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I would like to thank Judge Wiggins for his participation in this inquiry today, and the preparation

for it, which I think is reflected in the thoughtful presentation. I have always had a great deal of respect for the opinion of Judge Wiggins when we were in agree ment.

Thank you, I yield back, Mr. Chairman.
Mr. KASTENMEIER. The gentleman from Ohio, Mr. DeWine.

Mr. DEWINE. I wonder, since you have been through this before, and thought about it a great deal, can you shed any more light on the phrase other high crimes and misdemeanors.

Where did that come from, and what is your understanding of what it means? I appreciate the fact that you have testified that the felonies involved in this case would qualify for that. Would you give us a broader view of what that phrase means, where it comes from?

Judge WIGGINS. I am not here as a legal historian, and accordingly, I would not wish the committee to rely upon my credentials in this regard.

I have done reading, and have recently read, with respect to that. I commend to your attention the writings of Professor Berger of Harvard, former counsel of this committee, Paul Fenton, and Professor Fenton has written on the subject.

Suffice it to say, it is my understanding, the phrase "high crimes and misdemeanors” comes from the historical English practice. The precise meaning, however, as intended by those who adopted that historic phrase into our Constitution has been the subject of continuing debate.

Were the facts otherwise in this case, perhaps this committee, by its action, could make law and clarify the phrase, but I don't think it should undertake to do so gratuitously in this case, when it is not required.

My conclusion is that the term "high crime” required criminal conduct, that the term "misdemeanor" is modified by the word "high" and means "high misdemeanor" and means serious misconduct, not necessary criminal, especially in the context of a judicial impeachment.

I think, however, that a different interpretation may be required in the case of a nonjudicial officer.

Mr. DEWINE. Thank you very much.
Thank you, Mr. Chairman.

Mr. KASTENMEIER. The gentleman from North Carolina, Mr. Coble.

Mr. COBLE. I join my colleages in expressing appreciation to the Judge for his appearance. I have no questions.

Mr. SENSENBRENNER. No questions, Mr. Chairman.
Mr. KASTENMEIER. Mr. Hughes.
HUGHES. Thank you, Mr. Chairman. No questions.

Mr. KASTENMEIER. I would like to join my colleagues in expressing appreciation for your testimony.

One comment I do need to make with reference to your earlier admonition that in fact, the Congress should not defer to any other branch, in terms of making an independent judgment, and that is certainly true in this case as well.

However, it is also observed that the Federal judiciary has evolved over a period of years, not very large in numbers relatively speaking, Congress cannot necessarily follow each possibly serious case involving a Federal judge, and therefore, an alternative of advice from the judicial conference on such matters is welcome, although not determinative, of course, with respect to the serious matters that may arise, not necessarily referring to this case in point, but others elsewhere in the country and any one point in time.

It is clear that we do not often exercise this authority, and as the gentleman well knows, it is extremely difficult for the Congress to do so in the long term on a frequent basis.

While I think the point is correctly made by Judge Wiggins, that we cannot and must not abdicate responsibility for initiating impeachment proceedings, nonetheless, I think a procedure such as is extant in the Judicial Conduct and Disability Act is useful to us.

Judge WIGGINS. Mr. Chairman, before I leave, I consider it to be an important part of my presence here to dispel any misunderstanding that might exist between this committee and the conduct of the ninth circuit council.

It has been expressed to me by a number of persons, that members of this committee have judged the ninth circuit council harshly by reason of the conduct in this case.

The act which he is largely responsible for is a very useful enactment, given routine charges that may be made by a party, or a lawyer against the conduct of a judge.

It frees up the Congress of the United States from the burden of the difficult chore of investigating such charges that are too serious to be overlooked.

However, my comments are addressed to this case. This case, on its face, is one in which the remedy lies with Congress. The fact of conviction of Federal judge is not the kind of case that warrants the quiet but objective consideration of a civil complaint by the judiciary.

This is one in which Congress must act, if it is going to act at all, and there was no reason for Congress to defer or to view harshly the circuit council on the facts of this case.

Mr. FRANK. Mr. Chairman.
Mr. KASTENMEIER. The gentleman from Massachusetts.

Mr. FRANK. If I might briefly, because I may have misunderstood something the Judge has said. It is helpful if I can just clarify it, because I thought he was saying something I disagreed with, but now he is not. On page 3, you say, this is a case in which the House should exercise its independent and sole power of impeachment, and not defer, even pro forma, to any other branch.

I take it you mean with regard to the actual decision whether or not to impeach. This does not mean that we would be under any obligation to retry the case. You don't mean to rule out, or accepting the fact of the case in the conviction, that would not be an improper deferral?

Judge WIGGINS. Congressman, what I was trying to address was the problem that I had heard; namely, that this committee felt it should not proceed absent some prior determination by the circuit council and the Judicial Conference of the United States.

Mr. FRANK. That became clear. In other places where this has been discussed, there has been some suggestion that we ought, in effect, independently retry the case, and that we ought not-and some people have used phraseology like yours, and you have clarified it. That is not what you mean.

Judge WIGGINS. The Congressman is correct.

Mr. SENSENBRENNER. Mr. Chairman? I was a member of the committee when the act in question was approved, and I recall voting against it on constitutional principles, but it seems to me that the major argument that was in favor of passing the Judicial Tenure and Disability Act was to allow the judicial branch of Government to make factual and evidentiary determinations, thereby freeing the Congress up from getting involved in evidentiary brouhahas which are associated with cases of alleged judicial misconduct.

My first question is, is that your interpretation of it; and second, do you believe that there are no factual questions that remain to be determined as a result of Judge Claiborne's conviction, and all of the direct appeals being exhausted?

Judge WIGGINS. I will answer the second question first.

I think it is unnecessary for this committee in this case to engage in any fact determinations. I believe the facts have been found, and found under a procedure which afforded the respondent full due process rights.

The facts were found to be true beyond a reasonable doubt. We have something in the nature of collateral estoppel in these proceedings, that the Judge should be estopped from disputing the truth of those facts in this case.

The former question, the question about the act being intended to permit fact-finding at the judiciary level, thereby freeing up a responsibility to do so by the Congress, I was not present here while that bill was passed.

I was present here while it was being considered, but not adopted. I have read some of the legislative history, particularly that offered by my own Chief Judge Browning.

I must confess that I don't share his views. I don't share the notion that the act was intended to relieve in any way the separate responsibility of the Congress to determine whatever must be determined when impeachment is warranted.

Nevertheless, that legislative history exists. I think there are profound separation of powers questions involved, if this committee understands its enactment to mean that the power of impeachment in any way is shifted to the judicial branch, because I don't believe it can be done consistent with Article I, wherein it states that sole power of impeachment rests with the Congress.

Mr. KASTENMEIER. I don't think anyone suggests that the power of impeachment has shifted to the judiciary, but it was contemplated in that act, which I understand passed the House unanimously, in serious cases in which the judiciary could not, I am talking about circuit councils, impose a discipline or seek a remedy of the case, that it would move that issue, in that case, to the judicial conference, which if it saw that it did not have power, to have a remedy in this case, and if the Congress were not aware of the situation, it would then nominate the matter to the Congress, not in any sense of fulfilling anything other than a notice, and not a notice that I suppose technically binds the Congress to anything whatsoever, but puts the Congress on notice, that there is a serious problem, may or may not involve an impeachable offense which it may want to take a look at. That is really the way the act was written.

Now, whether people can find constitutional problems with that, I do not know. I suppose it is possible.

Judge WIGGINS. I am not finding that. It is not for me to declare it unconstitutional from this position, and I won't presume to make that judgment.

If you look at the other side of the coin, you may have some problems. One side of the coin says, the judicial branch will look at the facts and transmit to the Congress a certificate that grounds for impeachment may exist.

The other side of the coin is the judicial branch looks at the facts and does not make such transmission because it determines that no grounds for impeachment exist.

Now, does that bind the Congress? Of course, it does not, except that it is a practical fact which will make it very difficult for the Congress to act in that situation, and you are yielding in a sense considerable authority, perhaps more than you would want to yield, to the judiciary.

We are talking about the merits of a piece of legislation that is now law, and I am gratuitously making that observation for the benefit of the chairman.

Mr. KASTENMEIER. As I say, I think the Congress has to be informed in any event in some respect, whether it is in such notice, or whether it is reading it in the newspaper. Whether reading it in the newspaper is more reliable, I cannot say, but obviously, one way or another, we will need to be informed and to the extent that this is an alternative and supplementary device useful in these years, perhaps not necessary in the past, I would submit that short of constitutional infirmities, Congress has made a policy.

Mr. FISH. Would the chairman yield?

Judge Wiggins, whether or not there is a transmission to the Congress, I understand your position is that Article I means what it says, and the House of Representatives shall have the sole power of impeachment, which is a power that cannot be shared with any other branch of the Government?

Judge WIGGINS. Exactly right.
Mr. KASTENMEIER. Of course, no one disputes that.

Judge WIGGINS. Be assured, I think that the legislation is excellent and is needed. I am only pointing up some troubles around the edges that may not be involved in this case.

If the committee wishes to hold some oversight on this legislation, it has served some useful function to dispel many of the minor complaints about which you have never heard, complaints with respect to judges, that would have festered before this committee, had the legislation not been in existence.

Mr. KASTENMEIER. Its constitutionality has been upheld in the eleventh circuit. I don't think the Supreme Court has ruled on it. In any event, we have reached the noon hour, and we thank our colleague.

We still call him our colleague from California. We thank him for his testimony and his advice today.

I would propose to the committee that we recess until the hour of 2:30 p.m., which will give Judge Claiborne and his counsel adequate time and the rest of us adequate time to have lunch and attend to other legislative duties, so the committee will stand in recess until 2:30 p.m.

[Whereupon, at 12:55 p.m., the subcommittee recessed, to reconvene at 2:30 p.m. the same day.]


Mr. KASTENMEIER. The committee will come to order for its afternoon session.

We are still in executive session as we were when we concluded this noon. We have before us Mr. Oscar Goodman. Mr. Goodman, do I understand that the respondent does not choose to appear this afternoon in person?


STEIN & QUINTANA Mr. GOODMAN. Mr. Chairman, that is correct. Judge Claiborne was afforded an invitation to these proceedings, and he accepted the same, and he was transported from the facility from Maxwell Field, AL to Washington, DC, leaving Maxwell Field apparently as late as 3:30 last night and the rigors of the travel are such that he believes that it is in his best interest to return to the facility. He has been addressed by your staff and has been told very explicitly that he has the opportunity to be present during the remainder of these proceedings.

In fact, these proceedings may go outside the scope of the inquiry and notwithstanding being advised of the same, he has taken it upon himself to go back to the institution.

Mr. KASTENMEIER. Then does he, in fact, waive the right to appear? Mr. GOODMAN. Yes, sir.

Mr. KASTENMEIER. First of all, it is true that this committee does have an announced scope, and it is my understanding that you, as counsel, desire to go beyond that scope for the purpose of, I guess it would be in your view, telling the whole story. Is that the basis on which you will testify before us this afternoon?

Mr. GOODMAN. With your permission, Mr. Chairman, I don't believe within the time constraints that I would be able to tell the whole story, but in order to relate a meaningful history and chronology to this subcommittee, it would be necessary for me to give a background which would go outside the scope of the letter which we received.

Mr. KASTENMEIER. Are you authorized to speak on Judge Claiborne's behalf?

Mr. GOODMAN. I am.
Mr. MAZZOLI. Mr. Chairman.
Mr. KASTENMEIER. First the gentleman from Kentucky.

Mr. MAZZOLI. Thank you. I will certainly go along with whatever the chairman decides to do, but I want the record to show I dis

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