Few provisions of the Constitution were adopted from English practice to the degree the section on impeachment was. In Eng land, impeachment was a device to remove from office one who abused his office or misbehaved but who was protected by the Crown. 748 It was a device that figured in the plans proposed to the Convention from the first, and the arguments went to such questions as what body was to try impeachments and what grounds were to be stated as warranting impeachment. 749 The attention of the Framers was for the most part fixed on the President and his removal, and the results of this narrow frame of reference are reflected in the questions unresolved by the language of the Constitution.
During the debate in the First Congress on the ''removal'' controversy, it was contended by some members that impeachment was the exclusive way to remove any officer of the Government from his post, 750 but Madison and others contended that this position was destructive of sound governmental practice, 751 and the view did not prevail. Impeachment, said Madison, was to be used to reach a bad officer sheltered by the President and to remove him ''even against the will of the President; so that the declaration in the Constitution was intended as a supplementary security for the good behavior of the public officers.'' 752 The language of Sec. 4 does not leave any doubt that any officer in the executive branch is subject to the power; it does not appear that military officers are subject to it 753 nor that members of Congress can be impeached. 754
Judges .--Article III, Sec. 1, specifically provides judges with ''good behavior'' tenure, but the Constitution nowhere expressly vests the power to remove upon bad behavior; it has been assumed that judges are made subject to the impeachment power through being labeled ''civil officers.'' 755 The records in the Convention make this a plausible though not necessary interpretation. 756 And, in fact, twelve of the fifteen impeachments reaching trial in the Senate have been directed at federal judges. 757 So settled apparently is the interpretation that the major arguments, scholarly and political, have concerned the question whether judges, as well as others, are subject to impeachment for conduct which does not constitute an indictable offense and the question whether impeachment is the exclusive removal device with regard to judges. 758
The Convention came to its choice of words describing the grounds for impeachment after much deliberation, but the phrasing derived directly from the English practice. The framers early adopted, on June 2, a provision that the Executive should be removable by impeachment and conviction ''of mal-practice or neglect of duty.'' 759 The Committee of Detail reported as grounds ''Treason (or) Bribery or Corruption.'' 760 And the Committee of Eleven reduced the phrase to ''Treason, or bribery.'' 761 On September 8, Mason objected to this limitation, observing that the term did not encompass all the conduct which should be grounds for removal; he therefore proposed to add ''or maladministration'' following ''bribery.'' Upon Madison's objection that ''[s]o vague a term will be equivalent to a tenure during pleasure of the Senate,'' Mason suggested ''other high crimes and misdemeanors,'' which was adopted without further recorded debate. 762 The phrase in the context of impeachments has an ancient English history, first turning up in the impeachment of the Earl of Suffolk in 1388. 763
Treason is defined in the Constitution; 764 bribery is not, but it had a clear common-law meaning and is now well covered by statute. 765 High crimes and misdemeanors, however, is an undefined and indefinite phrase, which, in England, had comprehended conduct not constituting indictable offenses. 766 In an unrelated action, the Convention had seemed to understand the term ''high misdemeanor'' to be quite limited in meaning, 767 but debate prior to adoption of the phrase 768 and comments thereafter in the ratifying conventions 769 were to the effect that the President at least, and all the debate was in terms of the President, should be removable by impeachment for commissions or omissions in office which were not criminally cognizable. And in the First Congress' ''removal'' debate, Madison maintained that the wanton removal from office of meritorious officers would be an act of maladministration which would render the President subject to impeachment. 770 Other comments, especially in the ratifying conventions, tend toward a limitation of the term to criminal, perhaps gross criminal, behavior. 771 While conclusions may be drawn from the conflicting statement, it must always be recognized that a respectable case may be made for either view.
Practice over the years, however, insofar as the Senate deems itself bound by the actions of previous Senates, would appear to limit the grounds of conviction to indictable criminal offenses for all officers, with the possible exception of judges.
The Chase Impeachment .--The issue was early joined as a consequence of the Jefferson Administration's efforts to rid itself of some of the Federalist judges who were propagandizing the country through grand jury charges and other means. The theory of extreme latitude was enunciated by Senator Giles of Virginia during the impeachment trial of Justice Chase. ''The power of impeachment was given without limitation to the House of Representatives; and the power of trying impeachments was given equally without limitation to the Senate. . . . A trial and removal of a judge upon impeachment need not imply any criminality or corruption in him . . . [but] nothing more than a declaration of Congress to this effect: You hold dangerous opinions, and if you are suffered to carry them into effect you will work the destruction of the nation. We want your offices, for the purpose of giving them to men who will fill them better.'' 772 Chase's counsel responded that to be impeachable, conduct must constitute an indictable offense. 773 Though Chase's acquittal owed more to the political divisions in the Senate than to the merits of the arguments, it did go far to affix the latter reading to the phrase ''high Crimes and Misdemeanors'' until the turbulent period following the Civil War. 774
The Johnson Impeachment .--President Johnson was impeached by the House on the ground that he had violated the ''Tenure of Office'' Act 775 by dismissing a Cabinet chief. The theory of the proponents of impeachment was succinctly put by Representative Butler, one of the managers of the impeachment in the Senate trial. ''An impeachable high crime or misdemeanor is one in its nature or consequences subversive of some fundamental or essential principle of government or highly prejudicial to the public interest, and this may consist of a violation of the Constitution, of law, of an official oath, or of duty, by an act committed or omitted, or, without violating a positive law, by the abuse of discretionary powers from improper motives or for an improper purpose.'' 776 Former Justice Benjamin Curtis controverted this argument, saying: ''My first position is, that when the Constitution speaks of 'treason, bribery, and other high crimes and misdemeanors,' it refers to, and includes only, high criminal offences against the United States, made so by some law of the United States existing when the acts complained of were done, and I say that this is plainly to be inferred from each and every provision of the Constitution on the subject of impeachment.'' 777 The President's acquittal by a single vote was no doubt not the result of a choice between the two theories, but the result may be said to have placed a gloss on the impeachment language approximating the theory of the defense.
Later Judicial Impeachments .--With regard to federal judges, however, several successful impeachments in this Century appear to establish that the constitutional requirement of ''good behavior'' and ''high crimes and misdemeanors'' may conjoin to allow the removal of judges who have engaged in seriously questionable conduct, although no specific criminal statute may have been violated. Thus, both Judge Archbald and Judge Ritter were convicted on articles of impeachment that charged questionable conduct probably not amounting to indictable offenses. 778 It is possible that Members of Congress may employ different standards with regard to judges who have life tenure than they do with regard to other officers of the Government who either serve for a term of years or who serve at the pleasure of others who serve for a term of years, but such a differentiation places a substantial burden upon the language of the Constitution.
With regard to the three most recent judicial impeachments, Judges Claiborne and Nixon had previously been convicted of criminal offenses, while Judge Hastings had been acquitted of criminal charges after trial. The impeachment articles charged both the conduct for which he had been indicted and trial conduct. Clearly, he was charged and convicted with criminal offenses, it being a separate question what effect the court acquittal should have. 779
The Nixon Impeachment .--For the first time in over a hundred years and for only the second time in the Nation's history, Congress moved to impeach the President of the United States, a move forestalled only by the resignation of President Nixon on August 9, 1974. In the course of the proceedings, there recurred strenuous argument with regard to the nature of an impeachable offense, whether only criminally- indictable actions qualify for that status or whether the definition is broader, and, of course, no resolution was reached. 780
A second issue arose that apparently had not been considered before: whether persons subject to impeachment could be indicted and tried prior to impeachment and conviction or whether indictment could only follow the removal from office. In fact, the argument was really directed only to the status of the President, inasmuch as it was argued that he embodied the Executive Branch itself, while lesser executive officials and judges were not of that calibre. 781 That issue similarly remained unsettled, the Supreme Court declining to provide some guidance in the course of deciding a case on executive privilege. 782
Judicial Review of Impeachments .--It was long assumed that no judicial review of the impeachment process was possible, that impeachment presents a true ''political question'' case. That assumption was not contested until very recently, when Judges Nixon and Hastings challenged their Senate convictions. 783 But federal courts, setting the stage for Supreme Court consideration, held the challenges to be nonjusticiable, that the Constitution's conferral on the Senate of the ''sole'' power to try impeachments demonstrated a textually demonstrable constitutional commitment of trial procedures to the Senate to decide without court review. 784
Upon at last reaching the question, the Court has held that a claim to judicial review of an issue arising in an impeachment trial in the Senate presents a nonjusticiable question, a ''political question.'' Supp.6 Specifically, the Court held that a claim that the Senate had not followed the proper meaning of the word ''try'' in the impeachment clause, a special committee being appointed to take testimony and to make a report to the full Senate, complete with a full transcript, on which the Senate acted, could not be reviewed. But the analysis of the Court applies to all impeachment clause questions, thus seemingly putting offlimits to judicial review the whole process.
[Footnote 747] Impeachment is the subject of several other provisions of the Constitution. Article I, Sec. 2, cl. 5, gives to the House of Representatives ''the sole power of impeachment.'' Article I, Sec. 3, cl. 6, gives to the Senate ''the sole power to try all impeachments,'' requires that Senators be under oath or affirmation when sitting for that purpose, stipulates that the Chief Justice of the United States is to preside when the President of the United States is tried, and provides for conviction on the vote of two-thirds of the members present. Article I, Sec. 3, cl. 7, limits the judgment after impeachment to removal from office and disqualification from future federal office holding, but it allows criminal trial and conviction following impeachment. Article II, Sec. 2, cl. 1, deprives the President of the power to grant pardons or reprieves in cases of impeachment. Article III, Sec. 2, cl. 3, excepts impeachment cases from the jury trial requirement.
[Footnote 748] 1 W. Holdsworth, History of English Law (London: 7th ed. 1956), 379-385; Clarke, The Origin of Impeachment, in Oxford Essays in Medieval History, Presented to Herbert Salter (Oxford: 1934), 164.
[Footnote 749] Simpson, Federal Impeachments, 64 U. Pa. L. Rev. 651, 653-667 (1916).
[Footnote 750] 1 Annals of Cong. 457, 473, 536 (1789).
[Footnote 751] Id., 375, 480, 496-497, 562.
[Footnote 752] Id., 372.
[Footnote 753] 3 W. Willoughby, op. cit., n.294, 1448.
[Footnote 754] This point was established by a vote of the Senate holding a plea to this effect good in the impeachment trial of Senator William Blount in 1797. 3 A. Hinds' Precedents of the House of Representatives of the United States (Washington: 1907), 2294-2318; F. Wharton, State Trials of the United States During the Administrations of Washington and Adams (Philadelphia: 1849), 200-321.
[Footnote 755] See National Comm. on Judicial Discipline & Removal, Report of the National Comm. on Judicial Discipline & Removal (1993), 9-11. The Commission was charged by Congress, P. L. 101-650, 104 Stat. 5124, with investigating and studying problems and issues relating to discipline and removal of federal judges, to evaluate the advisability of developing alternatives to impeachment, and to report to the three Government Branches. The report and the research papers produced for it contains a wealth of information on the subject.
[Footnote 756] For practically the entire Convention, the plans presented and adopted provided that the Supreme Court was to try impeachments. 1 M. Farrand, op. cit., n.4, 22, 244, 223-224, 231; 2 id., 186. On August 27, it was successfully moved that the provision in the draft of the Committee on Detail giving the Supreme Court jurisdictions of trials of impeachment be postponed, id., 430, 431, which was one of the issues committed to the Committee of Eleven. Id., 481. That Committee reported the provision giving the Senate power to try all impeachments, id., 497, which the Convention thereafter approved. Id., 551. It may be assumed that so long as trial was in the Supreme Court, the Framers did not intend that the Justices, at least, were to be subject to the process.
[Footnote 759] 1 M. Farrand, op. cit., n.4, 88, 90, 230.
[Footnote 760] 2 id., 172, 186.
[Footnote 761] Id., 499.
[Footnote 762] Id., 550.
[Footnote 763] 1 T. Howell, State Trials and Proceedings for High Treason and Other Crimes and Misdemeanors from the Earliest Period to the Present Times (London: 1809), 90, 91; A. Simpson, Treatise on Federal Impeachments (Philadelphia: 1916), 86.
[Footnote 764] Article III, 3.
[Footnote 765] The use of a technical term known in the common law would require resort to the common law for its meaning, United States v. Palmer, 16 U.S. (3 Wheat.) 610, 630 (1818) (per Chief Justice Marshall); United States v. Jones, 26 Fed. Cas. 653, 655 (No. 15,494) (C.C.Pa. 1813) (per Justice Washington), leaving aside the issue of the cognizability of common law crimes in federal courts. See Act of April 30, 1790, Sec. 21, 1 Stat. 117.
[Footnote 766] Berger, Impeachment for ''High Crimes and Misdemeanors,'' 44 S. Calif. L. Rev. 395, 400-415 (1971).
[Footnote 767] The extradition provision reported by the Committee on Detail had provided for the delivering up of persons charged with ''Treason, Felony or high Misdemeanors.'' 2 M. Farrand, op. cit., n.4, 174. But the phrase ''high Misdemeanors'' was replaced with ''other crimes,'' ''in order to comprehend all proper cases: it being doubtful whether 'high misdemeanor' had not a technical meaning too limited.'' Id., 443.
[Footnote 768] See id., 64-69, 550-551.
[Footnote 769] E.g., 3 J. Elliot, Debates in the Several State Conventions on Adoption of the Constitution (Philadelphia: 1836), 341, 498, 500, 528 (Madison); 4 id., 276, 281 (C. C. Pinckney: Rutledge): 3 id., 516 (Corbin): 4 id., 263 (Pendleton). Cf. The Federalist, No. 65 (J. Cooke ed., 1961), 439-445 (Hamilton).
[Footnote 770] 1 Annals of Cong. 372-373 (1789).
[Footnote 771] 4 J. Elliot, op. cit., n.769, 126 (Iredell); 2 id., 478 (Wilson).
[Footnote 772] 1 J. Q. Adams, Memoirs (Philadelphia: 1874), 322. See also 3 A. Hinds' Precedents of the House of Representatives of the United States (Washington: 1907), 739, 753.
[Footnote 773] Id., 762.
[Footnote 774] The full record is S. Smith & T. Lloyd (eds.), Trial of Samuel Chase, An Associate Justice of the Supreme Court of the United States . . . (Washington: 1805). On the political background and the meaning of the trial and acquittal, see Lillich, The Chase Impeachment, 4 Amer. J. Legal Hist. 49 (1960).
[Footnote 775] Act of March 2, 1867, 14 Stat. 430.
[Footnote 776] 1 Trial of Andrew Johnson, President of the United States on Impeachment (Washington: 1868), 88, 147.
[Footnote 777] Id., 409.
[Footnote 778] ten Broek, Partisan Politics and Federal Judgeship Impeachments Since 1903, 23 Minn. L. Rev. 185 (1939).
[Footnote 779] Grimes, Hundred-Ton-Gun Control: Preserving Impeachment as the Exclusive Removal Mechanism for Federal Judges, 38 UCLA L. Rev. 1209, 1229-1233 (1991).
[Footnote 780] Analyses of the issue from different points of view are contained in Impeachment Inquiry Staff, House Judiciary Committee, Constitutional Grounds for Presidential Impeachments, 93d Congress, 2d sess. (1974) (Comm. Print); J. St. Clair, et al., Legal Staff of the President, Analysis of the Constitutional Standard for Presidential Impeachment (Washington: 1974); Office of Legal Counsel, Department of Justice, Legal Aspects of Impeachment: An Overview, and Appendix I (Washington: 1974). And see R. Berger, Impeachment: The Constitutional Problems (Cambridge: 1973), which preceded the instant controversy. The House Judiciary Committee recommended three articles of impeachment, for conduct at least one of which, refusal to honor the Committee's subpoenas, was not an indictable offense, and a second that mixed indictable and nonindictable offenses. Impeachment of Richard M. Nixon, President of the United States, H. Rept. No. 93-1305, 93d Cong., 2d sess. (1974). Mr. Nixon's resignation of course precluded further action on the issue, although the articles were submitted to and ''accepted'' by the House of Representatives. 120 Cong. Rec. 29219-29362 (1974).
[Footnote 781] The question first arose during the grand jury investigation of former Vice President Agnew, during which the United States, through the Solicitor General, argued that the Vice President and all civil officers were not immune from the judicial process and that removal need not precede indictment, but as to the President it was argued that for a number of constitutional and practical reasons the President was not subject to the ordinary criminal process. Memorandum for the United States, Application of Spiro T. Agnew, Civil No. 73-965 (D.Md., filed October 5, 1973). Courts have specifically held that a federal judge is indictable and may be convicted prior to removal from office. United States v. Claiborne, 727 F.2d 842, 847-848 (9th Cir.), cert. den., 469 U.S. 829 (1984); United States v. Hastings, 681 F.2d 706, 710-711 (11th Cir.), cert. den., 459 U.S. 1203 (1983); United States, v. Isaacs, 493 F.2d 1124, 1142 (7th Cir.), cert. den. sub nom., Kerner v. United States, 417 U.S. 976 (1974).
[Footnote 782] The grand jury had named the President as an unindicted coconspirator in the case of United States v. Mitchell, et al., No. 74- 110 (D.D.C.), apparently in the belief that he was not actually indictable while in office. The Supreme Court agreed to hear the President's claim that the grand jury acted outside its authority, but finding that resolution of the issue was unnecessary to decision of the executive privilege claim it dismissed the petition for certiorari of the President as improvidently granted. United States v. Nixon, 418 U.S. 683, 687 n. 2 (1974).
[Footnote 783] Both sought to challenge the use under Rule XI of a trial committee to hear the evidence and report to the full Senate, which would then carry out the trial. The rule was adopted in the aftermath of an embarrassingly sparse attendance at the trial of Judge Louderback in 1935. National Comm. Report, op. cit., n.755, 50-53, 54-57; Grimes, op. cit., n.779, 1233-1237.
[Footnote 784] Nixon v. United States, 744 F.Supp. 9 (D.D.C. 1990), affd. 938 F.2d 239 (D.C.Cir. 1991), cert. granted, 112 S.Ct. 1158 (1992). However, in Hastings v. United States, 802 F.Supp. 490 (D.D.C. 1992), the court did reach the merits and held that at least in the instance of Judge Hastings, who had been acquitted in court of the criminal charges for the conduct relied on by the Senate, he was entitled to a trial before the full Senate without the interposition of the trial committee.
[Footnote 6 (1996 Supplement)] Nixon v. United States, 506 U.S. 224 (1993). Nixon at the time of his conviction and removal from office was a federal district judge in Mississippi.