judiciary reported a resolution 
        which was adopted by the House, specifically conferring on the 
        committee the power to investigate the charges (see Sec. 6.2, 
        infra).
---------------------------------------------------------------------------

    Where a Member raises a question of constitutional privilege to 
present impeachment proceedings on the floor of the House, he must in 
the first instance offer a resolution, which resolution must directly 
call for impeachment, rather than call for an 
investigation.(2)
---------------------------------------------------------------------------
 2. See Sec. 5.4, infra. But see Sec. 18.2, infra, for one occasion 
        where a Member gained the floor under a question of privilege 
        and offered charges but not a resolution of impeachment.
---------------------------------------------------------------------------

    Impeachment proceedings in the House have been set in motion by 
memorial or petition, (3) and on one occasion by message 
from the President.(4) In the 93d Congress the Vice 
President sought to initiate an investigation by the House into charges 
pending

[[Page 2021]]

against him in the courts, but no action was taken on his request (by 
letter to the Speaker).(5)
---------------------------------------------------------------------------
 3. 3 Hinds' Precedents Sec. Sec. 2364, 2469 (memorial from state 
        legislature initiating proceedings against Judge Charles 
        Swayne, resulting in his impeachment), 2491, 2494, 2496; 6 
        Cannon's Precedents Sec. 552.
 4. 3 Hinds' Precedents Sec. 2294 (Senator William Blount).
 5. See Sec. 5.14, infra, for Vice President Spiro T. Agnew's request 
        and for a discussion of other cases where federal civil 
        officers have sought to initiate investigations into charges 
        against them.
---------------------------------------------------------------------------

                            Cross References
Initiation of specific impeachment proceedings, see Sec. Sec. 15-18, 
    infra.
Jurisdiction of House committees generally, see Ch. 17, infra.
Privilege for consideration of amendments to articles of impeachment, 
    see Sec. 10, infra.
Privilege of reports on impeachment, see Sec. 8, infra.
Questions of privilege of the House, raising and substance of, see Ch. 
    11, supra.
Resolutions, petitions and memorials generally, see Ch. 24, 
    infra.                          -------------------

Privilege of Impeachment Charges and Resolutions

Sec. 5.1 A proposition impeaching a federal civil officer is privileged 
    when offered on the floor of the House.

    On Jan. 6, 1932,(6) Mr. Wright Patman, of Texas, rose to 
a question of constitutional privilege, impeached Secretary of the 
Treasury Andrew W. Mellon, and offered a resolution authorizing an 
investigation:
---------------------------------------------------------------------------
 6. 75 Cong. Rec. 1400, 72d Cong. 1st Sess.
---------------------------------------------------------------------------

         Impeachment of Andrew W. Mellon, Secretary of the Treasury

        Mr. Patman: Mr. Speaker, I rise to a question of constitutional 
    privilege. On my own responsibility as a Member of this House, I 
    impeach Andrew William Mellon, Secretary of the Treasury of the 
    United States, for high crimes and misdemeanors, and offer the 
    following resolution:

            Whereas . . .
            Resolved, That the Committee on the Judiciary is authorized 
        and directed, as a whole or by subcommittee, to investigate the 
        official conduct of Andrew W. Mellon, Secretary of the 
        Treasury, to determine whether, in its opinion, he has been 
        guilty of any high crime or misdemeanor which, in the 
        contemplation of the Constitution, requires the interposition 
        of the constitutional powers of the House. Such committee shall 
        report its findings to the House, together with such resolution 
        of impeachment or other recommendation as it deems proper.

        Sec. 2. For the purposes of this resolution, the committee is 
    authorized to sit and act during the present Congress at such times 
    and places in the District of Columbia or elsewhere, whether or not 
    the House is sitting, has recessed, or has adjourned, to hold such 
    hearings, to employ such experts, and such clerical, stenographic, 
    and other assistants, to require the attendance of such witnesses 
    and the production of such books, papers, and documents, to take 
    such testimony, to have such printing and binding done, and to make 
    such expenditures not exceeding $5,000, as it deems necessary.

[[Page 2022]]

Sec. 5.2 Although a resolution of impeachment is privileged, it may not 
    be called up in the House while another Member has the floor and 
    does not yield for that purpose, but it may be introduced for 
    reference through the hopper at the Clerk's desk.

    On Apr. 15, 1970, Mr. Louis C. Wyman, of New Hampshire, had the 
floor for a special-order speech and yielded to Mr. Andrew Jacobs, Jr., 
of Indiana:

        Mr. Jacobs: Mr. Speaker, will the gentleman yield for a three-
    sentence statement?
        Mr. Wyman: I yield to the gentleman from Indiana.
        Mr. Jacobs: Mr. Speaker, the gentleman from Michigan has stated 
    publicly that he favors impeachment of Justice Douglas.
        He, therefore, has a duty to this House and this country to 
    file a resolution of impeachment.
        Since he refuses to do so and since he raises grave questions, 
    the answers to which I do not know, but every American is entitled 
    to know, I introduce at this time the resolution of impeachment in 
    order that a proper and dignified inquiry into this matter might be 
    held.

    Mr. Jacobs then introduced his resolution (H. Res. 920) through the 
hopper and it was subsequently referred to the Committee on the 
Judiciary.(7)
---------------------------------------------------------------------------
 7. 116 Cong. Rec. 11942, 91st Cong. 2d Sess.
---------------------------------------------------------------------------

        The Speaker Pro Tempore: (8) The gentleman from New 
    Hampshire has the floor.
---------------------------------------------------------------------------
 8. Charles M. Price (Ill.).
---------------------------------------------------------------------------

        Mr. Wyman: I did not yield for that purpose.
        The Speaker Pro Tempore: The gentleman from Indiana has 
    introduced a resolution.(9)
---------------------------------------------------------------------------
 9. 116 Cong. Rec. 11920, 91st Cong. 2d Sess.
---------------------------------------------------------------------------

Sec. 5.3 The Speaker ruled that whether or not a resolution of 
    impeachment was privileged was a constitutional question for the 
    House and not the Chair to decide, where the resolution included 
    charges against former civil officers.

    On May 23, 1933, Mr. Louis T. McFadden, of Pennsylvania, rose to a 
question of constitutional privilege and offered House Resolution 158, 
impeaching numerous members and former members of the Federal Reserve 
Board. During the reading of the resolution Mr. Carl E. Mapes, of 
Michigan, made a point of order against the resolution:

        I wish to submit the question to the Speaker as to whether or 
    not a person who is not now in office is subject to impeachment? 
    This resolution of the gentleman from Pennsylvania refers to 
    several people who are no longer holding any public office. They 
    are not now at least civil officers. The Constitution

[[Page 2023]]

    provides that the ``President, Vice President, and all civil 
    officers shall be removed from office on impeachment'', and so 
    forth. I have had no opportunity to examine the precedents since 
    this matter came up, but it occurs to me that the resolution takes 
    in too much territory to make it privileged.

    Speaker Henry T. Rainey, of Illinois, ruled as follows:

        That is a constitutional question which the Chair cannot pass 
    upon, but should be passed upon by the House.
        The resolution was referred on motion to the Committee on the 
    Judiciary.(10)
---------------------------------------------------------------------------
10. 77 Cong. Rec. 4055, 73d Cong. 1st Sess.
---------------------------------------------------------------------------

Initiation of Impeachment Charges by Motion or Resolution

Sec. 5.4 In impeaching an officer of the United States as a matter of 
    constitutional privilege, a Member must in the first instance 
    present a motion or resolution.

    On Jan. 18, 1933, Mr. Louis T. McFadden, of Pennsylvania, attempted 
to impeach President Herbert Hoover by presenting a question of 
constitutional privilege. Speaker John N. Garner, of Texas, ruled that 
a resolution or motion must first be presented: (11)
---------------------------------------------------------------------------
11. 76 Cong. Rec. 2041, 2042, 72d Cong. 2d Sess.
---------------------------------------------------------------------------

                           Question of Privilege

        Mr. McFadden: Mr. Speaker, I rise to a question of 
    constitutional privilege.
        The Speaker: The gentleman will state it.
        Mr. McFadden: Mr. Speaker, on December 13, 1932----
        Mr. [Robert] Luce [of Massachusetts: Mr. Speaker, a point of 
    order.
        The Speaker: The gentleman will state it.
        Mr. Luce: Mr. Speaker, the raising of a question of 
    constitutional privilege must be preceded by a resolution or motion
        The Speaker: As the Chair understands it, the gentleman is 
    stating his constitutional question. Has the gentleman a 
    resolution?
        Mr. McFadden: I am trying to communicate to the House what I 
    propose to do here, Mr. Speaker.
        Mr. Luce: I insist on the point of order, Mr. Speaker.
        The Speaker: The rules of the House provide that the gentleman 
    must send a resolution to the Clerk's desk in raising a question of 
    constitutional privilege.
        Mr. McFadden: If the Speaker will permit, I am attempting to 
    make a privileged statement to the House, and I believe I am within 
    my rights in doing this.
        The Speaker: In order for the gentleman to have the right to 
    make such a statement to the House, he must send a resolution to 
    the Clerk's desk and have it read, on which the House may then act. 
    The gentleman would then have one hour in which to address the 
    House, if he presented a

[[Page 2024]]

    question of constitutional privilege. That is the only way the 
    gentleman can obtain the floor.
        Mr. McFadden: Mr. Speaker, I believe under the rules I am 
    entitled to make a statement.
        The Speaker: Not prior to the submission of a resolution.
        Mr. McFadden: If the Speaker will pardon me, I have not offered 
    a resolution. I rise to a question of constitutional privilege, and 
    I believe I have the right to communicate to the House a 
    constitutional privilege.

        Mr. [Thomas L.] Blanton [of Texas]: Mr. Speaker, I make the 
    point of order that if the integrity of the gentleman has been 
    impugned in any way by anyone, this would give him a constitutional 
    privilege, and he has the right to rise to that privilege and state 
    it without offering a resolution.
        The Speaker: That is true of a question of personal privilege, 
    but the gentleman rises to a question of constitutional privilege. 
    This can only be done, as the Chair understands it, by the 
    presentation of a resolution upon which the constitutional question 
    is based. A mere statement by the gentleman does not comply with 
    the rules of the House. If the gentleman has no resolution 
    involving a constitutional question, the Chair thinks he is not 
    entitled to recognition.
        Mr. McFadden: May I point out, Mr. Speaker, that impeachment 
    proceedings are brought by other ways than formal whereases. It has 
    been done at times by a memorial. I insist, Mr. Speaker, I am 
    within my rights in communicating my statement to the House of 
    Representatives.
        The Speaker: The Chair wants to give the gentleman all the 
    privileges he is entitled to under the rules of the House, but at 
    the same time it is the duty of the Chair to maintain the rules, 
    and it is the impression of the Chair from observation during the 
    last 20 years that whenever a Member states a question of 
    constitutional privilege it must be done in the form of a 
    resolution. If a Member raises a question of personal privilege, 
    the Member may then state the question of personal privilege and is 
    entitled to an hour. Questions of personal privilege are on a 
    different footing from a constitutional question of privilege.
        Mr. McFadden: Mr. Speaker, I am still of the opinion that I am 
    within my constitutional rights and am entitled to communicate a 
    statement to the House of Representatives.
        The Speaker: The Parliamentarian has just called the attention 
    of the Chair to a decision by Speaker Longworth, of February 16, 
    1929 (70th Cong., 2d sess., Record, p. 3602), in which he says:

            In presenting a question of the privilege of the House a 
        Member, in the first instance, must present a motion or 
        resolution. Of course, this rule does not apply to a Member 
        rising to a question of personal privilege.

        This is a decision of Speaker Longworth, rendered in 1929, 
    which is on all fours with this situation. The gentleman is not 
    presenting a question of personal privilege but a question of 
    constitutional privilege, and, in the instance referred to, 
    following a number of precedents, it was held that the Member must 
    present a resolution in the first instance on which to base his 
    statement to the House, and then would be entitled to one hour.

[[Page 2025]]

        Mr. McFadden: Mr. Speaker, I again call attention to the fact 
    that impeachments may be brought by memorials and by other methods 
    than that which has been stated in the decision referred to.
        The Speaker: When such memorials and petitions are presented to 
    the House they are referred to the committee having jurisdiction of 
    the particular subject. If a Member of the House bases his question 
    of privilege on a memorial or petition, the memorial or petition 
    must first be reported by the Clerk, and then the House may take 
    such action as it sees fit.
        Mr. McFadden: May not a Member of the House, under the right 
    given him by the Constitution, present a communication to the House 
    of Representatives which might later result in an impeachment?
        The Speaker: If the gentleman has a communication of that 
    character, let him send it to the Clerk's desk and the Clerk will 
    report it. Then the House can take such action as it deems proper. 
    The Chair wants to be perfectly frank, and if the gentleman from 
    Pennsylvania is undertaking to address the House for one hour, the 
    Chair has no objection to that; but the Chair must maintain the 
    rules and precedents of the House as the Chair finds them, and the 
    gentleman can not get the floor under the proposition he has 
    presented at the present time unless he sends up a resolution or 
    motion.

Offering Articles of Impeachment

Sec. 5.5 In presenting impeachment charges as privileged, a Member need 
    not offer articles of impeachment, which are prepared by the 
    appropriate committee.

    On May 7, 1935,(12) Mr. Everett M. Dirksen, of Illinois, 
rose to a question of constitutional privilege and impeached Judge 
Samuel Alschuler; he offered House Resolution 214, authorizing an 
investigation by the Committee on the Judiciary. During his remarks, 
Speaker Joseph W. Byrns, of Tennessee, upheld the privileged nature of 
the charges:
---------------------------------------------------------------------------
12. 79 Cong. Rec. 7081-86, 74th Cong. 1st Sess.
---------------------------------------------------------------------------

        Mr. [Donald C.] Dobbins [of Illinois]: Mr. Speaker, a point of 
    order. I have heard no articles of impeachment read. As I have 
    listened to the matter presented by the gentleman from Illinois 
    [Mr. Dirksen], it is nothing more nor less than a resolution asking 
    for an inquiry, and not articles of impeachment. It seems to me 
    that it is not a privileged matter, and the gentleman is not 
    entitled to occupy the time of the House in this manner. The 
    gentleman has not offered any articles of impeachment.
        The Speaker: The gentleman has offered no articles of 
    impeachment. He is simply making charges.
        Mr. Dobbins: I assumed he had finished. There have been no 
    articles of impeachment presented.
        The Speaker: Charges of impeachment; not articles of 
    impeachment.
        Mr. Dobbins: I have heard no articles of impeachment read.

[[Page 2026]]

        Mr. Dirksen: It seems to me this was in its entirety articles 
    of impeachment.
        Mr. Dobbins: It is nothing more that a resolution of inquiry.
        Mr. Dirksen: Perhaps the gentleman did not hear the first part 
    of my remarks. I will read the first paragraph of this report:

            Samuel Alschuler, justice of the Circuit Court of Appeals, 
        Seventh Circuit, is impeached for high crimes and misdemeanors 
        in said office upon the following specific charges.

        Mr. Dobbins: As I understand articles of impeachment, Mr. 
    Speaker, that does not amount to an impeachment at all.
        The Speaker: The gentleman does not prepare articles of 
    impeachment. That is done by the committee.
        Mr. Dobbins: It is simply a resolution of inquiry such as we 
    have offered here every day, and is not a privileged matter.
        The Speaker: The Chair can only state what the gentleman said 
    when he took the floor; that is, that he was preferring charges of 
    impeachment against a certain United States circuit judge.
        Mr. Dobbins: But there have been no such charges; simply a 
    resolution of inquiry.
        The Speaker: The gentleman is making his charges now.

Debate on Question of Privilege to Present Impeachment Charges

Sec. 5.6 A Member recognized on a question of privilege to present 
    impeachment charges against an officer of the government is 
    entitled to an hour for debate.

    On Jan. 14, 1936, Mr. Robert A. Green, of Florida, rose to a 
question of constitutional privilege and presented charges of 
impeachment against Judge Halsted L. Ritter. During the course of his 
remarks, Speaker Joseph W. Byrns, of Tennessee, ruled as follows on 
recognition and time for debate:

        The Speaker: The Chair will state to the gentleman from 
    Michigan [Mr. Carl E. Mapes] that the gentleman from Florida having 
    raised a question of privilege and having made these charges is 
    entitled to 1 hour on the charges. The gentleman has been 
    recognized and may use all or any portion of the hour he sees 
    fit.(13)
---------------------------------------------------------------------------
13. 80 Cong. Rec. 404, 406, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

Sec. 5.7 In presenting impeachment charges as privileged, a Member is 
    not necessarily confined to a bare statement of the facts but may 
    supplement them with argumentative statements.

    On May 7, 1935, Mr. Everett M. Dirksen, of Illinois, rose to a 
question of constitutional privilege and impeached Circuit Judge Samuel 
Alschuler. He was recognized for an hour and during his remarks Speaker 
Joseph W. Byrns, of Ten

[[Page 2027]]

nessee, overruled a point of order against the content of his remarks: 
(14)
---------------------------------------------------------------------------
14. 79 Cong. Rec. 7081-86, 74th Cong. 1st Sess.
---------------------------------------------------------------------------

        Mr. [Hatton W.] Sumners of Texas: I am not familiar with the 
    precedents, but I have the impression that in preferring charges of 
    impeachment, argumentative statements should be avoided as much as 
    possible. If I am wrong in that statement with reference to what 
    the precedents and custom have established, I of course withdraw 
    the observation.
        Mr. Dirksen: Mr. Speaker, I have no desire to violate the 
    precedents, and if I have done so it is only because I have not had 
    an opportunity to examine them thoroughly, but if the objection is 
    well taken, I should prefer not to present argumentative matters to 
    the House.
        Mr. Sumners of Texas: I am sure the gentleman does not propose 
    to violate the precedents, and unfortunately I do not know about 
    the matter myself. I am not advised as to what the precedents 
    establish, but without looking them up, merely from the standpoint 
    of what would seem to be proper procedure, it occurs to me that all 
    argumentative statements be omitted in preferring impeachment 
    charges.
        Mr. Dirksen: Mr. Speaker, there are two more pages of 
    explanatory matter which perhaps I should not present to the House 
    at this time if the point is well taken. I would, however, like to 
    put them into the Record as elaborating the statement of specific 
    charges that have been made.
        The Speaker: The Chair thinks it is entirely up to the 
    gentleman from Illinois so far as the propriety of his statement is 
    concerned.
        Mr. Dirksen: I do not want to violate any of the proprieties of 
    the House, Mr. Speaker.
        Mr. Sumners of Texas: I do not know what they are myself.
        The Speaker: The gentleman from Illinois is making his 
    statement on his own responsibility as a Member of the House.

    On Jan. 14, 1936, Mr. Robert A. Green, of Florida, rose to a 
question of constitutional privilege and presented charges of 
impeachment against Judge Halsted L. Ritter. During the course of his 
remarks, Speaker Byrns overruled a point of order against the personal 
nature of Mr. Green's remarks: (15)
---------------------------------------------------------------------------
15. 80 Cong. Rec. 404, 406, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. [Carl E.] Mapes [of Michigan]: Mr. Speaker, as I 
    understand, the gentleman has made his impeachment charges, and for 
    the last 10 minutes has been proceeding almost entirely with an 
    argument and a personal statement which I do not think are in order 
    under the circumstances. I think I will make the point of order, 
    Mr. Speaker.

        The Speaker: The Chair will state to the gentleman from 
    Michigan that the gentleman from Florida having raised a question 
    of privilege and having made these charges is entitled to 1 hour on 
    the charges. The gentleman has been recognized and may use all or 
    any portion of the hour he sees fit.
        Mr. Mapes: Is the gentleman entitled during that hour to engage 
    in a general discussion of the charges?

[[Page 2028]]

        The Speaker: He is, under all the precedents with which the 
    Chair is familiar.

Privilege of Questions Incidental to Impeachment

Sec. 5.8 Where privileged resolutions for the impeachment of a federal 
    civil officer have been referred to a committee, that committee may 
    report and call up as privileged resolutions incidental to 
    consideration of the impeachment question, including those 
    pertaining to subpena authority and funding of an investigation.

    On Feb. 6, 1974, Peter W. Rodino, Jr., of New Jersey, Chairman of 
the Committee on the Judiciary, called up as privileged House 
Resolution 803, authorizing that committee to investigate the 
sufficiency of grounds for impeachment of President Richard Nixon. 
Various resolutions of impeachment of the President had previously been 
referred to the committee.(16)
---------------------------------------------------------------------------
16. 120 Cong. Rec. 2349, 2350, 93d Cong. 2d Sess. For the events 
        leading up to the presentation and adoption of H. Res. 803, and 
        the reasons for its presentation, see Sec. 15, infra.
---------------------------------------------------------------------------

    Parliamentarian's Note: Resolutions authorizing a committee to 
conduct investigations with subpena power and resolutions funding such 
investigations from the contingent fund of the House are normally only 
privileged when respectively reported and called up by the Committee on 
Rules or the Committee on House Administration.(17) But a 
committee to which resolutions of impeachment have been referred may 
report and call up as privileged resolutions incidental to the 
consideration of the impeachment question. For example, charges of 
impeachable offenses were referred to the Committee on the Judiciary in 
1927, in relation to the conduct of District Judge Frank Cooper. The 
Committee on the Judiciary subsequently called up as privileged a 
resolution authorizing an investigation by the committee and funding 
such investigation from the contingent fund of the House. In response 
to a parliamentary inquiry, Speaker Nicholas Longworth, of Ohio, ruled 
that the resolution was privileged ``because it relates to impeachment 
proceedings.'' (18) If, however, such a

---------------------------------------------------------------------------
17. See Rule XI clause 22, House Rules and Manual Sec. 726 (1973), 
        giving privileged status to reports of the Committee on House 
        Administration on matters of expenditure of the contingent 
        fund.
18. 6 Cannon's Precedents Sec. 549. For other occasions where the 
        Committee on the Judiciary has reported and called up as 
        privileged resolutions authorizing the committee to conduct 
        impeachment investigations, see 3 Hinds' Precedents Sec. 2029 
        and 6 Cannon's Precedents Sec. Sec. 498, 528.
--------------------------------------------------------------------------

[[Page 2029]]

resolution is offered on the floor by a Member on his own initiative 
and not reported from the committee to which the impeachment has been 
referred, it is not privileged for immediate consideration, since not 
directly calling for impeachment.(19)

--------------------------------------------------------------------------
19. 6 Cannon's Precedents Sec. 468.
---------------------------------------------------------------------------

Sec. 5.9 Resolutions proposing the discontinuation of impeachment 
    proceedings are privileged for immediate consideration when 
    reported from the committee charged with the investigation.

    On Feb. 13, 1932, Mr. Hatton W. Sumners, of Texas, offered House 
Report No. 444 and House Resolution 143, discontinuing impeachment 
proceedings against Secretary of the Treasury Andrew W. Mellon. He 
offered the report as privileged and it was immediately considered and 
adopted by the House.(20)
---------------------------------------------------------------------------
20. 75 Cong. Rec. 3850, 72d Cong. 1st Sess.
---------------------------------------------------------------------------

    On Feb. 24, 1933, Speaker John N. Garner, of Texas, held that a 
resolution reported from the Committee on the Judiciary, proposing the 
discontinuance of an impeachment proceeding, was privileged for 
immediate consideration: (1)
---------------------------------------------------------------------------
 1. 76 Cong. Rec. 4913, 72d Cong. 2d Sess. (also cited at 6 Cannon's 
        Precedents Sec. 514).
---------------------------------------------------------------------------

        The Speaker: The Clerk will report the resolution.
        The Clerk read the resolution, as follows:

                              House Resolution 387

            Resolved, That the evidence submitted on the charges 
        against Hon. Harold Louderback, district judge for the northern 
        district of California, does not warrant the interposition of 
        the constitutional powers of impeachment of the House.

        Mr. [Bertrand H.] Snell [of New York]: Mr. Speaker, when they 
    report back a resolution of that kind, is it a privileged matter?
        The Speaker: It is not only a privileged matter but a highly 
    privileged matter.
        Mr. [Leonidas C.] Dyer [of Missouri]: Mr. Speaker, this is the 
    first instance to my knowledge, in my service here, where the 
    committee has reported adversely on an impeachment charge.
        The Speaker: The gentleman's memory should be refreshed. The 
    Mellon case was reported back from the committee, recommending that 
    impeachment proceedings be discontinued.
        Mr. Snell: Was that taken up on the floor as a privileged 
    matter?
        The Speaker: It was.

    On Mar. 24, 1939, Mr. Sam Hobbs, of Alabama, called up a re

[[Page 2030]]

port of the Committee on the Judiciary on House Resolution 67, which 
report recommended against the impeachment of Secretary of Labor 
Frances Perkins. The report was called up as privileged and the House 
immediately agreed to Mr. Hobbs' motion to lay the report on the 
table.(2)
---------------------------------------------------------------------------
 2. 84 Cong. Rec. 3273, 76th Cong. 1st Sess.
---------------------------------------------------------------------------

Referral of Resolutions Introduced Through Hopper

Sec. 5.10 Resolutions introduced through the hopper under Rule XXII 
    which directly called for the impeachment or censure of President 
    Richard Nixon in the 93d Congress were referred by the Speaker to 
    the Committee on the Judiciary, while resolutions calling for an 
    investigation by that committee or by a select committee with a 
    view toward impeachment were referred to the Committee on Rules.

    On Oct. 23, 1973, resolutions relating to the impeachment of 
President Nixon were introduced (placed in the hopper pursuant to Rule 
XXII clause 4) and severally referred as follows: (3)
---------------------------------------------------------------------------
 3. 119 Cong. Rec. 34873, 93d Cong. 1st Sess. See also 116 Cong. Rec. 
        11941, 11942, 91st Cong. 2d Sess., Apr. 15, 1970 (resolution 
        impeaching Associate Justice William O. Douglas of the Supreme 
        Court, referred to the Committee on the Judiciary). See also 
        House Rules and Manual Sec. 854 (1973) .
---------------------------------------------------------------------------

          By Mr. Long of Maryland:
        H. Con. Res. 365. Concurrent resolution of censureship without 
    prejudice to impeachment; to the Committee on the Judiciary.
          By Ms. Abzug:
        H. Res. 625. Resolution impeaching Richard M. Nixon, President 
    of the United States, for high crimes and misdemeanors; to the 
    Committee on the Judiciary.
          By Mr. Ashley:
        H. Res. 626. Resolution directing the Committee on the 
    Judiciary to investigate whether there are grounds for the 
    impeachment of Richard M. Nixon; to the Committee on Rules.
          By Mr. Bingham:
        H. Res. 627. Resolution directing the Committee on the 
    Judiciary to inquire into and investigate whether grounds exist for 
    the impeachment of Richard M. Nixon; to the Committee on Rules.
            By Mr. Burton (for himself, Ms. Abzug, Mr. Anderson of 
                California, Mr. Aspin, Mr. Bergland, Mr. Bingham, Mr. 
                Brasco, Mr. Brown of California, Mr. Boland, Mr. 
                Brademas, Mrs. Chisholm, Mr. Culver, Mr. Conyers, Mr. 
                Dellums, Mr. Drinan, Mr. Eckhardt, Mr. Edwards of 
                California, Mr. Evans of Colorado, Mr. Fascell, Mr. 
                Fauntroy, Mr. Foley, Mr. William D. Ford, Mr. Fraser, 
                Mr. Giaimo, and Ms. Grasso):

[[Page 2031]]

        H. Res. 628. Resolution directing the Committee on the 
    Judiciary to inquire into and investigate whether grounds exist for 
    the impeachment of Richard M. Nixon; to the Committee on Rules. . . 
    .
          By Mr. Hechler of West Virginia:
        H. Res. 631. Resolution that Richard M. Nixon, President of the 
    United States, is impeached of high crimes and misdemeanors; to the 
    Committee on the Judiciary.
          By Mrs. Heckler of Massachusetts:
        H. Res. 632. Resolution to appoint a Special Prosecutor; to the 
    Committee on the Judiciary. . . .
          By Mr. McCloskey:
        H. Res. 634. Resolution of inquiry; to the Committee on the 
    Judiciary.
        H. Res. 635. Resolution for the impeachment of Richard M. 
    Nixon; to the Committee on the Judiciary.
          By Mr. Mazzoli:
        H. Res. 636. Resolution: an inquiry into the existence of 
    grounds for the impeachment of Richard M. Nixon, President of the 
    United States; to the Committee on Rules.

          By Mr. Milford:
        H. Res. 637. Resolution providing for the establishment of an 
    Investigative Committee to investigate alleged Presidential 
    misconduct; to the Committee on Rules.
            By Mr. Mitchell of Maryland (for himself, Mr. Burton, and 
                Mr. Fauntroy):

        H. Res. 638. Resolution impeaching Richard M. Nixon, President 
    of the United States, of high crimes and misdemeanors; to the 
    Committee on the Judiciary.

Sec. 5.11 The Committee on Rules has jurisdiction of resolutions 
    authorizing the Committee on the Judiciary to investigate the 
    conduct of federal officials and directing said committee to report 
    its findings to the House ``together with such resolutions of 
    impeachment as it deems proper.''

    On Feb. 22, 1966,(4) a resolution (H. Res. 739) 
``authorizing the Committee on the Judiciary to conduct certain 
investigations'' was referred to the Committee on Rules. The resolution 
called for an investigation into the official conduct of Federal 
District Court Judges Alfred P. Murrah, Stephen S. Chandler, and Luther 
Bohannon, in Oklahoma, and directed the Committee on the Judiciary to 
report its findings to the House ``together with such resolutions of 
impeachment as it deems proper.''
---------------------------------------------------------------------------
 4. 112 Cong. Rec. 3665, 89th Cong. 2d Sess.
---------------------------------------------------------------------------

Motions to Lay on the Table or to Refer

Sec. 5.12 The motion to lay on the table applies to resolutions 
    proposing impeachment and may deprive a Member who has offered such 
    a resolution of recognition for debate thereon.

[[Page 2032]]

    On Jan. 17, 1933,(5) Speaker John N. Garner, of Texas, 
held that the motion to table applied to resolutions of impeachment and 
could deprive the proponent of debate on such a resolution:
---------------------------------------------------------------------------
 5. 76 Cong. Rec. 1965-68, 72d Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. [Louis T.] McFadden [of Pennsylvania]: On my own 
    responsibility, as a Member of the House of Representatives, I 
    impeach Herbert Hoover, President of the United States, for high 
    crimes and misdemeanors.
        The Speaker: The Clerk will report the resolutions.
        Mr. McFadden: Mr. Speaker, a parliamentary inquiry.
        The Speaker: The gentleman will state it.
        Mr. McFadden: Am I not entitled to an hour to discuss the 
    resolution?
        The Speaker: The gentleman is entitled to an hour, but first 
    the Clerk must report the resolution of impeachment.
        Mr. McFadden: I offer the following resolution.
        The Speaker: The Clerk will report the resolution.
        The Clerk read as follows: . . .
        Mr. [Robert] Luce [of Massachusetts] (interrupting the reading 
    of the resolution): Mr. Speaker, a parliamentary inquiry.
        The Speaker: The gentleman will state it.
        Mr. Luce: On a previous occasion charges apparently of the same 
    purport were laid on the table by the House. Is it within the 
    province of any Member to evade the rules and to take a matter from 
    the table by proceeding with a second movement of the same sort?
        The Speaker: The Chair, of course, has not heard the resolution 
    read. Probably if it was identical with the resolution submitted 
    some time ago and laid on the table there would be some question 
    whether or not a second impeachment could be had. But the President 
    can be impeached, or any person provided for by the Constitution, a 
    second time, and the Chair thinks the better policy would be to 
    have the resolution read and determine whether or not it is the 
    same.
        Mr. [Fred A.] Britten [of Illinois]: Mr. Speaker, a 
    parliamentary inquiry.
        The Speaker: The gentleman will state it.
        Mr. Britten: Would a motion be in order at this time?
        The Speaker: No. The Chair would not recognize any Member to 
    make a motion until the resolution is read.
        Mr. Britten: Mr. Speaker, I ask unanimous consent that the 
    resolution be considered as having been read.
        The Speaker: The Chair thinks the resolution should be read.
        Mr. McFadden (again interrupting the reading of the 
    resolution): Mr. Speaker, a parliamentary inquiry.
        The Speaker: The gentleman will state it.
        Mr. McFadden: I understand that at the completion of the 
    reading of this resolution it is planned----
        The Speaker: That is not a parliamentary inquiry. That is a 
    statement.
        Mr. McFadden: I am attempting to state a parliamentary inquiry, 
    Mr. Speaker.

[[Page 2033]]

        The Speaker: The gentleman will state it. The Chair will hear 
    the gentleman.
        Mr. McFadden: During the opening I addressed the Speaker to 
    ascertain whether or not I would be protected in one hour time for 
    debate. I am prepared to debate. I understand a certain motion will 
    be made which will deprive me of that right.
        The Speaker: The Chair can not control 434 Members of the House 
    in the motions they will make. The Chair must recognize them and 
    interpret the rules as they are written. That is what the Chair 
    intends to do. The gentleman from Pennsylvania would have an 
    opportunity to discuss this matter for an hour under the rules of 
    the House, if some gentleman did not take him off his feet by a 
    proper motion. [Applause.]
        Mr. McFadden: That is what I was attempting to ascertain.
        The Clerk concluded the reading of the resolution.
        Mr. [Henry T.] Rainey [of Illinois]: Mr. Speaker, I move to lay 
    the resolution of impeachment on the table.
        The Speaker: The gentleman from Illinois moves to lay the 
    resolution of impeachment on the table.
        May the Chair be permitted to make a statement with reference 
    to the rule applying to that motion? The Parliamentarian has 
    examined the precedents with reference to the motion. Speaker Clark 
    and Speaker Gillette, under identical conditions, held that a 
    motion to lay on the table took a Member off the floor of the 
    House, although the general rules granted him one hour in which to 
    discuss the resolution of impeachment or privileges of the House. 
    Therefore the motion is in order.
        Mr. [Bertrand H.] Snell [of New York]: Mr. Speaker, I demand 
    the yeas and nays.

    Parliamentarian's Note: Under Rule XVI clause 4, the motion to lay 
on the table may be offered while a question is under debate, including 
a question of privilege, and is not debatable. The motion to refer is 
also in order under the rule and is debatable within narrow limits. The 
question of consideration may also be raised under Rule XVI clause 3; 
it is not debatable, but may be demanded before debate on the pending 
question, and may be raised against a question of the highest 
privilege.(6)
---------------------------------------------------------------------------
 6. See Rule XVI clauses 3, 4 and notes thereto, House Rules and Manual 
        Sec. Sec. 778-787 (1973).
---------------------------------------------------------------------------

Sec. 5.13 Resolutions authorizing investigations into charges of 
    impeachment have been referred, on motion, to the Committee on the 
    Judiciary.

    On Jan. 24, 1939,(7) a Member declared his impeachment 
of certain officials of the executive branch, including Secretary of 
Labor Frances Perkins:
---------------------------------------------------------------------------
 7. 84 Cong. Rec. 702-11, 76th Cong. 1st Sess.
---------------------------------------------------------------------------

        Mr. [J. Parnell] Thomas of New Jersey: Mr. Speaker, on my own 
    responsibility as a Member of the House

[[Page 2034]]

    of Representatives, I impeach Frances Perkins, Secretary of Labor 
    of the United States; James L. Houghteling, Commissioner of the 
    Immigration and Naturalization Service of the Department of Labor; 
    and Gerard D. Reilly, Solicitor of the Department of Labor, as 
    civil officers of the United States, for high crimes and 
    misdemeanors in violation of the Constitution and laws of the 
    United States, and I charge that the aforesaid Frances Perkins, 
    James L. Houghteling, and Gerard D. Reilly, as civil officers of 
    the United States, were and are guilty of high crimes and 
    misdemeanors in office in manner and form as follows, to wit: . . .

    Mr. Thomas offered a resolution authorizing an investigation of 
charges, which resolution was referred, on motion, to the Committee on 
the Judiciary:

        Resolved, That the Committee on the Judiciary be and is hereby 
    authorized and directed, as a whole or by subcommittee, to 
    investigate the official conduct of Frances Perkins, Secretary of 
    Labor; James L. Houghteling, Commissioner of Immigration and 
    Naturalization Service, Department of Labor; and Gerard D. Reilly, 
    Solicitor, Department of Labor, to determine whether, in its 
    opinion, they have been guilty of any high crimes or misdemeanors 
    which, in the contemplation of the Constitution, requires the 
    interposition of the constitutional powers of the House. Such 
    committee shall report its findings to the House together with such 
    articles of impeachment as the facts may warrant.
        For the purposes of this resolution the committee is authorized 
    and directed to sit and act, during the present session of 
    Congress, at such times and places in the District of Columbia, or 
    elsewhere, whether or not the House is sitting, has recessed, or 
    has adjourned; to hold hearings; to employ such experts and such 
    clerical, stenographic and other assistance; and to require the 
    attendance of such witnesses and the production of such books, 
    papers, and documents; and to take such testimony and to have such 
    printing and binding done; and to make such expenditures not 
    exceeding $10,000, as it deems necessary. . . .
        Mr. [Sam] Rayburn [of Texas]: Mr. Speaker, I move that the 
    resolution be referred to the Committee on the Judiciary of the 
    House and upon that I desire to say just a word. A great many 
    suggestions have been made as to what should be done with this 
    resolution, but I think this would be the orderly procedure so that 
    the facts may be developed. The resolution will come out of that 
    committee or remain in it according to the testimony adduced.
        I therefore move the previous question on my motion to refer, 
    Mr. Speaker.
        The previous question was ordered.
        The motion was agreed to.

    On Jan. 6, 1932,(8) a privileged resolution proposing an 
investigation directed towards impeachment, offered as privileged on 
the floor, was on motion referred to the Committee on the Judiciary:
---------------------------------------------------------------------------
 8. 75 Cong. Rec. 1400, 72d Cong. 1st Sess.
---------------------------------------------------------------------------

         Impeachment of Andrew W. Mellon, Secretary of the Treasury

        Mr. [Wright] Patman [of Texas]: Mr. Speaker, I rise to a 
    question of

[[Page 2035]]

    constitutional privilege. On my own responsibility as a Member of 
    this House, I impeach Andrew William Mellon, Secretary of the 
    Treasury of the United States for high crimes and misdemeanors, and 
    offer the following resolution: . . .

            Resolved, That the Committee on the Judiciary is authorized 
        and directed, as a whole or by subcommittee, to investigate the 
        official conduct of Andrew W. Mellon, Secretary of the 
        Treasury, to determine whether, in its opinion, he has been 
        guilty of any high crime or misdemeanor which, in the 
        contemplation of the Constitution, requires the interposition 
        of the constitutional powers of the House. Such committee shall 
        report its findings to the House together with such resolution 
        of impeachment or other recommendation as it deems proper.
            Sec. 2. For the purposes of this resolution, the committee 
        is authorized to sit and act during the present Congress at 
        such times and places in the District of Columbia or elsewhere, 
        whether or not the House is sitting, has recessed, or has 
        adjourned, to hold such hearings, to employ such experts and 
        such clerical, stenographic, and other assistants, to require 
        the attendance of such witnesses and the production of such 
        books, papers, and documents, to take such testimony, to have 
        such printing and binding done, and to make such expenditures 
        not exceeding $5,000, as it deems necessary.

        Mr. [Joseph W.] Byrns [of Tennessee]: Mr. Speaker, I move that 
    the articles just read be referred to the Committee on the 
    Judiciary, and upon that motion I demand the previous question.
        The previous question was ordered.
        The Speaker: (9) The question is on the motion of 
    the gentleman from Tennessee, that the articles be referred to the 
    Committee on the Judiciary. The motion was agreed to.
---------------------------------------------------------------------------
 9. John N. Garner (Tex.).
---------------------------------------------------------------------------

Initiation of Investigation by Accused

Sec. 5.14 The Vice President sought to initiate an investigation by the 
    House of certain charges brought against him, but the House took no 
    action on the request.

    On Sept. 25, 1973,(10) Speaker Carl Albert, of Oklahoma, 
laid before the House a communication from Vice President Spiro T. 
Agnew requesting that the House investigate charges which might 
``assume the character of impeachable offenses'' made against him by a 
U.S. Attorney in the course of a criminal investigation. The House took 
no action on the request by motion or otherwise.
---------------------------------------------------------------------------
10. 119 Cong. Rec. 31368, 93d Cong. 1st Sess.
---------------------------------------------------------------------------

    Parliamentarian's Note: Several resolutions were introduced on 
Sept. 26, 1973, to authorize investigations into the charges referred 
to, both by the Committee on the Judiciary and by a select committee. 
The resolutions were referred to the Committee on Rules.(11)
---------------------------------------------------------------------------
11.  See H. Res. 566 and H. Res. 567, 93d Cong. 1st Sess.
---------------------------------------------------------------------------

    The Vice President cited in his letter a request made by Vice

[[Page 2036]]

President John C. Calhoun in 1826 and discussed at 3 Hinds' Precedents 
Sec. 1736. On that occasion, the alleged charges related to the Vice 
President's former tenure as Secretary of War. The communication 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.
    Vice President Agnew did not cite a precedent occurring in 1873, 
however, where the Committee on the Judiciary reported that a civil 
officer--Vice President Schuyler Colfax--could not be impeached for 
offenses allegedly committed prior to his term of office as a civil 
officer under the United States. The committee had investigated at his 
request whether Vice President Colfax had, during his prior term as 
Speaker of the House, been involved in bribes of Members. As reported 
in 3 Hinds' Precedents Sec. 2510, the committee concluded as follows in 
its report to the House:

        But we are to consider, taking the harshest construction of the 
    evidence, whether the receipt of a bribe by a person who afterwards 
    becomes a civil officer of the United States, even while holding 
    another official position, is an act upon which an impeachment can 
    be grounded to subject him to removal from an office which he 
    afterwards holds. To elucidate this we first turn to the 
    precedents.
        Your committee find that in all cases of impeachment or 
    attempted impeachment under our Constitution there is no instance 
    where the accusation was not in regard to an act done or omitted to 
    be done while the officer was in office. In every case it has been 
    heretofore considered material that the articles of impeachment 
    should allege in substance that, being such officer, and while in 
    the exercise of the duties of his office, the accused committed the 
    acts of alleged inculpation.

    The report was never finally acted upon by the House.


 
                               CHAPTER 14
 
                           Impeachment Powers
 
                    B. INVESTIGATION AND IMPEACHMENT
 
Sec. 6. Committee Investigations

    The conduct of impeachment investigations is governed by those 
portions of Rule XI relating to committee investigatory and hearing 
procedure, and by any rules and special procedures adopted by the 
committee for the inquiry.(12) An investigatory subcommittee 
charged with an impeachment inquiry is limited to the powers expressly 
authorized by the committee.(13)
---------------------------------------------------------------------------
12. See Sec. Sec. 6.3 et seq.
13. See Sec. 6.11, infra, for the creation of a subcommittee to 
        investigate and to report to the Committee on the Judiciary on 
        charges against Justice William O. Douglas. No authorizing 
        resolution for a committee investigation had been adopted by 
        the House, but resolutions of impeachment had been referred to 
        the committee.

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

[[Page 2037]]

                                 Forms

    Form of resolution authorizing an investigation of the sufficiency 
of grounds for impeachment (of President Richard Nixon) and conferring 
subpena power and authority to take testimony: (14)
---------------------------------------------------------------------------
14. 120 Cong. Rec. 2349, 2350, 93d Cong. 2d Sess., Feb. 6, 1974.
---------------------------------------------------------------------------

                                H. Res. 803

        Resolved, That the Committee on the Judiciary, acting as a 
    whole or by any subcommittee thereof appointed by the chairman for 
    the purposes hereof and in accordance with the rules of the 
    committee, is authorized and directed to investigate fully and 
    completely whether sufficient grounds exist for the House of 
    Representatives to exercise its constitutional power to impeach 
    Richard M. Nixon, President of the United States of America. The 
    committee shall report to the House of Representatives such 
    resolutions, articles of impeachment, or other recommendations as 
    it deems proper.
        Sec. 2. (a) For the purpose of making such investigation, the 
    committee is authorized to require--
        (1) by subpena or otherwise--
        (A) the attendance and testimony of any person (including at a 
    taking of a deposition by counsel for the committee); and
        (B) the production of such things; and
        (2) by interrogatory, the furnishing of such information;

    as it deems necessary to such investigation.

        (b) Such authority of the committee may be exercised--
        (1) by the chairman and the ranking minority member acting 
    jointly, or, if either declines to act, by the other acting alone, 
    except that in the event either so declines, either shall have the 
    right to refer to the committee for decision the question whether 
    such authority shall be so exercised and the committee shall be 
    convened promptly to render that decision; or
        (2) by the committee acting as a whole or by subcommittee.
    Subpenas and interrogatories so authorized may be issued over the 
    signature of the chairman, or ranking minority member, or any 
    member designated by either of them, and may be served by any 
    person designated by the chairman, or ranking minority member, or 
    any member designated by either of them. The chairman, or ranking 
    minority member, or any member designated by either of them (or, 
    with respect to any deposition, answer to interrogatory, or 
    affidavit, any person authorized by law to administer oaths) may 
    administer oaths to any witness. For the purposes of this section, 
    ``things'' includes, without limitation, books, records, 
    correspondence, logs, journals, memorandums, papers, documents, 
    writings, drawings, graphs, charts, photographs, reproductions, 
    recordings, tapes, transcripts, printouts, data compilations from 
    which informa

[[Page 2038]]

    tion can be obtained (translated if necessary, through detection 
    devices into reasonably usable form), tangible objects, and other 
    things of any kind.

        Sec. 3. For the purpose of making such investigation, the 
    committee, and any subcommittee thereof, are authorized to sit and 
    act, without regard to clause 31 of rule XI of the Rules of the 
    House of Representatives, during the present Congress at such times 
    and places within or without the United States, whether the House 
    is meeting, has recessed, or has adjourned, and to hold such 
    hearings, as it deems necessary.
        Sec. 4. Any funds made available to the Committee on the 
    Judiciary under House Resolution 702 of the Ninety-third Congress, 
    adopted November 15, 1973, or made available for the purpose 
    hereafter, may be expended for the purpose of carrying out the 
    investigation authorized and directed by this resolution.

    Form of resolution authorizing a committee to investigate whether a 
judge (Halsted Ritter) has been guilty of high crimes or misdemeanors 
requiring impeachment: (15)
---------------------------------------------------------------------------
15. H. Res. 163, 77 Cong. Rec. 4784, 4785, 73d Cong. 1st Sess., June 1, 
        1933.
---------------------------------------------------------------------------

                            House Resolution 163

        Resolved, That the Committee on the Judiciary is authorized and 
    directed, as a whole or by subcommittee, to inquire into and 
    investigate the official conduct of Halsted L. Ritter, a district 
    judge for the United States District Court for the Southern 
    District of Florida, to determine whether in the opinion of said 
    committee he has been guilty of any high crime or misdemeanor which 
    in the contemplation of the Constitution requires the interposition 
    of the Constitutional powers of the House. Said committee shall 
    report its findings to the House, together with such resolution of 
    impeachment or other recommendation as it deems proper.
        Sec. 2. For the purpose of this resolution, the committee is 
    authorized to sit and act during the present Congress at such times 
    and places in the District of Columbia and elsewhere, whether or 
    not the House is sitting, has recessed, or has adjourned, to hold 
    such hearing, to employ such clerical, stenographic, and other 
    assistance, to require the attendance of such witnesses and the 
    production of such books, papers, and documents, and to take such 
    testimony, to have such printing and binding done, and to make such 
    expenditures, not exceeding $5,000, as it deems necessary.
        With the following committee amendments:
        Page 2, line 5, strike out the words ``to employ such clerical, 
    stenographic, and other assistance''; and in line 9, on page 2, 
    strike out ``to have such printing and binding done, and to make 
    such expenditures, not exceeding $5,000.''

    Form of subpena issued by the Committee on the Judiciary (to 
President Richard Nixon) in the course of its impeachment inquiry: 
(16)
---------------------------------------------------------------------------
16. Impeachment of Richard Nixon, President of the United States, H. 
        Rept. No. 93-1305, p. 234 (see pp. 234-78), Committee on the 
        Judiciary, printed in the Record at 120 Cong. Rec. 29282, 93d 
        Cong. 2d Sess., Aug. 20, 1974. For complete text of H. Rept. 
        No. 93-1305, see id. at pp. 29219-361.

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

[[Page 2039]]

    By Authority of the House of Representatives of the Congress of the 
                          United States of America

        To Benjamin Marshall, or his duly authorized representative:
        You are hereby commanded to summon Richard M. Nixon, President 
    of the United States of America, or any subordinate officer, 
    official or employee with custody or control of the things 
    described in the attached schedule, to be and appear before the 
    Committee on the Judiciary of the House of Representatives of the 
    United States, of which the Hon. Peter W. Rodino, Jr. is chairman, 
    and to bring with him the things specified in the schedule attached 
    hereto and made a part hereof, in their chamber in the city of 
    Washington, on or before April 25, 1974, at the hour of 10:00 a.m. 
    then and there to produce and deliver said things to said 
    Committee, or their duly authorized representative, in connection 
    with the Committee's investigation authorized and directed by H. 
    Res. 803, adopted February 6, 1974.
        Herein fail not, and make return of this summons.

                            Cross References
House inquiries and the executive branch, see Ch. 15, infra.
Power of the House to punish for contempt, see Ch. 13, supra.
Referral of charges and resolutions authorizing investigations, see 
    Sec. 5, supra.                          -------------------

Referral of Resolutions Authorizing Impeachment Investigations

Sec. 6.1 Resolutions introduced which directly called for the 
    impeachment or censure of President Richard Nixon in the 93d 
    Congress were referred by the Speaker to the Committee on the 
    Judiciary, whereas resolutions calling for an investigation by that 
    committee or by a select committee with a view toward impeachment 
    were referred to the Committee on Rules.

    On Oct. 23, 1973, several resolutions relating to the impeachment 
of President Nixon were introduced and referred. Examples of those 
referrals are as follows: (17)
---------------------------------------------------------------------------
17. 119 Cong. Rec. 34873, 93d Cong. 1st Sess. For a comprehensive 
        listing, see Sec. Sec. 5.10, supra (resolutions authorizing 
        investigations referred to Committee on Rules) and 5.13, supra 
        (resolutions authorizing investigations referred, on motion, to 
        the Committee on the Judiciary).

            By Mr. Long of Maryland:

        H. Con. Res. 365. Concurrent resolution of censureship without 
    prejudice to impeachment; to the Committee on the Judiciary.

            By Ms. Abzug:

[[Page 2040]]

        H. Res. 625. Resolution impeaching Richard M. Nixon, President 
    of the United States, for high crimes and misdemeanors; to the 
    Committee on the Judiciary.

            By Mr. Ashley:

        H. Res. 626. Resolution directing the Committee on the 
    Judiciary to investigate whether there are grounds for the 
    impeachment of Richard M. Nixon; to the Committee on Rules.

Report and Consideration of Resolutions Authorizing Impeachment 
    Investigations

Sec. 6.2 Although the House had adopted a resolution authorizing the 
    Committee on the Judiciary to conduct investigations within its 
    area of jurisdiction as defined in Rule XI clause 13, and although 
    the House had adopted a resolution intended to fund expenses of the 
    Richard Nixon impeachment inquiry by the committee, the Committee 
    on the Judiciary reported and called up as privileged a subsequent 
    resolution specifically mandating an impeachment investigation and 
    continuing the availability of funds, in order to confirm the 
    delegation of authority from the House to that committee to conduct 
    the investigation.

    On Feb. 6, 1974, Peter W. Rodino, Jr., of New Jersey, Chairman of 
the Committee on the Judiciary, called up for immediate consideration 
House Resolution 803, authorizing the Committee on the Judiciary to 
investigate the sufficiency of grounds for the impeachment of President 
Nixon, which resolution had been reported by the committee on Feb. 1, 
1974. The resolution read as follows: (18)
---------------------------------------------------------------------------
18. 120 Cong. Rec. 2349-51, 93d Cong. 2d Sess.
---------------------------------------------------------------------------

                                H. Res. 803

        Resolved, That the Committee on the Judiciary, acting as a 
    whole or by any subcommittee thereof appointed by the chairman for 
    the purposes hereof and in accordance with the rules of the 
    committee, is authorized and directed to investigate fully and 
    completely whether sufficient grounds exist for the House of 
    Representatives to exercise its constitutional power to impeach 
    Richard M. Nixon, President of the United States of America. The 
    committee shall report to the House of Representatives such 
    resolutions, articles of impeachment, or other recommendations as 
    it deems proper.
        Sec. 2. (a) For the purpose of making such investigation, the 
    committee is authorized to require--
        (1) by subpena or otherwise--
        (A) the attendance and testimony of any person (including at a 
    taking of a deposition by counsel for the committee); and

[[Page 2041]]

        (B) the production of such things; and
        (2) by interrogatory, the furnishing of such information;

    as it deems necessary to such investigation.

        (b) Such authority of the committee may be exercised--
        (1) by the chairman and the ranking minority member acting 
    jointly, or, if either declines to act, by the other acting alone, 
    except that in the event either so declines, either shall have the 
    right to refer to the committee for decision the question whether 
    such authority shall be so exercised and the committee shall be 
    convened promptly to render that decision; or
        (2) by the committee acting as a whole or by subcommittee.

    Subpenas and interrogatories so authorized may be issued over the 
    signature of the chairman, or ranking minority member, or any 
    member designated by either of them, and may be served by any 
    person designated by the chairman, or ranking minority member, or 
    any member designated by either of them. The chairman, or ranking 
    minority member, or any member designated by either of them (or, 
    with respect to any deposition, answer to interrogatory, or 
    affidavit, any person authorized by law to administer oaths) may 
    administer oaths to any witness. For the purposes of this section, 
    ``things'' includes, without limitation, books, records, 
    correspondence, logs, journals, memorandums, papers, documents, 
    writings, drawings, graphs, charts, photographs, reproductions, 
    recordings, tapes, transcripts, printouts, data compilations from 
    which information can be obtained (translated if necessary, through 
    detection devices into reasonably usable form), tangible objects, 
    and other things of any kind.

        Sec. 3. For the purpose of making such investigation, the 
    committee, and any subcommittee thereof, are authorized to sit and 
    act, without regard to clause 31 of rule XI of the Rules of the 
    House of Representatives, during the present Congress at such times 
    and places within or without the United States, whether the House 
    is meeting, has recessed, or has adjourned, and to hold such 
    hearings, as it deems necessary.
        Sec. 4. Any funds made available to the Committee on the 
    Judiciary under House Resolution 702 of the Ninety-third Congress, 
    adopted November 15, 1973, or made available for the purpose 
    hereafter, may be expended for the purpose of carrying out the 
    investigation authorized and directed by this resolution.

    Chairman Rodino and Mr. Edward Hutchinson, of Michigan, ranking 
minority member of the Committee on the Judiciary, explained the 
purpose of the resolution, which had been adopted unanimously by the 
committee, as follows:

        Mr. Rodino: Mr. Speaker, I yield myself such time as I may 
    consume.
        Mr. Speaker, the English statesman Edmund Burke said, in 
    addressing an important constitutional question, more than 200 
    years ago:

            We stand in a situation very honorable to ourselves and 
        very useful to our country, if we do not abuse or

[[Page 2042]]

        abandon the trust that is placed in us.

        We stand in such a position now, and--whatever the result--we 
    are going to be just, and honorable, and worthy of the public 
    trust.
        Our responsibility in this is clear. The Constitution says, in 
    article I, section 2, clause 5:

            The House of Representatives, shall have the sole power of 
        impeachment.

        A number of impeachment resolutions were introduced by Members 
    of the House in the last session of the Congress. They were 
    referred to the Judiciary Committee by the Speaker.
        We have reached the point when it is important that the House 
    explicitly confirm our responsibility under the Constitution.
        We are asking the House of Representatives, by this resolution, 
    to authorize and direct the Committee on the Judiciary to 
    investigate the conduct of the President of the United States, to 
    determine whether or not evidence exists that the President is 
    responsible for any acts that in the contemplation of the 
    Constitution are grounds for impeachment, and if such evidence 
    exists, whether or not it is sufficient to require the House to 
    exercise its constitutional powers.
        As part of that resolution, we are asking the House to give the 
    Judiciary Committee the power of subpena in its investigations.
        Such a resolution has always been passed by the House. The 
    committee has voted unanimously to recommend that the House of 
    Representatives adopt this resolution. It is a necessary step if we 
    are to meet our obligations. . . .
        Mr. Hutchinson: Mr. Speaker, the first section of this 
    resolution authorizes and directs your Judiciary Committee to 
    investigate fully whether sufficient grounds exist to impeach the 
    President of the United States. This constitutes the first explicit 
    and formal action in the whole House to authorize such an inquiry.
        The last section of the resolution validates the use by the 
    committee of that million dollars allotted to it last November for 
    purposes of the impeachment inquiry. Members will recall that the 
    million dollar resolution made no reference to the impeachment 
    inquiry but merely allotted that sum of money to the committee to 
    be expended on matters within its jurisdiction. All Members of the 
    House understood its intended purpose.
        But the rule of the House defining the jurisdiction of 
    committees does not place jurisdiction over impeachment matters in 
    the Judiciary Committee. In fact, it does not place such 
    jurisdiction anywhere. So this resolution vests jurisdiction in the 
    committee over this particular impeachment matter, and it ratifies 
    the authority of the committee to expend for the purpose those 
    funds allocated to it last November, as well as whatever additional 
    funds may be hereafter authorized.

    Parliamentarian's Note: Prior to the passage of House Resolution 
803, the Committee on the Judiciary had been conducting an 
investigation into the charges of impeachment against President Nixon 
under its general investigatory authority, as extended by resolution 
(H. Res. 74) of the House

[[Page 2043]]

on Feb. 28, 1973. House Resolution 74 authorized the Committee on the 
Judiciary to conduct investigations, and to issue subpenas during such 
investigations, within its jurisdiction ``as set forth in clause 13 of 
Rule XI of the Rules of the House of Representatives'' [House Rules and 
Manual Sec. 707 (1973)]. That clause did not specifically mention 
impeachments as within the jurisdiction of the Committee on the 
Judiciary. The House had provided for payment, from the contingent 
fund, of further expenses of the Committee on the Judiciary in 
conducting investigations, following the introduction and referral to 
the committee of various resolutions proposing the impeachment of 
President Nixon. Debate on those resolutions and the reports of the 
Committee on House Administration, which had reported them to the 
House, indicated that the additional funds for the investigations of 
the Committee on the Judiciary were intended in part for use in 
conducting an impeachment inquiry in relation to the 
President.(19)
---------------------------------------------------------------------------
19. See H. Res. 702, 93d Cong. 1st Sess., Nov. 15, 1973, and H. Res. 
        1027, 93d Cong. 2d Sess., Apr. 29, 1974, and H. Rept. No. 93-
        1009, Committee on House Administration, to accompany the 
        latter resolution. The report included a statement by Chairman 
        Rodino, of the Committee on the Judiciary, on the status of the 
        impeachment investigation and on the funds required to defray 
        the expenses and salaries of the impeachment inquiry staff.
---------------------------------------------------------------------------

Interrogations and Depositions of Witnesses

Sec. 6.3 The House agreed to a resolution authorizing the counsel to 
    the Committee on the Judiciary to take depositions of witnesses in 
    an impeachment investigation when authorized by the chairman and 
    ranking minority member of the committee, notwithstanding a House 
    rule requiring at least two committee members to be present during 
    the taking of testimony at a formal committee hearing.

    On Feb. 6, 1974, the House agreed to House Resolution 803, called 
up as privileged by the Committee on the Judiciary, authorizing it to 
investigate the sufficiency of grounds for the impeachment of President 
Richard Nixon. The resolution authorized the taking of depositions as 
follows: (1)
---------------------------------------------------------------------------
 1. 120 Cong. Rec. 2349, 2350, 93d Cong. 2d Sess.
---------------------------------------------------------------------------

        Sec. 2. (a) For the purpose of making such investigation, the 
    committee is authorized to require--

[[Page 2044]]

        (1) by subpena or otherwise--
        (A) the attendance and testimony of any person (including at a 
    taking of a deposition by counsel for the committee); and
        (B) the production of such things; and
        (2) by interrogatory, the furnishing of such information as it 
    deems necessary to such investigation.
        (b) Such authority of the committee may be exercised--
        (1) by the chairman and the ranking minority member acting 
    jointly, or, if either declines to act, by the other acting alone, 
    except that in the event either so declines, either shall have the 
    right to refer to the committee for decision the question whether 
    such authority shall be so exercised and the committee shall be 
    convened promptly to render that decision; or
        (2) by the committee acting as a whole or by subcommittee.

    In explanation of the provisions of the resolution, Chairman Peter 
W. Rodino, Jr., of New Jersey, of the Committee on the Judiciary, 
stated that the taking of depositions by counsel was intended to 
expedite the proceedings and investigation.
    Parliamentarian's Note: Rule XI clause 27(h) House Rules and Manual 
Sec. 735 (1973), provided that each committee may fix the number of its 
members to constitute a quorum for taking testimony and receiving 
evidence, which shall not be less than two.

Sec. 6.4 The House in the 93d Congress failed to suspend the rules and 
    agree to a resolution authorizing the Committee on the Judiciary, 
    in holding hearings in its impeachment inquiry into the conduct of 
    President Richard Nixon, to proceed without regard to the House 
    rule requiring the application of the five-minute rule in the 
    interrogation of witnesses.

    On July 1, 1974, Chairman Peter W. Rodino, Jr., of New Jersey, 
moved to suspend the rules and sought agreement to a resolution 
governing the Committee on the Judiciary in hearings conducted in its 
impeachment inquiry against President Nixon:

                                H. Res. 1210

        Resolved, That in conducting hearings held pursuant to House 
    Resolution 803, 93d Congress, the Committee on the Judiciary is 
    authorized to proceed without regard to the second sentence of 
    clause 27(f) (4) of rule XI of the rules of the House.

    Mr. Rodino explained the purpose of the resolution:

        Mr. Rodino: Mr. Speaker, this is a simple resolution which was 
    voted by the House Committee on the Judiciary by an overwhelming 
    vote of 31 to 6. The committee is attempting to meet its 
    responsibilities and to exercise its responsibilities under House 
    Resolution 803 with an eye toward achieving two objectives: 
    conducting the fairest and most thorough inquiry, and arriv

[[Page 2045]]

    ing at the same time at a prompt conclusion to that inquiry as is 
    consistent with our responsibility.
        I believe this resolution authorizing the committee to proceed 
    without regard to the 5-minute rule in the interrogation of 
    witnesses would greatly facilitate the achievement of those 
    objectives. It would permit both probing and orderly examination of 
    witnesses and still provide great flexibility to Members seeking 
    answers to specific relevant questions.

    Mr. David W. Dennis, of Indiana, also of the Committee on the 
Judiciary, demanded a second on the motion and opposed it on the ground 
that abrogating the five-minute rule for witness interrogation 
derogated the privileges and duties of the individual Members of the 
House.
    On a recorded vote, two-thirds did not vote in favor of the motion 
to suspend the rules, and it was rejected.(2)
---------------------------------------------------------------------------
 2. 120 Cong. Rec. 21849-55, 93d Cong. 2d Sess.
---------------------------------------------------------------------------

Evidentiary Hearing Procedures

Sec. 6.5 The Committee on the Judiciary adopted procedures in the 93d 
    Congress for presenting evidence and holding hearings in its 
    inquiry into the conduct of President Richard Nixon.

    On May 2, 1974, the Committee on the Judiciary unanimously adopted 
procedures for presenting evidentiary materials to the committee in 
hearings during its inquiry into charges of impeachable conduct against 
President Nixon: (3)
---------------------------------------------------------------------------
 3. See H. Rept. No. 93-1305, at p. 8, Committee on the Judiciary, 93d 
        Cong. 2d Sess., reported Aug. 20, 1974.
---------------------------------------------------------------------------

                       Impeachment Inquiry Procedures

        The Committee on the Judiciary states the following procedures 
    applicable to the presentation of evidence in the impeachment 
    inquiry pursuant to H. Res. 803, subject to modification by the 
    Committee as it deems proper as the presentation proceeds.
        A. The Committee shall receive from Committee counsel at a 
    hearing an initial presentation consisting of (i) a written 
    statement detailing, in paragraph form, information believed by the 
    staff to be pertinent to the inquiry, (ii) a general description of 
    the scope and manner of the presentation of evidence, and (iii) a 
    detailed presentation of the evidentiary material, other than the 
    testimony of witnesses.
        1. Each Member of the Committee shall receive a copy of (i) the 
    statement of information, (ii) the related documents and other 
    evidentiary material, and (iii) an index of all testimony, papers, 
    and things that have been obtained by the Committee, whether or not 
    relied upon in the statement of information.
        2. Each paragraph of the statement of information shall be 
    annotated to related evidentiary material (e.g., documents, 
    recordings and transcripts

[[Page 2046]]

    thereof, transcripts of grand jury or congressional testimony, or 
    affidavits). Where applicable, the annotations will identify 
    witnesses believed by the staff to be sources of additional 
    information important to the Committee's understanding of the 
    subject matter of the paragraph in question.
        3. On the commencement of the presentation, each Member of the 
    Committee and full Committee staff, majority and minority, as 
    designated by the Chairman and the Ranking Minority Member, shall 
    be given access to and the opportunity to examine all testimony, 
    papers and things that have been obtained by the inquiry staff, 
    whether or not relied upon in the statement of information.
        4. The President's counsel shall be furnished a copy of the 
    statement of information and related documents and other 
    evidentiary material at the time that those materials are furnished 
    to the Members and the President and his counsel shall be invited 
    to attend and observe the presentation.
        B. Following that presentation the Committee shall determine 
    whether it desires additional evidence, after opportunity for the 
    following has been provided:
        1. Any Committee Member may bring additional evidence to the 
    Committee's attention.
        2. The President's counsel shall be invited to respond to the 
    presentation, orally or in writing as shall be determined by the 
    Committee.
        3. Should the President's counsel wish the Committee to receive 
    additional testimony or other evidence, he shall be invited to 
    submit written requests and precise summaries of what he would 
    propose to show, and in the case of a witness precisely and in 
    detail what it is expected the testimony of the witness would be, 
    if called. On the basis of such requests and summaries and of the 
    record then before it, the Committee shall determine whether the 
    suggested evidence is necessary or desirable to a full and fair 
    record in the inquiry, and, if so, whether the summaries shall be 
    accepted as part of the record or additional testimony or evidence 
    in some other form shall be received.
        C. If and when witnesses are to be called, the following 
    additional procedures shall be applicable to hearings held for that 
    purpose:
        1. The President and his counsel shall be invited to attend all 
    hearings, including any held in executive session.
        2. Objections relating to the examination of witnesses or to 
    the admissibility of testimony and evidence may be raised only by a 
    witness or his counsel, a Member of the Committee, Committee 
    counsel or the President's counsel and shall be ruled upon [by] the 
    Chairman or presiding Member. Such rulings shall be final, unless 
    overruled by a vote of a majority of the Members present. In the 
    case of a tie vote, the ruling of the Chair shall prevail.
        3. Committee Counsel shall commence the questioning of each 
    witness and may also be permitted by the Chairman or presiding 
    Member to question a witness at any point during the appearance of 
    the witness.
        4. The President's counsel may question any witness called 
    before the Committee, subject to instructions from the

[[Page 2047]]

    Chairman or presiding Member respecting the time, scope and 
    duration of the examination.

        D. The Committee shall determine, pursuant to the Rules of the 
    House, whether and to what extent the evidence to be presented 
    shall be received in executive session.
        E. Any portion of the hearings open to the public may be 
    covered by television broadcast, radio broadcast, still 
    photography, or by any of such methods of coverage in accord with 
    the Rules of the House and the Rules of Procedure of the Committee 
    as amended on November 13, 1973.
        F. The Chairman shall make public announcement of the date, 
    time, place and subject matter of any Committee hearing as soon as 
    practicable and in no event less than twenty-four hours before the 
    commencement of the hearing.
        G. The Chairman is authorized to promulgate additional 
    procedures as he deems necessary for the fair and efficient conduct 
    of Committee hearings held pursuant to H. Res. 803, provided that 
    the additional procedures are not inconsistent with these 
    Procedures, the Rules of the Committee, and the Rules of the House. 
    Such procedures shall govern the conduct of the hearings, unless 
    overruled by a vote of a majority of the Members present.
        H. For purposes of hearings held pursuant to these rules, a 
    quorum shall consist of ten Members of the Committee.

Sec. 6.6 In its impeachment inquiry into the conduct of President 
    Richard Nixon, the Committee on the Judiciary held hearings in 
    executive session for the presentation of statements of information 
    and supporting evidentiary material by the inquiry staff and for 
    the presentation of materials by the President's counsel.

    In its final report recommending the impeachment of President Nixon 
in the 93d Congress, the Committee on the Judiciary summarized the 
proceedings of the committee which had been conducted in executive 
session: (4)
---------------------------------------------------------------------------
 4. H. Rept. No. 93-1305, at p. 9, Committee on the Judiciary, 93d 
        Cong. 2d Sess., reported Aug. 20, 1974, printed at 120 Cong. 
        Rec. 29221, 93d Cong. 2d Sess., Aug. 20, 1974.
---------------------------------------------------------------------------

        From May 9, 1974 through June 21, 1974, the Committee 
    considered in executive session approximately six hundred fifty 
    ``statements of information'' and more than 7,200 pages of 
    supporting evidentiary material presented by the inquiry staff. The 
    statements of information and supporting evidentiary material, 
    furnished to each Member of the Committee in 36 notebooks, 
    presented material on several subjects of the inquiry: the 
    Watergate break-in and its aftermath, ITT, dairy price supports, 
    domestic surveillance, abuse of the IRS, and the activities of the 
    Special Prosecutor. The staff also presented to the Committee 
    written reports on President Nixon's income taxes, presidential 
    impoundment of funds appropriated by Congress, and the bombing of 
    Cambodia.

[[Page 2048]]

        In each notebook, a statement of information relating to a 
    particular phase of the investigation was immediately followed by 
    supporting evidentiary material, which included copies of documents 
    and testimony (much of it already on public record), transcripts of 
    presidential conversations, and affidavits. A deliberate and 
    scrupulous abstention from conclusions, even by implication, was 
    observed.
        The Committee heard recordings of nineteen presidential 
    conversations and dictabelt recollections. The presidential 
    conversations were neither paraphrased nor summarized by the 
    inquiry staff. Thus, no inferences or conclusions were drawn for 
    the Committee. During the course of the hearings, Members of the 
    Committee listened to each recording and simultaneously followed 
    transcripts prepared by the inquiry staff.
        On June 27 and 28, 1974, Mr. James St. Clair, Special Counsel 
    to the President made a further presentation in a similar manner 
    and form as the inquiry staff's initial presentation. The Committee 
    voted to make public the initial presentation by the inquiry staff, 
    including substantially all of the supporting materials presented 
    at the hearings, as well as the President's response.

Evidence in Impeachment Inquiries

Sec. 6.7 During an investigation into charges of impeachable offenses 
    against a Supreme Court Justice, the Committee on the Judiciary 
    authorized its subcommittee to request and inspect federal tax 
    data, and the President promulgated an executive order permitting 
    such inspection.

    On May 26, 1970, the Committee on the Judiciary authorized by 
resolution a subcommittee investigation of federal tax records of 
Justice William O. Douglas and others:

     Resolution for Special Subcommittee to Consider House Resolution 
                                    920

        Resolved, That the Special Subcommittee to consider H. Res. 
    920, a resolution impeaching William O. Douglas, Associate Justice 
    of the Supreme Court of the United States, of high crimes and 
    misdemeanors in office, hereby is authorized and directed to obtain 
    and inspect from the Internal Revenue Service any and all materials 
    and information relevant to its investigation in the files of the 
    Internal Revenue Service, including tax returns, investigative 
    reports, or other documents, that the Special Subcommittee to 
    consider H. Res. 920 determines to be within the scope of H. Res. 
    920 and the various related resolutions that have been introduced 
    into the House of Representatives.
        The Special Subcommittee on H. Res. 920 is authorized to make 
    such requests to the Internal Revenue Service as the Subcommittee 
    determines to be appropriate, and the Subcommittee is authorized to 
    amend its requests to designate such additional persons, taxpayers, 
    tax returns, investigative reports, and other documents as the 
    Subcommittee determines to be appro

[[Page 2049]]

    priate during the course of this investigation.

        The Special Subcommittee on H. Res. 920 may designate agents to 
    examine and receive information from the Internal Revenue Service.
        This resolution specifically authorizes and directs the Special 
    Subcommittee to obtain and inspect from the Internal Revenue 
    Service the documents and other file materials described in the 
    letter dated May 12, 1970, from Chairman Emanuel Celler to the 
    Honorable Randolph Thrower. The tax returns for the following 
    taxpayers, and the returns for such additional taxpayers as the 
    Subcommittee subsequently may request, are included in this 
    resolution:

            Associate Justice William O. Douglas, Supreme Court of the 
        United States, Washington, D.C. 20036.
            Albert Parvin, 1900 Avenue of the Stars, Suite 1790, 
        Century City, Calif. 90067.
            Albert Parvin Foundation, c/o Arnold & Porter, 1229 19th 
        Street, N.W., Washington, D.C. 20036.
            The Center for the Study of Democratic Institutions, Box 
        4068, Santa Barbara, Calif. 93103.
            Fund for the Republic, 136 East 57th Street, New York, N.Y. 
        10022.
            Parvin-Dohrmann Corp. (Now Recrion Corp.), 120 N. Robertson 
        Blvd., Los Angeles, Calif. 90048.

    On June 12, 1970, President Richard Nixon promulgated Executive 
Order No. 11535 to allow such inspection:

    Inspection of Tax Returns by the Committee on the Judiciary, House 
                             of Representatives

        By virtue of the authority vested in me by sections 55(a) and 
    1604(c) of the Internal Revenue Code of 1939, as amended (26 U.S.C. 
    (1952 Ed.) 55(a), 1604(c)), and by sections 6103(a) and 6106 of the 
    Internal Revenue Code of 1954, as amended (26 U.S.C. 6103(a), 
    6106), it is hereby ordered that any income, excess-profits, 
    estate, gift, unemployment, or excise tax return, including all 
    reports, documents, or other factual data relating thereto, shall, 
    during the Ninety-first Congress, be open to inspection by the 
    Committee on the Judiciary, House of Representatives, or any duly 
    authorized subcommittee thereof, in connection with its 
    consideration of House Resolution 920, a resolution impeaching 
    William O. Douglas, Associate Justice of the Supreme Court of the 
    United States. Whenever a return is open to inspection by such 
    Committee or subcommittee, a copy thereof shall, upon request, be 
    furnished to such Committee or subcommittee. Such inspection shall 
    be in accordance and upon compliance with the rules and regulations 
    prescribed by the Secretary of the Treasury in Treasury Decisions 
    6132 and 6133, relating to the inspection of returns by committees 
    of the Congress, approved by the President on May 3, 
    1955.(5)
---------------------------------------------------------------------------
 5. See first report by the special subcommittee on H. Res. 920 of the 
        Committee on the Judiciary, committee print, 91st Cong. 2d 
        Sess., June 20, 1970, at pp. 14-20.
---------------------------------------------------------------------------

Sec. 6.8 During an impeachment investigation in the House into the 
    conduct of the President, the Senate adopted a resolution releasing 
    records

[[Page 2050]]

    of a Senate select committee on Presidential campaign activities to 
    congressional committees and other persons and agencies with a 
    legitimate need therefore.

    On July 29, 1974,(6) Senator Samuel J. Ervin, Jr., of 
North Carolina, offered in the Senate a resolution (S. Res. 369), 
relative to the records of a Senate select committee. The Senate 
adopted the resolution following Senator Ervin's explanation as to the 
needs and requests of the Committee on the Judiciary of the House:
---------------------------------------------------------------------------
 6. 120 Cong. Rec. 25392, 25393, 93d Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. Ervin: Mr. President, under its present charter, the Senate 
    Select Committee on Presidential Campaign Activities has 90 days 
    after the 28th day of June of this year in which to wind up its 
    affairs. This resolution is proposed with the consent of the 
    committee, and its immediate consideration has been cleared by the 
    leadership on both sides of the aisle.
        The purpose of this resolution is to facilitate the winding up 
    of the affairs of the Senate Select Committee. The resolution 
    provides that all of the records of the committee shall be 
    transferred to the Library of Congress which shall hold them 
    subject to the control of the Senate Committee on Rules and 
    Administration.
        It provides that after these records are transferred to the 
    Library of Congress the Senate Committee on Rules and 
    Administration shall control the access to the records and either 
    by special orders or by general regulations shall make the records 
    available to courts, congressional committees, congressional 
    subcommittees, Federal departments and agencies, and any other 
    persons who may satisfy the Senate Committee on Rules and 
    Administration that they have a legitimate need for the records.
        It provides that the records shall be maintained intact and 
    that none of the original records shall be released to any agency 
    or any person.
        It provides further that pending the transfer of the records to 
    the Library of Congress and the assumption of such control by the 
    Senate Committee on Rules and Administration, that the Select 
    Committee, acting through its chairman or through its vice 
    chairman, can make these records available to courts or to 
    congressional committees or subcommittees or to other persons 
    showing a legitimate need for them.
        I might state this is placed in here because of the fact that 
    we have had many requests from congressional committees for the 
    records. We have had requests from the Special Prosecutor and from 
    the courts. . . .
        I might state in the past the committee has made available some 
    of the records to the House Judiciary Committee, at its request, 
    and to the Special Prosecutor at his request. The resolution also 
    provides that the action of the committee in doing so is ratified 
    by the Senate.

Sec. 6.9 In its inquiry into charges of impeachable of

[[Page 2051]]

    fenses against President Richard Nixon, the Committee on the 
    Judiciary adopted procedures which ensured the confidentiality of 
    impeachment inquiry materials and which limited access to such 
    materials.

    On Feb. 22, 1974, the Committee on the Judiciary unanimously 
adopted a set of procedures to preserve the confidentiality of 
evidentiary and other materials compiled in its impeachment inquiry 
relating to the conduct of President Nixon: (7)
---------------------------------------------------------------------------
 7. See H. Rept. No. 93-1305, at p. 8, Committee on the Judiciary, 
        printed in the Record at 120 Cong. Rec. 29219, 29221, 93d Cong. 
        2d Sess., Aug. 20, 1974, for brief discussion of the adoption 
        of the procedures.
            The House had authorized the printing of additional copies 
        of the procedures for handling impeachment inquiry materials. 
        See H. Res. 1072, 93d Cong. 2d Sess., May 23, 1974.
---------------------------------------------------------------------------

            Procedures for Handling Impeachment Inquiry Material

        1. The chairman, the ranking minority member, the special 
    counsel, and the counsel to the minority shall at all times have 
    access to and be responsible for all papers and things received 
    from any source by subpena or otherwise. Other members of the 
    committee shall have access in accordance with the procedures 
    hereafter set forth.
        2. At the commencement of any presentation at which testimony 
    will be heard or papers and things considered, each committee 
    member will be furnished with a list of all papers and things that 
    have been obtained by the committee by subpena or otherwise. No 
    member shall make the list or any part thereof public unless 
    authorized by a majority vote of the committee, a quorum being 
    present.
        3. The special counsel and the counsel to the minority, after 
    discussion with the chairman and the ranking minority member, shall 
    initially recommend to the committee the testimony, papers, and 
    things to be presented to the committee. The determination as to 
    whether such testimony, papers, and things shall be presented in 
    open or executive session shall be made pursuant to the rules of 
    the House.
        4. Before the committee is called upon to make any disposition 
    with respect to the testimony or papers and things presented to it, 
    the committee members shall have a reasonable opportunity to 
    examine all testimony, papers, and things that have been obtained 
    by the inquiry staff. No member shall make any of that testimony or 
    those papers or things public unless authorized by a majority vote 
    of the committee, a quorum being present.
        5. All examination of papers and things other than in a 
    presentation shall be made in a secure area designated for that 
    purpose. Copying, duplicating, or removal is prohibited.
        6. Any committee member may bring additional testimony, papers, 
    or things to the committee's attention.
        7. Only testimony, papers, or things that are included in the 
    record will be reported to the House; all other testi

[[Page 2052]]

    mony, papers, or things will be considered as executive session 
    material.

                  Rules for the Impeachment Inquiry Staff

        1. The staff of the impeachment inquiry shall not discuss with 
    anyone outside the staff either the substance or procedure of their 
    work or that of the committee.
        2. Staff offices on the second floor of the Congressional Annex 
    shall operate under strict security precautions. One guard shall be 
    on duty at all times by the elevator to control entry. All persons 
    entering the floor shall identify themselves. An additional guard 
    shall be posted at night for surveillance of the secure area where 
    sensitive documents are kept.
        3. Sensitive documents and other things shall be segregated in 
    a secure storage area. They may be examined only at supervised 
    reading facilities within the secure area. Copying or duplicating 
    of such documents and other things is prohibited.
        4. Access to classified information supplied to the committee 
    shall be limited by the special counsel and the counsel to the 
    minority to those staff members with appropriate security 
    clearances and a need to know.
        5. Testimony taken or papers and things received by the staff 
    shall not be disclosed or made public by the staff unless 
    authorized by a majority of the committee.
        6. Executive session transcripts and records shall be available 
    to designated committee staff for inspection in person but may not 
    be released or disclosed to any other person without the consent of 
    a majority of the committee.

    Parliamentarian's Note: On June 21, 1974, a Member, John N. 
Erlenborn, of Illinois, took the floor to allege that he was being 
denied permission to study files and records gathered by the Committee 
on the Judiciary in its impeachment inquiry into the conduct of the 
President, in violation of Rule XI clause 27(c) of the House 
rules.(8) Rule XI clause 27(c) provided that committee 
hearings and records are to be kept separate from the records of the 
committee chairman and that all Members of the House have access to 
such records. Other provisions of the rule require that a committee may 
receive testimony or evidence in executive session, and that the 
proceedings of such sessions may not be released unless the committee 
so determines. And non-committee Members of the House are not permitted 
to attend executive committee sessions.(9)
---------------------------------------------------------------------------
 8. 120 Cong. Rec. 20624, 93d Cong. 2d Sess.
 9. Although Jefferson's Manual states that any Member may be present 
        at ``any select committee'' (House Rules and Manual Sec. 410 
        [1973]), a select committee appointed in 1834 held that its 
        proceedings should be confidential, not to be attended by any 
        person not invited or required. 3 Hinds' Precedents Sec. 1732. 
        See also 4 Hinds' Precedents Sec. 4540 for the principle that 
        committees may make their sessions executive and exclude 
        persons not members thereof.

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

[[Page 2053]]

Sec. 6.10 The Speaker laid before the House a communication from the 
    Chairman of the Committee on the Judiciary, submitting to the House 
    a ``statement of information'' concerning the income tax returns of 
    President Richard Nixon examined by that committee in executive 
    session during its impeachment inquiry, in order to comply with a 
    Treasury Department regulation requiring submission of Internal 
    Revenue Service files to the House prior to public release.

    On July 25, 1974, Speaker Carl Albert, of Oklahoma, laid before the 
House a communication from Chairman Peter W. Rodino, Jr., of New 
Jersey, of the Committee on the Judiciary: (10)
---------------------------------------------------------------------------
10. 120 Cong. Rec. 25306, 25307, 93d Cong. 2d Sess.
---------------------------------------------------------------------------

     Communicatton From the Chairman of the Committee on the Judiciary

        The Speaker laid before the House the following communication 
    from the chairman of the Committee on the Judiciary:

                                    Washington, D.C., July 26, 1974.
                                                   Hon. Carl Albert,
                 Speaker, House of Representatives, Washington, D.C.

            Dear Mr. Speaker: On February 6, 1974, the House of 
        Representatives adopted H. Res. 803, which authorized and 
        directed the Committee on the Judiciary to investigate fully 
        and completely whether sufficient grounds exist for the House 
        of Representatives to exercise under Article I, Section 2 of 
        the Constitution, its power to impeach President Richard M. 
        Nixon.
            In carrying out its responsibility under H. Res. 803, the 
        Judiciary Committee investigated allegations regarding 
        President Nixon's income tax returns. The Committee requested 
        access to the President's returns and reports on those returns 
        in the files of the Internal Revenue Service. This access was 
        granted by the President in Executive Order 11786, dated June 
        7, 1974, and information from the returns and IRS documents was 
        subsequently presented to the Committee in executive session.
            The Committee is now publicly debating whether to report 
        various articles of impeachment to the House. In the course of 
        this debate reference will surely be made to income tax 
        information regarding the President. Under the Constitution and 
        H. Res. 803, it is appropriate, indeed necessary, to refer to 
        this information in a debate which is of the highest 
        Constitutional significance.
            Commissioner Donald Alexander of the Internal Revenue 
        Service has requested that before information from IRS files is 
        released publicly it be submitted to the House, thus complying 
        with Treasury Department regulations. While this procedure is 
        undoubtedly unnecessary in view of this Committee's 
        Constitutional responsibility and the authority granted it by 
        H. Res. 803, in consideration of the Commissioner's position, I 
        am herewith submitting the enclosed Statement of Information, 
        Book X. This Book will be part of the Committee's record when 
        it makes its recommendation to the House.
              Sincerely,

[[Page 2054]]

                                           Peter W. Rodino, Jr.,
                                                         Chairman.

Subcommittee Procedures

Sec. 6.11 The Committee on the Judiciary authorized a special 
    subcommittee to investigate and report on charges of impeachable 
    offenses against a federal judge.

    On June 20, 1970, a special subcommittee of the Committee on the 
Judiciary, investigating charges of impeachment against Associate 
Justice William O. Douglas, made an interim report to the committee as 
to its authority and procedures: (11)
---------------------------------------------------------------------------
11. First report of the special subcommittee on H. Res. 920 of the 
        Committee on the Judiciary, committee print, 91st Cong. 2d 
        Sess., June 20, 1970.
---------------------------------------------------------------------------

                                I. Authority

        On April 21, 1970, the Committee on the Judiciary adopted a 
    resolution to authorize the appointment of a Special Subcommittee 
    on H. Res. 920, a resolution impeaching William O. Douglas, 
    Associate Justice of the Supreme Court of the United States, of 
    high crimes and misdemeanors in office. Pursuant to this 
    resolution, the following members were appointed: Emanuel Celler 
    (New York), Chairman; Byron G. Rogers (Colorado); Jack Brooks 
    (Texas); William M. McCulloch (Ohio); and Edward Hutchinson 
    (Michigan).
        The Special Subcommittee on H. Res. 920 is appointed and 
    operates under the Rules of the House of Representatives. Rule XI 
    13(f) empowers the Committee on the Judiciary to act on all 
    proposed legislation, messages, petitions, memorials, or other 
    matters relating to ``. . . Federal courts and judges.'' In the 
    91st Congress, Rule XI has been implemented by H. Res. 93, February 
    5, 1969. H. Res. 93 authorizes the Committee on the Judiciary, 
    acting as a whole or by subcommittee, to conduct full and complete 
    investigations and studies on the matters coming within its 
    jurisdiction, specifically ``. . . (4) relating to judicial 
    proceedings and the administration of Federal courts and personnel 
    thereof, including local courts in territories and possessions''.
        H. Res. 93 empowers the Committee to issue subpenas, over the 
    signature of the Chairman of the Committee or any Member of the 
    Committee designated by him. Subpenas issued by the Committee may 
    be served by any person designated by the Chairman or such 
    designated Member.
        On April 28, 1970, the Special Subcommittee on H. Res. 920 held 
    its organization meeting, appointed staff, and adopted procedures 
    to be applied during the investigation. Although the power to issue 
    subpenas is available, and the Subcommittee is prepared to use 
    subpenas if necessary to carry out this investigation, thus far all 
    potential witnesses have been cooperative and it has not been 
    necessary to employ this investigatory tool. The Special 
    Subcommittee operates under procedures established in paragraph 27, 
    Rules of Committee Procedure, of Rule XI of the House of 
    Representatives. These procedures will be followed until additional 
    rules are adopted, which, on the basis

[[Page 2055]]

    of precedent in other impeachment proceedings, are determined by 
    the Special Subcommittee to be appropriate.

Issuance of Subpenas; Effect of Noncompliance

Sec. 6.12 The Committee on the Judiciary determined in the 93d Congress 
    that a federal civil officer could be impeached for failing to 
    comply with duly authorized subpenas issued by the committee in the 
    course of its investigation into impeachment charges against him.

    On Aug. 20, 1974, the Committee on the Judiciary submitted to the 
House a report (H. Rept. No. 93-1305) recommending the impeachment of 
President Richard Nixon on three articles of impeachment, without an 
accompanying resolution of impeachment, the President having resigned. 
Article III, adopted by the committee on July 30, 1974, impeached the 
former President for failing without lawful cause or excuse to comply 
with subpenas issued by the committee for things and papers relative to 
the impeachment inquiry.(12)
---------------------------------------------------------------------------
12. H. Rept. No. 93-1305, Committee on the Judiciary, 93d Cong. 2d 
        Sess., Aug. 20, 1974, printed in full in the Record at 120 
        Cong. Rec. 29219-361, 93d Cong. 2d Sess., Aug. 20, 1974. For 
        the articles impeaching President Nixon, see Sec. 3.1, supra. 
        The minority views challenge such a refusal to comply with a 
        subpena as grounds for impeachment (see Sec. 3.8, supra).
---------------------------------------------------------------------------

    Parliamentarian's Note: The House has in the past considered the 
question whether a federal civil officer was subject to contempt 
proceedings for declining to honor a subpena issued in the course of an 
impeachment investigation or investigation directed toward impeachment. 
In 1879, a committee of the House was conducting an investigation, as 
authorized by the House, into the conduct of the then Minister to 
China, George Seward. In the course of its impeachment inquiry, the 
committee issued subpenas to Mr. Seward commanding him to produce 
papers in relation to the inquiry. Upon his refusal, he was arraigned 
at the bar of the House for contempt. The contempt charge was referred 
to the investigating committee, which concluded in its report (not 
considered by the House) that an official threatened with impeachment 
was not in contempt for declining to be sworn as a witness or to 
produce documentary evidence.(13) Likewise, in 1837, a 
committee was investigating expenditures in cer

[[Page 2056]]

tain executive departments, with a view towards impeachment (of heads 
of departments or of President Andrew Jackson). The committee adopted a 
resolution requesting papers from the President, who declined to 
produce them and submitted a letter criticizing the committee for 
requesting that he and the department heads ``become our own 
accusers.'' The committee laid on the table resolutions censuring the 
President for such action and the committee report concluded that there 
was no privilege of the House to compel public officers to furnish 
evidence against themselves.(14)
---------------------------------------------------------------------------
13. 3 Hinds' Precedents Sec. Sec. 1699, 1700.
14. 3 Hinds' Precedents Sec. 1737.
---------------------------------------------------------------------------

Court Access to Committee Evidence

Sec. 6.13 Where a federal court subpenaed in a criminal case certain 
    evidence gathered by the Committee on the Judiciary in an 
    impeachment inquiry, the House adopted a resolution granting such 
    limited access to the evidence as would not violate the privileges 
    of the House or its sole power of impeachment under the United 
    States Constitution.

    On Aug. 22, 1974,(15) Speaker Carl Albert, of Oklahoma, 
laid before the House subpenas issued by a federal district court in a 
criminal case, requesting certain evidence gathered by the Committee on 
the Judiciary and its subcommittee on impeachment, in the inquiry into 
the conduct of President Richard Nixon. The House adopted a resolution 
(H. Res. 1341) which granted such limited access to the evidence as 
would not violate the privileges or constitutional powers of the House. 
The resolution read as follows:
---------------------------------------------------------------------------
15. 120 Cong Rec. 30026, 93d Cong. 2d Sess.
---------------------------------------------------------------------------

                                H. Res. 1341

        Whereas in the case of United States of America against John N. 
    Mitchell et al. (Criminal Case No. 74-110), pending in the United 
    States District Court for the District of Columbia, subpenas duces 
    tecum were issued by the said court and addressed to Representative 
    Peter W. Rodino, United States House of Representatives, and to 
    John Doar, Chief Counsel, House Judicial Subcommittee on 
    Impeachment, House of Representatives, directing them to appear as 
    witnesses before said court at 10:00 antemeridian on the 9th day of 
    September, 1974, and to bring with them certain and sundry papers 
    in the possession and under the control of the House of 
    Representatives: Therefore be it
        Resolved, That by the privileges of this House no evidence of a 
    documentary character under the control and in the possession of 
    the House of Representatives can, by the mandate of process of the 
    ordinary courts of justice, be taken from such control or pos

[[Page 2057]]

    session but by its permission; be it further
        Resolved, That the House of Representatives under Article I, 
    Section 2 of the Constitution has the sole power of impeachment and 
    has the sole power to investigate and gather evidence to determine 
    whether the House of Representatives shall exercise its 
    constitutional power of impeachment; be it further
        Resolved, That when it appears by the order of the court or of 
    the judge thereof, or of any legal officer charged with the 
    administration of the orders of such court or judge, that 
    documentary evidence in the possession and under the control of the 
    House is needful for use in any court of justice, or before any 
    judge or such legal officer, for the promotion of justice, this 
    House will take such action thereon as will promote the ends of 
    justice consistently with the privileges and rights of this House; 
    be it further
        Resolved, That when said court determines upon the materiality 
    and the relevancy of the papers and documents called for in the 
    subpenas duces tecum, then the said court, through any of its 
    officers or agents, have full permission to attend with all proper 
    parties to the proceeding and then always at any place under the 
    orders and control of this House and take copies of all memoranda 
    and notes, in the files of the Committee on the Judiciary, of 
    interviews with those persons who subsequently appeared as 
    witnesses in the proceedings before the full Committee pursuant to 
    House Resolution 803, such limited access in this instance not 
    being an interference with the Constitutional impeachment power of 
    the House, and the Clerk of the House is authorized to supply 
    certified copies of such documents and papers in possession or 
    control of the House of Representatives that the court has found to 
    be material and relevant (except that under no circumstances shall 
    any minutes or transcripts of executive sessions, or any evidence 
    of witnesses in respect thereto, be disclosed or copied) and which 
    the court or other proper officer thereof shall desire, so as, 
    however, the possession of said papers, documents, and records by 
    the House of Representatives shall not be disturbed, or the same 
    shall not be removed from their place of file or custody under any 
    Members, officer, or employee of the House of Representatives; and 
    be it further
        Resolved, That a copy of these resolutions be transmitted to 
    the said court as a respectful answer to the subpenas 
    aforementioned.



 
                               CHAPTER 14
 
                           Impeachment Powers
 
                    B. INVESTIGATION AND IMPEACHMENT
 
Sec. 7. Committee Consideration; Reports

    Under Rule XI, the rules of the House are the rules of its 
committees and subcommittees where applicable.(1) 
Consideration by committees of impeachment propositions to be reported 
to the House is therefore generally governed by the principles of 
consideration and debate that are normally followed in taking up any 
proposition. Thus, in the 93d Congress, the

---------------------------------------------------------------------------
 1. Rule XI clause 27(a), House Rules and Manual Sec. 735 (1973).
---------------------------------------------------------------------------
[[Page 2058]]

Committee on the Judiciary adopted a resolution for the consideration 
of articles impeaching President Richard Nixon, providing for general 
debate, and permitting amendment under the five-minute 
rule.(2)

---------------------------------------------------------------------------
 2. See Sec. 7.2. infra.
---------------------------------------------------------------------------

                            Cross References
Committee consideration and reports generally, see Ch. 17, infra.
Committee powers and procedures as to impeachment investigations, see 
    Sec. 6, supra.
Committee procedure generally, see Ch. 17, infra.
Committee reports on grounds for impeachment, see Sec. 3, supra.
Management by reporting committee of impeachment propositions in the 
    House, see Sec. 8, infra.

                         Collateral References
Debates on Articles of Impeachment, Hearings of the Committee on the 
    Judiciary pursuant to H. Res. 803, July 24, 25, 26, 27, 29, and 30, 
    1974, 93d Cong. 2d Sess.
Impeachment of Richard M. Nixon, President of the United States, H. 
    Rept. No. 93-1305, Committee on the Judiciary, 93d Cong. 2d Sess., 
    Aug. 20, 1974.
Associate Justice William O. Douglas, final report by the Special 
    Subcommittee on H. Res. 920, Committee on the Judiciary, 91st Cong. 
    2d Sess., Sept. 17 
    1970.                          -------------------

Consideration of Resolution and Articles of Impeachment

Sec. 7.1 Under the modern practice, the Committee on the Judiciary may 
    report to the House, when recommending impeachment, both a 
    resolution and articles of impeachment, to be considered together 
    by the House.

    On July 8, 1912, Mr. Henry D. Clayton, of Alabama, of the Committee 
on the Judiciary reported to the House a resolution (H. Res. 524) 
impeaching Judge Robert Archbald. The resolution not only impeached but 
set out articles of impeachment which the resolution stated were 
sustained by the evidence.(3) A similar procedure was 
followed in the impeachment of certain other judges--George 
English,(4) Harold Louderback,(5) and Halsted 
Ritter. The resolution of impeachment in the Ritter case incorporated 
the articles (the articles themselves which followed the text below 
have been omitted): (6)
---------------------------------------------------------------------------
 3. 48 Cong. Rec. 8697, 8698, 62d Cong. 2d Sess. (report and resolution 
        printed in full in the Record).
 4. 67 Cong. Rec. 6280, 69th Cong. 1st Sess., Mar. 25, 1926.
 5. 76 Cong. Rec. 4913, 4914, 72d Cong. 2d Sess., Feb. 24, 1933.
 6. 80 Cong. Rec. 3066, 74th Cong. 2d Sess., Mar. 2, 1936.

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

[[Page 2059]]

            [H. Res. 422, 74th Cong., 2d Sess. (Rept. No. 2025)]

                                 Resolution

        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 House 
    Resolution 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.

Resolutions for Committee Consideration

Sec. 7.2 The Committee on the Judiciary adopted in the 93d Congress a 
    resolution governing its consideration of a motion to report to the 
    House a resolution and articles impeaching President Richard Nixon; 
    the resolution provided for general debate on the resolution, 
    reading the articles for amendment under the five-minute rule, and 
    considering the original motion as adopted should any article be 
    agreed to.

    On July 23, 1974, the Committee on the Judiciary adopted a 
resolution providing that on July 24 the committee should commence 
general debate on reporting to the House a resolution and articles of 
impeachment against President Nixon; the resolution provided for 
general debate and reading of the articles for amendment under the 
five-minute rule: (7)
---------------------------------------------------------------------------
 7. H. Rept. No. 93-1305, at p. 10, Committee on the Judiciary, 93d 
        Cong. 2d Sess., reported Aug. 20, 1 1974.
---------------------------------------------------------------------------

        Resolved, That at a business meeting on July 24, 1974, the 
    Committee shall commence general debate on a motion to report to 
    the House a Resolution, together with articles of impeachment, 
    impeaching Richard M. Nixon, President of the United States. Such 
    general debate shall consume no more than ten hours, during which 
    time no Member shall be recognized for a period to exceed 15 
    minutes. At the conclusion of general debate, the proposed articles 
    shall be read for amendment and Members shall be recognized for a 
    period of five minutes to speak on each

[[Page 2060]]

    proposed article and on any and all amendments thereto, unless by 
    motion debate is terminated thereon. Each proposed article, and any 
    additional article, shall be separately considered for amendment 
    and immediately thereafter voted upon as amended for recommendation 
    to the House. At the conclusion of consideration of the articles 
    for amendment and recommendation to the House, if any article has 
    been agreed to, the original motion shall be considered as adopted 
    and the Chairman shall report to the House said Resolution of 
    impeachment, together with such articles as have been agreed to, or 
    if no article is agreed to, the Committee shall consider such 
    resolutions or other recommendations as it deems proper.

Broadcasting Committee Meetings During Consideration of Impeachment

Sec. 7.3 The House in the 93d Congress amended Rule XI of the rules of 
    the House to provide for broadcasting of meetings, as well as 
    hearings, of committees, thereby permitting radio and television 
    coverage of the consideration by the Committee on the Judiciary of 
    a resolution and articles of impeachment against President Richard 
    Nixon.

    On July 22, 1974, Mr. B.F. Sisk, of California, called up by 
direction of the Committee on Rules a resolution (H. Res. 1107) 
amending the rules of the House.(8)
---------------------------------------------------------------------------
 8. 120 Cong. Rec. 24436, 93d Cong. 2d Sess.
---------------------------------------------------------------------------

    Debate on the resolution indicated that it was intended to clarify 
the rules of the House to permit all committees to allow broadcasting 
of their meetings as well as hearings by majority vote, but that its 
immediate purpose was to allow the broadcasting of the proceedings of 
the Committee on the Judiciary in considering a resolution and articles 
of impeachment against President Nixon (to commence on July 24, 1974). 
The House discussed the advisability of, and procedures for, televising 
the proceedings of the Committee on the Judiciary, and adopted the 
resolution.(9)
---------------------------------------------------------------------------
 9. Speaker Carl Albert (Okla.) overruled a point of order against 
        consideration of the resolution and held that the question 
        whether a committee meeting was properly called was a matter 
        for the committee and not the House to consider. 120 Cong. Rec. 
        24437, 93d Con. 2d Sess.
---------------------------------------------------------------------------

Privilege of Reports on Impeachment Questions

Sec. 7.4 The reports of a committee to which has been referred 
    resolutions for the impeachment of a federal civil officer are 
    privileged for immediate consideration.

[[Page 2061]]

    Resolutions impeaching federal civil officers, or resolutions 
incidental to an impeachment question, are highly privileged under the 
U.S. Constitution (Sec. 5, supra); reports thereon are likewise 
considered as privileged.(10)
---------------------------------------------------------------------------
10. Rule XI clause 27 (d) (4), House Rules and Manual Sec. 735 (1973) 
        requires that, with certain exceptions, a measure not be 
        considered in the House until the third calendar day on which 
        the report thereon has been available to Members. However, on 
        July 13, 1971, Speaker Carl Albert (Okla.) held that a 
        committee report relating to the refusal of a witness to 
        respond to a subpena was not subject to the three-day rule. See 
        117 Cong. Rec. 24720-23, 92d Cong. 1st Sess. (H. Rept. No. 92-
        349). The Speaker held in that case that ``the report is of 
        such high privilege under the inherent constitutional powers of 
        the House and under Rule IX that the provisions of clause 27(d) 
        (4) of Rule XI are not applicable.''
            See also the dicta of Speaker Frederick H. Gillett (Mass.), 
        at 6 Cannon's Precedents Sec. 48, that impeachment charges were 
        privileged for immediate consideration due to their 
        particularly privileged status under the U.S. Constitution.
            These arguments seem persuasive with respect to impeachment 
        cases when reported.
---------------------------------------------------------------------------

Privilege of Reports as to Discontinuance of Impeachment Proceedings

Sec. 7.5 Reports proposing discontinuance of impeachment proceedings 
    are privileged for immediate consideration when reported from the 
    Committee on the Judiciary.

    On Feb. 13, 1932, Mr. Hatton W. Sumners, of Texas, offered House 
Report No. 444 and House Resolution 143, discontinuing impeachment 
proceedings against Secretary of the Treasury Andrew Mellon. He offered 
the report as privileged and it was immediately considered and adopted 
by the House.(11)
---------------------------------------------------------------------------
11. 75 Cong. Rec. 3850, 72d Cong. 1st Sess.
---------------------------------------------------------------------------

    On Mar. 24, 1939, Mr. Sam Hobbs, of Alabama, called up a privileged 
report of the Committee on the Judiciary on House Resolution 67, which 
report recommended against the impeachment of Secretary of Labor 
Frances Perkins. The report was called up as privileged and the House 
immediately agreed to Mr. Hobbs' motion to lay the report on the 
table.(12)
---------------------------------------------------------------------------
12. 84 Cong. Rec. 3273, 76th Cong. 1st Sess.
---------------------------------------------------------------------------

Calendaring and Printing of Impeachment Reports

Sec. 7.6 Reports of the Committee on the Judiciary recommending 
    impeachment of civil officers and judges of

[[Page 2062]]

    the United States are referred to the House Calendar and ordered 
    printed.

    A committee report on the impeachment of a federal civil officer is 
referred to the House Calendar, ordered printed, and may be printed in 
full in the Record either by resolution or pursuant to a unanimous 
consent request.(13)
---------------------------------------------------------------------------
13. 48 Cong. Rec. 8697, 8698, 62d Cong. 2d Sess., July 8, 1912 (Judge 
        Robert Archbald); see also H. Rept. No. 653, 67 Cong. Rec. 
        6280, 69th Cong. 1st Sess., Mar. 25, 1926 (Judge George 
        English), printed in full in the Record by unanimous consent; 
        H. Rept. No. 2025, 80 Cong. Rec. 2528, 74th Cong. 2d Sess., 
        Feb. 20, 1936 (Judge Halsted Ritter); H. Rept. No. 1305, 120 
        Cong. Rec. 29219, 93d Cong. 2d Sess., Aug. 20, 1974 (President 
        Richard Nixon), printed in full in the Record pursuant to H. 
        Res. 1333, 120 Cong. Rec. 29361, 29362.
---------------------------------------------------------------------------

Report Submitted Without Resolution of impeachment

Sec. 7.7 President Richard Nixon having resigned following the decision 
    of the Committee on the Judiciary to report to the House 
    recommending his impeachment, the committee's report, without an 
    accompanying resolution, was submitted to and accepted by the 
    House.

    The Committee on the Judiciary considered proposed articles of 
impeachment against President Nixon and adopted articles, as amended, 
on July 27, 29, and 30, 1974. Before the committee report with articles 
of impeachment were reported to the House, the President resigned his 
office. The committee's report was therefore submitted to the House 
without an accompanying resolution of impeachment. The report 
summarized in detail the evidence against the President and the 
committee's investigation and consideration of impeachment charges, and 
included supplemental, additional, separate, dissenting, minority, and 
concurring views as to the separate articles, the evidence before the 
committee and its sufficiency for impeachment, and the standards and 
grounds for impeachment of federal and civil officers.
    The committee's recommendation read as follows:

        The Committee on the Judiciary, to whom was referred the 
    consideration of recommendations concerning the exercise of the 
    constitutional power to impeach Richard M. Nixon, President of the 
    United States, having considered the same, reports thereon pursuant 
    to H. Res. 803 as follows and recommends that the House exercise 
    its constitutional power to impeach Richard M. Nixon, President of 
    the United States, and that articles of impeachment be exhibited to 
    the Senate as follows: . . .(14)
---------------------------------------------------------------------------
14. H. Rept. No. 93-1305, at p. 1, Committee on the Judiciary, printed 
        in the Record at 120 Cong. Rec.  29219, 93d Cong. 2d Sess., 
        Aug. 20, 1974. For complete text of H. Rept. No. 93-1305, see 
        id. at pp 29219-361.

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

[[Page 2063]]

    The report was referred by the Speaker to the House Calendar, and 
accepted and ordered printed in full in the Record pursuant to the 
following resolution, agreed to under suspension of the rules, which 
acknowledged the intervening resignation of the President:

                                H. Res. 1333

        Resolved, That the House of Representatives
        (1) takes notice that
        (a) the House of Representatives, by House Resolution 803, 
    approved February 6, 1974, authorized and directed the Committee on 
    the Judiciary to investigate fully and completely whether 
    sufficient grounds existed for the House of Representatives to 
    exercise its constitutional power to impeach Richard M. Nixon, 
    President of the United States of America; and
        (b) the Committee on the Judiciary, after conducting a full and 
    complete investigation pursuant to House Resolution 803, voted on 
    July 27, 29, and 30, 1974 to recommend Articles of impeachment 
    against Richard M. Nixon, President of the United States of 
    America; and
        (c) Richard M. Nixon on August 9, 1974 resigned the Office of 
    President of the United States of America;

        (2) accepts the report submitted by the Committee on the 
    Judiciary pursuant to House Resolution 803 (H. Rept. 93-1305) and 
    authorizes and directs that the said report, together with 
    supplemental, additional, separate, dissenting, minority, 
    individual and concurring views, be printed in full in the 
    Congressional Record and as a House Document; and
        (3) commends the chairman and other members of the Committee on 
    the Judiciary for their conscientious and capable efforts in 
    carrying out the Committee's responsibilities under House 
    Resolution 803.(15)
---------------------------------------------------------------------------
15. 120 Cong. Rec. 29361, 93d Cong. 2d Sess., Aug. 20, 1974.
---------------------------------------------------------------------------

Reports Discontinuing Impeachment Proceedings

Sec. 7.8 The Committee on the Judiciary unanimously agreed to report 
    adversely a resolution authorizing an impeachment investigation 
    into the conduct of the Secretary of Labor.

    On Mar. 24, 1939,(16) a privileged report of the 
Committee on the Judiciary was presented to the House; the report was 
adverse to a resolution (H. Res. 67) authorizing an investigation of 
impeachment charges against Secretary of Labor Frances Perkins and two 
other officials of the Labor Department:
---------------------------------------------------------------------------
16. 84 Cong. Rec. 3273, 76th Cong. 1st Sess.
---------------------------------------------------------------------------

                  Impeachment Proceedings--Frances Perkins

        Mr. [Sam] Hobbs [of Alabama]: Mr. Speaker, by direction of the 
    Committee

[[Page 2064]]

    on the Judiciary I present a privileged report upon House 
    Resolution 67, which I send to the desk.
        The Speaker: (17) The Clerk will report the 
    resolution.
---------------------------------------------------------------------------
17. William B. Bankhead (Ala.).
---------------------------------------------------------------------------

        The Clerk read House Resolution 67.
        Mr. Hobbs: Mr. Speaker, this is a unanimous report from the 
    Committee on the Judiciary adversing this resolution. I move to lay 
    the resolution on the table.
        The Speaker: The question is on the motion of the gentleman 
    from Alabama to lay the resolution on the table.
        The motion was agreed to.

Sec. 7.9 Where an impeachment resolution was pending before the 
    Committee on the Judiciary, and the official charged resigned, the 
    committee reported out a resolution recommending that the further 
    consideration of the charges be discontinued.

    On Feb. 13, 1932,(18) the Committee on the Judiciary 
reported adversely on impeachment charges and its resolution was 
adopted by the House:
---------------------------------------------------------------------------
18. 75 Cong. Rec. 3850, 72d Cong. 1st Sess.
---------------------------------------------------------------------------

        Impeachment Charges--Report From Committee on the Judiciary

        Mr. [Hatton W.] Sumners of Texas: Mr. Speaker, I offer a report 
    from the Committee on the Judiciary, and I would like to give 
    notice that immediately upon the reading of the report I shall move 
    the previous question.
        The Speaker: (19) The gentleman from Texas offers a 
    report, which the Clerk will read.
---------------------------------------------------------------------------
19. John N. Garner (Tex.).
---------------------------------------------------------------------------

        The Clerk read the report, as follows:

            House of Representatives--Relative to the Action of the 
         Committee on the Judiciary With Reference to House Resolution 
                                       92

            Mr. Sumners of Texas, from the Committee on the Judiciary, 
        submitted the following report (to accompany H. Res. 143):
            I am directed by the Committee on the Judiciary to submit 
        to the House, as its report to the House, the following 
        resolution adopted by the Committee on the Judiciary indicating 
        its action with reference to House Resolution No. 92 heretofore 
        referred by the House to the Committee on the Judiciary:
            Whereas Hon. Wright Patman, Member of the House of 
        Representatives, filed certain impeachment charges against Hon. 
        Andrew W. Mellon, Secretary of the Treasury, which were 
        referred to this committee; and
            Whereas pending the investigation of said charges by said 
        committee, and before said investigation had been completed, 
        the said Hon. Andrew W. Mellon was nominated by the President 
        of the United States for the post of ambassador to the Court of 
        St. James and the said nomination was duly confirmed by the 
        United States Senate pursuant to law, and the said Andrew W. 
        Mellon has resigned the position of Secretary of the Treasury: 
        Be it
            Resolved by this committee, That the further consideration 
        of the said charges made against the said Andrew W. Mellon, as 
        Secretary of the Treasury, be, and the same are hereby 
        discontinued.

[[Page 2065]]

                               Minority Views

            We can not join in the majority views and findings. While 
        we concur in the conclusions of the majority that section 243 
        of the Revised Statutes, upon which the proceedings herein were 
        based, provides for action in the nature of an ouster 
        proceeding, it is our view that the Hon. Andrew W. Mellon, the 
        former Secretary of the Treasury, having removed himself from 
        that office, no useful purpose would be served by continuing 
        the investigation of the charges filed by the Hon. Wright 
        Patman. We desire to stress that the action of the undersigned 
        is based on that reason alone, particularly when the 
        prohibition contained in said section 243 is not applicable to 
        the office now held by Mr. Mellon.

                    Fiorello H. LaGuardia.
                    Gordon Browning.
                    M. C. Tarver.
                    Francis B. Condon.

        Mr. Sumners of Texas: Mr. Speaker I think the resolution is 
    fairly explanatory of the views held by the different members of 
    the committee. No useful purpose could be served by the consumption 
    of the usual 40 minutes, so I move the previous question.
        The previous question was ordered.
        The Speaker: The question is on agreeing to the resolution.
        The resolution was agreed to.

Sec. 7.10 On one occasion, the Committee on the Judiciary reported 
    adversely on impeachment charges, finding the evidence did not 
    warrant impeachment, but the House rejected the report and voted 
    for impeachment.

    On Feb. 24, 1933, the House considered House Resolution 387 (H. 
Rept. No. 2065) from the Committee on the Judiciary, which included the 
finding that charges against Judge Harold Louderback did not warrant 
impeachment. Under a previous unanimous-consent agreement, an amendment 
in the nature of a substitute, recommended by the minority of the 
committee and impeaching the accused, was offered. The previous 
question was ordered on the amendment and it was adopted by the 
House.(20)
---------------------------------------------------------------------------
20. 76 Cong. Rec. 4913-25, 72d Cong. 2d Sess. For analyses of the 
        Louderback proceedings in the House, see Sec. Sec. 17.1-17.4, 
        infra, and 6 Cannon's Precedents Sec. 514.
---------------------------------------------------------------------------



 
                               CHAPTER 14
 
                           Impeachment Powers
 
                    B. INVESTIGATION AND IMPEACHMENT
 
Sec. 8. Consideration and Debate in the House

    Reports on impeachment are privileged for immediate consideration 
in the House.(1) Unless the House otherwise provides by 
special order, propositions of impeachment are considered under

[[Page 2066]]

the general rules of the House applicable to other simple House 
resolutions. Since 1912, the House has considered together the 
resolution and articles of impeachment, although prior practice was to 
adopt a resolution of impeachment and later to consider separate 
articles of impeachment.(2)
---------------------------------------------------------------------------
 1. See Sec. 8.2, infra, for the privilege of impeachment reports and 
        Sec. 7.6, supra, for their referral to the House Calendar. 
        Impeachment reports have usually been printed in full in the 
        Congressional Record and have laid over for a period of days 
        before consideration by the House, so that Members could 
        acquaint themselves with the contents of the reports.
 2. See Sec. 8.1, infra.
---------------------------------------------------------------------------

    The House has typically considered the resolution and articles 
under unanimous-consent agreements, providing for a certain number of 
hours of debate, equally divided and controlled by the proponents and 
opposition, at the conclusion of which the previous question was 
considered as ordered. In one case, an amendment was specifically made 
in order under the unanimous-consent agreement governing consideration 
of the resolution.(3)
---------------------------------------------------------------------------
 3. Sec. Sec. 8.1, 8.4, infra.
---------------------------------------------------------------------------

    The motion for the previous question and the motion to recommit are 
applicable to a resolution and articles of impeachment being considered 
in the House, and a separate vote may be demanded on substantive 
propositions contained in the resolution.(4)
---------------------------------------------------------------------------
 4. See Sec. Sec. 8.8-8.10, infra.
---------------------------------------------------------------------------

                            Cross References
Amendments generally, see Ch. 27, infra.
Consideration in the House of amendments to articles, see Sec. 10, 
    infra.
Consideration of resolutions electing managers, granting them powers 
    and funds, and notifying the Senate, see Sec. 9, infra.
Consideration and debate in Committee of the Whole generally, see Ch. 
    19, infra.
Consideration and debate in the House generally, see Ch. 29, infra.
Division of the question for voting, see Ch. 30, infra.
Privileged questions and reports interrupting regular order of 
    business, see Ch. 21, infra.
Summary of House consideration of specific impeachment resolutions, see 
    Sec. Sec. 14-18, 
    infra.                          -------------------

Controlling Time for Debate

Sec. 8.1 Under the later practice, resolutions and articles of 
    impeachment have been considered together in the House pursuant to 
    unanimous-consent agreements fixing the time for and control of 
    debate.

    On Mar. 2, 1936, the House considered House Resolution 422, 
impeaching Judge Halsted Ritter, pursuant to a unanimous-consent 
agreement propounded by Chairman Hatton W. Sumners, of Texas, of the 
Committee on the Judiciary, who had called up the report: 
(5)
---------------------------------------------------------------------------
 5. 80 Cong. Rec. 3066, 3069, 74th Cong. 2d Sess.

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

[[Page 2067]]

        The Speaker: (6) The gentleman from Texas asks 
    unanimous consent that debate on this resolution be continued for 
    4\1/2\ hours, 2\1/2\ hours to be controlled by himself and 2 hours 
    by the gentleman from New York [Mr. Hancock]; and at the expiration 
    of the time the previous question shall be considered as ordered. 
    Is there objection?
---------------------------------------------------------------------------
 6. Joseph W. Byrns (Tenn.).
---------------------------------------------------------------------------

        There was no objection.

    On Feb. 24, 1933, House Resolution 387, recommending against the 
impeachment of Judge Harold Louderback, was considered pursuant to a 
unanimous-consent agreement, propounded by Mr. Thomas D. McKeown, of 
Oklahoma, who called up the resolution, to allow a substitute amendment 
recommending impeachment to be offered: (7)
---------------------------------------------------------------------------
 7. 76 Cong. Rec. 4914, 72d Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. McKeown: Mr. Speaker, I ask unanimous consent that the time 
    for debate be limited to two hours to be controlled by myself, that 
    during that time the gentleman from New York [Mr. La Guardia] be 
    permitted to offer a substitute for the resolution and at the 
    conclusion of the time for debate the previous question be 
    considered as ordered.
        The Speaker: (8) Then the Chair submits this: The 
    gentleman from Oklahoma asks unanimous consent that debate be 
    limited to two hours, to be controlled by the gentleman from 
    Oklahoma, that at the end of that time the previous question shall 
    be considered as ordered, with the privilege, however, of a 
    substitute resolution being offered, to be included in the previous 
    question. Is there objection?
---------------------------------------------------------------------------
 8. John N. Garner (Tex.).
---------------------------------------------------------------------------

        Mr. [William B.] Bankhead [of Alabama]: Mr. Speaker, reserving 
    the right to object for the purpose of getting the parliamentary 
    situation clarified before we get to the merits, is there any 
    question in the mind of the Speaker, if it is fair to submit such a 
    suggestion, as to whether or not the substitute providing for 
    absolute impeachment would be in order as a substitute for this 
    report?
        The Speaker: That is the understanding of the Chair, that the 
    unanimous-consent agreement is, that the gentleman from New York 
    [Mr. LaGuardia] may offer a substitute, the previous question to be 
    considered as ordered on the substitute and the original resolution 
    at the expiration of the two hours. Is there objection?
        There was no objection.

    On Mar. 30, 1926, the House by unanimous consent agreed to a 
procedure for the consideration of a resolution impeaching Judge George 
English; the request was propounded by Chairman George S. Graham, of 
Pennsylvania, of the Committee on the Judiciary:

        The Speaker: (9) The gentleman from Pennsylvania 
    [Mr. Graham] asks unanimous consent that during today the debate be 
    equally divided between the affirmative and the negative, and that 
    he control one-half of the time and
---------------------------------------------------------------------------
 9. Nicholas Longworth (Ohio).
---------------------------------------------------------------------------

[[Page 2068]]

    that the other half be controlled by the gentleman from Alabama 
    [Mr. Bowling].(10)

--------------------------------------------------------------------------
10. 67 Cong. Rec. 6585-90, 69th Cong. 1st Sess. New agreements were 
        obtained on each succeeding day during debate on the 
        resolution.
---------------------------------------------------------------------------

    In earlier practice, resolutions and articles were considered 
separately, the articles being considered in the Committee of the Whole 
on occasion. For example, the articles of impeachment against Justice 
Samuel Chase were considered in the Committee of the Whole and were 
read for amendment, although the resolution to impeach was earlier 
considered in the House.(11) Again, during proceedings 
against President Andrew Johnson, the House adopted a resolution which 
provided for consideration and amendment of the articles in the 
Committee of the Whole under the five-minute rule, at the conclusion of 
general debate.(12)
---------------------------------------------------------------------------
11. 3 Hinds' Precedents Sec. Sec. 2343, 2344.
12. 3 Hinds' Precedents Sec. 2414.
---------------------------------------------------------------------------

    The resolution and the articles of impeachment against Judge 
Charles Swayne (1904, 1905) were considered separately but were both 
considered in the House.(13)
---------------------------------------------------------------------------
13. 3 Hinds' Precedents Sec. Sec. 2472, 2474.
---------------------------------------------------------------------------

    In the impeachment of Judge Robert Archbald (1912) the House 
instituted the modern practice of considering the resolution and the 
articles of impeachment together in the House, as opposed to the 
Committee of the Whole.(14)
---------------------------------------------------------------------------
14. 6 Cannon's Precedents Sec. Sec. 499, 500.
---------------------------------------------------------------------------

Reports Privileged for Immediate Consideration

Sec. 8.2 Resolutions of impeachment, resolutions proposing abatement of 
    proceedings, and resolutions incidental to the question of 
    impeachment are privileged for immediate consideration when 
    reported from the committee to which propositions of impeachment 
    have been referred

    On Mar. 2, 1936, Chairman Hatton W. Sumners, of Texas, of the 
Committee on the Judiciary, called up as privileged House Resolution 
422, impeaching Judge Halsted Ritter, and the House proceeded to its 
immediate consideration.(15)
---------------------------------------------------------------------------
15. 80 Cong. Rec. 3066, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

    On Feb. 24, 1933, Speaker John N. Garner, of Texas, held that a 
resolution reported from the Committee on the Judiciary, proposing 
discontinuance of impeachment proceedings, was privileged for immediate 
consideration:

        The Speaker: The Clerk will report the resolution.
        The Clerk read the resolution, as follows:

[[Page 2069]]

                              House Resolution 387

        Resolved, That the evidence submitted on the charges against 
    Hon. Harold Louderback, district judge for the northern district of 
    California, does not warrant the interposition of the 
    constitutional powers of impeachment of the House.
        Mr. [Bertrand H.] Snell [of New York]: Mr. Speaker, when they 
    report back a resolution of that kind, is it a privileged matter?
        The Speaker: It is not only a privileged matter but a highly 
    privileged matter.
        Mr. [Leonidas C.] Dyer [of Missouri]: Mr. Speaker, this is the 
    first instance to my knowledge, in my service here, where the 
    committee has reported adversely on an impeachment charge.
        The Speaker: The gentleman's memory should be refreshed. The 
    Mellon case was reported back from the committee, recommending that 
    impeachment proceedings be discontinued.
        Mr. Snell: Was that taken up on the floor as a privileged 
    matter?
        The Speaker: It was.(16)
---------------------------------------------------------------------------
16. 76 Cong. Rec. 4913, 72d Cong. 2d Sess. (See also 6 Cannon's 
        Precedents Sec. 514.)
---------------------------------------------------------------------------

    On Mar. 24, 1939, Mr. Sam Hobbs, of Alabama, called up a report of 
the Committee on the Judiciary, which report was adverse to House 
Resolution 67, on the impeachment of Secretary of Labor Frances 
Perkins. The report was called up as privileged and the House 
immediately agreed to Mr. Hobbs' motion to lay the resolution on the 
table.(17)
---------------------------------------------------------------------------
17. 84 Cong. Rec. 3273, 76th Cong. 1st Sess.
---------------------------------------------------------------------------

    On Feb. 6, 1974, Chairman Peter W. Rodino, Jr., of New Jersey, of 
the Committee on the Judiciary, called up as privileged House 
Resolution 803, authorizing that committee to investigate the 
sufficiency of grounds for impeachment of President Richard Nixon, 
various resolutions of impeachment having been referred to the 
committee. The House proceeded to its immediate 
consideration.(18)
---------------------------------------------------------------------------
18. 120 Cong. Rec. 2349-63, 93d Cong. 2d Sess. For additional 
        discussion as to high privilege for consideration of 
        impeachment resolutions notwithstanding the normal application 
        of House rules, and of other resolutions incidental to 
        impeachment called up by the investigating committee, see 
        Sec. 7.4, supra.
---------------------------------------------------------------------------

Motion to Discharge Committee From Consideration of Impeachment 
    Proposal

Sec. 8.3 A Member announced his filing of a motion to discharge the 
    Committee on the Judiciary from further consideration of a 
    resolution proposing impeachment of the President.

[[Page 2070]]

    On June 17, 1952,(19) a Member made an announcement 
relating to impeachment charges against President Harry S. Truman:
---------------------------------------------------------------------------
19. 98 Cong. Rec. 7424, 82d Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. [Paul W.] Shafer [of Michigan]: Mr. Speaker, on April 28 of 
    this year I introduced House Resolution 614, to impeach Harry S. 
    Truman, President of the United States, of high crimes and 
    misdemeanors in office. This resolution was referred to the 
    Committee on the Judiciary, which committee has failed to take 
    action thereon.
        Thirty legislative days having now elapsed since introduction 
    of this resolution, I today have placed on the Clerk's desk a 
    petition to discharge the committee from further consideration of 
    the resolution.
        In my judgment, developments since I introduced the Resolution 
    April 28 have immeasurably enlarged and strengthened the case for 
    impeachment and have added new urgency for such action by this 
    House.
        First. Since the introduction of this resolution, the United 
    States Supreme Court, by a 6-to-3 vote, has held that in his 
    seizure of the steel mills Harry S. Truman, President of the United 
    States, exceeded his authority and powers, violated the 
    Constitution of the United States, and flouted the expressed will 
    and intent of the Congress--and, in so finding, the Court gave 
    unprecedented warnings against the threat to freedom and 
    constitutional government implicit in his act.
        Second. Despite the President's technical compliance with the 
    finding of the Court, prior to the Court decision he reasserted his 
    claim to the powers then in question, and subsequent to that 
    decision he has contemptuously called into question ``the intention 
    of the Court's majority'' and contemptuously attributed the limits 
    set on the President's powers not to Congress, or to the Court, or 
    to the Constitution, but to ``the Court's majority.''
        Third. The Court, in its finding in the steel case, emphasized 
    not only the unconstitutionality of the Presidential seizure but 
    also stressed his failure to utilize and exhaust existing and 
    available legal resources for dealing with the situation, including 
    the Taft-Hartley law.
        Fourth. The President's failure and refusal to utilize and 
    exhaust existing and available legal resources for dealing with the 
    emergency has persisted since the Court decision and in spite of 
    clear and unmistakable evidences of the will and intent of Congress 
    given in response to his latest request for special legislation 
    authorizing seizure or other special procedures.

    The discharge petition did not gain the requisite number of 
signatures for its consideration by the House.

Amendment of Resolution and Articles

Sec. 8.4 A resolution with articles of impeachment, being considered in 
    the House under a unanimous-consent agreement fixing control of 
    debate, is not subject to amend

[[Page 2071]]

    ment unless the agreement allows an amendment to be offered, or the 
    Member in control offers an amendment or yields for amendment.

    On Apr. 1, 1926, the House was considering a resolution impeaching 
Judge George English. Pursuant to a unanimous-consent agreement, the 
time for debate was being controlled by two Members. Following the 
ordering of the previous question on the resolution, Speaker Nicholas 
Longworth, of Ohio, answered a parliamentary inquiry propounded by Mr. 
Tom T. Connally, of Texas:

        Under the rules of the House would not this resolution be 
    subject to consideration under the five-minute rule for amendment?
        The Speaker: The Chair thinks not.(20)
---------------------------------------------------------------------------
20. 67 Cong. Rec. 6733, 69th Cong. 1st Sess.
---------------------------------------------------------------------------

    In the Harold Louderback impeachment proceedings in the House, the 
resolution reported by the Committee on the Judiciary recommended 
against impeachment, but the minority of the committee proposed a 
resolution impeaching Judge Louderback. The substitute impeaching the 
accused was offered and adopted by the House, pursuant to a unanimous-
consent agreement which fixed control and time of debate, but 
specifically allowed the substitute resolution to be offered and voted 
upon.(1)
---------------------------------------------------------------------------
 1. 76 Cong. Rec. 4913, 4914, 72d Cong. 2d Sess., Feb. 24, 1933. For a 
        complete analysis of the procedure followed for consideration 
        of the Louderback impeachment, see Sec. Sec. 17.1 et seq., 
        infra.
---------------------------------------------------------------------------

    In the Charles Swayne impeachment, Mr. Henry W. Palmer, of 
Pennsylvania, of the Committee on the Judiciary called up the 
resolution of impeachment and controlled the time thereon. Before 
moving the previous question, he offered an amendment to the resolution 
of impeachment, to add clarifying and technical changes. The amendment 
was agreed to.(2)
---------------------------------------------------------------------------
 2. 39 Cong. Rec. 248, 58th Cong. 3d Sess., Dec. 13, 1904.
---------------------------------------------------------------------------

Debate on Impeachment Resolutions and Articles

Sec. 8.5 In debating articles of impeachment, a Member may refer to the 
    political, social, and family background of the accused.

    On Mar. 2, 1936,(3) the House was debating articles of 
impeachment against Judge Halsted Ritter. Mr. Louis Ludlow, of Indiana, 
had the floor, and Speaker Joseph W. Byrns, of Tennessee, overruled

[[Page 2072]]

a point of order based on the irrelevancy of his remarks. The 
proceedings were as follows:
---------------------------------------------------------------------------
 3. 80 Cong. Rec. 3069, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. Ludlow: . . . I feel there is imposed upon me today a duty 
    and a responsibility to raise my voice in this case if for no other 
    purpose than to present myself as a character witness--a duty which 
    I could not conscientiously avoid and which I am very glad to 
    perform. Judge Ritter was born in Indianapolis, Ind. He springs 
    from a long and honored Hoosier ancestry, rooted in the pioneer 
    life of our Commonwealth. There are no better people than those who 
    comprised his ancestral train. People do not come any better 
    anywhere on this globe. Rugged honesty, outspoken truthfulness, and 
    high ideals are characteristics of his family. His father, Col. Eli 
    F. Ritter, was a man of outstanding character and personality, one 
    of the most public-spirited men I ever have known, a lawyer of 
    distinction, ranking high in a bar of great brilliancy that 
    included such stellar lights as Thomas A. Hendricks, Joseph E. 
    McDonald, and Benjamin Harrison, an unofficial advocate of the 
    people's cause in many a fight against vice and privilege, for whom 
    even those who felt his steel had a wholesome respect because of 
    his militant ardor on the side of right and civic virtue.
        Mr. [Malcolm C.] Tarver [of Georgia]: Mr. Speaker, I rise to a 
    point of order.
        The Speaker Pro Tempore: The gentleman will state it.
        Mr. Tarver: The gentleman is endeavoring to read into the 
    Record a statement with regard to the progenitors of the gentleman 
    against whom these impeachment proceedings are pending. He is 
    referring to something that should not affect the judgment of the 
    House one way or the other, and, in my judgment, it is highly 
    improper, and the gentleman should not be allowed to continue.
        The Speaker Pro Tempore: The chairman understands the gentleman 
    is proceeding under the order of the House, which provided for two 
    hours and a half on one side and 2 hours on the other. Of course, 
    the Chair cannot dictate to the gentleman just how he shall proceed 
    in his discussion of this resolution.
        Mr. Tarver: It is then the ruling of the Speaker that during 
    the time for general debate Members may address themselves to 
    whatever subject they desire.
        The Speaker: Members must address themselves to the resolution.
        Mr. Ludlow: That is what I am trying to do, Mr. Speaker.
        The Speaker: The gentleman will proceed in order.

Sec. 8.6 During debate on a resolution of impeachment, the Speaker 
    ruled that unparliamentary language, even if a recitation of 
    testimony or evidence, could not be used in debate.

    On Mar. 30, 1926, during debate on the resolution and articles of 
impeachment against Judge George English, Speaker Nicholas Longworth, 
of Ohio, delivered a ruling on the use of unparliamentary language in 
debate, and the House discussed his decision:

[[Page 2073]]

        The Speaker: The Chair desires to make a statement. The Chair 
    has been in doubt on one or two occasions this afternoon whether he 
    should permit the use of certain language even by way of quotation. 
    The Chair at the time realized, of course, that the members of the 
    majority of the committee might think the use of this language 
    would be material in describing an individual. The Chair hopes that 
    it will not be used further during this debate and suggests also 
    that those words be stricken from the Record. [Applause.]
        Mr. [John N.] Tillman [of Arkansas]: I think the Speaker will 
    remember I stated when I put the speech in the Record that I 
    intended to strike out those words.
        The Speaker: There were other occasions besides that to which 
    the gentleman refers.
        Mr. [Edward J.] King [of Illinois]: Mr. Speaker, a 
    parliamentary inquiry.
        The Speaker: The gentleman will state it.
        Mr. King: Will the language also be stricken out of the 
    evidence in the case and in the report of the committee?
        The Speaker: The Chair does not think that has anything to do 
    with the use of language on the floor of the House.
        Mr. [Tom T.] Connally of Texas: Mr. Speaker, a parliamentary 
    inquiry.
        The Speaker: The gentleman will state it.

        Mr. Connally of Texas: Without taking any exception to the 
    Chair's views as to striking from the printed Record what has 
    already happened, it seems to me the Chair ought to make clear his 
    ruling so that we may know as to how far it shall be regarded as a 
    precedent in the future. The House, as I understand it, at the 
    present moment is proceeding as an inquisitorial body, somewhat as 
    a grand jury, as in a semijudicial proceeding; and if we have 
    unpleasant matters in court, the court can not avoid its duty 
    because they are unpleasant, and if it becomes necessary in this 
    Chamber for Members to properly present this case or to quote the 
    testimony in the record to use unpleasant and offensive language to 
    establish the truth, I think the House ought to hear it. It is 
    neither wise nor safe to censor the evidence. We must hear it, good 
    or bad, because it is the evidence. If it is suppressed or colored, 
    it is no longer the true evidence in the case. I sympathize with 
    the Chair's position, and I know he is prompted by the best 
    motives, by a sense of delicacy and consideration for the 
    galleries. I think it is well for the House and Chair now to 
    understand that the ruling of the Chair ought not to be regarded as 
    a precedent in the future which might operate to exclude competent 
    evidence, because when we are dealing with a matter of this kind, 
    serious and important as it is, we want to know the truth, whatever 
    it may be, and those who come here to hear these proceedings of 
    course do so at their own risk. [Laughter.]
        The Speaker: The Chair thinks his ruling ought to be regarded 
    as a precedent as far as these proceedings in the House are 
    concerned. If the Chair should be officially advised that the use 
    of this language is actually necessary, he might order the 
    galleries cleared.
        Mr. [Fiorello H.] LaGuardia [of New York]: Mr. Speaker, a 
    parliamentary inquiry.

[[Page 2074]]

        The Speaker: The gentleman will state it.
        Mr. LaGuardia: The Chair's ruling, as I understand it, is that 
    under the rules of the House language that is not parliamentary 
    should not be used; but that does not prevent the consideration of 
    whether or not a particular judge whose case we are trying used the 
    language or not?
        The Speaker: Not at all. It is simply the use of certain 
    language on the floor of the House.
        Mr. [Charles R.] Crisp [of Georgia]: Mr. Speaker, I want to 
    enter my approval of the course the Speaker has taken. Members of 
    this House, if they desire to know what the language is, can read 
    the record, and I thoroughly endorse the course the Speaker 
    pursued.

Sec. 8.7 During debate in the House objection was made to extensions of 
    remarks in the Congressional Record in order that an accurate 
    record of impeachment proceedings be preserved.

    In April 1926,(4) the House was considering a resolution 
impeaching Judge George English. When a Member asked unanimous consent 
to revise and extend his remarks in the Record, Mr. C. William 
Ramseyer, of Iowa, objected stating that his object was to ``have the 
Record, preceding the vote, show exactly what transpired and what was 
said.'' He indicated that no objection would be made to the extension 
of remarks after the vote had occurred on the resolution of 
impeachment.(5)
---------------------------------------------------------------------------
 4. 67 Cong. Rec. 6602, 69th Cong. 1st Sess.
 5. Id. at p. 6717.
---------------------------------------------------------------------------

Motion for Previous Question

Sec. 8.8 The motion for the previous question is applicable to a 
    resolution of impeachment.

    On Dec. 13, 1904, the House was considering a resolution impeaching 
Judge Charles Swayne of high crimes and misdemeanors. The manager of 
the resolution, Mr. Henry W. Palmer, of Pennsylvania, moved the 
previous question on the resolution at the conclusion of debate 
thereon. Mr. Richard Wayne Parker, of New Jersey, made a point of order 
against the offering of the motion, on the ground that the previous 
question should not be directly ordered upon a question of high 
privilege such as impeachment. Speaker Joseph G. Cannon, of Illinois, 
ruled that under the precedents the previous question was in 
order.(6)
---------------------------------------------------------------------------
 6. 39 Cong. Rec. 248, 58th Cong. 3d Sess.
---------------------------------------------------------------------------

Motion to Recommit

Sec. 8.9 After the previous question has been ordered on a

[[Page 2075]]

    resolution of impeachment, a motion to recommit, with or without 
    instructions, is in order, but is not debatable.

    On Apr. 1, 1926, the House was considering House Resolution 195, 
impeaching Judge George English, United States District Judge for the 
Eastern District of Illinois. After the previous question was ordered, 
a motion was offered to recommit the resolution with instructions. The 
instructions directed the Committee on the Judiciary to take the 
testimony of certain persons and authorized the committee to send for 
persons and papers, administer oaths, and report at any time.
    The motion was rejected on a yea and nay vote.(7)
---------------------------------------------------------------------------
 7. 67 Cong. Rec. 6734, 69th Cong. 1st Sess.
---------------------------------------------------------------------------

    Parliamentarian's Note: A motion to recommit, with or without 
instructions, on a resolution of impeachment, is not debatable. Rule 
XVI clause 4, House Rules and Manual Sec. 782 (1973), amended in the 
92d Congress to allow debate on certain motions to recommit with 
instructions, does not apply to simple resolutions but only to bills or 
joint resolutions.(8)
---------------------------------------------------------------------------
 8. See Ch. 23, infra, for the motion to recommit and debate thereon.
---------------------------------------------------------------------------

Division of the Question

Sec. 8.10 A separate vote may be demanded on any substantive 
    proposition contained in a resolution of impeachment, when the 
    question recurs on the resolution.

    On Mar. 30, 1926, the House was considering a resolution and 
articles of impeachment against Judge George English. Mr. Charles R. 
Crisp, of Georgia, inquired whether, under Rule XVI clause 6, a 
separate vote could be demanded on any substantive proposition 
contained in the resolution of impeachment. Speaker Nicholas Longworth, 
of Ohio, responded in the affirmative.(9)
---------------------------------------------------------------------------
 9. 67 Cong. Rec. 6589, 6590, 69th Cong. 1st Sess. See House Rules and 
        Manual Sec. 791 (1973).
---------------------------------------------------------------------------

    When the vote recurred on the resolution of impeachment, on Apr. 1, 
1926, a separate vote was demanded on Article I. The House rejected the 
motion to strike the article.(10)
---------------------------------------------------------------------------
10. 67 Cong. Rec. 6734, 69th Cong. 1st Sess.
---------------------------------------------------------------------------

    Parliamentarian's Note: A division of the question may be demanded 
at any time before the question is put on the resolution. During the 
Judge English proceedings, the Speaker put the question on the 
resolution and announced that it was adopted. A Member objected that he 
had meant to ask for a separate vote and the Speaker allowed such a

[[Page 2076]]

demand (thereby vacating the proceedings by unanimous consent) because 
of confusion in the Chamber, although he stated that the demand was 
untimely.(11)
---------------------------------------------------------------------------
11. Id. at pp. 6734, 6735.
---------------------------------------------------------------------------

Broadcasting House Proceedings

Sec. 8.11 The House adopted a resolution in the 93d Congress 
    authorizing television, radio, and photographic coverage of 
    projected House consideration of a resolution impeaching President 
    Richard Nixon, thereby waiving rulings of the Speaker prohibiting 
    such coverage of House proceedings.

    On Aug. 7, 1974,(12) Mr. Ray J. Madden, of Indiana, 
called up by direction of the Committee on Rules House Resolution 802, 
with committee amendments, for the broadcasting of House proceedings on 
the impeachment of President Nixon, the Committee on the Judiciary 
having decided on July 27, 29, and 30 to report to the House 
recommending the President's impeachment. The House agreed to the 
resolution as amended by the committee amendments:
---------------------------------------------------------------------------
12. 120 Cong. Rec. 27266-69, 93d Cong. 2d Sess.
---------------------------------------------------------------------------

        That, notwithstanding any rule, ruling, or custom to the 
    contrary, the proceedings in the Chamber of the House of 
    Representatives relating to the resolution reported from the 
    Committee on the Judiciary, recommending the impeachment of Richard 
    M. Nixon, President of the United States, may be broadcast by radio 
    and television and may be open to photographic coverage, subject to 
    the provisions of section 2 of this resolution.
        Sec. 2. A special committee of four members, composed of the 
    majority and minority leaders of the House, and the majority and 
    minority whips of the House, is hereby authorized to arrange for 
    the coverage made in order by this resolution and to establish such 
    regulations as they may deem necessary and appropriate with respect 
    to such broadcast or photographic coverage: Provided, however, That 
    any such arrangements or regulations shall be subject to the final 
    approval of the Speaker; and if the special committee or the 
    Speaker shall determine that the actual coverage is not in 
    conformity with such arrangements and regulations, the Speaker is 
    authorized and directed to terminate or limit such coverage in such 
    manner as may protect the interests of the House of 
    Representatives.

    The House briefly debated the resolution before adopting it, and 
discussed suitable restrictions on broadcast coverage as well as the 
broadcasting of the Committee on the Judiciary meetings on the 
resolution and articles of impeachment pursuant to House Resolution 
1107, adopted on July 18, 1974.(13)
---------------------------------------------------------------------------
13. See Sec. 7.3, Supra, for the adoption of H. Res. 1107, amending the 
        rules of the House.

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

[[Page 2077]]

    Parliamentarian's Note: The Speaker of the House has consistently 
ruled that coverage of House proceedings, either by radio, television 
or still photography, was prohibited under the rules and precedents of 
the House. See for example, the statements of Speaker Sam Rayburn, of 
Texas, on Feb. 25, 1952, and on Jan. 24, 1955.(14)
---------------------------------------------------------------------------
14. 98 Cong. Rec. 1334, 1335, 82d Cong. 2d Sess.; 101 Cong. Rec. 628, 
        629, 84th Cong. 1st Sess.
---------------------------------------------------------------------------


 
                               CHAPTER 14
 
                           Impeachment Powers
 
                    B. INVESTIGATION AND IMPEACHMENT
 
Sec. 9. Presentation to Senate; Managers

    Following the adoption of a resolution and articles of impeachment, 
the House proceeds to the adoption of privileged resolutions (1) 
appointing managers to conduct the trial on the part of the House and 
directing them to present the articles to the Senate; (2) notifying the 
Senate of the adoption of articles and appointment of managers; and (3) 
granting the managers necessary powers and funds.(15)
---------------------------------------------------------------------------
15. See Sec. 9.1, infra.
            In former Congresses, managers were elected by ballot or 
        appointed by the Speaker pursuant to an authorizing resolution 
        (see Sec. 9.3, infra).
---------------------------------------------------------------------------

    The managers have jurisdiction over the answer of the respondent to 
the articles impeaching him, and may prepare the replication of the 
House to the respondent's answer. The replication has not in the last 
two impeachment cases been submitted to the House for 
approval.(16)
---------------------------------------------------------------------------
16. See Sec. 10, infra.
---------------------------------------------------------------------------

    In the Harold Louderback proceedings, where the accused was 
impeached in one Congress and tried in the next, the issue arose as to 
the authority of the managers beyond the expiration of the Congress in 
which elected. In that case, the resolution authorizing the managers 
powers and funds was not offered and adopted until the succeeding 
Congress.(17)
---------------------------------------------------------------------------
17. See Sec. 4.2, supra.
---------------------------------------------------------------------------

                                 Forms

    Form of resolution appointing managers to conduct an impeachment 
trial: (18)
---------------------------------------------------------------------------
18. 80 Cong. Rec. 3393, 74th Cong. 2d Sess., Mar. 6, 1936.
---------------------------------------------------------------------------

                            House Resolution 439

        Resolved, That Hatton W. Sumners, Randolph Perkins, and Sam 
    Hobbs, Members of this House, be, and they are hereby, appointed 
    managers to conduct the impeachment against Halsted L. Ritter, 
    United States district judge for the southern district of Florida; 
    that said managers are hereby instructed to appear before the 
    Senate of the United States and at the bar thereof in the name of 
    the House of Rep

[[Page 2078]]

    resentatives and of all the people of the United States to impeach 
    the said Halsted L. Ritter of high crimes and misdemeanors in 
    office and to exhibit to the Senate of the United States the 
    articles of impeachment against said judge which have been agreed 
    upon by this House; and that the said managers do demand that the 
    Senate take order for the appearance of said Halsted L. Ritter to 
    answer said impeachment, and demand his impeachment, conviction, 
    and removal from office.

    Form of resolution notifying the Senate of the adoption of articles 
and the appointment of managers: (19)
---------------------------------------------------------------------------
19. Id.
---------------------------------------------------------------------------

                            House Resolution 440

        Resolved, That a message be sent to the Senate to inform them 
    that this House has impeached for high crimes and misdemeanors 
    Halsted L. Ritter, United States District Judge for the southern 
    district of Florida, and that the House adopted articles of 
    impeachment against said Halsted L. Ritter, judge as aforesaid, 
    which the managers on the part of the House have been directed to 
    carry to the Senate, and that Hatton W. Sumners, Randolph Perkins, 
    and Sam Hobbs, Members of this House, have been appointed such 
    managers.

    Form of resolution empowering managers: (20)
---------------------------------------------------------------------------
20. Id. at p. 3394.
---------------------------------------------------------------------------

                            House Resolution 441

        Resolved, That the managers on the part of the House in the 
    matter of the impeachment of Halsted L. Ritter, United States 
    district judge for the southern district of Florida, be, and they 
    are hereby, authorized to employ legal, clerical, and other 
    necessary assistants and to incur such expenses as may be necessary 
    in the preparation and conduct of the case, to be paid out of the 
    contingent fund of the House on vouchers approved by the managers, 
    and the managers have power to send for persons and papers, and 
    also that the managers have authority to file with the Secretary of 
    the Senate, on the part of the House of Representatives, any 
    subsequent pleadings which they shall deem necessary: Provided, 
    That the total expenditures authorized by this resolution shall not 
    exceed $2,500.

                            Cross References
Arguments and conduct of trial by managers, see Sec. 12, infra.
Effect of adjournment on managers' authority, see Sec. 4, supra.
Managers' appearance and functions in the Senate sitting as a Court of 
    Impeachment, see Sec. Sec. 11-13, infra.
Managers' jurisdiction over replication and amendments to articles, see 
    Sec. 10, infra.                          -------------------

Electing and Empowering Managers; Notifying the Senate

Sec. 9.1 After the House has adopted a resolution and articles of 
    impeachment, the House considers resolutions appointing managers to 
    ap

[[Page 2079]]

    pear before the Senate, notifying the Senate of the adoption of 
    articles and election of managers, and authorizing the managers to 
    prepare for and conduct the trial in the Senate, to employ 
    assistants, and to incur expenses payable from the contingent fund 
    of the House.

    On Feb. 27, 1933, the House having adopted articles of impeachment 
against Judge Harold Louderback on Feb. 24, Mr. Hatton W. Sumners, of 
Texas, offered resolutions electing managers and notifying the Senate 
of House action:

                   Impeachment of Judge Harold Louderback

        Mr. Sumners of Texas: Mr. Speaker, I offer the following 
    privileged report from the Committee on the Judiciary, which I send 
    to the desk and ask to have read, and ask its immediate adoption.
        The Clerk read as follows:

                              House Resolution 402

            Resolved, That Hatton W. Sumners, Gordon Browning, Malcolm 
        C. Tarver, Fiorello H. LaGuardia, and Charles I. Sparks, 
        Members of this House, be, and they are hereby, appointed 
        managers to conduct the impeachment against Harold Louderback, 
        United States district judge for the northern district of 
        California; and said managers are hereby instructed to appear 
        before the Senate of the United States and at the bar thereof 
        in the name of the House of Representatives and of all the 
        people of the United States to impeach the said Harold 
        Louderback of misdemeanors in office and to exhibit to the 
        Senate of the United States the articles of impeachment against 
        said judge which have been agreed upon by the House; and that 
        the said managers do demand the Senate take order for the 
        appearance of said Harold Louderback to answer said 
        impeachment, and demand his impeachment, conviction, and 
        removal from office.

        The Speaker Pro Tempore: The question is on agreeing to the 
    resolution. . . .
        The resolution was agreed to.
        A motion to reconsider the vote by which the resolution was 
    agreed to was laid on the table.
        Mr. Sumners of Texas: Mr. Speaker, I desire to present a 
    privileged resolution.
        The Clerk read as follows:

                              House Resolution 403

            Resolved, That a message be sent to the Senate to inform 
        them that this House has impeached Harold Louderback, United 
        States district judge for the Northern District of California, 
        for misdemeanors in office, and that the House has adopted 
        articles of impeachment against said Harold Louderback, judge 
        as aforesaid, which the managers on the part of the House have 
        been directed to carry to the Senate, and that Hatton W. 
        Sumners, Gordon Browning, Malcolm C. Tarver, Fiorello H. 
        LaGuardia, and Charles I. Sparks, Members of this House, have 
        been appointed such managers.

        The resolution was agreed to.(1)
---------------------------------------------------------------------------
 1. 76 Cong. Rec. 5177, 5178, 72d Cong. 2d Sess.
---------------------------------------------------------------------------

    On Mar. 6, 1936, Mr. Sumners offered three resolutions relating

[[Page 2080]]

to the impeachment proceedings against Judge Halsted Ritter, the House 
having adopted articles of impeachment on Mar. 2. The resolutions 
elected managers, informed the Senate that articles had been adopted 
and managers appointed, and gave the managers powers and funds: 
(2)
---------------------------------------------------------------------------
 2. 80 Cong. Rec. 3393, 3394, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

                      Impeachment of Halsted L. Ritter

        Mr. Sumners of Texas: Mr. Speaker, I send to the desk the three 
    resolutions which are the usual resolutions offered when an 
    impeachment has been voted by the House, and I ask unanimous 
    consent that they may be read and considered en bloc. . . .

                              House Resolution 439

            Resolved, That Hatton W. Sumners, Randolph Perkins, and Sam 
        Hobbs, Members of this House, be, and they are hereby, 
        appointed managers to conduct the impeachment against Halsted 
        L. Ritter, United States district judge for the southern 
        district of Florida; that said managers are hereby instructed 
        to appear before the Senate of the United States and at the bar 
        thereof in the name of the House of Representatives and of all 
        the people of the United States to impeach the said Halsted L. 
        Ritter of high crimes and misdemeanors in office and to exhibit 
        to the Senate of the United States the articles of impeachment 
        against said judge which have been agreed upon by this House; 
        and that the said managers do demand that the Senate take order 
        for the appearance of said Halsted L. Ritter to answer said 
        impeachment, and demand his impeachment, conviction, and 
        removal from office.

                              House Resolution 440

            Resolved, That a message be sent to the Senate to inform 
        them that this House has impeached for high crimes and 
        misdemeanors Halsted L. Ritter, United States district judge 
        for the southern district of Florida, and that the House 
        adopted articles of impeachment against said Halsted L. Ritter, 
        judge as aforesaid, which the managers on the part of the House 
        have been directed to carry to the Senate, and that Hatton W. 
        Sumners, Randolph Perkins, and Sam Hobbs, Members of this 
        House, have been appointed such managers.

                              House Resolution 441

            Resolved, That the managers on the part of the House in the 
        matter of the impeachment of Halsted L. Ritter, United States 
        district judge for the southern district of Florida, be, and 
        they are hereby, authorized to employ legal, clerical, and 
        other necessary assistants and to incur such expenses as may be 
        necessary in the preparation and conduct of the case, to be 
        paid out of the contingent fund of the House on vouchers 
        approved by the managers, and the managers have power to send 
        for persons and papers, and also that the managers have 
        authority to file with the Secretary of the Senate, on the part 
        of the House of Representatives, any subsequent pleadings which 
        they shall deem necessary: Provided, That the total 
        expenditures authorized by this resolution shall not exceed 
        $2,500.

        Mr. [Bertrand H.] Snell [of New York]: Mr. Speaker, may I ask 
    the gentleman from Texas one further question? Is this exactly the 
    procedure that has always been followed by the House under similar 
    conditions?

[[Page 2081]]

        Mr. Sumners of Texas: Insofar as I know, it does not vary from 
    the procedure that has been followed since the beginning of the 
    Government.
        Mr. Snell: If that is true, while, of course, I think the House 
    made a mistake, I have no desire to delay carrying out the will of 
    the majority of the House in the matter.
        Mr. [Thomas L.] Blanton [of Texas]: Mr. Speaker, will the 
    gentleman yield?
        Mr. Sumners of Texas: I yield to the gentleman from Texas.
        Mr. Blanton: The only difference between this and other such 
    cases is that our colleague from Texas has asked only for $2,500, 
    which is very small in comparison with amounts heretofore 
    appropriated under such conditions.

    The resolutions were agreed to.

Composition and Number of Managers

Sec. 9.2 Managers elected by the House, or appointed by the Speaker, 
    have always been Members of the House and have always constituted 
    an odd number.(3)
---------------------------------------------------------------------------
 3. For a summary of the composition of managers from the William 
        Blount impeachment in 1797 through the Robert Archbald 
        impeachment in 1912, see 6 Cannon's Precedents Sec. 467.
---------------------------------------------------------------------------

    In 1933, in the Harold Louderback impeachment five managers were 
elected by resolution--all from the Committee on the Judiciary--three 
from the majority party and two from the minority party.(4) 
In the Halsted Ritter impeachment in 1936, three managers were elected 
from the Committee on the Judiciary, two from the majority party and 
one from the minority party.(5) In both the Louderback and 
Ritter impeachments, the Chairman of the Committee on the Judiciary, 
Hatton W. Sumners, of Texas, was elected as a manager. Ordinarily, the 
managers are chosen from among those Members who have voted for the 
resolution and articles of impeachment.(6)
---------------------------------------------------------------------------
 4. Cannon's Precedents Sec. 514.
 5. 80 Cong. Rec. 3393, 74th Cong. 2d Sess.
 6. During the Belknap proceedings, it was proposed to elect a minority 
        Member to fill a vacancy created when a manager was excused 
        from service. The House discussed the principle that managers 
        should be in accord with the sentiments of the House. 3 Hinds' 
        Precedents Sec. 2448.
---------------------------------------------------------------------------

Appointment of Managers by Resolution

Sec. 9.3 In the later practice, managers on the part of the House to 
    conduct impeachment trials have been appointed by resolution.

    On Mar. 6, 1936, the House adopted a resolution offered by

[[Page 2082]]

Hatton W. Sumners, of Texas, Chairman of the Committee on the 
Judiciary, appointing Members of the House to serve as managers in the 
impeachment trial of Judge Halsted Ritter:

                            House Resolution 439

        Resolved, That Hatton W. Sumners, Randolph Perkins, and Sam 
    Hobbs, Members of this House, be, and they are hereby, appointed 
    managers to conduct the impeachment against Halsted L. Ritter, 
    United States district judge for the southern district of Florida; 
    that said managers are hereby instructed to appear before the 
    Senate of the United States and at the bar thereof in the name of 
    the House of Representatives and of all the people of the United 
    States to impeach the said Halsted L. Ritter of high crimes and 
    misdemeanors in office and to exhibit to the Senate of the United 
    States the articles of impeachment against said judge which have 
    been agreed upon by this House; and that the said managers do 
    demand that the Senate take order for the appearance of said 
    Halsted L. Ritter to answer said impeachment, and demand his 
    impeachment, conviction, and removal from office.(7)
---------------------------------------------------------------------------
 7. 80 Cong. Rec. 3393, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

    This method, of appointing managers by House resolution, was also 
used in 1912 in the Robert Archbald impeachment, in 1926 in the George 
English impeachment, and in 1933 in the Harold Louderback 
impeachment.(8)
---------------------------------------------------------------------------
 8. 6 Cannon's Precedents Sec. Sec. 500, 514, 545. Managers for the 
        trial of former Secretary of War William Belknap were also 
        chosen by resolution. See 3 Hinds' Precedents Sec. 2448.
---------------------------------------------------------------------------

    On two occasions, in the Charles Swayne and West Humphreys 
impeachments, managers were appointed by the Speaker pursuant to 
authorizing resolution.(9)
---------------------------------------------------------------------------
 9. 3 Hinds' Precedents Sec. Sec. 2388, 2475.
---------------------------------------------------------------------------

    In other impeachments, managers were elected by ballot, a procedure 
largely obsolete in the House, its last use having been for the 
election of managers in the Andrew Johnson impeachment. In that case, 
the motion adopted by the House providing for the consideration of the 
articles against President Johnson provided that in the event any 
articles were adopted, the House was to proceed by ballot to elect 
managers.(10)
---------------------------------------------------------------------------
10. 3 Hinds' Precedents Sec. 2414.
---------------------------------------------------------------------------

Managers, Excused From Attending House Sessions

Sec. 9.4 Managers on the part of the House to conduct impeachment 
    proceedings may be excused from attending the sessions of the House 
    by unanimous consent.

    On Apr. 10, 1933, Mr. Hatton W. Sumners, of Texas, one of the 
managers on the part of the House for impeachment pro

[[Page 2083]]

ceedings against Judge Harold Louderback, made a unanimous-consent 
request: (11)
---------------------------------------------------------------------------
11. 77 Cong. Rec. 1449, 73d Cong. 1st Sess.
---------------------------------------------------------------------------

        Mr. Sumners of Texas: Mr. Speaker, I ask unanimous consent that 
    the managers on the part of the House in the Louderback impeachment 
    matter be excused from attending upon the sessions of the House 
    during this week.
        The Speaker: (12) Is there objection to the request 
    of the gentleman from Texas?
---------------------------------------------------------------------------
12. Henry T. Rainey (Ill.).
---------------------------------------------------------------------------

        There was no objection.

Appearance of Managers in Senate

Sec. 9.5 The managers on the part of the House appear in the Senate for 
    the opening of an impeachment trial on the date messaged by the 
    Senate.

    On Mar. 9, 1936,(13) the Senate messaged to the House 
the date the Senate would be ready to receive the managers on the part 
of the House for the impeachment trial of Judge Halsted Ritter:
---------------------------------------------------------------------------
13. 80 Cong. Rec. 3449, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

        A message from the Senate, by Mr. Horne, its enrolling clerk, 
    announced that the Senate had--

            Ordered, That the Secretary inform the House of 
        Representatives that the Senate is ready to receive the 
        managers appointed by the House for the purpose of exhibiting 
        articles of impeachment against Halsted L. Ritter, United 
        States district judge for the southern district of Florida, 
        agreeably to the notice communicated to the Senate, and that at 
        the hour of 1 o'clock p.m. on Tuesday, March 10, 1936, the 
        Senate will receive the honorable managers on the part of the 
        House of Representatives, in order that they may present and 
        exhibit the said articles of impeachment against the said 
        Halsted L. Ritter, United States district judge for the 
        southern district of Florida.(14)
---------------------------------------------------------------------------
14. For the proceedings in the Senate upon the appearance of the 
        managers for the presentation of articles, see Sec. 11.4, infra 
        (Ritter proceedings).
---------------------------------------------------------------------------

Jurisdiction of Managers Over Related Matters

Sec. 9.6 Where the House has empowered its managers in an impeachment 
    proceeding to take all steps necessary in the prosecution of the 
    case, the managers may report to the House a resolution proposing 
    to amend the original articles of impeachment.

    On Mar. 30, 1936,(15) Mr. Hatton W. Sumners, of Texas, 
one of the managers on the part of the House to conduct the impeachment 
trial against Judge Halsted Ritter, reported House Resolution 471, 
which amended the articles

---------------------------------------------------------------------------
15. 80 Cong. Rec. 4597-99, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

[[Page 2084]]

originally voted by the House on Mar. 2, 1936. Mr. Sumners discussed 
the power and jurisdiction of the managers to consider and report 
amendments to the original articles:

        Mr. [Bertrand H.] Snell [of New York]: Mr. Speaker, will the 
    gentleman yield?
        Mr. Sumners of Texas: Yes.
        Mr. Snell: I may not be entirely familiar with all this 
    procedure, but as I understand, what the gentleman is doing here 
    today, is to amend the original articles of impeachment passed by 
    the House.
        Mr. Sumners of Texas: That is correct.
        Mr. Snell: The original articles of impeachment came to the 
    House as a result of the evidence before the gentleman's committee. 
    Has the gentleman's committee had anything to do with the change or 
    amendment of these charges?
        Mr. Sumners of Texas: No; just the managers.
        Mr. Snell: As a matter of procedure, would not that be the 
    proper thing to do?
        Mr. Sumners of Texas: I do not think it is at all necessary, 
    for this reason: The managers are now acting as the agents of the 
    House, and not as the agents of the Committee on the Judiciary. Mr. 
    Manager Perkins and Mr. Manager Hobbs have recently extended the 
    investigation made by the committee.
        Mr. Snell: Mr. Speaker, will the gentleman yield further?
        Mr. Sumners of Texas: Yes.
        Mr. Snell: Do I understand that the amendments come because of 
    new information that has come to you as managers that never was 
    presented to the Committee on the Judiciary?
        Mr. Sumners of Texas: Perhaps it would not be true to answer 
    that entirely in the affirmative, but the changes are made largely 
    by reason of new evidence which has come to the attention of the 
    committee, and some of these changes, more or less changes in form, 
    have resulted from further examination of the question. This is 
    somewhat as lawyers do in their pleadings. They often ask the 
    privilege of making an amendment.
        Mr. Snell: And the gentleman's position is that as agents of 
    the House it is not necessary to have the approval of his 
    committee, which made the original impeachment charges?
        Mr. Sumners of Texas: I have no doubt about that; I have no 
    doubt about the accuracy of that statement.(16)
---------------------------------------------------------------------------
16. See also 6 Cannon's Precedents Sec. 520 (amendment to articles of 
        impeachment against Judge Harold Louder back prepared and 
        called up by House managers).
---------------------------------------------------------------------------

    Parliamentarian's Note: After articles of impeachment had been 
adopted against President Andrew Johnson in 1868, the managers on the 
part of the House reported to the House, as privileged, an additional 
article of impeachment. A point of order was made that the managers 
could not so report, their functions being different from those of a 
standing committee. Speaker Schuyler Colfax,

[[Page 2085]]

of Indiana, overruled the point of order on two grounds: (1) the answer 
of the respondent is always, when messaged to the House, referred to 
the managers, who then prepare a replication to the House and (2) any 
Member of the House, whether a manager or not, may propose additional 
articles of impeachment.(17)
---------------------------------------------------------------------------
17. 3 Hinds' Precedents Sec. 2418.
            For preparation of the replication in the later practice 
        see Sec. 10.3, infra.
---------------------------------------------------------------------------

Sec. 9.7 The answer of the respondent to articles of impeachment, and 
    supplemental rules to govern the trial, are messaged to the House 
    by the Senate and referred to the managers on the part of the 
    House.

    On Apr. 6, 1936, the answer of respondent Judge Halsted Ritter to 
the articles of impeachment against him, and supplemental Senate rules, 
were messaged to the House by the Senate and referred to the managers 
on the part of the House.(18)
---------------------------------------------------------------------------
18. See 110.2, infra.
---------------------------------------------------------------------------



 
                               CHAPTER 14
 
                           Impeachment Powers
 
                    B. INVESTIGATION AND IMPEACHMENT
 
Sec. 10. Replication; Amending Adopted Articles

    The replication is the answer of the House to the respondents' 
answer to the articles of impeachment. In recent instances, the 
managers on the part of the House have submitted the replication to the 
Senate on their own initiative, without the House voting 
thereon.(19)
---------------------------------------------------------------------------
19. See Sec. 10.3, infra.
---------------------------------------------------------------------------

    The House has always reserved the right to amend the articles of 
impeachment presented to the Senate and has frequently so amended the 
articles pursuant to the recommendations of the managers on the part of 
the House.(20)
---------------------------------------------------------------------------
20. See Sec. 10.1, infra, for the reservation of the right to amend 
        articles and Sec. Sec. 10.4-10.6, infra, for the procedure in 
        so amending them.
---------------------------------------------------------------------------

                            Cross References
Managers and their powers generally, see Sec. 9, supra.
Motions to strike articles of impeachment in the Senate, see Sec. 12, 
    infra.
Respondent's answer filed in the Senate, see Sec. 11, 
    infra.                          -------------------

Reservation of Right to Amend Articles

Sec. 10.1 In the later practice, the reservation by the House of the 
    right to amend articles of impeachment presented to the Senate has 
    been delivered orally in the Senate by the House managers, and has

[[Page 2086]]

    not been included in the resolution of impeachment.

    On Mar. 10, 1936, the managers on the part of the House to conduct 
the trial of impeachment against Judge Halsted Ritter appeared in the 
Senate. After the articles of impeachment adopted by the House had been 
read to the Senate, Manager Hatton W. Sumners, of Texas, orally 
reserved the right of the House to further amend or supplement them:

        Mr. Manager Sumners: Mr. President, the House of 
    Representatives, by protestation, saving themselves the liberty of 
    exhibiting at any time hereafter any further articles of accusation 
    or impeachment against the said Halsted L. Ritter, district judge 
    of the United States for the southern district of Florida, and also 
    of replying to his answers which he shall make unto the articles 
    preferred against him, and of offering proof to the same and every 
    part thereof, and to all and every other article of accusation or 
    impeachment which shall be exhibited by them as the case shall 
    require, do demand that the said Halsted L. Ritter may be put to 
    answer the misdemeanors in office which have been charged against 
    him in the articles which have been exhibited to the Senate, and 
    that such proceedings, examinations, trials, and judgments may be 
    thereupon had and given as may be agreeable to law and justice.
        Mr. President, the managers on the part of the House of 
    Representatives, in pursuance of the action of the House of 
    Representatives by the adoption of the articles of impeachment 
    which have just been read to the Senate, do now demand that the 
    Senate take order for the appearance of the said Halsted L. Ritter 
    to answer said impeachment, and do now demand his impeachment, 
    conviction, and removal from office.(1)
---------------------------------------------------------------------------
 1. 80 Cong. Rec. 3488, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

    A similar procedure had been followed in the Robert Archbald and 
Harold Louderback impeachment proceedings, with the managers orally 
reserving in the Senate the right of the House to amend articles, 
without such reservation being included in the resolution and articles 
of impeachment.(2)
---------------------------------------------------------------------------
 2. 6 Cannon's Precedents Sec. Sec. 501, 515.
---------------------------------------------------------------------------

    Prior to the Archbald impeachment, language reserving the right of 
the House to amend articles was voted on by the House and included at 
the end of the articles presented to the Senate. For example, the House 
in the Andrew Johnson impeachment agreed to a reservation-of-amendment 
clause by unanimous consent following the adoption of articles against 
the President, and it was included in the formal articles presented to 
the Senate.(3)
---------------------------------------------------------------------------
 3. 3 Hinds' Precedents Sec. 2416.
---------------------------------------------------------------------------

Answer of Respondent and Replication of House

Sec. 10.2 The answer of the respondent in impeachment

[[Page 2087]]

    proceedings is messaged by the Senate to the House together with 
    any supplemental Senate rules therefore, and are referred to the 
    managers on the part of the House.

    On Apr. 6, 1936,(4) the answer of respondent Judge 
Halsted Ritter to the articles of impeachment against him and the 
supplemental rules adopted by the Senate for the trial were messaged to 
the House by the Senate and referred to the managers on the part of the 
House:
---------------------------------------------------------------------------
 4. 80 Cong. Rec. 5020, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

                      Impeachment of Halsted L. Ritter

        The Speaker laid before the House the following order from the 
    Senate of the United States:
    In the Senate of the United States sitting for the trial of the 
    impeachment of Halsted L. Ritter, United States district judge for 
    the southern district of Florida
                                                    April 3, 1936.

            Ordered, That the Secretary of the Senate communicate to 
        the House of Representatives an attested copy of the answer of 
        Halsted L. Ritter United States district judge for the southern 
        district of Florida, to the articles of impeachment, as 
        amended, and also a copy of the order entered on the 12th 
        ultimo prescribing supplemental rules for the said impeachment 
        trial.

        The answer and the supplemental rules to govern the impeachment 
    trial were referred to the House managers and ordered printed.

Sec. 10.3 In the Halsted Ritter and Harold Louderback impeachments, the 
    managers on the part of the House prepared the replication of the 
    House to the respondent's answer; in contrast to earlier practice, 
    the replication was submitted to the Senate without being voted on 
    by the House.

    On Apr. 6, 1936, Mr. Hatton W. Sumners, of Texas, one of the 
managers on the part of the House in the impeachment trial of Judge 
Ritter, filed in the Senate the replication of the House to the answer 
filed by the respondent, the answer having been referred in the House 
to the managers. The replication had been prepared and submitted to the 
Senate by the managers alone, and it was not reported to or considered 
by the House for adoption.(5)
---------------------------------------------------------------------------
 5. 80 Cong. Rec. 4971, 4972, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

    Similarly, the replication in the impeachment of Judge Louderback 
was filed in the Senate by the managers without being reported to or 
considered by the House.(6) In the impeachment trial of 
Judge Robert Archbald in

[[Page 2088]]

1912, however, the replication was reported by the managers to the 
House where it was considered and adopted.(7)
---------------------------------------------------------------------------
 6. 6 Cannon's Precedents Sec. 522.
 7. 6 Cannon's Precedents Sec. 506.
---------------------------------------------------------------------------

Procedure in Amending Articles of Impeachment

Sec. 10.4 Articles of impeachment which have been exhibited to the 
    Senate may be subsequently modified or amended by the adoption of a 
    resolution in the House.

    On Mar. 30, 1936,(8) a resolution (H. Res. 471) was 
offered in the House by Mr. Hatton W. Sumners, of Texas, a manager on 
the part of the House for the impeachment trial against Judge Halsted 
Ritter. The resolution amended the articles voted by the House against 
Judge Ritter on Mar. 2, 1936, by adding three new articles. The House 
agreed to the resolution after a discussion by Mr. Sumners of the 
nature of the changes and of the power of the managers to report 
amendments to the articles. Mr. Sumners summarized the changes as 
follows:
---------------------------------------------------------------------------
 8. 80 Cong. Rec. 4597-99, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. Sumners of Texas: Mr. Speaker, the resolution which has 
    just been read proposes three new articles. The change is not as 
    important as that statement would indicate. Two of the new articles 
    deal with income taxes, and one with practicing law by Judge 
    Ritter, after he went on the bench. In the original resolution, the 
    charge is made that Judge Ritter received certain fees or 
    gratuities and had written a letter, and so forth. No change is 
    proposed in articles 1 and 2. In article 3, as stated, Judge Ritter 
    is charged with practicing law after he went on the bench. That 
    same thing, in effect, was charged, as members of the committee 
    will remember, in the original resolution, but the form of the 
    charge, in the judgment of the managers, could be improved. These 
    charges go further and charge that in the matter connected with 
    G.R. Francis, the judge acted as counsel in two transactions after 
    he went on the bench, and received $7,500 in compensation. Article 
    7 is amended to include a reference to these new charges. There is 
    a change in the tense used with reference to the effect of the 
    conduct alleged. It is charged, in the resolution pending at the 
    desk, that the reasonable and probable consequence of the alleged 
    conduct is to injure the confidence of the people in the courts--I 
    am not attempting to quote the exact language--which is a matter of 
    form, I think, more than a matter of substance.(9)
---------------------------------------------------------------------------
 9. For discussion of the power of the managers on the part of the 
        House to prepare amendments to the articles and to report them 
        to the House, see Sec. 9, supra.
---------------------------------------------------------------------------

Sec. 10.5 A resolution reported by the managers proposing amendments to 
    the articles of impeachment previously adopted by the House is 
    privileged.

[[Page 2089]]

    On Mar. 30, 1936,(10) Mr. Hatton W. Sumners, of Texas, 
one of the managers on the part of the House for the Halsted Ritter 
impeachment trial, offered as privileged a resolution amending the 
articles of impeachment that had been adopted by the 
House.(11)
---------------------------------------------------------------------------
10. 80 Cong. Rec. 4597, 74th Cong. 2d Sess.
11. For a discussion of the power of the managers to prepare and report 
        to the House amendments to the articles of impeachment, see 
        Sec. 9, supra.
---------------------------------------------------------------------------

Sec. 10.6 Where the House agrees to an amendment to articles of 
    impeachment it has adopted, the House directs the Clerk by 
    resolution to so inform the Senate.

    On Mar. 30, 1936,(12) the House adopted amendments to 
the articles previously adopted in the impeachment of Judge Halsted 
Ritter. Mr. Hatton W. Sumners, of Texas, offered and the House adopted 
a privileged resolution informing the Senate of such action:
---------------------------------------------------------------------------
12. 80 Cong. Rec. 4601, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. Sumners of Texas: Mr. Speaker, I offer the following 
    privileged resolution.
        The Clerk read as follows:

                              House Resolution 472

            Resolved, That a message be sent to the Senate by the Clerk 
        of the House informing the Senate that the House of 
        Representatives has adopted an amendment to the articles of 
        impeachment heretofore exhibited against Halsted L. Ritter, 
        United States district judge for the southern district of 
        Florida, and that the same will be presented to the Senate by 
        the managers on the part of the House.
            And also, that the managers have authority to file with the 
        Secretary of the Senate, on the part of the House any 
        subsequent pleadings they shall deem necessary.

        The resolution was agreed to.



 
                               CHAPTER 14
 
                           Impeachment Powers
 
                         C. TRIAL IN THE SENATE
 
Sec. 11. Organization and Rules


    The standing Senate rules governing procedure in impeachment trials 
originally date from 1804 and continue from Congress to Congress unless 
amended; the rules are set forth in the Senate Manual as ``Rules of 
Procedure and Practice in the Senate When Sitting on Impeachment 
Trials.'' (13) The last amendment to the impeachment trial 
rules was

---------------------------------------------------------------------------
13. See Senate Manual Sec. Sec. 100-126 (1973). The rules are set out 
        in full below.
            For adoption of rules to govern impeachment trials in 1804, 
        see 3 Hinds' Precedents Sec. 2099.
--------------------------------------------------------------------------

[[Page 2090]]

adopted in 1935, to allow the appointment of a committee to receive 
evidence (Rule XI). Amendments to the rules were also reported in the 
93d Congress, pending impeachment proceedings in the House in relation 
to President Richard Nixon, but the Senate did not formally consider 
them.(14) The Senate has also, when commencing a particular 
impeachment trial, adopted supplemental rules governing pleadings, 
requests, stipulations, and motions.(15)
14. See Sec. 11.2, infra.
15. See Sec. Sec. 11.7, 11.8, infra.
---------------------------------------------------------------------------

    When the Senate is notified by the House of the adoption of a 
resolution and articles of impeachment, the Senate messages to the 
House, pursuant to Rule I of the impeachment trial rules, its readiness 
to receive the managers for the presentation of articles; Rule II 
provides the procedure for the appearance of the managers and 
exhibition of the articles to the Senate.(16)
---------------------------------------------------------------------------
16. See Sec. 111.4, infra.
---------------------------------------------------------------------------

    Rules VIII through X of the rules for impeachment trials provide 
that a summons be issued to the person impeached, that the summons be 
returned, and that the respondent appear and answer the articles 
against him. Under Rules VIII and X, the trial proceeds as on a plea of 
not guilty if the respondent does not appear either in person or by 
attorney.(17)
---------------------------------------------------------------------------
17. See Sec. Sec. 11.5, 11.9, infra, for the summons and its return. As 
        indicated in Sec. 11.9, the respondent has not always appeared 
        in person before the Senate sitting as a Court of Impeachment.
---------------------------------------------------------------------------

    Under Rule III, the Senate proceeds to consider the articles of 
impeachment on the day following the presentation of articles. 
Organizational questions arising before the actual commencement of an 
impeachment trial have been held debatable and not subject to Rule XXIV 
of the rules for impeachment trials, which prohibits debate except when 
the doors of the Senate are closed for deliberation.(18)
---------------------------------------------------------------------------
18. See Sec. 11.11, infra.
---------------------------------------------------------------------------

                  Senate Rules for Impeachment Trials
Senate Manual Sec. Sec. 100-126 (1973). For amendments to the rules for 
    impeachment trials, reported in the 93d Congress but not considered 
    by the Senate, see Sec. 11.2, infra.

        I. Whensoever the Senate shall receive notice from the House of 
    Representatives that managers are appointed on their part to 
    conduct an impeachment against any person and are directed to carry 
    articles of impeachment to the Senate, the Secretary of the Senate 
    shall immediately inform the House of Representatives that the

[[Page 2091]]

    Senate is ready to receive the managers for the purpose of 
    exhibiting such articles of impeachment, agreeably to such notice.
        II. When the managers of an impeachment shall be introduced at 
    the bar of the Senate and shall signify that they are ready to 
    exhibit articles of impeachment against any person, the Presiding 
    Officer of the Senate shall direct the Sergeant at Arms to make 
    proclamation, who shall, after making proclamation, repeat the 
    following words, viz: ``All persons are commanded to keep silence, 
    on pain of imprisonment, while the House of Representatives is 
    exhibiting to the Senate of the United States articles of 
    impeachment against ------ ------'': after which the articles shall 
    be exhibited, and then the Presiding Officer of the Senate shall 
    inform the managers that the Senate will take proper order on the 
    subject of the impeachment, of which due notice shall be given to 
    the House of Representatives.

        III. Upon such articles being presented to the Senate, the 
    Senate shall, at 1 o'clock afternoon of the day (Sunday excepted) 
    following such presentation, or sooner if ordered by the Senate, 
    proceed to the consideration of such articles and shall continue in 
    session from day to day (Sundays excepted) after the trial shall 
    commence (unless otherwise ordered by the Senate) until final 
    judgment shall be rendered, and so much longer as may, in its 
    judgment, be needful. Before proceeding to the consideration of the 
    articles of impeachment, the Presiding Officer shall administer the 
    oath hereinafter provided to the members of the Senate then present 
    and to the other members of the Senate as they shall appear, whose 
    duty it shall be to take the same.
        IV. When the President of the United States or the Vice 
    President of the United States, upon whom the powers and duties of 
    the office of President shall have devolved, shall be impeached, 
    the Chief Justice of the Supreme Court of the United States shall 
    preside; and in a case requiring the said Chief Justice to preside 
    notice shall be given to him by the Presiding Officer of the Senate 
    of the time and place fixed for the consideration of the articles 
    of impeachment, as aforesaid, with a request to attend; and the 
    said Chief Justice shall preside over the Senate during the 
    consideration of said articles and upon the trial of the person 
    impeached therein.
        V. The Presiding Officer shall have power to make and issue, by 
    himself or by the Secretary of the Senate, all orders, mandates, 
    writs, and precepts authorized by these rules or by the Senate, and 
    to make and enforce such other regulations and orders in the 
    premises as the Senate may authorize or provide.
        VI. The Senate shall have power to compel the attendance of 
    witnesses, to enforce obedience to its orders, mandates, writs, 
    precepts, and judgments, to preserve order, and to punish in a 
    summary way contempts of, and disobedience to, its authority, 
    orders, mandates, writs, precepts, or judgments, and to make all 
    lawful orders, rules, and regulations which it may deem essential 
    or conducive to the ends of justice. And the Sergeant at Arms, 
    under the direction of the Senate, may employ such aid and 
    assistance as may be necessary to enforce, execute, and carry into 
    effect the law

[[Page 2092]]

    ful orders, mandates, writs, and precepts of the Senate.
        VII. The Presiding Officer of the Senate shall direct all 
    necessary preparations in the Senate Chamber, and the Presiding 
    Officer on the trial shall direct all the forms of proceedings 
    while the Senate is sitting for the purpose of trying an 
    impeachment, and all forms during the trial not otherwise specially 
    provided for. And the Presiding Officer on the trial may rule all 
    questions of evidence and incidental questions, which ruling shall 
    stand as the judgment of the Senate, unless some member of the 
    Senate shall ask that a formal vote be taken thereon, in which case 
    it shall be submitted to the Senate for decision; or he may at his 
    option, in the first instance, submit any such question to a vote 
    of the members of the Senate. Upon all such questions the vote 
    shall be without a division, unless the yeas and nays be demanded 
    by one-fifth of the members present, when the same shall be taken.
        VIII. Upon the presentation of articles of impeachment and the 
    organization of the Senate as hereinbefore provided, a writ of 
    summons shall issue to the accused, reciting said articles, and 
    notifying him to appear before the Senate upon a day and at a place 
    to be fixed by the Senate and named in such writ, and file his 
    answer to said articles of impeachment, and to stand to and abide 
    the orders and judgments of the Senate thereon; which writ shall be 
    served by such officer or person as shall be named in the precept 
    thereof, such number of days prior to the day fixed for such 
    appearance as shall be named in such precept, either by the 
    delivery of an attested copy thereof to the person accused, or if 
    that can not conveniently be done, by leaving such copy at the last 
    known place of abode of such person, or at his usual place of 
    business in some conspicuous place therein; or if such service 
    shall be, in the judgment of the Senate, impracticable, notice to 
    the accused to appear shall be given in such other manner, by 
    publication or otherwise, as shall be deemed just; and if the writ 
    aforesaid shall fail of service in the manner aforesaid, the 
    proceedings shall not thereby abate, but further service may be 
    made in such manner as the Senate shall direct. If the accused, 
    after service, shall fail to appear, either in person or by 
    attorney, on the day so fixed therefore as aforesaid, or, 
    appearing, shall fail to file his answer to such articles of 
    impeachment, the trial shall proceed, nevertheless, as upon a plea 
    of not guilty. If a plea of guilty shall be entered, judgment may 
    be entered thereon without further proceedings.
        IX. At 12:30 o'clock afternoon of the day appointed for the 
    return of the summons against the person impeached, the legislative 
    and executive business of the Senate shall be suspended, and the 
    Secretary of the Senate shall administer an oath to the returning 
    officer in the form following, viz: ``I, ------ ------, do solemnly 
    swear that the return made by me upon the process issued on the --
    ---- day of ------, by the Senate of the United States, against --
    ---- ------, is truly made, and that I have performed such service 
    as therein described: So help me God.'' Which oath shall be entered 
    at large on the records.
        X. The person impeached shall then be called to appear and 
    answer the articles of impeachment against him. If

[[Page 2093]]

    he appear, or any person for him, the appearance shall be recorded, 
    stating particularly if by himself, or by agent or attorney, naming 
    the person appearing and the capacity in which he appears. If he do 
    not appear, either personally or by agent or attorney, the same 
    shall be recorded.
        XI. That in the trial of any impeachment the Presiding Officer 
    of the Senate, upon the order of the Senate, shall appoint a 
    committee of twelve Senators to receive evidence and take testimony 
    at such times and places as the committee may determine, and for 
    such purpose the committee so appointed and the chairman thereof, 
    to be elected by the committee, shall (unless otherwise ordered by 
    the Senate) exercise all the powers and functions conferred upon 
    the Senate and the Presiding Officer of the Senate, respectively, 
    under the rules of procedure and practice in the Senate when 
    sitting on impeachment trials.
        Unless otherwise ordered by the Senate, the rules of procedure 
    and practice in the Senate when sitting on impeachment trials shall 
    govern the procedure and practice of the committee so appointed. 
    The committee so appointed shall report to the Senate in writing a 
    certified copy of the transcript of the proceedings and testimony 
    had and given before such committee, and such report shall be 
    received by the Senate and the evidence so received and the 
    testimony so taken shall be considered to all intents and purposes, 
    subject to the right of the Senate to determine competency, 
    relevancy, and materiality, as having been received and taken 
    before the Senate, but nothing herein shall prevent the Senate from 
    sending for any witness and hearing his testimony in open Senate, 
    or by order of the Senate having the entire trial in open Senate.
        XII. At 12:30 o'clock afternoon of the day appointed for the 
    trial of an impeachment, the legislative and executive business of 
    the Senate shall be suspended, and the Secretary shall give notice 
    to the House of Representatives that the Senate is ready to proceed 
    upon the impeachment of ------ ------, in the Senate Chamber, which 
    chamber is prepared with accommodations for the reception of the 
    House of Representatives.
        XIII. The hour of the day at which the Senate shall sit upon 
    the trial of an impeachment shall be (unless otherwise ordered) 12 
    o'clock m.; and when the hour for such thing shall arrive, the 
    Presiding Officer of the Senate shall so announce; and thereupon 
    the Presiding Officer upon such trial shall cause proclamation to 
    be made, and the business of the trial shall proceed. The 
    adjournment of the Senate sitting in said trial shall not operate 
    as an adjournment of the Senate; but on such adjournment the Senate 
    shall resume the consideration of its legislative and executive 
    business.
        XIV. The Secretary of the Senate shall record the proceedings 
    in cases of impeachment as in the case of legislative proceedings, 
    and the same shall be reported in the same manner as the 
    legislative proceedings of the Senate.

        XV. Counsel for the parties shall be admitted to appear and be 
    heard upon an impeachment.
        XVI. All motions made by the parties or their counsel shall be 
    addressed to the Presiding Officer, and if he, or any Senator, 
    shall require it, they shall be

[[Page 2094]]

    committed to writing, and read at the Secretary's table.
        XVII. Witnesses shall be examined by one person on behalf of 
    the party producing them, and then cross-examined by one person on 
    the other side.
        XVIII. If a Senator is called as a witness, he shall be sworn, 
    and give his testimony standing in his place.
        XIX. If a Senator wishes a question to be put to a witness, or 
    to offer a motion or order (except a motion to adjourn), it shall 
    be reduced to writing, and put by the Presiding Officer.
        XX. At all times while the Senate is sitting upon the trial of 
    an impeachment the doors of the Senate shall be kept open, unless 
    the Senate shall direct the doors to be closed while deliberating 
    upon its decisions.
        XXI. All preliminary or interlocutory questions, and all 
    motions, shall be argued for not exceeding one hour on each side, 
    unless the Senate shall, by order, extend the time.
        XXII. The case, on each side, shall be opened by one person. 
    The final argument on the merits may be made by two persons on each 
    side (unless otherwise ordered by the Senate upon application for 
    that purpose), and the argument shall be opened and closed on the 
    part of the House of Representatives.
        XXIII. On the final question whether the impeachment is 
    sustained, the yeas and nays shall be taken on each article of 
    impeachment separately; and if the impeachment shall not, upon any 
    of the articles presented, be sustained by the votes of two-thirds 
    of the members present, a judgment of acquittal shall be entered; 
    but if the person accused in such articles of impeachment shall be 
    convicted upon any of said articles by the votes of two-thirds of 
    the members present, the Senate shall proceed to pronounce 
    judgment, and a certified copy of such judgment shall be deposited 
    in the office of the Secretary of State.
        XXIV. All the orders and decisions shall be made and had by 
    yeas and nays, which shall be entered on the record, and without 
    debate, subject, however, to the operation of Rule VII, except when 
    the doors shall be closed for deliberation, and in that case no 
    member shall speak more than once on one question, and for not more 
    than ten minutes on an interlocutory question, and for not more 
    than fifteen minutes on the final question, unless by consent of 
    the Senate, to be had without debate; but a motion to adjourn may 
    be decided without the yeas and nays, unless they be demanded by 
    one-fifth of the members present. The fifteen minutes herein 
    allowed shall be for the whole deliberation on the final question, 
    and not on the final question on each article of impeachment.
        XXV. Witnesses shall be sworn in the following form, viz: 
    ``You, ------ ------, do swear (or affirm, as the case may be) that 
    the evidence you shall give in the case now pending between the 
    United States and ------ ------, shall be the truth, the whole 
    truth, and nothing but the truth: So help you God.'' Which oath 
    shall be administered by the Secretary, or any other duly 
    authorized person.

     Form of a subpena be issued on the application of the managers of 
       the impeachment, or of the party impeached, or of his counsel
    To ------ ------, greeting:

        You and each of you are hereby commanded to appear before the 
    Senate of

[[Page 2095]]

    the United States, on the ------ day of ------, at the Senate 
    Chamber in the city of Washington, then and there to testify your 
    knowledge in the cause which is before the Senate in which the 
    House of Representatives have impeached ------ ------.
        Fail not.
        Witness ------ ------, and Presiding Officer of the Senate, at 
    the city of Washington, this ------ day of ------, in the year of 
    our Lord ------, and of the Independence of the United States the 
    ------.
                                                  ------ ------,
                                  Presiding Officer of the Senate.

             Form of direction for the service of said subpena
    The Senate of the United States to ------ ------, greeting:

        You are hereby commanded to serve and return the within subpena 
    according to law.
        Dated at Washington, this ------ day of ------, in the year of 
    our Lord ------, and of the Independence of the United States the 
    ------.
                                                  ------ ------,
                                          Secretary of the Senate.

       Form of oath to be administered to the members of the Senate 
                    sitting in the trial of impeachments

        ``I solemnly swear (or affirm, as the case may be) that in all 
    things appertaining to the trial of the impeachment of ------ ----
    --, now pending, I will do impartial justice according to the 
    Constitution and laws: So help me God.''

     Form of summons to be issued and served upon the person impeached
    The United States of America, ss:
    The Senate of the United States to ------ ------, greeting:

        Whereas the House of Representatives of the United States of 
    America did, on the ------ day of ------, exhibit to the Senate 
    articles of impeachment against you, the said ------ ------, in the 
    words following:

                           [Here insert the articles]
    And demand that you, the said ------ ------, should be put to 
    answer the accusations as set forth in said articles, and that such 
    proceedings, examinations, trials, and judgments might be thereupon 
    had as are agreeable to law and justice.

        You, the said ------ ------, are therefore hereby summoned to 
    be and appear before the Senate of the United States of America, at 
    their Chamber in the city of Washington, on the ------ day of ----
    --, at 12:30 o'clock afternoon, then and there to answer to the 
    said articles of impeachment, and then and there to abide by, obey, 
    and perform such orders, directions, and judgments as the Senate of 
    the United States shall make in the premises according to the 
    Constitution and laws of the United States.
        Hereof you are not to fail.
        Witness ------ ------, and Presiding Officer of the said 
    Senate, at the city of Washington, this ------ day of ------, in 
    the year of our Lord ------, and of the Independence of the United 
    States the ------.
                                                  ------ ------,
                                  Presiding Officer of the Senate.

           Form of precept to be indorsed on said writ of summons
    The United States of America, ss:
    The Senate of the United States to ------ ------, greeting:

        You are hereby commanded to deliver to and leave with ------ --
    ----, if

[[Page 2096]]

    conveniently to be found, or if not, to leave at his usual place of 
    abode, or at his usual place of business in some conspicuous place, 
    a true and attested copy of the within writ of summons, together 
    with a like copy of this precept; and in whichsoever way you 
    perform the service, let it be done at least ------ days before the 
    appearance day mentioned in the said writ of summons.
        Fail not, and make return of this writ of summons and precept, 
    with your proceedings thereon indorsed, on or before the appearance 
    day mentioned in the said writ of summons.
        Witness ------ ------, and Presiding Officer of the Senate, at 
    the city of Washington, this ------ day of ------, in the year of 
    our Lord ------, and of the Independence of the United States the 
    ------.
                                                  ------ ------,
                                  Presiding Officer of the Senate.

        All process shall be served by the Sergeant at Arms of the 
    Senate, unless otherwise ordered by the court.
        XXVI. If the Senate shall at any time fail to sit for the 
    consideration of articles of impeachment on the day or hour fixed 
    therefor, the Senate may, by an order to be adopted without debate, 
    fix a day and hour for resuming such consideration.

                            Cross References
Functions of the Senate in impeachment generally, see Sec. 1, supra.
House-Senate relations generally, see Ch. 32, infra.
Senate notified of adoption of impeachment resolution and election of 
    managers by the House, see Sec. 9, supra.

                         Collateral References
Functions and practice of the Senate in impeachments, see Riddick, 
    Senate Procedure 495-504, S. Doc. No. 93-21, 93d Cong. 1st Sess. 
    (1973); Riddick, Procedure and Guidelines for Impeachment Trials in 
    the United States Senate, S. Doc. No. 93-102, 93d Cong. 2d Sess. 
    (1974).
Standing rules of the Senate generally, see Riddick, Senate Procedure 
    774-779, S. Doc. No. 93-21, 93d Cong. 1st Sess. 
    (1973).                          -------------------

Senate Rules for Impeachment Trials

Sec. 11.1 After impeachment proceedings had been instituted in the 
    House against President Richard Nixon, the Senate adopted a 
    resolution for the study and review of Senate rules and precedents 
    applicable to impeachment trials.

    On July 29, 1974,(19) during the pendency of an 
investigation in the House of alleged impeachable offenses committed by 
President Nixon, the Senate adopted a resolution related to its rules 
on impeachment:
---------------------------------------------------------------------------
19. 120 Cong. Rec. 25468, 93d Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. [Michael J.] Mansfield [of Montana]: Mr. President, I have 
    at the desk a resolution, submitted on behalf of the distinguished 
    Republican leader, the Senator from Pennsylvania (Mr. Hugh Scott), 
    the assistant majority leader, the distinguished Senator from

[[Page 2097]]

    West Virginia (Mr. Robert C. Byrd), the assistant Republican 
    leader, the distinguished Senator from Michigan (Mr. Griffin), and 
    myself, and I ask that it be called up and given immediate 
    consideration.
        The Presiding Officer: (20) The clerk will state the 
    resolution.
---------------------------------------------------------------------------
20. Jesse Helms (N.C.).
---------------------------------------------------------------------------

        The legislative clerk read as follows:

                                  S. Res. 370

            Resolved, That the Committee on Rules and Administration is 
        directed to review any and all existing rules and precedents 
        that apply to impeachment trials with a view to recommending 
        any revisions, if necessary, which may be required if the 
        Senate is called upon to conduct such a trial.
            Resolved further, That the Committee on Rules and 
        Administration is instructed to report back no later than 1 
        September 1974, or on such earlier date as the Majority and 
        Minority Leaders may designate, and
            Resolved further, That such review by that Committee shall 
        be held entirely in executive sessions.

        The Presiding Officer: Without objection, the Senate will 
    proceed to its immediate consideration.
        The question is on agreeing to the resolution.
        The resolution (S. 370) was agreed to.

    Parliamentarian's Note: The Senate, unlike the House, is a 
continuing legislative body. Therefore, the standing rules of the 
Senate, including the rules for impeachment trials, continue from 
Congress to Congress unless amended.(21)
---------------------------------------------------------------------------
21. See Rule XXXII, Senate Manual Sec. 32.2 (1973).
---------------------------------------------------------------------------

Sec. 11.2 The Senate having directed its Committee on Rules and 
    Administration to review Senate rules and precedents applicable to 
    impeachment trials (pending impeachment proceedings in the House 
    against President Richard Nixon), the committee reported back 
    various amendments to those Senate rules, which amendments were not 
    considered in the Senate.

    On July 29, 1974, during the pendency of an investigation in the 
House of alleged impeachable offenses committed by President Nixon, the 
Senate adopted Senate Resolution 370, directing its Committee on Rules 
and Administration to review any and all existing rules and precedents 
that apply to impeachment trials, with a view to recommending any 
necessary revisions.
    The Committee on Rules and Administration reported (S. Rept. No. 
93-1125) on Aug. 22, 1974, a resolution (S. Res. 390) amending the 
Rules of Procedure and Practice in the Senate when Sitting on 
Impeachment Trials. The resolution was not considered by the Senate.
    The amendments provided: (1) that the Chief Justice, when presiding 
over impeachment trials of

[[Page 2098]]

the President or Vice President, be administered the oath by the 
Presiding Officer; (2) that the term ``person accused'' in reference to 
the respondent, be changed in all cases to ``person impeached''; (3) 
that the Presiding Officer rule on all questions of evidence 
``including, but not limited to, questions of relevancy, materiality, 
and redundancy,'' such decision to be voted upon on demand ``without 
debate'' and such vote to be ``taken in accordance with the Standing 
Rules of the Senate''; (4) that a committee of 12 Senators may receive 
evidence ``if the Senate so orders'' the appointment of such a 
committee by the Presiding Officer; (5) that the Senate may order 
another hour than 12:30 m. o'clock for commencing impeachment 
proceedings; and other clarifying changes. Other amendments proposed 
certain rules governing the trial and procedures for voting on the 
articles: (1)
---------------------------------------------------------------------------
 1. S. Res. 390, 120 Cong. Rec. 29811-13, 93d Cong. 2d Sess., Aug. 22, 
        1974.
---------------------------------------------------------------------------

        XVI. All motions, objections, requests, or applications whether 
    relating to the procedure of the Senate or relating immediately to 
    the trial (including questions with respect to admission of 
    evidence or other questions arising during the trial) made by the 
    parties or their counsel shall be addressed to the Presiding 
    Officer only, and if he, or any Senator, shall require it, they 
    shall be committed to writing, and read at the Secretary's table. . 
    . .
        XIX. If a Senator wishes a question to be put to a witness, or 
    to a manager, or to counsel of the person impeached, or to offer a 
    motion or order (except a motion to adjourn), it shall be reduced 
    to writing, and put by the Presiding Officer. The parties or their 
    counsel may interpose objections to witnesses answering questions 
    propounded at the request of any Senator and the merits of any such 
    objection may be argued by the parties or their counsel. Ruling on 
    any such objection shall be made as provided in Rule VII. It shall 
    not be in order for any Senator to engage in colloquy.
        XX. At all times while the Senate is sitting upon the trial of 
    an impeachment the doors of the Senate shall be kept open, unless 
    the Senate shall direct the doors to be closed while deliberating 
    upon its decisions. A motion to close the doors may be acted upon 
    without objection, or, if objection is heard, the motions shall be 
    voted on without debate by the yeas and nays, which shall be 
    entered on the record.
        XXI. All preliminary or interlocutory questions, and all 
    motions, shall be argued for not exceeding one hour (unless the 
    Senate otherwise orders) on each side. . . .
        XXIII. An article of impeachment shall not be divisible for the 
    purpose of voting thereon at any time during the trial. Once voting 
    has commenced on an article of impeachment, voting shall be 
    continued until voting has been completed on all articles of 
    impeachment unless the Senate adjourns for a period not to exceed 
    one day or ad

[[Page 2099]]

    journs sine die. On the final question whether the impeachment is 
    sustained, the yeas and nays shall be taken on each article of 
    impeachment separately; and if the impeachment shall not, upon any 
    of the articles presented, be sustained by the votes of two-thirds 
    of the members present, a judgment of acquittal shall be entered; 
    but if the person impeached shall be convicted upon any such 
    article by the votes of two-thirds of the members present, the 
    Senate may proceed to the consideration of such other matters as 
    may be determined to be appropriate prior to pronouncing judgment. 
    Upon pronouncing judgment, a certified copy of such judgment shall 
    be deposited in the office of the Secretary of State. A motion to 
    reconsider the vote by which any article of impeachment is 
    sustained or rejected shall not be in order.

        Form of Putting the Question on Each Article of Impeachment

        The Presiding Officer shall first state the question; 
    thereafter each Senator, as his name is called, shall rise in his 
    place and answer: guilty or not guilty.
        XXIV. All the orders and decisions may be acted upon without 
    objection, or, if objection is heard, the orders and decisions 
    shall be voted on without debate by yeas and nays, which shall be 
    entered on the record, subject, however, to the operation of Rule 
    VII, except when the doors shall be closed for deliberation, and in 
    that case no member shall speak more than once on one question, and 
    for not more than ten minutes on an interlocutory question, and for 
    not more than fifteen minutes on the final question, unless by 
    consent of the Senate, to be had without debate; but a motion to 
    adjourn may be decided without the yeas and nays, unless they be 
    demanded by one-fifth of the members present. The fifteen minutes 
    here in allowed shall be for the whole deliberation on the final 
    question, and not on the final question on each article of 
    impeachment.

Sec. 11.3 The Senate amended its rules for impeachment trials in the 
    74th Congress to allow a committee of 12 Senators to receive 
    evidence and take testimony.

    On May 28, 1935, the Senate considered and agreed to a resolution 
(S. Res. 18) amending the rules of procedure and practice in the Senate 
when sitting on impeachment trials. The resolution added a new rule 
relating to the reception of evidence by a committee appointed by the 
Presiding Officer:

        Resolved, That in the trial of any impeachment the Presiding 
    Officer of the Senate, upon the order of the Senate, shall appoint 
    a committee of twelve Senators to receive evidence and take 
    testimony at such times and places as the committee may determine, 
    and for such purpose the committee so appointed and the chairman 
    thereof, to be elected by the committee, shall (unless otherwise 
    ordered by the Senate) exercise all the powers and functions 
    conferred upon the Senate and the Presiding Officer of the Senate, 
    respectively, under the rules of procedure and practice in the 
    Senate when sitting on impeachment trials.

[[Page 2100]]

        Unless otherwise ordered by the Senate, the rules of procedure 
    and practice in the Senate when sitting on impeachment trials shall 
    govern the procedure and practice of the committee so appointed. 
    The committee so appointed shall report to the Senate in writing a 
    certified copy of the transcript of the proceedings and testimony 
    had and given before such committee, and such report shall be 
    received by the Senate and the evidence so received and the 
    testimony so taken shall be considered to all intents and purposes, 
    subject to the right of the Senate to determine competency, 
    relevancy, and materiality, as having been received and taken 
    before the Senate, but nothing herein shall prevent the Senate from 
    sending for any witness and hearing his testimony in open Senate, 
    or by order of the Senate having the entire trial in open 
    Senate.(2)
---------------------------------------------------------------------------
 2. 79 Cong. Rec. 8309, 8310, 74th Cong. 1st Sess.
---------------------------------------------------------------------------

Appearance of Managers

Sec. 11.4 The managers on the part of the House appear in the Senate to 
    exhibit the articles of impeachment at the time messaged for that 
    purpose by the Senate.

    On Mar. 9, 1936,(3) the Senate messaged to the House its 
readiness to receive the managers on the part of the House to present 
articles of impeachment against U.S. District Judge Halsted Ritter at a 
specified time:
---------------------------------------------------------------------------
 3. 80 Cong. Rec. 3449, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

        A message from the Senate, by Mr. Horne, its enrolling clerk, 
    announced that the Senate had--

            Ordered, That the Secretary inform the House of 
        Representatives that the Senate is ready to receive the 
        managers appointed by the House for the purpose of exhibiting 
        articles of impeachment against Halsted L. Ritter, United 
        States district judge for the southern district of Florida, 
        agreeably to the notice communicated to the Senate and that at 
        the hour of 1 o'clock p.m. on Tuesday, March 10, 1936, the 
        Senate will receive the honorable managers on the part of the 
        House of Representatives, in order that they may present and 
        exhibit the said articles of impeachment against the said 
        Halsted L. Ritter, United States district judge for the 
        southern district of Florida.

    On Mar. 10, the managers on the part of the House appeared in the 
Senate pursuant to the order and the following proceedings took place:

        The Vice President: (4) Will the Senator from North 
    Carolina suspend in order to permit the managers on the part of the 
    House of Representatives in the impeachment proceedings to appear 
    and present the articles of impeachment?
---------------------------------------------------------------------------
 4. John N. Garner (Tex.).
---------------------------------------------------------------------------

        Mr. [Josiah W.] Bailey [of North Carolina]: Mr. President, may 
    I take my seat with the right to resume at the end of the 
    impeachment proceedings?
        The Vice President: The Senator will have the floor when the 
    Senate resumes legislative session.

[[Page 2101]]

                      Impeachment of Halsted L. Ritter

        At 1 o'clock p.m. the managers on the part of the House of 
    Representatives of the impeachment of Halsted L. Ritter appeared 
    below the bar of the Senate, and the secretary to the majority, 
    Leslie L. Biffle, announced their presence, as follows:
        I have the honor to announce the managers on the part of the 
    House of Representatives to conduct the proceedings in the 
    impeachment of Halsted L. Ritter, United States district judge in 
    and for the southern district of Florida.
        The Vice President: The managers on the part of the House will 
    be received and assigned their seats.
        The managers, accompanied by the Deputy Sergeant at Arms of the 
    House of Representatives, William K. Weber, were thereupon escorted 
    by the secretary to the majority to the seats assigned to them in 
    the area in front and to the left of the Chair.
        The Vice President: The Chair understands the managers on the 
    part of the House of Representatives are ready to proceed with the 
    impeachment. The Sergeant at Arms will make proclamation.
        The Sergeant at Arms, Chesley W. Jurney, made proclamation, as 
    follows:
        Hear ye! Hear ye! Hear ye! All persons are commanded to keep 
    silent, on pain of imprisonment, while the House of Representatives 
    is exhibiting to the Senate of the United States articles of 
    impeachment against Halsted L. Ritter, United States district judge 
    in and for the southern district of Florida.
        Mr. [Joseph T.] Robinson [of Arkansas]: I suggest the absence 
    of a quorum.
        The Vice President: The clerk will call the roll.
        The legislative clerk (Emery L. Frazier) galled the roll, and 
    the following Senators answered to their names. . . .
        The Vice President: Eighty-six Senators have answered to their 
    names. A quorum is present. The managers on the part of the House 
    will proceed.
        Mr. Manager [Hatton W.] Sumners [of Texas]: Mr. President, the 
    managers on the part of the House of Representatives are here 
    present and ready to present the articles of impeachment which have 
    been preferred by the House of Representatives against Halsted L. 
    Ritter, a district judge of the United States for the southern 
    district of Florida.
        The House adopted the following resolution, which, with the 
    permission of the Senate, I will read:

                              House Resolution 439
                                                  In the House
                                             of Representatives,
                                                    March 6, 1936.

            Resolved, That Hatton W. Sumners, Randolph Perkins, and Sam 
        Hobbs, Members of this House, be, and they are hereby, 
        appointed managers to conduct the impeachment against Halsted 
        L. Ritter, United States district judge for the southern 
        district of Florida; that said managers are hereby instructed 
        to appear before the Senate of the United States and at the bar 
        thereof in the name of the House of Representatives and of all 
        the people of the United States to impeach the said Halsted L. 
        Ritter of high crimes and misdemeanors in office and to exhibit 
        to the Senate of the United States the articles of impeachment

[[Page 2102]]

        against said judge which have been agreed upon by this House; 
        and that the said managers do demand that the Senate take order 
        for the appearance of said Halsted L. Ritter to answer said 
        impeachment, and demand his impeachment, conviction, and 
        removal from office.
                                              Joseph W. Byrns,
                                                  Speaker of the
                                         House of Representatives.

            Attest:
                                             South Trimble, Clerk.

            [Seal of the House of Representatives.]

        Mr. President, with the permission of the Vice President and 
    the Senate, I will ask Mr. Manager Hobbs to read the articles of 
    impeachment.
        The Vice President: Mr. Manager Hobbs will proceed, and the 
    Chair will take the liberty of suggesting that he stand at the desk 
    in front of the Chair, as from that position the Senate will 
    probably be able to hear him better.
        Mr. Manager Hobbs, from the place suggested by the Vice 
    President, said:
        Mr. President and gentlemen of the Senate:

             Articles of Impeachment Against Halsted L. Ritter
    House Resolution 422, Seventy-fourth Congress, second session, 
        Congress of the United States of America

    [Mr. Hobbs read the resolution and articles of impeachment].

        Mr. Manager Sumners: Mr. President, the House of 
    Representatives, by protestation, saving themselves the liberty of 
    exhibiting at any time hereafter any further articles of accusation 
    or impeachment against the said Halsted L. Ritter, district judge 
    of the United States for the southern district of Florida, and also 
    of replying to his answers which he shall make unto the articles 
    preferred against him, and of offering proof to the same and every 
    part thereof, and to all and every other article of accusation or 
    impeachment which shall be exhibited by them as the case shall 
    require, do demand that the said Halsted L. Ritter may be put to 
    answer the misdemeanors in office which have been charged against 
    him in the articles which have been exhibited to the Senate, and 
    that such proceedings, examinations, trials, and judgments may be 
    thereupon had and given as may be agreeable to law and justice.
        Mr. President, the managers on the part of the House of 
    Representatives, in pursuance of the action of the House of 
    Representatives by the adoption of the articles of impeachment 
    which have just been read to the Senate, do now demand that the 
    Senate take order for the appearance of the said Halsted L. Ritter 
    to answer said impeachment, and do now demand his impeachment, 
    conviction, and removal from office.
        The Vice President: The Senate will take proper order and 
    notify the House of Representatives.(5)
---------------------------------------------------------------------------
 5. 80 Cong. Rec. 3485-89, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

Organization of Senate as Court of Impeachment

Sec. 11.5 Following the appearance of the managers and their 
    presentation of the articles of impeachment to the Senate, the oath 
    is adminis

[[Page 2103]]

    tered, the Senate organizes for the trial of impeachment and 
    notifies the House thereof, the articles are printed for the use of 
    the Senate, a summons is issued for the appearance of the 
    respondent, and provision is made for payment of trial expenses.

    On Mar. 10, 1936,(6) immediately following the 
presentation of articles of impeachment against Judge Halsted Ritter by 
the managers on the part of the House to the Senate, the following 
proceedings took place in the Senate:
---------------------------------------------------------------------------
 6. 80 Cong. Rec. 3488, 3489, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. [Henry F.] Ashurst [of Arizona]: Mr. President, I move that 
    the senior Senator from Idaho [Mr. Borah], who is the senior 
    Senator in point of service in the Senate, be now designated by the 
    Senate to administer the oath to the Presiding Officer of the Court 
    of Impeachment.
        The motion was agreed to; and Mr. Borah advanced to the Vice 
    President's desk and administered the oath to Vice President Garner 
    as Presiding Officer, as follows:

            You do solemnly swear that in all things appertaining to 
        the trial of the impeachment of Halsted L. Ritter, United 
        States district judge for the southern district of Florida, now 
        pending, you will do impartial justice according to the 
        Constitution and laws. So help you God.

        Mr. Ashurst: Mr. President, at this time the oath should be 
    administered to all the Senators, but I should make the observation 
    that if any Senator desires to be excused from this service, now is 
    the appropriate time to make known such desire. If there be no 
    Senator who desires to be excused, I move that the Presiding 
    Officer administer the oath to the Senators, so that they may form 
    a Court of Impeachment.
        The Vice President: (7) Is there objection? The 
    Chair hears none, and it is so ordered. Senators will now be sworn.
---------------------------------------------------------------------------
 7. John N. Garner (Tex.).
---------------------------------------------------------------------------

        Thereupon the Vice President administered the oath to the 
    Senators present, as follows:

            You do each solemnly swear that in all things appertaining 
        to the trial of the impeachment of Halsted L. Ritter, United 
        States district judge for the southern district of Florida, now 
        pending, you will do impartial justice according to the 
        Constitution and laws. So help you God.

        The Vice President: The Sergeant at Arms will now make 
    proclamation that the Senate is sitting as a Court of Impeachment.
        The Sergeant at Arms: Hear ye! Hear ye! Hear ye! All persons 
    are commanded to keep silence on pain of imprisonment while the 
    Senate of the United States is sitting for the trial of the 
    articles of impeachment exhibited by the House of Representatives 
    against Halsted L. Ritter, United States district judge for the 
    southern district of Florida.
        Mr. Ashurst: Mr. President, I send to the desk an order, which 
    I ask to have read and agreed to.
        The Vice President: The clerk will read.

[[Page 2104]]

        The Chief Clerk (John C. Crockett) read as follows:

            Ordered, That the Secretary notify the House of 
        Representatives that the Senate is now organized for the trial 
        of articles of impeachment against Halsted L. Ritter, United 
        States district judge for the southern district of Florida.

        The Vice President: Without objection, the order will be 
    entered.
        Mr. Ashurst: Mr. President, I send another proposed order to 
    the desk, and ask for its adoption.
        The Vice President: The clerk will read the proposed order.
        The Chief Clerk read as follows:

            Ordered, That the articles of impeachment presented against 
        Halsted L. Ritter, United States district judge for the 
        southern district of Florida, be printed for the use of the 
        Senate.

        The Vice President: Without objection, the order will be 
    entered.
        Mr. Ashurst: Mr. President, I send a further order to the desk, 
    and ask for its adoption.
        The Vice President: The clerk will read the proposed order.
        The Chief Clerk read as follows:

            Ordered, That a summons to the accused be issued as 
        required by the rules of procedure and practice in the Senate, 
        when sitting for the trial of the impeachment against Halsted 
        L. Ritter, United States district judge for the southern 
        district of Florida, returnable on Thursday, the 12th day of 
        March 1936, at 1 o'clock in the afternoon.

        The Vice President: Is there objection? Without objection, the 
    order will be entered.
        Mr. [Charles L.] McNary [of Oregon]: Mr. President, permit me 
    to make an inquiry.
        The Vice President: The Senator will make it.
        Mr. McNary: What record is being made of the Senators who have 
    taken their oaths as jurors?
        The Vice President: No record has been made so far as the Chair 
    knows; but the Chair assumes that any Senator who was not in the 
    Senate Chamber at the time the oath was administered to Senators en 
    bloc will make the fact known to the Chair, so that he may take the 
    oath at some future time.
        Mr. Ashurst: The Chair is correct in his statement in that any 
    Senator who was not I resent when the oath was taken en bloc, and 
    who desires to take the oath, may do so at any time before the 
    admission of evidence begins.
        Mr. McNary subsequently said: Mr. President, I am advised that 
    the able Senator from New Jersey [Mr. Barbour] will be absent from 
    the city on next Thursday, and would like to be sworn at this time.
        The Vice President: The Senator from Oregon asks unanimous 
    consent that the Senator from New Jersey may take the oath at this 
    time as a juror in the impeachment trial of Halsted L. Ritter.
        Mr. [Ellison D.] Smith [of South Carolina]: Mr. President, in 
    order to save time, I ask the same privilege. I was absent when 
    Senators were sworn as jurors en bloc.
        The Vice President: If there are any other Senators in the 
    Senate Chamber at the moment who did not take their oaths as jurors 
    when Senators were sworn en bloc, it would be advisable that they 
    make it known; and, if agreeable to the Senate, they may all be 
    sworn as jurors at one time.

[[Page 2105]]

        Mr. Ashurst: The Senator from Texas [Mr. Sheppard], who was not 
    present when other Senators were sworn, is now present, and wishes 
    to be sworn.
        The Vice President: Is there objection to such action being 
    taken at this time? The Chair hears none. Such Senators as are in 
    the Chamber at this time who were not present when Senators were 
    sworn en bloc as jurors will raise their right hands and be sworn.
        Mr. Barbour, Mr. Overton, Mr. Sheppard, Mr. Smith, and Mr. 
    Townsend rose, and the oath was administered to them by the Vice 
    President.
        Mr. Ashurst: Mr. President, I move that the Senate, sitting as 
    a Court of Impeachment, adjourn until Thursday next at 1 p.m.
        The motion was agreed to; and (at 1 o'clock and 50 minutes 
    p.m.) the Senate, sitting as a Court of Impeachment, adjourned 
    until Thursday, March 12, 1936, at 1 p.m.

            Impeachment of Halsted L. Ritter--Expenses of Trial

        Mr. [James F.] Byrnes [of South Carolina]: From the Committee 
    to Audit and Control the Contingent Expenses of the Senate, I 
    report back favorably, without amendment, Senate Resolution 244, 
    providing for defraying the expenses of the impeachment proceedings 
    relative to Halsted L. Ritter. I ask unanimous consent for the 
    present consideration of the resolution.
        The Vice President: The resolution will be read.
        The Chief Clerk read Senate Resolution 244, submitted by Mr. 
    Ashurst on the 9th instant, and it was considered by unanimous 
    consent and agreed to, as follows:

            Resolved, That not to exceed $5,000 is authorized to be 
        expended from the appropriation for miscellaneous items, 
        contingent expenses of the Senate, to defray the expenses of 
        the Senate in the impeachment trial of Halsted L. Ritter.

Sec. 11.6 Senators who have not taken the oath following the 
    commencement of the trial take the oath not in legislative session 
    but while the Senate is sitting as a Court of Impeachment, and the 
    Journal Clerk maintains records of those Senators who have taken 
    the oath.

    On Mar. 12, 1936, the Senate was conducting legislative business 
before resolving itself into a Court of Impeachment for further 
proceedings in the trial of Judge Halsted L. Ritter. When a Senator who 
had not yet taken the oath for the impeachment trial indicated he 
wished to be sworn at that time, Vice President John N. Garner, of 
Texas, ruled as follows:

            The Vice President: After a thorough survey of the 
        situation, the best judgment of the Chair is that Senators who 
        have not heretofore taken the oath as jurors of the court 
        should take it after the Senate resolves itself into a court; 
        all Senators who have not as yet taken the oath as jurors will 
        take the oath at that time.(8)
---------------------------------------------------------------------------
 8. 80 Cong. Rec. 3641, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

    Later on the same day, it was announced that the Journal Clerk

[[Page 2106]]

had the duty to record the names of those Senators already having taken 
the oath, there being no other record thereof.(9)
---------------------------------------------------------------------------
 9. Id. at p. 3646.
---------------------------------------------------------------------------

Supplemental Rules for Trial

Sec. 11.7 For the Halsted Ritter impeachment trial, the Senate sitting 
    as a Court of Impeachment adopted supplemental rules similar to 
    those in the Harold Louderback trial.

    On Mar. 12, 1936, the Court of Impeachment in the impeachment trial 
of Judge Ritter adopted supplemental rules:

        Mr. [Henry F.] Ashurst [of Arizona]: . . . Mr. President, in 
    order that Senators, sitting as judges and jurors, may have an 
    opportunity to study this matter, I ask for the adoption, after it 
    shall have been read, of the order which I send to the desk. This 
    is in haec verba the same order that was adopted in the Louderback 
    case.
        The Vice President: (10) The clerk will read.
---------------------------------------------------------------------------
10. John N. Garner (Tex.).
---------------------------------------------------------------------------

        The Chief Clerk read as follows:

            Ordered, That in addition to the rules of procedure and 
        practice in the Senate when sitting on impeachment trials, 
        heretofore adopted, and supplementary to such rules, the 
        following rules shall be applicable in the trial of the 
        impeachment of Halsted L. Ritter, United States judge for the 
        southern district of Florida:
            1. In all matters relating to the procedure of the Senate, 
        whether as to form or otherwise, the managers on the part of 
        the House or the counsel representing the respondent may submit 
        a request or application orally to the Presiding Officer, or, 
        if required by him or requested by any Senator, shall submit 
        the same in writing.
            2. In all matters relating immediately to the trial, such 
        as the admission, rejection, or striking out of evidence, or 
        other questions usually arising in the trial of causes in 
        courts of justice, if the managers on the part of the House or 
        counsel representing the respondent desire to make any 
        application, request, or objection, the same shall be addressed 
        directly to the Presiding Officer and not otherwise.
            3. It shall not be in order for any Senator, except as 
        provided in the rules of procedure and practice in the Senate 
        when sitting on impeachment trials, to engage in colloquy or to 
        address questions either to the managers on the part of the 
        House or to counsel for the respondent, nor shall it be in 
        order for Senators to address each other; but they shall 
        address their remarks directly to the Presiding Officer and not 
        otherwise.
            4. The parties may, by stipulation in writing filed with 
        the Secretary of the Senate and by him laid before the Senate 
        or presented at the trial, agree upon any facts involved in the 
        trial; and such stipulation shall be received by the Senate for 
        all intents and purposes as though the facts therein agreed 
        upon had been established by legal evidence adduced at the 
        trial.
            5. The parties or their counsel may interpose objection to 
        witnesses answering questions propounded at the request of any 
        Senator, and the merits of any such objection may be argued by 
        the parties or their counsel; and the Presiding Officer may 
        rule on any such objection, which ruling

[[Page 2107]]

        shall stand as the judgment of the Senate, unless some Member 
        of the Senate shall ask that a formal vote be taken thereon, in 
        which case it shall be submitted to the Senate for decision; or 
        he may, at his option, in the first instance submit any such 
        question to a vote of the Members of the Senate. Upon all such 
        questions the vote shall be without debate and without a 
        division, unless the ayes and nays be demanded by one-fifth of 
        the Members present, when the same shall be 
        taken.(11)
---------------------------------------------------------------------------
11. 80 Cong. Rec. 3648, 3649, 74th Cong. 2d Sess. For the adoption of 
        identical supplemental rules in the Louderback case, see 6 
        Cannon's Precedents Sec. 519.
---------------------------------------------------------------------------

Sec. 11.8 Supplemental rules adopted by the Senate for an impeachment 
    trial are messaged to the House and referred to the managers on the 
    part of the House.

    On Apr. 6, 1936,(12) there was laid before the House a 
message from the Senate informing the House of the adoption of 
supplemental rules to govern the impeachment trial against Judge 
Halsted Ritter. They were referred to the managers:
---------------------------------------------------------------------------
12. 80 Cong. Rec. 5020, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

        The Speaker laid before the House the following order from the 
    Senate of the United States:

        In the Senate of the United States sitting for the trial of the 
            impeachment of Halsted L. Ritter, United States district 
            judge for the southern district of Florida
                                                    April 3, 1936.

            Ordered, That the Secretary of the Senate communicate to 
        the House of Representatives an attested copy of the answer of 
        Halsted L. Ritter, United States district judge for the 
        southern district of Florida, to the articles of impeachment, 
        as amended, and also a copy of the order entered on the 12th 
        ultimo prescribing supplemental rules for the said impeachment 
        trial.

        The answer and the supplemental rules to govern the impeachment 
    trial were referred to the House managers and ordered printed.

Appearance and Answer of Respondent

Sec. 11.9 When and if the respondent appears before the Court of 
    Impeachment, the return of the summons by the Sergeant at Arms is 
    presented and the respondent files an entry of appearance.

    On Mar. 12, 1936,(13) the following proceedings took 
place before the Court of Impeachment in the Halsted Ritter case:
---------------------------------------------------------------------------
13. 80 Cong. Rec. 3646, 3647, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

        The Vice President: (14) . . . The Secretary will 
    read the return of the Sergeant at Arms.
---------------------------------------------------------------------------
14. John N. Garner (Tex.).
---------------------------------------------------------------------------

        The Chief Clerk read as follows:

                                  Senate of the United States,
                                                   Office of the
                                                 Sergeant at Arms.

            The foregoing writ of summons addressed to Halsted L. 
        Ritter and the

[[Page 2108]]

        foregoing precept, addressed to me, were duly served upon the 
        said Halsted L. Ritter by me by delivering true and attested 
        copies of the same to the said Halsted L. Ritter at the Carlton 
        Hotel, Washington, D.C., on Thursday, the 12th day of March 
        1936, at 11 o'clock in the forenoon of that day.
                                            Chesley W. Jurney,
                                               Sergeant at Arms,
                                             United States Senate.

        The Vice President: The Secretary of the Senate will administer 
    the oath to the Sergeant at Arms.
        The Secretary of the Senate, Edwin A. Halsey, administered the 
    oath to the Sergeant at Arms, as follows:

            You, Chesley W. Jurney, do solemnly swear that the return 
        made by you upon the process issued on the 10th day of March 
        1936 by the Senate of the United States against Halsted L. 
        Ritter, United States district judge for the southern district 
        of Florida, is truly made, and that you have performed such 
        service as therein described. So help you God.

        The Vice President: The Sergeant at Arms will make 
    proclamation.
        The Sergeant at Arms made proclamation as follows:
        Halsted L. Ritter! Halsted L. Ritter! Halsted L. Ritter! United 
    States district judge for the southern district of Florida, appear 
    and answer to the articles of impeachment exhibited by the House of 
    Representatives against you.
        The respondent, Halsted L. Ritter, and his counsel, Frank P. 
    Walsh, Esq., of New York City, N.Y., and Carl T. Hoffman, Esq., of 
    Miami, Fla., entered the Chamber and were conducted to the seats 
    assigned them in the space in front of the Secretary's desk, on the 
    right of the Chair.
        The Vice President: Counsel for the respondent are advised that 
    the Senate is now sitting for the trial of articles of impeachment 
    exhibited by the House of Representatives against Halsted L. 
    Ritter, United States district judge for the southern district of 
    Florida.
        Mr. Walsh (of counsel): May it please you, Mr. President, and 
    honorable Members of the Senate, I beg to inform you that, in 
    response to your summons, the respondent, Halsted L. Ritter, is now 
    present with his counsel and asks leave to file a forma1 entry of 
    appearance.
        The Vice President: Is there objection? The Chair hears none, 
    and the appearance will be filed with the Secretary, and will be 
    read.
        The Chief Clerk read as follows:

          In the Senate of the United States of America Sitting as a 
                              Court of Impeachment
                                                   March 12, 1936.

               The United States of America v. Halsted L. Ritter

            The respondent, Halsted L. Ritter, having this day been 
        served with a summons requiring him to appear before the Senate 
        of the United States of America in the city of Washington, 
        D.C., on March 12, 1936, at 1 o'clock afternoon to answer 
        certain articles of impeachment presented against him by the 
        House of Representatives of the United States of America, now 
        appears in his proper person and also by his counsel, who are 
        instructed by this respondent to inform the Senate that 
        respondent stands ready to file his pleadings to such articles 
        of impeachment within such reasonable period of time as may be 
        fixed.
            Dated March 12, 1936.


[[Page 2109]]


                    Halsted L. Ritter,
                                                       Respondent.
                    Carl T. Hoffman,
                    Frank P. Walsh,
                                           Counsel for Respondent.

    Parliamentarian's Note: The respondent has not appeared in all 
cases before the Senate. In this century, Judges Ritter, Harold 
Louderback, and Robert Archbald appeared in person, but Judge Charles 
Swayne appeared by attorney. President Andrew Johnson did not appear in 
1868. Pursuant to Rule X of the Rules of Procedure and Practice in the 
Senate when Sitting on Impeachment Trials, the respondent may appear by 
attorney, and if neither the respondent or his counsel appear, the 
trial proceeds as upon a plea of not guilty, under Rule VIII.

Sec. 11.10 The answer of the respondent in an impeachment proceeding is 
    messaged to the House and referred to the managers on the part of 
    the House.

    On Apr. 6, 1936,(15) the answer of Judge Halsted Ritter 
to the articles of impeachment against him was messaged by order from 
the Senate to the House.
---------------------------------------------------------------------------
15. 80 Cong. Rec. 5020, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

    The answer was referred to the managers on the part of the House 
and ordered printed.

Debate on Organizational Questions

Sec. 11.11 Where the Senate is sitting as a Court of Impeachment, 
    organizational questions arising prior to trial are debatable.

    On May 5, 1926, Vice President Charles G. Dawes, of Illinois, held 
that debate was in order on a motion to fix the opening date of an 
impeachment trial (of Judge George English), notwithstanding Rule XXIII 
(now Rule XIV), precluding debate during impeachment trials:

        The Chair will state that in impeachment trials had heretofore 
    such questions have been considered as debatable, and that Rule 
    XXIII, which refers to the decision of questions without debate, 
    has been held to apply after the trial has actually commenced. The 
    Senate has always debated the question of the time at which the 
    trial should start, and the Chair is inclined to hold that debate 
    is in order on a question of this sort.(16)
---------------------------------------------------------------------------
16. 67 Cong. Rec. 8725, 69th Cong. 1st Sess.
---------------------------------------------------------------------------

    Likewise, the rule on debate was held not applicable to an 
organizational question preceding the trial of President Andrew 
Johnson.(17)
---------------------------------------------------------------------------
17. 3 Hinds' Precedents Sec. 2100.
---------------------------------------------------------------------------

    On Mar. 3, 1933, however, following the presentation to the

[[Page 2110]]

Senate of articles of impeachment against Judge Harold Louderback by 
the managers on the part of the House, the Vice President, Charles 
Curtis, of Kansas, held that a motion to defer further consideration of 
the impeachment charges was not debatable.(18)
---------------------------------------------------------------------------
18. 76 Cong. Rec. 5473, 72d Cong. 2d Sess.
---------------------------------------------------------------------------

Appointment of Presiding Officer

Sec. 11.12 The Senate adopted in the Harold Louderback impeachment 
    trial an order authorizing the Vice President or President pro 
    tempore to name a Presiding Officer to perform the duties of the 
    Chair.

    On May 15, 1933, in the Senate sitting as a Court of Impeachment 
for the trial of Judge Louderback, the following order was adopted:

        Ordered, That during the trial of the impeachment of Harold 
    Louderback, United States district judge for the northern district 
    of California, the Vice President, in the absence of the President 
    pro tempore, shall have the right to name in open Senate, sitting 
    for said trial, a Senator to perform the duties of the Chair.
        The President pro tempore shall likewise have the right to name 
    in open Senate, sitting for said trial, or, if absent, in writing, 
    a Senator to perform the duties of the Chair; but such substitution 
    in the case of either the Vice President or the President pro 
    tempore shall not extend beyond an adjournment or recess, except by 
    unanimous consent.(19)
---------------------------------------------------------------------------
19. 77 Cong. Rec. 3394, 73d Cong. 1st Sess.
---------------------------------------------------------------------------

Floor Privileges

Sec. 11.13 The Senate sitting as a Court of Impeachment may allow floor 
    privileges during the trial to assistants and clerks, to the 
    managers, and to the respondent's counsel.

    On Apr. 8, 1936, requests were made in the Senate, sitting as a 
Court of Impeachment in the trial of Judge Halsted Ritter, to allow 
certain assistants and others the privilege of the Senate floor. By 
unanimous consent, the Senate extended floor privileges to the clerk of 
the House Committee on the Judiciary, a special agent of the FBI, and 
an assistant to the respondent's counsel.(20)
---------------------------------------------------------------------------
20. 80 Cong. Rec. 5132, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

    In the Louderback trial, requests were made by the House managers 
that the clerk of the House Committee on the Judiciary and a member of 
the bar be permitted to sit with the managers during the trial. The 
Senate voted to allow the requests, after the Presiding Officer of the 
Senate

[[Page 2111]]

indicated he wished to submit the question to the Senate.(1)
---------------------------------------------------------------------------
 1. 6 Cannon's Precedents Sec. 522.
---------------------------------------------------------------------------

    Parliamentarian's Note: In an impeachment trial, the managers on 
the part of the House and counsel for the respondent have the privilege 
of the Senate floor under the Senate rules for impeachment trials.



 
                               CHAPTER 14
 
                           Impeachment Powers
 
                         C. TRIAL IN THE SENATE
 
Sec. 12. Conduct of Trial

    The conduct of an impeachment trial is governed by the standing 
rules of the Senate on impeachment trials and by any supplemental rules 
or orders adopted by the Senate for a particular trial.(2)
---------------------------------------------------------------------------
 2. For the text of the rules for impeachment trials, see Sec. 11, 
        supra. For supplemental rules adopted by the Senate, see 
        Sec. Sec. 11.7, 11.8, supra. For examples of orders adopted 
        during or for the trial, see Sec. Sec. 11.12, supra 
        (appointment of Presiding Officer), 12.1, infra (opening 
        arguments), 12.9, infra (return of evidence), and 12.12, infra 
        (final arguments).
---------------------------------------------------------------------------

    An impeachment trial is a full adversary proceeding, and counsel 
are admitted to appear, to be heard, to argue on preliminary and 
interlocutory questions, to deliver opening and final arguments, to 
submit motions, and to present evidence and examine and cross-examine 
witnesses.(3)
---------------------------------------------------------------------------
 3. See Rules XV-XXII of the rules for impeachment trials set out in 
        Sec. 11, supra.
---------------------------------------------------------------------------

    The Presiding Officer rules on questions of evidence and on 
incidental questions subject to a demand for a formal vote, or may 
submit questions in the first instance to the Senate under Rule VII of 
the rules for impeachment trials.(4)
---------------------------------------------------------------------------
 4. See Sec. 12.7, infra, for rulings on admissibility of evidence and 
        Sec. Sec. 12.3, 12.4, infra, for rulings on motions to strike 
        articles.
---------------------------------------------------------------------------

    The trial may be temporarily suspended for the transaction of 
legislative business or for the reception of messages.(5)
---------------------------------------------------------------------------
 5. See Sec. Sec. 12.5, 12.6, infra. Rule XIII of the rules for 
        impeachment trials provides that the adjournment of the Senate 
        sitting as a Court of Impeachment shall not operate to adjourn 
        the Senate, but that the Senate may then resume consideration 
        of legislative and executive business.
---------------------------------------------------------------------------

                          Collateral Reference
Riddick, Procedure and Guidelines for Impeachment Trials in the United 
    States Senate, S. Doc. No. 93-102 93d Cong. 2d Sess. 
    (1974).                          -------------------

Opening Arguments

Sec. 12.1 The Senate sitting as a Court of Impeachment customarily 
    adopts an order providing for opening arguments to be made by one 
    person on behalf of the man

[[Page 2112]]

    agers and one person on behalf of the respondent.

    On Apr. 6, 1936, the Senate sitting as a Court of Impeachment for 
the trial of Judge Halsted L. Ritter adopted the following order on 
opening arguments:

        Ordered, That the opening statement on the part of the managers 
    shall be made by one person, to be immediately followed by one 
    person who shall make the opening statement on behalf of the 
    respondent.(6)
---------------------------------------------------------------------------
 6. 80 Cong. Rec. 4971, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

    Identical orders had been adopted in past impeachment 
trials.(7)
---------------------------------------------------------------------------
 7. See, for example, 6 Cannon's Precedents Sec. 524 (Harold 
        Louderback); 6 Cannon's Precedents Sec. 509 (Robert Archbald).
---------------------------------------------------------------------------

Motions to Strike

Sec. 12.2 During an impeachment trial, the managers on the part of the 
    House made and the Senate granted a motion to strike certain 
    specifications from an article of impeachment.

    On Apr. 3, 1936,(8) the following proceedings occurred 
on the floor of the Senate during the impeachment trial of Judge 
Halsted L. Ritter:
---------------------------------------------------------------------------
 8. 80 Cong. Rec. 4899, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. Manager [Hatton W.] Sumners [of Texas] (speaking from the 
    desk in front of the Vice President): Mr. President, the suggestion 
    which the managers desire to make at this time has reference to 
    specifications 1 and 2 of article VII. These two specifications 
    have reference to what I assume counsel for respondent and the 
    managers as well, recognize are rather involved matters, which 
    would possibly require as much time to develop and to argue as 
    would be required on the remainder of the case.
        The managers respectfully move that those two counts be 
    stricken. If that motion shall be sustained, the managers will 
    stand upon the other specifications in article VII to establish 
    article VII. The suggestion on the part of the managers is that 
    those two specifications in article VII be stricken from the 
    article.
        The Presiding Officer: (9) What is the response of 
    counsel for the respondent?
---------------------------------------------------------------------------
 9. Nathan L. Bachman (Tenn.).
---------------------------------------------------------------------------

        Mr. [Charles L.] McNary [of Oregon]: Mr. President, there was 
    so much rumbling and noise in the Chamber that I did not hear the 
    position taken by the managers on the part of the House.
        The Presiding Officer: The managers on the part of the House 
    have suggested that specifications 1 and 2 of article VII be 
    stricken on their motion. . . .
        Mr. Hoffman [of counsel]: Mr. President, the respondent is 
    ready to file his answer to article I, to articles II and III as 
    amended, and to articles IV, V, and VI. In view of the announcement 
    just made asking that specifications 1 and 2 of article VII be 
    stricken, it will be necessary for us to revise our

[[Page 2113]]

    answer to article VII and to eliminate paragraphs 1 and 2 thereof. 
    That can be very speedily done with 15 or 20 minutes if it can be 
    arranged for the Senate to indulge us for that length of time.
        The Presiding Officer: Is there objection to the motion 
    submitted on the part of the managers?
        Mr. Hoffman: We have no objection.
        The Presiding Officer: The motion is made. Is there objection? 
    The Chair hears none, and the motion to strike is granted.

Sec. 12.3 Where the respondent in an impeachment trial moves to strike 
    certain articles or, in the alternative, to require election as to 
    which articles the managers on the part of the House will stand 
    upon, the Presiding Officer may rule on the motion in the first 
    instance subject to the approval of the Senate.

    On Mar. 31, 1936, the respondent in an impeachment trial, Judge 
Halsted Ritter, offered a motion to strike certain articles, his 
purpose being to compel the House to proceed on the basis of Article I 
or Article II, but not both. On Apr. 3, the Chair (Presiding Officer 
Nathan L. Bachman, of Tennessee) ruled that the motion was not well 
taken and overruled it. The proceedings were as follows: 
(10)
---------------------------------------------------------------------------
10. 80 Cong. Rec. 4656, 4657, 74th Cong. 2d Sess., Mar. 31, 1936, and 
        80 Cong. Rec. 4898, 74th Cong. 2d Sess., Apr. 3, 1936.
---------------------------------------------------------------------------

        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 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

[[Page 2114]]

        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.

              Ruling on the Motion of Respondent to Strike Out

        The Presiding Officer: On the motion of the honorable counsel 
    for the respondent to strike article I of the articles of 
    impeachment or, in the alternative, to require the honorable 
    managers on the part of the House to make an election as to whether 
    they will stand upon article I or upon article II, the Chair is 
    ready to rule.
        The Chair is clearly of the opinion that the motion to strike 
    article I or to require an election is not well taken and should be 
    overruled.
        His reason for such opinion is that articles I and II present 
    entirely different bases for impeachment.
        Article I alleges the illegal and corrupt receipt by the 
    respondent of $4,500 from his former law partner, Mr. Rankin.
        Article II sets out as a basis for impeachment an alleged 
    conspiracy between Judge Ritter; his former partner, Mr. Rankin; 
    one Richardson, Metcalf & Sweeney; and goes into detail as to the 
    means and manner employed whereby the respondent is alleged to have 
    corruptly received the $4,500 above mentioned.
        The two allegations, one of corrupt and illegal receipt and the 
    other of conspiracy to effectuate the purpose, are, in the judgment 
    of the Chair, wholly distinct, and the respondent should be called 
    to answer each of the articles.
        What is the judgment of the Court with reference to that 
    particular phase of the motion to strike?
        Mr. [William H.] King [of Utah]: Mr. President, if it be 
    necessary, I move that the ruling of the honorable Presiding 
    Officer be considered as and stand for the judgment of the Senate 
    sitting as a Court of Impeachment.
        The Presiding Officer: Is there objection? The Chair hears 
    none, and the ruling of the Chair is sustained by the Senate.

[[Page 2115]]

Sec. 12.4 Where the respondent in an impeachment trial moves to strike 
    an article on grounds that have not been previously presented in 
    impeachment proceedings in the Senate, the Presiding Officer may 
    submit the motion to the Senate sitting as a Court of Impeachment 
    for decision.

    On Mar. 31, 1936,(11) Judge Halsted Ritter, the 
respondent in an impeachment trial, moved to strike Article VII of the 
articles presented against him, on the following grounds:
---------------------------------------------------------------------------
11. 80 Cong. Rec. 4656, 4657, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

        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.

    On Apr. 3, 1936, Presiding Officer Nathan L. Bachman, of Tennessee, 
submitted the motion to the Court of Impeachment for decision: 
(12)
---------------------------------------------------------------------------
12. Id. at p. 4898.
---------------------------------------------------------------------------

        The Presiding Officer: . . . With reference to article VII of 
    the articles of impeachment, formerly article IV, the Chair desires 
    to exercise his prerogative of calling on the Court for a 
    determination of this question.
        His reason for so doing is that an impeachment proceeding 
    before the Senate sitting as a Court is sui generis, partaking 
    neither of the harshness and rigidity of the criminal law nor of 
    the civil proceedings requiring less particularity.
        The question of duplicity in impeachment proceedings presented 
    by the honorable counsel for the respondent is a controversial one, 
    and the Chair feels that it is the right and duty of each Member of 
    the Senate, sitting as a Court, to express his views thereon.
        Precedents in proceedings of this character are rare and not 
    binding upon this Court in any course that it might desire to 
    pursue.
        The question presented in the motion to strike article VII on 
    account of duplicity has not, so far as the Chair is advised, been 
    presented in any impeachment proceeding heretofore had before this 
    body.

        The Chair therefore submits the question to the Court.

[[Page 2116]]

        Mr. [Henry F.] Ashurst [of Arizona]: Mr. President, under the 
    rules of the Senate, sitting as a Court of Impeachment, all such 
    questions, when submitted by the Presiding Officer, shall be 
    decided without debate and without division, unless the yeas and 
    nays are demanded by one-fifth of the Members present, when the 
    yeas and nays shall be taken.
        The Presiding Officer: The Chair, therefore, will put the 
    motion. All those in favor of the motion of counsel for the 
    respondent to strike article VII will say ``aye.'' Those opposed 
    will say ``no.''
        The noes have it, and the motion in its entirety is overruled.

Suspension of Trial for Messages and Legislative Business

Sec. 12.5 While the Senate is sitting as a Court of Impeachment, the 
    impeachment proceedings may be suspended by motion in order that 
    legislative business be considered.

    On Apr. 6, 1936, the Senate was sitting as a Court of Impeachment 
in the trial of Judge Halsted Ritter. A motion was made and adopted to 
proceed to the consideration of legislative business, the regular order 
for the termination of the session (5 :30 p.m.) not having arrived:

        Mr. [Joseph T.] Robinson [of Arkansas]: Mr. President, I move 
    that the Court suspend its proceedings and that the Senate proceed 
    to the consideration of legislative business; and I should like to 
    make a brief statement as to the reasons for the motion. Some 
    Senators have said that they desire an opportunity to present 
    amendments to general appropriation bills which are pending, and 
    that it will be necessary that the amendments be presented today in 
    order that they may be considered by the committee having 
    jurisdiction of the subject matter. I make the motion.
        The motion was agreed to; and the Senate proceeded to the 
    consideration of legislative business.(13)
---------------------------------------------------------------------------
13. 80 Cong. Rec. 4994, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

Sec. 12.6 Impeachment proceedings in the Senate, sitting as a Court of 
    Impeachment, may be suspended for the reception of a message from 
    the House.

    On Apr. 8, 1936, the Senate was sitting as a Court of Impeachment 
in the trial of Judge Halsted Ritter and examination of witnesses was 
in progress. A message was then received:

        Mr. [Joseph T.] Robinson [of Arkansas]: Mr. President, may I 
    interrupt the proceedings for a moment? In order that a message may 
    be received from the House of Representatives, I ask that the 
    proceedings of the Senate sitting as a Court of Impeachment be 
    suspended temporarily, and that the Senate proceed with the 
    consideration of legislative business.

[[Page 2117]]

        The President Pro Tempore: (14) Is there objection?
---------------------------------------------------------------------------
14. Key Pittman (Nev.).
---------------------------------------------------------------------------

        There being no objection, the Senate resumed the consideration 
    of legislative business.
        (The message from the House of Representatives appears 
    elsewhere in the legislative proceedings of today's Record.)

                      Impeachment of Halsted L. Ritter

        Mr. Robinson: I move that the Senate, in legislative session, 
    take a recess in order that the Court may resume its business.
        The motion was agreed to; and the Senate, sitting as a Court of 
    Impeachment, resumed the trial of the articles of impeachment 
    against Halsted L. Ritter, United States district judge for the 
    southern district of Florida.(15)
---------------------------------------------------------------------------
15. 80 Cong. Rec. 5129, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

Evidence

Sec. 12.7 The Presiding Officer at an impeachment trial rules on the 
    admissibility of documentary evidence when a document is offered 
    and specific objection is made thereto.

    During the impeachment trial of Judge Halsted Ritter in the 74th 
Congress, the Presiding Officer set out guidelines under which rulings 
on the admissibility of evidence would be made. At issue was a large 
number of letters, to which a general objection was raised: 
(16)
---------------------------------------------------------------------------
16. 80 Cong. Rec. 5245-53, 74th Cong. 2d Sess., Apr. 9, 1936.
---------------------------------------------------------------------------

        Mr. Walsh (of counsel): For the sake of saving time, we have 
    these letters which have gotten into our possession, which have 
    been given to us, and I suggest to the House managers that we have 
    copies of this entire correspondence, a continuous list of them 
    chronologically copied. We are going to ask you, if you will agree, 
    that instead of reading these letters to Mr. Sweeny we be permitted 
    to offer them all in evidence and give you copies of them.
        Mr. Manager [Randobph] Perkins [of New Jersey]: Mr. President, 
    the managers on the part of the House object to that procedure. 
    These letters are incompetent, immaterial, and irrelevant, and will 
    only encumber the record.
        Mr. Walsh (of counsel): I desire to say that these letters 
    predate and antedate this transaction. They show the effort that 
    was being made, and they throw a strong light upon the proposition 
    that this was not a champertous proceeding, but that it was a 
    proceeding started by these men who had invested their money, and 
    upon whose names and credit these bonds were sold. It is in answer 
    to that.
        The Presiding Officer: (17) It is the ruling of the 
    Chair that the letters shall be exhibited to the managers on the 
    part of the House, and that the managers on the part of the House 
    may make specific objections to each document to which they wish to 
    lodge

[[Page 2118]]

    objection. There can be no ruling with respect to a large number of 
    documents without specific objection.
---------------------------------------------------------------------------
17. Walter F. George (Ga.).
---------------------------------------------------------------------------

        Mr. Walsh (of counsel): Will you take that suggestion of the 
    Presiding Officer and go through these documents?
        Mr. Manager Perkins: Mr. President, we understand that these 
    letters are to be offered, and objection made as they are offered; 
    or are we to examine the file and find out what documents we object 
    to?
        The Presiding Officer: The ruling of the Chair was that the 
    letters shall be exhibited to the managers on the part of the 
    House, and that specific objection shall be lodged to documents to 
    which the managers wish to lodge objections.
        Mr. Manager Perkins: Mr. President, we will examine them during 
    the recess and be prepared to follow that procedure. . . .
        Mr. Manager [Sam] Hobbs [of Alabama]: . . .
        Q. Judge, I will ask you if the matter of the requirement of a 
    supersedeas bond, and fixing the amount thereof, was one of the 
    questions which would probably come up immediately after the final 
    decree was rendered.
        Mr. Walsh (of counsel): I wish to object to that question for 
    the reason that the record in the case and the papers in the case 
    are the best evidence. I should like to have them here. I should 
    like to have them identified, so that, if we thought it necessary, 
    we could interrogate the witness on cross-examination.

        The President Pro Tempore: (18) The Presiding 
    Officer thinks, if the witness knows matters that he himself 
    attended to, the original documents not being in question, he has a 
    right to answer the question.
---------------------------------------------------------------------------
18. Key Pittman (Nev.).
---------------------------------------------------------------------------

        [Judge Ritter]: A. I have no independent recollection of the 
    matter at all. The official court records or this memorandum would 
    have to control.

Sec. 12.8 Exhibits in evidence in an impeachment trial should be 
    identified and printed in the Record if necessary.

    On Apr. 8, 1936, a proposal was made in the Senate, sitting as a 
Court of Impeachment in the Halsted Ritter trial, as to the 
identification of certain exhibits: (19)
---------------------------------------------------------------------------
19. 80 Cong. Rec. 5137, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. Walsh (of counsel): Have you the letter that is referred to 
    in that letter?
        Mr. Manager [Randolph] Perkins [of New Jersey]: I have not it 
    at hand at this moment, but I have it here somewhere.
        Mr. Walsh (of counsel): I should like to see the letter if it 
    is here.
        Mr. Manager Perkins: I understood that Mr. Rankin would resume 
    the stand at this time.
        Mr. [Sherman] Minton [of Indiana]: Mr. President, far be it 
    from me to suggest to eminent counsel engaged in this case how they 
    should conduct a lawsuit, but I respectfully suggest that they 
    identify their exhibits in some way, and also the papers that are 
    introduced in the record, so that we may keep track of them.

[[Page 2119]]

        The Presiding Officer: (20) The Chair takes the 
    liberty of suggesting that the statement made by the Senator from 
    Indiana is a wise one, and is followed in court. The Chair sees no 
    reason why identification should not be made of the exhibits which 
    are received in evidence. Counsel will proceed.
---------------------------------------------------------------------------
20. William H. King (Utah).
---------------------------------------------------------------------------

    Certain exhibits were ordered printed, while others were merely 
introduced in evidence. One exhibit was printed in the Record by 
unanimous consent.(21)
---------------------------------------------------------------------------
21. 80 Cong. Rec. 5341, 74th Cong. 2d Sess., Apr. 10, 1936.
---------------------------------------------------------------------------

        Mr. [Homer T.] Bone [of Washington]: Mr. President, may I 
    inquire of the Chair if all the exhibits counsel are introducing 
    are to be printed in the daily Record?
        The Presiding Officer: (1) The Chair thinks not.
---------------------------------------------------------------------------
 1. Matthew M. Neely (W. Va.).
---------------------------------------------------------------------------

        Mr. Bone: I am wondering how we may later scrutinize them if 
    counsel are going to rely on them.
        The Presiding Officer: Some of the exhibits are being ordered 
    printed and others are merely introduced in evidence for the use of 
    counsel upon argument and consideration of the court.
        Mr. Walsh (of counsel): I had supposed that all correspondence 
    would be printed in full in the Record.
        The Presiding Officer: The Chair assumes that all documents and 
    correspondence which have been read or which have been ordered 
    printed have been or will be printed in the Record.
        Mr. Walsh (of counsel): I think perhaps a mere reference to 
    this order would be sufficient to advise those of the Senators who 
    have not heard it. However, as to this particular order, I will ask 
    that it be printed in the Record.
        The Presiding Officer: Is there objection?

    Federal income-tax returns of the respondent, offered in evidence 
by the managers, were printed in full in the, Record.(2)
---------------------------------------------------------------------------
 2. 80 Cong. Rec. 5256-61, 74th Cong. 2d Sess., Apr. 9, 1936.
---------------------------------------------------------------------------

Sec. 12.9 The Senate sitting as a Court of Impeachment may at the 
    conclusion of the trial provide by order for the return of evidence 
    to proper owners or officials.

    On Apr. 16, 1936, the Senate sitting as a Court of Impeachment in 
the trial of Judge Halsted Ritter adopted, at the conclusion of trial, 
orders for the return of evidence: (3)
---------------------------------------------------------------------------
 3. 80 Cong. Rec. 5558, 5559, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

        Ordered, That the Secretary be, and he is hereby, directed to 
    return to A. L. Rankin, a witness on the part of the United States, 
    the two documents showing the lists of cases, pending and closed, 
    in the law office of said A. L. Rankin, introduced in evidence 
    during the trial of the impeachment of Halsted L. Ritter, United 
    States district judge for the southern district of Florida. . . .
        Ordered, That the Secretary of the Senate be, and he is hereby, 
    directed

[[Page 2120]]

    to return to the clerk of the United States District Court for the 
    Southern District of Florida and the clerk of the circuit court, 
    Palm Beach County, Fla., sitting in chancery, the original papers 
    filed in said courts which were offered in evidence during the 
    proceedings of the Senate sitting for the trial of the impeachment 
    of Halsted L. Ritter, United States district judge for the southern 
    district of Florida.

    In the Harold Louderback trial, the Senate returned papers by order 
to a U.S. District Court.(4)
---------------------------------------------------------------------------
 4. 77 Cong. Rec. 4142, 73d Cong. 1st Sess., May 25, 1933.
---------------------------------------------------------------------------

Witnesses

Sec. 12.10 The Senate sitting as a Court of Impeachment has adopted 
    orders requiring witnesses to stand while giving testimony during 
    impeachment trials.

    On Apr. 6, 1936, during the trial of Judge Halsted Ritter before 
the Senate sitting as a Court of Impeachment, an order was adopted as 
to the position of witnesses while testifying: (5)
---------------------------------------------------------------------------
 5. 80 Cong. Rec. 4971, 74th Cong. 2d Sess. See also 6 Cannon's 
        Precedents Sec. 488.
---------------------------------------------------------------------------

        Mr. [William H.] King [of Utah]: Pursuant to the practice 
    heretofore observed in impeachment cases, I send to the desk an 
    order, and ask for its adoption.
        The Vice President: (6) The order will be stated.
---------------------------------------------------------------------------
 6. John N. Garner (Tex.).
---------------------------------------------------------------------------

        The legislative clerk read as follows:

            Ordered, That the witnesses shall stand while giving their 
        testimony.

        The Vice President: Is there objection to the adoption of the 
    order? The Chair hears none, and the order is entered.

Sec. 12.11 The respondent may take the stand and be examined and cross-
    examined at his impeachment trial.

    On Apr. 11, 1936, Judge Halsted Ritter, the respondent in a trial 
of impeachment, was called as a witness by his counsel. He was cross 
examined by the managers on the part of the House and by Senators 
sitting on the Court of Impeachment, who submitted their questions in 
writing.(7)
---------------------------------------------------------------------------
 7. 80 Cong. Rec. 5370-86, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

    Parliamentarian's Note: The respondent in an impeachment trial is 
not required to appear, and the trial may proceed in his absence. 
Impeachment rules VIII and IX provide for appearance and answer by 
attorney and provide for continuance of trial in the absence of any 
appearance. The respondent first testified in his own behalf in the 
Robert Archbald impeachment trial in 1913, and Judge Harold Louderback 
testified at his trial in 1933.(8)
---------------------------------------------------------------------------
 8. See 6 Cannon's Precedents Sec. Sec. 511 (Archbald), 524 
        (Louderback).

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

[[Page 2121]]

Final Arguments

Sec. 12.12 Following the presentation of evidence in an impeachment 
    trial, the Court of Impeachment adopts an order setting the time to 
    be allocated for final arguments.

    On Apr. 13, 1936, the Senate sitting as a Court of Impeachment in 
the trial of Judge Halsted Ritter adopted, at the close of the 
presentation of evidence, an order limiting final arguments:

        Ordered, That the time for final argument of the case of 
    Halsted L. Ritter shall be limited to 4 hours, which said time 
    shall be divided equally between the managers on the part of the 
    House of Representatives and the counsel for the respondent, and 
    the time thus assigned to each side shall be divided as each side 
    for itself may determine.(9)
---------------------------------------------------------------------------
 9. 80 Cong. Rec. 5401, 74th Cong. 2d Sess. An identical order was 
        adopted in the Harold Louderback impeachment trial (see 6 
        Cannon's Precedents Sec. 524).
            Orders for final arguments have varied as to the time and 
        number of arguments permitted, although in one instance--the 
        trial of President Andrew Johnson--no limitations were imposed 
        as to the time for and number of final arguments. See 3 Hinds' 
        Precedents Sec. 2434.
---------------------------------------------------------------------------


 
                               CHAPTER 14
 
                           Impeachment Powers
 
                         C. TRIAL IN THE SENATE
 
Sec. 13. Voting; Deliberation and Judgment

    The applicable rules on impeachment trials provide for deliberation 
behind closed doors, for a vote on the articles of impeachment, and for 
pronouncement of judgment. (See Rules XXIII and XXIV.) (10) 
Except for organizational questions, debate is in order during an 
impeachment trial only while the Senate is deliberating behind closed 
doors, at which time the respondent, his counsel, and the managers are 
not present. Rule XXIV, of the rules for impeachment trials, provides 
that orders and decisions shall be determined by the yeas and nays 
without debate.(11)
---------------------------------------------------------------------------
10. The Senate rules on impeachment are set out in Sec. 11, supra.
11. For debate on organizational questions before trial commences, see 
        Sec. 11.11, supra.
---------------------------------------------------------------------------

    Under article I, section 3, clause 6 of the U.S. Constitution, a 
two-thirds vote is required to convict the respondent on an article of 
impeachment, the articles being voted on separately under Rule XXIII of 
the rules for impeachment trials.(12)
---------------------------------------------------------------------------
12. Overruled in the Ritter impeachment trial was a point of order that 
        the respondent was not properly convicted, a two-thirds vote 
        having been obtained on an article which cumulated offenses 
        (see Sec. Sec. 13.5, 13.6, infra).

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

[[Page 2122]]

    Article I, section 3, clause 7 provides for removal from office 
upon conviction and also allows the further judgment of 
disqualification from holding and enjoying ``any office of honor, trust 
or profit under the United States.'' In the most recent conviction by 
the Senate, of Judge Ritter in 1936, it was held for the first time 
that no vote was required on removal following conviction, inasmuch as 
removal follows automatically from conviction under article II, section 
4.(13) But the further judgment of disqualification requires 
a majority vote.(14)
---------------------------------------------------------------------------
13. See Sec. 13.9, infra.
14. See Sec. 13.10, infra.
---------------------------------------------------------------------------

                            Cross References
Constitutional provisions governing judgment in impeachment trials, see 
    Sec. 1, supra.
Deliberation, vote and judgment in the Ritter impeachment trial, see 
    Sec. 18, infra.
Grounds for impeachment and conviction generally, see Sec. 3, supra.
Judicial review of impeachment convictions, see Sec. 1, supra.
Trial and judgment where person impeached has resigned, see Sec. 2, 
    supra.

                          Collateral Reference
Riddick, Procedure and Guidelines for Impeachment Trials in the United 
    States Senate, S. Doc. No. 93-102, 93d Cong. 2d Sess. 
    (1974).                          -------------------

Deliberation Behind Closed Doors

Sec. 13.1 Final arguments having been presented to a Court of 
    Impeachment, the Senate closes the doors in order to deliberate in 
    closed session, and the respondent, his counsel, and the managers 
    withdraw.

    On Apr. 15, 1936, the Senate convened sitting as a Court of 
Impeachment in the trial of Judge Halsted Ritter. Final arguments had 
been completed on the preceding day. The following proceedings took 
place:

                      Impeachment of Halsted L. Ritter

        The Senate, sitting for the trial of the articles of 
    impeachment against Halsted L. Ritter, judge of the United States 
    District Court for the Southern District of Florida, met at 12 
    o'clock meridian.
        The respondent, Halsted L. Ritter, with his counsel, Frank P. 
    Walsh, Esq., and Carl T. Hoffman, Esq., appeared in the seats 
    assigned them.
        The Vice President: (15) The Sergeant at Arms by 
    proclamation will open the proceedings of the Senate sitting for 
    the trial of the articles of impeachment.
---------------------------------------------------------------------------
15. John N. Garner (Tex.).
---------------------------------------------------------------------------

        The Sergeant at Arms made the usual proclamation.
        On request of Mr. Ashurst, and by unanimous consent, the 
    reading of the

[[Page 2123]]

    Journal of the proceedings of the Senate, sitting for the trial of 
    the articles of impeachment, for Tuesday, April 14, 1936, was 
    dispensed with, and the Journal was approved. . . .
        The Vice President: Eighty-six Senators have answered to their 
    names. A quorum is present.

                       Deliberation With Closed Doors

        Mr. [Henry F.] Ashurst [of Arizona]: I move that the doors of 
    the Senate be closed for deliberation.
        The Vice President: The question is on the motion of the 
    Senator from Arizona.
        The motion was agreed to.
        The respondent and his counsel withdrew from the Chamber.

        The galleries having been previously cleared, the Senate (at 12 
    o'clock and 8 minutes p.m.) proceeded to deliberate with closed 
    doors.
        At 4 o'clock and 45 minutes p.m. the doors were 
    opened.(16)
---------------------------------------------------------------------------
16. 80 Cong. Rec. 5505, 74th Cong. 2d Sess. In the Ritter case, the 
        managers on the part of the House were not present when the 
        Senate closed its doors. Where they are present, they withdraw. 
        See, for example, 6 Cannon's Precedents Sec. 524 (Harold 
        Louderback).
---------------------------------------------------------------------------

    Rule XX of the rules of the Senate on impeachment trials provides: 
``At all times while the Senate is sitting upon the trial of an 
impeachment the doors of the Senate shall be kept open, unless the 
Senate shall direct the doors to be closed while deliberating upon its 
decisions.''
    Rule XXIV provides for debate, during impeachment trials, only when 
the Senate is deliberating in closed session, wherein ``no member shall 
speak more than once on one question, and for not more than ten minutes 
on an interlocutory question, and for not more than fifteen minutes on 
the final question, unless by consent of the Senate, to be had without 
debate. . . . The fifteen minutes herein allowed shall be for the whole 
deliberation on the final question, and not on the final question on 
each article of impeachment.''

Orders for Time and Method of Voting

Sec. 13.2 Following or during deliberation behind closed doors, the 
    Senate sitting as a Court of Impeachment adopts orders to provide 
    the time and method of voting.

    On Apr. 15, 1936, the Senate, sitting as a Court of Impeachment in 
the trial of Judge Halsted Ritter, opened its doors after having 
deliberated in closed session. By unanimous consent, the order setting 
a date for the taking of a vote was published in the Record:

        Ordered, by unanimous consent, That when the Senate, sitting as 
    a Court, concludes its session on today it take a recess until 12 
    o'clock tomorrow, and that upon the convening of the

[[Page 2124]]

    Court on Friday it proceed to vote upon the various articles of 
    impeachment.

    Senate Majority Leader Joseph T. Robinson, of Arkansas, explained 
the purpose of the agreement, which was to postpone the vote until 
Friday so that a number of Senators who wished to vote could be present 
for that purpose.(17)
---------------------------------------------------------------------------
17. 80 Cong. Rec. 5505, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

    On Apr. 16, 1936, the Senate, after deliberating behind closed 
doors, agreed to an order providing a method of voting:

        Ordered, That upon the final vote in the pending impeachment of 
    Halsted L. Ritter, the Secretary shall read the articles of 
    impeachment separately and successively, and when the reading of 
    each article shall have been concluded the Presiding Officer shall 
    state the question thereon as follows:
        ``Senators, how say you? Is the respondent, Halsted L. Ritter, 
    guilty or not guilty?''
        Thereupon the roll of the Senate shall be called, and each 
    Senator as his name is called, unless excused, shall arise in his 
    place and answer ``guilty'' or ``not guilty.'' (18)
---------------------------------------------------------------------------
18. Id. at p. 5558.
---------------------------------------------------------------------------

    This method of consideration--that of reading and voting on the 
articles separately and in sequence--has been used consistently in 
impeachment proceedings, though in the Andrew Johnson trial Article XI 
was first voted on.(19)
---------------------------------------------------------------------------
19. See 3 Hinds' Precedents Sec. Sec. 2439-2443. 6 Cannon's Precedents 
        Sec. 524.
---------------------------------------------------------------------------

    The form of putting the question and calling the roll in the 
Johnson trial also differed from current practice, the Chief Justice in 
that case putting the question ``Mr. Senator ------, how say you? Is 
the respondent, Andrew Johnson, President of the United States, guilty 
or not guilty of a high misdemeanor, as charged in this article?'' 
(20)
---------------------------------------------------------------------------
20. 3 Hinds' Precedents Sec. 2440.
---------------------------------------------------------------------------

Recognition of Pairs

Sec. 13.3 Pairs are not recognized during the vote by a Court of 
    Impeachment on articles of impeachment.

    On Apr. 17, 1936, the Senate sitting as a Court of Impeachment in 
the trial of Judge Halsted Ritter convened to vote on the articles of 
impeachment. Preceding the vote, Senator Joseph T. Robinson, of 
Arkansas, the Majority Leader, announced as follows:

        I have been asked to announce also that pairs are not 
    recognized in this proceeding. (1)
---------------------------------------------------------------------------
 1. 80 Cong. Rec. 5602, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

    Likewise, it was announced on May 23, 1933, preceding the vote

[[Page 2125]]

on the articles impeaching Judge Harold Louderback, that pairs would 
not be recognized.(2)
---------------------------------------------------------------------------
 2. 77 Cong. Rec. 4083, 73d Cong. 1st Sess.
---------------------------------------------------------------------------

Excuse or Disqualification From Voting

Sec. 13.4 Members of the House and Senate have been excused but not 
    disqualified from voting on articles of impeachment.

    On Mar. 12, 1936, preceding the appearance of respondent Judge 
Halsted Ritter before the Senate sitting as a Court of Impeachment, 
Senator Edward P. Costigan, of Colorado, asked to be excused from 
participation in the impeachment proceedings. He inserted in the Record 
a statement assigning the reasons for his request, based on personal 
acquaintance with the respondent.(3) Similarly, on Mar. 31, 
Senator Millard E. Tydings, of Maryland, asked to be excused from 
participating in the proceedings and from voting on the ground of 
family illness.(4)
---------------------------------------------------------------------------
 3. 80 Cong. Rec. 3646, 74th Cong. 2d Sess.
 4. Id. at p. 4654.
---------------------------------------------------------------------------

    During the consideration in the House of the resolution impeaching 
Senator William Blount, of Tennessee, his brother, Mr. Thomas Blount, 
of North Carolina, a Member of the House, asked to be excused from 
voting on any matter affecting his brother.(5)
---------------------------------------------------------------------------
 5. 3 Hinds' Precedents Sec. 2295.
---------------------------------------------------------------------------

    In the impeachment of Judge Harold Louderback, two Members of the 
Senate were excused from voting thereon since they had been Members of 
the House when Judge Louderback was impeached.(6)
---------------------------------------------------------------------------
 6. 6 Cannon's Precedents Sec. 516.
---------------------------------------------------------------------------

    The issue of disqualification from voting either in the House on 
impeachment or in the Senate on conviction has not been directly 
presented. During the trial of President Andrew Johnson, a Senator 
offered and then withdrew a challenge to the competency of the 
President pro tempore of the Senate, Benjamin F. Wade, of Ohio, to 
preside over or vote in the trial of the President. Before withdrawing 
his objection, Senator Thomas A. Hendricks, of Indiana, argued that the 
President pro tempore was an interested party because of his possible 
succession to the Presidency. The President pro tempore voted on that 
occasion.(7)
---------------------------------------------------------------------------
 7. 3 Hinds' Precedents Sec. 2061.
            During the Johnson impeachment, succession to the 
        Presidency was governed by an Act of 1792 providing that the 
        President pro tempore and then the Speaker of the House should 
        succeed to the Presidency, after the Vice President. 1 Stat. 
        239. Presently, 3 USC Sec. 19 provides for the Speaker and then 
        the President pro tempore to succeed to the Presidency after 
        the Vice President, but the 25th amendment to the U.S. 
        Constitution provides a mechanism for selection of a Vice 
        President upon vacancy in that office, by succession to the 
        Presidency or otherwise.

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

[[Page 2126]]

    Speaker Schuyler Colfax, of Indiana, chose to vote on the 
resolution impeaching President Johnson in 1868, and delivered the 
following explanatory statement:

        The Speaker said: The occupant of the Chair cannot consent that 
    his constituents should be silent on so grave a question, and 
    therefore, as a member of this House, he votes ``ay.'' On agreeing 
    to the resolution, there are--yeas 126, nays 47. So the resolution 
    is adopted.(8)
---------------------------------------------------------------------------
 8. 66 Cong. Globe 1400, 40th Cong. 2d Sess., Feb. 24, 1868.
            In the Johnson impeachment, the minority party members 
        generally refrained from voting on the ballot for the choice of 
        managers following the adoption of articles, where a request to 
        excuse all who sought to be excused had been objected to. 3 
        Hinds' Precedents Sec. 2417.
---------------------------------------------------------------------------

    It has been generally determined in the House that the individual 
Member should decide the question whether he is disqualified from 
voting because of a personal interest in the vote.(9)
---------------------------------------------------------------------------
 9. See Rule VIII clause 1 and comments thereto, House Rules and Manual 
        Sec. Sec. 656-659 (1973).
            In Senate practice, no rule requires a Member of the Senate 
        to withdraw from voting because of personal interest, but a 
        Member may be excused from voting under Rule XII clause 2, 
        Senate Manual Sec. 12.2 (1973).
---------------------------------------------------------------------------

Points of Order Against Vote

Sec. 13.5 In making a point of order against the result of a vote on an 
    article of impeachment, a Senator may state the grounds for his 
    point of order but debate or argument thereon is not in order.

    On Apr. 17, 1936, following a two-thirds vote for conviction by the 
Senate, sitting as a Court of Impeachment in the trial of Judge Halsted 
Ritter, Senator Warren R. Austin, of Vermont, made a point of order 
against the vote. The President pro tempore, Key Pittman, of Nevada, 
subsequently ruled against allowing debate or argument on that point of 
order: (10)
---------------------------------------------------------------------------
10. 80 Cong. Rec. 5606, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. Austin: Mr. President, a point of order.
        The President Pro Tempore: The Senator will state the point of 
    order.
        Mr. Austin: I make the point of order that the respondent is 
    not guilty, not having been found guilty by a vote of two-thirds of 
    the Senators present.
        Article VII is an omnibus article, the ingredients of which, as 
    stated on page 36, paragraph 4, are----

[[Page 2127]]

        Mr. [Robert M.] La Follette [Jr., of Wisconsin]: Mr. President, 
    I rise to a parliamentary inquiry.
        The President Pro Tempore: The Senator will state it.
        Mr. La Follette: Is debate upon the point of order in order?
        The President Pro Tempore: It is not in order.

        Mr. La Follette: I ask for the regular order.
        Mr. Austin: Mr. President, a parliamentary inquiry.
        The President Pro Tempore: The Senator will state it.
        Mr. Austin: In stating a point of order, is it not appropriate 
    to state the grounds of the point of order?
        The President Pro Tempore: Providing the statement is not 
    argument.
        Mr. Austin: That is what the Senator from Vermont is 
    undertaking to do, and no more.
        The President Pro Tempore: If the statement is argument, the 
    point of order may be made against the argument.
        Mr. Austin: 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).
        Mr. [Joseph T.] Robinson [of Arkansas]: Mr. President, I rise 
    to a point of order.
        The President Pro Tempore: The Senator from Arkansas will state 
    the point of order.
        Mr. Robinson: The Senator from Vermont is not in order.
        The President Pro Tempore: The point of order is sustained. The 
    Senator from Vermont is making an argument on the point of order he 
    has made.

Sec. 13.6 During the Halsted Ritter impeachment trial, the President 
    pro tempore overruled a point of order against a vote of conviction 
    on the seventh article (charging general misbehavior), where the 
    point of order was based on the contention that the article 
    repeated and combined facts, circumstances, and charges contained 
    in the preceding articles.

    On Apr. 17, 1936,(11) the President pro tempore, Key 
Pittman, of Nevada, stated that the Senate had by a two-thirds vote 
adjudged the respondent Judge Ritter guilty as charged in Article VII 
of the articles of impeachment. He over

[[Page 2128]]

ruled a point of order that had been raised against the vote, as 
follows:
---------------------------------------------------------------------------
11. 80 Cong. Rec. 5606, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. [Warren R.] Austin [of Vermont]: Mr. President, a point of 
    order.
        The President Pro Tempore: The Senator will state the point of 
    order.
        Mr. Austin: I make the point of order that the respondent is 
    not guilty, not having been found guilty by a vote of two-thirds of 
    the Senators present.
        Article VII is an omnibus article, the ingredients of which, as 
    stated on page 36, paragraph 4, are----

    A point of order was made against debate or argument on the point 
of order.(12)
---------------------------------------------------------------------------
12. See Sec. 13.5 supra.
---------------------------------------------------------------------------

        Mr. Austin: 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).
        Mr. [Joseph T.] Robinson [of Arkansas]: Mr. President, I rise 
    to a point of order.
        The President Pro Tempore: The Senator from Arkansas will state 
    the point of order.
        Mr. Robinson: The Senator from Vermont is not in order.
        The President Pro Tempore: The point of order is sustained. The 
    Senator from Vermont is making an argument on the point of order he 
    has made.
        Mr. Austin: Mr. President, I have concluded my motion.
        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.

Judgment as Debatable

Sec. 13.7 An order of judgment in an impeachment trial is not 
    debatable.

    On Apr. 17, 1936, the President pro tempore, Key Pittman, of 
Nevada, answered a parliamentary inquiry relating to debate on an order 
of judgment in the impeachment trial of Halsted Ritter:

        The President Pro Tempore: The Senator from Arizona submits an 
    order, which will be read.
        The legislative clerk read as follows:

            Ordered further, That the respondent, Halsted L. Ritter, 
        United States district judge for the southern district of 
        Florida, be forever disqualified from holding and enjoying any

[[Page 2129]]

        office of honor, trust, or profit under the United States.

        Mr. [Daniel O.] Hastings [of Delaware]: Mr. President, I 
    understand that matter is subject to debate.
        Mr. [Henry F.] Ashurst [of Arizona]: No, Mr. President. The 
    yeas and nays are in order, if Senators wish, but it is not subject 
    to debate.
        Mr. Hastings: Will the Chair state just why it is not subject 
    to debate?

        The President Pro Tempore: The Chair is of opinion that the 
    rules governing impeachment proceedings require that all orders or 
    decisions be determined without debate, but the yeas and nays may 
    be ordered.(13)
---------------------------------------------------------------------------
13. 80 Cong. Rec. 5607, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

Divisibility of Order of Judgment

Sec. 13.8 An order of judgment on conviction in an impeachment trial is 
    divisible where it contains provisions for removal from office and 
    for disqualification of the respondent.

    On Apr. 17, 1936, Senator Henry F. Ashurst, of Arizona, offered an 
order of judgment following the conviction of Halsted Ritter on an 
article of impeachment. It was agreed, before the order was withdrawn, 
that it was divisible: (14~)
---------------------------------------------------------------------------
14. 80 Cong. Rec. 5606, 5607, 74th Cong. 2d Sess.
            In the trial of Judge Robert Archbald, a division was 
        demanded on the order of judgment, which both removed and 
        disqualified the respondent. 6 Cannon's Precedents Sec. 512. A 
        division of the question was likewise demanded in the West 
        Humphreys impeachment. See 3 Hinds' Precedents Sec. 2397. In 
        the John Pickering impeachment, the Court of Impeachment voted 
        on removal but did not consider disqualification. See 3 Hinds' 
        Precedents Sec. 2341.
---------------------------------------------------------------------------

        The Senate hereby orders and decrees and it is hereby adjudged 
    that the respondent, Halsted L. Ritter, United States district 
    judge for the southern district of Florida, be, and he is hereby, 
    removed from office, and that he be, and is hereby, forever 
    disqualified to hold and enjoy any office of honor, trust, or 
    profit under the United States, and that the Secretary be directed 
    to communicate to the President of the United States and to the 
    House of Representatives the foregoing order and judgment of the 
    Senate, and transmit a copy of same to each.
        Mr. [Robert M.] La Follette [Jr., of Wisconsin]: Mr. President, 
    I ask for a division of the question.
        Mr. Ashurst: Mr. President, to divide the question is perfectly 
    proper. Any Senator who desires that the order be divided is within 
    his rights in thus asking that it be divided. The judgment of 
    removal from office would ipso facto follow the vote of guilty.
        Mr. [William E.] Borah [of Idaho]: Mr. President, do I 
    understand there is to be a division of the question?
        Mr. La Follette: I have asked for a division of the question.

[[Page 2130]]

        Mr. [George W.] Norris [of Nebraska]: Mr. President, it seems 
    to me the chairman of the Committee on the Judiciary should submit 
    two orders. One follows from what we have done. The other does not 
    follow, but we ought to vote on it.
        Mr. Ashurst: I accept the suggestion. I believe the Senator 
    from Nebraska is correct. Therefore, I withdraw the order sent to 
    the desk.

Vote on Removal Following Conviction

Sec. 13.9 On conviction of the respondent on an article of impeachment, 
    no vote is required on judgment of removal, since removal follows 
    automatically after conviction under section 4, article II, of the 
    U.S. Constitution.

    On Apr. 17, 1936, following the conviction by the Senate, sitting 
as a Court of Impeachment, of Halsted Ritter on Article VII of the 
articles of impeachment, President pro tempore Key Pittman, of Nevada, 
ruled that no vote was required on judgment of removal: (15)
---------------------------------------------------------------------------
15. 80 Cong. Rec. 5607, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

        The President Pro Tempore: The Senator from Arizona, having 
    withdrawn the first order, submits another one, which the clerk 
    will read.
        The legislative clerk read as follows:

            Ordered, That the respondent, Halsted L. Ritter, United 
        States district judge for the southern district of Florida, be 
        removed from office.

        The President Pro Tempore: Are the yeas and nays desired on the 
    question of agreeing to the order?
        Mr. [Henry F.] Ashurst [of Arizona]: The yeas and nays are not 
    necessary.
        Mr. [Hiram W.] Johnson [of California]: Mr. President, how, 
    affirmatively, do we adopt the order, unless it is put before the 
    Senate, and unless the roll be called upon it or the Senate 
    otherwise votes?
        The President Pro Tempore: The Chair is of the opinion that the 
    order would follow the final vote as a matter of course, and no 
    vote is required.
        Mr. Ashurst: Mr. President, the vote of guilty, in and of 
    itself, is sufficient without the order, under the Constitution, 
    but to be precisely formal I have presented the order, in 
    accordance with established precedent, and I ask for a vote on its 
    adoption.
        Mr. [Daniel O.] Hastings [of Delaware]: Mr. President, will the 
    Senator yield?
        Mr. Ashurst: I yield.
        Mr. Hastings: Just what is the language in the Constitution as 
    to what necessarily follows conviction on an article of 
    impeachment?
        Mr. [George] McGill, [of Kansas]: It is found in section 4, 
    article II, of the Constitution.
        Mr. Hastings: What is the language of the Constitution which 
    makes removal from office necessary, and to follow as a matter of 
    course?
        Mr. McGill: Mr. President----
        Mr. Ashurst: If the Senator from Kansas has the reference, I 
    shall ask him to read it.

[[Page 2131]]

        Mr. McGill: Section 4 of article II of the constitution reads:

            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.

        Mr. Hastings: I thank the Senator. Then may I suggest was not 
    the Chair correct in the first instance? Does not the removal from 
    office follow without any vote of the Senate?
        The President Pro Tempore: That was the opinion of the Chair.
        Mr. Hastings: I think the President pro tempore was correct.
        The President Pro Tempore: The Chair will then direct that the 
    order be entered.
        Mr. [George W.] Norris [of Nebraska]: Mr. President, upon the 
    action of the Senate why does not the Chair make the proper 
    declaration without anything further?
        The President Pro Tempore: The Chair was about to do so. The 
    Chair directs judgment to be entered in accordance with the vote of 
    the Senate, as follows:

                                    Judgment

            The Senate having tried Halsted L. Ritter, United States 
        district judge for the southern district of Florida, upon seven 
        several articles of impeachment exhibited against him by the 
        House of Representatives, and two-thirds of the Senators 
        present having found him guilty of charges contained therein: 
        It is therefore
            Ordered and adjudged, That the said Halsted L. Ritter be, 
        and he is hereby, removed from office.

    Parliamentarian's Note: The procedure and ruling in the Ritter 
impeachment trial, for automatic removal on conviction of at least one 
article of impeachment, differs from the practice in three prior cases 
where the Senate sitting as a Court of Impeachment has voted to 
convict. In the John Pickering trial, the vote was taken, in the 
affirmative, on the question of removal, following the vote on the 
articles; the question of disqualification was apparently not 
considered.(16) In the West Humphreys impeachment, following 
conviction on five articles of impeachment, the Court of Impeachment 
proceeded to vote, under a division of the question, on removal and 
disqualification, both decided in the affirmative.(17) And 
in the Robert Archbald impeachment, the Court of Impeachment voted 
first on removal and then on disqualification, under a division of the 
question. Both orders were voted in the affirmative.(18)
---------------------------------------------------------------------------
16. 3 Hinds' Precedents Sec. 2341.
17. 3 Hinds' Precedents Sec. 2397.
18. 6 Cannon's Precedents Sec. 512.
---------------------------------------------------------------------------

Vote Required for Disqualification

Sec. 13.10 The question of disqualification from holding an office of 
    honor, trust, or profit under the United States, following 
    conviction and

[[Page 2132]]

    judgment of removal in an impeachment trial, requires only a 
    majority vote of the Senate sitting as a Court of Impeachment.

    On Apr. 17, 1936, the Senate sitting as a Court of Impeachment in 
the trial of Halsted Ritter proceeded to consider an order 
disqualifying the respondent from ever holding an office of honor, 
trust, or profit under the United States; the court had convicted the 
respondent and he had been ordered removed from office.
    A parliamentary inquiry was propounded as to the vote required on 
the question of disqualification:

        The President Pro Tempore: (19) The Senator from 
    Arizona submits an order, which will be read.
---------------------------------------------------------------------------
19. Key Pittman (Nev.).
---------------------------------------------------------------------------

        The legislative clerk read as follows:

            Ordered further, That the respondent, Halsted L. Ritter, 
        United States district judge for the southern district of 
        Florida, be forever disqualified from holding and enjoying any 
        office of honor, trust, or profit under the United States. . . 
        .

        Mr. [F. Ryan] Duffy [of Wisconsin]: A parliamentary inquiry.
        The President Pro Tempore: The Senator will state it.
        Mr. Duffy: Upon this question is a majority vote sufficient to 
    adopt the order, or must there be a two-thirds vote?
        Mr. [Henry F.] Ashurst [of Arizona]: Mr. President, in reply to 
    the inquiry, I may say that in the Archbald case that very question 
    arose. A Senator asked that a question be divided, and on the 
    second part of the order, which was identical with the order now 
    proposed, the yeas and nays were ordered, and the result was yeas 
    39, nays 35, so the order further disqualifying respondent from 
    holding any office of honor, trust, or profit under the United 
    States was entered. It requires only a majority vote.
        The President Pro Tempore: The question is on agreeing to the 
    order submitted by the Senator from Arizona.(20)
---------------------------------------------------------------------------
20. 80 Cong. Rec. 5607, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

    Parliamentarian's Note: In the impeachment trial of Robert 
Archbald, a division of the question was demanded on an order removing 
and disqualifying the respondent. Removal was agreed to by voice vote 
and disqualification was agreed to by the yeas and nays--yeas 39, nays 
35.(21)
---------------------------------------------------------------------------
21. 6 Cannon's Precedents Sec. 512.
---------------------------------------------------------------------------

Filing of Separate Opinions

Sec. 13.11 The Senate, sitting as a Court of Impeachment, may provide 
    by order at the conclusion of the trial for Senators to file 
    written opinions following the final vote.

    On Apr. 16, 1936, the Senate sitting as a Court of Impeachment in 
the trial of Judge Halsted Rit

[[Page 2133]]

ter adopted the following order at the conclusion of the trial:

        Ordered, That upon the final vote in the pending impeachment of 
    Halsted L. Ritter each Senator may, within 4 days after the final 
    vote, file his opinion in writing, to be published in the printed 
    proceedings in the case.(22)
---------------------------------------------------------------------------
22. 80 Cong. Rec. 5558, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

House Informed of Judgment

Sec. 13.12 The Senate informs the President and the House of the order 
    and judgment of the Senate in an impeachment trial.

    On Apr. 20, 1936,(1) a message from the Senate was 
received in the House informing the House of the order and judgment in 
the impeachment trial of Judge Halsted Ritter:
---------------------------------------------------------------------------
 1. 80 Cong. Rec. 5703, 5704, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

                          Message From the Senate

        A message from the Senate, by Mr. Horne, its enrolling clerk, 
    announced that the Senate had ordered that the Secretary be 
    directed to communicate to the President of the United States and 
    to the House of Representatives the order and judgment of the 
    Senate in the case of Halsted L. Ritter, and transmit a certified 
    copy of same to each, as follows:

            I, Edwin A. Halsey, Secretary of the Senate of the United 
        States of America, do hereby certify that the hereto attached 
        document is a true and correct copy of the order and judgment 
        of the Senate, sitting for the trial of the impeachment of 
        Halsted L. Ritter, United States district judge for the 
        southern district of Florida, entered in the said trial on 
        April 17, 1936.
            In testimony whereof, I hereunto subscribe my name and 
        affix the seal of the Senate of the United States of America, 
        this the 18th day of April, A. D. 1936.

                                              Edwin A. Halsey,
                                         Secretary of the Senate
                                             of the United States.

        In the Senate of the United States of America, sitting for the 
            trial of the impeachment of Halsted L. Ritter, United 
            States district judge for the southern district of Florida

                                    Judgment
                                                   April 17, 1936.

            The Senate having tried Halsted L. Ritter, United States 
        district judge for the southern district of Florida, upon seven 
        several articles of impeachment exhibited against him by the 
        House of Representatives, and two-thirds of the Senators 
        present having found him guilty of charges contained therein: 
        It is therefore
            Ordered and adjudged, That the said Halsted L. Ritter be, 
        and he is hereby removed from office.
            Attest:
                                                Edwin A. Halsey,
                                                        Secretary.

[[Page 2134]]



 
                               CHAPTER 14
 
                           Impeachment Powers
 
                       D. HISTORY OF PROCEEDINGS
 
Sec. 14. Charges Not Resulting in Impeachment


    The following is a compilation of impeachment charges made from 
1932 to the present which did not result in impeachment by the House.

                            Cross References
Committee reports adverse to impeachment, their privilege and 
    consideration, see Sec. Sec. 7.8-7.10, 8.2, supra.
House proceedings against Associate Justice Douglas, discussion in the 
    House, and portions of final subcommittee report relative to 
    grounds for impeachment of federal judges, see Sec. Sec. 3.9-3.13, 
    supra.
House proceedings on impeachment discontinued against President Nixon, 
    following his resignation, see Sec. 15, infra.
Resignations and effect on impeachment and trial, see Sec. 2, supra.
Trial of Judge English dismissed following his resignation, see 
    Sec. 16, infra.                          -------------------

Charges Against Secretary of the Treasury Mellon

Sec. 14.1 In the 72d Congress a Member rose to a question of 
    constitutional privilege, impeached Secretary of the Treasury 
    Andrew Mellon, and submitted a resolution authorizing the Committee 
    on the Judiciary to investigate the charges, which resolution was 
    referred to the Committee on the Judiciary.

    On Jan. 6, 1932, Mr. Wright Patman, of Texas, rose to impeach Mr. 
Mellon, Secretary of the Treasury:

         Impeachment of Andrew W. Mellon, Secretary of the Treasury

        Mr. Patman: Mr. Speaker, I rise to a question of constitutional 
    privilege. On my own responsibility as a Member of this House, I 
    impeach Andrew William Mellon, Secretary of the Treasury of the 
    United States for high crimes and misdemeanors, and offer the 
    following resolution:

            Whereas the said Andrew William Mellon, of Pennsylvania, 
        was nominated Secretary of the Treasury of the United States by 
        the then Chief Executive of the Nation, Warren G. Harding, 
        March 4, 1921; his nomination was confirmed by the Senate of 
        the United States on March 4, 1921; he has held said office 
        since March 4, 1921, without further nominations or 
        confirmations.
            Whereas section 243 of title 5 of the Code of Laws of the 
        United States provides:
            ``Sec. 243. Restrictions upon Secretary of Treasury: No 
        person appointed to the office of Secretary of the Treasury, or 
        Treasurer, or register, shall directly or indirectly be 
        concerned or interested in carrying on the business of trade or 
        commerce, or be owner in whole or in part of any sea vessel, or 
        purchase by himself, of another in trust for him, any public 
        lands or other public property, or be concerned in the purchase 
        or disposal of any public secu

[[Page 2135]]

        rities of any State, or of the United States, or take or apply 
        to his own use any emolument or gain for negotiating or 
        transacting any business in the Treasury Department other than 
        what shall be allowed by law; and every person who offends 
        against any of the prohibitions of this section shall be deemed 
        guilty of a high misdemeanor and forfeit to the United States 
        the penalty of $3,000, and shall upon conviction be removed 
        from office, and forever thereafter be incapable of holding any 
        office under the United States; and if any other person than a 
        public prosecutor shall give information of any such offense, 
        upon which a prosecution and conviction shall be had, one-half 
        the aforesaid penalty of $3,000 when recovered shall be for the 
        use of the person giving such information.

            Whereas the said Andrew William Mellon has not only been 
        indirectly concerned in carrying on the business of trade and 
        commerce in violation of the above-quoted section of the law 
        but has been directly interested in carrying on the business of 
        trade and commerce in that he is now and has been since taking 
        the oath of office as Secretary of the Treasury of the United 
        States the owner of a substantial interest in the form of 
        voting stock in more than 300 corporations with resources 
        aggregating more than $3,000,000,000, being some of the largest 
        corporations on earth, and he and his family and close business 
        associates in many instances own a majority of the stock of 
        said corporations and, in some instances, constitute ownership 
        of practically the entire outstanding capital stock; said 
        corporations are engaged in the business of trade and commerce 
        in every State, county, and village in the United States, every 
        country in the world, and upon the Seven Seas; said 
        corporations are extensively engaged in the following 
        businesses: Mining properties, bauxite, magnesium, carbon 
        electrodes, aluminum, sales, railroads, Pullman cars, gas, 
        electric light, street railways, copper, glass, brass, steel, 
        tar, banking, locomotives, water power, steamship, 
        shipbuilding, oil, coke, coal, and many other different 
        industries; said corporations are directly interested in the 
        tariff, in the levying and collections of Federal taxes, and in 
        the shipping of products upon the high seas; many of the 
        products of these corporations are protected by our tariff laws 
        and the Secretary of the Treasury has direct charge of the 
        enforcement of these laws.

        Mellon's Ownership of Sea Vessels and Control of United States 
                                  Coast Guard

            Whereas the Coast Guard (sec. 1, ch. 1, title 14, of the 
        United States Code) is a part of the military forces of the 
        United States and is operated under the Treasury Department in 
        time of peace; that the Secretary of the Treasury directs the 
        performance of the Coast Guard (sec. 51, ch. 1, title 14, of 
        the Code of Laws of the United States); that officers of the 
        Coast Guard are deemed officers of the customs (sec. 6, ch. 2, 
        title 14, United States Code), and it is their duty to go on 
        board the vessels which arrive within the United States, or 
        within 4 leagues of the coast thereof, and search and examine 
        the same, and every part thereof, and shall demand, receive, 
        and certify the manifests required to be on board certain 
        vessels shall affix and put proper fastenings on the hatches 
        and other communications with the hold of any vessel, and shall 
        remain on board such vessels until they arrive at the port of 
        their destination; that the said Andrew William Mellon is now, 
        and has been since becoming Secretary of the Treasury, the 
        owner in whole or in part of many sea vessels operating to and 
        from the United States, and in competition

[[Page 2136]]

        with other steamship lines; that his interest in the sea 
        vessels and his control over the Coast Guard represent a 
        violation of section 243 of title 5 of the Code of Laws of the 
        United States.

                                Customs Officers

            Whereas the Secretary of the Treasury of the United States 
        superintends the collection of the duties on imports (sec. 3, 
        ch. 1, title 19, Code of Laws of the United States); he 
        establishes and promulgates rules and regulations for the 
        appraisement of imported merchandise and the classification and 
        assessment of duties thereon at various ports of entry (sec. 
        382, ch. 3, title 19, Code of Laws of United States); that the 
        present Secretary of the Treasury, Andrew W. Mellon, is now and 
        has been since becoming Secretary of the Treasury personally 
        interested in the importation of goods, wares, articles, and 
        merchandise in substantial quantities and large amounts; that 
        it is repugnant to American principles and a violation of the 
        laws of the United States for such an officer to hold the dual 
        position of serving two masters--himself and the United States.

                            Ownership of Sea Vessels

            Whereas the said Andrew W. Mellon is now, and has been 
        since becoming Secretary of the Treasury of the United States, 
        holding said office in violation of that part of section 243 of 
        title 5 of the Code of Laws of the United States, which 
        provides that ``no person appointed to the office of Secretary 
        of the Treasury . . . shall be the owner in whole or in part of 
        any sea vessel,'' in that he was and is now the owner in whole 
        or in part of the following sea vessels:
            Registered in Norway: Austvangen, Nordvangen, Sorvangen, 
        Vestvangen.
            Venezuelan flag: 14 tankers, of 36,654 gross tons.
            United States flag: S. Haiti; 13 general cargo vessels, 
        Conemaugh, Gulf of Mexico, Gulfbird, Gulfcoast, Gulfgem, 
        Gulfking, Gulflight, Gulfoil, Gulfpoint, Gulfprince, Gulfstar, 
        Gulfstream, Gulfwax, Harmony, Ligonier, Ohio, Susquehanna, 
        Winifred, Currier, Gulf of Venezuela, Gulf breeze, Gulfcrest, 
        Gulfhawk, Gulfland, Gulfmaid, Gulfpenn, Gulfpride, Gulfqueen, 
        Gulfstate, Gulftrade, Gulfwing, Juniata, Monongahela, Supreme, 
        Trinidadian.

           Income Taxes Paid by Mellon Companies and Refunds Made to 
                                Them--by Himself

            Whereas section 1 (2), chapter 1, title 26, of the Code of 
        laws of the United States, provides ``The Commissioner of 
        Internal Revenue, under the direction of the Secretary of the 
        Treasury, shall have general superintendence of the assessment 
        and collection of all duties and taxes imposed by any law 
        providing internal revenue. . . .'' The tax laws of the United 
        States, including the granting of refunds, credits, and 
        abatements, are administered in secret under the direction of 
        the Secretary of the Treasury; that income-tax returns and 
        evidence upon which refunds are made, or granted, to taxpayers 
        are not subject to public inspection; that under the direction 
        of the present Secretary of the Treasury, Andrew W. Mellon, 
        many hundred corporations that are substantially owned by him 
        annually make settlement for their taxes and many such 
        corporations have been granted under his direction large tax 
        refunds amounting to tens of millions of dollars.

[[Page 2137]]

                            Ownership of Bank Stock

            Whereas section 244, chapter 3, title 12, of the Code of 
        Laws of the United States, provides:
            ``Sec. 244. Chairman of the board; qualifications of 
        members; vacancies.--The Secretary of the Treasury shall be ex 
        officio chairman of the Federal Reserve Board. No member of the 
        Federal Reserve Board shall be an officer or director of any 
        bank, banking institution, trust company, or Federal reserve 
        bank, nor hold stock in any bank, banking institution, or trust 
        company. . . .''
            That the present Secretary of the Treasury, Andrew W. 
        Mellon, is now and has been since-becoming Secretary of the 
        Treasury the owner of stock in a bank, banking institution, and 
        trust company in violation of this law.

                                Whisky Business

            Whereas the said Andrew W. Mellon has held the office of 
        Secretary of the Treasury in violation of section 243 of title 
        5 of the Code of Laws of the United States, in that from March 
        4, 1921, to October 2, 1928, he was interested in and received 
        his share of the proceeds and profits from the sale of 
        distilled whisky, which said whisky was sold as a commodity in 
        trade and commerce.

                          Aluminum in Public Buildings

            Whereas the said Andrew W. Mellon has further violated the 
        law which prohibits the Secretary of the Treasury from being 
        directly or indirectly interested or concerned in the carrying 
        on of business or trade or commerce, in that as Secretary of 
        the Treasury he controls the construction and maintenance of 
        public buildings; the Office of the Supervising Architect is 
        subject to the direction and approval of the Secretary of the 
        Treasury; the duties performed by the Supervising Architect 
        embrace the following: Preparation of drawings, estimates, 
        specifications, etc., for and the superintendence of the work 
        of constructing, rebuilding, extending, or repairing public 
        buildings; under the supervision of the Supervising Architect 
        and subject to the direction and approval of the Secretary of 
        the Treasury the Government of the United States has spent and 
        will soon spend several hundred million dollars in the 
        construction of public buildings. The said Andrew W. Mellon is 
        the principal owner and controls the Aluminum Co. of America, 
        which produces and markets practically all of the aluminum in 
        the United States used for all purposes. The said Andrew W. 
        Mellon has, while occupying the position as Secretary of the 
        Treasury, directly interested himself in the carrying on and 
        promotion of the business of the Aluminum Co. of America by 
        causing to be published in Room 410 of the Treasury Building of 
        the United States, located between the United States Capitol 
        and the White House, a magazine known as the Federal Architect, 
        published quarterly, which carries the pictures of public 
        buildings in which aluminum is used in their construction and 
        carries articles concerning the use of aluminum in architecture 
        which suggest how aluminum can be used for different purposes 
        in the construction of public buildings for the purpose of 
        convincing the architects who draw the plans and specifications 
        for public buildings that aluminum can and should be used for 
        certain construction work and ornamental purposes. The use of 
        aluminum in the construction of public buildings displaces 
        materials which can be purchased on competitive bids, whereas 
        the Aluminum Co. of America holds a monopoly and has no 
        competitors. Said magazine is published by employees of the 
        United States Government in the Office of the Supervising

[[Page 2138]]

        Architect and distributed to the architects of the Nation, many 
        of whom have been or will be employed by the Supervising 
        Architect to draw plans and specifications for public buildings 
        in their local communities. More aluminum is now being used in 
        the construction of public buildings, under the direction of 
        the Secretary of the Treasury, than has ever before been used, 
        as a result of this advantage.

                    Mellon Interest in Soviet Union (Russia)

            Whereas section 140 of title 19 of the Code of Laws of the 
        United States provides--
            ``Sec. 140. Goods manufactured by convict labor 
        prohibited.--All goods, wares, articles, and merchandise 
        manufactured wholly or in part in any foreign country by 
        convict labor shall not be entitled to entry at any of the 
        ports of the United States, and the importation thereof is 
        prohibited, and the Secretary of the Treasury is authorized and 
        directed to prescribe such regulations as may be necessary for 
        the enforcement of this provision''--
        charges are now being made that goods, wares, articles, and 
        merchandise are being transported to the United States from the 
        Soviet Union (Russia) in violation of this act; the present 
        Secretary of the Treasury, Andrew W. Mellon, whose duty it is 
        to enforce this provision of the law, is one of the principal 
        owners of the Koppers Co., a company with resources amounting 
        to $143,379,352, which is carrying on trade and commerce in all 
        parts of the world; that said company during the year 1930 made 
        a contract with the Soviet Union whereby the Koppers Co. 
        obligated itself to build coke ovens and steel mills in the 
        Soviet Union aggregating in value $200,000,000, in furtherance 
        of the Soviet's 5-year plan; that said contract is now being 
        carried into effect, and the said Andrew W. Mellon is 
        financially interested in its success; that his interest in 
        this contract with the Soviet Union destroys his impartiality 
        as an officer of the United States to enforce the above-quoted 
        law; his interest in said company, which is engaged in the 
        business of carrying on trade and commerce, disqualifies him as 
        Secretary of the Treasury under section 243 of title 5 of the 
        Code of Laws of the United States and makes him guilty of a 
        high misdemeanor and subject to impeachment: Therefore be it

            Resolved, That the Committee on the Judiciary is authorized 
        and directed, as a whole or by subcommittee, to investigate the 
        official conduct of Andrew W. Mellon, Secretary of the 
        Treasury, to determine whether, in its opinion, he has been 
        guilty of any high crime or misdemeanor which, in the 
        contemplation of the Constitution, requires the interposition 
        of the constitutional powers of the House. Such committee shall 
        report its findings to the House together with such resolution 
        of impeachment or other recommendation as it deems proper.
            Sec. 2. For the purposes of this resolution, the committee 
        is authorized to sit and act during the present Congress at 
        such times and places in the District of Columbia or elsewhere, 
        whether or not the House is sitting, has recessed, or has 
        adjourned, to hold such hearings, to employ such experts, and 
        such clerical, stenographic, and other assistants, to require 
        the attendance of such witnesses and the production of such 
        books, papers, and documents, to take such testimony, to have 
        such printing and binding done, and to make such expenditures 
        not exceeding $5,000, as it deems necessary.

        Mr. [Joseph W.] Byrns [of Tennessee]: Mr. Speaker, I move that 
    the articles just read be referred to the

[[Page 2139]]

    Committee on the Judiciary, and upon that motion I demand the 
    previous question.
        The previous question was ordered.
        The Speaker: (2) The question is on the motion of 
    the gentleman from Tennessee, that the articles be referred to the 
    Committee on the Judiciary.
---------------------------------------------------------------------------
 2. John N. Garner (Tex.).
---------------------------------------------------------------------------

        The motion was agreed to.(3)
---------------------------------------------------------------------------
 3. 75 Cong Rec. 1400 72d Cong. 1st Sess.
---------------------------------------------------------------------------

Sec. 14.2 The House discontinued by resolution further proceedings of 
    impeachment against Secretary of the Treasury Andrew Mellon, after 
    he had been nominated and confirmed for another position and had 
    resigned his Cabinet post.

    On Feb. 13, 1932, Mr. Hatton W. Sumners, of Texas, presented House 
Report No. 444 and House Resolution 143, discontinuing proceedings 
against Secretary of the Treasury Mellon:

        Impeachment Charges--Report From Committee on the Judiciary

        Mr. Sumners of Texas: Mr. Speaker, I offer a report from the 
    Committee on the Judiciary, and I would like to give notice that 
    immediately upon the reading of the report I shall move the 
    previous question.
        The Speaker: (4) The gentleman from Texas offers a 
    report, which the Clerk will read.
---------------------------------------------------------------------------
 4. John N. Garner (Tex.).
---------------------------------------------------------------------------

        The Clerk read the report, as follows:

            House of Representatives--Relative to the Action of the 
         Committee on the Judiciary With Reference to House Resolution 
                                       92

            Mr. Sumners of Texas, from the Committee on the Judiciary, 
        submitted the following report (to accompany H. Res. 143):
            I am directed by the Committee on the Judiciary to submit 
        to the House, as its report to the House, the following 
        resolution adopted by the Committee on the Judiciary indicating 
        its action with reference to House Resolution No. 92 heretofore 
        referred by the House to the Committee on the Judiciary:
            Whereas Hon. Wright Patman, Member of the House of 
        Representatives, filed certain impeachment charges against Hon. 
        Andrew W. Mellon, Secretary of the Treasury, which were 
        referred to this committee; and
            Whereas pending the investigation of said charges by said 
        committee, and before said investigation had been completed, 
        the said Hon. Andrew W. Mellon was nominated by the President 
        of the United States for the post of ambassador to the Court of 
        St. James and the said nomination was duly confirmed by the 
        United States Senate pursuant to law, and the said Andrew W. 
        Mellon has resigned the position of Secretary of the Treasury: 
        Be it

            Resolved by this committee, That the further consideration 
        of the said charges made against the said Andrew W. Mellon, as 
        Secretary of the Treasury, be, and the same are hereby, 
        discontinued.

                                 Minority Views

            We cannot join in the majority views and findings. While we 
        concur in the conclusions of the majority

[[Page 2140]]

        that section 243 of the Revised Statutes, upon which the 
        proceedings herein were based, provides for action in the 
        nature of an ouster proceeding, it is our view that the Hon. 
        Andrew W. Mellon, the former Secretary of the Treasury, having 
        removed himself from that office, no useful purpose would be 
        served by continuing the investigation of the charges filed by 
        the Hon. Wright Patman. We desire to stress that the action of 
        the undersigned is based on that reason alone, particularly 
        when the prohibition contained in said section 243 is not 
        applicable to the office now held by Mr. Mellon.

                    Fiorello H. LaGuardia.
                    Gordon Browning.
                    M. C. Tarver.
                    Francis B. Condon.

        Mr. Sumners of Texas: Mr. Speaker, I think the resolution is 
    fairly explanatory of the views held by the different members of 
    the committee. No useful purpose could be served by the consumption 
    of the usual 40 minutes, so I move the previous question.
        The previous question was ordered.
        The Speaker: The question is on agreeing to the resolution.
        The resolution was agreed to.(5)
---------------------------------------------------------------------------
 5. 75 Cong. Rec. 3850, 72d Cong. 1st Sess.
            The House Journal (p. 382) for this date indicates that Mr. 
        Sumners called up H. Res. 143 which was debated prior to its 
        adoption.
---------------------------------------------------------------------------

Charges Against President Hoover

Sec. 14.3 Impeachment of President Herbert Hoover was proposed but not 
    considered by the House or by committee in the 72d Congress.

    On Jan. 17, 1933, Mr. Louis T. McFadden, of Pennsylvania, rose and 
on his own responsibility as a Member of the House impeached President 
Hoover as follows:

        Mr. McFadden: On my own responsibility, as a Member of the 
    House of Representatives, I impeach Herbert Hoover, President of 
    the United States, for high crimes and misdemeanors.

    He offered a resolution with a lengthy preamble, which concluded as 
follows:

        Resolved, That the Committee on the Judiciary is authorized to 
    investigate the official conduct of Herbert Hoover, President of 
    the United States, and all matters related thereto, to determine 
    whether, in the opinion of the said committee, he has been guilty 
    of any high crime or misdemeanor which, in the contemplation of the 
    Constitution, requires the interposition of the constitutional 
    powers of the House. Such committee shall report its findings to 
    the House, together with such resolution of impeachment or other 
    recommendation as it deems proper, in order that the House of 
    Representatives may, if necessary, present its complaint to the 
    Senate, to the end that Herbert Hoover may be tried according to 
    the manner prescribed for the trial of the Executive by the 
    Constitution and the people be given their constitutional remedy 
    and be relieved of their present apprehension that a criminal may 
    be in office.
        For the purposes of this resolution the committee is authorized 
    to sit and

[[Page 2141]]

    act during the present Congress at such times and places in the 
    District of Columbia or elsewhere, whether or not the House is 
    sitting, has recessed, or has adjourned, to hold such hearings, to 
    employ such experts, and such clerical, stenographic, and other 
    assistants, to require the attendance of such witnesses and the 
    production of such books, papers, and documents, to take such 
    testimony, to have such printing and binding done, and to make such 
    expenditures as it deems necessary.

    Mr. Henry T. Rainey, of Illinois, moved that the resolution be laid 
on the table and the House adopted the motion, precluding any debate by 
Mr. McFadden on his resolution of impeachment.
    Pending a vote on the motion, Speaker John N. Garner, of Texas, 
stated in response to a parliamentary inquiry that the language which 
had transpired could not be expunged from the Congressional Record by 
motion but must be done by unanimous consent since no unparliamentary 
language was involved.(6)
---------------------------------------------------------------------------
 6. 76 Cong. Rec. 1965-68, 72d Cong. 2d Sess.
---------------------------------------------------------------------------

    On Jan. 18, 1933, Mr. McFadden rose to state a question of 
privilege, with the intention of impeaching President Hoover. In 
response to a point of order, Speaker Garner held that a question of 
constitutional privilege or a question of privilege of the House, as 
distinguished from a question of personal privilege, could not be 
presented until a motion or resolution was submitted. He declined to 
recognize Mr. McFadden since no resolution was presented.(7)
---------------------------------------------------------------------------
 7. Id. at pp. 2041, 2042.
---------------------------------------------------------------------------

Charges Against U.S. District Judge Lowell

Sec. 14.4 In the 73d Congress the Committee on the Judiciary conducted 
    an investigation into impeachment charges against District Judge 
    James Lowell and later recommended that further proceedings be 
    discontinued.

    On Apr. 26, 1933, Mr. Howard W. Smith, of Virginia, rose to a 
question of constitutional privilege and impeached Mr. Lowell, a U.S. 
District Judge for the District of Massachusetts. He specified the 
following charges:

        First. I charge that the said James A. Lowell, having been 
    nominated by the President of the United States and confirmed by 
    the Senate of the United States, duly qualified and commissioned, 
    and while acting as district judge for the district of 
    Massachusetts, did on divers and various occasions so abuse the 
    powers of his high office and so misconduct himself as to be guilty 
    of favoritism, oppression, and judicial misconduct, whereby he has 
    brought the administration of justice in said

[[Page 2142]]

    district in the court of which he is judge into disrepute by his 
    aforesaid misconduct and acts, and is guilty of misbehavior and 
    misconduct, falling under the constitutional provision as ground 
    for impeachment and removal from office.
        Second. I charge that the said James A. Lowell did knowingly 
    and willfully violate his oath to support the Constitution in his 
    refusal to comply with the provisions of article IV, section 2, 
    clause 2, of the Constitution of the United States, wherein it is 
    provided:

            A person charged in any State with treason, felony, or 
        other crime, who shall flee from justice and be found in 
        another State, shall, on demand of the executive authority of 
        the State from which he fled, be delivered up, to be removed to 
        the State having jurisdiction of the crime.

        Third. I charge that the said James A. Lowell did, on the 24th 
    day of April, 1933, unlawfully, willfully, and contrary to well-
    established law, order the discharge from custody of one George 
    Crawford, who had been regularly indicted for first-degree murder 
    in Loudoun County, Va., had confessed his crime, and whose 
    extradition from the State of Massachusetts had, after full hearing 
    and investigation, been officially ordered by Joseph B. Ely, 
    Governor of the State of Massachusetts.
        Fourth. I charge that the said James A. Lowell did deliberately 
    and willfully by ordering the release of said George Crawford, 
    unlawfully and contrary to the law in such cases made and provided, 
    seek to defeat the ends of justice and to prevent the said George 
    Crawford from being duly and regularly tried in the tribunal having 
    jurisdiction thereof for the crime with which he is charged, to 
    which he had confessed.
        Fifth. I charge that the said James A. Lowell did on the said 
    24th day of April 1933 willfully, deliberately, and viciously 
    attempt to nullify the operation of the laws for the punishment of 
    crime of the State of Virginia and many other States in the Union, 
    notwithstanding numerous decisions directly to the contrary by the 
    Supreme Court of the United States, all of which decisions were 
    brought to the attention of the said judge by the attorney general 
    of Massachusetts and the Commonwealth's attorney of Loudoun County, 
    Va., at the time of said action.
        Sixth. I further charge that the said James A. Lowell, on the 
    said 24th day of April 1933, in rendering said decision did use his 
    judicial position for the unlawful purpose of casting aspersions 
    upon and attempting to bring disrepute upon the administration of 
    law in the Commonwealth of Virginia and various other States in 
    this Union, and that in so doing he used the following language:

            I say this whole thing is absolutely wrong. It goes against 
        my Yankee common sense to have a case go on trial for 2 or 3 
        years and then have the whole thing thrown out by the Supreme 
        Court.
            They say justice is blind. Justice should not be as blind 
        as a bat. In this case it would be if a writ of habeas corpus 
        were denied.
            Why should I send a negro back from Boston to Virginia, 
        when I know and everybody knows that the Supreme Court will say 
        that the trial is illegal? The only persons who would get any 
        good out of it would be the lawyers.
            Governor Ely in signing the extradition papers was bound 
        only by the

[[Page 2143]]

        question of whether the indictment from Virginia is in order. 
        But why shouldn't I, sitting here in this court, have a 
        different constitutional outlook from the governor who sits on 
        the case merely to see if the indictment satisfies the law in 
        Virginia?
            I keep on good terms with Chief Justice Rugg, of the 
        Massachusetts Supreme Court, but I don't have to keep on good 
        terms with the chief justice of Virginia, because I don't have 
        to see him.
            I'd rather be wrong on my law than give my sanction to 
        legal nonsense.

        Seventh. I further charge that the said James A. Lowell has 
    been arbitrary, capricious, and czarlike in the administration of 
    the duties of his high office and has been grossly and willfully 
    indifferent to the rights of litigants in his court, particularly 
    in the case of George Crawford against Frank G. Hale.(8)
---------------------------------------------------------------------------
 8. H. Jour. 205, 206, 73d Cong. 1st Sess.
---------------------------------------------------------------------------

    The charges were referred to the Committee on the Judiciary. Mr. 
Smith then offered House Resolution 120, authorizing an investigation 
of such charges, which resolution was adopted by the House:

        Resolved, That the Committee on the Judiciary is authorized and 
    directed, as a whole or by subcommittee, to inquire into and 
    investigate the official conduct of James A. Lowell, a district 
    judge for the United States District Court for the District of 
    Massachusetts, to determine whether in the opinion of said 
    committee he has been guilty of any high crime or misdemeanor which 
    in the contemplation of the Constitution requires the interposition 
    of the constitutional powers of the House. Said committee shall 
    report its findings to the House, together with such resolution of 
    impeachment or other recommendation as it deems proper.
        Sec. 2. For the purpose of this resolution the committee is 
    authorized to sit and act during the present Congress at such times 
    and places in the District of Columbia and elsewhere, whether or 
    not the House is sitting, has recessed, or has adjourned, to hold 
    such hearings, to employ such clerical, stenographic, and other 
    assistance, to require the attendance of such witnesses and the 
    production of such books, papers, and documents, and to take such 
    testimony, to have such printing and binding done, and to make such 
    expenditures, not exceeding $5,000, as it deems 
    necessary.(9)
---------------------------------------------------------------------------
 9. Id. at p. 206.
---------------------------------------------------------------------------

    On May 4, 1933, Mr. Smith offered House Resolution 132, providing 
for payment out of the contingent fund for the expenses of the 
Committee on the Judiciary incurred under House Resolution 120. The 
resolution was referred to the Committee on Accounts and was called up 
by that committee on May 8, when it was adopted by the 
House.(10)
---------------------------------------------------------------------------
10. Id. at pp. 233, 238.
---------------------------------------------------------------------------

    On Feb. 6, 1934, the House agreed to House Resolution 226, reported 
by Mr. Gordon Browning, of Tennessee, of the Committee on

[[Page 2144]]

the Judiciary, providing that no further proceedings be had under House 
Resolution 120:

        Resolved, That no further proceedings be had under H. Res. 120, 
    agreed to April 26, 1933, providing for an investigation of the 
    official conduct of James A. Lowell, United States district judge 
    for the district of Massachusetts, and that the Committee on the 
    Judiciary be discharged.(11)
---------------------------------------------------------------------------
11. H. Jour. 137, 73d Cong. 2d Sess.
---------------------------------------------------------------------------

Charges Against Federal Reserve Board Members

Sec. 14.5 After a Member of the House offered a resolution to impeach 
    various members and former members of the Federal Reserve Board, 
    and Federal Reserve agents, his resolution was referred to the 
    Committee on the Judiciary and not acted upon.

    On May 23, 1933, Mr. Louis T. McFadden, of Pennsylvania, rose to a 
question of constitutional privilege and impeached on his own 
responsibility Eugene Meyer, former member of the Federal Reserve 
Board, and a number of other former members, members, and Federal 
Reserve agents. His resolution, House Resolution 1458, was referred to 
the Committee on the Judiciary, pursuant to a motion to refer offered 
by Mr. Joseph W. Byrns, of Tennessee. The committee took no action on 
the resolution.
    During debate on the resolution, Mr. Carl E. Mapes, of Michigan, 
rose to a point of order against the resolution, claiming it was not 
privileged because it called for the impeachment of various persons who 
were no longer U.S. civil officers. Speaker Henry T. Rainey, of 
Illinois, held that the issue presented was a constitutional question 
upon which the House and not the Chair should pass.(12)
---------------------------------------------------------------------------
12. H. Jour. 298-302, 73d Cong. 1st Sess.
---------------------------------------------------------------------------

Charges Against U.S. District Judge Molyneaux

Sec. 14.6 Impeachment of U.S. District Judge Joseph Molyneaux was 
    proposed in the 73d Congress but not acted upon by the House or the 
    Committee on the Judiciary, to which the charges were referred.

    On Jan. 22, 1934, Mr. Francis H. Shoemaker, of Minnesota, 
introduced House Resolution 233, authorizing an investigation by the 
Committee on the Judiciary into the official conduct of Mr. Molyneaux, 
a U.S. District Judge for the District of Minnesota, to determine 
whether he was guilty of high crimes or misdemeanors

[[Page 2145]]

requiring the ``interposition of the constitutional powers of the 
House.'' The resolution was referred to the Committee on the 
Judiciary.(13)
---------------------------------------------------------------------------
13. H. Jour. 87, 73d Cong. 2d Sess.
---------------------------------------------------------------------------

    The Committee on the Judiciary having taken no action on his 
resolution, Mr. Shoemaker rose to a question of constitutional 
privilege on Apr. 20, 1934, and impeached Judge Molyneaux on his own 
responsibility. He offered charges and a resolution (H. Res. 344) 
impeaching the judge, which resolution was referred on motion to the 
Committee on the Judiciary. The resolution charged corruption in the 
appointment of receivers, in the disposal of estates, interference with 
justice, and mental senility, and dishonesty. The committee took no 
action thereon.(14)
---------------------------------------------------------------------------
14. Id. at p. 423.
---------------------------------------------------------------------------

Charges Against U.S. Circuit Judge Alschuler

Sec. 14.7 A Member having impeached Judge Samuel Alschuler, a Circuit 
    Judge for the seventh circuit, the Committee on the Judiciary 
    reported adversely on the resolution authorizing an investigation, 
    and the resolution was laid on the table.

    On May 7, 1935, Mr. Everett M. Dirksen, of Illinois, rose to a 
question of ``high constitutional privilege'' and impeached Samuel 
Alschuler, U.S. Circuit Judge for the seventh circuit. He discussed his 
charges (principally that the accused improperly favored a litigant 
before his court) and offered House Resolution 214, authorizing an 
investigation by the Committee on the Judiciary. The resolution was 
referred on motion of Mr. Hatton W. Sumners, of Texas, to the Committee 
on the Judiciary.(15)
---------------------------------------------------------------------------
15. H. Jour. 668-71, 74th Cong. 1st Sess.
---------------------------------------------------------------------------

    On Aug. 15, 1935, Mr. Sumners reported adversely (H. Rept. No. 
1802) on House Resolution 214, by direction of the Committee on the 
Judiciary. Mr. Sumners moved to lay the resolution on the table, and 
the House agreed to the motion.(16)
---------------------------------------------------------------------------
16. Id. at p. 1093.
---------------------------------------------------------------------------

Charges Against Secretary of Labor Perkins

Sec. 14.8 In the 76th Congress, a resolution was offered impeaching 
    Secretary of Labor Frances Perkins and two other officials of the 
    Department of Labor, and was referred on motion to the Committee on 
    the Judiciary.

    On Jan. 24, 1939,(17) a Member impeached certain 
officials of the

[[Page 2146]]

executive branch and introduced a resolution authorizing an 
investigation:
---------------------------------------------------------------------------
17. 84 Cong. Rec. 702-11, 76th Cong. 1st Sess.
---------------------------------------------------------------------------

       Impeachment of Frances Perkins, Secretary of Labor; James L. 
                     Houghteling; and Gerard D. Reilly

        Mr. [J. Parnell] Thomas of New Jersey: Mr. Speaker, on my own 
    responsibility as a Member of the House of Representatives, I 
    impeach Frances Perkins, Secretary of Labor of the United States; 
    James L. Houghteling, Commissioner of the Immigration and 
    Naturalization Service of the Department of Labor; and Gerard D. 
    Reilly, Solicitor of the Department of Labor, as civil officers of 
    the United States, for high crimes and misdemeanors in violation of 
    the Constitution and laws of the United States, and I charge that 
    the aforesaid Frances Perkins, James L. Houghteling, and Gerard D. 
    Reilly, as civil officers of the United States, were and are guilty 
    of high crimes and misdemeanors in office in manner and form as 
    follows, to wit: That they did willfully, unlawfully, and 
    feloniously conspire, confederate, and agree together from on or 
    about September 1, 1937, to and including this date, to commit 
    offenses against the United States and to defraud the United States 
    by failing, neglecting, and refusing to enforce the immigration 
    laws of the United States, including to wit section 137, title 8, 
    United States Code, and section 156, title 8, United States Code, 
    against Alfred Renton Bryant Bridges, alias Harry Renton Bridges, 
    alias Harry Dorgan, alias Canfield, alias Rossi, an alien, who 
    advises, advocates, or teaches and is a member of or affiliated 
    with an organization, association, society, or group that advises, 
    advocates, or teaches the overthrow by force or violence of the 
    Government of the United States, or the unlawful damage, injury, or 
    destruction of property, or sabotage; and that the aforesaid 
    Frances Perkins, James L. Houghteling, and Gerard D. Reilly have 
    unlawfully conspired together to release said alien after his 
    arrest on his own recognizance, without requiring a bond of not 
    less than $500; and that said Frances Perkins, James L. 
    Houghteling, and Gerard D. Reilly and each of them have committed 
    many overt acts to effect the object of said conspiracy, all in 
    violation of the Constitution of the United States in such cases 
    made and provided.
        And I further charge that Frances Perkins, James L. 
    Houghteling, and Gerard D. Reilly, as civil officers of the United 
    States, were and are guilty of high crimes and misdemeanors by 
    unlawfully conspiring together to commit offenses against the 
    United States and to defraud the United States by causing the 
    Strecker case to be appealed to the Supreme Court of the United 
    States, and by failing, neglecting, and refusing to enforce section 
    137, United States Code, against other aliens illegally within the 
    United States contrary to the Constitution of the United States and 
    the statutes of the United States in such cases made and provided.
        In support of the foregoing charges and impeachment, I now 
    present a resolution setting forth specifically, facts, 
    circumstances, and allegations with a view to their consideration 
    by a committee of the House and by the House itself to determine 
    their truth or falsity.

[[Page 2147]]

        Mr. Speaker, I offer the following resolution and ask that it 
    be considered at this time.
        The Speaker: (18) The Clerk will report the 
    resolution.
---------------------------------------------------------------------------
18. William B. Bankhead (Ala.).
---------------------------------------------------------------------------

        The Clerk read as follows:

                              House Resolution 67

            Whereas Frances Perkins, of New York, was nominated by the 
        President of the United States, confirmed by the Senate of the 
        United States, duly qualified and commissioned on March 4, 
        1933, and has since March 4, 1933, without further nominations 
        or confirmations, acted as Secretary of Labor and as a civil 
        officer of the United States.

            Whereas James L. Houghteling, of Illinois, was nominated by 
        the President of the United States, confirmed by the Senate of 
        the United States, duly qualified and commissioned on August 4, 
        1937, as Commissioner of the Immigration and Naturalization 
        Service of the Department of Labor and has since August 4, 
        1937, without further nominations or confirmations, acted as 
        Commissioner of the Immigration and Naturalization Service of 
        the Department of Labor and as a civil officer of the United 
        States.
            Whereas Gerard D. Reilly, of Massachusetts, was nominated 
        by the President of the United States, confirmed by the Senate 
        of the United States, duly qualified and commissioned on August 
        10, 1937, as Solicitor of the Department of Labor, and has 
        since August 10, 1937, without further nominations or 
        confirmations, acted as Solicitor of the Department of Labor 
        and as a civil officer of the United States.
            Resolved, That the Committee on the Judiciary be and is 
        hereby authorized and directed, as a whole or by subcommittee, 
        to investigate the official conduct of Frances Perkins, 
        Secretary of Labor; James L. Houghteling, Commissioner of 
        Immigration and Naturalization Service, Department of Labor; 
        and Gerard D. Reilly, Solicitor, Department of Labor, to 
        determine whether, in its opinion, they have been guilty of any 
        high crimes or misdemeanors which, in the contemplation of the 
        Constitution, requires the interposition of the constitutional 
        powers of the House. Such committee shall report its findings 
        to the House, together with such articles of impeachment as the 
        facts may warrant.
            For the purposes of this resolution the committee is 
        authorized and directed to sit and act, during the present 
        session of Congress, at such times and places in the District 
        of Columbia, or elsewhere, whether or not the House is sitting, 
        has recessed, or has adjourned; to hold hearings; to employ 
        such experts and such clerical, stenographic and other 
        assistance; and to require the attendance of such witnesses and 
        the production of such books, papers, and documents; and to 
        take such testimony and to have such printing and binding done; 
        and to make such expenditures not exceeding $10,000, as it 
        deems necessary.

    The resolution was referred as follows:

        Mr. [Sam] Rayburn [of Texas]: Mr. Speaker, I move that the 
    resolution be referred to the Committee on the Judiciary of the 
    House and upon that I desire to say just a word. A great many 
    suggestions have been made as to what should be done with this 
    resolution, but I think this would be the orderly procedure so that 
    the facts may be developed. The resolution will come out of that 
    committee or remain in it according to the testimony adduced.
        I therefore move the previous question on my motion to refer, 
    Mr. Speaker.

[[Page 2148]]

        The previous question was ordered.
        The motion was agreed to.

Sec. 14.9 The Committee on the Judiciary agreed unanimously to report 
    adversely the resolution urging an investigation of Secretary of 
    Labor Frances Perkins and the House agreed to a motion to lay the 
    resolution on the table.

    On Mar. 24, 1939,(19) charges of impeachment against 
Secretary of Labor Perkins were finally and adversely disposed of:
---------------------------------------------------------------------------
19. 84 Cong. Rec. 3273, 76th Cong. 1st Sess.
---------------------------------------------------------------------------

                  Impeachment Proceedings--Frances Perkins

        Mr. [Sam] Hobbs [of Alabama]: Mr. Speaker, by direction of the 
    Committee on the Judiciary I present a privileged report upon House 
    Resolution 67, which I send to the desk.
        The Speaker: (20) The Clerk will report the 
    resolution.
---------------------------------------------------------------------------
20. William B. Bankhead (Ala.).
---------------------------------------------------------------------------

        The Clerk read House Resolution 67.
        Mr. Hobbs: Mr. Speaker, this is a unanimous report from the 
    Committee on the Judiciary adversing this resolution. I move to lay 
    the resolution on the table.
        The Speaker: The question is on the motion of the gentleman 
    from Alabama to lay the resolution on the table.
        The motion was agreed to.

Charges Against U.S. District Judges Johnson and Watson

Sec. 14.10 The House authorized the Committee on the Judiciary to 
    investigate allegations of impeachable offenses charged against 
    U.S. District Court Judges Johnson and Watson but no final report 
    was submitted.

    On Jan. 24, 1944, Mr. Hatton W. Sumners, of Texas, introduced House 
Resolution 406 authorizing an investigation by the Committee on the 
Judiciary into the conduct of U.S. District Court Judges Albert Johnson 
and Albert Watson from Pennsylvania. The resolution was referred to the 
Committee on the Judiciary. House Resolution 407, also introduced by 
Mr. Sumners and providing for the expenses of the committee in 
conducting such an investigation, was referred to the Committee on the 
Judiciary.(1)
---------------------------------------------------------------------------
 1. H. Jour. 46, 78th Cong. 2d Sess.
---------------------------------------------------------------------------

    On Jan. 26, 1944, Mr. Sumners called up by direction of the 
Committee on the Judiciary House Resolution 406, authorizing the 
investigation and the House agreed thereto.(2)
---------------------------------------------------------------------------
 2. Id. at p. 57.
---------------------------------------------------------------------------

    Parliamentarian's Note: Extensive hearings, presided over by Mr. 
Estes Kefauver, of Tennessee,

[[Page 2149]]

were held relative to the conduct of Judge Johnson. The subcommittee 
report recommended impeachment based on evidence of corrupt practices 
and acts including corrupt appointment to court offices. Judge Johnson 
having resigned, the Committee on the Judiciary discontinued the 
proceedings.

Charges Against President Truman

Sec. 14.11 In the 82d Congress, a resolution proposing an inquiry as to 
    whether President Harry Truman should be impeached was referred to 
    the Committee on the Judiciary, which took no action thereon.

    On Apr. 23, 1952,(3) a resolution relating to 
impeachment was referred to the Committee on the Judiciary, which took 
no action thereon:
---------------------------------------------------------------------------
 3. 98 Cong. Rec. 4325, 82d Cong. 2d Sess.
---------------------------------------------------------------------------

            By Mr. [George H.] Bender [of Ohio]:

        H. Res. 607. Resolution creating a select committee to inquire 
    and report to the House whether Harry S. Truman, President of the 
    United States, shall be impeached; to the Committee on the 
    Judiciary.

Sec. 14.12 A petition was filed to discharge the Committee on the 
    Judiciary from the further consideration of a resolution impeaching 
    President Harry Truman but did not gain the requisite number of 
    signatures.

    On June 17, 1952, Mr. John C. Schafer, of Wisconsin, announced that 
he was filing a petition to discharge the Committee on the Judiciary 
from the further consideration of House Resolution 614, impeaching 
President Truman: (4)
---------------------------------------------------------------------------
 4. 98 Cong. Rec. 7424, 82d Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. Schafer: Mr. Speaker, on April 28 of this year I introduced 
    House Resolution 614, to impeach Harry S. Truman, President of the 
    United States, of high crimes and misdemeanors in office. This 
    resolution was referred to the Committee on the Judiciary, which 
    committee has failed to take action thereon.
        Thirty legislative days having now elapsed since introduction 
    of this resolution, I today have placed on the Clerk's desk a 
    petition to discharge the committee from further consideration of 
    the resolution.
        In my judgment, developments since I introduced the Resolution 
    April 28 have immeasurably enlarged and strengthened the case for 
    impeachment and have added new urgency for such action by this 
    House.
        First. Since the introduction of this resolution, the United 
    States Supreme Court, by a 6-to-3 vote, has held that in his 
    seizure of the steel mills Harry S. Truman, President of the United

[[Page 2150]]

    States, exceeded his authority and powers, violated the 
    Constitution of the United States, and flouted the expressed will 
    and intent of the Congress--and, in so finding, the Court gave 
    unprecedented warnings against the threat to freedom and 
    constitutional government implicit in his act.
        Second. Despite the President's technical compliance with the 
    finding of the Court, prior to the Court decision he reasserted his 
    claim to the powers then in question, and subsequent to that 
    decision he has contemptuously called into question ``the intention 
    of the Court's majority'' and contemptuously attributed the limits 
    set on the President's powers not to Congress, or to the Court, or 
    to the Constitution, but to ``the Court's majority.''
        Third. The Court, in its finding in the steel case, emphasized 
    not only the unconstitutionality of the Presidential seizure but 
    also stressed his failure to utilize and exhaust existing and 
    available legal resources for dealing with the situation, including 
    the Taft-Hartley law.
        Fourth. The President's failure and refusal to utilize and 
    exhaust existing and available legal resources for dealing with the 
    emergency has persisted since the Court decision and in spite of 
    clear and unmistakable evidence of the will and intent of Congress 
    given in response to his latest request for special legislation 
    authorizing seizure or other special procedures.

    The discharge petition, No. 14, was not signed by a majority of the 
Members of the House and was therefore not eligible for consideration 
in the House under Rule XXVII clause 4, House Rules and Manual Sec. 908 
(1973).

Charges Against Judges Murrah, Chandler, and Bohanon

Sec. 14.13 A resolution authorizing an investigation in the 89th 
    Congress into the conduct of three federal judges was referred to 
    the Committee on Rules but not acted on.

    On Feb. 22, 1966, Mr. H. R. Gross, of Iowa, introduced House 
Resolution 739, authorizing the Committee on the Judiciary to inquire 
into and investigate the conduct of Alfred Murrah, Chief Judge of the 
10th Circuit, Stephen Chandler, District Judge, Western District of 
Oklahoma, and Luther Bohanon, District Judge, Eastern, Northern, and 
Western Districts of Oklahoma, in order to determine whether any of the 
three judges had been guilty of high crimes or misdemeanors. The 
resolution was referred to the Committee on Rules.(5)
---------------------------------------------------------------------------
 5. 112 Cong. Rec. 3665, 89th Cong. 2d Sess.
---------------------------------------------------------------------------

    Mr. Gross stated the purpose of the resolution as follows:

        Mr. Segal, Judge John Biggs, Jr., the chairman of the judicial 
    conference committee on court administration,

[[Page 2151]]

    and Mr. Joseph Borkin, Washington attorney and author of the book, 
    ``The Corrupt Judge,'' were in agreement that impeachment is the 
    only remedy available today for action against judicial misconduct.
        Both Mr. Borkin and the chairman of the subcommittee emphasized 
    the serious problem that has arisen in Oklahoma where the Judicial 
    Council of the 10th Judicial Circuit made an attempt to bar Judge 
    Stephen S. Chandler from handling cases because it was stated he 
    was ``either unwilling or unable'' to perform his judicial 
    functions adequately.
        Mr. Borkin, a man with an impressive background in the study of 
    the problems of corruption and misconduct in the judiciary, pointed 
    out that Judge Chandler, in return, has made serious charges of 
    attempted bribery and other misconduct against two other judges--
    Alfred P. Murrah, chief judge, 10th Circuit, U.S. Court of Appeals, 
    and Luther Bohanon, district judge, U.S. District Court for the 
    Eastern, Northern, and Western Districts of Oklahoma.
        Mr. Borkin stressed that this dispute in Oklahoma has been an 
    upsetting factor in the Federal courts in Oklahoma since 1962, and 
    he declared that these charges should not be permitted to stand. He 
    emphasized that there can be no compromise short of a full 
    investigation to clear the judges or to force their removal.
        I agree with Mr. Borkin that great damage has been done because 
    the courts, the executive branch, and the Congress have taken no 
    effective steps to clear up this scandalous situation. I have 
    waited patiently for months, and I have hoped that the Justice 
    Department, the courts, or the Congress would initiate or suggest a 
    proper legal investigation to clear the air and put an end to this 
    outrageous situation in the judiciary in the 10th circuit.
        There has been no effective action taken, or even started. 
    Therefore, I am today instituting the only action available to try 
    to get to the bottom of this.
        I have introduced a House resolution authorizing and directing 
    the House Committee on the Judiciary to investigate the conduct of 
    the three Federal judges in Oklahoma involved in this controversy. 
    Upon its finding of fact, the House Judiciary Committee would be 
    empowered to institute impeachment proceedings or make any other 
    recommendations it deems proper.
        The committee would also be empowered to require the attendance 
    of witnesses and the production of such books, papers, and 
    documents--including financial statements, contracts, and bank 
    accounts--as it deems necessary.
        The resolution in no way establishes the guilt of the 
    principals involved. It is necessary to the launching of an 
    investigation for the purpose of determining the facts essential to 
    an intelligent conclusion and eliminating the cloud now hanging 
    over the Federal judiciary.(6)
---------------------------------------------------------------------------
 6. Id. at p. 3653.
---------------------------------------------------------------------------

    The Committee on Rules took no action on the resolution.

Charges Against Associate Supreme Court Justice Douglas

Sec. 14.14 When the Minority Leader criticized the conduct

[[Page 2152]]

    of Associate Justice William O. Douglas of the U.S. Supreme Court 
    during a special order speech in the 91st Congress and suggested 
    the creation of a select committee to investigate such conduct to 
    determine whether impeachment was warranted, another Member 
    announced on the floor that he was introducing a resolution of 
    impeachment; the resolution was referred to the Committee on the 
    Judiciary.

    On Apr. 15, 1970, Minority Leader Gerald R. Ford, of Michigan, took 
the floor for a special order speech in which he criticized the conduct 
of Associate Justice Douglas of the U.S. Supreme Court. Mr. Ford 
suggested that a select committee of the House be created to 
investigate such conduct in order to determine whether impeachment 
proceedings might be warranted.(7)
---------------------------------------------------------------------------
 7. 116 Cong. Rec. 11912-17, 91st Cong. 2d Sess. Mr. Ford discussed the 
        standard for impeachable offenses and concluded in part that 
        such an offense was ``whatever a majority of the House of 
        Representatives considers [it] to be at a given moment in 
        history.'' Id. at p. 11913.
---------------------------------------------------------------------------

    Mr. Louis C. Wyman, of New Hampshire, then took the floor under a 
special order speech to discuss the same subject. He yielded time to 
Mr. Andrew Jacobs, Jr., of Indiana, as follows:

        Mr. Jacobs: Mr. Speaker, will the gentleman yield for a three-
    sentence statement?
        Mr. Wyman: I yield to the gentleman from Indiana.
        Mr. Jacobs: Mr. Speaker, the gentleman from Michigan has stated 
    publicly that he favors impeachment of Justice Douglas.
        He, therefore, has a duty to this House and this country to 
    file a resolution of impeachment.
        Since he refuses to do so and since he raises grave questions, 
    the answers to which I do not know, but every American is entitled 
    to know, I introduce at this time the resolution of impeachment in 
    order that a proper and dignified inquiry into this matter might be 
    held.

    At this point Mr. Jacobs introduced the resolution by placing it in 
the hopper at the Clerk's desk.

        The Speaker Pro Tempore: (8) The gentleman from New 
    Hampshire has the floor.
---------------------------------------------------------------------------
 8. Charles M. Price (Ill.).
---------------------------------------------------------------------------

        Mr. Wyman: I did not yield for that purpose.
        The Speaker Pro Tempore: The gentleman from Indiana has 
    introduced a resolution.(9)
---------------------------------------------------------------------------
 9. 116 Cong. Rec. 11920, 91st Cong. 2d Sess.
---------------------------------------------------------------------------

    Mr. Jacobs' resolution, House Resolution 920, which was referred to 
the Committee on the Judiciary (10) declared:
---------------------------------------------------------------------------
10. Id. at p. 11942. For a similar resolution proposed in the 83d 
        Congress, but not acted upon, impeaching Justice Douglas, see 
        H. Res. 290, introduced June 17, 1953, 99 Cong. Rec. 6760, 83d 
        Cong. 1st Sess.

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

[[Page 2153]]

        Resolved, That William O. Douglas, Associate Justice of the 
    Supreme Court of the United States be impeached [for] high crimes 
    and misdemeanors and misbehavior in office.

    Other resolutions, all of which called for the creation of a select 
committee to conduct an investigation and to determine whether 
impeachment proceedings were warranted, were referred to the Committee 
on Rules. For example, House Resolution 922, introduced by Mr. Wyman, 
with 24 cosponsors, read as follows: (11)
---------------------------------------------------------------------------
11. H. Res. 922 was referred to the Committee on Rules. 116 Cong. Rec. 
        12130, 12131, 91st Cong. 2d Sess., Apr. 16, 1970.
            See also H. Res. 923, H. Res. 924, H. Res. 925, H. Res. 
        926, H. Res. 927, H. Res. 928, 91st Cong. 2d Sess.
---------------------------------------------------------------------------

        Whereas, the Constitution of the United States provides in 
    Article III, Section 1, that Justices of the Supreme Court shall 
    hold office only ``during good behavior'', and
        Whereas, the Constitution also provides in Article II, Section 
    4, that Justices of the Supreme Court shall be removed from Office 
    on Impeachment for High Crimes and Misdemeanors, and
        Whereas the Constitution also provides in Article VI that 
    Justices of the Supreme Court shall be bound by ``Oath or 
    Affirmation to support this Constitution'' and the United States 
    Code (5 U.S.C. 16) prescribes the following form of oath which was 
    taken and sworn to by William Orville Douglas prior to his 
    accession to incumbency on the United States Supreme Court:

            I, William Orville Douglas, do solemnly swear that I will 
        support and defend the Constitution of the United States 
        against all enemies, foreign and domestic; that I will bear 
        true faith and allegiance to the same; that I take this 
        obligation freely, without any mental reservation or purpose of 
        evasion, and that I will well and faithfully discharge the 
        duties of the office on which I am about to enter. So help me 
        God.
    and

        Whereas, integrity and objectivity in respect to issues and 
    causes to be presented to the United States Supreme Court for final 
    determination make it mandatory that Members thereof refrain from 
    public advocacy of a position on any matter that may come before 
    the High Court lest public confidence in this constitutionally co-
    equal judicial body be undermined, and
        Whereas, the said William Orville Douglas has, on frequent 
    occasions in published writings, speeches, lectures and statements, 
    declared a personal position on issues to come before the United 
    States Supreme Court indicative of a prejudiced and nonjudicial 
    attitude incompatible with good behavior and contrary to the 
    requirements of judicial decorum obligatory upon the Federal 
    judiciary in general and members of the United States Supreme Court 
    in particular, and
        Whereas, by the aforementioned conduct and writings, the said 
    William Orville Douglas has established himself before the public, 
    including liti

[[Page 2154]]

    gants whose lives, rights and future are seriously affected by 
    decisions of the Court of which the said William Orville Douglas is 
    a member, as a partisan advocate and not as a judge, and
        Whereas, by indicating in advance of Supreme Court decisions, 
    on the basis of declared, printed, or quoted convictions, how he 
    would decide matters in controversy pending and to become pending 
    before the Court of which he is a member, the said William Orville 
    Douglas has committed the high misdemeanor of undermining the 
    integrity of the highest constitutional Court in America, and has 
    willfully and deliberately undermined public confidence in the said 
    Court as an institution, and
        Whereas, contrary to his Oath of Office as well as patently in 
    conflict with the Canons of Ethics for the Judiciary of the 
    American Bar Association, the said William Orville Douglas 
    nevertheless on February 19, 1970, did publish and publicly 
    distribute throughout the United States, statements encouraging, 
    aggravating and inciting violence, anarchy and civil unrest in the 
    form of a book entitled ``Points of Rebellion'' in which the said 
    William Orville Douglas, all the while an incumbent on the Highest 
    Court of last resort in the United States, stated, among other 
    things, that:

            But where grievances pile high and most of the elected 
        spokesmen represent the Establishment, violence may be the only 
        effective response. (pp. 88-89, ``Points of Rebellion,'' Random 
        House, Inc., February 19, 1970, William O. Douglas.)
            The special interests that control government use its 
        powers to favor themselves and to perpetuate regimes of 
        oppression, exploitation, and discrimination against the many 
        (ibid, p. 92).
            People march and protest but they are not heard (ibid, p. 
        88).
            Where there is a persistent sense of futility, there is 
        violence; and that is where we are today (ibid, p. 56).
            The two parties have become almost indistinguishable; and 
        each is controlled by the Establishment. The modern day 
        dissenters and protesters are functioning as the loyal 
        opposition functions in England. They are the mounting voice of 
        political opposition to the status quo, calling for 
        revolutionary changes in our institutions. Yet the powers-that-
        be faintly echo Adolph Hitler (ibid, p. 57).
            Yet American protesters need not be submissive. A speaker 
        who resists arrest is acting as a free man (ibid, p. 6).
            We must realize that today's Establishment is the new 
        George III. Whether it will continue to adhere to his tactics, 
        we do not know. If it does, the redress, honored in tradition, 
        is also revolution (ibid, p. 95).
and thus willfully and deliberately fanned the fires of unrest, 
rebellion, and revolution in the United States, and

        Whereas, in the April 1970 issue of Evergreen Magazine, the 
    said William Orville Douglas for pay did, while an incumbent on the 
    United States Supreme Court, publish an article entitled Redress 
    and Revolution, appearing on page 41 of said issue immediately 
    following a malicious caricature of the President of the United 
    States as George III, as well as photographs of nudes engaging in 
    various acts of sexual intercourse, in which article the said 
    William Orville Douglas again wrote for pay that:

            George III was the symbol against which our Founders made a 
        revolution now considered bright and glorious. . . . We must 
        realize that to

[[Page 2155]]

        day's Establishment is the new George III. Whether it will 
        continue to adhere to his tactics, we do not know. If it does, 
        the redress, honored in tradition, is also Revolution.

    and

        Whereas, the said William Orville Douglas, prepared, authored, 
    and received payment for an article which appeared in the March 
    1969 issue of the magazine, Avant Garde, published by Ralph 
    Ginzburg, previously convicted of sending obscene literature 
    through the United States Mails, (see 383 U.S. 463) at a time when 
    the said Ralph Ginzburg was actively pursuing an appeal from his 
    conviction upon a charge of malicious libel before the Supreme 
    Court of the United States, yet nevertheless the said William 
    Orville Douglas, as a sitting member of the Supreme Court of the 
    United States, knowing full well his own financial relationship 
    with this litigant before the Court, sat in judgment on the 
    Ginzburg appeal, all in clear violation and conflict with his Oath 
    of Office, the Canons of Judicial Ethics, and Federal law (396 U.S. 
    1049), and
        Whereas, while an incumbent on the United States Supreme Court 
    the said William Orville Douglas for hire has served and is 
    reported to still serve as a Director and as Chairman of the 
    Executive Committee of the Center for the Study of Democratic 
    Institutions in Santa Barbara, California, a politically oriented 
    action organization which, among other things, has organized 
    national conferences designed to seek detente with the Soviet Union 
    and openly encouraged student radicalism, and

        Whereas, the said Center for the Study of Democratic 
    Institutions, in violation of the Logan Act, sponsored and financed 
    a ``Pacem in Terris II Convocation'' at Geneva, Switzerland, May 
    28-31, 1967, to discuss foreign affairs and U.S. foreign policy 
    including the ``Case of Vietnam'' and the ``Case of Germany'', to 
    which Ho Chi Minh was publicly invited, and all while the United 
    States was in the midst of war in which Communists directed by the 
    same Ho Chi Minh were killing American boys fighting to give South 
    Vietnam the independence and freedom from aggression we had 
    promised that Nation, and from this same Center there were paid to 
    the said William Orville Douglas fees of $500 per day for Seminars 
    and Articles, and
        Whereas, paid activity of this type by a sitting Justice of the 
    Supreme Court of the United States is contrary to his Oath of 
    Office to uphold the United States Constitution, violative the 
    Canons of Ethics of the American Bar Association and is believed to 
    constitute misdemeanors of the most fundamental type in the context 
    in which that term appears in the United States Constitution 
    (Article II, Section 4) as well as failing to constitute ``good 
    behavior'' as that term appears in the Constitution (Article III, 
    Section 1), upon which the tenure of all Federal judges is 
    expressly conditioned, and
        Whereas, moneys paid to the said William Orville Douglas from 
    and by the aforementioned Center are at least as follows: 1962, 
    $900; 1963, $800; 1965, $1,000; 1966, $1,000; 1968, $1,100; 1969, 
    $2,000; all during tenure on the United States Supreme Court, and 
    all while a Director on a Board of Directors that meets (and met) 
    biannually to determine the general policies of the Center, and

[[Page 2156]]

        Whereas, the said William Orville Douglas, contrary to his 
    sworn obligation to refrain therefrom and in violation of the 
    Canons of Ethics, has repeatedly engaged in political activity 
    while an incumbent of the High Court, evidenced in part by his 
    authorization for the use of his name in a recent political fund-
    raising letter, has continued public advocacy of the recognition of 
    Red China by the United States, has publicly criticized the 
    military posture of the United States, has authored for pay several 
    articles on subjects patently related to causes pending or to be 
    pending before the United States Supreme Court in Playboy Magazine 
    on such subjects as invasions of privacy and civil liberties, and 
    most recently has expressed in Brazil public criticism of United 
    States foreign policy while on a visit to Brazil in 1969, plainly 
    designed to undermine public confidence in South and Latin American 
    countries in the motives and objectives of the foreign policy of 
    the United States in Latin America, and
        Whereas, in addition to the foregoing, and while a sitting 
    Justice on the Supreme Court of the United States, the said William 
    Orville Douglas has charged, been paid and received $12,000 per 
    annum as President and Director of the Parvin Foundation from 1960 
    to 1969, which Foundation received substantial income from gambling 
    interests in the Freemont Casino at Las Vegas, Nevada, as well as 
    the Flamingo at the same location, accompanied by innumerable 
    conflicts of interest and overlapping financial maneuvers 
    frequently involved in litigation the ultimate appeal from which 
    could only be to the Supreme Court of which the said William 
    Orville Douglas was and is a member, the tenure of the said William 
    Orville Douglas with the Parvin Foundation being reported to have 
    existed since 1960 in the capacity of President, and resulting in 
    the receipt by the said William Orville Douglas from the Parvin 
    Foundation of fees aggregating at least $85,000, all while a member 
    of the United States Supreme Court, and all while referring to 
    Internal Revenue Service investigation of the Parvin Foundation 
    while a Justice of the United States Supreme Court as a 
    ``manufactured case'' intended to force him to leave the bench all 
    while he was still President and Director of the said Foundation 
    and was earning a $12,000 annual salary in those posts, a patent 
    conflict of interest, and
        Whereas, it has been repeatedly alleged that the said William 
    Orville Douglas in his position as President of the Parvin 
    Foundation did in fact give the said Foundation tax advice, with 
    particular reference to matters known by the said William Orville 
    Douglas at the time to have been under investigation by the United 
    States Internal Revenue Service, all contrary to the basic legal 
    and judicial requirement that a Supreme Court Justice may not give 
    legal advice, and particularly not for a fee, and
        Whereas, the said William Orville Douglas has, from time to 
    time over the past ten years, had dealings with, involved himself 
    with, and may actually have received fees and travel expenses, 
    either directly or indirectly, from known criminals, gamblers, and 
    gangsters or their representatives and associates, for services, 
    both within the United States and abroad, and
        Whereas, the foregoing conduct on the part of the said William 
    Orville

[[Page 2157]]

    Douglas while a Justice of the Supreme Court is incompatible with 
    his constitutional obligation to refrain from non-judicial activity 
    of a patently unethical nature, and
        Whereas, the foregoing conduct and other activities on the part 
    of the said William Orville Douglas while a sitting Justice on the 
    United States Supreme Court, establishes that the said William 
    Orville Douglas in the conduct of his solemn judicial 
    responsibilities has become a prejudiced advocate of predetermined 
    position on matters in controversy or to become in controversy 
    before the High Court to the demonstrated detriment of American 
    jurisprudence, and
        Whereas, from the foregoing, and without reference to whatever 
    additional relevant information may be developed through 
    investigation under oath, it appears that the said William Orville 
    Douglas, among other things, has sat in judgment on a case 
    involving a party from whom the said William Orville Douglas to his 
    knowledge received financial gain, as well as that the said William 
    Orville Douglas for personal financial gain, while a member of the 
    United States Supreme Court, has encouraged violence to alter the 
    present form of government of the United States of America, and has 
    received and accepted substantial financial compensation from 
    various sources for various duties incompatible with his judicial 
    position and constitutional obligation, and has publicly and 
    repeatedly, both orally and in writings, declared himself a 
    partisan on issues pending or likely to become pending before the 
    Court of which he is a member: Now, therefore, be it
        Resolved, That--
        (1) The Speaker of the House shall within fourteen days 
    hereafter appoint a select committee of six Members of the House, 
    equally divided between the majority and the minority parties and 
    shall designate one member to serve as chairman, which select 
    committee shall proceed to investigate and determine whether 
    Associate Justice William Orville Douglas has committed high crimes 
    and misdemeanors as that phrase appears in the Constitution, 
    Article II, Section 4, or has, while an incumbent, failed to be of 
    the good behavior upon which his Commission as said Justice is 
    conditioned by the Constitution, Article III, Section 1. The select 
    committee shall report to the House the results of its 
    investigation, together with its recommendations on this resolution 
    for impeachment of the said William Orville Douglas not later than 
    ninety days following the designation of its full membership by the 
    Speaker.
        (2) For the purpose of carrying out this resolution the 
    committee, or any subcommittee thereof, is authorized to sit and 
    act during the present Congress at such times and places within the 
    United States whether the House is sitting, has recessed, or has 
    adjourned, to hold such hearings, and to require by subpena or 
    otherwise, the attendance and testimony of such witnesses and the 
    production of such books, records, correspondence, memorandums, 
    papers, and documents as it deems necessary. Subpenas may be issued 
    under the signature of the chairman of the committee or any member 
    of the committee designated by him, and may be served by any person 
    designated by such chairman or member.

[[Page 2158]]

    Parliamentarian's Note: On Apr. 24, 1970, Chairman William M. 
Colmer, of Mississippi, of the Committee on Rules stated that pursuant 
to the statement of Emanuel Celler, of New York, Chairman of the 
Committee on the Judiciary, that the latter committee would hold 
hearings and take action on the impeachment within 60 days, he would 
not program for consideration by the Committee on Rules the resolutions 
creating a select committee to study the charges of impeachment.

Sec. 14.15 A subcommittee of the Committee on the Judiciary 
    investigated charges of impeachable offenses against Associate 
    Justice William O. Douglas and issued an interim report.

    On June 20, 1970, the special subcommittee of the Committee on the 
Judiciary on House Resolution 920, impeaching Associate Justice 
Douglas, issued an interim report on the progress of its investigation 
of the charges.(12) The creation of the subcommittee and 
scope of its authority was set out on the first page of the report:
---------------------------------------------------------------------------
12. First report by the special subcommittee on H. Res. 920 of the 
        Committee on the Judiciary, committee print, 91st Cong; 2d 
        Sess., June 20, 1970.
---------------------------------------------------------------------------

                                I. Authority

        On April 21, 1970, the Committee on the Judiciary adopted a 
    resolution to authorize the appointment of a Special Subcommittee 
    on H. Res. 920, a resolution impeaching William O. Douglas, 
    Associate Justice of the Supreme Court of the United States, of 
    high crimes and misdemeanors in office. Pursuant to this 
    resolution, the following members were appointed: Emanuel Celler 
    (New York), Chairman; Byron G. Rogers (Colorado); Jack Brooks 
    (Texas); William M. McCulloch (Ohio); and Edward Hutchinson 
    (Michigan).
        The Special Subcommittee on H. Res. 920 is appointed and 
    operates under the Rules of the House of Representatives. Rule XI, 
    13(f) empowers the Committee on the Judiciary to act on all 
    proposed legislation, messages, petitions, memorials, or other 
    matters relating to ``. . . Federal courts and judges.'' In the 
    91st Congress, Rule XI has been implemented by H. Res. 93, February 
    5, 1969. H. Res. 93 authorizes the Committee on the Judiciary, 
    acting as a whole or by subcommittee, to conduct full and complete 
    investigations and studies on the matters coming within its 
    jurisdiction, specifically ``. . . (4) relating to judicial 
    proceedings and the administration of Federal courts and personnel 
    thereof, including local courts in territories and possessions''.
        H. Res. 93 empowers the Committee to issue subpenas, over the 
    signature of the Chairman of the Committee or any Member of the 
    Committee designated by him. Subpenas issued by

[[Page 2159]]

    the Committee may be served by any person designated by the 
    Chairman or such designated Member.

        On April 28, 1970, the Special Subcommittee on H. Res. 920 held 
    its organization meeting, appointed staff, and adopted procedures 
    to be applied during the investigation. Although the power to issue 
    subpenas is available, and the Subcommittee is prepared to use 
    subpenas if necessary to carry out this investigation, thus far all 
    potential witnesses have been cooperative and it has not been 
    necessary to employ this investigatory tool. The Special 
    Subcommittee operates under procedures established in paragraph 27, 
    Rules of Committee Procedure, of Rule XI of the House of 
    Representatives. These procedures will be followed until additional 
    rules are adopted, which, on the basis of precedent in other 
    impeachment proceedings, are determined by the Special Subcommittee 
    to be appropriate.

    The subcommittee held no hearings but gathered information on the 
various charges contained in House Resolution 922. As stated in the 
report, the subcommittee requested inspection of tax returns of Justice 
Douglas. Pursuant to advice by the Internal Revenue Service that a 
special resolution of the full committee would be required, as well as 
an executive order by the President, the committee adopted the 
following resolution on May 26, 1970:

     Resolution for Special Subcommittee to Consider House Resolution 
                                    920

        Resolved, That the Special Subcommittee to consider H. Res. 
    920, a resolution impeaching William O. Douglas, Associate Justice 
    of the Supreme Court of the United States, of high crimes and 
    misdemeanors in office, hereby is authorized and directed to obtain 
    and inspect from the Internal Revenue Service any and all materials 
    and information relevant to its investigation in the files of the 
    Internal Revenue Service, including tax returns, investigative 
    reports, or other documents, that the Special Subcommittee to 
    consider H. Res. 920 determines to be within the scope of H. Res. 
    920 and the various related resolutions that have been introduced 
    into the House of Representatives.
        The Special Subcommittee on H. Res. 920 is authorized to make 
    such requests to the Internal Revenue Service as the Subcommittee 
    determines to be appropriate, and the Subcommittee is authorized to 
    amend its requests to designate such additional persons, taxpayers, 
    tax returns, investigative reports, and other documents as the 
    Subcommittee determines to be appropriate during the course of this 
    investigation.
        The Special Subcommittee on H. Res. 920 may designate agents to 
    examine and receive information from the Internal Revenue Service.
        This resolution specifically authorizes and directs the Special 
    Subcommittee to obtain and inspect from the Internal Revenue 
    Service the documents and other file materials described in the 
    letter dated May 12, 1970, from Chairman Emanuel Celler to the 
    Honorable Randolph Thrower. The tax returns for the following 
    taxpayers, and the returns for such additional taxpayers as the 
    Subcommittee subsequently may request, are included in this 
    resolution:

[[Page 2160]]

            Associate Justice William O. Douglas, Supreme Court of the 
        United States, Washington, D. C. 20036.
            Albert Parvin, 1900 Avenue of the Stars, Suite 1790, 
        Century City, Calif. 90067.
            Albert Parvin Foundation, c/o Arnold & Porter, 1229-19th 
        Street, N. W., Washington, D.C. 20036.
            The Center for the Study of Democratic Institutions, Box 
        4068, Santa Barbara, Calif. 93103.
            Fund for the Republic, 136 East 57th Street, New York, N.Y. 
        10022.
            Parvin-Dohrmann Corp., (Now Recrion Corp.), 120 N. 
        Robertson Blvd., Los Angeles, Calif. 90048.(13)
---------------------------------------------------------------------------
13. Subcommittee report at pp. 18, 19.
---------------------------------------------------------------------------

    The President subsequently issued the following executive order:

    Inspection of Tax Returns by the Committee on the Judiciary, House 
                             of Representatives

        By virtue of the authority vested in me by sections 55(a) and 
    1604(c) of the Internal Revenue Code of 1939, as amended (26 U.S.C. 
    (1952 ea.) 55(a), 1604(c)), and by sections 6103(a) and 6106 of the 
    Internal Revenue Code of 1954, as amended (26 U.S.C. 6103(a), 
    6106), it is hereby ordered that any income, excess-profits, 
    estate, gift, unemployment, or excise tax return, including all 
    reports, documents, or other factual data relating thereto, shall, 
    during the Ninety-first Congress, be open to inspection by the 
    Committee on the Judiciary, House of Representatives, or any duly 
    authorized subcommittee thereof, in connection with its 
    consideration of House Resolution 920, a resolution impeaching 
    William O. Douglas, Associate Justice of the Supreme Court of the 
    United States. Whenever a return is open to inspection by such 
    Committee or subcommittee, a copy thereof shall, upon request, be 
    furnished to such Committee or subcommittee. Such inspection shall 
    be in accordance and upon compliance with the rules and regulations 
    prescribed by the Secretary of the Treasury in Treasury Decisions 
    6132 and 6133, relating to the inspection of returns by committees 
    of the Congress, approved by the President on May 3, 
    1955.(14)
---------------------------------------------------------------------------
14. Exec. Order No. 11535, issued June 12, 1970, subcommittee report at 
        p. 19.
---------------------------------------------------------------------------

    The subcommittee recommended in its first report that the Committee 
on the Judiciary authorize an additional 60 days for the subcommittee 
to complete its investigation.(15)
---------------------------------------------------------------------------
15. Subcommittee report at pp. 25, 26.
---------------------------------------------------------------------------

Sec. 14.16 In its final report on its investigation into charges of 
    impeachment against Associate Justice William O. Douglas, a 
    subcommittee of the Committee on the Judiciary concluded that a 
    federal judge could be impeached (1) for judicial conduct which is 
    criminal or which is a serious dereliction from public duty, and 
    (2) for nonjudicial conduct which is criminal; the subcommittee 
    recommended that the evidence

[[Page 2161]]

    against Justice Douglas did not warrant impeachment.

    On Sept. 17, 1970, the Special Subcommittee on House Resolution 920 
of the Committee on the Judiciary, which subcommittee had been created 
by the committee to investigate and report on charges of impeachment 
against Associate Justice Douglas of the Supreme Court, submitted its 
final report to the committee.(16)
---------------------------------------------------------------------------
16. Final report by the Special Subcommittee on H. Res. 920 of the 
        Committee on the Judiciary, committee print, Committee on the 
        Judiciary, 91st Cong. 2d Sess., Sept. 17, 1970.
---------------------------------------------------------------------------

    The report cited the 60-day extension granted the subcommittee by 
the Committee on the Judiciary on June 24, 1970, to complete its 
investigation. The report summarized the further investigation 
undertaken during the 60-day period and the additional requests for 
information from the Department of State, the Central Intelligence 
Agency, and various individuals.(17)
---------------------------------------------------------------------------
17. The subcommittee issued on Aug. 11, 1970, a special subcommittee 
        publication entitled ``Legal Materials on Impeachment,'' 
        containing briefs on the impeachment of Justice Douglas, 
        information from the Library of Congress, and relevant extracts 
        from Hinds' and Cannon's Precedents.
---------------------------------------------------------------------------

    The report discussed concepts of impeachment and grounds for 
impeachment of federal civil officers and of federal judges in 
particular. The report concluded as follows on the grounds for 
impeachment of a federal judge:

        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 nonjudicial 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

[[Page 2162]]

        (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. . . . 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 [sic] 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.''
        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.(18)
---------------------------------------------------------------------------
18. Special subcommittee report at pp. 37-39. For the entire portion of 
        the subcommittee report entitled ``Concepts of Impeachment'', 
        see Sec. 3.13, supra.
---------------------------------------------------------------------------

    The subcommittee's recommendation to the full committee read as 
follows:

     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 preparation of 
    charges on any acceptable concept of an impeachable 
    offense.(19)
---------------------------------------------------------------------------
19. Special subcommittee report at p. 349.
---------------------------------------------------------------------------
                          Emanuel Celler,
                          Byron G. Rogers,
                          Jack Brooks.

[[Page 2163]]

    The report included minority views of Mr. Edward Hutchinson, of 
Michigan, stating (1) that the portion of the report on concepts of 
impeachment was mere dicta under the circumstances and (2) that the 
investigation was incomplete and should have been further pursued, not 
only as to impeachment for improper conduct but also as to other action 
such as censure or official rebuke:

        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.
        The Subcommittee's report, which is called a final report, 
    addresses itself only to the question of impeachment. Admittedly no 
    investigation has been undertaken to determine whether some of the 
    Justice's activities, if not impeachable, seem so improper as to 
    merit congressional censure or other official criticism by the 
    House. There is considerable precedent for censure or other 
    official rebuke even though a particular activity, while improper, 
    was found not impeachable. This Subcommittee, however, did not 
    investigate with the thoroughness requisite for judging 
    questionable activities short of impeachment. The majority 
    concludes that it finds no grounds for impeachment and stops there. 
    In my opinion, it should have pursued the matter further. 
    (20)
---------------------------------------------------------------------------
20. Id. at pp. 351, 352.
---------------------------------------------------------------------------

    The Committee on the Judiciary discontinued further proceedings 
against Justice Douglas, and the matter was not further considered by 
the House.(1)
---------------------------------------------------------------------------
 1. For remarks on the final subcommittee report and the Judiciary 
        Committee's failure to act on the final report, see 116 Cong. 
        Rec. 43147, 43148, 91st Cong. 2d Sess., Dec. 21, 1970 (remarks 
        of Mr. David W. Dennis [Ind.]). For the minority views on the 
        report of Mr. Hutchinson, printed in the Record, see 116 Cong. 
        Rec. 43486, 91st Cong. 2d Sess., Dec. 22, 1970.
---------------------------------------------------------------------------

Charges Against Vice President Agnew

Sec. 14.17 The Speaker laid before the House in the 93d Con

[[Page 2164]]

    gress a communication from Vice President Spiro Agnew requesting 
    the House to initiate an investigation of charges which might 
    ``assume the character of impeachable offenses,'' made against him 
    during an investigation by a U.S. Attorney, and offering the House 
    full cooperation in such a House investigation. No action was taken 
    on the request.

    On Sept. 25, 1973,(2) Speaker Carl Albert, of Oklahoma, 
laid before the House a communication from Vice President Agnew 
requesting that the House investigate certain charges brought against 
him by a U.S. Attorney:

        The Speaker laid before the House the following communication 
    from the Vice President of the United States:
---------------------------------------------------------------------------
 2. 119 Cong. Rec. 31368, 93d Cong. 1st Sess.
---------------------------------------------------------------------------
                                             The Vice President,
                                   Washington, September 25, 1973.
                                                   Hon. Carl Albert,
              Speaker of the House of Representatives, the House of 
                                   Representatives, Washington, D.C.

            Dear Mr. Speaker: I respectfully request that the House of 
        Representatives undertake a full inquiry into the charges which 
        have apparently been made against me in the course of an 
        investigation by the United States Attorney for the District of 
        Maryland.
            This request is made in the dual interests of preserving 
        the Constitutional stature of my Office and accomplishing my 
        personal vindication.
            After the most careful study, my counsel have advised me 
        that the Constitution bars a criminal proceeding of any kind--
        federal or state, county or town--against a President or Vice 
        President while he holds office.
            Accordingly, I cannot acquiesce in any criminal proceeding 
        being lodged against me in Maryland or elsewhere. And I cannot 
        look to any such proceeding for vindication.
            In these circumstances, I believe, it is the right and duty 
        of the Vice President to turn to the House. A closely parallel 
        precedent so suggests.
            Almost a century and a half ago, Vice President Calhoun was 
        beset with charges of improper participation in the profits of 
        an Army contract made while he had been Secretary of War. On 
        December 29, 1826, he addressed to your Body a communication 
        whose eloquent language I can better quote than rival:
            ``An imperious sense of duty, and a sacred regard to the 
        honor of the station which I occupy, compel me to approach your 
        body in its high character of grand inquest of the nation.
            ``Charges have been made against me of the most serious 
        nature, and which, if true ought to degrade me from the high 
        station in which I have been placed by the choice of my fellow-
        citizens, and to consign my name to perpetual infamy.
            ``In claiming the investigation of the House, I am sensible 
        that, under our free and happy institutions, the conduct of 
        public servants is a fair subject of the closest scrutiny and 
        the freest remarks, and that a firm and faithful discharge of 
        duty affords, ordinarily, ample protection against political 
        attacks; but, when such attacks assume the character of 
        impeachable offenses, and become, in some degree, official, by 
        being placed among the public records, an officer thus 
        assailed, however base the instrument used, if conscious of 
        inno

[[Page 2165]]

        cence, can look for refuge only to the Hall of the immediate 
        Representatives of the People.''
            Vice President Calhoun concluded his communication with a 
        ``challenge'' to ``the freest investigation of the House, as 
        the only means effectively to repel this premeditated attack.'' 
        Your Body responded at once by establishing a select committee, 
        which subpoenaed witnesses and documents, held exhaustive 
        hearings, and submitted a Report on February 13, 1827. The 
        Report, exonerating the Vice President of any wrongdoing, was 
        laid on the table (together with minority views even more 
        strongly in his favor) and the accusations were thereby put to 
        rest.
            Like my predecessor Calhoun I am the subject of public 
        attacks that may ``assume the character of impeachable 
        offenses,'' and thus require investigation by the House as the 
        repository of ``the sole Power of Impeachment'' and the ``grand 
        inquest of the nation.'' No investigation in any other forum 
        could either substitute for the investigation by the House 
        contemplated by Article I, Section 2, Clause 5 of the 
        Constitution or lay to rest in a timely and definitive manner 
        the unfounded charges whose currency unavoidably jeopardizes 
        the functions of my Office.
            The wisdom of the Framers of the Constitution in making the 
        House the only proper agency to investigate the conduct of a 
        President or Vice President has been borne out by recent 
        events. Since the Maryland investigation became a matter of 
        public knowledge some seven weeks ago, there has been a 
        constant and ever-broadening stream of rumors, accusations and 
        speculations aimed at me. I regret to say that the source, in 
        many instances, can have been only the prosecutors themselves.
            The result has been so to foul the atmosphere that no grand 
        or petit jury could fairly consider this matter on the merits.
            I therefore respectfully call upon the House to discharge 
        its Constitutional obligation.
            I shall, of course, cooperate fully. As I have said before, 
        I have nothing to hide. I have directed my counsel to deliver 
        forthwith to the Clerk of the House all of my original records 
        of which copies have previously been furnished to the United 
        States Attorney. If there is any other way in which I can be of 
        aid, I am wholly at the disposal of the House.
            I am confident that, like Vice President Calhoun, I shall 
        be vindicated by the House.
              Respectfully yours
                                                 Spiro T. Agnew.

    On Sept. 26, 1973,(3) Majority Leader Thomas P. O'Neill, 
Jr., of Massachusetts, made an announcement in relation to Vice 
President Agnew's request for an investigation into possible 
impeachable offenses against him:

        (Mr. O'Neill asked and was given permission to address the 
    House for 1 minute and to revise and extend his remarks.)
---------------------------------------------------------------------------
 3. Id. at p. 31453.
---------------------------------------------------------------------------

        Mr. O'Neill: Mr. Speaker, I rise at this time merely to make an 
    announcement to the House that in the press conference the Speaker 
    made the following statement:

            The Vice President's letter relates to matters before the 
        courts. In view of that fact, I, as Speaker, will not take any 
        action on the letter at this time.

    The House took no action on the Vice President's request, although

[[Page 2166]]

resolutions were introduced on Sept. 26, 1973, calling for 
investigation of the charges referred to by the Vice President, such 
charges to be investigated by the Committee on the Judiciary or by a 
select committee.(4)
---------------------------------------------------------------------------
 4. See H. Res. 566, H. Res. 567, H. Res. 569, H. Res. 570, referred to 
        the Committee on Rules.
---------------------------------------------------------------------------

    Parliamentarian's Note: The request cited by the Vice President in 
his letter was made by Vice President John Calhoun in 1826 and is 
discussed at 3 Hinds' Precedents Sec. 1736. On that occasion, the 
alleged charges related to the Vice President's former tenure as 
Secretary of War. The communication 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.
    In 1873, however, the Committee on the Judiciary reported that a 
civil officer, in that case Vice President Schuyler Colfax, could not 
be impeached for offenses allegedly committed prior to his term of 
office as a civil officer under the United States. The committee had 
investigated whether Vice President Colfax had, during his prior term 
as Speaker of the House, been involved in bribes of Members. As 
reported in 3 Hinds' Precedents Sec. 2510, the committee concluded as 
follows in its report to the House:

        But we are to consider, taking the harshest construction of the 
    evidence, whether the receipt of a bribe by a person who afterwards 
    becomes a civil officer of the United States, even while holding 
    another official position, is an act upon which an impeachment can 
    be grounded to subject him to removal from an office which he 
    afterwards holds. To elucidate this we first turn to the 
    precedents.
        Your committee find that in all cases of impeachment or 
    attempted impeachment under our Constitution there is no instance 
    where the accusation was not in regard to an act done or omitted to 
    be done while the officer was in office. In every case it has been 
    heretofore considered material that the articles of impeachment 
    should allege in substance that, being such officer, and while in 
    the exercise of the duties of his office, the accused committed the 
    acts of alleged inculpation.

    Vice President Agnew resigned his office as Vice President on Oct. 
10, 1973. A resolution of inquiry (H. Res. 572), referred to the 
Committee on the Judiciary on Oct. 1, 1973, and directing the Attorney 
General to inform the

[[Page 2167]]

House of facts relating to Vice President Agnew's conduct, was 
discharged by unanimous consent on Oct. 10, 1973, and laid on the 
table.(5)
---------------------------------------------------------------------------
 5. 119 Cong. Rec. 33687, 93d Cong. 1st Sess.
---------------------------------------------------------------------------



 
                               CHAPTER 14
 
                           Impeachment Powers
 
                       D. HISTORY OF PROCEEDINGS
 
Sec. 15. Impeachment Proceedings Against President Nixon

                            Cross Reference
Portions of the final report of the Committee on the Judiciary, 
    pursuant to its investigation into the conduct of the President, 
    relating to grounds for Presidential impeachment and forms of 
    articles of impeachment, see Sec. Sec. 3.3, 3.7, 3.8, supra.

                         Collateral References
Debate on Articles of Impeachment, Hearings of the Committee on the 
    Judiciary pursuant to House Resolution 803, 93d Cong. 2d Sess., 
    July 24, 25, 26, 27, 29, and 30, 1974.
Impeachment of Richard M. Nixon, President of the United States, Report 
    of the Committee on the Judiciary, H. Rept. No. 93-1305, 93d Cong. 
    2d Sess., Aug. 20, 1974, printed in full in the Congressional 
    Record, 120 Cong. Rec. 29219-361, 93d Cong. 2d Sess., Aug. 20, 
    1974.
Impeachment, Selected Materials, Committee on the Judiciary, H. Doc. 
    No. 93-7, 93d Cong. 1st Sess., Oct. 1973.
Impeachment, Selected Materials on Procedure, Committee on the 
    Judiciary, Committee Print, 93d Cong. 2d Sess., Jan. 
    1974.                          -------------------

Introduction of Impeachment Charges Against the President

Sec. 15.1 Various resolutions were introduced in the 93d Congress, 
    first session, relating to the impeachment of President Richard M. 
    Nixon, some directly calling for his censure or impeachment and 
    some calling for an investigation by the Committee on the Judiciary 
    or by a select committee; the former were referred to the Committee 
    on the Judiciary and the latter were referred to the Committee on 
    Rules.

    On Oct. 23, 1973, resolutions calling for the impeachment of 
President Nixon or for investigations towards that end were introduced 
in the House by their being placed in the hopper pursuant to Rule XXII 
clause 4. The resolutions were referred as follows:

            By Mr. Long of Maryland:

        H. Con. Res. 365. Concurrent resolution of censureship without 
    prejudice to impeachment; to the Committee on the Judiciary.

            By Ms. Abzug:

        H. Res. 625. Resolution impeaching Richard M. Nixon, President 
    of the

[[Page 2168]]

    United States, for high crimes and misdemeanors; to the Committee 
    on the Judiciary.

            By Mr. Ashley:

        H. Res. 626. Resolution directing the Committee on the 
    Judiciary to investigate whether there are grounds for the 
    impeachment of Richard M. Nixon; to the Committee on Rules.

            By Mr. Bingham:

        H. Res. 627. Resolution directing the Committee on the 
    Judiciary to inquire into and investigate whether grounds exist for 
    the impeachment of Richard M. Nixon; to the Committee on Rules.
            By Mr. Burton (for himself, Ms. Abzug, Mr. Anderson of 
                California, Mr. Aspin, Mr. Bergland, Mr. Bingham, Mr. 
                Brasco, Mr. Brown of California, Mr. Boland, Mr. 
                Brademas, Mrs. Chisholm, Mr. Culver, Mr. Conyers, Mr. 
                Dellums, Mr. Drinan, Mr. Eckhardt, Mr. Edwards of 
                California, Mr. Evans of Colorado, Mr. Fascell, Mr. 
                Fauntroy, Mr. Foley, Mr. William D. Ford, Mr. Fraser, 
                Mr. Giaimo, and Ms. Grasso):

        H. Res. 628. Resolution directing the Committee on the 
    Judiciary to inquire into and investigate whether grounds exist for 
    the impeachment of Richard M. Nixon; to the Committee on Rules. . . 
    .

            By Mr. Hechler of West Virginia:

        H. Res. 631. Resolution that Richard M. Nixon, President of the 
    United States, is impeached of high crimes and misdemeanors; to the 
    Committee on the Judiciary.

            By Mrs. Heckler of Massachusetts:

        H. Res. 632. Resolution to appoint a Special Prosecutor; to the 
    Committee on the Judiciary. . . .

            By Mr. McCloskey:

        H. Res. 634. Resolution of inquiry; to the Committee on the 
    Judiciary.
        H. Res. 635. Resolution for the impeachment of Richard M. 
    Nixon; to the Committee on the Judiciary.

            By Mr. Mazzoli:

        H. Res. 636. Resolution: an inquiry into the existence of 
    grounds for the impeachment of Richard M. Nixon, President of the 
    United States; to the Committee on Rules.

            By Mr. Milford:

        H. Res. 637. Resolution providing for the establishment of an 
    Investigative Committee to investigate alleged Presidential 
    misconduct; to the Committee on Rules.

            By Mr. Mitchell of Maryland (for himself, Mr. Burton, and 
                Mr. Fauntroy):

        H. Res. 638. Resolution impeaching Richard M. Nixon, President 
    of the United States, of high crimes and misdemeanors; to the 
    Committee on the Judiciary.(6)
---------------------------------------------------------------------------
 6. 119 Cong. Rec. 34873, 93d Cong. 1st Sess.
            The first resolution in the 93d Congress calling for 
        President Nixon's impeachment was introduced by Mr. Robert F. 
        Drinan (Mass.), on July 31, 1973, H. Res. 513, 93d Cong. 1st 
        Sess. (placed in hopper and referred to Committee on the 
        Judiciary).
            In the 92d Congress, second session, resolutions were 
        introduced impeaching the President for his conduct of the 
        Vietnam conflict. See H. Res. 976 and H. Res. 989, 92d Cong. 2d 
        Sess.

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

[[Page 2169]]

    Parliamentarian's Note: The resolutions were introduced following 
the President's dismissal of Special Prosecutor Cox, of the Watergate 
Special Prosecution Force investigating Presidential campaign 
activities, and the resignation of Attorney General 
Richardson.(7)

Authority for Judiciary Committee Investigation

Sec. 15.2 Although the House had adopted a resolution authorizing the 
    Committee on the Judiciary, to which had been referred resolutions 
    impeaching President Richard M. Nixon, to conduct investigations 
    (with subpena power) within its jurisdiction as such jurisdiction 
    was defined in Rule XI clause 13, and although the House had 
    adopted a resolution intended to fund expenses of the impeachment 
    inquiry by the committee, the committee reported and called up as 
    privileged a subsequent resolution specifically mandating an 
    impeachment investigation and continuing the availability of funds, 
    in order to confirm the delegation of authority from the House to 
    that committee to conduct the investigation.
---------------------------------------------------------------------------
 7. Comments were delivered in the House on Oct. 23, 1973, on actions 
        of the President. See, for example, the comments of Majority 
        Leader Thomas P. O'Neill, Jr. (Mass.), at 119 Cong. Rec. 34819, 
        93d Cong. 1st Sess.
---------------------------------------------------------------------------

    On Feb. 6, 1974, Peter W. Rodino, Jr., of New Jersey, Chairman of 
the Committee on the Judiciary, called up for immediate consideration 
House Resolution 803, authorizing the committee to investigate the 
sufficiency of grounds for the impeachment of President Nixon, which 
resolution had been reported by the committee on Feb. 1, 1974.
    The resolution read as follows:

                                H. Res. 803

        Resolved, That the Committee on the Judiciary, acting as a 
    whole or by any subcommittee thereof appointed by the chairman for 
    the purposes hereof and in accordance with the rules of the 
    committee, is authorized and directed to investigate fully and 
    completely whether sufficient grounds exist for the House of 
    Representatives to exercise its constitutional power to impeach 
    Richard M. Nixon, President of the United States of America. The 
    committee shall report to the House of Representatives such 
    resolutions, articles of impeachment, or other recommendations as 
    it deems proper.

        Sec. 2. (a) For the purpose of making such investigation, the 
    committee is authorized to require--

[[Page 2170]]

        (1) by subpena or otherwise--
        (A) the attendance and testimony of any person (including at a 
    taking of a deposition by counsel for the committee); and
        (B) the production of such things; and
        (2) by interrogatory, the furnishing of such information; as it 
    deems necessary to such investigation.
        (b) Such authority of the committee may be exercised--
        (1) by the chairman and the ranking minority member acting 
    jointly, or, if either declines to act, by the other acting alone, 
    except that in the event either so declines, either shall have the 
    right to refer to the committee for decision the question whether 
    such authority shall be so exercised and the committee shall be 
    convened promptly to render that decision; or
        (2) by the committee acting as a whole or by subcommittee. 
    Subpenas and interrogatories so authorized may be issued over the 
    signature of the chairman, or ranking minority member, or any 
    member designated by either of them, and may be served by any 
    person designated by the chairman, or ranking minority member, or 
    any member designated by either of them. The chairman, or ranking 
    minority member, or any member designated by either of them (or, 
    with respect to any deposition, answer to interrogatory, or 
    affidavit, any person authorized by law to administer oaths) may 
    administer oaths to any witness. For the purposes of this section, 
    ``things'' includes, without limitation, books, records, 
    correspondence, logs, journals, memorandums, papers, documents, 
    writings, drawings, graphs, charts, photographs, reproductions, 
    recordings, tapes, transcripts, printouts, data compilations from 
    which information can be obtained (translated if necessary, through 
    detection devices into reasonably usable form), tangible objects, 
    and other things of any kind.
        Sec. 3. For the purpose of making such investigation, the 
    committee, and any subcommittee thereof, are authorized to sit and 
    act, without regard to clause 31 of rule XI of the Rules of the 
    House of Representatives, during the present Congress at such times 
    and places within or without the United States, whether the House 
    is meeting, has recessed, or has adjourned, and to hold such 
    hearings, as it deems necessary.
        Sec. 4. Any funds made available to the Committee on the 
    Judiciary under House Resolution 702 of the Ninety-third Congress, 
    adopted November 15, 1973, or made available for the purpose 
    hereafter, may be expended for the purpose of carrying out the 
    investigation authorized and directed by this resolution.

    Mr. Rodino and Mr. Edward Hutchinson, of Michigan, the ranking 
minority member of the Committee on the Jucliciary, explained the 
purpose of the resolution, which had been adopted unanimously by the 
committee, as follows:

        Mr. Rodino: Mr. Speaker, I yield myself such time as I may 
    consume.
        Mr. Speaker, the English statesman Edmund Burke said, in 
    addressing an important constitutional question, more than 200 
    years ago:

[[Page 2171]]

            We stand in a situation very honorable to ourselves and 
        very useful to our country, if we do not abuse or abandon the 
        trust that is placed in us.

        We stand in such a position now, and--whatever the result--we 
    are going to be just, and honorable, and worthy of the public 
    trust.
        Our responsibility in this is clear. The Constitution says, in 
    article I; section 2, clause 5:

            The House of Representatives, shall have the sole power of 
        impeachment.

        A number of impeachment resolutions were introduced by Members 
    of the House in the last session of the Congress. They were 
    referred to the Judiciary Committee by the Speaker.
        We have reached the point when it is important that the House 
    explicitly confirm our responsibility under the Constitution.
        We are asking the House of Representatives, by this resolution, 
    to authorize and direct the Committee on the Judiciary to 
    investigate the conduct of the President of the United States, to 
    determine whether or not evidence exists that the President is 
    responsible for any acts that in the contemplation of the 
    Constitution are grounds for impeachment, and if such evidence 
    exists, whether or not it is sufficient to require the House to 
    exercise its constitutional powers.
        As part of that resolution, we are asking the House to give the 
    Judiciary Committee the power of subpena in its investigations.
        Such a resolution has always been passed by the House. The 
    committee has voted unanimously to recommend that the House of 
    Representatives adopt this resolution. It is a necessary step if we 
    are to meet our obligations. . . .
        Mr. Hutchinson: Mr. Speaker, the first section of this 
    resolution authorizes and directs your Judiciary Committee to 
    investigate fully whether sufficient grounds exist to impeach the 
    President of the United States. This constitutes the first explicit 
    and formal action in the whole House to authorize such an inquiry.
        The last section of the resolution validates the use by the 
    committee of that million dollars allotted to it last November for 
    purposes of the impeachment inquiry. Members will recall that the 
    million dollar resolution made no reference to the impeachment 
    inquiry but merely allotted that sum of money to the committee to 
    be expended on matters within its jurisdiction. All Members of the 
    House understood its intended purpose.
        But the rule of the House defining the jurisdiction of 
    committees does not place jurisdiction over impeachment matters in 
    the Judiciary Committee. In fact, it does not place such 
    jurisdiction anywhere. So this resolution vests jurisdiction in the 
    committee over this particular impeachment matter, and it ratifies 
    the authority of the committee to expend for the purpose those 
    funds allocated to it last November, as well as whatever additional 
    funds may be hereafter authorized.8
---------------------------------------------------------------------------
 8. 120 Cong. Rec. 2349-51, 93d Cong. 2d Sess.
---------------------------------------------------------------------------

    Parliamentarian's Note: Until the adoption of House Resolution 803, 
the Committee on the Judici

[[Page 2172]]

ary had been conducting an investigation into the charges of 
impeachment against President Nixon under its general investigatory 
authority, granted by the House on Feb. 28, 1973 (H. Res. 74). The 
committee had hired special counsel for the impeachment inquiry on Dec. 
20, 1973, and had authorized the chairman to issue subpenas in relation 
to the inquiry on Oct. 30, 1973. House Resolution 74 authorized the 
Committee on the Judiciary to conduct investigations, and to issue 
subpenas during such investigations, within its jurisdiction ``as set 
forth in clause 13 of rule XI of the Rules of the House of 
Representatives.''
    That clause did not specifically include impeachments within the 
jurisdiction of the Committee on the Judiciary.
    The House had provided for the payment, from the contingent fund, 
of further expenses of the Committee on the Judiciary, in conducting 
investigations, following the introduction and referral to the 
committee of various resolutions proposing the impeachment of President 
Nixon. Debate on one such resolution, House Resolution 702, indicated 
that the additional funds for the investigations of the Committee on 
the Judiciary were intended in part for use in conducting an 
impeachment inquiry in relation to the President.(9)
---------------------------------------------------------------------------
 9. See H. Res. 702, 93d Cong. 1st Sess., Nov. 15, 1973.
---------------------------------------------------------------------------

    It was considered necessary for the House to specifically vest the 
Committee on the Judiciary with the investigatory and subpena power to 
conduct the impeachment investigation and to specifically provide for 
payment of resultant expenses from the contingent fund of the 
House.(10)
---------------------------------------------------------------------------
10. On Apr. 29, 1974, subsequent to the adoption of H. Res. 803, the 
        House adopted H. Res. 1027, authorizing further funds from the 
        contingent fund for the expenses of the impeachment inquiry and 
        other investigations within the jurisdiction of the Committee 
        on the Judiciary. The report on the resolution, from the 
        Committee on House Administration (H. Rept. No. 93-1009) 
        included a statement by Mr. Rodino on the status of the 
        impeachment inquiry and on the funds required for expenses and 
        salaries of the impeachment inquiry staff.
---------------------------------------------------------------------------

    As discussed in section 6, supra, House Resolution 803 was 
privileged, since reported by the committee to which resolutions of 
impeachment had been referred and since incidental to consideration of 
the impeachment question, although resolutions providing for funding 
from the contingent fund of the House are normally only

[[Page 2173]]

privileged when called up by the Committee on House Administration, and 
resolutions authorizing investigations are normally only privileged 
when called up by the Committee on Rules.

Preserving Confidentiality of Inquiry Materials

Sec. 15.3 The Committee on the Judiciary adopted Procedures preserving 
    the confidentiality of impeachment inquiry materials.

    On Feb. 22, 1974, the Committee on the Judiciary unanimously 
adopted procedures governing the confidentiality of the materials 
gathered in the impeachment inquiry into the conduct of President 
Richard Nixon. The first set of procedures, entitled ``Procedures for 
Handling Impeachment Inquiry Material,'' limited access to such 
materials to the chairman, ranking minority member, special counsel, 
and special counsel to the minority of the committee, until the actual 
presentation of evidence at hearings. Confidentiality was to be 
strictly preserved.
    The second set of procedures, entitled ``Rules for the Impeachment 
Inquiry Staff,'' provided for security and nondisclosure of impeachment 
inquiry materials and work product of the inquiry staff.(11)
---------------------------------------------------------------------------
11. For the text of the rules, see Sec. 6.9, supra.
---------------------------------------------------------------------------

Determining Grounds for Presidential Impeachment

Sec. 15.4 During the inquiry into charges against President Richard M. 
    Nixon by the Committee on the Judiciary, the impeachment inquiry 
    staff reported to the committee on the constitutional grounds for 
    Presidential impeachment, as drawn from the historical origins of 
    impeachment and the American impeachment cases.

    On Feb. 22, 1974, Peter W. Rodino, Jr., of New Jersey, Chairman of 
the Committee on the Judiciary, made available a report by the inquiry 
staff on the conduct of President Nixon. The report, entitled 
``Constitutional Grounds for Presidential Impeachment,'' summarized the 
historical origins and constitutional bases for impeachment and 
chronicled the American impeachment cases.
    The report, printed as a committee print, did not necessarily 
reflect the views of the committee or its members, but was entirely a 
staff report. The staff concluded, in reviewing the issue whether

[[Page 2174]]

impeachable offenses were required to be criminal or indictable 
offenses, that such was not the case under the English and American 
impeachment precedents.(12)
---------------------------------------------------------------------------
12. For the text of the report, see the appendix to this chapter, 
        infra.
            The conclusion of the staff report was included in the 
        final report of the Committee on the Judiciary recommending 
        impeachment of the President. (H. Rept. No. 93-1305, by the 
        Committee on the Judiciary.) See 120 Cong. Rec. 29220, 29221, 
        93d Cong. 2d Sess., Aug. 20, 1974.
            The minority views included in the committee report reached 
        an opposite conclusion from that of the staff report and from 
        that of the majority of the committee, which determined to 
        impeach the President for both criminal and noncriminal conduct 
        (see Sec. 3.8, supra, for the minority views and Sec. 3.7, 
        supra, for the majority views on the issue).
---------------------------------------------------------------------------

Status Reports

Sec. 15.5 During the impeachment inquiry involving President Richard M. 
    Nixon, the inquiry staff of the Committee on the Judiciary reported 
    to the committee on the status of its investigation.

    On Mar. 1, 1974, the staff for the impeachment inquiry reported to 
the Committee on the Judiciary on the status of its investigative work 
(summarized in the committee's final report) with respect to specified 
allegations:

        A. Allegations concerning domestic surveillance activities 
    conducted by or at the direction of the White House.
        B. Allegations concerning intelligence activities conducted by 
    or at the direction of the White House for the purpose of the 
    Presidential election of 1972.
        C. Allegations concerning the Watergate break-in and related 
    activities, including alleged efforts by persons in the White House 
    and others to ``cover up'' such activities and others.
        D. Allegations concerning improprieties in connection with the 
    personal finances of the President.
        E. Allegations concerning efforts by the White House to use 
    agencies of the executive branch for political purposes, and 
    alleged White House involvement with election campaign 
    contributions.
        F. Allegations concerning other misconduct.(13)
---------------------------------------------------------------------------
13. H. Rept. No. 93-1305, at p. 8, Committee on the Judiciary, 93d 
        Cong. 2d Sess., reported Aug. 20, 1974.
            On May 23, 1974, the House authorized by resolution the 
        printing of 2,000 additional copies of a committee print 
        containing the staff report. H. Res. 1074, 93d Cong. 2d Sess.
            The House also adopted on May 23, H. Res. 1073, authorizing 
        the printing of additional copies of a committee print on the 
        work of the impeachment inquiry staff as of Feb. 5, 1974.
---------------------------------------------------------------------------

Presenting Evidence and Examining Witnesses

Sec. 15.6 In the Nixon impeachment inquiry, the Committee

[[Page 2175]]

    on the Judiciary adopted certain procedures to be followed in 
    presenting evidence and hearing witnesses.

    On May 2, 1974, the Committee on the Judiciary unanimously adopted 
special procedures for presenting the evidence compiled by the 
committee staff to the full committee in hearings. The procedures 
provided for a statement of information to be presented, with annotated 
evidentiary materials, to committee members and to the President's 
counsel.(1~4~)
---------------------------------------------------------------------------
14. See Sec. 6.5, supra.
---------------------------------------------------------------------------

    The procedures allowed for the compilation and presentation of 
additional evidence by committee members or on request of the 
President's counsel.
    Procedures were also adopted for holding hearings to examine 
witnesses. Under the procedures, hearings were to be attended by the 
President's counsel, and he was permitted to examine witnesses.
    The procedures followed in the presentation of evidence are 
reflected in the summary from the committee's final report:

        From May 9, 1974 through June 21, 1974, the Committee 
    considered in executive session approximately six hundred fifty 
    ``statements of information'' and more than 7,200 pages of 
    supporting evidentiary material presented by the inquiry staff. The 
    statements of information and supporting evidentiary material, 
    furnished to each Member of the Committee in 36 notebooks, 
    presented material on several subjects of the inquiry: the 
    Watergate break-in and its aftermath, ITT, dairy price supports, 
    domestic surveillance, abuse of the IRS, and the activities of the 
    Special Prosecutor. The staff also presented to the Committee 
    written reports on President Nixon's income taxes, presidential 
    impoundment of funds appropriated by Congress and the bombing of 
    Cambodia.
        In each notebook, a statement of information relating to a 
    particular phase of the investigation was immediately followed by 
    supporting evidentiary material, which included copies of documents 
    and testimony (much of it already on public record), transcripts of 
    presidential conversations, and affidavits. A deliberate and 
    scrupulous abstention from conclusions, even by implication, was 
    observed.
        The Committee heard recordings of nineteen presidential 
    conversations and dictabelt recollections. The presidential 
    conversations were neither paraphrased nor summarized by the 
    inquiry staff. Thus, no inferences or conclusions were drawn for 
    the Committee. During the course of the hearings, Members of the 
    Committee listened to each recording and simultaneously followed 
    transcripts prepared by the inquiry staff.
        On June 27 and 28, 1974, Mr. James St. Clair, Special Counsel 
    to the President made a further presentation in a similar manner 
    and form as the inquiry staff's initial presentation. The Committee 
    voted to make public the initial presentation by the inquiry

[[Page 2176]]

    staff, including substantially all of the supporting materials 
    presented at the hearings, as well as the President's response.
        Between July 2, 1974, and July 17, 1974, after the initial 
    presentation, the Committee heard testimony from nine witnesses, 
    including all the witnesses proposed by the President's counsel. 
    The witnesses were interrogated by counsel for the Committee, by 
    Special counsel to the President pursuant to the rules of the 
    Committee, and by Members of the Committee. The Committee then 
    heard an oral summation by Mr. St. Clair and received a written 
    brief in support of the President's position.
        The Committee concluded its hearings on July 17, a week in 
    advance of its public debate on whether or not to recommend to the 
    House that it exercise its constitutional power of impeachment. In 
    preparation for that debate the majority and minority members of 
    the impeachment inquiry staff presented to the Committee 
    ``summaries of information.'' (15)
---------------------------------------------------------------------------
15. H. Rept. No. 93-1305 at p. 9, Committee on the Judiciary, 93d Cong. 
        2d Sess., reported Aug. 20, 1974, printed in the Record at 120 
        Cong. Rec. 29221, 93d Cong. 2d Sess., Aug. 20, 1974.
---------------------------------------------------------------------------

    The Committee on the Judiciary had previously adopted a resolution 
which was called up in the House under a motion to suspend the rules, 
on July 1, 1974, to authorize the committee to proceed without regard 
to Rule XI clause 27(f)(4), House Rules and Manual Sec. 735 (1973), 
requiring the application of the five-minute rule for interrogation of 
witnesses by committees. The House had rejected the motion to suspend 
the rules and thereby denied to the committee the authorization to 
dispense with the five-minute rule in the interrogation of 
witnesses.(16)
---------------------------------------------------------------------------
16. 120 Cong. Rec. 21849-55, 93d Cong. 2d Sess.
---------------------------------------------------------------------------

Committee Consideration of Resolution and Articles Impeaching the 
    President

Sec. 15.7 Consideration by the Committee on the Judiciary of the 
    resolution and articles of impeachment against President Richard M. 
    Nixon was made in order by committee resolution.

    On July 23, 1974, the Committee on the Judiciary adopted a 
resolution making in order its consideration of a motion to report a 
resolution and articles of impeachment to the House. The resolution 
provided:

        Resolved, That at a business meeting on July 24, 1974, the 
    Committee shall commence general debate on a motion to report to 
    the House a Resolution, together with articles of impeachment, 
    impeaching Richard M. Nixon, President of the United States. Such 
    general debate shall consume no more than ten hours, during which 
    time no

[[Page 2177]]

    Member shall be recognized for a period to exceed 15 minutes. At 
    the conclusion of general debate, the proposed articles shall be 
    read for amendment and Members shall be recognized for a period of 
    five minutes to speak on each proposed article and on any and all 
    amendments thereto, unless by motion debate is terminated thereon. 
    Each proposed article, and any additional article, shall be 
    separately considered for amendment and immediately thereafter 
    voted upon as amended for recommendation to the House. At the 
    conclusion of consideration of the articles for amendment and 
    recommendation to the House, if any article has been agreed to, the 
    original motion shall be considered as adopted and the Chairman 
    shall report to the House said Resolution of impeachment, together 
    with such articles as have been agreed to, or if no article is 
    agreed to, the Committee shall consider such resolutions or other 
    recommendations as it deems proper.(~17)
---------------------------------------------------------------------------
17. H. Rept. No. 93-1305, at p. 10, Committee on the Judiciary, 93d 
        Cong. 2d Sess., reported Aug. 20, 1974.
---------------------------------------------------------------------------

    As stated in the committee's final report, consideration of the 
motion to report and of the articles of impeachment proceeded as 
follows on July 24 through July 30:

        On July 24, at the commencement of general debate, a resolution 
    was offered including two articles of impeachment. On July 26, an 
    amendment in the nature of a substitute was offered to Article I. 
    In the course of the debate on the substitute, it was contended 
    that the proposed article of impeachment was not sufficiently 
    specific. Proponents of the substitute argued that it met the 
    requirements of specificity under modern pleading practice in both 
    criminal and civil litigation, which provide for notice pleading. 
    They further argued that the President had notice of the charge, 
    that his counsel had participated in the Committee's deliberations, 
    and that the factual details would be provided in the Committee's 
    report.
        On July 27, the Committee agreed to the amendment in the nature 
    of a substitute for Article I by a vote of 27 to 11. The Committee 
    then adopted Article I, as amended, by a vote of 27 to 11. Article 
    I, as adopted by the Committee charged that President Nixon, using 
    the power of his high office, engaged, personally and through his 
    subordinates and agents, in a course of conduct or plan designed to 
    delay, impede, and obstruct the investigation of the unlawful entry 
    into the headquarters of the Democratic National Committee in 
    Washington, D.C., for the purpose of securing political 
    intelligence; to cover up, conceal and protect those responsible; 
    and to conceal the existence and scope of other unlawful covert 
    activities.

        On July 29, an amendment in the nature of a substitute was 
    offered for Article II of the proposed resolution. After debate, 
    the substitute was agreed to by a vote of 28 to 10. The Committee 
    then adopted Article II, as amended, by a vote of 28 to 10. Article 
    II, as amended, charged that President Nixon, using the power of 
    the office of President of the United States, repeatedly engaged in 
    conduct which violated the constitutional rights of citizens;

[[Page 2178]]

    which impaired the due and proper administration of justice and the 
    conduct of lawful inquiries, or which contravened the laws 
    governing agencies of the executive branch and the purposes of 
    these agencies.
        On July 30, an additional article was offered as an amendment 
    to the resolution. After debate, this amendment was adopted by a 
    vote of 21 to 17 and became Article III. Article III charged that 
    President Nixon, by failing, without lawful cause or excuse and in 
    willful disobedience of the subpoenas of the House, to produce 
    papers and things that the Committee had subpoenaed in the course 
    of its impeachment inquiry, assumed to himself functions and 
    judgments necessary to the exercise of the constitutional power of 
    impeachment vested in the House. The subpoenaed papers and things 
    had been deemed necessary by the Committee in order to resolve, by 
    direct evidence, fundamental, factual questions related to 
    presidential direction, knowledge, or approval of actions 
    demonstrated by other evidence to be substantial grounds for 
    impeachment.
        On July 30, the Committee considered an amendment to add a 
    proposed Article, which charged that President Nixon authorized, 
    ordered and ratified the concealment of information from the 
    Congress and supplied to Congress false and misleading statements 
    concerning the existence, scope and nature of American bombing 
    operations in Cambodia. The proposed Article stated that these acts 
    were in derogation of the powers of Congress to declare war, make 
    appropriations, and raise and support armies. By a vote of 26 to 
    12, the amendment to add this Article was not agreed to.
        Also on July 30, the Committee considered an amendment to add a 
    proposed Article, charging that President Nixon knowingly and 
    fraudulently failed to report income and claimed deductions that 
    were not authorized by law on his Federal income tax returns for 
    the years 1969 through 1972. In addition, the proposed Article 
    charged that, in violation of Article II, Section 1 of the 
    Constitution, President Nixon had unlawfully received emoluments, 
    in excess of the compensation provided by law, in the form of 
    government expenditures at his privately owned properties at San 
    Clemente, California, and Key Biscayne, Florida. By a vote of 26 to 
    12, the amendment to add the article was not agreed to.
        The Committee on the Judiciary based its decision to recommend 
    that the House of Representatives exercise its constitutional power 
    to impeach Richard M. Nixon, President of the United States, on 
    evidence which is summarized in the following report. . . 
    .(18)
---------------------------------------------------------------------------
18. H. Rept. No. 93-1305, at pp. 10, 11, Committee on the Judiciary, 
        93d Cong. 2d Sess., reported Aug. 20, 1974, printed in the 
        Record at 120 Cong. Rec. 29221, 29222, 93d Cong. 2d Sess., Aug. 
        20, 1974.
---------------------------------------------------------------------------

    The debate on the resolution and articles of impeachment were 
televised pursuant to House Resolution 1107, adopted by the House on 
July 22, 1974, amending Rule XI clause 34 of the rules of the House to 
permit committee meetings, as well as hearings, to be broadcast by live 
coverage.(19)
---------------------------------------------------------------------------
19. 120 Cong. Rec. 24436-48, 93d Cong. 2d Sess.

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

[[Page 2179]]

    The transcript of the debate by the Committee on the Judiciary was 
printed in full as a public document.(20)
---------------------------------------------------------------------------
20. See Debate on Articles of Impeachment, Hearings of the Committee on 
        the Judiciary pursuant to H. Res. 803, 93d Cong. 2d Sess., July 
        24, 25, 26, 29, and 30, 1974.
---------------------------------------------------------------------------

Senate Review of Impeachment Trial Rules

Sec. 15.8 After impeachment proceedings had been instituted in the 
    House against President Richard M. Nixon, the Senate adopted a 
    resolution for the study and review of Senate rules and precedents 
    applicable to impeachment trials.

    On July 29, l974,(1~) during the pendency of an 
investigation in the House of alleged impeachable offenses committed by 
President Nixon, the Senate adopted a resolution related to its rules 
on impeachment:
---------------------------------------------------------------------------
 1. 120 Cong. Rec. 25468, 93d Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. [Michael J.] Mansfield [of Montana]: Mr. President, I have 
    at the desk a resolution, submitted on behalf of the distinguished 
    Republican leader, the Senator from Pennsylvania (Mr. Hugh Scott), 
    the assistant majority leader, the distinguished Senator from West 
    Virginia (Mr. Robert C. Byrd), the assistant Republican leader, the 
    distinguished Senator from Michigan (Mr. Griffin), and myself, and 
    I ask that it be called up and given immediate consideration.
        The Presiding Officer: The clerk will state the resolution.
        The legislative clerk read as follows:

                                S. Res. 370

            Resolved, That the Committee on Rules and Administration is 
        directed to review any and all existing rules and precedents 
        that apply to impeachment trials with a view to recommending 
        any revisions, if necessary, which may be required if the 
        Senate is called upon to conduct such a trial.
            Resolved further, That the Committee on Rules and 
        Administration is instructed to report back no later than 1 
        September 1974, or on such earlier date as the Majority and 
        Minority Leaders may designate, and
            Resolved further, That such review by that Committee shall 
        be held entirely in executive sessions.

        The Presiding Officer: Without objection, the Senate will 
    proceed to its immediate consideration.
        The question is on agreeing to the resolution.
        The resolution (S. Res. 370) was agreed to.(2)
---------------------------------------------------------------------------
 2. The Senate Parliamentarian prepared and published, at the request 
        of Senator Robert C. Byrd (W. Va.) a study entitled ``Procedure 
        and Guidelines for Impeachment Trials in the United States 
        Senate,'' S. Doc. No. 102, 93d Cong. 2d Sess., Aug. 8, 1974.
---------------------------------------------------------------------------

    The Committee on Rules and Administration reported out Senate 
Resolution 390, amending the

[[Page 2180]]

Rules and Procedure and Practice in the Senate when Sitting on 
Impeachment Trials, which was not acted on by the Senate. The 
amendments reported were clarifying and modernizing 
changes.(3)
---------------------------------------------------------------------------
 3. See Sec. 11.2, supra, for the committee amendments to the rules for 
        impeachment trials.
---------------------------------------------------------------------------

Disclosure of Evidence of Presidential Activities

Sec. 15.9 Pending the investigation by the House Committee on the 
    Judiciary into conduct of the President, the Senate adopted a 
    resolution releasing records of a Senate select committee on 
    Presidential activities to congressional committees and other 
    agencies and persons with a legitimate need therefor.

    On July 29, 1974,(4) Senator Samuel J. Ervin, Jr., of 
North Carolina, offered in the Senate Senate Resolution 369, relating 
to the records of a Senate select committee. The Senate adopted the 
resolution, following Senator Ervin's remarks thereon, in which he 
mentioned the needs and requests of the Committee on the Judiciary of 
the House:
---------------------------------------------------------------------------
 4. 120 Cong. Rec. 25392, 25393, 93d Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. Ervin: Mr. President, under its present charter, the Senate 
    Select Committee on Presidential Campaign Activities has 90 days 
    after the 28th day of June of this year in which to wind up its 
    affairs. This resolution is proposed with the consent of the 
    committee, and its immediate consideration has been cleared by the 
    leadership on both sides of the aisle.
        The purpose of this resolution is to facilitate the winding up 
    of the affairs of the Senate Select Committee. The resolution 
    provides that all of the records of the committee shall be 
    transferred to the Library of Congress which shall hold them 
    subject to the control of the Senate Committee on Rules and 
    Administration.

        It provides that after these records are transferred to the 
    Library of Congress the Senate Committee on Rules and 
    Administration shall control the access to the records and either 
    by special orders or by general regulations shall make the records 
    available to courts, congressional committees, congressional 
    subcommittees, Federal departments and agencies, and any other 
    persons who may satisfy the Senate Committee on Rules and 
    Administration that they have a legitimate need for the records.
        It provides that the records shall be maintained intact and 
    that none of the original records shall be released to any agency 
    or any person.
        It provides further that pending the transfer of the records to 
    the Library of Congress and the assumption of such control by the 
    Senate Committee on Rules and Administration, that the Select 
    Committee, acting through its chairman or through its vice 
    chairman, can make these records available to courts or to 
    congressional committees

[[Page 2181]]

    or subcommittees or to other persons showing a legitimate need for 
    them.
        I might state this is placed in here because of the fact that 
    we have had many requests from congressional committees for the 
    records. We have had requests from the Special Prosecutor and from 
    the courts. . . .
        I might state in the past the committee has made available some 
    of the records to the House Judiciary Committee, at its request, 
    and to the Special Prosecutor at his request. The resolution also 
    provides that the action of the committee in doing so is ratified 
    by the Senate.

Broadcasting Impeachment Proceedings

Sec. 15.10 The House adopted a resolution providing for the broadcast 
    of the proceedings in the House in which it was to consider the 
    resolution and articles of impeachment against President Richard M. 
    Nixon.

    On Aug. 7, 1974, the Committee on the Judiciary, having previously 
determined to report affirmatively to the House on the impeachment of 
the President, the House adopted House Resolution 802, called up by 
direction of the Committee on Rules, authorizing the broadcast of the 
anticipated impeachment proceedings in the House. Ray J. Madden, of 
Indiana, Chairman of the Committee on Rules, who called up the 
resolution (with committee amendments), cited the prior action of the 
House in changing the rules of the House to permit the deliberations of 
the Committee on the Judiciary to be televised.(5)
---------------------------------------------------------------------------
 5. 120 Cong. Rec. 27266-69, 93d Cong. 2d Sess.
---------------------------------------------------------------------------

Sec. 15.11 After impeachment proceedings had been instituted in the 
    House against President Richard M. Nixon, the Senate Committee on 
    Rules and Administration reported a resolution for televising any 
    resultant trial.

    On Aug. 8, 1974,(6) Senator Howard W. Cannon, of Nevada, 
reported in the Senate, from the Committee on Rules and Administration, 
Senate Resolution 371, to permit television and radio coverage of any 
impeachment trial that might occur with respect to President Nixon. The 
resolution was subsequently laid on the table.
---------------------------------------------------------------------------
 6. 120 Cong. Rec. 27325, 93d Cong. 2d Sess.
---------------------------------------------------------------------------

Procedures for Consideration by the House

Sec. 15.12 The House leadership considered a number of special 
    procedures to be followed in the consideration of a resolution and 
    articles im

[[Page 2182]]

    peaching President Richard M. Nixon.

    On Aug. 2, 1974, Ray J. Madden, of Indiana, Chairman of the 
Committee on Rules, addressed the House on a recent meeting of the 
leadership as to the proposed hearings of the committee relative to the 
consideration by the House of the impeachment of President Nixon:

         Conference of House Rules Committee on Impeachment Debate

        (Mr. Madden asked and was given permission to address the House 
    for 1 minute and to revise and extend his remarks, and include 
    extraneous matter.)
        Mr. Madden: Mr. Speaker, the coming Presidential impeachment 
    debate calls for the House to adopt certain special procedures 
    which are not otherwise necessary when considering regular 
    congressional business.
        The members of the Rules Committee, Speaker Carl Albert, House 
    Majority Leader Tip O'Neill, House Majority Whip John McFall, House 
    Minority Leader John Rhodes, House Minority Whip Les Arends, 
    Judiciary Committee Chairman Peter Rodino, and Representative 
    Edward Hutchinson, the ranking minority member of the Judiciary 
    Committee, met in an unofficial capacity Thursday afternoon, August 
    1. In the 2\1/2\ hour meeting thoughts were exchanged and 
    recommendations made regarding the rules and procedures which would 
    be most practical in allowing the entire House membership 
    participation in this historical legislative event.
        Although the bipartisan gathering reached no official decision, 
    there was agreement that after the Judiciary Committee files its 
    report on the impeachment proceedings next week, August 8, the 
    Committee on Rules will then convene--on August 13 for the purpose 
    of defining the rules and procedures for House debate. It was also 
    agreed by the members of the Democratic and Republican leadership 
    present that the impeachment debate will begin on the floor of the 
    House on Monday, August 19.
        Among the impeachment procedures to be given consideration by 
    the Committee on Rules will be: The overall time of debate; 
    division of debate time during the floor discussion; the control of 
    the time; the question of whether the three articles of impeachment 
    recommended by the Judiciary Committee should be amended; and 
    whether or not the electronic media should be allowed to broadcast 
    the proceedings of the House floor.(7)
---------------------------------------------------------------------------
 7. 120 Cong. Rec. 26489, 93d Cong. 2d Sess.
---------------------------------------------------------------------------

    Later on that day, Thomas P. O'Neill, Jr., of Massachusetts, the 
Majority Leader, and Peter W. Rodino, Jr., of New Jersey, the Chairman 
of the Committee on the Judiciary, discussed tentative scheduling of 
the resolution of impeachment and arrangements for Members of the House 
to listen to tape recordings containing evidence relating to the 
impeachment inquiry:

        (Mr. [Leslie C.] Arends [of Illinois] asked and was given 
    permission to address the House for 1 minute.)

[[Page 2183]]

        Mr. Arends: Mr. Speaker, I take this time to ask the majority 
    leader if he will kindly advise us of the program for next week.
        Mr. O'Neill: Mr. Speaker, will the gentleman yield to the 
    gentleman from New Jersey (Mr. Rodino), chairman of the Committee 
    on the Judiciary, so we may have some indication of his plans?
        Mr. Arends: I yield to the gentleman from New Jersey.
        Mr. Rodino: I thank the gentleman for yielding.
        I would really like to announce that today I have circulated a 
    letter that should be in the offices of each of the Members which 
    sets up a schedule so that Members who are interested may listen to 
    the tapes that are going to be available in the Congressional 
    Building where the impeachment inquiry staff is located. There will 
    be assistance provided to all of the Members, and this is spelled 
    out in this letter--the schedule as to the time when the tapes will 
    be available, together with the transcripts, and assistance will be 
    provided by members of the impeachment inquiry staff.
        In addition to that, there is also in the letter pertinent 
    information which relates to the particular pieces of information 
    or documents that are available. All of the documents that have 
    been printed and the President's counsel's brief will be included. 
    Members will have available to them all that the Committee on the 
    Judiciary has presented and printed and published up to this 
    particular time, which I am sure all Members will be interested in.
        I thought that I would make this announcement so that this 
    letter will come to the Members' attention and will not be somehow 
    or other just laid aside. I think the Members are going to be 
    interested in seeing it and knowing that there is a schedule for 
    them, and we will allow them sufficient time within which to be 
    briefed regarding these various materials that are available and 
    the facilities that are available to them.
        Mr. O'Neill: Mr. Speaker, will the gentleman yield?
        Mr. Arends: I yield to the distinguished majority leader.

        Mr. O'Neill: I thank the gentleman for yielding.
        I should like to address some remarks to the gentleman from New 
    Jersey (Mr. Rodino), the chairman of the Committee on the 
    Judiciary, in view of the fact that the leadership on both sides of 
    the aisle met yesterday with members of the Committee on Rules 
    trying to put together a schedule, which, of course, we understand 
    is tentative.
        It was my understanding from that meeting that the Judiciary 
    Committee would be planning to report next Wednesday, and would be 
    going to the Rules Committee on Tuesday, August 13, with the 
    anticipation that the matter of impeachment would be on the floor 
    on Monday, the 19th.
        Would the gentleman want to comment on that?
        Mr. Rodino: If the gentleman will yield, that is correct. That 
    is the schedule that we hope to follow. I have discussed this with 
    the gentleman from Michigan, the ranking minority member, and we 
    have agreed that the scheduling is the kind of scheduling dates 
    that we can meet. On Tuesday, the 13th, we would go before the 
    Rules Committee. I thank the gentleman.(8)
---------------------------------------------------------------------------
 8. Id. at p. 26512.

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

[[Page 2184]]

Committee Report as to Impeachment; Resignation of the President

Sec. 15.13 After the Committee on the Judiciary had determined to 
    report to the House a resolution and articles impeaching President 
    Richard M. Nixon, the President resigned; the committee submitted 
    its report recommending impeachment to the House, without an 
    accompanying resolution of impeachment. The House then adopted a 
    resolution under suspension of the rules accepting the committee's 
    report, noting the committee's action and commending the chairman 
    and members of the committee for their efforts.

    On Aug. 9, 1974, President Nixon's written resignation was received 
in the office of the Secretary of State, pursuant to the provisions of 
the United States Code.(9)
---------------------------------------------------------------------------
 9. 3 USC Sec. 20 provides that the resignation of the office of the 
        President shall be an instrument in writing, subscribed by the 
        person resigning, and delivered to the office of the Secretary 
        of State.
---------------------------------------------------------------------------

    On Aug. 20, 1974, Mr. Peter W. Rodino, Jr., of New Jersey, 
submitted as privileged the report of the Committee on the Judiciary 
(H. Rept. No. 93-1305) to the House. The report summarized the 
committee's investigation and included supplemental, additional, 
separate, dissenting, minority, individual, and concurring views. The 
committee's recommendation and adopted articles of impeachment read as 
follows:

        The Committee on the Judiciary, to whom was referred the 
    consideration of recommendations concerning the exercise of the 
    constitutional power to impeach Richard M. Nixon, President of the 
    United States, having considered the same, reports thereon pursuant 
    to H. Res. 803 as follows and recommends that the House exercise 
    its constitutional power to impeach Richard M. Nixon, President of 
    the United States, and that articles of impeachment be exhibited to 
    the Senate as follows:

                                 Resolution

        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

[[Page 2185]]

    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 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 per

[[Page 2186]]

    sonnel of the Committee for the Reelection 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 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

[[Page 2187]]

    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 Offlce 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.
        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.\(10)\
---------------------------------------------------------------------------
10. H. Rept. No. 93-1305, pp. 1-4, 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.
            Pursuant to H. Con. Res. 566, 93d Cong. 2d Sess., 10,000 
        additional copies of the report were printed for the use of the 
        Committee on the Judiciary.

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

[[Page 2188]]

    The report was referred by the Speaker to the House Calendar and 
ordered printed.
    The Committee did not report a separate resolution and articles of 
impeachment for action by the House, the President having resigned.
    Thomas P. O'Neill, Jr., of Massachusetts, the Majority Leader, 
moved to suspend the rules and adopt House Resolution 1333, accepting 
the report of the Committee on the Judiciary and providing for its 
printing, and the House adopted the resolution without debate--yeas 
412, nays 3, not voting 19:

                                H. Res. 1333

        Resolved, That the House of Representatives:
        (1) takes notice that
        (a) the House of Representatives, by House Resolution 803, 
    approved February 6, 1974, authorized and directed the Committee on 
    the Judiciary to investigate fully and completely whether 
    sufficient grounds existed for the House of Representatives to 
    exercise its constitutional power to impeach Richard M. Nixon, 
    President of the United States of America; and

        (b) the Committee on the Judiciary, after conducting a full and 
    complete investigation pursuant to House Resolution 803, voted on 
    July 27, 29, and 30, 1974 to recommend Articles of impeachment 
    against Richard M. Nixon, President of the United States of 
    America; and
        (c) Richard M. Nixon on August 9, 1974 resigned the Office of 
    President of the United States of America;
        (2) accepts the report submitted by the Committee on the 
    Judiciary pursuant to House Resolution 803 (H. Rept. 93-1305) and 
    authorizes and directs that the said report, together with 
    supplemental, additional, separate, dissenting, minority, 
    individual and concurring views, be printed in full in the 
    Congressional Record and as a House Document; and
        (3) commends the chairman and other members of the Committee on 
    the Judiciary for their conscientious and capable efforts in 
    carrying out the Committee's responsibilities under House 
    Resolution 803.

    Following the adoption of House Resolution 1333, Mr. O'Neill asked 
unanimous consent that all Members have five legislative days in which 
to revise and extend their remarks on House Resolution 1333, but Mr. 
Robert E. Bauman, of Maryland, objected to the request on the ground 
that no debate had been had on the report.(11)
---------------------------------------------------------------------------
11. 120 Cong. Rec. 29361, 29362, 93d Cong. 2d Sess. The Majority Leader 
        had announced on the previous day, Aug. 19, his intention to 
        offer the resolution, and had read the text of the resolution 
        on the floor of the House. 120 Cong. Rec. 29005, 29006, 93d 
        Cong. 2d Sess.

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

[[Page 2189]]

    Neither the House nor the Committee on the Judiciary took any 
further action on the matter of the impeachment of former President 
Nixon in the 93d Congress.

Impeachment Inquiry Evidence Subpoenaed by Courts

Sec. 15.14 The Speaker laid before the House subpoenas duces tecum from 
    a federal district court in a criminal case, addressed to the 
    Chairman of the Committee on the Judiciary and to the chief counsel 
    of its subcommittee on impeachment. The subpoenas sought evidence 
    gathered by the committee in its impeachment inquiry into the 
    conduct of President Richard M. Nixon. The House adopted a 
    resolution granting such limited access as would not violate the 
    privileges of the House or its sole power of impeachment under the 
    U.S. Constitution.

    On Aug. 22, 1974,(12) Speaker Carl Albert, of Oklahoma, 
laid before the House a communication and subpoena from the Chairman of 
the Committee on the Judiciary as follows:
---------------------------------------------------------------------------
12. 120 Cong. Rec. 30025, 30026, 93d Cong. 2d Sess.
---------------------------------------------------------------------------

     Communication From the Chairman of the Committee on the Judiciary

        The Speaker laid before the House the following communication 
    and subpoena from the chairman of the Committee on the Judiciary, 
    which was read and ordered to be printed:
                                               Washington, D.C.,
                                                  August 21, 1974.
Hon. Carl Albert,
Speaker, House of Representatives,
Washington, D.C.

            Dear Mr. Speaker: On July 29, 1974 two subpoenas duces 
        tecum issued by the United States District Court for the 
        District of Columbia, one naming myself and one naming Mr. John 
        Doar, an employee of the Committee, were served commanding 
        appearance in the United States District Court on September 9, 
        1974 and the production of all tapes and other electronic and/
        or mechanical recordings or reproductions, and any memoranda, 
        papers, transcripts, and other writings, relating to all 
        nonpublic statements, testimony and interviews of witnesses 
        relating to the matters being investigated pursuant to House 
        Resolution No. 803.
            The subpoenas were issued upon application of defendant H. 
        R. Haldeman in the case of U. S. v John Mitchell, et al.
            The subpoenas in question are forwarded herewith and the 
        matter presented for such action as the House deems 
        appropriate.
              Sincerely,
                                           Peter W. Rodino, Jr.,
                                                         Chairman.

[[Page 2190]]

                                      ----

                                   [Subpoena]

         [U.S. District Court for the District of Columbia, No. 74-110]

             United States of America v. John N. Mitchell, et al., 
                                   Defendants

            To: Congressman Peter W. Rodino, United States House of 
                       Representatives, Washington, D.C.

            You are hereby commanded to appear in the United States 
        District Court for the District of Columbia at Constitution 
        Avenue and John Marshall Place, N.W. in the city of Washington 
        on the 9th day of September 1974 at 10 o'clock A.M. to testify 
        in the case of United States v. John N. Mitchell, et al., and 
        bring with you all tapes and other electronic and/or mechanical 
        recordings or reproductions, and any memoranda, papers, 
        transcripts, and other writings, relating to:
            All non-public statements and testimony of witnesses 
        relating to the matters being investigated pursuant to House 
        Resolution No. 803.
            This subpoena is issued upon application of the Defendant, 
        H. R. Haldeman, 1974.
                                                Frank H. Struth,
                                           Attorney for Defendant,
                                                   H. R. Haldeman.
                                                 James F. Davey,
                                                            Clerk.
                                              By Robert L. Line,
                                                     Deputy Clerk.

    The following resolution, in response to such subpoenas, was 
offered by Mr. Thomas P. O'Neill, Jr., of Massachusetts:

        Concerning Subpoenas Issued in United States Versus John N. 
                              Mitchell, et al.

        Mr. O'Neill: Mr. Speaker, I call up House Resolution 1341 and 
    ask for its immediate consideration.
        The Clerk read the resolution, as follows:

                                  H. Res. 1341

            Whereas in the case of United States of America against 
        John N. Mitchell et al. (Criminal Case No. 74-110), pending in 
        the United States District Court for the District of Columbia, 
        subpoenas duces tecum were issued by the said court and 
        addressed to Representative Peter W. Rodino, United States 
        House of Representatives, and to John Doar, Chief Counsel, 
        House Judicial Subcommittee on Impeachment, House of 
        Representatives, directing them to appear as witnesses before 
        said court at 10:00 antemeridian on the 9th day of September, 
        1974, and to bring with them certain and sundry papers in the 
        possession and under the control of the House of 
        Representatives: Therefore be it
            Resolved, That by the privileges of this House no evidence 
        of a documentary character under the control and in the 
        possession of the House of Representatives can, by the mandate 
        of process of the ordinary courts of justice, be taken from 
        such control or possession but by its permission; be it further
            Resolved, That the House of Representatives under Article 
        I, Section 2 of the Constitution has the sole power of 
        impeachment and has the sole power to investigate and gather 
        evidence to determine whether the House of Representatives 
        shall exercise its constitutional power of impeachment; be it 
        further
            Resolved, That when it appears by the order of the court or 
        of the judge thereof, or of any legal officer charged with the 
        administration of the orders of such court or judge, that 
        documentary evidence in the possession and under the control of 
        the House is needful for use in any court of justice, or before 
        any judge or such legal officer, for the pro

[[Page 2191]]

        motion of justice, this House will take such action thereon as 
        will promote the ends of justice consistently with the 
        privileges and rights of this House; he it further
            Resolved, That when said court determines upon the 
        materiality and the relevancy of the papers and documents 
        called for in the subpoenas duces tecum, then the said court, 
        through any of its officers or agents, have full permission to 
        attend with all proper parties to the proceeding and then 
        always at any place under the orders and control of this House 
        and take copies of all memoranda and notes, in the files of the 
        Committee on the Judiciary, of interviews with those persons 
        who subsequently appeared as witnesses in the proceedings 
        before the full Committee pursuant to House Resolution 803, 
        such limited access in this instance not being an interference 
        with the Constitutional impeachment power of the House, and the 
        Clerk of the House is authorized to supply certified copies of 
        such documents and papers in possession or control of the House 
        of Representatives that the court has found to be material and 
        relevant (except that under no circumstances shall any minutes 
        or transcripts of executive sessions, or any evidence of 
        witnesses in respect thereto, be disclosed or copied) and which 
        the court or other proper officer thereof shall desire, so as, 
        however, the possession of said papers, documents, and records 
        by the House of Representatives shall not be disturbed, or the 
        same shall not be removed from their place of file or custody 
        under any Members, officer, or employee of the House of 
        Representatives, and be it further
            Resolved, That a copy of these resolutions be transmitted 
        to the said court as a respectful answer to the subpoenas 
        aforementioned.

    The House adopted the resolution.

Pardon of the Former President

Sec. 15.15 The House having discontinued impeachment proceedings 
    against former President Richard M. Nixon following his 
    resignation, President Gerald R. Ford granted a full pardon to the 
    former President for all offenses against the United States 
    committed by him during his terms in office.

    On Sept. 8, 1974, President Ford issued Proclamation 4311, granting 
a pardon to Richard Nixon:

      Granting Pardon to Richard Nixon by the President of the United 
                             States of America

                               a proclamation

        Richard Nixon became the thirty-seventh President of the United 
    States on January 20, 1969 and was reelected in 1972 for a second 
    term by the electors of forty-nine of the fifty states. His term in 
    office continued until his resignation on August 9, 1974.
        Pursuant to resolutions of the House of Representatives, its 
    Committee on the Judiciary conducted an inquiry and investigation 
    on the impeachment of the President extending over more than eight 
    months. The hearings of the Committee and its deliberations, which 
    received wide national publicity over television, radio, and in 
    printed media, resulted in votes adverse to Richard

[[Page 2192]]

    Nixon on recommended Articles of Impeachment.
        As a result of certain acts or omissions occurring before his 
    resignation from the Office of President, Richard Nixon has become 
    liable to possible indictment and trial for offenses against the 
    United States. Whether or not he shall be so prosecuted depends on 
    findings of the appropriate grand jury and on the discretion of the 
    authorized prosecutor. Should an indictment ensue, the accused 
    shall then be entitled to a fair trial by an impartial jury, as 
    guaranteed to every individual by the Constitution.
        It is believed that a trial of Richard Nixon, if it became 
    necessary, could not fairly begin until a year or more has elapsed. 
    In the meantime, the tranquility to which this nation has been 
    restored by the events of recent weeks could be irreparably lost by 
    the prospects of bringing to trial a former President of the United 
    States. The prospects of such trial will cause prolonged and 
    divisive debate over the propriety of exposing to further 
    punishment and degradation a man who has already paid the 
    unprecedented penalty of relinquishing the highest elective office 
    of the United States.
        Now, therefore, I, Gerald R. Ford, President of the United 
    States, pursuant to the pardon power conferred upon me by Article 
    II, Section 2, of the Constitution, have granted and by these 
    presents do grant a full, free, and absolute pardon unto Richard 
    Nixon for all offenses against the United States which he, Richard 
    Nixon, has committed or may have committed or taken part in during 
    the period from January 20, 1969 through August 9, 1974.
        In witness whereof, I have hereunto set my hand this eighth day 
    of September, in the year of our Lord nineteen hundred and seventy-
    four, and of the Independence of the United States of America the 
    one hundred and ninety-ninth.(13)
---------------------------------------------------------------------------
13. 39 Fed. Reg. 32601, 32602 (Sept. 10, 1974).
---------------------------------------------------------------------------

    Some Members of the House suggested in debate that impeachment 
proceedings be resumed, notwithstanding the resignation of the 
President; for example on Sept. 11, 1974, Mr. Ralph H. Metcalfe, of 
Illinois, declared:

        On August 20, 1974, Mr. Speaker, the House adopted House 
    Resolution 1033. This resolution took notice of the fact that on 
    February 6, 1974, the House, by adoption of House Resolution 803, 
    authorized and directed the Judiciary Committee ``to investigate 
    fully and completely whether sufficient grounds existed for the 
    House of Representatives to exercise its constitutional power to 
    impeach Richard M. Nixon''; further, House Resolution 1033 noted 
    that the Committee on the Judiciary recommended articles of 
    impeachment; that Richard M. Nixon resigned the office of President 
    of the United States; and further, this resolution accepted the 
    report submitted by the Committee on the Judiciary pursuant to 
    House Resolution 803.
        The articles of impeachment voted out by the full committee, 
    Mr. Speaker, were never debated and voted upon by the full House. 
    At that time there was the strong possibility that the former 
    President would be indicted, and that

[[Page 2193]]

    the President would be held accountable for his actions in a court 
    of law. President Ford's action on September 8, 1974, has 
    effectively nullified that course of action. . . .
        Is there a precedent for the impeachment of a civil officer 
    after his resignation? I think there is.
        In Federalist Paper 65, Hamilton states:

            The Model from which the idea of this institution 
        (Impeachment) has been borrowed pointed out that course to the 
        convention.

        The model that Hamilton refers to is clearly that of Great 
    Britain. The course of action that Hamilton refers to is 
    impeachment by the House of Commons and trial before the Lords. 
    And, consequently, it is to the English precedent that we must 
    first turn. Contemporaneous with the drafting and adopting of our 
    own Constitution was the impeachment trial of Warren Hastings in 
    Great Britain. Hastings resigned the governor-generalship of India 
    before he left India in February 1785, 2 years before articles of 
    impeachment were voted by the House of Commons for his conduct in 
    India. The impeachment of Hastings was certainly a fact known to 
    the drafters of the Constitution.
        George Mason, in discussing the impeachment provision on 
    September 8, 1787, in the Constitutional Convention, makes a clear 
    reference to the trial of Hastings. Further, Prof. Arthur Bestor 
    states that--

            American constitutional documents adopted prior to the 
        Federal Convention of 1787 . . . refute the notion that 
        officials no longer in office were supposed by the framers to 
        be beyond the reach of impeachment.

        Bestor specifically cites the constitutions of two States-
    Virginia and Delaware-which were adopted in 1776.
        Bestor also cites a statement of John Quincy Adams, made in 
    1846 after he left the White House, made on the Floor of the House:

            I hold myself, so long as I have the breath of life in my 
        body, amenable to impeachment by this House for everything I 
        did during the time I held any public office.

        Another historical precedent is that of William W. Belknap, 
    Secretary of War in President Grant's cabinet. As Bestor summarizes 
    it:

            Belknap resigned at 10:20 a.m. on the 2nd of March (1876), 
        a few hours before the House of Representatives voted to 
        impeach him, the latter decision being officially notified to 
        the Senate at 12:55 p.m. on the 3rd . . . on May 27, 1876, in a 
        roll-call vote of 37 to 29 (with seven not voting) the Senate 
        ruled that Belknap was amenable to trial by impeachment for 
        acts done as Secretary of War, notwithstanding his resignation 
        of said office before he was impeached.

        Mr. Speaker, there is precedent for the impeachment of a civil 
    officer after he has resigned.
        Another point to make, Mr. Speaker, is that article I of 
    section 3 of the Constitution states, inter alia:

            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.

        There is a twofold penalty provided for in this article and 
    removal from office is but one part of the penalty.
        Mr. Speaker, the former President has not been held accountable 
    for his

[[Page 2194]]

    actions. He has avoided accountability through the impeachment 
    process by resigning, and he has avoided trial on charges of 
    alleged criminal misconduct as contained in the first article of 
    impeachment through the Presidential pardon of his successor.
        Mr. Speaker, history can conclude that the Congress of the 
    United States was confronted with a series of actions by the Chief 
    Executive, actions which constituted a serious danger to our 
    political processes and that we did nothing. The proper forum, and 
    now the only forum, for a debate and a vote on these most serious 
    charges is here in the House. We have no other recourse but to 
    proceed if we are to assure that all future Presidents will be held 
    accountable for their actions whether such future Chief Executives 
    resign or not.
        Mr. Speaker, I urge that the impeachment report of the House 
    Judiciary Committee be debated and that we proceed to vote on the 
    articles of impeachment.(14~)
---------------------------------------------------------------------------
14. 120 Cong. Rec. 30695, 30696, 93d Cong. 2d Sess. (footnotes 
        omitted). For a memo inserted in the Record by Senate Majority 
        Leader Michael J. Mansfield (Mont.) on the power of Congress to 
        impeach and try a President after he has resigned, see 120 
        Cong. Rec. 31346-48, 93d Cong. 2d Sess., Sept. 17, 1974.
---------------------------------------------------------------------------

    On Sept. 12, 1974, Ms. Bella S. Abzug, of New York, introduced a 
resolution of inquiry related to the pardon: (15)
---------------------------------------------------------------------------
15. 120 Cong. Rec. 30964, 30965, 93d Cong. 2d Sess.
---------------------------------------------------------------------------

                                H. Res. 1363

        Resolved, That the President of the United States is hereby 
    requested to furnish the House, within ten days, with the following 
    information:
        1. What are the specific offenses against the United States for 
    which a pardon was granted to Richard M. Nixon on September 8, 
    1974?
        2. What are the certain acts or omissions occurring before his 
    resignation from the office of President for which Richard Nixon 
    had become liable to possible indictment and trial for offenses 
    against the United States, as stated in your Proclamation of 
    Pardon?
        3. Did you or your representatives have specific knowledge of 
    any formal criminal charges pending against Richard M. Nixon prior 
    to issuance of the pardon? If so, what were these charges?
        4. Did Alexander Haig refer to or discuss a pardon with Richard 
    M. Nixon or representatives of Mr. Nixon at any time during the 
    week of August 4, 1974 or at any subsequent time? If so, what 
    promises were made or conditions set for a pardon, if any? If so, 
    were tapes or transcriptions of any kind made of these 
    conversations or were any notes taken? If so, please provide such 
    tapes, transcriptions or notes.
        5. When was a pardon for Richard M. Nixon first referred to or 
    discussed with Mr. Nixon, or representatives of Mr. Nixon, by you 
    or your representatives or aides, including the period when you 
    were a member of Congress or Vice President?
        6. Who participated in these and subsequent discussions or 
    negotiations with Richard M. Nixon or his representatives regarding 
    a pardon, and at what specific times and locations?
        7. Did you consult with Attorney General William Saxbe or 
    Special

[[Page 2195]]

    Prosecutor Leon Jaworski before making the decision to pardon 
    Richard M. Nixon and, if so, what facts and legal authorities did 
    they give to you?
        8. Did you consult with the Vice Presidential nominee, Nelson 
    Rockefeller, before making the decision to pardon Richard M. Nixon 
    and, if so, what facts and legal authorities did he give to you?
        9. Did you consult with any other attorneys or professors of 
    law before making the decision to pardon Richard M. Nixon, and, if 
    so, what facts or legal authorities did they give to you?
        10. Did you or your representatives ask Richard M. Nixon to 
    make a confession or statement of criminal guilt, and, if so, what 
    language was suggested or requested by you, your representatives, 
    Mr. Nixon, or his representatives? Was any statement of any kind 
    requested from Mr. Nixon in exchange for the pardon, and, if so, 
    please provide the suggested or requested language.
        11. Was the statement issued by Richard M. Nixon immediately 
    subsequent to announcement of the pardon made known to you or your 
    representatives prior to its announcement, and was it approved by 
    you or your representatives?
        12. Did you receive any report from a psychiatrist or other 
    physician stating that Richard M. Nixon was in other than good 
    health? If so, please provide such reports

    The resolution of inquiry was referred to the Committee on the 
Judiciary. A subcommittee thereof held hearings on the matter of the 
pardon of former President Nixon, and President Ford appeared in person 
and testified before such subcommittee on Oct. 17, 1974.



 
                               CHAPTER 14
 
                           Impeachment Powers
 
                       D. HISTORY OF PROCEEDINGS
 
Sec. 16. Impeachment of Judge English

Committee Report on Resolution and Articles of Impeachment

Sec. 16.1 In the 69th Congress, the Committee on the Judiciary reported 
    a resolution of impeachment accompanied with five articles of 
    impeachment against Judge George English, which report was referred 
    to the House Calendar, ordered printed, and printed in full in the 
    Congressional Record.

    On Mar. 25, 1926, Mr. George S. Graham, of Pennsylvania, offered a 
privileged report from the Committee on the Judiciary in the 
impeachment case against George English, U.S. District Judge for the 
Eastern District of Illinois. Speaker Nicholas Longworth, of Ohio, 
ordered the report printed and referred to the House 
Calendar.(16) By unanimous consent, the entire report (H. 
Rept. No. 653) was printed in the Congressional Record.(17)
---------------------------------------------------------------------------
16. 67 Cong. Rec. 6280, 69th Cong. 1st Sess.
17. Id. at pp. 6280-87.

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

[[Page 2196]]

    The committee's recommendation and resolution read as follows:

                               Recommendation

        Your committee reports herewith the accompanying resolution and 
    articles of impeachment against Judge George W. English, and 
    recommends that they be adopted by the House and that they be 
    presented to the Senate with a demand for the conviction and 
    removal from office of said George W. English, United States 
    district judge for the eastern district of Illinois.

                                 Resolution

        Resolved, That George W. English, United States district judge 
    for the eastern district of Illinois, be impeached of misdemeanors 
    in office; and that the evidence heretofore taken by the special 
    committee of the House of Representatives under House Joint 
    Resolution 347, sustains five articles of impeachment, which are 
    hereinafter set out; and that 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 George W. 
        English, who was appointed, duly qualified, and commissioned to 
        serve during good behavior in office, as United States District 
        Judge for the Eastern District of Illinois, on May 3, 1918 
        (18)
---------------------------------------------------------------------------
18. For a more comprehensive discussion of the impeachment proceedings 
        against Judge English, see 6 Cannon's Precedents Sec. Sec. 544-
        547.
---------------------------------------------------------------------------

House Consideration and Debate

Sec. 16.2 The resolution and articles of impeachment in the George 
    English impeachment were considered in the House pursuant to 
    unanimous-consent agreements fixing the control and distribution of 
    debate.

    On Mar. 30, 1926, Mr. George S. Graham, of Pennsylvania, called up 
for consideration in the House the resolution impeaching Judge English. 
By unanimous consent, the House agreed to procedures for the control 
and distribution of debate, thereby allowing every Member who wished to 
speak to do so:

        The Speaker: (19~) The gentleman from Pennsylvania 
    [Mr. Graham] asks unanimous consent that during today the debate be 
    equally divided between the affirmative and the negative, and that 
    he control one-half of the time and the other half be controlled by 
    the gentleman from Alabama [Mr. Bowling].(20~)
---------------------------------------------------------------------------
19. Nicholas Longworth (Ohio).
20. 67 Cong. Rec. 6585-90, 69th Cong. 1st Sess.
---------------------------------------------------------------------------

    On Mar. 31, the second day of debate on the resolution, debate 
proceeded under a unanimous-consent agreement that debate

[[Page 2197]]

continue to be equally divided between Mr. Graham and Mr. William B. 
Bowling.(1) Mr. Graham obtained unanimous consent that 
debate be concluded in 7\1/2\ hours, such time to be equally divided as 
before.(2)
---------------------------------------------------------------------------
 1. Id. at p. 6645.
 2. Id. at pp. 6662, 6663.
---------------------------------------------------------------------------

Voting; Motions

Sec. 16.3 The previous question having been ordered on the resolution 
    of impeachment against Judge George English, a motion to recommit 
    with instructions was offered and rejected, and a separate vote was 
    demanded on the first article, followed by a vote on the 
    resolution.

    On Apr. 1, 1926, Mr. George S. Graham, of Pennsylvania, moved the 
previous question and it was ordered on the resolution impeaching Judge 
English. A motion to recommit the resolution with instructions was 
offered, the instructions directing the Committee on the Judiciary to 
take further testimony. The motion was rejected on a division vote-yeas 
101, noes 260.(3)
---------------------------------------------------------------------------
 3. 67 Cong. Rec. 6733, 6734, 69th Cong. 1st Sess.
---------------------------------------------------------------------------

    Pending the motion to recommit, Mr. Tom T. Connally, of Texas, 
stated a parliamentary inquiry:

        Under the rules of the House, would not this resolution be 
    subject to consideration under the five-minute rule for amendment?

Speaker Nicholas Longworth, of Ohio, responded, ``The Chair thinks 
not.'' (4)
---------------------------------------------------------------------------
 4. Id. at p. 6733.
---------------------------------------------------------------------------

    Following the rejection of the motion to recommit, the Speaker put 
the question on the resolution of impeachment and stated that it was 
agreed to. Mr. William B. Bowling, of Alabama, objected and stated that 
his attention had been diverted and that he had meant to ask for a 
separate vote on the first article of impeachment. The Speaker stated 
that the demand for a separate vote then came too late, since the 
demand was in order when the question recurred on the resolution. 
Because of the apparent confusion in the Chamber, the Speaker allowed 
Mr. Bowling to ask for a separate vote (thereby vacating, by unanimous 
consent, the proceedings whereby the resolution had been agreed to).
    The Speaker put the question on Mr. Bowling's motion to strike out 
Article I, which motion was rejected. The vote then recurred on the 
resolution, which was

[[Page 2198]]

adopted by the yeas and nays--yeas 306, nays 62.(5)
---------------------------------------------------------------------------
 5. Id. at pp. 6734, 6735.
---------------------------------------------------------------------------

    The Speaker had previously stated, in response to a parliamentary 
inquiry by Mr. Charles R. Crisp, of Georgia, that pursuant to Rule XVI 
clause 6, a separate vote could be demanded on any substantive 
proposition contained in the resolution of impeachment.(6)
---------------------------------------------------------------------------
 6. Id. at pp. 6589, 6590, see House Rules and Manual Sec. 791 (1973).
---------------------------------------------------------------------------

Discontinuance of Proceedings

Sec. 16.4 Judge George English having resigned from the bench, the 
    House adopted a resolution instructing the managers to advise the 
    Senate that the House declined to further prosecute charges of 
    impeachment.

    On Dec. 11, 1926, the House adopted the following resolution in 
relation to the impeachment proceedings against Judge English:

        Resolved, That the managers on the part of the House of 
    Representatives in the impeachment proceedings now pending in the 
    Senate against George W. English, late judge of the District Court 
    of the United States for the Eastern District of Illinois, be 
    instructed to appear before the Senate, sitting as a court of 
    impeachment in said cause, and advise the Senate that in 
    consideration of the fact that said George W. English is no longer 
    a civil officer of the United States, having ceased to be a 
    district judge of the United States for the eastern district of 
    Illinois, the House of Representatives does not desire further to 
    urge the articles of impeachment heretofore filed in the Senate 
    against said George W. English.(7)

    On Dec. 13, 1926, the Senate adjourned sine die as a court of 
impeachment after agreeing to the following order, which was messaged 
to the House:

        Ordered, That the impeachment proceedings against George W. 
    English, late judge of the District Court of the United States for 
    the Eastern District of Illinois, be and the same are, duly 
    dismissed.(8)
---------------------------------------------------------------------------
 7. 68 Cong. Rec. 297, 69th Cong. 2d Sess.
 8. Id. at p. 344.
---------------------------------------------------------------------------



 
                               CHAPTER 14
 
                           Impeachment Powers
 
                       D. HISTORY OF PROCEEDINGS
 
Sec. 17. Impeachment of Judge Louderback

Consideration of Committee Report

Sec. 17.1 The House considered the matter of the impeachment of U.S. 
    District Judge Harold Louderback under a unanimous-consent 
    agreement which allowed the minority of the Committee on

[[Page 2199]]

    the Judiciary to offer, to the reported resolution recommending 
    abatement of proceedings, a substitute amendment impeaching Judge 
    Louderback and setting forth articles of impeachment.

    On Feb. 24, 1933, Speaker John N. Garner, of Texas, recognized Mr. 
Thomas D. McKeown, of Oklahoma, to call up a resolution, reported by 
the Committee on the Judiciary, recommending that charges against 
Harold Louderback, U.S. District Judge for the Northern District of 
California, did not merit impeachment (H. Res. 387; H. Rept. No. 2065). 
The minority report dissented from that recommendation and proposed a 
resolution and articles of impeachment.(9)
---------------------------------------------------------------------------
 9. 76 Cong. Rec. 4913, 4914, 72d Cong. 2d Sess. See, generally, 6 
        Cannon's Precedents Sec. 514.
---------------------------------------------------------------------------

    Mr. Earl C. Michener, of Michigan, commented on the fact that the 
report of the committee recommended censure of the judge, rather than 
impeachment:

        Mr. Michener. Mr. Speaker, in answer to the gentleman from 
    Alabama, let me make this observation. The purpose of referring a 
    matter of this kind to the Committee on the Judiciary is to 
    determine whether or not in the opinion of the Committee on the 
    Judiciary there is sufficient evidence to warrant impeachment by 
    the House. If the Committee on the Judiciary finds those facts 
    exist, then the Committee on the Judiciary makes a report to the 
    House recommending impeachment, and that undoubtedly is privileged. 
    However, a custom has grown up recently in the Committee on the 
    Judiciary of including in the report a censure. I do not believe 
    that the constitutional power of impeachment includes censure. We 
    have but one duty, and that is to impeach or not to impeach. Today 
    we find a committee report censuring the judge. The resolution 
    before the House presented by a majority of the committee is 
    against impeachment. The minority members have filed a minority 
    report, recommending impeachment. I am making this observation with 
    the hope that we may get back to the constitutional power of 
    impeachment.(10)
---------------------------------------------------------------------------
10. Id. at p. 4914. The committee report stated ``the committee 
        censures the judge for conduct prejudicial to the dignity of 
        the judiciary in appointing incompetent receivers . . . for 
        allowing fees that seem excessive, and for a high degree of 
        indifference to the interest of litigants in receiverships.'' 
        H. Rept. No. 2065, Committee on the Judiciary, 72d Cong. 2d 
        Sess.
---------------------------------------------------------------------------

    Discussion ensued as to controlling debate on the resolution so as 
to effectuate the understanding agreed on in committee that the 
previous question not be ordered until the minority had an opportunity 
to offer an amendment in the nature of a substitute for the resolution.
    The House agreed to the following unanimous-consent request

[[Page 2200]]

propounded by Mr. McKeown (and suggested by Speaker Garner):

        The Speaker: Under the rules of the House the gentleman from 
    Oklahoma [Mr. McKeown] has one hour in which to discuss this 
    resolution, unless some other arrangement is made.
        Mr. McKeown: Mr. Speaker, I ask unanimous consent that two 
    hours' time be granted on a side. One-half of mine I shall yield to 
    the gentleman from Missouri [Mr. Dyer]. At the end of the two 
    hours' time, that the previous question shall be considered as 
    ordered.
        Mr. [Fiorello H.] Laguardia [of New York]: Mr. Speaker, will 
    the gentleman yield?
        Mr. McKeown: Yes.
        Mr. LaGuardia: The gentleman will remember that the committee 
    unanimously voted that the previous question should not be 
    considered as ordered until the majority had opportunity to offer 
    the articles of impeachment.
        Mr. McKeown: I yield now to the gentleman for that purpose.
        The Speaker: If gentlemen will permit, let the Chair make a 
    suggestion. The Chair understands that the committee has something 
    of an understanding that there would be an opportunity to vote upon 
    the substitute for the majority resolution. Is that correct?
        Mr. McKeown: Yes.
        The Speaker: Then the Chair suggests to the gentleman from 
    Oklahoma that he ask unanimous consent that general debate be 
    limited to two hours, one-half to be controlled by himself, and 
    one-half to be controlled by the gentleman from New York.
        Mr. McKeown: I want one-half of my time to be yielded to the 
    gentleman from Missouri, and that the other hour shall be 
    controlled by the gentleman from Texas.
        The Speaker: Then the Chair suggests that the gentleman from 
    Oklahoma control all of the time.
        Mr. [Hatton W.] Sumners [of Texas]: Mr. Speaker, I am quite 
    willing that the gentleman from Oklahoma may control the time, 
    because I am sure that he will make a fair distribution of it.
        Mr. McKeown: Mr. Speaker, I ask unanimous consent that the time 
    for debate be limited to two hours to be controlled by myself, that 
    during that time the gentleman from New York [Mr. La Guardia] be 
    permitted to offer a substitute for the resolution and at the 
    conclusion of the time for debate the previous question be 
    considered as ordered.
        The Speaker: Then the Chair submits this: The gentleman from 
    Oklahoma asks unanimous consent that debate be limited to two 
    hours, to be controlled by the gentleman from Oklahoma, that at the 
    end of that time the previous question shall be considered as 
    ordered, with the privilege, however, of a substitute resolution 
    being offered, to be included in the previous question. Is there 
    objection?
        Mr. [William B.] Bankhead [of Alabama]: Mr. Speaker, reserving 
    the right to object for the purpose of getting the parliamentary 
    situation clarified before we get to the merits, is there any 
    question in the mind of the Speaker, if it is fair to submit such a 
    suggestion, as to whether or not the substitute providing for 
    absolute im

[[Page 2201]]

    peachment would be in order as a substitute for this report?
        The Speaker: That is the understanding of the Chair, that the 
    unanimous-consent agreement is, that the gentleman from New York 
    [Mr. LaGuardia] may offer a substitute, the previous question to be 
    considered as ordered on the substitute and the original resolution 
    at the expiration of the two hours. Is there objection?
        There was no objection.(11)
---------------------------------------------------------------------------
11. Id. For more comprehensive treatment of impeachment proceedings 
        against Judge Louderback, see 6 Cannon's Precedents 
        Sec. Sec. 513-524.
---------------------------------------------------------------------------

Voting

Sec. 17.2 At the conclusion of debate on the resolution and substitute 
    therefor, in the Harold Louderback impeachment proceedings, a yea 
    and nay vote was taken on the substitute, which was agreed to.

    On Feb. 24, 1933, the House had under consideration a resolution 
abating impeachment proceedings against Judge Louderback. A unanimous-
consent agreement was adopted, as follows:

        The Speaker: (12) . . . The gentleman from Oklahoma 
    (Mr. Thomas D. McKeown] asks unanimous consent that debate be 
    limited to two hours . . . that at the end of that time the 
    previous question shall be considered as ordered, with the 
    privilege, however, of a substitute resolution being offered, to be 
    included in the previous question. . . .
        There was no objection.(13)
---------------------------------------------------------------------------
12. John N. Garner (Tex.).
13. 76 Cong. Rec. 4914, 72d Cong. 2d Sess.
---------------------------------------------------------------------------

    At the conclusion of the two hours' debate on the resolution 
abating the impeachment proceedings and on the amendment in the nature 
of a substitute, the Speaker put the question on the substitute and 
answered a parliamentary inquiry as to the effect of the vote:

        The Speaker: The question is on the substitute of the gentleman 
    from New York [Mr. LaGuardia].
        The question was taken, and the Chair announced that he was in 
    doubt.
        Mr. [Thomas D.] McKeown of Oklahoma]: Mr. Speaker, a division.
        Mr. [Carl G.] Bachmann [of West Virginia]: Mr. Speaker, I ask 
    for the yeas and nays.
        The yeas and nays were ordered.
        Mr. [Earl C.] Michener [of Michigan]: Mr. Speaker, a 
    parliamentary inquiry.
        The Speaker: The gentleman will state it.
        Mr. Michener: As I understand, a vote of ``aye'' is a vote for 
    impeachment and a vote of ``no'' is against impeachment; is that 
    correct?
        The Speaker: An aye vote on the substitute of the gentleman 
    from New York is a vote to impeach and a ``no'' vote is a vote 
    against impeachment.

[[Page 2202]]

        The Clerk will call the roll.
        The question was taken; and there were--yeas 183, nays 142, 
    answered ``present'' 4, not voting 97.(14)
---------------------------------------------------------------------------
14. Id. at p. 4925. The resolution, as amended by the substitute, was 
        then agreed to. H. Jour. 306, 72d Cong. 2d Sess., Feb. 24, 
        1933.
---------------------------------------------------------------------------

Election of Managers; Continuation of Proceedings Into New Congress

Sec. 17.3 The House having adopted articles of impeachment against 
    Judge Harold Louderback, the House adopted resolutions appointing 
    managers and notifying the Senate of its actions, but did not 
    resolve the question whether such managers could, without further 
    authority, continue to represent the House in the succeeding 
    Congress.

    The House having adopted the articles of impeachment against Judge 
Louderback on Feb. 24, 1933, Chairman Hatton W. Sumners, of Texas, of 
the Committee on the Judiciary, called up on Feb. 27, 1933, resolutions 
appointing managers and notifying the Senate of the action of the 
House. Discussion ensued as to the power of the managers beyond the 
termination of the Congress (the Congress was to expire on Mar. 3):

                   Impeachment of Judge Harold Louderback

        Mr. Sumners of Texas: Mr. Speaker, I offer the following 
    privileged report from the Committee on the Judiciary, which I send 
    to the desk and ask to have read, and ask its immediate adoption.
        The Clerk read as follows:

                              House Resolution 402

            Resolved, That Hatton W. Sumners, Gordon Browning, Malcolm 
        C. Tarver, Fiorello H. LaGuardia, and Charles I. Sparks, 
        Members of this House, be, and they are hereby, appointed 
        managers to conduct the impeachment against Harold Louderback, 
        United States district judge for the northern district of 
        California; and said managers are hereby instructed to appear 
        before the Senate of the United States and at the bar thereof 
        in the name of the House of Representatives and of all the 
        people of the United States to impeach the said Harold 
        Louderback of misdemeanors in office and to exhibit to the 
        Senate of the United States the articles of impeachment against 
        said judge which have been agreed upon by the House; and that 
        the said managers do demand the Senate take order for the 
        appearance of said Harold Louderback to answer said 
        impeachment, and demand his impeachment, conviction, and 
        removal from office.

        The Speaker Pro Tempore: The question is on agreeing to the 
    resolution.
        Mr. [Thomas L.] Blanton [of Texas]: Mr. Speaker, will the 
    gentleman yield?
        Mr. Sumners of Texas: Yes.
        Mr. Blanton: Is it not usual in such cases to provide for the 
    managers on the part of the House to interrogate witnesses?

[[Page 2203]]

        Mr. Sumners of Texas: This is the usual resolution which is 
    adopted.
        Mr. Blanton: But this resolution does embrace that power and 
    authority?
        Mr. Sumners of Texas: Yes. It is the usual resolution.
        Mr. [William H.] Stafford [of Wisconsin]: Mr. Speaker, will the 
    gentleman yield?
        Mr. Sumners of Texas: Yes.
        Mr. Stafford: This House, which is about to expire, has leveled 
    impeachment articles against a sitting judge. It is impracticable 
    to have the trial of that judge in the expiring days of the 
    Congress. Has the gentleman considered what the procedure will be 
    in respect to having the trial before the Senate in the next 
    Congress?
        Mr. Sumners of Texas: The Committee on the Judiciary today gave 
    full consideration to all of the angles that suggested themselves 
    to the committee for consideration, and this arrangement seems to 
    be more in line with the precedents and to be most definitely 
    suggested by the situation in which we find ourselves.
        Mr. Stafford: Then, I assume, from the gentleman's statement, 
    that it is the purpose that the gentlemen named in the resolution 
    shall represent the House in the next Congress?
        Mr. Sumners of Texas: No; I believe not. I think it is pretty 
    well agreed that the next Congress will probably have to appoint 
    new managers before they may proceed. I think gentlemen on each 
    side agree substantially with that statement as to what probably 
    would be required.
        Mr. Stafford: There is nothing in the Constitution that would 
    prevent Members of this Congress from serving as representatives of 
    this House before the Senate in the next Congress, even though they 
    be not Members of that Congress.
        Mr. Sumners of Texas: I hope my friend will excuse me for not 
    taking the time of the House to discuss that feature of the matter.
        Mr. Stafford: It is quite an important subject.
        Mr. Sumners of Texas: It is an unsettled subject, and one we 
    have tried to avoid.
        The Speaker Pro Tempore: The question is on agreeing to the 
    resolution.
        The resolution was agreed to.
        A motion to reconsider the vote by which the resolution was 
    agreed to was laid on the table.
        Mr. Sumners of Texas: Mr. Speaker, I desire to present a 
    privileged resolution.
        The Clerk read as follows:

                              House Resolution 403

            Resolved, That a message be sent to the Senate to inform 
        them that this House has impeached Harold Louderback, United 
        States district judge for the Northern District of California, 
        for misdemeanors in office, and that the House has adopted 
        articles of impeachment against said Harold Louderback, judge 
        as aforesaid, which the managers on the part of the House have 
        been directed to carry to the Senate, and that Hatton W. 
        Sumners, Gordon Browning, Malcolm C. Tarver, Fiorello H. 
        LaGuardia, and Charles I. Sparks, Members of this House, have 
        been appointed such managers.

        The resolution was agreed to.

[[Page 2204]]

        A motion to reconsider the vote by which the resolution was 
    agreed to was laid on the table.(15)
---------------------------------------------------------------------------
15. 76 Cong. Rec. 5177, 5178, 72d Cong. 2d Sess.
---------------------------------------------------------------------------

    Parliamentarian's Note: In the succeeding Congress, an issue arose 
as to the power of managers elected in one Congress to continue their 
functions in a new Congress. On Mar. 13, 1933, the 73d Congress having 
convened, the Senate convened as a Court of Impeachment and received 
the managers on the part of the House, who were those Members re-
elected to the House who had been appointed as managers in the 72d 
Congress (two of the five managers were not reelected to the House). On 
Mar. 22, Mr. Sumners called up a resolution appointing two new Members, 
and reappointing the three re-elected Members, as managers on the part 
of the House to conduct the impeachment trial of Judge Louderback. 
Nevertheless, Mr. Sumners asserted that the managers elected in one 
Congress had the capacity to continue in that function in a new 
Congress without reappointment.(16)
---------------------------------------------------------------------------
16. See 6 Cannon's Precedents Sec. Sec. 516, 517.
---------------------------------------------------------------------------

    In arguing that the impeachment managers elected by one House 
should retain their powers in a succeeding Congress, Chairman Sumners 
referred to the lengthy period of time that could occur between the 
appointment of managers, the adjournment of Congress, and the 
commencement of a trial.(17)
---------------------------------------------------------------------------
17. See 6 Cannon's Precedents Sec. 517.
---------------------------------------------------------------------------

Sec. 17.4 The resolution of impeachment against Judge Louderback having 
    been presented to the Senate on the last day of the 72d Congress, 
    the Senate conducted the trial in the 73d Congress.

    On Mar. 3, 1933, the last day of the 72d Congress under 
constitutional practice prior to the adoption of the 20th amendment, 
the managers on the part of the House in the Harold Louderback 
impeachment appeared before the Senate and read the resolution and 
articles of impeachment. The Senate adopted a special order that the 
Senate begin sitting for trial on the first day of the 73d 
Congress.(18)
---------------------------------------------------------------------------
18. 6 Cannon's Precedents Sec. 515.
---------------------------------------------------------------------------

    President Franklin D. Roosevelt convened the 73d Congress on Mar. 
9,1933, prior to the constitutional day of the first Monday in 
December, and the Senate organized for trial on that date, pursuant to 
its special order.(19)
---------------------------------------------------------------------------
19. 6 Cannon's Precedents Sec. 516. For the proclamation convening the 
        73d Congress, see H. Jour. 3, 73d Cong. 1st Sess., Mar. 9, 
        1933.
            On May 24, 1933, the Senate acquitted Judge Louderback on 
        all articles. See 6 Cannon's Precedents Sec. 524.

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

[[Page 2205]]


 
                               CHAPTER 14
 
                           Impeachment Powers
 
                       D. HISTORY OF PROCEEDINGS
 
Sec. 18. Impeachment of Judge Ritter

Authorization of Investigation

Sec. 18.1 The Committee on the Judiciary reported in the 73d Congress a 
    resolution authorizing an investigation into the conduct of Halsted 
    Ritter, a U.S. District Court judge; the resolution was referred to 
    the Union Calendar and considered and adopted in the House as in 
    the Committee of the Whole by unanimous consent.

    On May 29, 1933, Mr. J. Mark Wilcox, of Florida, placed in the 
hopper a resolution (H. Res. 163) authorizing the Committee on the 
Judiciary to investigate the conduct of Halsted Ritter, District Judge 
for the U.S. District Court for the Southern District of Florida, to 
determine whether in the opinion of the committee he had been guilty of 
any high crime or misdemeanor. The resolution was referred to the 
Committee on the Judiciary.(20~)
---------------------------------------------------------------------------
20. 77 Cong. Rec. 4575, 73d Cong. 1st Sess.
---------------------------------------------------------------------------

    On June 1, 1933, the Committee on the Judiciary reported House 
Resolution 163 (H. Rept. No. 191) with committee amendments; the 
resolution was referred to the Committee of the Whole House on the 
state of the Union, since the original resolution contained an 
appropriation.(21)
---------------------------------------------------------------------------
21. Id. at p. 4796.
---------------------------------------------------------------------------

    On the same day, Hatton W. Sumners, of Texas, Chairman of the 
Committee on the Judiciary, asked unanimous consent to consider House 
Resolution 163 in the House as in the Committee of the Whole. The 
resolution and committee amendments read as follows:

                            House Resolution 163

        Resolved, That the Committee on the Judiciary is authorized and 
    directed, as a whole or by subcommittee, to inquire into and 
    investigate the official conduct of Halsted L. Ritter, a district 
    judge for the United States District Court for the Southern 
    District of Florida, to determine whether in the opinion of said 
    committee he has been guilty of any high crime or misdemeanor which 
    in the contemplation of the Constitution requires the interposition 
    of the Constitutional powers of the House. Said committee shall 
    report its findings to the House, together with such resolution of 
    impeachment or other recommendation as it deems proper.

        Sec. 2. For the purpose of this resolution, the committee is 
    authorized to

[[Page 2206]]

    sit and act during the present Congress at such times and places in 
    the District of Columbia and elsewhere, whether or not the House is 
    sitting, has recessed, or has adjourned, to hold such hearing, to 
    employ such clerical, stenographic, and other assistance, to 
    require the attendance of such witnesses and the production of such 
    books, papers, and documents, and to take such testimony, to have 
    such printing and binding done, and to make such expenditures not 
    exceeding $5,000, as it deems necessary.
        With the following committee amendments:
        Page 2, line 5, strike out the words ``to employ such clerical, 
    stenographic, and other assistance''; and in line 9, on page 2, 
    strike out ``to have such printing and binding done, and to make 
    such expenditures, not exceeding $5,000.''

    After brief debate, the House as in the Committee of the Whole 
adopted the resolution as amended by the committee 
amendments.(1)
---------------------------------------------------------------------------
 1. Id. at pp. 4784, 4785.
            The House adopted a resolution, reported by the Committee 
        on Accounts, authorizing payment out of the contingent fund for 
        expenses of the Committee on the Judiciary in conducting its 
        investigation under H. Res. 163; see H. Res. 172, 77 Cong. Rec. 
        5429, 5430, 73d Cong. 1st Sess., June 9. 1933.
---------------------------------------------------------------------------

    The Committee on the Judiciary made no report to the House, prior 
to the expiration of the 73d Congress, in the matter of charges against 
Judge Ritter, but a subcommittee of the committee investigated the 
charges and gathered testimony and evidence pursuant to House 
Resolution 163.
    The evidence gathered was the basis for House Resolution 422 in the 
74th Congress, impeaching Judge Ritter, and both that resolution and 
the report of the Committee on the Judiciary in the 74th Congress (H. 
Rept. No. 2025) referred to the investigation conducted under House 
Resolution 163, 73d Congress.
    The Chairman of the subcommittee, Malcolm C. Tarver, of Georgia, 
made a report recommending impeachment to the full committee; the 
report was printed in the Record in the 74th Congress.(2)
---------------------------------------------------------------------------
 2. 80 Cong. Rec. 408-10, 74th Cong. 2d Sess., Jan. 14, 1936.
---------------------------------------------------------------------------

Presentation of Charges

Sec. 18.2 In the 74th Congress, a Member rose to a question of 
    constitutional privilege and presented charges against Judge 
    Ritter, which were referred to the Committee on the Judiciary.

    On Jan. 14, 1936, Mr. Robert A. Green, of Florida, a member of the 
Committee on the Judiciary, rose to a question of constitutional

[[Page 2207]]

privilege and on his own responsibility impeached Judge Halsted Ritter 
for high crimes and misdemeanors. Although he presented no resolution, 
he delivered lengthy and specific charges against the accused. He 
indicated his intention to read, as part of his speech, a report 
submitted to the Committee on the Judiciary by Malcolm C. Tarver, of 
Georgia, past Chairman of a subcommittee of the Committee on the 
Judiciary, which subcommittee had investigated the charges against 
Judge Ritter pursuant to House Resolution 163, adopted by the House in 
the 73d Congress.
    In response to inquiries, Mr. Green summarized the status of the 
investigation and his reason for rising to a question of constitutional 
privilege:

        Mr. [John J.] O'Connor [of New York]: Of course, ordinarily the 
    matter would be referred to the Committee on the Judiciary. Does 
    the gentleman think he must proceed longer in the matter at this 
    time?
        Mr. Green: My understanding is, I may say to the chairman of 
    the Rules Committee, that the articles of impeachment will be 
    referred to the Committee on the Judiciary for its further 
    consideration and action. I do not intend to consume any more time 
    than is absolutely necessary.
        Mr. [Thomas L.] Blanton [of Texas]: Will the gentleman yield?
        Mr. Green: I yield.
        Mr. Blanton: What action was taken on the Tarver report? If 
    this official is the kind of judge the Tarver report indicates, why 
    was he not then impeached and tried by the Senate?
        Mr. Green: That is the question that is now foremost in my 
    mind. Since Judge Tarver's service as chairman of the Judiciary 
    Subcommittee he has been transferred from the House Judiciary 
    Committee to the House Committee on Appropriations. He is not now a 
    member of the Judiciary Committee.
        I firmly believe that when our colleagues understand the 
    situation thoroughly, there will be no hesitancy in bringing about 
    Ritter's impeachment by a direct vote on the floor of the House. My 
    purpose in this is to get it in concrete form, in compliance with 
    the rules of the House, so that the direct impeachment will be 
    handled by the Committee on the Judiciary. At present impeachment 
    is not before the committee. This will give the Judiciary something 
    to act upon.
        Mr. Blanton: Was he not impeached in the House before when the 
    Tarver investigation was made?
        Mr. Green: No. He was never impeached. There was a resolution 
    passed by the House directing an investigation to be made by the 
    Judiciary Committee.
        Mr. Blanton: Was that not a resolution that followed just such 
    impeachment charges in the House as the gentleman from Florida is 
    now making?
        Mr. Green: I understand that articles of impeachment have not 
    been heretofore filed in this case.
        Mr. Blanton: Was the Tarver report, to which the gentleman has 
    re

[[Page 2208]]

    ferred, filed with the Judiciary Committee?
        Mr. Green: It is my understanding that it is now in their 
    hands.(3)
---------------------------------------------------------------------------
 3. 80 Cong. Rec. 404, 405, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

    Mr. Green inserted the text of the Tarver report, which recommended 
impeachment, in his remarks.(4)
---------------------------------------------------------------------------
 4. Id. at pp. 408-410.
---------------------------------------------------------------------------

    At the conclusion of Mr. Green's remarks, Mr. O'Connor moved that 
``the proceedings be referred to the Committee on the Judiciary.'' The 
motion was agreed to.(5)
---------------------------------------------------------------------------
 5. Id. at p. 410.
---------------------------------------------------------------------------

Sec. 18.3 The Committee on the Judiciary reported in the 74th Congress 
    a resolution impeaching Judge Halsted Ritter on four articles of 
    impeachment; the resolution referred to the investigation 
    undertaken pursuant to authorizing resolution in the 73d Congress.

    On Feb. 20, 1936, Mr. Hatton W. Sumners, of Texas, introduced House 
Resolution 422, impeaching Judge Ritter; the resolution was referred to 
the Committee on the Judiciary.(6) On the same day, Mr. 
Sumners, Chairman of the committee, submitted a privileged report on 
the charges of official misconduct against Judge Ritter (H. Rept. No. 
2025). The report, which was referred to the House Calendar and ordered 
printed, read as follows:
---------------------------------------------------------------------------
 6. 80 Cong. Rec. 2534, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

        The Committee on the Judiciary, having had under consideration 
    charges of official misconduct against Halsted L. Ritter, a 
    district judge of the United States for the Southern District of 
    Florida, and having taken testimony with regard to the official 
    conduct of said judge under the authority of House Resolution 163 
    of the Seventy-third Congress, report the accompanying resolution 
    of impeachment and articles of impeachment against Halsted L. 
    Ritter to the House of Representatives with the recommendation that 
    the same be adopted by the House and presented to the 
    Senate.(7)
---------------------------------------------------------------------------
 7. Id. at p. 2528.
---------------------------------------------------------------------------

    The resolving clause of the resolution recited that the evidence 
taken by a subcommittee of the Committee on the Judiciary under House 
Resolution 163 of the 73d Congress sustained impeachment.(8)
---------------------------------------------------------------------------
 8. For the text of the resolution and articles of impeachment, see 
        Sec. 18.7, infra.
---------------------------------------------------------------------------

Consideration and Adoption of Articles of Impeachment

Sec. 18.4 The House considered and adopted a resolution and articles of 
    impeachment against Judge Halsted Ritter,

[[Page 2209]]

    pursuant to a unanimous-consent agreement fixing the time for and 
    control of debate.

    On Mar. 2, 1936, Mr. Hatton W. Sumners, of Texas, called up for 
immediate consideration a resolution (H. Res. 422), which the Clerk 
read at the direction of Speaker Joseph W. Byrns, of Tennessee. Mr. 
Sumners indicated his intention to conclude the proceedings and have a 
vote on the resolution before adjournment. The House agreed to his 
unanimous-consent request for consideration of the 
resolution:(9)
---------------------------------------------------------------------------
 9. 80 Cong. Rec. 3066-69, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

        The Speaker: The gentleman from Texas asks unanimous consent 
    that debate on this resolution be continued for 4\1/2\ hours, 2\1/
    2\ hours to be controlled by himself and 2 hours by the gentleman 
    from New York [Mr. Hancock]; and at the expiration of the time the 
    previous question shall be considered as ordered. Is there 
    objection?
        There was no objection.

    The resolving clause to the articles read as follows:

                                 Resolution

        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 House 
    Resolution 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: . . . (10)
---------------------------------------------------------------------------
10. Id. at p. 3066. For the full text of the resolution and articles, 
        see Sec. 18.7, infra.
---------------------------------------------------------------------------

    The House then discussed the maintenance of order during debate on 
the resolution:

        Mr. [William B.] Bankhead [of Alabama]: Mr. Speaker, I realize 
    that there is a full membership of the House here today, and 
    properly so, because impeachment proceedings are a matter of grave 
    importance.
        The proceedings are inquisitorial, and in order that we may 
    arrive at a correct judgment with reference to the matter and form 
    an intelligent opinion as to how we shall vote, it is absolutely 
    necessary and essential that we have order in the Chamber during 
    the proceedings.
        I know it is difficult at all times to get gentlemen to refrain 
    from conversation, but I make a special appeal to the membership of 
    the House on this occasion, in view of the serious importance of 
    the proceedings, that they will be quiet and listen to the speakers 
    so that we may vote intelligently on this matter. [Applause.]
        The Speaker: The Chair wishes to emphasize what the gentleman 
    from

[[Page 2210]]

    Alabama has said. There is but one way to maintain order, and that 
    is for Members to cease conversation, because a little conversation 
    here and a little there creates confusion that makes it difficult 
    for speakers to be heard.(11)
---------------------------------------------------------------------------
11. Id. at p. 3069.
---------------------------------------------------------------------------

    Time for debate having expired, Speaker Byrns stated that pursuant 
to the order of the House the previous question was ordered. By the 
yeas and nays, the House agreed to the resolution of impeachment--yeas 
181, nays 146, present 7, not voting 96.(12)
---------------------------------------------------------------------------
12. Id. at p. 3091.
---------------------------------------------------------------------------

Election of Managers

Sec. 18.5 The House adopted resolutions appointing managers to conduct 
    the impeachment trial, empowering the managers to employ staff and 
    to prepare and conduct impeachment proceedings, and notifying the 
    Senate that the House had adopted articles and appointed managers.

    On Mar. 6, 1936,(13) following the adoption of articles 
of impeachment on Mar. 2, Mr. Hatton W. Sumners, of Texas, offered 
resolutions of a privileged nature related to impeachment proceedings 
against Judge Ritter:
---------------------------------------------------------------------------
13. 80 Cong. Rec. 3393, 3394, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

                      Impeachment of Halsted L. Ritter

        Mr. Sumners of Texas: Mr. Speaker, I send to the desk the three 
    resolutions which are the usual resolutions offered when an 
    impeachment has been voted by the House, and I ask unanimous 
    consent that they may be read and considered en bloc.
        Mr. [Bertrand H.] Snell [of New York]: Mr. Speaker, reserving 
    the right to object, I do not know that I understand the situation 
    we are in at the present time. Will the gentleman restate his 
    request?
        The Speaker: (14) The request is to have read the 
    three resolutions and have them considered en bloc.
---------------------------------------------------------------------------
14. Joseph W. Byrns (Tenn.).
---------------------------------------------------------------------------

        Mr. Sumners of Texas: I may say to the gentleman from New York, 
    they are the three resolutions usually offered and they are in the 
    language used when the House has voted an impeachment.
        Mr. Snell: And the gentleman from Texas wants them considered 
    at one time?
        Mr. Sumners of Texas: Yes.
        There being no objection, the Clerk read the resolutions, as 
    follows:

                              House Resolution 439

            Resolved, That Hatton W. Sumners, Randolph Perkins, and Sam 
        Hobbs, Members of this House, be, and they are hereby, 
        appointed managers to conduct the impeachment against Halsted 
        L. Ritter, United States district judge for the southern 
        district of Florida; that said managers are hereby instructed 
        to ap

[[Page 2211]]

        pear before the Senate of the United States and at the bar 
        thereof in the name of the House of Representatives and of all 
        the people of the United States to impeach the said Halsted L. 
        Ritter of high crimes and misdemeanors in office and to exhibit 
        to the Senate of the United States the articles of impeachment 
        against said judge which have been agreed upon by this House; 
        and that the said managers do demand that the Senate take order 
        for the appearance of said Halsted L. Ritter to answer said 
        impeachment, and demand his impeachment, conviction, and 
        removal from office.

                              House Resolution 440

            Resolved, That a message be sent to the Senate to inform 
        them that this House has impeached for high crimes and 
        misdemeanors Halsted L. Ritter, United States district judge 
        for the southern district of Florida, and that the House 
        adopted articles of impeachment against said Halsted L. Ritter, 
        judge as aforesaid, which the managers on the part of the House 
        have been directed to carry to the Senate, and that Hatton W. 
        Sumners, Randolph Perkins, and Sam Hobbs, Members of this 
        House, have been appointed such managers.

                              House Resolution 441

            Resolved, That the managers on the part of the House in the 
        matter of the impeachment of Halsted L. Ritter, United States 
        district judge for the southern district of Florida, be, and 
        they are hereby, authorized to employ legal, clerical, and 
        other necessary assistants and to incur such expenses as may be 
        necessary in the preparation and conduct of the case, to be 
        paid out of the contingent fund of the House on vouchers 
        approved by the managers, and the managers have power to send 
        for persons and papers, and also that the managers have 
        authority to file with the Secretary of the Senate, on the part 
        of the House of Representatives, any subsequent pleadings which 
        they shall deem necessary: Provided, That the total 
        expenditures authorized by this resolution shall not exceed 
        $2,500.

        Mr. Snell: Mr. Speaker, may I ask the gentleman from Texas one 
    further question? Is this exactly the procedure that has always 
    been followed by the House under similar conditions?
        Mr. Sumners of Texas: Insofar as I know, it does not vary from 
    the procedure that has been followed since the beginning of the 
    Government.

    The resolutions were agreed to.

House-Senate Communications

Sec. 18.6 The House having notified the Senate of its impeachment of 
    Judge Halsted Ritter, the Senate communicated its readiness to 
    receive the House managers and discussed the Senate rules for 
    impeachment trials.

    On Mar. 9, 1936, Vice President John N. Garner laid before the 
Senate a communication from the House of Representatives:

                                        House Resolution 440
                                                  In the House
                                             of Representatives,
                                     United States, March 6, 1936.

        Resolved, That a message be sent to the Senate to inform them 
    that this House has impeached for high crimes and misdemeanors 
    Halsted L. Ritter, United States district judge for the southern 
    district of Florida, and that

[[Page 2212]]

    the House adopted articles of impeachment against said Halsted L. 
    Ritter, judge as aforesaid, which the managers on the part of the 
    House have been directed to carry to the Senate, and that Hatton W. 
    Sumners, Randolph Perkins, and Sam Hobbs, Members of this House, 
    have been appointed such managers.

    The Senate adopted the following order:

        Ordered, That the Secretary inform the House of Representatives 
    that the Senate is ready to receive the managers appointed by the 
    House for the purpose of exhibiting articles of impeachment against 
    Halsted L. Ritter, United States district judge for the southern 
    district of Florida, agreeably to the notice communicated to the 
    Senate, and that at the hour of 1 o'clock p.m. on Tuesday, March 
    10, 1936, the Senate will receive the honorable managers on the 
    part of the House of Representatives, in order that they may 
    present and exhibit the said articles of impeachment against the 
    said Halsted L. Ritter, United States district judge for the 
    southern district of Florida.
        The Vice President: The Secretary will carry out the order of 
    the senate (15)
---------------------------------------------------------------------------
15. 80 Cong. Rec. 3423, 3424, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

    Senator Elbert D. Thomas, of Utah, discussed the function of the 
Senate in sitting as a court of impeachment and inquired whether any 
review was being undertaken of the Senate rules for impeachment trials.
    Senator Henry F. Ashurst, of Arizona, responded that the Senate 
Committee on the Judiciary had considered the rules and cited a change 
recently made in the rules for impeachment trials:

        It will be remembered that in the trial of the Louderback case 
    it was suggested that the trial was dreary, involved, and 
    protracted, and that it was not according to public policy to have 
    96 Senators sit and take testimony. Subsequently, not a dozen, not 
    20, but at least 40 Senators urged that the Senate Committee on the 
    Judiciary give its attention to the question whether or not a 
    committee appointed by the Presiding Officer could take the 
    testimony in impeachment trials, whereupon a resolution was 
    introduced by the chairman of the Senate Committee on the Judiciary 
    and was adopted. I ask that that resolution be incorporated in my 
    remarks at this point.
        The President Pro Tempore:(16) Without objection, it 
    is so ordered.
---------------------------------------------------------------------------
16. Key Pittman (Nev.).
---------------------------------------------------------------------------

        The resolution is as follows (Submitted by Mr. Ashurst):

            Resolved, That in the trial of any impeachment the 
        Presiding Officer of the Senate, upon the order of the Senate, 
        shall appoint a committee of 12 Senators to receive evidence 
        and take testimony at such times and places as the committee 
        may determine, and for such purpose the committee so appointed 
        and the chairman thereof, to be elected by the committee, shall 
        (unless otherwise ordered by the Senate) exercise all the 
        powers and functions conferred upon the Senate and the 
        Presiding Officer of the Senate, respectively,

[[Page 2213]]

        under the rules of procedure and practice in the Senate when 
        sitting on impeachment trials.
            Unless otherwise ordered by the Senate, the rules of 
        procedure and practice in the Senate when sitting on 
        impeachment trials shall govern the procedure and practice of 
        the committee so appointed. The committee so appointed shall 
        report to the Senate in writing a certified copy of the 
        transcript of the proceedings and testimony had and given 
        before such committee, and such report shall be received by the 
        Senate and the evidence so received and the testimony so taken 
        shall be considered to all intents and purposes, subject to the 
        right of the Senate to determine competency, relevancy, and 
        materiality, as having been received and taken before the 
        Senate, but nothing herein shall prevent the Senate from 
        sending for any witness and hearing his testimony in open 
        Senate, or by order of the Senate having the entire trial in 
        open Senate.

        Mr. Ashurst: The resolution was agreed to by the Senate. It 
    does not provide for a trial by 12 Senators. It simply provides 
    that a committee of 12, appointed by the Presiding Officer of the 
    Senate, may take the testimony, the Senate declaring and 
    determining in advance whether it desires that procedure, or 
    otherwise, and that after such evidence is taken by this committee 
    of 12, the Senate reviews the testimony in its printed form, and 
    the Senate may take additional testimony or may then rehear the 
    testimony of any of the witnesses heard by the committee. The 
    Senate reserves to itself every power and every authority it has 
    under the Constitution.
        It could not be expected that I would draw, present, and urge 
    the Senate to pass such resolution and then subsequently decline to 
    defend it, but I am not defending it more than to say that, in my 
    opinion, it is perfectly constitutional to do what the resolution 
    provides. If the Senate so desired, it could appoint a committee to 
    take the testimony, which would be reduced to writing, and be laid 
    before the Senators the next morning in the Congressional Record. 
    If a Senator were absent during one day of the trial, he could read 
    the testimony as printed the next morning.(17)
---------------------------------------------------------------------------
17. 80 Cong. Rec. 3424, 3425, 74th Cong. 2d Sess. For the adoption of 
        the change referred to by Senator Ashurst, see 79 Cong. Rec. 
        8309, 8310, 74th Cong. 1st Sess., May 28, 1935.
---------------------------------------------------------------------------

    Senator Warren R. Austin, of Vermont, of the Committee on the 
Judiciary, asked unanimous consent to have printed in the Record a 
ruling, cited in 3 Hinds' Precedents section 2006, that an impeachment 
trial could only proceed when Congress was in session.(18)
---------------------------------------------------------------------------
18. Id. at p. 3426.
---------------------------------------------------------------------------

Initiation of Impeachment Trial

Sec. 18.7 The managers on the part of the House appeared in the Senate, 
    read the articles, reserved their right to amend them, and demanded 
    that Judge Halsted Ritter be put to answer the charges; the Senate 
    organized for

[[Page 2214]]

    trial as a Court of Impeachment.

    On Mar. 10, 1936, pursuant to the Senate's order of Mar. 9, the 
managers on the part of the House appeared before the bar of the Senate 
and were announced by the Secretary to the majority, who escorted them 
to their assigned seats.
    Vice President John N. Garner directed the Sergeant at Arms to make 
proclamation:

        The Sergeant at Arms, Chesley W. Jurney, made proclamation, as 
    follows:
        Hear ye! Hear ye! Hear ye! All persons are commanded to keep 
    silent, on pain of imprisonment, while the House of Representatives 
    is exhibiting to the Senate of the United States articles of 
    impeachment against Halsted L. Ritter, United States district judge 
    in and for the southern district of Florida.(19)
---------------------------------------------------------------------------
19. 80 Cong. Rec. 3485, 74th Cong. 2d Sess.
            For the text of the proceedings in the Senate upon the 
        appearance of the managers to present the articles of 
        impeachment against Judge Ritter, see Sec. 11.4, supra.
---------------------------------------------------------------------------

    Representative Hatton W. Sumners, of Texas, read the resolution 
adopted by the House (H. Res. 439) which directed the managers to 
appear before the bar of the Senate. Representative Sam Hobbs, of 
Alabama, read the articles of impeachment, the Vice President 
requesting that he stand at the desk in front of the Chair: 
(20)
---------------------------------------------------------------------------
20. 80 Cong. Rec. 3486-88, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. Manager Hobbs, from the place suggested by the Vice 
    President, said:
        Mr. President and gentlemen of the Senate:

             Articles of Impeachment Against Halsted L. Ritter

         House Resolution 422, Seventy-fourth Congress, second session

                    Congress of the United States of America

               In the House of Representatives, United States
                                                    March 2, 1936.

            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 House Resolution 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

[[Page 2215]]

            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'' (No. 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, Hon. Alexander 
        Akerman, to fix and determine 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,

[[Page 2216]]

        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 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 & 
        Operating Co., which company had been adjudicated in said 
        district as a bankrupt, and as such trustee took charge of the 
        assets of said Whitehall Building & Operating Co., 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 sale 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, N.Y.,

[[Page 2217]]

        and the said Rankin and Richardson went from West Palm Beach, 
        Fla., to Brooklyn, N.Y., 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 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 hereinbefore 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 of May 1930 the said Judge Ritter 
        allowed the

[[Page 2218]]

        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 Alexander 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 following 
        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

[[Page 2219]]

        $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 & 
        Operating Co. 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.

                                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 
        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 & 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 Co. of 
        Georgia and Robert G. Stephens, trustees, against Brazilian 
        Court Building Corporation and others, No. 5704 in the Circuit 
        Court of the Fifteenth Judicial Circuit of Florida, and after 
        the final decree had been entered in said cause, and after the 
        fee of $4,000 which had been agreed upon at the

[[Page 2220]]

        outset of said employment had been fully paid to the firm of 
        Ritter & 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 & 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 & Eisner, 
        was one of the directors, was drawn, payable to the order of 
        ``Hon. Halsted L. Ritter'' for $2,000, and which was duly 
        endorsed ``Hon. 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 his said 
        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, Fla., said holdings being within 
        the territorial jurisdiction of the United States district 
        court, of which Judge Ritter was a judge from February 15, 
        1929.
            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, 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

[[Page 2221]]

        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 said Judge Ritter by his actions and conduct, as an 
        individual and as such judge, has brought his court into 
        scandal and disrepute, to the prejudice of said court and 
        public confidence in the administration of justice in his said 
        court, and to the prejudice of public respect for and 
        confidence in the Federal judiciary:
            1. In that in the Florida Power Co. case (Florida Power & 
        Light Co. against City of Miami and others, No. 1183-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 2 weeks after a resolution (H. Res. 163, 73d Cong.) had 
        been agreed to in the House of Representatives of the Congress 
        of the United States authorizing and directing the Judiciary 
        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 power 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 Co. of Florida cases (Illick 
        against Trust Co. of Florida et al., No. 1043-M-Eq., and 
        Edmunds Committee et al. against Marlon Mortgage Co. et al., 
        No. 1124-M-Eq.) after the State banking department of Florida, 
        through its comptroller, Honorable Ernest Amos, had closed the 
        doors of the Trust Co. of Florida and appointed J. H. Therrell 
        liquidator for said trust company, and had interviewed 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 S. 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. Marion Mortgage Co. was a 
        subsidiary of the Trust Co. 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

[[Page 2222]]

        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, Fla.--a court of 
        the State of Florida--alleging that the various trust 
        properties of the Trust Co. 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 
        Co. 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 ], 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 Co. 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 Judge Ritter, or the 
        court in which he presided, had been without jurisdiction in 
        the matter of the appointment of said Eaton and Stearns as 
        receivers. 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 
        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 said time having large 
        property interests within the territorial jurisdiction of the 
        court of which Judge Ritter was a judge. On, to wit, the 4th 
        day of April 1929 the said Judge Ritter accepted the sum of 
        $2,000 from said Brodek, Raphael & Eisner, representing Mulford 
        Realty Corporation, through his attorney, Charles A. Brodek, as 
        a fee or gratuity, at which time the said Mulford Realty 
        Corporation held and owned large

[[Page 2223]]

        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, 
        Fla., said holdings being within the territorial jurisdiction 
        of the United States District Court of which Judge Ritter was a 
        judge from February 15, 1929.
            4. By his conduct as detailed in articles I and II 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.
            Attest:
                                              Joseph W. Byrns,
                                                  Speaker of the
                                       House of Representatives.
                                                South Trimble,
                                                            Clerk.

    Representative Sumners entered a reservation of the right of the 
House to amend or supplement the articles and demanded that the 
respondent be put to trial:

        Mr. Manager Sumners: Mr. President, the House of 
    Representatives, by protestation, saving themselves the liberty of 
    exhibiting at any time hereafter any further articles of accusation 
    or impeachment against the said Halsted L. Ritter, district judge 
    of the United States for the southern district of Florida, and also 
    of replying to his answers which he shall make unto the articles 
    preferred against him, and of offering proof to the same and every 
    part thereof, and to all and every other article of accusation or 
    impeachment which shall be exhibited by them as the case shall 
    require, do demand that the said Halsted L. Ritter may be put to 
    answer the misdemeanors in office which have been charged against 
    him in the articles which have been exhibited to the Senate, and 
    that such proceedings, examinations, trials, and judgments may be 
    thereupon had and given as may be agreeable to law and justice.
        Mr. President, the managers on the part of the House of 
    Representatives, in pursuance of the action of the House of 
    Representatives by the adoption of the articles of impeachment 
    which have just been read to the Senate, do now demand that the 
    Senate take order for the appearance of the said Halsted L. Ritter 
    to answer said impeachment, and do now demand his impeachment, 
    conviction, and removal from office.
        The Vice President: The Senate wild take proper order and 
    notify the House of Representatives.(1)
---------------------------------------------------------------------------
 1. Id. at p. 3488.
---------------------------------------------------------------------------

    The most senior Member of the Senate, Senator William E. Borah, of 
Idaho, then administered the oath to Vice President Garner, who 
administered the oath to the other Senators present.
    The Sergeant at Arms made proclamation that the Senate was then 
sitting as a Court of Impeachment. Orders were adopted notifying the 
House of the organization of the court and issuing a summons to the 
respondent.(2)
---------------------------------------------------------------------------
 2. Id. at pp. 3488, 3489. For the text of the proceedings whereby the 
        Senate organized for the Ritter impeachment trial, see 
        Sec. 11.5, supra.
---------------------------------------------------------------------------

Sec. 18.8 In response to a summons, Judge Halsted Ritter

[[Page 2224]]

    appeared before the Senate sitting as a Court of Impeachment.

    On Mar. 12, 1936, respondent Halsted Ritter appeared before the 
Court of Impeachment pursuant to the summons previously issued, and 
filed an entry of appearance: (3)
---------------------------------------------------------------------------
 3. 80 Cong. Rec. 3646, 3647, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

        The Vice President: (4) . . . The Secretary will 
    read the return of the Sergeant at Arms.
---------------------------------------------------------------------------
 4. John N. Garner (Tex.).
---------------------------------------------------------------------------

        The Chief Clerk read as follows:

          Senate of the United States, Office of the Sergeant at Arms.

            The foregoing writ of summons addressed to Halsted L. 
        Ritter, and the foregoing precept, addressed to me, were duly 
        served upon the said Halsted L. Ritter by me by delivering true 
        and attested copies of the same to the said Halsted L. Ritter 
        at the Carlton Hotel, Washington, D.C., on Thursday, the 12th 
        day of March 1936, at 11 o'clock in the forenoon of that day.
                                            Chesley W. Jurney,
                                               Sergeant at Arms,
                                             United States Senate.

        The Vice President: The Secretary of the Senate will administer 
    the oath to the Sergeant at Arms.
        The Secretary of the Senate, Edwin A. Halsey, administered the 
    oath to the Sergeant at Arms, as follows:

            You, Chesley W. Jurney, do solemnly swear that the return 
        made by you upon the process issued on the 10th day of March 
        1936 by the Senate of the United States against Halsted L. 
        Ritter, United States district judge for the southern district 
        of Florida, is truly made, and that you have performed such 
        service as therein described. So help you God.

        The Vice President: The Sergeant at Arms will make 
    proclamation.
        The Sergeant at Arms made proclamation as follows:
        Halsted L. Ritter! Halsted L. Ritter! Halsted L. Ritter! United 
    States district judge for the southern district of Florida, appear 
    and answer to the articles of impeachment exhibited by the House of 
    Representatives against you.
        The respondent, Halsted L. Ritter, and his counsel, Frank P. 
    Walsh, Esq., of New York City, N.Y., and Carl T. Hoffman, Esq., of 
    Miami, Fla., entered the Chamber and were conducted to the seats 
    assigned them in the space in front of the Secretary's desk, on the 
    right of the Chair.
        The Vice President: Counsel for the respondent are advised that 
    the Senate is now sitting for the trial of articles of impeachment 
    exhibited by the House of Representatives against Halsted L. 
    Ritter, United States district judge for the southern district of 
    Florida.
        Mr. Walsh (of counsel): May it please you, Mr. President, and 
    honorable Members of the Senate, I beg to inform you that, in 
    response to your summons, the respondent, Halsted L. Ritter, is now 
    present with his counsel and asks leave to file a formal entry of 
    appearance.
        The Vice President: Is there objection? The Chair hears none, 
    and the appearance will be filed with the Secretary, and will be 
    read.
        The Chief Clerk read as follows:

[[Page 2225]]

    In the Senate of the United States of America Sitting as a Court of 
                                Impeachment
                                                   March 12, 1936.

               The United States of America v. Halsted L. Ritter

            The respondent, Halsted L. Ritter, having this day been 
        served with a summons requiring him to appear before the Senate 
        of the United States of America in the city of Washington, 
        D.C., on March 12, 1936, at 1 o'clock afternoon to answer 
        certain articles of impeachment presented against him by the 
        House of Representatives of the United States of America, now 
        appears in his proper person and also by his counsel, who are 
        instructed by this respondent to inform the Senate that 
        respondent stands ready to file his pleadings to such articles 
        of impeachment within such reasonable period of time as may be 
        fixed.
            Dated March 12, 1936.

Sec. 18.9 The Senate, sitting as a Court of Impeachment, excused a 
    Senator from service at his request, fixed a trial date, allowed 
    respondent 18 days to file his answer, and adopted supplemental 
    rules for trial.

    On Mar. 12, 1936, the Senate convened as a Court of Impeachment in 
the Halsted Ritter case. Preceding the administration of the oath to 
members not theretofore sworn, the court granted the request of Senator 
Edward P. Costigan, of Colorado, that he be excused from service on the 
Court of Impeachment. Senator Costigan caused to be printed in the 
Record the reasons for his request, based on a long personal 
acquaintance with the respondent.(5)
---------------------------------------------------------------------------
 5. 80 Cong. Rec. 3646, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

    The Senate ratified an agreement, between the managers and counsel 
for the respondent, as to the time permitted the respondent to file his 
answer with the Court of Impeachment:

        Mr. [Joseph T.] Robinson [of Arkansas]: Mr. President, I think 
    there is not a clear understanding as to the arrangement which has 
    been entered into between the managers and the counsel for the 
    respondent. It is my understanding, and if I am in error someone 
    who is better informed will please correct me, that the agreement 
    is that counsel for the respondent will place their response in the 
    possession of the managers on the part of the House not later than 
    the 26th instant, and that the Court may reconvene again on the 
    30th when the response will be filed in the Senate.
        The Vice President: (6) Is there objection to that 
    agreement?
---------------------------------------------------------------------------
 6. John N. Garner (Tex.).
---------------------------------------------------------------------------

    There was no objection.(7)
---------------------------------------------------------------------------
 7. 80 Cong. Rec. 3647, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

    The Court of Impeachment adopted a motion fixing the trial date at 
Apr. 6, 1936.(8)
---------------------------------------------------------------------------
 8. Id. at p. 3648.
---------------------------------------------------------------------------

    The court adopted supplemental rules, which Senator Henry F.

[[Page 2226]]

Ashurst, of Arizona, stated to be the same as those adopted in the 
trial of Judge Harold Louderback:

        Ordered, That in addition to the rules of procedure and 
    practice in the Senate when sitting on impeachment trials, 
    heretofore adopted, and supplementary to such rules, the following 
    rules shall be applicable in the trial of the impeachment of 
    Halsted L. Ritter, United States judge for the southern district of 
    Florida:
        1. In all matters relating to the procedure of the Senate, 
    whether as to form or otherwise, the managers on the part of the 
    House or the counsel representing the respondent may submit a 
    request or application orally to the Presiding Officer, or, if 
    required by him or requested by any Senator, shall submit the same 
    in writing.
        2. In all matters relating immediately to the trial, such as 
    the admission, rejection, or striking out of evidence, or other 
    questions usually arising in the trial of causes in courts of 
    justice, if the managers on the part of the House or counsel 
    representing the respondent desire to make any application, 
    request, or objection, the same shall be addressed directly to the 
    Presiding Officer and not otherwise.
        3. It shall not be in order for any Senator, except as provided 
    in the rules of procedure and practice in the Senate when sitting 
    on impeachment trials, to engage in colloquy or to address 
    questions either to the managers on the part of the House or to 
    counsel for the respondent, nor shall it be in order for Senators 
    to address each other; but they shall address their remarks 
    directly to the Presiding Officer and not otherwise.
        4. The parties may, by stipulation in writing filed with the 
    Secretary of the Senate and by him laid before the Senate or 
    presented at the trial, agree upon any facts involved in the trial; 
    and such stipulation shall be received by the Senate for all 
    intents and purposes as though the facts therein agreed upon had 
    been established by legal evidence adduced at the trial.
        5. The parties or their counsel may interpose objection to 
    witnesses answering questions propounded at the request of any 
    Senator, and the merits of any such objection may be argued by the 
    parties or their counsel; and the Presiding Officer may rule on any 
    such objection, which ruling shall stand as the judgment of the 
    Senate, unless some Member of the Senate shall ask that a formal 
    vote be taken thereon, in which case it shall be submitted to the 
    Senate for decision; or he may, at his option, in the first 
    instance submit any such question to a vote of the Members of the 
    Senate. Upon all such questions the vote shall be without debate 
    and without a division, unless the ayes and nays be demanded by 
    one-fifth of the Members present when the same shall be 
    taken.(9)
---------------------------------------------------------------------------
 9. Id.
---------------------------------------------------------------------------

Amendment of Articles of Impeachment

Sec. 18.10 The House adopted a resolution, reported as privileged by 
    the managers on the part of the House in the Halsted Ritter 
    impeachment, amending the articles previously voted by the House.

[[Page 2227]]

    On Mar. 30, 1936,(10) Mr. Hatton W. Sumners, of Texas, 
called up the following privileged resolution (H. Res. 471) amending 
the articles of impeachment against Judge Ritter:
---------------------------------------------------------------------------
10. 80 Cong. Rec. 4597-99. 74th Cong. 2d Sess.
---------------------------------------------------------------------------

        Resolved, That the articles of impeachment heretofore adopted 
    by the House of Representatives in and by House Resolution 422, 
    House Calendar No. 279, be, and they are hereby, amended as 
    follows:
        Article III is amended so as to read as follows:

                                 Article II

            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 after the employment of the law 
        firm of Ritter & 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 Co. of 
        Georgia and Robert G. Stephens, Trustee v. Brazilian Court 
        Building Corporation et al., no. 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 & 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 attorney's 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 & Eisner,

[[Page 2228]]

        a law firm of New York City, representing Mulford Realty 
        Corporation, in which Charles A. Brodek, senior member of the 
        firm of Brodek, Raphael & Eisner, was one of the directors, was 
        drawn, payable to the order of ``Hon. Halsted L. Ritter'' for 
        $2,000 and which was duly endorsed ``Hon. 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 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, Fla., 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.

        By adding the following articles immediately after article III 
    as amended:

                                 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 engaged 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 therein, or in 
        obtaining a deed or deeds to J. R. Francis from the Spanish 
        River Land Co. to certain pieces of realty, and in the 
        Edgewater Ocean Beach Development Co. 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.

[[Page 2229]]

            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 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 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 solicited 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.
            Original article IV is amended so as to read as follows:

                               ``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 
        confidence in the admin

[[Page 2230]]

        istration 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 Co. case (Florida Power & 
        Light Co. v. City of Miami et al., no. 1183-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 2 weeks after a 
        resolution (H. Res. 163, 73d Cong.) had been agreed to in the 
        House of Representatives of the Congress of the United States, 
        authorizing and directing the Judiciary 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 
        power 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 Co. of Florida cases (Illick v. 
        Trust Co. of Florida et al., no. 1043-M-Eq., and Edmunds 
        Committee et al. v. Marion Mortgage Co. et al., no. 1124-M-
        Eq.), after the State Banking Department of Florida, through 
        its comptroller, Hon. Ernest Amos, had closed the doors of the 
        Trust Co. 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 S. 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. 
        Marion Mortgage Co. was a subsidiary of the Trust Co. 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, Hon. 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

[[Page 2231]]

        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, Fla.--a court of the State of Florida--alleging 
        that the various trust properties of the Trust Co. 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 Co. 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, Hon. J. M. Lee succeeded Hon. Ernest 
        Amos as comptroller of the State of Florida and appointed M. A. 
        Smith liquidator in said Trust Co. 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 
        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 said 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 & 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 
        holdings being within the territorial jurisdiction of the 
        United States District

[[Page 2232]]

        Court of which 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.''

    The House adopted the resolution amending the articles after Mr. 
Sumners discussed its provisions and stated his opinion that the 
managers had the power to report amendments to the articles:

        Mr. Sumners of Texas: Mr. Speaker, the resolution which has 
    just been read proposes three new articles. The change is not as 
    important as that statement would indicate. Two of the new articles 
    deal with income taxes, and one with practicing law by Judge 
    Ritter, after he went on the bench. In the original resolution, the 
    charge is made that Judge Ritter received certain fees or 
    gratuities and had written a letter, and so forth. No change is 
    proposed in articles 1 and 2. In article 3, as stated, Judge Ritter 
    is charged with practicing law after he went on the bench. That 
    same thing, in effect, was charged, as members of the committee 
    will remember, in the original resolution, but the form of the 
    charge, in the judgment of the managers, could be improved. These 
    charges go further and charge that in the matter connected with J. 
    R. Francis, the judge acted as counsel in two transactions after he 
    went on the bench, and received $7,500 in compensation. Article 7 
    is amended to include a reference to these new charges. There is a 
    change in the tense used with reference to the effect of the 
    conduct alleged. It is charged, in the resolution pending at the 
    desk, that the reasonable and probable consequence of the alleged 
    conduct is to injure the confidence of the people in the courts--I 
    am not attempting to quote the exact language--which is a matter of 
    form, I think, more than a matter of substance.
        Mr. [Bertrand H.] Snell [of New York]: Mr. Speaker, will the 
    gentleman yield?
        Mr. Sumners of Texas: Yes.
        Mr. Snell: I may not be entirely familiar with all this 
    procedure, but as I understand, what the gentleman is doing here 
    today, is to amend the original articles of impeachment passed by 
    the House.
        Mr. Sumners of Texas: That is correct.
        Mr. Snell: The original articles of impeachment came to the 
    House as a result of the evidence before the gentleman's committee. 
    Has the gentleman's committee had anything to do with the change or 
    amendment of these charges?
        Mr. Sumners of Texas: No; just the managers.
        Mr. Snell: As a matter of procedure, would not that be the 
    proper thing to do?
        Mr. Sumners of Texas: I do not think it is at all necessary, 
    for this reason: The managers are now acting as the agents of the 
    House, and not as the agents of the Committee on the Judiciary. Mr. 
    Manager Perkins and Mr. Manager Hobbs have recently extended the 
    investigation made by the committee.

[[Page 2233]]

        Mr. Snell: Mr. Speaker, will the gentleman yield further?
        Mr. Sumners of Texas: Yes.
        Mr. Snell: Do I understand that the amendments come because of 
    new information that has come to you as managers that never was 
    presented to the Committee on the Judiciary?
        Mr. Sumners of Texas: Perhaps it would not be true to answer 
    that entirely in the affirmative, but the changes are made largely 
    by reason of new evidence which has come to the attention of the 
    committee, and some of these changes, more or less changes in form, 
    have resulted from further examination of the question. This is 
    somewhat as lawyers do in their pleadings. They often ask the 
    privilege of making an amendment.
        Mr. Snell: And the gentleman's position is that as agents of 
    the House it is not necessary to have the approval of his 
    committee, which made the original impeachment charges?
        Mr. Sumners of Texas: I have no doubt about that; I have no 
    doubt about the accuracy of that statement.

Sec. 18.11 Following the amendment of the articles of impeachment 
    against Judge Halsted Ritter, the House adopted a resolution to 
    inform the Senate thereof.

    On Mar. 30, 1936,(11) following the amendment by the 
House of the articles in the impeachment against Judge Ritter, the 
Senate was informed by resolution thereof:
---------------------------------------------------------------------------
11. 80 Cong. Rec. 4601, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. [Hatton W.] Sumners of Texas: Mr. Speaker, I offer the 
    following privileged resolution.
        The Clerk read as follows:

                            House Resolution 472

            Resolved, That a message be sent to the Senate by the Clerk 
        of the House informing the Senate that the House of 
        Representatives has adopted an amendment to the articles of 
        impeachment heretofore exhibited against Halsted L. Ritter, 
        United States district judge for the southern district of 
        Florida, and that the same will be presented to the Senate by 
        the managers on the part of the House.
            And also, that the managers have authority to file with the 
        Secretary of the Senate, on the part of the House any 
        subsequent pleadings they shall deem necessary.

        The resolution was agreed to.
        A motion to reconsider was laid on the table.

    On Mar. 31, the amendments to the articles were presented to the 
Court of Impeachment and printed in the Record; (12) counsel 
for the respondent was granted 48 hours to file his response to the new 
articles.
---------------------------------------------------------------------------
12. Id. at pp. 4654-56.
---------------------------------------------------------------------------

Motions to Strike Articles

Sec. 18.12 During the impeachment trial of Judge Halsted Ritter, the 
    respondent moved to strike Article I or, in the

[[Page 2234]]

    alternative, to require election as to Articles I and II, and moved 
    to strike Article VII.

    On Mar. 31, 1936,(13) the respondent, Judge Ritter, 
filed the following motion:
    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 upon article II, and for grounds of such motion 
    respondent says:
---------------------------------------------------------------------------
13. 80 Cong. Rec. 4656, 4657, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

        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 separa

[[Page 2235]]

    tion 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.

                                     (Signed)  Frank P. Walsh,
                                                Carl T. Hoffman,
                                        Of Counsel for Respondent.

    Mr. Hoffman, counsel for respondent, argued that Article II 
duplicated charges set forth in Article I. He also contended that the 
rule of duplicity, or the principle of civil and criminal pleading that 
one count should contain no more than one charge or cause of action, 
was violated by Article VII.
    Mr. Sumners argued in response that Article II was clearly not a 
duplication of Article I, two distinct charges being presented. As to 
Article VII, Mr. Sumners contended that impeachment was essentially an 
ouster proceeding as opposed to a criminal proceeding. He referred to 
the fact that the articles of impeachment against Judge Harold 
Louderback had contained a similar article charging that ``by 
specifically alleged conduct'' the respondent ``has done those things 
the reasonable and probable consequences of which are to arouse a 
substantial doubt as to his judicial integrity.(14)
---------------------------------------------------------------------------
14. Id. at p. 4658.
            For Article V, as amended, in the Louderback impeachment, 
        charging such conduct as to destroy public confidence in the 
        court, see 6 Cannon's Precedents Sec. 520.
---------------------------------------------------------------------------

    At the suggestion of the Chair, decision on the motions of 
respondent were reserved for investigation and deliberation:

        Mr. [Henry F.] Ashurst [of Arizona]: Mr. President, I assume 
    that the Presiding Officer will desire to take some time to examine 
    all the pleadings and will not be prepared to announce a decision 
    on this point until the next session of the Court?
        The Presiding Officer [Nathan L. Bachman (Tenn.)]: It is the 
    opinion of the present occupant of the chair that while the 
    necessity for early decision is apparent, the importance of the 
    matter would justify the occupant of the chair in saying that no 
    decision should be made until the proceedings are printed and every 
    member of the Court has an opportunity to investigate and consider 
    them. Is there objection to that suggestion of the Chair? The Chair 
    hears none.(15)
---------------------------------------------------------------------------
15. Id. at p. 4659.
---------------------------------------------------------------------------

Sec. 18.13 On the respondent's motion to strike, the Chair overruled 
    that part of the motion which sought to strike Article I or to 
    require election between Articles I and II; the Chair submitted 
    that part of the motion which sought to strike Article VII to the 
    Court of Impeachment, which overruled that part of the motion.

[[Page 2236]]

    On Apr. 3, 1936,(16) the following disposition was made 
of the motion of the respondent, Judge Halsted Ritter, to strike 
certain articles:
---------------------------------------------------------------------------
16. 80 Cong. Rec. 4898, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

        The Presiding Officer [Nathan L. Bachman (Tenn.)]: On the 
    motion of the honorable counsel for the respondent to strike 
    article I of the articles of impeachment or, in the alternative, to 
    require the honorable managers on the part of the House to make an 
    election as to whether they will stand upon article I or upon 
    article II, the Chair is ready to rule.
        The Chair is clearly of the opinion that the motion to strike 
    article I or to require an election is not well taken and should be 
    overruled.
        His reason for such opinion is that articles I and II present 
    entirely different bases for impeachment.
        Article I alleges the illegal and corrupt receipt by the 
    respondent of $4,500 from his former law partner, Mr. Rankin.
        Article II sets out as a basis for impeachment an alleged 
    conspiracy between Judge Ritter; his former partner, Mr. Rankin; 
    one Richardson, Metcalf & Sweeny; and goes into detail as to the 
    means and manner employed whereby the respondent is alleged to have 
    corruptly received the $4,500 above mentioned.
        The two allegations, one of corrupt and illegal receipt and the 
    other of conspiracy to effectuate the purpose, are, in the judgment 
    of the Chair, wholly distinct, and the respondent should be called 
    to answer each of the articles.
        What is the judgment of the Court with reference to that 
    particular phase of the motion to strike?
        Mr. [William H.] King [of Utah]: Mr. President, if it be 
    necessary, I move that the ruling of the honorable Presiding 
    Officer be considered as and stand for the judgment of the Senate 
    sitting as a Court of Impeachment.
        The Presiding Officer: Is there objection? The Chair hears 
    none, and the ruling of the Chair is sustained, by the Senate.
        With reference to article VII of the articles of impeachment, 
    formerly article IV, the Chair desires to exercise his prerogative 
    of calling on the Court for a determination of this question.
        His reason for so doing is that an impeachment proceeding 
    before the Senate sitting as a Court is sui generis, partaking 
    neither of the harshness and rigidity of the criminal law nor of 
    the civil proceedings requiring less particularity.
        The question of duplicity in impeachment proceedings presented 
    by the honorable counsel for the respondent is a controversial one, 
    and the Chair feels that it is the right and duty of each Member of 
    the Senate, sitting as a Court, to express his views thereon.
        Precedents in proceedings of this character are rare and not 
    binding upon this Court in any course that it might desire to 
    pursue.
        The question presented in the motion to strike article VII on 
    account of duplicity has not, so far as the Chair is advised, been 
    presented in any impeachment proceeding heretofore had before this 
    body.
        The Chair therefore submits the question to the Court.

[[Page 2237]]

        Mr. [Henry F.] Ashurst [of Arizona]: Mr. President, under the 
    rules of the Senate, sitting as a Court of Impeachment, all such 
    questions, when submitted by the Presiding Officer, shall be 
    decided without debate and without division, unless the yeas and 
    nays are demanded by one-fifth of the Members present, when the 
    yeas and nays shall be taken.
        The Presiding Officer: The Chair therefore, will put the 
    motion. All those in favor of the motion of counsel for the 
    respondent to strike article VII will say ``aye.'' Those opposed 
    will say ``no.''
        The noes have it, and the motion in its entirety is overruled.

Sec. 18.14 During the impeachment trial of Judge Halsted Ritter, the 
    managers on the part of the House made and the Senate granted a 
    motion to strike certain specifications from an article of 
    impeachment.

    On Apr. 3, 1936,(17) during the impeachment trial of 
Judge Ritter, the managers on the part of the House moved that two 
counts be stricken. The motion was granted by the Senate:
---------------------------------------------------------------------------
17. 80 Cong. Rec. 4899, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. Manager [Hatton W.] Sumners [of Texas] (speaking from the 
    desk in front of the Vice President): Mr. President, the suggestion 
    which the managers desire to make at this time has reference to 
    specifications 1 and 2 of article VII. These two specifications 
    have reference to what I assume counsel for respondent and the 
    managers as well, recognize are rather involved matters, which 
    would possibly require as much time to develop and to argue as 
    would be required on the remainder of the case.
        The managers respectfully move that those two counts be 
    stricken. If that motion shall be sustained, the managers will 
    stand upon the other specifications in article VII to establish 
    article VII. The suggestion on the part of the managers is that 
    those two specifications in article VII be stricken from the 
    article.
        The Presiding Officer: (18) What is the response of 
    counsel for the respondent?
---------------------------------------------------------------------------
18. Nathan L. Bachman (Tenn.).
---------------------------------------------------------------------------

        Mr. [Charles L.] McNary [of Oregon]: Mr. President, there was 
    so much rumbling and noise in the Chamber that I did not hear the 
    position taken by the managers on the part of the House.
        The Presiding Officer: The managers on the part of the House 
    have suggested that specifications 1 and 2 of article VII be 
    stricken on their motion. . . .
        Mr. Hoffman [of counsel]: Mr. President, the respondent is 
    ready to file his answer to article I, to articles II and III as 
    amended, and to articles IV, V, and VI. In view of the announcement 
    just made asking that specifications 1 and 2 of article VII be 
    stricken, it will be necessary for us to revise our answer to 
    article VII and to eliminate paragraphs 1 and 2 thereof. That can 
    be very speedily done with 15 or 20 minutes if it can be arranged 
    for the

[[Page 2238]]

    Senate to indulge us for that length of time.
        The Presiding Officer: Is there objection to the motion 
    submitted on the part of the managers?
        Mr. Hoffman: We have no objection.
        The Presiding Officer: The motion is made. Is there objection? 
    The Chair hears none, and the motion to strike is granted.
        Mr. [Joseph T.] Robinson [of Arkansas]: Mr. President, it would 
    seem that in the interest of the conservation of time and for the 
    convenience of the Court, the motion should have been made prior to 
    the decision on the question involved in the motion of counsel to 
    strike certain articles. I merely make that observation for the 
    consideration of the Court.

Answer and Replication

Sec. 18.15 In the Ritter impeachment trial, an answer to the charges 
    was filed by the respondent, and a replication thereto was 
    submitted by the managers.

    On Apr. 3, 1936, the answer of the respondent in the Ritter 
impeachment was read in the Senate, ordered printed, and messaged to 
the House. The answer stated that the facts set forth therein did not 
constitute impeachable high crimes and misdemeanors and that the 
respondent was not guilty of the offenses charged.(19)
---------------------------------------------------------------------------
19. 80 Cong. Rec. 4899-4906, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

    On Apr. 6, the respondent's answer was laid before the House and 
referred to the managers on the part of the House.(20) On 
the same day, the managers filed a replication in the Senate, sitting 
as a Court of Impeachment, to the answer of the respondent Judge 
Ritter. The replication was prepared and submitted by the managers on 
their own initiative, the House not having voted thereon:(1)
---------------------------------------------------------------------------
20. Id. at p. 5020.
 1. Id. at pp. 4971, 4972.
---------------------------------------------------------------------------

    Replication of the House of Representatives of the United States of 
     America to the Answer of Halsted L. Ritter, District Judge of the 
    United States for the Southern District of Florida, to the Articles 
     of Impeachment, as Amended, Exhibited Against him by the House of 
              Representatives of the United States of America

        The House of Representatives of the United States of America, 
    having considered the several answers of Halsted L. Ritter, 
    district judge of the United States for the southern district of 
    Florida, to the several articles of impeachment, as amended, 
    against him by them exhibited in the name of themselves and of all 
    the people of the United States, and reserving to themselves all 
    advantages of exception to the insufficiency, irrelevancy, and 
    impertinency of his answer to each and all of the several articles 
    of impeachment, as amended, so exhibited against the said Halsted 
    L. Ritter, judge as aforesaid, do say:

[[Page 2239]]

        (1) That the said articles, as amended do severally set forth 
    impeachable offenses, misbehaviors, and misdemeanors as defined in 
    the Constitution of the United States, and that the same are proper 
    to be answered unto by the said Halsted L. Ritter, judge as 
    aforesaid, and sufficient to be entertained and adjudicated by the 
    Senate sitting as a Court of Impeachment.
        (2) That the said House of Representatives of the United States 
    of America do deny each and every averment in said several answers, 
    or either of them, which denies or traverses the acts, intents, 
    misbehaviors, or misdemeanors charged against the said Halsted L. 
    Ritter in said articles of impeachment, as amended, or either of 
    them, and for replication to said answers do say that Halsted L. 
    Ritter, district judge of the United States for the southern 
    district of Florida, is guilty of the impeachable offenses, 
    misbehaviors, and misdemeanors charged in said articles, as 
    amended, and that the House of Representatives are ready to prove 
    the same.
                                              Hatton W. Sumners,
                                        On behalf of the Managers.

The Trial; Arguments

Sec. 18.16 Opening statements and closing arguments in an impeachment 
    trial may consist of statements by the managers on the part of the 
    House and statements by counsel for the accused.

    On Apr. 6, 1936,(2) in the impeachment trial of Judge 
Halsted Ritter, opening statements were made in the Senate by the 
managers on the part of the House and by counsel for the 
accused.(3) The respondent himself testified before the 
Court of Impeachment.(4) Final arguments were made on Apr. 
13 and 14 first by Mr. Sam Hobbs, of Alabama, for the managers, then by 
Mr. Walsh for the respondent, and finally by Mr. Hatton W. Sumners, of 
Texas, for the managers, the arguments being limited by an order 
adopted on Apr. 13:
---------------------------------------------------------------------------
 2. 80 Cong. Rec. 4972-82, 74th Cong. 2d Sess.
 3. For precedents during the trial as to the evidence, see 
        Sec. Sec. 12.7-12.9, supra.
 4. 80 Cong. Rec. 5370-86, 74th Cong. 2d Sess., Apr. 11 and Apr. 13, 
        1936.
---------------------------------------------------------------------------

        Ordered, That the time for final argument of the case of 
    Halsted L. Ritter shall be limited to 4 hours, which said time 
    shall be divided equally between the managers on the part of the 
    House of Representatives and the counsel for the respondent, and 
    the time thus assigned to each side shall be divided as each side 
    for itself may determine.(5)
---------------------------------------------------------------------------
 5. Id. at p. 5401.
            For final arguments on Apr. 13, 1936, see id. at pp. 5401-
        10; for Apr. 14, 1936, see id. at pp. 5464-73.
---------------------------------------------------------------------------

    Mr. Hobbs argued three principles bearing on the weight of evidence 
and burden of proof in an impeachment trial:

        The statement of the law of the case, as we see it, will 
    largely be left to the distinguished chairman of the Judici

[[Page 2240]]

    ary Committee of the House [Mr. Manager Sumners], the chairman of 
    the managers on the part of the House in this case, and I will not 
    attempt to go into that, save to observe these three points which, 
    to my mind, should be in the minds of the Members of this high 
    Court of Impeachment at all times in weighing this evidence:
        First, that impeachment trials are not criminal trials in any 
    sense of the word.
        Second, that the burden of proof in this case is not ``beyond a 
    reasonable doubt'', as it is in criminal cases.
        Third, that the presumption of innocence, which attends a 
    defendant in a criminal case, is not to be indulged in behalf of 
    the respondent in an impeachment trial. Those three principles of 
    law, I believe, are well recognized, and we respectfully ask the 
    Members of this high Court of Impeachment to bear them in mind.
        The present distinguished senior Senator from Nebraska [Mr. 
    Norris], when acting as one of the managers on the part of the 
    House in the impeachment trial of Judge Robert W. Archbald, made as 
    clear and cogent a statement as has ever been made upon the subject 
    of impeachable conduct. With his kind permission, I should like to 
    take that as my text, so to speak, for the remarks that will 
    follow:

            If judges can hold their offices only during good behavior, 
        then it necessarily and logically follows that they cannot hold 
        their offices when they have been convicted of any behavior 
        that is not good. If good behavior is an essential of holding 
        the office, then misbehavior is a sufficient reason for removal 
        from office.(6)
---------------------------------------------------------------------------
 6. Id. at p. 5401.
---------------------------------------------------------------------------

    Mr. Walsh concluded his argument based on the lack of evidence of 
charges and on the good character and reputation of the respondent:

        Gentlemen, all I can say to you is that if this case were being 
    tried in an ordinary court a demurrer to the evidence would be 
    sustained. The law is that those bringing these charges must prove 
    the receipt of income; they must prove the amount that was paid out 
    against that income; they must prove what his exemptions were; they 
    must prove what his allowances were; they must prove a tax 
    liability. Those matters would all have been looked into, and as we 
    look into them in this case there is no tax liability. When Judge 
    Ritter swears he did not defraud the Government of a dollar, when 
    he says that the $6.25 tax was not due because his exemptions 
    exceeded that sum, the court would direct a verdict in his favor.
        In 1930 Judge Ritter had a loss which, added to his taxes and 
    other expenditures, gave him a leeway of $4,600 over and above the 
    income that he could be charged with having received. He testified 
    to this, and you ought to believe that he testified to the truth, 
    for a charge must be supported by something greater, I say, than 
    the mere assertion of counsel, and nothing else has been introduced 
    in this case in support of that charge. If Judge Ritter were found 
    guilty upon that charge, which was filed in this Court on March 30, 
    1936--after he came here to defend himself against the other 
    charges--that would be a monstrous thing. Those bringing the charge 
    did not, nor

[[Page 2241]]

    could they, make proof that Judge Ritter owed his Government a cent 
    of income taxes or that Judge Ritter did anything improper in the 
    filing of his return. It ought to be the pleasure of this body to 
    acquit him of the charges with respect to income taxes, because the 
    law protects him, because he is innocent of any offense in that 
    regard.
        Take this whole case in its entirety, gentlemen. I have tried 
    to argue it on the facts. I have drawn no conclusions which I did 
    not honestly believe came from these facts. My argument is backed 
    up by the belief that you must recognize and accept his innocence 
    as he stood here, a brave and manly man, testifying in opposition 
    to these charges which have been made against him. It will not do 
    to say that he undermined the dignity or the honor of the court. He 
    did nothing in his whole career in Florida, according to the 
    witnesses, which would belittle that dignity or besmirch his honor.
        There is another thing I wish to call to your attention. I know 
    and you know that a judge ought to have a good reputation. In this 
    case, however, where a charge is made against his integrity, where 
    a charge of corruption is made against him, he put his reputation 
    in that community in evidence before this body.(7)
---------------------------------------------------------------------------
 7. Id. at p. 5468.
---------------------------------------------------------------------------

    Mr. Sumners began and concluded his argument, the final argument in 
the case, as follows:

        We do not assume the responsibility, Members of this 
    distinguished Court, of proving that the respondent in this case is 
    guilty of a crime as that term is known to criminal jurisprudence. 
    We do assume the responsibility of bringing before you a case, 
    proven facts, the reasonable and probable consequences of which are 
    to cause the people to doubt the integrity of the respondent 
    presiding as a judge among a free people.
        We take the position, first, that justice must be done to the 
    respondent. The respondent must be protected against those who 
    would make him afraid. But we take the position also that when a 
    judge on the bench, by his own conduct, does that which makes an 
    ordinary person doubt his integrity, doubt whether his court is a 
    fair place to go, doubt whether he, that ordinary person, will get 
    a square deal there; doubt whether the judge will be influenced by 
    something other than the sworn testimony, that judge must go.
        This august body writes the code of judicial ethics. This Court 
    fixes the standard of permissible judicial conduct. It will not be, 
    it cannot be, that someone on the street corner will destroy the 
    confidence of the American people in the courts of this country. 
    That cannot happen if the courts are kept clean. If confidence in 
    the courts of this country is destroyed it is going to be destroyed 
    from within by the judges themselves. I declare to you, standing in 
    my place of responsibility, that that is one thing which neither 
    the House nor the Senate can permit to be tampered with or which 
    they can be easy about. . . .
        Now, let us look at this case. I do not know anything about 
    what happened in Colorado, but when we see this respondent in this 
    record he is down there in Florida as the secretary of a real-
    estate concern. After that he forms

[[Page 2242]]

    a copartnership with Mr. Rankin. Two years and three months after 
    that time he occupies a position on the Federal bench, and when the 
    Government put him there, when the people put him there, they said 
    to him, ``All we ask of you is to behave yourself.'' Good behavior! 
    What does that mean? It means obey the law, keep yourself free from 
    questionable conduct, free from embarrassing entanglements, free 
    from acts which justify suspicion; hold in clean hands the scales 
    of justice. That means that he shall not take chances that would 
    tend to cause the people to question the integrity of the court, 
    because where doubt enters confidence departs. Is not that sound? 
    When 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 Constitution. It is 
    not essential to prove guilt. There is nothing in the Constitution 
    and nothing in the philosophy of a free government that holds that 
    a man shall continue to occupy office until it can be established 
    beyond a reasonable doubt that he is not fit for the office. It is 
    the other way. When there is resulting from the judge's conduct a 
    reasonable doubt as to his integrity he has no right to stay 
    longer. He has forfeited his right. It is the high duty of this 
    Court to write the judgment and make effective the terms of that 
    contract. . . .(8)
---------------------------------------------------------------------------
 8. Id. at p. 5469.
---------------------------------------------------------------------------

        Mr. Manager Sumners: I do not want to be tedious, but this is 
    very important, because these things go down to the depths of this 
    man's character.
        When he wrote this letter he referred to him as ``A. L. Rankin, 
    of Andalusia, Ala.'' Why did he do that? Because the job Rankin was 
    trying to get was in Alabama. Just think of that, and weigh it.

        In another letter he said:

            I want to say that Judge Rankin is a man of the highest 
        character and integrity. He is one of the ablest common-law 
        lawyers in the South.

        That is a statement made by a judge upon his responsibility.

            We were partners in the practice of law in West Palm Beach 
        before my appointment on the bench. I know of no man better 
        qualified from the standpoint of experience, ability, and 
        character for the position.

        And so forth. Then he writes again in another letter that if he 
    is appointed he will raise the bench to a high place.
        I say a man who will not speak the truth above his signed name 
    will not swear it, and a man who will not state the truth, and who 
    does those things which arouse doubt as to his integrity must go 
    from the bench.
        I appreciate profoundly the attention which the Members of this 
    honorable Court have given the case.
        There ought to be a unanimous judgment in this case, and let it 
    ring out from this Chamber all over the Nation that from now on men 
    who hold positions in the Federal judiciary must be obedient to the 
    high principles which in the nature of things it is essential for a 
    judge to manifest.
        A few Federal judges can reflect upon the great body of 
    honorable men who hold these high positions.
        There is another thing I was about to forget. Of course, the 
    bondholders in Chicago did not protest the $90,000 fee to Rankin. 
    The attorneys for the bond

[[Page 2243]]

    holders and Mr. Holland were in the respondent's court at the same 
    time. They came to represent 93 percent of the $2,500,000 of the 
    first-mortgage bonds. They heard the respondent advised of the 
    champertous conduct of Richardson, Rankin et al., and they saw the 
    respondent approve. They were virtually kicked out of the court. 
    They wanted the case out of that court and away from Rankin and the 
    respondent just as quickly as they could get it out, and they would 
    have stood not only for that fee of $90,000 but for more; and any 
    of you practicing law would have done the same thing under the 
    circumstances. You remember McPherson said respondent was positive, 
    very positive, about Mr. Holland. Respondent was a great deal 
    stronger with regard to the attorney for the bondholders. Remember 
    the judge asked Holland, ``Who bought you off?'' of course they 
    were glad to get out at almost any price.
        Members of the Court, there is a great deal more which ought to 
    be said, but you have the record and my time has about expired. I 
    have a duty to perform and you have yours. Mine is finished.
        The House has done all the House can do toward protecting the 
    judiciary of the country. The people have trusted in you. Counsel 
    for the respondent kept emphasizing the fact that this respondent 
    stood and swore, stood and swore, stood and swore. I remember that 
    I saw the Members of this honorable Court lift their hands to God 
    Almighty, and, in that oath which they took, pledge themselves to 
    rise above section and party entanglements and to be true to the 
    people of the Nation in the exercise of this high power. I have no 
    doubt you will do it.
        I thank this honorable Court for the courtesy and consideration 
    which have been shown to my colleagues and to me as we have tried 
    to discharge our constitutional duty in this matter.(9)
---------------------------------------------------------------------------
 9. Id. at pp. 5472, 5473.
---------------------------------------------------------------------------

Deliberation and Judgment

Sec. 18.17 Deliberation was followed by conviction on a general article 
    of impeachment and by judgment of removal from office in the trial 
    of Judge Halsted Ritter.

    Final arguments in the Ritter trial having been concluded on Apr. 
14, 1936, the Court of Impeachment adjourned until Apr. 15, when the 
doors of the Senate were closed for deliberation on motion of Senator 
Henry F. Ashurst, of Arizona. The Senate deliberated with closed doors 
for 4 hours and 37 minutes. A unanimous-consent agreement entered into 
while the Senate was deliberating with closed doors was printed in the 
Record; the order provided for a vote on the articles of impeachment on 
Friday, Apr. 17.(10)
---------------------------------------------------------------------------
10. 80 Cong. Rec. 5505, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

    Deliberation with closed doors was continued on Apr. 16, 1936, for 
5 hours and 48 minutes. When the doors were opened, the Senate adopted 
orders to return evidence

[[Page 2244]]

to proper persons, to allow each Senator to file written opinions 
within four days after the final vote, and to provide a method of vote. 
The latter order read as follows:

        Ordered, That upon the final vote in the pending impeachment of 
    Halsted L. Ritter, the Secretary shall read the articles of 
    impeachment separately and successively, and when the reading of 
    each article shall have been concluded the Presiding Officer shall 
    state the question thereon as follows:
        ``Senators, how say you? Is the respondent, Halsted L. Ritter, 
    guilty or not guilty?''
        Thereupon the roll of the Senate shall be called, and each 
    Senator as his name is called, unless excused, shall arise in his 
    place and answer ``guilty'' or ``not guilty.'' (11)
---------------------------------------------------------------------------
11. Id. at pp. 5558, 5559.
---------------------------------------------------------------------------

    On Apr. 17, 1936, the Senate convened as a Court of Impeachment to 
vote on the articles against Judge Ritter. Senator Joseph T. Robinson, 
of Arkansas, announced those Senators absent and excused and announced 
that pairs would not be recognized in the proceedings. Eighty-four 
Senators answered to their names on the quorum call.
    President pro tempore Key Pittman, of Nevada, proceeded to put the 
vote on the articles of impeachment, a two-thirds vote being required 
to convict. The vote was insufficient to convict on the first six 
articles: Article I: 55 ``guilty'';--29 ``not guilty''; Article II: 52 
``guilty''--32 ``not guilty''; Article III: 44 ``guilty''--39 ``not 
guilty''; Article IV: 36 ``guilty''--48 ``not guilty''; Article V: 36 
``guilty''--48 ``not guilty''; Article VI: 46 ``guilty''--37 ``not 
guilty.'' But on the final Article, Article VII, the vote was: 56 
``guilty''--28 ``not guilty.'' So the Senate convicted Judge Ritter on 
the seventh article of impeachment, charging general misbehavior and 
conduct that brought his court into scandal and disrepute.
    Senator Warren R. Austin, of Vermont, made a point of order against 
the vote on the ground that two-thirds had not voted to convict, 
Article VII being an accumulation of facts and circumstances. The 
President pro tempore sustained a point of order that Senator Austin 
was indulging in argument rather than stating the grounds for his point 
of order, and overruled Senator Austin's point of order.(12)
---------------------------------------------------------------------------
12. Id. at p. 5606.
---------------------------------------------------------------------------

    Senator Ashurst submitted an order both removing Judge Ritter from 
office and disqualifying him from holding and enjoying any office of 
honor, trust, or profit under the United States. Senator Robert M. La 
Follette, Jr., of Wisconsin,

[[Page 2245]]

asked for a division of the question, but Senator George W. Norris, of 
Nebraska, suggested that Senator Ashurst should submit two orders, 
since removal followed from conviction but disqualification did not. 
Senator Ashurst thereupon withdrew the original order and submitted an 
order removing Judge Ritter from office. The President pro tempore 
ruled that no vote was required on the order, removal automatically 
following conviction for high crimes and misdemeanors under section 4 
of article II of the U.S. Constitution. The President pro tempore then 
pronounced judgment:

                                  Judgment

        The Senate having tried Halsted L. Ritter, United States 
    district judge for the southern district of Florida, upon seven 
    several articles of impeachment exhibited against him by the House 
    of Representatives, and two-thirds of the Senators present having 
    found him guilty of charges contained therein: It is therefore
        Ordered and adjudged, That the said Halsted L. Ritter be, and 
    he is hereby, removed from office.

    Senator Ashurst submitted a second order disqualifying the 
respondent from holding an office of honor, trust, or profit under the 
United States. It was agreed, in reliance on the Robert Archbald 
proceedings, that only a majority vote was required for passage. The 
order for disqualification failed on a yea and nay vote--yeas 0, nays 
76.
    The Senate adopted an order communicating the order and judgment to 
the House, and the Senate adjourned sine die from the Court of 
Impeachment.(13)
---------------------------------------------------------------------------
13. Id. at pp. 5606, 5607.
---------------------------------------------------------------------------

    Subsequent to his conviction and removal from office, the 
respondent brought an action in the U.S. Court of Claims for back 
salary, claiming that the Senate had exceeded its jurisdiction in 
trying him for nonimpeachable charges. The Court of Claims dismissed 
the claim for want of jurisdiction on the ground that the impeachment 
power was vested in Congress and was not subject to judicial 
review.(14)
---------------------------------------------------------------------------
14. Ritter v United States, 84 Ct. Cl 293 (1936), cert. denied, 300 
        U.S. 668 (1937). The opinion of the Court of Claims cited dicta 
        in the case of Mississippi v Johnson, 71 U.S. 475 (1866), to 
        support the conclusion that the impeachment power was political 
        in nature and not subject to judicial review.
---------------------------------------------------------------------------

Sec. 18.18 The order and judgment of the Senate in the Ritter 
    impeachment trial were messaged to the House.

    On Apr. 20, 1936,(15) the order and judgment in the 
Halsted Rit

[[Page 2246]]

ter impeachment trial were received in the House:
---------------------------------------------------------------------------
15. 80 Cong. Rec. 5703, 5704, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

                          Message From the Senate

        A message from the Senate, by Mr. Home, its enrolling clerk, 
    announced that the Senate had ordered that the Secretary be 
    directed to communicate to the President of the United States and 
    the House of Representatives the order and judgment of the Senate 
    in the case of Halsted L. Ritter, and transmit a certified copy of 
    same to each, as follows:

            I, Edwin A. Halsey, Secretary of the Senate of the United 
        States of America, do hereby certify that the hereto attached 
        document is a true and correct copy of the order and judgment 
        of the Senate, sitting for the trial of the impeachment of 
        Halsted L. Ritter, United States district judge for the 
        southern district of Florida, entered in the said trial on 
        April 17, 1936.
            In testimony whereof, I hereunto subscribe my name and 
        affix the seal of the Senate of the United States of America, 
        this the 18th day of April, A.D. 1936.
                                              Edwin A. Halsey,
                                         Secretary of the Senate
                                             of the United States.

        In the Senate of the United States of America, sitting for the 
            trial of the impeachment of Halsted L. Ritter, United 
            States district judge for the southern district of Florida

                                  Judgment
                                                   April 17, 1936.

            The Senate having tried Halsted L. Ritter, United States 
        district judge for the southern district of Florida, upon seven 
        several articles of impeachment exhibited against him by the 
        House of Representatives, and two-thirds of the Senators 
        present having found him guilty of charges contained therein: 
        It is therefore
            Ordered and adjudged, That the said Halsted L. Ritter be, 
        and he is hereby, removed from office.
            Attest:
                                                 Edwin A. Halsey
                                                        Secretary.



[[Page 2247]]

                               CHAPTER 14
 
                           Impeachment Powers
 
                       D. HISTORY OF PROCEEDINGS
 
                                APPENDIX

                                     

 Report by the Staff of the Impeachment Inquiry on the Constitutional 
Grounds for Presidential Impeachment, Committee Print, Committee on the 
                Judiciary, 93d Cong. 2d Sess., Feb. 1974

                            I. Introduction

                                     
    The Constitution deals with the subject of impeachment and 
conviction at six places. The scope of the power is set out 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.

    Other provisions deal with procedures and consequences. Article I, 
Section 2 states:

        The House of Representatives . . . shall have the sole Power of 
    Impeachment.

    Similarly, Article I, Section 3, describes the Senate's role:

        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.

    The same section limits the consequences of judgment in cases of 
impeachment:

        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.

    Of lesser significance, although mentioning the subject, are: 
Article II, Section 2:

        The President . . . shall have Power to grant Reprieves and 
    Pardons for Offences against the United States, except in Cases of 
    Impeachment.

Article III, Section 2:

        The Trial of all Crimes, except in Cases of Impeachment, shall 
    be by Jury. . . .

    Before November 15, 1973 a number of Resolutions calling for the 
impeachment of President Richard M. Nixon had been introduced in the 
House of Representatives, and had been referred by the Speaker of the 
House, Hon. Carl Albert, to the Committee on the Judiciary for 
consideration, investigation and report. On November 15, anticipating 
the magnitude of the Committee's task, the House voted funds to enable 
the Committee to carry out its assignment and in that regard to select 
an inquiry staff to assist the Committee.
    On February 6, 1974, the House of Representatives by a vote of 410 
to 4

[[Page 2248]]

``authorized and directed'' the Committee on the Judiciary ``to 
investigate fully and completely whether sufficient grounds exist for 
the House of Representatives to exercise its constitutional power to 
impeach Richard M. Nixon, President of the United States of America.''
    To implement the authorization (H. Res. 803) the House also 
provided that ``For the purpose of making such investigation, the 
committee is authorized to require . . . by subpoena or otherwise . . . 
the attendance and testimony of any person . . . and . . . the 
production of such things; and . . . by interrogatory, the furnishing 
of such information, as it deems necessary to such investigation.''
    This was but the second time in the history of the United States 
that the House of Representatives resolved to investigate the 
possibility of impeachment of a President. Some 107 years earlier the 
House had investigated whether President Andrew Johnson should be 
impeached. Understandably, little attention or thought has been given 
the subject of the presidential impeachment process during the 
intervening years. The Inquiry Staff, at the request of the Judiciary 
Committee, has prepared this memorandum on constitutional grounds for 
presidential impeachment. As the factual investigation progresses, it 
will become possible to state more specifically the constitutional, 
legal and conceptual framework within which the staff and the Committee 
work.
    Delicate issues of basic constitutional law are involved. Those 
issues cannot be defined in detail in advance of full investigation of 
the facts. The Supreme Court of the United States does not reach out, 
in the abstract, to rule on the constitutionality of statutes or of 
conduct. Cases must be brought and adjudicated on particular facts in 
terms of the Constitution. Similarly, the House does not engage in 
abstract, advisory or hypothetical debates about the precise nature of 
conduct that calls for the exercise of its constitutional powers; 
rather, it must await full development of the facts and understanding 
of the events to which those facts relate.
    What is said here does not reflect any prejudgment of the facts or 
any opinion or inference respecting the allegations being investigated. 
This memorandum is written before completion of the full and fair 
factual investigation the House directed be undertaken. It is intended 
to be a review of the precedents and available interpretive materials, 
seeking general principles to guide the Committee.
    This memorandum offers no fixed standards for determining whether 
grounds for impeachment exist. The framers did not write a fixed 
standard. Instead they adopted from English history a standard 
sufficiently general and flexible to meet future circumstances and 
events, the nature and character of which they could not foresee.
    The House has set in motion an unusual constitutional process, 
conferred solely upon it by the Constitution, by directing the 
Judiciary Committee to ``investigate fully and completely whether 
sufficient grounds exist for the House of Representatives to exercise 
its constitutional power to impeach.'' This action was not partisan. It 
was supported by the overwhelming majority of both political parties. 
Nor was it intended to obstruct or weaken the presidency. It was 
supported by Members firmly committed to the need for a strong 
presidency and a healthy executive branch of our government. The House 
of Representatives acted out of a clear sense of constitu

[[Page 2249]]

tional duty to resolve issues of a kind that more familiar 
constitutional processes are unable to resolve.
    To assist the Committee in working toward that resolution, this 
memorandum reports upon the history, purpose and meaning of the 
constitutional phrase, ``Treason, Bribery, or other high Crimes and 
Misdemeanors.''

               II. The Historical Origins of Impeachment

                                     
    The Constitution provides that the President ``. . . shall be 
removed from Office on Impeachment for, and Conviction of, Treason, 
Bribery, or other high Crimes and Misdemeanors.'' The framers could 
have written simply ``or other crimes''--as indeed they did in the 
provision for extradition of criminal offenders from one state to 
another. They did not do that. If they had meant simply to denote 
seriousness, they could have done so directly. They did not do that 
either. They adopted instead a unique phrase used for centuries in 
English parliamentary impeachments, for the meaning of which one must 
look to history.
    The origins and use of impeachment in England, the circumstances 
under which impeachment became a part of the American constitutional 
system, and the American experience with impeachment are the best 
available sources for developing an understanding of the function of 
impeachment and the circumstances in which it may become appropriate in 
relation to the presidency.

                 A. The English Parliamentary Practice
    Alexander Hamilton wrote, in No. 65 of The Federalist, that Great 
Britain had served as ``the model from which [impeachment] has been 
borrowed.'' Accordingly, its history in England is useful to an 
understanding of the purpose and scope of impeachment in the United 
States.
    Parliament developed the impeachment process as a means to exercise 
some measure of control over the power of the King. An impeachment 
proceeding in England was a direct method of bringing to account the 
King's ministers and favorites--men who might otherwise have been 
beyond reach. Impeachment, at least in its early history, has been 
called ``the most powerful weapon in the political armoury, short of 
civil war.'' (1) It played a continuing role in the 
struggles between King and Parliament that resulted in the formation of 
the unwritten English constitution. In this respect impeachment was one 
of the tools used by the English Parliament to create more responsive 
and responsible government and to redress imbalances when they 
occurred.(2)
---------------------------------------------------------------------------
 1. Plucknett, ``Presidential Address'' reproduced in 3 Transactions, 
        Royal Historical Society, 5th Series, 145 (1952).
 2. See generally C. Roberts, The Growth of Responsible Government in 
        Stuart England (Cambridge 1966).
---------------------------------------------------------------------------
    The long struggle by Parliament to assert legal restraints over the 
unbridled will of the King ultimately reached a climax with the 
execution of Charles I in 1649 and the establishment of the 
Commonwealth under Oliver Cromwell. In the course of that struggle, 
Parliament sought to exert restraints over the King by removing those 
of his ministers who most effectively advanced the King's absolutist 
purposes. Chief among them was

[[Page 2250]]

Thomas Wentworth, Earl of Strafford. The House of Commons impeached him 
in 1640. As with earlier impeachments, the thrust of the charge was 
damage to the state.(3) The first article of impeachment 
alleged.(4)
---------------------------------------------------------------------------
 3. Strafford was charged with treason, a term defined in 1352 by the 
        Statute of Treasons. 25 Edw. 3, stat. 5, c. 2 (1352). The 
        particular charges against him presumably would have been 
        within the compass of the general, or ``salvo,'' clause of that 
        statute, but did not fall within any of the enumerated acts of 
        treason. Strafford rested his defense in part on that failure; 
        his eloquence on the question of retrospective treasons 
        (``Beware you do not awake these sleeping lions, by the 
        searching out some neglected moth-eaten records, they may one 
        day tear you and your posterity in pieces: it was your 
        ancestors' care to chain them up within the barricadoes of 
        statutes; be not you ambitious to be more skillful and curious 
        than your forefathers in the art of killing.'' Celebrated 
        Trials 518 [Phila. 1837]) may have dissuaded the Commons from 
        bringing the trial to a vote in the House of Lords: instead 
        they caused his execution by bill of attainder.
 4. J. Rushworth, The Tryal of Thomas Earl of Strafford, in 8 
        Historical Collections 8 (1686).
---------------------------------------------------------------------------

        That he . . . hath traiterously endeavored to subvert the 
    Fundamental Laws and Government of the Realms . . . and in stead 
    thereof, to introduce Arbitrary and Tyrannical Government against 
    Law. . . .

The other articles against Strafford included charges ranging from 
the allegation that he had assumed regal power and exercised it 
tyrannically to the charge that he had subverted the rights of 
Parliament.(5)
---------------------------------------------------------------------------
 5. Rushworth, supra n. 4, at 8-9. R. Berger, Impeachment: The 
        Constitutional Problems 30 (1973), states that the impeachment 
        of Strafford ``. . . constitutes a great watershed in English 
        constitutional history of which the Founders were aware.''
---------------------------------------------------------------------------
    Characteristically, impeachment was used in individual cases to 
reach offenses, as perceived by Parliament, against the system of 
government. The charges, variously denominated ``treason,'' ``high 
treason,'' ``misdemeanors,'' ``malversations,'' and ``high Crimes and 
Misdemeanors,'' thus included allegations of misconduct as various as 
the kings (or their ministers) were ingenious in devising means of 
expanding royal power.
    At the time of the Constitutional (Convention the phrase ``high 
Crimes and Misdemeanors'' had been in use for over 400 years in 
impeachment proceedings in Parliament.(6) It first appears 
in 1386 in the impeachment of the King's Chancellor, Michael de la 
Pole, Earl of Suffolk.(7) Some of the charges may have 
involved common law offenses.(8) Others

[[Page 2251]]

plainly did not: de la Pole was charged with breaking a promise he made 
to the full Parliament to execute in connection with a parliamentary 
ordinance the advice of a committee of nine lords regarding the 
improvement of the estate of the King and the realm; ``this was not 
done, and it was the fault of himself as he was then chief officer.'' 
He was also charged with failing to expend a sum that Parliament had 
directed be used to ransom the town of Ghent, because of which ``the 
said town was lost.'' (9)
---------------------------------------------------------------------------
 6. See generally A. Simpson, A Treatise on Federal Impeachments 81-190 
        (Philadelphia, 1916) (Appendix of English Impeachment Trials); 
        M. V. Clarke, ``The Origin of Impeachment'' in Oxford Essays in 
        Medieval History 164 (Oxford, 1934). Reading and analyzing the 
        early history of English impeachments is complicated by the 
        paucity and ambiguity of the records. The analysis that follows 
        in this section has been drawn largely from the scholarship of 
        others, checked against the original records where possible.
            The basis for what became the impeachment procedure 
        apparently originated in 1341, when the King and Parliament 
        alike accepted the principle that the King's ministers were to 
        answer in Parliament for their misdeeds. C. Roberts, supra n. 
        2, at 7. Offenses against Magna Carta, for example, were 
        failing for technicalities in the ordinary courts, and 
        therefore Parliament provided that offenders against Magna 
        Carta be declared in Parliament and judged by their peers. 
        Clarke, supra, at 173.
 7. Simpson, supra n. 6, at 86; Berger, supra n. 5, at 61, Adams and 
        Stevens, Select Documents of English Constitutional History 148 
        (London, 1927).
 8. For example, de la Pole was charged with purchasing property of 
        great value from the King while using his position as 
        Chancellor to have the lands appraised at less than they were 
        worth, all in violation of his oath, in deceit of the King and 
        in neglect of the need of the realm. Adams and Stevens, supra 
        n. 7, at 148.
 9. Adams and Stevens, supra n. 7, at 148-150.
---------------------------------------------------------------------------
    The phrase does not reappear in impeachment proceedings until 1450. 
In that year articles of impeachment against William de la Pole, Duke 
of Suffolk (a descendant of Michael), charged him with several acts of 
high treason, but also with ``high Crimes and Misdemeanors,'' 
(10) including such various offenses as ``advising the King 
to grant liberties and privileges to certain persons to the hindrance 
of the due execution of the laws'' ``procuring offices for persons who 
were unfit, and unworthy of them'' and ``squandering away the public 
treasure.'' (11)
---------------------------------------------------------------------------
10. 4 Hatsell 67 (Shannon, Ireland, 1971, reprint of London 1796, 
        1818).
11. 4 Hatsell, supra n. 10, at 67, charges 2, 6 and 12.
---------------------------------------------------------------------------
    Impeachment was used frequently during the reigns of James I (1603-
1625) and Charles I (1628-1649). During the period from 1620 to 1649 
over 100 impeachments were voted by the House of 
Commons.(12) Some of these impeachments charged high 
treason, as in the case of Strafford; others charged high crimes and 
misdemeanors. The latter included both statutory offenses, particularly 
with respect to the Crown monopolies, and nonstatutory offenses. For 
example, Sir Henry Yelverton, the King's Attorney General, was 
impeached in 1621 of high crimes and misdemeanors in that he failed to 
prosecute after commencing suits, and exercised authority before it was 
properly vested in him.(13)
---------------------------------------------------------------------------
12. The Long Parliament (1640-48) alone impeached 98 persons. Roberts 
        supra n. 2, at 133.
13. 2 Howell State Trials 1135, 1136-37 (charges 1, 2 and 6). See 
        generally Simpson, supra n. 6, at 91-127; Berger, supra n. 5, 
        at 67-73.
---------------------------------------------------------------------------
    There were no impeachments during the Commonwealth (1649-1660). 
Following the end of the Commonwealth and the Restoration of Charles II 
(1660-1685) a more powerful Parliament expanded somewhat the scope of 
``high Crimes and Misdemeanors'' by impeaching officers of the Crown 
for such things as negligent discharge of duties (14) and 
improprieties in office.(15)
---------------------------------------------------------------------------
14. Peter Pett, Commissioner of the Navy, was charged in 1668 with 
        negligent preparation for an invasion by the Dutch, and 
        negligent loss of a ship. The latter charge was predicated on 
        alleged willful neglect in failing to insure that the ship was 
        brought to a mooring. 6 Howell State Trials 865, 866-67 
        (charges 1, 5).
15. Chief Justice Scroggs was charged in 1680, among other things, with 
        browbeating witnesses and commenting on their credibility, and 
        with cursing and drinking to excess, thereby bringing ``the 
        highest scandal on the public justice of the kingdom.'' 8 
        Howell State Trials 197, 200 (charges 7, 8).
---------------------------------------------------------------------------
    The phrase ``high Crimes and Misdemeanors'' appears in nearly all 
of the comparatively few impeachments that occurred in the eighteenth 
century. Many of the charges involved abuse of official power or trust. 
For example, Edward, Earl of Oxford, was charged in 1701 with 
``violation of his duty and trust'' in that,

[[Page 2252]]

while a member of the King's privy council, he took advantage of the 
ready access he had to the King to secure various royal rents and 
revenues for his own use, thereby greatly diminishing the revenues of 
the crown and subjecting the people of England to ``grievous 
taxes.''(16), Oxford was also charged with procuring a naval 
commission for William Kidd, ``known to be a person of ill fame and 
reputation,'' and ordering him ``to pursue the intended voyage, in 
which Kidd did commit diverse piracies . . . being thereto encouraged 
through hopes of being protected by the high station and interest of 
Oxford, in violation of the law of nations, and the interruption and 
discouragement of the trade of England.''(17)
---------------------------------------------------------------------------
16. Simpson, supra n. 6, at 144.
17. Simpson, supra n. 6, at 144.
---------------------------------------------------------------------------
    The impeachment of Warren Hastings, first attempted in 1786 and 
concluded in 1795,(18) is particularly important because 
contemporaneous with the American Convention debates. Hastings was the 
first Governor-General of India. The articles indicate that Hastings 
was being charged with high crimes and misdemeanors in the form of 
gross maladministration, corruption in office, and cruelty toward the 
people of India.(19)
---------------------------------------------------------------------------
18. See generally Marshall, The Impeachment of Warren Hastings (Oxford, 
        1965).
19. Of the original resolutions proposed by Edmund Burke in 1786 and 
        accepted by the House as articles of impeachment in 1787, both 
        criminal and non-criminal offenses appear. The fourth article, 
        for example, charging that Hastings had confiscated the landed 
        income of the Begums of Oudh, was described by Pitt as that of 
        all others that bore the strongest marks of criminality, 
        Marshall, supra, n. 19, at 53.
            The third article, on the other hand, known as the Benares 
        charge, claimed that circumstances imposed upon the Governor-
        General duty to conduct himself ``on the most distinguished 
        principles of good faith, equity, moderation and mildness.'' 
        Instead, continued the charge, Hastings provoked a revolt in 
        Benares, resulting in ``the arrest of the rajah, three 
        revolutions in the country and great loss, whereby the said 
        Hastings is guilty of a high crime and misdemeanor in the 
        destruction of the country aforesaid.'' The Commons accepted 
        this article, voting 119-79 that these were grounds for 
        impeachment. Simpson, supra n. 6, at 168-170; Marshall, supra 
        n. 19, at xv, 46.
---------------------------------------------------------------------------
    Two points emerge from the 400 years of English parliamentary 
experience with the phrase ``high Crimes and Misdemeanors.'' First, the 
particular allegations of misconduct alleged damage to the state in 
such forms as misapplication of funds, abuse of official power, neglect 
of duty, encroachment on Parliament's prerogatives, corruption, and 
betrayal of trust.(20) Second, the phrase ``high Crimes and 
Misdemeanors'' was confined to parliamentary impeachments; it had no 
roots in the ordinary criminal law,(21) and the particular 
allegations of misconduct under that heading were not necessarily 
limited to common law or statutory derelictions or crimes.
---------------------------------------------------------------------------
20. See, e.g., Berger, supra n. 5, at 70-71.
21. Berger, supra n. 5, at 62.
---------------------------------------------------------------------------

                    B. The Intention of the Framers
    The debates on impeachment at the Constitutional Convention in 
Philadelphia focus principally on its applicability to the President. 
The framers sought to create a responsible though strong executive; 
they hoped, in the words of Elbridge Gerry of Massachusetts, that ``the 
maxim would never be adopted here that the chief Magistrate could do 
[no] wrong.''(22) Impeachment was to be one of the central 
elements of executive responsibility

[[Page 2253]]

in the framework of the new government as they conceived it.
---------------------------------------------------------------------------
22. The Records of the Federal Convention 66 (M. Farrand ed. 1911) 
        (brackets in original). Hereafter cited as Farrand.
---------------------------------------------------------------------------
    The constitutional grounds for impeachment of the President 
received little direct attention in the Convention; the phrase ``other 
high Crimes and Misdemeanors'' was ultimately added to ``Treason'' and 
``Bribery'' with virtually no debate. There is evidence, however, that 
the framers were aware of the technical meaning the phrase had acquired 
in English impeachments.
    Ratification by nine states was required to convert the 
Constitution from a proposed plan of government to the supreme law of 
the land. The public debates in the state ratifying conventions offer 
evidence of the contemporaneous understanding of the Constitution 
equally as compelling as the secret deliberations of the delegates in 
Philadelphia. That evidence, together with the evidence found in the 
debates during the First Congress on the power of the President to 
discharge an executive officer appointed with the advice and consent of 
the Senate, shows that the framers intended impeachment to be a 
constitutional safeguard of the public trust, the powers of government 
conferred upon the President and other civil officers, and the division 
of powers among the legislative, judicial and executive departments.

                1. the purpose of the impeachment remedy
    Among the weaknesses of the Articles of Confederation apparent to 
the delegates to the Constitutional Convention was that they provided 
for a purely legislative form of government whose ministers were 
subservient to Congress. One of the first decisions of the delegates 
was that their new plan should include a separate executive judiciary, 
and legislature.(23) However, the framers sought to avoid 
the creation of a too-powerful executive. The Revolution had been 
fought against the tyranny of a king and his council, and the framers 
sought to build in safeguards against executive abuse and usurpation of 
power. They explicitly rejected a plural executive, despite arguments 
that they were creating ``the foetus of monarchy,''(24) 
because a single person would give the most responsibility to the 
office.(25) For the same reason, they rejected proposals for 
a council of advice or privy council to the executive (footnote 
omitted).
---------------------------------------------------------------------------
23. 1 Farrand 322.
24. 1 Farrand 66.
25. This argument was made by James Wilson of Pennsylvania, who also 
        said that he preferred a single executive as ``giving most 
        energy dispatch and responsibility to the office.'' 1 Farrand 
        65.
---------------------------------------------------------------------------
    The provision for a single executive was vigorously defended at the 
time of the state ratifying conventions as a protection against 
executive tyranny and wrongdoing. Alexander Hamilton made the most 
carefully reasoned argument in Federalist No. 70, one of the series of 
Federalist Papers prepared to advocate the ratification of the 
Constitution by the State of New York. Hamilton criticized both a 
plural executive and a council because they tend ``to conceal faults 
and destroy responsibility.'' A plural executive, he wrote, deprives 
the people of ``the two greatest securities they can have for the 
faithful exercise of any delegated power''--``[r]esponsibility . . . to 
censure and to punishment.'' When censure is divided and responsibility 
uncertain, ``the restraints of public opinion . . . lose their 
efficacy'' and ``the opportunity of discovering with facility and 
clearness

[[Page 2254]]

the misconduct of the persons [the public] trust, in order either to 
their removal from office, or to their actual punishment. in cases 
which admit of it'' is lost.(26) A council, too, ``would 
serve to destroy, or would greatly diminish, the intended and necessary 
responsibility of the (Chief Magistrate himself.''(27) It 
is, Hamilton concluded, ``far more safe [that] there should be a single 
object for the jealousy and watchfulness of the people; . . . all 
multiplication of the Executive is rather dangerous than friendly to 
liberty.'' (28)
---------------------------------------------------------------------------
26. The Federalist No. 70, at 459-61 (Modern Library ea.) (A. Hamilton) 
        (hereinafter cited as Federalist). The ``multiplication of the 
        Executive,'' Hamilton wrote, ``adds to the difficulty of 
        detection'':
            L  The circumstances which may have led to any national 
        miscarriage of misfortune are sometimes so complicated that, 
        where there are a number of actors who may have had different 
        degrees and kinds of agency, though we may clearly see upon the 
        whole that there has been mismanagement, yet it may be 
        impracticable to pronounce to whose account the evil which may 
        have been incurred is truly chargeable.
            If there should be ``collusion between the parties 
        concerned, how easy it is to clothe the circumstances with so 
        much ambiguity, as to render it uncertain what was the precise 
        conduct of any of those parties?'' Id. at 460.
27. Federalist No. 70 at 461. Hamilton stated:
            L  A council to a magistrate, who is himself responsible 
        for what he does, are generally nothing better than a clog upon 
        his good intentions, are often the instruments and accomplices 
        of his bad, and are almost always a cloak to his faults. Id. at 
        462-63.
28. Federalist No. 70 at 462.
---------------------------------------------------------------------------
    James Iredell, who played a leading role in the North Carolina 
ratifying convention and later became a justice of the Supreme Court, 
said that under the proposed Constitution 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.'' 
(29) In the same convention, William R. Davie, who had been 
a delegate in Philadelphia, explained that the ``predominant 
principle'' on which the Convention had provided for a single executive 
was ``the more obvious responsibility of one person.'' When there was 
but one man, said Davie, ``the public were never at a loss'' to fix the 
blame.(30)
---------------------------------------------------------------------------
29. 4 J. Elliot, The Debates in the Several State Conventions on the 
        Adoption of the Federal Constitution 74 (reprint of 2d ea.) 
        (hereinafter cited as Elliot.)
30. Elliot 104.
---------------------------------------------------------------------------
    James Wilson, in the Pennsylvania convention, described the 
security furnished by a single executive as one of its ``very important 
advantages'':

        The executive power is better to be trusted when it has no 
    screen. Sir, we have a responsibility in the person of our 
    President; he cannot act improperly, and hide either his negligence 
    or inattention; he cannot roll upon any other person the weight of 
    his criminality; no appointment can take place without his 
    nomination; and he is responsible for every nomination he makes.  . 
    . . Add to all this, that officer is placed high, and is possessed 
    of power far from being contemptible, yet not a single privilege is 
    annexed to his character; far from being above the laws, he is 
    amenable to them in his private character as a citizen, and in his 
    public character by impeachment.(31)
---------------------------------------------------------------------------
31. 2 Elliot 480 (emphasis in original).
---------------------------------------------------------------------------
    As Wilson's statement suggests, the impeachability of the President 
was considered to be an important element of his responsibility. 
Impeachment had been in

[[Page 2255]]

cluded in the proposals before the Constitutional Convention from its 
beginning.(32) A specific provision, making the executive 
removable from office on impeachment and conviction for ``mal-practice 
or neglect of duty,'' was unanimously adopted even before it was 
decided that the executive would be a single person.(33)
---------------------------------------------------------------------------
32. The Virginia Plan, fifteen resolutions proposed by Edmund Randolph 
        at the beginning of the Convention, served as the basis of its 
        early deliberations. The ninth resolution gave the national 
        judiciary jurisdiction over ``impeachments of any National 
        officers.'' 1 Farrand 22.
33. 1 Farrand 88. Just before the adoption of this provision, a 
        proposal to make the executive removable from office by the 
        legislature upon request of a majority of the state 
        legislatures had been overwhelmingly rejected. Id. 87. In the 
        course of debate on this proposal, it was suggested that the 
        legislature ``should have power to remove the Executive at 
        pleasure''--a suggestion that was promptly criticized as making 
        him ``the mere creature of the Legislature'' in violation of 
        ``the fundamental principle of good Government,'' and was never 
        formally proposed to the Convention. Id. 85-86.
---------------------------------------------------------------------------
    The only major debate on the desirability of impeachment occurred 
when it was moved that the provision for impeachment be dropped, a 
motion that was defeated by a vote of eight states to 
two.(34)
---------------------------------------------------------------------------
34. 2 Farrand 64, 69.
---------------------------------------------------------------------------
    One of the arguments made against the impeachability of the 
executive was that he ``would periodically be tried for his behavior by 
his electors'' and ``ought to be subject to no intermediate trial, by 
impeachment.'' (35) Another was that the executive could 
``do no criminal act without Coadjutors [assistants] who may be 
punished.'' (36) Without his subordinates, it was asserted, 
the executive ``can do nothing of consequence,'' and they would ``be 
amenable by impeachment to the public Justice.'' (37)
---------------------------------------------------------------------------
35. 2 Farrand 67 (Rufus King). Similarly, Gouverneur Morris contended 
        that if an executive charged with a criminal act were 
        reelected, ``that will be sufficient proof of his innocence.'' 
        Id. 64.
            It was also argued in opposition to the impeachment 
        provision, that the executive should not be impeachable 
        ``whilst in office''--an apparent allusion to the constitutions 
        of Virginia and Delaware, which then provided that the governor 
        (unlike other officers) could be impeached only after he left 
        office. Id. See 7 Thorpe, The Federal and State Constitutions 
        3818 (1909) and 1 Id. 566. In response to this position, it was 
        argued that corrupt elections would result, as an incumbent 
        sought to keep his office in order to maintain his immunity 
        from impeachment. He will ``spare no efforts or no means 
        whatever to get himself reelected,'' contended William R. Davie 
        of North Carolina. 2 Farrand 64. George Mason asserted that the 
        danger of corrupting electors ``furnished a peculiar reason in 
        favor of impeachments whilst in office'': ``Shall the man who 
        has practised corruption & by that means procured his 
        appointment in the first instance, be suffered to escape 
        punishment, by repeating his guilt?'' Id. 65.
36. 2 Farrand 64.
37. 2 Farrand 54.
---------------------------------------------------------------------------
    This latter argument was made by Gouverneur Morris of Pennsylvania, 
who abandoned it during the course of the debate, concluding that the 
executive should be impeachable.(38) Before Morris changed 
his position, however, George Mason had replied to his earlier 
argument:
---------------------------------------------------------------------------
38. ``This Magistrate is not the King but the prime-Minister. The 
        people are the King.'' 2 Farrand 69.
---------------------------------------------------------------------------

        Shall any man be above justice? Above all shall that man be 
    above it, who can commit the most extensive injustice? When great 
    crimes were committed he was for punishing the principal as well as 
    the Coadjutors.(39)
---------------------------------------------------------------------------
39. 2 Farrand 65.


[[Page 2256]]


---------------------------------------------------------------------------
    James Madison of Virginia argued in favor of impeachment stating 
that some provision was ``indispensable'' to defend the community 
against ``the incapacity, negligence or perfidy of the chief 
Magistrate.'' With a single executive, Madison argued, unlike a 
legislature whose collective nature provided security, ``loss of 
capacity or corruption was more within the compass of probable events, 
and either of them might be fatal to the Republic.'' (40) 
Benjamin Franklin supported impeachment as ``favorable to the 
executive''; where it was not available and the chief magistrate had 
``rendered himself obnoxious,'' recourse was had to assassination. The 
Constitution should provide for the ``regular punishment of the 
Executive when his misconduct should deserve it, and for his honorable 
acquittal when he should be unjustly accused.(41) Edmund 
Randolph also defended ``the propriety of impeachments'':
---------------------------------------------------------------------------
40. 2 Farrand 65-66.
41. 2 Farrand 65.
---------------------------------------------------------------------------

        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. Should no 
    regular punishment be provided it will be irregularly inflicted by 
    tumults & insurrections.(42)
---------------------------------------------------------------------------
42. 2 Farrand 67.

    The one argument made by the opponents of impeachment to which no 
direct response was made during the debate was that the executive would 
be too dependent on the legislature--that, as Charles Pinckney put it, 
the legislature would hold impeachment ``as a rod over the Executive 
and by that means effectually destroy his independence.'' 
(43) That issue, which involved the forum for trying 
impeachments and the mode of electing the executive, troubled the 
Convention until its closing days. Throughout its deliberations on ways 
to avoid executive subservience to the legislature, however, the 
Convention never reconsidered its early decision to make the executive 
removable through the process of impeachment (footnote omitted).
---------------------------------------------------------------------------
43. 2 Farrand 66.
---------------------------------------------------------------------------

            2. adoption of ``high crimes and misdemeanors''
    Briefly, and late in the Convention, the framers addressed the 
question how to describe the grounds for impeachment consistent with 
its intended function. They did so only after the mode of the 
President's election was settled in a way that did not make him (in the 
words of James Wilson) ``the Minion of the Senate.'' (45)
---------------------------------------------------------------------------
45. 2 Farrand 523.
---------------------------------------------------------------------------
    The draft of the Constitution then before the Convention provided 
for his removal upon impeachment and conviction for ``treason or 
bribery.'' George Mason objected that these grounds were too limited:

        Why is the provision restrained to Treason & bribery 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.(46)
---------------------------------------------------------------------------
46. 2 Farrand 550.

Mason then moved to add the word ``maladministration'' to the other 
two grounds.

[[Page 2257]]

Maladministration was a term in use in six of the thirteen state 
constitutions as a ground for impeachment, including Mason's home 
state of Virginia.(47)
---------------------------------------------------------------------------
47. The grounds for impeachment of the Governor of Virginia were ``mal-
        administration, corruption, or other means, by which the safety 
        of the State may be endangered.'' 7 Thorpe, The Federal and 
        State Constitution 3818 (1909).
---------------------------------------------------------------------------
    When James Madison objected that ``so vague a term will be 
equivalent to a tenure during pleasure of the Senate,'' Mason withdrew 
``maladministration'' and substituted ``high crimes and misdemeanors 
agst. the State,'' which was adopted eight states to three, apparently 
with no further debate.(48)
---------------------------------------------------------------------------
48. 2 Farrand 550. Mason's wording was unanimously changed later the 
        same day from ``agst. the State'' to ``against the United 
        States'' in order to avoid ambiguity. This phrase was later 
        dropped in the final draft of the Constitution prepared by the 
        Committee on Style and Revision, which was charged with 
        arranging and improving the language of the articles adopted by 
        the Convention without altering its substance.
---------------------------------------------------------------------------
    That the framers were familiar with English parliamentary 
impeachment proceedings is clear. The impeachment of Warren Hastings, 
Governor-General of India, for high crimes and misdemeanors was voted 
just a few weeks before the beginning of the Constitutional Convention 
and George Mason referred to it in the debates.(49) 
Hamilton, in the Federalist No. 65, referred to Great Britain as ``the 
model from which [impeachment] has been borrowed.'' Furthermore, the 
framers were well-educated men. Many were also lawyers. Of these, at 
least nine had studied law in England.(50)
---------------------------------------------------------------------------
49. Id.
50. R. Berger, Impeachment: The Constitutional Problems 87, 89 and 
        accompanying notes (1973).
---------------------------------------------------------------------------
    The Convention had earlier demonstrated its familiarity with the 
term ``high misdemeanor.'' (51) A draft constitution had 
used ``high misdemeanor'' in its provision for the extradition of 
offenders from one state to another.(52) The Convention, 
apparently unanimously struck ``high misdemeanor'' and inserted ``other 
crime,'' ``in order to comprehend all proper cases: it being doubtful 
whether `high misdemeanor' had not a technical meaning too 
limited.(53)
---------------------------------------------------------------------------
51. As a technical term, a ``high'' crime signified a crime against the 
        system of government, not merely a serious crime. ``This 
        element of injury to the commonwealth--that is, to the state 
        itself and to its constitution--was historically the criterion 
        for distinguishing a `high' crime or misdemeanor from an 
        ordinary one. The distinction goes back to the ancient law of 
        treason, which differentiated `high' from `petit' treason.'' 
        Bestor, Book Review, 49 Wash. L Rev. 255, 263-64 (1973). See 4 
        W. Blackstone, Commentaries 75.
52. The provision (article XV of Committee draft of the Committee on 
        Detail) originally read: ``Any person charged with treason, 
        felony or high misdemeanor in any State, who shall flee from 
        justice, and shall be found in any other State, shall, on 
        demand of the Executive power of the State from which he fled, 
        be delivered up and removed to the State having jurisdiction of 
        the offence.'' 2 Farrand 187-88.
            This clause was virtually identical with the extradition 
        clause contained in article IV of the Articles of 
        Confederation, which referred to ``any Person guilty of, or 
        charged with treason, felony, or other high misdemeanor in any 
        state. . . .''
53. 2 Farrand 443.
---------------------------------------------------------------------------
    The ``technical meaning'' referred to is the parliamentary use of 
the term ``high misdemeanor.'' Blackstone's Commentaries on the Laws of 
England--a work cited by delegates in other portions of the 
Convention's deliberations and which Madison later described (in the 
Virginia ratifying convention) as ``a book which is in every man's 
hand'' (54)--included ``high misdemeanors'' as one term

[[Page 2258]]

for positive offenses ``against the king and government.'' The ``first 
and principal'' high misdemeanor, according to Blackstone, was ``mal-
administration of such high officers, as are in public trust and 
employment,'' usually punished by the method of parliamentary 
impeachment.(55)
---------------------------------------------------------------------------
54. 3 Elliott 501.
55. 4 Blackstone's Commentaries 121 (emphasis omitted).
---------------------------------------------------------------------------
    ``High Crimes and Misdemeanors'' has traditionally been considered 
a ``term of art,'' like such other constitutional phrases as ``levying 
war'' and ``due process.'' The Supreme Court has held that such phrases 
must be construed, not according to modern usage, but according to what 
the framers meant when they adopted them.(56) Chief Justice 
Marshall wrote of another such phrase:
---------------------------------------------------------------------------
56. See Murray v. Hoboken Land Co., 52 U.S. (18 How.) 272 (1856), 
        Davidson v. New Orleans, 96 U.S. 97 (1878); Smith v. Alabama, 
        124 U.S. 465 (1888).
---------------------------------------------------------------------------

        It is a technical term. It is used in a very old statute of 
    that country whose language is our language, and whose laws form 
    the substratum of our laws. It is scarcely conceivable that the 
    term was not employed by the framers of our constitution in the 
    sense which had been affixed to it by those from whom we borrowed 
    it.(57)
---------------------------------------------------------------------------
57. United States v. Burr, 25 Fed. Cas. 1, 159 (No. 14, 693) (C.C.D. 
        Va. 1807).
---------------------------------------------------------------------------

                       3. grounds for impeachment
    Mason's suggestion to add ``maladministration,'' Madison's 
objection to it as ``vague,'' and Mason's substitution of ``high crimes 
and misdemeanors agst the State'' are the only comments in the 
Philadelphia convention specifically directed to the constitutional 
language describing the grounds for impeachment of the President. 
Mason's objection to limiting the grounds to treason and bribery was 
that treason would ``not reach many great and dangerous offences'' 
including ``[a]ttempts to subvert the Constitution.'' (58) 
His willingness to substitute ``high Crimes and Misdemeanors,'' 
especially given his apparent familiarity with the English use of the 
term as evidenced by his reference to the Warren Hastings impeachment, 
suggests that he believed ``high crimes and Misdemeanors'' would cover 
the offenses about which he was concerned.
---------------------------------------------------------------------------
58. 2 Farrand 550.
---------------------------------------------------------------------------
    Contemporaneous comments on the scope of impeachment are persuasive 
as to the intention of the framers. In Federalist No. 65, Alexander 
Hamilton described the subject of impeachment as:

  Lthose offences which proceed from the misconduct of public men, 
or, in other words, from the abuse or violation of some public 
trust. They are of a nature which may with peculiar propriety be 
denominated POLITICAL, as they relate chiefly to injuries done 
immediately to the society itself.(59)
---------------------------------------------------------------------------
59. The Federalist No. 65 at 423-24 (Modern Library ed.) (A. Hamilton) 
        (emphasis in original).

    Comments in the state ratifying conventions also suggest that those 
who adopted the Constitution viewed impeachment as a remedy for 
usurpation or abuse of power or serious breach of trust. Thus, Charles 
Cotesworth Pinckney of South Carolina stated that the impeachment power 
of the House reaches ``those who behave amiss, or betray their public 
trust.'' (60) Edmund Randolph said in the Virginia 
convention that the President may be impeached if he ``misbehaves.'' 
(61)

[[Page 2259]]

He later cited the example of the President's receipt of presents or 
emoluments from a foreign power in violation of the constitutional 
prohibition of Article I, section 9.(62) In the same 
convention George Mason argued that the President might use his 
pardoning power to ``pardon crimes which were advised by himself'' or, 
before indictment or conviction, ``to stop inquiry and prevent 
detection.'' James Madison responded:
---------------------------------------------------------------------------
60. 4 Elliot 281.
61. 3 Elliot 201.
62. 3 Elliot 486.
---------------------------------------------------------------------------

        [I]f the President be connected, in any suspicious manner, with 
    any person, and there be grounds to believe he will shelter him, 
    the House of Representatives can impeach him; they can remove him 
    if found guilty. . . .(63)
---------------------------------------------------------------------------
63. 3 Elliot 497-98. Madison went on to say, contrary to his position 
        in the Philadelphia convention, that the President could be 
        suspended when suspected, and his powers would devolve on the 
        Vice President, who could likewise be suspended until impeached 
        and convicted, if he were also suspected. Id. 498.

In reply to the suggestion that the President could summon the 
---------------------------------------------------------------------------
Senators of only a few states to ratify a treaty, Madison said,

        Were the President to commit any thing so atrocious . . . he 
    would be impeached and convicted, as a majority of the states would 
    be affected by his misdemeanor.(64)
---------------------------------------------------------------------------
64. 3 Elliot 500. John Rutledge of South Carolina made the same point, 
        asking ``whether gentlemen seriously could suppose that a 
        President, who has a character at stake, would be such a fool 
        and knave as to join with ten others [two-thirds of a minimal 
        quorum of the Senate] to tear up liberty by the roots, when a 
        full Senate were competent to impeach him.'' 4 Elliot 268.

Edmund Randolph referred to the checks upon the President:

        It has too often happened that powers delegated for the purpose 
    of promoting the happiness of a community have been perverted to 
    the advancement of the personal emoluments of the agents of the 
    people; but the powers of the President are too well guarded and 
    checked to warrant this illiberal aspersion.(65)
---------------------------------------------------------------------------
65. 3 Elliot 117.

Randolph also asserted, however, that impeachment would not reach 
errors of judgment: ``No man ever thought of impeaching a man for an 
opinion. It would be impossible to discover whether the error in 
opinion resulted from a willful mistake of the heart, or an 
involuntary fault of the head.'' (66)
---------------------------------------------------------------------------
66. 3 Elliot 401.
---------------------------------------------------------------------------
    James Iredell made a similar distinction in the North Carolina 
convention, and on the basis of this principle said, ``I suppose the 
only instances, in which the President would be liable to impeachment, 
would be where he has received a bribe, or had acted from some corrupt 
motive or other.'' (67) But he went on to argue that the 
President must certainly be punishable for giving false information to 
the Senate. He is to regulate all intercourse with foreign powers, and 
it is his duty to impart to the Senate every material intelligence he 
receives. If it should appear that he has not given them full 
information, but has concealed important intelligence which he ought to 
have communicated, and by that means induced them to enter into 
measures injurious to their country, and which they would not have 
consented to had the true state of things been disclosed to them--in 
this case, I ask whether, upon an impeachment for a misdemeanor upon 
such

[[Page 2260]]

an account, the Senate would probably favor him.(68)
---------------------------------------------------------------------------
67. 4 Elliot 126.
68. 4 Elliot 127.
---------------------------------------------------------------------------
    In short, the framers who discussed impeachment in the state 
ratifying conventions, as well as other delegates who favored the 
Constitution,(69) implied that it reached offenses against 
the government, and especially abuses of constitutional duties. The 
opponents did not argue that the grounds for impeachment had been 
limited to criminal offenses.
---------------------------------------------------------------------------
69. For example, Wilson Nicholas in the Virginia convention asserted 
        that the President ``is personally amenable for his mal-
        administration'' through impeachment, 3 Elliot 17; George 
        Nicholas in the same convention referred to the President's 
        impeachability if he ``deviates from his duty,'' id. 240. 
        Archibald MacLaine in the South Carolina convention also 
        referred to the President's impeachability for ``any 
        maladministration in his office,'' 4 Elliot 47; and Reverend 
        Samuel Stillman of Massachusetts referred to his impeachability 
        for ``malconduct,'' asking, ``With such a prospect, who will 
        dare to abuse the powers vested in him by the people?'' 2 
        Elliot 169.
---------------------------------------------------------------------------
    An extensive discussion of the scope of the impeachment power 
occurred in the House of Representatives in the First Session of the 
First Congress. The House was debating the power of the President to 
remove the head of an executive department appointed by him with the 
advice and consent of the Senate, an issue on which it ultimately 
adopted the position, urged primarily by James Madison, that the 
Constitution vested the power exclusively in the President. The 
discussion in the House lends support to the view that the framers 
intended the impeachment power to reach failure of the President to 
discharge the responsibilities of his office.(70)
---------------------------------------------------------------------------
70. Chief Justice Taft wrote with reference to the removal power debate 
        in the opinion for the Court in Myers v. United States, that 
        constitutional decisions of the First Congress ``have always 
        been regarded, as they should be regarded, as of the greatest 
        weight in the interpretation of that fundamental instrument.'' 
        272 U.S. 52, 174-75 (1926).
---------------------------------------------------------------------------
    Madison argued during the debate that the President would be 
subject to impeachment for ``the wanton removal of meritorious 
officers.'' (71) He also contended that the power of the 
President unilaterally to remove subordinates was ``absolutely 
necessary'' because ``it will make him in a peculiar manner, 
responsible for [the] conduct'' of executive officers. It would, 
Madison said,
---------------------------------------------------------------------------
71. 1 Annals of Cong. 498 (1789).

  Lsubject him to impeachment himself, if he suffers them to 
perpetrate with impunity high crimes or misdemeanors against the 
United States, or neglects to superintend their conduct, so as to 
check their excesses.(72)
---------------------------------------------------------------------------
72. Id. 372-73.

    Elbridge Gerry of Massachusetts, who had also been a framer though 
he had opposed the ratification of the Constitution, disagreed with 
Madison's contentions about the impeachability of the President. He 
could not be impeached for dismissing a good officer, Gerry said, 
because he would be ``doing an act which the Legislature has submitted 
to his discretion.(73) And he should not be held responsible 
for the acts of subordinate officers, who were themselves subject to 
impeachment and should bear their own responsibility.(74)
---------------------------------------------------------------------------
73. Id. 502.
74. Id. 535-36. Gerry also implied, perhaps rhetorically, that a 
        violation of the Constitution was grounds for impeachment. If, 
        he said, the Constitution failed to include provision for 
        removal of executive officers, an attempt by the legislature to 
        cure the omission would be an attempt to amend the 
        Constitution. But the Constitution provided procedures for its 
        amendment, and ``an attempt to amend it in any other way may be 
        a high crime or misdemeanor, or perhaps something worse.'' Id. 
        503.

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

[[Page 2261]]

    Another framer, Abraham Baldwin of Georgia, who supported Madison's 
position on the power to remove subordinates, spoke of the President's 
impeachability for failure to perform the duties of the executive. If, 
said Baldwin, the President ``in a fit of passion'' removed ``all the 
good officers of the Government'' and the Senate were unable to choose 
qualified successors, the consequence would be that the President 
``would be obliged to do the duties himself; or, if he did not, we 
would impeach him, and turn him out of office, as he had done others.'' 
(75)
---------------------------------------------------------------------------
75. Id. John Vining of Delaware commented: ``The President. What are 
        his duties? To see the laws faithfully executed; if he does not 
        do this effectually, he is responsible. To whom? To the people. 
        Have they the means of calling him to account, and punishing 
        him for neglect? They have secured it in the Constitution, by 
        impeachment, to be presented by their immediate 
        representatives; if they fail here, they have another check 
        when the time of election comes round.'' Id. 572.
---------------------------------------------------------------------------
    Those who asserted that the President has exclusive removal power 
suggested that it was necessary because impeachment, as Elias Boudinot 
of New Jersey contended, is ``intended as a punishment for a crime, and 
not intended as the ordinary means of re-arranging the Departments.'' 
(76) Boudinot suggested that disability resulting from 
sickness or accident ``would not furnish any good ground for 
impeachment; it could not be laid as treason or bribery, nor perhaps as 
a high crime or misdemeanor.'' (77) Fisher Ames of 
Massachusetts argued for the President's removal power because ``mere 
intention [to do a mischief] would not be cause of impeachment'' and 
``there may be numerous causes for removal which do not amount to a 
crime.'' (78) Later in the same speech Ames suggested that 
impeachment was available if an officer ``misbehaves'' (79) 
and for ``mal-conduct.'' (80)
---------------------------------------------------------------------------
76. Id. 375.
77. Id.
78. Id. 474.
79. Id. 475.
80. Id. 477. The proponents of the President's removal power were 
        careful to preserve impeachment as a supplementary method of 
        removing executive officials. Madison said impeachment will 
        reach a subordinate ``whose bad actions may be connived at or 
        overlooked by the President.'' Id. 372. Abraham Baldwin said:
            ``The Constitution provides for--what? That no bad man 
        should come into office. . . . But suppose that one such could 
        be got in, he can be got out again in despite of the President. 
        We can impeach him, and drag him from his place . . . .'' Id. 
        558.
---------------------------------------------------------------------------
    One further piece of contemporary evidence is provided by the 
Lectures on Law delivered by James Wilson of Pennsylvania in 1790 and 
1791. Wilson described impeachments in the United States as ``confined 
to political characters, to political crimes and misdemeanors, and to 
political punishment.'' (81) And, he said:
---------------------------------------------------------------------------
81. Wilson, Lectures on Law, in 1 The Works of James Wilson 426 (R. 
        McCloskey ed. 1967).
---------------------------------------------------------------------------

        The doctrine of impeachments is of high import in the 
    constitutions of free states. On one hand, the most powerful 
    magistrates should be amenable to the law: on the other hand, 
    elevated characters should not be sacrificed merely on account of 
    their elevation. No one should be secure while he violates the 
    constitution and the laws: every one should be secure while he 
    observes them.(82)
---------------------------------------------------------------------------
82. Id. 425.


[[Page 2262]]


---------------------------------------------------------------------------
    From the comments of the framers and their contemporaries, the 
remarks of the delegates to the state ratifying conventions, and the 
removal power debate in the First Congress, it is apparent that the 
scope of impeachment was not viewed narrowly. It was intended to 
provide a check on the President through impeachment, but not to make 
him dependent on the unbridled will of the Congress.
    Impeachment, as Justice Joseph Story wrote in his Commentaries on 
the Constitution in 1833, applies to offenses of ``a political 
character'':

        Not but that crimes of a strictly legal character fall within 
    the scope of the power . . . but that it has a more enlarged 
    operation, and reaches, what are aptly termed political offenses, 
    growing out of personal misconduct or gross neglect, or usurpation, 
    or habitual disregard of the public interests, in the discharge of 
    the duties of political office. These are so various in their 
    character, and so indefinable in their actual involutions, that it 
    is almost impossible to provide systematically for them by positive 
    law. They must be examined upon very broad and comprehensive 
    principles of public policy and duty. They must be judged of by the 
    habits and rules and principles of diplomacy, or departmental 
    operations and arrangements, of parliamentary practice, of 
    executive customs and negotiations of foreign as well as domestic 
    political movements; and in short, by a great variety of 
    circumstances, as well those which aggravate as those which 
    extenuate or justify the offensive acts which do not properly 
    belong to the judicial character in the ordinary administration of 
    justice, and are far removed from the reach of municipal 
    jurisprudence.(83)
---------------------------------------------------------------------------
83. 1 J. Story Commentaries on the Constitution of the United States, 
        Sec. 764, at 559 (5th ed. 1905).
---------------------------------------------------------------------------

                   C. The American Impeachment Cases
    Thirteen officers have been impeached by the House since 1787: one 
President, one cabinet officer, one United States Senator, and ten 
Federal judges.(84) In addition there have been numerous 
resolutions and investigations in the House not resulting in 
impeachment. However, the action of the House in declining to impeach 
an officer is not particularly illuminating. The reasons for failing to 
impeach are generally not stated, and may have rested upon a failure of 
proof, legal insufficiency of the grounds, political judgment, the 
press of legislative business, or the closeness of the expiration of 
the session of Congress. On the other hand, when the House has voted to 
impeach an officer, a majority of the Members necessarily have 
concluded that the conduct alleged constituted grounds for 
impeachment.(85)
---------------------------------------------------------------------------
84. Eleven of these officers were tried in the Senate. Articles of 
        impeachment were presented to the Senate against a twelfth 
        (Judge English), but he resigned shortly before the trial. The 
        thirteenth (Judge Delahay) resigned before articles could be 
        drawn.
85. Only four of the thirteen impeachments--all involving judges--have 
        resulted in conviction in the Senate and removal from office. 
        While conviction and removal show that the Senate agreed with 
        the House that the charges on which conviction occurred stated 
        legally sufficient grounds for impeachment, acquittals offer no 
        guidance on this question, as they may have resulted from a 
        failure of proof, other factors, or a determination by more 
        than one third of the Senators (as in the Blount and Belknap 
        impeachments) that trial or conviction was inappropriate for 
        want of jurisdiction.
---------------------------------------------------------------------------
    Does Article III, Section 1 of the Constitution, which states that 
judges ``shall

[[Page 2263]]

hold their Offices during good Behavior,'' limit the relevance of the 
ten impeachments of judges with respect to presidential impeachment 
standards as has been argued by some? It does not. The argument is that 
``good behavior'' implies an additional ground for impeachment of 
judges not applicable to other civil officers. However, the only 
impeachment provision discussed in the Convention and included in the 
Constitution is Article II, Section 4, which by its expressed terms, 
applies to all civil officers, including judges, and defines 
impeachment offenses as ``Treason, Bribery, and other high Crimes and 
Misdemeanors.''
    In any event, the interpretation of the ``good behavior'' clause 
adopted by the House has not been made clear in any of the judicial 
impeachment cases. Whichever view is taken, the judicial impeachments 
have involved an assessment of the conduct of the officer in terms of 
the constitutional duties of his office. In this respect, the 
impeachments of judges are consistent with the three impeachments of 
nonjudicial officers.
    Each of the thirteen American impeachments involved charges of 
misconduct incompatible with the official position of the officeholder. 
This conduct falls into three broad categories: (1) exceeding the 
constitutional bounds of the powers of the office in derogation of the 
powers of another branch of government; (2) behaving in a manner 
grossly incompatible with the proper function and purpose of the 
office; and (3) employing the power of the office for an improper 
purpose or for personal gain.(86)
---------------------------------------------------------------------------
86. A procedural note may be useful. The House votes both a resolution 
        of impeachment against an officer and articles of impeachment 
        containing the specific charges that will be brought to trial 
        in the Senate. Except for the impeachment of Judge Delahay, the 
        discussion of grounds here is based on the formal articles.
---------------------------------------------------------------------------

1. exceeding the powers of the office in derogation of those of another 
                          branch of government
    The first American impeachment, of Senator William Blount in 1797, 
was based on allegations that Blount attempted to incite the Creek and 
Cherokee Indians to attack the Spanish settlers of Florida and 
Louisiana, in order to capture the territory for the British. Blount 
was charged with engaging in a conspiracy to compromise the neutrality 
of the United States, in disregard of the constitutional provisions for 
conduct of foreign affairs. He was also charged, in effect, with 
attempting to oust the President's lawful appointee as principal agent 
for Indian affairs and replace him with a rival, thereby intruding upon 
the President's supervision of the executive branch.(87)
---------------------------------------------------------------------------
87. After Blount had been impeached by the House, but before trial of 
        the impeachment, the Senate expelled him for ``having been 
        guilty of a high misdemeanor, entirely inconsistent with his 
        public trust and duty as a Senator.''
---------------------------------------------------------------------------
    The impeachment of President Andrew Johnson in 1868 also rested on 
allegations that he had exceeded the power of his office and had failed 
to respect the prerogatives of Congress. The Johnson impeachment grew 
out of a bitter partisan struggle over the implementation of 
Reconstruction in the South following the Civil War, Johnson was 
charged with violation of the Tenure of Office Act, which purported to 
take away the President's authority to remove members of his own 
cabinet and specifically provided that violation would be a ``high 
misdemeanor,'' as well as a crime. Believing the Act unconstitutional, 
Johnson re

[[Page 2264]]

moved Secretary of War Edwin M. Stanton and was impeached three days 
later.
    Nine articles of impeachment were originally voted against Johnson, 
all dealing with his removal of Stanton and the appointment of a 
successor without the advice and consent of the Senate. The first 
article, for example, charged that President Johnson,

  Lunmindful of the high duties of this office, of his oath of 
office, and of the requirement of the Constitution that he should 
take care that the laws be faithfully executed, did unlawfully, and 
in violation of the Constitution and laws of the United States, 
order in writing the removal of Edwin M. Stanton from the office of 
Secretary for the Department of War.(88)
---------------------------------------------------------------------------
88. Article one further alleged that Johnson's removal of Stanton was 
        unlawful because the Senate had earlier rejected Johnson's 
        previous suspension of him.

    Two more articles were adopted by the House the following day. 
Article Ten charged that Johnson, ``unmindful of the high duties of his 
office, and the dignity and proprieties thereof,'' had made 
inflammatory speeches that attempted to ridicule and disgrace the 
Congress.89 Article Eleven charged him with attempts to 
prevent the execution of the Tenure of Office Act, an Army 
appropriations act, and a Reconstruction act designed by Congress ``for 
the more efficient government of the rebel States.'' On its face, this 
article involved statutory violations, but it also reflected the 
underlying challenge to all of Johnson's post-war policies.
---------------------------------------------------------------------------
89. Quoting from speeches which Johnson had made in Washington, D.C., 
        Cleveland, Ohio and St. Louis, Missouri, article ten pronounced 
        these speeches ``censurable in any, [and] peculiarly indecent 
        and unbecoming in the Chief Magistrate of the United States.'' 
        By means of these speeches, the article concluded, Johnson had 
        brought the high office of the presidency ``into contempt, 
        ridicule, and disgrace. to the great scandal of all good 
        citizens.''
---------------------------------------------------------------------------
    The removal of Stanton was more a catalyst for the impeachment than 
a fundamental cause.90 The issue between the President and 
Congress was which of them should have the constitutional--and 
ultimately even the military--power to make and enforce Reconstruction 
policy in the South. The Johnson impeachment, like the British 
impeachments of great ministers, involved issues of state going to the 
heart of the constitutional division of executive and legislative 
power.
---------------------------------------------------------------------------
90. The Judiciary Committee had reported a resolution of impeachment 
        three months earlier charging President Johnson in its report 
        with omissions of duty, usurpations of power and violations of 
        his oath of office, the laws and the Constitution in his 
        conflict of Reconstruction. The House voted down the 
        resolution.
---------------------------------------------------------------------------

 2. behaving in a manner grossly incompatible with the proper function 
                       and purpose of the office
    Judge John Pickering was impeached in 1803, largely for 
intoxication on the bench.(91) Three of the articles alleged 
errors in a trial in violation of his trust and duty as a judge; the 
fourth charged that Pickering, ``being a man of loose morals and 
intemperate habits,'' had appeared on the bench during the trial in a 
state of total intoxication and had used profane language. Seventy-
three years later another judge, Mark Delahay, was impeached for 
intoxication both on and

[[Page 2265]]

off the bench but resigned before articles of impeachment were adopted.
---------------------------------------------------------------------------
91. The issue of Pickering's insanity was raised at trial in the 
        Senate, but was not discussed by the House when it voted to 
        impeach or to adopt articles of impeachment.
---------------------------------------------------------------------------
    A similar concern with conduct incompatible with the proper 
exercise of judicial office appears in the decision of the House to 
impeach Associate Supreme Court Justice Samuel Chase in 1804. The House 
alleged that Justice Chase had permitted his partisan views to 
influence his conduct of two trials held while he was conducting 
circuit court several years earlier. The first involved a Pennsylvania 
farmer who had led a rebellion against a Federal tax collector in 1789 
and was later charged with treason. The articles of impeachment alleged 
that ``unmindful of the solemn duties of his office, and contrary to 
the sacred obligation'' of his oath, Chase ``did conduct himself in a 
manner highly arbitrary, oppressive, and unjust,'' citing procedural 
rulings against the defense.
    Similar language appeared in articles relating to the trial of a 
Virginia printer indicted under the Sedition Act of 1798. Specific 
examples of Chase's bias were alleged, and his conduct was 
characterized as ``an indecent solicitude . . . for the conviction of 
the accused, unbecoming even a public prosecutor but highly disgraceful 
to the character of a judge, as it was subversive of justice.'' The 
eighth article charged that Chase, ``disregarding the duties . . . of 
his judicial character. . . . did . . . prevert his official right and 
duty to address the grand jury'' by delivering ``an intemperate and 
inflammatory political harangue.'' His conduct was alleged to be a 
serious breach of his duty to judge impartially and to reflect on his 
competence to continue to exercise the office.
    Judge West H. Humphreys was impeached in 1862 on charges that he 
joined the Confederacy without resigning his federal 
judgeship.(92) Judicial prejudice against Union supporters 
was also alleged.
---------------------------------------------------------------------------
92. Although some of the language in the articles suggested treason, 
        only high crimes and misdemeanors were alleged, and Humphrey's 
        offenses were characterized as a failure to discharge his 
        judicial duties.
---------------------------------------------------------------------------
    Judicial favoritism and failure to give impartial consideration to 
cases before him were also among the allegations in the impeachment of 
Judge George W. English in 1926. The final article charged that his 
favoritism had created distrust of the disinterestedness of his 
official actions and destroyed public confidence in his 
court.(93)
---------------------------------------------------------------------------
93. Some of the allegations against Judges Harold Louderback (1932) and 
        Halsted Ritter (1936) also involved judicial favoritism 
        affecting public confidence in their courts.
---------------------------------------------------------------------------

    3. employing the power of the office for an improper purpose or 
                             personal gain
    Two types of official conduct for improper purposes have been 
alleged in past impeachments. The first type involves vindictive use of 
their office by federal judges; the second, the use of office for 
personal gain.
    Judge James H. Peck was impeached in 1826 for charging with 
contempt a lawyer who had publicly criticized one of his decisions, 
imprisoning him, and ordering his disbarment for 18 months. The House 
debated whether this single instance of vindictive abuse of power was 
sufficient to impeach, and decided that it was, alleging that the 
conduct was unjust, arbitrary, and beyond the scope of Peck's duty.
    Vindictive use of power also constituted an element of the charges 
in two other impeachments. Judge George W.

[[Page 2266]]

English was charged in 1926, among other things, with threatening to 
jail a local newspaper editor for printing a critical editorial and 
with summoning local officials into court in a non-existent case to 
harangue them. Some of the articles in the impeachment of Judge Charles 
Swayne (1903) alleged that he maliciously and unlawfully imprisoned two 
lawyers and a litigant for contempt.
    Six impeachments have alleged the use of office for personal gain 
or the appearance of financial impropriety while in office. Secretary 
of War William W. Belknap was impeached in 1876 of high crimes and 
misdemeanors for conduct that probably constituted bribery and 
certainly involved the use of his office for highly improper purposes-
receiving substantial annual payments through an intermediary in return 
for his appointing a particular post trader at a frontier military post 
in Indian territory.
    The impeachments of Judges Charles Swayne (1903), Robert W. 
Archbald (1912), George W. English (1926), Harold Louderback (1932) and 
Halsted L. Ritter (1936) each involved charges of the use of office for 
direct or indirect personal monetary gain.(94) In the 
Archbald and Ritter cases, a number of allegations of improper conduct 
were combined in a single, final article, as well as being charged 
separately.
---------------------------------------------------------------------------
94. Judge Swayne was charged with falsifying expense accounts and using 
        a railroad car in the possession of a receiver he had 
        appointed. Judge Archbald was charged with using his office to 
        secure business favors from litigants and potential litigants 
        before his court. Judges English, Louderback, and Ritter were 
        charged with misusing their power to appoint and set the fees 
        of bankruptcy receivers for personal profit.
---------------------------------------------------------------------------
    In drawing up articles of impeachment, the House has placed little 
emphasis on criminal conduct. Less than one-third of the eighty-three 
articles the House has adopted have explicitly charged the violation of 
a criminal statute or used the word ``criminal'' or ``crime'' to 
describe the conduct alleged, and ten of the articles that do were 
those involving the Tenure of Office Act in the impeachment of 
President Andrew Johnson. The House has not always used the technical 
language of the criminal law even when the conduct alleged fairly 
clearly constituted a criminal offense, as in the Humphreys and Belknap 
impeachments. Moreover, a number of articles, even though they may have 
alleged that the conduct was unlawful, do not seem to state criminal 
conduct-including Article Ten against President Andrew Johnson 
(charging inflammatory speeches), and some of the charges against all 
of the judges except Humphreys.
    Much more common in the articles are allegations that the officer 
has violated his duties or his oath or seriously undermined public 
confidence in his ability to perform his official functions. Recitals 
that a judge has brought his court or the judicial system into 
disrepute are commonplace. In the impeachment of President Johnson, 
nine of the articles allege that he acted ``unmindful of the high 
duties of his office and of his oath of office,'' and several 
specifically refer to his constitutional duty to take care that the 
laws be faithfully executed.
    The formal language of an article of impeachment, however, is less 
significant than the nature of the allegations that it contains. All 
have involved charges of conduct incompatible with continued 
performance of the office; some have explicitly rested upon a ``course 
of conduct'' or have combined disparate charges in a single, final 
article. Some of the indi

[[Page 2267]]

vidual articles seem to have alleged conduct that, taken alone, would 
not have been considered serious, such as two articles in the 
impeachment of Justice Chase that merely alleged procedural errors at 
trial. In the early impeachments, the articles were not prepared until 
after impeachment had been voted by the House, and it seems probable 
that the decision to impeach was made on the basis of all the 
allegations viewed as a whole, rather than each separate charge. Unlike 
the Senate, which votes separately on each article after trial, and 
where conviction on but one article is required for removal from 
office, the House appears to have considered the individual offenses 
less significant than what they said together about the conduct of the 
official in the performance of his duties.
    Two tendencies should be avoided in interpreting the American 
impeachments. The first is to dismiss them too readily because most 
have involved judges. The second is to make too much of them. They do 
not all fit neatly and logically into categories. That, however, is in 
keeping with the nature of the remedy. It is intended to reach a broad 
variety of conduct by officers that is both serious and incompatible 
with the duties of the office.
    Past impeachments are not precedents to be read with an eye for an 
article of impeachment identical to allegations that may be currently 
under consideration. The American impeachment cases demonstrate a 
common theme useful in determining whether grounds for impeachment 
exist-that the grounds are derived from understanding the nature, 
functions and duties of the office.

                       III. The Criminality Issue

                                     
    The phrase ``high Crimes and Misdemeanors'' may connote 
``criminality'' to some. This likely is the predicate for some of the 
contentions that only an indictable crime can constitute impeachable 
conduct. Other advocates of an indictable-offense requirement would 
establish a criminal standard of impeachable conduct because that 
standard is definite, can be known in advance and reflects a 
contemporary legal view of what conduct should be punished. A 
requirement of criminality would require resort to familiar criminal 
laws and concepts to serve as standards in the impeachment process. 
Furthermore, this would pose problems concerning the applicability of 
standards of proof and the like pertaining to the trial of 
crimes.(1)
---------------------------------------------------------------------------
 1. See A. Simpson, A Treatise on Federal Impeachments 28-29 (1916). It 
        has also been argued that because Treason and Bribery are 
        crimes, ``other high Crimes and Misdemeanors'' must refer to 
        crimes under the ejusdem generis rule of construction. But 
        ejusdem generis merely requires a unifying principle. The 
        question here is whether that principle is criminality or 
        rather conduct subversive of our constitutional institutions 
        and form of government.
---------------------------------------------------------------------------
    The central issue raised by these concerns is whether requiring an 
indictable offense as an essential element of impeachable conduct is 
consistent with the purposes and intent of the framers in establishing 
the impeachment power and in setting a constitutional standard for the 
exercise of that power. This issue must be considered in light of the 
historical evidence of the framers' intent.(2) It

[[Page 2268]]

is also useful to consider whether the purposes of impeachment and 
criminal law are such that indictable offenses can, consistent with the 
Constitution, be an essential element of grounds for impeachment. The 
impeachment of a President must occur only for reasons at least as 
pressing as those needs of government that give rise to the creation of 
criminal offenses. But this does not mean that the various elements of 
proof, defenses, and other substantive concepts surrounding an 
indictable offense control the impeachment process. Nor does it mean 
that state or federal criminal codes are necessarily the place to turn 
to provide a standard under the United States Constitution. Impeachment 
is a constitutional remedy. The framers intended that the impeachment 
language they employed should reflect the grave misconduct that so 
injures or abuses our constitutional institutions and form of 
government as to justify impeachment.
---------------------------------------------------------------------------
 2. The rule of construction against redundancy indicates an intent not 
        to require criminality. If criminality is required, the word 
        ``Misdemeanors'' would add nothing to ``high Crimes.''
---------------------------------------------------------------------------
    This view is supported by the historical evidence of the 
constitutional meaning of the words ``high Crimes and Misdemeanors.'' 
That evidence is set out above.(3) It establishes that the 
phrase ``high Clrimes and Misdemeanors''--which over a period of 
centuries evolved into the English standard of impeachable conduct--has 
a special historical meaning different from the ordinary meaning of the 
terms ``crimes'' and ``misdemeanors.(4) High misdemeanors'' 
referred to a category of offenses that subverted the system of 
government. Since the fourteenth century the phrase ``high Crimes and 
Misdemeanors'' had been used in English impeachment cases to charge 
officials with a wide range of criminal and non-criminal offenses 
against the institutions and fundamental principles of English 
government.(5)
---------------------------------------------------------------------------
 3. See part II B. supra.
 4. See part II B.2. supra.
 5.  See part II.A. supra.
---------------------------------------------------------------------------
    There is evidence that the framers were aware of this special, non-
criminal meaning of the phrase ``high Crimes and Misdemeanors'' in the 
English law of impeachment.(6) Not only did Hamilton 
acknowledge Great Britain as ``the model from which [impeachment] has 
been borrowed,'' but George Mason referred in the debates to the 
impeachment of Warren Hastings, then pending before Parliament. Indeed, 
Mason, who proposed the phase ``high Crimes and Misdemeanors,'' 
expressly stated his intent to encompass ``[a]ttempts to subvert the 
Constitution.'' (7)
---------------------------------------------------------------------------
 6. See part II.B.2. supra.
 7. See Id.
---------------------------------------------------------------------------
    The published records of the state ratifying conventions do not 
reveal an intention to limit the grounds of impeachment to criminal 
offenses (8) James Iredell said in the North Carolina 
debates on ratification:
---------------------------------------------------------------------------
 8. See part II.B.3. supra.
---------------------------------------------------------------------------

        . . . the person convicted is further liable to a trial at 
    common law, and may receive such common-law punishment as belongs 
    to a description of such offences if it be punishable by that 
    law.(9)
---------------------------------------------------------------------------
 9. 4 Elliot 114.

Likewise, George Nicholas of Virginia distinguished disqualification 
to hold office from conviction for criminal conduct:

        If [the President] deviates from his duty, he is responsible to 
    his constituents. . . . He will be absolutely disqualified to hold 
    any place of profit, honor, or trust, and liable to further

[[Page 2269]]

    punishment if he has committed such high crimes as are punishable 
    at common law.(10)
---------------------------------------------------------------------------
10. 3 Elliot 240.
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    The post-convention statements and writings of Alexander Hamilton, 
James Wilson, and James Madison--each a participant in the 
Constitutional Convention--show that they regarded impeachment as an 
appropriate device to deal with offenses against constitutional 
government by those who hold civil office, and not a device limited to 
criminal offenses.(11) Hamilton, in discussing the 
advantages of a single rather than a plural executive, explained that a 
single executive gave the people ``the opportunity of discovering with 
facility and clearness the misconduct of the persons they trust, in 
order either to their removal from office, or to their actual 
punishment in cases which admit of it.(12) Hamilton further 
wrote: ``Man, in public trust, will much oftener act in such a manner 
as to render him unworthy of being any longer trusted, than in such a 
manner as to make him obnoxious to legal punishment.(13)
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11. See part II.B 1. supra; part II.B.3. supra.
12. Federalist No. 70, at 461.
13. Id. at 459.
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    The American experience with impeachment, which is summarized 
above, reflects the principle that impeachable conduct need not be 
criminal. Of the thirteen impeachments voted by the House since 1789, 
at least ten involved one or more allegations that did not charge a 
violation of criminal law.(l4)
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14. See part II.C. supra.
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    Impeachment and the criminal law serve fundamentally different 
purposes. Impeachment is the first step in a remedial process--removal 
from office and possible disqualification from holding future office. 
The purpose of impeachment is not personal punishment; (15) 
its function is primarily to maintain constitutional government. 
Furthermore, the Constitution itself provides that impeachment is no 
substitute for the ordinary process of criminal law since it specifies 
that impeachment does not immunize the officer from criminal liability 
for his wrongdoing.(16)
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15. It has been argued that ``[i]mpeachment is a special form of 
        punishment for crime,'' but that gross and willful neglect of 
        duty would be a violation of the oath of office and ``[s]uch 
        violation, by criminal acts of commission or omission, is the 
        only nonindictable offense for which the President, Vice 
        President, judges or other civil officers can be impeached.'' 
        I. Brant, Impeachment, Trials and Errors 13, 20, 23 (1972). 
        While this approach might in particular instances lead to the 
        same results as the approach to impeachment as a constitutional 
        remedy for action incompatible with constitutional government 
        and the duties of constitutional office, it is, for the reasons 
        stated in this memorandum, the latter approach that best 
        reflects the intent of the framers and the constitutional 
        function of impeachment. At the time the Constitution was 
        adopted, ``crime'' and ``punishment for crime'' were terms used 
        far more broadly than today. The seventh edition of Samuel 
        Johnson's dictionary, published in 1785, defines ``crime'' as 
        ``an act contrary to right, an offense; a great fault; an act 
        of wickedness.'' To the extent that the debates on the 
        Constitution and its ratification refer to impeachment as a 
        form of ``punishment'' it is punishment in the sense that today 
        would be thought a noncriminal sanction, such as removal of a 
        corporate officer for misconduct breaching his duties to the 
        corporation.
16. It is sometimes suggested that various provisions in the 
        Constitution exempting cases of impeachment from certain 
        provisions relating to the trial and punishment of crimes 
        indicate an intention to require an indictable offense as an 
        essential element of impeachable conduct. In addition to the 
        provision referred to in the text (Article I, Section 3), cases 
        of impeachment are exempted from the power of pardon and the 
        right to trial by jury in Article II, Section 2 and Article 
        III, Section 2 respectively. These provisions were placed in 
        the Constitution in recognition that impeachable conduct may 
        entail criminal conduct and to make it clear that even when 
        criminal conduct is involved, the trial of an impeachment was 
        not intended to be a criminal proceeding. The sources quoted at 
        notes 8-13, supra, show the understanding that impeachable 
        conduct may, but need not, involve criminal conduct.
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    The general applicability of the criminal law also makes it 
inappropriate as the standard for a process applicable to a highly 
specific situation such as removal of a President. The criminal law 
sets a general standard of conduct that all must follow. It does not 
address itself to the

[[Page 2270]]

abuses of presidential power. In an impeachment proceeding a President 
is called to account for abusing powers that only a President 
possesses.
    Other characteristics of the criminal law make criminality 
inappropriate as an essential element of impeachable conduct. While the 
failure to act may be a crime, the traditional focus of criminal law is 
prohibitory. Impeachable conduct, on the other hand, may include the 
serious failure to discharge the affirmative duties imposed on the 
President by the Constitution. Unlike a criminal case, the cause for 
the removal of a President may be based on his entire course of conduct 
in office. In particular situations, it may be a course of conduct more 
than individual acts that has a tendency to subvert constitutional 
government.
    To confine impeachable conduct to indictable offenses may well be 
to set a standard so restrictive as not to reach conduct that might 
adversely affect the system of government. Some of the most grievous 
offenses against our constitutional form of government may not entail 
violations of the criminal law.
    If criminality is to be the basic element of impeachment conduct, 
what is the standard of criminal conduct to be? Is it to be criminality 
as known to the common law, or as divined from the Federal Criminal 
Code, or from an amalgam of State criminal statutes? If one is to turn 
to State statutes, then which of those of the States is to obtain? If 
the present Federal Criminal Code is to be the standard, then which of 
its provisions are to apply? If there is to be new Federal legislation 
to define the criminal standard, then presumably both the Senate and 
the President will take part in fixing that standard. How is this to be 
accomplished without encroachment upon the constitutional provision 
that ``the sole power'' of impeachment is vested in the House of 
Representatives?
    A requirement of criminality would be incompatible with the intent 
of the framers to provide a mechanism broad enough to maintain the 
integrity of constitutional government. Impeachment is a constitutional 
safety valve; to fulfill this function, it must be flexible enough to 
cope with exigencies not now foreseeable. Congress has never undertaken 
to define impeachable offenses in the criminal code. Even respecting 
bribery, which is specifically identified in the Constitution as 
grounds for impeachment, the federal statute establishing the criminal 
offense for civil officers generally was enacted over seventy-five 
years after the Constitutional Convention.(17)
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17. It appears from the annotations to the Revised Statutes of 1873 
        that bribery was not made a federal crime until 1790 for 
        judges, 1853 for Members of Congress, and 1863 for other civil 
        officers. U.S. Rev. Stat., Title LXX, Ch. 6, Sec. Sec. 5499-
        502. This consideration strongly suggests that conduct not 
        amounting to statutory bribery may nonetheless constitute the 
        constitutional ``high Crime and Misdemeanor'' of bribery.
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    In sum, to limit impeachable conduct to criminal offenses would be 
incompatible with the evidence concerning the constitutional meaning of 
the phrase ``high Crimes and Misdemeanors'' and would frustrate the 
purpose that the framers intended for impeachment. State

[[Page 2271]]

and federal criminal laws are not written in order to preserve the 
nation against serious abuse of the presidential office. But this is 
the purpose of the constitutional provision for the impeachment of a 
President and that purpose gives meaning to ``high Orimes and 
Misdemeanors.''

                             IV. Conclusion

                                     
    Impeachment is a constitutional remedy addressed to serious 
offenses against the system of government. The purpose of impeachment 
under the Constitution is indicated by the limited scope of the remedy 
(removal from office and possible disqualification from future office) 
and by the stated grounds for impeachment (treason, bribery and other 
high crimes and misdemeanors). It is not controlling whether treason 
and bribery are criminal. More important, they are constitutional 
wrongs that subvert the structure of government, or undermine the 
integrity of office and even the Constitution itself, and thus are 
``high'' offenses in the sense that word was used in English 
impeachments.
    The framers of our Constitution consciously adopted a particular 
phrase from the English practice to help define the constitutional 
grounds for removal. The content of the phrase ``high Crimes and 
Misdemeanors'' for the framers is to be related to what the framers 
knew, on the whole, about the English practice--the broad sweep of 
English constitutional history and the vital role impeachment had 
played in the limitation of royal prerogative and the control of abuses 
of ministerial and judicial power.
    Impeachment was not a remote subject for the framers. Even as they 
labored in Philadelphia, the impeachment trial of Warren Hastings, 
Governor-General of India, was pending in London, a fact to which 
George Mason made explicit reference in the Convention. Whatever may be 
said of the merits of Hastings, conduct, the charges against him 
exemplified the central aspect of impeachment--the parliamentary effort 
to reach grave abuses of governmental power.
    The framers understood quite clearly that the constitutional system 
they were creating must include some ultimate check on the conduct of 
the executive, particularly as they came to reject the suggested plural 
executive. While insistent that balance between the executive and 
legislative branches be maintained so that the executive would not 
become the creature of the legislature, dismissable at its will, the 
framers also recognized that some means would be needed to deal with 
excesses by the executive. Impeachment was familiar to them. They 
understood its essential constitutional functions and perceived its 
adaptability to the American contest.
    While it may be argued that some articles of impeachment have 
charged conduct that constituted crime and thus that criminality is an 
essential ingredient, or that some have charged conduct that was not 
criminal and thus that criminality is not essential, the fact remains 
that in the English practice and in several of the American 
impeachments the criminality issue was not raised at all. The emphasis 
has been on the significant effects of the conduct--undermining the 
integrity of office, disregard of constitutional duties and oath of 
office, arrogation of power, abuse of the governmental process, adverse 
impact on the system of govern

[[Page 2272]]

ment. Clearly, these effects can be brought about in ways not 
anticipated by the criminal law. Criminal standards and criminal courts 
were established to control individual conduct. Impeachment was evolved 
by Parliament to cope with both the inadequacy of criminal standards 
and the impotence of courts to deal with the conduct of great public 
figures. It would be anomalous if the framers, having barred criminal 
sanctions from the impeachment remedy and limited it to removal and 
possible disqualification from office, intended to restrict the grounds 
for impeachment to conduct that was criminal.
    The longing for precise criteria is understandable; advance, 
precise definition of objective limits would seemingly serve both to 
direct future conduct and to inhibit arbitrary reaction to past 
conduct. In private affairs the objective is the control of personal 
behavior, in part through the punishment of misbehavior. In general, 
advance definition of standards respecting private conduct works 
reasonably well. However, where the issue is presidential compliance 
with the constitutional requirements and limitations on the presidency, 
the crucial factor is not the intrinsic quality of behavior but the 
significance of its effect upon our constitutional system or the 
functioning of our government.
    It is useful to note three major presidential duties of broad scope 
that are explicitly recited in the Constitution: ``to take Care that 
the Laws be faithfully executed,'' to ``faithfully execute the Office 
of President of the United States'' and to ``preserve, protect, and 
defend the Constitution of the United States'' to the best of his 
ability. The first is directly imposed by the Constitution; the second 
and third are included in the constitutionally prescribed oath that the 
President is required to take before he enters upon the execution of 
his office and are, therefore, also expressly imposed by the 
Constitution.
    The duty to take care is affirmative. So is the duty faithfully to 
execute the office. A President must carry out the obligations of his 
office diligently and in good faith. The elective character and 
political role of a President make it difficult to define faithful 
exercise of his powers in the abstract. A President must make policy 
and exercise discretion. This discretion necessarily is broad, 
especially in emergency situations, but the constitutional duties of a 
President impose limitations on its exercise.
    The ``take care'' duty emphasizes the responsibility of a President 
for the overall conduct of the executive branch, which the Constitution 
vests in him alone. He must take care that the executive is so 
organized and operated that this duty is performed.
    The duty of a President to ``preserve, protect, and defend the 
Constitution'' to the best of his ability includes the duty not to 
abuse his powers or transgress their limits--not to violate the rights 
of citizens, such as those guaranteed by the Bill of Rights, and not to 
act in derogration of powers vested elsewhere by the Constitution.
    Not all presidential misconduct is sufficient to constitute grounds 
for impeachment. There is a further requirement--substantiality. In 
deciding whether this further requirement has been met, the facts must 
be considered as a whole in the context of the office, not in terms of 
separate or isolated events. Because impeachment of a President is a 
grave step for the nation, it is to be predicated only

[[Page 2273]]

upon conduct seriously incompatible with either the constitutional form 
and principles of our government or the proper performance of 
constitutional duties of the presidential office.

                                 
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