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REPORT

As a matter of policy, the Commission thinks it reasonable that officials be removable for serious crimes or serious breach of the public trust, including abuse of power. While some clarification of the constitutional standard might be helpful, there is no reason to believe that any lack of clarity has created a difficulty so severe as to call for constitutional amendment.

The

Commission concludes that the current constitutional standard for impeachment, as interpreted over the years, has been adequate to its purpose and recommends that it not be amended.

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CHAPTER III

LEGISLATIVE BRANCH

Impeachment and removal of high-ranking federal officers are among the most awesome, although perhaps the least used, powers of the Congress. Designed to address serious wrongdoing, the impeachment clauses of the Constitution empower the legislative branch with authority to impeach (formally indict or charge) and then, after trial, to convict and remove from office the most powerful public servants in the land: the President, Vice President, Chief Justice of the United States and Associate Justices of the Supreme Court, other federal judges, and Cabinet officers.

The delegates to the Constitutional Convention struggled for months over the subject of impeachment, and only after careful deliberation did they assign the power to the national legislature -- and then with carefully crafted conditions for its exercise. Having established a single executive, the feeling prevailed that impeachment would be a central element of executive accountability. James Madison argued convincingly that some provision was "indispensable" to defend the community against "the perfidy of the chief magistrate." The framers were concerned not only with the applicability of impeachment to the President, but also with the establishment of checks and balances among the legislative, executive, and judicial branches.

To permit the impartial and courageous discharge of judicial duties, the framers sought to provide the federal judiciary with a high degree of independence from the executive and legislative branches of the government. The power to impeach and try impeachments vested in the Congress serves as a counterweight -- providing a mechanism for judicial accountability. The House's authority to investigate (and accuse) and the Senate's power to try (and remove) are limited only by other constitutional provisions and, as a general proposition, are not judicially reviewable. As the Supreme Court recently found in Nixon v. United States, judicial interference with the process would be counterintuitive and improper.2

See Chapter Notes.

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REPORT

But judicial independence and judicial accountability are not at odds with each other. The corrupt acts of an individual reduce the judicial branch's independence because of loss of public respect for the branch. The independence, autonomy, and integrity of a branch of government take precedence over the independence of an individual officeholder. In addition, accountability contributes to legitimacy and confidence which are the true components of independence. In statements made after the Constitutional Convention, Alexander Hamilton noted that federal judges too would be tried by the Senate, which he described as "consistent with the independence of the judicial character."3 Hamilton further observed that the judiciary will always be the branch least dangerous to the "political rights of the Constitution," and "all possible care is requisite to defend [the judiciary] against [the other branches'] attacks."4

Unlike some constitutional provisions that charted entirely new directions in practices and procedures for the nation, impeachment was a familiar subject to the framers. The English model, firmly embedded in the common law for six centuries, was well known to them. The new American system of impeachment, however, deviated markedly from the English system and drew on years of experience in the states prior to the Constitutional Convention. American impeachment is limited to officeholders; in the English system anyone (except members of the royal family) could be impeached. The English favored penal sanctions (fine, imprisonment, and perhaps even death) to attach upon conviction. The American remedy, aimed more at the office than the officeholder, tilts toward protecting the public interest rather than punishing the individual.

CONSTITUTIONAL AUTHORITY'

The scope of the impeachment power is succinctly 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." This provision for impeachment and removal is the Constitution's only reference to the disciplining of federal judges.

Provisions in Article I assign responsibility for the impeachment process to the two houses of the Congress and specify several formal requirements. Section 2 confers on the House of Representatives the

LEGISLATIVE BRANCH

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"sole Power of Impeachment." The threshold power to determine whether impeachment is an appropriate remedy therefore lies in the collective wisdom of the body most representative of the people. The Senate in section 3 is assigned the sole power to try all impeachments, with only two requirements applicable to federal judges: the Senate must be on oath or affirmation, and a two-thirds vote is required to convict on any article. (An additional requirement that the Chief Justice must preside in proceedings against the President of the United States does not apply to judicial impeachment.) Delegation of the impeachment power to the House of Representatives and the trial power to the Senate derived, in part, from the framers' belief that independence and autonomy in the executive and judicial branches would be necessary for the preservation of liberty.

Section 3 also clarifies the consequence of a Senate conviction, providing that a judgment of conviction shall extend no further than removal from office and disqualification from enjoying any "Office of honor, Trust or Profit under the United States." Finally, section 3 provides that a convicted party may also be liable for criminal prosecution, trial, judgment, and punishment in a court of law.

Of lesser significance are two phrases that mention impeachment in connection with other subjects. One provides that "The President ... shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment" (Article II, section 2). Another states that the trial of all crimes, except in cases of impeachment, shall be by a jury (Article III, section 2).

HISTORICAL EXPERIENCE

In the United States, impeachment activity commenced almost immediately after independence and has continued at irregular intervals during the past two centuries. There have been fifty-eight documented House impeachment investigations involving federal judges. Only fourteen Senate impeachment trials have taken place, eleven of federal judges. The following persons were impeached and were tried by the Senate: William Blount, United States Senator from Tennessee (impeachment proceeding occurred in 1798 and 1799); John Pickering, U.S. District Judge for the District of New Hampshire (1803-1804); Samuel Chase, Associate Justice of the United States Supreme Court (1804-1805); James H. Peck, U.S. District Judge for the District of

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REPORT

Missouri (1826-1831); West H. Humphreys, U.S. District Judge for the District of Tennessee (1862); Andrew Johnson, President of the United States (1867-1868); William W. Belknap, Secretary of War (1876); Charles Swayne, U.S. District Judge for the Northern District of Florida (1903-1905); Robert W. Archbald, Circuit Judge, U.S. Court of Appeals for the Third Circuit, then serving as Associate Judge of the U.S. Commerce Court (1912-1913); Harold Louderback, U.S. District Judge for the Northern District of California (1932-1933); Halsted Ritter, U.S. District Judge for the Southern District of Florida (1936); Harry E. Claiborne, U.S. District Judge for the District of Nevada (1986); Alcee L. Hastings, U.S. District Judge for the Southern District of Florida (1988-1989); and Walter L. Nixon, Jr., U.S. District Judge for the Southern District of Mississippi (1988-1989).

Of these fourteen persons, seven (six federal district judges and one circuit judge) were convicted by the Senate and removed from office: Judge Pickering (drunkenness and senility), Judge Humphreys (incitement to revolt and rebellion against the Nation), Judge Archbald (bribery), Judge Ritter (kickbacks and tax evasion), Judge Claiborne (tax evasion), Judge Hastings (conspiracy to solicit a bribe), and Judge Nixon (false statements to a grand jury). Only Judge Humphreys and Judge Archbald also were disqualified from holding future office of honor, trust, or profit under the United States.

Two famous impeachment proceedings resulted in Senate acquittals. President Andrew Johnson was charged with eleven articles of impeachment, all but two relating to violations of the Tenure of Office Act, which required congressional consent for the removal of any public servant whose appointment was congressionally approved. The Senate failed to reach the two-thirds necessary for conviction by a single vote on three of the articles, and it adjourned without voting on the remaining eight. After extremely contentious proceedings in the Senate, Justice Samuel Chase, accused of partisan conduct on the bench, also was acquitted. In terms of precedent, these two acquittals may be as important as the seven convictions. They enabled the Senate to create a body of knowledge about what factual circumstances are necessary for conviction and what circumstances fall short.

In a number of instances, the impeachment process commenced in the House but resignation of the officer foreclosed further action. The foremost of these cases involved President Richard M. Nixon who resigned from office in 1974 after the House Judiciary Committee