7

were tried in the Senate; two resigned prior to Senate proceedings. Five of the fourteen impeachments resulted in conviction in the Senate and removal from office. Each of the five convictions was of a federal judge.

The most recent impeachment proceeding involved Judge Harry E. Claiborne, who was impeached by the House of Representatives in 1986 and convicted and removed from office by the Senate the same year. Perhaps the most noteworthy aspect of the Claiborne impeachment, other than the fact that it was the first impeachment trial in 50 years, was the third article exhibited by the House. That article alleged that Judge Claiborne had been convicted in a United States district court for filing fraudulent tax returns. The House sought to have the Senate recognize that the conviction in and of itself, without proof of the commission of the underlying offense, was an adequate basis for impeachment. Judge Claiborne was ultimately acquitted on this article by the Senate, although he was convicted on the remaining three articles.

Prior to Judge Claiborne, the most recent impeachment trial was in 1936 when Judge Halsted Ritter was found guilty by exactly the required two-thirds vote of the Senate. More recently, in 1974, this Committee investigated and ultimately recommended articles of impeachment against Richard M. Nixon. President Nixon, however, resigned from office prior to the consideration of the articles by the House.

The historical antecedents of the impeachment process are rooted in hundreds of years of English and American experience. Impeachment is the ultimate means of preserving our constitutional form of government from the depredations of those in high office who abuse or violate the public trust.

III. BACKGROUND OF INQUIRY INTO THE CONDUCT OF JUDGE ALCEE L. HASTINGS

On March 17, 1987, Chief Justice Rehnquist, acting on behalf of the Judicial Conference of the United States, transmitted to the Speaker of the House of Representatives a certification that, in language taken from 28 U.S.C. 372(c), the Judicial Conference had determined that United States District Judge Alcee L. Hastings had "engaged in conduct which might constitute one or more grounds for impeachment." The certification and the accompanying Report of the Investigating Committee to the Judicial Council of the Eleventh Circuit ["Investigating Committee Report"] were referred to this Committee. Subsequently, this Committee referred the inquiry into the conduct of Judge Hastings to the Subcommittee on Criminal Justice ["Subcommittee"].

On December 29, 1981, Grand Jury No. 81-1-GJ(MIA), sitting in the Southern District of Florida, returned indictments charging Judge Hastings and William A. Borders, Jr., then a Washington, D.C. attorney, with conspiracy and obstruction of justice. The in

A copy of the certification is reprinted in In the Matter of the Impeachment Inquiry Concerning U.S. District Judge Alcee L. Hastings: Hearings before the Subcomm. on Crim. Justice of the House Comm. on the Judiciary, 100th Cong., 2d Sess. (1988) ["Subcommittee Hearings"], Appendix V. 1 Mr. Borders was also charged with two counts of interstate travel to facilitate the conspira

cy.

8

dictment alleged that Judge Hastings and William Borders had engaged in a plan to solicit a bribe from defendants who were tried before Judge Hastings. The judge and Mr. Borders were tried separately. On March 29, 1982, Mr. Borders was convicted by a jury on all counts. Judge Hastings was acquitted by a jury on February 4, 1983.

On March 17, 1983, Wm. Terrell Hodges, Chief Judge of the United States District Court for the Middle District of Florida, and Anthony A. Alaimo, Chief Judge of the United States District Court for the Southern District of Georgia, filed a verified written complaint with the United States Court of Appeals for the Eleventh Circuit alleging misconduct on the part of Judge Hastings. The complaint was initiated under 28 U.S.C. 372(c), which was enacted as part of the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980. The Chief Judge of the Eleventh Circuit appointed an Investigating Committee consisting of five judges, which spent approximately three years investigating the allegations. The Investigating Committee hired John Doar of New York as its counsel. In the course of its inquiry, the Investigating Committee heard the testimony of over 100 witnesses and gathered approximately 2,800 exhibits.

The Investigating Committee unanimously adopted a report setting forth its findings and conclusions. At the heart of the Investigating Committee Report: are 2 findings.

I. The evidence, considered in its totality, clearly and convincingly establishes that Judge Hastings was engaged in a plan designed to obtain a payment of money from defendants facing jail sentences in his Court by promising that with the payment they would receive lenient non-jail sentences.2

II. There is clear and convincing evidence that Judge Hastings sought to conceal his participation in the bribery scheme and to explain away evidence connecting him with the sale of justice and he pursued these objectives through concocting and presenting fabricated documents and false testimony in a United States District Court. Judge Hastings' conduct was premeditated, deliberate and contrived." The Judicial Council of the Eleventh Circuit accepted and approved the Investigating Committee Report and concluded that Judge Hastings had engaged in conduct which might constitute grounds for impeachment. On September 2, 1986, a certification to that effect was made to the Judicial Conference of the United States. The Judicial Conference, in turn, concurred that consideration of impeachment of Judge Hastings "may be warranted." The Judicial Conference's determination was followed by the certification by the Chief Justice to the Speaker of the House.*

2 The Investigating Report is reprinted in Appendix I of the Subcommittee Hearings at 341. Id. at 355-356.

4 Judge Hastings declined the opportunity to participate in the proceedings before the Investigating Committee. He also declined an opportunity extended to him by the Eleventh Circuit Judicial Council to respond to the Investigating Committee Report. The Judicial Conference of the United States afforded Judge Hastings another opportunity to respond, and he did so by filing a Continued

9

IV. COMMITTEE CONSIDERATION

A. SCOPE OF INVESTIGATION

It is a fundamental principle of the Constitution that impeachment proceedings have two separate and distinct parts. Article I, Section 2 states that the House of Representatives "shall have the sole Power of Impeachment," while Article I, Section 3 provides that "The Senate shall have the sole Power to try all Impeachments." The House of Representatives, therefore, inquires into whether an officer of the United States should be impeached, while the Senate conducts the trial if the House adopts articles of impeachment.

Within this framework, the Committee's role was to conduct an independent investigation into the alleged misconduct by Judge Alcee L. Hastings in order to determine whether to recommend the adoption of articles of impeachment. The Committee undertook an extensive investigation, which sought to assess independently the accuracy and reliability of the facts found by the Eleventh Circuit Investigating Committee, to analyze the record in Judge Hastings' trial which resulted in his acquittal, to pursue new leads and lines of inquiry with respect to the Investigating Committee's findings, and to investigate any new allegations of misconduct unrelated to the alleged bribery conspiracy.

In assessing the facts found by the Investigating Committee, the extensive record of the Investigating Committee proceedings, the thousands of pages constituting the records of the criminal trials of Judge Hastings and William Borders, and the entire record of the proceedings in United States v. Romano, the case involving the defendants whose sentences were the subject of the alleged bribery conspiracy were all reviewed. In addition, the Provisional Report submitted by Judge Hastings to the Judicial Conference, the records of Grand Jury 81-1, the FBI files pertaining to the bribery conspiracy case, and the working files of the Investigating Committee's counsel, John Doar, were reviewed.

Several forensic experts were consulted. Questioned documents were submitted to forensic experts for examination to determine whether they could be dated. The transcript of a conversation between Judge Hastings and William Borders was submitted to a linguistics expert to determine if it was a coded conversation as contended by the prosecution in Judge Hastings' criminal case and by the Investigating Committee.

During the course of its investigation into the conduct of Judge Hastings, the Committee learned of a wholly independent allegation that, in 1985, Judge Hastings had improperly disclosed confidential information he had received in his role as supervisory judge of a wiretap instituted under 18 U.S.C. 2516, generally referred to as Title III.5 The records of the United States district court's au

document entitled "A Provisional and Preliminary Report on the Proceedings Against United States District Judge Alcee L. Hastings" ["Provisional Report"], which is reprinted in Appendix III of the Subcommittee Hearings.

18 U.S.C. 2516 was enacted by Title III of the Omnibus Crime Control and Safe Streets Act of 1968.

10

thorization and supervision of the wiretap, the FBI investigation of the alleged disclosure, and the grand jury proceedings concerning the disclosure were all reviewed.

Over sixty witnesses were interviewed or deposed.

B. LITIGATION

The Committee requested from the United States District Court for the Southern District of Florida the records of the grand jury proceedings in the bribery conspiracy case, and the applications, orders, progress reports and other documents which were under seal in the Title III matter, as well as certain grand jury testimony involving the Title III disclosure." Judge Hastings opposed the Committee's requests and litigation ensued.

The Committee's request for access to the grand jury materials involving the bribery conspiracy was granted by Judge John Butzner, a Senior Judge of the Fourth Circuit, sitting by designation as District Judge in the Southern District of Florida. That decision was affirmed by the Eleventh Circuit Court of Appeals.8

Judge Butzner also granted the Committee's request for the grand jury and other materials relevant to the Title III inquiry. Judge Hastings again appealed, and again the Eleventh Circuit affirmed Judge Butzner's ruling. Judge Hastings applied to the United States Supreme Court to continue the stay of the mandate of the Eleventh Circuit. The Court denied his application. 10

C. COMMITTEE AND SUBCOMMITTEE CONSIDERATION

The Subcommittee held 7 days of hearings, during which 12 witnesses testified.11 The majority of the witnesses testified to the facts surrounding Judge Hastings' alleged participation with William Borders in the bribery conspiracy, Judge Hastings' alleged false testimony at his criminal trial, and the alleged disclosure by Judge Hastings of confidential wiretap information. The Subcommittee also heard the testimony of a linguistics expert with respect to a recorded conversation between Judge Hastings and William Borders. The United States district judges who filed the complaint which gave rise to the appointment of the Eleventh Circuit Investigating Committee also testified.

The Subcommittee allowed Judge Hastings to give a 10 minute opening statement under oath. Judge Hastings' counsel was given the opportunity to question all witnesses called by the Subcommittee, following the conclusion of the Subcommittee's questioning.

• The disclosure of confidential wiretap information by Judge Hastings was the subject of an investigation by a second Eleventh Circuit Investigating Committee. That second Investigating Committee is referred to herein as the "1987 Investigating Committee."

The Committee could have subpoenaed these materials, but as a matter of comity the Committee proceeded by way of letter requests from Committee Chairman Peter W. Rodino to the United States District Court for the Southern District of Florida. The letters are reprinted in Appendix V of the Subcommittee Hearings.

In re Request for Access to Grand Jury Materials, 669 F. Supp. 1072 (S.D. Fla.), aff'd, 833 F.2d 1438 (11th Cir. 1987) (special panel). See Appendix V of the Subcommittee Hearings.

In re Grand Jury 86-3 (Miami), 673 F. Supp. 1569 (S.D. Fla. 1987), aff'd, 841 F.2d 1048 (11th Cir. 1988) (special panel). See Appendix V of the Subcommittee Hearings.

10 Alcee L. Hastings, Judge, USDC S.D. Florida v. Committee on the Judiciary of the United States House of Representatives, et al., No. A-788 (April 18, 1988). The decision is reprinted in Appendix V of the Subcommittee Hearings.

11 May 18, 19, 24, 25 and 26, and June 1 and 9, 1988.

11

Judge Hastings' counsel questioned the witnesses for an initial 10 minutes and was granted additional 10 minute periods as needed. Judge Hastings' counsel was afforded the opportunity to submit names of potential witnesses accompanied by a proffer as to the necessity and significance of the witnesses' testimony.12 The Subcommittee, after reviewing the proposed witness lists and proffer, called and took testimony from those witnesses who had knowledge of facts relevant to the subject of the inquiry. Finally, Judge Hastings' counsel was afforded the opportunity to give a closing statement at the conclusion of all the testimony.

Judge Hastings was invited to testify before the Subcommittee on his own behalf. On June 9, 1988, Judge Hastings stated on the record that he declined the invitation on the advice of counsel.13 The Subcommittee subpoenaed William Borders to testify at the hearings. When he appeared, Mr. Borders refused to testify and asserted various constitutional rights.14 The Subcommittee ultimately determined not to take the extraordinary step of seeking immunity for several reasons, and the Committee reached the same determination.

First, Mr. Borders has a history of refusing to testify with respect to the alleged bribery conspiracy. Mr. Borders served more than 30 days in prison for contempt rather than testify before a grand jury investigating the bribery conspiracy matter.15

Second, the legal process available to the Subcommittee to compel Mr. Borders' testimony is fraught with delay. A decision to seek use immunity must first be approved by two-thirds of the Committee. The Committee then must apply to a federal district court for an order directing Mr. Borders to testify or provide the sought after information. At least ten days prior to applying for that order, the Committee must notify the Attorney General of its intent to seek the order, and the court will delay issuance of the order for as much as twenty additional days if the Attorney General so requests. 16

If Mr. Borders were to continue to refuse to testify, despite being granted use immunity, the House of Representatives' only means of compelling his testimony (aside from the process available under its inherent contempt power, which has not been used in modern times) is to seek criminal prosecution. To do so, a contempt citation must be approved by the Subcommittee, the Committee and the House (or by the presiding officer if Congress is not in session). After a contempt citation has been certified by the Speaker of the House, it is the "duty" of the United States Attorney "to bring the

12 Judge Hastings' witness lists and proffer are reprinted in Appendix III of the Subcommittee Hearings.

13 For Judge Hastings' written explanation of his decision, see Appendix III of the Subcommittee Hearings.

14 Prior to the hearings, Mr. Borders had asserted, on two occasions, that the terms and conditions of his parole precluded him from testifying before the Subcommittee. Although the Parole Commission and the Subcommittee took issue with this interpretation, the Subcommittee delayed further appearances by Mr. Borders until after his parole had expired. At that time, Mr. Borders refused to testify based on rights asserted under the First, Fourth, Fifth and Eighth Amendments to the Constitution. The transcripts of the Borders depositions are reprinted in Appendix V of the Subcommittee Hearings.

18 Mr. Borders also did not testify at his trial or at Judge Hastings' criminal trial. 16 18 U.S.C. 6005.