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First, the criminal process must be complemented by impeachment where misconduct, although not punishable by the criminal law, is sufficiently serious to warrant a judge's removal from office for the protection of the Nation. In fact, 10 of the 14 impeachments voted by the House of Representatives involved one or more charges that did not allege a violation of the criminal law.

Second, as Justice Story pointed out in his commentaries,86 the Framers intended that both impeachment and criminal prosecution should be available lest the "extraordinary influence" of "high and potent offenders" enable federal officers to escape punishment in 'ordinary tribunals." Alexander Hamilton explained that the Senate was chosen to try impeachments because it was likely to be "unawed and uninfluenced." 87 A local jury, for example, responding to purely local concerns, might render a verdict of acquittal. Such a "local" decision cannot be permitted to take from the Congress the power to remove from office, in the national interest, an official who has committed a high crime or misdemeanor.

Finally the double jeopardy clause of the Constitution does not bar an impeachment following a criminal proceeding of Judge Hastings. Under the Constitution, once jeopardy attaches a defendant may not generally be tried for the "same offense." The Supreme Court, however, has consistently held that the prohibition against double jeopardy does not bar the Government from exacting both criminal and civil penalties from an individual for the same acts or omissions.88 Because impeachment is not a criminal proceeding, the double jeopardy clause does not prohibit Judge Hastings' impeachment.

The nature of the sanction imposed by a proceeding is determinative of whether double jeopardy applies. As stated by the Supreme Court, an "acquittal on a criminal charge is not a bar to a civil action by the Government, remedial in its nature, arising out of the same facts on which the criminal proceeding was based..." 89 Therefore, the determination of whether the prohibition against double jeopardy affects impeachment depends on whether impeachment is "a civil action . . . remedial in its nature.'

There is overwhelming authority that impeachment is properly viewed as remedial or prophylactic, rather than criminal or punitive. Justice Story, for example, wrote that impeachment is:

[A] proceeding purely of a political nature. It is not so
much designed to punish an offender as to secure the state
against gross official misdemeanors. It touches neither his

86 Story, Commentaries on the Constitution of the United States, Section 688 at 497 (4th ed. 1973).

87 The Federalist No. 65 at 398 (Mentor ed. 1961).

88 See e.g., United States v. One Assortment of Firearms, 465 U.S. 354 (1984) (criminal acquittal of gun owner does not prohibit later forfeiture proceeding against firearms involved in criminal case); One Lot Emerald Cut Stones v. United States, 409 U.S. 232 (1972) (per curiam) (although defendant was acquitted of criminal charge of smuggling the government may still seek forfeiture of the items that the defendant allegedly smuggled out of the country); Helvering v. Mitchell, 303 U.S. 391 (1938) (Brandeis, J.) (acquittal in tax evasion trial did not bar subsequent civil assessment suit; court noted difference in the standards of proof required in criminal and civil cases); Lewis v. Frick, 233 U.S. 291 (1914) (acquittal in criminal proceedings of unlawfully importing a woman for prostitution did not bar subsequent civil deportation proceedings for same act).

89 Helvering v. Mitchell, 303 U.S. at 397 (emphasis added).

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person nor his property, but simply divests him of his po-
litical capacity.90

A 1974 Staff Report of this Committee correctly described the non-criminal nature of impeachment:

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; 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 its [sic] specifies that impeachment does not immunize the officer from criminal liability for his wrongdoing.91

The conclusion that impeachment is remedial, not punitive, is reinforced by the fact that noncriminal activities ny constitute impeachable offenses. 92 In such a case, the purpose of impeachment is to provide "a prospective remedy for the benefit of the people, not a retributive sanction against the offending officer." 93

For the foregoing reasons, Congress' power to impeach Judge Hastings on the basis of the bribery conspiracy is simply not affected by his prior acquittal.

B. THE LEGAL DOCTRINES OF RES JUDICATA AND COLLATERAL ESTOPPEL DO NOT APPLY

The legal doctrines of res judicata and collateral estoppel do not affect the impeachment of Judge Hastings for his participation in the bribery conspiracy. The doctrine of res judicata bars the relitigation, by the same parties, of a "claim" or "cause of action," including all the issues relevant to that claim or cause of action, whether or not raised at trial. Collateral estoppel, on the other hand, bars the relitigation of an issue actually adjudicated and essential to a judgment.94 Neither of these doctrines affect the impeachment of Judge Hastings for his corrupt involvement in the bribery conspiracy.

Application of these judicially created doctrines to the Congress would impermissibly violate the doctrine of separation of powers. As one commentator has observed:

[C]ertain congressional powers are simply not delegable-
as when it is clear from the language of the Constitution
that the purposes underlying certain powers would not be
served if Congress delegated its responsibility. . . . Con-

90 Story, Supra, at section 803.

The Committee on the Judiciary, "Constitutional Grounds for Presidential Impeachment" (February 22, 1974) at 24 (footnotes omitted; emphasis added). See also Brown, "The Impeachment of the Federal Judiciary," 26 Harv. L. Rev. 684, 692, n. 12 (1913) quoting 1 Curtis, "Constitutional History of the United States," 481-482.

92 Id. See also Report of the Committee on Federal Legislation, Association of the Bar of the City of New York, The Law of Presidential Impeachment, 29 The Record 154 (January 21, 1974); Tribe supra, at 220.

93 J. Labowitz, Presidential Impeachment 199 (1978).

94 For a more detailed explanation of the legal doctrines, see Casper Wireworks, Inc. v. Leco Engr'g & Mch., Inc., 575 F.2d 530, 535-36 (5th Cir. 1978).

" 95

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gress could not set up a Federal Court of Impeachment to try all impeachments: according to article I, section 3, "The Senate shall have the sole Power to try all Impeachments." Application of res judicata or collateral estoppel to the Congress would be an impermissible de facto delegation to the judiciary of the House of Representatives' "sole power to impeach.'

Moreover, even if judicial preclusion of impeachment proceedings were not constitutionally prohibited by separation of powers considerations, "[i]t should be remembered also that issue preclusion is appropriate only in certain circumstances and is subject to important exceptions to prevent unfairness." 96 One such exception is when the two actions involve different standards of proof, which is an important distinction between Judge Hastings' criminal trial and the present impeachment proceedings.

Because impeachment does not impose criminal punishment, the criminal standard of proof, "beyond a reasonable doubt", does not apply.9

97

In the impeachment trial of former Judge Harry E. Claiborne, the respondent filed a motion in the Senate to designate, "beyond a reasonable doubt," the criminal standard of proof, as the standard of proof for conviction by the Senate. The Managers on behalf of the House opposed the motion and urged that a "preponderance of the evidence" was the appropriate standard. Manager Kastenmeier stated in opposition to the respondent's motion, "A preponderance of the evidence is all that is necessary for removal from office. You are not sending the Respondent to prison. You are not taking his life." 98 The Senate rejected the Judge Claiborne's motion by a vote of 75 to 17. Senator Mathias stated, "It is the Chair's determination that the question of standard of evidence is for each Senator to decide individually when voting on Articles of Impeachment."99 The standard of proof used by the House of Representatives in adopting articles of impeachment is also lower than "beyond a reasonable doubt." Historically, the view that the House, acting analogously to a grand jury, "need only ascertain probable cause to warrant sending the case to trial at the bar of the Senate has generally been followed without debate." 100 In the case of former President Nixon, however, there was general agreement that the appropriate standard of proof in the House was "clear and convincing evidence.101 Several commentators have noted that the standard of proof may involve a "sliding scale," depending on the subject of the impeachment and the gravity of the offense. 102

95 Tribe supra at 285.

9 Otherson v. Department of Justice, I. & N.S., 711 F.2d, 267, 262 (D.C. Cir. 1983).

* See also Labowitz, supra at 199 ("If removal of the [officer] was intended to be a remedial step. there is little justification for contending that absolute certainty of guilt, or proof beyond a reasonable doubt, should be required to bring it into play. Rather, the test must be whether there is sufficient evidence of past wrongdoing meeting the constitutional criteria for grounds for impeachment to demonstrate the unfitness of the... officer to remain in office."). 98 S. Doc. No. 48, 99th Cong., 2d Sess. 108.

99 Id. at 148.

100 Firmage & Mangrum, Removal of the President: Resignation and the Procedural Law of Impeachment, 1974 Duke L. J. at 1042.

fo1 Labowitz supra at 192.

102 See generally Labowitz supra at 191-200.

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C. SUBSTANTIAL EVIDENCE WAS NEVER PRESENTED TO THE JURY

Finally there is substantial evidence before the Committee that was never presented to the jury. The three-year investigation by the Eleventh Circuit Investigating Committee and the Committee's own independent investigation into Judge Hastings' participation in the bribery conspiracy and his false testimony at trial produced abundant new evidence of Judge Hastings' corrupt conduct.

The following items of evidence were not presented to the jury at Judge Hastings' criminal trial:

1. The correlation of the documented telephone contacts between Judge Hastings and William Borders with significant events in the Romano case.

2. The evidence of events prior to September 10, 1981 revealing (a) the relationship between William Dredge and William Borders, (b) William Borders' insistence that he could deliver Judge Hastings, and (c) the correlation of events in the Romano case with early events in the bribery scheme.

3. William Borders' statement to Jesse McCrary prior to setting up his first meeting with the undercover agent, H. Paul Rico, that he did not expect to return to Washington, D.C. during the weekend of September 11-13, 1981 due to a long-planned family reunion.

4. William Borders' decision to delay his flight from National on September 11, 1981, following Judge Hastings' messages that his flight from Miami to National was delayed, which in turn provided the opportunity for Mr. Borders and the Judge Hastings to meet prior to Mr. Borders' first meeting with Mr. Rico.

5. The testimony of two of the women who were in Judge Hastings' Sheraton Hotel room at 10 p.m. on September 12, 1981, indicating that they were waiting for William Borders or at least for "someone" when Mr. Borders arrived.

6. Dudley Williams' statement that William Borders never missed a championship fight and this fact was well known to Mr. Borders' friends.

7. The determination that the phone records of the L'Enfant Plaza Hotel are sequentially numbered and none are missing for the relevant time period on October 9, 1981.

8. Evidence that four of the five phone calls Judge Hastings testified to at trial, allegedly made to Hemphill Pride to discuss his financial condition and desire for reinstatement, were not made to Mr. Pride, nor to any phone to which Mr. Pride had access.

9. Hemphill Pride's testimony that Judge Hastings asked him to go along with his explanation of the "Hemp letters" when the judge came to Columbia, South Carolina to interview Mr. Pride.

10. The testimony of William Borders' attorney, John Shorter, that prior to Mr. Borders' trial he declined to look at the alleged draft "Hemp letters" because he did not believe Judge Hastings would authenticate them.

11. The conclusions of forensic experts that the alleged drafts of the "Hemp letters" could not be dated.

12. The detailed testimony of a linguistics expert that the October 5, 1981 taped conversation between Judge Hastings and William Borders was a coded conversation.

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13. Evidence of events prior to September 10, 1981 suggesting a bribery scheme involving William Borders, Judge Hastings, and Santo Trafficante.

VIII. CONCLUSION

Impeachment protects our society by insuring that those in the highest positions of public trust are held accountable. This is especially true with respect to members of the federal judiciary who, barring impeachment, enjoy life tenure in office. The appointment of federal judges for life, as required by Article III of the Constitution, serves the very important purpose of insulating the federal judiciary from political pressure. The Constitution, however, does not tolerate abuse of office.

The evidence in the record before the Committee establishes Judge Hastings' misconduct in the three areas addressed in detail above. His corrupt conduct rises to the level of impeachable offenses.

The Committee's role is not to punish Judge Hastings. It is to determine whether articles of impeachment should be brought whereby he may be removed from office. That is a unique constitutional responsibility committed exclusively to the House of Representatives. The American people look to the Congress to protect them from persons who are unfit to hold public office by virtue of serious misconduct constituting a violation of the public trust. Where, as here, the evidence establishes the commission of impeachable offenses by a federal judge, our duty under the Constitution is clear and requires that articles of impeachment be brought.

IX. OVERSIGHT FINDINGS

No oversight findings were made by the Committee.

X. COMMITTEE VOTE

On July 26, 1988, the Committee took up H. Res. 499. Mr. Fish offered a technical and clarifying amendment which was adopted by voice vote. The Chair then divided the question, and separate votes were taken on Articles I and XVI. Article I was adopted by voice vote. Mr. Smith later announced that he had voted no on Article I. Mr. Crockett later announced that he had voted aye on Article I. Article XVI was adopted by voice vote. Mr. Crockett later announced that he voted no on Article XVI. With a reporting quorum being present, the Committee adopted the remainder of H. Res. 499, as amended, excluding Articles I and XVI. It was adopted by a roll call vote of 32-1.