The Federal Impeachment Process: A Constitutional and Historical Analysis, Third Edition 9780226554976

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The Federal Impeachment Process

The Federal Impeachment Process A Constit u tiona l a n d Hi stor ic a l A na lysi s t h i r d E d iti o n

Michael J. Gerhardt

T h e U n i v e r s it y o f C h i c a g o P r e s s Chicago and London

The University of Chicago Press, Chicago 60637 The University of Chicago Press, Ltd., London © 2000, 2019 by Michael J. Gerhardt All rights reserved. No part of this book may be used or reproduced in any manner whatsoever without written permission, except in the case of brief quotations in critical articles and reviews. For more information, contact the University of Chicago Press, 1427 E. 60th St., Chicago, IL 60637. The University of Chicago Press editions, 2000 and 2019 Printed in the United States of America 28 27 26 25 24 23 22 21 20 19   1 2 3 4 5 isbn-­13: 978-­0-­226-­55483-­9 (paper) isbn-­13: 978-­0-­226-­55497-­6 (e-­book) doi: https://doi.org/10.7208/chicago/9780226554976.001.0001 The first edition of this book was published by Princeton University Press. Any questions concerning permissions should be directed to the Permissions Department at the University of Chicago Press, Chicago, IL. Library of Congress Cataloging-in-Publication Data Names: Gerhardt, Michael J., 1956– author. Title: The federal impeachment process : a constitutional and historical analysis / Michael J. Gerhardt. Description: Third edition. | Chicago ; London : The University of Chicago Press, 2019. | Includes bibliographical references and index. Identifiers: lccn 2018051242 | isbn 9780226554839 (pbk. : alk. paper) | isbn 9780226554976 (e-book) Subjects: lcsh: Impeachments—United States. | Constitutional law— United States. | Law—Political aspects—United States. Classification: lcc kf4958 .g47 2019 | ddc 342.73/068—dc23 LC record available at https://lccn.loc.gov/2018051242 ♾ This paper meets the requirements of ansi/niso z39.48-­1992 (Permanence of Paper).

T o t h e m e m o ry o f m y fat h e r

Sidney Jerome Gerhardt (1925–­1994) f o r h i s n e v e r - ­e n d i n g s u p p o r t , i n s p i r a ti o n , a n d u n i m p e a c h a b l e i n t e g r it y

CONTENTS

Preface to the Third Edition  ix Acknowledgments  xv

PART I: THE HISTORICAL ORIGINS OF THE FEDERAL IMPEACHMENT PROCESS  1 chapter one

The Impeachment Debates in the Constitutional Convention  3 CHAPTER TWO

The Impeachment Debates in the Ratifying Conventions  12

PART II: TRENDS AND PROBLEMS IN IMPEACHMENT PROCEEDINGS  23 CHAPTER THREE

Impeachment Proceedings in the House of Representatives  25 CHAPTER FOUR

The Senate’s Role in the Federal Impeachment Process  33 CHAPTER FIVE

Impeachment Issues Involving Congress and the Other Branches  49 CHAPTER SIX

Making Sense of the Federal Impeachment Process  66

PART III: CLARIFYING THE CONSTITUTIONAL ASPECTS OF THE FEDERAL IMPEACHMENT PROCESS  75 CHAPTER SEVEN

The Scope of Impeachable Officials and Applicable Punishments  77 CHAPTER EIGHT

Impeachment as the Sole Means of Disciplining and Removing Impeachable Officials  84 CHAPTER NINE

The Scope of Impeachable Offenses  105 CHAPTER TEN

The Proper Procedures for Impeachment Proceedings  114

viii contents CHAPTER ELEVEN

Judicial Review of Impeachments  120

PART IV: IMPEACHMENT REFORMS  149 CHAPTER TWELVE

Proposed Procedural Reforms for Judicial Impeachments  151 CHAPTER THIRTEEN

Proposed Statutory Changes and Constitutional Amendments to the Impeachment Process  161

PART V: PRESIDENTIAL IMPEACHMENT IN THE AGE OF CLINTON AND TRUMP  175 CHAPTER FOURTEEN

Lessons from President Clinton’s Impeachment and Acquittal  177 CHAPTER FIFTEEN

Impeachment and President Trump  193 Notes  223 Bibliography  271 Bibliography A ddendum  283 Index  287

PREFACE TO THE third EDITION

W

hen I published the first edition of this book in 1996, the subject of impeachment was a distant memory. It had been more than two decades since a series of startling revelations about Richard Nixon’s misconduct in office led to his becoming the first and only president to resign. But, merely two years after publication of the first edition, the House of Representatives impeached President Bill Clinton for perjury and obstruction of justice. When the Senate acquitted Clinton in 1999, it seemed as if both the nation and Congress were tiring of impeachment and wanted to move beyond it. Over the next couple decades, our partisan differences sharpened, but talk of presidential impeachment largely dissipated. Then the presidential election of 2016 happened, and talk of impeachment intensified, as did the already acute partisan differences dividing Americans. Whereas the public had largely opposed Bill Clinton’s removal in spite of his lying under oath and other misbehavior during his presidency, it divided over Donald Trump’s election as president, and it remains intensely divided about his fitness for office—­and impeachment. Nearly two years after becoming president, Trump continues to be a polarizing figure, with nearly half the country eager to oust him from office and the other half just as eager to defend him. This book cannot settle our partisan differences, but it can serve as an impartial tool to illuminate an important area of constitutional law that they obscure. Like each of its earlier editions, this book aspires to an even-­handed, comprehensive analysis of the federal impeachment process. I have no dog in the fight over President Trump’s future. We do not want—­and the framers certainly did not want—­constitutional law to favor one political party or its agenda more than another, and impeachment is no exception. Impeachment is not a substitute for election, and the law of impeachment should not be fashioned with partisan objectives in mind or to serve one party’s agenda. Impeachment is supposed to be a last resort for handling the misconduct of our highest-­ranking public officials, including that of the president. The challenge is keeping impeachment meaningful as a last resort. It is not possible to understand the precise scope or nature of impeachment, which has been forged over centuries, if we just listen to talk radio or to partisans whose interest in the subject comes and goes as it suits their purposes. It is tempting to think that the law of impeachment can be understood merely by focusing on the dramatic contests between Congress and the three American presidents who faced serious prospects of impeachment—­

x  preface to the third edition Andrew Johnson, whom the House impeached but the Senate acquitted by a single vote; Richard Nixon, who resigned just after the House Judi­ ciary Committee approved three articles of impeachment against him; and Bill Clinton, the first popularly elected president to be impeached but whom the Senate later acquitted. Each of these contests is important in its own right, and together they inform our judgment about impeachment. But even these events cannot be fully understood apart from the constitutional structure, the origins of impeachment, and the entire American experience with impeachment. The first edition of this book examined the origins and design of the federal impeachment process and impeachment practices through the early 1990s. Since most of those activities involved federal judges, much of the first edition’s focus was, like that of Congress, on the historical and constitutional implications of judicial impeachments. The second edition of this book expanded the analysis of the impeachment process. While retaining the original analyses of the history and practice of impeachment at the federal level, the second edition explored the most significant issues raised by President Clinton’s impeachment proceedings, including whether there are different standards for impeaching presidents and judges; determining the appropriate burdens of proof in the House and Senate; whether the House has deferred too much to external authorities’ referrals of evidence to initiate impeachment inquiries; whether the House should function like a grand jury or undertake independent fact-­finding in impeachment inquiries; determining the alternatives available for redressing presidential misconduct; the extent to which public opinion or the electoral process should influence impeachment deliberations; the degree to which the media shaped public opinion on the propriety of President Clinton’s impeachment; the extent to which a president’s private misconduct is legitimately impeachable; and whether a lame duck House’s impeachment is legitimate. This third edition updates the book fully. It applies the lessons learned during President Clinton’s impeachment and acquittal and the entirety of our experience with impeachment to the unfolding presidency of Donald Trump. In discussing the issues raised thus far in Trump’s presidency, the book does not aim to be a how-­to manual on his impeachment but rather to show how understanding the issues related to his presidency requires synthesizing what we know about impeachment generally. First and foremost, we should remember the fact that the impeachment process is designed to make presidential removal hard to achieve. Successful impeachment requires a majority of the House to approve impeachment articles against certain officials such as the president and federal judges and at least two-­thirds concurrence in favor of conviction

preface to the third edition  xi and removal in the Senate. Overcoming these thresholds is challenging, especially in the case of presidents, who may enjoy popular support. The Senate fell one vote short of convicting Andrew Johnson, one of the most unpopular presidents in history, while not even a majority of the Senate could agree to convict and remove Bill Clinton, whose popularity as president held steady throughout his impeachment trial in the Sen­­ate. Although Nixon’s popularity was plummeting at the time he decided to resign, it had taken nearly two years for investigators to build the case against him, something that might be difficult to replicate in a heatedly polarized environment and with our current 24-­7 news cycle. Indeed, President Clinton’s acquittal is likely to have strengthened the presidency. Johnson’s impeachment showed how difficult it is to remove an unpopular president, but Clinton’s acquittal showed how hard it is to oust a popular one. His acquittal raises serious questions about whether Congress will have the resolve to conduct lengthy investigations of popular presidents’ misconduct. At the same time, Clinton’s proceedings might have exposed the vulnerability of the federal judiciary to impeachment. For some of the most important things that facilitated President Clinton’s ac­­ quittal—­that is, his public support and comprehensive media scrutiny—­are absent from lower federal judges’ impeachment proceedings. Many shortcomings one might find in the Clinton impeachment proceedings would be exacerbated in a hearing about which the media and the public are largely indifferent. Second, our experience with impeachment confirms the important dis­­ tinction between constitutional and political legitimacy—­that is, something might be constitutional (such as the House’s and Senate’s unreviewable discretions to conduct impeachment proceedings as they each see fit) but still be politically problematic (such as the House’s decisions to render its final impeachment judgment in a lame duck session and to forgo independent fact-­finding). This distinction underscores the importance of the Constitution’s vesting impeachment authority in Congress. The impeachment process involves tasks incompatible with judicial decision-­making, including the formulation of impeachable offenses and the balancing of competing political interests. Moreover, the normal influences operating on Congress in conducting legislative business, including reelection and separation of pow­­ ers concerns, interest groups, lobbyists, and the media, operate in a special configuration in an impeachment. The higher the profile of the subject of an impeachment attempt (such as Presidents Johnson, Nixon, and Clinton), the greater the public scrutiny and the more heightened concerns among members of Congress about the historical, political, and constitutional consequences. Low-­profile judicial impeachments attract less public

xii  preface to the third edition interest, leaving members of Congress relatively free to address the merits of each case or to ignore such proceedings for the sake of handling more pressing legislative business. Third, impeachment differs from other congressional actions, such as lawmaking, in that the former is not subject to checks through the formal actions of other branches, such as judicial review or presidential veto. Impeachments are unique legislative judgments that may be curbed only by the electorate and compliance with skeletal constitutional constraints, such as the division of impeachment authority between the House and Senate and the requirement that there be concurrence of at least two-­ thirds of senators to convict. None of the existing models for explaining legislative action fit the impeachment process precisely, because they are designed to explain lawmaking. The challenge is to determine the extent to which members of Congress in the different circumstances of impeachment make principled judgments about the Constitution and the guilt of impeached officials. Fourth, President Clinton’s acquittal reaffirmed the important principle that presidential impeachment is not a substitute for criminal or civil proceedings but rather a special mechanism for addressing abuses of uniquely presidential powers or privileges. Moreover, foreclosing one forum of presidential accountability—­impeachment—­does not necessarily mean that others, such as civil and criminal proceedings, public opinion, history, and censure, are unavailable. The eight federal officials whom the Senate has convicted and removed—­ all judges—­committed misconduct that caused serious injury to the repub­ lic, which was undertaken with bad or malicious intent, undermined the integrity needed to do their jobs, and had a connection with their duties. In assessing this nexus, members of Congress have considered whether certain misconduct has been so outrageous or so thoroughly disabling or incompatible with an official’s duties as to give Congress no choice but to remove an official. As we will see, not all charges made against President Trump rise to the level of impeachable offenses, but some do, and others require more information in order to be properly assessed. This is discussed more thoroughly in chapter 15, but to take a couple prominent examples, vulgar or indiscreet comments might be in bad taste but hardly constitute legitimate grounds for impeachment, while obstruction of justice clearly does. In the circumstance that is most commonly analyzed as a possible basis for impeachment of President Trump—­collusion with a foreign government—­there are facts we do not know. Senator Howard Baker of Tennessee famously asked in the Senate Watergate hearings what the president knew and when did he know it. I am inclined to think that collusion—­any kind of cooperation or coordination—­with a foreign power to influence a presidential election

preface to the third edition  xiii or to undermine American interests is an impeachable offense. I have no idea what the president knew about or when he learned about any possible collusion. But based on everything we know about impeachment, it is at least clear that it is an appropriate mechanism to address this kind of misconduct. Another question raised in President Trump’s case—­whether misconduct before appointment or election to high-­ranking office may be the grounds for an impeachment—­is not hard to answer. Misconduct that occurred before election or appointment may be impeachable, if it can be established that the misconduct itself, or the failure to disclose it prior to election or appointment, had a connection to the securing of the office. In 2010, the House impeached a federal district judge, Thomas Porteous, based in part on his having effectively defrauded the Senate in his confirmation process by withholding information about misconduct that would have led the Senate to reject his nomination. Lying or misstatements made about misconduct prior to an election could become a basis for impeachment if it can be shown that the lies or misstatements had a significant influence on the outcome of the election. This is not to say that any rush to judgment against the current or any other president is in order. Both the misconduct and its possible connection to an election have to be substantiated. Moreover, even if the misconduct had no such connection, Congress may still determine that it effectively deprives the president (or any other impeachable official) of the integrity or moral authority required to maintain the position. The Constitution establishes as safeguards against the abuse of congressional discretion the requirements that a majority of the House—­and at least two-­thirds of the Senate—­are persuaded that legitimate grounds exist for impeachment. I conclude that the principal challenge going forward with the impeachment process is that members of Congress are likely to feel tremendous pressure to forgo investigating a president with high approval ratings or substantial popularity. Likewise, members of Congress are likely to feel significant public resistance to forgo legislative business of concern to their constituents to address low-­profile impeachable officials’ misconduct. The future of the federal impeachment process depends on the resolve of members of Congress to treat their impeachment authority as one of their most important duties and to undertake some political risk for the sake of checking the most serious kinds of abuses by high-­ranking executive and judicial officers who may not be meaningfully accountable through any other means.

ACKNOWLEDGMENTS

I

am grateful to each of the following individuals with whom I have discussed the subject matter of this book over the years: Alex Aleinikoff, Akhil Amar, Susan Low Bloch, Stephen Carter, Erwin Chemerinsky, Roger Cramton, John Dean, Walter Dellinger, Neal Devins, Dan Farber, Cynthia Farina, Jill Fisch, Deborah Gerhardt, Warren Grimes, Robert Kastenmeier, Neil Kinkopf, David Logan, Tracey Maclin, Bill Marshall, John McGinnis, Alan Meese, Russell Osgoode, Jeff Powell, Stephen Presser, Taylor Reveley, Chris Schroeder, Paul Schwartz, Peter Shane, Steve Shiffrin, Steve Thel, Laurence Tribe, William Van Alstyne, and Ron Wright. I am grateful for the excellent research assistance provided by former William & Mary Law School students Dana Fitzsimons, Chris Johnson, Stephen King, Mary Meek, Manly Parks, Gina Rudera, and Tim Singhel; Michael Parker and Tom Redburn when they were students at Cornell Law School; and Hailey Wren Klabo, class of 2019 at the University of North Carolina Law School. I am grateful to Chuck Myers, at the University of Chicago Press, for his support for my completing the newest edition of this book. Last but far from least, I am grateful to my wonderful family—Deborah, Noah, Daniel, and Ben—for their boundless interest, patience, and support.

Portions of chapter 11 have been reprinted with permission of the Duke Law Journal, and portions of chapters 14 and 15 have been reprinted with permission of Constitutional Commentary and Hofstra Law Review. Concepts and material from my article, “The Constitutional Limits to Impeachment and Its Alternatives,” published originally in Texas Law Review 68 (1989), and my book, Impeachment: What Everyone Needs to Know (Oxford University Press, 2018), have been used throughout the book. My thanks to the Texas Law Review Association and the Oxford University Press for permission to reprint and adapt this other work.

PART I THE HISTORICAL ORIGINS OF THE FEDERAL IMPEACHMENT PROCESS

T

his part examines the most important debates about the federal impeachment process in the federal constitutional and state ratification conventions. This inquiry sheds significant light on the inherently political nature and unique aspects of the federal impeachment power. The framers and ratifiers chose Congress as the federal impeachment authority because they believed that the special power to sanction executive and judicial misconduct should be exercised by an electorally accountable body that was not subject to the control of those whom it was attempting to discipline. The framers and ratifiers further hoped that in making impeachment decisions, the House of Representatives and espe­ cially the Senate would be concerned not so much with achieving short-­ term political advantage but with the need to convict or vindicate the official involved and the long-­term ramifications for the Constitution, the balance of power, and the public good.

Chapter One THE IMPEACHMENT DEBATES IN THE CONSTITUTIONAL CONVENTION

D

ebates about impeachment in the United States are older than the U.S. Constitution. Prior to the drafting and ratification of the federal Constitution, there were vast differences in state constitutional provisions regarding the officials who would be subject to, the timing of, grounds for, and the authorities empowered to conduct or try impeachments.1 These state procedures were in turn influenced by the English experience with impeachment from the thirteenth through the eighteenth centuries.2 Many scholars have closely examined the history of impeachment prior to 1787.3 Although these studies are not all without problems,4 they are of limited interest to contemporary students of impeachment, because the framers established a special impeachment mechanism in the Constitution that reflected their intention to differentiate the newly proposed federal impeachment process from the English and state experiences with impeachment prior to 1787. This chapter focuses on the major discussions of impeachment among the delegates at the constitutional convention, while the next chapter examines the ratification debates about impeachment. These chapters show the basic concerns of the framers’ generation regarding impeachment. Subsequent chapters use other historical material to illuminate the fundamental aspects of the federal impeachment process, particularly with respect to impeachment issues of contemporary concern. To be sure, the debates over impeachment at the constitutional con­ vention must be put into perspective. The convention delegates recognized that their views on the meaning of the Constitution mattered less than the opinions of the ratifiers.5 The convention delegates took this position because they believed that the Constitution would take effect only if the American people accepted it and that the public’s only chance to review and debate the proposed Constitution occurred during ratification. To prevent their own views from dominating ratification, the delegates decided shortly after the beginning of the constitutional convention to conduct their deliberations in secret.6 The delegates decided not to call the “yeas” and “nays” by delegate name in order to encourage each other to speak candidly and to avoid playing to the press.7 Instead,

4  chapter one the votes were recorded only by states. To make news leaks more difficult, delegates were allowed to inspect the journal of the proceedings but were not permitted to make a copy of any of its entries. The delegates also agreed that “nothing spoken in the House be printed, or otherwise published or communicated without leave.”8 Moreover, to prevent any unauthorized entry, the convention placed sentries both inside and outside its meeting place.9 These precautions ensured that the people who publicly discussed and ratified the new Constitution had no access to any of the notes on the constitutional convention. Indeed, the man who took the most copious notes of debates at the constitutional convention, James Madison, did not publish his notes until many years after the ratification of the Constitution.10 Madison objected for several reasons to relying on the convention debates to guide constitutional interpretation: his awareness of the framers’ desire to keep the convention’s proceedings secret from the ratifiers; various defects in the historical record, including his having given only an abbreviated account of the proceedings (and possibly having rewritten or revised portions of his notes after the convention); and the status of the ratifiers as the genuine sources of the Constitution’s authority.11 Accordingly, he urged later generations to look “for the meaning of [the Constitution] not in the General Convention which proposed, but in the State Conventions which accepted and ratified it.”12 Nevertheless, the early debates and origins of the federal impeachment process command our attention because they are inherently interesting and provide insights into the creative process of framing the Constitution, and perhaps the general public’s understanding of the Constitution’s language at or around the time of the framing and ratification. The debates may help modern students of the Constitution figure out what certain words may have meant to the framers and ratifiers. If nothing else, the constitutional and ratification convention debates provide a unique glimpse into the context from which the impeachment clauses sprang.13 Indeed, the historical record on the federal impeachment process is relatively clear on several matters of current interest. To begin with, all of the delegates principally involved in the impeachment debates in the constitutional convention were familiar with state impeachment procedures at that time; and the most influential speakers—­Edmund Randolph, James Madison, George Mason, William Paterson, Hugh Williamson, James Wilson, Benjamin Franklin, Elbridge Gerry, Rufus King, Gouverneur Morris, Alexander Hamilton, and Charles Pinckney—­were each well informed about the history of impeachment in England and their respective states.14 Moreover, the convention used as its model the basic features of the most popular state impeachment systems—­particularly the common provision that only officers could be impeached for criminal acts in office, with removal

the impeachment debates in the constitutional convention  5 and disqualification as the only sanctions15—­rather than the English practice under which the Parliament could impeach public officials and private citizens for so-­called political crimes—­offenses or conduct that injured the nation in some way—­and, upon their convictions, impose various criminal penalties, including death. Indeed, there were five particular issues relating to impeachment that elicited some significant discussion in the constitutional and ratification conventions. Two of these issues—­the proper forum for impeachment trials and the appropriate means for judicial removal—­overlapped, because they both involved similar aspects of each of the four main plans before the constitutional convention. For example, Edmund Randolph made the first significant suggestion regarding the proper court for impeachment trials by suggesting as part of his proposed Virginia Plan the creation of a national judiciary, which would hold its offices during “good behavior” and have the power to impeach “any national officers.”16 This plan became the order of business the next day when the convention resolved itself into a Committee of the Whole to begin serious deliberation. On the same day, Charles Pinckney of South Carolina proposed an alternative draft of a federal constitution,17 which was also referred to the Committee of the Whole.18 Randolph’s resolutions became the focus of the convention’s discussion and, as amended, the substance of the first report of the Committee of the Whole to the convention on June 13. Randolph and Madison agreed that the convention should give the power of impeachment to the national judiciary. In the middle of June, William Paterson, who also was the attorney general of New Jersey, proposed the New Jersey Plan as an alternative to the Virginia Plan. The New Jersey Plan gave the national judiciary “the authority to hear and determine in the first instance on all impeachments of federal officers.”19 It further provided that Congress could remove the executive upon the application of a majority of the state governors but it could not impeach. Shortly after the introduction of the New Jersey Plan, James Wilson of Pennsylvania contrasted the New Jersey and Virginia plans’ treatments of impeachment.20 He noted that the Virginia Plan provided for the removal of officers upon impeachment and conviction by the federal judiciary, while the New Jersey Plan neglected to include impeachment by the lower house but instead provided for removal only through application of a majority of the state governors. On June 18, Alexander Hamilton of New York entered the debate on the proper court for impeachments. He proposed a plan modeled on the British system and the New York Constitution. Under his plan, the chief executive, senators, and federal judges were to serve during good behavior.21 He further proposed that

6  chapter one [t]he Governor, Senators and all officers of the United States were to be liable to impeachment for maladministration and corrupt conduct; and upon conviction to be removed from office, and disqualified for holding any place of trust or profit—­all impeachments to be tried by a Court to consist of the Chief or Judge of the Superior Court of Law of each state, provided such judge shall hold his place during good behavior and have a permanent salary.22

While Madison in late July still pushed for the national judiciary as the body to be empowered to try impeachments, the Committee of Detail,23 responsible for putting all resolutions and suggestions into draft form, considered a compromise solution to allow trial “before the Senate and the judges of the federal judicial Court.”24 But, on August 6, the committee released its official report proposing in part that the House of Representatives “shall have the sole power of impeachment”25 and that the president “shall be removed from his office on impeachment by the House of Representatives, and conviction in the Supreme Court. . . .”26 The committee further suggested giving the Supreme Court original jurisdiction of “the trial of impeachments. . . .”27 On August 27, the convention, at the request of Pennsylvania’s Gouverneur Morris, postponed consideration of vesting the power to hold impeachment trials in the Supreme Court. Morris worried that the Supreme Court was unsuited for that purpose, “particularly, if the first judge was to be of the [P]rivy Council.”28 John Dickinson of Delaware moved to provide that judges should serve “during good behavior” but “may be removed by the Executive on the application [of] the Senate and House of Representatives.”29 Elbridge Gerry of Massachusetts seconded the motion, but Morris argued against Dickinson’s motion on the ground that it was contradictory to “say that the Judges should hold their offices during good behavior, and yet be [removable] without a trial.”30 Roger Sherman of Connecticut disagreed with Morris, noting that a similar provision was contained in the British statutes.31 James Wilson responded that such a provision was less dangerous in England because it was unlikely the House of Lords and the House of Commons would ever concur on judicial removal. But, “[t]he judges would be in a bad situation,” Wilson warned, “if made to depend on every gust of faction which might prevail in the two branches of [the American] government.”32 John Rutledge of South Carolina and Virginia’s Randolph agreed with Wilson and objected to Dickinson’s motion. When the motion came to a vote, only Connecticut favored it, while seven state delegations opposed it.33 On September 4, the Committee of Eleven, which the convention commissioned to report on those parts of the Constitution that had been postponed or not yet acted upon, urged the convention to accept the proposal that “[t]he Senate of the United States shall have power to try

the impeachment debates in the constitutional convention  7 all impeachments. . . .”34 The committee agreed to vest the Senate with this power after concluding that the president would not be selected by the Senate but rather by a college of electors, thereby removing what the committee had perceived as the troublesome conflict of granting both the trial and appointment powers to the same body. In the ensuing convention debate, Madison objected to the Senate as the forum for trying impeachments because it would make the president “improperly dependent” on the Senate “for any act which might be called a misdemeasnor [sic].”35 Madison proposed that the Supreme Court, acting either alone or in conjunction with another body, was the more appropriate forum.36 Morris favored the Senate, maintaining that “there could be no danger that the Senate would say untruly on their oaths that the President was guilty of crimes. . . .”37 He thought the Supreme Court “might be warped or corrupted” if it had the power to try impeachments, particularly in a case involving a president who had appointed any of its members.38 Pinckney agreed with Madison that empowering the Senate to try impeachments would make the president too dependent upon the legislature.39 Hugh Williamson of North Carolina argued that the Senate would be too lenient in presidential impeachments because it shared various powers with the president, while Sherman contended that the Supreme Court was an improper body for trying impeachments because the president appointed its members, at least some of whom might feel loyalty to him for having selected them.40 The convention delegates ultimately agreed that the Senate posed the fewest problems of any of the various proposed trial courts. When the full convention voted on the Senate as the trial body for impeachments, only two state delegations—­Pennsylvania and Virginia—­dissented from the proposal to make the Senate the “sole” court for impeachment trials.41 The third major issue regarding impeachment debated at the convention involved the impeachability of the president. Even though almost all state constitutions had provided that governors may be impeached, many delegates were concerned with impeachment as a check on the president.42 For example, on July 19, Morris had warned that the prospect of impeachment would “render the [president] dependent on those who are to impeach.”43 The next day the convention engaged in its most extensive discussion of the propriety of presidential impeachment. Pinckney agreed with Morris’s position, but George Mason of Virginia, James Wilson, Elbridge Gerry, William Davie of North Carolina, and Pennsylvania’s Benjamin Franklin argued in favor of presidential impeachment. Davie considered it “an essential security for the good behavior of the Executive.”44 Franklin pointedly remarked that history showed “the practice before this in cases where the chief Magistrate rendered himself obnoxious [was to make] recourse  .  .  . to assassination in [which] he

8  chapter one was not only deprived of his life but of the opportunity of vindicating his character. It [would] be the best way therefore to 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.”45 Madison thought it was “indispensable” to provide for presidential impeachment.46 Otherwise, he argued, the president “might pervert his administration into a scheme of peculation and oppression. He might betray his trust to foreign powers.”47 Randolph added that “tumults and insurrections” would inevitably result if the Constitution provided no mechanism for punishing a president’s abuse of power.48 Rufus King of Massachusetts took the position that impeachment was inappropriate in the case of an officer who served for a fixed term but would be appropriate in the case of the judiciary, since they would hold their offices during good behavior. Thus, in King’s opinion, “[i]t is necessary therefore that a forum should be established for trying misbehavior.”49 Near the end of the debate, Morris acknowledged that he had been convinced presidential impeachment was necessary for ensuring that the president would not be above the law.50 Following this discussion, the convention tentatively agreed to a clause providing for the president’s removal for “malpractice or neglect of duty.”51 On July 26, the convention reaffirmed the provision that the president shall be “removable on impeachment and conviction of malpractice or neglect of duty.”52 At the end of the convention, only South Carolina and Massachusetts voted against making the president impeachable.53 The fourth major debate pertained to the proper grounds for impeachment and the scope of impeachable offenses. Throughout the early convention debates on this issue, every speaker agreed that certain high-­ranking officials of the new government should not have immunity from prosecution for common-­law crimes, such as treason and murder.54 Many delegates envisioned a body of offenses for which certain federal officials could be impeached. They referred to “mal-­” and “corrupt administration,” “neglect of duty,” and “misconduct in office” as examples of impeachable offenses and maintained that common-­law crimes such as treason and bribery were to be heard in the courts of law.55 Paterson, Randolph, Wilson, and Mason each argued that the federal impeachment process should apply only to misuse of official power in accordance with their respective state constitutions and experiences. As late as August 20, the Committee of Detail reported that federal officials “shall be liable to impeachment and removal from office for neglect of duty, malversation, or corruption.”56 Yet, in its report on September 4, the Committee of Eleven proposed that the grounds for conviction and removal of the president should be limited to “treason or bribery.”57 On September 8, Mason opened the discussion on this latter proposal by questioning the wisdom of limiting

the impeachment debates in the constitutional convention  9 impeachment to those two offenses. He argued that “[t]reason as defined in the Constitution [would] not reach many great and dangerous offences.”58 Mason further contended that “[a]ttempts to subvert the Constitution may not be Treason as . . . defined” and that, since “bills of attainder . . . are forbidden, . . . it is the more necessary to extend the power of impeachments.”59 Mason then moved to add “maladministration” in order to permit impeachment upon less conventionally defined common-­law offenses.60 Gerry seconded the motion. Madison objected that “[s]o vague a term will be equivalent to a tenure during pleasure of the Senate.”61 Recalling an earlier debate on July 20 in which he had asked for more “enumerated and defined” impeachable offenses, Morris agreed with Madison.62 Mason thereupon withdrew his motion and substituted as the grounds for impeachment “bribery and other high crimes and misdemeanors,” which he apparently understood as including maladministration.63 The motion carried without any further discussion of the new phrase by a vote of eight to three.64 The final major issue concerning impeachment debated in the convention involved the number of votes necessary for conviction and removal. As it turned out, this dispute was closely linked to the convention’s decision regarding the proper forum for impeachment trials. The resolution of this issue required the delegates to consider the special qualities and constitutional duties of the Senate that qualified it as the appropriate authority to try impeachments. One of the first references to the concept of the two-­thirds vote, which would eventually work its way into the Constitution, was on June 6, when Hugh Williamson urged the convention to require that all congressional acts pass a two-­thirds vote of the Senate.65 Shortly thereafter, the Committee on Detail restricted Senate treaty ratification and confirmation of appointments to two-­thirds vote.66 Although it is not clear who suggested applying this rule to Senate impeachment trials, the Committee of Eleven (with no formal expression of dissent) proposed doing so on September 4 as a part of its official report. As one excellent study of the early history of impeachment in the United States found, the supermajority vote had no “parallel in pre-­ revolutionary constitutionalism.”67 In fact, the first serious debate about the utility of such a requirement was made with respect to John Dickinson’s original 1776 draft of Article 18 for the Articles of Confederation, which would have required two-­thirds approval of the states for assent to certain important matters of business, particularly treaties. Ultimately, Article 18 was accepted as a compromise in later drafts of the Articles of Confederation. By 1781 “when the articles were finally adopted in Congress, the deliberative principle behind the two-­thirds vote was integrated with the majoritarian practical outcome of it. Even outspoken

10  chapter one majoritarians agreed that important matters ought to require a two-­ thirds majority.”68 The significance of the two-­thirds or supermajority vote is directly traceable to the constitutional convention’s special view of the Senate.69 The delegates expected the Senate to be composed of well-­educated, wealthier, more virtuous citizens, who would be capable of making sound judgments with the nation’s best interests in mind. The delegates viewed the House as being more subject to factions and more inclined than the Senate to hasty and intemperate action.70 The delegates structured the Senate to counterbalance the House’s bad tendencies and, particularly when acting alone, to deliberate carefully on the most important political questions. In other words, the framers adopted the two-­thirds vote to ensure that the normally deliberate Senate would be most careful when considering issues of critical importance. The convention’s sentiment, according to Professors Peter Hoffer and N. E. H. Hull, was that “[t]he Senate sat to hear treaty ratification, executive appointments, and impeachment trials without the concurrence of the lower house for the same reason that all three types of business required two-­thirds votes. These issues should not be ‘popular.’ The Constitution assigned this labor to the Senate because the delegates expected [it] to rely upon its own wisdom, information, stability, and even temper.”71 With respect to the Senate’s role in impeachment proceedings, Alexander Hamilton later suggested that there was no situation in which the Senate should be more cautious and insulated from popular sentiment than when it sat to try an impeachment. Hamilton explained that “impeachment hearings were not trials in which the senators were jurors, despite the fact that they sat upon oath or affirmation, so much as deliberative sessions, when they decided whether an official had betrayed his public trust.”72 In other words, the supermajority vote required for conviction and removal ultimately “emerged as part of the revolutionary republican compromise between representative assemblies and deliberative councils. The association of impeachment with the two-­thirds rule signified a final Americanization and republicanization of the impeachment process.”73 In short, the two-­thirds requirement reflects the framers’ efforts to “republicaniz[e]” impeachment by ensuring that the Senate would be as thoughtful and deliberate in its consideration of such matters as the House of Lords had been (but without the latter’s patricianism). Even though many of the constitutional convention delegates were familiar with the English experience with impeachment,74 their general agreement to deviate from English impeachment is significant because it shows that from the convention’s outset the delegates put a uniquely American stamp on the federal impeachment process.75 For example, the delegates vigorously debated the definitions for impeachable offenses, whereas the English Parliament had always refused to constrain

the impeachment debates in the constitutional convention  11 its jurisdiction over impeachments by restrictively defining impeachable offenses. The delegates also agreed to limit impeachment to officeholders, but in England, anyone, except for a member of the royal family, could be impeached. Whereas the English House of Lords could convict upon a bare majority, the American delegates required a supermajority vote of the members of the Senate present. In addition, the House of Lords could order any punishment upon conviction, but the delegates limited the punishments in the federal constitution to those typically found—­ removal and disqualification—­ in state constitutions.76 Moreover, the English people had no means by which to discipline their king, while the framers agreed to make the president impeachable for certain offenses.77 Thus, the constitutional convention debates about impeachment confirm that the federal impeachment process was designed, in many critical aspects, to be uniquely American. The next chapter on the impeachment debates in the ratifying conventions depicts even further the Americanization of impeachment and the contemporaneous public understanding of the federal impeachment process as a special mechanism for disciplining and removing certain federal officials for certain kinds of misconduct. The next chapter also considers the implications of the framers’ and ratifiers’ understandable preoccupation with working out many of the fundamental aspects of this unique disciplinary mechanism rather than with anticipating, much less addressing, a number of impeachment problems that would be of concern to subsequent generations.

Chapter Two THE IMPEACHMENT DEBATES IN THE RATIFYING CONVENTIONS

T

he framers agreed that the Constitution took its authority from its adoption by the sovereign People of the United States in the ratification process. The early case law in this country recognized that the records and other publicly available authorities on ratification offered a contemporary and relevant explanation of the meaning of the Constitution.1 If the ratifiers, as the representatives of the People, had or expressed any shared understanding of the meaning of the Constitution, such as with respect to the federal impeachment process, then it would significantly influence subsequent readings of relevant portions of the document. In forming their impressions of the Constitution, the ratifiers had access to personal reports about the constitutional convention (constrained by the secrecy of its proceedings), pamphlets or letters for or against the new Constitution, and their readings of the document’s plain language. What we know about the ratifiers’ understandings, however, is limited because of evidentiary problems with the surviving records, including the varying shorthand skills of the people who transcribed the ratification debates, the note takers’ biases or incompetence or subsequent tinkering with their notes, and the difficulty of achieving consensus on how (or even whether) to aggregate the various views of different ratifiers (even at a single state convention) to determine their collective intent.2 Today, some scholars and judges might seek to determine the original public meaning—­ how the public understood the document—­or the linguistic meaning of the Constitution’s language. Probably the most prominent ratification document discussing the federal impeachment process was The Federalist Papers. It consists of a series of essays written for the purpose of securing ratification of the Constitution in New York, where ratification succeeded by a narrow margin.3 Nevertheless, the essays’ arguments are often attributed generally to the ratifiers, because their principal authors—­James Madison, Alexander Hamilton, and John Jay—­are commonly viewed as being among the most thoughtful, insightful, and authoritative commentators on the Constitution in the founding era. In the years since ratification, the essays have come to be widely admired as a brilliant work of political philosophy and for providing the founda-

the impeachment debates in the ratifying conventions  13 tion for understanding the American constitutional and political order. Even though these papers were driven by the need to secure ratification in New York and the Constitution’s supporters rarely attributed the sources of their constitutional understandings, those supporters made arguments on behalf of the Constitution similar to those asserted in The Federalist Papers. Thus, the portions of The Federalist Papers discussing impeachment may provide some insight into the ratifiers’ or public’s common attitudes about impeachment. In fact, Hamilton wrote the principal essays on impeachment. Because many of his arguments on behalf of the federal impeachment process remain influential, they should be put into some perspective. Hamilton disagreed with the final version of the federal impeachment process,4 and he left the constitutional convention long before the Constitution was approved. Sometimes his contentions were specious, made against complaints never actually lodged against the Constitution, and based on dubious historical analogies. Yet, Hamilton followed the general practice of the times by basing many of his insights into the framers’ purposes in designing the impeachment process on inferences from the text and structure of the Constitution. In addition, his discussions of federal impeachment were not only the most extensive of any during the ratification campaign but also still resonate today. Thus, examining Hamilton’s major arguments on behalf of the federal impeachment process provides important insights into its fundamental nature. For example, in Federalist No. 65, Hamilton explained the framers’ choice to make the Senate the forum for impeachment trials. First, he suggested the decision was not novel because it followed the generally respected conventions of England and several states, which had “regarded the practice of impeachments as a bridle in the hands of the legislative body upon the executive servants of the government.”5 Second, Hamilton favored the designation of “a numerous court for the trial of impeachments.”6 He explained that such a body would be well suited to handle the unique procedural demands of an impeachment trial, in which it, in contrast to the Supreme Court, was expected “never [to] be tied down by such strict rules, either in the delineation of the offence by the prosecutor, or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security.”7 Hamilton believed that judges lacked the kind of skills, judgment, and public accountability that the body empowered to try impeachments needed to have. In conducting civil or criminal proceedings, judges apply and are supposedly constrained by legal principles adopted by a politically accountable body, such as a legislature. At least at the federal level, judicial decisions are most problematic when judges do not abide by the boundaries set by some lawmaking authority. Given life tenure,

14  chapter two judges are not subject to the same kinds or range of political reprisals for their mistakes or policy decisions as elected authorities. In contrast, an impeachment trial requires the body in charge to formulate rules or set policy—­for example, formulating procedures and defining impeachable offenses—­that is more akin to legislative policy making than to adjudication performed by judges. The larger the body empowered to try impeachments, the less susceptible it will be to political intrigue or domination by a small faction. The political accountability of the members ensures further that they take due care in developing and applying standards. As Hamilton suggested, “[t]he awful discretion which a court of impeachments must necessarily have to doom to honor or to infamy the most confidential and the most distinguished characters of the community forbids the commitment of the trust to a small number of persons.”8 Another reason the framers chose the Senate as the forum for impeachment trials, Hamilton explained, was that they thought designating the likeliest alternative—­the federal judiciary—­as the impeachment trial body would be less fair to an impeachable official. Because judges would then be authorized to oversee an impeachable official’s impeachment trial and civil or criminal proceedings, “those who might happen to be the objects of prosecution would, in a great measure, be deprived of the double security intended them by a double trial.”9 Different authorities should oversee different proceedings. Hamilton argued that empowering the judiciary to try impeachments, even in conjunction with the Senate, would allow federal judges to engage in “double prosecution,” thereby enabling judges to check the procedures for keeping them in check and to aggrandize themselves at the expense of the other branches.10 Hamilton further explained the framers’ opposition to allowing juries to try impeachments, because they believed judges could easily influence juries and, thus, unfairly direct the outcomes of both the impeachment and common-­law or legal proceedings in which an impeachable official could be punished.11 In Federalist No. 66, Hamilton responded to what he called the four major objections to the proposed federal impeachment process. Although the substance of these complaints no longer seems relevant, they merit consideration because Hamilton’s responses clarified the framers’ reasons for structuring the federal impeachment process in the way that they did. The first objection was that the granting of the impeachment power—­ consisting of a combination of some judicial and legislative authority—­to Congress upset the balance of powers between the three different branches. Hamilton countered that there were two structural impediments to the abuse of the impeachment power. First, the division of impeachment authority between the House of Representatives and the Senate, “assigning to one the right of accusing, to the other the right of judging, avoids the inconvenience of making the same persons both accusers and judges; and

the impeachment debates in the ratifying conventions  15 guards against the danger of persecution, from the prevalency of a factious spirit in either of those branches.”12 Second, “the security to innocence, from th[e] additional [prerequisite of two-­thirds concurrence of the Senate for a conviction], will be as complete as itself can desire.”13 The second objection was that empowering the Senate to try impeachments would make the Senate too powerful.14 The essence of this complaint, which was frequently made in the ratification process, was that removal power enabled the Senate to control its objects, including the president. Hamilton offered no satisfactory response to this objection; he merely claimed that it was unclear and should not have precluded the framers from deciding “on general principles, where [the impeachment power] may be deposited with most advantage and least inconvenience[.]”15 Hamilton offered two responses to the third objection to the proposed federal impeachment process, that the Senate could not be trusted to try the impeachments of officials whom it had confirmed. First, he claimed that no such difficulty had ever occurred in the states, which had a similar system.16 Second, Hamilton emphasized that, as a practical matter, the Senate would feel little loyalty to the officials it had confirmed. Because the Senate did not have the authority to direct such appointments but rather could only “ratify or reject the choice of the president,” it was unlikely “the majority of the Senate would feel any other complacency towards the object of an appointment than such as the appearances of merit might inspire, and the proofs of the want of it destroy.”17 The fourth objection was a common complaint made against the proposed federal impeachment process during ratification. The claim was that authorizing the Senate to ratify treaties and to try impeachments made “the senators their own judges, in every case of a corrupt or perfidious execution of that trust.”18 Many ratifiers feared that the Senate would be the only body authorized to punish the president for his misconduct but would shirk its duty to do so in those instances in which it had advised or encouraged him to “betray” national interests “in a ruinous treaty,”19 because the senators would have ratified his abuse of power. Hamilton responded that the requirement of a supermajority of senators for treaty ratification made such treachery unlikely, particularly because he expected that the senators chosen “by the collective wisdom of the legislatures of the several States” would have sufficiently good “character” to protect the public from corrupt presidential agreements with foreign interests.20 He admitted, however, that impeachment could not protect the nation from a conspiracy between a faction of the Senate and the president because members of Congress could not be impeached.21 Rather, the security was to be found in an informed citizenry willing to protect “the public good” in the electoral process.22 Nor should the

16  chapter two public discount the willingness of senators “to punish [the president for his] abuse of their confidence” or “to divert the public resentment from themselves by a ready sacrifice of the authors of their mismanagement and disgrace.”23 In Federalist No. 69, Hamilton addressed another issue of modern con­ cern—­the preferred order for the impeachment and criminal prosecution of the president. The Constitution sets forth the grounds for impeaching the president24 in a different place from its provision that every impeachable official, including the president, is “liable and subject to Indictment, Trial, Judgement, and Punishment, according to law.”25 Yet, Hamilton read this text as providing that a president would first be impeached and removed from office and “would afterwards be liable to prosecution and punishment in the course of law.”26 Given that the constitutional convention delegates did not discuss the preferred order of impeachment and legal actions and that the Constitution does not state in so many words that a president’s liability at law should attach only after he has left office, Hamilton’s reading seems to have assumed its conclusion. In fact, Hamilton’s reading reflected his personal agenda. Although he did not offer a proposal to the constitutional convention making impeachment a prerequisite to criminal indictment of the president, he gave Madison in the closing days of the convention a paper that “delineated the Constitution which [Hamilton] would have wished to be proposed by the Convention.”27 Under its terms, the president would have been elected for life28 and would have had a more royal character than what the actual Constitution proposed. This is reflected by Hamilton’s use of the word abdicate rather than resign to describe a relinquishment of office by the president’s own act.29 Furthermore, a king’s immunity from ordinary legal process would have been bestowed upon this president-­for-­life, but, unlike a king, the president would have been subject to impeachment. If convicted and removed from office, the president could, according to Hamilton’s plan, “be afterwards tried & punished in the ordinary course of law.”30 None of these features of Hamilton’s plan received, however, any significant support in the constitutional convention. Also, the constitutional convention rejected a motion to suspend the president pending final judgment in any common-­law or criminal action brought against him while he was in office.31 In Federalist No. 79, Hamilton discussed the nature of judicial tenure and removal under the Constitution. First, he explained the meaning of the clause providing that federal judges should serve “during good behavior.” In his opinion, this provision did not set forth a basis for removing federal judges, that is, bad behavior or misconduct, but rather was intended to distinguish judicial tenure from the more limited terms of elected federal officials. Thus, the framers used this phrase to ensure that

the impeachment debates in the ratifying conventions  17 “the judges, . . . if they behave properly, will be secured in their places for life[.]”32 Hamilton suggested that Article III’s guarantees of undiminished compensation “and permanent tenure” for federal judges would protect judicial independence.33 He explained that the clause authorizing judicial impeachments was not a threat to judicial independence because it set forth a cumbersome process for judicial removal and, thus, was “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 judges.”34 In the next passage, Hamilton explained that even in the impeachment process there were limits on the grounds for which a federal judge could actually be removed from office. He approved of the absence of any provision in the Constitution for removing federal judges on the basis of senility, because the difficulty for achieving consensus on its occurrence would either preclude the provision from being enforced or make it “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 catalogue of known arts.”35 Nevertheless, Hamilton asserted that insanity could constitute a basis for “virtual disqualification” from office.36 Finally, Hamilton explained in Federalist No. 81 that the division of impeachment authority between the House and the Senate “is alone a complete security” against congressional retaliation against judicial review of legislative enactments.37 He explained that the threat of impeachment would check judicial “encroachments on the legislative authority,” because judges interested in preserving their positions would not abuse their authority and thereby “hazard the united resentment of the body [e]ntrusted with . . . the means of punishing their presumption, by degrad­ ing them from their stations.”38 Ironically, despite Hamilton’s extensive arguments in The Federalist Papers on behalf of the federal impeachment process, his fellow essayist James Madison believed that the most reliable source of the ratifiers’ views on any aspect of the Constitution was in the resolutions passed by the state ratifying conventions.39 Madison thought that these official declarations comprised relatively reliable records of the collective attitude of an assembly of ratifiers on some specific part of the Constitution because the resolutions were issued primarily to communicate such intent to the other states as well as the general public during the ratification campaign. There were, however, only two noteworthy state resolutions regarding impeachment. They each addressed an issue—­the impeachability of members of Congress, particularly senators—­that was not discussed in the constitutional convention but was of concern to many ratifiers in several states. In particular, the Virginia and North Carolina ratifying conventions both formally proposed to amend the new Constitution to

18  chapter two provide “[t]hat some tribunal other than the Senate be provided for trying impeachments of senators.”40 Obviously, this proposal reflected the shared objection of a majority of delegates from the North Carolina and Virginia conventions to what they regarded as the Constitution’s improper authorization of the impeachment of senators. The impeachability of senators was also discussed at some length in at least two other state ratifying conventions. For example, in the Massachusetts convention, which ratified the Constitution, two delegates defended the document in part on the ground that the impeachability of senators was a check against legislative abuse of power.41 Meanwhile, in the Pennsylvania convention, which also ratified the Constitution, John Smilie wondered whether members of Congress could be impeached and, if so, whether they would be reluctant to punish any of their colleagues for their official misconduct.42 James Wilson responded that he did not believe members of Congress could be impeached.43 He explained that the Constitution made legislators accountable through the constitutional requirement of having one-­third of the Senate subject to change every two years. Moreover, he argued, legislators “may not be convicted on impeachment before the Senate, [but] they may be tried by their country; and if their criminality is established, the law will punish [them]. . . . This is all that can be done under the [Constitution], for under it there is no power of impeachment.”44 Wilson went further to suggest that “[w]hen a member of the Senate shall behave criminally, the criminality will not expire with his office. The Senators may be called to account after they shall have been charged.”45 Wilson added that, even though federal judges were impeachable, they should not be impeached for legitimately exercising judicial review, because, he asked rhetorically, “What House of Representatives would dare to impeach, or Senate to co[nvict] judges for the performance of their duty?”46 The most substantial discussions on other aspects of the proposed federal impeachment process occurred in Virginia and North Carolina. In the Virginia ratifying convention, James Madison responded to arguments from George Mason,47 John Tyler (the future president’s father),48 and James Monroe49 that empowering the Senate to ratify treaties and to try impeachments made it too powerful. They asserted that there was “a twofold security” in the Constitution to ensure that the Senate could fairly try a corrupt president.50 Madison explained that the president could be tried by those senators who had been “a part of the Senate” at the time of the president’s misconduct but who had not been parties to his misconduct and “other members [who had] come into the Senate, one third being excluded every second year.”51 The North Carolina convention featured substantial discussion about the scope of impeachable offenses, especially with respect to whether they

the impeachment debates in the ratifying conventions  19 were limited only to actual or indictable crimes. For example, James Iredell, who would later serve as an associate justice on the Supreme Court, called attention to the complexity, if not impossibility, of defining the scope of impeachable offenses any more precisely than to acknowledge that they would involve serious injuries to the federal government. He understood impeachment as having been “calculated to bring [great offenders] to punishment for crime which it is not easy to describe, but which every one must be convinced is a high crime and misdemeanor against government. [T]he occasion for its exercise will arise from acts of great injury to the community[.]”52 Iredell explained further that “the person convicted [in an impeachment trial] is further liable to a trial at common law, and may receive such common-­law punishment as belongs to a description of such offenses, if it be punishable by that law.”53 As examples of impeachable offenses, he suggested that “[the] president must certainly be punishable for giving false information to the Senate”54 and that “the president would be liable to impeachments [if] he had received a bribe or had acted from some corrupt motive or other.”55 He warned, though, that the purpose of impeachment was not to punish a president “for want of judgment” but rather to hold him responsible for being “a villain” and “willfully abus[ing] his trust.”56 Governor Johnston, who would subsequently become the state’s first U.S. senator, agreed that “[i]mpeachment . . . is a mode of trial pointed out for great misdemeanors against the public.”57 In the Virginia convention, several speakers argued that impeachable offenses were not limited to indictable crimes. For instance, James Madison argued that, if the president were to summon only a small number of states in order to try to secure ratification of a treaty that hurt the interests of the other unrepresented states, “he would be impeached and convicted, as a majority of the states would be affected by his misdemeanor.”58 He suggested further that, “if the president be connected, in any suspicious manner with any person, and there be grounds to believe that he will shelter him,” the president may be impeached.59 George Nicholas agreed that a president could be impeached for a nonindictable offense.60 Edmund Randolph, who had voted against the Constitution’s adoption in the constitutional convention, explained that “[i]n England, those subjects which produce impeachments are not opinions. . . . 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.”61 He stressed that only the former constituted an impeachable offense.62 Edmund Randolph agreed that no one should be impeached for “an opinion.”63 The discussions in the various state ratifying conventions and the two formal resolutions on the scope of impeachable officials reflect the framers’ and ratifiers’ preoccupation with clarifying the fundamental aspects of the federal impeachment process, especially those features that looked

20  chapter two innovative or novel, such as making the president vulnerable to impeachment and determining the requisite votes for impeachment trials, or drew on familiar state practices but to an uncertain degree, such as the propriety of using a legislative body—­the Senate—­as the impeachment trial body. For the modern reader, many of the subjects of these early discussions seem obvious and the concern about them misplaced, while other discussions, such as about the scope of impeachable offenses, still seem relevant but inconclusive. Moreover, the framers and ratifiers had only limited foresight and did not discuss other issues, including the justiciability of impeachment challenges, the applicability of the Fifth Amendment due process clause to the federal impeachment process, and the severability of impeachment sanctions, that arose after ratification and preoccupy impeachment scholars and participants. Consequently, the challenge for the modern reader is to figure out the relevance of the framers’ and ratifiers’ often incomplete discussions, silence, and limited foresight to contemporary debates about the scope of the federal impeachment power. In the decade following ratification, the federal impeachment process continued to be the subject of much concern. For instance, in the First Congress, then Representative James Madison tried to calm fears about possible presidential abuse of authority to remove certain executive officers by suggesting that “he will be impeachable by the House before the Senate for such an act of maladministration; for I contend that the wanton removal of meritorious officers would subject him to impeachment and removal from [office].”64 Although one could construe Madison’s comment as meretricious because it supported a position he had taken in a partisan debate rather than as a framer, it is consistent with a stance he took in the Virginia ratifying convention to support presidential impeachment for nonindictable abuses of power.65 Within a year, the First Congress passed the Bribery Act of 1790 providing that upon conviction in federal court for bribery, a federal judge shall “forever be disqualified to hold any office.”66 The significance of this enactment is that it might reflect the views of some of the framers on whether impeachment is the only means for disqualifying federal judges, because many members of the First Congress had attended the constitutional convention or participated in the ratification campaign.67 Even so, the Bribery Act of 1790 was never enforced, in part because of concerns about its constitutionality,68 which remains in doubt to this day.69 In the meantime, James Wilson continued to explain to the Pennsylvania citizenry the new Constitution, including the nature of the impeachment process. His views are often given special weight (at least with respect to impeachment) by constitutional scholars because of his familiarity with the original design of the Constitution, as reflected in his writings on British constitutional law as applied to the colonies,70 service as a delegate to

the impeachment debates in the ratifying conventions  21 the constitutional convention, reputation among his contemporaries as one of the principal architects of the federal Constitution,71 and appointment as one of the first justices on the Supreme Court. Immediately following his appointment to the Court, Wilson gave a series of lectures as a professor of law at the College of Philadelphia to clarify the foundations of the American Constitution. In these talks, delivered in 1790–­1791 but published posthumously in 1804, Justice Wilson described impeachments as “proceedings of a political nature . . . confined to political characters, to political crimes and misdemeanors, and to political punishments.”72 He emphasized that the framers believed that “[i]mpeachments, and offenses and offenders impeachable, [did not] come . . . within the sphere of ordinary jurisprudence. They are founded on different principles; are governed by different maxims; and are directed to different objects: for this reason, the trial and punishment of an offence on an impeachment, is no bar to a trial and punishment of the same offence at common law.”73 Consequently, it is fair to say that, to a significant degree, ratification opened the door to virtually endless debate about certain features of the federal impeachment process. In fact, as part II demonstrates, the very first attempted federal impeachment, in 1798, which involved the impeach­ ment of a U.S. senator, and many subsequent exercises of the federal im­ peachment power, have raised complex issues that have confirmed as well as surpassed the framers’ and ratifiers’ concerns and expectations regarding the federal impeachment process.

PART II TRENDS AND PROBLEMS IN IMPEACHMENT PROCEEDINGS

I

n Democracy in America, Alexis de Tocqueville predicted that the relative mildness of the sanctions or penalties available in the federal impeachment process—­limited “to tak[ing] away the power from him who would make a bad use of it and to prevent[ing] him from ever acquiring it again”1—­would make impeachment relatively easy and popular to use.2 The actual impeachments conducted in American history do not, however, confirm de Tocqueville’s prophecy. Since the Constitution’s adoption, the House of Representatives has only impeached nineteen people.3 Of those nineteen officials, the Senate convicted only eight,4 acquitted six,5 dismissed two impeachments for reasons not directly related to the innocence or guilt of the impeached officials,6 and never proceeded against three others who had resigned prior to the beginning of their impeachment trials.7 In many other instances, the House of Representatives initiated but did not conclude impeachment proceedings because of the intervening resignation of the targeted official. The most famous of these cases involved President Richard M. Nixon. In 1974, he resigned from office after the House Judiciary Committee approved three articles of impeachment (charging obstruction of justice, abuse of presidential power, and unconstitutional defiance of House subpoenas) based partly on his involvement with a burglary of the Democratic Party headquarters at the Watergate Hotel.8 In the first case of an impeached official resigning to evade a Senate impeachment trial, the House voted in 1873 to impeach Mark W. Delahay, U.S. district judge for the District of Kansas, for unsuitable personal habits and questionable financial dealings, but he resigned from office before the House had formally approved articles of impeachment against him.9 In 1876, President Grant’s Secretary of War William Belknap resigned from office two hours before the House voted to impeach him. Subsequently, many senators questioned the jurisdiction of the Senate to try an individual no longer in office, and the Senate failed to convict Belknap.10 In 1926, the House impeached George W. English,

24  part two U.S. district judge for the Eastern District of Illinois, for habitual mal­ performance, but he resigned from office six days before his Senate impeachment trial was scheduled to begin.11 In 2009, the House impeached Samuel Kent, a federal district judge, for sexual assault, obstruction of justice, and making false and misleading statements under oath, but he, too, resigned shortly before the start of his Senate impeachment trial. Drawing on the impeachment proceedings described in the two preceding paragraphs, this part explores the most significant practices, trends, and problems in the House and Senate’s respective impeachment activities. Chapter 3 examines the procedures and challenges in House impeachment proceedings, while chapter 4 provides a similar analysis for Senate impeachment trials. Chapter 5 identifies other trends and issues involving the relationship between Congress and the other two federal branches. Chapter 6 suggests that the soundest approach for clarifying the legal difficulties with the federal impeachment process requires recognizing the limits of conventional sources of constitutional decision-­making, such as original meaning, and reconciling to the extent possible what each of the relevant constitutional authorities, including text, history, structure, and precedent, have to say about the problem at hand. This analysis clarifies impeachment as a unique component of the Constitution’s system of checks and balances, which normally involves conflicts as well as dialogues among the three branches about constitutional interpretation, but which, in the area of impeachment, involves a dialogue that largely excludes the judiciary (except as possible subjects) and is best understood as one of the principal mechanisms for both precipitating and resolving conflict between Congress and the leaders of the other branches.

Chapter Three IMPEACHMENT PROCEEDINGS IN THE HOUSE OF REPRESENTATIVES

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t the turn of the century, Lord James Bryce suggested impeachment was “like a hundred-­ton gun which needs complex machinery to bring into position, an enormous charge to fire it, and a large mark to aim at.”1 As Professor Warren Grimes aptly observed, the House of Representatives is empowered constitutionally to “light[] the fuse” to this weapon.2 The House’s authority to initiate impeachments derives from Article I, section 2, which provides that the House “shall have . . . the sole power of impeachment.”3 Article I also provides a general grant of authority to the House to determine the rules of its proceedings.4 The House has used its impeachment and rule-­making powers to develop special rules for its impeachment proceedings, which have been modeled on the impeachment practices of the states and the English parliament prior to the constitutional convention.5

The Basic Process The impeachment process begins with the lodging of a complaint of official misconduct in the House.6 As a practical matter, anyone, including any representative, the president, a state legislature, special counsel, prosecutor, or even a private citizen may request that the House begin a formal impeachment investigation.7 In addition, there are two statutory mechanisms for facilitating the initiation of an impeachment proceeding in the House. First, the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 created a vehicle for transmitting a request for impeachment proceedings directly from the federal judiciary.8 Pursuant to the act, the Judicial Conference may forward a certification to the House that “consideration of impeachment may be warranted.”9 In the 1980s, the Judicial Conference transmitted such certifications to the House regarding Judges Harry Claiborne, Alcee Hastings, and Walter Nixon, each of whom was subsequently impeached and removed from office.10 Second, the Independent Counsel Act11 provided that information gathered in the prosecution of

26  chapter three certain high-­ranking government officials12 may, at the discretion of a special prosecutor who had been appointed by a three-­judge panel or of the panel itself, be forwarded to the House for consideration of possible impeachment action.13 Pursuant to the House rules, impeachment resolutions are referred to the House Judiciary Committee, while resolutions calling for an investigation by the Judiciary Committee or a select committee are referred to the Rules Committee.14 Complaints of judicial misconduct are sent directly to the House Judiciary Committee, or are referred to the Judiciary Committee by any members of the House or the Senate who receive them. In addition, impeachment resolutions referred to the House Judiciary Committee are ordinarily directed to one of its subcommittees. For example, responsibility for the 1980s impeachment inquiries was spread among three of the Judiciary Committee’s standing subcommittees.15 The designated subcommittee has the discretion—­under the leadership of its chair—­to proceed with the investigation of the charges of misconduct referred to it. Once initiated, impeachment investigations have tended to vary. For example, the three judicial impeachments conducted by the House in the 1980s differed from previous ones in that a federal criminal trial had preceded each of them, allowing the relevant subcommittees to use the records of relevant court proceedings and of the U.S. Judicial Conference’s investigations of each of the three judges. The Eleventh Circuit Judicial Council also submitted a report of its own investigation of Judge Has­ tings after a jury had acquitted him.16 Thus, the House’s primary investigatory task in each of those impeachments consisted, in part, of gathering and analyzing the full record from the three judges’ prior proceedings. Once the House has completed its impeachment investigation, its next step is to vote on the articles of impeachment. In this century, this vote has coincided with the House’s vote on impeachment.17 Subsequently, the House designates the house managers to present the articles of impeachment before the bar of the Senate. In the words of traditional English parliamentary practice, which the states prior to 1787 followed,18 the managers orally “impeach”—­or accuse—­the impeached official (or respondent) in the Senate.19 In practice, this has meant that the house managers have also overseen and often participated directly in the prosecution of the impeached official in the Senate. Up until the 1980s, the House chose its managers in one of three ways: (1) election by majority vote of the House;20 (2) by resolution naming them;21 and (3) by resolution authorizing the Speaker to appoint them.22 In each of the three 1980s impeachments, the leadership of the House Judiciary Committee in consultation with the House leadership chose the house managers.23

impeachment proceedings in the house of representatives  27

The Major Problems Arising in House Impeachment Proceedings There have been four major issues with the House’s impeachment activities over the years. I consider each in turn.

The Decline in House Impeachment Activities Warren S. Grimes has determined that if one measures constitutional history “in four fifty-­year increments, impeachment investigations grew from seventeen during the first period to twenty-­three during the third period, then fell sharply to only seven during the period ending in 1989.”24 Since 1936, the House has initiated nine impeachment investigations: one involving Justice William O. Douglas in 1970 (not resulting in the filing of any formal charges by the House); another involving President Richard Nixon in 1974 (culminating in his resignation in 1974 a few days after the House Judiciary Committee had approved three articles of impeachment against him); actions in the 1980s against Judges Claiborne, Hastings, and Nixon; one against President Clinton in 1998–­99; a threatened action against Judge Robert Collins in 1993 after he had been convicted and sentenced to five years in federal prison for accepting money to influence the sentencing of a marijuana smuggler (he resigned the day before his impeachment proceedings were scheduled to begin); and two proceedings involving judges in 2009–­10. The trend in the House’s impeachment activity is notable if one considers that the size of the federal judiciary increased more than forty-­fold during that same period.25 There may be several interrelated reasons for the relative decline in the House’s exercise of its impeachment authority. First, House members may lack the time or interest to conduct impeachment proceedings. At least with respect to relatively low-­profile impeachments, such as those involving lower federal court judges, there is little incentive for House mem­bers to initiate or conduct impeachment proceedings and forgo other issues, such as the budget, national defense, and health care that are likelier to be of concern to their constituencies. Although the situation is apt to be different in a high-­profile impeachment, such as a presidential impeachment, in which representatives are likely to feel pressure from several sources, including their constituencies, the media, and the opposing party, those kinds of proceedings are relatively rare and, based on the attempted impeachments of Presidents Johnson, Nixon, and Clinton, are likely to capture the attention of the House if a president’s popularity is potentially weak. Members of the House, who are concerned with their reelections, may not be eager to forgo chances to deal with the matters likely to make them popular with their respective constituencies and to get them votes.

28  chapter three Moreover, the enthusiasm of House members for conducting an impeachment, especially for a low-­profile impeachable official, will probably be low or at least take a while to take hold in a case in which they must handle the first full investigation of the targeted official’s alleged mis­conduct. Second, it is usually much easier to implement means other than impeachment to discipline impeachable officials. For instance, it is easier for the Justice Department to initiate a criminal prosecution than it is for the House to conduct an impeachment inquiry, much less for a majority of the House to formally approve an impeachment. The initiation of a criminal prosecution generally will require the consent of only a small number of people, while the commencement and completion of an impeachment proceeding in the House requires support from key congressional leaders and, if it is to be done right, ultimately from most representatives. Hence, someone with a grievance against an impeachable official may turn initially to a prosecutor rather than to the House for the simple reason that the former may be likelier to take some action in the near or foreseeable future. Moreover, the House can save itself valuable time to spend on other matters by forgoing or at least delaying impeachment proceedings until other means of disciplining the impeachable official have run their course—­other means that can build a record on which the House can later rely to expedite its own investigation, or that can exonerate the individual or force a resignation (either of which could obviate the need for an impeachment). For example, judges may be disciplined not just by impeachment but through criminal proceedings and the internal disciplinary process available to the judiciary under the Judicial Disability Act of 1980. Both mechanisms might have enabled the House to avoid unnecessary or unwarranted judicial investigations that it may have undertaken during earlier periods. Of course, they also may have developed in part to occupy the vacuum left by the House’s failure to impeach (at least in a timely fashion). Third, the process for selecting qualified, honest federal officials, including federal judges, has generally improved. Increasingly rigorous scrutiny of people in the confirmation and electoral processes has generally brought about the appointment or election of more ethical individuals to office (or perhaps people who are simply more skilled at concealing their indiscretions). To be sure, neither the appointment nor electoral system is foolproof; indeed, the increased scrutiny of nominees’ or candidates’ backgrounds may coincide with increased ways of hiding or obscuring troublesome past conduct. It is possible that more intense media scrutiny of the conduct of impeachable officials in office has helped to hinder concealment and avoidance of public accountability for misbehavior and to provoke resignations from officials who might otherwise have had to face impeachment. At the same

impeachment proceedings in the house of representatives  29 time, the publicity given to impeachment hearings may partially account for a decline in impeachments initiated for purely partisan reasons. Even if it is not possible to determine precisely the degree to which media coverage has helped to depoliticize impeachments, the decrease in impeachment activity has coincided with a decline in politically motivated impeachments.26 In contrast, the first three completed impeachments in the House, which occurred during the first half of the nineteenth century, reflected the animosity between Federalists and Jeffersonian Republicans and their mutual desire to keep each other’s members out of federal offices, particularly judgeships.27 In contrast, the House Judiciary Committee’s investigation of William O. Douglas in 1970 may have begun for partisan reasons, but it ended in a report that found no grounds for impeachment. Although Justice Douglas’s lifestyle, including his four marriages and his idiosyncratic decision-­making, angered and disappointed many Republicans, the impeachment investigation ultimately exposed and perhaps diffused the personal or partisan motivations for his attempted impeachment.28

Delays in Initiating Impeachments Several other factors have led the House to delay initiating impeachment hearings. First, the House Judiciary Committee lacks sufficient resources to conduct in-­depth inquiries of official misconduct on its own. In the twentieth century, most impeachment proceedings have begun only after the Judiciary Committee has received substantial, well-­documented information of misconduct from another investigative body. The House substantially delayed the three 1980s impeachments, until other proceedings against the targeted judges were completed.29 In fact, the only impeachment investigation initiated by the Judiciary Committee in the past fifty years without a prior referral by a law enforcement agency (or a prior prosecution) was the unsuccessful one against Justice Douglas in 1970. Even in the case of President Nixon, the House began its inquiry after a special prosecutor had begun to investigate his possible criminal activities. A second factor explaining delays in initiating House impeachment proceedings is that the House uses some antiquated procedures. For example, the House has traditionally filed a “replication” to the answer filed by the respondent.30 In the system of common-­law pleading widely used in the founding era, a replication was one of a series of pleadings used to narrow the legal and factual issues in dispute. In modern civil practice, those functions are addressed by other devices, including discovery, pretrial motions (such as summary judgment), and pretrial conferences. Nevertheless, in the 1980s impeachments, the house managers continued to file replications,31 though the Constitution clearly does not require fidelity to such antiquated procedures.

30  chapter three Third, for almost half a century, the Justice Department has not shared with the House pre-­indictment materials indicating the possible need for an impeachment. Pre-­indictment cooperation between the House and federal prosecutors may no longer exist in part because it raises potentially serious separation of powers and institutional concerns. It is not likely that the Justice Department or the House Judiciary Committee is welcome in the other’s constitutional domain. Moreover, Justice Department prosecutors and House members are each probably sensitive to the practical ramifications of any allegations that politics played a role in the decision to initiate or stall a criminal prosecution or impeachment. In addition, the Justice Department might have concluded that referring a criminal matter to the House Judiciary Committee could complicate a prosecution and perhaps jeopardize a defendant’s right to a speedy trial or diminish the department’s initiative to prosecute. Moreover, prior to the 1980s, the Justice Department may well have thought that such cooperation was unnecessary because it believed a criminal prosecution would have been likely to expedite a judge’s resignation, as it did with Judges Albert Johnson of the Middle District of Pennsylvania in 1945,32 Otto Kerner of the Seventh Circuit in 1974,33 and Herbert Fogel of the Eastern District of Pennsylvania in 1978.34 Yet, this assumption proved false in the 1980s, when the Justice Department criminally prosecuted three federal district judges—­Harry Claiborne, Alcee Hastings, and Walter Nixon—­none of whom resigned from office.35 Later, in 2009, Samuel Kent, who had been criminally convicted of several offenses, did not resign when threatened with impeachment, because he did not want to leave office before his pension had vested. Only after the House impeached him did Kent resign from office, thereby precluding an impeachment trial that was likely not to go his way. Thus, the House has been forced in each case to initiate impeachment proceedings well after the completion of each judge’s criminal prosecution. Given the House’s relative lack of resources and interest in conducting impeachment inquiries, it should not be surprising to find external referrals triggered each of the last seven serious impeachment attempts, including those against President Clinton and Judge Collins.36

The Competence of House Members to Handle Impeachment Matters A common concern about the House’s impeachment proceedings is that they put House members into positions for which the representatives are neither trained nor prepared. For example, the subcommittee’s role in an impeachment is often thought to be akin to that of a prosecutor, requiring its members to construct (or oppose the compiling of) a carefully documented case through the filing of appropriate briefs, direct questioning of

impeachment proceedings in the house of representatives  31 witnesses, cross-­examination, and oral advocacy. However, many House members are not lawyers, much less experienced in litigation or trial tactics. The participation of experienced trial lawyers as counsel for the targeted officials further complicates House impeachment proceedings. For example, in the pretrial proceedings for the Claiborne, Hastings, and Nixon impeachment trials, there was an extensive motion and pretrial practice directed to narrowing the issues before the trial committees.37 Moreover, in the Hastings trial, depositions were conducted, and the Senate filed a collateral enforcement action in the courts to require the attendance of a witness.38 The house managers delegated many of the tasks involved in these matters to outside counsel and permanent staff, reserving for themselves oversight responsibility and all arguments made before the full Senate.39 Moreover, the house managers, who carry the heaviest burden to bear in the impeachment process, often have more substantial nonimpeachment, legislative duties than was the case in earlier impeachments. House managers found little need in the nineteenth century to abandon impeachment proceedings for other legislative business. In contrast, the Claiborne trial committee called a recess or adjourned early on at least four occasions to allow the house managers to cast votes on the floor of the House.40 To avoid these interruptions, the Hastings trial committee agreed that it would try to continue proceedings while the house managers were absent for a House vote.41

Doubts about the Fairness of House Impeachment Proceedings A final issue raised in House impeachment inquiries in the modern era is whether they have adequately protected the independence of the federal judiciary in general and of the targeted judge in particular. This is a potential problem because the House has not investigated claims concerning judicial independence, in spite of the fact that all three of the district judges impeached in the 1980s claimed that there had been prosecutorial misconduct.42 Yet, the 1980s impeachments also sparked substantial concern from members of Congress, federal judges, and many citizens about the unseemly fact that a convicted and imprisoned felon was still receiving a salary and possibly might continue to sit as a judge after his term of imprisonment.43 The heavy pressure on the House to impeach the three judges in the 1980s, combined with the relative ease of deferring to another body’s fact-­finding, arguably accounts for the overwhelming committee and House votes to impeach Claiborne, Hastings, and Nixon. The investigating subcommittee unanimously approved the articles of impeachment for each of the three respondents; and the Judiciary Committee approved the impeachment articles unanimously against Judges Claiborne and Nixon and had only a

32  chapter three single dissenting vote against its recommendation to impeach Judge Has­ tings.44 In the full House, there were no opposing votes against the impeachments of Judges Nixon45 and Claiborne,46 and only three opposing votes against Judge Hastings’s impeachment.47 With the possible exception of the vote to impeach Judge Archbald in 1912 (in which there were 223 in favor of his impeachment, with only 3 opposed to it),48 the massive majorities in the 1980s have differed sharply from the votes on the impeachment of every other official in this century. Contrasting the Ritter and Claiborne impeachment proceedings further underscores the influence of a prior conviction on an impeachment proceeding. Both judges were charged with underreporting their income tax returns. The nondisclosed income in Ritter’s case was an alleged kickback received from a former law partner whom the judge had appointed as a receiver. In contrast, Claiborne was accused of underreporting income that had no direct connection with his office.49 Ritter’s conduct arguably conflicted more clearly with the duties of an Article III judge, yet the House impeached Ritter by the slim majority of 181 to 146 as compared to its vote of 406 to 0 to impeach Claiborne. The outcome of Claiborne’s impeachment is consistent with the House’s having given substantial weight to his prior conviction. More pressure was placed on the House to impeach Presidents Nixon and Clinton. Despite any concern over whether these presidents were unfairly railroaded as a result of the great public outcry over their misconduct in office, the House moved to approve impeachment articles against both of them.50 The House moved faster in Clinton’s case, deciding to forgo doing any independent investigation or fact-­finding on its own before voting to impeach the president. Nevertheless, any concern about a rush to judgment in some impeachments must be balanced against the founders’ expectation that the intemperate action of the House in the impeachment process would be checked by the Senate’s deliberation. Thus, even if one were to concede that the impeachment proceedings of the three judges in the 1980s and the later proceedings for Presidents Nixon and Clinton were tainted by pressure applied to the House from the public, the Senate still had a role to play in each of those actions, one that at least would have allowed for further consideration of the merits of the charges against the impeached official.51 Although President Nixon’s resignation precluded the need for further action, the Senate held impeachment trials for each of the impeached judges in the 1980s and for President Clinton in 1999. The next chapter explores the constitutional issues that have arisen in these and other impeachment trials.

Chapter Four THE SENATE’S ROLE IN THE FEDERAL IMPEACHMENT PROCESS

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hile the Constitution vests the House of Representatives with exclusive authority to initiate impeachments, the Senate has the “sole power to try all impeachments.”1 Like the House, the Senate is constitutionally authorized to determine the rules for its respective impeachment proceedings.2 Pursuant to this power, the Senate has developed Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials.3 Having changed little since President Andrew Johnson’s impeachment trial in 1866,4 these rules govern removal proceedings before the full Senate unless a majority of senators decides otherwise. To the extent that its impeachment rules are silent, the Senate’s general rules for legislative business apply.

The Basic Process The Senate’s role in impeachment begins after receiving the impeachment articles from the House at the bar of the Senate.5 The chairman of the house managers asks the Senate to order the appearance of the accused to answer the charges, demands a conviction and appropriate judgment, and presents the articles of impeachment. Unless a special trial committee is appointed, the Senate by resolution sets a date and time for proceeding to consideration of the articles. The Senate has regarded its jurisdiction as the court of impeachment as having been strictly limited to the articles brought before it by the House.6 Throughout its first 150 years, the Senate exercised its trial authority by conducting proceedings on the Senate floor as a plenary court of impeachment. Under the present system, the Senate as a whole may take evidence, or if the Senate requests, a committee of senators may be appointed under rule XI of the Senate’s impeachment rules,7 to collect evidence in the case. If the Senate forgoes, as it did in the impeachment trial of Judge Halsted Ritter in 1936, using a trial committee,8 then the house managers and the impeached official’s counsel present evidence and make their motions and arguments on all evidentiary and constitutional questions before the full Senate. Senate debate on any question is not allowed in open session. Rule XXIV of the Senate’s impeachment rules expressly

34  chapter four directs that all “the orders and decisions [in a removal trial] shall be voted on without debate.”9 Thus, senators are not permitted, unless they suspend or modify the applicable rules by a majority vote, to engage in colloquies, or to participate in any argument in impeachment trials. In each of the three impeachment trials in the 1980s, the Senate designated twelve senators under rule XI to act as a special trial committee to receive and report evidence pertaining to the misconduct of the impeached official. Rule XI developed as a response to complaints about the complexity and time-­consuming nature of, and senators’ consistently poor attendance at, impeachment trials. Concern about such attendance first arose in the Belknap trial in 1876 and reached its apex in Judge Harold Louderback’s impeachment trial in 1933.10 The Louderback proceeding lasted for seventy-­six of the first one hundred days of President Franklin D. Roosevelt’s first term, one of the busiest legislative periods in American history. Subsequently, at least forty Senators urged the Senate Judiciary Committee to consider “whether a committee could be appointed to take evidence.”11 After considering various proposals, the Senate passed Resolution Number 1878,12 which authorized a committee of twelve senators to receive evidence and take testimony. In 1935, the resolution became rule XI, which was revised in 1986 to require that the committee consist of an unspecified number of senators.13 Subject to contrary vote by the Senate, a trial committee functions as the Senate would, with the same investigatory powers, in gathering evidence and taking testimony.14 For its procedure, the committee follows the Senate’s impeachment rules unless the Senate orders otherwise. When the Senate’s impeachment rules are silent on a matter, the Senate’s legislative rules govern the committee’s proceedings.15 Otherwise, the trial committee’s chair (chosen by the committee members) retains the authority to rule on motions, but, at the request of any senator on the committee, the chair’s ruling(s) may be appealed to, and affirmed or overturned by, a majority of the full Senate. The committee prepares a transcript of the entire hearings before it, a neutral statement of the facts, and a summary of the evidence that the parties have introduced on the contested issues of fact.16 Neither the transcript nor the summary contains any recommendation from the trial committee as to the impeached official’s guilt or innocence. Nevertheless, both documents are distributed to the full Sen­ ate. In addition, the trial committee’s proceedings are recorded and video­ taped for other senators to review if they so desire. Following a period sufficient for the remaining senators to study the record, the full Senate reconvenes to determine the “competency” and “relevancy” of the evidence submitted and to decide whether to call any witnesses or to have all of the evidence resubmitted to the entire body.17

the senate’s role in the federal impeachment process  35 After the parties make their closing arguments, the full Senate debates the impeachment in closed session, during which the committee members may express their opinions as to guilt or innocence. This is the only opportunity for the trial committee members to express openly their views on the impeachment under consideration. After full debate, the Senate votes on the guilt or innocence of the impeached official. A vote of two-­ thirds or more on any article results in the official’s conviction and automatic removal from office. The Senate’s practice is to vote separately or not at all on whether to disqualify the convicted official from holding future office. Moreover, any issue with the potential of depriving the full Senate of a chance to judge the guilt or innocence of the impeached official, regardless of whether it has been raised in proceedings before a trial committee or the full body, is usually referred to the full Senate and resolved by a majority vote. A majority of the Senate may also revise the rules governing impeachment trials if it deems such action proper. It is not unprecedented for reconsideration or revision of the rules to occur either when an impeachment trial is expected or at an early stage of a Senate proceeding. While rule reconsideration may be subject to filibusters, points of order may not be. In 2013 and 2017, the Senate, pursuant to points of order, adopted new constructions of its rules to disallow filibusters of any judicial nominations.

Patterns and Problems in Senate Removal Proceedings In contrast to the House, the Senate has been increasingly criticized for its handling of impeachment matters. Such criticisms need to be evaluated in light of the fact that the data obtainable about the Senate’s impeachment proceedings differs from what is available for the House’s impeachment hearings. Whereas the latter sessions are open to the public and fully recorded, senators may not debate many issues in impeachment trials; and, even at the times in which debate is permitted, it must be done in closed session. As a result, the reasons for certain decisions in Senate impeachment trials may not be reflected in the public record. Instead, the only information from which the senators’ reasoning on an issue can be gleaned will probably be any motions and supporting memoranda submitted by the parties or the ultimate resolution of the issue through the actual admission or exclusion of the evidence involved. This final disposition may be reflected in a roll-­call vote on the motion or objection, or it may be inferred from the subsequent conduct of the trial with regard to that evidence. Consequently, the following analysis, here and in the final

36  chapter four chapters, relies on anecdotal evidence; the published records of removal proceedings; historical, political, and scholarly commentary on impeachment trials; the responses of twenty-­one senators to a survey conducted by the National Commission on Judicial Discipline and Removal;18 and sen­ ators’ published statements issued at the end of President Clinton’s impeach­ ment trial.

Systemic Problems with Senate Removal Proceedings The three most common complaints about Senate impeachment trials, regardless of whether they are conducted before the full Senate or a trial committee, are (1) they may be cumbersome and disrupt legislative business; (2) the senators arguably lack the requisite experience, expertise, or training to deal competently with impeachment matters; and (3) existing impeachment rules may not foster fair proceedings. I consider each criticism in turn. THE REMOVAL PROCESS AS TOO CUMBERSOME

A few statistics on the resources expended on the Claiborne, Hastings, and Nixon removal proceedings provide some helpful background on the debate over whether the removal process is cumbersome and interferes too much with the Senate’s other legislative business. For example, the trial committee’s reception of evidence and taking of testimony regarding Claiborne’s removal took eight days;19 and debate, closing arguments, and voting before the full Senate filled the bulk of three legislative days.20 Alcee Hastings’s removal proceedings substantially exceeded these totals. To assist the trial committee’s members, the Senate hired nine full-­ time people and reassigned many staffers.21 Pretrial proceedings required the issuance of seven pretrial orders on such subjects as discovery, evidentiary principles, pretrial statements, legal fees, and stipulations on the authenticity of documents.22 At trial, the committee limited each side’s evidentiary presentations to thirty-­eight hours (including direct and cross-­ examination).23 The evidentiary hearings took eighteen full days during which fifty-­five witnesses testified.24 The full Senate spent almost four legislative days hearing preliminary motions and closing arguments, debating, and voting on eleven of the seventeen articles of impeachment.25 Walter Nixon’s removal proceedings consumed less of the Senate’s time than the Hastings hearings did. The difference in the length of the two proceedings resulted in part from the fact that the Nixon trial commit­tee often considered its Hastings counterpart’s disposition of similar procedural issues as controlling precedents. Nevertheless, the Nixon trial committee’s

the senate’s role in the federal impeachment process  37 hearings took almost four days.26 The Senate spent portions of three legislative days deliberating Nixon’s removal.27 Based on these statistics, a number of people have argued against the Senate’s ability to sit through an entire impeachment trial when at full capacity. First, they argue the size of the Senate makes removal proceedings unworkable.28 As early as the 1900s, senators complained that a full Senate trial was unwieldy. By 1936, almost half of the Senate claimed that the increase in the size of the body, from the original twenty-­six to ninety-­six at that time made a full Senate trial unworkable.29 They argued that it was unreasonable to expect ninety-­six people to operate efficiently as a court of impeachment and to be equally prepared or interested in impeachment trials. Second, some senators and commentators have argued that the Senate’s increase in size has coincided with a rise in the Senate’s level of business.30 The problem is that it is politically costly for the Senate to suspend other business in order to conduct an impeachment trial. As early as the impeachment trials of Judge Harold Louderback31 and Judge Halsted Ritter,32 many senators expressed their displeasure with the process, particularly its tendency to interfere with the Senate’s consideration of other pressing issues involving national security and the economy. Over the years, the difficulty has been that time spent on impeachment proceedings is time lost for other legislative business. Given the limited number of legislative working days for each session of Congress,33 senators are hard pressed to determine which of those days needs to be set aside for a federal judge’s removal proceeding. Yet another factor that has been cited as undermining the Senate’s capacity to effectively handle impeachment matters is the growing size of the federal judiciary. This growth may correspond to an increase in the number of judges who engage in misconduct, justifying their removal and more impeachment trials. For example, prior to 1985, only nine judges had been tried for impeachment,34 but there were three impeachment trials from 1986 to 1989,35 two forced judicial resignations in the 1990s,36 the impeachment and resignation of Samuel Kent in 2009, and the convic­ tion and removal of Thomas Porteous in 2010. Defenders of the status quo argue that an unwieldy, drawn-­out process gives impeached officials the greatest possible chance to prove their innocence. As Charles McC. Mathias, the chair of the Claiborne Senate trial committee, suggested, “I don’t think the removal of a federal judge is necessarily one of those things that ought to be either fast or easy no matter how pressing the times are. If the process is difficult, I think it helps to give the sense of independence that is important to the judiciary. The fact that judges know this is going to be a cumbersome and important process is part of the insulation that gives them their sense of independence.”37

38  chapter four THE SENATORS’ ARGUABLE LACK OF EXPERIENCE AND EXPERTISE IN CONDUCTING IMPEACHMENT TRIALS

Senators tend to divide into two groups over their competency to handle impeachment trials. Although senators often agree that impeachments are different from any of their other tasks, they disagree over their competence to handle such matters. On the one hand, many senators, particularly during the three 1980s impeachments, claimed that prosecution (as required by the removal process) requires skills many senators do not have.38 For example, Howell Heflin, who was a member of the Claiborne Senate trial committee and subsequently a commissioner on the National Commission on Judicial Discipline and Removal, observed that, “[while t]he twelve Senators who comprised th[at] Committee were well aware of the facts and involved[,] it is highly improbable that any Senator had the time to thoroughly review th[e] materials [compiled by the trial committee.]”39 Senator Heflin claimed to have found that “[f]ew Senators other than the 12 members of the Impeachment Committee were familiar with all the elements of the case.”40 On the other hand, many senators feel that most of their colleagues rise to the occasion in impeachment trials. For example, both Senators Arlen Specter and Joseph Lieberman praised the performance of their colleagues on the Hastings Trial Committee. Senator Specter was especially impressed that the Senate devoted its most serious attention to Hastings’s removal, in recognition of its uniqueness.41 Senator Lieberman found “[t]he Senate’s closed door deliberations [among] the most thoughtful and impressive moments of my first year in the Senate.”42 Yet, critics of the Senate’s removal process have often pointed to the lack of attendance at impeachment trials as reflecting the Senate’s general lack of interest in such proceedings. For example, at the 1913 trial of Circuit Judge Robert Archbald, at which time the Senate had ninety-­ four members, “Judge Archbald’s counsel f[ou]nd that the trial [rarely] attracted the attention of more than 20 Senators and that even the composition of the group attending [constantly] chang[ed:] following their normal routines, the Senators, far from behaving like judges and jurors dur­ ing a trial, wandered in and out of the Senate chamber at will, often gather­ ing only in response to a quorum call.”43 During the 1930s, attendance at impeachment trials was also very sparse.44 At one point during the impeachment trial of Judge Louderback in 1933, only three senators were present.45 Nor were there any efforts made prior to the adoption of rule XI to require the attendance of a meaningful number of senators.46 As one commentator observed in de­ scribing the impeachment trials conducted during the first half of this century, “the Senators who are sworn wander in and out of the chamber

the senate’s role in the federal impeachment process  39 during the taking of evidence, and ultimately vote to convict or acquit without exposing their views as to the law or facts.”47 Opinions differ over the quality of the attendance at the full Senate’s and the trial committees’ proceedings in the 1980s. Indeed, attendance records are of only limited significance because senators can be listed as having attended sessions at which they were present just long enough to have their names recorded. Moreover, Senator Heflin has complained that at no time were a full two-­thirds of his colleagues present for full-­ Senate deliberations for the 1980s impeachments, except for the periods when senators cast their final votes.48 In contrast, most of the twenty-­ one senators responding to the 1992 survey conducted by the National Commission on Judicial Discipline and Removal stated that attendance was not a problem during the full Senate’s final deliberations on Judges Claiborne’s, Hastings’s, and Nixon’s removals. Most of these senators also found attendance for the Claiborne, Hastings, and Nixon trial committees to have been “excellent” or “good.”49 Nevertheless, senators’ preparation for impeachment trials may be hindered by the absence of any official compilation of a comprehensive set of source materials for impeachment trials. Even though several items currently substitute for such a manual,50 senators generally agree that they lack the time to cull through these documents to find relevant information. The materials also tend to vary in detail and quality.51 Moreover, the absence of a compilation of precedents has made it harder for senators to benefit from the wisdom or judgment of their predecessors on similar procedural or substantive issues and to make decisions consistent with past trial rulings. The absence of such a document also tends to impede the efforts of impeached officials and their counsels to become fully prepared for and informed about the preferred practices in impeachment trials. PROBLEMS WITH THE SENATE’S IMPEACHMENT RULES

Another major set of concerns about impeachment trials in the Senate involves whether the Senate’s impeachment rules foster fundamentally fair proceedings. The debates over fairness diverge over three issues: (1) the applicability of the Fifth Amendment due process clause;52 (2) the need for set rules of evidence and uniform standards of proof; (3) the propriety of issue preclusion and collateral estoppel for previously convicted impeachable officials. I describe in turn each of these issues as background for my analyses of the major constitutional issues raised in impeachment proceedings in part III and of proposals for reforming the impeachment process in part IV. Due Process.  The most obvious indication that the due process clause applies to the impeachment process is the language of the clause itself.

40  chapter four It expressly bars Congress from depriving a person of “life, liberty, or property without due process of law,” and it makes no exceptions to its application to congressional actions; therefore the text appears to apply in all contexts, including impeachment. If the clause applies, then the Supreme Court has directed that we ask two questions. The first is whether the interest being deprived without due process of law is a protected “life, liberty, or property” interest for purposes of the Fifth Amendment. Obviously, the likeliest kind of protected interest that an impeachable official’s position, whether it be the presidency, judgeship, or cabinet office, could fall under is a protected “property” interest. (It seems ludicrous to argue it would be covered by “life,” which has to do with living or dying, or “liberty,” which, in this context, has to do with freedom of movement.) Whether something is a protected “property” interest for purposes of the Fifth Amendment’s due process clause depends on whether federal law provides a reasonable expectation of an official’s entitlement to keep the position, as long as the conditions of the legal protections are met. Hence, cabinet officials might not have a protectable interest here since they can be fired at will by the president. In contrast, presidents and judges cannot be fired at all. They appear to be entitled to keep their jobs until the expiration of their terms or unless they have been impeached, convicted, and removed from office because they committed an impeachable offense. If we conclude that the impeachable official’s position is a protected Fifth Amendment property interest, then we ask what process is due; that is, what process must be given by the federal government before it takes the interest (the position) away from the official. In the jurisprudence of procedural due process, the minimal due process required prior to the de­ privation of a protected Fifth Amendment interest is (1) a neutral decision-­ maker, and (2) a hearing. Yet, even if we apply the Fifth Amendment to the impeachment context, due process of law is satisfied as long as there is an impartial decision-­ maker and some kind of hearing. These are easy safeguards to provide in this context. First, because the Constitution expressly designates the House in impeachment proceedings and the Senate in impeachment trials as the decision-­makers, the framers made the decision for us that these authorities are more “neutral” than any other possible decision-­makers. The framers rejected the Supreme Court as the decision-­maker here in part because it would have had a vested interest in impeachment proceedings brought against any of its members. Indeed, of the three branches, Congress is the only one without any impeachable members (if we follow my earlier reasoning on this point), thus ensuring it has less of a vested interest than either of the other branches, both of which have many impeachable members. Second, both the House and the Senate hold hearings during their respective impeachment proceedings, during which the

the senate’s role in the federal impeachment process  41 accused has an opportunity to make his or her case. The hearings that either the House or the Senate provide might not be perfect, but perfection is not the constitutional requirement here. The minimal requirement is that a hearing is held, and the House and the Senate do hold impeachment hearings. Thus, assuming that the Fifth Amendment due process clause applies in the impeachment context, it appears to be easily satisfied in these cases. There remains, however, a good argument that the Fifth Amendment due process clause does not apply to the impeachment process. The Fifth Amendment requires due process of law be followed before the government deprives someone of a protected interest, but impeachment is not a proceeding in law. It is not a legal proceeding. It is a unique, constitutionally authorized process, which provides a unique sanction for impeachable misconduct. This is the point stressed by Supreme Court Justice James Wilson, who had served as a delegate in both the constitutional and ratification conventions, when after ratification he emphasized impeachments were “proceedings of a political nature  .  .  . confined to political characters, to political crimes and misdemeanors, and to political punishments.”53 Wilson explained further that the framers believed that “[i]mpeachments, and offences and offenders impeachable, [did not] come within the sphere of ordinary jurisprudence. They are founded on different principles; are governed by different maxims; and are directed to different objects; for this reason, the trial and punishment of an offence on an impeachment, is no bar to a trial and punishment of the same offence at common law.”54 Impeachment proceedings do not bar subsequent legal proceedings, a point to which we will return shortly when we consider whether the Constitution requires that an official be subject to impeachment before having to confront civil or criminal proceedings. Wilson’s insight underscores the fact that impeachment proceedings are unique, and as such, are not subject to the legal constraints that the Constitution places on governmental action in the Fifth Amendment or in any other amendments governing legal proceedings. At present, senators decide for themselves whether the Fifth Amendment due process clause applies to impeachment trials and, if so, the process it requires. In the past, this has led to inconsistent results. For example, because the Hastings impeachment trial was carried over from the 100th to the 101st Congress, several members of the House who had participated in Hastings’s impeachment—­James Jeffords, Trent Lott, and Connie Mack—­had become senators in the meantime and were able to participate in Hastings’s impeachment trial. In order to avoid any appearance of a conflict of interest, all three senators recused themselves.55 In contrast, in Judge Pickering’s impeachment trial, three senators—­ Theodorus Bailey, John Condit, and Samuel Smith—­had each been members

42  chapter four of the House and had voted on Pickering’s impeachment. The full Senate never took action on a resolution to disqualify these senators, each of whom voted in Pickering’s impeachment trial.56 In President Clinton’s trial, three senators participated without objection, though each had voted on his impeachment in the House. The Need for Uniform Rules of Evidence and Standard of Proof. Two perennial issues raised in impeachment trials are whether the Senate should adopt uniform rules of evidence or a uniform standard of proof and, if so, which of each kind.57 I consider each question in turn. An argument in favor of uniform evidentiary rules for impeachment trials is that they must make use of the same kind of reliable, nonprejudicial evidentiary rulings as other similar actions, such as criminal trials, employ. For example, uniform rules of evidence would give impeached officials notice as to the kind of evidence they are expected to submit in an impeachment trial. A counterargument is that impeachment trials do not have the same needs for such rules as do state and federal courts—­to make trials fairer and more efficient and to keep certain kinds of evidence away from the jury, whose members might not appreciate its relevance, credibility, or potentially prejudicial effect.58 The opponents view impeachment trials as extraordinary hearings conducted by senators who do not need, like a typical jury, to be protected from “hearsay” or prejudicial evidence.59 Moreover, the opponents of uniform evidentiary rules contend that even if the Senate could agree on such rules for impeachment trials, they would not be enforceable against or binding on individual senators, each of whom traditionally has had the discretion in an impeachment trial to follow any evidentiary standards he or she sees fit.60 The absence of any set rules of evidence need not, however, work to the disadvantage of impeached officials. As long as the Senate refuses to establish such rules, then the primary concern of an impeached official’s counsel is to address substantive matters. Counsel know they can argue for whatever evidence they believe can benefit their client. As times and membership in the Senate change, defense counsel (as well as the house managers) know that the Senate is open to persuasion on virtually every evidentiary question. Consequently, impeached officials are in a similar po­ sition to the defendants in most administrative proceedings in which no set rules of evidence apply.61 In practice, the Senate or trial committees have tended to admit as much evidence as time and relevance have permitted. Consequently, in the three 1980s judicial impeachments, each trial committee erred on the side of including arguably relevant evidence. In those instances in which inconsistent evidentiary rulings occurred, more often than not the

the senate’s role in the federal impeachment process  43 different trial committees reached different conclusions on the relevance of the particular evidence submitted or on how best to enable each senator to decide for himself or herself on the appropriate weight to be given to the evidence submitted. For instance, in Claiborne’s and Nixon’s removal proceedings, the Senate took the position that the members were free to determine for themselves the relevance of the judges’ criminal convictions to their fitness to remain in office.62 Similarly, the Hastings Trial Committee emphasized that “any Senator remains free to vote to acquit Judge Hastings for any reason, including agreement with his position [that] the jury’s verdict shall be given great deference.”63 In the three judicial impeachment trials held in the 1980s, there was considerable debate in the Senate about (1) whether the Senate should follow or apply a uniform standard of proof for impeachment trials and, if so, (2) which burden of proof ought to apply in such proceedings. The major argument in favor of a uniform burden of proof is that it would put both sides in an impeachment trial on notice as to how best to present their respective cases and would allow for greater consistency in impeachment trials.64 Nevertheless, the Senate has refused invitations to apply a uniform standard of proof to impeachment trials. For example, in Claiborne’s removal proceedings, the Senate by a 75 to 17 vote rejected his motion to designate “beyond a reasonable doubt” as the standard of proof in the impeachment trial.”65 Subsequently, the Hastings and Nixon Trial Committees both construed that vote as a precedent confirming each senator’s freedom to adopt whatever standard of proof he or she preferred.66 In any event, the Senate could choose, as individual senators already do, from among three established burdens of proof: beyond a reasonable doubt, clear and convincing, and preponderance of evidence. Some senators favor the “beyond a reasonable doubt” standard, because they believe that it makes conviction more difficult and, hence, provides greater protection for federal judges or high-­ranking members of the executive branch from politically motivated removal proceedings. Other senators favor the same standard as a jury in a criminal trial must use in an impeachment trial based on a felony conviction, because, in Senator Orrin Hatch’s words, “fairness dictates the Senate should use the same standard.”67 In the Hastings impeachment trial, then-­senator Joseph Biden favored the same standard, because a jury had already acquitted Hastings of various felony charges and, thus, fairness dictated that the Senate ought to apply the same burden of proof to protect Hastings from being convicted by the Senate on the basis of the same evidence under a more lenient standard.68 Other senators have favored clear and convincing evidence of the commission of an impeachable offense as the proper burden of proof in

44  chapter four impeachment trials. They have criticized the “beyond a reasonable doubt” standard as failing to recognize that the purpose of an impeachment is to defend the community against abuse of power by impeachable officials. In contrast, a lower burden, such as preponderance of evidence, fails to respect society’s interest in retaining skilled and honest governmental officials and the damage to the innocent jurist’s reputation wrought by an erroneous conviction.69 Still others within the Senate have argued that the applicable standard of proof ought to be preponderance of the evidence. In their opinion, this burden is more consistent with the unique nature of an impeachment trial, in which a respondent may lose his livelihood or reputation, as opposed to the tougher standard of proof applicable in criminal trials, in which a court may take away a defendant’s life, liberty, or property. In other words, many observers find a lower standard of proof appropriate for impeachment trials given the kind of interests at stake.70 Issue Preclusion.  The impeachment trials of Harry Claiborne and Walter Nixon raised the issue of whether the Senate should give preclusive effect to prior felony convictions or at least to the evidentiary or factual findings underlying such judgments. The debate initially arose in the impeachment trial of Judge Claiborne, who was the first person to stand before the Senate in such a proceeding as a convicted, imprisoned felon. The House subcommittee relied heavily on Claiborne’s criminal convictions to shorten its investigation of him. In the floor debate on the proposed articles of impeachment against Claiborne, the third of which urged his conviction and removal solely on the basis of his felony conviction, House Judiciary Committee Chair Peter W. Rodino, Jr. explained his desire to take “legislative notice of the factual finding already determined beyond a reasonable doubt by a jury of Judge Claiborne’s peers and sustained at all levels of direct appeal.”71 When the matter reached the Senate, the house managers filed a pretrial motion seeking summary conviction based upon the third article of impeachment. The managers found support in judicial doctrines of finality, collateral estoppel, and full faith and credit.72 In a second motion, the managers urged application of collateral estoppel to specific issues alleged in the first two impeachment articles.73 The house managers argued that neither motion sought to usurp the Senate’s obligation to determine whether the particular conduct involved constituted an impeachable offense.74 Rather, the managers explained that they wanted to avoid factfinding proceedings before the Senate on issues that they felt had already been fairly and fully adjudicated by a court of law. The House’s two motions were directed to the Senate Trial Committee. At Chairman Mathias’s suggestion, the trial committee did not rule

the senate’s role in the federal impeachment process  45 on the motion for summary disposition because it had the potential of depriving the full Senate of its duty to render final judgment on whether Claiborne had committed an impeachable offense.75 Moreover, completion of the evidentiary trial mooted the House’s pretrial motions, and the Senate, after lengthy debate, ultimately voted to acquit Claiborne on Article III.76 Even if Claiborne had been convicted on the third article, the post-­trial vote would have meant little. The third impeachment article’s value lay in providing a chance for a pretrial summary disposition in a case in which the facts were not genuinely in dispute. The Senate’s refusal to consider the motion before trial had several secondary effects, including the House’s subsequent decision not to seek a pretrial summary disposition in the impeachment of Judge Nixon, who like Claiborne, had been a convicted, imprisoned felon at the time of his impeachment trial.

Concerns about Rule XI Trial Committees In the aftermath of the 1980s impeachment trials and the Supreme Court’s decision in Walter Nixon v. United States77 holding challenges to the Senate’s use of trial committees nonjusticiable, most senators have expressly endorsed the continued use of special trial committees at least for removal proceedings against impeached federal judges.78 Even so, there are three potential problems with Rule XI trial committees. I consider each issue in turn. DISCOURAGING SENATORS FROM FAMILIARIZING THEMSELVES WITH THE RECORD

A particularly serious charge made against rule XI trial committees is that their use may discourage many senators from reading the record and making their own informed judgments about the credibility of key witnesses. If most senators fail to become personally familiar with the record, it is hard to have confidence that they would adequately protect the integrity of the impeachment process or that impeached officials would actually receive full and fair hearings before the Senate. A powerful piece of evidence in support of this complaint is the comparison made by Judge Nixon’s impeachment counsel, David Stewart, of the voting patterns of committee members and of those not serving on the committee. To illustrate the inherent unfairness of the trial committee system, Mr. Stewart argued that the senators who did not serve on the trial committees in the 1980s voted in favor of conviction in higher numbers than those who served on such committees. According to Mr. Stewart, “[f]or 17 of the 18 impeachment articles voted on after a committee trial, the senators who actually heard the evidence supported the accused in significantly greater

46  chapter four proportion than did those senators not on the trial committee. [Of] the 10 impeachment articles on which Judges Hastings and Nixon were convicted, nine failed to attract a two-­thirds majority of the committee.”79 There are several possible responses to Mr. Stewart’s statistical argument. First, the committee members’ votes conceivably differ for many reasons, including party affiliation, legal training, region, seniority, and familiarity with the impeachment process. The variation in voting patterns cannot conclusively be attributed to any single factor. Second, regardless of the implications of Stewart’s statistics, the fact remains that more than two-­thirds of the senators who served on the trial committee voted to convict Nixon on the first impeachment article, and conviction on that article alone was sufficient as a constitutional matter to remove him from office. Third, at least two-­thirds of the members of the Senate present for final judgment on the Claiborne, Hastings, and Nixon removals voted to remove each of them on the basis of various impeachment articles. The Constitution does not dictate what each senator must have in mind when voting on removal; it mandates only that at least two-­ thirds of the members present must vote (as they in fact did) to convict in order for a removal to occur. Fourth, a hearing before a trial committee (at which attendance is usually excellent or good) is not necessarily less fair to an impeached official than one conducted before the full Senate, which would likely mean (if past is prologue) very few senators would actually attend (perhaps even fewer than would be present at a committee hearing).80 Nevertheless, a related problem may be that no formal mechanism is available to ensure the full Senate will actually be familiar with the trial committee members’ conclusions on contested issues of fact or recommendations to convict or acquit.81 Although committee members are free to participate as actively as they wish in the final deliberations, their views are not formally communicated to their colleagues prior to the final deliberations, in order to prevent their discouraging other senators from making up their own minds. Unless some effort is made to encourage committee members to discuss their opinions with their colleagues, the full Senate may not be able to take advantage of the opinions and judgments of the trial committee members who saw and heard the evidence firsthand. SCHEDULING CONFLICTS

Like house managers, the members of the 1980s trial committees had to make special efforts to avoid scheduling conflicts. The trial committees tried to solve this problem by adopting a rule providing that a quorum of the committee consists of seven members. The Claiborne committee

the senate’s role in the federal impeachment process  47 explained it needed the rule to bolster the constitutionality, fairness, and credibility of the committee system, which would otherwise allow for the receipt of some evidence with perhaps only a single senator present.82 Nevertheless, all three committees’ proceedings had to be continuously interrupted in order for their members to vote on the Senate floor.83 RESOLVING DISPUTES OVER PRETRIAL MATTERS, INCLUDING DISCOVERY

Despite the fact that all three of the impeachment trials in the 1980s involved impeached judges who had had ample discovery conducted as part of their prior criminal trials, pretrial matters consumed a substantial portion of the Hastings and Nixon trial committees’ respective workloads. The trial committees’ efforts to facilitate pretrial matters, particularly discovery requests and conflicts, exposed two interrelated problems. First, the Hastings trial committee had no strategy, rules, or expertise in dealing with such matters. To some extent, this was understandable because the Hastings’s removal provided the first chance a trial committee—­or the Senate—­ever had to conduct discovery for an impeachment trial.84 In any event, the Hastings trial committee spent much time and effort in supervising prolonged, heated disputes over a wide variety of discovery matters, including having to issue several orders to resolve such matters as extensions of time, exchanging witness lists, document requests, depositions, and stipulations. It also adopted a rule providing that “one committee member shall constitute a quorum for the purpose of a pretrial examination of witnesses at which sworn testimony is heard and evidence taken.”85 This rule reflected the trial committee members’ recognition that they did not all have the time to attend each deposition. The Hastings trial committee’s other orders reflect its preference to allow as much discovery as was reasonably possible. Nevertheless, in the aftermath of the Hastings impeachment trial, trial committees remain free, by virtue of the Senate’s rules and general practices, to opt for different procedures if they see fit. Second, the disputes over pretrial matters in the Hastings’s removal proceeding illustrate how defense counsel can delay or disrupt committee hearings. Hastings’s counsel, Terrance Anderson, aggressively opposed most of the house managers’ efforts to expedite discovery (or, for that matter, any other part of the trial).86 To be sure, the line between a zealous defense counsel acting in good faith and a dilatory one is sometimes quite thin. The problem for senators on the trial committee is that they rarely have to deal with trial tactics. Criminal defense attorneys appearing on behalf of an impeached official may try to transform impeachment trials into the kind of criminal proceedings with which they are more familiar and are likelier to have more experience than any of the members or staff

48  chapter four of a trial committee. Under such circumstances, defense counsel can frequently test the committee members’ patience and skills. Moreover, defense counsel and the house managers do not stand on equal footing before a trial committee (or the Senate itself). Trial committees are reluctant to direct orders at house managers, because house managers are duly elected members of a coequal branch. Nor is it realistic for defense counsel to expect to get the same respect the house managers receive from senators. For example, in issuing its orders to resolve various discovery disputes, the Hastings trial committee would “order,” “direct,” or “require” Counsel Anderson to do things,87 while it would “recommend,” “expect,” or “ask” the house managers to perform certain tasks.88 The discovery in Walter Nixon’s impeachment trial contrasts sharply with the bickering evident throughout the proceedings before the Hastings trial committee. For example, there is no instance in the Nixon proceedings in which the trial committee ever rebuked the parties for failing to reach agreement on discovery or other matters. Moreover, perhaps because Stewart was often willing to reciprocate and not contest each of the house managers’ requests, the trial committee granted virtually all of his requests for time delays and broad document production.

Chapter Five IMPEACHMENT ISSUES INVOLVING CONGRESS AND THE OTHER BRANCHES

I

n the past, some serious issues have arisen in impeachment proceedings that pertain to the relationship between the House and Senate or among the three branches of the federal government. These include (1) the uncertain precedential value of prior proceedings; (2) the increasing influence of the executive branch in initiating or preempting impeachments; (3) Congress’s patterns in defining impeachable offenses; (4) the significance of Congress’s general reluctance to overextend or abuse its impeachment powers; (5) the House and Senate’s respective failures to consider routinely the propriety of disqualifying convicted officials; and (6) the propriety of reimbursing the defense costs of impeached officials acquitted by the Senate. I consider each of these issues in turn.

The Significance and Influence of Impeachment Precedents The precedential effect of impeachment proceedings is acute when a question of constitutional interpretation is involved. At such times, members of Congress seem to be especially sensitive to the permanent effects of their decisions on the Constitution and the relationship between Congress and other federal branches. There is a general desire in Congress to provide the parties (including future members) in impeachment proceedings consistent, predictable, and stable guidelines and to avoid any practice that might undermine the confidence of the participants in the fairness of the impeachment process. Members of Congress are aware that they are not only politically accountable for their impeachment decisions but also answerable to the judgment of history for how they handle the big issues at stake in impeachment proceedings. For example, the subsequent congressional reaction to the outcome of the very first impeachment trial illustrates the potentially lasting influence of a constitutional decision relating to impeachment made by Congress. President John Adams effectively initiated the impeachment in 1797 of William Blount, who was then a United States senator from Tennessee. The House impeached Senator Blount for taking various actions to

50  chapter five undermine the relationship between the United States and Native Americans and for conspiring to aid England in its war with Spain despite the United States’ official neutrality.1 On July 8, 1797—­the day after the House had impeached Blount—­the Senate expelled Blount by a vote of 25 to 1.2 Blount challenged the Senate’s “jurisdiction” to subject him to an impeachment trial,3 claiming that he was not a “civil officer” of the United States for purposes of impeachment.4 Blount argued that “civil officers” were only those appointed by the president; that only “civil officers” could be impeached; and, thus, that the impeachment process could not be used to punish members of Congress.5 On January 10, 1798, the Senate voted 14 to 11 to defeat a resolution declaring that Blount was a “civil officer” of the United States and therefore subject to impeachment.6 By the same margin, the Senate voted on January 14, 1799, to dismiss the impeachment resolution against Blount for lack of jurisdiction.7 Ever since, the House and the Senate have regarded the Blount impeachment as standing for the proposition that senators are not impeachable because they are not “civil officers of the United States.”8 In contrast, the influence of impeachment decisions involving mixed questions of constitutional interpretation and policy, such as the propriety of using trial committees or reimbursing the defense costs of acquitted officials, primarily depends on the preferences of current members of Congress. They have the choice of how to interpret the decisions of earlier members in impeachment proceedings. For example, there are several reasons not to interpret the Senate’s rejection of the third article of impeachment against Harry Claiborne—­asking for issue preclusion based on his prior felony convictions—­as a definitive or enduring refusal to apply collateral estoppel in impeachments. First, the third article did not directly ask the senators about whether Claiborne’s prior convictions settled certain key facts underlying his impeachment. Second, despite the Senate’s refusal to endorse the third article, it is unclear whether the prior felony convictions strongly motivated senators to convict Claiborne on the other two articles. As Senator Carl Levin admitted, “[m]y own gut feeling is one way or another, following some fiction or reality, we will find a way to remove somebody from office who [has] been convicted of a crime [and] who [has] exhausted the appeal.”9 Third, Claiborne’s acquittal on the third article was made possible by the fact that thirty-­ five senators voted present rather than on the merits of the third article.10 Thus, the rejection of the article turns on many votes that could be construed as expressing a desire “not [to] base removal on the conviction itself”11 or not to do so in Claiborne’s case because of doubts about the conviction’s reliability. Lastly, the third article of impeachment may have demanded too much from the Senate by requesting it to find that a felony conviction is an impeachable offense rather than to make an independent

impeachment involving congress and other branches  51 judgment on whether, accepting the facts underlying a felony conviction, the conduct at issue constituted an impeachable offense.12 As a practical matter, Congress usually follows prior impeachment practices, unless members decide to abandon earlier practices for the sake of efficiency or fairness. For example, although the Senate approved rule XI in 1935,13 it did not invoke the rule in Judge Ritter’s 1936 impeachment trial in part because many senators expressed doubts about its constitutionality.14 The Senate similarly chose not to invoke the practice in Bill Clinton’s impeachment trial; instead, the Senate decided that the body as a whole should be engaged with the fact-­finding and decision-­ making relating to facts and procedures throughout. If Congress were disposed, however, to give some precedential weight to its prior impeachment-­related decisions, it still must confront the troublesome matter of figuring out the significance of a specific precedent. The difficulty of achieving consensus on the precise meaning of a prior impeachment decision may preclude that precedent from having any seriously binding effect on Congress or may make it easier for subsequent members of Congress to interpret the prior practice in a way that suits their present purposes. Impeachments are further complicated by Congress’s penchant to defer to tradition, as reflected in its preference for allowing each member to vote his or her conscience on the appropriate law and burden of proof to apply. Three examples illustrate the challenges in trying to measure the influence of an impeachment decision. They each show that the likely weight Congress will give to an impeachment precedent depends heavily on the collective will of members of Congress at any given time and the political climate of the impeachment action in question, including the extent of media coverage, the popularity or notoriety of the targeted official, and the electorate’s interest. For example, the precedential value of the Blount impeachment is not entirely clear. The Senate’s votes on the impeachment resolution against Senator Blount can be read as reflecting the Senate’s view—­or at least the view of the fourteen senators who voted against the impeachment resolution and exercise of jurisdiction against Blount—­that senators are not impeachable officials. But the attempt to impeach and convict Blount also arguably reflects the kinds of party divisions and regional antagonisms that existed during the nation’s early years. Blount was a Republican, and ten of the eleven senators who voted to assert impeachment jurisdiction over Blount were Federalists, while five out of the six Republican senators rejected jurisdiction.15 Yet, the fact that nine Federalists voted to reject jurisdiction, combined with the 25 to 1 vote to expel Blount,16 reflect the possibility that something more than partisan politics might have driven these hearings and that most senators refused to

52  chapter five convict Blount for purely partisan reasons.17 In addition, Blount’s popularity in the West, based on his leadership of a movement to separate it from the United States, might have influenced the vote to reject jurisdiction as reflected in the fact that every western senator voted against jurisdiction.18 The votes rejecting jurisdiction might have been based on senators’ reluctance to convict someone whom they had expelled, who was not in office at the time of his impeachment trial, or who had not been an impeachable official. Moreover, the latter votes could reflect some senators’ sentiments that impeachment should be based only on indictable offenses. Even though the Senate voted to expel Blount for “a high misdemeanor, entirely inconsistent with his public trust and duty as a Senator,”19 the term as used in that context does not seem to have meant an actual crime, because no one accused Blount of having committed an indictable crime.20 The principle underlying the nation’s second impeachment is also disputed. It involved United States District Judge John Pickering of New Hampshire, whom the House impeached on March 2, 1803, by a vote of 45 to 8. The impeachment articles charged drunkenness and profanity on the bench and the rendering of judicial decisions based on neither fact nor law.21 Although Judge Pickering, like Blount, did not appear on his own behalf in the Senate proceedings, Pickering’s son filed a petition arguing that Pickering was so ill and deranged that he was incapable of exercising any kind of judgment or transacting any business and that he should therefore not be removed from office for misconduct attributable to insanity.22 Nevertheless, the Senate voted 18 to 12 to accept evidence of Judge Pickering’s insanity,23 19 to 7 to convict,24 and 20 to 6 to remove him from office.25 Consequently, he became the first federal official in Amer­ ican history to have been convicted and removed from office. People still disagree over whether Pickering’s impeachment establishes that impeachable offenses are not limited to indictable crimes. On the one hand, Simon H. Rifkind, counsel for Justice William O. Douglas during the House’s impeachment action against him in 1970, argued that Pickering was charged “with three counts of willfully violating a federal statute relating to the posting of bond in certain attachment situations, and the misdemeanors of public drunkenness and blasphemy.”26 On the other hand, the authors of one impeachment study claim that “no federal statute made violation of the bond-­posting act a crime, nor obviously were drunkenness or blasphemy federal crimes. The Pickering impeachment [confirms] that the concept of high crimes and misdemeanors is not limited to criminal offenses.”27 Yet, either view could be valid, “because the question of guilt was put in the form of asking senators whether the judge stood guilty as charged,”28 rather than whether the acts he allegedly committed constituted impeachable

impeachment involving congress and other branches  53 offenses. In other words, the Senate’s votes to convict may not reflect an acknowledgement by the Senate that violations of impeachable offenses were actually involved. Indeed, five senators withdrew from the court of impeachment when the Senate agreed to put the question in the form of “guilty as charged.”29 Two of the senators—­both Federalists—­objected to procedural irregularities and claimed the question put to them failed to ask whether the charges actually described high crimes and misdemeanors.30 John Quincy Adams claimed that the other three senators who withdrew—­ all Republicans—­ also objected to procedural irregularities and did not want to separate from their party by voting against the judge’s conviction.31 Another problem with using the Pickering impeachment as a pre­ cedent is that party affiliation appears to have played a major role in the Senate’s votes to admit the evidence of insanity and to remove him from office. All nineteen of the Senate’s votes to convict the Federalist judge came from Republicans, while all seven of his acquittal votes came from Federalists.32 Even the bipartisan vote to admit evidence on Judge Pickering’s insanity can be explained on partisan grounds: the Federalist senators may have wanted to introduce this evidence because they believed proof of Pickering’s insanity would save him from a guilty verdict, given their position that insanity was not an impeachable offense, while the Republicans might have expected the admission of this evidence to lead to the judge’s conviction because they thought it demonstrated the need to remove him before he damaged the judicial system any further. A third impeachment often treated as a significant precedent involved Secretary of War General William Belknap. The House impeached him on March 2, 1876.33 The formal articles of impeachment charged him with accepting bribes.34 However, he resigned before the House’s formal vote on impeachment.35 A lengthy debate ensued over the propriety of impeaching an officer who had resigned. The weight of opinion in the House, as evidenced by adoption of the resolution to impeach,36 was that an impeachable official may not escape impeachment by resignation.37 Representative Robbins of North Carolina explained, for example, that one purpose of impeachment “is to disqualify from holding office hereafter. [It] is within the power of the Senate sitting as a court of impeachment to impose that penalty, and the officer cannot escape it by hasty resignation, which is virtually a flight from justice.”38 When the issue was raised again at the Senate trial, it met initially with a similar response. The vote to retain jurisdiction was 37 to 29.39 The Senate rejected the argument of Belknap’s counsel that such a decision required a concurrence of two-­thirds of the senators sitting as a court of impeachment, and the trial proceeded.40 Yet, even though a majority of the Senate voted Belknap guilty on all the articles of impeachment, the two-­thirds required for conviction was not met, and Belknap was

54  chapter five acquitted.41 The report to the House stated that, of the twenty-­five senators who voted “not guilty,” twenty-­two claimed to have done so because they believed the Senate had no jurisdiction over an official who had resigned from office prior to his impeachment trial.42 The other three senators voting not guilty did so because they thought Belknap was innocent of the charges against him.43 The precedential value of Belknap’s impeachment is uncertain. On the one hand, the result of his trial provides a strong argument that the Senate will not convict an official who has resigned prior to his impeachment trial. On the other hand, the House vote could be construed as a pre­ cedent supporting impeachment of an official who has resigned from office. Moreover, the Senate vote to accept jurisdiction provides additional support for conducting a postresignation impeachment trial, even though the final Senate vote cuts the other way. Perhaps the only thing that can safely be said about the importance of the Belknap impeachment is that, in any future attempt to impeach an official no longer in office, the battle lines are clear. On the one hand, those seeking an impeachment will claim that the Constitution permits such a proceeding based in part on its authorizing the punishment of disqualification, which seems fit to punish officials no longer in office. Blount’s impeachment may be distinguished on the grounds that it turned to a significant degree on the Senate’s opposition to the impeachability of senators. Moreover, Belknap’s impeachment could itself be distinguished on the basis that the Senate retains the authority to reach its own, independent judgment on the propriety of a postresignation impeachment trial, particularly because the Senate must determine the political advantage of conducting such a trial. On the other hand, those opposing the impeachment of an official who is no longer in office will rely on the Blount and Belknap impeachments (and the Senate’s failure to hold a trial for Samuel Kent after he resigned shortly following his impeachment) as establishing the principle that resignation precludes impeachment. They will argue further that impeaching someone who is now a private citizen would also conflict with the basic precept of the impeachment process to punish only officeholders for their official misconduct. The political fallout from punishing a private citizen may well outweigh the fear that a resigned official might resume a public post. Lastly, those opposing postresignation impeachments might argue that there is little to be gained politically through such an action. In their view, the Senate could decide that the most important thing is for an official to leave office and, once that end is achieved, Congress need not forgo its other, important legislative business to conduct an impeachment proceeding against someone who may already have suffered or been punished enough.

impeachment involving congress and other branches  55

Congressional Patterns Relating to Impeachable Offenses Mindful of the problems with relying on impeachment precedents as clear expressions of past, present, or future congressional will, one can still identify some trends in the votes of the House and the Senate re­ garding the scope of impeachable offenses. First, it is noteworthy that of the nineteen men impeached by the House of Representatives, eight were impeached primarily on grounds constituting a criminal offense;44 and one of those eight was Alcee Hastings, who had been formally acquitted of bribery prior to his impeachment. The House’s articles of impeachment against the eleven others include misuses of power that were not indictable federal offenses, at least at the time they were approved. Second, the Senate’s tendency is to convict on the basis of indictable crimes or at least to find conviction likelier if an indictable offense was involved. To be sure, the Senate has convicted some officials on the basis of nonindictable offenses, including Judge Pickering (public drunkenness and blasphemy),45 Judge West H. Humphreys (convicted and removed by the Senate for various activities in support of the Confederacy and failing to fulfill his duties as a U.S. District Judge),46 Judge Robert Archbald (convicted, removed, and disqualified by the Senate for obtaining contracts for himself from persons appearing before his court and for adjudicating cases in which he had a financial interest or received payment—­none of which offenses were indictable crimes at the time),47 and Judge Halsted Ritter (convicted and removed from office on the sole basis that he had brought “his court into scandal and disrepute, to the prejudice of said court and public confidence in the administration of justice therein, and to the prejudice of public respect for and confidence in the federal judiciary[]”).48 Yet, in the 1980s, the Senate convicted Claiborne, Nixon, Hastings, and Porteous on the basis of indictable offenses. Third, partisan loyalties and differences of opinion have played a decreasingly important role in the impeachment process. In the nineteenth century, heated partisan differences over the appropriate handling and exercise of federal power motivated the impeachments of William Blount, John Pickering, Samuel Chase, James Peck, West Humphreys, and Andrew Johnson. Yet, it is noteworthy that, no conviction, with the possibility of one exception, has yet been based solely on partisan grounds or at least along the lines of a strictly partisan vote. That possible exception may be the 1936 impeachment of Judge Halsted Ritter. Jacobus ten Broeck suggested that the Ritter impeachment’s “possible connection with the New Deal attack upon the judiciary, its bearing on the question of feasibility of impeachment as a method of influencing or controlling the judicial department is more immediate and

56  chapter five impressive than any of the earlier cases.”49 This conclusion is supported in part by the fact that of the seven charges made against Ritter, the Senate was unable to muster a guilty verdict on any of the six specific counts and convicted Ritter only on the final count, which generally claimed a lack of fitness to occupy office.50 The critique of the Ritter impeachment posits that Congress made up impeachable offenses against Ritter that had nothing to do with the real reasons it wanted to remove him. The problem with this view is that it ignores the significance of the formal impeachment article on the basis of which Ritter was convicted and removed. Given that impeachment has been recognized as a political process from the beginning of the republic, it is not surprising that political differences influenced and perhaps even motivated Ritter’s impeachment. Yet, the formal impeachment article against Judge Ritter is the clearest expression of what Congress really accepted as its reasons for impeaching him, because Congress actually voted on them. Particularly in the absence of contemporaneous statements to the contrary, the formal impeachment article upheld against Ritter reflects more reliably than anything else the reasons Congress impeached and re­ moved him. Even though partisanship may also have influenced the initiation of the impeachment attempts against Justice Chase and President Johnson, it seems to have dissipated or become diffused as those two officials approached the brinks of conviction and removal. In the high-­profile, post–­ World War II impeachment attempts, partisanship played mixed roles. Even though the impeachment inquiry initiated against Justice Douglas in 1970 was largely motivated by partisan differences of opinion over the moral tones of his judging and lifestyle, the House took no formal action against him once it was clear that his critics lacked a nonpartisan basis for questioning the performance of his official duties.51 While partisanship was evident in the voting patterns in President Clinton’s impeachment proceedings, it secured his acquittal, not conviction. In 1974, President Nixon received strong support from party loyalists in the House in the early phases of the congressional investigation against him. By late July and early August of 1974, the House Judiciary Committee approved three articles of impeachment (each opposed by all of the Republicans on the committee), charging Nixon with obstruction of justice, abuse of powers, and unlawful refusal to supply material subpoenaed by the House of Representatives.52 Behind the scenes, though, party loyalists encouraged Nixon to resign based on their belief that he was likely to be impeached and removed from office. By early August, Nixon lost almost all Republican support in Congress after he made public tapes of recorded conversations in which he admitted his involvement in some of the matters giving rise to the impeachment inquiry.53 The willingness

impeachment involving congress and other branches  57 of most Republicans to join in acknowledging a nonpartisan basis for impeaching President Nixon and in encouraging him to resign precipitated his resignation.

Congressional Reluctance to Abuse Its Impeachment Power Another trend in the federal impeachment process is that the House has rarely, if ever, and the Senate has never, successfully committed a serious or extreme abuse of its impeachment authority. The fifth chapter of part III discusses more fully the efficacy of constitutional and other, less formal constraints on congressional impeachment practices. It is nevertheless significant that time and time again Congress, and particularly the Senate, for whatever reason, has not only avoided realizing its critics’ worst fears (such as by impeaching or removing people on the basis of their hair color or a coin toss) but also given attention to serious constitutional arguments and consequences in the midst of politically charged proceedings undertaken for the purpose of achieving short-­term political gains. For example, all efforts to use the impeachment process for partisan ends, including those in the nineteenth century, have failed. Indeed, the first impeachment attempt by Congress did not succeed in large part because the Senate, despite its obvious disdain for the target—­William Blount—­decided not to push the limit of its impeachment power by trying to extend it either to a senator or to an official no longer in office. Not insignificantly, Congress has refused ever since to attempt a similar impeachment. Moreover, regardless of the partisan reasons various senators might have had for voting for or against Judge Pickering’s removal, it is clear that at the time of his impeachment he was no longer fit to hold judicial office.54 The successful removal of Judge Pickering is also consistent with Hamilton’s opinion that the federal impeachment process could be properly used to impeach insane (as opposed to senile) judges. In addition, despite the partisan pressures to remove both Justice Chase and President Andrew Johnson, their respective impeachment trials featured considerable debate about the scope of impeachable offenses and the need to avoid the dangers posed by partisan impeachments to the security of future presidents and federal judges. The Senate acquitted Justice Chase and President Johnson in significant part because their respective defenders ultimately persuaded a sufficient number of their colleagues that the absence of clear proof of the commission of an impeachable offense or of misconduct rising to the level of an impeachable of­fense should, as a constitutional matter, preclude convicting and remov­ ing an unpopular impeachable official.55

58  chapter five Over the last one hundred years, Congress has been accused of at least four different kinds of abuses of its impeachment authority, none of which convincingly establishes that Congress has engaged in outlandish malfeasance. First, as the prior section suggested, many people suspect that the Senate had partisan reasons (or less than noble motives) for removing Judge Ritter. Yet, the House approved seven articles of impeachment detailing his misconduct and the Senate convicted him on the basis of one impeachment article in full compliance with all applicable constitutional requirements. Nor is it unreasonable or inconsistent with the structure or original meaning of the Constitution for the Senate to have voted for only one of the impeachment articles against him, apparently as a compromise on the specific grounds for removing Judge Ritter. The only serious question about the propriety of Judge Ritter’s impeachment trial is whether the misconduct charged in the only successful impeachment article against him—­bringing disrepute to the federal judiciary—­could constitute an impeachable offense. Such misconduct, even if phrased in an awkwardly general fashion, is not unrelated to the proper discharge of a federal judge’s duties because the latter’s authority depends fundamentally on general respect for his or her integrity, even-­handedness, and competence. Even if there had not been sufficient consensus among senators on whether Judge Ritter actually engaged in tax evasion or received kickbacks from his case assignments (either of which, standing alone, would surely constitute an impeachable offense), the Senate could have reasonably concluded (as reflected in the formal impeachment article approved by at least two-­thirds of its members) that there was enough evidence of Judge Ritter’s financial improprieties or misconduct (which were alleged to have been related to his judicial decision-­making) to undo its confidence in his impartiality. The critical line-­drawing on the point at which judicial misconduct leaves an unacceptable or indelible taint on the integrity of the federal bench is left to the Senate to make on a case-­by-­case basis, and the Constitution does not countenance second-­guessing (except, of course, in a reelection campaign) of a senator’s reasons for voting for an otherwise acceptable impeachment article, particularly when one of the critical safeguards against impeaching strictly on the basis of partisan or personal animosity—­a supermajority vote—­has been fulfilled. A second charge of abuse of impeachment authority concerns the fairness of Congress’s timing in initiating, and procedures used in, impeachments. For example, a popular charge is that Congress took too long in commencing each of the judicial impeachments of the 1980s and, once it started those proceedings, relied on the unfair, if not unconstitutional, mechanism of a Senate trial committee to gather evidence and take testimony. The first problem with this complaint is that the Constitution does not put a time limit (or establish a statute of limitations, for that

impeachment involving congress and other branches  59 matter) on the initiation or conduct of an impeachment. Slowness is not necessarily an abuse of power, and, even if it were somehow a defect in the system, it is certainly preferable to the alternative—­Congress’s moving too quickly in impeachment actions. After all, the framers deliberately made the impeachment process cumbersome in order to make impeachment difficult to achieve. Moreover, Congress’s delay in initiating impeachments, as well as the decline in its impeachment activity, conceivably reflects Congress’s tendency to underutilize rather than overuse its authority. As for the Senate’s use of trial committees, it is far from clear that the Constitution mandates that an impeachment trial must be conducted before the full Senate. (In fact, the Constitution requires a quorum for all legislative business and, thus, the full Senate need not be present for any of its official actions. The Constitution also does not require full attendance as a condition for conviction; it requires that at least two-­ thirds of the members present must agree for such an outcome to occur.) Moreover, it is not unreasonable for the Senate, given its authority to devise the rules for all of its proceedings, its extensive use of committees to assist it in preparing for a wide range of business entrusted to the full body’s consideration, and the fact that the English practice (on which much of the federal impeachment process is partially modeled) allowed for the use of trial committees, to designate a trial committee to perform the useful but limited function of building the record on which the Senate could base its final removal vote. Third, a common complaint is about senators’ poor attendance in and preparation for impeachment trials (giving rise to the need for trial committees in the first place). The Constitution does not, however, require a senator to attend all of an impeachment trial, nor, for that matter, to be present for any particular part of it. The Constitution mentions senators’ attendance in only two places, one with respect to establishing that “a Majority of each [chamber of Congress] shall constitute a Quorum to do business,”56 and the other providing that “no Person shall be convicted [in an impeachment trial] without the Concurrence of two thirds of the Members present.”57 The Constitution is also silent about how well informed a senator must be prior to voting on a removal matter (or, for that matter, on any legislative business). This constitutional design leaves ample room for senators to order their priorities in terms of attendance or preparation as they each see fit and to face the political consequences for their choices. The fourth charge has been leveled at the House’s impeachment of Bill Clinton. Critics argue that Republicans in the House rushed to judgment in his case, though there was already evidence at the time, in addition to the later finding by a federal judge, that Clinton gave perjurious testimony in the discovery phase of Paula Jones’s sexual harassment suit

60  chapter five against him. Moreover, the fact that the Senate acquitted Clinton reflects the high threshold for conviction. For those who view this acquittal as a congressional abuse of impeachment authority, it should still be noted that Clinton’s misconduct will not escape the judgment of history. In impeachment trials involving lower-­profile figures than the president, it should not be surprising to find that senators’ attendance at and preparation for impeachment trials have risen in almost direct proportion to the visibility of the impeached official involved and the relative magnitude of the likely political fallout from the final Senate vote to convict or acquit. Hence, the attendance and level of preparation for the Chase, Johnson, and Clinton trials exceeded those for the Louderback and Ritter trials. Ironically, the fact that the latter two trials were perceived by senators to be less important than the former (or other conflicting legislative business) means that abuse is likelier to occur in the latter proceedings. Under such circumstances, trial committees are apt to ensure impeached officials with fact-­gathering sessions at which well-­informed senators are likelier to be present (as seems to have been the case for the Claiborne, Hastings, and Nixon removal proceedings). Senators disagree over the level of preparation for the final Senate votes on Judges Claiborne, Hastings, and Nixon, but the fact remains that virtually every senator was present for the final votes in those and other removal proceedings. In any event, the attendance at and preparation for high-­profile impeachment attempts (such as those involving Justice Chase and Presidents Johnson and Nixon) is strong, particularly in comparison with senators’ attendance at and preparation for debates on other legislative business. With respect to lower-­profile impeachment attempts, it is noteworthy that, despite claims about poor attendance (as well as partisanship) detracting from the impeachment attempt against Judge Louderback, the Senate did not convict him. Moreover, the final arguments in low-­profile impeachment attempts have all been well attended. The preparation levels of senators in these proceedings is more difficult to measure, particularly because not every senator speaks or later publishes his position or views. Even so, the hearings themselves fully aired the evidence on each impeached official’s guilt or innocence.

The Increasing Influence of the Executive in Triggering the Impeachment Process Interestingly, the decreasing politicization or partisanship of impeachments (at least with respect to low-­ level or low-­ profile impeachable officials) has coincided with an increase in congressional deference to executive efforts to discipline such people. In 1904, the Justice Department

impeachment involving congress and other branches  61 concluded that pre-­impeachment prosecution without congressional authorization was not permissible.58 The department feared that this practice would displace congressional authority to discipline judicial misconduct and put judicial independence from anything other than impeachment at risk.59 But, by 1973, this practice was no longer followed, as reflected by the Justice Department’s decision to prosecute Seventh Circuit Judge Otto Kerner.60 When the change in policy occurred is not clear. Although the Justice Department sought indictments against numerous judges in the intervening years, each of those judges resigned prior to prosecution.61 In fact, the impeachment of Thomas Porteous was the first time since 1936 that Congress has impeached and convicted a federal judge who had not been previously prosecuted for having committed criminal offenses. Since 1980, the Justice Department has prosecuted six federal judges, none of whom resigned from office even after exhausting their criminal appeals,62 and Porteous’s misconduct came to light as a result of a long criminal investigation of corruption among state judges in Jefferson Parish, Louisiana, and testimony given against him as part of plea deal. So even Porteous’s impeachment hearings followed a criminal investigation. The criminal investigations and prosecutions of judges arguably made the House’s task of impeaching these officials easier, because they created records on which the House could base an impeachment. At the same time, these investigations and prosecutions complicated the impeachment process, because the House had to delay initiating any impeachments until the criminal process had run its course because of concerns about the unfairness of requiring an impeachable official to defend himself concurrently in multiple hearings or the likely interference simultaneous proceedings would have with each other. In Clinton’s case, the House had evidence gathered during a criminal investigation. Moreover, these investigations and prosecutions have effectively given the executive branch additional power over judicial tenure (and perhaps even presidential tenure). They have raised the related issue of whether, or the extent to which, the executive may be required to share with the House the information it collected during a criminal investigation, because otherwise, the House may experience delays—­like those in the Hastings impeachment—­in obtaining relevant documents from grand jury or judicial council investigative files.63 In addition, a prior criminal prosecution that does not result in a federal judge’s resignation creates enormous pressure for Congress to conduct an impeachment. In the 1980s, the image of a convicted and incarcerated felon continuing to receive the salary of a federal judge upset many politicians and, in the view of some, damaged the credibility of the criminal justice system, the impeachment process, and the federal

62  chapter five judiciary. The House’s decisions to delay impeachment may arguably have been justified on the ground that it had more pressing business or that it did not want to interfere with ongoing criminal prosecutions. Yet, those decisions also increased the chance of a rush to judgment once Congress got around to impeaching those federal judges. Finally, the propriety of pre-­indictment prosecutions depends in part on their goals. If, for example, the department’s aim since 1986 has been to expedite the resignation of the federal judges it prosecuted, it has failed. Indeed, the most recent prosecutions show that a convicted federal judge has little or no incentive to resign. For instance, Judge Claiborne saw the impeachment process as a second chance to vindicate himself.64 Moreover, if a convicted judge is likely to be disbarred and thus lose his means of making a living, the judge has no motivation to relinquish his salary and benefits. Finally, the prospect of an impeachment proceeding may not intimidate a judge who has already been criminally prosecuted and convicted, in view of the fact that the House has engaged in fifty judicial investigations since 1789, resulting in fifteen resignations, four convictions, four acquittals, and four censures.65 In any event, as Professor Emily Van Tassel suggests, “[i]f removal is the goal, then the evidence suggests that the big stick of impeachment, prior to prosecution, effectively goads judges to voluntarily resign. It seems likely that impeachment is less of a threat when one has already been prosecuted than it would in the absence of prosecution.”66

The House’s and Senate’s Failure(s) to Seek the Imposition of All Available Punishments In practice, the articles of impeachment offer the House an opportunity to determine the sanctions that it deems appropriate and asks the Senate to impose if it convicts an impeached official. For its part, the Senate has construed the Constitution to make removal automatic upon a two-­ thirds vote on at least one article of impeachment. Yet, the Constitution also provides that an impeached officer may be disqualified from holding any “office of honor, trust, or profit under the United States.” By a separate majority vote following conviction, the Senate has only imposed this additional sanction twice—­against Judges Archbald and Humphreys.67 The House has, however, not taken advantage of its chance to use the impeachment articles to influence the punishment imposed by the Senate. For example, in the Ritter impeachment, each impeachment article asked only that the judge be found “guilty of high crimes and misdemeanors in office.”68 Similarly, in the 1980s, each article adopted by the House asked that the judge be removed from office, not mentioning disqualification

impeachment involving congress and other branches  63 from future office, and the Senate issued orders removing each convicted judge from office without voting on whether to disqualify him from future office.69 The Senate’s failure to impose both punishments in the 1980s impeachment trials produced one awkward situation. In the fall of 1992, Alcee Hastings was elected to and sworn in as a member of the House of Representatives. He is the first individual to join the House after having been impeached by it. The Hastings situation raised two difficult questions, apart from the discussed in the first chapter of part III—­ over constitutional issues—­ whether officials who have resigned or left office may be impeached and whether the Senate may impose the punishments of removal and disqualification separately. The first issue posed by the Hastings case was whether impeachments may be brought more than once against the same individual for the same misconduct in office, that is, whether double jeopardy applies to impeachment proceedings. Double jeopardy is a concern in federal trials because the Constitution provides in the Fifth Amendment that no one “shall . . . be subject for the same offence to be twice put in jeopardy of life or limb.”70 Impeachment imposes different kinds of punishment from those exercisable by federal courts, nor can the targets of impeachments be pardoned.71 Whereas the Constitution expressly prohibits double jeopardy in criminal proceedings, no constitutional provision clearly restricts the Congress to impeaching someone only once. The framers’ failure to prohibit Congress from doing in an impeachment what they had explicitly barred the courts from doing may reflect the framers’ desire to allow Congress to bring a second set of impeachment proceedings if it saw fit to do so. The major concern is whether a second set of impeachment proceedings against a person removed from office is fundamentally unfair. With its considerable resources, Congress could, at least theoretically, persecute impeachable officials almost endlessly if there were no prohibition against doing so. If res judicata were applicable under these circumstances, an impeached official might then be precluded from arguing that his initial case might have been decided differently by a different Congress. Lastly, fundamental fairness might allow an officer to argue that, whatever the merits of his or her conviction, he or she is entitled to a second chance to serve the public. A second issue raised in the Hastings situation was whether the Senate could have claimed in 1992 that it still retained jurisdiction over Judge Hastings’s impeachment, so that it could make a judgment on his disqualification in spite of its having previously decided to convict him in 1989. The Senate has traditionally viewed its jurisdiction in an impeachment to begin only after it has received formal impeachment articles from

64  chapter five the House and to expire automatically once it has decided on guilt or innocence and punishment and adjourned as a court of impeachment.72 This opinion is reinforced by the division of impeachment authority between the House and the Senate, making one formal check against the Senate’s abuse of its impeachment power the need for initial action by the House. Hence, the Senate’s adjournment at the close of the Hastings impeachment trial in 1989 arguably marked the end of its jurisdiction as a court of impeachment over Alcee Hastings. This circumstance precludes the Senate from claiming that it could reassert jurisdiction over Hastings to disqualify him at least in the absence of any further House proceedings against the former judge. In short, the Senate could have disqualified Hastings only if it had done so as part of his 1989 impeachment trial or if it had subsequently received another set of articles of impeachment in 1992, enabling it to impose an additional punishment. As a practical matter, the chance of a second set of proceedings succeeding are remote and unlikely to attract much political support. The impeachment process is cumbersome, and the practical impossibility of displacing for a second time precious congressional resources from other pressing legislative business might account for the fact that no such proceeding has ever occurred. Given that the Senate left open the door for Alcee Hastings to occupy another federal office by not disqualifying him from doing so, it should not have been surprising for him to have argued in his campaign for Congress that the people in his Florida district could ratify his misconduct, express their own opinion as to his innocence, or give him another chance to serve the public. Subsequently, the House included the sanction of disqualification in its impeachment articles against Clinton and Porteous. No sanction was imposed in Clinton’s case, but Porteous was convicted and removed from office and disqualified from further office or pensions.

Defense Costs Judges Hastings and Nixon were the first impeached officials to ask the Senate to reimburse their respective defense costs. First, they argued that fundamental fairness required such reimbursement, because, otherwise, the “independence of the judiciary would be compromised if the Congress could simply bulldoze a federal judge off the bench by creating greater defense costs than the judge could meet without pauperizing himself.”73 Second, they contended that having to spend money to defend their status reduced each person’s judicial salary in violation of Article III’s guarantee of undiminished compensation. Each of the relevant trial committees decided that it did not have the authority to grant a reimbursement

impeachment involving congress and other branches  65 request, nor even to recommend to the full Senate that the latter should grant such a request. The full Senate took no action on either request.74 Subsequently, Judge Sporkin denied Hastings’s motion for reimbursement of his defense costs. Judge Sporkin explained that “[t]he requirement that a judge’s compensation not be diminished during his tenure in office, does not require that the government insulate judges from expenses, especially those involving acts they did not undertake in their official capacity. There is no basis for the plaintiff’s claim that he was entitled to have the Senate contribute to his legal fees.”75 A further argument supporting Judge Sporkin’s conclusion is that, even if impeached officials should be reimbursed for their expenditures in defending their status, the Constitution does not compel one branch to pay for expenses incurred in proceedings brought by another, especially when each is acting pursuant to a separate constitutional authorization. If an impeached official could show malicious prosecution, then that individual would have a remedy in the court system. If an official acquitted in the Senate could show that the House erred in impeaching him, then it is unclear why the Senate should have to pay for the House’s mistake. By acquitting the individual, the Senate has checked the House’s action to the full extent recognized by the Constitution. Otherwise, the only constitutionally recognized remedy for defects in the impeachment process is political. If the Senate were to acquit, the impeached official could then ask either or both chambers of Congress to reimburse him for his troubles as a matter of good policy. Just as the House and the Senate make special expenditures to cover the costs of their respective impeachment proceedings, each retains the discretion to reimburse the costs of individuals subjected to such proceedings. Under such circumstances, the only other recourse left to an individual injured by defective impeachment proceedings is to turn to the electorate. Ironically, in this sense, Alcee Hastings’s election to the House was his only, best revenge.

Chapter Six MAKING SENSE OF THE FEDERAL IMPEACHMENT PROCESS

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he preceding chapters on past impeachment practices have addressed a number of constitutional issues, such as the scope of im­ peachable offenses and officials. These issues have long defied sim­ple solutions and divided constitutional scholars and commentators for several reasons. Perhaps most seriously, each of the traditional sources of con­ stitutional decision-­making, including the text and original meaning, are often indeterminate on the impeachment issues of contemporary or enduring concern. For example, the constitutional text tells us plainly that the House has the “sole” power to impeach,1 the Senate has the “sole” power to try impeachments,2 the president and the vice-­president each may be subjected to impeachment for certain reasons,3 the chief justice must preside in a presidential impeachment,4 senators must be on oath or affirmation in an impeachment trial,5 at least two-­thirds of the senators present must concur in order to convict an impeached official,6 and removal and disqualifications are the only punishments the Senate may impose on a convicted official.7 Yet, as we have seen, the constitutional text also does not resolve many other questions about the impeachment process. As even the debates among the ratifiers reflected, the text does not clarify which federal officials, such as members of Congress, are impeachable. The text, at least in so many words, does not define “civil officers of the United States.”8 Nor does it clarify the precise scope of impeachable offenses; the terms “high crimes or misdemeanors”9 are hardly self-­defining. Moreover, Article III’s guarantees that federal judges may serve “during good behavior” and may not have their compensation diminished10 do not answer whether federal judges are impeachable, whether impeachment is the only means for removing them, or whether federal judges may be disciplined only for impeachable offenses. Even the constitutional language limiting the two sanctions that the Senate may impose in impeachment trials11 does not preclude disputes over whether they may be applied separately or, in the case of disqualification, after an official has left or resigned from office. Moreover, the text does not dictate, at least clearly, the preferred order for criminal prosecutions and impeachment proceedings directed against the same official.12 In yet another place, the text even seems peculiarly silent by providing that

making sense of the federal impeachment process  67 the vice-­president should preside over all but presidential impeachments,13 implying that the vice-­president may preside over his or her own impeachment trial. In short, the text of the Constitution gives us only limited guidance in trying to answer or resolve many important constitutional issues involving the federal impeachment process. Similarly, the history of the Constitution, which is often thought to provide a reliable guide to unclear constitutional language, does not answer all or most contemporary or enduring concerns about the scope of the impeachment process. Constitutional historians and scholars have long disagreed over the degree to which the original meaning of, and the national government’s consistent practices pursuant to, the impeachment clauses are relevant or essential for guiding their interpretation. While the views of the framers’ generation are relatively clear regarding some questions that they discussed in the constitutional and ratification conventions, it is unclear how to interpret the failure of the framers or ratifiers to fully discuss or foresee issues that concern people today. For instance, neither the constitutional convention nor the ratification debates settled whether legislators, including senators, are impeachable; whether the Fifth Amendment due process clause applies to the impeachment process; or whether challenges to the impeachment process are justiciable. Even though the delegates at the constitutional convention debated the inclusion of the phrase “other high Crimes and Misdemeanors” in the constitutional convention, they failed to catalogue fully the offenses that this language would cover. Indeed, they recognized the impossibility of this feat, and some authorities, such as Justice Joseph Story, suggested that the scope of impeachable offenses could only be worked out in practice over time. The failures of the text and history to provide clear answers to some critical questions about the impeachment process have compelled constitutional scholars to look elsewhere for guidance. Typically, their next choice is between two basic approaches to structural reasoning, both of which involve drawing inferences from the government structures and relationships created by the Constitution. First, some scholars have advanced a “formalist” approach that is “premised on the beliefs that the text of the Constitution and the intent of its drafters are controlling and sometimes dispositive, that changed circumstances are irrelevant to constitutional outcomes, and that broader ‘policy’ concerns should not play a role in legal decisions.”14 This approach is often associated with the view that the Constitution not only grants to each branch distinct powers but also sets forth the maximum degree to which the branches may share those powers. Second, other scholars favor a “functional” approach to separation of powers cases that focuses on “whether present practices undermine constitutional commitments that should be regarded as central.”15 This approach involves balancing competing values or interests in separation of powers cases.

68  chapter six Yet, it is far from clear that either of these approaches fully clarifies the impeachment process. On the one hand, formalist arguments may be at­ tractive because functionalist debates over government structure often seem to be open-­ended and thus easily subject to manipulation and because creativity in construing the text that sets forth the government’s mechanisms for checks and balances seems at odds with a fundamental premise of the constitutional framework—­that checks and balances are firmly established to preserve our government as one of enumerated or limited powers.16 Thus, a problem with functional analysis is that it involves the balancing of competing values without offering much of a clear sense grounded in a legitimate source of constitutional authority, such as the text or history, as to what should serve as a tie-­breaking or guiding principle. On the other hand, formalism seems limited, at least in part because it heavily relies on the text and history, which can fail to provide clear or indisputable answers to many interpretive questions posed by the impeachment clauses. Moreover, formalism can seem arbitrary on the choice of the particular boundaries that it posits as well as hard if not impossible to reconcile with how government actually operates. Yet another factor complicating the task of figuring out the precise scope of the constitutional limitations on the federal impeachment power is that the pertinent constitutional clauses are not subject to definitive resolution through the usual processes of constitutional decision-­making. This is reflected by the Supreme Court’s ruling in Walter Nixon v. United States17 to treat as nonjusticiable any claims regarding the procedural propriety of judicial impeachment trials. In other words, after Nixon, debates about constitutional interpretation in the context of the impeachment process are likely to occur without benefit of Supreme Court input. The challenge of clarifying the federal impeachment process is compounded even further by the fact that ambiguous or vague constitutional language permits an interpreter inevitably to use some discretion in choosing among different plausible readings of the relevant text or history. In exercising this discretion, all interpreters must rely at some point on their own values, particularly their moral and political judgments on the nature of our system of government. As Stephen Carter has explained, The words of the Constitution do not, by themselves, determine everything, and all who must strive to interpret and apply the text . . . must at some point make leaps of faith not wholly explicable by reference to standard tools for interpretation. . . . All [interpretive] questions require judgment in the finding of answers, and in every exercise of interpretive judgment, there comes a crucial moment when the interpreter’s own experience and values become the most important data.18

In the impeachment context, this phenomenon is no less true.

making sense of the federal impeachment process  69 It is possible, however, to surmount these difficulties in interpreting the impeachment clauses through three steps. First, each interpreter should disclose to the extent possible the values that guide his or her reading of the relevant source. The point is to disclose as much as possible the premises of one’s analysis, for the sake of opening all aspects of a constitutional opinion or decision to the fullest discussion possible. With respect to impeachment, my operating assumption is that it is a unique check on executive and judicial abuse of power. This notion of impeachment seems not only common to all relevant sources of constitutional decision but also to work better than any alternative to tie these together. The second, more complex step, which keeps the first in check, is to identify the limitations of each of the traditional sources of constitutional decision, such as the constitutional text, structure, and history. The point of this second step is to arrive at a construction of the Constitution that reconciles to the fullest extent possible the different sources of constitutional decision. The idea is that each source serves to supplement or reinforce the others. Such reconciliation is important as a means of increasing the odds of arriving at a reading of the relevant text that is persuasive, reliable, and capable of withstanding the test of time. Of course, the difficulty is that, as we have already seen, the language in the Constitution often raises but does not answer various questions about the scope of a particular constitutional provision or guarantee. Usually, this aspect of the text requires constitutional decision-­makers to undertake the formidable task of resolving ambiguities, gaps, or conflicts in the language or design of the Constitution. Such readers may not be confined by particular constitutional language, but they are confined to the language. In trying to identify which concepts may be consistent or compatible with indeterminate constitutional language, constitutional decision-­makers logically turn most often for guidance to history, which may within certain boundaries provide a context to aid understanding of some constitutional provisions—­such as the impeachment clauses—­that do not readily explain themselves, particularly to the modern reader. For example, construing the constitutional language “high crimes and other misdemeanors” requires looking outside the Constitution itself for guidance, but that search is limited to the clarification of those specific terms. Historiography could facilitate that inquiry. Although the meaning of the phrase “other high Crimes and Misdemeanors” is not self-­evident, history helps to provide a frame of reference that gives meaning to the textual language. The goal is to use history not as an end in itself but as an additional guide in the search for the meaning of an ambiguous constitutional provision. In resorting to history, however, it is important to avoid constructing data that never existed or rewriting the constitutional text. A critical issue with relying on original meaning is that the framers’ silence on the

70  chapter six scope of permissible practices pursuant to a broad grant of power to the national government does not mean they necessarily disapproved or sanctioned such practices.19 The silence could mean many things, perhaps even that the framers neither conceived nor addressed the particular exercises of power in question and necessarily left subsequent generations to figure out in which form and in which particular ways the national government may exercise such broad authorizations. It could thus be a mistake to concentrate exclusively on the framers’ specific views regarding impeachment in figuring out the constitutional implications for impeachment-­related issues that the framers did not discuss. If our aim is to make as much sense of the text as possible, it might be more sensible to consider not only the language of the clauses, but also the values, objectives, and policies embodied or reflected in other parts of the Constitution that deal with the distribution of analogous governmental power.20 The task, at this juncture, is to coordinate the relevant text and history with the Constitution’s design. This endeavor requires two additional steps. First, those attempting to interpret the Constitution should identify those aspects of our constitutional scheme of separation of powers that are immutable in the absence of constitutional amendments. Second, they should define and explain how the three branches of government may deal with any mutable aspects of separation of powers. In defining the immutable aspects of separation of powers, one should keep in mind that separation of powers is a system designed to limit the three branches to their assigned responsibilities so that no one branch may grow too powerful or infringe on individual liberties.21 The actual scheme of checks and balances in the Constitution may, however, be incomplete. The framers defined the checks and balances for each branch only at its apex.22 They left the task of structuring the lower parts of the branches to subsequent generations because they understood that the demands on government would change over time and realized that an immutable structure of government from top to bottom would hinder progress.23 Any deviations from the immutable allocation of powers within the Constitution are plainly unconstitutional.24 Not surprisingly, the major debates in separation of powers cases are over which distributions or allocations of power are immutable.25 The greatest appeal of formalist reasoning is that it aspires to make crystal clear the immutable or inflexible limits on the extent to which the branches may share or have overlapping powers. For formalists, the historical evidence, including the framers’ views on the relevant principles, clearly demarcates these boundaries, as reflected in such authoritative materials as the constitutional text, the debates in the constitutional and state ratifying conventions, and the records of the First Congress.

making sense of the federal impeachment process  71 Functional reasoning is especially appealing when the boundaries are not clear. Where neither the text nor the original meaning clearly preclude a branch (or an agent thereof) from exercising a certain power, then a functional approach seems appropriate. It would entail balancing competing interests to provide the national government with some flexibility to address new crises and to protect the fundamental values that the constitutional structure was established to guarantee. Functional analysis is particularly useful in cases involving the mutable allocation of power, because it takes into account human experience in the form of historical practices.26 Other sources support using functionalism under similar circumstances. For instance, this approach is consistent with the Supreme Court’s practice of adopting functionalism within appropriate boundaries as an expression of its deference to the constitutional interpretations of Congress and to legislative experimentation in structuring government in those instances in which the innovation does not undermine a clear textual prohibition or the basic values or principles that the original checks and balances were designed to guarantee.27 Moreover, a functionalist approach also avoids constitutional inertia by preventing the structure at the top from blinding constitutional interpretation to the realities of government and to the possibilities for change not envisioned or addressed by the framers but still consistent with their handiwork. Functionalism avoids unbounded congressional deviations by seeking to ensure that innovations do not undermine the central functions of each of the three branches. Indeed, the framers may have failed to consider anything but the basic values embodied in the constitutional structure. For example, even though neither the text nor the debates in the constitutional and ratifying conventions clearly resolve whether impeachment is the sole constitutional mechanism for disciplining or removing federal judges, any other means for doing the same things still must preserve both collective and individual judicial independence and integrity—­the primary goals of Article III’s guarantees of life tenure and undiminished compensation for federal judges.28 The fact that no other means can do this nearly as effectively as impeachment helps to explain why, more than two hundred years after the Constitution’s ratification, impeachment remains the sole means for removing federal judges for their misconduct. A persistent concern with functionalist analysis is, however, that it seemingly conflicts with the notion expressed by Chief Justice John Marshall in McCulloch v. Maryland 29 that our national government is “one of enumerated powers.”30 To some scholars and judges, this observation means that the national government is empowered to do only those things it is expressly authorized to perform by the Constitution and that, in the absence

72  chapter six of such permission, the government is not licensed to act. Arguably, a functionalist approach stands that construction on its head by deferring to historical practices, especially in those cases in which there are no clear constitutional constraints preventing it from doing so. The problem with this concern about functionalism is that it ignores the actual ruling as well as the significance of McCulloch itself. The Court in McCulloch did not rule that Congress has no power other than what it has been expressly given in the Constitution. To the contrary, the Court recognized that the Constitution granted Congress implied powers to achieve legitimate objectives. The necessary and proper clause, in particular, allowed Congress to do what was “convenient” or “useful” to achieve or facilitate its enumerated powers. The judgment in McCulloch to uphold the constitutionality of the Bank of the United States rested not just on Chief Justice Marshall’s interpretation of the necessary and proper clause31 but also on his understanding of the more general need to infer certain congressional powers from the unique nature of the Constitution itself. In Marshall’s view, the Constitution should not be construed as a straitjacket preventing Congress from adapting to unforeseen crisis. As Marshall famously declared, construing the Constitution “requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American constitution, is not only to be inferred from the nature of the instrument, but from the language. [In] considering [a] question [about the legitimacy of a congressional exercise of power,] we must never forget, that it is a constitution we are expounding.”32 Marshall’s insight was that the structure and original understanding of the Constitution indicate that interpreting “a constitution intended to endure for ages to come and, consequently, to be adapted to the various crises of human affairs[,]”33 requires reading the document broadly to allow Congress some flexibility in effectuating its enumerated powers. This historic view is reinforced by subsequent Supreme Court decisions using a balancing approach in separation of powers cases in which there is no clear textual prohibition or original understanding to the contrary.34 Moreover, the assumption that the federal courts may preclude Congress from taking advantage of ambiguous or open-­ended language, structure, or history in cases involving the mutable allocation of powers ironically violates the notion of a national government of limited powers. In such a government, the federal courts, too, are limited, and one constraint might well be that the federal judiciary is not necessarily empowered to intervene or to overturn the policy decisions or innovations made by the other branches in every separation of powers dispute.35 Of course, part of the job of a court is

making sense of the federal impeachment process  73 to figure out in which disputes it should replace another branch’s construction of the Constitution with its own. The final step in clarifying the constitutional system of impeachment is to understand the connection between construing the impeachment clauses and constitutional interpretation in general. The Constitution might make most sense when construed as an integrated whole (for example, in consideration of its general purposes or “outlines,” as Marshall put it) rather than piecemeal or clause by clause. It further distorts constitutional interpretation to superimpose certain interpretive theories onto particular constitutional provisions. Common sense suggests that before manipulating a particular constitutional provision to fit a particular theory of constitutional interpretation, it is better first to assess how that provision connects to the whole and how it may be compatible with any preexisting theory of constitutional interpretation. If, for example, a theory cannot explain the whole or does not fit or explain the meaning or purpose of a particular constitutional provision, then that theory is useless for explaining that provision. Constitutional decision-­makers and commentators should examine each constitutional provision both in light of its connection to the overall Constitution and on its own terms, recognizing the provision’s historical and structural contexts. Contextualizing provisions may entail coordinating different configurations of the relevant sources of constitutional decision.36 Although trying to make sense of a provision in this manner will not make constitutional interpretation as predictable as it would likely be under a theory attempting to organize constitutional law in terms of a single unifying concept, it reduces the likelihood of distorting or manipulating the Constitution by construing constitutional provisions on their own terms as opposed to the terms of some unrelated theory. Thus, the critical question is whether there is an appropriate guiding principle that is specially suited to interpret one or all of the impeachment clauses or that is common to (or links) other analogous or relevant provisions. As part III demonstrates, the answer brings us full circle: back to the importance of coordinating as many legitimate sources of constitutional decision-­making as possible to clarify the particular problem, area, and power(s) involved.

PART III CLARIFYING THE CONSTITUTIONAL ASPECTS OF THE FEDERAL IMPEACHMENT PROCESS

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his part seeks to resolve some of the most significant and troublesome constitutional issues relating to impeachment. Its five chapters examine in turn the scope of the officials who are subject to and the punishments that are available in impeachment proceedings; whether impeachment is the only means for removing impeachable officials, especially federal judges; the scope of impeachable offenses; the proper procedure for impeachment hearings and trials; and the justiciability of constitutional or other challenges to impeachment procedures or decisions. These issues require Congress to wrestle with and give meaning to broad constitutional language and authorizations. They compel Congress to consider the extent to which it is or should be bound by prior congressional interpretations of the Constitution. The resolutions of these issues have enormous ramifications for our understandings of the Constitution, the scope of Congress’s impeachment authority, and Congress’s capacity to rise above narrow-­minded or short-­sighted partisan politics to engage in reasonably principled constitutional interpretation.

Chapter Seven THE SCOPE OF IMPEACHABLE OFFICIALS AND APPLICABLE PUNISHMENTS

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he Constitution limits the impeachment power to “[t]he President, Vice President and all civil Officers of the United States.”1 A surprisingly difficult interpretive question posed by this provision is which federal officials qualify as “civil officers of the United States.” Even though the Constitution does not expressly refer to the removal of federal judges, the constitutional convention assumed,2 The Federalist Papers expressly acknowledged,3 and the federal government has acted from its inception as if “all civil officers of the United States” subject to impeachment includes federal judges.4 Otherwise, neither the text nor the constitutional convention debates addressed the meaning of the phrase “civil officers of the United States.” Moreover, the scattered discussion in the ratifying conventions about the scope of impeachable officials settled little, except perhaps for the applicability of the impeachment process to the president, federal judges, and other high-­level but otherwise unspecified federal, as opposed to state, officials. In an effort to define “civil officers of the United States” and therefore the range of impeachable officials, this chapter examines the impeachability of senators and officials who resigned from or left office at the time of their impeachments. Given that the impeachability of the latter officials depends on the Senate’s authority to impose the punishment of disqualification separately (because it would not make sense to remove an official who was no longer in office), this chapter also considers the severability of impeachment sanctions.

The Impeachability of U.S. Senators Constitutional scholar Raoul Berger made the classic argument for the impeachability of senators.5 He contended that the framers were in all probability familiar with the English practice in which “the vast bulk of impeachments” were against members of the House of Lords6 and that the fact that the state ratifying conventions regarded senators as impeachable is evidenced by their concern over the Senate’s being empowered to try its own members.7

78  chapter seven Yet, constitutional language, structure, and history support a different answer to the question of whether members of Congress are impeachable. First, “civil officers of the United States” is likely a subset of “officers of the United States,” and in three different places in the Constitution, legislators are treated as if they are not “officers of the United States” and thus are not impeachable. Article II, section 3 provides that the president “shall Commission all the Officers of the United States.”8 Obviously, members of Congress, including senators, are not so commissioned.9 Moreover, Article 1, section 6 provides that “no person holding any office under the United States shall also be a member of either house during his continuance in office.”10 This clause plainly prohibits someone who has accepted an appointment as an “officer of the United States” from also serving in the House; however, the conflicts it seeks to eliminate can only be avoided if it also bars any member of Congress from accepting a position as an “officer of the United States.” Lastly, the appointments clause in Arti­ cle II, section 2, indicates legislators are not officers of the United States. It speaks of two kinds of federal officers, neither of which likely includes members of Congress. It provides that [the President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint [all] other offices of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law; but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Department.11

This clause implies that “officers of the United States” are presidentially appointed officials who occupy positions created by Congress; that “inferior Officers” are less important federal officials whose appointments Congress may vest in in certain other, nonlegislative bodies; and that senators, who are not appointed by the president nor occupy positions created by the Congress, do not fit into either category of federal officials. Bolstering arguments based on inferences from the constitutional text, the constitutional structure seems to bar the impeachability of members of Congress. Article I, section 5 provides that “each House shall be the Judge of the Elections, Returns and Qualifications of its own Members.  .  .  . Each House may  .  .  . punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.”12 It seems illogical for the framers to have given each chamber two separate methods by which to punish or remove its members, both of which suffer from the same problem—­the unlikely prospect of either chamber deciding to move against one of its own. Alternative or multiple mechanisms

impeachable officials and applicable punishments  79 for removing legislators might have made sense if each sought to make up for the other’s deficiencies, a prospect that expulsion and impeachment fail to achieve. Instead, the expulsion power given to Congress most logically qualifies as Congress’s analogue to impeachment for the purposes of disciplining its members. Moreover, fairly read, originalism hardly supports the impeachability of national legislators. Although several ratifiers accepted the impeachability of senators, their arguments met resistance in every instance, including the rejoinder (undermining Berger’s assumption about the framers’ knowledge) that there were no known instances of impeachments of legislators.13 Even so, the critical question is whether it is reasonable to infer the impeachability of senators from the uniqueness of the punishments available in an impeachment proceeding. In other words, the basic issue is what are the appropriate inferences to draw from the absence of a clear constitutional prohibition against the Senate’s exercising expulsion and impeachment powers against its own members and from the inclusion of a punishment unavailable in an expulsion in the impeachment process. Various sources of constitutional authority suggest that it would be improper to read the Constitution as allowing the Senate to exercise both expulsion and impeachment powers against its members. First, the plain meaning of constitutional provisions prohibiting service as both a legislator and officer of the United States and as suggesting “civil officers” or “officers of the United States” are presidentially appointed officers (subject to impeachment) in positions created by the Congress, combined with the bizarre prospect of allowing the Senate to have multiple powers to discipline its members, make a strong case against interpreting the Constitution as permitting the Senate to expel and to impeach its members. Second, in relevant precedents, the Supreme Court has consistently construed the phrase “civil officers of the United States” to cover a category of federal officials who are appointed by the president to offices created by Congress.14 Third, even though the House of Representatives impeached Senator Blount,15 the Senate’s failure to convict him and Congress’s subsequently unbroken practice of treating senators as unimpeachable raises a reasonable expectation on the part of Congress that senators are not impeachable and that members of Congress may rely on this judgment as presumptively constitutional in the absence of clear evidence to the contrary. Moreover, the Justice Department’s Office of Legal Counsel has consistently concluded that “all civil officers of the United States” does not include legislators. Thus, all three branches—­the courts, Congress, and the executive—­agree that members of Congress are not impeachable.

80  chapter seven

The Nature of Impeachment Punishments This section examines two questions about the constitutional limitations on the available sanctions in impeachment proceedings: whether the Senate may impose the punishments of removal and disqualification separately and, if so, whether the Senate may disqualify a convicted impeachable through a majority vote. In fact, the Constitution mentions impeachment sanctions in only two places. Article II provides that 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.”16 The most natural reading of this language seems to provide for a nondiscretionary sanction. If someone is impeached, he or she must be removed from office (assuming of course the person does not first resign). In Article I, the Constitution further provides, however, that judgment in impeachment cases “shall not extend further than to removal from Office, and disqualification to hold and enjoy any [federal] Office.”17 Reading this language in conjunction with the relevant Article II clause quoted above, a Senate judgment against the civil officer apparently must lead to removal, but the Senate has discretion to impose any bar—­permanent, temporary, or none whatsoever—­to holding any further office.18 In practice, the Senate has followed these readings.19 It treats the punishment of removal as automatically following from its conviction of an impeachable official by two-­thirds vote of the members present. It also has taken the position that it may then, if it sees fit, take a separate vote on whether to impose the sanction of disqualification against the convicted official. Because the Senate treats removal as the automatic consequence of a two-­thirds vote to convict, it obviously regards a two-­thirds vote as a prerequisite to the imposition of the punishment of removal. Yet, on each of the three occasions on which the Senate imposed the punishment of disqualification,20 it did so after a simple majority vote. The Senate defends this practice on its reading of the relevant text as described in the preceding paragraph and on its belief that the officials subjected to a separate disqualification vote are adequately protected from abuse through the requirement of a supermajority vote prior to a conviction and through the political accountability of senators. The Senate’s practice, however, does justice to neither the relevant constitutional text nor structure. First, the fact that removal follows automatically from an impeachment conviction by a two-­thirds vote does not suggest anything determinative about the requisite vote for disqualification. The Senate’s authority for its custom of conducting different votes is premised on a dubious inference from the facts that the Constitution

impeachable officials and applicable punishments  81 mentions removal twice, once in connection with a conviction, which admittedly may occur only through a two-­thirds vote, and disqualification only once, as one of the two punishments permissible in an impeachable proceeding. Yet, an equally reasonable inference from the relevant text is that, given the framers’ expectation that the two-­thirds vote requirement would make it less likely for impeached officials to be convicted and punished for improper motives, both punishments should be applied by similar votes. Otherwise, letting a simple majority of the Senate choose to disqualify a convicted official eliminates the important protection the framers sought to provide against intemperate impeachment by empowering at least one-­third of the body to check its wanton use. The Senate’s current practice precludes a significant number of senators, who would normally have the power to prevent a conviction, from blocking the harsh punishment of disqualification if they saw fit.

The Possibility of Postresignation Impeachment Since the Senate refused to convict either Senator Blount, who had been expelled from office at the time of his impeachment trial, or Secretary Belknap, who had resigned prior to his impeachment trial,21 Congress has not brought impeachment actions against any officials after they left office. This practice alone stands as a formidable obstacle to any future attempt to initiate an impeachment against such officials. Yet, there is a surprising consensus among commentators that resignation does not necessarily preclude impeachment and disqualification.22 In fact, Congress’s practice of not pursuing the impeachments of officials who have left office can be explained more easily as an expression of Congress’s judgment that impeaching such officials is not worth the political costs involved rather than as an outcome dictated by constitutional history, text, and design. First, Congress’s practice of not impeaching officials no longer in office “has no substantial historical foundation and is not supported by a single authoritative and unequivocal decision of recent times.”23 Prior to the constitutional convention, Parliament and several states allowed impeachment of officials who were no longer in office. For example, several constitutional convention delegates acknowledged that in April 1787 the House of Commons had voted to impeach Warren Hastings for improprieties he had committed as the governor-­general of India, a position from which he had resigned two years earlier.24 Moreover, the delegates at the constitutional convention indicated no intention of abandoning the English practice or the provisions of many state constitutions, such as those of Virginia and Delaware, that allowed postresignation impeachments.25

82  chapter seven Second, the Constitution does not restrict the time when an impeachment proceeding may be brought and includes language consistent with impeachments after departures from office. Although Article II refers to “all civil officers of the United States,” this reference could mean only that those who are still civil officers at the time of conviction of the impeachment must be removed. Article I does not refer to “all civil Officers” and provides only a limitation on the penalty in an impeachment proceeding rather than a limitation on jurisdiction.26 According to the conventional rule of constitutional analysis, which gives meaning to each word of the Constitution, the inclusion of both present removal and future disqualification as penalties for impeachment suggests that they are two separate penalties that may be separately applied. If the punishments may be levied apart, there is no logical impediment to Congress’s attempting to disqualify, in the absence of a conviction supported by at least two-­thirds of senators, someone who is or was a civil officer of the United States at the time of the misconduct. Third, the delegates at the constitutional convention seemed to accept that impeachment may take place after departure from office. On the only occasion when the timing of impeachment was discussed at the convention, most delegates proceeded as if the president would be impeachable after he left office.27 The question that preoccupied the delegates was whether the president should also be impeachable while in office. By a vote of eight to two, the convention made the president impeachable while in office, without giving the slightest indication that this action constituted any grant of immunity after leaving office.28 Shortly after the convention, two prominent commentators took the position that resignation or departure from office did not preclude impeachment. In Federalist No. 39, James Madison compared the impeachment provisions of Virginia and Delaware with those in the new Constitution, stressing that the latter extended, rather than curtailed, the liability of the president by denying him immunity “during his continuance in office.”29 Similarly, in 1846, long after he had left the White House, John Quincy Adams declared on the floor of Congress that “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.”30 The critical element guiding the timing of impeachments is that the checks regarding impeachment ultimately are political, not constitutional. No doubt, there are numerous reasons not to move for impeachment against an official after resignation, but none of these are constitutionally mandated. For example, Congress may well figure that political support for a postresignation impeachment is unlikely or that such a proceeding would be futile, unnecessary, or unduly harsh.

impeachable officials and applicable punishments  83 Justice Joseph Story made perhaps the best argument in favor of “confining the impeaching power to persons holding office” by stressing that the framers did not intend for any private citizens to be subjected to ­impeachment,31 but his argument was flawed. In context, Justice Story appeared to be concerned primarily with distinguishing the American impeachment practice from the contemporaneous British practice, which allowed impeachment against private citizens, including all peers and commoners.32 Moreover, one can accommodate Justice Story’s concern without going so far as to argue that postresignation impeachment is impermissible. By subjecting only the president, the vice-­president, and “all civil officers of the United States” to impeachment, the constitutional language makes clear that the framers generally rejected impeachments against private citizens,33 but allowed impeachments of private citizens for misconduct connected with or relating to their occupancies of certain offices.34 While it is clear and well settled that the impeachment power does not reach private citizens, there remains an important question about the timing of an offense. What happens if an impeachable official’s misconduct occurred before appointment or election? Impeachment remains a viable method for dealing with such misconduct. Indeed, one of the impeachment articles against Thomas Porteous charged that he had committed perjury when he failed to disclose on his Senate questionnaire the misconduct he had engaged in prior to his nomination as a federal judge. While any such disclosure would have destroyed his nomination, the questionnaire provides that any lie, fraud, or misstatement in completing the form is perjury. Porteous had, in other words, defrauded the Senate when it considered his nomination. The Senate convicted, removed, and disqualified Porteous in part on the basis of this misconduct. Consequently, one question to ask in similar cases is whether there is some nexus, or connection, between the misconduct and appointment or election to the office currently occupied. If, for example, a campaigning presidential candidate defrauded or lied to the public about some previous misconduct, the question is whether the lie, omission, or fraud affected the outcome of the election. If Congress is convinced that there is a nexus or connection between the misconduct and the candidate’s election, there is a good case to be made that it may provide a legitimate basis for conviction and removal, just as it was in Porteous’s case.

Chapter Eight IMPEACHMENT AS THE SOLE MEANS OF DISCIPLINING AND REMOVING IMPEACHABLE OFFICIALS

A

perennial question is whether impeachment is the only means of removing “all Civil Officers of the United States,” including federal judges. This issue raises problems involving the extent to which (1) one branch of the federal government may discipline or remove the members of another branch and (2) the members in a branch have removal power over other members in the same branch.

The Removal Power of One Branch over the Members of Another Branch Removal authority is a critical element of separation of powers. Whoever exercises the power to remove may be able to control the actions of those officials who are subject to removal. For example, the impeachment power enables Congress to exercise extraordinary influence over federal judges, the president, and other high-­ranking executive officials. This power is particularly intimidating to federal judges, because they have been the targets of its exercise more than any other class of impeachable officials, they do not have any comparable power over members of Congress, and they lack the means available to the president (or those of his subordinates he chooses to defend) to ward off an impeachment, such as the bully pulpit or the granting of political favors. If, however, impeachment is the sole means by which the political branches may discipline or remove federal judges, then the members of the judiciary at least may feel more secure from any other threat to their security.

Judicial Tenure, Discipline, and Removal The issue of whether impeachment is the sole or exclusive means of disciplining or removing a federal judge requires clarifying (1) the nature of judicial tenure and (2) the propriety of disciplining or removing a federal

impeachment as means of removing impeachable officials  85 judge through some means other than by an impeachment. I consider each of these related problems in turn. THE RELATIONSHIP BETWEEN THE GOOD BEHAVIOR CLAUSE AND THE IMPEACHMENT PROCESS

Defining the nature of judicial tenure requires reconciling the impeachment clauses with the constitutional provision that federal judges “shall hold their Offices during good Behavior.”1 This effort leads to the question of whether misconduct that would not constitute an impeachable offense might still violate the “good Behavior” standard and thus subject a federal judge to removal or discipline through some process other than impeachment. This issue arises because the Article III language could be read more than one way—­either as setting a substantive standard of conduct on which judicial tenure is contingent, or as employing an eighteenth-­century term of art to signal that federal judges shall hold tenure for life unless impeached and, thus, that the good behavior clause itself does not establish a separate or independent basis for removal other than those specified in the impeachment clauses.2 The second reading essentially takes the position that the impeachment and good behavior clauses together mean that the tenure of a federal judge may be interrupted only by an impeachment for the commission of an impeachable offense, not misbehavior of just any kind. The first reading is that these clauses provide that federal judges may serve for life, subject to removal either through impeachment for having committed an impeachable offense or through impeachment and possibly some other means of removal for having engaged in misbehavior not rising to the level of an impeachable offense. In effect, the latter view is that, because federal judges are removable for misbehavior including but not limited to the commission of impeachable offenses, they may be ousted under a looser standard than other impeachable officials, whom Congress may remove only by impeachment for “Treason, Bribery, or other high Crimes or Misdemeanors.”3 The major problem with the latter reading of the good behavior and the impeachment clauses is that it is less consistent than the former reading is with relevant constitutional history and structure. First, the framers included the phrase “during good Behavior” in the Constitution to contrast the unlimited term of federal judges with the fixed terms for the president, vice-­president, and members of Congress.4 Under the more historically accurate view of the good behavior clause, federal judges with unfixed terms and high-­level officials with fixed terms may have their terms of office ended prematurely if there is a Senate conviction for “Treason, Bribery, or other high Crimes and Misdemeanors.” In this

86  chapter eight sense, the phrase “during good behavior” is a term of art primarily describing the length of a federal judge’s tenure. Second, it was generally accepted during and after the constitutional convention that federal judges should have special tenure for life and that such status was crucial to the independence of the federal judiciary.5 The delegates at the convention never abandoned their desire to eliminate the problem they had experienced in the colonies of having judges who were dismissed unless they did what the king told them to do. Such judges rarely had the courage of their convictions. In Article III, the framers solved this problem by guaranteeing federal judges life tenure and undiminished compensation, measures that the framers considered integral to securing the judiciary’s place in the new national government’s system of checks and balances. The framers recognized that life tenure and irreducible compensation were indispensable if federal judges were to have the freedom to exercise truly independent judicial review. As Alexander Hamilton explained, the federal judiciary needed special status to serve as a necessary bulwark against legislative aggrandizement and the tyranny of the majority.6 The framers envisioned the federal courts as a safe haven for people trying to protect their civil liberties against actions by either the president or Congress. There never was any serious question during or after the constitutional convention that the judiciary’s role in the new system of checks and balances would be to protect the people themselves from the excesses of other branches. To achieve that end, the framers sought to insulate federal judges from political reprisals for unpopular decisions by narrowing the bases for judicial removal to “high crimes and misdemeanors” rather than to the more broadly phrased “provisions of the seven states constitutions that provided for impeachment, five of which made ‘maladministration’ a ground of impeachment, while New York proceeded for ‘malconduct’ and North Carolina for ‘misbehavior.’ ”7 As James Madison warned, “so vague a term [as maladministration] will be equivalent to a tenure during pleasure of the Senate.”8 In short, “no evidence exists that the framers desired to compromise the independence of federal judges by making it easier to remove them.”9 The framers and ratifiers who supported the federal Constitution shared a common understanding that impeachment is the only mechanism with which the elected branches are empowered to remove federal judges.10 It is far less clear whether the founders intended to preclude altogether judiciary-­dependent mechanisms for judicial discipline or those methods that the elected branches cannot fully execute because the judiciary itself must play an important role in their implementation.11 In fact, there were three models of judicial discipline with which the framers were familiar.12 They were aware of systems within the states and in England under which judges could be removed by the executive

impeachment as means of removing impeachable officials  87 at will,13 by the executive upon “address” from the legislature,14 or by legislative bodies through impeachment.15 The susceptibility of judges to discharge at the whim of the Stuart monarchs had been a major grievance among the English in the seventeenth century.16 The colonists expressed their own displeasure over the vulnerability of their judges to removal at the king’s pleasure in the Declaration of Independence.17 Indeed, many colonists envied the terms of judicial tenure—­“during good Behavior”—­ used in the Act of Settlement, which the Parliament devised at the turn of the century to provide life tenure for judges in England.18 The constitutional convention considered and rejected the second political mechanism for judicial removal—­legislative address to the executive—­ which had been used in four states (as opposed to the six states that provided for impeachment).19 On August 27, 1787, Delaware’s John Dickinson proposed that judges be removeable by the executive “on the application by the Senate and House of Representatives.”20 Dickinson’s proposal tracked the typical system of address, which consisted of a formal request made by a legislature to a chief executive, asking him to agree to the removal of a judge. Legislatures and executives were not necessarily constrained in their reasons for making or responding to an address. After brief debate, the motion failed by a vote of one in favor, three abstentions, and seven opposed. Gouverneur Morris, John Rutledge, and Edmund Randolph explicitly opposed the motion as inconsistent with the intended independence of the judiciary.21 Moreover, many commentators at or around the time of the Constitution’s drafting and ratification referred to impeachment as the only means by which the political branches could remove judges. For example, Alexander Hamilton argued that the “article respecting impeachments” in the Constitution was 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 Constitution in respect to our own judges.”22 The Anti-­Federalist essayist Brutus agreed that the “only causes” for which federal judges could “be displaced” would be impeachable offenses.23 Both the relevant text and original understanding support treating impeachment as the only political means for judicial removal.24 The Constitution established and the framers understood the federal impeachment process as a highly deliberative, cumbersome decision-­making mechanism. It defies common sense for the framers to have taken great pains to have purposefully designed such an awkward system for remedying judicial misconduct but then implicitly left Congress and the president free to remove judges on more lenient grounds through some other, nonspecified, more efficient devices. This conclusion is consistent with analogous Supreme Court opinions on separation of powers. For example, the Court has described impeachment

88  chapter eight as the only mechanism by which Congress may remove executive officers.25 The Court has also determined that allowing Congress to exercise any other direct control over the removal of executive officers would give Congress too much dominion over the exercise of executive power,26 even though this control would have been over policy matters on which legislative influence is ordinarily considered to be proper. As Peter Shane has explained, “[g]iven that the legitimate purview of congressional politics is presumably narrower in adjudication than in executive administration, it is inconceivable that the Court would permit Congress to exercise a greater role in dismissing judges than it performs in supervising executive officers.”27 With respect to structural analysis, formalists, drawing on relatively unambiguous original understanding, argue in favor of protecting judicial independence by prohibiting political mechanisms for judicial discipline other than impeachment. The framers clearly intended separation of powers to preclude any possibility of adjudication by Congress except in cases of impeachment.28 Moreover, the exercise of direct influence over the judiciary by the executive except through the expressly conferred powers of appointment and faithful enforcement of the laws—­that is, prosecution—­would clearly have frustrated the framers’ desire, reflected as early as the Revolutionary Constitutions, to divide executive and legislative powers.29 The framers sought such separation to protect the people from judges who “might behave with violence and oppression.”30 In other words, “[t]he obvious potential for subjugation of the judiciary that would result from placing disciplinary power over judges in the hands of the Executive alone would manifest an abuse about which the founders were self-­consciously and explicitly concerned.”31 Hence, any proposal for subjecting federal judges to removal at the whim of the president or Congress through some means other than impeachment plainly violates immutable principles of separation of powers limiting the political branches’ removal of federal judges. THE CONSTITUTIONALITY OF JUDICIARY-­DEPENDENT MECHANISMS FOR JUDICIAL DISCIPLINE AND REMOVAL

There are four judiciary-­dependent mechanisms for disciplining or removing federal judges that have been considered or used in American history: (1) the Bribery Act of 1790,32 which automatically disqualified any federal judge convicted of bribery; (2) the indictment, prosecution, conviction, and imprisonment of executive officials or federal judges prior to their impeachments; (3) Judicial Councils, operating pursuant to the judiciary’s claimed inherent administrative authority over the operations of the federal courts; and (4) the Judicial Disability Act of 1980, which

impeachment as means of removing impeachable officials  89 established a process within the judiciary for investigating and disciplining federal district and circuit court judges for certain kinds of misconduct. This section considers the legality of the first two of these methods, while the constitutionality of the other two are considered in the next section on judicial self-­regulation. The absence of any relatively clear textual mandate or original understanding on the legitimacy of judiciary-­dependent removal mechanisms permits a more flexible or functionalist analysis of their constitutionality. The framers said virtually nothing about whether the criminal prosecution of an impeachable official—­including the president—­should take place before or after his or her impeachment.33 Moreover, even though the writ of scire facias was available at common law as a judicially operated mechanism for removing judges for misbehavior,34 there is no indication the framers intended to include that writ within the “judicial power” conferred by Article III.35 Thus, one must be prepared to make reasonable inferences from other sources, such as the structure of the Constitution and historical practices, in trying to determine the legitimacy of judiciary-­ dependent modes of judicial discipline. The Constitutionality of Pre-­ impeachment Criminal Prosecutions. In recent years, pre-­impeachment criminal prosecutions of impeachable officials have occurred under two different systems. The Independent Counsel Act36 permitted the appointment of a special prosecutor to prosecute certain high-­level executive officials, including the president. Otherwise, federal judges had been prosecuted since Watergate by Justice Department lawyers from the Public Integrity Section of the Justice Department.37 I consider below the constitutionality of each kind of criminal prosecution. CRIMINAL PROSECUTIONS OF FEDERAL JUDGES.  The textual argument against pre-­ impeachment criminal prosecutions of federal judges is based on Article I, section 3, clause 7, which provides that “[j]udgment 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.”38 The specific reference to the criminal liability of a “party convicted” has been read by some as implying that the “cases of impeachment” to which the prior clause refers must precede prosecution. At least superficially, the provision would not be limited to federal judges but would treat prosecutions of sitting judges or other impeachable officials identically. Even so, the problem with allowing pre-­impeachment prosecutions and imprisonments is serious with respect to federal judges,

90  chapter eight because the constitutional guarantees of life tenure and undiminished compensation militate in favor of allowing them to continue receiving their salaries until such time as they are formally removed from office. Nonetheless, construing the Constitution as barring pre-­impeachment prosecutions of federal judges is problematic for three reasons. First, the operative language could also be construed as merely anticipating (but not requiring) that impeachments would precede criminal prosecutions but that, regardless of the order in which they proceed, an impeachable official may be subjected to both in appropriate cases. Second, the Bribery Act of 1790 conceivably reflected the understanding of the First Congress—­commonly regarded as representative of the framers’ generation—­that criminal prosecutions could occur prior to impeachment proceedings, because it is premised on such a sequence.39 Third, reading the pertinent constitutional language as mandating that impeachments must precede criminal prosecutions would produce some odd results, such as barring any criminal prosecution of an impeached judge who was acquitted on facts that would support a criminal conviction.40 Perhaps an even more serious problem with this reading is that it conflicts with the original understanding of the relationship between impeachments and criminal prosecutions and relevant precedents.41 The framers did not regard impeachment and the criminal law as serving the same ends. The function of the first half of paragraph 7 is to signal the framers’ intention to distinguish the American system from the British practice, under which it was permissible to impose criminal sanctions in an impeachment. The second half of paragraph 7 of Article I, section 3 clarifies further that the exclusion of criminal sanctions from the impeachment process separates impeachment from criminal law but does not immunize impeachable or impeached officials from criminal prosecutions. On two occasions, federal appellate courts have adopted this latter construction of Article I, section 3, and rejected arguments that impeachment of federal judges must precede their indictment, prosecution, and conviction and imprisonment. The claimants in these cases contended that indictment, prosecution, and imprisonment of federal judges should be prohibited prior to their impeachments because the targeted judges are effectively removed in violation of the constitutional principle that impeachment is the only constitutionally permissible means of removing federal judges. United States v. Isaacs42 was the first case in which a defendant claimed that indictment prior to impeachment was tantamount to removal without an impeachment conviction. Denying Judge Otto Kerner’s application to stay his prosecution for criminal activities committed before he had entered judicial office, the Seventh Circuit in Isaacs explained that “[p]rotection of tenure is not a license to commit crime or a forgiveness

impeachment as means of removing impeachable officials  91 of crimes committed before taking office.”43 The court also rejected the argument that judicial independence could only be protected by recognizing impeachment as the only means by which to punish judicial misconduct, because judicial independence “is better served when criminal charges against [judges] are tried in a court rather than in Congress. With a court trial, a judge is assured of the protections given to all those charged with criminal conduct.”44 In 1986, the Ninth Circuit, in United States v. Claiborne,45 rejected Harry Claiborne’s claim that his conviction and imprisonment prior to his impeachment were unconstitutional because they violated the constitutional ban against judicial removal through any means other than impeachment.46 Claiborne supported his claim with three arguments. First, he argued that the “Party convicted” language in Article I, section 3, clause 7, presupposes that any disruption of a federal judge’s life tenure should occur first through impeachment and only later through criminal prosecution; otherwise, the past tense “convicted” has no meaning.47 The problem with this reading is, as noted previously, that it conflicts with the framers’ view of impeachment and criminal proceedings as separate actions unfolding in no particular sequence. Second, Claiborne argued that prosecuting judges subjects them to inappropriate intimidation that violates their independence.48 In his view, even if one were exonerated, the rigors and expense of a criminal investigation are so great as to give the executive leverage over federal judges. To be sure, there is little doubt that the vulnerability of sitting judges to criminal prosecution potentially could compromise judicial independence by effectively subjugating judges to the political branches. Indeed, the ability of federal prosecutors to use criminal investigations or prosecutions to pressure or intimidate federal judges who are hostile to the administration is well documented.49 The problem with this second argument is that judicial independence is not the only constitutional value relevant to judicial performance. The framers also sought to secure judicial integrity. In fact, every federal court ever asked to consider the constitutionality of pre-­impeachment prosecutions of federal judges has deemed the impropriety of placing judges “above the law” to be the dominant constitutional value involved.50 These courts concluded that judicial vulnerability to criminal prosecution prior to impeachment does less to compromise judicial independence than immunity does to undermine legal accountability.51 Claiborne’s final argument was that imprisoning him while he was still a federal judge effectively removed him from office.52 He maintained that his pre-­impeachment imprisonment skirted the constitutionally mandated procedural safeguards for removal and created a “constitutional . . . collision between two branches of our government” by compelling an Article III

92  chapter eight judge “to surrender to the custody of the attorney general, an officer of the executive branch; . . . [and to] be confined outside his district, disenabled from performing judicial functions.”53 This argument rests on the belief that life tenure means that “a judge has judicial authority unless and until that power is stripped by congressional impeachment.”54 According to Claiborne, Congress alone has been charged with judicial removal; therefore, the attorney general’s bypass of the impeachment process violated separation of powers principles.55 He concluded that because criminal prosecution necessarily presupposes the potential for imprisonment (a de facto removal from office), prosecution must be prohibited. The Ninth Circuit found an unusual basis on which to reject Claiborne’s third argument that impeachment of federal judges must precede their prosecution and imprisonment. Maintaining that “federal judges [may] be removed from office only by impeachment,” the court reasoned that because the Seventh Circuit had ruled in Isaacs that criminal prosecution and conviction of a senator does not ipso facto “vacate the seat of the convicted Senator, nor compel the Senate to expel him or to regard him as expelled by force alone of the judgment,” neither were judges automatically removed “by force alone of the judgment.”56 Critics of Claiborne find this analogy unpersuasive because they do not believe it definitively answers the question of whether imprisonment (as opposed to conviction) prior to impeachment is constitutionally permissible.57 They argue further that the analogy disregards the key protections uniquely conferred upon the judiciary collectively and individually. Claiborne critics contend that the protections accorded by Article III to ensure that judicial independence require that judges must be treated differently for purposes of criminal prosecution and imprisonment. In sum, these critics argue that in the area of criminal prosecution and imprisonment, senators are not analogous to judges, because senators lack an equivalent of judicial independence. The latter contention, though, is hard to square with constitutional structure or history. First, just as judges are protected in their official status by Article III’s guarantee of judicial independence, senators enjoy immunity for their official acts through the speech and debate clause.58 Neither judicial independence nor the speech and debate clause, however, protect judges or senators, respectively, from prosecution for violating the criminal law.59 In effect, the Claiborne critics contend that judges should have a special immunity from criminal prosecution until they are impeached, but there is no textual support for such an argument. The concept of judicial independence protects judges only as judges. Judges may have the power to interpret the criminal law, but their official status does not immunize them from complying with it.

impeachment as means of removing impeachable officials  93 Second, imprisonment is not the same as removal. Imprisoned judges retain their titles, salaries, pensions, benefits, and, most importantly, their ability to return to the bench with full authority to decide cases and controversies.60 No doubt, imprisonment is an impediment to exercising the duties of a federal judge, but it does not have the same permanent or functional consequences as removal and disqualification pursuant to impeachment conviction. In fact, the term removal had a specific, formal meaning in 1789, limited to the termination of one’s tenure in office.61 In light of various references made in public documents at or around 1787 strongly indicating that the framers did not equate criminal liability with removal, Stephen Burbank has concluded that “[i]n the case of ‘removal from office,’ the framers had in mind the formal termination of a commission or of tenure in office. Yes, they were very concerned about judicial independence and yes, the Constitution should be interpreted so as to accommodate situations unforeseen and unforeseeable in 1787. But criminal proceedings were not a threat to judicial independence unknown to the framers, and . . . they were not a threat the framers deemed serious enough to foreclose.”62 CRIMINAL PROSECUTION OF HIGH-­RANKING EXECUTIVE OFFICIALS. Concern

that prosecution of impeachable executive officials may be an illegitimate bypass of the impeachment process reached its climax in Morrison v. Olson.63 There, the Supreme Court considered whether the Independent Counsel Act64 was unconstitutional because it enabled Congress to apply pressure on the president by means other than impeachment. According to the solicitor general, the act was a congressional attempt “to bypass the impeachment process that the Framers designed to [ensure] that high officers of government could be investigated and removed from power.”65 In the same vein, Justice Scalia in dissent suggested “[h]ow much easier for Congress, instead of accepting the political damage attendant to the commencement of the impeachment proceedings against the president on trivial grounds . . . simply to trigger a debilitating criminal investigation of the Chief Executive under this law.”66 There are, however, three arguments supporting the Morrison Court’s rejection of the characterization of the act as an illegitimate bypass of impeachment. First, Congress had no power under the act to “trigger” an investigation by a special prosecutor.67 The act gave the attorney general unreviewable discretion to deny any request by Congress to initiate an investigation.68 Indeed, Congress had the same power under the act to request an investigation by the attorney general as it would have had in the absence of the statute to informally pressure the attorney general to commence an investigation. In addition, although the act required that the special prosecutor turn over evidence that Congress could have used

94  chapter eight as grounds for an impeachment, the act was not an expansion of congressional power to impeach because it was merely a reporting device rather than a substitute for an impeachment proceeding. Second, the provisions in the act authorizing investigation and prosecution of impeachable executive officials were neither novel nor unusual. Federal prosecution of impeachable officials within the executive branch did not begin with the Independent Counsel Act. Federal prosecutors have prosecuted impeachable officers, such as federal judges, for years. If those prosecutions were not unconstitutional bypasses of the impeachment process, there was no reason to think that the prosecutions of other impeachable officials were. In addition, prior to enactment of the Independent Counsel Act, the president and the attorney general frequently named special prosecutors pursuant to regulations or statutes that put constraints on their removal by the president.69 In short, the act did not interfere with the impeachment process any more than these various law enforcement schemes, whose constitutionality was never seriously challenged before enactment of the Independent Counsel Act. Third, the act and impeachment were not directed at the same class of individuals. The class of people who were subject to investigation under the act was both broader and narrower than the class of officers who have been subject to impeachment. The act covered a broader range of officials than impeachable officials because it required the appointment of a special prosecutor to investigate former senior administration officials, senior officials of the president’s political campaign, and any other person with whom the Justice Department has a conflict of interest. Conversely, only certain high-­ranking executive officials are impeachable. The scope of the act was narrower in the sense that, absent an extraordinary finding of a conflict of interest, it did not apply to most government officers, including those in the executive branch, whereas the impeachment power by its terms applies to “all Civil Officers of the United States,” including federal judges. The Constitutionality of the Bribery Act of 1790.  Interestingly, the First Congress suggested its own solution to the problem of imprisoned federal judges continuing to receive their salaries by enacting the Bribery Act of 1790, which automatically disqualified any federal judge convicted of bribery. The constitutionality of this act has confounded scholars for years. For one thing, the act was never enforced.70 Nor was there any legislative history illuminating the motives of its drafters or the specific problems the First Congress was trying to resolve by enacting it. Nevertheless, the Bribery Act could be defended as the First Congress’s reasonable attempt to achieve one or both of at least two legitimate objectives by combining its powers under the necessary and proper71 and

impeachment as means of removing impeachable officials  95 the impeachment clauses. First, the First Congress might have been trying to clarify the impeachment procedure established in the Constitution by categorically declaring that a criminal conviction in federal court for one of the impeachable offenses specifically listed in the Constitution—­ bribery—­always justifies disqualifying a federal judge from office. The act might have reflected Congress’s determination to hold impeachment trials for any federal judges convicted of bribery when it was convinced that it would disqualify any such judges. This conclusion presumably would have had no bearing on the permissibility of statutory removal or disqualification for any other crime with the possible exception of treason, the one other ground for impeachment that the Constitution specifically mentions. Second, the First Congress might have been delegating some of its impeachment authority to criminal juries in a manner designed to work to the advantage of federal judges. Although the framers had taken great pains in the Constitution to distinguish impeachment proceedings from criminal trials,72 the First Congress might have passed the act of 1790 with the expectation that the values of judicial independence and integrity normally protected through the supermajority vote required in an impeachment trial would have been more than adequately protected through the special procedural safeguards unique to criminal proceedings. In a typical impeachment proceeding, the targeted official was supposedly not entitled to the kinds of elaborate procedural safeguards applicable in criminal proceedings,73 such as a right to counsel and the right to confront witnesses. The First Congress might have further viewed the delegation entailed in the act as constitutional because it rested on the idea that judges are not immune from the criminal law. Such a notion would not have threatened judicial independence because the Bribery Act of 1790 was not directed at any essential judicial activity. Rather, the act focused on judicial misconduct that violated a specific criminal law. The constitutional duties of a federal judge do not require or necessitate any kind of criminal misconduct. In other words, the First Congress might have believed that the act did not threaten judicial independence, because it did not punish or prohibit federal judges for any conduct central to the performance of their constitutional obligations. Nevertheless, two objections to the constitutionality of the Bribery Act of 1790 merit special consideration. First, as eminent constitutional scholar Walter Dellinger has suggested, the constitutionality of the Bribery Act of 1790 should be evaluated in terms of whether it is any more legitimate than a statute that automatically disqualified the president or the vice-­president once they were convicted in federal court of criminal misconduct equivalent to an impeachable offense.74 Based on the premise

96  chapter eight that impeachment is the sole means of disciplining and removing the president, vice-­president, and all federal judges, Dellinger’s contention is that such a statute applied to the president and vice-­president would be plainly unconstitutional, because it would substantially disrupt the administration of justice and domestic tranquility; deprive the president and the vice-­president of the special securities of an impeachment proceeding, such as a supermajority vote of the Senate prior to a conviction; and redefine the balance of power at the top of our government. A similar statute directed at federal judges would, in Dellinger’s opinion, likewise be unconstitutional, because it would deprive judges of the unique protections available in an impeachment for ensuring judicial independence, including the chance to give Congress reasons not to remove if it sees fit. Although intriguing, the analogy might not work. Impeachment is the sole political means for disciplining and removing federal judges, whereas judiciary-­dependent mechanisms for judicial discipline, such as the Bribery Act of 1790, would be constitutional only if they do not violate the special values Article III sought to guarantee. Given that the Bribery Act of 1790 could reasonably have been read as subjecting federal judges in limited circumstances to disqualification in a forum in which they could take advantage of greater procedural safeguards than those available in impeachment trials, the act did not necessarily conflict with separation of powers, at least in cases involving federal district and circuit court judges. If Supreme Court justices were subjected to this statute, a different situation might have occurred, because they function, like the president and the vice-­president, at the apex of their respective branch. Consequently, separation of powers concerns are at their most sensitive in those instances in which the removal, disqualification, and disciplining of the most powerful federal judicial officers are at stake. Moreover, subjecting the president or vice-­president to similar legislation poses different separation of powers concerns: they occupy unique positions under the Constitution as the top two officials in the executive branch; and it is especially important to preserve their relationship with, and status vis-­à-­vis, the other branches by limiting the means by which they may be disciplined, removed, and disqualified by the impeachment process. Also, the automatic disqualifications of the president or vice-­ president would certainly produce political repercussions that no forum could reasonably diffuse, except for the impeachment process in which the key decision-­makers are not only politically accountable but also amenable to considering the legal and political consequences of their decisions.75 The second objection to the constitutionality of the Bribery Act of 1790 is that one of the specific safeguards set forth in the Constitution for the disqualification of federal judges is that at least two-­thirds of senators

impeachment as means of removing impeachable officials  97 must agree on the propriety of a conviction and the imposition of such a penalty. The statute, which needs only a majority vote of both the House and the Senate for passage, would deprive an impeached official of the constitutional safeguard of allowing formal disqualification only through a supermajority vote of the Senate. In other words, upholding the constitutionality of this statute would allow a majority of the Congress to defeat or frustrate the power guaranteed to at least one-­third of the Senate to defeat whenever it saw fit a conviction or the imposition of the punishment of disqualification. There are two possible responses to this latter complaint. First, the two-­thirds requirement might restrict only the Senate’s imposition of the punishment of disqualification in the aftermath of an impeachment trial. An alternative disciplinary mechanism, such as the Bribery Act’s reliance on juries in criminal trials, might be constitutional as long as that system protected the values the original structure was designed to safeguard. Second, if the Bribery Act of 1790 were narrowly construed to represent nothing more than the First Congress’s declaration that any federal judge convicted of bribery deserved automatic disqualification, then it would be consistent with a strict reading of the two-­thirds concurrence of the Senate as a prerequisite to any judicial disqualification formally understood. Under this construction, the statute merely might have expressed the attitude of a majority of Congress about what Congress was likely to do in an impeachment proceeding against a federal judge convicted of bribery and left to Congress the responsibility for ultimately bringing, when it saw fit, an appropriate impeachment proceeding. In any event, it is not insignificant that, as I have said, the act was never enforced. It is unlikely any future Congress would be any more willing to pass a similar statute in light of its uncertain constitutionality and the political fallout its use would surely engender by circumventing the procedures set forth in the Constitution for judicial disqualification through impeachment.

Each Branch’s Removal Powers over Its Own Members Easy Removal Cases The judiciary has the least power of any of the three branches to discipline and remove its own members. The Constitution expressly grants to each chamber of Congress the power to expel its respective members for “disorderly conduct.”76 Although the Constitution provides for the impeachment, removal, and disqualification of certain officials in the executive branch by the Congress, there is little doubt that executive officers may be removed in ways other than impeachment. For example, under the

98  chapter eight doctrine of Myers v. United States77 and Humphrey’s Executor v. United States,78 the president, incident to his power to appoint and to his constitutional duty to faithfully execute the laws, may remove subordinate officers who perform purely executive functions and who are also subject to impeachment. Other executive or quasi-­executive officials who are not appointed by the president are removable by the person, department, or agency79 entrusted with their appointment, subject to the regulations of Congress.80 The powers of Congress and the president over the removal of the members of their respective departments provide useful insights into whether the judiciary has the power to remove its members. First, if legislators are not impeachable officers, then the fact that Congress has the power to expel its own members for “disorderly conduct” sheds no light on the propriety of allowing judges to remove other judges. The Constitution explicitly grants the political branches only one method—­expulsion—­for removing legislators. Second, a reasonable assumption is that if the framers desired the members of one branch, such as the House, to have the power to remove other similarly situated or equally powerful members in the same branch, such as the Senate, then the framers would have made this desire explicit. Explicitly granting each chamber of Congress expulsion power over its own members, as the Constitution does, suggests that Congress would not have had power over the members of the other branch absent a constitutional grant. Likewise, the absence of any grant of expulsion power to the judiciary raises the inference that federal judges do not have an impeachment-­ like power to remove each other, precisely because the Constitution fails to grant this power. In the executive branch, the president’s removal power extends to subordinates, but they are not his equals in a constitutional or practical sense: they serve in the federal government to assist him in discharging his constitutional duties.81 Yet, in a different branch in which all members have similar tenure and wield the same kind of power as every other member of that branch, the Constitution seems to grant self-­disciplining authority only explicitly. In short, the framers may have considered that a grant of such removal power to some members of Congress over equally powerful members of a different chamber of the same branch was so unusual and potentially divisive that it required explicit constitutional authorization. Indeed, the House has the power, by virtue of Article I, section 5, to determine its rules of internal governance, but this provision does not empower it to devise the rules for the Senate. The same dynamic likely applies with respect to the expulsion power of each chamber. Third, judges differ from the president, Congress, and other members of the legislative and executive branches, because only the federal

impeachment as means of removing impeachable officials  99 judiciary has life tenure. Life tenure alone does not suggest that federal judges are removable only by impeachment. It does suggest, however, that federal officials with radically different tenure from the president and members of Congress may well have to be treated differently for removal purposes. The question is whether popularly elected and life-­ tenured officials should be treated the same under the Constitution for purposes of removal. Morrison demonstrates that the rationale for presidential removal of impeachable officers performing executive functions does not apply to judicial removal of judges. The president needs removal power to ensure that executive branch subordinates uniformly apply the laws, protect the civil liberties of all citizens, and enforce the laws faithfully. In contrast, the federal judiciary does not need removal authority to ensure that each judge performs his or her constitutional duty. Although secure independence facilitates the exercise of judicial review because it enables each judge to reach the result that he or she believes is dictated by applicable law rather than political expediency, independence is not required throughout the executive branch, where the knowledge that one serves at the president’s pleasure keeps a subordinate in line. Similarly, the president’s ability to remove officials exercising executive functions allows the president alone to direct them in the exercise of their executive functions. The specter raised by allowing federal judges to remove other federal judges is that any such removal power may include the potential to control the exercise of Article III judicial power. From a separation of powers standpoint, a major difficulty with allowing the federal judiciary to remove its own members is fashioning a principled approach to innovations to, or deviations in, the allocation of removal powers, including impeachment, set forth in the Constitution. These changes are the result of congressional enactments or, much more rarely, judicial initiatives. If the congressionally devised or judicially enforced removal scheme is a departure from the Constitution’s mutable structure, it is constitutional only if it does not violate the values furthered by ensuring federal judges have life tenure and undiminished compensation—­judicial independence and integrity.

Judicial Self-­Regulation Over the years, Congress has made many attempts to involve judges in monitoring, disciplining, and sometimes removing their peers.82 These attempts have often involved the judicial councils, groups of sitting judges originally established by the Congress to deal with administrative problems within the court system, which the judges properly administer. The two major constitutional questions that have emerged regarding judicial

100  chapter eight councils are whether they constitutionally may monitor caseloads and discipline poor judicial performance as administrative matters and whether they constitutionally may investigate, discipline, and make recommendations to Congress regarding impeachment for certain judicial misconduct. THE SIGNIFICANCE OF CHANDLER

An important, early debate about the constitutionality of allowing judges to discipline other judges arose in Chandler v. Judicial Council of the Tenth Circuit.83 Acting pursuant to a 1948 law empowering it to make appropriate rules for the proper administration of its court business,84 the judicial council of the Tenth Circuit had determined that Judge Stephen Chandler, then chief judge of the Western District of Oklahoma, was “unable or unwilling to discharge efficiently the duties of his office.”85 The council ordered him to take no further action in any pending case, distributed his caseload to the remaining judges of the district, and directed that no new cases be assigned to him until further notice. Judge Chandler challenged the council’s actions in court, but the Supreme Court denied his application for a stay of the council’s order, characterizing the council’s action as “entirely interlocutory in character” pending prompt inquiry by the council into the administration of judicial business in the Tenth Circuit.86 After a hearing, the council ordered that Judge Chandler could retain some of his original caseload. On a second appeal, the Supreme Court decided that because Judge Chandler might have had other avenues of relief left open to him, it was relieved from having to review the merits of the council’s order.87 Dissenting, Justices Black and Douglas asserted that the Constitution established Congress, “acting under its limited power of impeachment,” as the sole agency of government that may hold a federal judge accountable for the administration of his court and effectively deprive him of his office, even temporarily.88 Providing only marginal support for their claim, Justices Black and Douglas argued that full judicial independence could only be maintained through recognizing impeachment as the exclusive means for removing or disciplining individual federal judges.89 The problem with the Chandler dissent is that claiming impeachment is the exclusive means, political or otherwise, for removing federal judges is not inconsistent with allowing judicial councils broad power to deal with administrative matters within their jurisdictions. No doubt, the judicial councils could rearrange or reschedule much of a judge’s caseload if the judge were either slow or critically ill. As a matter of common law in both this country and England—­which the framers never evidenced any intent to abrogate—­judges have historically had the power to make administrative decisions regarding the operation of the courts that they

impeachment as means of removing impeachable officials  101 supervise.90 It logically follows that if a judge suffered from some infirmity such as a heart attack, then the appropriate judicial council has the power to transfer that judge’s caseload, at least temporarily, to someone else. For all practical purposes, the Judicial Council for the Tenth Circuit did just this by temporarily depriving Judge Chandler of his caseload because of his persistent failure to diminish his backlog. The key for reconciling Chandler with the Bribery Act of 1790 is to recognize the formal meaning of removal. Removal results in the permanent loss of the judge’s power to decide cases or controversies and to receive a salary for such work, as well as the forfeiture of any pension, benefits, and opportunity to serve on judicially related panels such as a judicial council. Displacing a caseload because of illness or a backlog is not the same as permanent removal as the result of a successful impeachment and conviction. Acknowledging that judicial councils might make administrative decisions curtailing a judge’s responsibilities does not mean that judges lose their titles or have been rendered permanently disabled from discharging their constitutional duties as federal judges. Judicial councils have administrative responsibility for the smooth functioning of a court system, and the councils’ managerial obligations must necessarily include the power to move caseloads and sometimes diminish them to ensure orderly administration. While it may be difficult to draw a bright line between administrative convenience and outright removal, it is clear that removal through impeachment has a distinct meaning and that what happened to Judge Chandler was not, in intent or effect, the functional equivalent of removal through impeachment. Equally important, the administrative power wielded by the judicial councils should not threaten judicial independence. Although the framers explicitly discussed only the problem of judicial independence from the other branches, real judicial independence also rests on freedom from coercion by one’s fellow judges. Granting sitting judges the power to evaluate the propriety of allowing other judges to retain their office certainly has the potential to inject an element of intimidation that, no doubt, can threaten not only collegiality among judges but also independent judicial decision-­making itself.91 The point is that the power to remove or even the authority to initiate a removal injects insecurity among those targeted by any such power, and once those targeted officials feel compromised by the exercise of removal power, judicial independence is chilled, if not directly violated. An appellate court’s power to review lower court rulings is quite different from a special judicial tribunal’s power to make decisions about whether a lower court judge may formally remain in office. The appellate court’s review of lower court rulings merely directs lower courts on the proper application or interpretation of the governing law, but granting

102  chapter eight removal power to an appellate court inevitably suggests that it can retaliate against anything arguably improper a lower court judge has personally or professionally done. Consequently, the administrative action undertaken by the Tenth Circuit Judicial Council in Chandler was constitutional because the power it wielded did not send a signal to other judges in the circuit that personal animosity or partisan disagreements might lead to disciplinary actions. The council’s action merely indicated that sometimes a drastic but temporary action must be taken to ensure the speedy, efficient, and timely disposition of a district’s caseload.

The Judicial Disability Act of 1980 Whereas Chandler involved legislation empowering the judicial councils to deal solely with administrative matters relating to the federal courts, including sick or unusually slow judges, the Judicial Councils Reform and Judicial Conduct and Disability Act of 198092 authorized the judicial councils to investigate the professional conduct of and, where appropriate, to discipline, but not to remove, federal district and circuit court judges. The act provides that anyone can file a complaint against a federal district or circuit court judge with the clerk of the appropriate court of appeals.93 A special committee investigates complaints that cannot be resolved by the chief judge.94 When the special committee concludes that there is merit to a complaint, the judicial council is then directed to take appropriate action, which may include censure, reprimand, temporary suspension, and transfer of cases, but not removal from office.95 If the judicial council believes that it has uncovered grounds for impeachment, it is empowered to report its findings to the Judicial Conference of the United States, which, after an investigation, may report its findings to the House of Representatives.96 The constitutionality of this act does not turn, however, on formal separation of powers analysis. The Constitution does not expressly prohibit judicial self-­regulation: it defines judicial tenure as “during good behavior” and makes judges impeachable as “civil officers of the United States,” but it does not definitively answer (at least explicitly or clearly) whether judicial self-­regulation is appropriate to remedy misconduct falling short of an impeachable offense. Moreover, a close look at the framing of the Constitution suggests at most that impeachment is the sole political mechanism for judicial discipline and removal. Otherwise, the framers did not discuss the propriety of judicial self-­regulation or disciplinary mechanisms for misbehavior that was bad but not impeachable. The lack of clarity on whether the framers knew about or intended to reject scire facias judicial removals—­that is, the English practice under which judges could remove other judges for misconduct—­makes the textual silence on

impeachment as means of removing impeachable officials  103 the propriety of judicial self-­regulation a dubious basis to bar Congress from considering its authorization. Consequently, functionalism seems better suited for addressing the constitutionality of the Judicial Disability Act. This approach recognizes that proposals for judicial self-­regulation are more attractive today than at any previous time in our history because of increased public demands for official accountability, greater judicial capacity (and reduced legislative ability) to perform a policing function, and the increased complexity of quality control in a vastly larger judiciary subjected to a much broader range of ethical considerations. Moreover, functional analysis allows Congress to authorize judicial self-­regulation within the bounds of a balancing test that the Supreme Court has used to settle separation of powers disputes that the Court cannot resolve on more categorical historical or textual grounds.97 Under this test, Congress may authorize a system of judicial self-­regulation as long as it does not undermine the judiciary’s ability to discharge its constitutional functions, or as long as any risk posed to judicial power is outweighed by some other constitutional value that Congress is empowered to protect, such as judicial integrity. Thus, the constitutionality of the act depends on whether it seriously threatens individual judicial independence or expands judicial powers at the expense of the other branches. The first major concern about the act is that the prospect of judges evaluating each other’s integrity risks chilling to an extreme degree an individual judge’s exercise of independent judgment as a matter of fairness to litigants. This concern is, however, misplaced for two reasons. First, temporary suspension as authorized by the act is not the functional equivalent of removal as the framers understood that concept. Critics might counter, though, that it is unfair to use functional analysis to uphold suspending a judge through some means other than impeachment by making recourse to a formal argument about the term removal. The point is that these approaches are analytically incompatible: functional analysis calls for balancing the likely benefits of a government practice against its potential threat to constitutional values, whereas formal analysis treats explicit constitutional structure and values as inviolate. Formalism would view, for example, one constitutional ideal as the framers’ desire to maximize judicial independence by making impeachment the only permissible mechanism for judicial removal and discipline. But the act is not designed to sanction judges’ impeachable misconduct. The Constitution sets forth removal as a disciplinary mechanism for the commission of impeachable offenses. The act aims, however, to establish a special procedure for sanctioning misconduct that does not rise to the level of impeachable conduct. This conclusion is reinforced by Congress’s explicit decision to exclude judicial removals as a permissible sanction in the act.98

104  chapter eight Second, the extent to which the act creates a realistic threat that individual chief judges and judicial councils might use their disciplinary powers to chill the independence of individual judges depends on how much the judiciary may be trusted to protect the values of judicial independence and integrity in each disciplinary hearing. The practice under the act to date suggests this risk is more hypothetical than real.99 The vested interests of federal judges in making judicial removal as difficult as possible and in preserving the general perception of the integrity of the federal judiciary have thus far prevented the act’s disciplinary process from being overused. Yet, this outcome suggests that another potential danger of the act is that the judicial councils might be lenient on some judges and allow some misconduct to go unpunished. Even so, the fact that the judicial council’s recommendations do not bind Congress in any way suggests that this latter risk at least is not an impediment to the impeachment process. The act also does not expand nor alter the supervisory authority of the president or Congress over the federal courts—­the president by virtue of his nomination and prosecution powers and Congress through its powers to confirm judges and to regulate federal jurisdiction. Both the substantive judgments authorized by the act and the procedures for its enforcement are to be designed by the judiciary. Moreover, the act’s provision authorizing the judicial conference to report possible impeachable misconduct to the House of Representatives does not empower it to do something it would be unable to do in the act’s absence. Even if this provision did not exist, federal judges would have the same power as anyone else to complain to the House that there are grounds for impeaching a judge (or some other impeachable official). If the act codifies something that could otherwise legitimately occur, then the act is, at least to that extent, constitutional. Nor does the Constitution require the House to perform alone all investigatory work for an impeachment. As did the Independent Counsel Act’s provisions, the Judicial Disability Act simply provided a reporting mechanism for misconduct rather than a substitute for impeachment.

Chapter Nine THE SCOPE OF IMPEACHABLE OFFENSES

I

n attempting to persuade the House of Representatives to impeach Justice William O. Douglas in April 1970, then-­representative Gerald Ford maintained that an impeachable offense “is whatever a majority of the House [considers it] 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.”1 Numerous commentators have taken issue with this statement, which candidly concedes that impeachments may be motivated or resolved by political concerns.2 Yet, Ford’s observation captures the practical reality of impeachment—­that we cannot be sure for what grounds particular officials may be impeached until the House has taken action against them. We cannot be confident about whether something may become the basis for impeachment until it actually has. This is what Ford was saying. The major disagreement is not over whether impeachable offenses should be strictly limited to indictable crimes,3 but rather over the range of nonindictable offenses on which an impeachment may be based.4 The text and the history of the impeachment clauses provide some useful insights into the scope of impeachable offenses. First, the Constitution provides that “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.”5 The Constitution defines treason as “consist[ing] only in levying War against [the United States], or in adhering to their Enemies, giving them Aid and Comfort.”6 Bribery has also been understood as encompassing an indictable crime, even though Congress did not make it an indictable crime until 1790.7 Next, we know that in the English experience prior to the drafting and ratification of the Constitution, impeachment was considered a political proceeding, and impeachable offenses were known as political crimes. For instance, Raoul Berger found that the English practice treated “[h]igh crimes and misdemeanors [as] a category of political crimes against the state.”8 Berger supported this, finding with quotations from relevant periods in which the speakers used terms equivalent to political and against the state to identify the distinguishing characteristics of an impeachable event.9 In England, the critical element of injury in an impeachable

106  chapter nine offense was injury to the state.10 The eminent legal historian, William Blackstone, traced this peculiarity to the ancient law of treason, which dis­ tinguished “high” treason, which was disloyalty against some superior, from “petit” treason, which was disloyalty to an equal or an inferior.11 According to legal scholar Arthur Bestor, “[t]his element of injury to the commonwealth—­that is, to the state and to its constitution—­was historically the criterion for distinguishing a ‘high’ crime or misdemeanor from an ordinary one.”12 In short, the English practice involved a difference of degree, not a difference of kind, separating] ‘high’ treason from other ‘high’ crimes and misdemeanors[,and] [t]he common element in [English impeachment proceedings] was [the] injury done to the state and its constitution, whereas among the particular offenses producing such injury some might rank as treasons, some as felonies and some as misdemeanors, among which might be included various offenses that in other contexts would fall short of actual criminality.13

Third, the framers and ratifiers apparently shared a common understanding of impeachment as a political proceeding and impeachable offenses as political crimes.14 The delegates at the constitutional convention were intimately familiar with impeachment in colonial America, which, like impeachment in England, had basically been a political proceeding. Although those delegates primarily focused on the offenses for which the president could be impeached and removed, they generally agreed that the president could be impeached only for so-­called “great” offenses.15 Drawing in part upon their understanding of the kinds of offenses for which people may be impeached in England, various delegates gave examples of the types of conduct that they felt justified impeachment. For instance, George Mason objected to limiting impeachment to treason and bribery, because he thought impeachment should reach “attempts to subvert the Constitution.”16 He recommended that the delegates include “maladministration” as an impeachable offense.17 Mason referred approvingly to the contemporary impeachment of Warren Hastings—­ formerly the governor-­general of India—­as based not on treason but an attempt to “subvert the Constitution.”18 James Madison responded that “maladministration” was “so vague a term [as to] be equivalent to tenure during the pleasure of the Senate[.]”19 Madison preferred the phrase “high crimes and misdemeanors” as an alternative that would encompass attempts to subvert the Constitution.20 Hence, the debates at the constitutional convention suggest that impeachable offenses were not limited to indictable offenses, but included abuses against the state. The ratification debates support the conclusion that “other high Crimes and Misdemeanors” were not limited to indictable offenses but rather included great offenses against the federal government. For example, delegates

the scope of impeachable offenses  107 to state ratification conventions often referred to impeachable offenses as “great” offenses, and they frequently spoke of how impeachment should apply if the official “ ‘deviates from his duty’ ”21 or if he “ ‘dare to abuse the powers vested in him by the people.’ ”22 In The Federalist Papers, Alexander Hamilton agreed, observing that “[t]he subject [of the Senate’s] jurisdiction [in an impeachment trial] are those offenses 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.”23 Hamilton commented further that the impeachment court could not be “tied down” by strict rules, “either in the delineation of the offense by the prosecutors [the House of Representatives] or in the construction of it by the judges [the Senate].”24 In short, Hamilton too believed that impeachable offenses comprised a unique set of transgressions that defied neat delineation. Justices James Wilson and Joseph Story expressed agreement with Hamilton’s understanding of impeachment as a political proceeding and impeachable offenses as political crimes. In a series of lectures on the new Constitution given immediately after his appointment to the Supreme Court, Justice Wilson referred to impeachments as involving, inter alia, “political crimes and misdemeanors.”25 Justice Wilson understood the term high describing “Crimes and Misdemeanors” to mean “political” almost certainly in the same sense as Hamilton had. Similarly, Justice Joseph Story recognized the unique political nature of impeachable offenses: “The jurisdiction is to be exercised over offences, which are committed by public men in violation of their public trust and duties. Those . . . duties are, in many cases, political. . . . Strictly speaking, then, the power partakes of a political character, as it respects injuries to the society in its political character.”26 Justice Story also viewed the penalties of removal and disqualification as “limiting the punishment to such modes of redress, as are peculiarly fit for a political tribunal to administer, and as will secure the public against political injuries.”27 Justice Story understood “political injuries” to be “[s]uch kind of misdeeds . . . as peculiarly injure the commonwealth by the abuse of high offices of trust.”28 In much the same manner as Hamilton, Justice Story believed that the framers crafted the federal impeachment process as if there would be a federal common law on crimes from which future Congresses could draw the specific or particular offenses for which certain federal officials could be impeached. Justice Story explained that “no previous statute is necessary to authorize an impeachment for any official misconduct.”29 Nor, in Justice Story’s view, could such a statute ever be drafted because “political offenses are of so various and complex a character, so utterly

108  chapter nine incapable of being defined, or classified, that the task of positive legislation would be impracticable, if it were not almost absurd to attempt it.”30 The implicit understanding shared by Hamilton and Justice Story was that subsequent generations would have to define on a case-­by-­case basis the political crimes comprising impeachable offenses to replace the federal common law of crimes that never developed. The other important question is how to identify the nonindictable offenses for which certain high-­level government officials may be impeached. This task is critical for providing notice to impeachable officials as to the conditions of, and for narrowing in some meaningful fashion, the grounds for their removal. The challenge is to find contemporary analogues to the abuses against the state that authorities such as Hamilton and Justices Wilson and Story viewed as suitable grounds for impeachment. On the one hand, these abuses may be reflected in certain statutory crimes. At least one federal criminal statute—­ the bribery statute31—­ codifies an impeachable offense because bribery is expressly designated as such in the Constitution. Violations of other federal criminal statutes may also reflect abuses against the state sufficient to subject the perpetrator to impeachment, insofar as the offenses involved demonstrate serious lack of judgment or disdain for the law and their commission disables the person in office. In other words, there are certain statutory crimes that, if committed by public officials, reflect, in Congress’s estimation, such lapses of judgment, breaches of the public trust, and disregard for the pub­ lic welfare, the law, and the obligations or prestige of the office held, that the occupant may be impeached. On the other hand, not all statutory crimes demonstrate unfitness for office. For example, a president’s technical violation of a law making jaywalking or speeding a crime “obviously would not be an adequate basis for presidential impeachment and removal.”32 Moreover, it is equally obvious that some noncriminal activities, such as “[a] deliberate presidential decision to emasculate our national defenses or to conduct a private war in circumvention of the Constitution,” may constitute nonindictable, impeachable offenses.33 The full range of such political crimes defies specification because it rests on the circumstances under which the offenses have occurred (including the actor, the forum, and the offensive act) and on the collective political judgment of Congress. For example, the different duties of impeachable officials might justify different bases for their respective impeachments. In the case of federal judges, the good behavior clause meant to guarantee not that they may be impeached on the basis of a looser standard than the president or other impeachable officials, but rather that they may be impeached on a basis that takes into account their special duties or functions. Thus, a federal judge might be impeached for a particularly controversial law

the scope of impeachable offenses  109 review article or speech, because these actions undermine confidence in the judge’s neutrality and impugn the integrity of the judicial process. In contrast, an executive official who has done the same thing may not be impeached, because neutrality is not necessarily important to his or her job, especially if the person has been charged with advancing a controversial policy agenda. Moreover, as a practical matter, an executive official’s decisions can be ratified or countermanded (and not just censured) by his superiors, and he may be further disciplined by the president (who may fire him) or the head of his department (if he is not the head of a department), or he may be impeached, which is a likely last resort. The differences in the political culture at the time the offense is committed and in the officials’ responsibilities, tenure, political accountability, and actions, explain how something might be an impeachable offense in one context but not in another or might be an impeachable offense in more than one context but only treated as such in one setting. The peculiar nature of political crimes, particularly the ways in which they need to be defined on an ongoing basis, is further illustrated through two common hypotheticals posed to and by impeachment scholars. The first is whether an official may be impeached for conduct in office that does not relate to his or her formal responsibilities. Resolving this dilemma requires understanding why political crimes or abuses against the state are impeachable offenses at all. The answer is that someone who holds office also holds the public’s trust, and an officeholder who violates that trust effectively loses the confidence of the people and, consequently, must forfeit the privilege of holding at least his or her present office.34 In this context, conduct that may plainly be unrelated to the responsibilities of a particular office, such as murdering a spouse in a jealous rage, may still relate to an official’s capacity to fulfill the functions of that office and to hold the people’s trust. Hence, the Congress understood that Harry Claiborne’s commissions of income tax fraud may not have been directly related to, nor even influenced his performance on, the district court bench, but nevertheless justified his impeachment and removal because his misconduct showed disdain for federal law and fully robbed him of the moral authority to discharge his formal obligations. In contrast, Congress concluded that William O. Douglas’s eccentricities, including his promiscuity, were not impeachable offenses, even though they offended many people. The offense in question was not pertinent to Justice Douglas’s competence or integrity in discharging the duties of his office. Yet, it is easy to imagine that a president who murdered someone in a jealous rage committed an impeachable offense. Even if such a crime were unrelated to the president’s constitutional duties, his criminal act considerably cheapens the presidency, destroys his credibility with the other branches (and other nations, for that matter), and shows such lack

110  chapter nine of respect for human life and disdain for the law (which he is sworn to enforce faithfully) that Congress could reasonably conclude that he had seriously impaired his effectiveness and trustworthiness to remain in office. This seems to be the case for particularly heinous or morally reprehensible acts, such as rape and sexual harassment. The second hypothetical is more difficult. It involves wrongdoing com­ mitted before one assumes office. Prior to 2010, it was noteworthy that no one had ever been impeached, much less removed from office, for something he or she did prior to assuming an impeachable position in the federal government. No doubt, anyone impeached on such a basis could argue that Congress’s consistent failure to bring an impeachment on this ground indicates that Congress has never considered misconduct prior to entering federal office to constitute an impeachable offense. One could further argue that this failure, combined with the consistent congressional practice of bringing impeachments only against officials for their wrongful acts in office, established the principle that federal impeachments are limited to the wrongful conduct of impeachable officials committed while they were in office. Moreover, impeaching someone for something they did in their private life prior to entering public office conceivably frustrates the framers’ plan to preclude the impeachments of private citizens. But the fact that no one has ever been impeached on this basis is irrelevant. Congress’s failure to impeach someone for something they did prior to entering federal office is not surprising, especially when one considers that this situation is likely to be quite rare and that, even when it arises, Congress is bound to have great difficulty in marshaling sufficient political support to proceed with an impeachment. Indeed, if Congress’s failure to bring certain kinds of impeachments permanently precludes their initiation, then Congress could never impeach someone on grounds that any reasonable person would accept as legitimate, such as an impeachable official’s commission of a murder while in office. Moreover, the dividing line between the nonimpeachable offenses of private citizens and the impeachable offenses of certain federal officials is not so neat: earlier I discussed the propriety of impeaching people who had resigned from or left office, and it is easy to imagine instances in which impeachable offenses could be based on present misconduct consisting of fraudulent suppression or misrepresentation of prior misconduct. Particularly in cases in which an elected or confirmed official has lied or committed a serious act of wrongdoing to get into their present position, the misconduct that was committed prior to entering office clearly bears on the integrity of the way in which the present officeholder entered office and the integrity of that official to remain in office. The problem is further complicated, however, by the fact that it may manifest itself in two different ways, each requiring a separate analysis

the scope of impeachable offenses  111 for determining whether an impeachable offense is involved. First, the public could elect, or the Senate could confirm, an official, even though it knew that he or she had done something wrong. The only reason for trying to impeach someone in this circumstance is the perceived need for Congress to express its independent judgment that the official in question is not fit for office and should be punished. The difficulty is that it is unclear how the nation has been injured or the public trust has been violated when the electorate or the Senate was fully informed of the misconduct and still elected or confirmed the person. If the impeachment process aims to remove people to protect the public trust, that goal seems to have become moot when the public has passed on (or even ratified) the conduct involved. No matter how serious the offense involved, it is hard to see how an impeachment could be successfully pursued in a case in which Congress is trying to impeach someone for an act that the Senate knew about at the time it confirmed the person. If the conduct made known to the electorate or the Senate was committed in an elected or confirmed official’s private capacity prior to his or her election or confirmation, it is even less clear how the interests protected by the impeachment process are implicated. In the latter circumstance, all that can be safely said is that, as a matter of common sense and good policy, Congress may wish to take into consideration the information made public during the election or confirmation and the nature of the alleged offense involved during its deliberations on impeachment, because a successful impeachment ultimately depends on the credibility of Congress’s claim that it is acting in the best interests of the people, who may have ratified or at least expressed no disapproval of the prior (mis) conduct. Thus, it is conceivable that one ground for not re-­impeaching Alcee Hastings was that his election to Congress arguably ratified his misconduct. The other problematic circumstance is when the public or the Senate did not know about the misconduct of an official prior to his or her election or confirmation. In this situation, Congress could claim that something akin to voter fraud occurred—­for instance, as the house managers successfully argued, Thomas Porteous’s defrauding the Senate in his confirmation hearing; that the integrity of the electoral or confirmation process is involved; and that it has a fiduciary obligation to remedy the situation by conducting an impeachment to put into effect what it or voters or the appointing authority likely would have done had any group been fully advised or to determine the official’s continued fitness to serve in light of the new data. The kinds of factors Congress might consider in determining the existence of an impeachable offense are the seriousness of the misconduct, its timing, the relevance of the offense to the election or confirmation, the link between a misdeed and an office, and the

112  chapter nine proximity of the next relevant election (Congress might prefer to let the voters decide, if possible). For example, if the public elected a president and the media later found out that prior to the election he had been a Ku Klux Klan member who had committed numerous civil rights violations, Congress could in good faith find that the suppression of this data would have materially altered the election for the presidency. The fact that Congress refused to impeach Justice Hugo Black under similar circumstances is irrelevant. To be sure, the initial newspaper report that he had been a member of the KKK as a young lawyer occurred in the midst of his confirmation hearings. In his only public statement on the issue, Justice Black gave a short radio address in which he admitted that he had been a member only for a short while during his youth and that he did not intend ever again to talk about the issue publicly. Even though there were threats of impeachment leveled against Justice Black, nothing came of them.35 It is clear, however, from subsequent events, including the civil rights movement and the more widespread disdain today for the KKK or its agenda, that reports of membership or affiliation with the Klan or similar groups would, in the future, defeat anyone nominated to the federal bench or prompt an impeachment investigation against any impeachable officials. In any event, constitutional safeguards apply to the impeachment process and should circumscribe congressional efforts to define political crimes. The Constitution includes several guarantees to ensure that Congress will deliberate carefully prior to making any judgments in an impeachment proceeding: (1) when the Senate sits as a court of impeachment, “they shall be on Oath or Affirmation”;36 (2) at least two-­thirds of the Senators present must favor conviction in order for the impeachment to be successful;37 and (3) in the special case of presidential removal, the chief justice must preside so that the vice-­president, who otherwise normally presides, is spared from having to oversee the impeachment trial of the one person who stands between him and the presidency.38 Three other safeguards derive from the nature or structure of the federal political process. First, members of Congress seeking reelection have a political incentive to avoid any abuse of the impeachment power. The knowledge that they may have to account to their constituency may lead them to deliberate cautiously on impeachment questions. Second, the cumbersome nature of the impeachment process makes it difficult for a faction guided by base personal or partisan motives to impeach and remove someone from office. It is more likely that a faction will block impeachment or removal than steer the impeachment or removal of a particular official. Third, as with any other decision it must make in an impeachment, Congress must be sure that its judgments are acceptable to, or will be respected by, key leaders or decision-­makers in the other

the scope of impeachable offenses  113 branches or face the prospect or onset of a constitutional crisis. Thus, these structural and political safeguards help to ensure that “congressional calculations of the impeachability of certain misconduct will be based not on ‘mere policy difference’ but rather careful balancing of the personal and short-­and long-­term institutional interests at stake.”39

Chapter Ten THE PROPER PROCEDURES FOR IMPEACHMENT PROCEEDINGS

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he four most significant procedural issues raised in impeachment proceedings have been (1) whether a Senate impeachment trial is more like a criminal or civil proceeding for purposes of determining the appropriate burden of proof; (2) whether any special privileges apply to impeachment proceedings; (3) what rules of evidence, if any, should be applied in impeachment hearings, particularly in Senate impeachment trials; and (4) the propriety of the Senate’s using a special trial committee to take testimony and receive evidence. Clarifying each of these questions is helpful for either giving needed guidance to the participants, including the much-­maligned Senate, or showing that impeachment trials are defective for reasons that cannot be resolved without radically revising the process.

The Applicable Burden of Proof The degree to which an impeachment proceeding is analogous to a criminal or civil trial is important for determining the applicable burden of proof. If impeachment is more like a criminal trial, then the appropriate burden for establishing the guilt of the impeached official would be beyond a reasonable doubt, whereas, if impeachment more closely resembles a civil trial, then the proper burden of proof is a preponderance of the evidence. Both the language and the structure of the Constitution suggest, however, that an impeachment trial is neither a criminal nor a civil proceeding. On the one hand, the Constitution expressly limits the punishments for impeachment to removal and disqualification from office, punishments that are unavailable in any other proceeding in our legal system.1 In addition, the Constitution does not entitle the target of an impeachment the right to a jury2 or to counsel; the president may not pardon a person convicted in an impeachment trial (whereas he is able to pardon any other convicted criminal);3 the federal rules of evidence do not apply in an impeachment trial; and a conviction does not require unanimous agreement among the senators sitting in judgment.4 On the other hand, the impeachment clauses include at least two serious crimes—­treason

the proper procedures for impeachment proceedings  115 and bribery—­as impeachable offenses.5 Also, impeachment is lumped together with criminal proceedings in other sections of the Constitution.6 If a Senate impeachment trial is, as the relevant provisions suggest, an unusually hybrid proceeding, then the burden of proof required for a conviction should be fashioned accordingly and, thus, need not be identical to the criminal or civil burden of proof. Indeed, a hybrid of the criminal and civil burdens of proof may be desirable, because neither a “preponderance of the evidence” standard nor a “beyond a reasonable doubt” standard perfectly fits the impeachment setting. Too lenient a proof standard would allow the Senate to impose the serious punishments for impeachment “even though substantial doubt of guilt remained.”7 Too rigid a standard might allow an official to remain in office even though the entire Senate was convinced he or she had committed an impeachable offense.8 The solution to this dilemma is to balance these concerns. In his famous treatise on the impeachment process, Charles Black argued that [t]he essential thing is that no part whatever be played by the natural human tendency to think the worst of a person of whom one generally disapproves, and the verbalization of a high standard of proof may serve as a constant reminder of this. Weighing the factors, I would be sure that one ought not to be satisfied, or anything near satisfied, with the mere “preponderance” of an ordinary civil trial, but perhaps must be satisfied with something a little less than the “beyond reasonable doubt” standard of the ordinary criminal trial.  .  .  . “Overwhelming preponderance of the evidence” comes perhaps as close as present legal language can to denoting the desired legal standard.9

In short, the standard of proof in an impeachment trial should be a hybrid of the standards of proof in civil and criminal trials to accommodate the hybrid nature of impeachment trials. Even if the Senate could reach some consensus on which burden of proof to apply, there is the additional challenge of figuring out how to enforce the chosen burden on each senator. The intractability of this problem has led the Senate to adopt the practice of allowing senators to follow whatever burden of proof they each think is best.10 This practice can often work, however, to the disadvantage of all of the participants in an impeachment trial by precluding them from knowing in advance what burden of proof the Senate will actually apply.

The Applicability of Executive Privileges in Impeachment Proceedings The debate over whether the president should be allowed to invoke any special privileges in an impeachment proceeding typically turns on

116  chapter ten whether one wants a strong or weak president. For example, Charles Black suggested that the president should generally enjoy an absolute “privilege of withholding from other branches of government the tenor and content of his own conversations with his close advisors in the White House.”11 Black explained that, even in the impeachment context, “upholding [an absolute executive privilege] [is] essential to the efficacious and dignified conduct of the presidency and to the free flow of candid advice to the president.”12 He suggested further that such a privilege would also allow the president to protect himself from overreaching by either of the other two branches. Yet, both constitutional history and structure suggest that an impeachment proceeding is precisely the context in which the president should not be able to assert superiority over Congress. The framers never evidenced any desire that the president should have the authority or means by which to thwart an impeachment proceeding. Indeed, meaningful separation of powers suggests that “[t]he political efficacy of presidential assertions of executive privilege is perhaps most limited in the context of . . . impeachment proceedings.”13 John Quincy Adams recognized that it would be a “mockery . . . to say that the House should have the power of impeachment extending even to the president . . . and yet to say that the House had not the power to obtain the evidence and proofs on which [his] impeachment was based.”14 The same should hold true for the Senate’s power to try impeachments. In addition, the House Select Committee’s approval of the third article of impeachment against Richard Nixon15 could be construed as confirming congressional authority to make assertions of executive privilege that thwart impeachment proceedings the grounds for an impeachment article. The relative strength of an executive privilege claim depends, however, on the context in which and the bases on which it is asserted. For example, in United States v. Nixon,16 the Supreme Court held that in a criminal trial a president’s claim of executive privilege is qualified by the basis on which he asserts it and by the need of the other party for the evidence subpoenaed.17 Yet, in a presidential impeachment, the grounds for the assertion is virtually irrelevant, given that the whole point of the proceeding is to determine his fitness to remain in office, which would obviously encompass testing the soundness of his asserted reasons for his alleged misconduct. The resolution of this central issue may require the president to share with the House, the Senate, or the chief justice highly sensitive information regarding executive branch operations, or to face the consequences for not doing so. The president’s concerns about national security and excessive congressional oversight may be alleviated by requiring Congress to show relevance prior to forcing the president to divulge certain information. If the president declines to share the information after

the proper procedures for impeachment proceedings  117 one or both chambers of Congress show its relevance, he risks being impeached for refusing to comply with a lawful congressional request or subpoena. If the president lacks confidence in Congress’s procedures for maintaining the confidentiality of certain material, he can ask Congress to use a different procedure. But the president’s lack of confidence in Congress’s ability to preserve confidential information is not a sufficient reason for withholding information Congress is entitled to consider in discharging its constitutional duties to investigate and conduct hearings into his wrongdoing. By its very nature, the impeachment process is reserved for Congress to demand an accounting from the president regarding alleged abuses of his power. The framers explicitly rejected the British practice of insulating the king from impeachment. Instead, they made the president impeachable in part to ensure that he would not be above the law.18 Allowing the president to withhold information from Congress on the basis of an assertion of privilege undercuts that goal, because he then could hinder the only constitutionally authorized process by which Congress may hold him accountable for his misconduct.

The Appropriate Rules of Evidence for Impeachment Trials It is unnecessary to make any particular rules of evidence applicable to impeachment proceedings. Both state and federal courts require special rules of evidence to make trials more efficient and fair or to keep certain evidence away from a jury, whose members might not understand or appreciate its reliability, credibility, or potentially prejudicial effect.19 The concerns leading to the use of special rules of evidence in state and federal courts do not, however, apply to impeachment trials. An impeachment trial is not the usual kind of trial, nor does it involve a typical jury. Rather, impeachments are extraordinary hearings administered by a sophisticated and politically savvy body—­the Congress of the United States. As Charles Black suggested, “the House and the Senate ought to hear and consider all evidence which seems relevant, without regard to technical rules.”20 In the House, the need for a thorough investigation is paramount, and the risk of error is minimal, because the House has no punitive authority. Once the matter gets to the Senate, which does have the power to impose special punishments, the risk of error may be greater, but, as Black argued further, “Senators are in any case continually exposed to ‘hearsay’ evidence; they cannot be sequestered and kept away from newspapers, like a jury. If they cannot be trusted to weigh evidence, appropriately discounting for all the factors of unreliability that have led to our

118  chapter ten keeping some evidence away from juries, then they are not in any way up to the job, and ‘rules of evidence’ will not help.”21

The Constitutionality of the Senate’s Use of Trial Committees Given the likelihood of the Senate’s continued reliance on trial committees in the aftermath of the Supreme Court’s decision in Walter Nixon v. United States,22 the question of the constitutionality of impeachment trial committees still merits consideration. Walter Nixon set forth the basic argument against their constitutionality in his lawsuit challenging his removal from office by the Senate. He contended that, in granting to the Senate “the sole Power to try impeachments,”23 the Constitution mandated the full Senate to conduct impeachment trials.24 Moreover, impeachment trials before the full Senate under specified conditions guarantee judicial independence to the fullest extent possible.25 The Senate’s practice to conduct impeachment trials before the entire body up until the Claiborne, Hastings, and Nixon impeachment trials “confirms that impeachment trials must be conducted before the full Senate.”26 By not conducting Walter Nixon’s impeachment trial before the full body, the Senate deprived him of the kind of fair impeachment trial conducted previously by the Senate. In Nixon’s view, the need for the full Senate to see and hear the live testimony of all witnesses was especially important in his impeachment trial because the perjury charges against him turned on credibility issues, particularly given his claim that the chief witness against him in his criminal trial had perjured himself.27 The fact that the trial committee members were far more “receptive” to Nixon’s claim than the full body arguably underscores the dangers of leaving seven-­ eighths of the Senate unexposed to the live testimony in the case.28 In Nixon’s opinion, eighty-­eight senators were uninformed in whole or in part about the merits of his defense. In spite of the appeal of some of these arguments, there is little or no reason to doubt rule XI’s constitutionality. First, the relevant constitutional text suggests that the Senate’s use of rule XI trial committees is permissible. The Constitution specifies only a few details of what is required for an impeachment trial, including (1) the senators voting on the impeachment must be on oath or affirmation,29 (2) two-­thirds of the senators present must concur in order for there to be a conviction,30 (3) the only permissible punishments that may be imposed upon a conviction on impeachment are removal from office and future disqualification,31 and (4) the chief justice of the United States should preside when the president is tried.32 The gap that is left about the rest of the specifics of

the proper procedures for impeachment proceedings  119 an impeachment trial is to be filled according to the discretion of the Senate, as provided in Article I, section 5 that “[e]ach House may determine the Rules of its Proceedings.”33 Second, Thomas Jefferson’s Manual of Parliamentary Practice,34 The Federalist Papers,35 and the states’ practices prior to the drafting and ratification of the Constitution36 reflect that, in designing the American impeachment process, the framers used the British procedure as a model37 and were aware of but did not reject the practice of the House of Lords in the seventeenth century to use committees to gather evidence for impeachment trials.38 Third, Nixon had a fair trial before the full Senate. The whole Senate reviewed de novo the committee’s limited findings of fact, two-­thirds of the Senate voted to convict Nixon on two articles of impeachment, and the full Senate exercised its judgment in Nixon’s impeachment (as it can in any impeachment trial) not to call witnesses other than the judge to testify before the entire body. Moreover, if the Senate’s use of trial committees were unconstitutional, a serious question would arise as to the constitutionality of each of the branches’ internal delegations. Like any other branch of the federal government, the Senate has the inherent or implied authority to make delegations to assist its discharge of its constitutional responsibilities. For example, the Senate routinely delegates fact-­finding authority to committees to assist it in rendering judgment on various matters over which it has exclusive control, such as treaty ratifications and judicial nominations; the Supreme Court has relied on special masters in cases of original jurisdiction;39 the federal district courts have delegated fact-­finding responsibilities to special masters and others “[f]rom the commencement of our Government”;40 and the House and the Senate have long used committees to gather evidence when acting as “the Judge of the Elections, Returns and Qualifications of its own Members”41—­a role in which the House or Senate is clearly acting as “a judicial tribunal.”42 If the Court ever were to hold rule XI unconstitutional because it violated an express limitation that only the full Senate could conduct any aspect of an impeachment trial, then the constitutionality of these (and many) other delegations is doubtful because they might conflict similarly with explicit grants of arguably nondelegable authority to the full membership of a branch to perform an important function.

Chapter Eleven JUDICIAL REVIEW OF IMPEACHMENTS

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he Supreme Court’s dismissal of Walter Nixon’s challenge to his conviction and removal from office is significant for two major reasons. First, the decision1 breathed life back into the much-­maligned political question doctrine—­the Court’s practice of claim­ ing textual authority, separation of powers concerns, or prudential reasons for not deciding the merits of certain constitutional questions.2 In doing so, the Court took a position on an issue—­the justiciability of impeachment challenges—­that had long divided constitutional scholars3 and is basic for understanding the limits of judicial review. Second, the Nixon decision recognized that in the area of impeachment, Congress may make constitutional law—­that is, make judgments about the scope and meaning of its constitutionally authorized impeachment function—­subject to change or overturning only if Congress later changes its mind or by a constitutional amendment. Thus, Nixon raised an issue about Congress’s ability, in the absence of judicial review, to make reasonably principled constitutional decisions. In an effort to provide some insight into the latter issue, this chapter explores the Nixon case’s ramifications on the relationship between the political-­question doctrine and the impeachment process.4 After reviewing Nixon, the chapter examines the decision’s constitutional underpinnings, considers the prospects for post-­Nixon judicial review of an impeachment challenge, and explores the implications for these prospects raised by the most serious kinds of impeachment challenges likely to arise in the aftermath of Nixon.

The Nixon Opinion Judge Nixon’s challenge to his conviction and removal from office by the Senate required the Supreme Court to consider for the first time the propriety of judicial review of impeachment proceedings. Six justices held Nixon’s claim to be a nonjusticiable political question. They found that the word try did not represent an “implied limitation on the method by which the Senate might proceed in trying impeachments.”5 Instead, they determined, based on their application of some of the factors for determining a political question set forth in Baker v. Carr,6 that the word try

judicial review of impeachments  121 “lack[ed] sufficient precision to constitute a judicially manageable standard of review of the Senate’s actions,”7 especially when contrasted with the three “precise” limitations set out in the Impeachment Trial Clause8—­ that Senate members shall “be on Oath or Affirmation,” that the chief justice shall preside at a presidential impeachment trial, and that conviction requires a vote of at least two-­thirds of the members present. Moreover, other language in the same clause—­giving the Senate the “sole” powers to try impeachments—­constituted a “textual commitment” to a coordinate branch. Finally, the Court emphasized that judicial review was inappropriate for several reasons: it would upset the framers’ decision to allocate to different forums the powers to try impeachments and to try crimes; it would disturb the system of checks and balances, under which impeachment is the only legislative check on the judiciary; and it would create a “lack of finality and [a] difficulty [in] fashioning relief.”9 The Court distinguished Powell v. McCormack10 on the basis that it involved a constitutional provision authorizing that “each House shall be the Judge of the Elections, Returns and Qualifications of its own Members,”11 which was limited by Article I, section 2. The latter provision “specified three requirements for membership in the House: The candidate must be at least 25 years of age, a citizen of the United States for no less than seven years, and an inhabitant of the State he is chosen to represent.”12 Hence, “[t]he decision as to whether a member satisfied these qualifications was placed in the House, but the decision as to what [they] consisted of was not.”13 In contrast, the Impeachment Trial Clause contained no separate provision that “could be defeated by allowing the Senate final authority to determine the meaning of the word ‘try.’ ”14 Concurring in the judgment, Justice Byron White, joined by Justice Harry Blackmun, thought the case presented a justiciable question, though in his view of the merits the Senate had “very wide discretion in specifying impeachment trial procedures,”15 so that as a practical matter a successful judicial challenge was unlikely. Still, Justice White believed that proper checks and balances were best preserved when Senate impeachment trials helped control the largely unaccountable judiciary, “even as judicial review would ensure that the Senate adhered to a minimal set of procedural safeguards in conducting impeachment trials.”16 The requirement that the Senate “try” impeachments created judicially manageable standards, which would be violated “[w]ere the Senate, for example, to adopt the practice of automatically entering a judgment of conviction whenever articles of impeachment were delivered from the House.”17 Concurring separately in the judgment, Justice David Souter agreed that the case presented a nonjusticiable political question, but he thought that this determination should be made on a case-­by-­case basis. If the Senate were to convict upon a coin toss, or (borrowing an example from

122  chapter eleven Justice White) upon a summary determination that the official was a “bad guy,” Justice Souter thought that, “judicial interference might well be appropriate.”18

Nixon’s Constitutional Underpinnings In challenging Nixon, constitutional scholar Rebecca Brown argued that separation of powers exists to protect individual rights, that judicial review is an integral part of separation of powers, and that the Nixon Court should therefore have “permit[ted] judicial review of the exercise of the impeachment power” to ensure that no individual right was being violated.19 The individual right at risk in an impeachment trial involved a federal judge’s potential loss of position, including the independence he or she is guaranteed by Article III. Nixon may also be problematic because the Court did not reconcile the apparent irony of its reviewing the contours of an area of political decision-­making for the sake of preserving it from judicial review in the name of nonjusticiability with its refusal to acknowledge that its deference may have turned on an implicit judgment that the Constitution simply granted the political actor broad discretion. In addition, the Court’s reliance on constitutional and prudential factors in dismissing Nixon’s claim as a political question may have cast doubt on the legitimacy of the Court’s inquiry. The concern is that the political question doctrine may have enlarged the judiciary’s role in deciding constitutional questions because it has allowed courts to use disingenuous analysis to reach the results it wants to reach or to ground constitutional decisions on a nonconstitutional basis.20 There are three reasons why these problems are not as serious as they might first seem. First, the Court referred to a finding of “nonjusticiab[ility]”—­a constitutionally compelled conclusion barring judgment on a dispute’s merits—­as the functional equivalent of discovering “a political question.”21 This reference may reflect a strategic decision to preserve a majority committed to avoiding the merits of the case despite widespread criticism of the political question doctrine. Some justices might not have minded that the latter doctrine was judicially created or has allowed consideration of the con­sequences of judicial review, whereas other justices might have felt more comfortable viewing their inquiry as being guided solely by the Constitution’s limits on justiciability. Even so, Nixon relied heavily on the textual, historical, and structural arguments supporting the Court’s finding of nonjusticiability.22 The Court found further that prolonged battles in the courts over an impeachment would create uncertainty about its finality and “what relief

judicial review of impeachments  123 a court may give other than simply setting aside the judgment of the conviction. Could it order the reinstatement of a convicted federal judge, or order the Congress to create an additional judgeship if the seat had been filled in the interim?”23 Hence, the Court’s opinion in Nixon also relied on prudential concerns related to the possible consequences of certain constitutional decisions. In short, Nixon does not bury the political question doctrine; rather, Nixon resuscitates it by clarifying its derivation from the Constitution and its sensitivity to the need for constitutional stability. Second, the idea that a federal court may have to exercise some degree of judicial review in order to determine the existence of a political question is hardly a reason to jettison the entire enterprise as disingenuous or too easily manipulated. For example, in explaining his willingness to reach the merits of Nixon’s claim in the D.C. Circuit, Judge Harry Edwards suggested that “ ‘[t]he lesson of Powell is that the Supreme Court may use judicial review to determine whether Congress followed the proper procedures for making the political decision committed to it by the Constitution. Powell does not allow overly intrusive judicial review, but rather allows review solely to ensure that Congress made the particular kind of political decision entrusted to it by the Constitution.’ ”24 Judge Edwards proceeded to find that Nixon’s challenge required the appellate court to determine the scope of the term try and, therefore, to reach a ruling on the merits of the lawsuit’s contentions.25 Yet, his characterization of Powell is a direct quote from an earlier article of mine, which, admittedly not as clear as it should have been, was meant to support a different conclusion. It recognized that, in determining whether a case poses a political question, a court may look to see if Congress is in fact exercising the power it claims to be using and is not trying to achieve an end it could have only achieved legitimately through the exercise of some other power.26 If Congress were using an inappropriate means to achieve a legitimate objective, then further judicial intervention would be permissible. Moreover, in a political question case, a court does not just look at the contours of a particular area of political decision-­making and decide that it will defer to any decision made within that sphere because it is constitutional; rather, a court exercises judicial review to determine the scope or boundaries of an area about whose subject matter it should not express any opinion. Hence, as a practical matter, Nixon reveals something significant about the political question doctrine in the impeachment context: it allows the Court to stand by mutely while the Senate exercises very poor judgment, whereas a holding deferring to the Senate’s actions as long as they were reasonable would have allowed judicial review of all impeachments to ensure that the Senate never acted foolishly or recklessly.

124  chapter eleven Viewed in this manner, the determination of a political question requires a court to make the kind of decision it must routinely make in adjudicating preliminary issues about the ripeness or mootness of a lawsuit, personal jurisdiction, standing, and advisory opinions. The obvious consequence of a decision finding absent at least one of the essential criteria for a lawsuit to qualify as a case or controversy is that a court dismisses the case without a decision on the merits, even though, in reaching such a conclusion, it must appreciate the nature of a particular dispute and speculate on the applicability of a wide variety of constitutional and prudential concerns. The kind of inquiry required to determine a political question is no less appropriate than any other preliminary inquiry undertaken in a federal case to determine the propriety of adjudicating its merits.27 To be sure, there is a subtle distinction between reaching the merits of a dispute because it falls within an area over which a court decides some political actor has extensive constitutional authority and not reviewing the substantive merits of a political actor’s decision because it is within a sphere about which a court may not express any opinion. Nevertheless, a finding of nonjusticiability is different from a court’s deciding that a wide realm of governmental behavior is constitutional, in that a determination of nonjusticiability forecloses a range of potential litigation and signals once and for all that there is no judicial remedy available for any official misconduct occurring within a certain area. Of course, a federal court needs constitutional authority to dismiss a constitutional case permanently without a ruling on its merits. Accordingly, the third argument favoring Nixon’s resuscitation of the political-­ question doctrine is that no other outcome is as compatible with the Constitution. If the national government in fact is one of “enumerated powers,” as Chief Justice Marshall observed in McCulloch v. Maryland,28 then it should follow that the federal judiciary is, like the other branches, subject to certain constraints, even self-­imposed ones. Yet, many of the critics of the political question doctrine seem uncomfortable with having any branch other than the judiciary declare what the Constitution means; they would prefer that federal judges have the final say on the constitutional limitations for each and every governmental action. No decision more clearly indicates, however, the fallacy of this notion than Nixon. It recognizes that the Constitution limits even federal judicial power. It suggests that the special duty of federal courts is to “say what the law is,” but that sometimes the law might be that a federal court should not decide the merits of a particular constitutional issue. Nor does the Constitution necessarily support the notion that it only has meaning as long as the judiciary is empowered to enforce all of its guarantees or limits. Judicial review may be necessary to make the enforce-

judicial review of impeachments  125 ment and vindication of various federal rights and limitations possible, but that acknowledgment does not establish a constitutional basis for judicial review over every case or controversy implicating the Constitution. As the Nixon Court acknowledged, judicial review over impeachment procedures frustrates the original constitutional scheme in which the framers foresaw impeachment as the only political check on the judiciary. The Court observed further that the parties had not offered “evidence of a single word in the history of the Constitutional Convention or in contemporary commentary that even alludes to the possibility of judicial review in the context of the impeachment powers.”29 The Court found this “silence” revealing, because it was at odds with “the several explicit references to the availability of judicial review as a check on the Legislature’s power with respect to bills of attainder, ex post facto laws, and statutes.”30 Moreover, the Court acknowledged the framers’ reasons for excluding any role for federal judges, including Supreme Court justices, as impeachment authorities. The framers wanted the body empowered to try impeachments to be sufficiently “numerous” and to have sufficient fortitude and public accountability to make the necessary policy choices in an impeachment.31 The framers also designed the impeachment process to protect impeachable officials from being tried more than once in the same forum for the same offense by preventing judges from being able to oversee an individual’s impeachment and criminal trials. Moreover, the framers sought to preclude the “eviscerat[ion]” of impeachment as a critical “ ‘constitutional check’ placed on the Judiciary by placing the final reviewing authority with respect to impeachments [in] the hands of the same body that the impeachment process is meant to regulate;”32 and to fashion explicit constitutional safeguards “to keep the Senate in check.”33 The framers believed that these protections, including dividing impeachment authority between the House and the Senate and the two-­thirds supermajority vote requirement for a conviction, would be sufficient to prevent the Senate from “usurp[ing] judicial power.”34 The critical problem is that allowing any level of judicial review of this unique mechanism is incompatible with both the judicial function and the framers’ objectives in designing the judicial impeachment process.

The Prospects for Judicial Review of Post-­Nixon Impeachment Challenges After Nixon, three possibilities exist for judicial review of impeachment challenges. The first is that the only justiciable challenges to impeachments are for violations of explicit constitutional constraints, while the second is

126  chapter eleven that judicial review of any impeachment challenge is never permissible. A third prospect is a compromise between the other two positions that would allow for judicial review of only the most extreme abuses of the impeachment power. The following section examines the arguments for and against each prospect.

Treating Violations of Explicit Constraints as Justiciable The principal argument supporting judicial review of certain impeachment challenges after Nixon is based on analogizing a case involving the House’s or the Senate’s deviation from an explicit constitutional constraint to Powell v. McCormack. In Nixon, the Court explained that it exercised judicial review in Powell to overturn the House’s decision not to seat Adam Clayton Powell as a representative based on certain alleged financial improprieties, because the House’s claim that its power to be [the Judge of its members’ qualifications] was a textual commitment of unreviewable authority [that] was defeated by the existence of [a] separate provision specifying the only qualifications which might be imposed for House membership. The decision as to whether a member satisfied these qualifications was placed with the House, but the decision as to what these qualifications consisted of was not.35

The Nixon Court held, however, that a separate constitutional provision did not defeat the Senate’s power to “try” impeachments as it saw fit. The Court identified four other explicit constitutional constraints on the impeachment power: the division of impeachment authority between the House and the Senate, a two-­thirds vote in the Senate for a conviction, the members of the Senate must be under oath, and the chief justice shall preside in a presidential impeachment trial.36 A court looking for the impeachment analogue to the judicially enforced provision in Powell may find justiciable the failure to comply with any of these explicit constraints on the impeachment power, because they each conceivably confine the discretion the House or the Senate is otherwise constitutionally authorized to exercise in discharging its respective impeachment functions. Such limited judicial review is based on the general need for federal courts to “say what the law is” as an indispensable guarantee of congressional compliance with the Constitution’s express limits. Such judicial review also identifies bright-­line or unambiguous rules that will both constrain the discretion of Congress and avoid manipulating results or sidestepping tough issues through the political question doctrine. If violations of explicit impeachment restraints are justiciable, the next step is to identify them. Sometimes this is easy, as with the division of impeachment authority between the House and the Senate and the require-

judicial review of impeachments  127 ments that the senators must be under oath in an impeachment trial, that at least two-­thirds of the Senate must concur on a conviction, and that the chief justice must preside at presidential impeachments. Although ignored by the Nixon Court, there are other such explicit constraints. One example is the need for the House to have a majority to impeach. Moreover, the clause limiting the Senate’s choice of punishments only after a conviction to removal and disqualification37 clearly restrains it from imposing any other sanction, such as imprisonment or death. In addition, Congress’s impeachment authority is to be exercised only against the president, the vice-­president, and “all Civil officers of the United States,”38 obviously precluding the House or Senate from exercising its respective impeachment power over a private citizen who has never worked a day in government service.

The Conceivable Nonjusticiability of Any Impeachment Challenge A second prospect after Nixon is that any challenge to the impeachment process is nonjusticiable. This position requires distinguishing Powell, which suggests,39 as the Nixon Court noted,40 that where a constitutional provision plainly restricts the discretion of a political branch, then a court may intervene to enforce compliance. One could distinguish Powell on the basis of the uniqueness of impeachment as a constitutional matter. The point is that judicial review, even in a case involving the violation of an explicit constitutional constraint, would undermine impeachment’s effectiveness as a check on executive and especially judicial abuse of power. After all, Powell did not involve what the Nixon Court recognized as “a situation in which judicial review would remove the only check placed on the Judicial Branch by the Framers.”41 Obviously, judicial review of presidential impeachments does not pose a similar conflict, because the judiciary has little or no vested interest, at least as an institution, in his remaining in office. Nevertheless, some judges may feel loyal to the president, since he appointed them. In short, Powell conceivably did not deal with the propriety of judicial review of a power the framers chose not to give to the judiciary because they felt judges could not be trusted with it. This position is supported by many of the same separation of powers concerns that led the Nixon Court to treat procedural challenges to the Senate’s trial process as nonjusticiable. For example, the Nixon Court thrice stressed that the unique function served by the impeachment process as the only legislative check on the judiciary would be “eviscerate[d]” by judicial review.42 This threat does not dissipate or diminish even if an explicit constraint is involved.

128  chapter eleven One arguably serious problem with this position is that it is based, as Rebecca Brown argues, on the erroneous presumption that “judicial review of [impeachment] procedures is equivalent to judicial determination of outcome.”43 A critical difficulty with this critique, however, is that it merely assumes that impeachment’s effectiveness as the only political check on judicial abuse of power is not weakened if it can be reviewed by the judiciary. Yet, judicial review of the impeachment process would give judges the last word on the propriety of the procedures for their own removals and, thus, the chance to make their own or their colleagues’ removals virtually impossible by ensuring that Congress could achieve such outcomes only through the most complex, time-­consuming ways. Nor is it inconceivable that judges might have a vested interest in making their removals as difficult as possible. The risk of self-­interested judicial review of judicial impeachments is irrelevant only if, like Brown, one trusts the judiciary more than Congress not to abuse its respective authority over impeachments.44 The problem with such faith is that the framers did not share it. The delegates’ decision to preclude the Supreme Court or any other federal judges from trying or hearing impeachments was based on their distrust of the judiciary to be impartial on such matters. The framers were well aware of several states, including Maryland, New York, North Carolina, and Virginia, that had explicitly provided for judges to participate in some fashion in those states’ respective impeachment processes. Nevertheless, Gouverneur Morris remarked that “no other tribunal other than the Senate could be trusted. The Supreme Court were too few in number and might be warped or corrupted.”45 Similarly, Roger Sherman took the position that Supreme Court participation in impeachment trials would be “improper . . . because the judges would be appointed by” the president and, therefore, partial to him.46 In The Federalist Papers, Hamilton explained that the framers believed that the special constraints on the impeachment power’s exercise, such as the political accountability of members of Congress and the division of impeachment authority between the House and the Senate, were meant to be a “complete security” against its abuse.47 In addition, it is not clear that the conflicts of interest the framers sought to avoid by precluding judges, including Supreme Court justices, from serving as the trial authorities for judicial removal and by providing for separate criminal and impeachment proceedings would have diminished significantly or disappeared if judicial review over a judicial impeachment were allowed. The framers also substituted the chief justice for the vice-­president in the impeachment trial of a president to preclude the former from presiding over the impeachment trial of the one official standing between him and succession to the presidency.48 Given the

judicial review of impeachments  129 framers’ efforts to avoid conflicts of interest in the administration of impeachment, it seems implausible that, if they had accepted or assumed the possibility of judicial review of impeachments, no one would have commented on the obvious conflict posed by allowing the chief justice to participate in the subsequent review of his decisions as the presiding officer of a presidential impeachment trial. Given the strong objections to the proposed impeachment process in the constitutional and state ratifying conventions,49 it is likely that, if anyone had expected judicial review of impeachments, that person would have objected to or commented on potential conflicts with the chief justice’s role. Moreover, it would have been unusual or novel for judges to have reviewed (as opposed to having participated as parts of the trial bodies in) impeachment actions, because judicial review of impeachment proceedings simply had not occurred prior to the Constitution’s drafting and ratification either in the states or in England. To be sure, the framers did not discuss judicial review much at all, but this was so because they were familiar with judicial review of written documents, including state constitutions and legislation, and, thus, expected there would be judicial review of statutory questions or constitutional challenges to legislation. Given that judicial review of impeachments would have been unprecedented for the framers, however, it is reasonable to believe that if they had wanted this to have become part of the constitutional design they would have had to make explicit provision for it or at least to have acknowledged or discussed the possibility explicitly. Indeed, it is possible to read the constitutional convention’s debates of August 27, 1787, as settling any question about the framers’ intentions to extend any kind of judicial authority, including judicial review, to impeachments. In the midst of debating the Supreme Court’s jurisdiction on August 27, 1787, the constitutional convention delegates “dropped ‘impeachment’ altogether from the list which later became, by stylistic revision, the list defining the Article III ‘judicial power.’ ”50 After initially agreeing to postpone considering whether to extend Supreme Court jurisdiction to “the trial of impeachments of officers of the United States,”51 the delegates considered the appropriate phrase or clause for accurately describing or designating the scope of the Supreme Court’s jurisdiction. James Madison “doubted whether it was going too far to extend the jurisdiction of the Court generally to cases arising under the Constitution, and whether it ought not to be limited to cases of a Judiciary nature.”52 After Dr. Johnson suggested “that the jurisdiction given [in the former phrase] was constructively limited to cases of a Judiciary nature,”53 the delegates agreed to drop consideration of extending the Court’s jurisdiction “in cases of impeachment.”54 The critical aspect of this debate is that it occurred in the midst of the

130  chapter eleven delegates’ consideration of which cases, for whatever reason, would fall within the jurisdiction of the Supreme Court. The framers took great pains to set forth as precisely as possible the kinds of cases they anticipated would fall properly within the Court’s jurisdiction—­those “of a Judiciary nature,” as both Madison and Dr. Johnson put it. Not surprisingly, given that the framers never regarded impeachments as constituting such cases, they balked at the prospect of including either “the trial of impeachments of officers of the United States” or “cases of impeachment” within the original or appellate matters that would fall with the jurisdiction of the Supreme Court. The fact that the framers understood that they would have had to make special mention of impeachments as falling within federal court jurisdiction in any manner makes complete sense, given that judicial participation in the impeachment process had always been explicitly provided for in other jurisdictions with which they were familiar and that judicial review of impeachments would have deviated from the prevailing practice of their times. That the framers declined to make the extension is consistent with the common understanding that, unless there were an explicit statement in the Constitution to the contrary, impeachments would remain, as they had always been up until then, cases of a unique nature not subject to judicial review. In addition, the prudential concerns—­particularly the lack of finality and the trouble with devising appropriate relief—­that led the Court to find nonjusticiability in Nixon apply equally to cases involving alleged violations of explicit impeachment constraints. Significantly, the Nixon Court used examples from presidential and judicial impeachments to explain how these prudential factors supported a finding of nonjusticiability.55 Given the unsettling prospect for many modern readers of an explicit constitutional violation without a judicial remedy, it may be helpful to examine more closely the degree to which the factors used for identifying a political question could support precluding any judicial review of an impeachment. Of special concern may be the extent to which judicial review is inappropriate in a presidential impeachment in which a conflict between the judiciary and the political process constitutionally authorized for its regulation is either not present or reduced. In fact, Article I states that the House “shall have the sole Power of Im­ peachment”56 and that the Senate “shall have the sole Power to Try all Im­ peachments.”57 In addition, the speech or debate clause,58 has been interpreted as precluding judicial review of the legitimate activities of legislators acting within their official duties, including impeachment.59 However, these provisions do not necessarily preclude judicial review because there may be other judicially enforceable limitations, such as the explicit constraints, on the impeachment power. Nor is the textual support for nonjusticiability settled by

judicial review of impeachments  131 the provision in Article I, section 5, that “[e]ach House may determine the Rules of its Proceedings.”60 As the Court has explained, “[E]ach house . . . may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained.”61 Thus, it is conceivable that, as previously suggested, violations of explicit constraints could be justiciable on the basis that those provisions, unlike the term try, spell out the terms or conditions of their enforcement. Other aspects of the Constitution counsel even more strongly against the justiciability of explicit constitutional violations in the impeachment context. First, impeachment is the only nonjudicial power that the framers expressly considered but declined to give to any part of the federal judiciary. As Justice Story explained, the framers viewed Congress as better equipped than the judiciary to deal with the difficult political issues raised in impeachments. He noted that the framers rejected giving the impeachment power to the judiciary because they believed that impeachment required “a very large discretion [that] must unavoidably be vested in the court of impeachment.”62 Justice Story explained further that the framers understood the power of impeachment as inherently political and vested the power solely with the House of Representatives, “where it should be, in the possession and power of the immediate representatives of the people.”63 He also regarded the sanctions available to the Senate in impeachment trials as “peculiarly fit[ting] for a political tribunal to administer, and as will secure the public against political injuries.”64 In other words, impeachments require skills incompatible with the judicial function. Second, impeachments are laced with issues incompatible with, and not easily narrowed for, judicial review. For example, it is difficult to settle on judicially manageable standards for reviewing the House’s or the Senate’s judgments on the scope of impeachable offenses. Such judgments depend in each case on the House’s or the Senate’s political judgment, the natures of the impeachable official’s duties and of the offense involved, and the circumstances under which the alleged misconduct was committed. Indeed, these difficulties led the Court of Claims in Ritter v. United States65 to dismiss as nonjusticiable Judge Ritter’s claim—­the first judicial challenge ever made against a federal impeachment—­that the Senate had improperly convicted him for nonimpeachable offenses. Nor is there a clear standard amenable to judicial review that federal courts could use to evaluate the propriety of the House’s or the Senate’s finding that certain misconduct actually constituted an impeachable political crime.66 Third, as the Nixon Court acknowledged,67 judicial review of impeachments undermines their finality. Judicial review of impeachments

132  chapter eleven might also lead to embarrassing conflicts between the Congress and the federal judiciary. No doubt, given contemporary concerns about avoiding the appearance of impropriety or conflicts of interest in judicial hearings, allowing the chief justice to participate in the judicial review of a president’s impeachment trial over which the chief justice had presided would be awkward, if not unseemly. More importantly, it would be confusing and humiliating and risk serious political instability at home and abroad if the Senate voted to remove the president and then a federal court countermanded that judgment. Yet another basis on which to distinguish Powell, either apart from or in addition to the uniqueness of impeachment, is that Powell has not been properly understood. One could argue that the real problem for the House in Powell was that none of its existing powers for disciplining current or prospective members fit Powell’s alleged financial improprieties. The House’s expulsion authority required a representative to have been seated and the concurrence of at least two-­thirds of its members;68 however, many members were not sure that an expulsion could be based on misconduct committed during a prior Congress, as would have been the case for Powell’s infractions, and, even if the House had such power, they were not sure they had the requisite number of votes.69 The other alternative—­the one chosen by the House—­was to exclude Powell, but this authority turned on Powell’s not having met the three standing qualifications for House membership. Although more than two-­thirds of the House voted to exclude Powell, they did so only pursuant to a vote on exclusion. The Court refused to assume that the vote would have been the same if it had been on the question of expulsion, which the Court noted was not a “fungible proceeding[]” with exclusion.70 Because the House chose to exercise its exclusion rather than its expulsion power, the Court declined to express any “view on what limitations may exist on Congress’s power to expel or otherwise punish a. member once he has been seated.”71 In his concurrence, Justice Douglas speculated that “if this were an expulsion case I would think that no justiciable controversy would be presented, the vote of the House being two-­thirds or more. But it is not an expulsion case. Whether it could have been won as an expulsion case, no one knows. . . . It well might be easier to bar admission than to expel one already seated.”72 In short, the House faced a no-­win situation in trying to punish Powell because his alleged misconduct fell outside of the existing House disciplinary mechanisms. This understanding of Powell could lead one to argue, as I have previously, that the Court there could [probably] not have interfered with the decision by [the House] to expel Representative Powell if [it] had followed the constitutional standards for

judicial review of impeachments  133 expulsion; however, the Court could step in where Congress used a procedure to accomplish impermissible ends. Powell indicates that while [the House] has full, complete, and sole power to exclude, it does not have the power to change expulsion into exclusion—­to turn one constitutional procedure for another.73

Given this understanding of Powell, judicial review of impeachments would be limited to determining whether the House or the Senate used impeachment to do something that it could only do under some other power, such as exclusion or expulsion. One could go further and argue that the Court in Powell was mistaken in its conclusion that “the qualifications for members of Congress had been fixed in the Constitution.”74 One could contend that these qualifications are not fixed, that they constitute instead an irreducible minimum to which the House could make an addition, if it chose to do so.75 This argument would be similar to the popular one leveled against Chief Justice John Marshall’s opinion in Marbury v. Madison,76 that he misread the allocation of original jurisdiction in Article III as being fixed rather than as being an irreducible minimum to which Congress could make additions through its authority to regulate federal jurisdiction. This argument is also similar to the contention being made by some of the proponents of state-­enacted limits on the numbers of terms a person can serve in either chamber of Congress—­that while the Constitution precludes Congress from adding to or changing the qualifications for a member of the House, it leaves each state the discretion to fix others. The relevance of these other arguments to judicial review of an impeachment challenge is that they conceivably demonstrate Powell’s erroneous reasoning and, thus, help to remove the case as an obstacle to barring judicial review of impeachments altogether. A problem with the latter reading of Powell, though, is that it does not preclude judicial review of an impeachment altogether. To be sure, it preserves judicial review for what would be extremely unlikely abuses of the impeachment power, but it implicitly accepts that all congressional powers have judicially enforceable limits, at least at the point at which one power is being improperly substituted for, or being exercised in the place of, another. Powell arguably followed this line of reasoning by suggesting that exclusion and expulsion could be used by the House for different purposes and that the bases for the House’s exclusion of Powell did not fit within the scope of that particular power. For many, an even more serious problem with the position that the Constitution precludes judicial review altogether is that it seems unlikely that the Court would ever abdicate an entire area of constitutional law to another branch. This is especially true with respect to checks and balances; in almost every other situation in which the Constitution allows

134  chapter eleven one branch to check another’s excesses or abuses, the Court has taken the position as a mediator, albeit sometimes with very limited authority. For example, the Court has never characterized congressional control of federal jurisdiction as involving a political question. Moreover, some of the areas in which the Court has found a political question, such as determining the appropriate time period for ratification of a constitutional amendment77 or whether a state government is republican in form,78 are not subject (at least as clearly) as the impeachment power to defeat by other plainly applicable clauses, such as the requirement of a supermajority vote for a conviction. Even in other areas often treated by scholars as comprising or involving nonjusticiable political questions, such as foreign affairs, the Constitution either provides no clear standard by which to measure the propriety of a branch’s political judgment (such as whether the situation declared to be a war by Congress was one) or explicitly provides for the involvement of more than one branch, which has in the past given rise to confusion among the political branches as to whose authority should govern and the need for the Court to act as arbiter.79 There are two tenable responses to the reluctance to abandon any judicial review of impeachments. First, the Court has yet to find an impeachment challenge to be justiciable. Regardless of what one thinks is the need for judicial review of impeachment challenges, the Court has never sanctioned it. Thus, as a practical matter, the Court has left the federal impeachment process for over two centuries to the complete, unreviewable discretion of the Congress. Second, the most worrisome kinds of impeachment abuses have yet to occur. Even if one were inclined to find the need for judicial review of impeachment challenges in extreme cases, the likelihood of such controversies ever arising is, for all practical purposes, nonexistent. If one were truly interested in knowing what Congress is likely to do with its impeachment authority in the absence of judicial review, one need look no further than the pages of history. The latter do not contain any of the nightmarish episodes imagined by proponents of judicial review of the impeachment process. Moreover, many of the constitutional restraints on Congress’s impeachment authority are self-­defining, such as the supermajority vote for conviction in the Senate, making it easy for the Senate to know what it must do at a minimum in order to convict an impeached official and to avoid obvious controversy. In addition, in many areas of constitutional law, particularly those that involve or are likely to involve political questions, informal accommodations are frequently reached that obviate the need for judicial review. The point is that oftentimes a political branch, if it senses opposition or resistance from the other or the possibility of meddlesome judicial review, will only proceed if it thinks it will win in the long run or exigent circumstances or principle give it no other

judicial review of impeachments  135 choice. Otherwise, it takes a less provocative course of action. As the next section suggests, this is true for the federal impeachment power.

The Propriety of Judicial Review for Extreme Abuses of the Impeachment Power To some, all of the difficulties with judicial review of impeachment might argue in favor of allowing it only in the most extreme cases—­that is, only the most minimal judicial review, around the edges of the process, makes sense. Otherwise, the Court needs to be prepared even in the case of a deviation from an explicit constraint to balance the need for judicial review against its consequences on constitutional stability. Despite the fact that this position attempts to preserve a relatively modest role for the Court in interpreting the impeachment clauses, it is not clear how the Court would distinguish extreme abuses of the impeachment power from violations of explicit constitutional constraints. If the Court did not confine itself to enforcing the latter, it is unclear precisely on what basis it would be acting and which limitations it would be enforcing. One serious counterargument to this position is that it premises judicial review on an unrealistic basis. Nor is this an inappropriate attitude to adopt in determining the propriety of judicial intervention.80 The history of the federal impeachment power shows, for example, that, even when attendance and preparation for an impeachment trial in the Senate have been poor (as with Judges Ritter and Louderback), most senators have taken seriously (at least at the time they cast their final votes) the consequences of a conviction and never considered failing to comply with—­much less taken any steps toward violating—­any of the explicit constitutional constraints on their power to try impeachments. The fact that senators have never conducted an impeachment proceeding in violation of these clear restraints shows the degree to which the latter have achieved their desired effect. Moreover, the advent of media coverage in the twentieth century and the omnipresent need to ensure that the president and the federal judiciary accept Congress’s impeachment judgments to avoid lingering conflicts or uncertainty over their acceptability help to ensure even further that Congress complies with the explicit constitutional restraints on its impeachment authority. The real problem for proponents of judicial review of impeachment proceedings, particularly for serious abuses, is that they might be looking in the wrong direction. As a practical matter, the likelier cases for abuses are those involving low-­profile impeachments or more ambiguous or obtuse constitutional constraints. The reason for this is that in higher-­profile impeachments, the public pressure and scrutiny on Congress is more intense

136  chapter eleven and Congress knows that if it at least follows the obvious or clear constitutional constraints, its impeachment judgments are less suspect and are likelier to stand the test of time. In other words, the obsession with congressional compliance with the clear constitutional constraints, such as the supermajority vote for a conviction, is misplaced, because that concerns the easy case. Consequently, it is not surprising to find that the few judicial challenges that have been made to the federal impeachment process have not involved questions about whether the House or the Senate have complied with one or more of the clear or unambiguous constitutional constraints. Rather, those challenges have involved issues about the reach or meaning of the more open-­ended or ambiguous constitutional limitations on the federal impeachment power. Judge Ritter challenged his removal on the basis that the impeachment article on which he was convicted did not set forth misconduct that qualified or constituted impeachable offenses, Judges Nixon’s and Hastings’s lawsuits dealt with whether the Senate’s power to “try” impeachments imposed on it a duty to provide a certain kind of hearing before the full body, and Judge Claiborne’s lawsuit raised a question about the proper sequence of criminal and impeachment proceedings. Moreover, the hypotheticals of concern to Justices White, Blackmun, and Souter in their concurrences in Nixon—­those involving the Senate’s tossing of a coin81 or summarily determining that an impeachable official was “a bad guy”82—­test the limits even further of the Senate’s discretion in exercising its authority to “try” impeachments. These lawsuits, if not the hypotheticals as well, have invited the federal courts to review less extreme abuses of the impeachment power. The problem for the plaintiffs is that their cases have focused on particular policy judgments of the Senate about whose propriety reasonable people could disagree. The plaintiffs’ difficulty is that as one moves away from congressional deviations from the explicit constraints on the federal impeachment power, one moves closer to the heart of the federal impeachment process itself, which involves, among other things, the Senate’s making of policy judgments on the appropriate procedures to use or the particular political crimes involved in certain impeachment trials. These judgments, like all of those made by the Senate in impeachment trials, turn on the Senate’s balancing of competing concerns, including but not limited to the political climate of the impeachment and the relative needs to vindicate the public interest, punish or redress official misconduct, and provide an impeached official the opportunity to state his or her case. For example, at the end of the Ritter impeachment trial, senators reached a compromise as to the nature of the political offenses committed by Judge Ritter; even though they might have had some differences of opinion over the gravity or perhaps even the existence of Judge Ritter’s financial

judicial review of impeachments  137 improprieties, at least two-­thirds of the senators present did agree that there was enough evidence of such misconduct to cast a fatal taint on his impartiality and on the integrity of the federal judiciary. Part of the Senate’s policy making function in an impeachment trial is to define the nature of the political crime(s) involved in a particular impeachment trial. Moreover, in much the same manner that it decides (pursuant to constitutional authorization) on the rules or conditions for various hearings to assist it in making decisions on various legislative matters, the Senate balanced various considerations, including efficiency and fairness, in determining the special procedures for gathering evidence for each of the judicial impeachment trials in the 1980s. The impeachment trials of Judges Ritter, Claiborne, Hastings, and Nixon also raise concern about whether senators behave differently, depending on the visibility or popularity of the impeached official involved in the trial before them. In the impeachment trial of a low-­profile figure, in which there is less public and partisan pressure and media scrutiny, senators seem generally to be freer either to devote greater attention than usual to the real merits of or to ignore almost entirely the substantive issues involved. Consequently, it is not surprising to find, particularly in the twentieth century, that some senators treat the impeachment process as a unique chance to perform a sacred constitutional duty to address official misconduct and others view it as disruptive and distracting. In contrast, in the impeachments of higher-­profile officials, such as a president or Supreme Court justice, it seems practically impossible for senators to take either of these extreme attitudes. Moreover, these latter impeachment trials are rare, so that senators need not fear they will be constant thorns in their sides. Yet, these proceedings also will obviously involve matters that will be of concern to constituents and the public interest. Given these differences in senators’ attitudes about different kinds of impeachment trials, the question is whether judicial review is especially appropriate for one type or another of these proceedings. As it turns out, these proceedings do not necessarily differ with respect to senators’ relative levels of interest and preparation. For example, in the nineteenth century, Congress never succeeded in removing any official for purely partisan reasons. That lesson has carried over into the twentieth century. The impeachment threats against both Chief Justice Warren and William O. Douglas never came close to being realized. To be sure, 74 percent of the Democrats in the Senate voted guilty on the one impeachment article on which Judge Ritter—­a Republican—­was convicted “in a strongly Democratic era [in which] the Court and the executive and legislative departments” were deadlocked over the constitutionality of the New Deal.83 Yet, Judge Ritter was not a strongly partisan jurist. Moreover, the charges against him had dogged him at least since 1933—­four years prior to his

138  chapter eleven impeachment—­when the House of Representatives previously investigated him. Under these circumstances, the best guess remains that “[s]enators voting guilty on the cumulative article must have decided that multiple accusations, even if not accepted as separately proved by the requisite [super] majority, somehow created a pattern of misconduct meriting conviction.”84 In addition, even though partisanship was fervent in Congress throughout most of the 1980s, Judges Hastings and Nixon were each convicted by a Democratically controlled Senate. While Harry Claiborne—­a Democrat—­ was convicted by a Republican-­controlled Senate in 1986, his convictions were based on strongly bipartisan votes on three of the four articles of impeachment against him. In the 1990s, partisanship has been on the rise, culminating in President Clinton’s historic impeachment by the House and acquittal by the Senate. Partisanship was clearly evident in the voting patterns in every phase of President Clinton’s impeachment proceedings. For example, the House Judiciary Committee approved four impeachment articles against President Clinton in votes that broke along party lines. Moreover, over ninety-­five percent of the Republicans in the House voted to impeach the president for perjury and obstruction of justice, while over ninety-­five percent of House Democrats voted not to impeach the president. In the Senate, one hundred percent of the votes that were cast to convict the president were cast by Republicans, while all of the Democrats voted to acquit him on the two impeachment articles approved by the House. In addition, the votes on the floors of both the House and the Senate to block a separate vote on censure overwhelmingly followed party divisions. While these voting patterns reflect party biases, they led to acquittal rather than conviction. Thus, they dramatically signal that removal is feasible only if those seeking conviction are able to build bipartisan support for their cause. If an impeached official’s party controls enough seats in the Senate to block conviction and if all of those senators remain unified in opposing removal, removal is a practical impossibility. The limited effectiveness of partisanship in impeachment proceedings has pressured members of Congress to use other means for political reprisals against unpopular impeachable officials. Whereas the threat of impeachment might have meant (at least a little) something to Chief Justice Marshall, it did not faze or intimidate Chief Justice Warren or Justice Douglas in the least. The grumblings among Democrats about possibly trying to impeach President Reagan after some of the early revelations about the Iran-­Contra affair quickly turned into awareness of his weakened position and helped to fuel the partisanship that played a part in the Senate’s rejection of Robert Bork’s nomination to replace Justice Lewis Powell on the Supreme Court and Judge Douglas Ginsburg’s forced withdrawal from his nomination to fill the same seat. Not surprisingly, the

judicial review of impeachments  139 confirmation process provides a more hospitable forum for partisan bickering, because the House is not required to act at all and the Senate needs only a majority vote for a decision. The issue boils down to how judicial review of these impeachment judgments would contribute either to the constraints on the impeachment power already in place or to the proper functioning of the impeachment process itself. Ironically, judicial review of the federal impeachment process would almost certainly achieve one of two outcomes: either a constitutional amendment (or at least an attempted one) that would insulate the federal impeachment process from judicial review (or at least set forth its conditions) or would delegate the federal impeachment authority (at least for judicial impeachments) to some other body (because the House or the Senate or both could reasonably conclude the system is more trouble than it is worth) or the virtual abandonment of the federal impeachment process (because many members of the House and the Senate would probably not be prepared or willing to trust that the judiciary could engage in disinterested review of judicial impeachment proceedings). In the final analysis, though, the extent to which the political accountability of senators actually checks their judgment, particularly in low-­ profile impeachments, is beyond the scope of this book. Nevertheless, the absence of judicial review ensures that senators involved in impeachment trials will feel a peculiar mix of freedom (from being second-­guessed by a federal court) and responsibility (to make the best decision possible given that they are the sole and final arbiters of the impeached official’s guilt or innocence) that they experience only on a few other occasions—­namely, confirmation and treaty ratifications. The critical difference between impeachments and these latter proceedings is that senators might find themselves subjected to fewer external pressures, such as lobbyists, the media, interest groups, and constituents, in dealing with the former, at least with respect to low-­profile impeached officials. Under such circumstances, the odds are that senators will still be somewhat concerned about how their impeachment decisions will be regarded by subsequent senates or the court of history and how those judgments will affect the Constitution. Nor is it likely that, given the various pressures on them from their colleagues or their sense of history and media coverage, senators will ever resort to flipping coins in order to make impeachment decisions. Even so, such a hypothetical case merely supposes that the Senate is still exercising some judgment—­albeit, very poor—­in an impeachment proceeding. It would be hard to distinguish on some principled basis a senator’s choosing to decide guilt in an impeachment trial on the basis of a coin toss rather than on the basis—­implicitly accepted as nonreviewable by Nixon—­of guessing as to guilt or innocence because he or she had not

140  chapter eleven read the record. The unpredictability or uncertainty of defining the basis for judicial interference in this context compounds the Nixon Court’s concerns about preserving the “finality” of impeachment decisions and “fashioning” appropriate “relief.”85 Because they are so unlike anything actually ever tried in an impeachment, hypotheses about tossing coins or voting on the basis of an impeached official’s hair color ultimately do not supply reasonable bases for building reliable understandings of the justiciability of impeachment challenges. As Judge Stephen Williams observed in his opinion for the D.C. Circuit in Nixon, If the Senate should ever be ready to abdicate its responsibilities to schoolchildren, or, moved by Caligula’s appointment of his horse as senator, to an elephant from the National Zoo, the republic will have sunk to depths from which no court could rescue it. And if the senators try to ignore the clear requirement of a two-­thirds vote for conviction, they will have to contend with public outrage that will ultimately impose its sanction at the ballot box. Absent judicial review, the Senate takes sole responsibility for its impeachment procedures as a full-­fledged constitutional actor, just as the framers intended.86

Putting aside Judge Williams’s hyperbole, it is still not insignificant that even the worst situations he imagines simply would not occur in this country. Given media scrutiny on Congress, party divisions within both the House and the Senate, and peer pressure in Congress (as well as the voters’ basic interest in having representatives and senators of whom they can be proud at least in some minimal way), it is difficult to conceive how Congress would ever get away with violating an explicit constraint on the impeachment power, especially in an event as closely watched as a presidential impeachment. The unlikely prospect that Congress would ever violate an explicit constraint on or extremely abuse its impeachment power conveys something important about the continued effectiveness of current restraints and the similarly remote possibility that judicial review of the violation of an explicit constraint on impeachment would remedy the level of corruption or malfeasance that could have caused such a breach.

The Range of Nonjusticiable Impeachment Challenges after Nixon Justiciability of Impeachment Challenges Based on Arguable Violations of the Fifth Amendment Due Process Clause Those taking the position that the only justiciable challenges to the impeachment process are for violations of explicit constraints might disagree over the applicability of the Fifth Amendment due process clause

judicial review of impeachments  141 to impeachment but might concur that, if the clause is properly applied, then its violation would be justiciable.87 Those reading Nixon as indicating that no (or virtually no) impeachment challenge is justiciable would argue that, even if the due process clause applied to impeachments, any violation of it would not be justiciable. The latter argument is bolstered by the Court’s observation in Nixon that “opening the door of judicial review to the procedures used by the Senate in trying impeachments would ‘expose the political life of the country to months, or perhaps years, of chaos.’ ”88 Even so, the central question remains about the applicability and justiciability of the Fifth Amendment due process clause in the impeachment context. Although the Fifth Amendment due process clause could plainly be read to apply to a situation in which an impeachable officer has been deprived of his or her “property” interest in a governmental position, it is far from certain that this provision applies to impeachments. For one thing, the clause’s language does not necessarily support such a result. The clause explicitly provides that no “person” shall be deprived of life, liberty, or property without due process of law, whereas the impeachment process expressly concerns only the president, the vice-­president, and “officers of the United States.” The primary purpose of the Fifth Amendment due process clause was to guarantee procedural protections for private citizens against coercive, arbitrary governmental action.89 In contrast, the impeachment process is not directed at its subjects in their private capacities. Although the Supreme Court has held that the clause requires certain procedural protections in limited circumstances against the arbitrary dismissal of low-­level governmental employees,90 impeachment is directed at a different class of higher-­level governmental officials. An impeachment proceeding is a unique forum in which Congress may demand a public accounting of the misbehavior of one of an elite set of officials. The question in an impeachment is whether an impeachable officer is fit to preserve the public trust and, therefore, to remain in office. The specific procedural protections given to the subjects of an impeachment are spelled out in a special section of the Constitution. Treating impeachments as sui generis is consistent with the absence of any evidence that the Fifth Amendment, including the due process clause, was intended to apply to impeachments or to countermand the incompatibility between judicial review of impeachment challenges and the impeachment process that the constitutional design otherwise seems to contemplate. This understanding is supported by the only judicial decision ever rendered on this issue. After initially overturning Judge Hastings’s impeachment trial in part because it lacked fundamental fairness and therefore violated the Fifth Amendment due process clause,91 U.S. District Judge

142  chapter eleven Stanley Sporkin begrudgingly agreed on remand of the case subsequent to the Court’s decision in Nixon to dismiss Hastings’s case as nonjusti­ ciable,92 notwithstanding the former judge’s Fifth Amendment claim. The argument against applying the Fifth Amendment due process clause to impeachment proceedings, however, seems forced. By its plain terms, the clause forbids Congress from depriving a “person” of “life, liberty, or property without due process of law;” and it is not a stretch to think that the impeachment process seeks to deprive someone of his or her current and perhaps future office, which could easily constitute a form of property. Moreover, the fact that the Fifth Amendment postdates the impeachment clauses makes irrelevant any of the framers’ or ratifiers’ original desires regarding the federal impeachment process. The point of an amendment is to change what came before and that could logically cover the impeachment process no matter how special it was conceived to be. Even if the Fifth Amendment due process clause applied to the impeachment context, though, it is not likely that it would mandate any different procedures from those already applicable. The argument supporting application of the due process clause to the impeachment process maintains in part that an impeachable official has a property interest in his or her position. Yet, a property interest for purposes of the due process clause is defined as an entitlement or expectation based on state or federal law.93 For example, the president assumes office under the conditions for impeachment as spelled out in the Constitution. He serves for four years and may run for a second term if he so chooses; however, he is also subject to removal from office through impeachment with the special procedures spelled out in the text. This is true for every impeachable official, whose interest in his or her office is subject to his or her impeachment. Consequently, the Fifth Amendment due process and the impeachment clauses conceivably fit together to the extent that the latter provision arguably defines all the process that is due—­that is, constitutionally required at a minimum—­in an impeachment trial. This construction of the impeachment and the Fifth Amendment due process clauses would mean that the extent to which impeachment challenges could be justiciable would coincide with deviations from the aspects of an impeachment proceeding required by due process—­the latter aspects consisting of violations of the explicit constraints on the federal impeachment authority. If the Fifth Amendment due process clause were construed to require an impeachment trial to follow at least the explicit constraints spelled out in the Constitution, it would not be likely that the former would restrain the Senate’s discretion to conduct impeachment trials any more than does the term try. The Nixon Court observed, for example, that the fact that the framers set out specific limitations applicable only to impeachments

judicial review of impeachments  143 confirms “that the Framers did not intend to impose additional limitations on the form of the Senate proceedings by the use of the word ‘try.’ ”94 The point is that where the framers wanted to ensure specific constraints on the procedure used by the Senate for trying impeachments, they spelled them out in the Constitution. The process that is due in an impeachment trial conceivably consists of the explicit constitutional requirements set forth in the document. Otherwise, the Senate has nonreviewable discretion to conduct its hearings as it prefers. There is no evidence to suggest that at the time the Constitution was amended to include the Bill of Rights, the goal included revising the specific safeguards explicitly set forth in the text for impeachments or to add any other procedural requirements on impeachments to those listed in the Constitution. The significance of this silence is reinforced by the fact that none of the records of federal impeachment proceedings have contained any arguments about the applicability of Fifth Amendment due process until the 1980s. (Various officials have complained about the fairness of their impeachment proceedings, but it was not until the 1980s that these claims were linked to the due process clause.) In other words, even after the latter clause went into effect, the general understanding of members of Congress (even in the First Congress) of the uniqueness of the impeachment process never changed. That singularity is undercut by efforts to model impeachments on judicial proceedings or to limit congressional autonomy at least within the confines of explicit constraints in the name of due process.

The Justiciability of Challenges to the Senate’s Failure to Follow Rules of Evidence or a Uniform Burden of Proof Another difficulty left unanswered by Nixon is whether the Senate’s adoption of, and subsequent failure to comply with, specific rules of evidence or a uniform burden of proof for impeachment trials is justiciable. This problem raises two, interrelated questions: (1) does the Senate have the power to tie its hands in this manner, and, if so, (2) does such conduct on the part of the Senate amount to a waiver of the insulation or immunity from judicial review its procedural decisions otherwise enjoy to the extent recognized in Nixon. Each of these issues in turn raises special concerns. Apart from the prior discussion in part II concerning the practical problems with the Senate’s ability to bind each individual senator in an impeachment trial to follow certain procedural rules,95 one critical constitutional concern is whether the adoption of such rules would constitute a waiver of the Senate’s immunity from judicial review as recognized in Nixon. The settlement of this issue depends on whether the Senate has the power to waive its constitutional immunity from judicial review.

144  chapter eleven On the one hand, several factors argue against the existence of such power. These include the framers’ distrust of and consequent decision—­ changeable only by constitutional amendment—­ to exclude judges as decision-­makers in the impeachment process and to exclude impeachment cases from those subject to the judicial power set forth in Article III; the weakening of impeachment as a check against executive and especially judicial abuse of power; the conflicts of interest judges would have in overseeing the only constitutionally recognized process for their removal; and the difficulties judicial review would pose for finality and fashioning appropriate relief. On the other hand, in the context of administrative law, the Supreme Court has declared that “judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress.”96 In other words, if a lawmaking body or administrative agency were really interested in barring judicial review of certain actions or proceedings, it may do so only if it issues a “clear statement” of that wish.97 Under these circumstances, courts ask for a “clear statement” because they want to be sure about precisely how much of its power Congress has delegated to some politically unaccountable body. If the Senate’s adoption of evidentiary or burden of proof rules were to be construed as the functional equivalent of a legislative or administrative act undertaken for the purpose of giving up some of the Senate’s discretion in impeachment trials, then waiving non-­ justiciability in the impeachment context might be possible only if there were a “clear statement” to that effect. At least one advantage of allowing the Senate to waive nonjusticiability (or to presume nonjusticiability unless there is some clear statement to the contrary) is to make it easier for it to use evidentiary rules or a uniform burden of proof by not treating either as legally binding or by treating its noncompliance as justifying legal sanctions. Such deference seems particularly appropriate in the impeachment context, because of the long-­standing tradition of courts not to interfere in this area and because the adoption of set procedures for impeachment trials is likely to work to the advantage of all of the participants by providing them predictable and consistent practices or standards.98 Moreover, judicial deference makes sense in light of the omnipresent concerns in an impeachment with the likelihood that judicial review of an impeachment is likely to produce uncertainty as to the finality of impeachment decisions and potentially intractable problems of devising an appropriate remedy. Obviously, a lot turns on which presumption of judicial review is appropriate in this context. One view is that, because judicial review of impeachment trials might normally he thought not to be permissible, it should be presumed impermissible unless the Senate issues a clear state-

judicial review of impeachments  145 ment of its intent to subject its compliance with certain procedural rules to judicial review. Another view is that impeachment proceedings are usually nonjusticiable, unless they violate express constitutional limits. In other words, if violations of express constraints were justiciable, the question is whether set evidentiary rules or a uniform burden of proof constitute such limits and, if so, are similarly justiciable. One simple way to resolve this conundrum is for the Senate, at the appropriate time, to clearly state its intent to retain or to preclude judicial review—­whichever it prefers—­of its compliance with set evidentiary rules or a uniform burden of proof.

The Nonjusticiability of Challenges to Deficiencies in Presidential Impeachments A presidential impeachment trial poses many of the same problems encountered in judicial impeachments and also offers a more dramatic illustration of the dilemmas involved with judicial review of the federal impeachment process. I explore below the problems with judicial review of any aspect of a presidential impeachment trial. THE DIFFICULTY OF DEVISING PROPER JUDICIAL SANCTIONS

Sometimes it is difficult to devise a judicial remedy for a violation of an explicit constraint. For example, the Constitution provides that “[w]hen the President of the United States is tried, the chief justice shall preside.”99 At first glance, the chief justice’s failure to preside over a president’s impeachment trial is a constitutional violation, which arguably may justify judicial review in a way similar to the Court’s intervention in Powell to ensure that an explicit textual constraint has not been ignored. Yet, the situation is more complex than it seems. Imagine further that before the president’s impeachment trial is about to begin, the chief justice dies or claims a conflict of interest precluding his participation; or, after the trial begins, the chief justice refuses to participate further because he does not want to be a party to what he perceives as the Senate’s use of an unconstitutional procedure. It is unlikely that the Senate would delay the president’s impeachment trial, so that it could hold confirmation hearings on the person he has nominated as chief justice, who would then preside over his impeachment trial. Thus, it is quite probable there would be no chief justice to preside over the presidential impeachment trial. Under such circumstances, one could argue that the provision mandating the chief justice to preside over a presidential impeachment trial has been violated but that judicial review of its violation would be pointless if, for example, the justices were to designate an acting chief justice or

146  chapter eleven the most senior associate justice were to preside instead. Judicial review would also probably compound the problem, because it would lead to outrageous results, including further delays in the impeachment trial, causing substantial domestic and foreign confusion over who should be the president of the United States. For example, the courts might order the Senate to schedule a confirmation hearing on a matter it believes it has the constitutional prerogative to schedule as it sees fit, or might order the president to appoint a chief justice that the Senate would eventually have to confirm (if it wanted to move forward) when it might be in the president’s interest to delay the appointment as long as possible. These judicial orders involve the courts in making or directing policy choices committed by the Constitution to political actors, and they are not as likely to preserve constitutional stability as letting Congress and the president work out a mutually satisfactory settlement. THE OMNIPRESENT NEED FOR FINALITY, ESPECIALLY IN PRESIDENTIAL IMPEACHMENTS

If the Senate were to use a special committee to do fact-­finding for a presidential impeachment trial, there are two conceivable arguments supporting justiciability. The first is that the president is entitled to a trial before the full Senate because of the clause mandating that the chief justice “shall preside” at his impeachment trial. This is a dubious basis to justify justiciability, however, given Nixon’s holding that the Senate is the final arbiter of impeachment trial procedures. The second argument is that the president has a special constitutional status that entitles him to a particular kind of impeachment trial. This argument is supported by the mandate that the chief justice preside over a presidential impeachment trial. Nevertheless, the need for finality and the difficulty of fashioning relief counsel against justiciability. As the Court observed in Nixon, there would be considerable domestic and foreign strife “if the president were impeached. The legitimacy of any successor, and hence his effectiveness, would be severely impaired, not merely while the judicial process was running its course, but during any retrial that a differently constituted Senate might conduct if its first judgment of conviction were invalidated.”100 The briefest uncertainty about who is properly the president of the United States puts national security at risk. The reason for the uncertainty is that, for all the reasons previously set forth against judicial review of impeachments, there is no legitimate basis for a federal court to claim jurisdiction over a president’s impeachment trial. One obvious reason is the strong indication that this prospect is incompatible with the constitutional design, reflected, for example, by the framers’ decision not to include impeachment among the cases to

judicial review of impeachments  147 which the Article III judicial power extended.101 Moreover, the Supreme Court could claim authority over a presidential impeachment trial only if it had original or appellate jurisdiction over impeachments. The Court does not, however, have original jurisdiction over any kind of suit seeking to overturn a senatorial directive pronounced in a presidential impeachment trial.102 It is also implausible that the Court has appellate jurisdiction over an impeachment. The likeliest portion of Article III granting the Supreme Court appellate jurisdiction over an impeachment is the part that covers “all cases, in law and equity, arising under the Constitution.”103 The words Law and Equity are terms of art, referring to the two kinds of regular judicial courts existing, in England and the United States, at the time the Constitution was ratified;104 however, impeachments are not technically in “Law” or “Equity.” This understanding is consistent with Article III’s primary focus, which has to do with the regular judicial business of ordinary courts of law, except for a passage clarifying that jury trial was to play no part in impeachment.105 This latter provision was left in Article III when the framers shifted responsibility for impeachment trials from the Supreme Court to the Senate, and therefore to Article I, dealing with the legislative branch.106 The framers left this provision in place because its main purpose was to provide a general rule of trial by jury, which logically fit in the judiciary article, and they left in the reservation on im­ peachments to avoid any confusion. Another argument barring judicial review of impeachments under Article III is that Congress has the power to provide for “exceptions” to the Supreme Court’s appellate jurisdiction107 and thus may have excepted it from appellate review by not providing for it in any statutes governing appeals to the Court. The major problem with this argument is that it gives too much away: if Congress’s power over appellate jurisdiction enables it to provide for appellate jurisdiction over an impeachment, it would have been absurd for the framers to have given Congress the powers to impeach and to make exceptions to appellate jurisdiction over impeachments, because Congress would then have been able to undo the framers’ decision to move impeachment trials out of the Supreme Court and into the Senate. It makes no sense for the framers to have gone to all this trouble, without mentioning that Congress could reconsider or overturn the framers’ decision at any time. In short, the mentioning of impeachment in Article III does not provide any basis for judicial review of impeachments. To the contrary, the framers’ decision not to include “cases of impeachment” among those specifically mentioned as under Article III judicial power—­a position that would be consistent with the prevailing practice of their time to have judges hear only “cases of a Judiciary nature,” which did not include impeachment—­or to sit in judgment

148  chapter eleven on impeachments only if expressly authorized to do so but not to be engaged in reviewing impeachments, as well as their deliberate exclusion of federal judges from having a role in the federal impeachment process should resolve any reasonable doubt as to whether judicial review of impeachments is ever permissible.

PART I V IMPEACHMENT REFORMS

P

roposals for modifying the impeachment process, particularly for federal judges, have been popular for as long as we have had a federal constitution. One of the first such measures was the Bribery Act of 1790, which I have previously discussed.1 In 1791, the first proposed constitutional amendment for changing the system for judicial removal was introduced.2 Between 1807 and 1812, various members of Congress, disgruntled over the failed attempt to remove ardent Federalist Justice Chase, proposed nine other constitutional amendments for altering the procedure for removing Article III judges, but none of those proposals ever was approved.3 Just after the Civil War, there were several unsuccessful attempts to provide for the mandatory retirement of federal judges.4 In the twentieth century, proposals for reforming the impeachment process have largely focused on judicial tenure or misconduct. Many of these proposals have tried to alter the nature or duration of judicial tenure because of concerns about the lack of accountability of federal judges or about the impeachment process’s capacity to deal effectively with the increasing need for judicial discipline and removal.5 Each of the impeachments conducted in this century has provoked proposals either to amend the constitutional system for judicial removal or to establish statutory means for disciplining or removing federal judges.6 Focusing on a few of the more significant efforts to improve the judicial removal system provides a sense of the kinds of problems many reform proposals have addressed and of the most common difficulties with the proposals themselves. Consequently, chapter 12 considers the major proposals for changing the House’s and especially the Senate’s procedural rules for their respective impeachment proceedings. Chapter 13 examines statutory proposals and constitutional amendments either for modifying the status of federal judges or for substituting a different body for the Sen­ ate to try impeachments.

Chapter Twelve PROPOSED PROCEDURAL REFORMS FOR JUDICIAL IMPEACHMENTS

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iven relatively widespread consensus that House proceedings need at least some fine tuning and that the Senate’s proceedings require similar if not more radical revision, this chapter will add some comments to what the book already has said about the necessity for procedural reform in the House of Representatives and will focus more on the problems involved with significant reform proposals for Senate impeachment trials.

Proposed Procedural Reforms for Impeachment Proceedings in the House of Representatives The proposals for reforming impeachment proceedings in the House of Representatives are much smaller in number and less ambitious in scope than those for revising the Senate’s role in the impeachment process. The major focus of the suggestions for reforming the House’s impeachment role is on streamlining or reducing delays in initiating the House’s impeachment proceedings. As a general matter, the House has investigative powers ancillary to its “sole power of impeachment.”1 Nevertheless, in order to better discharge the House’s constitutional duty to conduct an inquiry into impeachable conduct, the House Judiciary Committee could benefit from prompt access to investigative data, including any relevant grand jury materials and wiretap information. At present, the sources of much of this data are not under any statutory obligations to make expedited disclosure to the House of Representatives of information relating to the possible commission of impeachable offenses. Consequently, Congress could make special exceptions for granting the House expedited review of impeachment-­related information contained in such disparate sources as grand jury evidence that is otherwise protected by rule 6(e) of the Federal Rules of Criminal Procedure; electronic surveillance materials, the disclosure of which is regulated by statute;2 and the investigative files of a judicial council investigation undertaken pursuant to the Judicial Disability Act of 1980.3 As long as none of these changes result in automatically

152  chapter twelve triggering impeachment proceedings or in disrupting the investigative processes covered, no conceivable problem with them exists.4 Another, more problematic proposal for expediting impeachments in the House, previously described in part II,5 is the formalization of more timely communications between the House and the Justice Department, or, in an appropriate case, a special prosecutor. This practice could lead to an early removal from office (through resignation) or at least prevent the House from delaying its initiation of or preparation for impeachment proceedings until the Justice Department’s work was completed and a mutually satisfactory transfer of information could be worked out between the Justice Department and it. Indeed, present law authorizes an independent counsel to inform the House of the possible need for an impeachment—­a procedure that is consistent with separation of powers as long as the final authority to initiate impeachment proceedings rests with the House.6 Although one potential problem with this proposal is that neither the House nor the executive branch may want the other to have a say in how it performs its affairs any more than is absolutely necessary, the underlying difficulty could be solved if the Justice Department were to give timely notice to the House of its inten­tions, including, for example, its plan to pursue an indictment or convene a grand jury. Once an impeachment inquiry has been formally initiated, the House has several options for streamlining it. These include the House’s adapting for its unique purposes such reforms as (1) issue preclusion; (2) hiring outside counsel with expertise in impeachment matters to assist the House Judiciary Committee or house managers; (3) having members with relevant experience routinely sit on impeachment panels (assuming, of course, they are interested in continuing to handle such affairs). The next section evaluates the efficacy of each of these proposed procedural reforms in Senate impeachment trials, with the understanding that any or all of them could be tailored for the House to use as it sees fit.

Proposed Procedural Reforms for Senate Impeachment Trials Four factors should be kept in mind as background to any discussion of reforming the procedures for Senate impeachment trials. First, although the Senate has rejected many proposals for modifying impeachment trial procedures, it may change its mind. For example, a differently constituted Senate in the future might reach a different conclusion regarding the viability of issue preclusion or other procedural reforms (such as set rules of evidence or a uniform burden of proof) it has previously rejected.

proposed procedural reforms for judicial impeachments  153 Second, rejecting restrictive procedural rules makes it easier for senators in impeachment trials to debate substantive questions. A helpful analogy may be that impeachments more closely resemble administrative proceedings, which tend to favor the elimination of formal procedural barriers or evidentiary restrictions, than judicial trials, in which the primary focus is on process. While the absence of uniform procedural rules creates some uncertainty and unpredictability for the participants in impeachment trials, it might also enable senators to cut through procedural nuances to get to the substance of the hearings. Third, adopting uniform procedural rules would not necessarily streamline impeachment trials to the Senate’s satisfaction. Efforts to use the same procedural rules of civil or criminal trials in impeachment trials can (1) burden those proceedings with substantial debate on the meaning or scope of particular procedural rules; (2) require the senators to deal with procedural matters they may not have the expertise, interest, or time to handle; (3) encourage counsel for impeached officials to devote as much of their time to debating procedural questions as to the substantive issues involved in an impeachment trial; and (4) divert senators’ time and energy away from the substance of the allegations against the impeached official. Lastly, the efficacy of each proposal for reforming Senate impeachment trial procedures depends on one’s attitude about the general need to salvage or retain the Senate’s role in the impeachment process. The more one tends to think that the system is not broken, the likelier one is to accept only minor suggestions for change. Yet, if it can be shown that internal reforms cannot remedy basic problems with the Senate’s performance in impeachment trials, then more radical reform, such as excluding the Senate altogether from the removal process, may be worthy of consideration.

Issue Preclusion Given the likelihood of a criminal conviction prior to the inception of impeachment proceedings, a common proposal is for the Senate to use some form of issue preclusion to expedite its impeachment trials. Proposals for issue preclusion in the Senate have varied, including the House’s third article of impeachment against Judge Claiborne claiming the fact of his conviction (upheld on appeal) as a basis for his removal7 and Stephen Burbank’s proposal for “granting substantial preclusive effect to the findings of fact necessarily grounding a guilty verdict, at least when the judgment of the conviction has been affirmed on appeal and so long as those involved in the impeachment process consider claims of error regarding the antecedent fact-­finding process that have not previously been rejected

154  chapter twelve by the courts.”8 Each of these proposals allows impeached officials to argue that, even though they have exhausted their appeals, there is a compelling reason, such as new evidence, that should preclude the Senate from relying on their convictions. The earlier discussion of issue preclusion in this book9 should have made clear that that device, properly understood and used, could increase the efficiency of removal proceedings.10 As long as the Senate finds that a criminal conviction has been obtained in a fair proceeding that has fully complied with due process and contains no disturbing irregularities, then the Senate could reasonably accept the conviction as settling any factual disputes regarding the commission of the misconduct in question. As the house managers explained in the Claiborne impeachment trial, Collateral estoppel [is] based on the premise that where a party has been able to litigate certain issues in dispute before a regular and appropriate forum, one that provides procedural and substantive safeguards, as the jury system provides, that finding of fact by that tribunal is final insofar as those issues [are concerned. We] [suggest] that it is appropriate to take from a coordinate branch of government a finding of fact that has already been determined by the triers of fact beyond a reasonable doubt and found to be true. [The] rationale is obviously to avoid repetition, to avoid an inconsistent result, and to set a proper precedent for cases in the future. And . . . it is important that we set a proper precedent for any cases to follow since this is a case of first impression.11

Moreover, the procedural protections provided in criminal trials, including the rights to counsel and to confront witnesses and the requirement of proof beyond a reasonable doubt, tend to ensure that the records for those proceedings are reliable for adjudicating or finding facts. Issue preclusion also does not prevent the Senate from deciding on its own if the misconduct constitutes an impeachable offense.12 The primary reason the Senate might forgo using issue preclusion is its concern that it would deprive civil officers of what Alexander Hamilton referred to as the “double security intended . . . by a double trial.”13 For many senators, the Senate’s acceptance of the findings of a judicial proceeding (even from a criminal trial) defeats much of, if not the whole, purpose underlying the framers’ separation of impeachment and criminal proceedings. Even if the Senate’s reliance on issue preclusion allows the federal courts to build a reasonably dependable record for an impeachment trial, it also increases the authority of federal judges to control the outcomes of impeachment proceedings. Some senators view this development as an abdication to the judiciary of the Senate’s “sole power” to try impeachments.14

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Delegations by the Senate to Other Bodies to Conduct Various Responsibilities The Senate may delegate certain duties for impeachment trials to a subgroup within it or to some other separate body. I consider the feasibility of each such delegation.

IMPROVING RULE XI

There is little doubt that a trial committee saves the Senate a considerable amount of time and provides a more efficient (and informed) forum than the full body could furnish for taking testimony and receiving evidence. Even so, a critical question is whether the Senate can improve the operations of a rule XI trial committee. One option might be for the Senate to diminish the size of trial commit­tees in order to reduce the numbers of senators having to deal with the re­sulting scheduling conflicts of trial committee membership. Indeed, the number of senators serving on a trial committee was not a factor in the Nixon Court’s finding challenges to rule XI to be nonjusticiable.15 Nor is there anything in Nixon to suggest that the decision would have been any different if there were even just one senator on the trial committee. Nevertheless, the problem with a smaller trial committee is that it may not give the full Senate adequate “assurance that decisions as to the conduct of those proceedings were made by a group large enough to approximate differences in the Senate as a whole.”16 The Senate might also consider clarifying the matters it should hear prior to the formation of a rule XI trial committee.17 The Senate could develop “a subset of rules applicable in, and only in, proceedings before a committee of less than the whole.”18 Rule XI trial committees could adopt a formal rule to allow the house managers or the impeached judge to raise interlocutory questions for the full Senate’s consideration prior to the start of rule XI removal proceedings. This change would notify each participant in an impeachment trial of the preferred timing for particular motions and would allow the Senate to make a decision that otherwise might have preempted rule XI trial proceedings. One such possible rule is “motions for summary judgment or the application of issue preclusion should be made before the full Senate even before a trial committee takes form.” The rationale underlying this rule is that such motions have the potential, if granted, of obviating the need for a trial or rule XI trial committees. Such a policy also allows the Senate to expedite matters, particularly when prior adjudication of the underlying facts has already occurred in reliable, fair circumstances. It is obviously inconvenient for

156  chapter twelve the members of a trial committee to go through hearings only to have the Senate later decide it was unnecessary for them to do so. The disadvantage of this rule is that it can deprive an impeached official of the chance to have the Senate reach independent judgments about the occurrence and significance of the facts underlying his impeachment. Moreover, such a rule effectively delegates to the executive branch the responsibilities of uncovering judicial misconduct and gathering evidence and to the judicial branch the job of fact-­finding. Thus, the rule’s reliability ultimately depends on whether judicial independence and integrity could be adequately protected if the Senate were to relieve itself of a significant portion of the fact-­finding it (or at least the House) otherwise would have to conduct on its own in an impeachment trial. The Senate might also consider creating a rule XI trial committee in waiting or asking those senators most familiar with impeachment trials to serve on rule XI trial committees or to help expedite the process by overseeing the discovery or pretrial phase. This reform might help the Senate to overcome the difficulties it has had in the past of having senators serve on impeachment panels, even though they did not have any training or experience in dealing knowledgeably or effectively with impeachment matters. The more experienced senators would not have to re-­invent the wheel for each impeachment; they would likely be sufficiently familiar with relevant precedents and procedural traditions to provide a relatively streamlined, efficient hearing. The disadvantage of this proposal is that it may be difficult to find senators who would be so interested in serving on impeachment trial committees that they would be willing to forgo other important legislative business likely to be more relevant to their reelection. This complication is compounded by the fact that impeachment trials do not occur on a routine basis and, therefore, can arise at especially inconvenient times, as with the impeachment of Judge Ritter in the midst of legislative debates over the New Deal.19 Moreover, turnover in the Senate may deplete the numbers of available senators with relevant experience.

delegations by the senate to a body of experts Another popular suggestion is for the Senate, acting under its own authority, to delegate certain duties (such as fact-­finding) to a body or group separate from the Senate. Such delegations would allow the Senate to empower suitable experts to deal with certain preliminary aspects of an impeachment trial, such as discovery, that most senators have neither the time nor the bent to handle. Obviously, any such proposals risk abdicating the Senate’s constitutionally authorized “sole power to try impeachments” and are highly unlikely to be adopted.

proposed procedural reforms for judicial impeachments  157 It is likely that the same reasoning that led the Supreme Court in Nixon to find challenges to rule XI to be nonjusticiable would support finding challenges to a broader delegation of the sort described above to be similarly nonjusticiable. The likeliest textual challenge to this practice would arise under the clause empowering the Senate “to try all impeachments;”20 however, the Court made clear in Nixon that that language, the relevant history and structure of the Constitution, separation of powers concerns, and the need for “finality and the difficulty of fashioning relief” counsel against justiciability.21 To be sure, the argument against this practice would be, as Nixon’s counsel argued, that a delegation of impeachment power to a body or persons outside of the Senate removes the Senate altogether from the process, and, therefore, violates the relevant clause that seems to be premised on the Senate’s actual involvement in impeachment trials.22 However, as long as the Senate retains the authority to review anew any findings or recommendations made by outside experts, it is functionally not in any worse position than it was in Nixon, in which the Court recognized that its enforcement of any “limitations” on the Senate’s discretion in using trial committees “would be inconsistent with the construction of the [Impeachment] Clause as a whole, which . . . sets out three explicit limitations in separate sentences.”23 Since delegating limited duties to experts outside of the Senate is not violative of any of the explicit limitations on impeachment trials, challenges to such delegations, like those to trial committees, are entitled to be treated as nonjusticiable after Nixon. Moreover, even if the Senate’s delegation of some impeachment authority to an outside group were justiciable, it is plainly constitutional. The same historical arguments that convinced Justices White, Blackmun, and Souter,24 as well as Judge Harry Edwards,25 that rule XI was a constitutionally permissible delegation argue in favor of finding that delegating even more limited authority to an outside body, such as a special master, is constitutional. In particular, the support for this practice comes from the considerable discretion in each chamber to determine its methods for obtaining evidence necessary to carry out its constitutionally defined tasks and an 1851 statute prescribing a procedure for taking testimony in House election contests that is very similar to the procedure followed when using a master. [Moreover,] the Senate’s power to use masters to gather testimony and collate evidence in an impeachment trial may correspond to a court’s power to use masters for similar purposes. Since both the Supreme Court, as a court of original jurisdiction, and the federal district courts have the inherent power to appoint masters in certain cases, there is no reason to suppose that the Senate, when acting as a judicial body in an impeachment trial, would lack similar authority to appoint a master to facilitate the hearing of evidence.26

158  chapter twelve The National Commission on Judicial Discipline and Removal similarly concluded, “the full Senate has discretion to delegate responsibility for the handling of discovery and other pretrial motions. The Senate could . . . delegat[e] pretrial matters to a component of a rule XI trial committee, such as professional staff or specially hired masters (former Senators or outside counsel).”27 If the Senate were to delegate discreet matters to permanent staff or specially hired experts, then it should consider the standard of review the committee or the full body should have over such delegations. The fairest standard is de novo review. Even though de novo review might lead to dilatory or abusive antics from obstructive defense counsel, it enables the trial committee to rehear any questions it believes should receive a full and fair hearing by the Senate and to retain full authority to deal with all substantive matters and live testimony.

Legislative Oversight There are several areas over which the House or the Senate could exercise oversight to improve the federal impeachment process. First, oversight of the activities under the Judicial Disability Act of 1980 would help to ensure that judicial self-­regulation does not result in any abuses. Indeed, the House Judiciary Committee, acting through the Judicial Administration Subcommittee, already has a proven track record overseeing the Judicial Disability Act of 1980. Requested and promised during the floor debate on that enactment, such oversight has been welcomed by the judiciary and responsible for more effective implementation of the act as well as minor adjustments to it in 1990.28 Moreover, the House’s Administrative Law Subcommittee has monitored developments in judicial ethics. Although judges routinely examine applicable ethical standards, such oversight, along with the monitoring of activities under the Judicial Disability Act, secures better congressional understanding of the relationship between judicial discipline and ethics. Nor is it unreasonable to ask the House Judiciary Committee or the committee(s) responsible for governmental affairs or the House itself to create a special committee to oversee the general ethical behavior of all impeachable officials. In other words, the link between discipline and ethics is not unique to the federal judiciary; it is a connection that justifies and is important to the oversight of any impeachable officials. Nevertheless, the Senate Judiciary Committee has never conducted oversight of the Judicial Disability Act of 1980, in spite of the fact that senators who sponsored the act have spoken of the need to do so.29 In light of the explosive growth of the federal judiciary and the fact that the House and the Senate only share oversight findings

proposed procedural reforms for judicial impeachments  159 unless joint hearings—­an admittedly rare occurrence—­are held, Senate oversight seems equally appropriate. Second, several senators have requested but never received hearings to explore the merits of the charges made by each of the five federal judges prosecuted by the Justice Department since 1980 of investigative and prosecutorial misconduct.30 In the meantime, one forum has already found merit to such claims made by Harry Claiborne. On May 18, 1988, the Nevada Supreme Court ruled that Claiborne, who by then had completed his term, could resume practicing law in the state.31 After reviewing the criminal and impeachment trial records, the court concluded that “questionable investigative and prosecutorial motivations, as well as anomalous and arguably unfair practices and procedures pervade the record of this matter from its inception. . . . In light of the above we decline to impose additional punishment upon respondent Claiborne.”32 Given the seriousness and implications of each of these official’s allegations of prosecutorial misconduct, the Senate should consider postimpeachment oversight as a useful way, consistent with separation of powers, to monitor enforcement of relevant laws and measure the impact of a prosecution and subsequent impeachment on judicial independence. Another area about which many people are curious is the relationship between the confirmation and impeachment processes. Concerns about the relationship have been heightened as a result of Samuel Kent’s impeachment and resignation after his conviction for sexually assaulting multiple women and Thomas Porteous’s impeachment, conviction, removal, and disqualification based in part on his effectively defrauding the Senate in his confirmation proceedings. Given that the Senate has the constitutional authority to confirm or reject presidential nominees for federal judgeships and certain other impeachable offices,33 and to remove or even disqualify those same officials for committing impeachable offenses, it is reasonable to doubt (as did some of the opponents to the Constitution in ratifying conventions) the Senate’s willingness to second-­guess its initial judgments about the integrity of the individual involved. Presidential administrations are likely to be even less willing to open their selection processes to allow second-­ guessing of their judgments on their nominees’ fitness for office. That a connection exists between the appointment process and the integrity or quality of confirmable officials is indisputable. If, for example, only the most qualified and honest judges were appointed, the need for disciplinary action would probably be greatly reduced. The same, of course, could be said for any official elected to or selected for an office whose occupant is subject to impeachment. The obvious problem, however, is that predicting the likelihood of impeachment for certain impeachable officials at the times of their elections or confirmations is

160  chapter twelve much easier said than done. Such predictions might have been conceivable for Richard Nixon (because of his penchant for hard-­ball politics), Robert Archbald (who had engaged in shady business transactions prior to becoming a federal judge), Harry Claiborne (because of suspicions he might have lacked judicial temperament and because he had been a colorful trial lawyer who had enjoyed a substantially higher income in private practice than what he would get as a federal district judge), Halsted Ritter (whose nomination had been opposed by the Republican and Democratic state party organizations in Florida because he was considered deficient in training and experience), Alcee Hastings (based on the questionable character of some of his friends prior to his becoming a federal district judge), or Thomas Porteous (because of criminal misconduct hidden from the president who nominated him or the Senate that confirmed him). Bill Clinton’s critics would argue that a president known as “Slick Willy” prior to his election as president was likely someone whose capacity for misconduct was predictable, and Donald Trump’s critics undoubtedly would argue that his questionable business dealings, inflammatory charges about President Obama’s birthplace, and offensive public reprimands of personal and political enemies forecast an ethically troubled presidency. But no one predicted Judge Pickering’s demise, nor has anyone raised similar questions about Walter Nixon’s integrity prior to becoming a federal district judge. Moreover, just as it is impossible for the president to predict infallibly which factors are likely to undo which of his nominees in the confirmation process, it is not reasonable to assume or believe the president or the Senate could agree on a standard for sifting through prospective nominees to choose the ones likeliest to fall prey to the impeachment process at some point in the future. Just as importantly, the president and the Senate each might have good reasons to fight for or against certain nominees in spite of whatever hypothetical prospects they might have for impeachment, especially when the latter is relatively rare and the nominees themselves will be accountable to a respected superior authority. Nevertheless, the impeachment process, like the rest of government, might be best served if dubious candidates for office were scrutinized with better care prior to assuming office. In other words, the best reform of the impeachment process might well consist of more careful consideration by a president of his nominees and more thorough scrutiny in Senate confirmation hearings.

Chapter Thirteen PROPOSED STATUTORY CHANGES AND CONSTITUTIONAL AMENDMENTS TO THE IMPEACHMENT PROCESS

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his chapter considers the merits of the most significant proposed statutory and constitutional reforms for the federal impeachment process. These various proposals seek to eliminate or severely restrict the Senate’s role in that system, and each proposal is premised on the existence of an alternative forum superior to the Senate.

Proposed Statutory Modifications to the Impeachment Process For more than two centuries, Congress has shown serious interest in three major kinds of proposed statutes for reforming the federal impeachment process. Some statutory proposals have aimed at providing automatic suspension, removal, or disqualification of federal judges who have been convicted of a felony. Other statutes have tried to delegate either the entire removal power or at least the fact-­finding responsibilities to a body other than the Senate, such as a specialized court or even the Supreme Court. I consider below the constitutionality of each of these kinds of statutory proposals.

The Constitutionality of Proposed Statutory Suspensions of Judicial Tenure and Compensation There are two prominent types of proposed statutes for suspending or automatically removing or disqualifying federal judges. The most prominent example of the first type is the Bribery Act of 1790, enacted by the First Congress to provide that upon conviction for bribery in federal court, a federal judge shall be “forever disqualified to hold any office.”1 Senator Strom Thurmond was a strong proponent of the second kind of statute, which provided “that a justice or judge convicted of a felony shall be suspended from office without pay pending the disposition of impeachment proceedings.”2 Since I have explored the constitutionality

162  chapter thirteen of this first statute in part III, I consider below the constitutionality of a statute of the sort proposed by Senator Thurmond. The argument in favor of the constitutionality of the latter statute is that it does not provide for the actual reduction of a federal judge’s salary or for the formal removal or disqualification of a federal judge in the absence of a Senate impeachment trial. In other words, this statute conceivably does not pose a threat to the federal judiciary, because it is directed only at a small number of federal judges who have already jeopardized their status by virtue of having been convicted of felonies and who will be compensated for their loss once the Senate decides not to remove them from office. The fatal problem with this proposed statute, however, is that it violates Article III’s literal guarantee of undiminished compensation for each federal judge. The fact that this kind of statute tries to return later the income it has confiscated does not cure or erase the initial violation. Moreover, this proposed statute deprives a federal judge of the chance to demonstrate the reasons he or she should not be impeached in spite of a felony conviction. In other words, the statute deprives certain federal judges of the “double security” guaranteed to them through a “double trial.”3 This unfairness is compounded by the fact that not all felonies are equally grave. If a federal judge were convicted, for example, of a state felony forbidding the poisoning of a cat or a federal felony prohibiting damaging a mail box, it is far from clear that the targeted judge deserves to have his or her salary temporarily suspended, much less to be removed from office. If the motive for this statute is to avoid the unseemly scenario of a convicted federal judge’s sitting in jail but continuing to receive his or her salary, then a less extreme, constitutional alternative is for Congress to enact suitable amendments to title 18 to allow the postponement of sentences in federal criminal cases involving a convicted federal judge until the judge is impeached and removed from office.4

The Constitutionality and Desirability of a Statutory Proposal for Reducing the Senate’s Role in Judicial Removals The Senate has seriously considered only one statute that has tried to eliminate the Senate’s role in the federal impeachment process. In the late 1930s and early 1940s, Congressman Hatton W. Sumners, then-­chairman of the House Judiciary Committee (and a house manager for the Louderback and Ritter impeachment trials), proposed several versions of a statute that would have removed the Senate, but not the House, from the impeachment process. In 1937, he initially proposed H.R. 2271, which directed that judicial removal would be handled by a special court consisting of three judges of the circuit courts of appeal designated by the chief justice. The

statutory changes and amendments process  163 House of Representatives would initiate charges by directing a resolution to the chief justice, stating that “in the opinion of the House there is reasonable ground for believing that the behavior of a judge [has] been other than good behavior within the meaning of that term” in the Constitution. If the court determined that the behavior was not “good behavior” within the meaning of the Constitution, the judge would be removed from office, although no other penalty could be imposed. Such judgment could not be appealed. This proposal applied only to federal district judges. On October 22, 1941, the House passed H.R. 146, which was similar to the earlier H.R. 2271. Again, the House was to initiate proceedings by directing a resolution to the chief justice, and the chief justice had the authority to convene a special court. However, this legislation applied to all judges of the United States, except Supreme Court justices, and the chief justice had less discretion in choosing those who would sit on the court. The targeted judge would have had a right to object to the judges selected by the chief justice to serve on the special court, subject to the chief justice’s review. If the chief justice found the reasons for the judge’s objections to have been adequate, he was to select a different designee. The attorney general represented the United States in the removal proceedings. If the special court determined that the judge did not meet the “good behavior” standard in the Constitution, it would order removal of the judge. The defendant would then have a right of appeal to the Supreme Court. A month after the House passed H.R. 146 in October 1941, a subcommittee of the Senate Judiciary Committee held hearings on the bill. Congressman Sumners presented his proposal, and a number of prominent individuals testified in support of the bill, including Supreme Court justice (and former Attorney General) Robert H. Jackson and Attorney General Francis Biddle.5 In addition, the Judicial Conference, composed of the chief justice of the United States and the senior circuit judges, “approve[d] in principle the provisions embodied in” the proposed legislation.6 Moreover, the American Bar Association (ABA) supported the bill on the ground that “[e]xperience has demonstrated that no sufficient number of members of the Senate will listen to, or even read, the testimony in removal proceedings initiated by the House of Representatives as to Federal judges other than justices of the Supreme Court. [The] testimony as to misbehavior should be taken, and the appropriate findings made, in a judicial atmosphere and by experienced, impartial triers of fact.”7 There are several plausible arguments supporting the bill’s constitutionality. First, it arguably represents Congress’s effort to combine its necessary and proper and impeachment powers to devise a solution to the Senate’s current problems, including lack of time, interest, and expertise, in handling impeachment trials. As the House report observed, “there is nothing

164  chapter thirteen more ridiculous than the picture of the whole Senate sitting for ten days to determine whether or not a district judge ought to be removed.”8 The ABA’s then-­president, Arthur Vanderbilt, wrote to the subcommittee that the bill would strengthen the administration of justice in the Federal courts, [help] preserve a high standard among the personnel of the judiciary, and [enable] Senators to devote the time to their legislative duties and free them of the [charge that] their other duties prevent them from sitting as the triers of the matter in the way that ordinary judges are required to listen to all of the evidence before pronouncing judgment.9

Second, the bill could be construed as Congress’s exercise of its inherent powers under the “good behavior” clause of Article III to pass legislation to deal with judicial misconduct. Third, the bill did not necessarily aggrandize another branch at the expense of the judiciary or Congress. Under the statute, the attorney general was empowered to bring complaints against federal judges, but this authority would have been checked by the other statutory provision empowering judges to serve as the members of the special court and the Supreme Court to review the removal proceedings. Fourth, the proposed statute conceivably protected judicial independence and integrity because it would have placed the power to make and review removal decisions within the judiciary, which plainly has a vested interest in ensuring the integrity and reputation of its members. Fifth, the judges sitting on the special tribunal and the Supreme Court are competent to do the necessary fact-­finding, handle the motions, make evidentiary rulings, and generally protect the individual rights of impeached judges. Lastly, as Congressman Sumners explained, the bill sought to avoid the possibility that the Senate’s failure to conduct timely impeachment trials might tempt the executive into trying to oust federal judges on its own.10 Sumners was concerned (as many people still are) that the cumbersome nature of the impeachment process tended to pressure the House into avoiding impeachments and preferring instead to have the Justice Department fill the vacuum by prosecuting federal judges prior to their impeachments. Other supporters of the bill argued that it would relieve the Senate from having to deal with the likely rise in the numbers of impeachment trials that would correspond with the expected increase in the size of the federal judiciary.11 In spite of these arguments, the proposed statute was probably unconstitutional for several reasons. First, it bypassed two explicit requirements recognized by the Court in Nixon v. United States12 as applying to all impeachment trials: that “the members [of the Senate] must be under oath [and] a two-­thirds vote [of the Senate] is required to convict[.]”13 These requirements could only be avoided if the act somehow could be

statutory changes and amendments process  165 justified as dealing only with judicial discipline for misconduct falling short of impeachable offenses; otherwise, as long as the proposed mechanism provided for the imposition of the special punishments usually available in an impeachment proceeding by some body other than the Senate, it seems to conflict directly with the special constitutional requirements for certain Senate action prior to imposing appropriate sanctions. Second, the bill’s empowerment of the attorney general to issue complaints against federal judges arguably would have enabled him or her to harass federal judges who disagreed with the Justice Department’s policies. The problem would have been that the act would have added to the kinds of actions the attorney general was otherwise authorized or allowed to bring against federal judges, such that it would have created a problematic imbalance of power by enabling the attorney general to persecute federal judges by initiating various kinds of proceedings, including civil, criminal, and impeachment, against them. Nor is it hard to imagine that the act might have made federal judges think twice before issuing rulings against the government that had the potential to provoke retaliation by the attorney general. Third, permitting specialized tribunals consisting of judges to make removal decisions that are also appealable to the Supreme Court creates an imbalance of power in another direction—­by giving the federal judiciary too much of a final say over the disciplining and removal of federal judges. The question is whether the judiciary can reasonably be trusted to exercise this power fairly when the proposal makes it even less accountable to the public and political forces than it is under the present system.14 The problem is that, whereas the Judicial Disability Act of 1980 requires trusting judges to discipline each other for nonimpeachable misconduct, this proposed statute requires abandoning altogether the framers’ distrust of the federal judiciary’s ability to be a neutral or competent arbiter of the impeachable misconduct of individual federal judges. There is also a practical problem with the proposed statute: it is unrealistic to expect the Senate ever to agree to removing itself from the process of judicial impeachments while retaining the House’s role in the same system. The proposed statute raised concerns among many senators about the arrogance underlying and accuracy of the House’s apparent claim that the Senate was not as competent as the House to handle judicial impeachments. Even if it were empirically true that the House is more competent than the Senate in impeachment matters, a majority of the Senate still needs to be persuaded of that fact. The subsequent failure to enact the statute, given the extraordinary support at the time of some of the most prominent judges and lawyers in the country, suggests the unlikelihood of the Senate’s ever being convinced of this latter prospect.

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Proposed Constitutional Amendments In recent years, five different kinds of constitutional amendments have been proposed in the Senate.15 I consider the merits of each of these in turn.

Elimination of Life Tenure for Federal Judges One of the most common subjects of proposed amendments to the federal impeachment process is the elimination of life tenure for federal judges.16 There are at least two major arguments in favor of such amendments. First, they will help to eradicate the so-­called “countermajoritarian difficulty”17—­the problem of unprincipled or self-­interested interference by unelected federal judges with the decisions of the people’s duly elected representatives—­by making federal judges directly politically accountable for their decisions through such means as popular election, reconfirmation, or reappointment. If the countermajoritarian difficulty is intractable, then the only practical way to curb unprincipled judicial decision-­making is to deprive federal judges of life tenure and to make them less immune to political reprisals. Confirmation hearings have increased in intensity because the stakes of controlling how the Court deals with the countermajoritarian difficulty are higher; with justices serving much longer terms on average than they did at the time of the founding era, political parties can further entrench their constitutional viewpoints with every appointment. Political parties not only battle to control these appointments but have also begun appointing younger judges so the expression and embeddedness of their preferred views will be stronger than it would be with older, less partisan or rigidly ideological nominees. A second reason to eliminate life tenure is to address the problem of justices timing their retirements for political reasons. Providing a limited term, such as eighteen years, would prevent them from making decisions about their retirements that make the Court appear to be partisan. Yet another reason for abandoning life tenure is that with life tenure there is a greater likelihood that justices who serve into their eighties or beyond will suffer from mental decrepitude or illness that hinders their performance. Some scholars go so far as to maintain that the tenure of “during good Behavior” left to Congress the authority to determine the conditions for restricting the length of federal judicial service. Most scholars who agree life tenure needs fixing believe that an amendment, not a statute, is the right fix. Even then, there are insurmountable impediments to their quest. Changing the tenure of federal judges to eliminate the “countermajoritarian difficulty” has almost nothing to do with remedying the kinds of

statutory changes and amendments process  167 judicial misconduct that seem to overwhelm the impeachment process. Other than Justice Chase, no federal judge has ever been impeached because of his or her decisions on the bench; and no federal judges have been convicted and removed by the Senate for their judicial philosophies. Moreover, replacing life tenure with a fixed term is not likely to quell the confirmation process. To the contrary, it would merely turn the wars currently fought to control the Court into a regular event. Until political leaders can reach common ground on the criteria for appointing justices, no change in tenure can settle their differences—­or lead them to refrain from keeping their political foes from filling vacancies.

Automatic Judicial Removal Based on Felony Convictions Constitutional amendments have been proposed that would automatically remove a federal judge who has been convicted of certain crimes, such as any felony.18 For example, on January 25, 1989, Senator Thurmond introduced a resolution providing in pertinent part that “any officer of the United States appointed by the President with the advice and consent of the Senate, upon conviction of a felony, shall forfeit office and all prerogatives, benefits, or compensation thereof.”19 Such a proposed amendment has a number of potential merits. First, the class of governmental officials to whom it applies is clear, thereby eliminating the problem with the present system’s lack of clarity over who are “officers of the United States.” Second, it provides ample notice to its subjects that any felony conviction will result in the automatic forfeiture of their positions. Third, it would relieve Congress of the duty of conducting a number of time-­consuming impeachments and eliminate the problem of federal judges receiving compensation while they sit in jail waiting to be impeached and removed. Lastly, a constitutional amendment is an appropriate way to provide for the automatic removal of certain governmental officials, given that the Constitution requires that for judicial removal senators must be on oath or affirmation and at least two-­thirds of them must concur for a conviction. Yet, this proposed amendment posed several serious concerns. First, it is unfair to provide automatic forfeiture upon a felony conviction without allowing the convicted official the chance to reverse that conviction through an appeal as of right, especially given that convictions are often reversed for sound legal reasons. By separating criminal and impeachment trials, the framers hoped to prevent people from being tried for the same offense twice in the same forum and to allow an impeached official a chance to argue his or her cause on its own merits before the House and the Senate. Moreover, courts often do not impose punishment on a criminal defendant until the latter at least has had a chance to exhaust his

168  chapter thirteen or her criminal appeals. Fundamental fairness requires that the targeted officials should at least be given a chance to do the latter, especially prior to being subject to the permanent, nonreversible punishment of removal. Second, Thurmond’s proposed amendment provided no check against partisanship in guiding criminal investigations and prosecutions. The political motivations or abuse of power underlying a criminal prosecution may not be uncovered until after a conviction is secured, at which point it may be too late because the prosecutor’s desired effect—­the removal, for example, of a federal judge—­would have already occurred. Because criminal and impeachment trials are separate proceedings by constitutional design, the impeachment process at present can serve as an independent check against prosecutorial misconduct. Third, all felony convictions are not equal for purposes of justifying automatic forfeiture of office. The proposed amendment did not distinguish, for example, between different kinds of state and federal felonies, many of which do not constitute reasonable bases for automatic removal of impeachable officials. Nor did the amendment allow members of Congress the chance to debate or exchange views on which felonies, if committed, should constitute reasonable bases for automatic forfeiture of office. Fourth, the proposal glossed over the historic and formal distinctions between removal and disqualification. By its plain language, the amendment seemed to effect the automatic removal of certain impeachable officials from their current positions. The amendment left open the question of whether the impeachment process may still be used to impose the punishment of disqualification on these officers.20

The Creation of a New, Constitutionally Authorized Body for Handling Judicial Removals Following the approach of some states, a few proposed amendments have sought to establish a new body in the constitutional system that would have the authority to discipline and remove federal judges.21 For example, when he was in the Senate, Howell Heflin repeatedly urged the adoption of an amendment that would have established a Judicial Inquiry Commission and a Court of the Judiciary.22 The commission would have received complaints and investigated allegations of judicial wrongdoing or incompetency. Subsequently, the Court would have had to adjudicate all cases brought before it and would have had the power to discipline and remove federal judges. The proposed amendment also would have prohibited federal judges convicted of a felony from thereafter receiving their salaries otherwise due for services as judges.23 There were at least two major justifications for the proposal. The first was that it might have enhanced judicial independence. The decision-­

statutory changes and amendments process  169 makers authorized by the amendment, most of whom were judges, presumably might have greater appreciation than Congress for the kinds of procedures that ought to be provided to impeached judges to guarantee that their removal proceedings are fundamentally fair and respect judicial independence and integrity. Second, the proposed amendment provided a clear answer to the problem of convicted judges being incarcerated, receiving their salaries, and waiting for impeachment and removal proceedings. There were, however, four major problems with the proposed amendment. First, it could have produced the appearance of, and had serious potential for, conflicts of interest in judicial impeachments. It allowed judges to hear impeachment charges against other judges with whom they had sat or built personal relationships or allegiances. The amendment also granted the Supreme Court virtually absolute power to monitor and discipline the judiciary, including the justices themselves: the Court would have been given the powers to appoint some of the members of the special commission empowered to initiate and investigate complaints; to devise a “canon of ethics” “binding” upon all the federal judges, including themselves; to “adopt rules to govern the procedures of the Commission”; to appoint three of the members of the special impeachment court; to “adopt” the “rules to govern the procedures of the [special] Court”; and to review the impeachment proceedings covered by the amendment, including any brought against a fellow justice. In short, the proposed amendment would have effectively made the federal judiciary less accountable than it now is, because the only political check against judicial misconduct it would have allowed was Congress’s impeachment power over Supreme Court justices. Second, this proposed amendment would have countenanced numerous conflicts of interest by delegating impeachment power over the judiciary to a special commission and special court whose respective members are not politically accountable. The framers put the impeachment trial authority in the hands of a politically accountable body. As then-­senator Joseph Lieberman warned, the problem with this proposal is that “a small court, especially one that is unelected with a majority of political appointees could easily become the target of charges of political or other bias and impropriety.”24 In contrast, the constitutional requirements for Senate impeachment trials, including the participation of the senators themselves, “conferred a greater inherent legitimacy on the removal process, and that is critical if we are taking the extraordinary step of pulling somebody off the federal judiciary.”25 Third, the proposed amendment would have threatened judicial independence by making judicial removal easier than it is now and perhaps easier than it ever ought to be. In the hearings on Senator Heflin’s proposed amendment, Judge Walter Stapleton argued that it made political retaliation possible against federal judges who have made unpopular

170  chapter thirteen decisions. He recognized that Congress must “strike a balance between judicial accountability and independence, but we say that balance has got to involve the least threat to judicial independence that is consistent with maintaining the public confidence in the system.”26 He further argued that [b]ecause judicial disciplinary sanctions, and indeed even disciplinary proceedings, provide opportunities for retaliation, any judicial disciplinary system must strike a balance between the twin goals of insuring the integrity of the judicial system and preserving judicial independence. The ideal balance is one that involves the least possible threat to judicial independence consistent with maintaining public confidence in the system. The Conference believes that the Congress and the judiciary, building on the foundations provided in our Constitution, struck just such a balance in 1980, and that this balance should not be disturbed.27

The Heflin amendment would have made political reprisals against federal judges possible because the standards for removals it set forth (such as “misconduct in office,” “failure to perform duties,” and “violation of any canon of judicial ethics”) were arguably so vague as to be easily manipulable and might have subjected judges to the kind of political reprisals against which life tenure was designed to protect them.28 In other words, the Heflin amendment would have risked blurring the line between judicial review of the merits of lower court decisions and of the competency, integrity, and independence of the lower court judges making those decisions. Moreover, it would have diminished the collegiality that is essential to judicial independence: it would have created situations in which federal judges could have charged or tried to remove other judges, who, if they were acquitted, would have still had to sit with or have their decisions reviewed by their accusers. Such circumstances would have undermined rather than enhanced the independence of individual federal judges. Lastly, an amendment proposing the establishment of a new, constitutionally authorized body to handle judicial impeachments might lead to the creation of an independent bureaucracy, whose sole reason for existence would be to identify and prosecute judicial misconduct. In other words, this type of bureaucracy might feel the need to make work for itself by substantially increasing disciplinary investigations and proceedings. Such developments would seriously threaten judicial independence. To be sure, many senators seem to believe that the impeachment process does not work because Congress simply does not have the time, resources, or training to conduct fair and efficient judicial impeachments.29 For senators convinced of the inadequacies of the current system, this kind of suggested amendment may be attractive because it relieves the Senate of the burden of conducting removal trials. Yet, there are two potential problems with this justification. On the one hand, a number of senators have found that the current removal

statutory changes and amendments process  171 process adequately safeguards judicial independence and integrity.30 On the other hand, it is not entirely clear that burdening an already busy Supreme Court or creating a special commission or tribunal will solve the distractions preventing Congress from conducting effective impeachment proceedings.

Authorizing Congress to Determine Procedures and Practices for Judicial Removal Yet another proposal would give Congress authority to determine the practice and procedures to be used in removing federal judges for misconduct or disability.31 For example, the proposed amendment provided that the Congress shall have the power to provide practices and procedures for the removal from office and to provide lesser sanctions for justices, judges, and other federal judicial officers found to be guilty of misconduct in office, failure to perform the duties of office, inability to physically or mentally perform the duties of office, and for violating judicial ethics cannons; and to provide for the suspension of such judicial officer from their duties, with or without pay, when convicted on a felony or under indictment or information charging such judicial officer with a felony.32

This proposal preserves the power in Congress already granted by the Constitution to prescribe procedural rules for impeachments. It empowers Congress to make delegations of the sort embodied in rule XI or in the statute discussed in the previous section. In addition, it clarifies the kinds of offenses for which judges may be removed (essentially it lists the offenses for which judicial officers may be either removed or disciplined, short of removal depending upon the judgment of Congress) and resolves the problem of an incarcerated judge receiving his salary until such time as Congress impeaches and removes him. Lastly, this proposed amendment may be preferable to the Thurmond proposal because the former grants to Congress the discretion to stop compensation for judicial officers “when convicted of a felony or under indictment or information charging such judicial officer with a felony”; to allow appeals as of right; and to treat on an individual basis the merits of charges against federal judges. There are three potential problems with this suggested amendment. First, it could expand the bases on which federal judges may be removed from office. The current understanding is that the Constitution permits disciplining (short of removal) of judges by other judges on matters that do not rise to the level of impeachable offenses. Yet, the proposed amendment seems to eliminate any such distinction, thereby making it easier for Congress to remove federal judges on the basis of misconduct that has never previously been considered to constitute an impeachable offense. According to Judge Stapleton, “it gives Congress carte blanche to

172  chapter thirteen prescribe by whom and how a judicial officer could be removed from office and acquire the withholding of the pay of a judicial officer upon conviction of a felony before rights of appeal have been exhausted and without regard to any seriousness of the offense.”33 A second problem that seems to be posed by this proposed amendment is that it may not be necessary. Article I, section 5 makes clear that the House and the Senate have sole authority over the rules they each may adopt for the proceedings they are empowered by the Constitution to conduct.34 This authority apparently includes within it the power to construct impeachment proceedings against federal judges in any manner each chamber of Congress determines is appropriate, with the only constitutionally required guidelines being the Constitution’s division of impeachment authority between the House and the Senate and the explicit constraints set forth for impeachment trials. The amendment’s provision “for the suspension of such judicial officers from their duties, with or without pay, when convicted of felony or under indictment or information charging such judicial officer without a felony” also may be unnecessary. It is already within the power of the Congress to make suitable amendments to title 18 allowing postponing of sentences in cases involving impeached judges until they are impeached and removed. In addition, prosecution before impeachment can produce a record that may be used to expedite an impeachment. Moreover, the judicial councils already have the power to reassign caseloads for judges, regardless of the reasons for their disabilities. Lastly, one could argue that it is unclear whether this kind of amendment permits judicial review of Congress’s impeachment rules or delegations or of the delegates’ actions (to ensure they comply with congressional guidelines). The proposed amendment might waive or supersede the nonjusticiability of impeachment challenges as recognized in Nixon.

Involving the Supreme Court in Judicial Removal and Discipline There have been three prominent proposals involving Supreme Court participation in judicial removal.35 For example, Senator Warren Rudman proposed a constitutional amendment36 that grants power to the Supreme Court to remove an Article III judge from office (other tha[n] a justice of the Supreme Court), by a two-­thirds vote of the justices, for treason, bribery, or other high crimes or misdemeanors. The Supreme Court, and the Congress by law, are granted authority to adopt rules to carry out the impeachment process. If removal from office is ordered by the Supreme Court, the judge has the right to appeal the order to the Senate, under such rules and

statutory changes and amendments process  173 regulations as the Senate prescribes. A vote of two-­thirds of the Senate is necessary to sustain the order of the Supreme Court. If the House of Representatives votes an article of impeachment with respect to the judge, then the proceedings before the Supreme Court would be terminated. Finally, the amendment specifies that [] nothing in its language shall be construed to limit the powers of the House of Representatives and the Senate to impeach and convict a judge, Supreme Court justice, or other officer of the United States.37

According to Senator Rudman, this proposed amendment is desirable because it “addresses many of the concerns expressed by critics of the Senate process.”38 He explained that “[i]n the hands of the Supreme Court, the removal process offers the judiciary the assurance that impartial judges will rule on their cases. The Senate retains oversight authority by means of the appeals process. The amendment does not limit the ability of the Congress to initiate impeachment proceedings; the Supreme Court process ends if the House of Representatives takes action to impeach.”39 The Rudman amendment, however, has three potential problems. First, it adds an unnecessary layer to the impeachment process. It is likely that impeached judges will take their cases through every level of review they can get. It is also conceivable that many senators may feel that an impeached judge is entitled to separate proceedings in the Senate despite conviction by the Court, under which circumstances the Senate is put back in its present position (with perhaps the not insignificant addition of the Senate’s having the Supreme Court’s findings as a potentially reliable record on which the Senate could base its own conclusions). Second, for those proceedings initiated in the House, the Senate is essentially left in its present position with the same kinds of responsibilities and problems it currently has. Nor is an amendment requiring the Supreme Court to oversee judicial removals likely to clarify many of the procedural issues remaining in question (such as the burden of proof) in the Senate’s removal proceedings. Third, by empowering the Supreme Court to conduct judicial impeachments, the proposed amendment raises the conflict-­of-­interest problems the framers had hoped to avoid in federal impeachments. The amendment’s provision for appeals from the Supreme Court to the Senate reduces but does not eliminate the risk of the Court’s acting on a self-­interested basis in conducting judicial impeachments. Even if appeals to the Senate provided a check on self-­interested decision-­making by the Supreme Court, the Senate must still find the time and dedicate the necessary resources to review impeachment matters.40

PART V PRESIDENTIAL IMPEACHMENT IN THE AGE OF CLINTON AND TRUMP

S

ince Donald Trump became president, hardly a day goes by that a question about impeachment does not arise. A remarkably wide range of charges have been raised against the president, including the use of his office to benefit himself and his family financially, the obstruction of justice, and the degradation of the presidency. Addressing these questions requires reviewing much of the history and law that has already been covered in this book. It also requires learning from the lessons of past impeachments, particularly the impeachment and acquittal of President Clinton. Chapter 14 considers the many lessons to be drawn from President Clinton’s impeachment proceedings. Chapter 15 reviews the law and history that can answer the many impeachment-­related questions that the media, members of Congress, and others have been asking about President Trump since his inauguration in 2017.

Chapter Fourteen LESSONS FROM PRESIDENT CLINTON’S IMPEACHMENT AND ACQUITTAL

I

t is tempting but misguided to dismiss President Clinton’s impeachment and acquittal as having been driven largely by partisanship. To be sure, the first, most obvious explanation of his acquittal can be found in the reasons senators gave for casting their acquittal votes. The most serious problem with relying on such statements is that not all senators produced them. Only seventy-­two senators published such statements. These seventy-­two included thirty-­four of the forty-­five Democratic senators who voted not guilty on both articles of impeachment, four of the five Republicans who voted not guilty on both impeachment articles, and three of the five Republicans who voted not guilty on the first but guilty on the second article of impeachment. Of those thirty-­eight senators who published statements on their reasons for voting not guilty on both articles, more than half—­twenty-­seven—­explained that they did not regard the misconduct alleged in either article of impeachment approved by the House as constituting an impeachable offense.1 Sixteen of the thirty-­eight—­ all Democrats—­explained that the partisan zeal of the house managers in the Senate proceedings and of the Republican leadership in the House affected their votes,2 while fifteen Democrats (joined by Republican Arlen Specter) explained that the house managers had not proven the misconduct alleged in either impeachment article.3 Two Republican senators indicated that they had voted not guilty on the first impeachment article (and guilty on the second article) even though they believed that all charges against the president had been proven,4 while Republican Senator Fred Thompson explained that he had voted not guilty on the first article (but guilty on the second) because he believed its vagueness and failure to specify the statements in which the president had allegedly perjured himself made it impossible to defend against.5 These numbers do not tell the full story of the president’s impeachment and acquittal. Consequently, one could try to explain the president’s impeachment and acquittal further in partisan terms.6 Notably, in the Senate all thirty-­five votes to convict the president on the first article and all fifty votes to convict him on the second article were cast by Republicans.7 Well over 95 percent of the votes cast in the House to impeach the president were cast by Republicans.8 Yet, Democrats arguably acted

178  chapter fourteen throughout the proceedings in at least as partisan a fashion as their Republican counterparts. In the House, over 95 percent of the votes cast in opposition to the president’s impeachment were cast by Democrats.9 Moreover, at the outset of the impeachment trial, it was clear that if the forty-­five Senate Democrats were to have voted as or close to a block in favor of the president’s removal it would be numerically impossible for him to be convicted. In fact, no Democratic senator bolted from his or her party to vote for either impeachment article,10 while ten bolted from the Republican contingent to vote against the first article and five Republicans voted against the second article. The president’s impeachment and acquittal could also be explained in light of a significant trend in the federal impeachment process—­the increasing influence of federal prosecutors in triggering impeaching investigations and proceedings.11 One telling but overlooked fact regarding President Clinton’s impeachment proceedings is that they marked the sixth occasion out of eight in the past few decades in which Congress exercised or contemplated seriously using its impeachment power.12 All eight of those impeachment efforts are linked by the fact that each had been triggered by a referral to Congress from an external investigative authority. This trend dramatically underscored Congress’s inertia in initiating impeachments in the absence of an external referral. Six of the eight impeachment efforts—­involving Judges Claiborne, Hastings, Nixon, Collins, Kent, and Porteous—­were referred to the House by the Judicial Conference of the United States. The other two began with referrals to Congress from two special federal prosecutors—­Leon Jaworski, who, as a special prosecutor appointed by the attorney general, referred to the House several boxes of materials relating to possible impeachable misconduct by President Nixon; and former judge and Solicitor General Ken Starr, who, as an independent counsel referred pursuant to a special provision of the Independent Counsel Act13 evidence that arguably demonstrated President Clinton’s commission of possible impeachable offenses. Of these referrals, one resulted in a Senate acquittal (President Clinton); four resulted in removals (Harry Claiborne, Walter Nixon, Alcee Hastings, and Thomas Porteous); two forced resignations, preempting any impeachment proceedings (Richard Nixon and Robert Collins); and one ended in a resignation after impeachment but before a Senate impeachment trial (Samuel Kent). No other comparable period in American history has matched these results. Though such referrals tempt the House to forgo independent fact-­ finding, the House has generally resisted this temptation. Indeed, the House has not undertaken such fact-­finding only three times, including, most recently, President Clinton’s impeachment. The first time that the House failed to gather evidence or undertake its own fact-­finding was the House’s

president clinton’s impeachment and acquittal  179 impeachment of President Andrew Johnson. The reason for this failure was that the House had undertaken limited fact-­finding in two prior unsuccessful efforts to impeach Johnson. By firing his Secretary of War Edwin Stanton, Johnson had given the proponents of his ouster something that they had not previously had—­an act that, in their view, clearly violated a law—­ the Tenure in Office Act14—­and was impeachable as an illegal act. Moreover, Johnson’s impeachment for having fired Stanton has been widely regarded as perhaps the most intensely partisan impeachment rendered by the House (thereby making it a dubious precedent to follow). Similarly, the House’s failure to undertake independent fact-­finding prior to impeaching President Clinton provided a basis upon which the House’s impeachment judgment could be attacked as unfair. The second instance in which the House failed to undertake any independent fact-­finding was the Claiborne impeachment. The full House impeached Claiborne within a month of the House Judiciary Committee’s formal recommendation of impeachment articles against him. The Committee had unanimously recommended impeachment articles within three weeks of the House’s formal initiation of an impeachment inquiry against Claiborne. Unlike President Johnson or Clinton, Claiborne did not complain about the House’s proceedings (including its failure to undertake independent fact-­finding); he welcomed a quick impeachment, because he believed the sooner he had a full Senate trial the sooner he would be fully vindicated. In addition, the media had enormous impact on President Clinton’s impeachment proceedings in several ways. First, the media’s fragmentation into countless outlets (including newspapers, magazines, television, cable, the internet, and radio) over the past few decades has increased competition to get breaking news and to engage in speculation and commentary—­ rather than simply to report facts—­in an effort to keep or increase audiences. This splintering has made it much more difficult for a single unit to dominate the news. Nevertheless, the presidency as an institution has several important advantages over Congress in being covered by and in spreading messages through the media.15 It is much easier to cover a single individual than it is to cover a collegial body in which many people are acting at once. Hence, it is easier to cover a president, who as a single person is the embodiment and leader of an entire institution, whereas covering Congress institutionally is difficult because it operates through the actions of several hundred individuals. Moreover, the president has considerably more resources to gain media attention or access than anyone in Congress; he has more agents available to spread his messages, and he has more media permanently attached to and covering his activities than any other governmental official. Consequently,

180  chapter fourteen President Clinton’s criticisms of the independent counsel’s investigation and of the House’s case against him received much more consistent coverage than any counter-­attacks. To be sure, the proliferation of media outlets has enabled a president’s critics to find a venue to publicize their charges against him. Such public attacks can deflect a president’s attention or energy and thereby frustrate his achievement of certain preferred objectives. Consequently, the media can wreak havoc by damaging a president’s reputation by a thousand little cuts. The president can lose popularity or some public support from these assaults, but his office still gives him a decisive advantage over his attackers because of the unique resources available to him to gain access to and spread his message through the national media. Recourse to the bully pulpit further enables a president to bypass his political opposition in Washington to urge the American people to support him personally or his agenda. Second, the media’s coverage put a spotlight on the Clinton impeachment proceedings as the first in which the public’s preferences drove the final outcome. Throughout the president’s impeachment trial, his approval ratings held steady at or near 67 percent.16 Similarly, a majority of Americans throughout the proceedings steadily opposed the president’s removal from office. (In contrast, the Senate’s acquittal of President Johnson opposed public preferences.) Yet, more than 70 percent of the American people believe that the president was guilty of the misconduct charged in the first article;17 and 67 percent believe that he had violated various laws.18 These statistics can be reconciled on the ground that 76 percent of the American people believe that the case against the president involved purely private misconduct that should not have been made the basis for his impeachment.19 Another poll found most of the public did not regard the charges made against the president as constituting appropriate grounds for his removal.20 In other words, most of the public did not regard the president’s misconduct as constituting impeachable misbehavior. The Democrats’ steady opposition to the president’s removal tracked the preferences of most Americans. The media’s coverage might have had various other effects on at least the 61 percent of the public that regularly followed the hearings and through public opinion on Congress. First, it might have constantly reminded the public as well as members of Congress of the house managers’ difficulty in arguing convincingly that the president had breached the public trust—­a classic prerequisite for impeachment—­as long as the public did not regard its trust with the president as having been breached. Second, the media’s constant bashing of the president’s integrity throughout his presidency—­particularly for the more than nine months that preceded the formal impeachment inquiry against the president—­might have lowered the public’s expectations regarding the President’s integrity. New

president clinton’s impeachment and acquittal  181 allegations of presidential misconduct would not have surprised much of the public nor did they shift its basic opinion of the president. Third, the media’s obsession with finding the next Watergate might have increased the public’s skepticism over the chances that the president’s impeachment proceedings had uncovered it. The rhetoric with which the media characterized every new scandal of the Clinton White House—­Filegate, Travelgate, MonicaGate, Koreagate, ChinaGate, Whitewater—­had been phrased to liken President Clinton’s scandals to those of Richard Nixon, but the public found the comparisons wanting. The repeated attempts to liken the president’s scandals to Watergate, particularly before full investigations had been launched, might have led many people to conclude that the most strident supporters of his removal were akin to the boy who cried wolf. Fourth, the media’s comprehensive coverage bored the public, and the media’s increasing penchant for scandal and speculation turned off most of the public,21 while prolonging the hearings held little, if any, prospect that anything new would happen. In virtually every poll, most Americans indicated their opposition to the proceedings from the outset and that they were sick and tired of the trial by the time it was over. As reported by the media, the public’s exasperation with the trial, coupled with the public’s steady opposition to removal of the president, intensified pressure to end the hearings.

Lessons from Clinton’s Impeachment and Trial Divining the likely lessons of President Clinton’s impeachment and acquittal requires determining how subsequent generations, particularly future congresses, will assess the significance of the Clinton impeachment. We can only speculate about the range of possible lessons of the president’s impeachment and acquittal, based on some spin that is being applied to the event and the consequences roughly similar events have previously had. It of course remains to be seen which lessons will withstand the test of time and which possible effects do in fact arise. First, the Democrats’ uniform opposition to the president’s conviction highlighted the enormous difficulty of securing a conviction in a presidential impeachment trial as long as the senators from a president’s party unanimously support him. Rarely has a political party dominated more than two-­thirds of the seats in the Senate. The solidity of the Democratic ranks in President Clinton’s impeachment trial dramatically showed that a president’s removal is possible only if the misconduct is sufficiently compelling to draw support from both sides of the aisle for a conviction. In the absence of bipartisan support for removal, acquittal is virtually guaranteed. The likelihood of this outcome is also a consequence of the

182  chapter fourteen constitutional requirement for at least two-­thirds of senators to concur to effect a removal. The supermajority requirement makes conviction highly unlikely, for it is difficult to get such a high degree of consensus among senators, particularly when the stakes are high. When such consensus is achieved, it is likely to be the result of a very compelling and credible case for removal. Second, the president’s acquittal may have shown impeachment’s limitations as a check against a popular president’s misconduct. The president’s acquittal arguably generated uncertainty about Congress’s resolve to conduct impeachment proceedings against a president with high approval ratings. The congressional investigation into Watergate took more than two years, before the “smoking gun”—­the tapes of certain conversations in the White House—­that led to President Nixon’s resignation were discovered. The Clinton impeachment proceedings took roughly six months from start to finish. As such, they are among the shortest in American history (the two shortest were Johnson’s impeachment proceedings, which lasted less than three months from start to finish, and the Claiborne impeachment proceedings, which lasted about three months.) Yet, the relative brevity of President Clinton’s impeachment proceedings was too long for most people. While it is true that most Americans did not believe President Clinton’s case involved legitimately impeachable offenses, some investigations might not uncover seriously problematic misconduct (at least in the public’s view) for some time. Clinton’s impeachment proceedings raised questions about how patient the public will be with lengthy investigations; how serious the misconduct of a popular president must be to convince most Americans to support serious investigations into misconduct and possible ouster from office; whether impeachment will be effective only for the kinds of misconduct that can galvanize the public to set aside its approval of a president’s performance to support resignation or removal; and whether future congresses might support removal only if there is direct, incontrovertible evidence of serious wrongdoing and unambiguous consensus (in Congress and among the public) on the gravity of such wrongdoing. Third, President Clinton’s impeachment proceedings underscored the greater vulnerability to impeachment and removal of those officials who lack a president’s resources or popularity. It is conceivable that an unpopular president such as Andrew Johnson might meet a different fate in an age in which the media constantly applies pressure to investigate a president’s misconduct (or actions that have made him unpopular) and in which daily polls can dramatize a loss of popularity and increase in support for removal. In such circumstances, removal or resignation might be more likely. (To date, the only instance like this occurred during the final days of Richard Nixon’s presidency, when the public for the first and only time during the Watergate investigation expressed support for the

president clinton’s impeachment and acquittal  183 president’s ouster based on information revealed in the Watergate tapes.) The dynamic is likely to be more problematic for a federal judge, perhaps even a Supreme Court justice, whose hearings are unlikely to get anything near the widespread media coverage that President Clinton’s proceedings received, nor the outpouring of public opposition to prolonging hearings. A federal judge simply lacks the resources of a (popular) president in opposing political retaliation in the form of an impeachment. Fourth, the Clinton impeachment proceedings served as a dramatic reminder that the burden in an impeachment proceeding is on the advocates of impeachment to show that the charges have not been based on nor motivated by partisanship.22 No doubt, a proponent of President Clinton’s removal might claim the charges were not based on partisanship but rather the needs to protect the judicial system’s integrity and to ensure the president’s compliance with his official oath (even in a civil lawsuit whose focus in unrelated to his official duties). Yet, those charging Chase and Johnson with impeachable misconduct argued the same thing; they claimed that the charges against those officials were based on the officials’ respective abuses of authority and not on partisanship. Ultimately, those seeking Johnson’s and Chase’s removals failed to carry their burdens (for a critical mass of senators or posterity). Similarly, those seeking President Clinton’s removal have failed to convince most Americans (as well as any Senate Democrat) that their charges against him were not motivated substantially by partisan dislike for the president. The fifth lesson to be derived from President Clinton’s impeachment and trial is that it affirmed the House’s and Senate’s final, nonreviewable discretion to conduct its respective impeachment proceedings. In the course of President Clinton’s impeachment proceedings, representatives and senators fully appreciated the significance of Nixon v. United States,23 in which the Supreme Court unanimously ruled that challenges to the constitutionality of Senate impeachment trial procedures are nonjusticiable. The Court recognized the Senate’s final, nonreviewable authority to devise impeachment trial procedures as it saw fit. Amply familiar with the implications of this ruling, representatives and senators drew on their experiences with or understandings of prior proceedings to fashion their respective impeachment proceedings against President Clinton. For example, in controversial decisions, the House decided (for only the third time in history) not to call any live witnesses or otherwise undertake any independent fact-­finding; to hold a final vote on the impeachment articles in a lame duck session;24 and to forgo adopting a uniform standard for defining the impeachability of certain misconduct. In the House, representatives decided for themselves (as had been done in prior proceedings) such questions as the applicability of the Fifth Amendment due process clause, the appropriate burden of proof, and the propriety of allowing three of their colleagues—­Jim Bunning, Mike

184  chapter fourteen Crapo, and Charles Schumer—­to vote on the articles even though each had been elected to the Senate before the final House impeachment vote and scheduled to participate in the president’s trial. In the latter proceeding, senators decided for themselves (as had been done in several prior trials) such procedural questions as the appropriate burden of proof, the applicable rules of evidence, the appropriate standard for determining the impeachability of the president’s misconduct, and the propriety of holding closed door hearings on a variety of issues (including final debates on the president’s guilt or innocence). Sixth, the Clinton impeachment proceedings arguably confirmed there are different standards for impeaching presidents and judges. A popular argument made by the president’s defenders in the House and Senate was that there are different standards for impeaching different officials based on the officials’ respective tenures and responsibilities. Judges serve only “during Good Behavior”25 and thus arguably could be removed for misbehavior that includes but is not necessarily limited to impeachable offenses. Presidents are popularly elected, and thus the electoral process arguably operates as the primary check against a president’s abuse of power. Since a president presumably will return to private life after his term, he is vulnerable in a way a judge will not be to be held accountable for civil or criminal misconduct when it will not interfere with his official duties. Yet, several factors cut against interpreting the president’s acquittal as endorsing different standards for impeaching different officials. First, the constitutional language is uniform.26 Second, the assertion is counter-­ historical. It conflicts with the founders’ intention to adopt the phrase “during Good Behavior” to distinguish judicial tenure (life) from the tenure of elected officials (such as the president) rather than to define the terms of judicial removal. Moreover, the argument that the Constitution establishes different standards for impeaching presidents and judges is a relatively new one in the annals of impeachment history.27 For instance, President Johnson never made such a claim, though his impeachment had been preceded by four judicial impeachments, including Associate Justice Samuel Chase’s. The most plausible precedents for this point of view are the impeachments and removals of Judges John Pickering (for drunkenness and insanity) and Harry Claiborne (for income tax evasion), because each judge had been removed for misconduct arguably unrelated to his official duties and thus for basic misbehavior as opposed to the abuse of official power. Yet, neither precedent supports a looser standard for impeaching federal judges. In fact, Pickering was impeached and removed because he could no longer function as a federal judge and because there was no other alternative for handling a federal judge who had become completely dysfunctional.28 This same reasoning led to Claiborne’s removal,

president clinton’s impeachment and acquittal  185 for the House Report on Claiborne indicates that a central problem was that he had become completely disabled from functioning as a federal judge because of his criminal conduct, conviction, and imprisonment.29 Allowing judges to be removed for misbehavior falling short of an impeachable offense undercuts the constitutional safeguards that prevent political retaliation against judges for doing their jobs. This is a third reason why President Clinton’s acquittal should not be construed as signaling the existence of different standards for impeaching different types of officials. The constitutional structure ceases to make sense if judges may be removed either through the cumbersome, difficult process of impeachment for impeachable offenses, or an easier, looser process (administered by Congress or others such as judges) for misbehavior that falls short of an impeachable offense. Moreover, elections no longer provide adequate checks against presidential misconduct, because presidents are restricted to two terms and thus a second-­term president is no longer subject to the electoral process. In addition, the fact that the consequences that might ensue from an attempt to impeach a president might be different from those resulting from a judge’s removal does not support different constitutional standards for impeaching presidents and judges. Rather, the consequences of an impeachment are relevant as factors to be considered in the course of applying the operative standard. The vesting of impeachment authority in political branches necessarily implies the discretion to consider various factors (including possible ones) in the course of exercising such authority.30 In addition, of the seventeen senators who addressed this issue in the Clinton impeachment trial, eleven (ten Republicans and one Democrat) claimed the same standard applies for impeaching presidents and federal judges.31 Regardless of whether subsequent generations will construe the Clinton impeachment proceedings as confirming that there are different standards for impeaching presidents and judges, they will inevitably have to ponder what standard, if any, the Clinton proceedings endorsed for determining the impeachability of the president’s misconduct. To be sure, neither the House nor the Senate formally endorsed a specific standard of impeachment. Instead, it appeared that there were almost as many standards for determining the impeachability of the president’s misconduct as there were representatives and senators voting on the articles of impeachment. Nevertheless, the Clinton acquittal confirmed the framers’ expectations that Congress would determine on a case-­by-­case basis the misconduct that constituted “other high crimes or misdemeanors.”32 The constitutional standard was designed to narrow the range of impeachable offenses from that which was available in England (where there were no restrictions on the scope of impeachable offenses), but the standard remains rather broad.

186  chapter fourteen The Constitution contemplates that an impeachable offense is a political crime about whose essential elements the framers agreed only in the abstract (including such general preconditions as serious injury to the republic). Consequently, every impeachment has featured a debate over whether the misconduct charged constitutes a political crime. These debates reflected the practical impossibility of getting the House or Senate to adopt a uniform standard for determining the impeachability of misconduct. The resolution of these debates has tracked the historic practice in which the members decide for themselves how to resolve a series of procedural issues. The debates over the scope of impeachable offenses have featured tugs of war in which those seeking impeachment defend relatively broad, amorphous standards that they can show have been easily met in a given case—­and those opposing impeachment support very narrow standards that they claim have not been met in the specific circumstances of the case before them. While the debates over the scope of impeachable offenses in particular cases have not produced consensus among senators, the outcomes of impeachment trials have revealed an interesting pattern. The eight federal officials whom the Senate has convicted and removed from office (all federal judges) have shared misconduct that (1) has caused a serious injury to the republic and (2) has had a connection with the official’s duties. In assessing the latter, members of Congress have considered the degree to which certain misconduct has been either so outrageous or so thoroughly disabling or incompatible with an official’s duties as to give Congress no choice but to remove an official. In President Clinton’s impeachment trial, several senators explained their acquittal votes on the absence of one or more of these elements.33 Yet, an unfortunate consequence of Clinton’s acquittal might have been that it left many people with the impression that impeachment is just another political event. Over 70 percent of the American people believed that the president’s impeachment trial had been resolved largely on partisan grounds.34 This outcome is not what the framers wanted. For instance, in Federalist No. 65, Alexander Hamilton expressed the hope that senators in an impeachment trial would rise above the passions of the moment to do what is in the best interests of the Constitution or the nation.35 Arguably, Johnson’s acquittal (resulting from seven Republican senators’ crossing party lines against their political interests) is an example of such altruism. In contrast, the Clinton impeachment proceedings posed a different dynamic from the one that Hamilton explained the founders had tried to guard against. The Senate’s failure to convict President Clinton followed popular sentiment, but it generally weakened the public’s confidence in Congress.36 The founders were primarily concerned with circumstances in which the public pressured Congress to remove presidents

president clinton’s impeachment and acquittal  187 (and senators resisted) and did not address situations in which the public opposed while members of Congress intensely supported removal. It is possible that one facet of the Clinton impeachment proceedings that reduced people’s confidence in Congress to operate neutrally is the fate of censure. Censure was blocked for several reasons put forward by Republicans in both the House and the Senate. Censure opponents claimed that it constituted a bill of attainder or an illegitimate bypass of the only constitutionally authorized means—­impeachment—­for dealing with a president’s misconduct. Neither of these arguments is sound. To begin with, a bill of attainder is a legislative action that seeks to impose a punishment on an individual in the absence of a judicial proceeding.37 A censure could qualify as a bill of attainder only if it actually imposed tangible punishment. If a censure consisted only of the verbal expression of critical condemnation of a president’s conduct, the only conceivable damage that would ensue is to a president’s reputation. Yet, reputation is not something that the prohibition of bills of attainder was designed to protect;38 the prohibition has had the narrower purpose of precluding fines, physical punishment, or imprisonment imposed by a legislature as a substitute for a judicial proceeding. Even if there were damage to a president’s reputation, it is likely to have resulted from expression that is undoubtedly protected by the First Amendment and speech or debate clause. The argument that censure is illegitimate because impeachment is the only constitutionally authorized means for Congress to punish a president might have struck many people as disingenuous (indeed, most Americans supported censure as an alternative to impeachment throughout the proceedings39). First, the argument that impeachment is the only means for dealing with a president’s misconduct is flawed. The argument for censure was that it was a legitimate option for dealing with a president’s misconduct that did not rise to the level of an impeachable offense. Impeachment has no bearing whatsoever on what Congress may do regarding the latter category of misconduct, for it exists as the exclusive mechanism for removing a president for impeachable misconduct. Second, the constitutional text can easily be read as allowing censure. In particular, Article I, section 7 provides that “Judgments 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  .  .  .”40 This clause apparently leaves open the possibility of punishments that fall short of removal of office, such as censure. Third, the Constitution clearly allows senators individually (by virtue of the First Amendment and speech or debate clause) to announce publicly each’s condemnation of a president’s misconduct. If the senators may engage in such expression individually, it is not clear why constitutionally they may not do so collectively. The Constitution is also silent

188  chapter fourteen about whether a senator may get a list of her colleagues’ signatures on a document castigating the president and then enter that document into the Congressional Record. A censure is the functional equivalent of the latter action. While one could object that censure might be a futile act politically or could be overused to harass a president (or another official), these are prudential and not constitutional objections. The calculation of whether a censure is constitutional is separate and distinct from whether it makes political sense in any given case to use.41 Another option that clearly seems to have been a casualty in the Clinton impeachment proceedings is the so-­called finding of fact that the Senate ultimately refused to make in President Clinton’s impeachment trial. The proposal was a variation on an odd reading of the impeachment clauses given by University of Chicago Law School professor Joseph Isenberg.42 Isenberg suggested that the Constitution allowed the House to impeach and the Senate to convict for misconduct besides “Treason, Bribery, or other high Crimes and Misdemeanors.” Based on that peculiar analysis (Isenberg argues the text “treason, bribery, and other high crimes or misdemeanors” was meant to convey at least those terms as grounds for impeachment), some senators considered allowing a vote on a finding of fact (which could have found Clinton guilty of misconduct) separate from a vote on whether he should be removed from office. In the views of its supporters, the finding of fact would have been indistinguishable from censure, for it would have arguably been nothing more than an expression of criticism of an official’s conduct. If true, then it would have been constitutional for the same reasons as censure. The proposed finding of fact proved extraordinarily problematic. First, it relied mistakenly on reading the impeachment clauses in a disjointed or disconnected fashion. They should be read together, as a coordinated and coherent whole. When read in this fashion, it is clear that the impeachment clauses all have in common the obvious—­impeachment—­and impeachment is inherently defined by its scope. The point of enumerated powers is that powers have limitations, and impeachment has its limits in the constitutional language, “treason, bribery, and other high crimes or misdemeanors.”43 To disconnect the House’s or Senate’s impeachment power from the scope of impeachable offenses not only undermines the coherence of the constitutional text and structure, it also opens the door to extraordinary abuse on the part of the House or Senate—­for each would then be completely unrestrained from impeaching or convicting on whatever basis struck its fancy. Nothing confirms more dramatically that no such door was meant to be opened than the debates on impeachment in the constitutional and ratifying conventions, for throughout these debates it was always clear that one of the framers’ most important

president clinton’s impeachment and acquittal  189 objectives was to define narrowly—­certainly, much more narrowly than Great Britain had ever done—­the scope of the impeachment power. Another major problem with the finding of fact was the uncertainty of its purpose or status. Indeed, its timing—­prior to the adjournment of the impeachment trial—­made its status dangerously ambiguous. As long as the Senate’s vote on the finding of fact occurred during the impeachment trial, it could easily have been confused with a vote of conviction, and some senators understood it as tantamount to the latter. Undoubtedly, many senators who supported the finding of fact were motivated in part by their desire to prevent the president from claiming vindication or acquittal if the Senate failed to convict him for perjury or obstruction of justice. The finding of fact would have allowed these senators to suggest that the president had been found guilty of certain misconduct (as defined in the finding of fact) by whatever number of senators had voted in favor of the finding of fact. Hence, the finding of fact might have represented a device to effect a conviction without the requisite vote. If the finding of fact were the same as or tantamount to a vote of conviction, then at least two-­thirds of the senators would have had to vote in favor of it in order for it to have had the effect of a conviction. If at least two-­thirds of the senators had voted in favor of it, it almost certainly would have served as a conviction, and its subject—­the president—­would have been removed from office. If two-­thirds of the senators had not voted in favor of the finding of fact, then the president almost certainly would have been entitled to have claimed that the vote should have counted as an acquittal. Indeed, if senators had been required to take another vote on whether to convict (or remove) the president after having voted on the finding of fact, the president would probably have had good reason to claim a violation of fundamental fairness. For a vote on conviction following a vote on the finding of fact would have appeared to have allowed some senators the chance to try to convict the president on more than one vote—­through the vote on the finding of fact and through the subsequent vote on conviction or removal. Subjecting the president more than once to a vote of conviction would simply have subjected him to a dubious and arguably spiteful process, and the result surely would have been perceived as unfair. Moreover, the fact that the Senate took separate votes on guilt and removal in some earlier proceedings does not necessarily show that the Senate may convict for a nonimpeachable offense. First, in each of the earlier trials in which the Senate took such separate votes, it voted to remove the official from office. It is significant that in each of these proceedings, the Senate took a single vote on whether to remove the official only after the latter had been found by more than a two-­thirds vote to have been guilty

190  chapter fourteen on the charges set forth in any single article. For instance, the Senate voted 19–­7 to find Pickering guilty on each of four articles and then took a single vote 20–­6 to remove him from office (with Senator William Wells from Delaware deciding to switch sides for the final vote to go with the supermajority because the outcome was a foregone conclusion). Similarly, after a supermajority had found Humphreys guilty on each of seven articles of impeachment (with the exception of one of the three specifications of misconduct set forth in the sixth article), the Senate voted unanimously to remove Humphreys. In Archbald’s trial, the Senate took a voice vote to remove him once a supermajority had found him guilty of the misconduct charged in five of the thirteen articles of impeachment passed by the House. These sequences suggest that as long as two-­thirds or more of the Senate had found an official guilty of the misconduct charged in at least one article, removal was inevitable. In contrast, the Senate failed to take any vote on removal in each of the impeachment trials in which at least two-­thirds had not found the impeached official guilty of the misconduct charged in any impeachment article.44 This trend (along with the sequence referenced in the previous paragraph) confirms further that a supermajority vote in favor of guilt was a prerequisite to a separate removal vote and that once this prerequisite was met a separate removal vote was a mere formality. Indeed, in the 1936 impeachment trial of Halsted Ritter the Senate took the position that it was not constitutionally obliged to take separate votes on guilt and removal. It concluded then (and has taken the position consistently ever since) that a single vote to convict is all that it is constitutionally required to do. Yet another obvious casualty of President Clinton’s impeachment and acquittal was the Independent Counsel Act. President Clinton’s tangles with the Office of Independent Counsel’s Kenneth Starr unleashed unprecedented criticisms of the Independent Counsel Act. Consequently, Congress, with President Clinton’s acquiescence, allowed the act to expire at the end of June 1999. The Clinton impeachment proceedings demonstrated two major problems with the Independent Counsel Act (apart from any lingering questions about its constitutionality). The first was evident in the act’s failure to provide adequate safeguards against the aggressive efforts of an independent counsel—­Ken Starr—­to influence the course of the impeachment proceedings. Starr attempted such influence through a series of actions, including but not limited to the strong characterizations and brief-­like quality of his office’s referral,45 aggressive advocacy on behalf of the wording or characterizations of the referral in his testimony before the Judiciary Committee,46 submission to the Committee in response to White House attacks on the eve of the impeachment vote,47 public response to criticisms of his

president clinton’s impeachment and acquittal  191 testimony from his former ethics adviser (who had quit in protest to the tenor of the testimony),48 and assisting the house managers on the eve of the impeachment trial’s conclusion to meet informally with Monica Lewinsky to determine her feasibility as a witness. These actions undermined Starr’s claims of impartiality. The more Starr tried to interject his office into the impeachment fray the less independent and the more partisan he appeared to be. At the very least, such actions highlighted the need to revise the act radically to constrain or preclude such actions in the future. The impeachment hearings also exposed a largely overlooked pragmatic justification for abandoning the Independent Counsel Act (apart from any lingering questions about its constitutionality). The problem was that an independent counsel had no means to defend the integrity of his investigation in a public relations battle with the White House. In such a skirmish, the president has unparalleled means to undermine the so-­called neutrality of the independent counsel’s investigation. In contrast, the system that preceded the Independent Counsel Act provided a strong disincentive for a president to attack a special prosecutor, because the latter would have been appointed by the president’s attorney general and thus a president’s attack on such an appointee would appear to be an attack against himself. Such was the case with President Nixon’s firing of Archibald Cox, a decision that backfired against Nixon. Firing Cox only made Nixon look guilty. The prospect of such backfiring left most other special prosecutors who had been appointed by presidents or Attorneys General immune to a president’s retaliation.49 Last but hardly least, President Clinton’s acquittal was not a personal vindication. During the hearings, virtually every senator issued strong public condemnations of the president’s misconduct. Those supporting the president’s conviction condemned the president in the harshest of terms. With one exception (Senator Tom Harkin), the president’s defenders strongly condemned his behavior. They contended repeatedly throughout the impeachment proceedings that his acquittal should not be construed as foreclosing other forums in which to hold him accountable for his misconduct. This widespread condemnation of the president is likely to have some historical if not some constitutional significance (beyond the damage to the president’s personal reputation and legacy). For example, it might confirm that in our constitutional system impeachment exists only for a small or rare set of misdeeds, while there are other forums for holding presidents accountable for their nonimpeachable misconduct. Indeed, a common lesson to be derived from Justice Chase’s acquittal is that impeachment is an inappropriate device for retaliating against a federal judge’s official rulings. The appropriate forum for dealing with a judge’s mistaken rulings is the judicial system, particularly through the appeals process. A popular lesson drawn from President Johnson’s acquittal is that impeachment is an inappropriate mechanism for

192  chapter fourteen redressing a president’s mistaken policy judgments.50 Appropriate forums for dealing with such erroneous judgments include the court of public opinion, elections, and the judgment of history. A critical lesson for subsequent generations to draw from President Clinton’s acquittal is that, while his misconduct did not have a sufficiently public dimension (nor harm) to warrant his removal from office,51 there were other forums available for holding him (or others who engage in similar misconduct) accountable, including not only public opinion and the judgment of history, but also possibly censure and civil or criminal proceedings (such as Judge Susan Webber Wright’s contempt citation and subsequent fining of the president).52

Chapter Fifteen IMPEACHMENT AND PRESIDENT TRUMP

T

he best place to start any analysis of the impeachment-­related issues connected to Donald Trump’s presidency is with the many charges of misconduct that have been leveled against him. My focus will not be on the truth or validity of any particular charge made against the president but rather on considering how any such charge fits into the constitutional law governing impeachment, conviction, and removal.

The Charges against President Trump The first set of charges leveled against President Trump involves his personal and his family’s finances, which have largely been kept private from the public and the media.1 Finance-­related questions of misconduct encompass a wide range of possible problems, including financial arrangements that Trump failed to disclose as a candidate and whether, to what extent, or in what ways he has benefited, or could benefit, financially as president. One of the many concerns about his finances is with possible conflicts of interest that he has not acknowledged or has disregarded since he entered office.2 Other concerns related to the president’s finances are with possible fraud or violations of the emoluments clause, as well as any possible attempts through inappropriate means to hide financial arrangements with or connections to businesses or governments with which he is interacting as president. Some of these charges have already been substantiated. For example, there are the charges that President Trump, prior to his election, may have made inappropriate payments to his then-­personal lawyer Michael Cohen to hide personal relationships that would have harmed his presidential campaign if publicized. In August 2018, Cohen pleaded guilty to eight criminal charges, including two counts in which, allegedly following Trump’s direction, he bought the silence of two women who claimed they had had affairs with Trump. In the Teapot Dome scandal during Warren Harding’s administration and in the Watergate affair, journalists and other investigators adopted the strategy of “following the money” in order to identify who was benefiting from or encouraging criminal misbehavior.3 The same principle applies to President Trump—­that is, figuring out the extent to which he

194  chapter fifteen has engaged in any financial misconduct will require following the ways in which he has made money, either as president or in business, but never disclosed. The second set of charges involves so-­called collusion with Russian officials or the Russian government. The word collusion can be confusing since it is not used in any federal statute. Nonetheless, it generally refers to some kind of coordination or cooperation between Trump campaign officials and Russia or Russian officials. Collusion is a concern because any such collusion or coordination is a serious problem. If any misconduct along these lines happened before the presidential election, it would be in violation of federal laws (and, apart from any statute, a bad act). If there were any collusion after the election, it would present a different but equally serious problem, which possibly includes, among other things, treason (if American interests were compromised or jeopardized), bribery (if the president received any personal benefit in exchange for favors), or fraud. The next category of possible misconduct by President Trump involves obstruction of justice. Obstruction of justice entails the attempt to impede an official investigation.4 Merely trying to impede justice entails obstruction and is enough for impeachment; success is not required. President Trump has been accused of obstructing justice in numerous ways, such as by firing James Comey as the head of the Federal Bureau of Investigation5 and by taking actions or making false (public) statements to impede Special Prosecutor Robert Mueller’s investigation into possible connections between the president or his campaign with the Russian government.6 Trump’s White House counsel Donald McGahn’s subsequent cooperation with Mueller’s investigation has raised speculation about what subjects and evidence McGahn discussed with Mueller’s office, including obstruction. Another accusation leveled against President Trump involves possible abuses of power. Indeed, one ground for impeaching President Nixon was his ordering officials within his administration to harass his political enemies. A similar concern that has been expressed with respect to President Trump involves whether he has abused particular powers, such as his pardon and removal powers.7 Yet another charge made against President Trump is that he has engaged in misconduct that degrades his office. The question here is the extent to which his conduct has damaged the office of the presidency in sufficiently serious ways to warrant consideration through impeachment or another process. For example, concerns about his mental competence will likely lead to a discussion of the procedures set forth in the Twenty-­Fifth Amendment for addressing a president’s mental or physical incapacity.

impeachment and president trump  195 Moreover, there are many pending lawsuits that were filed against Trump before his election, and more than one hundred lawsuits have been filed against him since he became president.8 The overwhelming majority of the cases filed against him as a private citizen, well before he became a presidential candidate, have been resolved. Of the remaining lawsuits filed against him in his private capacity (which would have extended until his inauguration in January 2017), perhaps the most significant are those which allege the president should be liable for libel, fraud, and sexual harassment.9 Besides the charges made in the cases themselves, a concern for President Trump is lying publicly or under oath, the latter of which was a major factor in President Clinton’s impeachment proceeding. As a result, members of Congress, journalists, and others will be monitoring what Trump says or does in any of these cases, particularly whether in public statements or under oath he says something demonstrably untrue. As we explore the answers to these questions, it will be helpful to keep two other things in mind. First, these questions will require reviewing some of the material previously covered in this book. We will need to revisit some principles and points made earlier about the impeachment process. That review, and my answers to these questions, will be focused strictly on the constitutional standards for impeachment. I leave issues of fact to be assessed by the legal and constitutional processes established for holding people accountable for their conduct in office. In the following analysis, I primarily seek to clarify how the Constitution applies to possible misconduct that has been alleged.

The Emoluments Clause and Impeachment President Trump is the first person to become president straight from the business world. When he decided not to place his substantial business interests in a blind trust or to divest those interests, he raised more questions than any other president ever had about the meaning and application of the emoluments clause in the Constitution. This clause provides in pertinent part that “no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any King, Prince, or foreign state.” Whether or not a violation of the emoluments clause could constitute a legitimate basis for impeachment depends on the answers to several questions. First, does the clause apply to the president? Professors Seth Barrett Tillman and Josh Blackman have argued that the clause does not apply to the president, but most presidents (concededly not the earliest ones, including George Washington and Thomas Jefferson), the Congressional

196  chapter fifteen Research Service (which advises members of Congress on legal and constitutional questions), and the Justice Department have all concluded that the clause does apply to presidents. If the clause does not apply to the president, then we can end analysis of the emoluments clause here; however, if the clause applies to the president, there are several other questions that must be answered in order to determine whether a violation of the clause is serious enough to constitute a legitimate basis for impeachment and removal. The next big question is what are emoluments? Emoluments are the “profit derived from a discharge of the duties of office,” or so Professors Blackman and Tillman maintain in their extensive commentaries on the subject.10 In the literature, emoluments include payments, gifts, or benefits given to the president by foreign entities.11 Obviously, in order to determine whether something is an emolument, we first must determine the nature of the payment, benefit, or gift and whether it came from a foreign power or official. A payment from a private source, including a citizen, group, or business from another country, might not satisfy this clause’s concern with a benefit given to the president by a foreign power. Third, has Congress approved the receipt of the emolument? The emoluments clause allows Congress to approve the president’s receipt of an emolument from a foreign power. If Congress were to authorize the payment or gift (presumably for a legitimate reason), then the emoluments clause analysis likely ends as a practical matter. But, as it turns out, there is more than one constitutional clause that mentions or pertains to emoluments. For example, there is the presidential compensation clause, which bars the receipt of any “emolument” from the United States besides the official salary.12 If, for example, it could be shown that the president received benefits of some kind from the U.S. government beyond a salary, that could be a problem. Without President Trump’s financial statements, we do not know whether this has happened or, if it has happened, to what extent or from what sources. Even then, he might argue that the American people might have ratified (that is, consented to) his benefiting from the presidency in some financial way. An obvious response is that Article II, section 1, clause 7, recognizes no exceptions to its restrictions on presidential salaries.13 In response, President Trump or his defenders could claim that, even if he somehow violated the emoluments clause, voters ratified his conduct. In other words, voters arguably determined that any such violation was an acceptable cost of having this successful businessman elected to the presidency. Indeed, the same point might be asserted for all similar violations. In the great scheme of things, any such problems might be outweighed by all the good that the president can achieve, including, in the case of Do­ nald Trump, fulfilling his promise to make America great again.

impeachment and president trump  197 A fourth question is how significant or substantial is the gift, payment, or benefit the president received? Perhaps Washington and Jefferson did not report the gifts given to them because they concluded they were trivial and therefore unimportant. If, for example, a foreign power takes the president to dinner, we do not consider that to pose an emoluments problem. But, if a gift is substantial—­say, a mansion or yacht—­then it more clearly might qualify as an emolument for purposes of this clause. Last but not least, has President Trump acted in bad faith with respect to the emoluments clause? The size, magnitude, and substantiality of the gift, benefit, or payment to the president notwithstanding, did the president fail, perhaps inadvertently, to report it to Congress, or was it something to which he was indifferent? Or did he commit any violations knowing he was skirting or violating the law? An innocuous mistake will not likely violate this clause, but a deliberate effort to circumvent the clause’s applicability and deceive Congress or the American public about the receipt of a substantial benefit, gift, or payment would be in violation of the emoluments and compensation clauses of the Constitution. The severity of these breaches should be obvious; they would undermine the president’s integrity, reflect bad judgment and arguably cravenness, degrade the office (and its standing around the world), and injure the republic. The flaunting of the law is invariably a matter of central concern in the impeachment process. Even if the receipt of the benefit, gift, or payment is not technically a violation of a statute or the emoluments clause, the possibility of impeachment is not out of the question. Misconduct does not have to be technically illegal—­that is, forbidden expressly by civil or criminal law—­in order for it to constitute an impeachable offense. A reliable test for determining whether something constitutes an impeachable offense is whether there was both bad faith and a bad act. At one extreme, if the president was bribed, then the misconduct is impeachable, because the Constitution expressly provides bribery as an impeachable offense. But, even if the president did not accept a bribe, there could still be a problem if it could be persuasively shown that out of avarice or malice the president received a gift, payment, or benefit that corrupted the presidency or caused the republic serious injury. Consider the following hypothetical: assume that, before he became president, Trump’s business had licensed the construction of a hotel in Moscow. Assume further that, after he became president, the hotel was built, but war or armed hostilities subsequently broke out between the United States and Russia. What if, as the president considered possible bombing targets, he made clear that he wanted his hotel (and any other financial interests or relationships) to be off-­limits from bombing but he encouraged the targeting of other competitor hotels? Alternatively,

198  chapter fifteen imagine that Russian officials or Saudi Arabian officials or royalty have had instrumental roles in helping Trump’s businesses remain solvent, and, in return, Trump used presidential powers to grant special favors to such officials. What if, for example, Trump as president chose to ignore (or lie about) bad actions performed or authorized by Russian or Saudi Arabian investors? Are there any problems with these kinds of presidential actions, and, if so, would they warrant further investigation or conceivably rise to the level of an impeachable offense? Trump’s actions undoubtedly could, and the reason why should be obvious: we do not want presidents’ judgments or actions to be clouded, tainted, or corrupted by their financial interests. One of the basic things we know from the origins, purposes, and design of the federal impeachment process is that curbing presidential corruption was a major objective for the framers. If a link could be established between a presidential directive, decision, or action and the president’s own financial interest, then it seems obvious that an inquiry, at the very least, is justified to explore the nature of that connection. There is, however, an additional wrinkle to keep in mind. Let’s assume that the benefit, payment, or gift goes not to the president but rather to the president’s family or friends. In this circumstance, the president is not directly receiving an emolument in violation of the Constitution, but he or she could be using presidential powers or the office for the personal gain of family or friends. Here, it does not matter if there is a violation of the emoluments clause. Federal officials’ corruption need not be purely for their own gain in order for it to be an impeachable offense; it could be done to benefit friends or family. (Indeed, Walter Nixon was impeached, convicted, and removed from office for making false statements to a grand jury that helped the son of a former business partner.) That kind of corruption easily fits within the scope of the impeachable offenses that were of concern to the framers and architects of our Constitution. Let’s consider a different hypothetical. Assume that the president wants to return a favor—­may he or she use the office to do so? The answer depends on the actions and the context. Presidents appoint their friends and allies to federal offices all the time. For instance, it is commonly believed that ambassadorships go to the friends and benefactors of the president. This crosses a line, however, if the president (or the president’s family and friends) is financially benefiting from the arrangement. The appointment of a friend or ally is unlikely to be a secret (consider the attention given to the position of President Trump’s son-­in-­law at the White House), and that person still has to do the job. If, however, the president has been paid (or his family has benefited) in some way for the appointment (known as “pay to play”), then the act becomes criminal as well as potentially impeachable.

impeachment and president trump  199 Obviously, one barrier to determining whether President Trump has violated the emoluments clause is that we do not know a lot about his finances. As a candidate and as president, Trump decided not to release his tax returns. Modern presidents have released tax returns starting with President Nixon, but the practice is only a norm—­that is, it is an informal arrangement that people follow but it is not required by the law. While the violation of a norm will likely provoke some backlash, there are no legal ramifications. Many norms are relatively trivial, and there might be no problem with Trump’s breaking the norm on disclosing tax records because he did so publicly and was still elected, which may have effectively ratified any wrongdoing. Knowing more about Trump’s finances and how he accumulated wealth could be pertinent to an inquiry into possible wrongdoing. In October 2018, the New York Times published an investigation into “dubious tax schemes” Trump participated in with his family.14 The investigation revealed that Trump helped his parents dodge taxes, in part by creating a sham corporation to conceal millions of dollars in gifts to him and his siblings from their parents. Indeed, it appears that Trump’s parents transferred over $1 billion in wealth to their children, successfully avoiding at least $550 million in taxes under the contemporary gift tax rate of 55 percent. Fred Trump, Donald Trump’s father, was instrumental in funneling money to Donald Trump: the Times reported 295 streams of revenue from Fred Trump to Donald Trump, including multiple trust funds, interest-­ free loans without a repayment schedule, and money to buy and renovate Trump’s Manhattan offices. Further, the Trump family appears to have systematically undervalued their assets so as to avoid or decrease various tax payments; however, according to tax experts in the piece, President Trump is unlikely to face criminal prosecution for his role in helping his parents evade taxes. Nevertheless, we still do not have access to President Trump’s tax returns. It is possible that Trump’s tax returns or financial statements could reveal embarrassing or damaging information about him. While we can only speculate about what this information might be, it is not hard to imagine circumstances that would be of deep concern to the American people, members of Congress, and the special prosecutor, Robert Mueller, whose investigation I will discuss below. For instance, say that financial disclosures revealed that Donald Trump was heavily indebted to foreign interests or powers for which he is now, as president, trying to do favors. That would not just look bad—­it would suggest the possibility that the president’s judgment has been corrupted. One major reason the Constitution authorizes impeachment is to provide a check on a president’s corruption. Presidents doing favors for foreign interests or delivering benefits

200  chapter fifteen to them because they owe money to these foreign interests and need to appease them is a matter that is at the heart of the impeachment process.

Hillary Clinton and Impeachment In public discussions about whether President Trump has engaged in misconduct or whether the misconduct alleged is an impeachable offense, the president and his defenders often redirect the conversation to Trump’s Democratic opponent in the 2016 presidential election, Hillary Clinton. After she left office as President Obama’s secretary of state in 2013, both the FBI and Congress investigated her handling of her official emails, including the extent to which messages (which might have been damaging or embarrassing to her) were deliberately lost or destroyed. On January 4, 2018, the Justice Department reopened its investigation into her use of a private server and her handling of classified material while she was secretary of state. I will not revisit the investigations and all the charges made in Congress, on the campaign trail, and in the press except to reiterate that the basic issue for this book’s purposes is whether Hillary Clinton engaged in misconduct, such as allowing classified information to fall into enemy hands. If we assume that she broke laws or acted inappropriately with respect to the classified information that came into her possession as secretary of state, there are at least two basic issues we should consider that pertain to impeachment. The first question is whether Hillary Clinton may be subject to the impeachment process, that is, whether a former official, or someone who has left office, may be impeached for misconduct in that office. The Constitution only speaks of particular officials as being subject to the impeachment process, perhaps prompting the inference that only people who are currently president, vice-­president, or officers of the United States may be impeached for certain misconduct. We also know that private citizens are not supposed to be impeachable in the American system. Furthermore, the Constitution refers to people who, upon conviction, are removed from office. That language could be read to reinforce the conclusion that a former official is not subject to impeachment. As we have seen, however, if the misconduct was not discovered until after the person left office, he or she conceivably might be subject to the second sanction for impeachment—­disqualification from future government service or pensions (aside from any criminal or civil liability for the misconduct in question). Although Congress has never subjected any former officials to impeach­ ment—­and indeed has a record, in the cases of Blount, Belknap, and Kent, of not continuing with an impeachment once someone leaves office—­that

impeachment and president trump  201 does not necessarily mean Congress lacks the power to do it. Congress exercises discretion in initiating impeachments just as it does in exercising any power. No historical precedent supports the impeachment of a former official, but that deficiency might be irrelevant or simply the result of the House’s or the Senate’s decision not to go further with an impeachment, which is not the same thing as each chamber concluding it lacked the power to go ahead. In any event, even if the House or the Senate had ever reached that conclusion, it would not be binding on a future House or Senate. Thus, the failure to pursue impeachment after someone leaves office might not tell us much about Hillary Clinton’s vulnerability to impeachment. A related issue is whether the Senate may make decisions about disqualification without first having considered conviction and removal. This possibility was not discussed by the framers, nor is there Senate precedent for this action. At the very least, the House would have to impeach the targeted official and indicate that disqualification, not removal, is the appropriate sanction. At that point, the matter would go to the Senate, which might first consider whether to convict the impeached official and then separately consider disqualification as the appropriate sanction. The next question is whether the deliberate destruction (or ordering the deliberate destruction) of Clinton’s emails is an impeachable offense. Her conduct does not have to be criminal to qualify as an impeachable offense, although criminal conduct would certainly provide a stronger case for impeachment. For example, if it could be shown that she had broken particular federal laws, then those violations are likely to be felonies, which are the most serious offenses in the criminal code. But, in an impeachment proceeding, it does not have to be shown that a federal statute has been violated. Something can be a serious impeachable offense without being technically illegal or demonstrably in violation of some federal criminal law. With impeachment, we are concerned with bad faith (not just the irresponsible use of a private server) and bad conduct (not just an inconsequential disclosure but a breach of national security). The facts are important, because they speak to whether she had the requisite bad faith and committed the requisite bad act, which could then become a basis for impeachment.

Collusion as an Impeachable Offense A common charge against President Trump is that he (or others at his behest) engaged in or allowed collusion between his campaign and Russian authorities during the 2016 presidential election. The word collusion has, however, no definition in the law or the Constitution. There is no federal statute that uses the word, nor does the Constitution mention the term.

202  chapter fifteen People tend, however, to use the word collusion in one of two ways. First, President Trump and his defenders often use it as a sort of straw man, because they know there is no law against it. The president’s defenders might argue that even if he somehow engaged in collusion, it was not illegal, because no federal statute outlaws it. (While no federal statute outlaws collusion per se, federal law does criminalize “coordination” between a private citizen and a foreign power to influence the outcome of an election.) The second reason that many people might use the term collusion is as a catchall to refer to any kind of inappropriate activity between Trump or his campaign and Russian officials or interests. When used in this latter sense, collusion could become the basis for an impeachment, because, as we know, an impeachable offense only has to entail serious conduct, which does not have to be criminally barred. The preoccupation with collusion has intensified since May 17, 2017, when Deputy Attorney General Rod Rosenstein appointed veteran prosecutor and former FBI director Robert Mueller to serve as special counsel for the United States Justice Department.15 Attorney General Jeff Sessions recused himself from any involvement with the Russia investigation because he had met with Russian officials during his time helping Trump’s 2016 presidential campaign. Hence, Sessions’s deputy, Rosenstein, asked Mueller (and his team) to investigate “any links and/or coordination between” the Russian government and the Trump presidential campaign and “any matters that arose or may arise directly from the investigation.” There is no deadline by which Mueller has to conclude his investigation. By early 2018, his office had secured guilty pleas from two individuals associated with the campaign (including Michael Flynn, who served briefly as President Trump’s national security adviser) and criminal indictments of Paul Manafort, who was chairman of Trump’s presidential campaign from May 19 to August 19, 2016, and of Manafort’s deputy for money laundering, conspiracy, and other charges. On August 21, 2018, a jury convicted Manafort on eight counts of violating federal law but was unable to reach conclusions on the remaining ten counts. A few weeks later, Manafort agreed to a plea deal, in which he pleaded guilty to two conspiracy charges in exchange for cooperating with Mueller’s team and answering questions about “any and all matters” in which the government is interested.16 Mueller might ultimately uncover some illegal interactions between campaign officials and Russian nationals or the Russian government, but we have yet to learn what the president knew about any such interactions and when he knew it, including whether he authorized or encouraged any of them. Nor do we know what Mueller might be investigating with respect to the president’s own conduct or involvement. Certainly a president’s actual participation with foreign interests’ efforts to influence the

impeachment and president trump  203 outcome of an election is sufficiently serious to qualify as an impeachable offense. Such interactions would not only break federal criminal laws but could also constitute treacherous (or treacherous-­like) behavior. The president denies any such involvement, and it remains to be seen what evidence actually comes forward to support claims that the president was personally involved in the collusion he vigorously denies. In both 2017 and 2018, President Trump urged the Justice Department to investigate Hillary Clinton (and other political foes) for “all of the dishonesty.”17 While any collusion between Clinton or her campaign and Russia would unquestionably be legally and politically significant, it would not in any way mitigate similar or worse wrongdoing committed by the Trump campaign. When people claim that the Clinton campaign might have had a role in developing and using a dossier exposing connections between Trump and the Russian government, their claim does not discredit the dossier’s contents. Trump’s determination that his administration target Clinton and other Democrats that he dislikes may itself raise questions about whether he has abused his powers.

Obstruction of Justice As noted, another popular charge made against President Trump is that his firing of then–­FBI director James Comey was obstruction of justice.18 On more than one occasion, the president asked Comey about the FBI’s Russia investigation and requested that Comey pledge loyalty to him. Not long after firing Comey, President Trump said publicly that one reason he fired Comey had to do with his belief that the Russia investigation was a political witch hunt. Apart from Comey’s firing, the president may have done other things to interfere with, or weaken, Mueller’s investigation. Nonetheless, a lawyer for Trump suggested it was impossible for a president to obstruct justice. If the president’s lawyer meant that because the president is the head of the executive branch he has the power to direct a federal prosecution any way he likes, he erred. Such an argument implies that the Constitution places the president above the law, a contention that is contrary to everything we know about the Constitution’s origins and structure. For example, in Marbury v. Madison, the great chief justice John Marshall recognized for a unanimous Supreme Court that when courts are considering whether there is a remedy to redress the failure to act of a political actor, such as the president or secretary of state, courts must appreciate that there are two different kinds of actions these officials can take. One kind involves decision-­making on a matter over which the political actor has complete discretion. If the law imposes no constraint on the

204  chapter fifteen discretion to be exercised, courts have no role to play in second-­guessing or overturning the decision. The political actor has the final say.19 For example, presidents may nominate anyone they like to the Supreme Court. If a president chooses to nominate someone without legal training, he or she has the power to do that. The Constitution does not bind or constrain this discretion in any way. The same can be said for the Senate when it decides whether to confirm this individual. In the second kind of governmental action, the law constrains the actor’s discretion; then, according to Marshall, the actor does not have the option to avoid compliance with the law.20 So if the law says the president may not discriminate against someone on the basis of race (the Supreme Court has interpreted the Fifth Amendment as barring government from disadvantaging people because of their race without a compelling justification), then the president may not discharge someone because he or she is African American.21 While it might be hard to prove that a president discriminated against someone because of his or her race, the principle still stands that the president may not do so. The president is subject to the laws of the land, and the office of the presidency is not a cocoon that insulates a president from liability at law or under the Constitution. Indeed, we expect the president to obey the law, like everyone else, in filing taxes, not committing murder, or not committing sexual assault. Furthermore, as we well know, impeachable offenses are not restricted to the particular kinds of misconduct that are specified in a criminal code. Congress could impeach a president who used his or her power for an illicit purpose, such as pardoning someone as payback for campaign contributions or pardoning a coconspirator to protect him-­or herself. Trying to impede an investigation—­by attacking the integrity of the courts or the administration of the criminal justice system—­in order to protect one’s self or one’s family is not something that a president should get away with. Indeed, the House of Representatives has twice claimed that a president may be impeached for obstruction of justice: first in Richard Nixon’s case, and then in Bill Clinton’s.22 In the proceedings on both Nixon and Clinton in the House, no one seriously argued that the president was incapable of obstructing justice. If, however, President Trump’s lawyer meant that Trump could not be criminally prosecuted for obstruction of justice while he is president, then he has a point. Justice Department regulations implemented after Watergate require special prosecutors to follow all department guidelines, which include a 2000 opinion from the Office of Legal Counsel (OLC) concluding that a sitting president may not be indicted. OLC determined that prosecuting a president could paralyze or impede the functioning of the entire executive branch. Accordingly, the opinion, which is not law but the articulation of departmental understanding, suggests

impeachment and president trump  205 that impeachment (and removal from office) should precede prosecution, though Ron Rotunda advised the Starr investigation that a federal grand jury had the authority to indict a sitting president of criminal offenses “that are not part of, and are contrary to, the president’s official duties.”23 Moreover, Walter Dellinger, the head of OLC in 2000, suggested in 2018 that a sitting president could be indicted but a criminal trial could then be suspended until he or she leaves office. To be sure, not every constitutional scholar agrees that a sitting president should be immune to criminal indictment or prosecution. If, however, a president may only be prosecuted after returning to private life, the president has an incentive not to resign or leave office. If Congress fails to impeach, then the American people (and the world) are left in the untenable position of having a president who may serve the rest of his or her term under a great cloud of suspicion. If impeachment fails, Dellinger’s suggestion above is an alternative, but a federal prosecutor may not feel free to indict a sitting president, given OLC’s determination of its impropriety. In that scenario, the president may be constrained by other checks, including popularity, the judgment of history, media scrutiny, and congressional oversight. None of these is a panacea, nor can they be expected to work quickly, but they presumably have the power to provide some meaningful check on a president’s disdain for the law or abuse of power. If impeachment is not a realistic option or the public continues to support a miscreant as president, what then are the alternatives for handling a president suspected of criminal misconduct but who is immune to criminal prosecution? Constitutional law is inextricably intertwined with our culture, which shapes and is shaped by the public’s values. Impeachment is unlikely to transcend the culture in which both the president and Congress operate. If the public is apathetic about or even hails a president’s supposed misconduct, that president cannot be expected to be kept in check.

Whether Firing Robert Mueller Is Impeachable The federal regulations authorizing the appointment and removal of a special prosecutor, such as Robert Mueller, vest the attorney general with the authority to dismiss the special prosecutor for misconduct or wrongdoing.24 Because of contacts that he had with Russian officials during the election, Attorney General Jeff Sessions recused himself from the Russia investigation, and therefore his deputy, Rod Rosenstein, appointed Mueller. Though the president and some Republican members of Congress have complained that Mueller and his staff are too closely tied to Comey and the Democratic party, Deputy Attorney General Rosenstein has not found the concerns warranted and has shown no inclination to dismiss

206  chapter fifteen Mueller.25 Instead, he has expressed confidence in Mueller on more than one occasion.26 Nevertheless, the president could try to remove Mueller in one of two ways. First, he could direct Rosenstein to remove Mueller and fire Rosenstein if he does not comply. The president could then replace Rosenstein with someone more amenable to the president’s direction. (This path is similar to the way Richard Nixon fired Archibald Cox.) Alternatively, the president could bypass the regulatory mechanism for dismissing Mueller and instead act on his stated belief that he has the authority to fire Mueller. The president’s argument would be that, because Mueller is an officer within the executive branch, the president has authority, as leader of that branch, to dismiss Mueller on whatever basis the president deems appropriate. This argument follows from what scholars sometimes refer to as the robust theory of the unitary executive, a theory that posits that all executive power is consolidated in the president and therefore the president has the authority to dismiss high-­ranking executive officials (such as Trump believes Mueller to be).27 Without such power, the argument goes, the president is unable to control the exercise of executive power within the executive branch and fulfill the duty to enforce the laws faithfully.28 Indeed, it came to light in January 2018 that President Trump ordered the firing of Mueller in June 2017.29 White House Counsel Donald McGahn refused to pass the order on to the Justice Department. He reportedly threatened to resign if the president persisted in firing Mueller over his objection.30 The president supposedly revoked his order.31 When the story was reported in late January 2018, the president dismissed it as “fake news.”32 The president’s desire to fire Mueller and his denying the story raise two possible concerns pertinent to impeachment. The first is whether the president’s order to fire Mueller strengthens the case against the president for obstruction of justice. If the motivation for the order was to stop the investigation into possible Russian interference in the election, then the order itself could pose a problem for the president. The fact that it did not succeed is irrelevant to whether there was intent to obstruct justice. (If someone breaks into a bank and finds that there is no money, the perpetrator is still guilty of breaking into the bank.) It could be argued that the president’s order reflects his bad intent and fits into a pattern of misbehavior, including his dismissal of Comey. The president or his defenders might counter that the presidential power of removal is plenary, meaning that presidents may fire anyone in their cabinet or other high-­ranking executive offices for any reason they like. But not every reason for dismissal is legitimate. If, for example, the president fired someone for being black, Jewish, or a woman, it would be a serious problem. If the president fired someone to stop the legitimate investigation of some wrongdoing, that,

impeachment and president trump  207 too, is a serious problem; it undermines the integrity of the investigative process. Second, the president’s public denial could be considered a lie. If so, it could be understood as an effort to obstruct justice. It is often said that the cover-­up can be worse than the crime, and the efforts to hide incriminating information that impede or interfere with any official investigations into collusion support a claim of obstruction of justice. Two historical precedents are pertinent here. In his second term, President Grant fired a special prosecutor investigating corruption in his administration, but Grant never faced impeachment on that (or any other) basis.33 In 1974, the House Judiciary Committee did not approve an impeachment article against Richard Nixon for firing Cox, though a subsequent judicial ruling that Cox’s termination was illegal supports a claim of abuse of power. Both dismissals, while not used as grounds for impeachment, hurt the presidents politically. Those decisions undermined Nixon’s and Grant’s public support and were construed both at the time and later as showing that Grant and Nixon had engaged in some wrongdoing. In Nixon’s case, the firing of the special prosecutor was one of several acts of misconduct that the House Judiciary Committee weighed in determining which would make the strongest grounds for impeachment articles. Its decision not to include the firing of the special prosecutor may be insignificant given that one of the impeachment articles it approved charged Nixon with obstructing justice. If Nixon broke the law in discharging Cox in an effort to obstruct justice (and that certainly seems to have been the basic motive), the House Judiciary Committee did not let him get away with it; the obstruction was a principal concern of the House Judiciary Committee and the basis for the impeachment articles it approved against Nixon. But what if the firing of the special prosecutor is the principal misconduct charged against the president? Does this act, standing alone, constitute an impeachable offense? It may be an abuse of power: Congress could conclude that the executive power was used for illicit reasons. The discharge does not have to be technically illegal; it just has to be considered a bad act hurtful to the republic that was done in bad faith. The decision to discharge Mueller, if it comes to pass, will likely come at a steep cost. In Nixon v. Fitzgerald, the Supreme Court recognized several ways in addition to impeachment to hold presidents accountable for their misconduct in office. It specifically mentioned congressional oversight (there could be hearings to investigate the legitimacy of the grounds for the dismissal), the judgment of history (presidents care about their legacies), popular support (the dismissal might hurt the president’s chances for reelection if the firing occurred before a reelection campaign), and the media (the decision would likely inundate the president with bad

208  chapter fifteen press). (Interestingly, the Court did not mention other possibilities such as the possibility of civil liability under the right circumstances.) The Court’s presumption was that these mechanisms checked presidential conduct.

Sexual Harassment as an Impeachable Offense Both our civil and criminal laws proscribe sexual harassment or misbehavior. Sexual harassment is a form of gender discrimination, which violates Title VII of the 1964 Civil Rights Act when it occurs in a workplace.34 Specifically, Title VII prohibits employers from discriminating on the basis of sex and several other characteristics, such as race.35 Sexual harassment is a prohibited form of discrimination; it involves unwanted sexual advances and requests for sexual favors, as well as other verbal or physical conduct of a sexual nature when submission to such conduct is made a condition of employment or the basis of employment decisions or has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.36 Rape, sexual abuse or assault, or any unwanted touching can be criminal offenses.37 Any sexual misbehavior of the kind described above can become the basis for impeachment because it can be an abuse of power—­a breach of or serious impediment to the administration of justice, the rule of law, or the integrity of our judicial system. The impeachment charges against Samuel Kent included unwanted sexual contact and lying about his sexual misconduct.38 Kent’s misbehavior included sexual assault.39 Any impeachable official, including the president, should be subject to impeachment for sexual misconduct. Again, the fact that an impeachable offense does not have to be a statutory crime suggests that other kinds of sexual misconduct could be considered unfitting for someone who is president, vice-­president, or another civil officer of the United States. The question of whether President Trump may be impeached for sexual harassment traces back to the infamous Access Hollywood tape (a recording of a conversation that took place during an interview between Trump and the television show’s host, Billy Bush), in which Trump said that he grabbed women “by the pussy.”40 Immediately after the tape came to light, Trump said that his comments were merely “locker room talk.”41 (He later denied that he had said the things that were recorded on the tape.) If it could be proved that Trump did in fact assault a woman—­or women—­in this fashion, the issue would become whether he can be impeached for lying during the presidential campaign and for having engaged in this kind of misconduct. The pertinent question is whether it would be legitimate for Congress to treat as an impeachable offense a presidential candidate’s having committed

impeachment and president trump  209 sexual assault before the election and then having lied about it during the campaign, essentially defrauding the American public. The likely answer is yes. Such misconduct is not only unethical but illegal—­completely out of order for someone who occupies the highest office in our government. A tougher question is whether people who voted for the president did so in spite of or even because of this information. If people thought the president was lying and voted for him anyway, then the argument could be made that they effectively ratified his misbehavior. This is arguably what happened when Bill Clinton ran for president the first time; he acknowledged that he had “caused pain” in his marriage, and it was well known that several women had accused him of assaulting them. When Clinton ran for reelection, many voters might have believed he had continued to be unfaithful to his wife or to lie about his prior misconduct. There may have been people who voted for Donald Trump in spite of (or maybe even because of) whatever sexual misconduct he might have committed before becoming president. Should Congress disregard misbehavior when the American people knew about it and apparently accepted it? There is no simple answer to this question. I have taken the position throughout this book (and in my prior writings) that the decision whether something is an impeachable offense turns on several factors. One factor might be that the American people have accepted some misconduct from their president. Another factor might be the damage that the misconduct has done to the rule of law and to the office. Certain actions, such as murder or sexual harassment, are unquestionably bad. Even if the public or members of Congress are indifferent to particular misconduct, this indifference does not change the objective wrongness or harm of some behavior.

Why Alex Kozinski’s Resignation Saved Him from Impeachment In 1985, President Reagan appointed Alex Kozinski to the prestigious U.S. Court of Appeals for the Ninth Circuit.42 Kozinski was thirty-­five at the time, making him one of the youngest federal appellate judges in American history. Over the next thirty-­two years, he became widely known for colorful, often quirky, irreverent opinions and as a judge who helped his law clerks land prestigious clerkships on the U.S. Supreme Court. In 2008, after a website featuring sexually explicit photographs and videos that he maintained was discovered to be publicly accessible, Kozinski invited an investigation of his conduct by his fellow judges.43 Kozinski’s apology and removal of the website helped to resolve the matter. Over the course of several months in 2017, his behavior was called into question again when six female former clerks and junior staffers stated that Kozinski had often

210  chapter fifteen talked to them about or showed them pornography, asked sexually suggestive questions, and spoken explicitly about his sexual history.44 Several other women anonymously complained that he acted improperly toward them.45 Kozinski initially ignored the accusations but later issued a public apology for any offense he had caused, insisting he had treated his male and female clerks the same, and attributing the possibility of any offense to his own unusual sense of humor.46 Nine more women, among them a professor and a judge, came forward with accusations of inappropriate sexual behavior, including unwanted touching and sexual contact, that spanned nearly his entire tenure as a federal appellate judge.47 When the furor over his behavior intensified and the chief judge of the U.S. Court of Appeals for the Ninth Circuit ordered an investigation, Kozinski abruptly resigned.48 There was some discussion in the weeks preceding Kozinski’s resignation about whether his actions constituted an impeachable offense.49 The fact that Kozinski had voluntarily subjected himself to an investigation within his circuit years before suggests that he had little fear of the inquiry and thought his actions would stand up to scrutiny. Another interpretation, however, is that he asked for an internal investigation in order to forestall impeachment. The Judicial Conduct and Disability Act vests judges with some disciplinary authority over other judges because it does not regard any proceedings or sanctions imposed under the act as substitutes for impeachment. In practice, the proceedings often are used to resolve matters under investigation, making impeachment unnecessary, or at least less likely. Because the act does not authorize judges to remove other judges or disqualify them from further service, Kozinski might have opted for whatever lesser penalties his fellow judges might mete out, hoping that it would weaken any movement toward impeachment. Of course, invoking statutory disciplinary procedures does not prevent impeachment. In the right case, impeachment is still available, as it was with each of the judges whom the House impeached and the Senate removed from office in the 1980s. Kozinski’s case would similarly have been right for impeachment. Assuming that the charges made against Kozinski were all or mostly true, his misconduct occurred nearly throughout the entirety of the time he served as a federal appellate judge. His behavior was not only unethical but also degraded the integrity of the judiciary, damaged the administration of justice, did harm to his clerks, and undermined the moral authority required to perform judicial functions. His misconduct broke laws and norms (such as basic standards of decency) that as a judge he should have followed. The extent to which he lied about or minimized his misconduct further undermined the integrity of his court. The charge of degrading the judiciary has a contentious history. In 1936, the House impeached and the Senate convicted and removed Halsted

impeachment and president trump  211 Ritter from a federal district judgeship on this charge after he engaged in a series of inappropriate transactions with litigants.50 Critics of his removal argued that having such a vague offense as the only basis for impeachment and removal was dangerous. The ambiguity of the grounds could be used against anyone, they contended. In the time since, however, the House and the Senate have not overused this as a basis for impeachment and removal. And Ritter’s offense was the underlying misconduct—­accepting free meals and lodging during receivership proceedings—­that Congress believed brought the federal judiciary into disrepute. Kozinski, too, engaged in misconduct that brought the federal judiciary into disrepute. As in Ritter’s case, the offensive and unethical behavior was the underlying problem. Moreover, Kozinski’s previous investigation shows that he had a history of commingling his private sex life with his public responsibilities as a judge. In Kozinski’s case, any test we use for determining whether there was an impeachable offense leads to the same affirmative answer. His resignation may therefore be understood, much like Richard Nixon’s, as recognition of the inevitability of his impeachment, conviction, and removal from office.

Presidential Disability and the Twenty-­Fifth Amendment President Trump’s defenders sometimes have argued in response to charges of wrongdoing that he is new to the office and learning as he goes.51 Others consider Trump’s contradictory statements on issues, misstatements of fact, and misunderstandings of presidential powers as proof of incompetence. One question that could be reasonably asked is whether the president may be impeached simply for being incompetent. The framers’ notion of “maladministration” seemed to encompass incompetence,52 a charge which was excluded as a basis for impeachment at the constitutional convention, where impeachable offenses were narrowed to “Treason, Bribery, and other High Crimes and Misdemeanors.” The John Pickering impeachment could provide a counterexample. The House impeached and the Senate convicted and removed him from office based on charges that he was mishandling his job because of drunkenness and insanity.53 Since Pickering’s impeachment, there has been concern that these charges, like a charge of incompetence, inappropriately widen the scope of impeachment. It is even harder to make a judgment about performing incompetently than about degrading the judiciary, abusing power, or breaching official duties. As a result, Congress has not again pursued impeachment in similar circumstances, and the Judicial Conduct

212  chapter fifteen and Disability Act was instead enacted to provide alternatives to impeachment for a judge’s inability to do the job, which presumably might extend to incompetence. There is no statutory mechanism for presidents that works like the Judicial Conduct and Disability Act does for lower court judges. The general expectation is that most issues pertaining to presidential performance are to be dealt with through the electoral process (if they run for reelection) and the additional checks to presidential conduct, such as popularity, the press, the judgment of history, and congressional oversight. Impeachment is a last resort for handling serious misconduct that cannot be dealt with by other means and constitutes “treason, bribery, or other high crimes and misdemeanors.” Presidents are, however, subject to the Twenty-­Fifth Amendment, which was ratified in 1967. It outlines measures for handling situations in which a president is unable to perform the job owing to some physical or mental disability, such as a major stroke or serious mental illness. Below I consider how it is supposed to work in practice. The Twenty-­Fifth Amendment has four sections. The first section codifies the precedent set by John Tyler, which clarified the succession of a president who died in office. Tyler claimed that President William Henry Harrison’s death automatically elevated Tyler from the vice presidency to the presidency.54 The Twenty-­Fifth Amendment’s first section makes that practice a constitutional directive. Section 2 provides a procedure for replacing a vice-­president who resigns, dies, or becomes incapable of performing the duties of office. In those situations, the president is empowered to nominate a replacement, who has to be approved by a majority of each chamber of Congress. Section 3 outlines how the vice-­president may be temporarily empowered to take over the responsibilities and duties of the presidency. It provides that when a president transmits a written declaration to the president pro tempore of the Senate and the Speaker of the House that he or she is unable to perform presidential duties, the vice-­president then assumes those duties. This lasts only until the president sends another written communication to the same officials declaring the capability to resume the position.55 The fourth section addresses situations in which the president is disabled and unable to produce the written communications required in section 3. This procedure allows the vice-­president, together with “a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide,” to declare the president “unable to discharge the powers and duties of his office” through a written declaration submitted to the Speaker of the House and the president pro tempore of the Senate.56

impeachment and president trump  213 Section 4 is the only section of the Twenty-­Fifth Amendment that has never been invoked. Sections 1 and 2 were invoked three times during the Watergate scandal: Nixon’s appointment of Gerald Ford to replace Vice-­President Spiro Agnew; Ford’s ascension to the presidency as a result of Nixon’s resignation; and Ford’s appointment of Nelson Rockefeller to replace himself as the vice-­president.57 Section 3 has also been used three times to appoint vice-­presidents as acting presidents, once by President Reagan and twice by President George W. Bush.58 Officials within the Reagan administration considered invoking section 4 on two occasions: once immediately after Reagan had been shot, and once in 1987 when senior staff were encouraged to consider whether—­and later convinced themselves that—­ the president was fully in command of his mental faculties.59 One major question is whether the Twenty-­Fifth Amendment applies to cases of incompetence. To answer this, we can consider how the amendment’s provisions empower people within the administration to declare a president disabled, and thus we can better determine how to judge if or when it is applicable. We know, for example, from the congressional debates on the amendment, that these provisions were intended to address mental or physical incapacitation, as well as situations in which a president might be kidnapped or otherwise out of reliable communication.60 We know as well that the amendment’s purpose is not to provide a means for a no-­confidence vote in the administration or the Congress, but instead to provide clarity and safeguards in circumstances where presidential incapacity requires putting the second-­in-­command in charge of the government, at least temporarily. Implementation also requires passing a high threshold: the president’s own allies and appointees must come together to make the difficult determination that the president has become incapacitated to such an extent that the vice-­president should become the acting commander in chief. With any president, section 4 is likely to be used cautiously, and its use will turn on a range of factors, such as the president’s condition, its likely duration and severity, the climate of domestic and international events, the president’s opinion of his or her health, public awareness of the president’s condition, and the vice-­president’s capacity to lead, among other factors. Also, the rapidity with which events unfold might not allow time for the safeguards in the amendment to be invoked, leaving the president’s staff, the cabinet, and the vice-­president to make expedient but significant judgments about any crisis that unfolds while the president is somehow out of reach. There is even precedent for this situation. Reagan was moved immediately into surgery after he was shot, before he was able to write the letters required by section 3. While Reagan was in surgery,

214  chapter fifteen Vice-­President Bush was in the air and unable to invoke section 4.61 In this instance, the Constitution was briefly superseded to prevent further crisis, and the secretary of state took control until the vice-­president’s return to the White House. If Congress ever has to settle a section 4 dispute between the vice-­ president and the president, the Constitution favors the president (as should be the case, given that the president is the one that has been elected or elevated to office). There are powerful checks on the vice-­president and cabinet to prevent them from somehow stealing the office from the president. Two-­thirds of both houses must approve a vice-­president’s bid to continue as acting president; that is, they must agree that the president is unable to discharge the duties of office. If Congress does not come to a decision within twenty-­one days, the president returns to office. Whether that two-­thirds support actually exists would depend on the facts and public and congressional perceptions of the president, the vice-­president, and the cabinet. If, for example, the vice-­president and the cabinet are seen as loyal and credible and considered to be acting out of the best motives, the public and members of Congress, particularly the president’s partisan allies, might be more receptive to the temporary replacement of the president. The presumption underlying the structure of section 4 is that if the two-­thirds threshold were met, there must be compelling evidence to declare the president incapacitated and unable to perform the office’s duties. With this understanding of the Twenty-­Fifth Amendment as an essential framework, we can examine how the amendment might be applied to President Trump, or any other president. To begin with, it is clear that this amendment, like impeachment, does not exist to provide an alternative to the controversial result of a presidential election. It remains the prerogative of the American people to elect any qualified candidate as president, even if that individual is a bully, boorish, arrogant, rude, or racist, and neither the impeachment process nor the Twenty-­Fifth Amendment is designed to permit the forced removal of the president on the basis of these characteristics. Many claims that Trump is disabled (and thus subject to the Twenty-­Fifth Amendment) are made by those who opposed his election and seek evidence to support preexisting judgments of his suitability for office. Nor is this amendment a substitute for impeachment—­ that is, it is not meant to be a mechanism for handling misconduct that Congress has failed to address through impeachment. This amendment’s processes exist for a special kind of disability, one that is beyond the president’s control and that commands an unusual degree of bipartisan consensus as to its severity. Furthermore, it only temporarily empowers a vice-­president to exercise the duties and powers of the presidency. If the threshold can be met—­for example, because of actual and verifiable mental deterioration or massive, disabling stroke—­then this constitutional

impeachment and president trump  215 remedy could come into play. For any action to be taken, however, as has been noted, the president’s own allies and partisans would have to be in agreement to a significant extent.

Presidential Communications as Impeachable President Trump’s tweeting angers many people and pleases others. Through his tweeting, the president has expressed himself on a wide range of issues and found a new way to use the bully pulpit. The president’s use of Twitter is itself not a problem, but the content of his tweets has caused controversy. Generally, presidents have a wide latitude for expressing their opinions, but the question is whether President Trump has gone too far. The White House has asserted that his tweets are (sometimes) official presidential statements. This raises several concerns that relate to impeachment. The first potential problem with his communications is the president’s public encouragement of the prosecution of his political enemies. Recall that one impeachment article that the House Judiciary Committee approved against Richard Nixon was that he had abused his power by ordering the IRS and FBI to harass his political enemies. It is not immediately apparent that President Trump’s encouragement of Justice Department and FBI investigations into Hillary Clinton or other political enemies is any different. Trump’s defenders might argue that the tweets are just talk, or that these investigations are necessary because of their fervent belief that evidence pertaining to Clinton’s or others’ misbehavior has not been properly handled by the authorities. The threat to investigate Hillary Clinton has not been the mere expression of an opinion. If it had been, it could have been written off as political hyperbole or the president’s entitlement to express his opinion. In apparent response to the president’s tweet, the Justice Department reopened its investigation of Hillary Clinton, and members of Congress followed the president’s lead in calling for investigations of both Clinton and her foundation for fraud and other illegal activities, as well as her campaign for its own illegal contacts with Russia.62 While it could be argued that the drive to investigate Clinton and her associates seems politically motivated, evidence came forward after the election indicating that the Justice Department, on the order of Attorney General Loretta Lynch, might have tried to stifle the effort to investigate Clinton’s mishandling of her emails.63 The revelation may weaken the claim that the investigation’s reopening was a purely political move, because the department has the right to respond to new information or evidence. The reopening of an investigation against a political enemy is of course more suspect if it can be traced to

216  chapter fifteen purely political motives (such as deflecting attention from the investigation into the president’s legal troubles). If, however, the Justice Department can show that there was an abuse of power under President Obama, then President Trump and his administration can claim in this case that they are protecting, not undermining, the rule of law. The second issue with the president’s tweets (and other published comments) is his persistent attacks against the press as “the enemy of the people” and to denounce so-­called fake news.64 Most presidents question the motives or accuracy of press coverage of their administrations, but President Trump’s attacks on the media appear to differ more in degree than in kind from those of past presidents. The media itself has changed over time; the rise of the twenty-­four-­hour news cycle has increased dramatically the extent to which the media reports “soft news”—­speculation and commentary—­more often than “hard news”—­facts and figures relating to different events. With the proliferation of soft news, it is likely that a president will be confronted more often with the need to push back against the negative speculation and commentary of cable TV and radio. Until overt acts follow Trump’s rhetoric, however, there is not much evidence that the president has injured the freedom of the press, and his attacks could credibly be considered defenses of his administration, image, and policies. As long as people are free to differ with Trump about the substantive content of his attacks, this is a problem more suited to be worked out in public debate, rather than impeachment proceedings. A third area of concern with the president’s tweets and comments involves his rude, offensive, or false comments. For example, Trump has consistently berated female journalists or critics for their looks or intelligence. It is not new for a president to behave rudely or offensively, but, more significantly, Trump is pushing the boundaries of public discourse, with comments that are not only disruptive and upsetting but also derogatory toward other nations’ leaders or policies.65 This breaking of the norms of presidential rhetoric could be defended as making the presidency more transparent and candid, as well as valiantly keeping the press in check and strengthening public discourse. Impeachment is a last resort for handling misconduct, however, and there are many alternate checks on the president’s heated rhetoric, including pushback from the media, interest groups, the opposition party and its leaders, and experts of various kinds, who all try to keep the president honest. Spreading false information or making false statements about other people may differ from making rude or offensive comments. The president is immune from any civil damages for official acts and statements, including defamation. Claiming that Trump’s statements are official might be enough to bar any civil actions. Moreover, the corrective actions described above are equally available in this context, and still more appropriate than

impeachment and president trump  217 impeachment, which is intended to redress misconduct of a unique order and severity. It would likely be overkill to use the “hundred-­ton gun” of impeachment on something that can be and has been addressed through other less severe or disruptive means, including the president’s facing reelection. A tougher issue to resolve is whether or to what extent the president’s tweets and public comments degrade the presidency itself. This is especially true for racist remarks and tweets. The corrective measures for much of his rhetoric might not ameliorate the possible damage done not only to the institution of the presidency itself but also to the morale of the country and its standing abroad. Indeed, in early December 2017, six Democratic members of the House introduced a resolution to initiate an impeachment inquiry against President Trump based on his failure to quickly and clearly denounce white nationalist marchers in Charlottesville, Virginia; his tweeting of a misleading and untruthful anti-­Muslim propaganda video; and his public acts and statements denigrating different groups and individuals.66 On December 5, the House voted 364–­58 to table the proposed resolution, with fewer than one-­third of the Democrats in the House opposing the motion to table.67 One argument that is often made in response to these charges, apart from denying that the president made certain comments or claiming that they were justified, made as jokes, or did no harm, is that other presidents have said or done worse things for which they were not impeached. I turn next to that important issue.

Reconciling Trump’s Misconduct with Other Presidents’ Misconduct A final question is whether any significance should be attributed to the failure to impeach past presidents who engaged in worse misconduct than President Trump has so far. Professor Adrian Vermeule of Harvard Law School has posed this question in a provocative way: do we think a president who has unilaterally suspended habeas corpus, waged war without congressional approval, or encouraged and supported the prosecution of political enemies should be impeached? We could additionally consider whether the president’s telling lies to the American public, making or encouraging racist statements, or engaging in extramarital affairs should be examples of impeachable misconduct. Many people today might be tempted to say yes in the context of Trump’s presidency, but past presidents guilty of any of these actions were Abraham Lincoln, Woodrow Wilson, Franklin Roosevelt, and John F. Kennedy. Should Trump get a pass since Congress failed to impeach these presidents for their misconduct?

218  chapter fifteen To answer this final question, we need to answer several others. The first is whether the failure to impeach these other presidents should be counted among the historical practices that have shaped the understanding of the impeachment power. Does the failure to impeach past presidents mean that no president may ever be subject to impeachment for similar misconduct? If the choice not to impeach actually reflected an understanding shared by Congress that it was setting a precedent that impeachment would be an inappropriate response to the misconduct in question, then the answer to the latter question might be yes. That is what has happened with respect to the impeachment of senators, something that the Senate once decided was inappropriate and subsequent congresses have chosen to follow. But the failures to impeach presidents for the misconduct laid out above instead reflect how judgments regarding impeachment depend, at any given time, on a variety of factors. These factors include but are not limited to the composition of the Congress, the president’s popularity, the public’s knowledge and attitudes about the misconduct, cultural mores, the misconduct’s gravity and consequences, and the extent to which the misconduct was handled or addressed by other means. Justice Antonin Scalia argued, albeit in a different context, that the failure of Congress to do something was meaningless. In his judgment, it had no legal meaning because it was a nonevent and never took the form of law. On this view, the failure to impeach in any of the circumstances mentioned above could be similarly dismissed as nothing. The second question is about estoppel—­that is, should we regard the failure to impeach in any of these circumstances to have estopped Congress from ever doing so? Congress itself has rejected that it should be estopped from doing something because of the actions taken (or not taken) by a prior Congress. The doctrine that justifies this rejection is called the doctrine against entrenchment, which posits that a current majority in the legislature may not bind the hands of a future majority. In other words, even if we assume that the failure to impeach in these prior instances was in each case a deliberate decision, the Constitution allows Congress to change its mind. Thinking through these difficult questions can help us better understand whether certain misconduct, such as degrading the presidency, is an impeachable offense by reframing the issue. For instance, there are the traditional tests that the framers and members of Congress have used for identifying impeachable misconduct—­namely, whether the misconduct is a breach of duty, abuse of power, or injury to the republic. Alternatively, we could ask whether the misconduct is incompatible with the office, whether it robs the officeholder of the moral authority needed to function in that office, or whether the misconduct effectively disables him or her from exercising the responsibilities of that office. If the answers to these

impeachment and president trump  219 questions are all yes (as they were in Richard Nixon’s and Ritter’s cases), then we can be confident that the misconduct at issue is an impeachable offense. Another approach is to imagine a spectrum of misconduct. At one end is misconduct that everyone agrees is impeachable, such as treason and bribery. At the other end is misconduct that everyone agrees is not impeachable, such as jaywalking or a moving violation. Whenever we are considering whether a bad act falls under the rubric of “other high crimes and misdemeanors,” we must figure out to which end of the spectrum it is closest. Of course, as Gerald Ford said during the impeachment proceeding against William Douglas, “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”68 While he got much grief for this statement, it is nevertheless an accurate one. The House’s determination will turn on many factors, including the composition of the Congress, the magnitude of the misconduct’s harm or damage, a president’s mind-­set or attitude, whether the electorate has had a chance to weigh in on the subject, and the connection or link between the misconduct and the president’s duties. In some cases, these factors will point, possibly even clearly, in one direction, as was the case with Richard Nixon, while in others they may cut against either impeachment (in John Tyler’s case) or conviction (in Andrew Johnson’s and Bill Clinton’s cases). Yet another way to approach the question of what is impeachable misconduct is to recall that an impeachable offense requires bad intent and a bad act. In some prior cases, including Lincoln’s and Franklin Roosevelt’s, the requisite bad intent was likely absent. Moreover, consider whether the same misconduct would be impeachable if it were done by a different president. If Hillary Clinton were president, and she made racist remarks, broke the law or was an unindicted coconspirator, attacked the press, or displayed sexually offensive behavior, would that be a basis for impeachment? What if we ask this question about Barack Obama—­or Ronald Reagan? If we think a president we like should not be impeached for certain misconduct but a president we dislike should be impeached for the same misconduct, our judgment is markedly biased. This is what Professor Vermeule challenges us to come to terms with. Presidents Wilson and Adams launched prosecutions of the critics of their administrations and the war efforts they oversaw. But neither was ever impeached for this. Should they have been? The press was complicit in keeping President Kennedy’s sexual affairs private, but does that mean that Kennedy’s degradation of the presidency was not impeachable conduct? Bill Clinton was criticized as a moral degenerate, and he even lied under oath (which a judge later ruled to be perjury), but the Senate refused to convict him for this. If Trump lies under oath, lies to the American

220  chapter fifteen public about a serious issue, and shrugs off his racist and misogynist comments, what happens then? How much degradation of the presidency is too much? At what point does the Constitution draw a line? Cultural norms and rules play an important role in determining the answer. To begin with, one must understand the impossibility of extricating a president’s behavior from the cultural norms of the era in which it occurred. This is partially why Bill Clinton’s behavior toward women prompted such a negative backlash, at least from Republicans at the time—­he was caught in the midst of an evolution of our cultural rules and norms concerning sexual harassment. Clinton was elected president just one year after Anita Hill testified about her experiences of sexual harassment by Supreme Court nominee Clarence Thomas; and Clinton was the first Democratic president to serve after the 1986 Supreme Court case recognized sexual harassment as an illegal form of sex discrimination under Title VII.69 His behavior may not have been so much worse than that of previous presidents, but prevailing cultural views of such behavior had shifted. The changing contemporary climate makes it impossible to extricate President Trump’s behaviors from the current cultural debates on sexual assault and harassment. This returns us to the basic question: should Congress disregard misbehavior that the American people are aware of and have apparently accepted? Perhaps many Americans accepted it because it has been regarded as acceptable within our culture. While Americans like to think of themselves as always striving for progress, we have to consider whether we have actually progressed as much as we imagine, as well as the costs of our failures to meet our ideals. In the end, whether the president can be impeached for degrading the presidency remains a difficult question. Imagine, for example, that the Am­ erican people have simply gotten used to the president’s bullying, lying, or crudeness, behaviors which nonetheless have degraded the presidency. Is there a tipping point which such degradation of the office can reach? After studying impeachment for decades, I have concluded that there is and that it is entirely consistent with the constitutional framework to impeach a president for degrading the presidency or, to use terms similar to the basis for Ritter’s conviction and removal as a judge, for bringing the presidency into disrepute. In his book on the Clinton impeachment trial, Judge Richard Posner argued that Bill Clinton should also have been considered impeachable for degrading the presidential office.70 I agree with Judge Posner, and I agree with the emerging number of Democratic senators who insist that Clinton’s sexual harassment and misbehavior, like that of former judge Kozinski, justified impeachment, conviction, and removal.71 Yet, with President Trump, we face another, more pressing question. In August 2018, Trump’s personal attorney Michael Cohen pleaded guilty on eight counts of criminal misconduct, two of which were for criminal

impeachment and president trump  221 violations of federal campaign finance laws. In that proceeding, Cohen’s lawyer Lanny Davis acknowledged that the president had knowledge of these two campaign finance violations. The president was thus implicated as an unindicted coconspirator, because as a candidate Trump did not report that his campaign benefited after Cohen paid off two women threatening to publicize affairs with Trump. Echoing the defenses that President Clinton and his supporters made when he faced impeachment, President Trump declared, “I don’t know how you can impeach somebody who has done a great job”;72 he further claimed that the special prosecutor had gone way beyond the proper scope of his investigation, that the matter was trivial, and that he had tried to silence the women to protect his marriage. More than a few Democrats and pundits echoed 1990s Republicans when they responded with concerns that Trump had seriously sullied the office of the presidency and broken important laws.73 In these exchanges, we can see how impeachment can become enmeshed with partisan politics. It might well be that presidential impeachment is ultimately pragmatic, turning on the politics of the moment, the composition of Congress, prevailing cultural mores, and presidential popularity. But, if we take a step back, it should be clear that, at least as far as constitutional language, purpose, and design are concerned, bad behavior done to help secure a federal office is unquestionably an impeachable offense because the misconduct has a clear connection to the office. More difficult questions, however, persist. What if the American people simply do not care? Or what if representatives from the president’s party do not acknowledge that an instance of prior misconduct should become the basis for impeachment? Alexander Hamilton, in The Federalist Papers, instructed us that impeachment is a principal safeguard against the misdeeds of public officials. When they break the laws, abuse their powers, or engage in serious misconduct hurting the nation, and Congress does nothing in response, we can be sure that history will judge such presidents and members of Congress harshly. Indeed, if our leaders and the public do not care about the misdeeds of our highest leaders, we have to consider what our indifference says about not just our leaders and the Constitution but also ourselves.

Notes

chapter one the impeachment debates in the constitutional convention 1. See generally, Hoffer and Hull, Impeachment in America, 68–­77. 2. See generally, Berger, Impeachment, 54, 87n.160, 143n.97, 170, 171n.217. 3. See, e.g., Hoffer and Hull, Impeachment in America; Berger, Impeachment; Bestor, “Impeachment,” review of Impeachment: The Constitutional Problems, by Raoul Berger, 255; Feerick, “Impeaching Federal Judges,” 1, 5–­15. 4.  For a discussion of many of these problems, see generally, Gerhardt, “The Constitutional Limitations to Impeachment,” 19–­32. 5. See Rotunda, “An Essay on the Constitutional Parameters,” 707, 708–­14. 6. Elliot, Debates on the Adoption of the Federal Constitution, 42–­43. The delegates took this requirement quite seriously. See, e.g., Annals of Congress 5 (1796): 775–­76 (statement of Representative James Madison, criticizing as a breach of the convention’s rule of secrecy President George Washington’s reference in his message to Congress on March 30, 1796, to the unpublished Journal of the Constitution); ibid., 734 (remarks of Representative Albert Gallatin on the same). 7.  Ibid., 123. 8.  Quoted in Farrand, The Framing of the Constitution, 58. 9. See ibid. 10. Rotunda, “Essay on the Constitutional Parameters,” 710, 710n.13. 11. See generally, Hutson, “The Creation of the Constitution,” 1, 24–­27, 33–­35. 12.  Quoted in Warren, The Making of the Constitution, 794; see also letter from James Madison to S. H. Smith (February 21, 1827); letter from James Madison to Thomas Ritchie (September 15, 1821); letter from James Madison to M. L. Hulbert (May 1830), all cited in ibid., 800–­801n.1. 13.  There are five constitutional provisions commonly referred to as the impeachment clauses because they each relate in some way to the federal impeachment process: The House of Representatives shall . . . have the sole Power of Impeachment. (U.S. Const., art. I, § 2, cl. 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. (Ibid., art. I, § 3, cl. 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. (Ibid., art. I, § 3, cl. 7.)

224  notes to pages 4–7 The 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. (Ibid., art. II, § 4.) 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. (Ibid., art. III, § 1.) 14. See, e.g., Hoffer and Hull, ibid., 96. 15. Ibid. 16. M. Ferrand, Records of the Federal Convention of 1787, 1:22 (hereafter Records). 17.  Records, 3:595–­609, app. D. 18. Although the original of Pinckney’s plan has never been located, it has been reconstructed by some scholars relying on references to it after the constitutional convention. See ibid., 604. The plan is believed to have provided for a tripartite system of government, to have lodged the power of impeachment in the lower house of the legislature and assigned the power to try impeachments to the federal judiciary, and to have referred to “Treason, Bribery, or Corruption” as the grounds for presidential impeachment. See Feerick, “Impeaching Federal Judges,” 16, 16n.89. The reconstructed plan refers to “all Crimes . . . in their Offices” as the grounds for impeachment of officers of the United States. Records, 3:608. 19.  Records, 1:244. 20.  Ibid., 252. 21.  Ibid., 292. 22. Ibid. 23. On July 26, the constitutional convention appointed the Committee on Detail, in George Washington’s words, to “draw into method and form the several matters which had been agreed to by the Convention as a Constitution for the United States.” Bowen, Miracle at Philadelphia, 192. The committee put resol“[utions], suggestions, amendments, and propositions into workable arrangement.” Ibid. The original members were Randolph of Virginia, Wilson of Pennsylvania, Gorham of Massachusetts, Ellsworth of Connecticut, and Rutledge of South Carolina. 24.  Records, 2:136, 159. 25.  Ibid., 178–­79. 26.  Ibid., 185–­86. 27.  Ibid., 186. 28.  Ibid., 427. 29.  Ibid., 428. 30. Ibid. 31. Ibid. 32.  Ibid., 429. 33. Ibid., 34.  Ibid., 493. 35.  Ibid., 551–­52.

notes to pages 7–10  225 36. Ibid. 37. Ibid. 38. Ibid. 39. Ibid. 40. Ibid. 41.  Ibid., 552–­53 (September 8, 1787). Both James McHenry and Luther Martin of Maryland recalled after the convention “that the Senate alone seemed to be the body likely to view impeachments in a cool and dispassionate manner.” Hoffer and Hull, Impeachment in America, 99. However, James Madison could not reconcile himself to impeachment trials in the Senate and voted against the provision. Ibid., 100. 42.  Ibid., 100. 43.  Records, 2:64–­65. 44.  Ibid., 64. 45.  Ibid., 65. 46. Ibid. 47.  Ibid., 66. 48.  Ibid., 67. 49. Ibid. 50.  Ibid., 68–­69. 51.  Ibid., 61, 69. 52.  Ibid., 116. 53.  Records, 2:69. 54. Hoffer and Hull, Impeachment in America, 101. 55.  Ibid., 101. See also Records, 2:64–­69. 56.  Ibid., 337. 57.  Ibid., 493. 58.  Ibid., 550. 59. Ibid. 60.  Ibid., 545. 61. Ibid. 62. Ibid. 63.  Ibid., 545. 64.  Ibid., 550. 65.  Records, 1:140. 66. Ibid. 67. Hoffer and Hull, Impeachment in America, 102–­3. 68.  Ibid., 104. 69. See generally, Amar, Note, “The Senate and the Constitution,” 1111. 70.  For a modern expression of this perspective, see Carter, The Confirmation Mess, 146. “The Senate, responsive to public will but also sharing some of the distance of the courts, has the ability, if it chooses, to give voice not simply to the passions of the moment but to the enduring and fundamental values that shape the specialness of the American people. The institutional design of bicameralism makes this balance possible: what the House votes in its haste, the Senate may reconsider at its leisure.”

226  notes to pages 10–17 71. Hoffer and Hull, Impeachment in America, 106. 72.  Ibid. See also Hamilton, Federalist No. 65, 331–­35. 73. Hoffer and Hull, Impeachment in America, 102–­3. 74. See ibid., 96. 75. See generally ibid., 96–­97; Bestor, “Impeachment,” 262–­71. 76. Bestor, “Impeachment,” 261. 77. Hamilton, Federalist No. 69, 445.

chapter two the impeachment debates in the ratifying conventions 1. See, e.g., Cohens v. Virginia, 19 U.S., 264, 418 (1821); McCulloch v. Maryland, 17 U.S., 372, 433 (1819). Luther Martin’s argument to the Court included reading extracts from The Federalist Papers and the Virginia and New York ratifying conventions. 2. See Hutson, “The Creation of the Constitution,” 1, 12–­24. 3. See Rossiter, The Federalist Papers, viii. 4. See notes 27–­31 below and accompanying text. 5. Hamilton, Federalist No. 65, 397. 6.  Ibid., 398. 7. Ibid. 8. Ibid. 9. Ibid. 10.  Ibid., 399. 11. Ibid. 12. Hamilton, Federalist No. 66, 402. 13. Ibid. 14.  Ibid., 404. 15. Ibid. 16.  Ibid., 406. 17. Ibid. 18. Ibid. 19. Ibid. 20. Ibid. 21. Ibid. 22. Ibid. 23.  Ibid., 407. 24. U.S. Const. art. II, § 4. 25.  Ibid., art. I, § 3, cl. 7. 26. Hamilton, Federalist No. 69, 416. 27.  Records, 2:819 (see chap. 1, m.16). 28.  Ibid., 624. 29.  Ibid., 625. 30. Ibid. 31.  Ibid., 612. 32. Hamilton, Federalist No. 79, 473. 33. Ibid. 34.  Ibid., 474.

notes to pages 17–19  227 35. Ibid. 36. Ibid. 37. Hamilton, Federalist No. 81, 483. 38. Ibid. 39. See Rotunda, “Original Intent,” 507. Madison “urged us to look ‘for the meaning of [the Constitution] beyond the face of the instrument . . . not in the General Convention which proposed, but in the State Conventions which accepted and ratified it’ ” (quoting from Warren, Making of the Constitution, 794, who was quoting Madison); Powell, “Original Understanding,” 885, 937–­38. “Madison thought it proper . . . to consult the direct expressions of state intention available in the resolutions of the ratifying conventions.” 40. Elliot, Debates, 3:661 (Virginia) 4:246 (North Carolina) (see chap. 1, m.6). 41.  Ibid., 2:168–­69 (Massachusetts, statement of Mr. Stillman); 44–­45 (statement of General Brooks). 42.  Ibid., 460, 466 (Pennsylvania, statement of Mr. Smilie). 43.  Ibid., 491 (statement of James Wilson). Interestingly, Wilson seems to have taken a similar stance in the constitutional convention. In response to the contention that the president’s electoral accountability was not sufficient to preclude him from abusing power, Wilson remarked that “if the idea were to be pursued, the Senators who are to hold their places during the same term with the Executive, ought to be subject to impeachment & removal.” Records, 2:68 (July 20, 1787). No one contested Wilson’s inference that, at least as of that point in the Constitution’s formation, senators were not impeachable. 44. Elliot, Debates, 492. 45.  Ibid., 477. 46.  Ibid., 492. 47. Ibid., 1:494 (Virginia, statement of George Mason objecting that “[t]he President is tried by his counsellors. He is not removed from office during his trial. When he is arraigned for treason, he has the command of the army and navy, and may surround the Senate with thirty thousand people”). 48.  Ibid., 366 (statement of John Tyler expressing his fear “that the power of trying impeachments, added to that of making treaties, was something enormous, and rendered the Senate too dangerous”). 49. Ibid., 221 (statement of John Monroe): “Two thirds of those who may happen to be present, may, with the President, make the treaties that shall sacrifice the dearest interests of the Southern States. . . . There is no check against this; there is no responsibility, or power to punish it”. 50.  Ibid., 516 (statement of James Madison). 51. Ibid. 52.  Ibid., 4:113 (North Carolina, statement of James Iredell). 53.  Ibid., 127. 54. Ibid. 55. Ibid. 56.  Ibid., 126. 57.  Ibid. (statement of General Johnston). 58.  Ibid., 1:500 (statement of James Madison). 59. Berger, Impeachment, 89 (quoting Madison). 60. Elliot, Debates, 2:500 (Virginia, statement of Mr. Nicholas).

228  notes to pages 19–23 61.  Ibid., 401 (statement of Edmund Randolph). 62. Ibid. 63.  Ibid., 401 (statement of Edmund Randolph). 64.  Annals of Congress (1789): 498. 65. See above notes 58, 59, and accompanying text. 66. Act of April 30, 1790, ch. 9, § 21, Stat. 1:112 (1845). 67. See Bowsher v. Synar, 478 U.S. 714, 724n.3 (1986) (listing twenty members of the First Congress who were also delegates at the constitutional convention. 68. See Ervin, “Separation of Powers,” 108, 118 and n.43. 69. For a fuller discussion of the nature of the different viewpoints on the constitutionality of the Bribery Act of 1790, see Shane, “Who May Discipline or Remove Federal Judges?” 209, 228–­29. See also below chap. 8. 70. J. Wilson, “Considerations on the Nature and Extent of the Legislative Authority of the British Parliament,” James Wilson, Works, 2:721. 71. See Farrand, Framing of the Constitution, 21. “Washington considered him to be one of the strongest men in the convention.”; Dictionary of American Biography, 1st ed., s.v. “James Wilson.” “With the possible exception of James Madison, . . . no member of the convention of 1787 was better versed in the study of political economy . . . and none was more far-­sighted in his vision of the future greatness of the United States.” 72.  Wilson, “Considerations,” 426. 73.  Wilson, “Lectures on the Law, No. 11, Comparison of the Constitution of the United States with that of Great Britain, April 1792,” in The Works of James Wilson, 1:408 (quoted in Hoffer and Hull, Impeachment in America, 101).

part two trends and problems in impeachment proceedings 1. Tocqueville, Democracy in America, 108. 2. See ibid., 109–­11. 3. The nineteen officials and the years of their respective impeachment proceedings are as follows: William Blount, United States senator from Tennessee (1798–­99); John Pickering, U.S. district judge for the District of New Hampshire (1803–­4); Samuel Chase, associate justice of the United States Supreme Court (1804–­5); James H. Peck, U.S. district judge for the District of Missouri (1826–­ 31); West H. Humphreys, U.S. district judge for the District of Tennessee (1862); Andrew Johnson, president of the United States (1867–­68); William W. Belknap, secretary of war (1876); Charles Swayne, U.S. district judge for the Northern District of Florida (1903–­5); 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 (1912–­13); Judge George English, U.S. district judge for the Eastern District of Illinois (1926); Harold Louderback, U.S. district judge for the Northern District of California (1932–­33); Halsted Ritter, U.S. district judge for the Southern District of Florida (1936); Harry Claiborne, U.S. district judge for the District of Nevada (1986); Alcee Hastings, U.S. district judge for the Southern District of Florida (1988–­89); Walter Nixon, U.S. district judge for the Southern District of Mississippi (1988–­89); Bill Clinton, president of the United States (1998–­99);

notes to pages 23–25  229 Samuel Kent, U.S. district judge for the Southern District of Texas (2009); and Thomas Porteous, U.S. district judge for the Eastern District of Louisiana (2010). 4. All eight of those convicted in the Senate were federal judges, each of whom was 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); Judge Nixon (false statements to a grand jury); and Thomas Porteous. Only Humphreys, Archbald, and Porteous were disqualified from holding future office of honor or trust of the United States. 5.  The federal officials acquitted by the Senate were Associate Justice Chase, Judge Peck, President Johnson, Judge Swayne, Judge Louderback, and President Clinton. 6.  The Senate dismissed the impeachment articles against Senator Blount for several reasons, including lack of jurisdiction. See below, chap. 5, notes 1–­7, and accompanying text. The Senate voted to acquit Secretary of War William Belknap, but for reasons largely unrelated to his innocence or guilt. See below, note 10 and accompanying text. 7.  The three judges who resigned after being impeached were Mark Delahey (1873), George English (1926), and Samuel Kent (2009). 8. National Commission on Judicial Discipline and Removal, Report, 30–­31 (hereafter Hearings). 9.  Ibid., 31. In the nineteenth century, the House did not vote on the articles of impeachment until after it had voted on impeachment and sent notice of its desire to have the representatives—­otherwise known as house managers—­designated to conduct the impeachment trial appear before the bar of the Senate to impeach the respondent. Hinds, Hinds’ Precedents, 3: sects. 2413 (President Johnson), 2446 (Secretary Belknap). 10. Morgan, Eastman, Gale, and Areen, Impeachment: An Historical Overview, 689, 697. See also Brant, Impeachment, 155, 160. 11.  Cong. Rec., 69th Cong., 1st sess., 1926, 68, pt. 1:3.

chapter three impeachment proceedings in the house of representatives 1. Bryce, American Commonwealth, 1:212. 2. Grimes, The Role of the U.S. House of Representatives in Proceedings to Impeach and Remove Federal Judges, in Research Papers of the National Commission on Judicial Discipline and Removal, 1:67 (hereafter Research Papers). 3. U.S. Const. art. I, § 2, cl. 5. 4. See ibid., art. I, § 5: “Each House may determine the Rules of its Proceedings. . . .” 5. Jefferson’s Manual and the Rules and Practice of the House of Representatives together control the House’s procedure. Jefferson’s Manual was prepared by Thomas Jefferson for his own use as president of the Senate during the years of his vice presidency (1797–­1801). He based the Manual on English parliamentary practice. By a rule adopted in 1837, the House provided that the Manual should

230  notes to pages 25–29 apply in cases in which it was suitable but not inconsistent with other governing rules of the House. Jefferson’s Manual and the Rules and Practice of the House are regularly updated by the House parliamentarian to include annotations of rulings of the Speaker and presiding officers. Brown, Constitution, Jefferson’s Manual, and Rules of the House of Representatives, 100th Cong., 2d sess., H.R. Doc. 279; 99th Cong., 2d sess., 1987, sect. 283: v, n.a (hereafter House Rules). 6.  For a detailed description of House impeachment procedures, see Grimes, Research Papers, 49–­57. 7. See generally, Deschler, Deschler’s Precedents, 3: chap. 14, § 5. 8.  U.S. Code, vol. 28, § 372 (1988). 9. Ibid., § 372 (c)(8). 10. See Grimes, Research Papers, 50. 11.  Ethics in Government Act, U.S. Code, vol. 28, §§ 591–­99 (1988). The act was first enacted in 1978 and has been reenacted twice, most recently in 1987. See Independent Counsel Reauthorization Act of 1987, P.L. 100–­191, 101 Stat. 1293 (1987). 12.  The enumerated officials include the president, the vice-­president, the attorney general, assistant attorneys general, various people working in the executive office of the president, the director and deputy director of the Central Intelligence Agency, and the commissioner of Internal Revenue. See ibid., § 591(b). 13. U.S. Code, vol. 28, § 592 (1988). 14. See Deschler, Deschler’s Precedents, 3: chap. 14, §§ 5, 5.10, 5.11. 15. The impeachment investigations were assigned to the Subcommittee on Courts, Civil Liberties, and the Administration of Justice (Claiborne); the Subcommittee on Criminal Justice (Hastings); and the Subcommittee on Civil and Constitutional Rights (Nixon). 16. Grimes, “Hundred-­Ton-­Gun Control,” 1230. 17. Deschler, Deschler’s Precedents, 3: chap. 14, § 7.1. 18. See House Rules, §§ 601–­2. 19. Grimes, Research Papers, 64. 20. Hinds, Hinds’ Precedents, 3: §§ 2031 (Chase), 2323 (Pickering). 21. Ibid., § 2448 (Belknap). 22. Ibid., §§ 2388 (Humphreys), 2475 (Swayne). 23.  Proceedings of the U.S. Senate in the Impeachment Trial of Harry E. Claiborne, 99th Cong., 2d sess., 1986, 1–­2, setting forth H. Res. 501, designating nine house managers (hereafter “Claiborne Impeachment”); Proceedings of the United States Senate in the Impeachment Trial of Alcee L. Hastings, 101st Cong., 1st sess., 1989, S. Doc. 18, 3, setting forth H. Res. 511, designating six house managers (hereafter Hastings Impeachment); Proceedings of the United States Senate in the Impeachment Trial of Walter L. Nixon, Jr., 101st Cong., 1st sess., S. Doc. 22, 5, setting forth H. Res. 150, designating five house managers (hereafter Nixon Impeachment). 24. Grimes, “Hundred-­Ton-­Gun Control,” 1215. 25. Ibid. 26. See generally, Bushnell, Crimes, Follies, and Misfortunes, 7. 27. See generally ibid., at 25–­26, 44–­45, 59; see also Hoffer and Hull, Impeachment in America, 146–­63.

notes to pages 29–31  231 28. See U.S. House, Special Subcommittee on H.R. Res. 920 of the House Committee on the Judiciary Final Report on Associate Justice William O. Douglas, 91st Cong., 2d sess., 1970. 29. Grimes, Research Papers, 52–­54. 30. See generally ibid., at 64–­65. 31.  Cong. Rec. 132, daily ed. (Sept. 16, 1986): S12597 (Claiborne replication); Cong. Rec. 134 daily ed. (Sept. 26, 1988): S13294 (Hastings replication); Nixon Impeachment, 21–­22 (Nixon replication). 32. Borkin, The Corrupt Judge, 181–­86. 33.  Judge Kerner resigned following the exhaustion of his criminal appeals. See Hearings, 73. 34. Judge Fogel resigned in return for a commitment not to prosecute. See Grimes, “Hundred-­Ton-­Gun-­Control,” 1218 and n.53. 35.  The Justice Department in 1989 filed an indictment against Judge Robert Aguilar of the Northern District of California. After a month-­long trial, a federal jury cleared Judge Aguilar of one count of obstruction of justice, but it deadlocked on seven other counts concerning false statements to the Federal Bureau of Investigation, informing an in-­law of a federal wiretap, and seeking to influence other federal judges on behalf of certain acquaintances. In his retrial, Judge Aguilar was convicted in August 1990 of disclosing the existence of the wiretap to his in-­law and lying to the FBI about the wiretap and his own involvement in another case. On appeal, the ninth circuit reversed all but one of Judge Aguilar’s convictions. See generally, Peterson, The Role of the Executive Branch in the Discipline and Removal of Federal Judges, in Research Papers, 272–­74. While awaiting retrial on that one count, Judge Aguilar continued to perform limited court duty in San Jose. Jim Doyle, “Judge’s Conviction Upheld by Court,” San Francisco Chronicle, May 13, 1993, sec. A16. The fact that Judge Aguilar was wielding judicial power in spite of having been at that time a convicted felon spurred James Sensenbrenner (R.-­Wis.) to introduce in May 1993 a resolution in the House to impeach Judge Aguilar. Jim Doyle, “Convicted judge to Get a New Hearing,” San Francisco Chronicle, Sept. 3, 1993, A18. On April 19, 19994, however, the ninth circuit sitting em banc reversed Judge Aguilar’s remaining criminal conviction United State v. Aguilar, 21 F.3d 1475 (9th Cir. 1994, en banc). Aguilar later resigned from office as part of a deal to avoid retrial on the latter count. 36.  The Justice Department indicted Judge Collins of the Eastern District of Louisiana on February 6, 1991, for taking bribery money from a drug dealer to reduce the dealer’s sentence, conspiracy, and obstruction of justice. Collins was ultimately convicted on the three counts and had his convictions upheld on appeal. See generally, Peterson, Research Papers, 274–­75. While Collins was incarcerated but still receiving his judicial salary, the Judicial Conference of the United States formally certified to the House its conclusion that “Judge Collins has engaged in conduct which might constitute one or more grounds for impeachment.” “House Urged to Impeach Jailed Judge,” Chicago Tribune, June 24, 1993, sec. N, p. 8. Shortly thereafter, Collins resigned. 37. See generally, Grimes, “Hundred-­Ton-­Gun-­Control,” 1233. 38. U.S. Senate, Report of the Senate Impeachment Trial Committee on the Articles of Impeachment Against Judge Alcee L. Hastings, Hearings Before the

232  notes to pages 31–33 Senate Impeachment Trial Commission, 101st Cong., 1st sess., 1989, pt. 1:605–­8, 740 (hereafter Hastings Senate Report). 39. See generally, Grimes, Research Papers, 66. 40. U.S. Senate, Report of the Senate Impeachment Trial Committee on Articles of Impeachment Against Judge Harry E. Claiborne, 99th Cong., 2d sess., 1986, pt. 1:687, 759, 803–­4, 849. 41.  Hastings Senate Report, 723 (statement of Senator Specter). 42. See Peterson, Research Papers, 322, 327, 330. 43.  Claiborne Impeachment, 32, 40 (statement of Judge Charles Wiggins); ibid., 303 (statement of Sen. Jeff Bingamon); ibid., 339 (statement of Sen. George Mitchell); Cong. Rec. 132, daily ed. (July 22, 1986): H4712–­13 (statement of Cong. Hamilton Fish). 44.  101st Cong., 1st sess., 124, 1989, H. Rep. 36, 15–­16; 100th Cong., 2d sess. 1988, H. Rep. 810, 12–­13; 99th Cong., 2d sess. 1986, H. Rep. 688, 6–­7. 45.  Cong. Rec. 135, daily ed. (May 10, 1989): H1811. 46.  Cong. Rec. 132, daily ed. (July 22, 1986): H4721. 47.  Cong. Rec. 134, daily ed. (August 3, 1988): H6193. 48.  Cong. Rec. 48, 1912, 8933–­34. 49.  Judge Claiborne was acquitted of other misconduct charges at his first and second trials. None of these misconduct charges had, however, any relation to the income tax charges, which served as the sole basis of the House’s impeachment articles. 50. On February 6, 1974, the House formally authorized the Judiciary Committee to begin impeachment hearings. On July 25, the Supreme Court handed down its decision in United States v. Nixon, 418 U.S. 683 (1974) ordering President Nixon to turn over to a district court tapes of recorded conversations in the Oval Office to determine their relevance to the defense in an ongoing criminal prosecution. On July 27, the Judiciary Committee adopted the first article of impeachment, charging the president with obstruction of justice with respect to the Watergate break-­in and other activities. On July 29, it adopted the second article of impeachment, involving abuse of power by misusing executive agencies and violating constitutional rights of the citizenry. On July 30, the committee adopted the third article, charging the president with willful disobedience of subpoenas issued by the Judiciary Committee. On August 6, Nixon decided to make the transcript of the tapes available to the public. Three days later, on August 9, he resigned. 51. See Grimes, Research Papers, 76.n.125 (suggesting that many House members equate their role in an impeachment with that of a grand jury and, thus, do not regard their vote on impeachment articles as a determination that an impeachable official should be removed from office). See also ibid., app. B, pt. I(K), 94 reporting that, when asked to choose the description that best described their role, most house managers responding to a survey conducted by Warren S. Grimes chose “grand jury” rather than “judge and jury.”

chapter four the senate’s role in the federal impeachment process 1. U.S. Const. art. I, § 2, cl. 6. 2.  Ibid., art. I, § 5, cl. 2.

notes to pages 33–37  233 3. See Procedure and Guidelines for Impeachment Trials in the Senate (rev. ed.), 99th Cong., 1st sess., August 15, 1986, S. Doc. 93–­33, 2–­8 (hereafter Senate Rules for Impeachment Trials). 4. Ibid. 5.  For a more detailed account of Senate impeachment trial procedures, see Gerhardt, “The Senate’s Process for Removing Federal Judges,” Research Papers, 139, 142–­45. 6. National Commission on Judicial Discipline and Removal, Hearings, 50. 7. Rule XI, Senate Rules for Impeachment Trials, 4. See also U.S. Senate, Report of the Hearings before the Senate Impeachment Trial Committee, 99th Cong., 2d sess., 1986, pt. 1: 18 (hereafter Claiborne Senate Hearings) remarks of Committee Chairman, Senator Mathias, Organizational meeting of the trial committee. 8. U.S. Senate, Proceedings of the U.S. Senate in the Trial of Impeachment of Halsted Ritter, 74th Cong., 2d sess., 1936, S. Doc. 200, 47, 323–­24, 534 (hereafter Ritter Impeachment Trial). 9. Rule XXIV, Senate Rules for Impeachment Trials, 6. 10. See generally, Williams, “Historical and Constitutional Bases,” 512, 541–­42. 11.  Cong. Rec., 74th Cong., 2d. sess., 1936, 80, pt. 3: 3423, 3425 (comments of Sen. Henry Ashurst). 12.  Cong. Rec., 74th Cong., 1st sess., 1935, 79, pt. 8: 8309, 8309–­10. 13. See Amending the Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials, 99th Cong., 2d sess., 1986, S. Rep. 401, 5. 14. Rule XI, Senate Rules for Impeachment Trials, 4. 15. See Claiborne Senate Hearings, pt. 1: 18 (remarks of committee chairman, Senator Mathias, organizational meeting). 16. Rule XI, Senate Rules for Impeachment Trials, 4. 17. Ibid. 18. See Gerhardt, “Senate Process for Removing Federal Judges,” App. A, 231–­40, cataloging the survey results. 19.  Claiborne Senate Hearings, pt. 1: 21. The longest impeachment trial lasted six weeks; the average trial lasts sixteen days. 95th Congress, 2d sess., 1978, S. Rep. 1035, 4 (comments from Senator Nunn). 20. See ibid., pts. 1–­4. 21. The Senate report lists nine full-­time staffers on the Hastings trial committee staff. In addition, another sixteen staffers are listed as assisting the twelve senators on the trial committee. Hastings Senate Report, pt. 1: ii. 22.  Ibid., pt. 1: 281–­94, 341–­44, 483, 601–­11, 737–­40, 855–­77. 23.  Cong. Rec. 135, daily ed. (June 9, 1989): S6453. 24.  Hastings Senate Report pts. 3–­4. 25.  Hastings Impeachment, 625–­706. 26. U.S. Senate, Report of the Senate Impeachment Trial Committee on the Articles Against Judge Walter L. Nixon, Jr., Hearings before the Senate Impeachment Trial Committee, 101st Cong., 1st sess., 1989, pts: I–­IV (hereinafter Nixon Report). 27.  Nixon Impeachment. 28. See Williams, “Historical and Constitutional Bases,” 514. “The impeachment mechanism, however, has many defects which have contributed to its declining use. It has been attacked as ‘cumbersome,’ ‘unworkable,’ and ‘an utterly absurd task physically’ (quoting Borkin, The Corrupt Judge, 193.

234  notes to pages 37–38 29. See, e.g., Cong. Rec. 80 1936, 3423, 3424 for the comments of Senator Thomas: “[T]he constant attention of a jury of 96 members . . . cannot be expected.” 30. See, e.g., Williams, “Historical and Constitutional Bases,” 516. “Given the enormous expansion of the congressional workload, it is clear that a removal mechanism which as a practical matter requires the complete suspension . . . of legislative responsibilities is of questionable utility.” 31.  Judge Louderback was tried and acquitted of five articles of impeachment in May 1933. See Staff of House Comm. on the Judiciary, Impeachment: Selected Materials on Procedure, 93d Cong., 2d sess., 1974, 850. 32.  Judge Ritter was impeached and removed from office in 1936. Cong. Rec. 80 1936, 3066–­92. 33. See U.S. Senate, Calendar of Business, final issue, 102d Cong., 2d sess., November 8, 1993, indicating that there were a total of 156 legislative working days for the 103d Congress, 1st Session; Ornstein, Mann, and Malbin, Vital Statistics on Congress, 1991–­1992, 151–­53, tables 6–­1, 6–­2 indicating that there were 158 legislative working days in 1991; Congressional Quarterly Almanac 147, 102d Cong., 1991, 11 indicating that there were 138 legislative working days in 1990. 34. See Impeachment: Selected Materials, 93d Cong., 1st sess., 1973, H.R. Doc. 7, 125–­202. 35. See generally Luchsinger, Note, “Committee Impeachment Trials” 163, 168–­69. 36. See notes 35, 36, and accompanying text in chap. 2. 37. National Commission on Judicial Discipline and Removal, Hearings 211, testimony of Sen. Charles Mathias on May 15, 1992. See also ibid., 172–­73, testimony of Senator Levin: “I don’t think too much of the Senate’s time is taken up by impeachments. [E]ven if the average turns out to be one a year, that is not an excessive amount of time for something this serious”; Cong. Rec. 135, daily ed. (October 20, 1989): S13803, statement of Senator Specter: impeachments allow us “to see in a closeup and firsthand way how those th[e] laws [we have enacted] and the agencies they affect operate. That experience, difficult and time consuming as it may be, makes us wiser in the discharge of our legislative responsibilities”; Hearings, 251, testimony of Judge Abner Mikva on May 15, 1992: “I recognize that sometimes [impeachment] has become very cumbersome. But I think it’s necessary to preserve the independence of the judiciary as our framers intended.” 38. See, e.g., Cong. Rec. 132, daily ed. (October 9, 15, 16 1986): S15760, S16571, S16821, S16823, 312–­13, 355–­58, 358–­60, 361–­66 (statements of Senators Exon, Evans, and Levin). 39. Heflin, “The Impeachment Process,” 124. 40.  Ibid., 124. See also Cong. Rec. 132, daily ed. (October 10, 1986): S15868, 336 (statement of Sen. Stevens admitting that he had attended no more than thirty-­five minutes of the full Senate’s proceedings on Judge Claiborne, had not read most of the trial committee’s documents, and had found that most senators had not had “enough time to weigh independently the evidence”); ibid., Cong. Rec. 132, daily ed. (October 9, 1986): S15760-­62 (Senator Stevens voting “present” on each of the articles of impeachment).

notes to pages 38–42  235 41.  Cong. Rec. 135, daily ed. (October 20, 1989): S13803 (statement of Senator Specter). 42.  Cong. Rec. 135, daily ed. (October 27, 1989): S14364 (statement of Senator Lieberman). 43.  Williams, “Historical and Constitutional Bases,” 541 (footnote omitted). 44.  Ibid., 539–­42. 45.  Time, March 13, 1936, 18, quoted in Williams, “Historical and Constitutional Bases,” 542n. 160: “At one time only three senators were present and for ten days [Judge Louderback] presented evidence to what was practically an empty chamber”). 46.  Ibid., 541–­42. 47. Stolz, “Disciplining Federal Judges,” 659, 667. 48. Heflin, “Impeaching Federal Judges,” 32. Senator Heflin counted thirty-­ seven absent senators during Judge Claiborne’s presentation of his closing argument. Claiborne Senate Hearing, 318 (statement of Sen. Heflin). See also Heflin, “The Impeachment Process,” 124 complaining that “[d]uring Judge Claiborne’s closing statement approximately 40 senators were not present in the chamber to hear any of his statement. Indeed, I would guess that at least 35 Senators were never present on the floor for any of the presentations by either the prosecution or the defense.” 49. See Gerhardt, “The Senate’s Process for Removing Federal Judges,” 233–­ 34, app. A. 50. There are four sources senators generally consult for information about past impeachment trials. First, the Senate Rules for Impeachment Trials contains selected examples from precedents. Second, the Congressional Research Service has issued several documents, such as its Compendium of Precedents Involving Evidentiary Rulings and Applications of Evidentiary Principles from Selected Impeachment Trials, to familiarize senators with the removal process. Moreover, other collections exist, including, for example, the House’s transcripts and records pertaining to its hearings on the impeachment of Harry Claiborne and the Senate impeachment trial committee’s hearings on Judge Claiborne. Lastly, the Senate’s Office of Legal Counsel provides legal advice to senators about past removal rulings and even compiles materials on past impeachment trials for senators to use in closed session. See, e.g., Hastings Senate Report, pt. 1: 74–­75. 51. See Gerhardt, “The Senate’s Process,” 240, app. A, indicating that fifteen of the twenty-­one respondents to the survey conducted by the National Commission on Judicial Discipline and Removal thought current materials were inadequate and the Senate should “commission [a] complete or comprehensive manual of precedents on impeachment trials.” 52.  The Fifth Amendment due process clause provides in pertinent part that “nor shall any person . . . be deprived of life, liberty, or property without due process of law . . .” U.S. Const., amend. V. 53. Wilson, The Works of James Wilson, 1:425–­26. 54. Wilson, The Works of James Wilson, 1:408. 55.  Hastings Impeachment, 15–­16. 56. See Hoffer and Hull, Impeachment in America, 213.

236  notes to pages 42–45 57. Cf. Black, Impeachment, 15, observing that the real question at issue here is what “things in the impeachment process . . . should be treated like the same things in a criminal trial, and what things need not be.” 58. See ibid., 18. 59. Ibid. 60. See, e.g., Claiborne Senate Hearings, 21 (statement of then-­sen. Albert R. Gore, Jr.). 61. See generally Pierce, “Use of the Federal Rules of Evidence,” 1. 62. See Gerhardt, The Senate’s Process, 169. 63.  Hastings Senate Report, 6. 64. See, e.g., Hastings Senate Report, 757–­58 (statement of Senator Specter): “A uniform burden of proof would provide notice to the impeached official of “the standard by which he is being judged. . . . It is not sufficient to say that the standard on burden of proof is left to the individual judgment of each Senator because that leaves the matter vague, indefinite, speculative, and subject even to individual whim or caprice. [T]he establishment of a standard on burden of proof would help the Senators themselves[, who have often said] that they were at a loss for the context in which to judge the complex case.” 65.  Cong. Rec. 132 daily ed. (October 7, 1986): S15507. 66. See Hastings Senate Report, pt. 1: 74–­75 (statement of Senator Warren Rudman): “[The standard of proof] is what is in the mind of every Senator. If you want to use clear and convincing, preponderance, if you want to use beyond a reasonable doubt—­I think it is what everybody decides themselves”; ibid. (statement of Senate legal counsel, Michael Davidson). Davidson agreed that “the Senate [in the Claiborne proceedings had] determined overwhelmingly [that] each member, as on any vote in the Senate, needs to establish his or her standards for that vote. The Senate has never presumed to instruct its members what quality of evidence, or what historical basis each member must have in order to determine that vote.”; Nixon Report, pt. 1: 13 (statement of Michael Davidson). 67.  Cong. Rec. 132, (Oct. 9, 1989): S15759 (statement of Senator Hatch). 68.  Ibid., 791–­92 (statement of Sen. Biden). See also ibid., 715–­16 (statement of Senator Hatch). 69. See, e.g., Cong. Rec. 135, daily ed. (October 27, 1989): S14360 (statement of Senator Lieberman); Hastings Impeachment, 709, 711 (statement of Senator Bingamon). 70. See, e.g., Claiborne Senate Hearings, pt. 1: 98–­99. 71.  Cong. Rec. 132, daily ed. (July 22, 1986): H4712. 72. U.S. Senate, Report of the Senate Impeachment Trial Committee: Hearings Before the Senate Impeachment Trial Committee, 99th Cong., 2d sess., 1986, pt. I: 148–­65. 73.  Ibid., 169–­87. 74.  Ibid., 149, 165–­67. 75.  Ibid., 108–­9. 76.  Claiborne Impeachment, 289–­97. 77.  113 S.Ct. 732 (1993). 78. See, e.g., Gerhardt, “The Senate’s Process for Removing Federal Judges,” 236, app. A, indicating that the respondents to the survey conducted by the

notes to pages 46–52  237 National Commission on Judicial Discipline and Removal overwhelming supported the Senate’s continued use of rule XI trial committees. 79. Stewart, “Commentary” 54. 80.  Accord Walter Nixon v. United States, 938 F.2d 239, 265 (1991) (J. Edwards dissenting in part and concurring in the judgment), aff’d Nixon v. United States, 113 S. Ct. 732 (1993). 81. See generally, Hearings, 56. 82. See, e.g., Claiborne Senate Hearings, pt. 1: 19 (statement of Senator Rudman). 83. See Hastings Senate Report, pt. 1: 69 (statement of Senator Rudman); see also Gerhardt, “The Senate’s Process,” 185–­88. 84. See Hastings Senate Report, pt. 1: 226–­27 (statement of House Manager Jack Brooks). 85.  Ibid., pt. 1: 479 (memorandum for the Hastings Record, May 17, 1989). 86. See generally, Gerhardt, “The Senate Process for Removing Federal Judges,” 189–­92. 87. See, e.g., Hastings Senate Report, pt. 1: 282, 287, 292 (Impeachment Trial Committee Disposition of Pretrial Issues [Order of April 14, 1989]). 88. See, e.g., ibid., 286, 287 (Impeachment Trial Committee Disposition of Pretrial Issues [Order of April 14, 1989]).

chapter five impeachment issues involving congress and the other branches 1. See Annals of Congress 1 (1798 [1797–­1798]): 948–­51. 2.  Ibid., 43–­44. 3.  Annals of Congress 2 (1798 [1798–­1799]): 2247–­48. 4.  Ibid., 2271–­72. 5.  Ibid., 2270–­72. 6.  Ibid., 2318. 7.  Ibid., 2319. 8.  Interestingly, Republican Senator Henry Tazewell now seems prescient for admonishing his colleagues in the midst of the Senate debate on Senator Blount’s impeachment to seriously consider their reasons for voting one way or another, because their decision would serve as a “precedent for all future occasions.” Melton, The First Impeachment (quoting Senator Tazewell). 9. National Commission on Judicial Discipline and Removal, Hearings (testimony of Senator Carl Levin on May 15, 1992). 10.  Claiborne Impeachment Trial, 289–­97. 11.  Hearings, 161 (testimony of Senator Levin). 12. Burbank, “Alternative Career Resolution,” 643, 683–­84. 13. S. Res. 18, 74th Cong., 1st sess., Cong. Rec. 79, daily ed. (May 28, 1935): 8309–­10. 14.  Ritter Impeachment Trial, 47, 323–­24. 15. Bushnell, Crimes, Follies, and Misfortunes. 16.  Ibid., 29, 36. 17. See Hoffer and Hull, Impeachment in America, 162. “Blount’s case was an object lesson to both Federalists and Republicans there was no hope for a

238  notes to pages 52–56 sweeping politicization of impeachment law without a suitable revision or extension of the doctrine of impeachment.” 18.  Ibid., 26. 19. Hoffer and Hull, Impeachment in America, 202, 250–­52. 20.  Ibid., 153. 21. See Annals of Congress 2 (1804): 319–­22. 22.  Ibid., 328–­30. 23. Hoffer and Hull, Impeachment in America, 217. 24. Ibid. 25. Ibid. 26. U.S. House Special Subcommittee on H.R. 920 of the House Committee on the Judiciary, Legal Materials on Impeachment 20, 91st Cong., 2d sess., 1970, Committee Print. 27. Morgan, Eastman, Gale, and Areen, “Impeachment,” 689, 698. 28. Bushnell, Crimes, Follies, and Misfortunes, 51. 29.  The five senators were Federalists Dayton and Samuel White (Delaware) and Republicans John Armstrong (New York), Stephen R. Bradley (Vermont), and David Stone (North Carolina). Ibid. 30. Ibid. 31.  1 John Quincy Adams, Memoirs, 1:309. 32. Hoffer and Hull, Impeachment in America, 217. In the Senate vote on removal, only one Federalist—­William H. Wells from Delaware—­moved sides, and, in doing so, joined the nineteen Republicans who had already voted to convict the judge. Ibid. 33.  Cong. Rec. 4 (1876): 1433. 34.  Ibid., 2081–­82. 35.  Ibid., 1429. 36.  Ibid., 1433. 37. See ibid., 1429–­32. 38.  Ibid., 1430. 39.  Cong. Rec., 4 158 (1876) (Trial of William Belknap). 40. Hinds, Hinds’ Precedents, 3, § 2459, 934. 41.  Trial of William Belknap, Cong. Rec. 4, 357. 42.  Cong. Rec. 4 (1876): 5082. 43. Ibid. 44.  The five were Secretary of War Belknap (charged with accepting bribes); Harry Claiborne (charged with willfully making false tax statements); Alcee Hastings (charged with conspiring to solicit a bribe and perjury); Walter Nixon (charged with perjury); and Bill Clinton (charged with perjury and obstruction of justice). 45.  Annals of Congress 2 (1804): 319–­22. 46.  Congressional Globe, 37th Cong., 2d sess., (1862), 2949–­50. 47.  Cong. Rec. 48 (1912): 8910. 48.  Cong. Rec. 80 (1936): 5606. 49. Ten Broeck, “Partisan Politics,” 185, 198–­99. See also Bushnell, Crimes, Follies, and Misfortunes, 286, suggesting that “because the House  .  .  . had already investigated him in 1933, perhaps Judge Ritter’s impeachment emerged as a ready-­made and quick route for showing the judicial branch that Congress possessed, and would use, power to chasten it.”

notes to pages 56–64  239 50.  Ibid., 282. 51. See generally, U.S. House Special Subcommittee on H.R. Res. 920 of the House Committee on the Judiciary, Final Report on Associate Justice William O. Douglas, 91st Cong., 2d sess., 1970. 52. U.S. House, Impeachment of Richard M. Nixon, President of the United States, 93d Cong., 2d sess., 1974, H. Rep. 93–­1305, 1–­4 (hereafter President Nixon Impeachment Report). 53.  Ibid., 499. 54.  For a similar view, see Hoffer and Hull, Impeachment in America, 218–­ 19, maintaining that “Pickering was removed because there was no other way to replace him. [His] was not a partisan case” in part because the Federalists underestimated the Republicans’ ability to oppose impeaching judges on a partisan basis and “without strong cause. [Pickering] was not accused of misusing his office for political ends or of hectoring his political enemies in his court. . . . Out of the confusion over the liability of Pickering’s conduct—­whether a person incapable of crime (and incompetent to stand trial) could be impeached, tried, and removed—­came the clear rule that incompetence was an impeachable offense.” 55. See Rehnquist, Grand Inquests, Swindler, “High Court of Congress,” 420, 423–­24. 56. U.S. Const., art. I, § 5, cl. 1. 57.  Ibid., art. I, § 3, cl. 7. 58. See Solomon, History of the Seventh Circuit, 1891–­1941, 61–­63. 59.  For a thorough discussion of the relationship between Justice Department investigations and prosecutions and the removal, resignation, or impeachment of federal judges, see Van Tassel, “Resignations and Removals,” 333, 379–­93. 60.  Ibid., 391–­92. 61. For example, Judges John Warren Davis, Martin Manton, and Albert Johnson, were all indicted by the Justice Department, but each resigned before being prosecuted. See Borkin, The Corrupt Judge, 219–­59. 62. See notes 35, 36, and accompanying text in chap. 2. 63. National Commission on Judicial Discipline and Removal, Hearings, 41–­43. 64.  Wallace Turner, “Impeachment May Focus on Intrigue,” New York Times, August 11, 1986, A20. 65. Van Tassel, “Resignations and Removals,” 370, 410–­19, app., tbl. 1. 66.  Ibid., 407. 67. Hinds, Hinds’ Precedents, 3, § 2397, 820 (Humphreys); Cannon, Cannon’s Precedents, 6, § 512, 707 (Archbald). 68.  Ritter Impeachment Trial, 628–­37. After convicting Judge Ritter, the Senate voted not to bar Judge Ritter from future federal office. Ibid., 639–­41. 69.  Claiborne Impeachment, 291–­97; Hastings Impeachment, 688–­703; Nixon Impeachment, 432–­35. 70. U.S. Const., amend. V. 71. See ibid., art. II, § 2, cl. 1. 72. National Commission on Judicial Discipline and Removal, Hearings. 73.  Nixon Report, pt 1:117–­19. (Motion of Judge Walter J. Nixon, Jr., for Defense Funds). See also Hastings Senate Report, pt. 1:259 (same arguments of Professor Terrance Anderson on behalf of Judge Hastings).

240  notes to pages 65–70 74.  Hastings Senate Report, pt. 1:479 (Memorandum for the Record, May 17, 1989); Nixon Report, pt. 1:325 (Impeachment Trial Committee Disposition of Pre-­ Trial Motions First Order). 75.  Hastings v. United States, 802 F. Supp. 490, 504–­ 5 (D.D.C., citation omitted).

chapter six making sense of the federal impeachment process 1. U.S. Const. art. I, § 2, cl. 5. 2. Ibid., § 3, cl. 6. 3.  Ibid., art. II, § 4. 4.  Ibid., art. I, § 3, cl. 6. 5. Ibid. 6. Ibid. 7.  Ibid., art. I, § 3, cl. 7. 8.  Ibid., art. II, § 4. 9. Ibid. 10.  Ibid., art. III, § 1. 11.  Ibid., art. I, § 3, cl. 7. 12. Ibid. 13.  Ibid., art. I, § 3, cl. 6. 14. Sunstein, “Constitutionalism After the New Deal,” 421, 495. 15.  Ibid., 495. 16. Shane, “Who May Discipline or Remove Federal Judges?” 209, 214. 17.  113 S. Ct. 732 (1993). 18. Carter, The Confirmation Mess, 151. 19. See Powell, “Rules for Originalists,” 659, 669. “[T]he founders thought, argued, reached decisions, and wrote about the issues that mattered to them, not about our contemporary problems.” 20. Shane, “Who May Discipline or Remove Federal Judges?” 211–­12. 21. See, e.g., Ervin, “Separation of Powers,” 108, 113–­19; Shartel, “Federal Judges,” 870, 893–­94. 22.  Koukoutchos, “Constitutional Kinetics,” 635, 665. 23.  Ibid., 666–­67. 24. The fact that some governmental action or decision is plainly unconstitutional, however, does not necessarily mean that judicial review is available to provide a remedy. I discuss the justiciability of impeachments in chapter 11. 25. See, e.g., Bowsher v. Synar, 478 U.S. 714 (1986), which held that Congress could not hold the power of removal except by impeachment over an officer exercising purely executive functions; INS v. Chadha, 462 U.S. 919 (1983), which held that Congress violated the presentment and veto clauses of the Constitution in enacting a one-­house veto over the decision of an executive officer; Northern Pipeline Construction Co. v. Marathon Pipeline Co., 458 U.S. 50 (1982), which held that Congress could not assign Article III powers in the Bankruptcy Act to judges who did not have life tenure and protection against salary diminution); Buckley v. Valeo, 424 U.S. 1 (1976), which held that Congress violated

notes to pages 71–77  241 the appointments clause when it retained the power to appoint members of the Federal Election Commission; Myers v. United States, 272 U.S. 57 (1926), which held that Congress could not condition the removal of a purely executive officer without violating the appointments clause. 26. See generally, Strauss, “Formal and Functional Approaches to Separation-­ of-­Powers Questions,” 488, 489, 492, 499; Strauss, “The Place of Agencies in Government,” 573. 27. See, e.g., Morrison v. Olson, 487 U.S. 654 (1988), which held that Congress could delegate appointment of an independent counsel to the judiciary since the counsel was an inferior officer and the removal power remained to a significant degree within the executive branch, thereby not seriously infringing upon the power of the president to carry out his constitutionally assigned functions; Mistretta v. United States, 488 U.S. 361 (1989), which upheld the constitutionality of the composition and lawmaking function of the United States Sentencing Commission, at least three of whose members are required to be judges and which is empowered to promulgate, review, and revise sentence-­determinative guidelines. 28. U.S. Const. art. III, § 1. 29.  17 U.S. (4 Wheat.), 316 (1819). 30.  McCulloch, 17 U.S. (4 Wheat), 406. 31. See U.S. Const. art. I, § 8, cl. 18 (“The Congress shall have Power[:] To make all laws which shall be necessary and proper for carrying into Execution the foregoing powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”). 32.  McCulloch, 17 U.S. (4 Wheat), 406. 33.  Ibid., 413. 34. See note 26. 35. Cf., e.g., Walter Nixon v. United States, 113 S.Ct. 732 (1993). 36. See, e.g., Ely, Democracy and Distrust, 76: (“interpretivism is incomplete: there are provisions in the Constitution that call for more . . .”); Shiffrin, “The First Amendment and Economic Regulation,” 1212, 1251–­53 defending balancing methodology in first-­amendment cases. But see Tushnet, Red, White, and Blue, 182–­83, 184–­86, 186–­87, criticizing balancing as failing to restrain judicial tyranny, as providing no criteria by which to evaluate judicial decisions, and as allowing the worst political decisions to be validated.

chapter seven the scope of impeachable officials and applicable punishments 1. U.S. Const. art. II, § 4. 2.  Records, 2:66. 3. See, e.g., Hamilton, Federalist No. 79, 474. 4. Shane, “Who May Discipline or Remove Federal Judges?” 209, 213. See also Gerhardt, “Constitutional Limits to Impeachment,” 10n.29. 5. Berger, Impeachment, 214–­23. See also Story, Commentaries on the Constitution, § 402: 285–­86; Rotunda, “Essay,” 707, 715–­16. 6. Berger, Impeachment, 216.

242  notes to pages 77–85 7. See ibid., 218–­19. 8. U.S. Const. art. II, § 3. 9. See Rotunda, “Essay,” 715–­16. 10. U.S. Const. art. I, § 6. 11. U.S. Const., art. II, § 2, cl. 2. 12.  Ibid., art. I, § 5. 13. See notes 40–­46 and accompanying text in chap. 2. 14. See generally, Tribe, American Constitutional Law, 244–­46; Nowak and Rotunda, Constitutional Law, § 7.11: 256–­57. 15. See notes 2–­7, 15–­20, and accompanying text in chap. 3. 16. U.S. Const. art. II, § 4. 17.  Ibid., art. I, § 3, cl. 7. 18. Rotunda, “Essay,” 718, citing Story, Commentaries, 289. 19.  Hearings, 47. 20.  The Senate disqualified Judges Humphreys and Archbald. Ibid., 30, 47. It later disqualified Thomas Porteous. 21.  The two attempted impeachments against officials who were no longer in office at the time the House or the Senate attempted to move against them were Secretary of War William Belknap; see Bestor; “Impeachment,” 255, 280 (discussing Belknap), and Senator William Blount. See Rotunda, “Essay,” 717. 22. See, e.g., Gerhardt, “Constitutional Limits to Impeachment,” 94–­97; Rotunda, “Essay,” 716–­18; Firmage and Mangrum, “Removal of the President,” 1023, 1091–­92; Bestor, “Impeachment,” 277–­81. 23. Bestor, “Impeachment,” 277. 24. See ibid., 277. 25.  Ibid., 278. 26. See Rotunda, “Essay,” 716. 27. See Bestor, “Impeachment,” 279. 28.  Records, 2: 64–­69. 29. Madison, Federalist No. 39, 242. 30.  Congressional Globe, 29th Cong., 1st sess., 1846, 641 (statement of J. Q. Adams), quoted in Bestor, “Impeachment,” 279. 31. Story, Commentaries, 283. 32. See Rotunda, “Essay,” 717. 33.  Ibid., 717. 34. See Franklin, “Romanist Infamy,” 313.

chapter eight impeachment as the sole means of disciplining and removing impeachable officials 1. U.S. Const. art. III, § 1. The phrase “during good Behavior” appeared in various state constitutions as well as the first draft of the federal Constitution. See generally Berger, Impeachment, 147–­49, 159–­65. 2. See ibid., 161.

notes to pages 85–87  243 3. See, e.g., Rotunda, “Essay” 707, 720n.67; Otis, A Proposed Tribunal, 37. 4.  The clearest expression of this intention is the constitutional text itself. Although the Constitution provides that federal judges may serve “during good Behavior,” it puts limits on the terms of the president and the vice-­president and members of Congress. The president may serve no more than two terms of four years each and must be elected separately for each term he serves. U.S. Const. art. II, § 1; ibid., amend. XXII. The vice-­president serves for only four-­year terms at the pleasure of the president, who chooses him. Members of the House of Representatives must run for reelection every two years, and members of the Senate must run for reelection every six years. Ibid., art. I, § 2; ibid., amend. XVII. See also Records, 2:66 (statement of Mr. King contrasting presidential and judicial tenure). 5. See generally Wood, The Creation of the American Republic, 159–­61; Fee­ rick, “Impeaching Federal Judges,” 1, 10–­12. 6. See Hamilton, Federalist No. 78, 464–­72. 7. Berger, Impeachment, 163 (citations omitted). 8.  Records, 2:545. 9. Rotunda, “Essay,” 720. 10. See Nixon v. United States, 113 S.Ct. 732, 738 (1993): “In our constitutional system, impeachment was designed to be the only check on the Judicial branch by the legislature.” 11. I am indebted to legal scholar Peter Shane for the distinction between political and judiciary-­dependent mechanisms for judicial discipline and removal. See Shane, “Who May Discipline or Remove Federal Judges?” 209, 211. 12. See generally Shane, “Who May Discipline or Remove Federal Judges?” 7–­12. 13. See G. Wood, The Creation of the American Republic, 160. 14. Smith, “An Independent Judiciary,” 1104, 1113, describing the Pennsylvania assembly’s attempt in the 1860s to insist that, at the request of the assembly, colonial judges be displaced for misbehavior; ibid., 1153–­55, describing address under Massachusetts Constitution of 1780, the Delaware and Maryland Constitutions of 1776, and the South Carolina Constitution of 1778. 15. On the experiences of the states prior to the drafting of the Constitution, see Hoffer and Hull, Impeachment in America, 68–­95. 16. See Smith, “An Independent Judiciary,” 1105–­10. 17. See the Declaration of Independence, para. 11, (U.S. 1776): “He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.” 18. Berger, Impeachment, 150. 19.  The four states providing for address were Maryland, Massachusetts, New Hampshire, and South Carolina. Georgia provided for a variant of address by requiring that every officer shall be liable to be called to account by the lower chamber (the house) of the Assembly. The six states that had impeachment mechanisms were Delaware, New York, New Jersey, Pennsylvania, Vermont, and Virginia. See Berger, Impeachment, 145 (categorizing state constitutional provisions on judicial removal). 20.  Records, 2:428.

244  notes to pages 87–91 21. Ibid. 22. Hamilton, Federalist No. 79, 474. 23. Storing, Essays of Brutus, 163. 24. See Shane, “Who May Discipline or Remove Federal Judges?” 218. 25. See, e.g., Myers v. United States, 272 U.S. 52, 114–­15, 170 (1926), quoting with approval President Coolidge’s statement that “[t]he dismissal of an officer of the Government . . . other than by impeachment, is exclusively an executive function; Bowsher v. Synar, 478 U.S. 714, 722–­23 (1986), finding that officers of the United States can be removed “only upon impeachment by the House of Representatives and conviction by the Senate.” 26. See Bowsher, 478 U.S., 722–­23, concluding that such a role is not contemplated by the Constitution and is “inconsistent with separation of powers.” 27. Shane, “Who May Discipline or Remove Federal Judges?” 219. 28. See, e.g., Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 961–­62 (1982) (Justice Powell, concurring); Wood, The Creation of the American Republic, 407. 29. Wood, The Creation of the American Republic, 160 (citation omitted). 30. Montesquieu, Spirit of the Laws, 1:152. 31. Shane, “Who May Discipline or Remove Federal Judges?” 222. 32. Ch. 9, § 21, 1 Stat. 117 (April 30, 1790). 33. See, e.g., Hamilton, Federalist No. 65, 398–­99, arguing that the Supreme Court would be an improper forum for impeachment because of judicial involvement in any subsequent criminal prosecution of the impeached official; ibid., No. 77, 464, cataloguing the “requisites to safety, in a republican sense” imposed to insure presidential accountability to the people. 34. See, e.g., Berger, Impeachment, 127–­31 Shartel, “Federal Judges,” 870, 882–­83. 35. See Ziskind, “Judicial Tenure in the American Constitution,” 135, 138, suggesting that scire facias was, by 1787, not a “precedent,” but a “fossil.” 36. Ethics in Government Act, U.S. Code, vol. 28, §§ 591–­99 (1988). The act was first enacted in 1978 and has been reenacted twice, most recently in 1987. See Independent Counsel Reauthorization Act of 1987, P.L. 100–­191, 101 Stat. 1293 (1987). 37. See Grimes, “Hundred-­Ton-­Gun Control,” 1209, 1218. 38. U.S. Const. art. I, § 3, cl. 7. 39. On numerous occasions, the Supreme Court has recognized that the actions of the First Congress illuminate the original understanding of the Constitution because twenty of its members had also been delegates at the constitutional convention. See, e.g., Bowsher v. Synar, 478 U.S. 714, 724n.3 (1986); Marsh v. Chambers, 463 U.S. 783, 790–­91 (1983); J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 411–­12 (1928); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 424 (1819). 40. Burbank, “Alternative Career Resolution,” 643, 668–­69. 41. See generally Shane, “Who May Discipline or Remove Federal Judges?” 15. 42.  493 F.2d 1124 (7th Cir.), cert. denied, 417 U.S. 976 (1974). 43.  Ibid., 1142. 44.  Ibid., 1144.

notes to pages 91–94  245 45.  765 F.2d 784 (9th Cir. 1985), appeal denied, 781 F.2d 1327 (9th Cir.), stay of execution denied, 790 F.2d 1355 (9th Cir. 1986). 46.  United States v. Claiborne, 727 F.2d 842, 846 (9th Cir.), cert. denied, 469 U.S. 829 (1984). 47. See Claiborne, 727 F.2d, 845–­46. 48. See ibid., 845–­46. 49. See generally Baker, Conflicting Loyalties. 50. See, e.g., United States v. Claiborne, 727 F.2d 842, 847–­48 (9th Cir.), cert. denied, 469 U.S. 829 (1984); United States v. Hastings, 681 F.2d 706, 710–­11 (11th Cir. 1982), cert. denied, 459 U.S. 1203 (1983). 51. See generally Peterson, “The Role of the Executive Branch in the Discipline and Removal of Judges,” 243, 277–­318. 52. See Claiborne, 727 F.2d, 846. 53.  Claiborne, 790 F.2d, 1360 (Justice Kozinski dissenting). 54. Catz, “Removal of Federal Judges by Imprisonment,” 103, 109. 55. See Claiborne, 727 F.2d, 846–­47. 56.  Ibid., 846. 57. See, e.g., Maxman, Note, “In Defense of the Constitution’s Judicial Impeachment Standard,” 420, 457. 58. U.S. Const. art. I, § 6, cl. 1 provides in pertinent part that “The Senators and Representatives shall . . . in all cases, except treason, felony, and breach of peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House they shall not be questioned in any other place.” 59. See United States v. Lee, 106 U.S. 196, 220 (1882), holding that “[a]ll officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it”; Claiborne, 727 F.2d, 847, holding that “Article III protections, though deserving utmost fidelity, should not be expanded to insulate federal judges from punishment for their criminal wrongdoing.” 60. See Claiborne, 765 F.2d, 788. 61. Burbank, “Alternative Career Resolution,” 671. See also ibid., 671–­ 72n.130 (citing authorities). 62.  Ibid., 671–­72. 63.  487 U.S. 654 (1988). 64.  U.S. Code, vol. 28, §§591–­98 (1988). 65. Brief of the United States as Amicus Curiae Supporting Appellees 47, quoted in Koukoutchos, “Constitutional Kinetics,” 635, 710. 66.  Morrison, 487 U.S., 714 (Justice Scalia dissenting). 67. The House or Senate Judiciary Committee, a majority of the majority party members of either chamber, or a majority of all party members of either such committee, may request, but not require, in writing that the attorney general apply for the appointment of an independent counsel. See U.S. Code, vol. 28, § 592 (g) (Supp. V 1987). 68. See ibid., § 592(b)(1). 69. See Koukoutchos, “Constitutional Kinetics,” 711 and nn.430–­ 31 noting prosecutions of two former attorneys general, federal judges, and the ABSCAM prosecutions of legislators); see also Logan, “Historical Uses of a Special Prosecution,”

246  notes to pages 94–100 discussing the St. Louis Whiskey Ring and Teapot Dome prosecutions and the scandal-­induced prosecutions of various officers of the Reconstruction Finance Cooperation and the Internal Revenue Bureau. 70. Ervin, “Separation of Powers,” 108, 118 and n.43. 71.  The necessary and proper clause provides that the Congress shall have the power “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or any department or officer thereof.” U.S. Const. art. I, § 8 (18). 72. See, e.g., U.S. Const. art. III, § 2, cl. 3. 73.  For a more detailed discussion of the differences between the procedural protections available in impeachment and criminal trials, see chap. 10. 74. Constitutional Round Table Discussion before the National Commission on Judicial Discipline and Removal (December 18, 1992), Remarks of Professor Walter Dellinger, reprinted in Hearings 354–­55. 75. See Hamilton, Federalist No. 65, 427–­28. 76. U.S. Const. art. I, § 5, cl. 2: “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member.” 77.  272 U.S. 52 (1926). 78.  295 U.S. 602 (1935). 79. U.S. Const. art. II, § 2, cl. 2: “[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court and all other officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law. . . .” 80. See Humphrey’s Executor, 295 U.S., 629; Reagan v. United States, 182 U.S. 419, 425 (1901), United States v. Perkins, 116 U.S. 483, 485 (1886). 81. See Myers v. United States, 272 U.S. 52, 119 (1926). 82. See, e.g., S. 1506, 91st Cong., 1st sess., 1969, attempting to create a five-­judge commission that would remove a federal judge after a formal hearing subject to Supreme Court review, noted in Kurland, “The Constitution and the Tenure of Federal Judges,” 665; Act of February 13, 1801, ch. 4, 2 Stat. 89 (1850) (repealed by Act of March 8, 1802, Ch. 8, 2 Stat. 132 [1850]), creating an alternate means of removing a federal judge but raising questions of constitutionality that eventually led to repeal, noted in Kurland, “The Constitution and the Tenure of Federal Judges,” 670. 83.  398 U.S. 74, 88 (1970), dismissing second appeal for lack of jurisdiction in light of the fact that Judge Chandler may have still had other avenues of relief available to him; see also Chandler v. Judicial Council of the Tenth Circuit, 382 U.S. 1003, 1003 (1966) (miscellaneous order), characterizing the Judicial Council’s initial order to suspend Judge Chandler temporarily until a full hearing as interlocutory and a basis for dismissing his first appeal. 84. Act of June 25, 1948, c. 646, § 332, 62 Stat. 902 (1948) (codified at U.S. Code, vol. 28, § 332 [1988]). 85.  Chandler, 382 U.S., 1004 (miscellaneous order; Justice Black dissenting). 86.  Ibid., 1003. 87. See Chandler, 398 U.S., 86.

notes to pages 100–105  247 88.  Chandler, 382 U.S., 1006 (miscellaneous order; Justice Black dissenting). 89. See Chandler, 398 U.S., 136, 140 (Justice Douglas dissenting). 90. See Berger, Impeachment, 174–­80. 91. See generally Kaufman, “Chilling Judicial Independence,” 681, 716. 92. Pub. L. No. 96–­458, 94 Stat. 2035 (1980) (codified at U.S. Code, vol. 28, §§ 331, 332, 372, 604 [1988]). 93. See U.S. Code, vol. 28, § 372 (c)(1) (1988). 94. See ibid., § 372(c)(4)–­(5). 95. See ibid., § 372 (c)(6). 96. See ibid., § 372(c)(7)–­(c)(8). 97. See, e.g., Mistretta v. United States, 109 S.Ct. 647, 659 (1989); Morrison, 487 U.S., 694–­97; CFTC v. Schor, 478 U.S. 833, 857 (1986); Nixon v. Administrator of General Services, 433 U.S. 425, 443 (1977); United States v. Nixon, 418 U.S. 683, 705–­07 (1974). 98. U.S. House, Report No. 1313, 96th Cong., 2d sess., 1980, 17–­18. 99. See generally Barr and Willging, “Decentralized Self-­Regulation,” 25, 183, suggesting that, thus far, the act’s positive benefits have included “reinforcing the chief judge’s traditional role as overseer of judicial conduct in the circuit; .  .  .  reassuring that the public has an opportunity to complain about judicial conduct; and . . . assigning the process to judges familiar with local conditions. The negative effects reported were related exclusively to the lack of merit in most complaints and the burden the Act imposes on court resources.”

chapter nine the scope of impeachable offenses 1.  Cong. Rec. 116, daily ed. (April 15,1970): 11,913. Ford catalogued various “offenses” Justice Douglas allegedly committed, including associating with publishers of obscene publications and members of the “new left.” Ford also suggested that Justice Douglas had failed to recuse himself in several cases in which recusal would have been proper. Ibid., 11,912. 2. See, e.g., Berger, Impeachment, 123, discussing the extent of misbehavior historically required as grounds for impeachment; Thompson and Pollitt, “Impeachment of Federal Judges,” 87,107, criticizing Ford’s statements and showing a series of unsuccessful attempts at politically motivated impeachments; Maxman, Note, “In Defense of the Constitution’s Judicial Impeachment Standard,” 420, 444n.135, noting that Ford called for Douglas’s impeachment to retaliate for the Senate’s rejection of two Nixon appointees to the Supreme Court. 3. See, e.g., Tribe, American Constitutional Law, 293–­94; Berger, Impeachment, 56–­57; Black, Impeachment: A Handbook, 33–­35; Brant, Impeachment: Trials and Errors, 180–­81. But see Thompson and Pollitt, “Impeachment of Federal Judges,” 107, 108, 114–­15 asserting that the House of Representatives is reluctant to impeach unless the targeted official is accused of a serious crime. 4. Cf. Berger, Impeachment, 70, discussing the eighteenth-­century English political practice of impeaching the king’s favorites for giving him bad advice; Kurland, “The Constitution and the Tenure of Federal Judges,” 665, 697, asserting the unconstitutionality of legislation aimed at defining the limits of good behavior.

248  notes to pages 105–107 5. U.S. Const. art. II, § 4. 6.  Ibid., art. III, § 3, cl. 1. 7. See ibid., art. II, § 4; U.S. Code, vol. 18, §§ 201–­3 (1982 and Supp. V 1987); see also Act of April 30, 1790, ch. 9, § 21, 1 Stat. 112 (1845) establishing bribery for the first time as a federal criminal offense. 8. Berger, Impeachment, 61 (emphasis in original). 9.  Ibid., 59–­61. 10. Bestor, “Impeachment,” 255, 264. 11. See Bestor, Impeachment, quoting Blackstone, Commentaries on the Laws of England 75. Blackstone commented that treason . . . in its very name (which is borrowed from the French) imports a betraying, treachery, or breach of faith. . . . [T]reason is . . . a general appellation, made use of by the law, to denote . . . that accumulation of guilt which arises whenever a superior reposes a confidence in a subject or inferior, . . . and the inferior . . . so forgets the obligations of duty, subjection, and allegiance, as to destroy the life of any such superior or lord. . . . [T]herefore for a wife to kill her lord or husband, a servant his lord or master, and an ecclesiastic his lord or ordinary; these, being breaches of the lower allegiance, of private and domestic faith, are denominated petit treasons. But when disloyalty so rears it’s [sic] crest, as to attack even majesty itself, it is called by way of eminent distinction high treason, alta proditio; being equivalent to the crimen laesae majestatis of the Romans. 12. Bestor, “Impeachment,” 263–­64 (citation omitted). 13.  Ibid., 265. 14. See ibid., 266. 15. See Berger, Impeachment, 88, observing that “James Iredell, later a Supreme Court Justice, told the North Carolina convention [during the ratification campaign] that the ‘occasion for its exercise [impeachment] will arise from acts of great injury to the community’ ” (citation omitted). 16. Farrand, Records, 2:550. 17. Ibid. 18. Ibid. 19. Ibid. 20.  Ibid. According to Blackstone, “high misdemeanors” in British usage included “mal-­administration of such high officers, as are in public trust and employment.” Rotunda, “Essay,” 707, 723, quoting Blackstone, Commentaries, 4:121. 21. Rotunda, “Essay,” 723, quoting Elliot, Debates, 4:47 quoting A. MacLaine of South Carolina. 22. Rotunda, “Essays,” 723, quoting Elliot, Debates, 2:47 quoting S. Stillman of Massachusetts. 23. Hamilton, Federalist No. 65, 396. 24. Ibid. 25. Wilson, The Works of James Wilson, 1:426. 26. Story, Commentaries, § 385, 272–­73. 27.  Ibid., 290. 28. Bestor, “Impeachment,” 263, quoting Story, Commentaries, § 788, 256.

notes to pages 107–117  249 29. Story, Commentaries, § 405, 288. 30.  Ibid., 287 (citations omitted). 31.  U.S. Code, vol. 18, § 201 (1982). 32. Tribe, American Constitutional Law, 294. 33. Ibid. 34. See Bestor, “Impeachment,” 263 citing Story, Commentaries, § 810, 278, § 788, 256, commenting that the penalties for impeachment were designed to “ ‘secure the public against political injuries.’ And [ Justice Story] defined the latter as ’such kind of misdeeds . . . as peculiarly injure the commonwealth by the abuse of high offices of trust.’ ” 35. See Abraham, Justices and Presidents, 47–­48. 36. U.S. Const. art. 1, § 3, cl. 6. 37. See ibid. 38. See ibid. 39. Rotunda, “Essay,” 726.

chapter ten the proper procedures for impeachment proceedings 1. See U.S. Const. art. I, § 3, cl. 7. 2. See ibid., art. I, § 2, cl. 5, committing impeachments to the “sole Power” of the House; ibid., art. I, § 3, cl. 6, committing impeachment trials to the “sole Power” of the Senate. 3. See ibid., art. II, § 2, cl. 1. 4. See U.S. Const. art. I, § 2, cl. 5, implying impeachments by the House require at least a majority vote; ibid., art. I, § 3, cl. 6, requiring a vote of at least “two thirds of the Members present” in the Senate to convict in an impeachment trial. 5. See ibid., art. II, § 4. 6. See ibid., art. I, § 3, cl. 7; ibid., art. II, § 2; ibid., art. III, § 2, cl. 3. 7. Black, Impeachment: A Handbook, 17. 8. See ibid., 17. 9. Ibid. 10. National Commission on Judicial Discipline and Removal, Hearings, 59, 60. 11. Black, Impeachment: A Handbook, 20. 12.  Ibid., 20–­21. 13. Tribe, American Constitutional Law, 288. 14.  Congressional Globe, 27th Cong., 2d sess., 1842, 580. 15.  The third article charged that “President Nixon’s repeated refusal to comply with Judiciary Committee subpoenas issued in the course of the impeachment investigation was ’subversive of constitutional government,’ since such refusal involved a presidential usurpation of ‘functions and judgments necessary to the exercise of the sole power of impeachment vested by the Constitution in the House of Representatives.’ ” Tribe, American Constitutional Law, 289. 16.  418 U.S. 683 (1974). 17.  Ibid., 713. 18. See Tribe, American Constitutional Law, 268–­74. 19. See Black, Impeachment: A Handbook, 18.

250  notes to pages 117–119 20. Ibid. 21. Ibid. 22.  113 S.Ct. 732 (1993). 23. U.S. Const. art. I, § 3, cl. 6. 24. Brief of Petitioner in Nixon v. United States, No. 91–­740, 25–­28 (April 24, 1992). 25.  Ibid., 28–­31. 26.  Ibid., 31. 27.  Ibid., 33–­40. 28.  Ibid., 33. 29. See U.S. Const. art. I, § 3, cl. 6. 30. See ibid. 31. See ibid., art. I, § 3, cl. 7. 32. See ibid., art. I, § 3, cl. 6. 33.  Ibid., art. I, § 5, cl. 2. But see United States v. Ballin, 144 U.S. 1, 5 (1892), observing that each house . . . may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. But within these limitations all matters of method are open to the determination of the house, and it is no impeachment of the rule to say that some other way would be better, more accurate or even more just. . . . [This rulemaking power is] within the limitations suggested, absolute and beyond the challenge of any other body or tribunal. 34. See Jefferson, Jefferson’s Manual of Parliamentary Practice, noting that the Senate’s impeachment rules are in part derived from English parliamentary practice and that English practice permitted the use of evidentiary committees in conducting impeachment trials, noting, in fact, that “the practice is to swear the witnesses in open House, and then examine them there; or a committee may be named, who shall examine them in committee, either on interrogatories agreed on in the House, or such as the committee in their discretion shall demand.” 35. See, e.g., Hamilton, Federalist No. 65, 440, 442. 36. Prior to the constitutional convention, the states had on occasion used legislative committees to investigate whether to draw up articles of impeachment. See Hoffer and Hull, Impeachment in America, 29, 33. In addition, in colonial governments and state legislatures, the subjects of impeachment proceedings often appeared before committees to answer the charges against them. See Walter Nixon v. United States, 113 S.Ct. 732, 746 (1993) (Justice White concurring). 37. See generally Williams, “Historical and Constitutional Bases,” 512, 523–­ 32, reviewing English precedent relating to impeachment in detail and concluding that it “shows beyond doubt that the House of Lords used committees to hear evidence during impeachment trials in the early 17th century. . . . It is clear . . . that, unlike other practices which were outlawed by affirmative action of the House of Lords, the use of committees to take evidence and examine witnesses has never been banned or disavowed as precedent—­as were other impeachment procedures considered to have been wrongly invoked” (footnotes omitted).

notes to pages 119–122  251 38. See ibid., 520, 537–­39, 543–­44. See also Nixon v. United States, F.2d 239, 259–­ 65 (D.C. Cir. 1993; Justice Edwards dissenting in part and concurring in judg­ment). 39. See Wright, The Law of Federal Courts, § 109, 771. 40.  Ex Parte Peterson, 253 U.S. 300, 312 (1920). See also ibid., recognizing this authority as part of a federal court’s “inherent power.” The power of federal courts to appoint special masters is now embodied in Rule 53 of the Federal Rules of Civil Procedure. That rule permits the master broad powers in receiving evidence and taking testimony for use by the court. Ibid., 53 (c). 41. U.S. Const. art. I, § 5. 42.  Barry v. United States ex rel. Cunningham, 279 U.S. 597, 616 (1929).

chapter eleven judicial review of impeachments 1.  Walter Nixon v. United States, 113 S.Ct. 732 (1993). 2. See generally Chemerinsky, Federal Jurisdiction, § 2.6, 124–­30, 144–­45. 3. Compare Black, Impeachment: A Handbook, 53–­64; Rotunda, “Essay,” 707, 728, noting that impeachment raises issues that satisfy each of the elements of a political question as set forth by the Court in Baker v. Carr, 369 U.S. 186, 217 (1962); Gunther, “Judicial Hegemony and Legislative Autonomy,” arguing that the Burger Court erred in not treating as a political question President Nixon’s asserted claim of executive privilege in the Watergate tapes case; with Berger, Impeachment, 103–­21; Brant, Impeachment: Trials and Errors, 183–­87; Tushnet, “Principles, Politics, and Constitutional Law,” 49, 57, agreeing that Powell v. McCormack compels the conclusion that such questions are justiciable; Feerick, “Impeaching Federal Judges,” 1, 57. 4.  For a more comprehensive examination of Nixon’s impact on the political question doctrine in general, see Gerhardt, “Rediscovering Nonjusticiability.” 5.  Nixon, 113 S.Ct., 736. 6.  369 U.S. 186, 217 (1962). 7.  Ibid., 736. 8. U.S. Const. art. I, § 3, cl. 6. 9.  Nixon, 113 S.Ct., 739. 10.  395 U.S. 486 (1969). 11. U.S. Const. art. I, § 5. 12.  Nixon, 113 S.Ct., 739–­40. 13.  Ibid., 740 (emphasis in original). 14. Ibid. 15.  Ibid., 741 (Justice White concurring in the judgment). 16.  Ibid., 743. 17.  Ibid., 744. 18.  Ibid., 748 (Justice Souter concurring in the judgment). 19. Brown, “When Political Questions Affect Individual Rights,” 125, 127. 20.  Judge Raymond Randolph took this position in Nixon’s case before the D.C. Circuit. He characterized the political question doctrine as “ ‘amorphous’ ” and as ultimately . . . conferring on the courts a rather larger role in impeachments

252  notes to pages 122–128 although the Framers intentionally excluded the judiciary. [I] view the controlling question as whether the judiciary can pass upon the validity of the Senate’s procedural decisions. My conclusion that the courts have no such role to play in the impeachment process ultimately rests on my interpretation of the Constitution. (Nixon v. United States, 938 F.2d 239, 247–­48 [D.C. Cir. 1991; Justice Randolph concurring; quotation omitted]) 21.  Nixon, 113 S. Ct., 735. 22. See ibid., 739–­40. 23.  Nixon, 113 S.Ct., 739. See also ibid., 739, expressing concerns that litigation over an impeachment could “expose the political life of the country to months, or perhaps years, of chaos” (quoting Nixon v. United States, 938 F.2d 239, 246 [D.C. Cir. 1991]). 24.  Nixon v. United States, 938 F.2d, 255n.6 (Justice Edwards dissenting in part and concurring in the judgment; quoting Gerhardt, “The Constitutional Limits,” 99–­100). 25.  Nixon v. United States, 939 F.2d, 255–­59 (Justice Edwards dissenting in part and concurring in the judgment). 26. Cf. Powell, 395 U.S., 521 (citation omitted): “ ‘Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution.’ ” 27.  In fact, Rebecca Brown suggests that, in determining whether a particular case actually involved a political question, the Court has relied on and is better off relying in the future instead on standing criteria, “including allegation[s] of injury, causation, and redressability by the courts.” Ibid., 154. For a critique of her proposal, see Gerhardt, “Rediscovering Nonjusticiability,” 244–­45n.71. 28.  17 U.S. (4 Wheat.) 315, 404 (1819). 29.  Nixon, 113 S.Ct., 737. 30.  Ibid., 737. 31.  Ibid., 738. 32.  Ibid., 739 quoting from Cooke, The Federalist, 545. 33.  Nixon, 113 S.Ct., 739. 34. Ibid. 35.  Ibid., 740. 36.  Ibid., 736, 739. 37. U.S. Const. art. I, § 3, cl. 7. 38.  Ibid., art. II, § 4. 39.  Powell, 395 U.S., 522. 40.  Nixon, 113 S.Ct., 739–­40. 41.  Ibid., 739n.2. 42. See Nixon, 113 S.Ct., 738; ibid., 739; ibid., 739n.2. 43. Brown, “When Political Questions Affect Individual Rights,” 129. 44.  Ibid., 138–­39. 45. Farrand, Records, 2:551. 46. Ibid. 47. Hamilton, Federalist No. 81, 509.

notes to pages 128–134  253 48. See Records, 2:500, 551. 49. See generally Berger, Impeachment, 116–­17. 50. Black, Impeachment: A Handbook, 57 (citations omitted). 51.  Records, 2:430. 52. Ibid. 53.  Ibid., 431. 54.  Ibid., 431. 55. See Nixon, 113 S.Ct., 739. 56. U.S. Const. art. I, § 2, cl. 5. 57.  Ibid., art. I, § 3, cl. 6. 58. See ibid., art. I, § 6, cl. 1, providing in pertinent part that “[t]he Senators and Representatives shall  .  .  . in all Cases, except Treason, Felony, and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.” 59. See, e.g., Eastland v. United States Serviceman’s Fund, 421 U.S. 491, 501–­5 (1975); Gravel v. United States, 408 U.S. 606, 625 (1972); United States v. Johnson, 383 U.S. 169, 180 (1966). See also In re Request for Access to Grand Jury Materials, 833 F.2d 1438, 1446 (11th Cir. 1987). 60. U.S. Const. art. I, § 5, cl. 2. 61.  United States v. Ballin, 144 U.S. 1, 5 (1892). 62. Ibid., § 396, 280. 63.  Ibid., 290. 64.  Ibid., 287. 65.  84 Ct. Cl. 293 (1936), cert. denied, 300 U.S. 668 (1937). 66. See ibid., 300, explaining that “the Senate was the sole tribunal that could take jurisdiction of the articles of impeachment presented to that body against the plaintiff and its decision is final.” 67. See Nixon, 113 S. Ct., 739. 68. U.S. Const. art. I, § 5. 69. See Powell, 395 U.S., 508–­12. 70.  Ibid., 512. 71.  Ibid., 507n.27. 72.  Ibid., 553 (Justice Douglas concurring). 73. Gerhardt, “The Constitutional Limits,” 100. 74.  Powell, 395 U.S., 540. 75. See DeCarli, Note, “The Constitutionality of State-­Enacted Term Limits,” 865. 76.  5 U.S. (1 Cranch) 137 (1803). 77. See Coleman v. Miller, 307 U.S. 433 (1939). 78. See Pacific Telephone Co. v. Oregon, 223 U.S. 118 (1912); Luther v. Borden, 7 How. 1 (1849). 79. See, e.g., Japan Whaling Association v. Baldridge, 478 U.S. 238 (1986), declining to hold nonjusticiable a question of statutory interpretation in a statute passed to implement part of an agreement between Japan and the United States; Dames & Moore v. Regan, 453 U.S. 654 (1981), reaching merits of dispute over legality of President Carter’s executive agreement for the release of U.S. hostages in Iran; Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), invalidating

254  notes to pages 135–147 President Truman’s seizure of the nation’s steel mills despite his claim that national emergency justified the seizure; United States v. Curtiss-­Wright Export Corp., 299 U.S. 304 (1936), adjudicating the merits of congressional delegation of power to the president to prohibit sale of arms to countries engaged in armed conflicts. 80. Cf. Ely, Democracy and Distrust, 183: “Constitutional law appropriately exists for those situations where representative government cannot be trusted, not those where we know it can.” see also United States v. Lee, 106 U.S. 196, 217 (1882): “Hypothetical cases of great evils may be suggested by a particularly fruitful imagination in regard to almost every law upon which depend the rights of the individual and or of the government, and if the existence of laws is to depend upon their capacity to withstand such criticism, the whole fabric of the law must fail.” 81.  Ibid., 748 (Justice Souter concurring in the judgment). 82.  Ibid., 741 (Justice White concurring in the judgment). 83. Bushnell, Crimes, Follies, and Misdemeanors. 84. Ibid. 85.  Ibid., 739. 86.  Nixon, 938 F.2d, 246. 87.  I address the Senate’s attitude regarding this potential claim in chap. 4, “The Senate’s Role in the Federal Impeachment Process.” 88.  Nixon, 113 S.Ct., 739 (citation omitted). 89. See generally Nowak and Rotunda, Constitutional Law, § 13.2: 488–­91. 90. See ibid., § 13.4:510, suggesting that “if in dismissing the employee, the government also forecloses the individual’s possible employment in a wide range of activities in both the public and private sectors, this dismissal will constitute a deprivation of liberty sufficient to require that the individual be granted a fair hearing” (citations omitted). 91.  Hastings v. United States, 802 F. Supp. 490 (D.D.C. 1992), re’vd and remanded Order No. 92–­5327 (D.C. Cir. March 2, 1993). 92.  Hastings v. United States, 837 F.Supp. 3 (D.D.C. 1993). 93. Nowak and Rotunda, Constitutional Law, § 13.5:513–­16. 94.  Nixon, 113 S.Ct., 736. 95. See chap. 4. 96.  Abbott Laboratories v. Gardner, 387 U.S. 136, 140 (1967). The Court further stated that “only upon a showing of ‘clear and convincing evidence’ of a contrary legislative intent should the courts restrict access to judicial review.” Ibid. 97. See generally Eskridge and Frickey, “Quasi-­Constitutional Law,” 593, 597. 98. Cf. Webster v. Doe, 108 S.Ct. 2047, 2053 (1988), holding that the decision of the Central Intelligence Agency to discharge an employee was so committed to agency discretion, unrestricted by any existing legislative or other judicially cognizable legal standard, as to preclude judicial review, except for serious constitutional questions. 99. U.S. Const. art. I, § 3, cl. 6. 100.  Nixon, 113 S.Ct., 739. 101. See above notes 48–­52 and accompanying text. 102. See U.S. Const. art. III, § 2, cl. 2. 103.  Ibid., art. III, § 2, cl. 1. 104. Bator et al., The Federal Courts and the Federal System, 960–­62. 105. See U.S. Const. art. III, § 2, cl. 3.

notes to pages 147–153  255 106. See Black, Impeachment: A Handbook, 56. 107. U.S. Const. art. III, § 2, cl. 2.

part four impeachment reforms 1. See chap. 8. 2. See Judicial Discipline and Tenure Proposals, 96th Cong., 1st sess., 3 (American Enterprise Institute, 1979). See also National Commission on Judicial Discipline and Removal, Hearings, 31. 3.  The standard form of the proposed amendments from this period provided for judicial removal by the president on the joint address of both Houses of Congress. See Judicial Discipline and Tenure Proposals, 3. Four of the proposed amendments simply provided for this basic mechanism, whereas three of them sought to amend the Constitution to provide for judicial removal by the president upon joint addresses by both Houses of Congress but specified the vote required in each House to do so. The other two proposed amendments combined judicial removal by address with a change in the term of office for Article III judges from life tenure to a term of years. 4.  Judicial Discipline and Tenure Proposals, 3. 5. See ibid., 2–­5. 6. See Hearings, 32.

chapter twelve proposed procedural reforms for judicial impeachments 1. U.S. Const. art. I, § 2, cl. 6. 2.  U.S. Code, vol. 18, §§ 2517, 2518 (1988). 3. At present, section 372(c), created by the act, is unclear about the circumstances under which a circuit council should, despite the confidentiality restrictions of section 372(c)(14), release such materials to the Congress. 4. See, e.g., Hearings, 42–­43, suggesting that changes could be made in the Federal Rules of Criminal Procedure, “providing under appropriate conditions for congressional access to both grand jury and electronic surveillance materials directly relevant to any House investigation involving a possible impeachment action,” or Congress could enact a statute to permit the release of executive branch and grand jury materials to the appropriate House committee whenever requested by its chair and authorized by the attorney general or to permit the release of circuit court materials to the relevant House committee when requested by its chair and authorized by the circuit council or the Judicial Conference of the United States. 5. See chap. 8. 6. See Morrison v. Olson, 487 U.S. 654, 663–­64 (1988); see also Gerhardt, “Constitutional Limits,” 55–­56, 64. 7. See chap. 4. See also Hearings, 165–­67, testimony of Senator Carl Levin on May 15, 1992, proposing that issue preclusion should apply only in cases in which judges have been convicted and exhausted their appeals, at which point they should be removed solely on the basis of their convictions.

256  notes to pages 154–159 8. Burbank, “Alternative Career Resolution,” 643, 691. 9. See chap. 4. 10. Burbank, “Alternative Career Resolution,” 691. 11.  Claiborne Senate Hearings, 52. 12. Burbank, “Alternative Career Resolution,” 691. 13. See Statement of Senator Charles McC. Mathias, Jr. (Chairman of the Senate Rule XI Trial Committee), reprinted in Claiborne Impeachment, 342–­43; see also Hamilton, Federalist No. 65, 399. 14.  Claiborne Senate Hearings, pt. 1: 45. See also ibid., pt. 1:303–­4, statement of Senator Hatch, arguing that “the separation of criminal and impeachment proceedings [precludes] this body from merely deferring to the existence of a criminal conviction. We have the duty to reach our own independent conclusion about the facts which give rise to these charges”; ibid., 312, statement of Senator Dixon, arguing that “the Senate has a responsibility to look behind the jury verdict and to make its own determination as to whether Judge Claiborne [willfully] and knowingly made a false statement on his tax returns”; ibid., 313, statement of Senator Specter, explaining that “the Senate has a duty to make an independent determination of the underlying facts. . . . The Senate should not merely accept the judgement of the U.S. District Court [convicting] Judge Claiborne. . . . I do not believe that Article III establishes in and of itself a basis of impeachment.” 15. In fact, the Senate in the aftermath of the Claiborne impeachment trial revised rule XI to eliminate a set number of members for trial committees. See Amending the Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials, 99th Cong., 2d sess., 1986, S. Rep. 401, 5. 16. Burbank, “Alternative Career Resolution,” 689. 17. See ibid., 690. 18.  Ibid., 692. 19. Bushnell, Crimes, Follies, and Misfortunes, 284–­85. 20. U.S. Const. art. I, § 3, cl. 6. 21.  Nixon v. United States, 113 S. Ct. 732, 737 (1993). 22. See ibid., 737, quoting the petitioner’s argument that the clause “means that ‘the Senate—­not the courts, not a lay jury, not a Senate Committee—­shall try impeachments.’ Brief for Petitioner 42.” 23.  Ibid., 737. 24. See ibid., 746–­47 (Justice White concurring, joined by Justice Blackmun); and ibid., 748 (Justice Souter concurring). 25. See Nixon v. United States, 938, F.2d 239, 261–­65 (D.C. Cir. 1991) (Justice Edwards dissenting in part and concurring in the judgment). 26.  Williams, “Historical and Constitutional Bases,” 512, 564 (citations omitted). See also ibid., 564n.265, citing Act of February 19, 1851, ch. 11, 9 Stat. 568 (codified as amended at U.S. Code, vol. 2, §§ 381–­96 [1970]). 27.  Hearings, 55. 28. See ibid., 62. 29. See ibid. 30. See, e.g., Cong. Rec. 135, daily ed. (Oct. 20, 1989): S13803 statement of Senator Specter, complaining at the end of the Hastings impeachment trial that the Claiborne, Hastings, and Nixon proceedings revealed disturbing prospects of

notes to pages 159–169  257 prosecutorial misconduct. See also ibid.: “17 Senators had occasion to file floor statements discussing their reactions to the events in Claiborne. Of those 17, 8 (or nearly half)—­Senators Bingaman, Hatch, Pryor, Heflin, McConnell, Bumpers, Levin, and Gore—­had occasion to observe that the prosecutorial . . . misconduct that they observed in the Claiborne case ought to be the subject of further inquiry.” 31.  State Bar of Nevada v. Harry Eugene Claiborne, 104 Nev. 115, 756 P. 2d 464 (1988). 32.  Ibid., 113. 33. U.S. Const. art. II, § 2, cl. 2.

chapter thirteen proposed statutory changes and constitutional amendments to the impeachment process 1. Act of April 30, 1790, ch. 9, § 21, 1 Stat. 112 (1845). 2. Statement by Senator Strom Thurmond, June 19, 1992, National Commission on Judicial Discipline and Removal, Hearings, 331. 3. Hamilton, Federalist No. 65, 399. 4. Burbank, “Alternative Career Resolution,” 643, 670–­71. 5. See Hearings on H.R. 146 before a Subcommittee of the Senate Judiciary Committee, 77th Cong., 1st sess., 1941. 6.  Ibid., 6. 7. Ibid. 8.  Ibid., 3. 9.  Ibid., 9. 10.  Ibid., 13–­14. 11. See ibid., 44 (statement of Congressman Sam Hobbs). 12.  113 S.Ct. 732 (1993). 13.  Ibid., 736. 14. Hamilton, Federalist No. 65, 399. 15.  Three of the five kinds of proposed amendments were discussed at length by their sponsors and others in a hearing before the Subcommittee on the Constitution of the Committee on the Judiciary, S. Hrg. 101–­1275, 101st. Cong., 2d sess., March 21, 1990 (hereafter Amendments Hearing). 16.  This is also the subject of many proposed statutes. It is beyond dispute that Article III grants life tenure to federal judges, so that any attempt to change that status is plainly unconstitutional. See chap. 8. 17. Bickel, The Least Dangerous Branch, 16. 18. See, e.g., ibid., 23. 19.  Ibid., 2–­3. 20. See Amendments Hearing, 45, 50 (statement of Judge Warren Stapleton). 21. See Hearings, 24 citing S.J. Res. 232, 101st Cong., 1st sess., Cong. Rec. 135 (1989): S16816–­8 (Joint Resolution proposed by Senator Howell Heflin). 22. See ibid. 23.  Amendment Hearings, 4–­7. 24.  Ibid., 26.

258  notes to pages 169–177 25.  Ibid., 26. 26.  Ibid., 45. 27.  Ibid., 50. 28.  Ibid., 50. 29.  Ibid., 19 (statement of Senator Heflin). 30.  Ibid., 24. 31. See Hearings, 24, referring to S.J. Res. 233, 101st Cong., 1st sess., Cong. Rec. 135 (1989): S16816–­8 (Joint Resolution Proposed by Senator Howell Heflin). 32.  Amendments Hearing, 10–­11. 33.  Ibid., 52. 34. U.S. Const. art. I, § 5. 35. See Hearings, 25. 36. See Hearings, 323 (Testimony of Warren B. Rudman submitted on July 22, 1992). 37.  Ibid., 325. 38. Ibid. 39. Ibid. 40. Senator DeConcini proposed a constitutional amendment that combines features from the Thurmond, Rudman, and Heflin amendments. See ibid., 320 (statement of Senator Dennis DeConcini submitted on May 15, 1992). The DeConcini amendment has two parts. The first provided that an Article III judge who was convicted of a felony and has exhausted all the appeals would forfeit the office and all benefits thereof. [Part] two of the amendment was designed to put some teeth into the 1980 Act. It would give Congress the power to legislatively set some standards and guidelines by which the Supreme Court could discipline judges who have brought disrepute on the federal courts or the administration of justice[.] The constitutional amendment also makes clear that disciplining judges includes removal from office and reduction of compensation. (Ibid.) Because the first part of the amendment is the same as Senator Thurmond’s proposal, the former should be analyzed in the same way as the latter. Because the second part of the proposed amendment combines elements from the Heflin and Rudman proposals, the analyses of the relative merits of the latter two apply to the former.

chapter fourteen lessons from president clinton’s impeachment and acquittal 1. See Published Closed-­Door Statements of Senators Akaka, Biden, Boxer, Breaux, Bryan, Cleland, Collins, Dorgan, Durbin, Graham, Harkin, Hollings, Jeffords, Johnson, Kennedy, Kerry, Kohl, Leahy, Levin, Lieberman, Lincoln, Mikulski, Moynihan, Reid, Sarbanes, Snowe, Wellstone, and Wyden (all released into the Congressional Record on February 12, 1999). 2. See Published Closed-­Door Statements of Senators Akaka, Biden, Boxer, Bryan, Dodd, Dorgan, Durbin, Harkin, Hollings, Kennedy, Lautenberg, Leahy, Moynihan, Sarbanes, Wellstone, and Wyden (released into the Congressional Record on

notes to pages 177–178  259 February 12, 1999). Interestingly, one of the reasons often cited as a basis for President Johnson’s acquittal is overreaching or overzealousness on the part of some of the house managers who prosecuted him (such as by waving a bloody shirt on the Senate floor and urging senators “to vote as you shot”). See Rehnquist, Grand Inquests, 247. 3. See Published Statements of Senators Akaka, Biden, Dodd, Durbin, Edwards, Feingold, Kennedy, Kerrey, Lautenberg, Levin, Mikulski, Murray, Rocke­ feller, Sarbanes, Specter, and Wyden (released into the Congressional Record on February 12, 1999). Senator Robb explained that he voted not guilty on the first article because he believed that the house managers had not proven beyond a reasonable doubt that the president had committed perjury in his grand jury testimony, but he voted not guilty on the second article because it was drafted improperly. He regarded the second article as drafted to allow at least two-­thirds of the Senate to support it though most would have disagreed over the specific misconduct for which they were voting to remove the president. See Published Statement of Senator Charles Robb (released into the Congressional Record on February 12, 1999). 4. See Published Closed-­Door Statements of Senators Gorton and Stevens (released into the Congressional Record on Feb. 12, 1999). 5. See Fred Thompson, “Senate Trial of Clinton Is Over, and It’s Time to Move On,” Knoxville News-­Sentinel, February 15, 1999. 6. Of the 228 Republican members of the House, 223 voted for the first article while only 5 voted against it. See 144 Cong. Rec. H12040 (Dec. 19, 1999). Only 5 of the House’s 206 Democrats voted for the first article. 216 Republican House members voted for the second article. See 144 Cong. Rec. H12042 (Dec. 19, 1999). Only 5 Democrats voted for the second article, while 199 Democrats, joined by 12 Republicans, voted against the second article. The single independent House member voted against both articles. 7. Of the Senate’s fifty-­five Republican members who participated in the impeachment trial, only nineteen were up for reelection in the year 2000. Thirteen of these nineteen came from states that President Clinton had carried in the 1996 presidential election. Nine of the thirteen voted to convict the president on both impeachment articles. Of the thirteen, three voted to acquit the president on both impeachment articles, while only one—­Slade Gorton from Washington—­split his vote on the articles, finding the president not guilty on the first but guilty on the second impeachment article. 8. Eighty-­eight of the 223 Republicans who voted for the first impeachment article represented districts that President Clinton carried in the 1996 presidential election. Nevertheless, the 223 Republicans who voted to impeach President Clinton on the first article represented districts that, on average, gave President Clinton only 43 percent of their vote in 1996 (six percentage points less than he received nationwide). Moreover, President Clinton’s share of the 1996 vote averaged only 40 percent in districts of Republican members of the House Judiciary Committee. Only two of the thirteen house managers won re-­election in 1998 by close margins. In contrast, four of the five Republicans who voted against both impeachment articles represented districts that Clinton had won in 1996. 9. Only fourteen of the 201 Democrats who voted against the first impeachment article represented districts that Republican presidential nominee Bob Dole carried in 1996. These 201 Democrats represented districts in which President

260  notes to pages 178–183 Clinton received an average of 59 percent of the vote in the 1996 presidential election. Four of the five Democrats who voted for impeachment came from districts that Republican presidential nominee Dole carried in 1996. The fifth, Paul McHale, was the only one of the five who did not stand for reelection in November 1998. 10. Fourteen of the Senate’s forty-­five Democrats who voted to acquit the president on both impeachment articles were up for reelection in the year 2000. Eleven of the fourteen came from states that the president had carried in the 1996 presidential election. 11. Several factors explain this trend, such as the expansions of the federal judiciary, federal criminal law, and the numbers and resources of federal prosecutors. 12. Besides President Clinton, the following officials were impeachment targets: President Richard Nixon; Harry Claiborne; Alcee Hastings; Walter Nixon; and Robert Collins (who resigned from a federal district judgeship in 1993 after having been convicted and imprisoned for bribery and threatened with impeachment). See United States v. Collins, 972 F.2d 1385 (5th Cir. 1992). A seventh official, Robert Aguilar, had had his conviction for illegally disclosing a wiretap and attempting to obstruct a grand jury investigation overturned by the U.S. Court of Appeals for the Ninth Circuit en banc, but resigned from his federal district judgeship as part of a deal to avoid being re-­prosecuted. In the early 1970s, then-­representative Gerald Ford introduced an impeachment resolution in the House against Justice William O. Douglas, but the House decided not to initiate formal impeachment proceedings against the justice. Moreover, nine of the sixteen impeachments in American history have been triggered by external referrals—­including Pickering, Peck, Swayne, Archbald, Louderback, Claiborne, Hastings, W. Nixon, and Clinton. 13.  28 U.S.C. § 595(c) (1994). 14.  The Tenure in Office Act, which passed over Johnson’s veto, provided in essence that all federal officials whose appointment required Senate confirmation could not be removed by the president without its approval. The Supreme Court declared the act unconstitutional in Myers v. United States, 272 U.S. 52 (1926). 15. See generally Jeffrey K. Tulis, The Rhetorical Presidency (1987); Samuel Kernell, Going Public: New Strategies of Presidential Leadership (1986). 16. See, e.g., Mark Z. Barabak, “The Times Poll,” Los Angeles Times, January 31, 1999, A1. 17. See Josh Getlin, “The Truce Behind the Culture Wars: Shrill Clinton Debate Drowns Out Broad American Consensus on Most Issues,” Los Angeles Times, February 7, 1999, Al. 18. See Barabak, “The Times Poll.” 19. Ibid. 20. See U.S. News and World Report (Feb. 22, 1999), 26 (reporting that 53 per­ cent of those polled did not believe Clinton’s behavior was serious enough to warrant his removal from office). 21. See generally Bill Kovach and Tom Rosenstiel, Warp Speed: America in the Age of Mixed Media. 22. See Federalist No. 65 (A. Hamilton), The Federalist Papers, at 381–­82 (I. Kramnick ed. 1987).

notes to pages 183–185  261 23.  113 S.Ct. 732 (1992). 24.  In his testimony before the House Judiciary Committee, Yale Law Professor Bruce Ackerman made the provocative argument that by impeaching the president in a lame duck session the House had violated the Twentieth Amendment. See Impeachment Inquiry: William Jefferson Clinton, President of the United States: Presentation on Behalf of the President: Hearing before the House Comm. on the Judiciary, 105th Cong. 37 (1998) (testimony of Bruce A. Ackerman). The argument received much attention from the media but won no supporters in Congress. First, the text of the amendment does not clearly forbid such actions. Second, Professor Ackerman’s argument is undercut by the fact that several earlier impeachments (including Alcee Hastings’s in 1988–­89) had been carried over from one congress to the next. These two factors led Professor Ackerman to shift his argument to maintaining (1) that lame duck impeachments are generally a bad idea and (2) a lame duck impeachment might be legitimate only if, like a piece of legislation passed in an earlier Congress, the House were to reaffirm it in a subsequent congress prior to the Senate’s acting upon it. The second argument is, however, undercut by the fact that several impeachment trials involved “carryover” impeachments. Moreover, impeachment is arguably a more complete act than legislation passed only by a single house. Lastly, Thomas Jefferson, in his influential manual on parliamentary practice drafted while he was vice-­president, maintained that the American system followed the British practice in which impeachments carried over from one Parliament to the next. See Thomas Jefferson, Jefferson’s Manual of Parliamentary Practice, Section 620, reprinted in H.R. Doc. 104–­272, at 13 (1997). Nevertheless, Ackerman’s argument reminded everyone that by impeaching the president in a lame duck session the House had put at risk some of the political (as opposed to constitutional) legitimacy of its impeachment judgment. 25. U.S. Const. art. III, section 1. 26. See U.S. Const. art. II, section 4 (“The President, the 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.”). 27. See Published Impeachment Statement of Senator Paul Sarbanes, at 4 (released into the Congressional Record on February 12, 1999). “Judges must be held to a higher standard of conduct than other officials. As noted by the House Judiciary Committee in 1970, Congress has recognized that Federal judges must be held to a different standard of conduct than other civil officers because of the nature of their position and the tenure of their office” (quoting House Judiciary Committee majority report recommending articles of impeachment against Walter Nixon in 1989). 28. See 13 Annals of Cong. 319–­22 (1804) [1803–­04]. 29. See House Committee on the Judiciary, Impeachment of Judge Harry E. Claiborne, H.R. Rep. No. 96–­688, at 23 (1986); 132 Cong. Rec. 30, 251–­58 (1986). 30. Cf. Impeachment Staff Inquiry, House Committee on the Judiciary, Memorandum: Constitutional Grounds for Presidential Impeachment 4 (Feb. 20, 1974); 2 Joseph Story, Commentaries on the Constitution of the United States Section 780, at 252 (rev. ed. 1991). See also Albert Broderick, Citizens’ Guide to Impeachment of a President: Problem Areas, 23 Cath. U. L. Rev. 205, 229–­34 (1973); Alex Simpson, Jr., A Treatise on Federal Impeachments 651, 76–­77, 803 (1916).

262  notes to pages 185–190 31.  For senators who seemed to support different standards for impeaching presidents and judges, see Published Statements of Senators Biden, Breaux, Kerry, Kohl, Robb, and Sarbanes (released into the Congressional Record on Feb. 12, 1999). For senators who published statements opposing the latter view, see Published Statements of Senators Allard, Bond, Brownback, Fitzgerald, Frist, Gorton, Grams, Kerrey, Kyl, Mack, and McConnel (released into the Congressional Record on Feb. 12, 1999). 32. U.S. Const. art. II, section 4. 33. See, e.g., Published Statements of Senators Cleland, Dorgan, Jeffords, Johnson, Kerrey, Kohl, Lautenberg, Lieberman, Lincoln, Mikulski, Reid (released into the Congressional Record on Feb. 12, 1999). 34. See Craig Crawford, “Hotline Extra,” National Journal (Feb. 20, 1999), 31:8, 502 (indicating that 71 percent of those surveyed in an ABC poll believed that the Senate voted on the basis of partisan politics rather than the facts). 35. See Federalist No. 65 (A. Hamilton), The Federalist Papers, at 380–­81 (I. Kramnick ed. 1987). 36. See David S. Broder and Dan Baltz, “Squabbling Sinks Views of Congress,” Arizona Republic, Feb. 13, 1999, special section. 37. See Selective Service System v. Minnesota Public Interest Research Group, 468 U.S. 841, 844, 848 (1984); Nixon v. Administrator of General Services, 433 U.S. 425, 470–­72 (1977); United States v. Lovett, 326 U.S. 303 (1946); Ex Parte Garland, 71 U.S. (4 Wall.) 333 (1866); Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 323 (1867); Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 138 (1810). 38. See Erwin Chemerinsky, Constitutional Law: Principles and Policies, Section 6.2.2 (Rev. Ed. 1999); Thomas B. Griffith, Note, Beyond Process: A Substantive Rationale for the Bill of Attainder Clause, 70 Va. L. Rev. 475, 476 (1984). 39. See, e.g., ABC, Good Morning America, (7:00 am ET), Dec. 22,1998, transcript # 98122201-­joi. 40. U.S. Const. art. I, section 7. 41. Prior to the House’s vote to impeach President Clinton, Representative William Delahunt (D.-­Mass.) sought counsel regarding the constitutionality of censure from the nineteen constitutional scholars and historians who testified about the background and history of impeachment in the special hearing held by the House Subcommittee on the Constitution on November 9, 1999. See Letter from Representative William D. Delahunt to Representative Henry J. Hyde, Chair, House Judiciary Committee (Dec. 4, 1998) (on file with the author). 14 of the 19 constitutional scholars supported censure as constitutional. See Letter from Representative William D. Delahunt & Frederick C. Boucher to Members of the U.S. House of Representatives (Dec. 15, 1998). 42. See Joseph Isenberg, Impeachment and President Immunity from Judicial Process, University of Chicago School of Law Occasional Paper No. 39 (Dec. 31, 1998). See also Joseph Isenberg, Note, The Scope of the Power to Impeach, 84 Yale L.J. 1316 (1975). 43. U.S. Const. art. II, section 4. 44.  In the trials for each of the following impeached officials, the Senate did not take separate removal votes after having failed to have two-­thirds or more of its members vote in favor of guilt: William Blount (1798–­99); Samuel Chase

notes to pages 190–192  263 (1804–­05); James Peck (1830–­31); Andrew Johnson (1868); William Belknap (1876); Charles Swayne (1905); and Harold Louderback (1933). In short, in every trial in which at least two-­thirds of the Senate failed to find the impeached official guilty of misconduct charged in any impeachment article, the Senate acquitted and did not proceed with a separate removal vote. 45. See Referral from Independent Counsel Kenneth W. Starr in Conformity with the Requirements of Title 28, United States Code, Section 595(c), H.R. Doc. No. 105–­310 (1998). 46. See Independent Counsel Kenneth Starr’s Prepared Testimony for Delivery Before the House Judiciary Committee, 1998 West Law 801023 (F.D.H.C. Nov. 19, 1998). 47. See Letter from Independent Counsel Kenneth W. Starr to Henry J. Hyde, Chair of the House Judiciary Committee, and John Conyers, Jr., Ranking Minority Member of the Committee on the Judiciary, December 11, 1998 (copy on file with the author). 48. See Letter of Resignation from Samuel Dash and Kenneth W. Starr’s Letter in Response, New York Times, November 21, 1998, A10. See also Samuel Dash, Letters to the Editor: Sam Dash Replies, Washington Post, November 24, 1998, A18. 49. Six presidents appointed ten special prosecutors from 1875 until Archibald Cox’s appointment in 1973. Of these ten, two were fired—­one by President Grant in 1875 (lending further credence to the widespread perception of corruption in the Grant administration) and the second by President Truman in 1952 (because the president believed that the special prosecutor had become a nuisance to his Justice Department). 50.  The view of President Johnson’s impeachment as a thoroughly partisan effort by some members of Congress to increase congressional power at the expense of the presidency is not one on which all historians would agree. For instance, Michael Les Benedict, in his well-­regarded study of the Johnson impeachment, suggested that the effort to impeach and remove Johnson from office was not necessarily illegitimate because of Johnson’s repeated violations of statutes that had been passed by the Congress over his veto and Johnson’s efforts to weaken the enforcement of the Fourteenth Amendment. See Michael Les Benedict, The Impeachment and Trial of Andrew Johnson (1973). 51. To the extent that President Clinton’s acquittal turns on the belief of a critical mass of senators that his misconduct fell short of an impeachable offense, his acquittal dovetails with the basic principle that a president is impeachable for his abuses of uniquely presidential powers (that could not be easily redressed in other proceedings.) This principle can be derived from (1) repeated statements of the framers and ratifiers that impeachment was designed to deal with abuses of public privileges or breaches of the public trust and (2) the examples given by such leading framers as James Madison, James Iredell, and James Wilson, of the kinds of offenses for which the president could be impeached—­every example involved an abuse of official power. 52. See Neil A. Lewis, “New Penalty for Clinton in Jones Case,” New York Times, July 30, 1999, A15. See also Jones v. Clinton, 1999 U.S. Dist. Lexis 4515 (W.D.Ark. April 12, 1999). In her contempt citation of President Clinton, Judge

264  notes to pages 193–196 Susan Webber Wright concluded that “the President’s deposition testimony regarding whether he had ever been alone with Ms. Lewinsky was intentionally false, and his statements regarding whether he had ever engaged in sexual relations with Ms. Lewinsky likewise were intentionally false . . .” Ibid, 4539. Consequently, Judge Wright fined the president for the reasonable expenses incurred by the plaintiffs’ attorneys as a result of his testimony and by the judge in attending to the deposition. She also referred the matter “to the Arkansas Supreme Court’s Committee on Professional Conduct for review and any disciplinary action it deems appropriate . . .” Ibid, 4544.

chapter fifteen impeachment and president trump 1. See Chris Cillizza, “Donald Trump Gambled You Wouldn’t Care about His Tax Returns. He Was Right,” CNN Politics, October 24, 2017, https://www.cnn .com/2017/10/23/politics/trump-­taxes/index.html. 2. See “Donald Trump: A List of Potential Conflicts of Interest,” BBC News, April 18, 2017, http://www.bbc.com/news/world-­us-­canada-­38069298. 3. See generally, Laton McCartney, The Teapot Dome Scandal (New York: Random House, 2009). 4. See 18 U.S.C. §§ 1503, 1505, 1512. 5. See Charlie Savage, “Trump, Comey and Obstruction of Justice: A Primer,” New York Times, June 8, 2017, https://www.nytimes.com/2017/06/08/us/politics​ /obstruction-­of-­justice-­trump-­comey.html. 6. See Aaron Blake, “The Gall of Trump’s Potential Obstruction of Justice,” Washington Post, March 8, 2018. 7. See Sean Illing, “10 Legal Experts on Why Trump Can’t Pardon His Way Out of the Russia Investigation,” Vox, December 1, 2017, https://www.vox.com/2017 /8/29/16211784/flynn-­charged-­fbi-­trump-­pardon-­mueller-­russia. 8. See Matt Viser, “Trump Has Been Sued 134 Times in Federal Court Since Inauguration,” Boston Globe, May 5, 2017, https://www.bostonglobe​.com/news/poli tics/2017/05/05/trump-­has-­been-­sued-­times-­federal-­court-­since​ -­inauguration-­day /E4AqZBYaKYHtzwfQ3k9hdM/story.html. 9. See Anna North, “How One Woman’s Defamation Suit Could Shine a Light on Trump’s Sexual Assault Allegations,” Vox, October 17, 2017, https:// www.vox.com/identities/2017/10/17/16483946/summer-­zervos-­donald-­trump -­defamation-­lawsuit-­subpoena; Doug Stanglin, “Trump Settles Fraud Case against Trump University for $25M,” USA Today, November 18, 2016, https://www .usatoday.com/story/news/2016/11/18/reports-­trump-­nears-­settlement-­trump -­u-­fraud-­case/94068946/. 10. See Josh Blackman and Seth Barrett Tillman, “The Emoluments Clauses Litigation, Part 4—­An Emolument is the ‘Profit Derived from a Discharge of the Duties of the Office,’ ” Opinion, Washington Post, September 29, 2017, https://www .washingtonpost.com/news/volokh-­conspiracy/wp/2017/09/29/the-­emoluments -­clauses-­litigation-­part-­4-­an-­emolument-­is-­the-­profit-­derived-­from-­a-­discharge-­of -­the-­duties-­of-­the-­office/?utm_term=.a4959cda846c.

notes to pages 196–205  265 11. See Gary J. Edles, “Service on Federal Advisory Committees: A Case Study of OLC’s Little-­Known Emoluments Clause Jurisprudence,” Administrative Law Review 58, no. 1 (2006): 1–­36; Seth Barrett Tillman, “The Original Public Meaning of the Foreign Emoluments Clause: A Reply to Professor Zephyr Teachout,” Northwestern University Law Review Colloquy 107, no. 180 (2013): 180–­208. 12. U.S. Const. art. II, § 1, cl. 7. 13. Ibid. 14. David Barstow, Susanne Craig, and Russ Buettner, “Trump Engaged in Suspect Tax Schemes as He Reaped Riches from His Father,” New York Times, October 2, 2018. 15. Devlin Barrett, Sari Horwitz, and Matt Zapotosky, “Deputy Attorney General Appoints Special Counsel to Oversee Probe of Russian Interference in Election,” Washington Post, May 18, 2017. 16. Sharon LaFraniere and Kenneth P. Vogel, “Paul Manafort Agrees to Cooperate with Special Counsel; Pleads Guilty to Reduced Charges,” New York Times, September 14, 2018. 17. Donald Trump (@realDonaldTrump), “Everybody is asking why the Justice Department (and FBI) isn’t looking into all of the dishonesty going on with Crooked Hillary & the Dems..,” Twitter, November 3, 2017, 6:57 a.m., https://twitter.com /realDonaldTrump/status/926403023861141504. 18. See Margaret Hartmann, “19 Times President Trump May Have Obstructed Justice,” New York Magazine, December 5, 2017, http://nymag.com/daily/intelli gencer/article/times-­president-­trump-­obstructed-­justice.html. 19.  5 U.S. 137, 164 (1803). 20.  Ibid., at 167. 21. See Brown v. Board of Education, 347 U.S. 475 (1954); United States v. Virginia, 518 U.S. 515 (1996). 22. See Andrew Prokop, “3 Potential Problems for an Obstruction of Justice Case Against Trump,” Vox, January 25, 2018, https://www.vox.com/2018 /1/25/16868268/trump-­obstruction-­of-­justice-­mueller. 23. Charlie Savage, “Can the President Be Indicted? A Long-­Hidden Legal Memo Says Yes,” New York Times, July 22, 2017, https://www.nytimes.com/2017/07/22/us /politics/can-­president-­be-­indicted-­kenneth-­starr-­memo.html. 24.  In November 2018, President Trump forced the resignation of Jeff Sessions as attorney general. A month later, he nominated William Barr to be his next attorney general. Barr served as President George H. W. Bush’s attorney general from 1991 to 1993. In June 2018, Barr wrote an unsolicited memorandum to the Justice Department that challenged Mueller’s “proposing an unprecedented expansion of obstruction [of justice] laws” based on Trump’s firing of James Comey. If this memo does not impair Barr’s confirmation, Mueller would report to Barr once Barr is confirmed as attorney general. Barr would then take over the authority from Rosenstein (who is expected to resign after Barr’s confirmation and Mueller’s report) to oversee Mueller’s investigation, narrow or modify his inquiries, or remove him for misconduct. If confirmed, Barr could be vulnerable to being discharged for failing to follow any orders given by Trump to remove Mueller or to modify or close the Russia investigation. If the president were to remove Barr for failing to follow his orders pertaining to the Mueller investigation,

266  notes to pages 206–208 Congress would likely face intense pressure to investigate the propriety of dismissal on that ground. See Daniel Hemel and Eric Posner, “Bill Barr Just Argued Himself Out of a Job,” Opinion, New York Times, December 21, 2018. The timing of Mueller’s final report remains unclear, at least at the time of this writing. Trump has already been mentioned as a coconspirator in at least one criminal investigation. If Mueller’s report goes further to charge or indicate possible serious criminal misconduct by the president, it would undoubtedly intensify pressure on the House to initiate an impeachment inquiry, particularly since Democrats regained control of the House in the 2018 midterm elections. 25.  28 C.F.R. 600.7. 26. See Erin Kelly and Kevin Johnson, “Rod Rosenstein, Deputy Attorney General, Sees No Reason to Dismiss Robert Mueller,” USA Today, December 13, 2017, https://www.usatoday.com/story/news/politics/2017/12/13/deputy-­ag-­rod -­rosenstein-­face-­hostile-­house-­panel-­russia-­investigation/945071001/. 27. See ibid.; see also Priscilla Alvarez, “Rod Rosenstein: I Have Not Seen ‘Good Cause’ to Fire Robert Mueller,” Atlantic, June 13, 2017, https://www.the atlantic.com/politics/archive/2017/06/rod-­rosenstein-­i-­have-­not-­seen-­good-­cause -­to-­fire-­robert-­mueller/530142/. 28. See, e.g., Michael J. Gerhardt, “On Candor, Free Enterprise Fund, and the Theory of the Unitary Executive,” William & Mary Bill of Rights Journal 22 (2013): 337, 348. 29. See Michael S. Schmidt and Maggie Haberman, “Trump Ordered Mueller Fired, but Backed Off When White House Counsel Threatened to Quit,” New York Times, January 25, 2018, https://www.nytimes.com/2018/01/25/us/politics /trump-­mueller-­special-­counsel-­russia.html?rref=collection%2Fsectioncollection %2Fpolitics&action=click&contentCollection=politics®ion=stream&modul e=stream_unit&version=latest&contentPlacement=14&pgtype=sectionfront. 30. Ibid. 31. Ibid. 32. Ibid. 33. See Callum Borchers, “Special Prosecutors Are a Big Deal. Their Results Sometimes Aren’t,” Washington Post, May 17, 2017, https://www.washington post.com/news/the-­fix/wp/2017/05/10/want-­a -­s pecial-­p rosecutor-­t o-­r eplace -­james-­comey-­history-­might-­change-­your-­mind/?utm_term=.485282f02529. 34.  Title VII of the Civil Rights Act of 1964. 35. Ibid. 36. See “Facts About Sexual Harassment,” EEOC, last visited January 31, 2018, https://www.eeoc.gov/eeoc/publications/fs-­sex.cfm. 37. See 10 U.S.C. § 920. 38. H.R. Rep. No. 111-­159 (2009). 39. Ibid. 40. See “Transcript: Donald Trump’s Taped Comments about Women,” New York Times, October 8, 2016, https://www.nytimes.com/2016/10/08/us/donald -­trump-­tape-­transcript.html. 41. See Christine Hauser and Jonah Engel Bromwich, “From ‘Locker Room Talk’ to ‘Muslims Report Stuff,’ The Internet Strikes Back,” New York Times, October 10, 2016, https://www.nytimes.com/2016/10/11/us/politics/from-­locker -­room-­talk-­to-­muslims-­report-­stuff-­the-­internet-­strikes-­back.html.

notes to pages 209–213  267 42. See Matt Zapotosky, “Prominent Appeals Court Judge Alex Kozinski Accused of Sexual Misconduct,” Washington Post, December 8, 2017, https://www .washingtonpost.com/world/national-­security/prominent-­appeals-­court-­judge -­alex-­kozinski-­accused-­of-­sexual-­misconduct/2017/12/08/1763e2b8-­d913-­11e7 -­a841-­2066faf731ef_story.html?utm_term=.b647d06293f4. 43. See Scott Glover, “9th Circuit’s Chief Judge Posted Sexually Explicit Matter on His Website,” Los Angeles Times, June 11, 2008, http://www.latimes.com /local/la-­me-­kozinski12-­2008jun12-­story.html. 44. See Zapotosky, “Alex Kozinski Accused of Sexual Misconduct.” 45. See Jacey Fortin, “Federal Appeals Court Judge Is Accused of Sexual Harassment,” New York Times, December 10, 2017, https://www.nytimes.com /2017/12/10/us/judge-­alex-­kozinski-­harassment.html. 46. See “Alex Kozinski’s Full Statement Announcing His Immediate Retirement,” Washington Post, last visited January 30, 2018. 47. See Matt Zapotosky, “Nine More Women Say Judge Subjected Them to Inappropriate Behavior, Including Four Who Say He Touched or Kissed Them,” Washington Post, December 15, 2017, https://www.washingtonpost.com/world /national-­security/nine-­more-­women-­say-­judge-­subjected-­them-­to-­inappropriate -­behavior-­including-­four-­who-­say-­he-­touched-­or-­kissed-­them/2017/12/15/8729b 736-­e105-­11e7-­8679-­a9728984779c_story.html?utm_term=.3e53aaac7903. 48. See Maura Dolan, “9th Circuit Judge Alex Kozinski Steps Down after Accusations of Sexual Misconduct,” Los Angeles Times, December 18, 2017, http:// www.latimes.com/politics/la-­pol-­ca-­judge-­alex-­kozinski-­20171218-­story.html. 49. See Vivia Chen, “Can We Get Rid of Alex Kozinski?,” American Lawyer, December 12, 2017, https://www.law.com/americanlawyer/sites/americanlawyer /2017/12/12/can-­we-­get-­rid-­of-­alex-­kozinski/; Cassandra Burke Robertson, “It’s Time to Start Impeachment Proceedings of Judge Kozinski,” PrawfsBlawg, December 14, 2017, http://prawfsblawg.blogs.com/prawfsblawg/2017/12/its-­time-­to-­start-­impeach ment-­proceedings-­of-­judge-­kozinski.html. 50. See Deschler, Deschler’s Precedents, chap. 14, § 18. 51. See, e.g., Lauren Fox, “Ryan on Trump’s Meetings with Comey: ‘He’s Just New to This,’ ” CNN Politics, June 9, 2017, https://www.cnn.com/2017/06/08 /politics/paul-­ryan-­donald-­trump-­new-­to-­this/index.html. 52.  Fox, “Ryan on Trump’s Meetings with Comey.” 53. See “Senate Prepares for Impeachment Trial,” U.S. Senate, last visited February 1, 2018, https://www.senate.gov/artandhistory/history/minute/Senate _Tries_Justice.htm. 54. See “Vice President of the United States (President of the Senate),” U.S. Senate, last visited February 1, 2018, https://www.senate.gov/artandhistory/history /common/briefing/Vice_President.htm. 55. U.S. Const. amend. XXV, § 3. 56. U.S. Const. amend. XXV, § 4. 57. See John D. Freerick, “Presidential Succession and Inability: Before and After the Twenty-­Fifth Amendment,” Fordham Law Review 79 (2011): 907, 930–­31. 58. See Jeffrey Rosen, “The 25th Amendment Makes Presidential Disability a Political Question,” Atlantic, May 23, 2017, https://www.theatlantic.com /politics/archive/2017/05/presidential-­disability-­is-­a-­political-­question/527703/. 59. Ibid.

268  notes to pages 213–221 60. See Freerick, “Presidential Succession and Inability,” 911–­12, 926. 61. See Freerick, “Presidential Succession and Inability,” 926–­28. 62. See Betsy Woodruff, “Justice Department ‘Looking Into’ Hillary Clinton’s Emails—­Again,” Daily Beast, January 4, 2018. 63. See Erin Kelly and Kevin Johnson, “Senators Investigate Whether Loretta Lynch Tried to Stifle Clinton Email Probe,” USA Today, June 23, 2017. 64. See Michael M. Grynbaum, “Trump Calls the News Media the ‘Enemy of the American People,’” New York Times, February 17, 2017, https://www.ny times.com/2017/02/17/business/trump-­calls-­the-­news-­media-­the-­enemy-­of-­the -­people.html. 65. See Alex Ward, “Trump’s Latest Tweetstorm Called Kim Jong Un ‘Short and Fat,’ ” Vox, November 12, 2017, https://www.vox.com/2017/11/12/16639462/trump -­kim-­north-­korea-­russia-­twitter. 66. See Jason Le Miere, “Trump Impeachment Articles Introduced by Six Democrats Calling for Hearings to Begin Immediately,” Newsweek, Novem­ ber  15, 2017, http://www.newsweek.com/trump-­impeachment-­articles-­democrats -­president-­711525. 67. See Claire Allbright, “U.S. Rep. Al Green Push for Trump’s Impeachment Dies in Lopsided 364–­58 Vote,” Texas Tribune, December 6, 2017, https://www .texastribune.org/2017/12/06/us-­rep-­al-­green-­begins-­bid-­force-­impeachment -­vote-­us-­house-­floor/. 68. Gerald Ford, remarks in the House, April 15, 1970, Congressional Record, vol. 116, p. 11913. 69.  Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). 70. See generally Posner, An Affair of State. 71. See Jennifer Steinhauer, “Bill Clinton Should Have Resigned over Lewinsky Affair, Kirsten Gillibrand Says,” New York Times, November 16, 2017. 72. Claire Foran and Kevin Liptak, “Trump says ‘everybody would be very poor’ if he’s impeached,” CNN Politics, August 23, 2018, https://www.cnn.com /2018/08/23/politics/trump-­impeachment-­democrats-­congress/index.html. 73. As of December 20, 2018, President Trump faced at least seventeen investigations brought by federal, state, and local prosecutors. Besides the Russia investigation conducted by Mueller’s office, federal prosecutors are investigating the spending of Trump’s inaugural committee, and then–attorney general of New York Barbara Underwood worked out an arrangement requiring the closure of the Donald J. Trump Foundation, which her office accused of committing “a shocking pattern of illegality” that “amounted to the Trump Foundation functioning as little more than a checkbook to serve Mr. Trump’s business and political interests.” Underwood’s office requested restitution from Trump and a ban on him and his three oldest children from serving on the boards of other nonprofit corporations. The Washington Post found that the foundation’s largest donation was made to fix the fountain in front of a major hotel owned by Trump, that the charity’s funds were used to buy a portrait of Trump, and that the charity had illegally provided political donations and paid to settle lawsuits brought against Trump. See New York State Office of the Attorney General, “A.G. Underwood Announces Stipulation Dissolving Trump Foundation under Judicial Supervision, with AG Review of Recipient Charities,” press release, December 18, 2018,

notes to page 221  269 https://ag.ny.gov/press-release/ag-underwood-announces-stipulation-dissolving -trump-foundation-under-judicial; David A. Fahrenthold, “Trump Agrees to Shut Down His Charity amid Allegations That He Used It for Personal and Political Benefit,” Washington Post, December 18, 2018. Apart from these various illegalities, further investigation of possible illicit activity done to procure the presidency might be undertaken by different authorities and in different venues. It is important to recall that the activity that may become the basis for an impeachment need not be technically a violation of criminal law. If President Trump did conspire with Michael Cohen to break federal campaign law during the 2016 presidential election, that conspiracy is pertinent to impeachment, regardless of whether it actually broke federal criminal law. As George Mason suggested, a president who “practised corruption, and by that means procured his appointment in the first instance” may be subject to impeachment (Elliot, Debates, 5:340). The Porteous impeachment provides further support for basing an impeachment on misconduct undertaken to procure the presidency.

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BIBLIOGRAPHY ADDENDUM

Primary Sources U.S. House. Impeachment of William Jefferson Clinton, President of the United States: report of the Committee on the Judiciary, House of Representatives, together with additional, minority, and dissenting views, to accompany H. res. 611. 105th Cong., 2d sess., Dec. 16, 1998. U.S. House, Committee on the Judiciary. Authorization of an inquiry into whether grounds exist for the impeachment of William Jefferson Clinton, President of the United States. 105th Cong., 2d sess., Oct. 5, 1998. U.S. House, Committee on the Judiciary, Subcommittee on the Constitution. Background and History of Impeachment. 105th Cong., 2d sess., Nov. 9, 1998. U.S. House, Committee on the Judiciary. The Consequences of Perjury and Related Crimes. 105th Cong., 2d sess., Dec. 1, 1998. U.S. House, Committee on the Judiciary. Impeachment Inquiry Pursuant to H. Res. 581: Appearance of Independent Counsel. 105th Cong., 2d sess., Nov. 19, 1998. U.S. House, Committee on the Judiciary. Impeachment Inquiry: William Jefferson Clinton, President of the United States: Impeachment Inquiry Pursuant to H. Res. 581: Presentations by Investigative Counsel. 105th Cong., 2d sess., Dec. 10, 1998. U.S. House, Committee on the Judiciary. Impeachment Inquiry: William Jefferson Clinton, President of the United States: Presentation on Behalf of the President. 105th Cong., 2d sess., Dec. 8 and 9, 1998. U.S. Senate. Trial of William Jefferson Clinton, President of the United States. 106th Cong., 1st sess. 1999.

Secondary Sources Books Ackerman, Bruce A. The Case Against Lameduck Impeachment. New York: Seven Stories Press, 1999. Adler, John. The Impeachment of Andrew Johnson. Greenwich. Harp Week, 1998. Berger, Raoul. Impeachment: The Constitutional Problems. 2d ed. Cambridge: Harvard University Press, 1999. Black, Charles L. Impeachment: A Handbook. New Haven: Yale University Press, 1998. Chafetz, Josh. Congress’s Constitution: Legislative Authority and the Separation of Powers. New Haven: Yale University Press, 2017. Clinton, Bill. The Impeachment and Trial of President Clinton: The Official Transcripts, From the House Judiciary Committee Hearings to the Senate Trial. Edited by Michael Beschloss. New York: Times Books, 1999.

284  bibliography addendum Currie, David. The Constitution in Congress: The Federalist Period, 1789–­1801. Chicago: University of Chicago Press, 1999. ———. The Constitution in Congress: The Jeffersonians, 1801–­1829. Chicago: University of Chicago Press, 2001. ———. The Constitution in Congress: Democrats and Whigs, 1829–­1861. Chicago: University of Chicago Press, 2013. ———. The Constitution in Congress: Descent into the Maelstrom, 1829–­1861. Chicago: University of Chicago Press, 2006. Fackre, Gabriel J., ed. Judgment Day at the White House: A Critical Declaration Exploring Moral Issues and the Political Abuse and Abuse of Religion. Michigan: W. B. Eerdmans, 1999. Fallon, Richard H., Daniel J. Meltzer, and David L. Shapiro. Hart & Wechsler’s The Federal Courts and the Federal System. 4th ed. Westbury, New York: Foundation Press, 1996. Kingsley, Thomas C. The Federal Impeachment Process: A Bibliographic Guide to English and American Precedence, Historical and Procedural Development, and Scholarly Commentary. Updated ed. by Joseph Luke. Ithaca, N.Y.: Cornell Law Library, Cornell University Libraries, 1998. Kovach, Bill, and Tom Rosenstiel. Warp Speed: America in the Age of the Mixed Media Culture. New York: Century Foundation Press, 1999. Kriner, Douglas L., and Eric Schickler. Investigating the President: Congressional Checks on Presidential Power. Princeton: Princeton University Press, 2016. Melton, Buckner F. The First Impeachment: The Constitution’s Framers and the Case of Senator William Blount. Macon, Ga. Mercer University Press, 1998. Niven, John, ed. The Salmon P. Chase Papers: Correspondence, 1865–­ 1873. Kent, Ohio: Kent State University Press, 1998. Posner, Richard A. An Affair of State: The Investigation, Impeachment, and Trial of President Clinton. Cambridge: Harvard University Press, 1999. Rozell, Mark J., and Clyde Wilcox, eds. The Clinton Scandal and the Future of American Government. Washington, D.C.: Georgetown University Press, 2000. Stathis, Stephen W. CRS report for Congress: Congressional Resolutions on Presidential Impeachment: A Historical Overview. Washington, D.C., Congressional Research Service, Library of Congress, 1998. Trefousse, Hans. Impeachment of a President: Andrew Johnson, the Blacks & Reconstruction. Reprint ed. New York: Fordham University Press, 1999. Tribe, Laurence. American Constitutional Law. 3d ed. Westbury, New York: Foundation Press, 1999. United States Government Printing Office. Impeachment: Selected Materials. 1998. Van Tassel, Emily Field. Impeachable Offenses: A Documentary History from 1787 to the Present. Washington, D.C. Congressional Quarterly, 1999. Vicente, Jason J. Impeachment: A Constitutional Primer. Washington, D.C., Cato Institute, 1998. Woodward, Bob. Shadow: Five Presidents and the Legacy of Watergate. New York: Simon & Schuster, 1999. Zeifman, J. M. Without Honor: The Impeachment of President Nixon & the Crimes of Camelot. New York: Thunders Mouth Press, 1999.

bibliography addendum  285

Articles Ackerman, Bruce. “Symposium: Revolution on a Human Scale.” Yale Law Journal 108 (1999): 2279. Amar, Akhil Reed. “Take Five: Why Offering to Step Down for the Duration of His Impeachment Trial Would be Bill Clinton’s Best Hope for Redemption.” The New Republic, Feb. 8, 1999: 13. ———. “Trial and Tribulation,” The New Republic, January 18, 1999: 18. Belsky, Martin H. “Investigating the President: The Supreme Court and the Impeachment Process.” Tulsa Law Journal 34 (1999): 289. Benedict, Michael L. “Salmon P. Chase and Constitutional Politics.” University of Chicago Law and Social Inquiry 22 (1997): 459. Bork, Robert. “Read the Constitution: It’s Removal or Nothing.” Wall Street Journal, Feb. 1, 1999, A21. Bright, Stephen B. “Political Attacks on the Judiciary: Can Justice Be Done Amid Efforts to Intimidate and Remove Judges from Office for Unpopular Decisions?” New York University Law Review 72 (1997): 308. Broyde, Michael J., and Robert A. Schapiro. “Impeachment and Accountability: The Case of the First Lady.” Constitutional Commentary 15 (1998): 479. Burbank, Stephen B. “The Architecture of Judicial Independence.” Southern California Law Review 72 (1999): 315. Carney, Dan. “Impeachment’s Long Shadow.” Congressional Quarterly Weekly Report, Jan. 2, 1999: 10. “Censure of the President: Legal Basis & Congressional Precedents.” Congressional Digest, Feb. 1999: 37. Cooper, Charles J. “A Perjurer in the White House?: The Constitutional Case for Perjury and Obstruction of Justice as High Crimes and Misdemeanors.” Harvard Journal of Law and Public Policy 22 (1999): 619. Currie, David P. “The Constitution in Congress: The Most Endangered Branch,” 1801–­1805.” Wake Forest Law Review 33 (1998): 219. Damrosch, Lori Fisler. “Symposium: Impeachment as a Technique of Parliamentary Control Over Foreign Affairs in a Presidential System?” University of Colorado Law Review 70 (1999): 1525. Devins, Neal. “Bearing False Witness: The Clinton Impeachment and the Future of Academic Freedom,” University of Pennsylvania Law Review 148 (2000) (with a response by Cass R. Sunstein). Ferejohn, John. “Independent Judges, Dependent Judiciary: Explaining Judicial Independence.” Southern California Law Review 72 (1999): 353. Gerhardt, Michael J. “The Constitutionality of Censure.” University of Richmond Law Review 33 (1999): 33. ———. “The Perils of Presidential Impeachment.” University of Chicago Law Review 67 (2000). Gettinger, Stephen. “The First Impeachment Offers Insight on Framers’ Intentions.” Congressional Quarterly Weekly Report, Jan. 9, 1999: 50. ———. “Impeachment’s Future: Just Another Political Weapon?” Congressional Quarterly Weekly Report, Feb. 13, 1999: 368. Gillers, Stephen. “Arguments.” American Lawyer, Mar. 1, 1999: 131.

286  bibliography addendum Godes, Wiles L., and Ty E. Howard. “Independent Counsel Investigation.” American Criminal Law Review 35 (1998): 875. Gormley, Ken. “Impeachment and the Independent Counsel: A Dysfunctional Union.” Stanford Law Review 51 (1999): 309. “The Impeachment of President Clinton.” George Washington Law Review 67 (1999) (reprinted in edited form the House testimony of Michael Gerhardt, Gary McDowell, John McGinnis, Stephen Presser, Jack Rakove, Cass Sunstein, Laurence Tribe, and Jonathan Turley). Kalt, Brian C. “Pardon Me?: The Constitutional Case Against Presidential Self-­ Pardons.” Yale Law Journal 106 (1996): 779. Klarman, Michael J. “Constitutional Fetishism and the Clinton Impeachment Debate.” Virginia Law Review 85 (1999): 631. Kmiec, Douglas W. “Convict, but Don’t Remove Clinton.” Wall Street Journal, Jan. 29, 1999, A21. McGinnis, John O. “Impeachable Defenses.” Policy Review, June & July 1999, 27–­34. Miller, Randall K. “Presidential Scandals after the Clinton Sex Scandals.” Harvard Journal of Law and Public Policy 22 (1999): 647. O’Sullivan, Julie R. “Interaction Between Impeachment and the Independent Counsel Statute.” Georgetown Law Journal 86 (1998): 2193. Paulsen, Michael S. “I’m Even Smarter Than Bruce Ackerman: Why the President Can Veto His Own Impeachment.” Constitutional Commentary 16 (1999): 1. Pollitt, Daniel H. “Sex in the Oval Office and Cover-­up Under Oath: Impeachable Offense?” North Carolina Law Review 77 (1998): 259. Rakove, Jack N. “Post-­Impeachment/A Quest for Meaning; The Epitaph; Questions for Future Historians,” Los Angeles Times, Feb. 14, 1999: M1. Redish, Martin H. “Judicial Discipline, Judicial Independence, and the Constitution: A Textual and Structural Analysis.” Southern California Law Review 72 (1999): 673. Rosen, Jeffrey. “A Constitutional Crisis,” The New Republic, Oct. 5, 1998: 23. Schlesinger, Arthur, Jr. “How History Will Judge Him.” Time Magazine, Feb. 22, 1999: 44. Sunstein, Cass R. “Impeaching the President” University of Pennsylvania Law Review 147 (1998): 279. “Symposium: A Retrospective on the Clinton Impeachment Proceedings,” Hofstra Law Review 27 (2000) (with articles by Akhil Amar, Monroe Freedman, Michael Gerhardt, Congressman Asa Hutchinson, John McGinnis, Judge Richard Posner, Charles Tiefer, Jonathan Turley, and Gerald Walpin). Taylor, Stuart, Jr. “Conviction Need Not Mean Removal.” New York Law Journal, Jan. 25, 1999, 15. Tiefer, Charles. “The Specially Investigated President.” University of Chicago Law School Round Table 5 (1998): 143.

Index

Abbott Laboratories v. Gardner, 254n96 Ackerman, Bruce, 261n24 Adams, John, 49 Adams, John Quincy, 53, 82, 116 Agnew, Spiro, 213 Aguilar, Robert, 231n35, 260n12 American Bar Association, 163 Anderson, Terrance, 47 Archbald, Robert Wodrow: additional sanction imposed against, 62; character of, 160; guilt and removal, relationship of decisions on, 190; impeachment of (1913), 32, 228n3; Senate trial of, 38, 55 Articles of Confederation, 9–­10 Bailey, Theodorus, 41–­42 Baker, Howard, xii Baker v. Carr (1962), 120–­21 Barr, Jeffrey, 247n99 Belknap, William W.: impeachment of (1876), 23, 53–­54, 228n3, 242n21; resignation of, 23, 53; Senate trial of, 53–­54, 81 Benedict, Michael Les, 263n50 Berger, Raoul, 77, 79, 105, 248n15 Bestor, Arthur, 106, 249n34 Biddle, Francis, 163 Black, Charles, 115–­18, 236n57 Black, Hugo, 100, 112 Blackman, Josh, 195–­96 Blackmun, Harry, 121, 136, 157 Blackstone, William, 106, 248n11, 248n20 Blount, William: impeachment of (1798–­99), 49–­50, 54, 55, 228n3, 242n21; Senate trial of, 50–­52, 57, 79, 81 Bork, Robert, 138 Bowsher v. Synar, 240n25, 244nn25–­26 Bribery Act of 1790: constitutionality of, 94–­ 97, 161; criminal prosecution under, 90; as an effort to modify the impeachment process, 149; enactment of, 20; enforcement of, 94, 97; as a judiciary-­dependent mechanism for disciplining judges, 88; reconciliation with Chandler, 101 Brown, Rebecca, 122, 128, 252n27

Brutus, 87 Bryce, James, 25 Buckley v. Valeo, 240–­41n25 Bunning, Jim, 183 Burbank, Stephen, 93, 153 burden of proof: on the advocates of impeachment, 183; justiciability of Senate’s failure to follow, 143–­45; required in impeachment proceeding, 114–­15; standard in Senate impeachment trials, 42–­44 Bush, Billy, 208 Bush, George H. W., 214 Bush, George W., 213 Bushnell, Eleanore, 238n49 Carter, Stephen L., 68, 225n70 censure, 187–­88 Chandler, Stephen, 100–­101 Chandler v. Judicial Council of the Tenth Circuit (1970), 100–­102 Chase, Samuel: impeachment of (1804–­5), 55–­56, 167, 183–­84, 228n3; Senate trial of, 57, 191 Civil Rights Act of 1964, 208 Claiborne, Harry: additional punishment, refusal to impose, 159; character of, 160; criminal prosecution of, 30; impeachment of (1986), 25, 27, 31–­32, 62, 109, 154, 179, 228n3; judicial challenge to impeachment of, 136; Senate trial of, 31, 36, 39, 43–­47, 50, 178, 184–­85; United States v. Claiborne (1985, 1986), 91–­92 Clinton, Bill: acquittal of not a personal vindication, 191; backlash against behavior of, 220; burden of proof on advocates of impeachment, 183; cen­ sure, blocking of, 187; character of, 160; different impeachment standards for presidents and judges, 184–­85; ex­ ternal referrals in the impeachment of, 178; finding of fact, Senate refusal to make, 188–­89; House impeachment investigation, 27; impeachment, conviction, and removal, argument for, 220;

288 index Clinton, Bill (cont.) impeachment and acquittal of, ix–­xii, 27, 32, 228n3; impeachment as abuse of congressional authority, question of, 59–­ 60; impeachment reaffirmed as special mechanism, xii; Independent Counsel Act, effect of impeachment and acquittal on, 190–­91; influence of federal prosecutor on impeachment of, 178–­79; length of impeachment proceedings against, 182; lessons from the impeachment and trial of, 181–­92; limitations of impeachment against a popular president, 182; the media and impeachment of, 179–­81; nonreviewability of impeachment proceedings reaffirmed, 183–­84; obstruction of justice, claim regarding, 204; partisanship in the impeachment and acquittal of, 56, 138, 177–­78, 181–­83; politicization of impeachment of, 186–­87; Senate impeachment trial of, 42; strengthening of presidency by impeachment and acquittal of, xi; voter ratification of his misbehavior, 209 Clinton, Hillary, 200–­201, 203, 215 Cohen, Michael, 193, 220–­21 Collins, Robert, 27, 32, 178, 231n36 collusion, xii–­xiii, 194, 201–­3 Comey, James, 194, 203 Condit, John, 41–­42 Congress, U.S.: impeachability of members debated in state ratifying conventions, 17–­18; judicial removal, proposal authorizing determination of procedures and practices for, 171–­72; removal power of, 97–­99. See also House of Representatives, U.S.; Senate, U.S. Congressional Research Service, 195–­96 Constitution, U.S.: authority to initiate impeachments in Article I, section 2, 25; emoluments clause, 195–­200; Fifth Amendment due process clause (see due process clause); good behavior clause, 85–­86, 108–­9; guarantee of undiminished compensation for federal judges, 162; history of related to impeachment, 67; impeachment clause and good behavior clause, relationship between, 85–­88; impeachment clauses, 105, 114–­ 15, 223–­24n13; impeachment sanctions,

80–­81; interpretation of related to impeachment, 67–­73; on judicial review of impeachment, 130–­31, 133–­34, 147–­48; judicial tenure, 85–­88, 102; limits on justiciability, 122–­23; limits to impeachment power, 17, 77–­79; necessary and proper clause, 246n71; popular sovereignty as the authority for, 12; pre-­impeachment criminal prosecutions, 89–­90; presidential compensation clause, 196–­97; proposed amendments, 166–­73; punishment of impeached officials, 62, 114; ratification of (see ratification of the Constitution); safeguards in impeachment process, 112; text of related to impeachment, 66–­67; timing of impeachment proceedings, 82; Twenty-­ Fifth Amendment, 211–­15 Constitutional Convention: American rather than English approach to impeachment, 10–­11; impeachability of the president, 7–­8; impeachment after leaving office, 82; impeachment trials, proper forum for, 5–­7; judicial removal, appropriate means for, 5–­7, 86–­87; precautions used to keep deliberations secret, 3–­4; proper grounds for impeachment/scope of impeachable offenses, 8–­9, 106; the Senate, special view of, 10; Supreme Court’s jurisdiction, impeachment and, 129–­30; voting for conviction and removal, 9–­10 Cox, Archibald, 191, 206–­7 Crapo, Mike, 183–­84 criminal prosecutions: of executive officials, 93–­94; of Federal judges, 89–­93; pre-­impeachment, 89–­93 Dames & Moore v. Regan, 253n79 Davidson, Michael, 236n66 Davie, William, 7 Davis, Lanny, 221 DeConcini, Dennis, 258n40 defense costs, 64–­65 Delahay, Mark W., 23, 229n7 Delahunt, William, 262n41 Dellinger, Walter, 95–­96, 205 Dickinson, John, 6, 9, 87 Dixon, Alan J., 256n14 doctrine against entrenchment, 218

index 289 Douglas, William O.: dissent in Chandler, 100; dissent in Powell, 132; Ford’s accusations against, 247n1; House impeachment investigation (1970), 27, 29, 52, 105, 109; impeachment threat against, 137–­38 due process clause: application in Senate trial procedural rules, 39–­42; framers’ and ratifiers’ lack of discussion, 20; justiciability of impeachment challenges based on, 140–­43 Edwards, Harry, 123, 157 Ely, John Hart, 254n80 emoluments clause, 195–­200 English, George W.: impeachment of (1926), 23–­24, 228n3; resignation of, 229n7 evidence rules: justiciabililty of Senate’s failure to follow, 143–­45; for Senate impeachment trials, 42–­44, 117–­18 executive branch: attempts to impeach officials of, 23; power over judicial tenure, 61; role in impeachment process, 60–­62. See also president executive privilege, 115–­17 Federalist Papers, The: constraints on impeachment, 128; federal judges subject to impeachment, assumption of, 77; No. 39, 82; No. 65, 13–­14, 186, 244n33; No. 66, 14–­16; No. 69, 16; No. 79, 16–­ 17; No. 81, 17; prominence and admiration for, 12–­13; scope of impeachable offenses, 107 Flynn, Michael, 202 Fogel, Herbert, 30 Ford, Gerald, 105, 213, 219, 247n1 formalist interpretation: of constitutional provisions for impeachment, 67–­68, 70; of Judicial Disability Act, 102–­3; judicial independence, protection of, 88 Franklin, Benjamin, 4, 7 functional interpretation: of constitutional provisions for impeachment, 67–­68, 71–­ 72; of Judicial Disability Act, 103 Gerry, Elbridge, 4, 6–­7, 9 Ginsburg, Douglas, 138 Gorton, Slade, 259n7

Grant, Ulysses S., 207, 263n49 Grimes, Warren S., 25, 27, 232n51 Hamilton, Alexander: on the division of impeachment authority between the House and Senate, 17; the double security of a double trial, 154; The Federalist Papers, as author of, 12–­17; on impeachable offenses, 107–­8; impeachment, position on, 87, 128, 186; impeachment as a safeguard against the misdeeds of public officials, 221; on judicial tenure, 86; on judicial tenure and removal, 16–­17, 57; major objections to proposed impeachment process, responses to, 14–­16; on the order for impeachment and criminal prosecution of the president, 16; as participant at the Constitutional Convention, 4–­5, 10; on the Senate as forum for impeachment trials, 13–­14, 15–­16; on the Supreme Court as an improper forum for impeachment trials, 244n33 Harding, Warren, 193 Harkin, Tom, 191 Harrison, William Henry, 212 Hastings, Alcee: character of, 160; criminal prosecution of, 30; defense costs, request to reimburse, 64–­65; as elected member of House, 62, 65, 111; impeachment of (1988–­89), 25–­27, 55, 228n3; judicial challenge to Senate removal proceedings, 136; judicial review of impeachment trial, 141–­42; Senate trial of, 31, 36, 39, 41, 43, 46–­48, 63–­64, 178 Hastings, Warren, 81, 106 Hastings v. United States (1992), 141–­42 Hatch, Orrin, 43, 256n14 Heflin, Howell, 38–­39, 168, 235n48 Hill, Anita, 220 Hoffer, Peter, 10, 237–­38n17, 239n54 house managers, 26, 29, 31, 33, 44, 48, 229n9 House of Representatives, U.S.: competence of members to handle impeachments, 30–­31; decline in impeachment activities, 27–­29; delays in initiating impeachments, 29–­30; fact-­finding in impeachment proceedings, failures to undertake, 178–­79; fairness of impeachment proceedings, 31–­32;

290 index House of Representatives (cont.) the impeachment process in, 25–­26; pro­ posal to reduce Senate role in judi­cial removals, 162–­65; proposed reform for impeachment proceedings, 151–­52; pun­ ishment imposed by the Senate, opportunity to influence, 62–­64 Hull, N. E. H., 10, 237–­38n17, 239n54 Humphreys, West H.: additional sanction imposed on, 62; impeachment of (1862), 228n3; Senate trial of, 55, 190 Humphrey’s Executor v. United States (1935), 98 impeachability: of “civil officers of the United States,” 77–­79; of U.S. senators, 50, 77–­79 impeachable offenses: Bill Clinton’s alleged misconduct as, 185–­86; collusion with a foreign government, xii–­xiii, 194, 201–­3; congressional voting related to, 55–­57; Constitutional Convention debate regarding, 8–­9; constitutional/ political safeguards and, 112–­13; degrading the judiciary, 210–­11; degrading the presidency, 217–­21; firing of a special prosecutor, 205–­8; identification of, 108–­9, 219; misconduct of past presidents and, 217–­21; obstruction of justice, xii, 194, 203–­5; political crimes as, 109–­10; presidential communications, 215–­17; sexual harassment, 208–­ 9; state ratifying conventions, debates at, 18–­19, 106–­7; text and history of the Constitution’s impeachment clauses and, 105–­8; wrongdoing before taking office, xiii, 110–­12 impeachment: after departure from office, 81–­83; American rather than English approach to by the Constitutional Convention, 10–­11; of Archbald (1913), 32, 228n3; of Belknap (1876), 23, 53–­54, 228n3, 242n21; of Blount (1798–­99), 49–­50, 54, 55, 228n3, 242n21; of Chase (1804–­5), 55–­56, 167, 183–­84, 228n3; of Claiborne (1986), 25, 27, 31–­32, 62, 109, 154, 179, 228n3; of Bill Clinton (see Clinton, Bill); Hillary Clinton and the possibility of, 200–­201; constitutional and political legitimacy, distinction between, xi; emoluments clause

and, 195–­200; of English, 23–­24, 228n3; finality of presidential, 146–­48; of Alcee Hastings, 25–­27, 55, 228n3; of Warren Hastings, 81, 106; of Humphreys (1862), 228n3; incidence of, 23–­24; incidence of in recent decades, 178; of Andrew Johnson (1867–­68), 55–­56, 179, 183–­ 84, 228n3; judicial review of (see judicial review); judicial review of presidential, 145–­48; of Kent (2009), 24, 30, 159, 178, 208, 229n3; in a lame duck session, 261n24; as a last resort, ix; as legislative judgment, xii; of Louderback (1932–­33), 228n3; of Richard Nixon (see Nixon, Richard M.); of Walter Nixon (1988–­ 89), 27, 31–­32, 228n3; partisanship and (see partisanship); of Peck (1826–­31), 55, 228n3; of Pickering (1803), 52, 55, 228n3; of Porteous (2010), xiii, 61, 64, 229n3; of Ritter (1936), 56, 228n3; as a special mechanism for addressing abuses of presidential powers, xii; of Swayne (1903–­5), 228n3 impeachment investigations: of Clinton (1998–­99), 27, 32 (see also Clinton, Bill); of Douglas (1970), 27, 29, 52, 105, 109; finding of fact, 188–­89; of Nixon (1974), 27, 29, 32, 56–­57; process of, 26 (see also impeachment process); rules of evidence for, 117 impeachment power: congressional reluctance to abuse, 57–­60; constitutional limits, 77, 135; divided between the House and Senate, 64; framers’ narrow definition of, 188–­89; judicial review for abuses of, 135–­40; proposed delegation of trial authority, 156–­58; vested in House of Representatives, 131 impeachment process: constitutional safeguards, 112–­13; designed to make presidential removal difficult, x–­xi; discussed in state ratifying conventions, 19–­20; early postratification actions and discussion related to, 20–­21; effect of executive in triggering, 60–­62; external referrals in, 178–­79; framers’ design, 125, 128–­31; good behavior clause and, relationship between, 85–­88; Hamilton’s response to four major objections to, 14–­16; in the House of Representatives, 25–­26 (see also House of Representatives, U.S.;

index 291 impeachment investigations); incompatibility with judiciary, xi; judicial challenges to, 136–­40; justiciable challenges based on due process clause, 140–­43; justiciable challenges based on failure to follow rules, 143–­45; nonjusticiability of challenges to presidential, 145–­48; post–­ Walter Nixon challenges to, 126–­45; precedents, significance and influence of, 49–­54; principle challenge to, xiii; prior conviction, impact of, 32; procedural issues, 114–­19; reforms to (see reforms to impeachment process, proposed); in the Senate, 33–­35 (see also impeachment trials, Senate; Senate, U.S.); standards for presidents and judges, differences in, 184–­85; state-­level, pre-­Constitution, 3–­ 5; timing of the initiation of, 58–­59 impeachment trials, Senate: acquittals, lessons to be drawn from, 191–­92; of Archbald (1913), 38, 55; of Belknap, 53–­54, 81; of Blount, 50–­52, 57, 79, 81; burden of proof in, 114–­15; of Chase, 57, 191; of Claiborne, 31, 36, 39, 43–­47, 50, 178, 184–­85; of Clinton (see Clinton, Bill); complaints related to, 35–­45; constitutional convention debate related to, 5–­7; due process, 39–­42; Hamilton on choice of forum for, 13–­14, 15–­16; of Alcee Hastings, 31, 36, 39, 41, 43, 46–­ 48, 63–­64, 178; of Humphreys, 55, 190; issue preclusion, 44–­45; issue preclusion reform proposal, 153–­54; of Andrew Johnson, 27, 56–­57, 191–­92, 259n2; legal challenges to, 136–­37; of Louderback, 34, 37, 38; of Walter Nixon, 31, 36–­37, 39, 43–­48, 178; of Pickering, 41–­42, 52–­53, 55, 57, 184, 190, 211; of Porteous, 64, 83, 178; power for, 33; removal proceedings, 36–­37; of Ritter, 37, 51, 55, 58, 136–­38, 190; rules of evidence and standard of proof, 42–­44; rules of evidence in, 117–­18; senators’ lack of experience, 38–­39; sources of information on past, 235n50; special trial committee in 1980s, 34 Independent Counsel Act: Clinton impeachment and acquittal, impact of, 190–­91; constitutionality of, 93–­94; information may be submitted for consideration of impeachment, 25–­26;

prosecution of executive officials under, 89 INS v. Chadha, 240n25 interpretations of impeachment clauses: functional and formal approaches, 67–­ 68, 70–­72, 88; guidelines for, 69–­73 Isenberg, Joseph, 188 Jackson, Robert H., 163 Japan Whaling Association v. Baldridge, 253n79 Jaworski, Leon, 178 Jay, John, 12 Jefferson, Thomas, 195, 197, 229n5, 261n24 Jeffords, James, 41 Johnson, Albert, 30 Johnson, Andrew: impeachment and acquittal of, x–­xi; impeachment of (1867–­ 68), 55–­56, 179, 183–­84, 228n3; Senate trial of, 27, 56–­57, 191–­92, 259n2 Johnson, William Samuel, 129 Johnston, Samuel, 19 Jones, Paula, 59 Judicial Conduct and Disability Act (1980). See Judicial Disability Act of 1980 Judicial Conference, 25, 163, 178 judicial councils, 88, 99–­104 Judicial Councils Reform and Judicial Conduct and Disability Act (1980). See Judicial Disability Act of 1980 Judicial Disability Act of 1980: concerns regarding, 103–­4; disciplinary authority of some judges over other judges, 165, 210; disciplining of judges under, 28, 88–­89; enactment of, 211–­12; formalist interpretation of, 102–­3; functional interpretation of, 103; proposed legislative oversight under, 158; as statutory mechanism for initiating impeachment, 25 judicial discipline, mechanisms for, 88–­89 judicial independence: concept of, 92–­93; defined, 101; life tenure and, 86 judicial removal: authorizing Congress to determine procedures and practices for, 171–­72; the Bribery Act of 1790 and, 20; Constitutional Convention debate regarding, 5–­7; formal, specific meaning of, 101; Hamilton on, 16–­17, 57; mechanisms for, 88–­89; proposal to reduce Senate role in, 162–­65; proposed

292 index judicial removal (cont.) amendment for Supreme Court actions in, 172–­73; proposed constitutional amendment relating to felony convictions, 167–­68; proposed specialized body to handle, 168–­71; Senate process for, 36–­37; through impeachment, 101 judicial review: impeachability of judges for exercising, 18; impeachment and, xii; impeachment as a security against congressional retaliation against, 17; of impeachment proceedings, 120–­25; as part of separation of powers, 122; of post–­Walter Nixon impeachment challenges, 125–­40; in Powell v. McCormack, 132–­33; propriety in extreme abuses of impeachment power, 135–­40; Senate impeachment decisions without, 136–­40 judicial tenure: constitutional amendment proposals related to, 166–­67; executive branch power over, 61; good behavior and impeachment clauses of the Constitution, reconciling the, 85–­88; Hamilton on, 16–­17, 86; Madison on, 86 judiciary: countermajoritarian difficulty of, 166; criminal prosecution of federal, 89; Douglas, attempt to impeach (see Douglas, William O.); impeachment as the sole means of removing federal judges, 84–­88; incidence of impeachment trials, 37; independence of (see judicial independence); life tenure, 99; misconduct by, 26; models of judicial discipline familiar to the framers, 86–­87; removal power of, 97–­99; resignation of judges, 30; self-­regulation of, 99–­104 Judiciary Committee, House, x, 26, 29–­32, 151–­52, 158, 179 Judiciary Committee, Senate, 34, 158 Justice Department, U.S.: Hillary Clinton, investigation of, 215–­16; communications with the House regarding impeachments, 30, 152; emoluments clause, applicability to the president of, 196; prosecution of high-­ranking federal executives by, 94; prosecution of judges by, 61–­62, 89 justiciability: of constitutional violations, 131; of impeachment challenges, 20; of violations of explicit constraints, 126–­ 27. See also nonjusticiability

Kent, Samuel: impeachment of (2009), 24, 30, 159, 178, 208, 229n3; resignation of, 30, 54, 229n7; sexual misconduct included in charges against, 208 Kerner, Otto, 30, 61, 90 King, Rufus, 4, 8 Kozinski, Alex, 209–­11 legitimacy, distinction between constitutional and political, xi–­xii Levin, Carl, 50, 234n37, 255n7 Lewinsky, Monica, 191 Lieberman, Joseph, 38, 169 Lott, Trent, 41 Louderback, Harold, 34, 37, 38, 228n3 Lynch, Loretta, 215 Mack, Connie, 41 Madison, James: at the Constitutional Convention, 4–­9; The Federalist Papers, as author of, 12; on impeachable offenses, 106; on impeachment after leaving office, 82; impeachment trials in the Senate, opposition to, 225n41; on judicial tenure, 86; on the jurisdiction of the Supreme Court, 129–­30; notes of the Constitutional Convention, delayed publication of, 4; presidential abuse of power, calming fears about, 20; on the significance of the state ratifying conventions, 17, 227n39; at the Virginia ratifying convention, 18–­19 Manafort, Paul, 202 Marbury v. Madison (1803), 133, 203 Marshall, John, 71–­73, 124, 133, 138, 203–­4 Martin, Luther, 225n41, 226n1 Mason, George, 4, 7–­9, 18, 106, 227n47 Mathias, Charles McC., 37, 44 McCulloch v. Maryland (1819), 71–­72, 124 McGahn, Donald, 194, 206 McHale, Paul, 260n9 McHenry, James, 225n41 media, 28–­29, 179–­81 Mikva, Abner, 234n37 misconduct: judicial, 26, 61, 95, 186; presidential, xiii, 19, 185, 208–­9, 217–­ 21; prior to election or confirmation, 110–­12 Mistretta v. United States, 241n27 Monroe, James, 18, 227n49

index 293 Morris, Gouverneur, 4, 6–­9, 87, 128 Morrison v. Olson, 93, 99, 241n27 Mueller, Robert, 194, 199, 202, 205–­7 Myers v. United States, 98, 241n25, 244n25 National Commission on Judicial Discipline and Removal survey, 36, 39, 158 New Jersey Plan, 5 Nicholas, George, 19 Nixon, Richard M.: character of, 160; Cox, firing of, 191, 206–­7; Ford, appointment of, 213; grounds for impeaching, 194, 215; House impeachment investigation (1974), 27, 29, 32, 56–­57; impeachment of, 178, 232n50; obstruction of justice, claim regarding, 204; partisanship/bipartisanship in the impeachment of, 56–­57; resignation of, ix–­xii, 23, 32, 182 Nixon, Walter: challenge to conviction and removal, 118, 120, 136; character of, 160; defense costs, request to reimburse, 64; impeachment of (1988–­89), 27, 31–­ 32, 228n3; reason for impeachment and removal, 198; Senate trial of, 31, 36–­37, 39, 43–­48, 178 Nixon v. Fitzgerald, 207 Nixon v. United States, 243n10 Nixon (Walter) v. United States (1993), 45, 68, 118, 120–­26, 131, 141, 157, 183 Nixon (Walter) v. United States (D.C. Cir. 1991), 123, 140 nonjusticiability: post–­Walter Nixon impeachment challenges, 127–­35, 140–­45, 157; Walter Nixon (1993), 120–­22, 124. See also justiciability Northern Pipeline Construction Co. v. Marathon Pipeline Co., 240n25 obstruction of justice, xii, 194, 203–­5 partisanship: the Blount impeachment and, 51–­52; the Clinton impeachment and, 56, 138, 177–­78, 181–­83; decline of impeachments based on, 29, 55–­56; failure of attempts to impeach based solely on, 57, 137–­38; the Johnson impeachment and, 179; removal of Ritter and, 58; rise of in the 1990s, 138; Trump and the intensification of, ix Paterson, William, 4–­5, 8

Peck, James H., 55, 228n3 Pickering, John: character of, 160; impeachment of (1803–­4), 52, 55, 228n3; Senate trial of, 41–­42, 52–­53, 55, 57, 184, 190, 211; separate Senate votes on guilt and removal of, 190 Pinckney, Charles, 4–­5, 7 political crimes, 109–­10 political question doctrine, 120, 122–­24 Porteous, Thomas: character of, 160; confirmation proceedings, defrauding the Senate in, 83, 159; impeachment of (2010), xiii, 61, 64, 229n3; Senate trial of, 64, 83, 178 Posner, Richard, 220 Powell, Lewis, 138, 252n26 Powell v. McCormack (1969), 121, 123, 126–­27, 132–­33 precedents: Belknap impeachment, precedential value of, 53–­54; Blount impeachment, precedential value of, 51–­52, 54; Pickering impeachment, precedential value of, 52–­53; significance and influence of, 49–­54 president: emoluments clause, applicability of, 195–­96; executive privilege, applicability of, 115–­17; Hamilton on impeachability of, 16; impeachability of, Constitutional Convention debate regarding, 7–­8; impeachments of (see Clinton, Bill; Johnson, Andrew; Nixon, Richard M.); indictment of, 204–­5; judicial review and finality of impeachment of, 145–­48; the media and, 179–­81; misconduct of, 19; popularity of and potential for impeachment, xi, xiii, 182–­83; removal of, x–­xi, 97–­99; the veto, impeachment and, xii prosecution, criminal. See criminal prosecutions punishment: congressional use of, 62–­64; nature of impeachment, 80–­81; post­ resignation, 81–­83 Randolph, Edmund, 4–­5, 8, 19, 87 ratification of the Constitution: The Federalist Papers (see Federalist Papers, The); impeachability of members of congress, debates on, 17–­18; impeachment process, debates on, 19–­20; limits of evidence regarding, 12; Madison on the importance of the state ratifying

294 index ratification of the Constitution (cont.) conventions, 17; scope of impeachable offenses, debates on, 18–­19, 106–­7; the Senate, debates on the power of, 18 Reagan, Ronald, 138, 213 reforms to impeachment process, proposed, 149; delegations to experts, 156–­58; in the House, 151–­52; issue preclusion, 153–­54; legislative oversight, 158–­60; in the Senate, 152–­58, 162–­65; Senate trial committees, 155–­56; statutory suspension of tenure and compensation, 161–­62 removal: constitutional powers for, 97–­99; judicial (see judicial removal); methods other than impeachment, 97–­98; of one branch by another, 84; scire facias, 89, 102 removal proceedings. See impeachment trials, Senate resignation: to avoid impeachment, 23, 209–­11; of Belknap, 23, 53; of English, 229n7; following impeachment, 23–­24; of judges, 30; jurisdiction of the Senate following, 54; of Kent, 30, 54, 229n7; of Richard Nixon, ix–­xii, 23, 32, 182; punishment following, 81–­83 Rifkind, Simon H., 52 Ritter, Halsted L.: character of, 160; degrading the judiciary as charge against, 210–­11; impeachment of (1936), 56, 228n3; judicial challenge to removal of, 136; partisanship and the impeachment of, 137–­38; Senate trial of, 37, 51, 55, 58, 136–­38, 190 Ritter v. United States (1936), 131 Robb, Charles, 259n3 Robbins, William M., 53 Rockefeller, Nelson, 213 Rodino, Peter W., Jr., 44 Rosenstein, Rod, 202, 205–­6 Rotunda, Ron, 205 Rudman, Warren, 172–­73, 236n66 Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials, 33 Rule XI trial committees. See trial committees, Senate Rutledge, John, 6, 87 Sarbanes, Paul, 261n27 Scalia, Antonin, 93, 218 Schumer, Charles, 184

scire facias removal, 89, 102 Senate, U.S.: the Constitutional Convention’s special view of, 10; delegations to a body of experts, 156–­58; House proposal to reduce role in judicial removals, 162–­65; impeachability of senators, 50, 77–­79; impeachment process, 33–­35; impeachment trials (see impeachment trials, Senate); power of debated in state ratifying conventions, 18; power to conduct impeachment trials, 33; proposed reforms for impeachment trials, 152–­58; punishment imposed by, 62–­64; removal proceedings, 36–­37; sanctions following impeachment, 80–­81; senators’ attendance in and preparing for impeachment trials, 59–­60; senators’ lack of experience with impeachment trials, 38–­39; trial committees (see trial committees, Senate) Sensenbrenner, James, 231n35 separation of powers: congressional adjudication limited to impeachment, 88; disciplining of top executive branch officials and, 96; executive privilege and, 116; judicial review as part of, 122; removal power as part of, 84 Sessions, Jefferson, 202, 205 severability of impeachment sanctions, 20 sexual harassment/misconduct, 208–­10 Shane, Peter, 88, 243n11 Sherman, Roger, 6–­7, 128 Smilie, John, 18 Smith, Samuel, 41–­42 Souter, David, 121–­22, 136, 157 special prosecutors, 94, 205–­8. See also Cox, Archibald; Mueller, Robert; Starr, Kenneth Specter, Arlen, 38, 177, 234n37, 236n64, 256n14, 256–­57n30 Sporkin, Stanley, 65, 142 Stanton, Edwin, 179 Stapleton, Walter, 169–­72 Starr, Kenneth, 178, 190–­91 state ratifying conventions. See ratification of the Constitution Stewart, David, 45–­46 Story, Joseph, 67, 83, 107–­8, 131 Sumners, Hatton W., 162–­64 Supreme Court, U.S.: Chandler and, 100; framers’ arguments against role in

index 295 impeachment for, 13, 40, 125, 128–­29, 147; functionalism of, 71; on judicial review, 144; jurisdiction of, 130, 147; proposals regarding, 164–­65, 169, 172–­73; recognition of constraints on impeachment power, 125–­30; role in impeachment debated at Constitutional Convention, 6–­7; separation of powers, decisions on, 87–­88, 103; sexual harassment recognized as sex discrimination by, 220; special masters, use of, 119. See also individual case names Swayne, Charles, 228n3 Tazewell, Henry, 237n8 ten Broeck, Jacobus, 55–­56 Tenure in Office Act, 179 Thompson, Fred, 177 Thurmond, Strom, 161–­62, 167–­68 Tillman, Seth Barrett, 195–­96 Tocqueville, Alexis de, 23 trial committees, Senate: constitutionality of, 118–­19; discouraging Senators from familiarizing themselves with the record, 45–­46; function of, 34–­35; improving, 155–­56; resolving disputes over pretrial matters, 47–­48; scheduling conflicts, 46–­ 47; use of, fairness of, 58–­59 Truman, Harry S., 263n49 Trump, Donald: character of, 160; charges against, 175, 193–­95; charges against as grounds for impeachment, assessment of, xii–­xiii; collusion with Russia, potential, 194, 201–­3; the emoluments clause and, 195–­200; financial misconduct, potential, 193–­94, 198; firing of Mueller as impeachable offense, question of, 205–­8; misconduct of compared to misconduct of past presidents, 217–­21; obstruction of justice, potential, 194, 203–­5; polarization regarding, ix; sexual harassment as impeachable offense, question of, 208–­9; tax returns of, 199; tax schemes

by the family of, 199; tweets and public comments, potential impeachment and, 215–­17; the Twenty-­Fifth Amendment and, 211, 214–­15; what we know about impeachment and the presidency of, x Trump, Fred, 199 Tyler, John, 18, 212, 227n48 United States v. Ballin, 250n33 United States v. Claiborne (1985, 1986), 91–­92, 245n59 United States v. Curtiss-­Wright Export Corp., 254n79 United States v. Isaacs (1974), 90–­92 United States v. Lee, 245n59, 254n80 United States v. Nixon (Richard) (1974), 116, 232n50 Vanderbilt, Arthur, 164 Van Tassel, Emily, 62 Vermeule, Adrian, 217, 219 Virginia Plan, 5 voting for conviction and removal: congressional trends regarding, 55–­57; Constitutional Convention debate regarding, 9–­10; Senate impeachment rule, 34–­35. See also impeachment trials, Senate Warren, Earl, 137–­38 Washington, George, 195, 197, 224n23 Webster v. Doe, 254n98 Wells, William H., 190, 238n32 White, Byron, 121, 136, 157 Willging, Thomas, 247n99 Williams, Napoleon B., Jr., 250n37 Williams, Stephen, 140 Williamson, Hugh, 4, 7, 9 Wilson, James, 4–­8, 18, 20–­21, 41, 107–­8, 227n43 Wright, Susan Webber, 192, 264n52 Youngstown Sheet & Tube Co. v. Sawyer, 253–­54n79