Impeachment

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IMPEACHMENT

The English Parliament devised impeachment for the removal of ministers of the Crown, the House of Commons serving as prosecutor of charges that the House of Lords adjudged. This, alexander hamilton wrote, was the "model" of the American proceeding—the house of representatives files and prosecutes charges and the senate is the trial tribunal. The Framers of the Constitution also adopted the English grounds for removal, " treason, bribery, or other high crimes and misdemeanors." They defined "treason" narrowly; "bribery" was a common law term of familiar meaning; but the scope of "other high crimes and misdemeanors" remains a subject of continuing debate. Some would confine those terms to indictable crimes. At the other pole, Congressman gerald ford, in proposing the impeachment of Justice william o. douglas in 1970, asserted that an impeachable offense is whatever the House, with the concurrence of the Senate, "considers [it] to be." The historical facts indicate, however, that an impeachable offense need not be indictable, but that such offenses have their limits, for which we must look to the English practice the terms expressed.

Advocates of the indictable crime interpretation point to the criminal terminology, for example, "high crimes and misdemeanors." Article III, section 2, of the Constitution provides, "The trial of all Crimes, except in cases of Impeachment, shall be by Jury"; Article II, section 2, confers a power to grant pardons "except in Cases of Impeachment," and pardons relieve from punishment for a crime. In England the House of Lords combined removal and punishment in the impeachment proceeding. But Article I, section 3, clause 7, made an important departure: "Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any [federal] office … but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law." The separation of removal from criminal prosecution meant that political passions could no longer sweep an accused to his death, but that he would be tried by a jury of his peers.

In the North Carolina Ratification Convention, james iredell explained that if the President "commits any misdemeanor in office, he is impeachable, removable from office.… If he commits any crime, he is punishable by the laws of his country," distinguishing an impeachable "misdemeanor" (which has a common law connotation of misconduct in office) from an indictable crime. Hamilton likewise distinguished between "removal from office" and "actual punishment in cases which admit of it," indicating that some impeachable offenses were not criminal. As will appear, some impeachable offenses were not and still are not punishable crimes; nor does the absence of fine and imprisonment, the customary criminal sanctions, comport with the view that impeachment is a criminal proceeding. The doctrine of double jeopardy also conduces to this conclusion. Although double jeopardy at the framing of the Constitution referred to jeopardy of life, as the Fifth Amendment attests, Congress speedily made treason punishable by death. Impeachment for treason could not, therefore, be regarded as criminal without raising a bar to indictment. Such thinking was carried over to all impeachments by james wilson : because they "are founded on different principles … directed to different objects … the trial and punishment of an offense on impeachment, is no bar to a trial of the same offense at common law." Justice joseph story deduced from the separation between removal and indictment that "a second trial for the same offense" would not be barred by double jeopardy. Thus double jeopardy requires impeachment to be read in noncriminal terms.

The Sixth Amendment furnishes further confirmation. Earlier Article III, section 2, clause 3, expressly exempted impeachment from the "Trial of all Crimes" by jury. With that exemption before them, the draftsmen of the Sixth Amendment required trial by jury in "all criminal prosecutions," thereby canceling the former exception. Since the later Amendment controls, it must be concluded either that the Founders felt no need to exempt impeachment from the Sixth Amendment because they did not consider it a "criminal prosecution" or that jury trial is required if impeachment be in fact a "criminal" prosecution. The latter conclusion is inadmissible. Perhaps the use of criminal terminology is attributable to the fact that words like "offenses," "convict," and "high crimes" had been employed in the English impeachments, and the Framers, engaged in hammering out a charter of government that required major political compromises, could not pause to coin a fresh and different vocabulary for every detail.

Treason and bribery, in contradistinction to crimes against the individual such as murder and robbery, are crimes against the State—political crimes. James Wilson, a chief architect of the Constitution, observed that "impeachments are confined to political characters, to political crimes and misdemeanors." And Justice Story added that they are designed "to secure the state against gross official misdemeanors." By association with "treason, bribery," the phrase "other high crimes and misdemeanors" likewise may be deemed to refer to "political" offenses. "High crimes and misdemeanors" meant "and high misdemeanors," not as a matter of grammatical construction but of historical usage. "High misdemeanors" are first met in a 1386 impeachment, long before there was such a crime as a "misdemeanor." At that time felonies were coupled with trespasses, private as distinguished from political offenses. It was not until well into the sixteenth century that "misdemeanors" replaced "trespasses" in the general criminal law; and in England "high misdemeanors" remained a term peculiar to impeachment and did not find its way into ordinary criminal law, as is true of American law but for a very few statutory "high misdemeanors." Explaining "high misdemeanors," Sir william blackstone stated that the "first and principal is the mal-administration of such high officers as are in the public trust and employment. This is usually punished by the method of parliamentary impeachment," which proceeded not under the common law but under the lex parliamentaria, the "laws and course of parliament."

Though this arguably left Parliament free to fashion political offenses ad hoc, the Framers took a more restricted view. English impeachments proceeded largely for neglect of duty, abuse of power, betrayal of trust, corruption; and early state constitutions likewise provided for removal for misconduct in office, maladministration, corruption. In the Convention there were proposals for removal upon malpractice, neglect of duty, betrayal of trust, corruption, malversation (misconduct in office). Throughout, the focus was on machinery for removal rather than punishment for misconduct. When the impeachment provision came to the floor of the Convention, it employed "treason or bribery." george mason protested that the narrow definition of treason would not reach "many great and dangerous offenses," among them "attempts to subvert the Constitution," which lay at the root of the leading English precedent. He therefore suggested the addition of "maladministration," but Madison objected that "so vague a term will be equivalent to a tenure during the pleasure of the Senate," whereupon Mason substituted "other high crimes and misdemeanors." Some two weeks earlier rufus king had identified treason "agst. particular States" as "high misdemeanors"; a week before, "high misdemeanor" had been replaced in the extradition provision because it had "a technical meaning too limited." These facts show, first, that "other high crimes and misdemeanors" referred to "high misdemeanors," and second, that the terms were chosen precisely because they were "limited and technical" and would not leave the accused at the "pleasure of the Senate." As with other common law terms employed by the Framers, they expected them to have the meaning ascribed to them under English practice.

Justice Story stated that for the meaning of "high crimes and misdemeanors" resort must be had "to parliamentary practice" or "the whole subject must be left to the arbitrary discretion of the Senate," a "despotism" "incompatible" with "the genius of our institutions," and, it may be added, with the legislative history of the provision. Were impeachment restricted to common law crimes it would founder because there are no federal common law crimes; all federal crimes are creatures of statute. Early on Congress enacted statutes that made treason and bribery crimes; a few statutes made certain minor acts criminal "high misdemeanors." But no statute declared "abuse of power," "neglect of duty," or "subversion of the Constitution" to be criminal, yet the Founders unquestionably regarded these as impeachable offenses. Except for treason and bribery, the "silence of the statute book," said Story, would render the power of impeachment "a complete nullity" and enable the most serious offender to escape removal. It is preferable to regard such silence as a continuing construction by Congress that its impeachment powers are not dependent on a statutory proscription and definition of impeachable offenses, particularly because most of its impeachment proceedings have involved nonindictable offenses. In extrajudicial statements, Chief Justice william howard taft and Justice charles evans hughes recognized that such offenses were embraced by "high crimes and misdemeanors."

Another much debated issue is whether impeachment constitutes the sole means for removal of judges. Long before there was mention of impeachment of Justices in the Convention, it conditioned judicial tenure on " good behavior." This wording was not, as has been urged, "used simply to describe a life term," but a technical phrase of established meaning: "as long as he shall behave himself well." Hamilton noted that "good behavior tenure" was a "defeasible tenure," copied from the British model. At common law an appointment conditioned on "good behavior" was forfeited on nonperformance of the condition, that is, it terminated on misbehavior. Given a lapse from "good behavior," william murray (Lord Mansfield) observed, there must be power to remove the officer lest the formula be impotent. The remedy, Blackstone wrote, was by writ of scire facias determinable by the judiciary. Attempts by the Crown to remove a couple of high court judges who enjoyed "good behavior" tenure, Sir John Walter, Chief Baron of the Exchequer, and Sir John Archer, a Justice of Common Pleas, met insistence on removal by scire facias. This view was endorsed by Chief Justice Holt, Lord Chancellor Erskine, the future Lord Justice Denman, William Holdsworth, and charles mcilwain. When the Framers employed a common law term, they expected it would be given its accepted meaning, as is shown by their redefinition of treason to avoid historic excesses, by john dickinson's caution that if ex post facto were to be expanded beyond the Blackstonian association with criminal cases it "would require some further provision," and by assurances in the Virginia Ratification Convention that reference to "trial by jury" included all its attributes, including the right to challenge jurors.

The Framers conceived impeachment as a remedy for misconduct by the President, and throughout the Convention such was its almost exclusive focus. Hamilton explained that "the true light in which it ought to be regarded" is as "a bridle in the hands of the legislative body upon the executive servants of the government." Consequently the Framers placed the provision for impeachment of the President in Article II, the Executive article. Almost at the last minute they amplified it by the addition of the "Vice President, and all civil officers," suggesting it was to apply to officers of the Executive department. The interpretive canon that each provision of an instrument should, if possible, be given effect counsels recognition of judicial removal for breaches of "good behavior," particularly because the standards of "high crimes and misdemeanors" differ from those of "good behavior," so that to insist that impeachment is the sole means for removal of judges is to leave some judicial "misbehavior" beyond remedy.

A number of utterances may seem to require the exclusivity of impeachment; for example, Hamilton stated in the federalist #79 that impeachment "is the only provision" for removal of judges found in the Constitution and "consistent with the necessary independence of judges." Yet he had said in The Federalist #78 that "the standard of good behavior" is an "excellent barrier … to the encroachments and oppression of the representative body"; independence from Congress, not from judges, was the aim. Hamilton recognized that the "standard of good behavior" created a "defeasible tenure," a tenure terminated by breach of "good behavior." So too, the debate in the First Congress respecting the President's power to remove his subordinates contains tangential references to the protection from removal (chiefly by the President) that "good behavior" tenure afforded judges. Removal of his subordinates by the President made a breach in the "exclusivity" of impeachment, notwithstanding the fact that they squarely fit within "all civil officers" of Article II. It is easier to recognize an "exception" from exclusivity for the forfeiture that was an established concomitant of "good behavior," thus giving effect to that separate provision, than to make an exception for Executive subordinates.

What the First Congress did do with respect to judges further undermines reliance upon such dicta. By the Act of 1790 it provided that upon conviction in court for bribery a judge shall "forever be disqualified to hold an office." Since the impeachment clause provides both for removal and disqualification upon impeachment and conviction, the Act represents a construction that the clause does not exclude other means of disqualification. As with "disqualification," so with "removal," for the two stand on a par in the impeachment clause. The action of the First Congress, whose constitutional constructions carry great weight, when it dealt with judges thus speaks against reliance upon passing remarks in a debate that did not involve their removal. The several remarks, moreover, do not meet the test laid down by Chief Justice john marshall, showing that had "this particular case been suggested"—that is, judicial removal of judges for "misbehavior"—"the language would have been so varied as to exclude it." Well aware of the perils posed to judges by "the gusts of faction which might prevail" in Congress, the Founders were little likely to jettison the time-honored nonpolitical removal trial of judges by the courts in favor of a factional proceeding in Congress. Impeachment could be reserved for the grave situation in which the judiciary neglects to cleanse its own house, exactly as impeachment remains available for removal of a wrong-doing subordinate or "favorite" whom the President fails to remove.

james bryce observed that impeachment is so heavy a "piece of artillery" as to "be unfit for ordinary use." The Founders repeatedly stressed that impeachment was meant only for "great injuries"; like Solicitor General, later Lord Chancellor Somers, they were aware that "impeachment ought to be like Goliath's sword, kept in the temple, and used but on great occasions." Hamilton too referred in The Federalist #70 to the "awful discretion" of the impeachment tribunal to doom "to infamy the … most distinguished characters of the community." Such views do not square with the insistence that the wheels of the nation must grind to a halt so that Congress can oust a venal district judge. Congress is in fact reluctant to undertake the ouster of such judges even, said Senator William McAdoo, "in cases of flagrant misconduct," because an impeachment proceeding draws the Congress away for weeks from weightier tasks. That situation, he stated, constitutes "a standing invitation for judges to abuse their authority with impunity and without fear of removal." To insist that impeachment is the sole means of removal of judges is in practical effect to immunize grave misconduct. In the almost two hundred years since adoption of the Constitution hundreds of complaints have resulted in fiftyfive investigations, followed in some cases by censure or resignation. But only nine judges have been impeached and only four convicted and removed.

Some regard the acquittal of Justice samuel p. chase in 1805 as a triumph of justice over heated political partisanship. Others view his impeachment as a natural reaction to the gross partisanship of the Federalist judiciary, given to intemperate attacks upon the Republican opposition in harangues to the grand jury, which might be regarded as an "abuse of power" for political ends. Of Chase's trial of James Callender for alleged violations of the alien and seditions acts, edward s. corwin, said that Chase came to the case "with the evident disposition to play the hanging judge," and there is evidence that he prejudged the case. Callendar was entitled under the canons of his time to a trial free of "the tyrannical partiality of judges," and Chase was under statutory oath to administer justice impartially. Most students of the era consider that conviction failed of a two-thirds vote because the inept, acid-tongued manager of the impeachment, john randolph, had alienated many Republicans as well as Federalists.

The cause célèbre is the impeachment of President andrew johnson in 1868, essentially, as Justice samuel f. miller foresaw, "for standing in the way of certain political purposes of the majority in Congress," but ostensibly for discharging his secretary of war, edwin m. stanton, whom Congress had attempted to rivet in place by the tenure of office act. Critics of Johnson have noted Stanton's "defective loyalty," his conferences with Republican leaders behind Johnson's back respecting measures that divided Congress from the President. Finally Johnson removed him, presenting the issue whether a President who considered a statute to be an unconstitutional invasion of his prerogative to remove a disloyal subordinate—Stanton himself had advised Johnson that the statute was unconstitutional—and who felt that it was his constitutional duty to exercise his independent judgment, was impeachable. Such differences were contemplated as part of the checks and balances of the Constitution.

The tone of the proceedings was sounded in benjamin butler's opening statement: "You are bound by no law," "you are a law unto yourselves." thaddeus stevens asserted that Johnson was "standing at bay, surrounded by a cordon of living men, each with the ax of an executioner uplifted for his just punishment." Stevens dared the Senators who had voted for the Tenure of Office Act four times now to vote for acquittal "on the ground of its un-constitutionality, " condemning backsliders to the "gibbet of everlasting obloquy." Senator charles sumner dismissed "the quibbles of lawyers" in a trial that "is a battle with slavery." One of the impeachment articles charged that on his "Swing Around the Circle" before the 1866 elections, Johnson attempted to bring Congress into ridicule, disgrace, and contempt. But as Senator John Sherman pointed out, members of Congress themselves had resorted to grossly abusive epithets, so that Johnson was not to be blamed for responding in kind. freedom of speech, Senator James Patterson cautioned, was not solely for Congress. Current revulsion against Johnson does not overcome the verdict of Samuel Eliot Morison and Eric McKitrick that the impeachment was a "disgraceful episode," "a great act of ill-directed passion." Johnson's conviction failed by one vote. Whatever his faults, Johnson was entitled to a fair trial, and that, the record amply discloses, was denied to him. Had Johnson been convicted, a revisionist historian wrote, it would have established a precedent "for the removal of any President refusing persistently to cooperate with Congress."

The failure of that impeachment led another revisionist historian to prophesy in 1973 that impeachment would never again be employed to remove a President. Shortly thereafter the House Judiciary Committee instituted an investigation whether President richard m. nixon participated in the watergate conspiracy to obstruct justice. Once more the proceedings evidenced that impeachments are swayed by political affiliations; with a few notable exceptions, a Republican phalanx opposed impeachment until the judicially compelled disclosure of the "White House tapes" revealed that Nixon was a participant in the conspiracy. When he learned as a result of that disclosure that he could not count on more than ten votes in the Senate, he resigned from the presidency. In accepting a pardon from his successor, President gerald ford stated, he acknowledged his guilt. Fortunate it was for America that the Founders provided "Goliath's sword" for "great occasions."

Raoul Berger
(1986)