55

consideration" to an application to discharge the receiver;

that "sitting in a part of the court to which he had not been assigned at the time," he took jurisdiction of a case although knowing that the facts and law compelled dismissal; and that this conduct was "filled with partiality and favoritism" and constituted "misbehavior" and a "misdemeanor in office."

Article V, as amended, charged that "the reasonable and probable result" of Louderback's actions alleged in the previous articles "has been to create a 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 aggregate result" of the conduct had been to destroy confidence in Louderback's court, "which for a Federal judge to destroy is a crime and misdemeanor of the highest order." 85

. 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.86

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.87

Judge Louderback was acquitted on each of the first four articles, the closest vote 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.

13. DISTRICT JUDGE HALSTED L. RITTER (1933-1936)

a. Proceedings in the House

A resolution directing an inquiry into the official conduct of District Judge Ritter was adopted by the House in 1933.88 A subcommittee 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 146.89 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.90

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 law partner, in disregard of the "restraint of propriety... and... danger of embarrassment": and in "corruptly and unlawfully" accepting cash payments from the attorney at the time the fee was paid.

Article II charged that Ritter, with others, enter rangement" whose purpose was to ensure that ban

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 unwarranted" fees, that he had received a free room at a hotel in receivership in his court, and that he "wilfully failed and neglected to perform his duty to conserve the assets" of the hotel.

Article III, 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 "high crime and misdemeanor.”

Årticle IV, added by the Managers of the House, also charged practice of law while on the bench, in violation of the Judicial Code.

Articles V and VI, 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."

Article VII (former Article IV 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 . . . judge, is to bring his court into scandal and disrepute," to the prejudice of his court and public confidence in the administration of justice in it, and to "the prejudice of public respect for and confidence in the Federal judiciary," rendering 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 corrupt or unlawful) of fees and gratuities from persons with large property interests within his territorial jurisdiction. The fourth, or omnibus, specification was to "his conduct as detailed in Articles I, II, III 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 omnibus clause had referred only to Articles I and II, and not to the criminal allegations about practice of law and income tax evasion. c. 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 a single vote, 56 to 28.91 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

1 S. Doc. No. 200, 74th Cong., 2d Sess. 637-38 (1986).

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 action 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."

92 Id. 638.

93

23 Ritter v. United States, 84 Ct. Cl. 293, 300, cert denied, 300 U.S. 668 (1936).

APPENDIX C

SECONDARY SOURCES ON THE CRIMINALITY ISSUE

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

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

Berger, Raoul, Impeachment: The Constitutional Problems, (Harvard University Press, Cambridge, 1973). A critical historical survey of English and American precedents concluding that criminality is not a requirement for impeachment.

Bestor, Arthur, "Book Review, Berger, Impeachment: The Constitutional Problems," 49 Wash. L. 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 commonwealth, whether or not the conduct was criminal.

Boutwell, George, The Constitution of the United States at the End of the First 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, Impeachment: Trials & Errors, (Alfred Knopf, New York, 1972). A descriptive history of American impeachment proceedings, 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. Bryce, 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 impeachment was confined to indictable crimes. The author notes that in English impeachments there was no requirement for an indictable crime.

Burdick, Charles, The Law of the American Constitution, (G. T. Putnam & Sons, New York, 1922). A text on constitutional interpretation 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 Miss. L. J. 283 (1936). An article arguing that impeachable offenses had a definite meaning discoverable in history, statute and common law.

(58)

59

Feerick, John, "Impeaching Federal Judges: A Study of the Constitutional 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 Executive 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 constitutional law concluding that in light of English and American history any conduct showing unfitness for office is an impeachable offense. Lawrence, William, "A Brief of the Authorities upon the Law of Impeachable Crimes and Misdemeanors," Congressional Globe Supplement, 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 Constitution," 51 Harv. L. Rev. 330 (1937). An article concluding that the Constitution included more than indictable crimes in its definition of impeachable offenses.

Note, "Vagueness in the Constitution: The Impeachment Power," 25 Stan. L. Rev. 908 (1973). This book review of the Berger and Brant books concludes that neither author satisfactorily answers the question whether impeachable 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 consideration 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. H. Nicklin, Philadelphia, 1829, 2 vol. ed.). A discussion of the legal and political principles underlying the Constitution, concluding on this issue that an impeachable offense need not be a statutory crime, but that reference should be made to non-statutory law. Rottschaefer, 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 aspects of the Constitution which concludes that there was no settled 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.