Washington Post New York Times

date

page

-col Top Right

By Ruth Marcus

This business of removing Judges by impeachment is a bung!ing way," Thomas Jefferson wrote in 1804, during proceedings against New Hampshire District Court Judge John Pickering, the first federal judge to be impeached by the House and convicted by the Senate of "high crimes and misdemeanors

Bungling or not, Congress is now contranted with the distinctly unwelcome prospect of struggling through two arultaneous audicial peachment proceedings: U.S. District Court Judges Akcee L Hastings of Miami and Walter L Naon Jr of Bale Mo

Hastings, named by President Jimmy Carter to become Florida's first black federal judge, was ac quitted in 1983 of conspiring with William A. Borders Jr.. then a Washington Lawyer, to solicit a $150,000 bribe from two defendants in a case before him in return for imposing a lighter sentence and returning some forfeited property to them.

But a panel of his fellow judges concluded after a 3-year investigation that Hastings not only engaged in the bribery conspiracy but also bed repeatedly about it when he testified at trial.

The mater was referred to the House Judiciary Committee, which conducted a yearlong investigatin It reach smlar conclusions and added a charge that Hastings in 1985 leaked confidential wiretap formation

The House voted 413 to 3 last year to impeach Hastings on 17 articles The judge has continued bearing crvil cases since his impeachment.

Following an extraordinary personal plea by Hastings on the SenHe floor, the Senate voted 92 to 1 last month to reject his request to quash the articles, Hastings, asserting that I have not committed a crime." argued that the unprece dented impeachment of a federal judge for crimes of which he was acquitted constitutes "double jeogandy

A 12-memoer mmittee, with Sen. Jeff Bingaman (D-NM) serving as chairman and Sen. Arlen Specter (R-Pats vice chairman, is now preparing to hear the case. The endeavor, which essentially replicates the proceedings of a criminal trial, could take 12 weeks. Rep. John W. Bryant (D-Tex.) will serve as the lead prosecutor

Meanwhile, following a vearlong investigation, a House Judiciary subcommittee voted unanimously last month to recommend three articles of impeachment against Nixon, who was convicted in 1986 of two counts of perjury The full committee is to consider the matter this month.

Currently serving a five-year sentence, Nixon was found guilty of lying to a federal grand jury that investigated his oil and gas investments with a wealthy Mississipp businessman, Wiley Fairchild, and his involvement in a drug-smuggl ing case against Fairchild's son, Drew

Nixon, who was acquitted of accepting an illegal gratuity from Fairchild and of a third perjury count, has continued to proclaim that he is not guilty and to argue that the case against him was based on false testimony procured by prosecutorial abuses. But a federal appeals court upheld the conviction, and a federal judge in December rejected Nixon's motion to overturn the conviction on the grounds that Fairchild lied at trial and that prosecutors engaged in misconduct.

The House subcommittee's investigation, said Chairman Don Edwards (D-Calif.), found "compelling evidence that Judge Nixon engaged in conduct that not only taints his high office, but is also criminal."

Nixon, Appointed by President Lyndon 3. johnson in 1968, is only the second federal judge in history to be convicted of a crime and imprisoned while holding office. His lawyer, David O. Stewart, said the judge, who will be eligible for parole in November and has received nearly $300,000 in salary since his conviction, intends to resume the bench after being released-"if he

can."

those, five-all judges-have been convicted by the Senate and removed from office.

But the need to grapple with three impeachments in three years has focused the attention of some legislators on what they view as shortcomings in the cumbersome, time-consuming process, which they argue is unsuited to the modern Congress and unfair to those subjected to it.

Senate floor proceedings on Claiborne, for example, took more time than any other issue considered by the 98th Congress, including national defense and the budget, according to then-Sen. Majority Leader Robert J. Dole (R-Kan.).

"In accordance with due process standards of courts and trials, I

Lying to a grand jury about his investment with local businessman Wiley Fairchild and the handling of a drug-smuggling case against Fairchild's son Drew when he denied that the local prosecutor discussed the Drew Fairchild case with him

Lying to the grand jury when he denied having anything to do with the Drew Fairchild case.

Having raised substantial doubt as to his judicial integrity." "betrayed the trust" of the American people and "disobeyed the laws of the United States by his untruthful testimony

don't think it's workable, mainly because senators don't have time and will not take time to act as jurors," said Sen. Howell Heflin (DAla.), who has proposed a constitutional amendment to replace the current system with a separate two-tier agency, similar to that employed by many states, to consider and then try impeachment cases.

"When there were 37 federal judges and a small Senate composed of some 26 senators, it lent itself to this process. Now, with over 700 federal judges and 100 members of the Senate, it doesn't work," said Rep. Gerald D. Kleczka (D-Wis.). who plans soon to introduce another constitutional amendment that essentially would transfer the m

peachment function to the peer sys

THE WASHINGTON POLT

tem already in place for meting ou discipline short of removal from office.

intro

Rep. Robert W. Kastenmeier (DWis.), who handled the Claiborne impeachment, last month duced legislation that would set up a commission to study the unpeachment process and recommend any needed changes.

But not all who have bungle their way through impeachment believe that change would be wise. "It's a good process. It takes a while, and it should," Edwards said. "Life tenure is one of our most im portant safeguards. I want to make it impeachment] as our founders had in mind--very diff cult"

Editor's Note: The impeachment trial of Judge Alcee Hastings has once again triggered debate about the federal judicial impeachment process. Proponents of changing the system point to the costs involved, the demands on senators' time and the fairness of a "streamlined" process like that used in the trial of Judge Harry Claiborne in 1986. Opponents of change argue that since the process is used so seldom (11 impeachments, five convictions in 200 years), there is no need for change. They also argue that impeachment is the only constitutionally allowable method of removing federal judges.

A panel of scholars and judges examined some of the questions surrounding the federal judicial impeachment process during the mid-year meeting of AJS on February 4 in Denver. They looked at the history of impeachment and how the Framers intended the process to work, how the process has worked in the past, and arguments for and against change. An edited transcript of their remarks appears below.

Professor Victor Rosenblum: This morning we address what some have referred to as the ultimate constitutional instrument of accountability-the instrument of impeachment. In doing so, we are certainly aware that, not surprisingly, there are diverse views held by credible experts on the adequacies and the failures of the Constitution's directions, intentions, conventions and pru

dential dimensions as they have borne upon the practices of the House of Representatives, of the Senate and, indeed, of the Judicial Conference in the implementation of the requirements and the needs of the impeachment system. Our focus this morning is on Article III judges, judges who hold their offices during good behavior. They are deemed part of the "all civil officers of the

Judge, U.S. District Court for Colorado Honorable Diana E, Murphy, U.S. Dis aria Court for Minnesota; Professor Ron ald D. Rotunda, University of Illinois College of Law.

United States" who, according to Article II, along with the President and Vice President, "shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors."

Professor Ronald Rotunda: For years, questions regarding impeachment of federal judges were purely of academic interest; unfortunately, times have changed. Perhaps given the sharp increase in the number of judges, we shouldn't be surprised at the change. In the last four years there have been criminal trials of three federal judges. In our whole history, there have only been four such trials! And all four occurred in the last 20 years. The 1971 indictment of Seventh

Circuit Judge Otto Kerner was the first. He resigned after he was convicted of conduct occurring prior to the time he became a judge. But, more recently, the judges have refused to resign. In 1983, Judge Alcee L. Hastings of the District Court for the Southern District of Florida was acquitted of criminal charges that he had solicited a bribe in a pending case. The lawyer who was accused of offering the bribe was convicted in a separate trial. In 1984, Judge Harry E. Claiborne, convicted for income tax evasion, was sentenced to two years imprisonment. In 1986, Judge Walter Nixon in Mississippi was convicted of perjury and sentenced to five years imprisonment.

The general public, I think we can all agree, want judges to be treated fairly, but they also want to be assured that the judges, like all the rest of us, aren't above the law. And, there has been some concern that cases involving prominent lawyers and judges are treated differently than other people. This public perception may have some basis in fact After Judge Claiborne was released from custody, after serving a seven-month sentence, the Nevada Supreme Court authorized him to practice law again. The state supreme court ignored its own rules by failing to suspend Claiborne after the felony conviction. They bypassed the state bar disciplinary panel, and they took sole jurisdiction of the pending case. The Nevada discipline authorities said they received no notice that witnesses were to be called and, therefore, no witnesses were called to testify against Judge Claiborne. Thirteen witnesses who were notified did testify in his favor. The Nevada Chief Justice did not recuse himself from this hearing, although he, himself, had earlier testified in favor of Claiborne in his first criminal trial and had called another witness to testify in favor of Claiborne at the Nevada Supreme Court hearing. Three of the four Nevada justices, in a rare interview, said that Claiborne had been treated "differently from other lawyers" because they thought he had suffered enough.

What happened to Judge Claiborne after impeachment is of interest, but what's really more important, I think, is what happens to future Judge Claibornes who may be subjected to impeachment. Some academics and members of Con

gress, Senator Heflin, for example, have expressed dissatisfaction with the present system; they think it's unworkable. I think that the present system has within it the degree of flexibility to make it work in a modern era and still guarantee the independence of federal judges-one of America's unique contributions to individual rights.

The actual grounds for impeachment are found in Article II. It says, "The President, Vice President, and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery, and other high crimes and misdemeanors." Sometimes it is suggested that judges could be impeached under a looser standard than the President or other officers because it says in Article III, "The judges shall hold their office during good behavior." I don't think that's correct, and I think a closer reading of the Constitution demonstrates other wise. What the Constitution is really saying, I think, is that if you look at Article I, it tells you the terms for senators and representatives-six years and two years. You go to Article II, it's the term for the President-four years. And then you go to Article III and it's the term for judges and the term is unlimited, that is, it is for good behavior. The Constitution says that different officers have different terms; judges are unfixed, all the others are fixed. For all the officers, however, they can only be removed for conviction of "treason, bribery, and other high crimes and misdemeanors."

Impeachable offenses

There is no historical evidence that the Framers had any desire to compromise the independence of federal judges by making it easier to remove them. Indeed, the historical evidence is to the contrary. They wanted to make sure that our judges were independent. Now, mustn't an impeachable offense be an indictable crime? This is not only of academic interest, but it relates to the whole question of judicial review. That is, if an impeachable offense need not be an indictable crime, the opportunity for judicial review is curtailed. Treason and bribery are specifically mentioned as constituting impeachable offenses. They are, of course, criminal acts if relevant statutes so provide (for we have no com

Professor Ronald D. Rotunda.

mon law crimes at the federal level), and if the elements of the statutory offense are met. Must the other high crimes and misdemeanors be limited to criminal acts? If impeachment is limited to criminal acts, to which law does the Constitution refer? Does it refer to state criminal law? Federal criminal statutory law? Common law? All three?

If Congress must refer to a statute enacted by the states, then Congress would not have the sole power of impeachment, but it is quite clear in the Constitution that the House has the sole power of impeachment; the Senate has the sole power of removal. If Congress must refer to a federal statute, again, Congress wouldn't have the sole power of impeachment because we don't get these statutes unless the President signs a statute into law. What if the criminal statute were enacted over a presidential veto? But even then it would mean that the House would not have the sole power of impeachment because it would have to refer to a law concurred in by the Senate.

During the Constitutional Convention, Madison told the delegates that high crimes and misdemeanors included attempts to subvert the Constitution and other dangerous, nonstatutory offenses. In the Federalist Papers, Hamilton elaborated. He said, "The subject of the Senate's jurisdiction in an impeachment trial are those offenses which precede from the misconduct of public men. Or, in other words, from the abuses or violation of some public trust. They are of a nature which may, with peculiar propri

ety, be denominated Political (a word he capitalizes] as they relate chiefly to injur ies done immediately to society itself." Hamilton added that it would be unwise to submit the impeachment decision to courts because of the nature of the proceedings. The impeachment court cannot be "tied down by strict rules," he said, "either in the delineation of the offense, by the prosecutors (that is, the House of Representatives], or in the construction of it by the judges [that is, the Senate]."

Senator Heflin has argued that impeachment doesn't work well in modern times because the Senate, as well as the House, has gotten a lot bigger. (Editor's note: for Senator Heflin's views on the impeachment process, see "The impeachment process: modernizing an archaic system," Judicature, August-September 1987, page 123.) Yet Hamilton thought that the larger body was more protection. It would make it more difficult, he said, to have political intrigue. He also said that the impeachment body must make nonstatutory political judgments. That is, did the subject of the impeachment abuse the powers vested in him, or did the subject subvert the Constitution or engage in great offenses? He further said it is safer to have this large political body make these political, discretionary judg ments. He said the Supreme Court or any other court would not have the expertise in such matters.

The fact that our Constitution, for all practical purposes, leaves the definition of an impeachable offense to the House and Senate does not mean that each house has carte blanche and can exercise arbitrary power. It should not mean that an impeachable offense has no limit. The Texas Supreme Court, in a case involving a state impeachment, said, "There is a vast difference between arbitrary power and final authority." "This Court," it said, "in most cases has final authority, but it has and can exercise no arbitrary power." "So the Senate, sitting as a court of impeachment, has-and, in the nature of things, should have-final authority, but it, too, is lacking in arbitrary power.

If the House and Senate are the final judges of impeachment, that doesn't mean that anything goes. It means they should have an awful responsibilitythat the buck stops there-and that the senators and representatives should be

very sure of what they are doing. The Constitution does create some built-in safeguards. For example, unlike the prac tice in Great Britain, when senators sit as a court of impeachment, they must be on oath or affirmation; there must be a super majority, that is, two-thirds of the senators present must vote for impeachment.

A political act

Even if the nuances of criminal law don't define the impeachment power, the sena tors and representatives have to realize the act of impeachment is a serious political act and our representatives in Congress should only participate if they are really satisfied the office holder has committed serious offenses which indicate that he or she should no longer be permitted to hold office. The fact that the House or Senate may be able to abuse the power should caution them even further when they exercise it. We have had very few impeachments in our history and that's a sign of strength, not weakness. It should be difficult to impeach.

For these reasons, most commentators have usually concluded that any impeachment proceeding is a political question. The language of the Constitution certainly suggests that. Article I says the House shall have "sole power of impeachment." The Senate has the sole power to try impeachments. The choice of the language was no accident; there was, I think, an explicit decision of the Convention that drafted our Constitution to exclude any role for the courts, other than providing that one judge, the chief justice, presides at the trial of the President.

It is not only that there appears to be a textually demonstrable commitment, but also a lot of the issues involving impeachment don't appear to be judicially discoverable. That is, the House has to decide that there is an impeachable offense. The Senate's decision to remove can only happen when the Senate agrees with the House definition. It would seem, then, that there is a lack of judicially discoverable and manageable standards for resolving this issue.

I think we can imagine cases, particularly in the procedural context, where there appears to be judicially discoverable standards of review. For example: What if the senators tried an impeachment case and refused to do so on oath or affirmation, as the Constitution re

quires? Maybe there might be a role for the courts there, though my own view is that if the country is in such a sad state of affairs that the entire Senate is willing and able and anxious to ignore a clear constitutional requirement it's probably too late for the courts to save us.

One of the important effects of the Constitution giving the House and Senate the sole power regarding impeachment is that Congress cannot then avoid responsibility by trying to shift the ultimate responsibility or blame to the judicial branch.

The Federalist Papers, which recog nized and defended the concept of judicial review, rejected any role for the courts in impeachment cases. Joseph Story did as well. I think that judicial review would be particularly ill-advised. The Framers did not want Article III judges to prevent Congress from remov ing a corrupt Article III judge. If they had wanted that, they would have given Article III judges a power of impeachment, and they specifically thought about that and rejected it. They wanted an outside check on corruption.

All this, I don't think, precludes Article III judges from having any role. For example, Congress could authorize a panel of judges to censure an Article III judge. That doesn't preclude or interfere with Congress' acting. If the panel of Article III judges are given the power to take away the caseload of an Article III judge, I don't think that would preempt or interfere with any congressional pow er. We wouldn't expect Article III judges to respond to political pressure when deciding whether or not to take away the caseload of another Article III judge who, for one reason or another, should not be handling it. There may be mental or physical problems, there may be other reasons. However, I don't think Congress could authorize any panel of Article III judges to take away another Article III judge's tenure and salary protection. That is, even if a court removes an Article III judge's caseload, only Congress can impeach or remove the judge. Only Congress (by impeachment) should be able to take away the tenure and salary protections.

In short, I think impeachment is a serious political act and an important safety valve in our Constitution. Courts have a very limited role to play, but that

role should not be an invitation for the national legislature to accept partisan temptations. The fact that the House and Senate have the final responsibilitythat the buck stops there-and that any appeals lie to the press, to the public, to history, but not to the courts, should encourage the legislators to rise above the politics of the moment. It is a serious political act. We don't want impeachments in this country to be normal. We'd like them to be unusual.

Michael Davidson: The Office of Senate Legal Counsel was created as part of the Ethics in Government Act of 1978. It was originally intended to be an office of Congressional Legal Counsel, but the House was reluctant to establish a joint office. A significant aspect of our work is to represent the Senate in separation-ofpowers controversies with the executive branch. A large part of what we try and do is to present, in perhaps greater depth than parties who are dealing with a great variety of issues, the history of the Congress' consideration of the various mechanisms which it has created in recent years to moderate differences between the branches. In addition, we undertake special assignments of an investigatory nature. For example, I counseled the committee that received evidence in Judge Claiborne's impeachment.

The Senate is now in the process of organizing the Hastings impeachment. The articles came to the Senate in August 1988. The first important decision that the Senate needed to make was whether it should proceed on the timetable that it had followed in the Claiborne impeachment. There was a strong impetus in the Claiborne matter to complete that proceeding prior to the adjournment of that Congress, but a very different decision was made with the Hastings impeachment. It was determined to be simply wrong to try and deal with a matter as complex as that within the remaining months of the last Congress. So, the Senate Committee on Rules and Administration reported to the Senate, and the Senate agreed, that the Senate had authority to continue an impeachment from one Congress to another.

Perhaps the analogy might be between a grand jury and a trial jury. The grand jury does not have to be in existence when the trial jury hears a case. The Senate and

the House allow their legislative work to expire at the end of every Congress because there is an intervening political election and a partial recomposition of each House based upon political determinations. But the House, apart from its prosecutorial function, has completed its charging function. It might amend its charges, but it has completed them. The Senate's function is to try to do justice. That should not be determined by the outcome of any intervening election. So the conclusion was reached that the matter should be continued into this Congress.

A Rule 11 committee

The next issue was whether to recommend to the Senate that a trial committee be appointed, as had been appointed to receive the evidence in Judge Claiborne's proceedings. The Senate has an impeachment rule (Rule 11) that provides that if the Senate so orders, the presiding officer shall appoint a committee of senators to receive and take testimony. The commit tee's function is to report a certified copy of the transcript of the proceedings and testimony, which is then received by the whole Senate as having been received before the Senate. It is up to the Senate as a whole to determine the competency and relevance of any aspect of that tes timony. Any of it may be excluded from the Senate's final deliberations. It is also up to the Senate to determine whether to call any new witnesses or to have any witnesses recalled before the Senate.

The trial committee does not make a recommendation as to guilt or innocence. There had been a thought, when the proposition was originally debated, that that would be a power of the committee. However, the judgment was reached that, although individual members of the committee might speak and, of course, they might speak with great persuasiveness to the Senate as individuals, the committee as a corporate entity would not begin the debate in the Senate with a recommendation as to guilt or innocence. Rather, it would submit evidence for the Senate's consideration.

When the Rules Committee reviewed the issue whether it should recommend the appointment of a Rule 11 committee back in September, it decided that that issue should wait, too, for the next Congress. The Committee on Rules and Administration held a hearing on Janu

Michael Davidson, Counsel, United States Senate.

ary 26, and recommended on February 2 that, if it is necessary to take evidence, a committee should be appointed.

However, Judge Hastings also has a set of legal contentions going to the sufficiency of the articles of impeachment. The articles are 17 in number. The first 15 all relate to aspects of the underlying bribery accusation. The first reiterates that accusation and charges Judge Hastings with having received a bribe in 1981. It is followed by 14 articles which allege various false statements or the use of fabricated documents at the trial in early 1983 that resulted in his acquittal. The 16th article deals with an event that occurred in 1985, after the acquittal and after Judge Hastings resumed his full activity as a federal judge; it charges that he disclosed confidential wiretap information that came to him in his capacity as a supervising judge and that the disclosure derailed a federal criminal investigation. The 17th article is a summary article. It alleges, without all the detail of the preceding articles, that the conduct previously alleged warrants removal from office. It is an article that has been utilized before and goes to the protection of the integrity of the judicial process.

Only the full Senate can dismiss articles of impeachment. The House had a suggestion that a committee might prehear arguments on the sufficiency of the articles, but the Committee on Rules and Administration determined, and the Senate agreed, that Judge Hastings should have an opportunity to argue motions to dismiss the articles directly to the Senate.