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Testimony of Michael J. Gerhardt
College of William & Mary School of Law

House Judiciary Committee Subcommittee on the Constitution
Hearing on the Background and History of Impeachment
November 9, 1998

Introduction

I am enormously grateful for the honor and privilege to share with you some of my thoughts about the background and history of the federal impeachment power. Over the past decade, I have had several occasions to review in detail the topic of today's hearing. In order to be of assistance to the Committee, I have organized my testimony in three parts, with an eye toward illuminating to the fullest possible extent and consistent with the weight of authority the historical issue of greatest contemporary concern relating to impeachment - the scope of impeachable offenses. As background, Part I identifies the ways in which the founders purposely tried to distinguish the federal impeachment process from its British counterpart. One of the most important of these features was the founders' desire to narrow or restrict the range of impeachable offenses. Part II examines the likeliest meaning of the terms of art "other high crimes and misdemeanors" that provide the bases for federal impeachment. I believe that the weight of authority, as most other scholars and commentators have found, that these words constitute technical terms of art that refer to political crimes. For the most part, the founders did not regard political crimes to be the functional equivalent of indictable crimes; rather, they considered political crimes to consist of serious abuses of official power or serious breaches of the public trust, which might also but not necessarily be punishable in the courts. Given that the founders expected that the scope of impeachable officials would work itself out over time on a case-by-case basis, I turn in Part III to consider the possible lessons that might be derived from trends or patterns in the Congress' past impeachment practices. Three are especially noteworthy. The first is that criminal conviction or prosecution of an individual prior to impeachment dramatically increases the likelihood of impeachment. The second is the relatively widespread recognition of the paradigmatic case for impeachment as being based on the abuse of power. The three articles of impeachment approved by the House Judiciary Committee against President Richard Nixon have come to symbolize this paradigm. The great majority of impeachments if not all of the impeachments brought by the House and convictions by the Senate approximate this paradigmatic case, for most if not all of these cases involve the serious misuse of office or official power. There is a third conceivable trend based on the recognition of some legitimate impeachment actions falling outside of the first category (or paradigmatic case). The latter cases, best symbolized by the Claiborne decision, is that there may be some kinds of misconduct in which an impeachable official might engage that are so outrageous and thoroughly incompatible with an official's status or responsibilities that Congress has no choice but to impeach and remove an official who has engaged in such misconduct.

I.

The discussions of the delegates to the constitutional convention and state ratifying conventions provide some background for appreciating the distinctive features of the federal impeachment process. The founders wanted to distinguish the impeachment power set forth in the U.S. Constitution from the British practice in eight important ways. First, the founders limited impeachment only to "[t]he President and all civil officers of the United States,"(1) whereas at the time of the founding of Republic anyone (except for a member of the royal family) could be impeached in England. Second, the delegates to the constitutional convention tried to narrow the range of impeachable offense for public officeholders to "treason, bribery, and other high crimes or misdemeanors,"(2) while the English Parliament had always refused to constrain its jurisdiction over impeachments by restrictively defining impeachable offenses. Third, whereas the English House of Lords could convict upon a bare majority, the delegates to the constitutional convention agreed that in an impeachment trial held in the Senate "no Person shall be convicted [and removed from office] without the Concurrence of two thirds of the Members present."(3) Fourth, the House of Lords could order any punishment upon conviction, but the delegates limited the punishments in the federal impeachment process "to removal from Office, and disqualification to hold and enjoy any Office or honor, Trust or Profit under the United States . . ."(4) Fifth, the King could pardon any person after an impeachment conviction, but the delegates expressly prohibited the President from exercising such power in the Constitution.(5) Sixth, the founders provided that the President could be impeached,(6) whereas the King of England could not be impeached. Seventh, impeachment proceedings in England were considered to be criminal, while the Constitution separates criminal and impeachment proceedings.(7) Lastly, the British provided for the removal of their judges by several means, whereas the Constitution provides impeachment as the sole political means of judicial removal.(8)

Of these distinctive features, the one of greatest contemporary concern is the founders' choice of the words -- "treason, bribery, and other high crimes or misdemeanors" -- for the purpose of narrowing the scope of the federal impeachment process. The founders did not discuss the meaning of "other high crimes or misdemeanors" extensively, certainly not in any way that definitively resolves the precise meanings of those terms. Nevertheless, the context and content of the founders' principal discussions about the phrase "other high crimes or misdemeanors" provide an important backdrop to contemporary efforts to understand the meaning of the phrase.

Throughout the early debates in the constitutional convention on the scope of impeachable offenses, every speaker agreed that certain high-ranking officials of the new national government should not have immunity from prosecution for common law crimes, such as treason and murder. Many delegates also envisioned a body of offenses for which these federal officials could be impeached. Early in the convention's proceedings, they referred to "mal-" and "corrupt administration," "neglect of duty," and "misconduct in office" as the only impeachable offenses and maintained that common law crimes such as treason and bribery were to be heard in the courts of law. Several delegates, notably William Paterson, Edmund Randolph, James Wilson, and George Mason, argued that the federal impeachment process should apply to misuse of official power in accordance with their respective state constitutions and experiences. As late as August 20, 1787, the Committee of Detail reported that federal officials "shall be liable to impeachment and removal from office for neglect of duty, malversation, or corruption."

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." On September 8, George Mason opened the convention's discussion on this latter proposal by questioning the wisdom of limiting impeachment to those two offenses. He argued that "[t]reason as defined in the Constitution [would] not reach many great and dangerous offences." He used as an example of such subversion the contemporaneous English impeachment of Governor Warren Hastings of the East India Company, whose trial was based in part not upon specific criminal acts but rather upon the dangers presented to the government by his wielding of virtually absolute power within the Indian colony. Mason was concerned 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." Mason therefore moved to add the term "maladministration" to permit impeachment upon less conventionally defined common law offenses. Elbridge Gerry seconded the motion. James Madison, without taking issue with either the appropriateness of including such subversion or the need to expand the standard to include such potentially noncriminal wrongs, responded that "[s]o vague a term will be equivalent to a tenure during pleasure of the Senate." Recalling an earlier debate on June 20 in which he had asked for more "enumerated and defined" impeachable offenses, Governor Morris agreed with Madison. Mason thereupon withdrew his motion and substituted "bribery and other high crimes or misdemeanors against the States," which Mason apparently understood as including maladministration. Without further comment, the motion was approved by a vote of eight to three.

The convention, again without discussion, later agreed to replace the word "State" with the words "United States." The Committee of Style and Arrangement, which was responsible for reworking the resolutions without substantive change, eliminated the phrase "against the United States," presumably because it was thought to be redundant or superfluous. The convention accepted the shortened phrase without any further debate on its meaning.

Subsequently, the most substantial discussions of the scope of impeachable offenses, besides those in The Federalist Papers (discussed in the section below), occurred in the ratification conventions in North Carolina and Virginia. For instance, in the North Carolina ratifying convention, 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 injustices 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." As examples of impeachable offenses, he suggested that the "president must certainly be punishable for giving false information to the Senate" and that "the president would be liable to impeachments [if] he had received a bribe or had acted from some corrupt motive or other." 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 abusing his trust." Governor Johnston, who would later become North Carolina's first U.S. senator, agreed that "impeachment . . . is a mode of trial pointed out for great misdemeanors against the public."

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." Madison 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. George Nicholas agreed that a president could be impeached for a nonindictable offense. John Randolph explained that "[i]n England, those subjects which produce impeachments are not opinions . . . It would be impossible to discover whether the error of the opinion resulted from a willful mistake of the heart, or an involuntary fault of the head." He stressed that only the former constituted an impeachable offense. Edmund Randolph agreed that no one should be impeached for "an opinion."

In the decade following ratification, the federal impeachment process remained a subject of some debate and concern. For instance, in the First Congress, then-Representative James Madison tried to calm the fears of some of his colleagues about possible presidential abuse of authority to remove executive officials by suggesting that the President "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]." 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 (and because it arguably conflicted with his objection in the constitutional convention to making "maladministration" a basis for impeachment), Madison's comment is consistent with the stance he took in the Virginia ratifying convention to support presidential impeachment for nonindictable abuses of power.

Immediately following his appointment to the Supreme Court in 1790, James 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, given in 1790-91 but published posthumously, Justice Wilson described the essential character of impeachments as "proceedings of a political nature . . . confined to political characters, to political crimes and misdemeanors, and to political punishments." He emphasized that the founders believed that "[i]mpeachments, and offenses impeachable, [did not] come . . . within the scope 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."

II.

The relatively few comments made about the meaning of "other high crimes and misdemeanors" by the founders in the constitutional and state ratifying conventions do not definitively clarify the scope of impeachable offenses. The reason that this is so is not just because the founders failed to discuss the topic extensively or to anticipate all of the likely issues or cases that would arise in this area. The reason is that in choosing to make "other high crimes or misdemeanors" the basis for impeachable offenses, the founders deliberately chose terms of art that referred to a general category of offenses, the specific contents of which have to be worked out over time on a case-by-case basis.



The great majority of commentators who have closely examined the likely meaning of the constitutional phrase "other high crimes or misdemeanors," including, among others, Justice James Wilson,(9) Justice Joseph Story,(10) Chief Justice Charles Evans Hughes,(11) Justice Arthur Goldberg,(12) Charles Black,(13) Raoul Berger,(14) George Curtis,(15) Arthur Bestor,(16) Paul Fenton,(17) Peter Hoffer and N.E.H. Hull,(18) John Feerick,(19) and John Labovitz (a former staff member of the House Judiciary Committee investigating President Nixon)(20) have reached the same conclusion -- that the phrase "other high crimes and misdemeanors" consists of technical terms of art referring to "political crimes." They also have agreed that "political crimes" had a special meaning in the eighteenth century; "political crimes" were not necessarily indictable crimes. Instead, "political crimes" consisted of the kinds of abuses of power or injuries to the republic that could only be committed by public officials by virtue of the public offices they held. Although the concept of "political crimes" uses the term "crimes," it did not necessarily include all indictable offenses. Nor were all "political crimes" (or impeachable offenses) indictable crimes.

To appreciate what would constitute "political crimes," one needs to go back to the British impeachment practices from which the founders drew the language "other high crimes and misdemeanors" and thus the concept of "political crimes." In the English experience prior to the drafting and ratification of the Constitution, impeachment was primarily a political proceeding, and impeachable offenses were regarded as "political crimes." For instance, Raoul Berger observed in his influential study of the impeachment process that the English practice treated "[h]igh crimes and misdemeanors [as] a category of political crimes against the state."(21) Berger supported this observation with quotations from relevant periods in which the speakers use terms equivalent to "political" and "against the state" to identify the distinguishing characteristics of an impeachable event.(22) In England, the critical element of injury in an impeachable offense had been injury to the state.(23) The eminent legal historian, Blackstone, traced this peculiarity to the ancient law of treason, which distinguished "high" treason, which was disloyalty against some superior, from "petit" treason, which was disloyalty to an equal or an inferior.(24) The late Professor Arthur Bestor explained further that "[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."(25) In summary, the English experience reveals that there was a "difference of degree, not a difference of kind, separat[ing] 'high' treason from other 'high' crimes and misdemeanors [and that] [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."(26)



In addition, those delegates in the constitutional and state ratifying conventions who supported the federal Constitution seemed to have a shared understanding of impeachment as a political proceeding and impeachable offenses as essentially "political crimes."(27) 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 the debates in the convention primarily focused on the offenses for which the President could be impeached and removed, there was general agreement that the President could be impeached only for so-called "great" offenses.(28) Moreover, the majority of examples given throughout the convention debates about the scope of impeachable offenses, such as Madison's preference for the phrase "other high crimes and misdemeanors" because it encompassed attempts to subvert the Constitution, confirm that impeachable offenses primarily consisted of abuses of power that injured the state (and thus were not necessarily limited to indictable offenses). Neither the debates nor the relevant constitutional language eventually adopted, however, identifies the specific offenses that constitute impeachable abuses against the state.

The ratification campaign further supports 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 to state ratification conventions often referred to impeachable offenses as "great" offenses (as opposed to common law crimes), and they frequently spoke of how impeachment should lie if the official "'deviates from his duty'"(29) or if he "'dare to abuse the powers vested in him by the people.'"(30)

In Federalist No. 65, Alexander Hamilton echoed such sentiments, 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."(31) Believing it unwise to submit the impeachment decision to the Supreme Court because of "the nature of the proceeding,"(32) Hamilton argued 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]."(33) In short, Hamilton too believed that impeachable offenses comprised a unique set of transgressions that defied neat delineation.

Both Justices James Wilson and Joseph Story expressed agreement with Hamilton's understanding of impeachable offenses as political crimes. In his 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."(34) Justice Wilson understood the term "high" describing "Crimes and Misdemeanors" to mean "political," while the latter term referred to bad conduct against the state. 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."(35) 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."(36) 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."(37)

In much the same manner as Hamilton, Justice Story understood that the framers proceeded 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 may be impeached and removed from office. Justice Story explained that "no previous statute is necessary to authorize an impeachment for any official misconduct."(38) 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 incapable of being defined, or classified, that the task of positive legislation would be impracticable, if it were not almost absurd to attempt it."(39) The implicit understanding shared by both Hamilton and Justice Story was that subsequent generations would not have a federal common law of crimes to guide them in determining impeachable offenses but rather would have to define on a case-by-case basis the political crimes serving as contemporary impeachable offenses.

The remaining problem 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 likeliest places to look for guidance are to the framers' debates or authoritative commentary on the meaning of the relevant constitutional language (as reflected above) and historical practices. The latter do provide some insight into the answer to this challenge. First, it is noteworthy that of the sixteen men impeached by the House of Representatives, only four were impeached primarily or solely on grounds strictly constituting a criminal offense: Secretary of War William Belknap (charged with accepting bribes); Harry Claiborne (charged with wilfully making false tax statements); Alcee Hastings (charged with conspiring to solicit a bribe and perjury), and Walter Nixon (charged with perjury). One of these four - Alcee Hastings - had been formally acquitted of bribery prior to his impeachment. The House's articles of impeachment against the other twelve include misuses of power that were not indictable federal offenses at least at the time they were approved.(40)

Of the seven men who have been convicted and removed from office by the Senate, four were convicted and removed from office on the basis of nonindictable offenses. These four officials included Judge Pickering (convicted and removed for public drunkenness and blasphemy),(41) Judge West H. Humphreys (convicted and removed by the Senate for having publicly advocated that Tennessee secede from the Union, organized armed rebellion against the United States, accepted a judicial commission from the Confederate Government, holding court pursuant to that commission, and failing to fulfill his duties as a U.S. District Judge),(42) Judge Robert Archbald (convicted, removed, and disqualified by the Senate for obtaining contracts for himself from persons appearing before his court and others and for adjudicating cases in which he had a financial interest or received payment -- offenses for which, as the Chairman of the House Impeachment Committee at the time conceded, no criminal charges could be brought),(43) and Judge Halsted Ritter (who was 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[]").(44) Of the remaining three officials who were convicted and removed from office by the Senate, all three were convicted and removed from office on the basis of indictable crimes. These three officials included Harry Claiborne (income tax invasion), Alcee Hastings (bribery and perjury), and Walter Nixon (making false statements to a grand jury). Prior to their impeachments and removals from office, two of these judges -- Claiborne and Nixon -- had been indicted, convicted in federal court, and exhausted their criminal appeals.

Given that certain federal officials may be impeached and removed from office for committing serious abuses against the state and that these abuses have not always been nor necessarily should be confined to indictable offenses, the persistent challenge has been 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. (The Constitution itself defines treason as "consist[ing] only in levying War against the [United States], or in adhering to their Enemies, giving them Aid and Comfort."(45)) At least one federal criminal statute -- the bribery statute(46) -- 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 willful misconduct and serious lack of judgment and respect for the law in the course of performing one's duties. In other words, it is conceivable there are certain statutory crimes that, if committed by public officials, reflect such lapses of judgment, abuses of the privileges of their offices, breaches of the public trust, disregard for the welfare of the state, and disrespect for the law and the office held that the occupant may be impeached and removed from office for lacking the minimal level of integrity and judgment sufficient to discharge the responsibilities of the office.

On the other hand, not all statutory crimes demonstrate complete unfitness for office. For example, a President's technical violation of a law making jay-walking or speeding a crime "obviously would not be an adequate basis for presidential impeachment and removal."(47) Moreover, it is equally obvious that some non-criminal activities may constitute impeachable offenses. As Professor Laurence Tribe observed, "[a] deliberate presidential decision to emasculate our national defenses or to conduct a private war in circumvention of the Constitution would probably violate no criminal code,"(48) but would probably constitute a nonindictable, impeachable offense. The full range of such political crimes defies further specification, because it rests on the circumstances under which the offenses have occurred (including the actor, the forum, the scope of the officer's official duties, and the nature and significance of the offensive act), and on the collective political judgment of Congress.(49)

III.

The founders considered that political crimes would be clarified over time on a case-by-case basis. Consequently, congressional practices are important, because they help to illuminate Congress' deliberate judgments over the past couple of centuries on what constitutes an impeachable offense. Given the likelihood that Congress' judgments on impeachment are largely if not wholly immune to judicial review, these judgments take on even more importance than typical legislative actions because the former are, for all practical purposes, the final word on the scope of the federal impeachment power.

When one surveys the sixteen formal impeachments brought by the House and the seven convictions and six acquittals rendered by the Senate, three noteworthy patterns emerge. The first is one to which I have already alluded - that the House has impeached and the Senate has removed people for offenses that have (at least technically) not constituted indictable crimes. There is, however, also a related tendency for the Senate to convict on the basis of indictable crimes or at least to find conviction easier to effect if an indictable offense were involved. Moreover, in the 1980s, the Senate convicted Judges Claiborne, Hastings, and Nixon on the basis of indictable offenses. The convictions of Claiborne and Nixon demonstrate that the Congress is especially likely to impeach and remove officials who have been previously convicted of felonies in court. Indeed, the criminal convictions of Claiborne and Nixon (and the Judicial Council's finding that Hastings had engaged in criminal misconduct) clearly put pressure on Congress to bring impeachment actions against these officials. That such convictions can bring such pressure is a matter of concern to many members of Congress and scholars, because it indicates that under certain circumstances criminal prosecutors can drive the impeachment process. Since the framers envisioned that criminal and impeachment proceedings are separate and that the discretions for initiating each belong to authorities in different branches, it is important for members of Congress to ensure that criminal prosecutors do not rob or unduly influence the former's constitutional discretion to initiate or conduct impeachment actions on the grounds that they think are appropriate.

The second major trend is the widespread recognition that there is a paradigmatic case for impeachment consisting of the abuse of power. In the paradigmatic case, there must be a nexus between the misconduct of an impeachable official and the latter's official duties. It is this paradigm that Hamilton captured so dramatically in his suggestion that impeachable offenses derive from "the abuse or violation of some public trust" and are "of a nature which may be peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself."(50) This paradigm is also implicit in the founders' many references to abuses of power as constituting political crimes or impeachable offenses. The paradigm here has become the three articles of impeachment approved by the House Judiciary Committee against Richard Nixon - charging obstruction of justice, abuse of powers, and unlawful refusal to supply material subpoenaed by the House of Representatives. These charges derived from Nixon's misuse of the powers and privileges of his office to facilitate his reelection and to hurt his political enemies as well as to frustrate or undermine inappropriately legitimate attempts to investigate the extent of his misconduct. Keeping Nixon in office would have demeaned the office irreparably.

Some of the House's decisions not to initiate impeachments or to approve impeachment articles as well as by the Senate not to convict are consistent with this paradigm. For example, the Senate failed to convict Associate Justice Samuel Chase in part because some members did not believe that the conduct on which the House's charges had been based did not rise to the level of impeachable offenses or could fairly be characterized as being the kinds of indiscretions or mistaken judgments that fall within the legitimate scope of a judge's authority. Similarly, the House voted 127-83 not to impeach President Tyler for abusing his powers based on his refusals to share with the House inside details on whom he was considering to nominate to various confirmable positions and his vetoing of a wide range of Whig-sponsored legislation. Tyler's attempts to protect and assert what he regarded as the prerogatives of his office were a function of his constitutional and policy judgments; they might have been wrong-headed or even poorly conceived (at least in the view of many Whigs in Congress), but they were not malicious efforts to abuse or expand his powers, as was true in Richard Nixon's case, for purely personal gain or aggrandizement. The Senate also refused to convict Andrew Johnson by the slimmest of margins, because a small but pivotal number of senators believed, among other things, that the charges brought by the House against him did not rise to the level of impeachable offenses and because Johnson's real crimes were mistaken or erroneous judgment rather than malicious abuse of power. The outcomes of the efforts to try to oust Presidents Tyler and Johnson confirm the suggestion made by Professors Peter Hoffer and N.E.H. Hall in their excellent study of the history of impeachment in the United States, that "impeachable offenses are not simply political acts obnoxious to the government's ruling faction."(51) In this century, the House rejected then-Representative Gerald Ford's resolution to initiate an impeachment action against Justice William O. Douglas, at least in part because a majority of members were not persuaded that either Douglas' lifestyle or the substance or content of his decisionmaking was a relevant subject for an impeachment inquiry. Moreover, the House Judiciary Committee refused to bring an article of impeachment against President Nixon based on fraud in preparing his taxes, at least in part because it was not the kind of misconduct that could only have been committed by a president because of the special office or trust he held.

It is also fair to say that the vast majority of the impeachments that have been brought by the House and the convictions that have been rendered by the Senate follow the paradigmatic case. Most if not all of the officials impeached by the House (52)

and the seven officials convicted and removed by the Senate were found to have misused their offices or their prerogatives or breached the special trusts that they held by virtue of holding their federal offices.(53) For example, in 1986, the House impeached and the Senate convicted and removed federal district judge Harry Claiborne from office based on income tax evasion. At first glance, it seems as if Claiborne's misconduct has no formal relationship to his official duties. Nevertheless, it is conceivable that Congress' judgment in impeaching and removing Claiborne was that integrity is an indispensable criterion for someone to continue to function as a federal judge. Moreover, commission of tax evasion robs a federal judge of the moral authority required to oversee trials of others for the very same offense. In other words, a federal judge must have integrity beyond reproach in order to perform the functions of his or her office. While integrity is obviously important for a president (or, for that matter, any public official), it is not necessarily a sine qua non, especially given all the checks that exist for scrutinizing political officials' actions.

A similar argument could be used to explain the House's impeachment and the Senate's conviction of Walter Nixon in 1989. Nixon was impeached and removed for making false statements to a grand jury. In a criminal trial, he had been convicted of making false statements to a grand jury about the efforts he had undertaken to influence a criminal prosecution of the son of a business partner. Clearly, the misconduct alleged did not strictly relate to Nixon's formal actions as a federal judge (i.e., he was not necessarily functioning as a federal judge when talking with the prosecutor about dropping the case). Nevertheless, whatever influence he had available to exercise on behalf of his business partner's son existed by virtue of the federal judgeship he held. Moreover, making false statements to a grand jury impugns a judge's integrity at least as much if not more than tax evasion (which involves the making of false statements under oath in a different setting). Again, Congress could have reasonably concluded that questionable integrity robs a federal judge of the most important commodity he must have in order to perform his constitutional function.

It is, however, conceivable that the Congress' impeachment decisions regarding Claiborne, if not those involving Nixon, might be better explained or understood as reflecting not an extension of the paradigm but rather the possible existence of a second category of impeachment cases in which the nexus between an official's misconduct and his or her official duties is not so clear. This second category consists of those cases in which the misconduct in which an impeachable official has engaged is so outrageous that it is plainly incompatible with their status or renders them so ineffective that Congress has no choice but to impeach and remove those officials from office. Congress could have decided that the misconduct for which it was impeaching Claiborne as well as Nixon was sufficiently outrageous or destructive of their capacities to function effectively as federal judges as to justify their removals from office. There is little doubt that Congress' perception that each judge had engaged in such outrageous misconduct had been reinforced by the facts that prior to both judges' impeachments they had been criminally prosecuted and convicted and imprisoned.

The possible existence of this second category of impeachable offenses helps to explain one of the most vexing hypotheticals repeatedly raised involving the impeachment process - whether a president may be impeached and removed from office for murder. The nexus between the president's misconduct - murder - and his official duties (taking care to enforce the laws faithfully) is not readily apparent, for it is not clear that the President's oath obligates the President in his private capacity to comply with every single law, even those that he does not have the formal authority to enforce. Nevertheless, impeachment, in all likelihood, is appropriate. The best explanation why this is so was made by Professor Charles Black in his magnificent study of the impeachment process: "Many common crimes - willful murder, for example - though not subversive of government or political order, might be so serious as to make a president simply unviable as a national leader. I cannot think that a president who had committed murder could not be removed by impeachment. But the underlying reason remains much the same; such crimes would so stain a president as to make his continuance in office dangerous to public order."(54)

Conclusion



My sense of the history of the federal impeachment process, as reflected in the debates in the constitutional and state ratifying conventions and Congress' subsequent exercises of its impeachment authority, is that "other high crimes or misdemeanors" are technical terms of art that refer to so-called political crimes. Political crimes are abuses of power or the kinds of misconduct that can only be committed by some public officials by virtue of the public offices or special trust that they hold. These political crimes are not necessarily indictable offenses. Not all political crimes are indictable offenses, and not all indictable offenses are political crimes.

Whether or not some misconduct by a public official is a political crime or rises to the level of an impeachable offense turns on a number of different factors. These factors are apparent from studying Congress' impeachment decisions and practices; these factors include but are not limited to the seriousness of the misconduct, its timing, the link between the misconduct and the official's official responsibilities or special trust held by virtue of the positions held by the officials, alternative means of redress, and the degree of injury caused to the republic by the misconduct in question.

Studying Congress' impeachment decisions also reveals some noteworthy patterns. Most if not all impeachments made by the House and convictions made by the Senate have followed or approximated the paradigm of an impeachment -- the abuse of official power or privilege. The one or at most two impeachments that do not fit neatly into this first category -- those of Harry Claiborne and Walter Nixon -- might be explained either on the grounds of the special obligations of federal judges by virtue of their unique status and function or as signaling the possible existence of a second category of offenses consisting of the kinds of misconduct that are so outrageous that the officials who have committed them have been rendered completely ineffective and Congress has no choice but to impeach and remove those officials.



















1. U.S. Const., art. II, section 4.

2. Id.

3. Id., art. I, section 3, clause 6.

4. Id., art. I, section 3, clause 7.

5. Id., art. II, section 2, clause 1.

6. Id., art. II, section 4.

7. See generally Michael J. Gerhardt, The Constitutional Limits to Impeachment and its Alternatives, 68 Texas L. Rev. 1, 23 (1989).

8. See generally Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis 82-102 (1996).

9. James Wilson, Lectures on the Law, No. 11, Comparison of the Constitution of the United States with that of Great Britain, 1 The Works of James Wilson 408.

10. 2 Joseph Story, Commentaries on the Constitution of the United States, section 799, at 269-70 (rev. ed. 1991).

11. Charles E. Hughes, The Supreme Court of the United States 19 (1928).

12. Arthur J. Goldberg, The Question of Impeachment, 1 Hastings Const. L.Q. 5, 6 (1974).

13. Charles L. Black, Impeachment: A Handbook 35, 39-40 (1974).

14. Raoul Berger, Impeachment: The Constitutional Problems 58 (1974).

15. George T. Curtis, Constitutional History of the United States 260-61 (rev. ed. 1974).

16. See Arthur Bestor, Impeachment (reviewing Raoul Berger, Impeachment: The Constitutional Problems (1974)), 49 Wash. L. Rev. 255, 264-66 (1973).

17. Paul S. Fenton, The Scope of the Impeachment Power, 65 Nw. U. L. Rev. 719, 726 (1971).

18. Peter Hoffer & N.E.H. Hull, Impeachment in America, 1635-1805 101 (1984).

19. John Feerick, Impeaching Federal Judges: A Study of the Constitutional Provisions, 39 Fordham L. Rev. 1, 47-58 (1970).

20. John Labovitv, Presidential Impeachment 26-89, 108-31 (1978).

21. Id. at 61 (emphasis in original).

22. Id. at 59-61.

23. A. Bestor, supra note 16, at 264.

24. See id. at 264 (quoting 4 W. Blackstone, Commentaries on The Laws of England 75 (1765-69). 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.



Id.

25. Bestor, supra note 16, at 263-64 (citation omitted).

26. Id. at 265.

27. See id. at 266.

28. See R. Berger, supra note 14, at 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).

29. 4 The Debates in the Several States on the Adoption of the Federal Constitution 47 (J. Elliott ed. 1836) (A. MacLaine of South Carolina).

30. 2 The Debates in the Several States on the Adoption of the Federal Constitution 47 (J. Elliott ed. 1836)(S. Stillman of Massachusetts).

31. The Federalist No. 65 (A. Hamilton), The Federalist Papers, at 396 (C. Rossiter ed. 1961).

32. Id. at 398.

33. Id.

34. 1 James Wilson, Works, at 426 (G. McClaskey ed. 1967).

35. J. Story, Commentaries on the Constitution of the United States section 385, at 272-73 (R. Rotunda & J. Nowak eds. 1987).

36. Id. at 290.

37. Bestor, supra note 16, at 263 (quoting 2 J. Story, Commentaries on the Constitution 788, at 256 (Boston 1833)).

38. J. Story, supra note 35, section 405, at 288.

39. Id. at 287 (citations omitted).

40. These twelve include Senator William Blount (impeached in 1797 for engaging in a conspiracy to compromise the neutrality of the United States in disregard of the constitutional provisions for the conduct of foreign affairs and attempt to oust the President's lawful appointee as principal agent for Indian affairs, thereby intruding upon the President's supervision of the executive branch); Judge John Pickering (impeached in 1803 for making errors in conducting a trial in violation of his trust and duty and for "being a man of loose morals and intemperate habits" who appeared on the bench drunk and used profane language); Associate Justice Samuel Chase (impeached in 1804 for allowing his partisan views to influence his conduct of two trials and for delivering "an intemperate and inflammatory political harangue" to a grand jury and thus conducting himself "in a manner highly arbitrary, oppressive, and unjust"); Judge James Peck (impeached in 1826 for vindictive use of power in charging with contempt, imprisoning, and disbarring a lawyer who had publicly criticized one of his decisions); Judge West W. Humphreys (impeached in 1862 for neglect of duty because he had joined the Confederacy without resigning his position as a federal judge); President Andrew Johnson (impeached in 1868 for violating the Tenure in Office Act by removing a member of his cabinet, interfering with execution of that act, and making inflammatory speeches that subjected the Congress to ridicule); Judge Mark Delahay (impeached in 1876 for intoxication both on and off the federal bench); Judge George W. English (impeached in 1926 for using his office for personal monetary gain as well as for threatening to jail a local newspaper editor for printing a critical editorial and summoning local officials into court under pretext to harangue them); Judge Charles Swayne (impeached in 1903 for maliciously and unlawfully imprisoning two lawyers and a litigant for contempt and for using his office for personal monetary gain); Judge Robert Archbald (impeached in 1912 for direct and indirect personal monetary gain); Judge Harold Louderback (impeached in 1932 for direct and indirect personal monetary gain); and Judge Halsted Ritter (impeached in 1936 for direct and indirect personal monetary gain and for engaging in behavior that brought the judiciary into disrepute).

41. 2 Annals of Congress 319-22 (1804) [1804-1805].

42. Cong. Globe, 37th Cong., 2d Sess. 2949-50 (1862).

43. 48 Cong. Rec. 8910 (1912).

44. 80 Cong. Rec. 5606 (1936).

45. U.S. Const., art. III, section 3, clause 1.

46. 18 U.S.C. 201 (1982).

47. Laurence Tribe, American Constitutional Law 294 (ed. ed. 1988).

48. Id.

49. 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," U.S. Const. art. 1, 3, cl. 6; (2) at least two-thirds of the Senators present must favor conviction in order for the impeachment to be successful, see id.; 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. See id.



Two other safeguards are political in nature. 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 political motives to impeach and remove someone from office. Thus, these structural and political safeguards help to ensure that, as a practical matter, serious abuse of power and serious injury to the Republic are the prerequisites for Congress' finding impeachable offenses.



50. The Federalist No. 65 (A. Hamilton), supra note 31, at 365.

51. P. Hoffer & N.E.H. Hull, supra note 18, at 101.

52. These officials include the following: Senator William Blount (for engaging in conduct that not only undermined presidential authority and undermining the national government's relations with various Indian tributes but also acting in a manner "contrary to the duty of his trust, in violation of the obligations of neutrality, and against the laws of the United States, and the peace and interests thereof"); Judge John Pickering (for making errors in conducting a trial in violation of his duty and trust and engaging in behavior on the bench unbecoming of a federal judge); Associate Justice Samuel Chase (for conducting himself on the bench "in a manner highly arbitrary, oppressive, and unjust"); Judge West Humphreys (for neglect of duty); President Andrew Johnson (for violating the Tenure in Office Act and exercising his authority to interfere with the proper execution of the law); Judge Mark Delahay (for intoxication both on and off the bench); Secretary of War Belknap (for receiving an illegal payment in exchange for making a military appointment); Judge George English (for using his office for personal monetary gain); Judge James Peck (for vindictive use of power); Judge Charles Swayne (for exercising his power maliciously and using his office for personal monetary gain); Secretary of War William Belknap (for receiving illegal payments in exchange for making an appointment); Judge Robert Archbald (for using his office for improper financial gain); Judge Harold Louderback (for using his office for improper financial gain); Judge Halsted Ritter (for engaging in behavior that brought disrepute to the judiciary); Harry Claiborne (for income tax evasion); Alcee Hastings (for bribery); and Walter Nixon (for making false statements to a grand jury). All seven convictions and removals made by the Senate have involved abuses of power and serious breaches of the public trust: Judge John Pickering (for drunkenness and senility); Judge Humphreys (for neglect of duty); Judge Archbald (for bribery); Judge Ritter (for engaging in misbehavior that brought the judiciary into disrepute); Judge Claiborne (tax evasion); Judge Hastings (conspiracy to solicit a bribe); and Judge Nixon (for making false statements to a grand jury).

53. See supra notes 41-44 and accompanying text.

54. C. Black, supra note 13, at 39. It is noteworthy that Justice Story was uncertain about whether murder was an impeachable offense. He was not sure about the validity of William Rawle's assertion that the "legitimate causes of impeachment . . . have reference only to public character, and official duty. . . . In general, those offences, which may be committed equally by a private citizen, as a public officer, are not the subjects of impeachment. Murder, burglary, robbery, and indeed all offences not immediately connected with office [except treason and bribery] are left to the ordinary course of judicial proceeding." J. Story, supra note 35, section 799, at 269-70 (quoting William Rawle, A View of the Constitution of the United States of America 215 (2d. ed. 1829)). In other words, at least for Rawle, the impeachment process could only properly focus on those acts committed or performed by a president strictly in "his public character." 2 Jonathan Elliott, The Debate in the Several State Conventions on the Adoption of the Federal Constitution 480 (rev. ed. 1987) (quoting from remarks of James Wilson in Pennsylvania ratifying convention). That the distinction recognized by Justice Story between the public acts that provide appropriate bases for impeachment and the private conduct that does not is accepted by most impeachment scholars. The critical question has to do with what is the appropriate dividing line between the two. Congress tends to answer this question on a case-by-case basis. Even so, this distinction does help to explain further why the House Judiciary Committee decided not to charge Richard Nixon with income tax fraud, why the House decided not to approve an impeachment inquiry of Justice William O. Douglas based on his lifestyle or multiple marriages, and why Alexander Hamilton was never subjected to impeachment for having engaged (by his own admission) in an adulterous affair with a married woman (whose husband then blackmailed Hamilton to keep the liaison secret.). The fact that Harry Claiborne and Walter Nixon each were charged with impeachment for seemingly private actions turns on appreciating that integrity is indispensable for the performance of a judge's constitutional responsibilities.