60
39

James Madison commented, “So vague a term will be equivalent
toa tenure during pleasure of the Senate,” and Mason withdrew “mal-
administration” and substituted “high crimes & misdemeanors . . .
es the State.” This term was adopted, eight states to three, (II:
55

TRIAL OF IMPEACHMENTS BY THE SENATE

Madison then objected to trial of the President by the Senate and
after discussion moved to strike the provision, stating a preference
for a tribunal of which the Supreme Court formed a part. He objected
to trial by the Senate, “especially as [the President] was to be im-
peached by the other branch of the Legislature, and for any act
which might be called a misdemeanor. The President under these
circumstances was made improperly dependent.” (II: 551)

Gouverneur Morris (who had said of “maladministration” that it
would “not be put in force and can do no harm”; an election every
four years would “prevent maladministration” II: 550) argued that
no tribunal other than the Senate could be trusted. The Supreme
Court, he said, “were too few in number and might be warped or
corrupted.” He was against a dependence of the executive on the
legislature, and considered legislative tyranny the grent danger. But,
he argued, “there could be no danger that the Senate would say
untruly on their oaths that the President was guilty of crimes or
facta, eepecially a8 in four years he can be turned out.” (II: 551)

Charles Pinckney opposed the Senate as the court of impeachments
because it would make the President too dependent on the legislature.
“If he opposes a favorite law, the two Houses will combine against
him, and under the influence of heat and faction throws him out of
office.” Hugh Williamson of North Carolina replied that there was
“more danger of too much lenity than of too much rigour towards
the President,” considering the number of respects in which the Senate
was associated with the President. (II: 51)

After Madison’s motion to strike out the provision for trial hy the
Senate failed, it was unanimously agreed to strike “State” and insert
“United States” after “misdemeanors against,” “in order to remove
ambiguity.” (II :551) It was then agreed to add: “The vice-President
and other Civil officers of the U.S. shall be removed from office on
im) hment and conviction as aforesaid.”

uverneur Morris moved to add a requirement that members of the
Senate would be on oath in an impeachment trial, which was agreed
to, and the Convention then voted, nine states to two. to agree to the
clause for trial by the Senate. (II: 552-53)

COMMITTEE ON STYLE AND ARRANGEMENT

A five member Committee on Style and Arrangement was appointed
by ballot to arrange and revise the language of the articles agreed to
by the Convention. (I1:553) The Committee reported a draft on Sep-
tember 12. The Committee, which made numerous changes to shorten
and tighten the language of the Constitution, had dropped the expres-
sion inst the United States” from the description of grounds for
impeachment, #0 the clause read, “The president, vice-president, and
all civil officers of the United States, shall be removed from office on
iny hment for, and conviction of treason, bribery, or other high
Crimes and Misdemeanors.” (II: 600)


124

The CHAIRMAN. The amendment is not agreed to.

Are there further amendments to the resolution?

If not, without objection the previous question is ordered on the
resolution. The question is on agreeing to House Resolution 525
and favorably reporting the resolution to the House. All those in
favor will say aye.

All those opposed, nay.

The resolution is agreed to. House Resolution 525 is agreed to,
and the resolution is favorably reported to the House, and without
objection the motion to reconsider is laid upon the table.

ir. MOAKLEY. Mr. Chairman, please note my dissenting views in
the report.

The CHAIRMAN. Yes. We will be filing later this evening the re-
port, and we will make sure that the dissenting views are attached
to it and made a part of the report.

The Chair would like to file the report this evening, and now
that we have the additional Minority views, we will hopefully be
able to do that in a timely manner.

I might point out that since this is a preferential resolution and
we are bound by the rules of the House, it is unamendable on the
floor of the House, and it requires only 1 hour of debate.

It would be my intention when I file the report in a few hours
or minutes, I would make a unanimous consent request to extend
the debate time for 2 hours. That is the only way we can do it. We
cannot do it up here, and I would assume that there would be no
objection from any member of this committee.

ir. MOAKLEY. No objection.

The CHAIRMAN. Very good.

Gentlemen, we want to thank you. It was a very informative de-
bate. We certainly were collegial, and we certainly did it with com-
ity, and I want to commend all of you for your participation, and
the committee stands adjourned.

{Whereupon, at 8:40 p.m., the committee was adjourned.]

(e)


26
5

s. Chief among them was Thomas Wentworth, Earl of Strafford.

‘he House of Commons impeached him in 1640. As with earlier im-

achments, the thrust of the charge was damage to the state.’ The
rst article of impeachment alleged *

That he .. . hath traiterously endeavored to subvert the
Fundamental Laws and Government of the Realms... and
in stead thereof, to introduce Arbitrary and Tyrannical Gov-
ernment against Law...

The other articles againet Strafford included charges ranging from
the allegation that he had assumed regal power and exercised it tyran-
nically to the cherge that he had subverted the rights of Parlinment.*
Characteristically, impeachment was used in individual cases to
reach offenses, as perceived by Parliament, against the eystem of gov-
ernment. The charges, variously denominsted “treason,” “high trea-
eon,” “misdemeanors,” “malversations,” and “high Crimes and Mis-
demeanors,” thus included allegations of misconduct as various as the
kings (or their ministers) were ingenious in devising means of ex-
panding royal power.
At the time of the Constitutional Convention the phrase “high
Crimes and Misdemeanors” had been in use for over 400 years in im-
hment proceedings in Parliament.’ It first a rs in 1386 in the
impeachment of the King’s Chancellor, Michael de Ia Pole, Earl of
Suffolk.’ Some of the charges may have involved common law of-
fenses.' Others plainly did not: de fa Pole was charged with breaking
a promise he made to the full Parliament to execnte in connection
with a parliamentary ordinance the advice of a committee of nine
lords ding the improvement of the estate of the King and the
realm; “this was not done, and it was the fault of himself 2s he was
then chief officer.” He was also charged with failing to expend s sum
that Parliament had directed be used to ransom the town of Ghent,
because of which “the said town was lost.” *
ith treason, a term defined in 1252 by the Btatate of Tres
f sgainet bim prevamebty woal
ot ute, bot did net
Tested his defense in part 06
"Beware you 60

The Constitutional Problems
constitutes a great watersbed

fpeachmente Ia complicated
ate 1e compl

cis that follows in this section haw deen a
thers, checked analast the original records where poesibl

tbe inpeschment procedare apparent]
‘erliument ite accented the princinie thet the
ir misdeeds. C. Rot apr

ea emia
Mee lat lt ar
=

ment and jndged by th
7 Rim cupre 2.

pre, at 173.
nm °5. at 61:

8 (London 1927,

i rty of great velo

raised at lees

din neglect of t

‘Berker. oi
nal History 14



COMMITTEE ON RULES
GERALD B.H. SOLOMON, New York, Chairman

DAVID DREIER, California JOHN JOSEPH MOAKLEY, Massachusetts
PORTER GOSS, Florida MARTIN FROST, Texas

JOHN LINDER, Georgia TONY P. HALL, Ohio

DEBORAH PRYCE, Ohio LOUISE M. SLAUGHTER, New York

LINCOLN DIAZ-BALART, Florida
SCOTT MCINNIS, Colorado
DOC HASTINGS, Washington
SUE MYRICK, North Carolina
WiLtaM D. CRosBY, Chief Counsel
DaNieL J. KENIRY, Staff Director
GEORGE C. CRAWFORD, Minority Staff Director
BRYAN H. ROTH, Office and Systems Manager

SUBCOMMITTEE ON LEGISLATIVE AND BUDGET PROCESS

PORTER GOSS, Florida, Chairman
JOHN LINDER, Georgii MARTIN FROST, Texas
DEBORAH PRYCE, Ohio JOHN JOSEPH MOAKLEY, Massachusetts
DOC HASTINGS, Washington
GERALD B.H. SOLOMON, New York
WENDY SELIG, Counsel
KRISTI WALSETH, Minority Staff Director

- SUBCOMMITTEE ON RULES AND ORGANIZATION OF THE HOUSE

DAVID DREIER, California, Chairman
LINCOLN DIAZ-BALART, Florida TONY P. HALL, Ohio
SCOTT McINNIS, Colorado LOUISE M. SLAUGHTER, New York
SUE MYRICK, North Carolina
GERALD B.H. SOLOMON, New York
VINCENT RANDAZzO, Counsel
MICHAEL GESSEL, Minority Staff Director

an


120

The CHAIRMAN. And without objection, the resolution will be con-
sidered for the purposes of amendment under the 5-minute rule.

Are there any amendments to this resolution?

Mr. MoaKLEY. Mr. Chairman?

The CHAIRMAN. Mr. Moakley?

Mr. MoaKLey. I have a substitute to H.Res. 525. I move the com-
mittee report a resolution that would make in order as a base text
the substitute resolution in lieu of the text of H.Res. 525 which is
currently before us. This substitute reflects the agreement that was
reached by the Republican and Democratic leaders last night re-
garding the release and review of the independent counsel docu-
ments. It provides for the immediate release of the initial 445
pages: It provides that the Chairman and Ranking Minority Mem-

er of the Judiciary Committee shall review the remaining mate-
rial to determine which are appropriate for public release by Sep-
tember 20 and which are of a personal nature and should remain
confidential. Mr. Chairman, it also allows the Chairman and the
Ranking Minority Member of the Judiciary Committee to issue in-
terim committee rules of procedure regarding the material submit-
ted by the independent counsel.

That is the amendment, Mr. Chairman.

The CHAIRMAN. Well, Mr. Moakley, I believe you had returned
during the interchange with Maxine Waters and with Zoe Lofgren.

Mr. MOAKLEY. I didn’t leave, Mr. Chairman. I was here the
whole time.

The CHAIRMAN. Now you have your coat on. I thought you had
gone outside.

As you know in the interchange we had, there is nothing in this
resolution that will prevent the Chairman and the Ranking Mem-
ber, with agreement from their respective members from their
party on the Judiciary Committee, from allowing the two of them
to filter this information, as this is one of the major provisions of
your substitute.

I have been satisfied by talking with the Republicar members of
the Judiciary Committee that they will abide by the wishes of
Henry Hyde, and I assume that the Democrat members will abide
by the wishes of the Ranking Member, Mr. John Conyers, as well.
However, I do not think that it would be prudent of this body to
shut out the very professional, qualified members of the Judiciary
Committee from having a say in this matter, and in my opinion,
your substitute resolution would do just that. And, therefore, I
would argue that we would defeat your resolution, but I respect
your interest.

If there is no further discussion, all those in favor of the Moakley
amendment will say aye.

All those opposed, nay.

The amendment is not agreed to.

Mr. MOAKLEY. Roll call, Mr. Chairman.

he CHamrMaN. A roll call is requested. The clerk will call the
roll.

The CLERK. Mr. Dreier.

Mr. DREIER. No.

The CLERK. Mr. Dreier votes no.


69
48

take care that the laws be faithfully executed, did unlawfully
and in violation of the Constitution and laws uf the United
States, issue an order in writing for the removal of Edwin M.
Stanton.

Article I concluded that President Johnson had committed “a high
misdemeanor in office.” *

Articles II and [11 characterized the President's conduct in the same
terms but charged him with the allegedly unlawful appointment of
Stanton’s replacement.

Article [V charged that Johnson, with intent, unlawfully conspired
with the replacement for Stanton and Members of the House of Rep-
Tesentatives to “hinder and prevent” Stanton from holding his office.

Article V.a variation of the preceding article, charged a conspiracy
to prevent the execution of the Tenure of Office Act, in addition to a
conspiracy to prevent Stanton from holding his office.

Article VI charged Johnson with conspiring with Stanton’s des-
ignated replacement, “by force to seize, take and possess” government
property in Stanton’s possession, in violation of both an “act to define
and punish certain conspiracies” and the Tenure of Office Act.

Article VII charged the same offense, but as a violation of the
Tenure of Office Act only.

Article VIII alleged that Johnson, by appointing a new Secretary
of War, had, “with intent unlawfully to control the disbursements of
the mone: Sppropriated for the military service and for the Depert-
ment of War,” violated the provisions of the Tenure of Office Act.

Article 1X charged that Johnson, in his role as Commander in Chief,
had instructed the General in charge of the military forces in Wash-
i that part of the Tenure of Office Act was unconstitutional,
with intent to induce the General, in his official capacity as commander
of the Department of Washington, to prevent the execution of the
Tenure of Office Act. .

Article X, which was adopted by amendment after the first nine
articles, alleged that Johnson,

unmindful of the high duties of his office and the dignity
and proprieties thereof, . . . designing and intending to set
aside the rightful authority and powers of Congress, did at-
tempt to bring into disgrace, ridicule, hatred, contempt, and
reproach. the Congress of the United States, [and] to impair
and destroy the regard and respect of all good people . . .
for the Congress and legislative power thereof. . .

by making “certain intemperate, inflammatory, and scandalous ha-
es.” In addition: the same speeches were a! to have brought

the high office of the President into “contempt, ridicule, and disgrace,
to the great scandal of all good citizens.” .

Article XI combined the conduct charged in Article X and the nine
other articles to allege that Johnson had attempted to prevent the
execution of both the Tenure of Office Act and an act relating to arm:
sppropriations by unlawfully devising and contriving means by whi.
he could remove Stanton from office.

= For text of articles, see Com. Grown, 40th Cong., 24 Been 1608-18, 1642 (1868).


80
59

Feerick, John, “Impeaching Federal Judges: A Study of the Con-
stitutional Provisions,” 39 Fordham L. Rev. 1 (1970). An article
concluding that impeachment was not limited to indictable crimes
but extended to serious misconduct in office.

Fenton, Paul, “The Scope of the Impeachment Power,” 65 Nw. U. L.
Rev. 719 (1970). A law review article concluding that impeachable
offenses are not limited to crimes, indictable or otherwise.

Finley, John and John Sanderson, The American Executive and Ea-
ecutive Methods, (Century Co., New York, 1908). A book on the
presidency concluding that impeachment ‘reaches misconduct in
office, which was a common law crime embracing all improprieties
showing unfitness to hold office.

Foster, Roger, Commentaries on the Constitution of the United States,
(Boston Book Co., Boston, 1896), vol. I. A discussion of constitu-
tional law concluding that in light of English and American hie-
tory ‘any conduct showing unfitness for offce is an impeachable

offense.

Lawrence, William, “A Brief of the Authorities upon the Law of Im-
peachable Crimes and Misdemeanors,” Congressional Globe Supple-
ment, 40th Congress, 2d Session, at 41 (1868). An article at the time
of Andrew Johnson’s impeachment concluding that indictable crimes
were not needed to make out an impeachable offense.

Note, “The Exclusiveness of the Impeachment Power under the Con-
stitution,” 51 Harv. L. Rev. 330 (1937). An article concluding that
the Constitution included more than indictable crimes in its defini-
tion of impeachable offenses.

Note, “Vagueness in the Constitution: The Im) it Power,” 25
Stan, L. Rev. 908 (1973). This book review of the Berger and Brant
books concludes that neither author satisfactorily answers the ques-
tion whether im} able offenses are limited to indictable crimes.

Pomeroy, John, An Introduction to the Constitutional Law of the
United | ‘States, (Hurd and Houghton, New York 1870). A considera-
tion of constitutional history which concludes that impeachment
reached more than ordinary indictable offenses.

Rawle, William, A View of the Constitution of the United States,
(P. HL Nicklin, Philadelphia, 1829, 2 vol. ed.). A discussion of the
legal and political principles underlying the Constitution, conclud-
ing on this issue that an impeachable offense need not be a statutory
crime, but that reference should be made to non-statutory law.

Rottechaefer, Henry, Handbook of American Constitutional Law,
(West, St. Paul, 1939). A treatise on the Constitution concluding
that impeachment reached any conduct showing unfitness for office,
whether or not a criminal offense.

Schwartz, Bernard, A Commentary on the Constitution of the United
‘States, vol. I, (Macmillan, New York, 1963). A treatise on various

of the Constitution which concludes that there was no set-
tled definition of the phrase “high Crimes and Misdemeanors,” but
that it did not extend to acts merely unpopular with Congress. The
author suggests that criminal offenses may not be the whole content
of the Constitution on this point, but that such offenses should be a

guide.


16

Ranking Member Mr. Conyers. I want to commend everyone for
pursuing this matter in such a professional and nonpartisan man-
ner, and I want to mention Mr. Gephardt. We have had two meet-
ings with him. He has been conciliatory and helpful, as has the
Speaker. And I think one good aspect of this otherwise dreary pros-
pect has been the understanding of the need for us to work to-
gether, and so far, so

The American people deserve a competent, independent and bi-
partisan review of the independent counsel’s referral. They have to
have confidence. We must be credible. Politics should be checked at
the door, party affiliation secondary, and America’s future must be-
come our only concern.

I will not participate in a political witch hunt. If the evidence
does not justify a full impeachment investigation, I won’t rec-
ommend one to the House. However, if the evidence does justify an
inquiry, I will unhesitatingly recommend a further inquiry. But in
exercising this responsibility, our committee will not take at face
value the assertions or conclusions of any particular party. It is not
the responsibility of the independent counsel under the statute to
declare this impeachable or that impeachable. He is to report to us
activities, actions, elements that may be impeachable, and we will
make that decision. We understand that.

We will undertake a full, fair, independent review of the evi-
dence, and we will arrive at our own conclusions. In any impeach-
ment proceeding, the House does not determine the guilt or inno-
cence of the subject. We function like a grand jury. We determine
whether there is sufficient evidence to charge an executive branch
officer with high crimes and misdemeanors. Thus, the Senate must
try that official on those charges. We have not reached that point,
and no one should jump to conclusions or assume the worst.

At this stage we don’t know what information the independent
counsel has sent to the House, but given the gravity to this situa-
tion we must act now. The Rules Committee must lead, and I cer-
tainly appreciate your willingness to address this task expedi-
tiously.

Our first challenge is to ensure that the American people are
given what is Tightly theirs, information, if there is any, that may
constitute grounds for impeachment of their duly elected President
while ensuring that the House’s constitutional duty to conduct a
full, fair and independent review is not jeopardized.

Mr. Chairman, I agree with the considered judgment of Speaker
Gingrich and Minority Leader Gephardt that the full House should
authorize the immediate release to the public of the introduction,
the narrative and the statement or rationale of the grounds. This
initial release, insofar as practicable, would not include raw evi-
dentiary material which might contain information about individ-
uals unrelated to this investigation.

The resolution should grant to the Committee on the Judicia
the authority to release this latter material, if release is warranted,
after the committee has had a chance to review this material.

Because of the importance of the material, the resolution should
contain a presumption of release and a date certain for the Judici-
ary Committee to report its findings and plans for ultimate release.


75
54

... that causes were not decided in said court according to thett
merits,” “[n]1l to the scandal and disrepute” of his court and the ad-
ministration of justice in it. This “course of conduct” was alleged to be
“misbehavior” and “a misdemeanor in office.”

¢. Proceedings in the Senate

The Senate. being informed by the Managers for the House that the
House desired to discontinue the proceedings in view of the resignation
of Judge English, approved a resolution dismissing the proceedings
by a vote of 70 to 9."

12. DISTRICT JUDGE HAROLD LOCDERBACK (1932-1933)

a. Proceedings in the House

A resolution directing an inquiry into the official conduct of District
Judge Louderback was adopted by the House in 1992. A subcommittee
of the Judiciary Committee took evidence. The full Judiciary Com-
mittee submitted « report in 1933, including a resolution that the evi-
dence did not warrant impeachment, and a brief censure of the Judge
for conduct prejudicial to the dignity of the judiciary." A minority
consisting of five Members recommended impeachment and moved fire
articles of impeachment from the floor of the House."* The five articles
were adopted as a group by a vote of 183 to 143."

b. Articles of Impeachment

Article | charged that Louderback “did . . . so abuse the power
of his high office, that he is hereby charged with tyranny and oppres-
sion, favoritism and conspiracy, whereby he has broug! it the admin-
istration of justice in the court of which he is a judge into disrepute,
and by his conduct is guilty of misbehavior.” It alleged that Louder-
back used “his office and power of district judge in his own personal
interest” by causing an attorney to be appointed as a receiver in bank-
ruptcy at the demand of a person to whom Louderback was under
financial obligation. It was further alleged that the attorney had re-
ceived “large and exorbitant fees” for his services; and that these fees
had been passed on to the person whom Louderback was to reimburse
for bills incurred on Louderback’s behalf.

Article 1] charged that Louderback had allowed excessive fees ton
receiver and an attorney, described as his “personal, and political
friends and associates,” and had unlawfully made an order conditional
upon the agreement of the parties not to appeal from the allowance of
fees. This was described as “a course of improper and unlawful
conduct as Judge.” It was further alleged that Louderback “did not
give his fair, impartial, and judicial consideration” to certain objec-
tions; and that he “was and is guilty of a course of conduct oppressive
and unjudicial.” .

Article II charged the knowing appointment of an unqualified per-
son as a receiver, resulting in disadvantage to litigants in his court.

Article 1V charged that “misusing the powers of his judical office
for the sole nurpose of enriching” the unaualified receiver mentioned

in Article IIT, Louderback failed to give “fair, impartial, and judicial

. 1 (1938),

No. 2005. 724 Cons. 24 Bese
Lime rece ‘Sean. 13 (1933).

R
|. Rep. No. 2085, 724 Con;



33
12

equivalent to a tenure during pleasure of the Senate,” Mason withdrew

“maladministration” and sul Ftituted “high crimes and misdemeanors

the State,” which was adopted eight states to three, apparently
with no further debate."*

That the framers were familiar with English parliamentary im-
peachment proceedings is clear. The impeachment of Warren Hast-
ings, Governor-General of India, for high crimes and misdemeanors
was voted just a few weeks before the beginning of the Constitutional
Convention and George Mason referred to it in the debates.* Hamil-
ton, in the Federalist No. 65, refecred to Great Britain as “the model
from which [im ent] has been borrowed.” Furthermore, the
framers were well-educated men. Many were also lawyers. Of these, at
Jeast nine bad studied law in. Jand.**

The Convention had earlier demonstrated its familiarity with the
term “high misdemeanor.” " A draft constitution had used “high mis-
demeanor” in its provision for the extradition of offenders from one
state to another."* The Convention, apparently unanimously struck

ch misdemesnor” and inserted “other crime,” “in order to compre-
all pi cases: it being doubtful whether ‘high misdemeanor’
had not a technical meaning too limited.” #

The “technical meani: veferred to. is the parliamentary use of
the term. x high misdeameanor, ” Blackstone's. Commentaries on the
Laws of Eng a work cited by delegates in. other portions of the
Convention’s deliberations and which Madison later described (in the
Virginia ratifying convention} as.“ book which. is in every man’s
hand” “—included “high misdemeanors” as one term for ve of-
fenees “against the king and geygimment.” ‘The “first and principal”
high misdemeanor, according to Blackstone, was “mal-administration
of such high officers, as ae in public trust and employment,” usually
punished fy the method of parliamentary im ent.” *

“High Crimes and Misdemeanors” has traditionally been considered

a“term of art,” like such other constitutional phrases as “le’ i hl
tnd “due process.” The Supreme Court has held that su
must be construed, not according to modern usage, but according
to what the farmers meant when Shey adopted them. Chief Justice
Marshall wrote of another such phrase :

wording was opanimsocsly changed later the same
against the United States” tn orcer to avoid apblesit a
nal draft of the Constitation prepared by. 2

ind Re teh was charged with arranging and improving the language of
ipielee Sdopted vy the Cooveotion without altering its subrtance

A Berger, Impeachment: The Constitatione! Probleme 87, 89 and accompanying notes
“Mane crime signified «, crim int the errtem of -
ish” crime a trime against the eystem of govern,

t
etttotion was, aa alrerealr 8 the criterion for
ot ope. The distinction soon

‘tres ‘Bester,

‘4 W. Blackstone, Commentartes*
f the Committee om Detail) originally

proviston (article XY of Committes draft wens Sf sie an etal sei
te from Be 54, ie delivered ‘ep ind: reneved to the

States Stu Reed otis tact" 3 Parrant

9, teghnteal term,
t merely

Soci wits Toe extradition Games

reste eae fag lenin eae ae Oa Aes

TiEh trreawn, felony, er other igh im any state. .

= ilies oan
rir & Peat arr wee 5 27Zafst00) + Devtooon v, New

Sey 6 RES? nae See 468 (1888).



104

respect them. I do believe that I could take the challenge up of re-
viewing the documents, albeit, as Chairman Hyde said, it would be
an unsightly and possibly unpleasant task.

But I do support the concept which they have argued because
again my premise here today, and where we might slightly dis-
agree, is that I don’t agree with the rendering of the 445 pages.
But if that does occur, I certainly argue vigorously, and as I said
I use the Watergate proceedings as a backdrop, not to argue rules
but to say that those materials were not even released until the
completion of evidentiary hearings.

T will then take it to the next step and say that I am concerned
about the 17 boxes, 2,000 pages and the appendices, because even
with the fineness of detailed review, I am fearful that those docu-
ments and the release of them will infringe upon the fairest of re-
view by the Judiciary Committee. Because if you have an implosion
inside the committee by pressures from those who interpret what-
ever they may be reading in some manner, and they begin to do
the political surge of, “You must do this,” then it is my fear that
unlike Chairman Rodino and the nonpartisan work of that commit-
tee which saw some Republicans vote for but certainly saw some
Republicans hold their ground on their belief that their President,
or the President, a President, did not deserve impeachment, I am
fearful that what we argue on behalf of the American people as
what will be fair, which would in turn or which would ultimately
be, Mr. Chairman, unfair because it will be driven totally by poli-
tics and politics only. And my concession to the superhighway
would be, I would be more than happy to have the fullest exposure
on the Internet subsequent to the completion of our work.

Might I, Mr. Chairman, in terms of just refreshing my memory,
I thought maybe someone on the committee knows that even now
there is some debate or discussion on the Nixon tapes, some of
those tapes that were engaged. And so the American people have
certainly been around a situation when we have withheld docu-
mentation, which has not injured, one, the viability of the Constitu-
tion, the process of government, or the freedom that the American
people expect.

I only say, Mr. Chairman, that I probably disagree that we
should even be releasing it at this point, because I fear being driv-
en by the political atmosphere that we really need to be free of, not
that we are not representing politics, but we need to be free of it
to make a right decision.

The CHAIRMAN. And you do understand that in this resolution
where we are trying to follow precedent, that we would allow the
Judiciary Committee to do exactly as the Watergate committee did,
the Judiciary Committee did back in 1974, and that is to withhold
information from the rest of the Members of Congress and the
American people. We allow that in this resolution.

Mr. Moakley, did you have a statement or—

Mr. MOAKLEY. The only thing, where our learned colleague re-
ferred to the Watergate, isn’t so much of that information that was
garnered through the grand jury and the Watergate still undistrib-
uted? It is still held in secrecy?

Ms. JACKSON-LEE. That is correct, and I—the counsel at that
time was a Special Prosecutor, and the ultimate finisher of the


40
19

execution of the Tenure of Office Act, an Army a] riations act, and
a Reconstruction act designed by Congress ‘fer the more Cfirent
government of the rebel States.” On its face, this article involved
statutory violations, but it also reflected the underlying challenge to
all of Johnson’s post-war policies.

The removal of Starton was more a catalyst for the impeachment
than a fundamental cause.” The issue between the President and
Congress was which of them should have the constitutional—and
ultimately even the military— to make and enforce Recon-
struction policy in the South. The Johnson impeachment, like the
British imy of great ministers, involved issues of state going
to the heart of the constitutional division of executive and legislative
power.

2. BEHAVING IN A MANNER GROSSLY INCOMPATIBLE WITH THE PROPER
FUNCTION AND PURPOSE OF THE OFFICE

Judge John Pickering was impeached in 1803, largely for intoxica-
tion on the bench.’ "Three of the articles alleged ovens in a trial in
violation of his trust and duty as a judge; the fourth charged that
Pickering, abeing & man of loose morals and intemperate habits,” had
ap] ‘on the bench during the trial in a state of total intoxication
and had used profane language. Seventy-three years later another
judge, Mark Delahsy, was impeached for intoxication both on and
of aed bench but resigned before articles of impeachment: were
adopted.

A similar concern with conduct incompatible with the proper exer-
cise of judicial office appears in the decision of the House to im)
Associate Supreme Court Justice Samuel Chase in 1804. The House
alleged that Fustios Chase had Permitted his partisan views to influ-
ence his conduct of two trials
court several years earlier. The first involved a Pennsylvania farmer
who had led a rebellion against Federal tax collector in 1789 and was
later charged with treason. The articles of impeachment alleged that
“onmindful of the solemn duties of his office, and contrary to the
sacred obligation” of his oath, Chase “did con uct himself in » man-
ner highly arbitrary, oppressive, and unjust,” citing procedural ral-

ings against the

‘Sinsiar I appeared in articles relating to the trial of » Vir-
ginia printer indicted under the Sedition Act of 1798. Specific ex-
amples of Chase’s bias were alleged, and his conduct was cha:
as “an indecent solicitude . . . for the conviction of the accused, un-
becoming even « public prosecutor but highly disgraceful to the char-

eld while he was conducting circuit

acter of a j ‘as it was subversive justice.” The eighth article
charged that “disregarding the duties . . . of his judicial char-
acter. ... did... prevert his official right and duty to address the

His conduct was alleged to be # serious breach of his duty

‘dnd At. Leas. Mimourl, article ten pronounced these speeches “consarable in any, [and)
pecallarty odecent and unbecoming is the jagiatrate of the United States.” By means
of these the article had broaght the high office of the prest-

frend jury” by delivering “an intemperate and inflammatory litical
parengue



65
44

73 to 32 a resolution reported by the committee that Chase be im-
peached of “high crimes and misdemennors.””
b. Articles of Impeachment

After voting separately on each, the House adopted eight articles."*

Article J charged that, “unmindful of the solemn duties of his office,
and contrary to the sacred obligation by which he stood bound to dis-
charge them ‘faithfully and impartially, and without respect to per-
tons’ [a quotation from the judicial oath prescribed by statute],”
Chase, in presiding over a treason trial in 1800, “did, in his judicial
capacity, conduct himself in a manner highly arbitrary, oppressive
and unjust” by:

(1) delivering a written opinion on the applicable legal definition
of treason before the defendant's counsel had been heard;

(2) preventing counsel from citing certain English cases and U.S.
statutes; and

(3) depriving the defendant of his constitutional privilege to argue

. the law to the jury and “endeavoring to wrest from the jury their
indisputable right to hear argument and determine upon the question
of Jaw, as well as the question of fact” in reaching their verdict.

In consequence of this ‘irregular conduct” by Chase, the defendant
was deprived of his Sixth Amendment rights and was condemned to
death without having been represented by counsel ‘to the disgrace of
the character of the American bench, in manifest violation of law and
justice, and in open contempt of the rights of juries, on which ulti-
mately, rest the liberty and safety of the people.” *

Article IT charged that, “prompted by a similar spirit of persecu-
tion and injustice,” Chase had presided over a trial in 1800 involving
a violation of the Sedition Act of 1798 (for defamation of the Presi-
dent, and, “with intent to oppress and procure the conviction” of
the defendant, allowed an individual to serve on the jury who wished
to be excused because he had made up his mind as to whether the pub-
lication involved was libelous.”

Article 11] charged that, “with intent to oppress and procure the
conviction” of the defendant in the Sedition Act prosecution, Chase
refused to permit a witness for the defendant to testify “on pretense
that the said witness could not prove the trith of the whole of one of
the charges contained in the indictment, although the said charge em-
braced more than one fact.” **

Article 1V charged that Chase's conduct throughout the trial was
“marked by manifest injustice, partiality. and intemperance” :

(1) in compelling defendant's counsel to reduce to writing for
the court's inspection the questions they wished to ask the witness
referred to in article III; 5

(2) in refusing to postpone the trial although an affidavit had
been filed stating the absence of material witnesses on behalf of
the defendant; .

) in using “unusual, rude and contemptuous expressions” to
defendant's counsel and in “falsely insinuating” that they wished

80.
14 Aunate oF Cone, 747-82 (1804).
id, 728-29,


36
15

especially abuses of constitutional duties. The opponents did not argue
that the grounds for impeachment had been limited to criminal
offenses,

‘An extensive discussion of the scope of the impeachment power
occurred in the House of Representatives in the First Session of the
First Congress. The House was debating the power of the President
to remove the head of an executive department appointed by him with
the advice and consent of the Senate, an issue on which it ultimately
adopted the position, urged primarily by James Madison, that the
Constitution vested the power exclusively in the President. The dis-
cussion in the House lends support to the view that the framers
intended the impeachment power to reach failure of the President to
discharge the responsibilities of his office."*

Madison argued during the debate that the President would be sub-
ject to impeachment for “the wanton removal of meritorious officers.”"
He also contended that the power of the President unilaterally to re-
move subordinates was “absolutely nectssary” because “it will make
him in a peculiar manner, ible for [the] conduct” of executive
officers. It would, Madison said,

subject him to impeachment himself, if he suffers them to per-
petrate with impunity high crimes or misdemeanors against
the United States, or neglects to superintend their conduct, so
as to check their excesses."*

Elbridge Gerry of Massacht who had also been a framer though
he had opposed the ratification of the Constitution, disagreed with
Madison’s contentions about the impeachability of the President. He
could not be impeached for dismit & good officer, Gerry said, be-
cause he would be “doing an act which the Legislature has submitted
to his discretion.” ** And he should not be held responsible for the acts
of subordinate officers, who were themselves subject to impeachment
and should bear their own responsibility."

Another framer, Abraham Baldwin of Georgia, who supported
Madison's position on the power to remove subordinates, spoke of
the President’s impeachability for failure to perform the duties of
the executive. If, said Baldwin, the President “in a fit of passion”
removed “all the good officers of the Government” and the Senate were
unable to choose qualified successors, the consequence would be that
the President “would be obliged to do the duties himself; or, if he
did we would impeach him, and turn him out of office, as he had
done othera.”

 Chiet Tortice Tatt wrote with reference to the removal power debate in ibe
Set ae constitetiona! of the

the Court im Myers ¥. United Stetes, that as
“ been. as they should be rded, as of the test wel; in
ingipretiten of tot fendimental tnetrament. 81s UB. 08 Ire ibs).
BP tne of Coug. we (it80).
mii ba
ion ae Ot ae aU Renee te Sentictte ite teriaciege Seoriion
E pe Paid. the Conslitetton faliea te tnciage pre
for removal of executive as at the ‘care the omiation

ips,
rocedares
yay bes bigh crime

a fece the Jaws falthfally execated: If he does
ally, he ta ible. To whom? To the people. Have they the means
ing him to account. and pualabing him for nesiest? Kher bave secured It tn the

bay a peacemeny, eb brevented mediate repreecatatives ; it

they fail bere, they have another check when the time of election comes round.” /¢. 572.



68
47

Article V charged that, with intent to prevent the administration
of the laws of the United States and to overthrow the authority of the
United States, Humphreys had failed to perform his federal judicial
duties for nearly a year.

Article VI alleged that Judge Humphreys had continued to hold
court in his state, calling it the district court of the Confederate States
of America. Article VI was divided into three specifications, related to
Humphreys’ acts while sitting as a Confederate judge. The first speci-
fication charged that Humphreys endeavored to coerce a Union sup-
porter to swear allegiance to the Confederacy. The second charged
that he ordered the confiscation of private property on behalf of the
Confederacy. The third charged that he jailed Union sympathizers
who resisted the Confederacy.

Article VII charged that while sitting as a Confederate judge, Hum-
phreys unlawfully arrested and imprisoned a Union supporter.

c. Proceedings in the Senate

Humphreys could not be Beraonally served with the impeachment
summons because he had fled Union territory." He neither appeared at
the trial nor contested the charges.

The Senate convicted Humphreys of all charges except the con-
fiscation of property on behalf of the Confederacy, which seversl Sen-
ators stated had not been properly proved.’* The vote ranged from
88-0 guilty on Articles I and IV to 11-24 not guilty on specification
two of Article VI.

6. PRESIDENT ANDREW JOHNSON (1867-1868)

a, Proceedings in the House
‘The House adopted a resolution in 1867 authorizing the Judiciary
Committee to inquire into the conduct of President Johnson." A ma-
jority of the committee recommended im) ment,"* but the House
voted against the resolution, 108 to 57."* In 1868, however, the House
authorized an inquiry by the Committee on Reconstruction, which
reported an impeachment resolution after President Johnson had re-
moved Secretary of War Stanton from office. The House voted to im-
peach, 128-47."
b. Articles of Impeachment
Nine of the eleven articles drawn by a select committee and adopted
by the House related solely to the President’s removal of Stanton. The
removal allegedly violated the recently enacted Tenure of Office Act,*"
which also categorized it as a “high misdemeanor.” **
The House voted on each of the first nine articles separately; the
tenth and eleventh articles were adopted the following day.
Article I charged that Johnson,
unznindful of the high duties of his office, of his oath of office,
and of the requirement of the Constitution that he should



105

work was Leon Jaworski. And having associated myself with his
firm in Texas, Fulbright and Jaworski, I know full well the high
order of which he thought his charge was, and that was not secrecy
to destroy the process but secrecy to protect freedom and the proc-
ess. And so those documents were retained.

Mr. Moak ey. And didn’t the committee work in a very non-
partisan manner, in that if the minority member or the ranking
member, either wanted to issue a subpoena, they could do it indi-
vidually.

Ms. JACKSON-LEE. That is correct. There was the opportunity for
the fullest expression, and of course most if not all those hearings
were in executive session, and that worked very well for providing
that kind of openness.

Mr. MOAKLEY. Thank you.

The CHAIRMAN. Ladies and gentlemen, if you want to see how
times have changed, and I guess I am getting old, but since we an-
nounced at the beginning of our hearing, when Mr. Dreier made
the announcement about our web page, it has been accessed over
10,000 times in less than 2 hours. Can you imagine that? That is
mind-boggling to me.

Mr. Linder.

Mr. Diaz-Balart.

I beg your pardon, my good friend from Rochester?

Mr. Hastings.

Mrs. Myrick.

‘As always, we are always glad to have you come before us, and
your testimony is always enlightening, Ms. Lee, and we appreciate
It.

‘Ms. JACKSON-LEE. Mr. Chairman, I thank you very much, and
we will probably see each other throughout this process. I thank
you for your kindness.

The CHAIRMAN. The next scheduled witness is the Honorable
Maxine Waters. I understand now that she has asked to have Ms.
Zoé Lofgren of California join her, since you both are members of
the Judiciary Committee. You are welcome to proceed, Ms. Waters,
you first. Your entire statements will appear in the record without
objection.

STATEMENT OF HON. MAXINE WATERS, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF CALIFORNIA

Ms. WATERS. Thank you very much, Mr. Chairman and members
of this Rules Committee.

I am here as chairperson of the Congressional Black Caucus, as
a member of the Judiciary Committee, and as a member of a coali-
tion of concerned Members of this House who have joined together
to do everything that we can to ensure fairness in this process.

As public policymakers, we all find ourselves in the difficult posi-
tion of having to formulate rules and procedures to receive and pro-
ceed with the referral from the Office of the Independent Counsel
without statutory laws or rules that dictate procedure for carrying
out this very special work of the Judiciary Committee, the work of
review and determination to refer or not to refer to the Senate for
impeachment purposes.


46
25

If criminality is to be the basic element of impeachable conduct, what
is the standard of criminal conduct to be? Is it to be criminality as
known to the common law, or as divined from the Federal Criminal
Code, or from an amalgam of State criminal statutes? If one is to turn
to State statutes, then which of those of the States is to obtain? If
the present Federal Criminal Code is to be the standard, then which
of its provisions are to apply? If there is to be new Federal legislation
to define the criminal standard, then presumably both the Senate and
the President will take part in fixing that standard. How is this to be
accomplished without encroachment upon the constitutional provision
that “the sole power” of impeachment is vested in the House of
Representatives

requirement of criminality would be incompatible with the intent
of the framers to provide # mechanism broad enough to maintain the
integrity of constitutional government, Impeachment is a constitu-
tional safety valve; to fulfill this function, it must be flexible enough
to cope with exigencies not now foreseeable. Congress has never under-
taken to define impeachable offenses in the criminal code. Even respect-
ing bribery, which is specifically identified in the Constitution as
grounds fo: achment, the federal statute establishing the criminal
offense for civil officers generally was enacted over seventy-five years
after the Constitutional Convention."

In sum, to limit impeachable conduct to criminal offenses would be
incompatible with the evidence concerning the constitutional meaning
of the phrase “high Crimes and Misdemeanors” and would frustrate
the purpose that the framers intended for impeachment. State and
federal criminal laws are not written in order to preserve the nation
ageinst serious abuse of the presidential office. But this is the purpose

the constitutional provision for the impeachment of a President and
that purpose gives meaning to “high Crimes and Misdemeanors.”

= Jt appears from the annotations fo the Rerieed Btatnten of 1878 that bribery nas not

feral or lor Metabers of Congress, a3
Riker civil odicera, Uke fev, tes, Tile LUX. Ch. 0° 44 8198-000. The consideration
strony cours tbat conduct not amophtiag to reatplory Sribery may Bovethelew cov:
stitute tbe constitational “high Crime and Miefemeanor” of bribery.



88

‘The CHAIRMAN. We want to assure both of you that we certainly
will be consulting with you, as I said during my opening statement,
with you, both majority and minority, and as well as the Rules
Committee, majority and minority, as we develop the second reso-
lution which probably will come on the floor some time next week.

You spoke, John, of the concern about other members of the Ju-
diciary Committee having access to material and suggesting, as did
Henry Hyde, that it be confined to just the two of you, and we
could do that, we could consider that. But we have differences of
opinion in both political parties in doing that.

We have Members who feel that if they are going to make a con-
clusion, ratify your conclusion of whether to go forward or whether
not to go forward, they—and when I say they, more than 40 Demo-
crats have come to me, John Dingell being one. I think we had a
Member, Peter Deutsch sitting here from Florida, who will testify
a little bit later that he wants an amendment to our resolution that
would require that the entire communication received, and includ-
ing all appendices and related material, be made available imme-

jiately.

What we are trying to do is to reach a bipartisan compromise,
which you have spoken to, so that we can please as many Members
as we can so that when we go to the floor it will truly be a biparti-
san resolution. And I believe that from the concessions that I per-
sonally have made, Members on both sides of the aisle have made,
some as recently as an hour ago when we removed terms like
“ancillary” from the resolution, we have tried to cooperate in every
way possible to make it a truly bipartisan resolution, and I believe
it wil pass overwhelmingly on the floor with very few dissenting
votes.

The reason I would not hesitate to make it available to other
members of your committee is that they are proud, distinguished
Members on both sides of the aisle. I have had the privilege for the
last 15 or 16 years of serving on the Steering Committee of the Re-
publican Party in choosing members to serve on committees, and
we do so the same as the Democratic Party does. I think Martin
Frost has served on a similar committee on your side, and we
choose Members because of their background, because of their
qualifications and because of their talents to serve on these com-
mittees.

I see Bobby Scott from Newport News in the back, a distin-
guished lawyer, was chosen by your party, just for an example. I
see Amo Houghton, who was a very distinguished business leader
before he came to this Congress, and I personally nominated him
and was successful in placing him on the Ways and Means Com-
mittee because he probably is the most knowledgeable person in
the entire Congress. So we do not hesitate to make that informa-
tion available to your members of your committee in order that
they can make the same kind of decisions that allowed you to come
to your conclusion.

by the same token, I just have to say in closing that all of
the 435 Members feel very strong that they should be able to
have the same information availal fe to them that caused you as
members of the Judiciary Committee to draw your conclusion. To


9

We also have an obligation to the people of the United States to
undertake this task carefully and judiciously. Our system of gov-
ernment is based upon the will of the people. Ultimately an im-
peachment conviction overturns that wil as expressed in the last
election. We begin the process in the Rules Committee with the ac-
ceptance of the report. Our resolution will set the parameters of
how this investigation will be conducted. It is my hope that the

eement that has been made in good faith between the Speaker
of the House and the Minority Leader will be reflected in this reso-
lution. We need to protect the rights of citizens against the release
of confidential grand jury testimony which could cause them ridi-
cule, embarrassment and shame.

I urge this committee and the full House to act solely on the evi-
dence and with no thought of partisan advantage. This is far too
serious for that. We owe no less to the people that we represent
and to the President that they elected.

Thank you, Mr. Chairman.

The CHAIRMAN. Next let me speak on behalf of the gentlelady
from Rochester, New York, when I recognize the next Member who
is from a new economic hub in America, a place called Atlanta,
Georgia. They have been stealing jobs from New York State, but
we have a great Governor in New York today called George Pataki,
Who is beginning to steal them back. But I would recognize John
Linder.

STATEMENT OF HON. JOHN LINDER, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF GEORGIA

Mr. LINDER. We are delighted to have the jobs, Mr. Chairman.

Mr. Chairman, Congress has a right and a solemn responsibility
to investigate the executive branch and investigate criminal con-
duct. The Rules Committee is here today to pass a resolution to ful-
fill the oversight obligation from the Constitution we took an oath
to defend.

Chief Justice Warren stated that “the power of Congress to con-
duct investigations is inherent in the legislative process. That
power is broad.” Supreme Court Justice John Harlan observed in
1959 that “the scope of the power of inquiry, in short, is as pene-
trating and far-reaching as the potential power to enact and appro-
priate under the Constitution.” More recently James Hamilton,

fatergate committee counsel, argued in his book, The Power to
Probe, that Congress's oversight function “is implicit in our tri-
partite system of government, because without it Congress cannot
properly meet its lawmaking and informing responsibility.”

We have an oversight responsibility that is supported by the
Constitution, public law and House rules, and this responsibility is
an indispensable part of the system of checks and balances be-
tween the Legislative and the Executive.

Serious charges have been made against this President and this
administration. Not one of us wants to be here talking about per-
jury, suborning perjury or obstructing justice, but it is our constitu-
tional duty to look into the charges. By ceding our oversight re-
sponsibility to watch over the government, the Committee on Rules
and every Member of the House would be abdicating one of our
most important obligations charged to us by our Founding Fathers.


2

have faced in public service, certainly mine in the last 20 years.
The committee must set forth a procedure by which the House of
Representatives may fulfill its constitutional duties under Article 1
of Section 2 of the Constitution, which is the sole power of im-
peachment. This is a responsibility that none of us took lightly
when we swore to uphold the Constitution of the United States,
and we do not take it lightly now.

The framers of the Constitution deliberately designed our system
of government to make this a constitutional responsibility and not
a partisan one. To whatever end these deliberations may lead us,
it is imperative that this Rules Committee and ultimately the
House of Representatives adopt procedures which best allow for a
fair, not only bipartisan but nonpartisan, determination of the facts
involved.

Yesterday the independent counsel delivered a communication to
the House of Representatives pursuant to the independent counsel
law. He was required to do that by law, that law which was first
enacted in 1978 under different leadership of this House, Democrat
leadership, and it was reauthorized in three instances since then,
most recently in 1994. The law requires an independent counsel to
advise the House of Representatives of any substantial or credible
information which the independent counsel receives which may
constitute grounds for an impeachment. That is the law. That is
the law of the land, and the independent counsel was required by
that law to submit the communication that we are considering here
now.

Without question in some sense we are in uncharted waters.
There has never been a report from an independent counsel detail-
ing Possible impeachment offenses by a President. Indeed, the inde-
pendent counsel statute itself was an outgrowth of the Water;
era. However, we are guided very much by precedent and by his-
tory in this matter, as is often the case in the House of Representa-
tives. We always try to follow precedent.

The resolution before us will enable the House, through the de-
liberations of the House Judiciary Committee, to responsibly re-
view this important material and to discharge its duty, particularly
with respect to the availability of the contents of this communica-
tion to Members of this Congress, to the public and to the media.

It is important that we American people learn the facts regard-
ing this matter, and that isn’t just Members of Congress, that is
we, the American people. As directed by the Speaker, no one, no
Member or congressional staffer, has seen the transmission which
arrived yesterday, not one page, not one word. However, it is the
understanding of the Rules Committee that the communication
contains the following: 445 pages of a communication which is di-
vided into an introduction, a narrative, and a socalled grounds. An-
other 2,000 pages of supporting material is contained in the appen-
dices, which may contain grand jury testimony, telephone records,
videotape testimony and other sensitive material; and 17 other
boxes of supporting material.

The method of dissemination and potential restrictions on access
to this very, very critical information is outlined in the resolution
before the Rules Committee today, which as of this moment does
appear on the Web site for the American people to look at.


43

Ill. The Criminality Issue

The phrase “high Crimes and Misdemeanors” may connote “crimi-
nality” to some. This likely is the predicate for some of the contentions
that only an indictable crime can constitute impeachable conduct.
Other advocates of an indictable-offense requirement would establish
a criminal standard of impeachable conduct because that standard is
definite. can be known in advance and reflects a contemporary legal
view of what conduct should be punished. A requirement of crimi-
nality would require resort to familiar criminal laws and concepts to
serve as standards in the impeachment process. Furthermore, this
would pose problems concerning the applicability of etandards of proof
and the like pertaining to the trial of crimes."

The central issue raised by these concerns is whether requiring an
indictable offense ns an essential element of impeachable conduct is
consistent with the purposes and intent of the framers in establiehing
the impeachment power and in setting a constitutional standard for the
exercise of that power. This issue must be considered in light of the
historical evidence of the framers’ intent.’ It is also useful to consider
whether the purposes of impeachment and criminal law are such that
indictable offenses can, consistent with the Constitution, be an essen-
tial element of grounds for impeachment. The impeachment of a Presi-
dent. must occur only for reasons at least as pressing a8 those needs of
government that give rise to the creation of criminal offenses, But this
does not mean that the various elements of proof, defenses, and other
substantive concepts surrounding an indictable offense control the im-
peachment process. Nor does it mean that state or federal cri
codes are necessarily the place to turn to provide a standard under the
United States Constitution. Impeachment is a constitutional remedy.
The framers intended that the impeachment language they employed
should reflect the grave misconduct that so injures or abuses our con-
stitutional institutions and form of government as to justify impeach-
ment.

This view is supported by the historical evidence of the consti-
tutional meaning of the words “high Crimes and Misdemeanors.”
That evidence is set out above.’ It establishes that the phrase “high
Crimes and Misdemeanors”—which over a period of centuries evolved
into the English standard of impeachable conduct—has a special
historical meaning different from the ordinary meaning of the terms
“crimes” and “misdemeanors.” “High misdemeanors” referred to a

Teratree a enfyia 5
Ecaminallty oy rauber conduct eubvernive of cur cvmstitecional tnsticatie

Tipe fale of comstraction axainst revupdancy indicates an intwat set
aaltts. If ertminallty 1s required, the word “Misdemeanors” woald 264

rt IER. ewpre, pp. 7-17.
vt 1LB2. eupre, pp. 11-13.

(22)


74
53

Judge English resigned six days before the date set for trial in the
Senate. The House Managers stated that the resignation in no wa:
affected the right of the Senate to try the charges, but recommended
that the impeachment proceedings be discontinued.” The recommen-
dation was accepted by the House, 290 to 23.

b. Articles of Impeachment

Article I charged that Judge English “did on divers and various
occasions so abuse the powers of his high office that he is hereby
charged with tyranny and oppression, whereby he hes brought the
administration of justice in [his] court . . . into disrepute, and . . .
is guilty of misbehavior falling under the constitutional provision as

round for impeachment and removal from office.” The article alleged
that the judge had “willfully, tyrannically, oppressively and unlaw-
fully” disbarred lawyers practicing before him, summoned state and
local officials to his court in an imaginary case and denounced them
with profane la: ge, and without sufficient cause summoned two
newspapermen to his court and threatened them with imprisonment.
It was also alleged that Judge English stated in open court that if he
instructed a jury that a man was guilty and they did not find him
guilty, he would send the jurors to jail.

‘Article 11 charged that Judge English knowingly entered into an
“unlawful and improper combination” with a referee in bankruptcy,
appointed by him, to control bankruptcy proceedings in his dis-
trict for the beneft and profit of the judge and hia relatives and
friends, and amended the bankruptcy rules of his court to enlarge the
authority of the bankruptcy receiver, with a view to his own benefit.

Article I charged that Judge English “corruptly extended favorit-
ism in diverse matters,” “with the intent to corruptly prefer” the
referee in bankruptcy, to whom English was alleged to be “under great
obligations, financial and otherwise.”

Article IV charged that Judge English ordered bankruptcy funds
within the jurisdiction of his court to be deposited in banks of which he
was a stockholder, director and depositor, and that the judge entered
into an agreement with each bank to designate the bank a deposito:
of interest-free bankruptcy funds if the bank would employ the judge's
son as a cashier. These actions were stated to have been taken “with the
wrongful and unlawful intent to use the influence of his . . . office as
judge for the personal profit of himself” and his family and friends.

Article V alleged that Judge English’s treatment of members of the
bar and conduct in his court during his tenure had been oppressive to
both members of the bar and their clients and had deprived the clients
of their rights to be protected in liberty and property. It aleo alleged
that Judge English “st diverse times and places, while acting as such
judge, did disregard the authority of the laws, and .. . did refuse to
allow . .. the benefit of trial by jury, contrary to his... trust and duty
as judge of said district court, against the laws of the United States
and in violation of the solemn oath which he had taken to administer
equal and impartial justice.” Judge English’s conduct in making deci-
sions and orders was alleged to be such “as to excite fear and distrust
and to inspire » widespread belief, in and beyond his judicial district



83

Now, there is an initial question that I cannot leave this hearing
without Putting forward, and that is the very simple fact that the
House of Representatives is not the U.S. Postal Service. We are not
a delivery system for Kenneth W. Starr. We ought not, we cannot,
we should not release anything to anybody unless we know what.
it is we are releasing. This cannot be an, oops, I am sorry, we
didn’t know. And so inadvertently in our discussions we have now
sanctified the first 445 pages that we are now going to release to
the planet Earth and nobody here has any idea of what is con-
tained. We do know that there are prosecutorial comments, that
there are allegations, that there are assertions. Obviously we
haven’t been 5 years and waiting for a report that would not con-
tain these kinds of assertions.

But as to their validity and accuracy, Mr. Chairman and Mem-
bers, nobody knows. Nobody. We don’t know. And so I would hope
that there may be sympathy within this hearing today to recognize
that for us to dump the first 445 pages and then tell everybody
about how carefully we are going to scrutinize the other several
thousand pages does not comport to the lofty goals that we should
have, in my view.

Now, there is one other small detail, and it is probably semanti-
cal, but this is not the beginning of an impeachment inquiry. The
Chairman very accurately made it clear. For those of you who
think we are going into an impeachment inquiry, there are several
possibilities. ne of them is you may be profoundly disappointed or
relieved that nothing like that ever happens because every word,
every sentence, every assertion, every allegation in all of the thou-
sands of pages, the 17 boxes included, are going to be carefully re-
viewed and scrutinized.

Now, there is, as likely as any other scenario, a possibility that
there is nothing that comes within 500 miles of an article of im-
peachment in any of this material. Maybe. We don’t know.

And so what the independent counsel has done is his duty under
the law that was written in the Judiciary Committee that he de-
liver these materials, whatever they may say, whatever views he
may have, and that is his duty and privilege to send them to us.

It does not indicate that we go—as a matter of fact, there has
to be a vote in the Judiciary Committee after we inquire into this,
whether we hold executive sessions or whatever methods yet to be
determined that we resort to, how we will come to a conclusion of
what it is we are to do. So I think it is very important that that
be understood.

Now, I referred to the dean of the House of Representatives in
a very personal way. I have known John Dingell and his family
long before I came to Congress, and I agree that we should make—
as he does—that we should make all of the materials available as
immediately as possible. I do not share the view that we should not
look at anything because Kenneth W. Starr, a person with whom
I have had from the floor of the House many discussions, I have
never had the pleasure of meeting him, and it may not be unlikely
that we may have to meet him before these proceedings are
through, but he said two things in his transmittal letter. One, this
is not a report, this is a referral. And he said this referral contains


Sven 7
as)

INDEPENDENT COUNSEL REPORT

HEARING

BEFORE THE

COMMITTEE ON RULES
HOUSE OF REPRESENTATIVES

ONE HUNDRED FIFTH CONGRESS
SECOND SESSION
ON

H. RES. 525

PROVIDING FOR A DELIBERATIVE REVIEW BY THE COMMITTEE ON THE
JUDICIARY OF A COMMUNICATION FROM AN INDEPENDENT COUN-
SEL, AND FOR THE RELEASE THEREOF, AND FOR OTHER PURPOSES

September 10, 1998

Printed for the use of the Committee on Rules

a

U.S. GOVERNMENT PRINTING OFFICE
We 80-863 cc WASIIINGTON : 1998

For saleby the US. Government Printing Office
‘Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
ISBN 0-16-057532-X


109

pages of allegations, and to publish it on the Internet without bi-
partisan review falls short of this standard.

In 1974, the report from the special prosecutor, Leon Jaworski,
and the grand jury material were kept confidential so the House
Judiciary Committee could sift through them thoroughly. The pro-
posal to release the independent counsel report without piving the

esident’s counsel the opportunity to see the report falls short of
this standard.

In 1974, the President and his lawyers were permitted to see the
evidence and to cross-examine witnesses over weeks of closed ses-
sions. Discussions that the Judiciary Committee be permitted to
act using procedures not as fair as those used in 1974 cannot meet
the standard.

The proceedings in 1974 were conducted in a manner that en-
sured a fully bipartisan process by providing, for example, that
subpoenas be issued upon joint agreement, or if agreement could
not be reached, by either Majority or the Minority acting sepa-
rately. Proposals that would provide for committee action on the
sole authority of the Republican Majority without sharing the deci-
sion—making as was done in 1974 falls short of the 1974 yardstick
of fairness.

Because of the thorough deliberative procedures used during the
Watergate proceedings, the ultimate result was not only fair, but
was perceived to be fair. This is the standard by which we, too, will
be judged. If we fail to follow this example, we will abdicate the
solemn duty that the Constitution entrusts to us and to us alone.
If we fall short of the yardstick of fairness, the American people
will correctly see the cause as partisanship. The damage done will
be to our country and to our system of government.

This statement is agreed to by myself and several Members of
the House, including my colleagues Mis. Waters, Ms. Sheila Jack-
son-Lee, Mr. Bobby Scott, a member of the committee, as well as
Ms. Slaughter. There are other signatories, including people who
helped draft the statement, so we will have some of their names
tomorrow.

I would like to note in reviewing this resolution some additional
concerns. I note in section 4 and 5 that action is proposed to be
taken by the Chairman after consultation with the Ranking Mem-
ber, and I would contrast that with H.Res. 803 approved by the
House of Representatives February 1, 1974, wherein on the second

age, line 9, the authority of the committee is exercised by the

hairman and the Ranking Minority Member acting jointly, or, if
either declines to act, by the other acting alone. Either shall have
the right to refer decisions to the committee and so forth.

What is proposed here is actually a decision made by the Repub-
licans without equal authority by the Minority. It is far short of
what this Congress did in 1974. It is insufficiently bipartisan and
will lead to unwise results for this country.

The CHAIRMAN. Thank you very much, and we would repeat the
accolades that we had for Ms. Waters as well.

The CHAIRMAN. Let me respond briefly on the fairness issue.

You do understand that if the Rules Committee should not act
at all, in other words if the Congress, the House of Representa-
tives, were to receive a report from a President, from the General


H.RES. 525, PROVIDING FOR A DELIBERATIVE
REVIEW BY THE COMMITTEE ON THE JUDI-
CIARY OF A COMMUNICATION FROM AN
INDEPENDENT COUNSEL AND FOR THE RE-
LEASE THEREOF, AND FOR OTHER PUR-
POSES

Thursday, September 10, 1998

HOUSE OF REPRESENTATIVES,
COMMITTEE ON RULES,
Washington, D.C.

The committee met, pursuant to call, at 5:43 p.m. in Room H-
313, The Capitol, Hon. Gerald B.H. Solomon [chairman of the com-
mittee] presiding.

Present: Representatives Solomon, Dreier, Goss, Linder, Diaz—
Balart, McInnis, Hastings, Myrick, Moakley, Frost, Hall and
Slaughter.

The CHAIRMAN. The committee will come to order. The matter
before the committee today is House Resolution 525, providing for
a deliberative review by the Committee on the Judiciary of a com-
munication from an independent counsel and for the release there-
of and for other purposes. Before my brief opening statement, let
me yield to the Vice Chairman, Mr. Dreier and to tell you he is a
new-generation Congressman, even though he has been here for 18
years, and he will tell you how to call this up on the Rules Web
site.

Mr. DRrereR. Thank you, Mr. Chairman. For those interested in
getting a copy of this resolution, it is available at www.house.gov/
rules/hres525.htm.

For those who want to have a copy of this brilliant statement
that the Chairman is about to present, they can go to
www.house.gov/rules/gbsstate.htm.

Do you understand all of that, Mr. Chairman?

STATEMENT OF HON. GERALD B.H. SOLOMON, A REPRESENTA-
TIVE IN CONGRESS FROM THE STATE OF NEW YORK

The CHAIRMAN. That is why I call him the next generation,

I do have a brief opening statement after which I will yield for
any statement from Mr. Moakley, and then I will yield to any
members of the committee for any statement that they might have
as well.

Today, ladies and gentlemen, the Rules Committee embarks on
one of the most unfortunate and difficult tasks that many of us

q@


110

Accounting Office, from the Joint Economic Committee, from the
Justice Department, or from an independent counsel without this
committee acting, the procedure would be, that is if we were to not
present to this House of Representatives tomorrow a preferential
resolution to set the parameters of what information will be made
public, under the rules of the House every word, every page, every
grand jury procedure, testimony, every videotape, audiotape, every-
thing in all 17 of those boxes would automatically become a public
document and be available to the media and to the public. It would
be a public document. That is the rule of the House.

In an act of fairness, because we understand much of your testi-
mony where there are innocent people involved, where there is tes-
timony that might be explicitly sexual that I would not want my
granddaughter to see or read about in the paper, that information
should be withheld if it is not pertinent, and we are doing every-
thing we can to make sure that that doesn’t happen, and I hope
you understand that that is the normal procedure, the normal rules
of the House.

Speaker Gingrich has been criticized by some, a very, very small
number, for having the Rules Committee become involved, but that
is exactly what would happen if we did not present a resolution to
the Congress tomorrow.

Now, on the question of whether or not the Chairman and the
Ranking Member will only have access in the beginning, we have
polled our Republican Members, and they are going to abide by the
wishes of Chairman Hyde, and that means that Chairman Hyde is
going to be able to look at that information.

Now, Mr. Conyers is equally respected on his side of the aisle.
You are members of the Judiciary Committee, and I assume that
you and other Members are going to allow Mr. Conyers to look at
that information and then pass it on to you for your final judg-
ment. That is what was done in Watergate, and that is what we
are doing here, but we do not intend to deprive other members of
the committee from having the final say on whether or not that in-
formation is going to be withheld, and you all should—if I were a
member of that committee, I would insist that I have that right
representing 600,000 people in the Hudson Valley of the State of
New York.

Now, concerning the President’s ability to receive the information
24 or 48 hours earlier, Lawrence Walsh of Boston, Massachusetts,
who was the Iran-Contra independent counsel, stated clearly ear-
lier today that the President’s attorneys already know substantially
the information that is contained in the 445 pages, and, therefore,
in his opinion, they have already prepared their public relations re-
sponse. As far as their legal response, that will not come for many
days until they are called before your committee. In his infinite
wisdom, and I didn’t agree with him on the Iran-Contra proce-
dures, but he believes that has already been taken care of by the
President's attorneys, and I believe that as well.

Therefore, we appreciate your testimony, and I would yield to
Mr. Moakley, perhaps, for any comment that he has.

Mr. MOAKLEY. No questions.

The CHAIRMAN. Any questions from my side of the aisle or the
Democrats?


31
10

Impeachment had been included in the proposals before the Constitu-
tional Convention from its beginning.” .\ specific provision. making
the executive removable from office on impeachment and conviction
for “mal-practice or neglect of duty,” was unanimously adopted even
Lefore it was decided that the executive would be a single person.”®

The only major debate on the desirability of impeachment occurred
when it was moved that the provision for impeachment be dropped,
fn motion that was defeated by a vote of eight states to two.*

One of the arguments made against the impeachability of the exec-
utive was that he “would periodically be tried for his behavior by
his electors” and “ought to be subject to no intermediate trial, by
impeachment.” * Another was that the executive could “do no crimi-
nal act without Coadjutors [assistants] who may be punished.” *
Without his subordinates, it was asserted, the executive “can do noth-
ing of consequence,” and they would “be amenable by impeachment to
the public Justice.” *

This latter argument was made by Gonveneur Morris of Pennsyl-
vania, who abandoned it during the course of the debate, concluding
that the executive should be impenchable.” Before Morris changed
his position, however, George Mason had replied to his earlier
arguinent ;

Shall any man be above justice t Above all shall that man
be above it, who can commit the most extensive injustice!
When great crimes were committed he was for punishing the
principal as well as the Coadjutors.”

James Madison of Virginia argued in favor of impeachment stating
that some provision was “indispensible” to defend: the community
against “the incapacity, negligence or perfidy of the chief Magistrate.”
With a single executive, Madison argued, unlike s legislature whose
collective nature provided security, “loss of capscity or corruption
was more within the compass of probable events, and either of them
might be fatal to the Hepablie Benjamin Franklin supported

The Vi an, fitters reantntions proposed by EAmnnd Rasdolph at the besinais:

recente Fier A Stae paste at Ie eariy aeloerutione. Tbe sist feeoletion arr
iheloatjoeal Jesictary ferietiction ever “impeachments of aay National o@icers- 1 Far.
Jatt beeen the adontin of thie provision. e proponal te mane ihe

from office by legisiatere Le FeTeert, of a majority of the
ht been rela! ed. [4 87. the course of ite on
Te was sursestea tat the ferilatare “shetld, have,

surgested that care te

Executive at pleavere"—e. 95 a that was promptly criticised ‘him "tbe
of the Lexislatere” Im violation of “the fal principle of geod

Gaverament.” and was sever formally te the Convention. 4. 85-86.

TF eu. 80.
23 Permuoa a7 (Ratna Kine). Rtmflarty, Gouversene Morte contended that 1
ive coareed with

‘a ertratoal act were reelected, “that will be eufictent proof of

cheat jou, that the exrentive
a apparcet aliucien to the constitutions of
that the governor (unlike other officers)
. Bee T Thorpe, The Foteral and State Con.
‘revpouse t= this position, it was argued

le will ‘be efforts or po means whatever

meet ." 4, wiiam De ot Herth Careiiag. ee pega
George Mason asserted that the dancer electors ished

i ae ctiat i Sac iad Sie ween pte
a's Grant Bente RODS STEN Speman ae ant rca end To
ewape puntshment. by repesting bis gailt C4
ad parang si

You (strate te pet the King but the prime-Minister. The peuple are the King.”



90

was made. But I was in that conversation all during the meeting
and I can tell you that no decision was made.

Mr. Frost. Will the gentleman yield?

Mr. MoakLey. Glad to yield.

Mr. Frost. As the gentleman knows, the gentleman from Massa-
chusetts was not able to be present last night because he had to
be in Massachusetts to attend a funeral. I was there on his behalf.
The people in the room were the Speaker, the Majority Leader, the
Minority Leader, the two gentlemen at this table, myself and Mr.
Solomon.

The Speaker at that meeting said that this was what he was pro-
posing. Mr. Gephardt went back to the members of the Judiciary
Committee. Mr. Gephardt had to leave town today to attend his
son’s wedding. When he—when he left town—when he left town it
was Mr. Gephardt’s understanding that the agreement was as de-
scribed by Mr. Hyde; that the two Members at the table would re-
view the documents, not the entire committee.

The Speaker appeared on television at noon today. I watched his
appearance, and the Speaker said at noon today that it would be
the two gentlemen who would review the material, not the entire
committee.

Some time after that the majority on this committee changed the
agreement between the Speaker and the Minority Leader. It is very
important that we act in a bipartisan manner. The two gentlemen
at the table have attempted to do so, Mr. Gephardt has attempted
to do so, I believe the Speaker was attempting to do so, but for
some reason unexplained the majority on this committee has
ghany ed the agreement made between Mr. Gephardt and the

speaker.

The CHAIRMAN. Would the gentleman yield at that point?

Mr. MOAKLEY. I yield.

The CHAIRMAN. I would just have to differ with my very good
friend, Mr. Martin Frost of Texas. The fact is that there is divided
opinion on this in both parties. You are going to hear testimony,
again, from my good friend Peter Deutsch who will return in a mo-
ment, a Democrat who disagrees with that and who thinks we
ought to make all the information available immediately. We are
trying to arrive at a bipartisan agreement that will receive the
strongest vote possible, as I alluded to before, and I believe that it
will.

Now if you want to test this, you know first of all, and this is
confusing to perhaps the listening audience, but we are not consid-
ering a rule here today, we are considering a privileged resolution.
We will go to the floor not with a rule but with a privileged resolu-
tion, and we do so under existing rules of the House.

The privileged resolution is not amendable when you take it to
the floor, and therefore any change that we were to make up here
would have to be with a vote of this— a majority vote of this com-
mittee would then take that amendment to the floor and have it
ratified separately on the floor. We will not do that. We will take
this resolution to the floor.

Should the opposition party want to make a change, they could
attempt to defeat the previous question to try to offer an amend-
ment. And if you want to test this on the floor to see if your party,


85

the fairness that will make the system work. Because if the first
vote is not bipartisan, I think it sends a signal that is not what
we desire. It doesn’t say that we’re shot or—I don’t predict dire
consequences.

But I think that the history of the beginning of this, Chairman
Solomon, and you served here for a couple decades, this is a his-
toric moment for those Members who may not be serving any
longer. And I would like to say as many good things about you and
your career, as you have benefited us with your kindness and your
confidence as we appear here today, and I thank you for the time
very much.

The CHAIRMAN. Well, thank you, John Conyers, and thank you,
Henry Hyde, for your very professional testimony, but more than
that your sincere testimony, and we know it comes from both your

earts.

Let me just respond briefly. You both spoke of decorum in the
House and the committees. You both spoke of Speaker Gingrich’s
statement on the floor of the House urging and demanding, as a
matter of fact, Members show proper decorum and proper respect
for the presidency.

In light of that, I had prepared an additional statement which
I would ask unanimous consent to submit for the record—without
objection, it will be—which sets forth many of the things that have
been said where Members’ words were taken down, going all the
way back to the year 1811, as examples of what you cannot say.
And then it cites some of the things that were upheld by the Chair
that could be said, and we would make that available for the
record.

[The information follows:]


13

The CHAIRMAN.Thank you. Let me yield to the gentleman from
Pasco, Washington, Mr. Hastings.

STATEMENT OF HON. DOC HASTINGS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF WASHINGTON

Mr. Hastines. Thank you, Mr, Chairman. Unlike my friend from
Colorado, I am not sure I am elated to be here. I can say when I
first ran for this office, I would never have pictured myself in this
body having to take up this issue. But nevertheless, we are here,

we have to fulfill our duties.

I just want to make one point because it has been said—it hasn’t
been said here, fortunately, but I have heard some of my colleagues
and media say that we are entering a time of constitutional crisis.
I want to disagree with that very strongly. I would suggest that the
potential crisis may be a crisis in governance. It may be a potential
crisis in the confidence of the people that sent us here, but it is not
a constitutional crisis, and it is for that reason that as I serve in
this body, I am continually in awe of how smart our Founding Fa-
thers were because they have laid out a clearcut procedure tor us
to deal with these issues when they come up in order to prevent
a constitutional crisis.

We do not know where this is going to lead, obviously. It is going
to be very, very difficult for all of us, and I know that the Chair-
man and Ranking Member of the Judiciary Committee will do the
best that they can do as the Constitution has laid out.

With that, Mr. Chairman, while I wish that I were not here tak-
ing this up, we do have that duty, and I will do my best to fulfill
my obligations under the Constitution.

The CHARMAN. I thank the gentleman from Washington, and
pow I yield to the gentlelady from Charlotte, North Carolina, Mrs.

yrick.

STATEMENT OF HON. SUE MYRICK, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NORTH CAROLINA

Mrs. Myrick. Thank you, Mr. Chairman. I want to congratulate
you and Chairman Hyde and Mr. Conyers for your fair and biparti-
san treatment of this issue. No one has to be reminded that this
is a solemn duty, and I would like to associate myself with your
remarks regarding the decorum of Congress and encourage every-
body to keep that in mind as to how we need to conduct ourselves
in this solemn time in our history.

The CHAIRMAN. Thank you.

I thank our first panel for waiting. It was necessary to lay out
the parameters of the debate for our Rules Committee. You have
heard the esteem for which we hold the two of you. We can recall
pack in the mid-1970s when your predecessor, Mr. Hyde, was a
man named Peter Rodino, an outstanding Member from New Jer-
sey, and still an outstanding individual.

there was a Ranking Member, a Republican at the time, Con-
gressman Hutchinson from Michigan, and there was a man named
lamilton Fish. He was my neighbor. He was a Republican. You all
served with him, and he was a marvelous individual. He strikes me
as being similar to the two of you, being fair at all times, and we
miss him dearly. He is no longer with us, as you know. But he


55
4

but the prime-Minister. The people are the King.” He added that care
should be taken to provide a mode for making him amenable to justice
that would not make him dependent on the legislature. (II: 69)

George Mason of Virginia was a strong advocate of the impeach-
ability of the executive; no point, he said, “is of more importance than
that the right of impeachment should be continued” :

Shall any man be above Justice? Above all shall that man be
above it, who can commit the most extensive injustice? When
great crimes were committed he was for punishing the prin-
cipal as well as the Coadjutors.

(This comment was in direct response to Gouverneur Morris's original
contention that the executive could “do no criminal act without & -
jutors who may be punished.”) Mason went on to say that he favored
election of the executive by the legislature, and that one objection to
electors was the denger of their being corrupted by the candidates.
This, he said, “furnished a peculiar reason in favor vf impeachments
whilst in office. Shall the man who has practised corruption & by that
means procured his appointment in the first instance, be suffered to
escape punishment, by repeating his guilt 1” (11:65)

Benjamin Franklin supported impeachment 1s “favorable to the
Executive.” At a time when first magistrates could not formally be
brought to justice, “where the chief Magistrate rendered himeelf
obnoxious. . . . recourse was hed to assassination in wch. he was not
only deprived of his life but of the opportunity of vindicating his
character.” It was best to provide in the Constitution “for the regular
punishment of the Executive when his misconduct should deserve it,
and for his honorable acquittal when he should be unjustly accused.”
(I: 65)

James Madison argued that it was “indispensable that some provi-
sion should be made for defending the Community agst the incapac-
ity, negligence or perfidy of the chief Magistrate.” A limited term
“was not a sufficient security. He might lose his capacity after his
appointment. He might pervert his administration into a scheme of
peculation or oppression. He might betray his trust to foreign powers.”
(II: 65-66) It could not be presumed that all or a majority of a leg-
islative body would lose their capacity to discharge their trust or
bribed to betray it, and the difficulty of acting in concert for purposes
of corruption provided a security in their case. But in the case of the
Executive to be administered by one man, “loss of capacity or corrup-
tion was more within the compass of probable events, and either of
them might be fatal to the Republic.” (II: 66) .

Charles Pinckney reasserted that he did not see the necessity of
impeachments and that he was sure “they ought not to issue from the

islature who would .. . hold them as rod over the Executive
and by that means effectually destroy his independence,” rendering his

legislative revisionary power in particular altogether insignificant.

(IL: 66)
Elbridge Gerry argued for impeachment as a deterrent: “A good
‘: nae ll pot fear them. A one ought, to be kept in fear of
them.” He hoped that the maxim that the chief magistrate could do
no wrong “would never be adopted here.” (IT: 66)
Rufus inst i

King argued sypinst impeachment from the principle of the
seperation of powers. judiciary, it was said, would be impeach-



97

grand jury transcripts, historical precedents which I have here,
which I would like to see included in the record, which might help
a little bit on the confusion about what exactly we are going to re-
view and how it is going to—
The CHAIRMAN. Without objection, it will appear in the record.
{The information follows:]


76
55

consideration” to an application to discharge the receiver ; that “siti

in a part of the court to which he had not been assigned at the time,

he took jurisdiction of s case although knowing that the facta and

law compelled dismissal; and that this conduct was “filled with

partielity and favoritism” and constituted “misbehavior” and a “mis-
lemeanor in office.”

‘Article V, a8 amended, charged that “the reasonable and probable
result” of Louderback’s actions alleged in the previous articles “has
been to create # general condition of widespread fear and distrust and
disbelief in the fairness and disinterestedness” of his official actions.
It further alleged that the “general and gate result” of the con-
duct had been to destroy confidence in Louderback’s court, “which for
a Federal judge to destroy is » crime and misdemeanor of the highest
order.

c. Proceedings in the Senate

A motion by counsel for Judge Louderback to make the original
Article V more definite was consented to by the Managers for the
House, resulting in the amendment of that Article.”

Some Senators who had not heard all the testimony felt unqualified
to vote upon Articles I through IV, but capable of voting on Article
'V, the omnibus or “catchall” article.”

‘Judge Louderback was acquitted on each of the first four articles,
the closest rote being on Article I (34 guilty, 42 not guilty). He
was then acquitted on Article V, the vote being 45 guilty, 34 not
guilty—short of the two-thirds majority required for conviction.

18, DIGTRICT JUDGE HAISTED L. RITTER (1983-1986)

a. Proceedings in the House

A resolution directing an inquiry into the official conduct of Dis-
trict Judge Ritter was adopted by the House in 1933.° A subcom-
mittee of the Judiciary Committee took evidence in 1933 and 1934.
‘A resolution that Ritter “be impeached for misbehavior, and for high
crimes and misdemeanors,” and recommending the adoption of four
articles of impeachment, was reported to the full House in 1936. and
adopted by a vote of 181 to 146." Before trial in the Senate, the House
approved a resolution submitted by the House Managers, replacing
the fourth original articles with seven amended ones, some charging
new offenses.”

b. Articles of Impeachment

Article I charged Ritter with “misbehavior” and “a high crime and
misdemeanor in office,” in fixing an exorbitant attorney’s fee to be paid
to Ritter’s former aw partner, in disregard of the “restraint of pro-
priety... and... danger of embarrassment”; and in “corruptly and
unlawfully” accepting cash payments from the attorney at the time
the fee was paid.

Article IT charged that Ritter, with others, entered into an “ar-
rangement” whose purpose was to ensure that bankruptcy property

77 Cone. Rac, 1857, 4086 (1933).
1A632, 1857.
4082

878.
Cone. Ree. 2066-3092 (1936).
= 14, 4897-4601.


37
16

Those who asserted that the President has exclusive removal power
suggested that it was necessary because impeachment, as Elias Boudi-
not of New Jersey contended, is “intended as 8 punishment for a crime,
and not intended as the ordinary means of re-arranjing the Depart-
ments.” "* Boudinot suggested that disability resulting from sickness
or accident “would not furnish any good ground for impeachment;
it could not bo Inid as treason or bribery, nor perhaps as a high crime
or misdemeanor.” Fisher Ames of Massachusetts argued for the
President's removal power because “mere intention (to do a mischief]
would not be cause of im; hment” and “there may be numerous
causes for removal which do not amount to a crime.” "* Later in the
same 8] Ames that impeachment was available if an
officer Pnisbehaves” * and for “mal-conduct.” *

One further piece of contemporary, evidence is provided by the
Lecturen on Lavo delivered by James Wilson of Pt lvania in 1790
and 1791. Wilson described impeachments in the United States as “con-
finod to political characters, to political crimes and misdemeanors, and
to political punishment.” * And, he said :

The doctrine of impeachments is of high import in the con-
stitutions of free states. On one hand, tho most powerful mag-
istrates should be amenable to the law: on the other hand,
elevated characters should not be sacrificed merely on account
of their elevation. No one should be secure while he violates
the constitution and the laws: every one should be secure while
he observes them."?

From the comments of the framers and their contemporaries, the
remarks of the delegates to the state ratifying conventions, and the
removal power debate in the First Congress, it is apparent that the
scope of impeachment was not viewed narrowly. It was intended to
Prrvide acheck on the President through impeachment, but not to make
him dependent on the unbridled will of the Congress.

Impeachment, as Justice Joseph Story wrote in his Commentaries on
the Constitution in 1833, applies to offenses of “a political character”:

Not but that crimes of a strictly legal character fall within
the scope of the power . . .; but that it has a more enla:
operation, and reaches, what are aptly termed political of-
fenses, growing out of personal misconduct or gross neglect,
or usurpation, or habitual disregard of the public interests,
in the discharge of the duties of political . These are 80
various in their character, and #0 indefinable in their actual
involutions, that it is almost impossible to provide systemat-
ically for them by positive law. They must be examined upon
very broad and comprehensive principles of public policy and

as:
314, 477, The propecents of the Presifeat's removal power wars caretal to
impeachinent tary matbed. of elecutive aMidain, Madison mid
Impeachment will rench'a seberdisate “whoes bad actinus may be oumiiived at or everiouked

~The Constitation | for—what? That ne bad man should come inte office... But
uypoce that ope wock Could be sot ta. be cum be met out asain fe Genvite of coe President
ee a.

f


49


Oo OY AW & WwW HE

NON See ee ee ew ee
RPRREBSeIRAAEBESS

118
2

tion that substantial and credible information received by
the independent counsel in carrying out his responsibilities
under chapter 40 of title 28, United States Code, may con-
stitute grounds for an impeachment of the President of
the United States, and related matters, to determine
whether sufficient grounds exist to recommend to the
House that an impeachment inquiry be commenced. Until
otherwise ordered by the House, the review by the commit-
tee shall be governed by this resolution.

Sec. 2. The material transmitted to the House by
the independent counsel shall be considered as referred to
the committee. The portion of such material consisting of
approximately 445 pages comprising an introduction, a
narrative, and a statement of grounds, shall be printed
as a document of the House. The balance of such material
shall be deemed to have been received in executive session,
but shall be released from the status on September 28,
1998, except as otherwise determined by the committee.
Material so released shall immediately be submitted for
printing as a document of the House.

SEc. 3. Additional material compiled by the commit-
tee during the review also shall be deemed to have been
received in executive session unless it is received in an

open session of the committee.


54
33

SELECTION, REELECTION AND TERM OF THE EXECUTIVE

_ Upon reconsidering the mode of appointment, the Convention voted
six States to three for appointment by electors and eight States to two
that the electors should be chosen by State legislatures. (The ratio of
electors among the States was postponed.) It then voted eight States
to two against the executive's ineligibility for a second term. (11:58)
A seven-year term was rej three States to five; and a six-year
term adopted, nine States to one (II :58-59).

IMPRACHMENT OF THE EXBCUTIVE

On July 20, the Convention voted on the number of electors for the
first election and on the apportionment of electors thereafter. (II :63)
It then tumed to the provision for removal of the executive on im-

ent and conviction for “mal-practice or neglect of duty.” After

lebate, it was ed to retain the impeachment provision, eight states

to two. (11:69) This was the only time during the Convention that the
Purpose of impeachment was specifically addressed.

arles Pinckney of South Carolina and Gouverneur Morris moved

to strike the impeachment clause, Pinckney observing that the execa-

tive “[ought not to] be impeachable whilst in office.” (A number of

State constitutions then n provided for im ent of the executive

only after he hed left office.) James Wilson and William Davie of

North Carolina argued that the executive should be impeschable while

in office, Davie commenting:

If he be not impeachable whilst in office, he will spare no
efforts or means whatever to get himself re-elected.
Davie called his impeachability while in office ‘an essential security
for the good behaviour of the Executive.” (II :64)
Gouverneur Morris, reiterating his previous argument contended
that the executive “can do no criminal act without Coadjutors who
-may be punished. In case he should be re-elected, that will be sufficient
proof of his innocence.” He slso questioned whether impeachment
would result in suspension of the executive. If it did not, “the mischief
will go on”; if it did, “the impeachment will be nearly equivalent to 8
displacement, and will render the Executive dependent on those who
are to im} .”” (I: 64-85)

‘As the debate proceeded. however, Gouverneur Morris changed his
mind. During the debate, he admitted “corruption & some few other
offenses to be such as ought to be im ble,” but he thought they
should be enumerated and defined. (II: 65) By the end of the discus-
sion, he was, he said, “now sensible of the necessity of impeachments,
if the Executive was to continue for any time in office.” He cited the
possibility that the executive might “be bribed by a greater interest
to betray his trust.” (11:68) While one would think the King of Eng-
land well secured against bribery, since “[h]e has as it were a fee sim-

Je in the whole Kingdom,” yet, said Morris, “Charles II was bribed
Louis XIV. The Executive ought therefore to be impeachable for
treachery.” (II: 68-69) Other causes of impeachment were “[c]or-
rupting his electors” and “incapacity,” for which “he should be pun-
ished not as a man, but as an officer, and punished only by degradation
from his office.” Morris concluded: “This Magistrate is not the King


50

Appendixes
APPENDIX A
Procegpinos OF THE CoNsTITUTIONAL CoNvENTION, 1787

SELECTION, TERM AND IMPEACHMENT OF THE EXECUTIVE

The Convention first considered the question of removal of the ex-
ecutive on June 2, in Committee of the Whole in debate of the Virginia
Plan for the Constitution, offered by Edmund Randolph of Virginia
on May 29. Randolph’s seventh resolution provided : “that a National
Executive be instituted; to be chosen by the National Legislature for
the term of [] years... and to be ine! igible # second time; and that
besides a general authority to execute the National laws, it ought to
enjoy the Executive Tights vested in Congress by the Confederation.” *
Randolph's ninth resolution provided for a national judiciary, whose
inferior tribunals in the first instance and the supreme tribunal in the
last resort would hear and determine (among other things) “impeach-
mente of any National officers.” (I 29)

On June 1, the Committee of the Whole debated, but postponed the
question whether the executive should be a single person. It then
voted, five states to four, that the term of the executive should be seven.

rears. (184 In the course of the debate on this question, Gunning
ford of Delaware, who “was strongly opposed to #0 long a term as
seven years” and favored a triennial election with ineligibility after
nine years, commented that “an impeachment would reach misfeasance
only, not incapacity,” and therefore would be no cure if it were found
that the first magistrate “did not possess the qualifications ascribed to
him, or should lose them after his sppointment.” (1:69

On June 2, the Committee of the Whole agreed. eight states to two,
that the executive should be elected by the national legislature. (I:77)
Thereafter, John Dickenson of Delaware moved that the executive
be made removable by the national legislature on the request of a ma-
jority of the legislatures of the states. It was necessary, he argued,
“to place the power of removing somewhere,” but he did not like the
plan of impeaching the great officers of the government and wished
to preserve the role of the states. Roger Sherman of Connecticut
suggested that the national legislature should be empowered to re-
move the executive at pleasure (1:85), to which George Mason of
Virginia replied that “(Home mode of displacing an unfit magistrate”
was indispensable both because of “the fallibility of those who choose”
and “the corruptibility of the man chosen.” But Mason strongly op-
posed making the executive “the mere creature of the Legislature”
as violation of the fundamental principle of good government. James
Madison of Virginis and James Wilson of Pennsylvania argued
against Dickenson’s motion because it would put small states on an

11 The Records of the Pederet Convention 21 (M. Farrand ed. 1911). All references
tne dix are given parenthetically in the text and refer to the volame

Dereafter in this
Ba peee of Farrand tee. 1:21)"
aa)


79
APPENDIX C

Srconparr Sources on THE Crnawatity lesve

The Association of the Bar of the City of New York, The Law of
Presidential Impeachment and Removal (1974). The study. con-
cludes that impeachment is not limited to criminal offenses but ex-
tends to conduct undermining governmental integrity.

Bayard, James, A Brief Exposition of the Constitution of the United
States, (Hogan & Thompson, Philadelphia, (1833). A treatise on
American constitutional law concluding that ordinary legal forms
ought not to govern the impeachment process.

Berger, Raoul, /mpeachment: The Conatitutional Problema, (Harvard

niversity Press, Cambridge, 1973). A critical historical survey of
English and American precedents concluding that criminality is
not @ requirement for impeachment.

Bestor, Arthur, “Book Review, Berger. /mpeachment: The Conatitu-
tional Problems,” 49 Wash. 1. Rev. 225 (1973). A review concluding
that the thrust of impeachment in English history and as viewed
by the framers was to reach political conduct injurious to the com-
monwealth, whether or not the conduct was criminal.

Boutwell, George, The Constitution of the United States at the End of
the Firat Century, (D. C. Heath & Co., Boston, 1895). A discussion
of the Constitution's meaning after a century's use, concluding that
impeachment had not been confined to criminal offenses.

Brant, Irving, /mpeachment: Trials &: Errors, (Alfred Knopf, New
York, 1972). A descriptive history of American impeachment pro-

ings, which concludes that the Constitution should be read to
limit impeachment to criminal offenses, including the common law
offense of misconduct in office and including violations of oaths of
office.

Brvce, James, The American Commonwealth, (Macmillan Co., New
York, 1931) (reprint). An exposition on American government
concluding that there was no final decision as to whether impench-
ment was confined to indictable crimes. The author notes that in
English impeschments there was no requirement for an indictable
cl

rime.

Burdick, Charles, The Lato of the American Constitution, (G. T.
Putnam & Sons, New York. 1922). A text on constitutional inter-
pretation concluding that misconduct in office by itself is grounds
for impeachment.

Dwight. Theodore, “Trial by Impeachment.” 6 Am. L. Reg. (N.S.)
257 (1867). An article on the eve of President Andrew Johnson's
impeachment concluding that an indictable crime was necessary to
make out an impeachable offense.

Etridge. George, “The Law of Impeachment.” 8 Mies. I. J. 283 (1936).
‘An article arguing that impeachable offenses had a definite meaning
discoverable in history, statute and common law.

(58)


89

give them less puts them at a disadvantage on being able to cast
an informed vote.

And that is why you are charged in this resolution to make avail-
able the maximum amount of information that is being given to
you exclusively and not made available to the public, and we know
of your concerns, which are our concerns, about innocent people.
We know that there are ongoing criminal investigations, perhaps.
All of these things have to be scrutinized by you, and we feel for
you in knowing that is a difficult job.

But I personally will take your recommendations into consider-
ation when you come back and you ask to have certain information
expunged. We will go along with your recommendations because of
the great respect we have for you two gentlemen and your commit-
tee.

So I want you to know that as we process this resolution today,
and I deeply appreciate your testimony.

Mr. Moakley of Boston, Massachusetts.

Mr. MoakL&y. Thank you Mr. Chairman.

Mr. Chairman, and I would like to address this to Chairman
Hyde and to Mr. Conyers: It is my understanding that the Speaker
and the Minority Leader, along with you and Mr. Conyers and oth-
ers, had an agreement that the Chairman and the Ranking Mem-
ber would go through this material before they decided whether it
was relevant or not, before they would expose it to the rest of the
Judiciary Committee.

Am I correct?

The CHAIRMAN. No.

Mr. Hyves. I don’t want to say it was an agreement, That was
my understanding of how—how it would work. That has been a
moveable feast, and discussions have gone on to which I was not
a party and I don’t think John was, between Mr. Gephardt and Mr.
Gingrich, and I don’t know what they came up with.

The advantage of having Mr. Conyers and myself and our des-
ignated staff is one of expedition, one of minimizing the opportuni-
ties for leaks. I know that sounds hyperbolic about members of our
committee and I don’t like to say that, but the more people in the
loop, the more opportunities for unintentional leaks, But I can live
with the other provision. I just—

Mr. MoAKLEY. Mr. Hyde, I know what you can live with but I
thought the agreement last night was what I just stated.

Mr. Hype. I don’t gainsay that, but maybe it was.

Mr. MOAKLEY. You were there.

Mr. Hype. Well, sure, I was there.

The CHAIRMAN. He was there for most of the meeting—for all of
the meeting.

Mr. MoakLEY. All right; do you agree?

The CHAIRMAN. No. As a matter of fact, I don’t like to speak for
other Members especially—

Mr. MOAKLEY. No, I just want your opinion.

The CHAIRMAN. —Other Members of the other party. But I just
have to say that Mr. Gephardt, when he left the meeting, said that
he could not agree to anything at that point because he had to go
back and he had to talk to members from both opinions on the Ju-
diciary Committee and members of the leadership, and no decision


44
23

category of offenses that subverted the system of government. Since
the fourteenth century the phrase “high Crimes and Misdemeanors”
had been used in English impeachment cases to charge officials with
& wide range of criminal and non-criminal offenses against the insti-
tutions and fundamental principles of English government.’

There is evidence that the framers were aware of this special, non-
criminal meaning of the phrase “high Crimes and Misdemeanors” in
the English law of impeachment.* Not only did Hamilton acknowl-
edge Great Britain as “the model from which [impeachment] has
been borrowed,” but George Mason referred in the debates to the
impeachment of Warren Hastings, then pending before Parliament.
Indeed, Mason, who proposed the phrase “high Crimes and Misde-
meanors,” expressly stated his intent to encompass “[a]ttempts to
subvert the Constitution.”* .

The published records of the state ratifying conventions do not
reveal an intention to limit the grounds of im ent to criminal
offenses.‘ James Iredell said in the North Carolina debates on ratifica-
tion:

.., the person convicted is further liable to a trial at
common law, and may receive such common-law punishment
as belongs to a description of such offences if it be punish-
able by that law.

Likewise, George Nicholas of Virginia distinguished disqualification
to hold office from conviction for ertminal conduct:

If [the President] deviates from his duty, he is sible
to his constituents. ... He will be absolutely disqualified to
hold any place of profit, honor, or trust, and liable to fur-
ther punishment if he has committed such high crimes as
are punishable at common law.'®

The vention statements and writings of Alexander Hamil-
ton, James Wilson, and James Madison—each a participant in the
Constitutional Convention—show that they regarded impeachment
as an appropriate device to deal with offenses against constitutional
government by those who hold civil office, and not a device limited
to criminal offenses." Hamilton, in discussing the advantages of a.
single rather than a plural executive, explained that a single e:
tive gave the people “the opportunity of discovering with facility
and clearness the misconduct of the persons they trust, in order either
to their removal from office, or to their actual punishment in cases.
which admit of it.” ’? Hamilton further wrote: “Man, in public trust,
will much oftener act in such a manner as to render him unworthy
of being any longer trusted, than in such a manner as to make him
obnoxious to | punishment.” *

The American experience with impeachment, which is summarized
above, reflects the principle that impeachnble conduct need not be

* Bee part ITA. supra, 61.
TES peta! woprerpp. 12-18.
$Sez caft TL.B.8. ewpra, pp. 12-15.
* 4 Elliot 114.
= bee pert {1B.1, evpre p. 8; part IT.B.3, expra, pp. 12-15, 16
3 Flas Re Tatas 7 16.
fa ar 480.


114

So again, I would urge my colleagues to support the resolution
and to make all of the material available to the American people
immediately.

The CHAIRMAN. Thank you, Mr. Deutsch, and let me, first of all,
just preface my remarks ‘about you and thank you for joining me
jn Jerusalem on the West Bank. We had some very interesting and
informative meetings. You took the time to join us when you were
on vacation, I believe, and we appreciate that.

Having said that, let me say that I would have to disagree with
you, although I agree with your philosophy. This is a preferential
Tesolution which will be going to the floor. It is unamendable.
Therefore, we would have to cl ange this resolution and put only
yours on the floor, and we can’t do that.

However, there will be the opportunity to defeat the previous
question. I'believe that there will be Members on both sides, sub-
stantial Members, who feel the way that you do. Although your
side, the Democratic side in the minority, normally controls the de-
feat of the previous question, the right to make the argument
against it, and then, should you defeat it, have the right to offer
your amendment, that opportunity might be there. And I would
just tell you even though we will not—I believe we will not honor
your request here tonight, we understand where you are coming
from, and we will see what happens on the floor tomorrow.

Any questions to my right?

Any questions to my left?

Mr. Goss first.

Mr. Goss. Thank you.

I want to thank Mr. Deutsch for his kind comments. I do believe
very firmly in the public’s right to know, and I think that is what
is at stake here. But I also understand that this has been a very
difficult process to get to this point, and I think we have worked
it out the best that we can. I feel that we have gone about it the
way that it will have to go forward.

Mr. Deutscu. And I appreciate what Mr. Goss is saying.

I have a concern, though, that really this is not far enough, just
the concerns about where the report is, and I know that you share
that. And you sit literally in a different place than I sit in this com-
mittee room, and I know that as Florida grows, and as more Mem-
bers of Congress are from Florida, we will work on that.

The CHAIRMAN. I want to assure you I will never move back to
Florida. I will be an Adirondacker all my life.

Ms. SLAUGHTER. Here, here.

Mr. Diaz-Ba.arr. I also wanted to thank Mr. Deutsch for his
hard work and for coming before us with this product, but I think
Mr. Goss has very succinctly pointed to the reasons why, in my
view as well, the resolution, Mr. Chairman, that the committee is
proposing, that you have worked so hard on and have led the effort
in bringing forth, is the correct approach. Thank you.

The CHAIRMAN. Mr. McInnis from Colorado.

Mr. McINNIS. Thank you. I appreciate what you say, but one of
the other things that shocked the country was the bombing of the
Olympics. And before the government had substantial and credible
evidence, they released the name of Richard Jewell. They destroyed


123

days to review ethics charges. You are not even giving the Presi-
dent of the United States 1 hour.

The CHAIRMAN. The President of the United States will have a
good 1 hour. He will have access to the first hard copy that is made
tomorrow. Certainly by the time the rest of us Members get it, it
is going to be 2, 3 or 4 hours later, and I will probably miss my
plane until I receive it.

Is there any further discussion? If not, the Chair will put the
question on the amendment by Mr. Hall. All those in favor say aye.

All those opposed, nay.

The amendment is not agreed to.

Mr. HALL. Roll call.

he CHAIRMAN. A roll call is requested. The clerk will call the
roll.

The CLERK. Mr. Dreier.

Mr. DREIER. No.

The CLERK. Mr. Dreier votes no.

Mr. Goss.

Mr. Goss. No.

The CLERK. Mr. Goss votes no.

Mr. Linder.

Mr. LINDER. No.

The CLERK. Mr. Linder votes no.

Ms. Pryce.

{No response.]

The CLERK. Mr. Diaz-Balart.

Mr. Diaz—Baarr. No.

The CLERK. Mr. Diaz-Balart votes no.

Mr. McInnis.

Mr. MCINNIS. No.

The CLERK. Mr. McInnis votes no.

Mr. Hastings.

Mr. HASTINGS. No.

The CLERK. Mr. Hastings votes no.

Mrs. Myrick.

Mrs. Myrick. No.

The CLERK. Mrs. Myrick votes no.

Mr. Moakley.

Mr. MOAKLEY. Yes.

The CLERK. Mr. Moakley votes yes.

Mr. Frost.

Mr. Frost. Yes.

The CLERK. Mr. Frost votes yes.

Mr. Hall.

Mr. HALL. Yes.

The CLERK. Mr. Hall votes yes.

Ms. Slaughter.

Ms. SLAUGHTER. Yes.

The CLERK. Ms. Slaughter votes yes.

Chairman Solomon.

The CHAIRMAN. No.

The CLERK. Mr. Solomon votes no.

The CHAIRMAN. The clerk will announce the results.

The CLERK. Four yeas, eight nays.


CONTENTS

‘SEPTEMBER 10, 1998

Opening statement of the Hon. Gerald BH. Solomon, chairman of the Com-
‘mittee on Rules
ones statement of the Hon. John Joseph Moakley, ranking member of
mmittee on Rules
pening statement of the Hon. David Dreier, vice chairman of the Committee

oan R
statement of the Hon. Tony P. Hall, a member of the Committee
Oper en Re ‘ules (prepared statement on
ing statement of the Hon. Porter J. Goss, a member of the Committee
on Rules
Opening statement of the Hon. Louise M. Slaughter, a member of the Com-
mittee on Rules
Opening statement of the Hon. John Linder, a member of the Committee
n Rules (prepared statement p.11)
Opening statement of the Hon. Lincoln Diaz-Balart, a member of the Com-
mittee on Rules
Opening statement of the Hon. Scott McInnis, a member of the Committee
on Rules
Opening statement of the Hon. Doc Hastings , a member of the Committee
on Rules
Opening statement of the Hon. Sue Myrick , a member of the Committee

Statement of:
"faa Hon. Henry J., a Representative in Congress from the State of
inois

CoP Mchigen

Additional Informatio!

House, Committee Report: Constitutional Grounds for Presidential Im-
peachment. ...

Decorum in the House and in Committees

Congressional Use of Grand Jury Transeripts: Historical Precedents ~

fes. 525: Providing for a deliberative review by the Committee on

Me judiciary of communication from an independent counsel, and

for the release thereof, and for other purposes ..

an

Page

o1
05

07
08
08
09
12
12
13
13

4
82
99
105
108
112


107

I am not going to ask that it be 2 days or 10 days, because I
think you are smart enough, and you have enough integrity, and
you do want to have a procedure that will be viewed as fair by the
‘American people. There are some members of my caucus who said,
don’t even try, they have made up their minds. I have argued with
them that I believe that the members of this committee on both
sides of the aisle still have their minds open to how we can work
not only in a bipartisan way, but in a fair way. And I make that
plea without any shame and without any reservations that you give
the President of the United States a period of time, as long as you
like, as short as you like, but a period of time to respond before
making the 445 pages public.

If I had my way, Mr. Chairman and Members, I would make
sure that the President and Judiciary Committee have ample time
to review the report and its appendices prior to release to the pub-
lic. I would certainly delay the release of the appendices for a lim-
ited time until the Judiciary Committee has wrapped up its work.

The Judiciary Committee members are duly elected to work in
the best interests of the American people. We know that the inde-
pendent counsel has conceded that there are some sensitive mate-
rials in this report. As such, we must remember to be fair. The
chips can fall where they may, but we must remember to enter this
with fairness and proceed at all times with fairness.

In conclusion, the Congressional Black Caucus respectfully asks
that you give the President this opportunity to review and respond
to the charges against him, and we further ask that this process
operate again in complete fairness. We therefore agree with the
proposal to have Chairman Hyde and Congressman Conyers review
the appendices prior to release to the public.

Now, it is very interesting that we have been in this discussion
today about whether or not the Judiciary members will have right
to access rather than just the Ranking Member and the Chair, and
of course I come down on the side basically of all of us being able
to review this material, but think about this. There is a discrep-
ancy that rests in this room today about what was so-called agreed
upon between the Chair and the Ranking Member and the Speak-
er, and it seems to me if we want to get off on a good foot, if we
want to start this right, we will demonstrate right here and now
our ability to do that.

‘As I understand it, this agreement was made, but also with the
caveat that Judiciary members have the right to review and exam-
ine the material under controlled circumstances and conditions. If
that is the case, that is a compromise that allows for both sides ba-
sically to realize what it would like to realize, that we have these
two leaders who will have an opportunity to review and come to
the Judiciary Committee with recommendations, At the same time
you don’t close out the right of Members to see this material under
controlled conditions.

And if we are going to really put our actions where our mouths
are, we are not going to leave here with that misunderstanding
today and just take the opportunity to use whatever majority
power we have to decide one way or the other. I think you can
work this out so we can have what I consider to be fairness in the
process.


67
46

3. Article of Impeachment

After the House voted in favor of impeachment, a committee was
appointed to prepare articles. The single article proposed and finally
adopted Py the House charged that Peck, “unmindful of the solemn
duties of his station,” and “with interest in wrongfully and unjustly
to oppress, imprison, and otherwise i 7 who hed pub-
lished a newspaper article criticizing one of the judge's opinions, had
brought the attorney before the court and, under “the color and pre-
tences” of a contempt proceeding, had caused the attorney to be im-
Brieoned briefly and suspended from practice for eghteen months.

‘he House charged that Peck’s conduct resulted in “the great dis-
paragement of public justice, the abuse of judicial authority, and...
the subversion of the liberties of the people of the United States.” **

¢. Proceedings in the Senate

The trial in the Senate focused on two issues. One issue was whether
Peck, by punishing the attorney for writing & newspaper article, had
exceeded the limits of judicial contempt power under Section 17 of
the Judiciary Act of 1789. The other contested issue was the require-
ment of proving wrongful intent.

Judge Peck was acquitted on the single article with twenty-one Sen-
store voting in favor of conviction and twenty-two Senators sgainst."*

5. DISTRICT JUDOE WEST H. HUMPHREYS (1862)

a. Proceedings in the House

‘A resolution authorizing an inquiry by the Judiciary Committee
respecting District Judge Humphreys was adopted in 1862." Hum-
phreys was subsequently impeached at the recommendation of the in-
vestigating committee."*
b. Articles of Impeachment

Soon after the adoption of the impeachment resolution, seven articles
of impeachment were agreed to by the House without debate.

‘Article { charged that in disregard of his “duties as a citizen...
and unmindful of the duties of his . . . office” as a judge, Hum-
phreys “endeavor(ed] by public speech to incite revolt and rebellion”

st the United States; and publicly declared that the people of

Tennessee had the right to absolve themselves of allegiance to the
United States. . . . . . .

Article II cha: that, disregarding his duties as a citizen, his
obligations as a judge, and the “good behavior” clause of the Consti-
tution, Humphreys advocated and agreed to Tennessee’ ordinance

of secession. . .
Article III chai that Humphreys organized armed rebellion

against the United States and waragainstthem. vs
‘Article 1V charged Humphreys with conspiracy to violate a civil

war statute that made it a criminel offense oppose by force the

authority of the Government of the United States.”

Ter tart oh article, ove H.R. Joon, 21t Cone, it Seam 691-96 (1890).

iS (1831).
Lone, 37th Cong., 24 Sees. 229 (1862)



53
32

Proposal for appointment by the Executire with advice and consent
of the second branch of the legislature, the question was postponed.

IT: 44) The Convention did, however, unanimously agree to strike
the language giving the judiciary jurisdiction of “impeschments of
national officers.” (II: 46)

REELECTION OF THE EXECUTIVE

On July 19, the Convention again considered the eligibility of the
executive for reelection. (IT: 51) The debate on this issue reintroduced
the question of the mode of election of the executive, and it was unani-
mously agreed to reconsider generally the constitution of the execu-
tive. The debate suggests the extent of the delegates’ concern about
the independence of the executive from the legislature. Gouverneur

lorris, who favored reeligibility, said:

One great object of the Executive is to controul the Legis-
lature. The Legislature will continually seek to aggrandize &
perpetuate themselves; and will seize those critical moments
Produced by war, invasion or convulsion for that pu'

t is necessary then that the Executive Magistrate should be
the guardian of the People, even of the lower classes, agst.
Legislative tyranny... (11:52)

The ineligibility of the executive for reelection, he argued, “will
destroy the great incitement to merit public esteem by taking away
the hope of being rewarded with a reappointment. . . . It will tempt
him to make the most of the Short space of time allotted him, to ac-
cumulate wealth and provide for his friends. . . . It will produce vio-
lations of the very Constitution it is meant to secure,” as in moments
of preesing danger an executive will be kept on despite the forms of
the Constitution. And Morris described the impeschability of the
executive as “a dangerous part of the plan. It will hold him in such
dependence that he will be no check on the Legislature, will not be a
firm guardian of the people and of the public interest. He will be
the tool of a faction, of some leading demagogue in the Legislature.”
(11: 33

Mors proposed a popularly elected executive, serving for a two
year term, eligible for reelection, and not subject to impeachment. He
did “not regard ...as formidable” the danger of his unimpeachability:

There must be certain great officers of State; « minister of
finance, of war, of foreign affairs &. These he presumes
will exercise their functions in subordination to the Execu-
tive, and will be amenable by impeachment to the public
Justice. Without these ministers the Executive can do noth-
ing of consequence. (II :53-54)

The remarks of other delegates also focused on the relationship be-
tween appointment by the legislature and reeligibili nd James Wil-
son remarked that “the unanimous sense” seemed to at the execu-
tive should not be appointed by the legislature unless he was ineligible
for a second time. Elbridge Gerry of Massachusetts remarked,
“(Making the executive eligible for reappointment] would make him
absolutely dependent.” (11:57) Wilson argued for popular election,
and Gerry for appointment by electors chosen by the state executives.



102

thing, even if we provided an opportunity to vote on an amendment
that asks for the entire outlay of documentation to be presented to
the American public.

It is not the intent to deny the American public the full under-
standing and appreciation of the workings of the Constitution, of
this House. It is our job; it is our oath of office. But I will say to
you it will not be the American people. It will be the rehashing and
the recounting and the questioning and the challenges and the
charges, over and over again, by the constitutionally protected
press. ‘And I have no intent to accuse or to make accusations
against the integrity of the press. What I do say is it will not really
be the American people, it will be the rehashing, over and over
again, of documentation that will not be under the full light of this

ongress.

Let me mention as well, Mr. Chairman, as I come to a close, you
have section 2 here that indicates with regard to the balance of the
material, the balance of the material will be deemed to have been
received in executive session but will be released on September 28,
1998 unless the Judiciary Committee votes not to release it. Frank-
ly, Mr. Chairman, I would offer to say that the materials would not
be zeleased until the full evidentiary proceedings have been com-
pleted.

I would also say that it is confusing, because in section 4 it pro-
vides that access to the executive session material will be restricted
to members of the committee and such employees of the committee
as may be designated by the Chairman after consultation with the
Ranking Minority Member.

Does that mean that the documentation that is released Septem-
ber 28, 1998 will be accessible only by these individuals, or if it is
released then it is for everyone to see? Is it that you have noted
in this section 2 that it will be received in executive session but it
will be released if voted upon to release it, meaning the Judiciary
Committee?

If they vote upon it, does that break the executive committee re-
ceipt or the status of executive committee, and then it is therefore
released and access becomes public? Or does it mean that it is re-
leased, but for Members and others to get it out or get the actual
original documents in their hand? They are, by section 4, restricted
to members of the committee and such employees of the committee
as may be designated by the Chairman of— after consultation.

I think it is— at least there seems to be some conflict in my
mind as to how we will be interpreting it. And I think we will be
cleaner, we would be fairer, we would be highlighting the fun-
damental fairness of what we are here to do by not looking at the
President as the President, President William Jefferson Clinton
and all that may be surrounding that, but as the institution of the
presidency.

The CHAIRMAN. As a President.

Ms. JACKSON-LEE. That is correct, as the institution of the presi-
dency and not as the particular set of facts that are before us.

I would offer to say with that we would be able to proceed in the
nonpartisan way that I think that we should, and we would em-
phasize more than we would ever know that this Congress is com-
mitted, each and every one of us, and I challenge no one committed


27
6

The phrase does not reappear in impeachment proceedings until
1450. In that year articles of impeachment against William de la Pole,
Duke of Suffolk (a descendant of Michsel), charged him with several
acts of high trenson. but also with “high Crimes and Misdemean-
ors." including such various offenses as “advising the King to grant
liberties and privileges to certain persons to the hindrance of the due
execution of the laws. rocuring offices for persons who were unfit,
and unworthy of them” and “squandering away the public treas-
ure

Impeachment was used frequently during the reigns of James I
(1603-1625) and Charles I (1628-1649). Bui i the period from
1620 to 1649 over 100 impeachments were v. ‘by the House of
Commons.** Some of these impeachments charged high treason, as in
the case of Strafford; others charged high crimes and misdemeanors.
The Iatter included both statutory offenses, particularly with respect
to the Crown monopolies. and non-statutory offenses. For example, Sir
Henry Yelverton, the King’s Attorney General, was impeached in
1621 of high crimes and misdemeanors in that he failed to prosecute
after commencing suits, and exercised authority before it was properly
vested in him.'*

There were no impeachments during the Commonwealth (1649-
1660). Following the end of the Commonwealth and the Restoration
of Charles II (1660-1685) a more powerful Parliament expanded
somewhat the scope of “high Crimes and Misdemeanors” by impeach-
ing officers of the Crown for such things as negligent discharge of
duties and improprieties in office.*

The phrase "hi +h Crimes and Misdemeanors” appears in nearly all
of the comparatively fow impeachments that occurred in the eight-
conth century, Many of the charges involved abuse of official power
or trust. For example. Edward. Earl of Oxford, was charged in 1701
with “violation of his duty and trust” in that, while a member of the
King’s privy council. he took advantage of the ready access he had to
the King to secure various royal rents and revenues for his own use,
therchy greatly diminishing the revenues of the crown and subjecting
tho people of England to “grievous taxes.” * Oxford was slso charged
with procuring a naval commission for William Kidd, “known to be
fn person of ill fame and reputation,” and ordering him “to pursue
the intended voyage, in which Kidd did commit diverse piracies . . .,
being thereto encouraged through hopes of protected by the
high station and interest of Oxford, in violation of the law of nations,
and the interruption and discouragement of the trade of England.” *

Ireland, 1971, reprint of London 1796, 1818).

TM 4 Hateetl 67 (Shan
i deen. tae
ire sac SSiS-a8) alcue tmpeached 98 peruvas, Roberts, cepre =. 2

aie Leer

“'LF mewet state Trials 1185, 118681 (cherpwn 1, 8 ond 6). Bee gomeratiy Bimpees,

TEBE ALY CIEL DSR: ot ihe Ravy.'wes charwed 2, 1068 with nestigvat preparation
the De

racten aad negligest lowe of « okt. The latoer, ‘was predicated
om altesed the Dutch. nd nestigrat to eC *Use chip was brenght teu mooring:
Gere Orete Trtale BAS, 048-61 (horace 1, 6),


23
2

funds to enable the Committee to carry out its assignment and in that
regard to select an inquiry staff to assist the Committee.

On February 6. 1974, the House of Representatives by a vote of 410
to 4 “authorized and cirected” the Committee on the Judiciary “to in-
vestigate fully and completely whether sufficient grounds exist for the
House of Representatives to exercise its constitutional power to im-
peach Richard M. Nixon, President of the United States of America.”

_To implement the authorization (H. Res. 803) the House also pro-
vided that “For the purpose of making such investigation, the com-
mittee is authorized to require ... by subpoena or otherwise ... the
attendance and testimony of any person ... and ... the production of
such things; and ... by interrogatory, the furnishing of such infor-
mation, as it deems necessary to such investigation.”

This was but the second time in the history of the United States
that the House of Representatives resolved to investigate the possi-
bility of impeachment of a President. Some 107 years earlier the
House had investigated whether President Andrew Johnson should
be impeached. Understandably, little attention or thought has been
given the subject of the presidential impeachment process during the
intervening years. The Inquiry Staff, at the request of the Judiciary
Committee, has prepared this memorandum on constitutional grounds
for presidential impeachment. As the factual investigation progresses,
it will become possible to state more specifically the constitutional, legal
and conceptual framework within which the staff and the Committee
work.

Delicate issues of basic constitutional law are involved. Those issucs
cannot be defined in detail in advance of full investigation of the facts.
The Supreme Court of the United States does not reach out, in the
abstract. to mile on the constitutionality of statutes or of conduct.
Cases must be brought and adjudicated on particular facts in terms
of the Constitution. Similarly, the House does not engage in abstract,
advisory or hypothetical debates abont the precise nature of conduct
that calls for the exerciee of its constitutional powers; rather, it must
await. full development of the facta and understanding of the events
to which those facts relate.

What is said here does not reflect nny prejudgment of the facts or
any opinion or inference respecting the allegations being investigated.
This memorandum is written before completion of the full and fair
factual investigation the House directed be undertaken. It is intended
to he a review of the precedents and available interpretive materials,
seeking general principles to guide the Committee. 7

This memorandum offers no fixed standards for determining whether
grounds for impeachment exist. The framers did not write a fixed
standard. Instead thev adopted from English history a standard suf-
ficiently general and flexible to meet future circumstances and events,
the natnre and character of which they could not foresee.

The Honse has set in motion an nnnsual constitutional process, con-
ferred solely upon it by the Constitution. by directing the Judiciary
Committee to “investigate fully and completely whether sufficient
grounds exist for the House of Representatives to exercise its consti-
tutional power to impeach.” This action was not partisan. It was sup-
ported by the overwhelming majority of both political parties. Nor
was it intended to obstruct or weaken the presidency. It was supported



106

There are those who will review this report with great political
interest because of the pending elections in November. There are
those who propose that we model the handling of the referral after
the Watergate hearings. Others will simply see this as an oppor-
tunity to create mass confusion and distraction from the issues of
the day.

The Congressional Black Caucus has made the decision to be-
come the fairness cop. We have assigned to ourselves the role of
being the best advocate that we can for ensuring that this process
recognizes the rights of everyone involved as we go through the
process.

We say, Mr. Chairman and Members, without qualification, that
the President of the United States of America deserves the right
to review, prior to the release, of a copy of the report that has been
written by the independent counsel, who has spent 4-1/2 years in-
vestigating the President, with the last 8 months devoted to the
Monica Lewinsky matter.

Because this is a constitutional issue, we must be steadfast about
handling this with great care, and to ask that the President of the
United States of America be given adequate time to review the re-
port is fair and just. It is a simple request that any American
would respect.

Even in a court of law, it is a basic right for a defendant to know
what they have been accused of and to be given the opportunity for
Preparation, and it is not unusual for the lawyers to ask for time
to prepare a response, and more time if they need it. A release of
this report or any portion of this report or referral, however you
want to refer to it, to the press on the Internet without an oppor-
tunity for the accused to review the charges is unconscionable and
quite unreasonable. Americans want fairness first.

Members of the Congressional Black Caucus understand this per-
haps better than most. We continue even today in our struggle for
justice and equality as we are confronted with the criminal justice
system that is still fraught with too many abuses. From the time
we were considered three-fifths of a human being under slavery,
we have fought for the right to be represented by counsel. We have
fought against abusive police, who have tried us in the streets with

s and billy clubs rather than give us our day in court. It is this
ind of history which forces us to say this process must be fair.

Mr. Chairman and Members, I would like to draw to your atten-
tion the struggle that we recently had on the floor of Congress
when the left and the right joined because there was a Member
who had been abused in the process. This Member happened to be
on the Republican side of the aisle, but this so-called liberal Afri-
can American Member of Congress took the floor in defense of that
Member, and we said that our own Justice Department must be
put in check, and I voted to include in that the independent coun-
sel, because again, I come from a people and a history that knows
what it means to be denied the right to have your day in court, the
right to be represented by counsel, the right to have a voice. And
because of that, I come here and I make a plea to you as Members
of Congress to give the President of the United States a period of
time.


35
14

shelter him, the House of Representatives can impeach him;
they ean remove him if found guilty... .**

Tn reply to the suggestion that the President could summon the Sen-
ators of only a few states to ratify a treaty, Madison said,

Were the President to commit any thing so atrocious . . .
he would be impeached and convicted, as majority of the
states would be affected by his misdemeanor.**

Edmund Randolph referred to the checks upon the Fresident:

It has too often happened that powers delegated for the
‘pose of promoting the happiness of a community have
n perverted to the advancement of the personal emolu-
ments of the agents of the people; but-‘the powers of the Presi-
dent are too well guarded and checked to warrant this illiberal
aspersion.”®
Randolph also asserted. however, that impeachment would not reach
errors of judgment : “No man ever thought of im ing a man for
an opinion. It would be impossible to discover whether the error in
opinton resulted from a wilful mistake of the heart, or an involuntary
fault of the head.” *

James Iredell made a similar distinction in the North Carolina
convention, and on the basis of this principle said, “I suppose the only
instances, in which the President would be liable to impeachment,
would be where he had received a bribe, or had acted from some cor-
rupt motive or other.” *” But he went on to argue that the President

must. certainly be punishable for fiving false information to
the Senate. He is to regulate all intercourse with foreign
Powers, and it is his duty to impart to the Senate every mate-
rial intelligence he receives. If it should appear that he has
not given them full information, but has concealed important
intelligence which he ought to have communicated, and by
that means induced them to enter into measures injurious to
their country, and which they would not have consented to
had the true state of things been disclosed to them,—in this
case, I ask whether, upon an impeachment for a misdemeanor
upon such an account, the Senate would probably favor him."
In short. the framers who discussed impeachment in the state ratify-
ventions. as well as other delegates who favored the Constitu-
implied that it reached offenses against the government, and
to say, contrary to his position in the Philadetphin

va a re would

whea and bis
jewise be supended watil tmpenched and cor



116

The committee will now proceed in the markup of the resolution.

The measure before the committee is House Resolution 525 pro-
viding for a deliberative review by the Committee on the Judiciary
of a communication from the independent counsel and for the re-
lease thereof and for other purposes.

The resolution was introduced earlier today and appears on the
Web site of the Rules Committee. We have already received over
10,000 accesses to it, Mr. Dreier, so I would say that there is ex-
treme interest by the American people.

The committee has just completed the hearing on the measure,
and without objection the resolution is considered as read.

[The information follows:]


59
38

3 The difficulty of establishing a Court of Impeachments,
other than the Senate which would not be 90 proper for the
trial nor the other branch for the impeachment of the Presi-
dent, if appointed by the Legislature, 4 No body had a)
peared to be satisfied with an appointment by the Legislature.
5. Many were anxious even for an immediate choice by the
people—6—the indispensible necessity of making the Ex-
ecutive independent of the Legislature. (IT :500)

The “great evil of cabal was avoided” because the electors would vote
at the same time throughout the country at a great distance from each
other: “[ilt would be impossible also to corrupt them.” A conclusive
reason, said Gouverneur Morris, for having the Senate the judge of im-
peachments rather than the Supreme Court was that the Court “was to
trv the President after the trial of the impeachment.” (ITI :500) Objec-
tions were made that the Senate would almost always choose the Presi-
dent. Charles Pinckney asserted, “It makes the same body of men
which will in fact elect the President his Judges in case of an impeach-
ment.” (IT:501) James Wileon and Edmund Randolph sug; that
the eventual selection should be referred to the whole legislature, not
just the Senate; Gouverneur Morris responded that the Senate was
preferred “because fewer could then, say to the President, you owe
your appointment to us. He thought the President would not depend
#0 much on the Senate for his re-appointment as on his general good
conduct.” (IT :502) Further consideration on the report was postponed
until the following day. *

On Sentember 5 and 6, « substantial number of amendments were
proposed. The most imnortant, adopted by 8 rote of ten states to
one. provided that the House. rather than the Senate, should choose
in the event no nerson received a maiority of the electoral votes, with
the representation from exch state having one vote, and a quorum
of two-thirds of the state beine required. (II: 527-28) This amend-
ment. was supported as “lessening the aristocratic influence of the
Senate.” in the words of George Mason. Earlier, James Wilson had
criticized the report of the Committee of Eleven as “having a danger-
ous tendency to aristocracy: as throwing a dangerous power into
the hands of the Senate.” who would have. in fact, the appointment
of the President, and through his dependence on them the virtual
appointment to other offices (including the judiciary), would make
treaties. and would try all imneachments. “[T]he Legislative. Execu-
tive & Judiciary powers are all blended in one branch of the Govern-
ment. ... [TThe President will not be the man of the people as he
ought to be. but the Minion of the Senate.” (IT: 522-23)

ADOPTION OF “ETIGH CRIMES AND MISDEMEANORS”

On September 8. the Conrention considered the clause referring
to impenchment and removal of the President for treason and bribery.
George Mason asked, “Why is the provision restrained to Treason &
bribery only!” Treason as defined by the Constitution, he said, “will
not reach many great and dangerous offenses. ... Attempts to subvert
the Constitution may not be Treason . . .” Not only was treason lim-
ited, but it was “the more necessary to extend: the power of impeach-
ments” because bills of attainder were forbidden. moved to add
“maladministration” after “bribery”. (II :550)


113

T have spoken with the staff of this committee today, and I have
sat through the last several hours of hearings. I have sat through
the comments of the Chairman of this committee and the Chair-
man of the Judiciary Committee, and I want us to stop and reflect.
We have talked about some of the problems that could occur by re-
lease of information. We have talked about potentially innocent
people or sexual material or irrelevant material.

I will tell you that if it was worth investigating, it is worth the
public knowing, and it is worth the public making that determina-
tion, because sometimes what might seem as innocent individual
comment—and there has been discussion what happens in the
Linda Tripp tapes if there is a discussion about 20 other people
who have no relevancy to the primary issues at hand. It might
have credibility as to the two people on the tape. Essentially we are
making a judgment, or Mr. Hyde or Mr. Conyers will be making
that judgment. They really should not be making that judgment.

Again, yes, there are some innocent people on these tapes, but
1 ask you all to reflect about this, and very seriously, what are we
doing Yrre. What are we talking about. We are talking about the
President of the United States of America. We are talking about
the most powerful person on the planet. He is not just President
of the United States, he is President of the world. And yes, there
is some cost in terms of releasing all of the information imme-
diately, but I think the benefit in terms of this process and in
terms of our country far outweighs that cost. I don’t think it is a
close call.

Unfortunately those not from Florida, your experience with open
government might not be as much as those of us from Florida, but

hope that you do reflect in terms of what it should mean and
what it can mean.

I will also tell you that just the integrity of this process for the
American people, this is clearly a disturbing time in America. I
don’t think that there is a person in this country that really wants
us to be here this evening. I know none of us want to be here this
evening discussing this, But the reality is that we are where we
are. It truly is critical at this point in time that we have integrity
in this process. What better way to have integrity in this process
than to literally bring the public as part of this process, not to be
voyeurs, but to show in a literal sense that we have nothing to
hide, that the cards fall where they may, the President has nothing
to hide.

There is nothing we can do more to build integrity in this process
than to keep this process literally an open process. I implore you
to take that very much to heart that that is an option that you
have, and I am offering an alternative resolution that hopefully you
will take up very seriously.

I will also ada in terms of this whole process as it has developed
and the specifics as to how it might impede, we are setting up a
system where some material that was acquired clearly will not
be—hopefully if the resolution as proposed by the Chairman is
adopted, there is some information not available to the President’s
counsel in his own defense, whatever that might be, and if we real-
ly want a fair process from that standpoint, that is a mistake.


TT
56

would continue in litigation before Ritter’s court. Rulings by Ritter
were alleged to have “made effective the champertous undertaking”
of others, but Ritter was not himself explicitly charged with the crime
of champerty or related criminal offenses. Article II also repeated
the allegations of corrupt and unlawful receipt of funds and alleged
that Judge Ritter “profited personally” from the “excessive and un-
warranted” fees, that he had received a free room at a hotel in receiver-
ship in his court, and that he “wilfully failed and neglected to per-
form his duty to conserve the assets” of the hotel.

Article I[1, as amended, charged Ritter with the practice of law
while on the bench, in violation of the Judicial Code. Ritter was
alleged to have solicited and received money from a corporate client
of his old law firm. The client allegedly had large property interests
within the territorial jurisdiction of Ritter’s court. These acts were
described as “calculated to bring his office into disrepute,” and as a
“bigh crime and misdemeanor.”

rticle 1V, added by the Managers of the House, also charged prac-
tice of law while on the bench, in violation of the Judicial Code.

Articles V and V1, also added by the Managers, alleged that Ritter
had violated the Revenue Act of 1928 by willfully failing to report

and pay tax on certain income received by him—primarily the sums
described in Articles I through IV. Each failure was described as a
“high misdemeanor in office.”

ticle VIL (former Article [V amended) charged that, Ritter

was guilty of misbehavior and high crimes and misdemeanors in office
because “the reasonable and probable consequence of {his} actions
or conduct . . . as an individual or . . “ jnaey is to bring his court
into scandal and disrepute,” to the prejudice of his court and ublic
confidence in the administration of justice in it, and to “the prejudice
of public respect for and confidence in the Federal judiciary, ren-
dering him “unfit to continue to serve as such judge.” There followed
four specifications of the “actions or conduct” referred to. The first
two were later dropped by the Managers at the outset of the Senate
trial; the third referred to Ritter’s acceptance (not alleged to be cor-
rupt or unlawful) of fees and gratuities from persons with large
property interests within his territorial jurisdiction. The fourth, ar
omnibus, specification was to “his conduct as detailed in Articles I,
II, ITI and IV hereof, and by his income-tax evasions as set forth in
Articles V and VI hereof.” .

Before the amendment of Article VII by the Managers, the omni-
bus clause had referred only to Articles I and II, and not to the crim-
inal allegations about practice of law and income tax evasion.

¢. Proceedings in the Senate

Judge Ritter was acquitted on each of the first six articles, the guilty
vote on Article I falling one vote short of the two-thirds needed to
convict. He was then convicted on Article VII—the two specifications
of that Article not being separately voted upon—by & single vote, 56
to 28." A point of order was raised that the conviction under Article
VII was improper because on the acquittals on the substantive charges
of Articles I through VI. The point of order was overruled by the
Chair, the Chair stating. “A point of order is made as to Article VII

Doc. No. 200, 74th Cong., 24 Sera. 637-38 (1936).



29
8

shows that the framers intended impeachment to be a constitutional
safeguard of the public trust, the powers of government conferred
upon the President and other civil officers, and the division of powers
ainong the legislative, judicial and executive departments

1, THE PURPOSE OF THE IMPEACHMENT REMEDY

Among the weaknesses of the Articles of Confederation apparent to
the delegates to the Constitutional Convention was that they provided
for a purely legislative form of government whose ministers were sub-
servient to Congress. One of the first decisions of the delegates was that
their new plan should include a separate executive, judiciary, and
legisinture.** However, the framers sought to avoid the creation of a
too-powerful executive. The Revolution had been fought against the
tyranny of a king and his council, and the framers sought to build in
safeguards against executive abuse and usurpation of power. They ex-
plicity rejected a plural executive, despite arguments that they. ‘were
creating “the foetus of monarchy,” * because a single person would give
the most responsibility to the office."* For the same reason, they rejected
proposals for a council of advice or privy council to the executive."*

he provision for a single executive was vigorously defended at
the time of the state ratifying conventions as a protection inst
executive tyranny and wrongdoing. Alexander Hamilton made the
most carefully reasoned argument in Federalist No. 70, one of the series
of Federalist Papers prepared to advocate the ratification of the
Constitution by the State of New York. Hamilton criticized both a
plural executive and s council because they tend “to conceal faults
and destroy responsibility.” A plural executive, he wrote, deprives the
people of “the two greatest securities they can have for the faithful

by James Wilson of Pennsylvania, who also said that he
“an giving most energy dlapetch and responsibility to the
Council to the Preeident were made daring the Con-
it three states to eight: This proposal,
bers—twe each from the eastern,
ez-year terms, with

ris Bahvaiaar ese pata
atom ai
ohare Tae ay nee he

ferred to the Committss on Detail, which re
eof the Senate

P ears

tis think lay before. them!

ae hls, nor affect his responsiblity for te measures
‘rarrand 367, Tule’ provision wes aever brought fo

ef that It would lessen executive
{tener serves to cover, than



95

agreement that was made in good faith by the leaders of the two
parties of the House.

And I am astonished by proposals to immediately release all the
supplementary materials. Surely, we can wait until September 28
and make some decision then on what needs to be done. But I am
astonished that we don’t even feel that it is necessary to protect
the rights of people that Kenneth Starr, who I didn’t think was so
protective of rights in the first place, wants us to protect.

If we don’t even go that far, then I think the Congress of the
United States has reached an extraordinarily new low. We started
off here with all the good words of bipartisanship, good intention
and the seriousness of what we might do: overturning the last elec-
tion when people in this country choose their President. But now
I am very much embarrassed that we can’t even allow these two
men, with whom we have all said we have extraordinary faith, and
their designees, to take their preliminary look at these records. As
Mr. Conyers pointed out more than once, we have waited almost
5 years; 2 weeks surely can’t hurt us.

‘he CHAIRMAN. Well, you know we may have debated this a little
too long but I will tell you something. If these two gentleman and
their selected staff are going to be able to look at that information,
I see absolutely no reason why other members of the Judiciary
Committee that are Members of the United States House of Rep-
resentatives should not have the same opportunity as a staff per-
son,

Mr. McInnis.

Mr. McINNIS. Mr. Chairman, you are absolutely right. At the be-
ginning, as we all went around and made our introductory re-
marks, we heard the warm words of fairness and bipartisanship,
and I think those words are very proper. But what concerns me
about the expression of these words is if someone doesn’t get their
way, all of a sudden it is no longer fair, all of a sudden it is no
longer bipartisan.

At some point we have to make a decision, at some point some-
body has to be the boss. To my dear colleague Ms. Slaughter—you
are not protecting the rights of the constituents when their elected
representatives, the people who were elected here, are not allowed
the privilege of going in and seeing this report.

Ms. SLAUGHTER. If the gentleman would yield?

Mr. McINNIs. Not yet.

With all due respect, I think it is critical, Every Member at this
committee has said this is the most serious duty or obligation we
have probably had. You had the war to vote on, as well. We need
to be fully informed, and on that basis these Members should have
access in these documents to the extent possible, should be open to
the public, and then I would yield.

Ms. SLAUGHTER. If you would yield to me, please.

Mr. McINNIs. I just did.

Ms. SLAUGHTER. Because perhaps I did not make myself as clear
as I should have.

In no way are we implying that everybody in the country is not
going to know what is in this report. at we are talking about
is a different situation, and that is to protect the privacy of inno-
cent persons, at the request of the Independent Counsel. This is


10

We are carrying out our duties as the representative branch of gov-
ernment to insure that the executive branch does not use the great
powers at its disposal to undermine justice.

The Supreme Court warned in Watkins v. United States in 1957
that it clearly recognized “the dangers to effective and honest con-
duct of government if the Legislature’s power to probe corruption
in the executive branch is unduly hampered.”

I will end by quoting the late Senator Sam Ervin, Chairman of
the Watergate Committee, who stated that “the Constitution and
the statutes give Congress a solemn duty to oversee the activities
of the executive branch. All branches of government must fully ap-
preciate the oversight function is a vital tool for keeping the Nation
ree. It is a shield against creeping executive imperialism. Congress
also has the duty and the right to publicize its findings on corrup-
tion and maladministration. Indeed, fulfilling its responsibility to
inform the public about the state of the government is one of
Congress’s most significant functions.” Under our sworn duty to
protect the Constitution, it is our obligation to move forward with-
out partisanship and with a resolution that allows Congress to get
to the truth. This is a very sad duty, but it is a duty, and we must

lo it.

Thank you, Mr. Chairman.

[The prepared statement is as follows:]}


78

57

in which the respondent is charged with general misbehavior. It is
a separate charge from any other charge.” **

d, Miscellaneous

After conviction, Judge Ritter collaterally attacked the validity
of the Senate proceedings by bringing in the Court of Claims an ac-
tion to recover his salary. The Court of Claims dismissed the suit on
the ground that no judicial court of the United States has authority to
review the action of the Senate in an impeachment trial.

14.63
iS hivters, United states, 4 Ct. C1. 208, 300, cert dented, 200 0.8. 808 (1088).


84

confidential material and material protected from disclosure by
tule 6(e) of the Rules of Federal Criminal Procedure.

He additionally said that many of the supporting materials con-
tain information of a personal nature that I respectfully urge the
House to treat as confidential.

Ladies and gentlemen, what he has told us is that we have to
review everything to make sure that we observe the conditions that
he has set when he sent the letter of transmittal. That is not my
theory, that is his statement. And I think that if there is any way
we can review the fact of getting out the 445 pages, every Member
and every one of the 270 million people in America have waited
into the fifth year for this report. Now, can somebody explain to me
what danger will befall a Member of Congress if we adhere to what
the independent counsel himself has told us to do, that we review
the 445 pages? We are not looking to excise anything. We can look
at those in less than a 24-hour—day period, and hopefully there is
nothing objectionable. I am not looking for reasons to delete or ex-
cise, but I have the same concerns that have been so skillfully and
eloquently articulated by Chairman Henry Hyde.

So I am urging that we do two things: That we consider the
agreements that we have made already Between the Speaker and
the Minority Leader and the Chairman and the Ranking Member;
that we appreciate that as this rule is written, we are not comport-
ing to the agreements that have already been entered into. I am
sorry, I wish I could say it in some other way.

is—if we start off with a broken promise, I can tell you quite
frankly what I fear. I would like the first vote that we have on this
subject to be as bipartisan as possible. That is my hope. I want to
support the rule. I want it to be on record. If we decide that the
President of the United States is not to receive the 10-day rule to
find out what's going on before everyone, then he doesn’t even get
the 2-day rule, and now we have had them asking for a 1-hour
rule. They—I mean what are we here for?

I urge my colleagues, with the greatest sincerity that I have, as
equél to the statements that you have all made about your recogni-
tion of the gravity of this matter, but to tell the President of the
United States that he can find out what the charges are on the
Internet seems to me to forget the—I don’t call it generosity that
was given to the Speaker of the House before the Ethics Committee
in which he got 7 days to respond. We give this to everybody as
a matter of courtesy. if can’t tell my constituents that want to know
what happened that the President doesn’t need to know, he can
read it the same time you read it.

I think this is a breach of fairness, and I would hope that you
would consider it in the spirit in which I’m sharing it with you. The
fact of the matter is that fundamental fairness is the guide to what
we are going to be doing here.

Now fairness isn’t something that is just good and moral and de-
cent. Fairness also leads to a wider understanding of the issues
that are before us. After all, we are going to hear the other side,
and they are entitled to hear the other side.

And so I think that this problem can be resolved. I hope that it
is resolved so that the Members here that have been proud to indi-
cate this as an example of the system working will help us lead to


6

Section 2 of our Constitution. It states that the House of Rep-
resentatives shall have the sole power of impeachment. As Demo-
cratic Leader Gephardt said, next to declaring war, this may be the
most important thing that we do. There are certain precedents and
procedures that must be followed, and we should begin this process
slowly and soberly.

So I commend my Chairman and my good friend Gerald Solomon
for his measured comments, and I urge my colleagues to set aside
their personal opinions and carry out the Yesponsibilities set forth
in the Constitution as carefully as possible. We swore that we
would uphold that Constitution, and today we have a grave respon-
sibility, so let us proceed reasonably, and let us proceed fairly.
Thank you, Mr. Chairman.

The CHARMAN, Thank you, Mr. Moakley.

The CHAIRMAN. On the question of the President receiving the
445 pages 48 hours before Members of Congress receive it, as you
know, there are divided positions in your own party. The dean of
the House, John Dingell, believes that all of the information, not
just the 445 pages, should be made public immediately at the same
time it would be given to the President and to you and me.

Mr. MOAKLEY. Mr. Chairman, I hope you follow Mr. Dingell’s ad-
vice on this like you do on everything else around here.

The CHAIRMAN. Because of that, the information will be made
available to the public and to the President at the same time.

You were talking about 445 pages. You are not talking about
2,000 pages of appendices. You are not talking about 17 boxes. The
President will get that information at the same time we do. And
with a battery of lawyers, I am sure that I could go through those
445 pages within a period of a very few hours. By the time this is
disseminated to the press, I think as Larry Walsh, the independent
counsel in the Tran-Contra affair, said on CNN a few minutes ago,
they already know what is in the 445 pages, and they will have a
response and be able to review it in a short period.

‘ow I yield to the Vice Chairman of the committee for any state-
ment he might have.

STATEMENT OF HON. DAVID DREIER, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA

Mr. DrEIER. Thank you very much. Let me congratulate you on
your statement and the statement of Mr. Moakley and to say that
there are a number of things that have been indicated already that
I think do bear repeating.

e Chairman said we are moving into uncharted water. We
have never gotten to this point on a situation quite like this, and
this is truly a grave day and a very solemn time for the House of
Representatives.

Chairman Hyde made it clear that we are not approaching this
with a great deal of enthusiasm or glee. This is a challenge, and
as Mr. Moakley said, it is our constitutional duty to do this as re-
sponsibly as possible.

I would also like to say that there has been a tremendous level
of bipartisanship. It has really been a nonpartisan approach. I have
heard from many, many Democrats who have been insisting that
they don’t want to face this next weekend without having this in-


112

standing is that they will be able to see information under con-
trolled conditions, and we will be able to vote on the recommenda-
tions of those. Is that your understanding?

The CHAIRMAN. That is absolutely right.

Ms. Waters. I think that should be made clear.

The CHAIRMAN. The language in the resolution is going to make
the information available to all of you Members. However, there is
nothing in the resolution that is going to prevent Mr. Hyde from
getting the agreement of other Republicans to take his advice on
what he is going to piece out and show in the individual boxes.
There is nothing, to prevent Mr. Conyers from doing the same
thing, and I would hope that would be the case.

But you as individual Members will have the final say over what
is going to be expunged. That will be up to you and a vote of your
committee, and that is the way that it should be.

Ms. Waters. That is what I think is fair. And if we have the
ability and we want to take the time and put in the effort to do
the review so we can have the input, make recommendations to our
Ranking Member, et cetera, et cetera, so we can influence the out-
come, then I think—

The CHAIRMAN. That is exactly our intent in this resolution, that
you have the final say on what is going to be expunged, and it
would be left up to you, and that is the way that it should be.

All right, we have heard from all of the Members. We appreciate
your coming. We have one more witness to testify. It is the honor-
able and respected Mr. Peter Deutsch from south Florida. Your en-
tire statement will appear in the record without objection.

STATEMENT OF HON. PETER DEUTSCH, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF FLORIDA

Mr. DEutSscH. Thank you, Mr. Chairman. I appreciate having the
opportunity to close the testimony. And I particularly appreciate
Mr. Goss being in the room for my presentation, because in the
opening comments I think Mr. Goss’s statement was one that I
could not have made any better. And I am also happy that Mr.
Diaz-Balart is here as well. All three of us are from Florida, where
we pride ourselves in government as really literally being the Sun-
shine State, and all of you will be at some point in your lives from

orida.

But really on a very serious note, we have had a long tradition
of open government, and we take it very, very seriously. We believe
it has been incredibly successful. Sometimes it is a little bit ugly,
and sometimes it is painful, and sometimes elected officials don’t
like it, but I think it works, and it works very well.

And I think that as we are deliberating as a collective body, and
as you are deliberating as a committee this evening, I really hope
that you heed these words and you heed Mr. Goss’s comments also
that Wwe are the public servants. This is the public's House. There
is nothing to be afraid of the public knowing what is going on. I
think it is critical and it is imperative that the public know what
is going on; not just that this meeting be open, as it is, obviously,
but that we avoid executive sessions at all times unless for specific,
almost national security reasons.


82

Mr. Hype. Thank you, Mr. Chairman.

A word, if I may, in conclusion about the significance of the oath
each of us swore to uphold when we became Members of Congress.
We raised our right arms and said, “I do solemnly swear I will sup-
port and defend the Constitution of the United States against all
enemies, foreign and domestic; that I will bear true faith and alle-
giance to the same; that I take this obligation freely, without any
mental reservation or purpose of evasion; and that I will well and
faithfully discharge the duties of the office on which I am about to
enter so help me God.”

Traditionally an oath means a solemn calling on God to witness
the truth of what you are saying. We all know well the story of Sir
Thomas More, who was beheaded in the Tower of London for refus-
ing to take the oath of supremacy that acknowledged Henry VIII
as head of the Church of England. In the great drama of his life,
“A Man for All Seasons”, Sir Thomas tells his daughter, when you
take an oath, you hold your soul in your hands, and if you break
that oath, you open up your fingers, and your soul runs through
them and is lost.

I believe with all my heart that each of us took that oath of office
seriously, that we will so conduct ourselves that when this ordeal
is over, we will have vindicated the rule of law and brought credit
to this institution in which we are so privileged to serve.

Thank you, Mr. Chairman.

The CHAIRMAN. Thank you, Mr. Hyde, for those eloquent re-
marks.

The CHAIRMAN. And now we will go to the other equally distin-
guished member of the Judiciary Committee, John Conyers, and
you may take whatever time you want. Your entire statement will
appear in the record.

STATEMENT OF HON. JOHN CONYERS, JR., A REPRESENTA-
TIVE IN CONGRESS FROM THE STATE OF MICHIGAN

Mr. Conyers. Thank you, Chairman Solomon and members of
the committee.

I want to thank Henry Hyde, the Chairman of the Judiciary
Committee, for, along with the Speaker at our meeting of 24 hours
ago, it seems like a lot longer than that now, in which I was very
pleased to hear the Speaker make a couple of observations that
bear repeating here. He said, I will take stringent action ‘inst,
any Member who speaks in an unseemly fashion against the Presi-
dent of the United States off or on the floor. He didn’t say that for
the benefit of Democrats or the public. He said that because he be-
lieved that this should be the Kind of environment in which the
materials of the independent counsel be brought to us.

He also pledged that he realized the value of bipartisanship, and
that without it any politicization of these hearings squander the
great mandate that we have in the Congress, all of us.

d so. we meet here this evening for the very first test of the
fairness doctrine that all of us in that meeting yesterday mornin,
in the Speaker’s office pledged ourselves to. ‘And so I want to as
you all to concern yourself with me as to whether we are going to
meet the fairness test or not.


108

In closing let me say that I am worried about agreements that
are made even between the Ranking Member and the Chair, the
Minority Leader and the Majority, the Speaker. I am worried about
that because, again, most of the members of this committee are
tallking about openness in one shape, form or fashion or another.
And when we get too many agreements being made behind closed
doors, then we don’t have the opportunity to talk this thing
through and to have the input from all sides.

I heard today my own Ranking Member say that there was an
agreement that if they didn’t agree, they would go to the Speaker,
and the Speaker would decide. I don’t like that. I don’t like that.
And I think I am not going to like a lot of what will be conceded
without the ability for us to have some debate and some input.

Having said all of that, again, I hope that you will take to heart
what I am trying to share with you about my experience as an Afri-
can American fighting for fairness, justice and equality in the
criminal justice system, and I want you to know that the right and
the left are slowly coming together on this issue.

When you look at our House, and you look at the arguments that
were made about Ruby Ridge and Waco, and you look at the argu-
ments that have been made for many years about how African
Americans have been treated in the system, what you are ending
up with is the fact that people from both sides of the aisle and from
different spectrums are coming together saying you had better
watch the criminal justice system, and that includes the Justice
Department and all, as it exercises power. And when you see it
abused, any time, any place anywhere, you better put it in check,
because it is somebody today, but it is you tomorrow.

Thank you very much for your patience and for listening to what
I wished to share.

I have worked in cooperation with my colleague from the Judici-
ary Committee today to further attempt to do everything that we
can to address this question of fairness and to get the input of
other Members of not only our Judiciary Committee, but our cau-
cus to try and impress upon you that this is the reigning issue of
the day, will we be fair.

The CHAIRMAN. Thank you, Ms. Waters. As usual you are very
eloquent in your presentation, and we appreciate that.

The CHAIRMAN. Now we will go to Ms. Lofgren.

STATEMENT OF HON. ZOE LOFGREN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA

Ms. Lorcren. Thank you, Mr. Chairman.

Under our Constitution the House of Representatives has the
sole power of impeachment. This is perhaps our single most serious
responsibility short of a declaration of war. Given the gravity and
magnitude of this undertaking, only a fair and bipartisan approach
to this question will ensure that truth is discovered, honest judg-
ments rendered and the constitutional requirement observed.

Our best yardstick is our historical experience. We must compare
the procedures used today with what Congress did a generation ago
when a Republican President was investigated by a Democratic
House. The proposal to release the independent counsel report, 445


93

ity Leader Gephardt and Speaker Gingrich, and we should not re-
verse that agreement in this proceeding this evening.

The CHAIRMAN. Mr. Frost, let me just respond by saying that you
know very well that if we were to go beyond precedent oF the past
and we were to give these two gentleman the special authority to
review that information and not other members of the committee,
I can assure you that there would be criticism similar to what tran-
spired not more than 2 hours ago up in the press gallery over here,
when there were two different members of your party saying that
the committee was about to restrict other members.

Now I could assure you if we went along with what you are re-
questing, sure, it would please Mr. Conyers, it would please Mr.

lyde perhaps, but it would not please a number of your committee
members who would attack us as being unfair to the minority. We
are just not going to do that. We are going to leave it open to every
member of that committee and trust their judgment.

Mr. Frost. Mr. Solomon, I would respond that there is no prece-
dent in this particular area for how you proceed. This is not a ques-
tion of adhering to some past precedent. This is a question of using
judgment and acting in a bipartisan manner.

The leaders of the two parties in this House speak for their par-
ties and reached an agreement, and now we would seek to reverse
that agreement and that is a bad idea.

Mr. Hype. If I may just say this—

The CHAIRMAN. Mr. Hyde.

Mr. Hype. —I am entirely sympathetic with your point of view,
and of course I am sympathetic with my point of view. The last
thing we want to do is to lose the pre-release review. We could lose
it if there is a concern that our way is too restrictive and so the
other Members—now there are some other members of the Judici-
ary here. You might ask them their sentiments. But it is a matter
of the votes on the floor, really, in the last analysis, and Mr. Solo-
mon is concerned I think that we could lose the whole thing to a
Mr. Deutsch amendment, and that is the worst result in terms of
protecting innocent people.

So we ought to consider that. I don’t think anybody is trying to
stiff anybody. We are trying to pragmatically work this thing
through for the best for everyone.

‘The CHAIRMAN. And I sort of resent the inference that someone
is being stiffed.

Mr. Goss,

Mr. Goss. Mr. Chairman, I didn’t have anything further to say
on this, except I think that there may be some mistake and some
miscommunication on what it was that was going to be reviewed.
As a member of the majority of this committee it has always been
my understanding that the executive part of it would be released
to the, public, their right to know, at the time the resolution was
passed.

Mr. Frost. No question about that.

Mr. Goss. That is fine. Then it is just the other stuff, and then
the only issue is whether it is going to be Mr. Hyde and Mr. Con-
yers or whether it is going to be Mr. Hyde, Mr. Conyers, aug-
Tented, and how we are going to deal with it next week.

Mr. Frost. If the gentleman will yield, that is in this resolution.


61

40

SUSPENSION UPON IMPEACHMENT

On September 14, John Rutledge and Gouverneur Morris moved
“that persons impeached be ded from their office until they be
tried and scquitted. (II: 612) Madison objected that the President was
already made too dependent on the legislature by the power of one
branch to try him in consequence of an impeachment fy the other.
Suspension he argued, “will put him in the power of one branch only,”
which can at any moment vote a temporary removal of the President
in order “to make way for the functions of another who will be more
favorable to their views.” The motion was defeated, three states to

cight. phe 618).

fo further changes were made with respect to the impeachment
provision or the election of the President. On September 15, the Con-
stitution was agreed to, and on September 17 it was signed and the
Convention adjourned. (II: 650)


57
36

agreed to, seven states to three. (II:120) The entire resolution on the
executive was then adopted (six states to three) and referred to a five
member Committee on Detail to prepare a draft Constitution. (II :121)

PROVISIONS IN THE DRAFT OF AUGUST 6

The Committee on Detail reported a draft on August 6. It included
the following provisions with respect to impeachment :

The House of Representatives shall have the scle power of
impeachment. (Art. IV, sec. 6)

[The President] shall have power to grant reprieves and
pardons; but his pardon shall not be pleadable in bar of an
impeachment. ... He [The President] shall be removed
from his office on impeachment by the House of Represent-
atives, and conviction in the Supreme Court, of treason,
bribery, or corruption. (Art. X, sec. 2)

The Jurisdiction of the Supreme Court shall extend...
to the trial of impeachmente of Officers of the United States.
. .. In cases of impeachment . . . this jurisdiction shall be

The Legisinture may assign any part of the
jurisdiction abore mentioned (except the trial of the Presi-
dent of the United States) . . . to. . . Inferior Courts... .
(Art. XI, sec. 3)

The trial of all criminal offences (except in cases of im-
peachments) shall be in the State where they shall be com-
mitted; and shall be by Jury. (Art. XI; sec. 4)

Judgment, in cases of Impeachment, shall not extend fur-
ther than to removal from Office, and disqualification to hold
and enjoy any office of honour, trust, or profit, under the
United States. But the party convicted shall, nevertheless be
liable and subject to indictment, trial, jadgment and punish-
ment according to law. (Art. XI, sec. 5) (II: 178-79, 185-87)

The draft provided. with respect to the executive:

The Executive Power of the United States shall be vested
in a single person. His stile shall be “The President of the
United States of America;” and his title shall be, “His Excel-
lency”. He shall be elected by ballot by the Legislature. He
shall hold his office daring the term of seven years; but shall
not be elected a second time. (Art. X, sec. 2) (II: 185)

Article IV, section 6 was unanimously agreed to by the Convention
on August 9. (II: 231) On August 22. 8 prohibition of bills of attain-
der and ex post facto Iaws was voted, the first unanimously and the
second seven states to three. (IT: 376) On August 24, the Convention
considered Article X, dealing with the Executive. It unanimously
approved vesting the power ins single person. (II: 401) It rejected,
nine states to two, s motion for election “by the people” rather than
by the Legislature. (I1:402) It then amended the provision to provide
for “joint ballot” (seven states to four), rejected each state having
one vote (five states to six), and added I age requiring a majority
of the votes of the members present for election (ten states to one).
(11:403) Gouverneur Morris proposed election, by “Electors to be
chosen by the people of the several States,” which failed five states



19

COMMITTEE ON THE JUDICIARY
PETER W. RODINO, Ja., New Jersey, Choirmen

HAROLD D. DONORUE, Massachusetts
JACK BROOKS, Texas

ROBERT W. KASTENMBIER, Wisconsie
DON EDWARDS, Caltforate

WILLIAM L. HUNGATE, Mlesoort
JOAN CONTERS. Je, Micbican
JOSHUA ELLBERG. Peanssiventa
JEROME R. WALDIE. California
WALTER FLOWERS, Alabama
JAMES R. MANN, South Caroli
PAUL 8. SARBANES, Maryls:
JORN F. SIEBERLING, Obto
GEORGE E. DANIELSON, California
ROBERT F. DRINAN, Maseachaortts
CHARLES B. RANGEL, New Tet

EDWARD HUTCHINSON, Michigan
ROBERT McCLORY, Itt
BENRY P. SMITH Iil, New York
CHARLES W. SANDMAN, Jn, New Jersey
TOM RAILSBACK, Itnets

CHARLES E. WIGINS, Califoraia

TRENT LOTT, Misstesippt
HAROLD ¥. FROEBLICH, Wisconsin
CARLOS J. MOORHEAD, Caltfornia

JOSEPH J. MARAZITI, New Jersey
DELBERT L. LATTA, Ohio

RARRARA JORDAN, Tera
RAY THORNTON, Ark:
ELIZABETH HOLTZMAN, New York
WAYNE OWRNS, Utah
EDWARD MEZVINSRY, Io:
Imnous M. ZerPuan, Generel Counsel
Gannan J. Cine, Avesctate Generel Counsel
Baaenr Focus, Counsel
Hanseat E. Horruan, Counsel
Writiam P. Snatroce, Counsel
HB. Cunterormss Novos, Counsel
‘Aan A, Pi
Jama F. Counsel
Mavnice A. Bansota, Counsel
Fuaxnxin G. Poux, Counsel
‘Taomss B Moonst, Counsel
DMircmagt W. Bromma, Counsel
ALaxanora B. Coon, Coanset
Daniat L. Conan,

im


48
27

ways not anticipated by the criminal law. Criminal standards and
criminal courts were established to control individual conduct. Im-
peachment was evolved by Parliament to cope with both the inadequacy
of criminal standards and the impotence of courts to deal with the
conduct of great public figures. It would be anomalous if the framers,
having barred criminal sanctions from the impeachment remedy an

limited it to removal and possible disqualification from office, intended
to restrict the grounds for impeachment to conduct that was criminal.

The longing for precise criteria is understandable; advance, precise
definition of objective limits would seemingly serve both to direct fu-
ture conduet and to inhibit arbitrary reaction to pest conduct. In pri-
vate affairs the objective is the control of personal behavior, in part
through the P ishment of misbehavior. In general, advance defini-
tion of standards ing private conduct works reasonably well.
However, where the issue is presidential compliance with the con-
stitutional requirements and limitations on the presidency, the crucial
factor is not the intrinsic quality of behavior bat the significance of
its effect upon our constitutional system or the functioning of our
government.

It is useful to note three major presidential duties of broad scope that
are explicitly recited in the Constitution : “to take Care that the Laws
be faithfully executed,” to “faithfully execute the Office of President
of the United States” and to “preserve, protect, and defend the Con-
stitution of the United States” to the of his ability. The first is
directly impoeed by the Constitution; the second and third are in-
cluded in the constitutionally prescribed oath that the President is re-

juired to take before he enters upon the execution of his office and are,
therefore, also expressly im; by the Constitution.

The duty to take care is affirmative. So is the duty faithfully to
execute the office. A President must carry out the obligations of his
office diligently and in good faith. The elective character and political
role of a President make it difficult to define faithful exercise of
his powers in the abstract. A President must make policy and exercise
discretion. This discretion necessarily is broad, especially in emergency
situations, but the constitutional duties of a President impose limita-
tions on its exercise.

The “take care” duty emphasizes the responsibility of a President
for the overall conduct of the executive branch, which the Constitu-
tion vests in him alone. He must take care that the executive is so orga-
nized and operated that this duty is performed.

The duty of a President to preserve, protect. and defend the Con-
stitution” to the best of his ability includes the duty not to abuse his
powers or transgress their limits—not to violate the rights of citizens.
such as those guaranteed by the Bill of Rights, and not to act in dero-
gation of powers vested elsewhere by the Constitution.

Not all presidential misconduct is sufficient to constitute grounds
for impeachment. There is a further requirement—substantiality. In
deciding whether this further requirement has been met, the facts
must be considered as a whole in the context of the office, not in terms
of separate or isolated events. Because impeachment of » President is

ve step for the nation, it is to be predicated only upon conduct
seriously incompatible with either the constitutional form and prin-
ciples of our government or the proper performance of constitutional
duties of the presidential office.

28-959—74_5


52
31

SELECTION OF THE EXECUTIVE

On July 17, the Convention debate on Randolph’s ninth reso-
lution as amended and reported by the Committee of the Whole. The
consideration by the Convention of the resolution began with unani-
mous agreement that the executive should consist of a single
(II: 29) The Convention then turned to the mode of election. It voted
against election by the peoplo instead of the legislature, proposed by

ouverneur Morris of P Ivania, one state to nine. (il: 32) Gouv-
erneur Morris had argued that if the executive were appointed and
impeachable by the legislature, he “will be the mere creature” of the
legislature (11:29), a view which James Wilson reiterated, adding
that “it was notorious” that the power of appointment to great offices
“was most corruptly managed of any that had been committed to
legislative bodies. (iT 32)

ther Martin of Maryland then proposed that the executive be
chosen by electors appointed by state legislators, which was rejected
eight states to two, and election by the legislature was passed
unanimously. (II: 32)

TERM OF THE EXECUTIVE

The Convention voted six states to four to strike the clause making
the President ineligible for reelection. In support of reeligibility,
Gouverneur Morris argued that ineligibility “tended to destroy the
great motive to good behaviour, the hope of being rewarded by a
re-appointment It was saying to him, make hay while the sun shines.”

383

The question of the President’s term was then considered. A motion
to strike the seven year term and insert “during good behavior” failed
by 8 vote of four states to six. g : 36) In his Journal of the Proceed-
ings, James Madison suggests that the “probable object of this motion
was merely to enforce the argument against re-eligibility of the Execu-
tive Magistrate, by holding out a tenure during good behavior as the
alternative for keeping him independent of the islature.” (II: 38)
After this vote, and 2 vote not to strike seven years. it was unani-
moualy agreed to reconsider the question of the executive's re-eligibil-

ity. (II: 36)
JURISDICTION OF JUDICIARY TO TRY IMPEACHMENTS

On July 18, the Convention considered the resolution dealing with
the Judiciary. The mode of appointing judges was debated, George
Mason suggesting that this question “may depend in some degree on
the mode of trying impenchments, of the Executive.” If the judges
were to try the executive, Mason contended, they surely ought not be
appointed by him. Mason opposed executive sppointment Gouver-
neur Morria, who favored it, agreed that it would be improper for the
judges to try an impeachment of the executive, but suggested that this
was not an argument against their appointment by the executive.
(II: 41-42) Ultimately, after the Convention divided evenly on a


81

60

Sheppard. Furman, The Constitutional Tertbook, (George W. Childs,

Philadelphia, 1855). A text on Constitutional meaning concluding
that impeachment was designed to reach any serious violation of
public trust, whether or not a strictly legal offense.

Simpson, Alex., A Treatise on Federal Impeachments, (Philadelphia
Bar Association, Phila., 1916) (reproduced in substantial part in
64 U.Pa.L.Rev. 651 (1916)). After reviewing English and Ameri-
can impeachments and available commentary, the author concludes
that an indictable crime is not necessary to impeach.

Storv, Joseph, Commentaries on the Constitution of the United States,
vol. 1, 5th edition, (Little, Brown & Co., Boston 1891). A com-
mentary by an early Supreme Court Justice who concludes that im-
peachment reached conduct not indictable under the criminal law.

Thomas, David, “The Law of Impeachment in the United States,” 2
Am, Pol. Sci. Rev. 378 (1908). A political ecientist’s view on im-
Beachment concluding that the phrase “high Crimes and Mis-

lemeanors” was meant to include more than indictable crimes. The
author argues that English parliamentary history, American prece-
dent, and common law support his conclusion.

Tucker, John, The Constitution of the United States, (Callaghan &
Co., Chicago, 1899), vol. 1. A treatise on the Constitution concluding
that impeachable offenses embrace willful violations of publio duty
whether or not a breach of positive law.

Wasson, Richard, The Constitution of the United States: [ts History
ond Meaning (Bobbs-Merrill, Indianapolis, 1927). A short’ dis-
cussion of the Constitution concluding that criminal offenses do not
exhaust the reach of the impeachment power of Congress. Any gross
misconduct in office was thought an impeachable offense by this
author.

‘Watson, David, The Constitution of the United States. (Callaghan &
Co., Chicago, 1910), volumes I and II. A treatise on Constitutional
interpretation concluding that impeachment reaches misconduct in
office whether or not criminal. . .

Wharton. Francis, Commentaries on Law, ( Fay & Bro. Philadelphia,
1884). A treatise by an author familiar with criminal and Con-
stitutional law. He concludes that impeachment reached willfal mis-
conduct in office that was normally indictable at common law.

Willouchby, Weetel. The Constitutsonal Law of the United States,
vol. ITI, 2nd edition. (Baker, Voorhis & Co., New York. 1929). The
author concludes that impeachment was not limited to offenses made
criminal by federal statute.

Yankwich, Leon, “Impeachment of Civil Officers under the Federal
Constitution.” 26 Geo. L. Rev. 849 (1938). A law review article con-
cluding that impeachment covers general official misconduct whether
or not 8 violation of law.



14

voted for articles of impeachment against his own party, the Presi-
dent of his party, and I know that this is extremely difficult for all
¢ us, and we wish you Godspeed and courage in carrying out your
luties.
Having said that, let me now recognize the very distinguished
gentleman from Illinois, Mr. Henry Hyde, for whatever remarks he
may have.

STATEMENT OF HON. HENRY J. HYDE, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ILLINOIS

Mr. HybeE. Thank you so much, Mr. Chairman. Mr. Conyers and
I are prepared to yield more time. You have said so many wonder-
ful things that we ought to quit while we are ahead. I appreciate
your extraordinary generosity. Thank you very much.

I have a prepared statement that I would like to deliver, at least
a part of it, but before—

The CHAIRMAN. Without objection the entire statement will ap-
pear in the record.

Mr. Hype, Thank you.

Before I do that, I would like to cut to the chase on one issue
that seems to be in contention. Let me say that Mr. Conyers and
I are not only working in a bipartisan, nonpartisan way, but we are
working with collegiality. We both understand the solemnity, the
gravity, the seriousness of this endeavor, this mountain climb that.
we are beginning. And we understand if we do it well, the House
of Representatives will be enriched and strengthened, and our
country will be proud of this institution. If we don’t do it well, if
we fall into partisan bickering, we will disgrace this institution,
and we are not about to do that, God willing. So Mr. Conyers and
I are getting along very well, and we are going to make every effort
to continue to do that.

Now, as to the one issue that there is some concern about, we
are guided by the letter sent to the Speaker and Mr. Gephardt by
the independent counsel dated September 9. One of the lines in the
letter says, “many of the supporting materials contain information
of a personal nature that I respectfully urge the House to treat as
confidential.”

Now, the package sent over from the independent counsel is a re-
ferral. It is one three-ring binder of 445 pages consisting of an in-
troduction, 25 pages; a narrative, 280 pages; and a statement of
grounds or charges, 140 pages. That is the document that we pro-
pose upon adoption of this resolution to disseminate to the public
and to the world.

Also sent over were appendices. Those are six three-ring binders
of 2,600 pages, which contain information on the Paula Jones case,
telephone logs and other material. We are informed that that is
part of what the independent counsel is referring to as matters of
a personal nature that he respectfully urged us to treat as con-
fidential.

In addition, there is another element called “everything else.”
That consists of grand jury transcripts, audiotapes and videotapes.
So the appendices and everything else requires some sensitivity in
dealing with.


56
35

able, but that was because they held their place during good behavior
and “[iJt is necessary therefore that a forum should be established for
trying misbehaviour.” (II :66) The executive, like the legislature and
the Senate in particular, would hold office for a limited term of six
years; “he would periodically be tried for his behaviour by his electors,
who would continue or discontinue him in trust according to the man-
ner in which he had discharged it.” Like legislators, therefore, “he
ought to be subject to no intermediate trial, by impeachment.” (II: 67)
Impeachment is proper to secure behavior of those holding their
office for life: it is unnecessary for any officer who is elected for a
limited term, “the Periodical responsibility to the electors being an
equivalent security.” (IT: 68)

King alo suggested that it would be “most agreeable to him” if the
executive’s tenure in office were behaviour; and impeachment
would be appropriate in this case, “provided an independent and effec-
tual forum could be advised.” He should not be impeechable by the
legislature, for this “would be destructive of his independence and of
the principles of the Constitution.” (II :67)

Edmund Randolph agreed that it was necessary to proceed “with a
cautious hand” and to exclude “as much as possible the influence of the
Legislature from the business.” He favored impeachment, however:

‘The propriety of impeachments was a favorite rinciple
with him; Guilt wherever found ought to be punished. The
Executive will have great opportunitys of abusing his power;
particularly in time of war when the military force, and in
some respects the public money will be in his hands, Should no
regular punishment be provided, it will be irregularly inflicted
by its & insurrections. (II: 67)

Charles Pinckney rejoined that the powers of the Executive “would
be 80 circumscribed as to render impeachment unnecessary,” (II :68)

SELECTION OF THE EXECUTIVE

On July 24, the decision to have electors choose the executive was
reconsidered, and the national legislature was again substituted, seven
states to four. (11:101) It was then moved to reinstate the one-term
limitation, which led to discussion and motions with respect to the
length of his term—eleven years, fifteen years, twenty years (‘‘the
medium life of princes”—a suggestion possibly meant, according to
Madison’s journal. “aa a caricature of the previous motions”), and
eight years were offered. (II :102) James Wilson proposed election for
8 term of six years by a small number of members of the legislature
selected by lot. (II :103) The election of the executive was unanimously
postponed. (II #108) On July 25, the Convention rejected, four states
to seven, s proposal for appointment by the legislature unless the in-
cumbent were reeligible in which case the choice would be made by
electors appointed by the state legislatures. (II:111) It then reiected,
five states to six, Pinckney’s proposal for election by the legisiature,
with no person eligible for more than six years in any twelve. (IT :115)

The debate continued on the 26th, and George Mason suggested re-
instituting the original mode of election and term reported by the
Committee of the Whole (appointment by the legislature, a seven-year
term, with no reeligibility for a second Yerm). (1 1118-19) This was


3

The resolution provides the Judiciary Committee with the ability
to review the communication, to determine whether sufficient
grounds exist to recommend to this House, and that is what they
will be charged with, to recommend to this House that an impeach-
ment inquiry be commenced. The resolution provides for an imme-
diate release of the approximately 445 pages comprising, again, an
introduction, a narrative and a statement of so-called grounds.
This will be printed as a House document, and it will be made
available to Members, to the press and to the public after House
passage on Friday morning.

Now, there are technical difficulties involved because we are
waiting for the computerized transmittal document so that we can
begin to print this immediately after the Congress acts on Friday.

The balance of the material will have been deemed to have been
received in executive session, but will be released from that status
on September 23, 1998. That is a much longer time than some of
us felt was necessary. However, from the very persuasive argu-
ments of Mr. Hyde and Mr. Conyers, we have extended that time,
again trying to be as fair and open as we possibly can.

Again, the balance of the material will have been deemed to have
been received in executive session and will be released on that date
unless the Judiciary Committee votes not to release portions of it.
Materials released will immediately be printed as a House docu-
ment. That means that it will be available to all of the Members,
to the press, and to the American public.

As to the receipt by the House of transcripts and other records
protected by the rules of grand jury secrecy, committees of the

louse have received such information on at least five occasions,
and this is important to recall, all in the context of impeachment
actions, These precedents date all the way back to 1811, and
occured as recently as the impeachment of federal judges, I believe,
in the late 1980s.

The resolution further provides that additional material compiled
by the Judiciary Committee during the review will be deemed to
have been received in executive session unless it is received in an
open session of the committee. That is up to you gentlemen.

Also, access to the executive session material will be restricted
to members of the Judiciary Committee and such employees of the
committee as may be designated by the Chairman after consulta-
tion with the Ranking Minority Member, Mr. Conyers.

Finally, the resolution provides that each meeting, that each
hearing or deposition of the Judiciary Committee will be in execu-
tive session unless otherwise determined by the committee, and
again, that is at your discretion, gentlemen. The executive sessions
may be attended. only by Judiciary Committee members, not by
other Members of the Congress, and employees of the committee
fesignates by the Chairman, again after consultation with the

Minority Member.

The resolution before us attempts to strike an appropriate bal-
ance between House Members’ and the public’s interest in review-
ing this material and the need to protect innocent persons, and
that is very, very important.

It is anticipated that the Judiciary Committee may require addi-
tional procedures or investigative authorities to adequately review


73
52

Article /V alleged “gross and improper conduct” in that Archbald
had (in another suit pending in the Commerce Court) “secretly,
wrongfully, and unlawfully” requested nn attorney to obtain an ex-
planation of certain testimony from a witness in the case, and sub-
sequently requested argument in support of certain contentions from
the same attorney, all “without the knowledge or consent” of the op-
posing party."®

Article V charged Archbald with accepting “a gift, reward or pres-
ent” from a person for whom Archbald Bad attempted to gnin a fav-
orable leasing agreement with a potential litigant in Archbald’s
court."

Article V/ again charged improper use of Archbald’s influence as a
judge. this time with respect to a purchase of an interest in land.

Articles VII through X11 referred to Archbald’s conduct during his
tenure as district court judge. These articles alleged improper and un-
becoming conduct constituting “misbehavior” and “gross misconduct”
in office stemming from the misuse of his position as judge to influence
litigants before his court, resulting in personal gain to Archbald. He
was also charged with accepting a “large sum of money” from people
likely “to be interested in litigation” in his court, and such conduct
was alleged to “bring his . . . office of district judge into disrepute.” '*
Archbald was also charged with accepting money “contributed... by
various attorneys who were practitioners in the said court”; and ap-
pointing and maintaining as jury commissioner an attorney whom he

ew to be general counsel for a potential litigant.”

, Article XII summarized Archbald’s conduct both as district court
judge and commerce court judge. charging that Archbald hnd used
these offices “wrongfully to obtain credit,” and charging that he had
used the latter office to affect “various and diverse contracts and agree-
ments,” in return for which he had received hidden interests in said
contracts, agreements, and properties.’*

c. Proceedings in the Senate

The Senate found Archbald guilty of the charges in five of the
thirteen articles, including the catch-all thirteenth. Archbald was re-
moved from office and disqualified from holding any future office.’*

11, DISTRICT JUDGE GEORGE W. ENGLISH (1925-1026)

a. Proceedings in the House
The House adopted a resolution in 1925 directing an inquiry into
the official conduct of District Judge English. A subcommittee of the
Judiciary Committee took evidence in 1925 and recommended impeach-
ment."* In March 1926, the Judiciary Committee reported an impeach-
ment resolution and five articles of impeachment.” The House adopted
the impeachment resolution and the articles by a vote of 306 to 62.

8d Seve, 142048 (1913)
Ist Seee. (1925)



28
7

The impeachment of Warren Hastings, first attempted in 1786 and
concluded in 1795,"* is particularly important because contemporane-
ous with the American Convention debates. Hastings was the first
Governor-General of India. The articles indicate that Hastings was
being charged with high crimes and misdemeanors in the form of gross
maladministration, corruption in office, and cruelty toward the people
of India.”

Two points emerge from the 400 years of English parliamentary ex-
perience with the phrase “high Crimes and Misdemeanors.” First, the
particular allegations of misconduct alleged damage to the state in
such forms as misapplication of funds, abuse of official power, neglect
of duty, encroachment on Parliament's prerogatives, corruption, and
betrayal of trust.” Second, the phrase “high Crit and lemean-
ors” was confined to parliamentary impeachme! it had no roots in
the ordinary criminal law, * and the particular allegations of miscon-
duct under that heading were not necessarily limited to common law or
statutory derelictions or crimes.

B. Tue Intention or THE FRAMERS

The debates on impeachment at the Constitutional Convention in
Philadelphia focus principally on its applicability to the President.
The framers t to create 2 responsible though strong executives
they hoped, in the words of Elbridge Gerry of Massachusetts, that
“the maxim would never be adopted here that the chief Magistrate
could do [no] wrong.” ** Impeachment was to be one of the central ele-
ments of executive responsibility in the framework of the new govern-
ment as they conceived it.

The constitutional grounds for impeachment of the President re-
ceived little direct attention in the Convention ; the phrase “other high
Crimes and Misdemeanors” was ultimately added to “Treason” and
“Bribery” with virtually no debate. There is evidence, however, that
the framers were aware of the technical meaning the phrase had ac-
quired in English impeachmente. .

Ratification by nine states was. required to convert the Constitution
from a proposed plan of government to the supreme law of the land.
The public debates in the state ratifying conventions offer evidence of
the contemporaneous understanding of the Constitution equally as
compelling as the secret deliberations of the delegates in Philadelphia.
That evidence, together with the evidence found in the debates during
the First Congress on the power of the President to discharge an
executive officer appointed with the advice and consent of the Senate,

Tek were (Oxford, 1968).
TM Bee Marshall The Imposchment of Werren Mestinge (Oxford. 1
TSpeachment.iz iret, both criminal and won-crimtval ‘ohvtees appear
was deecribed DY Pitt an that of all others that bore

‘sopre, a 19, at 68.

i

t
Hastings te gnilty
gad miodemennor fe the destroction of the country aforveaid.” The Com:
for impeachment. Simp-
: copra a 19, at xv. 48.
trac Tot

i
;
i
uy
H
i


7
50

his lust for private gain.” when he “unlawfully and corruptly” con-
tinued his appointee in office, “to the great injury and damage of the
officers and soldiers of the United States” stationed at the military
post. The maintenance of the trader was also alleged to be “against
public policy, and to the great disgrace and detriment of the public
service.” **

Article IV alleged seventeen separate specifications relating to Bel-
knap’s appointment and continuance in office of the post trader."

Article V enumerated the instances in which Belknap or his wife
had corruptly received “divert large sums of money.” *

¢. Proceedings in the Senate

The Senate failed to convict Belknap on any of the articles, with
votes on the articles ranging from 35 guilty—25 not guilty to 37
guilty—25 not guilty."”
d. Miscellaneous

In the Senate trial, it was argued that because Belknap had resigned
prior to his impeachment the case should be dropped. The Senate,
by a vote of 37 to 29, decided that Belknap was amenable to trial by
impeachment."* Twenty-two of the Senator voting not guilty on enc!
article. nevertheless indicated that in their view the Senate had no
jurisdiction.”

9%. DISTRICT JUDGE CHARLES BWAYKE (1908-1005)

a. Proceedings in the House

The House adopted a resolution in 1903 directing an investigation
by the Judici Committee of District Judge Swayne. The com-
mittee held hearings during the next year, and reported a resolution
that Swayne be impeached “of high crimes and misdemeanors” in
late 1904." The House agreed to the resolution unanimously.
b. Articles of Impeachment

After the vote to impeach, thirteen articles were drafted and ap-
proved by the House in 1905."* However, only the first twelve articles
were presented to the Sena‘

Article I charged that Swayne had knowingly filed a false certificate
and claim for travel expenses while serving as a visiting judge, “where-
by he has been guilty of a high crime and misdemeanor in said office.”

Articles [1 and [1] charged that Swayne, having claimed and re-
ceived excess travel reimbursement for other trips, had “misbehaved
himself and was and is guilty of a high crime, to wit, the crime of ob-
taining money from the United States by s false pretense, and of #
high misdemeanor in office.”

Articles [V and V charged that Swayne, having appropriated a pri-
vate railroad car that was under the custody of a receiver of his court

| Rac. 843-ST (1876).

342-81.
38 Cone. Rac. 103 (1903).
2.89 Come. Rac. 247-48 (1906



64
43

cate that the duty on the ship or the merchandise had been paid or
secured, “contrary to [Pickering’s} trust and duty as judge. . ., and
to the manifest injury of [the] revenue.” °
Article IT charged that Pickering, “with intent to defeat the just
claims of the United States,” refused to hear the testimony of witnesses
produced on behalf of the United States and, without hearing testi-
mony, ordered the ship and merchandise restored to the claimant “con-
trary to his trust and duty, as judge of the ssid district court, in viola-
tion of the laws of the United States, and to the manifest injury of
ne veisle ITT charged that Pickering, “di
Arti charged that Pickering, “disregarding the authority of
the laws, and wickedly meaning and intending oie are the tovegues
of the United States, and thereby to impsir the public credit, did
absolutely and positively refuse to allow” the appeal of the United
States on the iralty. proceedings, “conti to his trust and dut;
as judge of the said district court, against laws of the Unit
States, to the t injury of the public revenue, and in violation of
the solemn oath which he had taken to administer equal and impartial
justice.” *
‘Article IV charged :
That whereas for the due, faithful, and impartial adminis-
tration of justice, temperance and sobriety are essential quali-
ties in the character of a ju yet the said John Pickering,
being s man of loose morals and intemperate habits, . . . did
appear upon the bench of the said court, for the purpose of
administering justice [on the same dates as the conduct
charged in articles I-III], in a state of total intoxication, . . .
and did then and there frequently, in a most profane and in-
decent manner, invoke the name of the Supreme Being, to the
evil example of all the good citizens of the United State, and
was then and there guilty of other high misdemeanors, dis-
- graceful to his own character as a judge, and degrading
to the honor and dignity of the United States.”
ce. Proceedings in the Senate
The Senate convicted Judge Pickering on each of the four articles
by a vote of 19 to 7.

d. Miscellaneous

‘The Senate heard evidence on the issue of Judge Pickering’s sanity,
but refused by a vote of 19 to 9 to postpone the trial."*

3. JUSTICE SAMUEL CHASE (1804-1805)

a. Proceedings in the House

In 1804 the House authorized a committee to inquire into the con-
duct of Supreme Court Justice Chase.'* On the same day that Judge
Pickering was convicted in the Senate, the House adopted by a vote of

Kurcese



ical O: f Impeachment.

‘A. The English Pat Polaron Practice.
B. The Intention of the Framera__
1. The Purpose of the Impeachment Remedy_

2 Adoption of “high Crimes and le
meanors”

Iv.
Appendix A.

Proceedings of the Constitutional Convention, 1787_-.---
Appendix B.

American In
wr William Blount (1797-1799) ..
District Judge John Pickering (1803-1
Justice Samuel Chase (1804-1805).
District Judge James H. Peck (1!
District Judge West H. Humphreys (1862
President Andrew Johnson (1867-1868)
District Judge Mark H. Delahay (1873,
Secretary of War William W. (ice (1876)
District Judge Charles Swayne
10. Cirouit Ju Robert W. 4 ental a ioe 18).
11. District Ju Geory nglish (1825-1926) __
12. District Judge Harald Douotbes kk (1982-1988) -
18, District Judge Halsted L. Ritter (1983-1936) ..--
Appendix C.
Secondary Sources on the Criminality Iesue_......-.-----

om

Spree perr



38
W

duty. They must be judged of by the habits and rules and
principles of dplomecy, or departmental Pperations and
arrangements, 0} jiamen' practice, of executive cus-
toms and negetiations of foreign ae well as domestic political
movements; and in short, by a a great variety of circumstan-
ces, as well those which aggravate as those which extenuate
or justify the offensive acts which do not not properly belong to
the judicial character in the ordinary administration of jus-
tice, and are far removed from the reach of municipal juris-
prudence.**

C. Tae Amentcan. Iereactoeent Cases

Thirteen officers have been impeached by the House since 1787: one
President, one cabinet officer, one United Senator, and ten Fed-
eral judges.“ In addition there have been numerous resolutions and
im tions in the House not resulting in impeachment. However,
the action of the House in declining to mpeach an an ‘officer is not par-
ticularly illuminating. The reasons for failing to impeach are gen-
erally not stated, may have rested a failure of vot Pre

iciency of the grounds, political j moent, the a
tive basiness, or the closeness of the ition of the peat session. oti fan
grees. On the other hand, when the piration of ihe semi an

officer, 8 majority of the Members necessarily have conele that the

conduct alleged constituted grounds
fener Section of the Croton, hich sates that

Teen oo of th ola 1 ipeechanents © of judges Pith open
relevance of the ten im] respect to ag
dential impeschment standards an haa been by comet Te does
not. The argument is that or eppiea jmpliee m dditional

an Otte daly tapes not applicable to other civil officers.
Flowerer, H provision diecaseed in ‘in the' Convention
and dee n ion is Fe Article TI, Section 4, which

expree terms, ‘onic chiens judges, and
it of ‘insets evan ers, cuing jn snd deg
via reat, the interpretation f the “good behavior” cla
any even! of savior 88
adopted by the House has not been made clear in any of the judicial
cases. Whichever view is taken, the judicial impeach-
ments have involved an sesessment of the conduct of the officer
in terms ef the constitatiewal duties of his office. In this respect, the
impeachments of judges are consistent with the three ee
of non-judicial officers.
Each of the thirteen Ameri involved charges
misconduct incompatible with jenn i ion of the aoc

= 14, Atory Commentortes on the Constitution of the United Btates, $706, at S89 (Sth
iEleven, ot thew ofteers wore trind fo the Renate, Aticiea of impene

vented to the Senate Beira teuinh isdew Bagiinh rout he oened ehercly before
% ec ererye eth “e

: thartece Nexpeacinwer' Tevelviug Judgve—have revolted ta
searabenin, ean gat gener el oa ar
stated ‘selfSect Groene tor mprecmest. acquittaie shet 26 on ae
« srgm a fastens of Yroot, other or & determi:
Eaten By mere an one Gait of tng Seastor (fo tae gent and impeach
trial oF conviction was inappropriate Yor want of Jerietietice.

i
i
i


58
37

to six; then a vote on the “abstract question” of selection by electors
failed, the States being evenly divided (four states for, four opposed,
two divided, and Massachusetts absent). (II: 404)

On August 25, the clause giving the President pardon power was
unanimously amended so that cases of impeachment were excepted,
rather than # pardon not being pleadable in bar of impeachment. (II:

419-20:

On Ragust 27, the impeachment provision of Article X was unani-
mously postponed at the instance of Gouverneur Morris, who thought
the Supreme Court an improper tribunal. (II: 4a1) A proposal to
make judges removable by the Executive on the application of the
Senate and House was rejected, one state to seven. ie 429)

EXTRADITION : “HIGH MISDEMEANOR”

_ On August 28, the Convention unanimously amended the extradi-
tion clause, which referred to any person “charged with treason, felony
or high misdemeanor in any State, who shall flee from justice” to
strike “high misdemeanor” and insert “other crime.” The change
was made “in order to comprehend all proper cases: it being doubtful
Wee misdemeanor’ had not a technical meaning too limited.”

FORUM FOR TRIAL OF IMPEACHMENTS

On August a1, these parts of the Constitution that had been post-
poned were referred to a committee with one member from each state—
the Committee of Eleven. (II: 473) On September 4, the Commit-
tee reported to the Convention. It proposed that the Senate have power
to try all impeachments, with concurrence of two-thirds of the mem-
bers present required for « person to be convicted. The provisions con-
cerning election of the President and his term in office were essentially
what was finally adopted in the Constitution, except that the Senate
was given the power to choose among the five receiving the most elec-
toral votes if none had a majority. (II: 496-99) The office of Vice
President was created, and it was provided that he should be ex officio
Presideat of the Senate “except when they sit to try the impeach-
ment of the President, in which case the Chief Justice shall preside.”
(1:498) The provision for impeachment of the President was amend-
ed to delete “corruption” as a ground for removal, reading:

He shall be removed from his office on impeachment by the
House of Representatives, and conviction by the Senate, for
treason, o bribery... .(11:499)

The Convention postponed the Committee's provision making the
Senate the tribunal for impeachments “in order to decide previously
on the mode of electing the President.” (II :499)

SELECTION OF THE PRESIDENT
Gouverneur Morris explained “the reasons of the Committee and

his own” for the mode of election of the President:

‘The 1st was the danger of intrigue & faction if the appointmt.
sheuld be made by Legislature. 2 the inconveniency of an
ineligibility required by that mode in order to lessen its evils.


24

3

by Members firmly committed to the need for a strong presidency
and a healthy executive branch of our government. ‘The House of
Representatives acted out of a clear sense of constitutional duty to
resolve issues of a kind that more familiar constitutional processes are
unable to resolve.

To assist the Committee 2 working toward that resolution, this
memorandum reports-upon the history, purpose meaning of the
constitutional phrase ‘ Bribery, or other high Crimes and
Misdemeanors.


91

if they agree with you, fine, and we certainly would not hesitate
to have you do that.

Mr. MoaKLEY. Mr. Chairman, I thank you for informing the peo-
ple what the procedure is, and we agree. And we don’t want to test
anything. I just want to get my own mind, my feeling— my infor-
mation was that we had an agreement, and if we don’t have that
agreement any longer of course I know if it comes to a vote up
here, we lose, but I thought this was the agreement that was en-
tered into.

Mr. Conyers.

Mr. Conyers. Mr. Moakley, let me point out to you why that
agreement was entered into repeatedly by the Speaker, the leaders
and myself and the Chairman. It is because you cannot talk about
excising material, if that need arises, with 35 Members of Con-
gress. I don’t care how much integrity they have. This is a simple
administrative procedure.

It is tough enough. We have already worked out what happens
if we disagree, and the agreement was we would take it to the
Speaker for resolution. We wouldn’t even subject the committee to
what could be rancorous votes.

So it is not that the Chairman and I are trying to devise ways
to get more work and have more responsibility and be eligible for
more criticism. It is just the simplest way to proceed.

Mr. MOoAKLEyY. I understand exactly what the purpose of the
agreement was, and that is why I am making it here today, be-
cause I know that if we have to do this by an amendment before
this committee, of course it is a 9 to 4 vote against us. But I am
just trying to uphold the will of the Speaker as I heard it and as
T assumed it was.

The CHAIRMAN. Would the gentleman yield?

Mr. MoAKLey. I think Mr. Hyde—

Mr. Hye. Might I just make this quick suggestion?

It is very important that we have a pre-release review of the
supporting material if we are to protect innocent people. Now what
we are arguing about is the makeup of the reviewers. Whether it
is Mr. Conyers and myself and our. designated staff— I don’t pro-
pose to put blue jeans on and stay there for 2 weeks going through
cartons, but I would have staff help. That is why we hired them,
that is why they get those big bucks. But the dispute is whether
35 members of the committee would have equal access and we
would stumble over each other trying to do this, or whether we do
it effectively and efficiently, and at the end of that period release
everything and make everything available to the other Members.

Now what will pass the floor? Maybe Mr. Deutsch’s remarks,
which would have Mr. Dingell’s support, Mr. Pombo’s support. I
could name several who want to that route, and we lose the—
entirely the pre-release review. That would be the worst scenario.
So maybe we debate it on the floor and whoever wins, wins. But
we don’t want to lose the pre-release review if we want to be re-
sponsible in protecting—

Mr. Moak ey. Yes, I yield, Mr. Chairman.

The CHAIRMAN. Well; I am just going to have to object to all of
you talking about an agreement. There has been no agreement.
And, again, I don’t like to put words in other people’s mouths, but


45
24

criminal. Of the thirteen impeachments voted by the House since
1789, at least ten involved onc or more allegations that did not charge
a violation of criminal law.'*

Impeachment and the criminal law serve fundamentally different
purposes. Impeachment is the first step in a remedial process—re-
moval from office and possible disqualification from holding future
office. The purpose of impeachment is not personal punishment; '
its function is primarily to maintain constitutional government. Fur-
thermore, the Constitution itself provides that impeachment is no
substitute for the ordinary process of criminal law since its specifics
that impeachment does not immunize the officer from criminal liability
for his wrongdoing."*

The general applicability of the criminal law also makes it inap-
propriate as the standard for a process applicable to a highly spe-
cific situation such as removal of a President. The criminal law sets
‘a general standard of conduct that all must follow. It does not address
itself to the abuses of presidential power. In an impeachment pro-
ceeding a President is called to account for abusing powers that
only a President possesses.

Other characteristics of the criminal law make criminality in:
propriate as an essential element of impeachable conduct. While
the failure to act may be a crime, the traditional focus of criminal
law is prohibitory. Impeachable conduct, on the other hand, may
inchide the serions failure to discharge the affirmative duties imposed
on the President by the Constitution. Unlike a criminal case, the cause
for the removal of a President may be based on his entire course of
conduct in office. In particular situations, it may be a course of con-
duct more than individual acts that has a tendency to subvert consti-
tutional government.

To confine impeachable conduct to indictable offenses may well
he to set a standard so restrictive as not to reach conduct that might
adversely affoct the system of government. Some of the most grievous
offenses against our constitutional form of government may not entail
violations of the criminal law.

‘other clef officers can
(1973). While this
as the

the
withe latter approach that bext
Tonction of impeachment, At ti
i were. terme

eda he Cosntitation and itt ret
ten ow the tion, an

Speate rolnmuyeat 18 the eens tat today would be Cougnt & ROD.
Didier och av removal of s corporate oficer for misconduct breaching Ais duties to the

metimes surres rious provistows 1a the Constitution exempta
eine Tees certain, provicione relating to the trial and +i
fy an indictable oflense as a8 coer

recre  impenchable
car that tres when criminal congect is evel
Py


86

) CONGRESSMAN JERRY SOLOMON

New York

Rules Committee Chairman,
House of Representatives

Decorum in the House and in Committees

Members should remember that under clause 1(a)(1) of Rule XI, the rules of the
House are the rules of its committees so far as applicable, This means that Members
should comport themselves with the rules of decorum and debate in the House and in
Committees specifically with regard to references to the President of the United States as
stated in Sec. 370 of the House Rules and Manual.

As stated in the Speaker’s announcement, with the concurrence of the
Leader, on the House floor this morning, Members engaging in debate must
language that is personally offensive toward the President, including references to various
types of ethical behavior.

As stated in Cannon's Precedents, on January 27, 1909, the House adapted a report
in response to improper references in debate to the President. That report read in part as
follows:

“It is... the duty of the House to require its Members in speech or debate to preserve that
proper restraint which will permit the House to conduct its business in an orderly manner
and without unnecessarily and unduly exciting animosity among its Members or
antagonism from those other branches of the Government with which the House is
correlated.

As a guide for debate, it is permissible in debate to challenge the President on
matters of policy. The difference is one between political criticism and personally offensive
criticism. For example, 2 Member may assert in debate that an incumbent President is not
worthy of re-election, but in doing so should not allude to personal misconduct. By
extension, a Member may assert in debate that the House should conduct an inquiry, or
‘that a President should not remain in office.

Under section 370 of the House Rules and Manual it has been held that a Member
could:
refer to the government as “something hated, something oppressive.”
refer to the President as “using legislative or judicial pork.”
refer to a Presidential message as 2 “disgrace to the country.”
refer to unnamed officials as “our half-baked nitwits handling foreign affairs.”


63

42

Article [V charged that Blount, knowing that the Congress had
made it lawful for the President to establish trading posts with the
Indians and that the President had appointed an interpreter to serve
as assistant post trader, conspired and contrived to seduce the inter-
preter from his duty and trust and to engage him in the promotion
and execution of Blount’s criminal intentions and conspiracies, con-
trary to the duty of his trust and station as a Senator and against
the Jaws, treaties, peace and interest of the United States.

Article V charged that Blount, knowing of the boundary line be-
tween the United States and the Cherokee nation established by treaty,
in further prosecution of his criminal designs and conspiracies and
the more effectually to accomplish his intention of exciting the Chero-
kees to commence hostilities against Spain, conspired and contrived to
diminish and impsir the confidence of the Cherokee nation in the gov-
ernment of the United States and to create discontent and disaffec-
tion among the Cherokees in relation to the boundary line. This was
alleged to be against Blount’s duty and trust as a Senator and against
impeachment was dismissed.

c. Proceedings in the Senate
Before Blount’s impeachment, the Senate had expelled him for “hav-
ing been guilty of a high misdemeanor, entirely inconsistent with his
public trust and duty as a Senator.” ¢ At the trial a plea was inte:
on behalf of Blount to the effect that 123 a Senator was not a “civil
officer,” (2) having already been expelled, Blount was no longer im-
peachable, and (3) no crime or misdemeanor in the execution of the
- office had been alleged. The Senate voted 14 to 11 that the plea was
sufficient in law that the Senate ought not to hold jurisdiction.’ The
impeachment was dismissed.

2, DISTRICT JUDGE JOHN PICKERING (1805-1804)

a. Proceedings in the House

A message received from the President of the United States, regard-
ing complaints against Judge Pickering, wns referred to a select com-
mittee for investigation in 1803.* A resolution that Pickering be
impeached “of high crimes and misdemeanors” was reported to the full
House the same year and adopted by a vote of 45 to 8.”

3. Articles of Impeachment

A select committee was appointed to draft articles of impeachment.
The House agreed unanimously and without amendment to the four
articles subsequently reported.’ Esch article alleged high crimes and
misdemeanors by Pickering in his conduct of an admiralty proceeding
by the United States against a ship and merchandise that allegedly
had been landed without the payment of duties. : ;

Article I charged that Judge Pickering, “not regarding, but with
intent to evade” an act of Congress, had ordered the ship and mer-
chandise delivered to its owner without the production of any certifi-

fate).
Axnats o” Cone, 460 (1803).
13 AnMazs oF Cone. $80 (1908).
18 794-95.



.
.
.

87

Likewise, it has been held that a Member could not:
call the President a “liar.”
call the President “hypocrite.”
describe the President's veto of a bill as “cowardly.”
charge that the President has been “intellectually dishonest.”
refer to the President as “giving aid and comfort to the enemy.”
refer to alleged “sexual misconduct on the President's part.”

In order to most judiciously fulfill our duties, I encourage all Members to abide by these
rules of decorum in this debate.


122

a chance to review this for a couple of days, and I offer the amend-
ment.

The CHAIRMAN. Mr. Hall, your amendment to link the ethics
rules of the House with the United States Constitution and exist-
ing laws of the land I don’t think is very well taken, although I
don’t question your sincerity in doing it. We have rules of ethics
that we agree to operate under. It is an entirely different story.
These are not rules that the American people have to live under.
It is rules that we as Members of Congress live under.

By the same token, when a committee of jurisdiction, such as the
Judiciary Committee, considers this kind of information, it is done
in executive session. And if any Member leaks any of it, it is in vio-
lation of the House rules, and they stand subject to being censured
by our ethics committee. Therefore, I have no worry that any Mem-
ber would go ahead and leak this information.

We have made the arguments about the President receiving the
information 48 hours in advance. I share former independent coun-
sel Lawrence Walsh’s reasoning that the President already has
that information, and before he has to file a legal document with
the Justice Department, with the Judiciary, that they will have
ample time to do it; and, therefore, I would argue against your res-
olution,

Mr. HALL, Mr. Chairman, he does not have the written informa-
tion to look at it. He has been investigated for a number of years
now at the cost of about $40 million. For us in the Congress not
to give him a couple of days—not even a few hours—to review what
the Starr report says I think is extremely unfair.

When we go back and look at Watergate—when that inquiry on
the articles of impeachment came to the Congress, I remember
reading that Peter Rodino bent over backwards to be fair. In fact,
he was so fair that he was criticized by the members of the Demo-
cratic Party, but it turned out that he did the right thing by being
extremely bipartisan. He gave subpoena powers to the Minority
Party at that time.

‘e want to be fair to the President. This is the third time in the
history of the country that a President has been investigated for
potential misdeeds relative to—and hopefully it doesn’t get that
far—to articles of impeachment. For us to give the President a cou-
ple of days to look at all of the material which has been gathered
at a cost of $40 million, I think it is fair and reasonable, and I don’t
think that we are doing the right thing if we don’t pass this
amendment.

The CHAIRMAN. Mr. Hall, in my opinion, and I have been very
careful to listen to Members from both sides of the aisle, a majority
of this Congress does not agree with you. A majority of the Con-
gress believes that they ought to receive the material first and cer-
tainly no later than any other individual, including the President
of the United States, and we are not going to jeopardize this resolu-
tion. Since it has to go one way or the other to the floor, we must.
pass a bipartisan resolution that is going to be overwhelmingly ac-
cepted by this body tomorrow.

Mr. HALL. You just spoke about the argument I brought up re-
garding Members of Congress and ethics charges. They have 10


32
ll

impeachment ss “favorable to the executive”; where it was not
available and the chief magistrate had “rendered himself obnoxious,”
recourse was had to assassination. The Constitution should provide for
the “regular punishment of the Executive when his misconduct should
deserve it, and for his honorable acquittal when he should be unjustly
accused.* Edmund Randolph also defended “the propriety of
impeachments” :

The Executive will have great opportunitys of abusing his
power; particularly in time of war when the military force,
and in some respects the public money will be in his hands.
Should no angeles punishment be provided it will be
irregularly inflicted by tumults & insurrections.*

The one argument made by the opponents of impeachment to which
no direct response was mad ede dari ehe debate was that the executive
would be too dependent on the lgslaare~ tha as Charles Pinckney

pat it, the I lature would hold impeachment a cod over the

Bixecutive ant that means effectually destroy his independence.” **
That issue, his involved the forum tor trying impeachments and
the mode of electing the executive, troubled the Convention until its
closing daye. Throughout its deliberations on ways to avoid executive
subservience to the legislature, howerer, the Convention never recon-
sidered its early decision to make the executive removable through

the process of impeachment.
2. ADOPTION OF “HIGH CRIMES AND MIEDEMEANORS”

Briefly, i and lata in the Convention, the framers addressed the, jues-
tion how’ ‘to desoribe the de for impeachment consistent with its
intended function. They di after the mode of the President’s
election was settled in a way ta id not make him (in the words of
James Wilson) “the Minion of the Senate.” **

The draft of the Constitution then before the Convention provided

for his removal pone and conviction for “treason or
bribery.” T Geren Moco jected that these grounds were too limited :
Why is the provision restrained to Treason & bribery only?
Treason as defined in the Constitution will not many
great and dangerous offenses. Hastings is not guilty of
‘reason. Attempts to subvert the Constitution may not be
Treason as above defined—As bills of attainder which have
saved the British Constitution are forbidden, it is the more
necessary to extend : the power of impeachments.**
Mason then moved to add the word “maladministration” to the other
two grounds. Maladministration was a term in use in six of the thir-
teen state constitutions as a ground for impeachment, including

Mason’s home state of Virginia.”
When James Madison” ob objected that “so vague a term will be

“Bee, iF fa ciTomnnetent acionmt of the Cearentio's detieraions on

“Hike nd reldted ineues.
7 Firrand pt
the Governor of Virginie rere “mal sdmtotetraton,

yf impesehm eth
rraption, or other means, oy which, ‘tha Bate may be endangered”
dere end Hiate Consttiation $818 sit lives)

28-069—14—3



8

The time will come for us to consider the legal questions we are sworn to answer.
This process will and should work itself out.

However, we as a Congress and as a nation should not rush to judgement. We
need to review the evidence carefully and thoroughly while remembering that we
ourselves are not without faults.

The CHAIRMAN. I thank the gentleman, and now we will yield to
the gentleman from Sanibel, Florida, Mr. Goss.

STATEMENT OF HON. PORTER GOSS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF FLORIDA

Mr. Goss. Thank you very much, Mr. Chairman. I would like to
associate myself with your remarks and Mr. Dreier’s remarks. I
think they are right on target, along with the sober advice that we
have just received from Mr. Hall.

In a representative form of government, it is very important to
remember the people we represent, and I have no problem remem-
bering the people that I represent in the past few days because our
phone is rin; ing off the hook.

The gist of wl at I am hearing, and I want to share this with Mr.
Hyde and Mr. Conyers very much, is that as much as can be made

ublic without damage to innocent bystanders or damage to any
farther actions that your committee might take or feel necessary to
take should be made available to the public.

I come from the Sunshine State. We find doing the business in
public is a pretty darn good idea, and at least I have always seen
to adhere to that, and I am sure that you do as well. I am con-
vinced that we serve the country well when the people know what
we are doing, and I think that we need to make sure that people
understand that in this process there is a way to guarantee the
public’s right to know. It is not just an interest, I think it is a right
in this matter which is of such seriousness.

Thank you, Mr. Chairman.

The CHAIRMAN. Thank you.

The CHAIRMAN. Now the gentlelady from Rochester, New York.

STATEMENT OF HON. LOUISE SLAUGHTER, A REPRESENTA-
TIVE IN CONGRESS FROM THE STATE OF NEW YORK

Ms. SLAUGHTER. Thank you.

Receiving the report from the independent counsel is the first
step in an impeachment inquiry which we approach very solemnly.
The House of Representatives is charged under the Constitution
with examining these allegations against the President as pre-
sented by the independent counsel. We will determine whether the
evidence from the independent counsel meets the constitutional im-
peachment standard of “treason, bribery or other high crimes and
misdemeanors.” It is our obligation to examine these allegations in
a fair and unbiased manner.

In my 12 years here in the House, we have had votes for war,
and now we consider the impeachment of a President. Very few
Members who have served in this House have been confronted with
either of these responsibilities. I face this duty most solemnly. I am
completely aware of the obligation that I have to represent the peo-
ple who sent me here, to the best of my ability, in accordance with
the trust that they invested in me.


AT

IV. Conclusion

Impeachment is « constitutional remedy addressed to serious offenses
against the system of government. The purpose of impeachment under
the Constitution is indicated by the limited scope of the remedy (re-
moval from office and possible disqualification from future office) and
by the stated grounds for impeachment (treason, bribery and other
high crimes and misdemeanors). It is not controlling whether treason
and bribery are criminal. More important, they are constitutional
wrongs that subvert the structure of government, or undermine the
integrity of office and even the Constitution itself, and thus are “high”
offenses in the sense that word was used in English impeachments.

The framers of our Constitution consciously ado; a particular
phrase from the English practice to help define the constitutional
grounds for removal. The content of the phrase “high Crimes and Mis-
demeanors” for the framers is to be related to what the framers knew,
on the whole, about the English practice—the broad sweep of English
constitutional history and the vital role impeachment had played in

itation of roval prerogative and the control of abuses of minis-
terial and judicial power.

Impeachment was not a remote subject for the framers. Even as
they labored in Philadelphia, the impeachment trial of Warren Hast-
ings, Governor-General of India, was pending in London, a fact to
which George Mason made explicit reference in the Convention. What-
ever may be snid on the merits of Hastings’ conduct, the charges against
him exemplified the central aspect of impeachment—the parliamen-
tary effort to reach grave abuses of governmental power.

‘The framers understood quite clearly that the constitutional system
they were creating must include some ultimate check on the conduct
of the executive, particularly as they came to reject the sug;
plural executive. While insistent that balance between the executive
and legislative branches be maintained so that the executive would not
become the crenture of the legislature, dismissible at its will, the fram-
ers nlso recognized that some means would be needed to deal with ex-
cesses by the executive. Impeachment was familiar to them. They
understond its essential constitutional functions and perceived its
adaptability to the American contest.

While it’ may be argued that some articles of impeachment have
charged conduct that constituted crime and thus that criminality is an
eseential ingredient, or that some have charged conduct that was not
criminal and thus that criminality is not essential, the fact remains
that in the English practice and in several of the American impesch-
ments the criminality issue was not raised at all. The emphasis has been
on the significant effects of the conduct—undermining the integrity
of office, disregard of consitutional duties and oath of office. arrogation
of power. abuse of the governmental process, adverse impact on the
system of government. Clearly, these effects can be brought about in

(26)



7

formation as they home. So both Democrats and Republicans
alike are desirous of having this information out, and many people
who have contacted my office and have called in on the different
news programs have indicated that release of as much information
as possibly is the proper way to go.

At the same time we do want to protect investigations in other
areas that may be moving ahead, and we do not want to hurt any-
one by the release of documents. So I think that the 445—page re-
port coming forward and being made available online tomorrow
would be the best approach to take.

So I think we are doing this as fairly as possible and in as non-
partisan a way as possible, and I am hoping that we will be able
to get this resolved sooner rather than later. Thank you very much,
Mr. Chairman.

The CHAIRMAN, Thank you.

STATEMENT OF HON. TONY HALL, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF OHIO

The CHAIRMAN. The gentleman from Ohio, Mr. Hall.

Mr. HALL. Thank you. Today the Rules Committee begins a proc-
ess to examine grounds for impeaching the President. It is a som-
ber moment in our history, and as Members of the Congress, we
are being asked to sit in judgment of the President of the United
States. This is a time when we must set aside partisan concerns.
Our actions must be fair, deliberate and in the best interests of the
American people.

I urge members of the committee and of the House to be open—
minded and to weigh all information objectively. Also, we must pro-
ceed with sensitivity to the President and his family. As a man who
has served in our Nation’s highest office, the President deserves
the respect.

Impeachment is an extraordinary and painful process for our Na-
tion, and we need to take each step with great caution to ensure
that all of our actions are necessary and justified for the good of
the Nation.

In conclusion, the time will come for us to consider the legal
questions we are sworn to answer, and this legal process should
work itself out. However, we as a Congress and as a Nation should
not rush to judgment. We need to review the evidence carefully and
thoroughly while remembering that we ourselves are not without
faults. Thank you.

PREPARED STATEMENT OF Hon. Tony P. HALL, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF OHIO

Today, the Rules Committee begins a process to examine grounds for impeaching
the President. It is a somber moment in our history.

As Members of Congress, we are being asked to sit in judgement of the President
of the United States. This is a time when we must set aside partisan concerns. Our
actions must be fair, deliberate, and in the best interests of the American people.

I urge members of this committee and of the House to be open-minded and to
weigh all information objectively.

Also, we must proceed with sensitivity to the President and his family. As a man
who has gerved our nation’s highest office, the President deserves that respect.

Impeachment is an extraordinary and painful process for our nation. We need to
take each step with great caution to ensure that all of our actions are necessary
and justified for the good of the nation.


41
20

to judge impartially and to reflect on his competence to continue to
exercise the office.

Judge West H. Humphreys was impeached in 1862 on charges that
he Joined the Confederney without resigning his federal judgeship.”
Judicial prejudice against Union supporters was also alleged.

Judicial favoritism and failure to give impartial consideration to
cases before him were also among the allegations in the impeachment
of Judge George W. English in 1926. The final article charged that
his favoritism had created distrust of the disinterestedness of his
official actions and destroyed public confidence in his court."*

3. EMPLOYING THE POWER OF THE OFTICE FOR AN DAMPROPER PURPOSE
OR PERSONAL GAIN

Two types of official conduct for improper purposes have been
alleged in past impeachments. The first type involves vindictive use
of their office by federal judges; the second, the use of office for per-

sonal 1h

Judge James H. Peck was impeached in 1826 for charging with
contempt a lawyer who had publicly criticized one of his decisions,
imprisoning him, and ordering his disbarment for 18 months. The
House debated whether this single instance of vindictive abuse of
power was sufficient to impeach, and decided that it was, alleging that
the conduct was unjust, arbitrary, and beyond the scope of Peck's

ictive use of power also constituted an element of the charges
in two other impeachments. Judge George W. English was charged
in 1926, among other things, wit! threatening to jail a local news-

editor for printing a critical editorial and with summoning local
to court in # non-existent case to harangue them. Some of
the articles in the impeachment of Ju: Charles Swayue (1903)
alleged that he maliciously and unlawfully imprisoned two lawyers
and a litigant for contempt.

Six impeachments have alleged the use of office for versonal gain
or the appearance of financial impropriety while in office. Secretary
of War William W. Belknap was impeached in 1876 of high crimes and
misdemeanors for conduct that probably constituted bribery and cer-
tainly involved the use of his office for highly improper purposes—
receiving sul tial annual payments through an intermediary in
return for his appointing « particular post trader at a frontier military
post in Indian territory.

The impeachments of Judges Charles Swayne (1908), Robert W.
Archbald (1912), George W. English (1926), Harold Louderback
(1982) and Halsted L. Ritter (1936) each involved charges of the use
of office for direct or indirect personal monetary gain.” In the
Archbald and Ritter cases, a number of allegations of improper
conduct were combined in « single, final article, as well as bemg
charged separately.

“Aithough some of the lancuare in the articios wursested treavon. only high erimes a
ot sheged. and Hemphrey

2d
'e offence were charaetwrised ac a failure to die-

is fedictal duties.
th Jedges Harold Losderback (1933) and Halsted Ritter
at the allerations seuinet wid Lend $31
Judge Swayes wae charred, with talttring expeage accoants Od "Siatged with waite
tn the possession of a recetver be bad appointed. Arehbald was eb: ‘with uxing
Mle office to secure business favors from fitisnats sad tied Mtigants ‘his overt.
Judgre Barticn. Loudertack, and Ritter were charmed with mieaizg their power to eppotat



121

Mr. Goss.

Mr. Goss. No.

The CLERK. Mr. Goss votes no.

Mr. Linder.

Mr. LINDER. No.

The Cuerk. Mr. Linder votes no.

Ms. Pryce.

{No response.]

The CuerK. Mr. Diaz-Balart.

Mr. Diaz—Baarr. No.

The CLERK. Mr. Diaz-Balart votes no.

Mr. McInnis.

Mr. MCINNIS. No.

The CLERK. Mr. McInnis votes no.

Mr. Hastings.

Mr. HASTINGs. No.

The CLERK. Mr. Hastings votes no.

Mrs. Myrick.

Mrs. Myrick. No.

The CLERK. Mrs. Myrick votes no.

Mr. Moakley.

Mr. MOAKLEY. Yes.

The CLERK. Mr. Moakley votes yes.

Mr. Frost.

Mr. Frost. Yes.

The CLERK. Mr. Frost votes yes.

Mr. Hall.

Mr. HALL. Yes.

The CLERK. Mr. Hall votes yes.

Ms. Slaughter.

Ms. SLAUGHTER. Yes.

The CLERK. Ms. Slaughter votes yes.

Chairman Solomon.

The CHAIRMAN. I respectfully vote no, even though I hate to vote
against my Ranking Member.

The clerk will announce the results.

The CLERK. Four yeas and eight nays.

The CHAIRMAN. The amendment is not agreed to.

Are there further amendments to the resolution?

Mr. HALL. Mr. Chairman.

The CHAIRMAN. Mr. Hall of Ohio.

Mr. HALL. I have an amendment to the resolution, and I move
that the committee report the amendment in the nature of a sub-
stitute offered by the Judiciary Committee Ranking Member Mr.
Conyers in lieu of the text of House Resolution 525.

This substitute provides that the 445-page report submitted by
the independent counsel to the House shall be released to the
President on Friday, September 11, and to the Members and the
public on Sunday, September 13. This will give the President a pe-
riod of 48 hours to review the report before the public release.

I think this is fair. I think this is reasonable, since under the
rules of the House, any Member facing ethics charges, has 10 days
to review all evidence. So I think this is very relevant to what we
have done in the past. I think it is only fair to give the President


20

Foreword

Iam pleased to make available a staff report regarding the constitu-
tional grounds for presidential impeachment prepared for the use of
the Committee on the Judiciary by the legal staff of its impeachment
inquiry.

‘Te is understood thet the views and conclusions contained in the
report are etaff views and do not necessarily reflect those of the com-
mittee

Ex WA)

Perez W. Rovino, Jr.
Frmavany 22, 1974,

ay


15

Now, Mr. Conyers and I are mindful that people’s reputations
are at risk here. We think it appropriate and decent that we go
through the material included in the appendices and everything
else to winnow out irrelevancies, material that does not relate to
the core issue and will unduly damage innocent people. We have
no idea of the bulk, the complexity, any of that, but it is our pro-
posal and it is the proposal of this resolution to immediately get
out to the public the introduction, the narrative and the grounds,
that is 445 pages, and then give us some time.

You have generously given us 2 weeks to review this other mate-
rial. The bias is to release it all. The urge is to release it all, but
mindful of people’s reputations, we pray for the flexibility to give
us time to review it, inventory it and winnow out matters that we
think are more harmful than helpful.

We would like the trust of the body to trust Mr. Conyers and my-
self and our staffs to do the right thing. We are not withholding
anything from anybody that goes to the grand issue, the macro
issue here, but we are trying to do it in a decent, responsible way.

Now, how is that review proposed to take place? Mr. Conyers and
I thought and still think that it would be more expeditious if he
and I had that responsibility and were permitted to designate some
of our staff, who, by dividing the labor, can do this fairly quickly,
make the inventory and make recommendations to us. We then re-
port back to you folks and tell you what we found and what we pro-
pose to do, again with our bias, not only our bias, but our directive
under this rule, to disseminate everything to the people, but try to
protect innocent people.

Now, there is a controversy. Other members of the committee
want to do that, too. They want access. It is very hard for Mr. Con-
yers and me to tell a member of the Judiciary Committee that we
are going to look at it and you can’t, but it is an effort of practical-
ity to try to limit the circle of people so that privacy may be pre-
served. I can live with either system, but I do prefer, and Mr. Con-
yers and I both agree, to limit access to these things inasmuch as
we are mandated to deliver them anyway. We will deliver them to
the people, but we want to try and protect innocent reputations.

If that is the will of this committee, if that is the will of the
House, fine. If it is not, and you want the whole committee to do
that, that is okay, too. I can live with that, but I just want to go
on record as saying that Mr. Conyers and I prefer to have a small,
limited group do this quick inventory and winnow it out.

Now, that said, if you will indulge me, I do have a few things
to say, and I will try to be brief.

The CHAIRMAN. Take as much time as you want.

Mr. Hype. Thank you. As we all know, this begins a process of
immense consequence, a process that our Constitution thrusts on
the House of Representatives. The solemn duty confronting us re-

uires that we attain a heroic level of bipartisanship and we con-
duct our deliberations in full, fair and an impartial manner. This
may prove to be a lofty challenge, but I believe the gravity of our
responsibilities will overwhelm the petty partisanships that infect
us all.

I intend to work closely and have been working closely with my
Democratic colleagues on the committee, and particularly the


4

this communication in the future. It is anticipated that those au-
thorities will be the subject of another resolution before this com-
mittee next week, and we will again consult with the Ranking
Member of this committee and with the Ranking Members on your
committee, Mr. Hyde, in trying to arrive at a resolution that will
allow you to do that.

It is important to note that this resolution does not authorize or
direct an impeachment inquiry, and I hope that is perfectly clear.
It is not the beginning of an impeachment process in the House of
Representatives. It merely provides the appropriate parameters for
the Committee on the Judiciary, the historically proper place to ex-
amine these matters, to review this communication and to make a
recommendation to the House as to whether to commence an im-
peachment inquiry. That is what you are being charged with by
this resolution.

If this communication from Independent Counsel Starr should
form the basis for future proceedings, it is important for the Rules
Committee to be mindful that Members may need to cast public,
recorded and extremely profound votes in the coming weeks or
months. It is our responsibility to ensure that Members have
enough information about the contents of the communication to
cast informed votes and explain their decisions based on their con-
science to their constituents.

In summation, let me say that Democrats and Republicans dis-
agree about many things in this institution, and that is probably
as it should be, but no one disagrees about the honor and the integ-
rity of our great friend Henry Hyde. He is one of the most judicious
Members of this House of Representatives, and I have often said
on several occasions, as I said to my great hero and yours, Henry,
Ronald Reagan, that you would make an excellent Supreme Court
judge. I am very happy that he did not have the opportunity to fol-
low through on that because we need you here today, desperately,
in this capacity.

Likewise, the gentleman from Michigan, Mr. Conyers, has many
years of experience on the Judiciary Committee, including service
in 1974, which was one of the critical years of this Congress. He
is extremely knowledgeable. He is tenacious, to say the least. I
have had encounters with him in the past, and he usually wins,
and we look forward to his leadership in this very important mat-
ter.

This is a very grave day for the House of Representatives. It is
a solemn time in our Nation. Today we will do what we are com-
pelled to do under the Constitution, not because we desire it, but
because, my friends, it is our duty to do it. In order to most judi-
ciously fulfill these Constitutional duties, I encourage all Members
to approach this sensitive matter with the dignity and the decorum
that befits the most deliberative body in the history of this world
of ours.

Speaker Gingrich spoke of it on the floor. I would encourage all
Members that they control themselves. I, for one, am an emotional
person. I have been known to speak out sometimes without using
proper decorum, and I pledge not to do that. We need to treat the
Presidency with respect and treat this body with respect.


111

Mr. Frost?

Mr, Frost. I would only point out, and perhaps Ms. Lofgren
mentioned this when I was out of the room, she brings a wealth
of experience to this because she served on the staff of the commit-
tee in 1974 during Watergate.

The CHAIRMAN. Right. The point is well taken.

Mr. Goss?

Mr. Goss. Mr. Chairman, just further to your point that you
made about Mr. Walsh, his counsel and his advice on this matter
that the White House has a heads-up, I have seen the White
House lawyer on national television making a statement about this
material, saying there is nothing of substance in the material, and
they have already started the public relations program out at the
White House. I believe other Members have seen that, too.

Mr. MOAKLEY. Did you also see Mr. Gingrich say that he agreed
with Mr. Hyde on how this should be used in the Judiciary ‘Gom-
mittee?

Mr. Goss. I did not happen to see Mr. Gingrich. I do know there
is some legitimate confusion about the difference between the boxes
and the 445-page report, but I dare say that the President of the
United States knows a whole lot more about what is in that report
than any Member of Congress.

The CHAIRMAN. I recognize Ms. Lofgren.

Ms. LorcrREN. I think adopting the procedures established in
1974 that were fair have more to do with us than the Presidency.
If we cannot assure this country that we will be as bipartisan, that
we will yield as much authority to the Minority, if we will give as
much right to the President as was done in 1974, then we are al-
ready starting off on the wrong foot. This is about us, and if we
fall short of the yardstick of fairness, I worry a great deal about
our country’s future.

The CHAIRMAN. Ms. Lofgren and Ms. Waters, let me say that I
concur with your observations, and let me tell you that we have
done everything in our power trying to reach a compromise to
make sure that we try to follow precedent. As you know, there
were rumors, and in earlier drafts the Judiciary Committee, the
Republicans, were asking for special powers for the Chairman, Mr.
Hyde, on contempt citations that would, in effect, in my opinion,
have allowed the Judiciary Committee to take action which would
have resulted in an American citizen or citizens being locked up
without an action of this House of Representatives.

I flatly put my foot down on allowing that to happen, and it is
not happening, and there are many, many other examples along
the way, because we want to be absolutely fair, and above all else
we do not want to infringe on one single right of any American citi-
zen. So your points are well taken, and we are going to try to make
it come true.

Ms. Waters. Mr. Chairman, I think it is very important for us
to leave here with the clear understanding about what this commit-
tee understands about the ability of the Ranking Member and the
Chairman to make recommendations about that which is to be ex-
cluded from those boxes and those over 2,000 or so pages.

It seems to me that on the one hand you are saying that the Ju-
diciary Committee members are being excluded, when my under-


70
49

c. Proceedings in the Senate
The Senate voted only on Articles II, III, and XI, and President
Johnson was acquitted on each, 35 guilty—19 not guilty, one vote short
of the two-thirds required to convict.
a. Miscellaneous
All of the articles relating to the dismissal of Stanton alleged in-
dictable offenses. Article X did not allege an indictable offense, but this
article was never voted on by the Senate.

1, DISTRICT JUDGE MARK H. DELAHAY (1873)

a. Proceedings in the House

A resolution authorizing an inquiry by the Judiciary Committee
respecting District Judge Delahay was adopted by the House in 1872.**
In 1873 the committee proposed a resolution of impeachment tor “high
crimes and misdemeanors in office,” which the House ** adopted.
2. Subsequent Proceedings

Delahay resigned before articles of im ent were ared,
and the taatter’waa not pursued further by the House. The charge
against him had been described in the House as follows:

The most grevious charge, and that which is beyond all
question, was that his personal habits unfitted him for the
judicial ‘office, that he was intoxicated off the bench as well
as on the bench.**

8. SECRETARY OF WAR WILLIAM W. BELKNAP (1876)

a. Proceedings in the House

In 1876 the Committee on Expenditures in the War Department “
unanimously recommended impeachment of Secretary Belknap “for
high crimes and misdemeanors while in office,” and the House unani-
mously adopted the resolution.

b, Articles of Impeachment

Five articles of impeachment were drafted by the Judiciary Com-
mittee ** and adopted by the House, all relating to Belknap’s allegedly
corrupt appointment of a military post trader. The House agreed to
the articles as a group, without voting separately on each.'*

Article I charged Belknap with “high crimes and misdemeanors in
office” for unlawfully receiving sums of money, in consideration for the
appointment, made him as Secretary of War."*

Article II charged Belknap with » “high misdemeanor in office” for
“willfully, corruptly, and unlawfully” taking and receiving money in
return for the continued maintenance of the post trader.'*

Article [IT charged that Belknap was “criminally disregarding his
duty as Secretary of War, and basely prostituting his high office to

“Cone.
= Cone.

Guess Sure , 40th Cong. 24 Sere, 415 (1868).
Goad: 84 Bees. 1900 (18783.

ne. GLONS, 424
a.



25

II. The Historical Origins of Impeachment

The Constitution provides that the President “.. . shall be removed
from Office on Impeachment for, and Conviction of, Treason, Bribery,
or other high Crimes and Misdemeanors.” The framers could have
written simply “or other crimes”—as indeed they did in the provision
for extradition of criminal offenders from one state to another. They
did not do that. If they had meant simply to denote seriousness, they
could have done so directly. They did not do that either. They adopted
instead a unique phrase used for centuries in English parliamentary
impeachments, for the meaning of which one must look to history.

he origins and use of impeachment in England, the circumstances
under which impeachment became a part of the American constitu-
tional system, and the American experience with impeachment are
the best available sources for developing an understanding of the
function of impeachment and the circumstances in which it may be-
como appropriate in relation to the presidency.

A. Tre Enoxien Partumentary Practice

Alexander Hamilton wrote, in No. 65 of The Federalist, that Great
Rritain had served as “the model from which [impeachment] has
teon borrowed.” Accordingly, its history in England is useful to an
understanding of the purpose and scope of impeachment in the
United States.

Parliament developed the impeachment process aa a means to exer-
cisn some mensure of control over the power of the King. An impeach-
ment proceeding in England was a direct method of brit to
account the King’s ministers and favorites—men who might other-

ise have been beyond reach. Impeachment, at least in its carly his-
. has been called “the most. powerful weapon in the political arm-
oury. short of civil war.” ' It played a continuing role in the struggles
between King and Parliament that resulted in the formation of the
unwritten English constitution. In this respect impeachment was one
of the tools used by the English Parlinment to create more responsive
and responsible government and to redress imbalances when they
occurred.? ;

The long struggle hy Parliament to assert legal restraints over the
unbridled will of the King ultimately reached a climax with the execu-
tion of Charles I in 1649 and the establishment of the Commonwealth
under Oliver Cromwell. In the course of that struggle, Parliament
sought to exert restraints over the King by removing those of his
ministers who most effectively advanced the King’s absolutist pur-

 Placknett. “Presidential AddremTM reproderes to # Trensections, Reysl Historical
Secten

Beets ED ne Growth of Responsible Government in Bteart Faplend

* See ‘gene
(Cambridee 1968).
mw


l

Statement of the Honorable John Linder
House Committee on Rules
September 10, 1998

Mr. Chairman, Congress has a right and solemn responsibility to investigate the executive
branch and investigate criminal conduct. The Rules Committee is here to pass a resolution
to fulfill the oversight obligation from the Constitution we took an oath to defend.

Chief Justice Ear! Warren stated that “the power of Congress to conduct investigations is
inherent in the legislative process. That power is broad”. Supreme Court Justice John
Harlan observed in 1959 that “the scope of the power of inquiry. in short. is as penetrating
and far-reaching as the potential power to enact and appropriate under the Constitution.”
More recently. James Hamilton. Watergate Committee Counsel. argued in his book “The
Power To Probe.” that Congress's constitutional oversight function “is implicit in our
tripartite system of government, for without it Congress cannot properly meet its law-
making and informing responsibility.”

We have an oversight responsibility that is supported by the Constitution. public law. and
House rules — and this oversight responsibility is an indispensable part of the system of
checks and balances between the legislature and the executive

Serious charges have been made against this President and this Administration. Not one of
us wants to be here talking about perjury. subomning perjury. and obstruction of justice
But it is our Constitutional duty. By ceding our oversight responsibility to watch over the
government. the Committee on Rules — and every member of the House - would be
abdicating one of the most important obligations charged to us by our Founding Fathers.

We are carrying out our duties as the representative branch of our government to ensure
that the executive branch does not use the great powers at its disposal to undermine justice
The Supreme Court warned in Watkins vs. United States in 1957 that it clearly recognized
~the dangers to effective and honest conduct of the government if the legislature's power to
probe corruption in the executive branch [is) unduly hampered.”

I will end by quoting the late Senator Sam Ervin. Chairman of the Watergate Committee.
who stated that “the Constitution and the statutes give Congress a solemn duty to oversee
the activities of the executive branch.... All branches of government must fully appreciate
that the oversight function is a vital tool for keeping the nation free. It is a shield against
creeping executive imperialism.... Congress also has the duty and the right to publicize its
findings on corruption and maladministration. Indeed. fulfilling its responsibility to inform
the public about the state of government is one of Congress's most significant functions.”

Under our swom duty to protect the Constitution, it is our obligation to move forward,
without partisanship or prejudice. with a resolution that allows Congress to get the truth.


30
9

exercise of any delegated power”—“[rJesponsibility . . . to censure
and to punishment.” When censure is divided and responsibility un-
certain, “the restraints of public opinion . . . lose their efficacy” and
“the opportunity of discovering with facility and clearness the mis-
conduct of the {the public] trust, in order either to their
removal from office, or to their actual punishment in cases which admit
s lost."* A council, too, “would serve to destroy, or would greatly
diminish, the intended and necessary responsibility of the Chief
Magistrate himself.” *" It is, Hamilton concluded, “far more safe
[that] there should be a single object for the jealousy and watchful-
ness of the Froples ... all multiplication of the Executive is rather
dangerous friendly to liberty.” ”

James Iredell, mho P' yed a leading role in the North Carolina rat-
ifying convention and later became a justice of the Supreme Court,
said that under the proposed Constitution the President “is of a very
different nature from a monarch. He is to be . . . personally responsi-
ble for any abuse of the great trust reposed in him.” * In the same con-
vention, William R. Davie, who had been a delegate in Philadelphia,
explained that the “predominant principle” on which the Convention
had provided for a single executive was “the more obvious responsi-
bility of one person.” When there was but one man, said Davie, “the
public were never at a loss” to fix the blame.”

James Wilson, in the Pennsylvania convention, described the securit}
furnished by a single executive as one of its “very important ad.
vantages”:

The executive power is better to be trusted when it has no
screen. Sir, we have responsibility in the person of our
President; he cannot act improperly, and hide either his
negligence or inattention; he cannot roll upon any other per-
son weight of his criminality; no appointment can take
place without his nomination ; and he is responsible for every
nomination he makes... . Add to all this, that officer is
placed high, and is possessed of power far from being con-

.  temptible, yet not a single privilege is annexed to his char-
acter; far fom being above the laws, he is amenable to them
in his private character as a citizen, and in his public char-
acter by impeachment."

As Wilson’s statement suggests, the impeachability of the Presi-
dent was considered to be an important element of his responsibility.

M Ths Fotereliet
gtted as Pederattes
detects

4 Vf 450-81 (Modern Library of.) (A. Hamilton) (heretnafter
of jon’

tiplication of the Executive,” Hamilton wrote, “adda to the

have led to any national mincarrtage of misfortune
om ‘actors who ma:
ide of agency, thou

yer it sacceabie'to pro-
fanagenent, fet it me jain
he evll which iney have been (ocurred 10. truly

tr there aboclé be “cotlaston petween the parties concerned. how easy ft Js to clothe the

ith oo mach ambiguity, ax to render it uncertain what was the precise con-
7 Ta. at

to a magistrate, who f reeponsible for what he dove, are
ng better than a clog pon. bi ‘are often the in
ind accomplices of bie bad, and are aimoet alm
Na, 70 at 482.
BAT rior The Bevetes tn tne Meperat State Comeentions om the Aéoption of the
Pegarel Cenatifetion 14°(reprint of $4 ed heretnatter cited 62 Eiict)
2 Blot 440 (empbacte in ortetnal).

a
EY
I
g
ils
?
ty

of 4
a cloak to bie fauite,



99

The CHAIRMAN. And Ms. Sheila Jackson—Lee, did you have any-
one else you wanted to bring to the table with you, or are you here
alone:

Ms. JACKSON-LEE. No, Mr. Chairman.

‘The CHAIRMAN. Again, Ms. Lee, we want to welcome you to the
committee. Your entire statement will appear in the record, as
other Members have testified, without objection. And you may pro-
ceed.

STATEMENT OF THE HON. SHEILA JACKSON-LEE, A
REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS

Ms. JACKSON-LEE. Mr. Chairman, I thank you very much, and
first of all I thank you for your patience, which will probably be
tested in the days and weeks to come. I think the complimentary
words that were said were quite appropriate, and let me say how
proud I am as a member of the Judiciary Committee to be able to
serve with Chairman Hyde and certain Ranking Member Con-
yers, who I guess claims a special privite
that very august body in 1974.

You made an interesting point earlier in our discussion in com-
menting on Chairman Rodino by mentioning the fact that he did
an outstanding job, and if you go through the transcripts or the
media comments, he was viewed as a very ordinary person.

The CHAIRMAN. In the beginning.

Ms. JACKSON LEE. In the beginning, and wound up of course as
a very extraordinarily person.

Today I had a call from a local media outlet and they said, “A
colleague of yours has seen the report.” I was able very confidently
to say, "I know they have not because the House has received it
in a very secure and confidential manner, and in fact we will be
discussing its distribution today.” I felt good about that because
that emphasized the direction in which we are going.

And I think it is important, Mr. Chairman, to acknowledge the
sobering and somber task we are about to undertake. Might I refer
you to just a few words from Alexander Bickel, who commented in
1973, referring to Watergate: “In the presidency is embodied the
continuity and indestructibility of the state. It is not possible for
the government to function without a President, and the Constitu-
tion contemplates and provides for uninterrupted continuity in of-

ice.”

You are right. We have not reached any question about proce-
dures. We are here talking about distribution. But I would like to
refer us to the Watergate proceedings because we have alluded to
it as being one that we can all be proud of.

Certainly allegations dealing with breaking and entering and
paying hush money are a concern to everyone, but I think those on
the committee handled themselves with great dignity and respect.
We might recall that the minority, which was the Republican Pa
at that time, even suggested in their debate, and Peter Rodino al-
lowed them to debate it, that frankly we should not proceed or that
we should ultimately make a decision if we view that a crime was
committed but also that it had an impact on the governmental sys-
tem.

lege of having served on


92

Mr. Gephardt near the end of the meeting was of the opinion that
the majority of his party was in favor of the Deutsch approach,
which was to release all of the information. You all sat there, you
heard him say that. And that is why a little while after that he
said, “Well, there is no agreement, we'll have to go talk to our
Members.” And that is why we have proceeded as we have.

I can assure you that from all of the Democratic Members that
have contacted this office and all of the Republicans, a majority of
the Republicans who would like to make all of this information
available immediately, we just cannot do that because of the very
reasons that you have stated. And by the same token, Mr. Ging-
rich, the Speaker is of the opinion that you two, being the type of
individuals you are, will influence the Members of your party and
they will take your advice as far as information that is going to be
released or not released. And that is why we have you gentleman
where you are today and we hold you in that great respect.

ir. Dreier.

Mr. DREIER. Thank you very much, Mr. Chairman.

If I could just make a brief comment on this: in your opening
statement, Henry, you talked about a bias for openness, and we
really should pursue that. As every member of this committee
praised you as Chairman, we know how influential you are, and we
are convinced that you would clearly be able to ensure—go ahead.

Mr. HyDE. This is known as the perfumed ice pick.

Mr. DreteER. Henry, you used to always teach me to smile as you
stick the needle in, as you used to put it. Right. Yes, you taught
me this.

So I am convinced, as one of your protegees, Henry, that you ob-
viously will be able to prevail. on those Members. And then of
course, as was said by the Chairman in his opening remarks, we
are in uncharted waters here, and it seems to me that your bias
for openness is obviously the route for us to take.

The CHAIRMAN. Mr. Frost.

Mr. Frost. Mr. Solomon, I am very concerned because at the be-
ginning of this proceeding today everyone talked about bipartisan-
ship. Bipartisanship is essential if we are to have a fair proceeding
and a proceeding that is accepted by the American public.

The Speaker at noon today on CNN announced that an agree-
ment had been made and that the two gentlemen at this table
would be reviewing the documents. The Minority Leader, Mr. Gep-
hardt, left town with that understanding, that that was the agree-
ment. The majority on this committee has taken it upon itself to
supersede the agreement between Mr. Gephardt and the Speaker.
That is a terrible way to start this proceeding. We must act in a
bipartisan manner.

Henry Hyde is an extraordinarily honorable man and it was very
clear that Chairman Hyde prefers, though is not insisting, that the
agreement—that we execute the agreement as made by the two
leaders and that he and Mr. Conyers have the opportunity to re-
view this material. For some reason the majority on this committee
does not want to see that happen.

And I would plead with my colleagues on this committee on the
other side that this must be a bipartisan proceeding. We had an
agreement between the leaders of the two parties, between Minor-


12

The CHAIRMAN. The gentleman from Miami, Florida, Mr. Diaz—
Balart.

STATEMENT OF HON. LINCOLN DIAZ-BALART, A REPRESENTA-
TIVE IN CONGRESS FROM THE STATE OF FLORIDA

Mr. D1Az—BaALarT. Thank you, Mr. Chairman.

The founders of this extraordinary constitutional republic created
a system of government which is as resilient as it is protective of
the rights of the American people.

I am proud of the manner in which this Congress has conducted
itself in the time period since the receipt of this report pursuant
to a statute from the independent counsel. And I am proud, Mr.
Chairman, of the way in which this resolution has been framed in
consultation with the Judiciary Committee, the leadership of this
House, and both parties representing the American people in this
House, this resolution and the one next week that we will vote on
and submit to the full House for its consideration that are meant
to rantee fairness for all involved in this process, to protect the
right of the American people to begin to learn the facts in this mat-
ter, and to protect the right of due and deliberative process for the
President and all other citizens who may be affected by these ver
solemn proceedings that we are, in effect, today authorizing. Than!

you.
The CHAIRMAN.Thank you. And now let me yield to the gen-
tleman from Grand Junction, Colorado.

STATEMENT OF HON. SCOTT MCINNIS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF COLORADO

Mr. McINNIS. I have a feeling of excitement today, and that is
because we are witnessing the system that is working. This system
by its process, by its own design, allows for the kind of problem or
challenge that we face. It allows for us to have a hearing such as
this, that is open to the public so everyone can watch, and it allows
that we can have a distinguished committee which deals with this
from both parties. It allows us, in my opinion, to have one of the
most distinguished gentleman not only in the Congress, but in the
history of the Congress, Mr. Hyde, as the presiding officer.

I can remember when I first came here, Mr. Hyde, I stood in awe
when you walked by. I couldn’t believe I was a Congressman like
you were a Congressman.

And I think also the important thing to remember that is re-
freshing is that we have an opportunity for the Ranking Member,
who is also a very distinguished gentleman, to guide us through
this. But while everybody talks, and respectfully so and properly
so, about the seriousness of the matter, we should all be refreshed
that this system is working, that our country is not on the verge
of collapse.

While we are talking today, you can turn on the TV and see what
is happening in Russia. The economy is on the verge of collapse.

en we reach a crisis in this country, we approach it in a fair,
bipartisan manner, and for that this Constitution deserves a com-
pliment. Thank you, Mr. Chairman.


98

Congressional Use of Grand Jury Transcripts
Historical Precedents

in i851. 4 grand jury in Baldwin County in the Mississippi termtory torsarded to the
House a presentment specifying charges against Washington District Superior Court
Judge Harry Toulmin for possible impeachment action. 3 Hind’s Precedents uf the

House of Representatives 3 2488 at 985, 986 (1907).

In 1944, the House Committee on the Judiciary received grand jury material pertinent to
its investigation into allegations of impeachable offenses committed by Judges Albert W
Johnson and Albert L. Watson. Conduct of Albert W Johnson and Albert L. Watson,
United States District Judges. Middle District of Pennsylvania: Hearings before the
Subcommittee of the Committee on the Judiciary to Investigate the Official Conduct of
United States District Court Judges Albert W Johnson and Albert L. Watson, 79* Cong.
1" Sess. (1945).

In 1974, the House Committee on the Judiciary received grand jury material pertinent to
its investigation into allegations of impeachable offenses committed by President Richard
Nixon. In re Report and Recommendation of June 5, 1972 Grand Jury Concerning
Transmission of Evidence to the House of Representatives, 370 F. Supp. 1219(D.D.C.).
mandamus denied sub nom. Haldeman v. Sirica, 50\ F.2d 714 (D.C. Cir. 1974).

In 1987 the House Judiciary Committee received grand jury material regarding
allegations of impeachable offenses committed by Judge Hastings. In re request for
Access to Grand Jury Materials Grand Jury No. 81-1 (Miami), 833 F. 24 1438 (1987).

The House Judiciary Committee also received grand jury material during its
impeachment investigation of Judge Walter L. Nixon, J. Impeachment of Walter L.
Nixon, Ir., H. Rept. 101-36, 101" Cong., 1* Sess. (1989); Judge Walter L. Nixon, Jr
Impeachment Inquiry: Hearings before the Subcommittee on Civil and Constitutional
Rights of the Committee on the Judiciary, 100% Cong... 2TM Sess. (1988).


103

to the oath of office that they have taken, and that in the ultimate
end of this process we will all have done what we were sworn to
do and we will have upheld the Constitution of the United States
of America.

I think that is our ultimate responsibility, Mr. Chairman, not to
be driven by the politics of the day, by the platitudes of openness,
by the right of the American people to see. We are in a proceeding
that is in every way impinging and infringing upon the institution
of government.

fo with that, Mr. Chairman, I thank you for allowing me this
time.

‘The CHAIRMAN, Well, Ms. Jackson—Lee, I have to concur with al-
most everything you have said because you are right.

Let me just confirm again that nothing in this resolution or a fu-
ture resolution which we may take up on midweek of next week
will prevent the Judiciary Committee from hearing from the Presi-
dent’s attorneys or attorney—Mr. Kendall. And I would hope that
when you adopt your committee rules in your committee, the same
as any committee would under regular rules of the House, that you
would certainly take that into consideration. And I am quite sure
that Congressman Hyde would agree with what you have just stat-

ed.

You and Ms. Waters and Ms. Lofgren and others are distin-
guished members of one of the very key committees of this Con-
gress, and you were chosen for reasons by your party. It would
seem to me that you have been arguing that you should have the
game access to the material as any other member of the Judiciary
Committee.

Now we get to the point of whether or not this information will
be released to the public. We are in a new era of openness in this
Congress, as demanded by the American people, and because of
that we are going to make available all of the material that does
not infringe on three categories, those three categories being,
again, innocent people that might be involved, the—again, those
areas in 6(e), in the proceedings by the grand jury, and in criminal
proceedings that may be ongoing. And we want to leave that up to

our good judgment, you, the members of that committee, and
opefully that is the way it will work out.

d I guess I just have to ask you, you are one of the most due
diligent members of this Congress because you appear before this
committee many times, quite often on varied subjects. You do your
homework, and you certainly are knowledgeable, and in my opinion
you are qualified and deserve to have this same information avail-
able to you that any other member of that Judiciary Committee
does, and I am trying to see to that.

Ms. JACKSON-LEE. If I might on that, Mr. Chairman?

The CHAIRMAN. You may respond.

Ms. JACKSON-LEE. I think that what we have exhibited here ob-
viously is a tone that we would like this whole entire time of pro-
ceedings to proceed in. And I appreciate your comments, and cer-
tainly as a member of the Judiciary Committee would want to have
the fullest opportunity.

I do respect my Chairman and Ranking Member for the process
which they designed on the 17 boxes and 2,000 pages. I frankly do


119
3

Sec. +. Notwithstanding clause 2(e) of rule XJ. ac-
cess to executive-session material of the committee relat-
ing to the review shall be restricted to members of the
committee, and to such employees of the committee as
may be designated by the chairman after consultation with
the ranking minority member.

Sec. 5. Notwithstanding clause 2(g) of rule XI, each
meeting, hearing, or deposition of the committee relating
to the review shall be conducted in executive session unless
otherwise determined by an affirmative vote of the com-
mittee, a majority being present. Such an executive session
may be attended only by members of the committee, and
by such employees of the committee as may be designated
by the chairman after consultation with the ranking mi-

nority member.


66
45

to excite public fears and indignation and “to produce that insub-
ordination to law to which the conduct of the judge did, at the
same time, manifestly tend”;

(4) in “itepented ‘and vexatious interruptions of defendant’s
counsel, which induced them to withdraw from the case”; ant

(5) in manifesting “an indecent solicitude” for the defendant’s
conviction, “unbecoming even a public prosecutor, but highly dis-

ce ful to the character of a judge, as it was subversive of jus-

tice,”

Article V charged that Chase had issued a bench warrant rather
than a summons in the libel case, contrary to law."

Article VI charged thet Chase refused a continuance of the libel
trial to the next term of court, contrary to law and “with intent to
oppress and procure the conviction” of the defendant.**

Article VIT charged that Chase, “disre; ing the duties of his of-
fice, did descend from the dignit, oe stoop to the level of
an informer” by refusing to disc] & grand jury and by charging

it to investigate a printer for sedition, with intention to procure the
prosecution of the printer, “thereby degrading his high judicial func-
tions and tending to impair the public confidence in, and: respect for,

the tribunals of fui 80 essential to the general welfare.” **
Article VITT charge dat that Chase, pond hye ofc duties and dig-
nity ¢ of his judicial ,” did “pervert his official right and duty

dress” 9 grand jury by. delivering “an intemperate and inflam-
erate litical harangue with intent to excite the fears and resent-
ment” of the grand iz, and the people of Maryland against their
state government and constitution, “a conduct highly censurable in
any, but peculiarly indecent and unbecoming” in a Justice of the Su-
preme Gourt, This article also fharged that Obese of Maryland
excite the odium” of the ane le of path janc

i United States oe Piebrerng

ered the government of
hich ‘even if the judicial authority were pach Yo theirexp expres,

were deliecced by hint highly indscett, extra were at that time,
fecent, extra-judicial,

and as delivered i hij and tending
to prostitute the Mi high ju ae Rarecter wi with which he was invested, to
the low purpose of an electioneering partisan.” **

c. Proceedings in the Senate

Justice Chase was jitted on each article by votes from
0-24 not guilty on “Article ¥ to 10-15 guilty on Article ve

4. DISTRICT JUDGE JAMES H. PECK (1830-1831)

a. Proceedinigs in the House

‘The House adopted a resolution in 1830 authorizing an inquiry re-
specting District Jt Peck” The Judiciary reported
8 resolution that Peck impeached of high misdemeanors in office

to the House, which adopted it py a vote of 123 to 49.°
14. 129-40.
ata 780.
ate
‘1a T9081.
SEE og 128),
SBE Joum, 21et Cong, tet Hees, 188 (1880).



12
51

and used the car, its provisions, and a porter without making com-
pensation to the railroad, “was and is guilty of an abuse of judicial
power and of a high misdemeanor in office.”

Articles VI VII charged that for periods of six years and nine
years, Judge S: e had not been a bona fide resident of his judicial
district, in violation of a statute requiring every federal judge to reside
in his judicial district. The statute provided that “for offending against
this provision [the judge] shall be deemed guilty of a high misde-
meanor.” The articles charged that Swayne “willfully and knowingly
violated” this law and “was and is guilty of a high misdemeanor in

office.

Articles VIII, IX, X, XI and XII charged that Swayne improperly
imprisoned two attorneys and a litigant for contempt oF court. Articles
VIII and X alleged that the imprisonment of the attorneys was done
“maliciously and unlawfully” and Articles LX and XI char that
these imprisonments were done “knowingly and unlawfully.” Article
XI charged that the private person was imprisoned “unlawfully and
Jmowingly.” Each of these five articles concluded by charging that b:
so acting, Swayne had “misbehaved himself in his office as judge and
hive and ie guilty of an abuse of judicial power and a high misdemeanor
in office.

c. Proceedings in the Senate
A majority of the Senate voted acquittal on all articles.“

10. CIRCUIT JUDGE ROBERT W. ARCHRALD (1912-1918)

a. Proceedings in the House

The House authorized an investigation by the Judiciary Commit-
tee on Circuit Judge Archbald of the Commerce Court in 1912.** The
Committee unanimously reported a resolution that Archbald be im-
penched for “misbehavior and for high crimes and misdemeanors,”
and the House adopted the resolution, 223 to 1.**

b. Articles of Impeachment

Thirteen Articles of impeachment were presented and adopted
simultaneously with the resolution for impeachment

Article I charged that Archbald “willfully, unlawfully, and cor-
ruptly took advantage of his official position . . . to induce and influ-
ence the officials” of « company with litigation pending before his
court to enter into a contract with Archbald and his business partner
to sell them assets of a subsidiary company. The contract was allegedly
profitable to Archbald.* ;

Article II also charged Archbeld with “willfully, unlawfully, and
corruptly” using his position as judge to influence a litigant then
before the Interstate Commerce Commission (who on appeal would
be before the Commerce Court) to settle the case and purchase stock.**

Article [11 charged Archbald with using his official position to ob-
tain a leasing agreement from a party with suits pending in the Com-
merce Court.”

[é. 3467-7!



17

This referral belongs to the American people. They have a right
to know its contents. They have patiently waited as rumors and
speculation have substituted for fact and information. It is time we
move this process ahead, and the public release of the referral will
further this goal.

Mr. Chairman, we are not yet beginning a full impeachment in-
quiry, but I want to take a moment to address the issue of im-
peachment. Constitutional scholars disagree as to what an im-
peachable offense is, but there are some principles we should keep
in mind. Peter Rodino, when he was Chairman of the Judiciary
Committee during the Nixon inquiry, and Mr. Conyers was privi-
leged to serve on that committee, another great argument against
term limits, I might say parenthetically, had a review of the con-
stitutional impeachment authority, and had a very good staff of
lawyers do a fine review of it, and I have attached that as an ap-
pendix to my statement, and so I will not read it now.

‘The CHAIRMAN. Without objection that will appear in the record
as well.

[The information follows:]


100

So I think what I am trying to emphasize, Mr. Chairman, is this
whole question that there will always be disagreement. People
come from different perspectives. This is a political body, I hope not
driven by politics because we have a serious job to do.

I say that not in a condescending manner or in trying to in any
way suggest that the colleagues of mine who speak passionately do
not have the right to do so. But this committee is a gateway, frank-
ly, and you can offer a rule that respects the fact that we may not
be able in this time to be driven by politics.

Someone earlier said, as you were citing the web page and the
dot coms, that we live in a highly technological society. I would
only say to you again with respect, that the Constitution was not
written on the Internet, and that although we are in a different era
we may bode well by the fact that our Founding Fathers were very
careful in respecting the institution of government, the three
branches of government, the need for a stable government, and cer-
tainly not in a kingly or queenly way the very high office of the
President of the United States.

With that then, Mr. Chairman, I think it is imperative that the
President have the opportunity to formulate a response. I think it
is imperative that the President has a right, now it is being sug-
gested of the 2-day or 48-hour period, and I believe the American
people would fully understand that we were not being political but
we were bein, Tight.

Let me add, if I might, that as I proceed, and very briefly I will
cite the Watergate proceedings recognizing that we are not at the
stage of making rules, but I frankly believe that we are wrongly
directed in releasing the 445 pages. The Independent Counsel’s re-
port, while I am sure it is presented in a high or with a high de-

ee of respect for the responsibility that the Independent Counsel

as, is still only one side of the story. Albeit that we have heard
so many comments by the media, the American public should have
the right to hear both sides of the story. With that in mind, if we
are to go the route of releasing the documents, and I have indicated
my personal perspective on it and I will share why, I believe that
the 48 hours, the 2 days, is imperative.

The Watergate impeachment inquiry followed the same prece-
dent. The Judiciary Committee received evidence in closed—door
hearings for 7 weeks with the President’s lawyer in the same room;
again, under the majority of the Democrats and with the minority
the Republicans, working, I would like to say, in a nonpartisan
manner. This evidence included the material reported by the Wa-
tergate grand jury.

And we have those concerns, those of us who have either prac-
ticed before grand juries or dealt with these issues. The materials
received by the committee, Mr. Chairman, were not released to the
public until the conclusion, conclusion of the 7-week evidentiary
presentation. By then the White House had full knowledge of the
material being considered by the committee.

Also in the Watergate proceeding subpoenas were issued jointly
by the Chairman and Ranking Member, and if either declined to
act, by the other acting alone; except that if either declined to act,
he or she—well, in this instance two he’s—would refer the matter
to the full committee for a vote. More importantly, the President’s


22

I. Introduction

The Constitution deals with the subject of impeachment and con-
fiction at six places. The scope of the power is set out in Article II,
tion 4:

The President, Vice President and all civil Officers of the
United States, shall be removed from Office on Impeachment
for, and Conviction of, Treason, Bribery, or other high
Crimes and Misdemeanors.

Other provisions deal with procedures and consequences. Article I,
Section 2 states:

The House of Representatives . .. shall have the sole Power
of Impeachment.

Similarly, Article I, Section 3, describes the Senate’s role:

The Senate shall have the sole Power to try all Impeach-
ments, When sitting for that Purpose, they shall be on Oath
or Affirmation. When the President of the United States is
tried, the Chief Justice shall preside: And no Person shall
be convicted without the Concurrence of two thirds of the
Members present.

_ The same section limits the consequences of judgment in cases of
impeachment:

Judgment in Cases of Impeachment shall not extend fur-
ther than to removal from Office, and disqualification to hold
and enjoy any Office of honor, Trust or Profit under the
United States: but the Party convicted shall nevertheless be
liable and subject to Indictment, Trial, Judgment and Pun-
ishment, according to Law.

Of lesser significance, although mentioning the subject, are: Arti-
cle II, Section 2:

The President .. . shall have Power to grant Reprieves and
Pardons for Offences against the United States, except in
Cases of Impeachment.

Article IIT, Section 2:

The Trial of all Crimes, except in Cases of Impeachment,
shall be by Jury....

Before November 15, 1973 8 number of Resolutions calling for the
impeachment of President Richard M. Nixon had been introduced in
the House of Representatives, and had been referred by the Speaker
of the House, Hon. Carl Albert, to the Committee on the Judiciary
for consideration, investigation and report. On November 15, an-
ticipating the magnitude of the Committee’s task, the House voted

a)


51

30

equal basis with large ones and “enable a minority of the people to
prevent ye removal of an officer who had rendered himself justly crimi-
nal in the eyes of a majority ; open the door for intrigues against him
in states where his administration, though just, was unpopular; and
tempt him to pay court to particular states whose partisans he feared or
wished to engage in his behalf. (I 86) Dickenson’s motion was rejected,
with only Delaware voting for it. (1:87).

The Committee of the Whole then voted, seven states to two, that
the executive should be made ineligible after seven years (I: 88).

On motion of Hugh Williamson of North Carolina, the Committee
agreed, apparently without debate, to add the clause “and to be re-
movable on impeachment & conviction of mal-practice or neglect of
duty.” (1:88)

SINOLE EXECUTIVE

The Committee then returned to the question whether there should
be a single executive. Edmund Randolph argued for a plural execu-
tive, primarily because “the permanent temper of the People was ad-
verse to the very semblance of Monarchy.” (1:88) (He had said
on June 1, when the question was first discussed, that he rded a
unity in the executive as “the foetus of monarchy.” (1:66)). On June
4, the Committee resumed debate of the issue, with James Wilson
making the major argument in favor of a single executive. The motion
for a single executive was agreed to, seven states to three. (1:97).

George Mason of Virginia was absent when the vote was taken; he
returned during debate on giving the executive veto power over legis-
lative acts. In arguing against the executive's appointment and veto

wer, he commented that the Convention was constituting “a more

langerous monarchy” than the British government, “an elective
one.” (I:101). He never could agree, he said “to give up all the rights
of the people to a single Magistrate. If more than one had been
on. greater powers might have been entrusted to the Executive”; and
he hoped that the attempt to give such ROP would have weight later
asan argument for s plural executive. (1 :102). . .

On June 13, the Committee of the Whole reported its actions on
Randolph’s propositions to the Convention. (I: 228-32) On June 15,
William Patterson of New Jersey proposed his plan as an alternative.
Patterson’s resolution called for a federal executive elected by Con-
gress, consisting of an unstated number of persons, to serve for an
undesignated term and to be ineligible for a second term. removable
by Cor on application by a majority of the executives of the
states. The major purpose of the Patterson plan was to preserve the
equality of state representation provided in the Articles of Confedera-
tion, and it was on this issue that it was rejected. (II: 242-45) The Ran-
dolph resolutions called for representation on the basis of population
in both houses of the legislature. (I: 229-30) The Patterson resolution
was debated in the Committee of the Whole on June 16, 18, and 19.
The Committee agreed seven states to three, to Te-report Randolph’s
resolutions as amended, thereby adhering to them in preference to
Patterson's. (1 :322) :


96

something that decency requires that we do. We trust these two
gentleman here and their staffs to excise material that would cause
embarrassment or shame on people that are innocent in this and
do not need to have their lives be dragged out on the Internet.
They want 2 weeks to do that, Mr. McInnis. Frankly, if you were
in there, I would stand as squarely as I am right now for the right
for your privacy to be protected.

Mr. McInnis. And I am reclaiming my time.

Ms. SLAUGHTER. Surely I would ask you to understand that what
Mr. Starr has said is not unreasonable.

Mr. McInnis. Reclaiming my time, the members of this commit-
tee have a very special charge. That special charge does not rest
with the Chairman and the Ranking Member, although certainly
they lead the rest of the committee. That entire committee is
charged with this special responsibility, and everybody on that
committee ought to have complete access to those documents to
make the determination that you have just spoken of.

Thank you, Mr. Chairman.

The CHAIRMAN. Mr. Hastings.

Mrs. Myrick.

Mr. DREIER. Mr. Chairman, if I could just comment very briefly
on this: the resolution does state that this is to be done in execu-
tive session, and I know that there is this concern about informa-
tion getting out that could damage Members. But the fact that this
is done in executive session, again with the very strong leadership
of these two gentlemen, I am convinced that they can prevail on
these Members.

And I know we have all been getting a great deal of pressure
from other members of the Judiciary Committee who do want to be

art of this process. We are simply reflecting those views of those

luly elected Members,

e CHAIRMAN. Gentlemen, we—again, I just want to repeat in
fact that you are going to have an awesome responsibility on your
shoulders in reviewing the information that we are not—that we
are not making readily available to the American public, namely
the 2,600 pages in the appendices and the other supporting mate-
rial

And again, we would charge you with making sure that you are
going to make available all of the information that does not deal
with individual human beings, that does not deal with the 6(e) tes-
timonies that you were talking about, John, and does not infringe
on continuing criminal investigations. We would hope that you
would, as the resolution says, make that information available to
other members of your committee and then to the entire Congress.

We want to thank you very much for your appearing before us.
We have the greatest trust and respect of both of you, and we know
that you will do an outstanding job for a very di ficult assignment.
And we thank you for coming. Thank you very much.

The next order of business is to consider testimony by Ms. Sheila
Jackson-Lee of Texas. Is Ms. Lee—is here? And the Honorable
Maxine Waters from California. Are you here together?

Separately, all right.

Mr. Goss. Mr. Chairman, while Ms. Lee is coming to the table,
may I ask that we include in the record the congressional use of


34
13

It is a technical term. It is used in a very old statute of
that country whose language is our Innguage, and whose laws
form the substratum of our laws. It is scarcely conceivable
that the term was not employed by the framers of our consti-
tution in the sense which had been affixed to it by those
from whom we borrowed it.”

3. GROUNDS FOR IMPEACHMENT

Mason's suggestion to add “maladministration,” Madison's objection
to it as “vague,” and Mason’s substitution of “high crimes and misde-
meanors agst the State” are the only comments in the Philadelphia
convention specifically directed to the constitutional language describ-
ing the grounds for impeachment of the President. Mason’s objection
to limiting the grounds to treason and bribery was that treason would
“not reach many great and dangerous offences” including “{a]ttempts
to subvert the Constitution.” * His willingness to substitute “high
Crimes and Misdemeanors,” especially given his apparent familiarity
qath the English use of the term as evidenced by Ms Teference to the

‘arren Hastings impeachment, suggests that he believed “high Crimes
and Misdemeanors” Fould cover the offenses about which he was con-
cerned.

Contemperaneous comments on the scope of impeachment are per-
suasive as to the intention of the framers. In Federalist No. 65, Alexan-
der Hamilton described the subject of impeachment as

those offences 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. asthey relate chiefly
to injuries done immediately to the society itself."* .

Comments in the state ratifying conventions also suggest that those
who adopted the Constitution viewed impeachment as a remedy for
usurpation or abuse of power or serious breach of trust. Thus, Charles
Cotesworth Pinckney of South Carolina stated that the impeachment
power of the House reaches “those who behave amiss, or betray their
public trust.”* Edmund Randolph said in the Virginia convention
that the President may be impenched if he “misbehaves.” * He Inter
cited the example of the President's receipt of presents or emoluments
from a foreign power in violation of the constitutional prohibition of
Article I, section 9." In the same convention George Mason argued
that the President might use his pardoning power to “pardon crimes
which were advised by himself” or, before indictment or conviction,
“to atop inquiry and prevent detection.” James Madison responded :

({IJf the President be connected, in any suspicious manner,
with any person, and there be grounds to believe he will

S Dalted Mister v. Barr, 25 Fed. Cas. 1, 189 (So. 14, 698) (CCD, Va 1800).

© The Pederelet No, 65 at 423-24 (Modern Library e.) (A. Ramilton) (empbants 19
oni

Se itet 281.

© Billet 201,

3 ler 486.


18

834 Con,
ed Songrees | HOUSE COMMITTEE PRINT

CONSTITUTIONAL GROUNDS FOR
PRESIDENTIAL IMPEACHMENT

REPORT BY THE STAFF OF THE
IMPEACHMENT INQUIRY

COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
NINETY-THIRD CONGRESS
SECOND SESSION

W

FEBRUARY 1974

U.S, GOVERNMENT PRINTING OFFICE
Ed WASHINGTON : 1974



62

APPENDIX B

Ascerican Inrreac cent Cases
1, SENATOR WILLIAM BLOUNT (1787-1799)

@. Proceedings in the House

‘The House adopted a resolution in 1797 authorizing a select com-
mittee to examine a presidential message and accompanying papers
regarding the conduct of Senator Blount.’ The committee reported
a resolution that Blount “be ii ed for high crimes and misde-
meanors,” which was adopted without debate or division.”

5, Articles of Impeachment

Five articles of impeachment were agreed to by the House without
amendment (except emere verbal one”).* 7

Article I charged that Blount, knowing that the United States was
at Resce with Spain and that Spain and Great Britain were at war with
each other, “but disregarding the duties and obligations of his high
station, and designing and intending to disturb peace and tran-
quillity of the United States, and to violate and infringe the neutral-
ity thereof,” conspired and contrived to premote « hostile military
expedition against the Spanish possessions of Louisiana and Florids
for the purpose of wresting them from Spsin and conquering them
for Great Britain. This was alleged to be “contrary to the duty of his
trust and station as a Senator of the United States, in violation of
the obligations of neutrality, and against the laws of the United States,
andthe and interests thereof.”

“Article TT cha that Blount knowing of @ treaty between the
United States and Spain and “disregai his high station, and
the stipulations of the .. . treaty, and the obligations of neutrality,”
conspired to engage the Creek and Cherokee nations in the expedition

inst Louisiana and Florida. This was alleged to be contra
Blount’s duty of trust and station as Senator, in violation of the
treaty and of the obligations of neutrality, and against the laws,
peace, and interest of the United States.

Article IH slleged that Bioont, knowing that the President wasem-
powered by act of Congress to appoint temporary agents to reside
among the Indians in order to secure the continuance of their friend-
ship and that the President had appointed a principal temporary
agent, “in the prosecution of his criminal designs and of his conspira-
cies” and contrived to alierate the tribes from the Presi-
dent’s ageRt and to diminish and impair his influence with the tribes,
“contrary to the duty of his trust and station as a Senstor and the
peace and interests of the United States.”

ate o” Cone. 440-41 (1797).
1.

any


115

that man. They then had to retract everything because they didn’t
have the evidence.

The 445 pages are drawn from these 2,000 source documents,
and to be drawn from those it is my conclusion they had to have
substantial and credible evidence. So I completely support your
philosophy on the first 445 pages because they are drawn from sub-
stantial and credible evidence, but before you disclose the 2,000
pages of documents, I think it is appropriate to say, this is just
somebody’s name that they threw in there. It came out in the depo-
sition tape. There is no credible evidence. There is no substantial
evidence tying this individual to this, and why is that individual’s
name coming up?

We speak of the rights of this great country, it almost sounds
like they preempt the right of an individual. I think it is exactly
the opposite. I don’t want another Richard Jewell on our hands as
a result of releasing those 2,000 documents where the independent
counsel did not find substantial and credible evidence to move it
from the source documents to the 445-page report.

Mr. DeutTscu. I think we need to remind ourselves, because it
appears that at this point that the Chairman’s resolution will be
adopted and the procedure that he is proposing will be followed to-
morrow morning, and for that the 445-page document will be avail-
able. I agree with you completely, it is interpretation of those
source documents, and I would remind people that it is also an in-
terpretation of someone who has clearly shown for the last 5 years
that he has almost a Captain Ahab approach of getting Bill Clin-
ton. And maybe that is the role that advocates should be playing,
but I think we need to remind ourselves that source documents
lead to different conclusions. And I think your comments, if not
really supporting my position, are not opposed to my position be-
cause I think particularly in this case, if we are only giving out the
report, in fact it is almost by definition almost a requirement to in-
clude the source documents so people can look at those source docu-
ments and might come up with totally differing conclusions than
Mr. Starr came up with from those things.

T also want to respond to Richard Jewell. That is an unfortunate,
tragic situation. But I will tell you we are weighing values, and we
have talked about the concern of hurting innocents.

I just go back very quickly to what we are doing here this
evening and over the next several days and several weeks. We are
talking about the President of the United States, of setting aside
an election for the first time in this Nation’s history, the oldest de-
mocracy in the history of the world. We are not talking about un-
substantial things.

I will tell you that there is a very, very, very paradigm value of
our society and our government, and I think by our actions and
your resolution, I think you were jeopardizing it to some extent.

The CHAIRMAN. Peter, thank you.

If there are no further questions of the witness, we thank you for
coming, and as always, you have made yourself very clear.

Gentlemen, we will stand in a 30-second recess, and then we will
take up the resolution.

[Pause.]

The CHAIRMAN. The committee will come back to order.


117

House Calendar No. 245
macs H, RES, 525

[Report No. 105-703]

Providing for a deliberative review by the Committee on the Judiciary of
communication from an independent counsel, and for the release there-
of, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

SEPTEMBER 10, 1998

‘Mr. SOLOMON submitted the following resolution; which was referred to the
Committee on Rules

SEPTEMBER 10, 1998
Referred to the House Calendar and ordered to be printed

RESOLUTION

Providing for a deliberative review by the Committee on
the Judiciary of a communication from an independent
counsel, and for the release thereof, and for other pur-
poses.

1 Resolved, That the Committee on the Judiciary shall

review the communication received on September 9, 1998,

from an independent counsel pursuant to section 595(c)

kw Nn

of title 28, United States Code, transmitting a determina-


5

The CHAIRMAN. Having said that, I would yield to my good
friend, the ranking member Mr. Moakley, for any statement he
might have.

STATEMENT OF HON. JOHN JOSEPH MOAKLEY, A REPRESENT-
ATIVE IN CONGRESS FROM THE STATE OF MASSACHUSETTS

Mr. MoAKLEyY. Thank you, Mr. Chairman. Today it is this com-
mittee’s responsibility to decide how to release the information con-
tained in the independent counsel’s report to the public.

As we all know, Mr. Chairman, there is a lot of information con-
tained in these 36 boxes, but none of us know anything about what
is in those boxes. But our job is to put politics aside and decide how
to release this information as wisely and as fairly as possible.

Yesterday Speaker Gingrich and Minority Member Gephardt
agreed that today’s hearing would deal only with how to release
the information. They agreed that questions about which special
authorities to give the Judiciary Committee would be decided next
week.

I am sad to say, and I hope it has been corrected, that the early
draft resolution that I saw violated that resolution.

The CHaIRMAN. If the gentleman would yield, your recommenda-
tion was followed, and so the word “ancillary” was removed, and
most of your concerns were removed, if not all of them.

Mr. MOAKLEY. Well, we have some other concerns. It brings up
the issue of granting witnesses immunity and compiling additional
material, as well as depositions, hearings and meetings.

Mr. HybeE. We are not asking for that.

Mr. MoaKLey. I know that you are not, but in the original draft
it was in there.

Mr. HybeE. Well, it is not anymore. That will be a separate rule
next week.

Mr. MOAKLEY. All right.

Today’s hearing, and as Mr. Hyde corrected, is only to learn how
to release the information, so I would ask my colleagues to honor
that agreement and stay within that question of how to release the
report.

‘here are ways to make the report public, and today we will hear
other varying procedures on how to release this confidential infor-
mation that none of us have even seen yet.

Regardless of whether you think we should release it all at once
or bit by bit, I would ask as a matter of fairness that the Presi-
dent’s counsel be given a chance to review the materials before
they are released to the public.

Last fall this Congress passed an ethics reform package, as you
may recall, setting the standards for considering ethics charges
against Members of Congress. That package allowed congressional
people accused of ethics violations to hear the allegations and to
see the evidence 10 days before they are made public. I think it is
only fair that we allow President Clinton the same opportunity
that we would give ourselves.

On a related issue, when the committee meets again next week
on what authorities should be given to the Judiciary Committee, I
believe we should look very, very closely to the Watergate hearings
as a model. The impeachment authority is contained in Article 1,


94

Mr. Goss. I don’t think it is that critical of a point. I mean,
whether it is going to be Mr. Hyde and Mr. Conyers or Mr. Hyde,
Mr. Conyers, augmented, I don’t think matters. I trust it either
way. What I am concerned about is the public’s right to know.

The CHAIRMAN. Mr. Hyde?

Mr. Hybe. As material becomes available immediately, all of the
material, so every Member then is going to get access to it and—

Mr. Goss. Absolutely.

Mr. Frost. Starting Friday, starting tomorrow, prior to this com-
mittee meeting next week.

Mr. HyDE. We lose the advantage of us getting to look at it and—

Mr. Conyers. Well, we will be in effect violating the admonition
of Kenneth W. Starr. I never thought I would quote him to the
committee, but, I mean, he was careful and prudent enough to tell
us that these materials contain 6(e) information and information
that may be prejudicial to innocent parties. That is why he wrote
the cover letter. He didn’t need to tell us outside of that there was
17 boxes. We counted them as they—or actually 36.

But this just in: The chief of staff of the minority of the Judiciary
Committee was in the room with the Minority Leader, who called
the Speaker after he went on CNN and voiced Tis agreement.

Now if we are up against a ruling, an amendment of some Mem-
ber that we could lose the pre-release review altogether, ladies and
gentlemen, we have just slipped down the slippery slope. And I
mean we are done for if we are going to vote to throw everything—
thousands and thousands of pages and boxes—

The CHAIRMAN. I agree with the gentleman.

Mr. Conyers. Yes. I thank you.

The CHAIRMAN. Mr. Linder.

Mr. LINDER. My only comment is that I really believe from peo-
ple I have talked with that everyone wants access to this, and I
think a vote on the floor, if we closed it too much, we would lose.
I really believe we would lose that. And I think the prudent thing
to do is make it as available as possible.

The CHAIRMAN. Mr. Hall.

Mr. Diaz-Balart.

Mr. Diaz—Bauart. Mr. Chairman, in the same manner in which
in this committee there is extraordinary deference to you, sir, and
your opinions, I am extraordinarily confident, Mr. Dreier made that
point previously, that there will Le the due deference to the two
leaders of the Judiciary Committee.

And so I am confident that the format that is being proposed in
the resolution is the appropriate one, and note that there is an ap-
parent discrepancy or has been—there has been a
Miscommunication with regard to the actual extent of a final agree-
ment on that particular point. So I think, Mr. Chairman, that the
resolution that you are proposing at this point is the appropriate
one.

The CHAIRMAN. The gentlewoman from Rochester, New York.

Ms. SLAUGHTER. Mr. Chairman, this greatly distresses me. I was
not at the meetings, but I certainly talked to people who were, who
indicate to me that this agreement was made in good faith. And
I don’t think it bodes well for the process if we can’t even get out
of the Rules Committee with a resolution that does not break the


39
18

This conduct falls into three broad categories: (1) exceeding the con-
stitutional bounds of the powers of the ofice A derogation of the
powers of another branch of government; (2) behaving in a manner
grossly incompatible with the proper function and purpose of the
office; and (3) employing the power of the office for an improper pur-
pose or for personal gnin.**

1, EXCEEDING THE POWERS OF THE OFFICE IN DEROGATION OF THOSE OF
ANOTHER BRANCH OF GOVERNMENT

The first American impeachment, of Senator William Blount in
1797, was based on allegations that Blount attempted to incite the
Creek and Cherokee Indians to attack the Spanish settlers of Florida
and Loui _in order to capture the territory for the British. Blount
was charged with engaging in « conspiracy to compromise the neutral-
ity of the United States, in disregard of the constitutional provisions
for conduct of foreign affairs. He was also charged, in effect, with
attempting to oust the President’s lawful appointee as principal agent
for Indian affairs and replace him with a rival, thereby intruding
upon the President’s supervision of the executive branch.**

The impeachment of President Andrew Johnson in 1868 also rested
on allegations that he had exceeded the power of his office and had
failed to respect the prerogatives of Congress. The Johnson impeach-
iment grew out of a bitter partisan struggle over the implementation
of Reconstruction in the South following the Civil War. Johnson was
charged with violation of the Tenure of Office Act, which purported
to take away the President’s authority to remove members of his own
enbinet and specifically provided that violation would be a “high mis-
demennor,” as well a3 a crime. Relieving the Act unconstitutional,
Johnson removed Secretary of War Edwin M. Stanton and was
imneached three days later.

Nine articles of impeachment were originally voted against Johnson,
all dealing with his removal of Stanton and the appointment of
successor without the advice and consent of the ate. The first
article. for example. charged that President Johnson, .

unmindful of the high duties of this office, of his oath
of office, and of the requirement of the Constitution that he
should take care that the laws be faithfully executed, did
unlawfully, and in violation of the Constitution and laws of
the United States, order in writing the removal of lidwin M.
Stanton from the office of Secretary for the Department of
War.*

Two more articles were adopted by the House the following day.
Article Ten charged that Johnson, “anmindful of the high duties of
his office, and the dignity and proprieties thereof,” had made inflam-
matory speeches that attempted to ridicule and the
Congress. Article Eleven charged him with attempts to prevent the

=A procetnral aote may be useful The Honce votes hoth a ressintion of impeackment
wrt Se Seale! SRLS PoP da Duke, te
Sleemerien St crete Mere iramcacked by the Fever, vst before trial of the impeachment,
the Senate expelled him for “baving been guilty of a high misdemensor, entirely tscon-
stezeat crieh Be, Pants tee tuat Tohanonte romorsi ot Rtaaton wae enlawtel because the

pjected enon gaspension of him.
ae seer Tedecte Jehich Jekeeen bad trade te Werblogton, D.C., Cleveland, Obto



101

lawyer was required to be provided with copies of all materials pre-
sented to the committee, invited to attend presentations of evidence
and to submit additional suggestions for witnesses to be inter-
viewed or materials to be reviewed and to respond to evidentiary
presentations.

The rules further provided that the President and his counsel
shall be invited to attend all hearings, including any held under ex-
ecutive session. Twenty-four hours advance notice was required,
and both the Chairman and the Ranking Minority Member were
granted access to all times—at all times with committee materials.

I lay that groundwork recognizing that we have not yet defined
or established the rules under which we may proceed, and also that
we have not moved to the point of an impeachment inquiry. We are
receiving a report.

The CHAIRMAN. Would you repeat the first part of that again, be-
cause you make a very cogent point that your committee has not
yet met to lay out the parameters of their own investigation.

Ms. JACKSON LEE. That is correct, I understand that, but I am
using that as a backdrop for my advocacy that the President have
48 hours to be able to review the 445 pages. And in fact I have al-
ready made my personal comment that I am very concerned about
the release of these documents to the public in any event, because
I think the public would understand that because of the somber-
ness and the importance of the responsibility that we have, that it
would not be covering up; it would be to have this particular task
that we have to be maintained with the greatest of integrity.

I want to add a couple of other points, Mr. Chairman, if I can.
I have said here that I would like to see us think along the lines
of the Watergate proceedings because I don’t think that the House
wants to deny the President—and I would like us to separate the
President, President Clinton, from the institution of the presi-
dency—the same right that has been and continues to be enjoyed
by our own Members, who receive information when charges are
filed against them by the House Ethics Committee.

For example, the Speaker was permitted to review the charges
filed by the committee before it issued its public report. The Presi-
dene the institution of the presidency, should be afforded the same
right.

‘Also the Ethics rules require that the subject of any investigation
will have not less than 10 calendar days before a Scheduled vote
to review alleged violations and a copy of the statement of the al-
leged violations that the committee intends to adopt, together with
all evidence it intends to use to prove these charges. The President,
again the institution of the presidency, should not receive any less
due process than any Member of Congress.

It is clearly important that we respect the fact that our own
Independent Counsel has acknowledged the potentiality of damag-
ing materials against private or independent or individual citizens
that we could find in the 2,000 pages and the 17 boxes and the ap-
pendices.

Frankly, with all due respect to my colleagues and anyone who
comes to this committee to offer an amendment, it is this commit-
tee that can carve out the vote or the resolution that we will vote
on tomorrow. Frankly, I believe we are doing absolutely the wrong


42

21

In drawing up articles of impeachment, the House has placed little
emphasis on criminal conduct. than one-third of the eighty-three
articles the House has adopted have explicitly charged the violation
of a criminal statute or used the word “criminal” or “crime” to de-
scribe the conduct alleged, and ten of the articles that do were those
involving the Tenure of Office Act in the impeachment of President
Andrew Johnson. The House has not always used the technical lan-
guage of the criminal law even when the conduct alleged fairly clearly
constituted a criminal offense, as in the Humphreys and Belknap im-
Peschmenta, Moreover, a number of articles, even though they may

ave alleged that the conduct was unlawful, do not seem to state crimi-
nal conduct—including Article Ten against President Andrew John-
son (charging inflammatory gpecehes) , and some of the charges
against all of the judges except famphreye.

‘Much more common in the articles are allegations that the officer
has violated his duties or his oath or seriously undermined public con-
fidence in his ability to perform his official functions. Recitals thet a
judge has brought his court or the judicial system into disrepute are
commonphace. im ment 0: lent Jol nine of the

pace. In the impeachment of President Johnson, f th
articles allege that he acted “unmindful of the high duties of his office
and of his oath of office,” and several specifically refer to his constitu-
tional duty to take care that the laws be faithfully executed.

‘The formal language of an article of impeachment, however, is less
significant than the nature of the allegations that. it contains. All have
involved charges of conduct incompatible with continued performance
of the office ; some have explicitly rested upon s “course of conduct” or
have combined disparate charges in a single, final article. Some of the
individual artictes seem to have all conduct that, taken alone,
wouhd not have been considered serious, such a3 two articles in the im-
peachment of Justice Chase that merely alleged procedural errors at
trial. In the early impeschments, the articles were not prepared until
after impeachment had been voted by the House, and it seems probable
that the decision to impeach was mede on the basis of all the allege.
tions viewed as s whole, rather than each separate . Unlike
Senate, which votes separately on each article after trial, and where
conviction on but one article is ired for removal from office, the
House a to have considered the individual offenses less sig
nificant what they said together about the conduct of the of-
ficial in the performance of his duties. _ . oe

Two tendencies should be avoided in interpreting the American im-
peechmenta, The first is to dismiss them too readily
involved judges. The second is to make too much of them. They do not
all fit nestly and logically into categories. That, however, is in keeping
with the nature of the remedy. It is intended to reach a broed variety
of conduct by officers that is both serious and incompatible with the
duties of the office. .

Past impeachments sre not precedents to be read with an eye for an
artic: of t impeachment identical to allegations that mey be currently
under consideration. The American impeachment cases demonstrate
a common theme usefal in determining whether grounds for iropeach-
ment exist—that the are derived from understanding the
nature, functions and duties of the office.