fords to enable the Committee to an out its assignment and in that regard to select an incuir af to assist the Committe On Roomiary 8, 1974. te House of Representatives or a more of £27 to & “authorized and firseted" the Committee on the Judiciar toabest gate fille and completely whether mficent grounds exist for the House of Representat mes to exercise its constiritional power to inDears Richard M. Nixon. President of the Taited States of America. To implement the authorization H. Res. 48) the House also provded foar "For the purpose of making such investigation, the comtree is authorized to require by subpoena or otherwise... the attendance and testimony of any person... and... the production of quely things; and ....... by interrogatory, he finishing of such informarion, as it deems necessary to such investigation." This was but the second time in the history of the United States That the Honge of Representatives rescived to investigate the possigility of Impeachment of a President. Some 107 years earlier the House had farestigated whether President Andrew Johnson should se impeached. Understandably. little attention or thought has been In the moject of the presidential impeachment process during the Sommering pears. The Inquiry Staff. at the request of the Judiciary Committee has prepared this memorandum on constitutional grounds for residential impeachment. As the factual investigation progresses. become possible to state more specifically the constitutional. legal and conceptual framework within which the staff and the Committee Tork. Delicate Tesnes of basic constitutional law are involved. Those issues 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 rule 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 about the precise nature of conduct that calls for the exercise of its constitutional powers: rather, it must await full development of the facts and understanding of the events to which those facts relate. What is said here does not reflect any 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 be a review of the precedents and available interpretive materials, seeking general principles to guide the Committee. This memorandum offers no fixed standards for determining whether grounds for impeachment exist. The framers did not write a fixed standard. Instead they adopted from English history a standard sufficiently general and flexible to meet future circumstances and events, the nature and character of which they could not foresee. The House has set in motion an unusual constitutional process, conferred 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 constitutional power to impeach." This action was not partisan. It was supported by the overwhelming majority of both political parties. Nor was it intended to obstruct or weaken the presidency. It was supported 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 in working toward that resolution, this memorandum reports upon the history, purpose and meaning of the constitutional phrase, "Treason, Bribery, or other high Crimes and Misdemeanors. 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. The origins and use of impeachment in England, the circumstances under which impeachment became a part of the American constitutional 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 become appropriate in relation to the presidency. A. THE ENGLISH PARLIAMENTARY PRACTICE Alexander Hamilton wrote, in No. 65 of The Federalist, that Great Britain had served as "the model from which [impeachment] has been 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 as a means to exercise some measure of control over the power of the King. An impeachment proceeding in England was a direct method of bringing to account the King's ministers and favorites-men who might otherwise have been beyond reach. Impeachment, at least in its early history, has been called "the most powerful weapon in the political armoury, short of civil war." 1 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 Parliament to create more responsive and responsible government and to redress imbalances when they occurred.2 The long struggle by Parliament to assert legal restraints over the unbridled will of the King ultimately reached a climax with the execution 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 1 Plucknett. "Presidential Address" reproduced in 3 Transactions, Royal Historical Society, 5th Series. 145 (1952). 2 See generally C. Roberts, The Growth of Responsible Government in Stuart England (Cambridge 1966). poses. Chief among them was Thomas Wentworth, Earl of Strafford. The House of Commons impeached him in 1640. As with earlier impeachments, the thrust of the charge was damage to the state.3 The first article of impeachment alleged 4 That he... hath traiterously endeavored to subvert the in stead thereof, to introduce Arbitrary and Tyrannical Gov- The other articles against Strafford included charges ranging from the allegation that he had assumed regal power and exercised it tyrannically to the charge that he had subverted the rights of Parliament." Characteristically, impeachment was used in individual cases to reach offenses, as perceived by Parliament, against the system of gov-' ernment. The charges, variously denominated "treason," "high treason," "misdemeanors," "malversations," and "high Crimes and Misdemeanors," thus included allegations of misconduct as various as the kings (or their ministers) were ingenious in devising means of expanding royal power. At the time of the Constitutional Convention the phrase "high Crimes and Misdemeanors" had been in use for over 400 years in impeachment proceedings in Parliament. It first appears in 1386 in the impeachment of the King's Chancellor, Michael de la Pole, Earl of Suffolk. Some of the charges may have involved common law offenses. Others plainly did not: de la Pole was charged with breaking a promise he made to the full Parliament to execute in connection with a parliamentary ordinance the advice of a committee of nine lords regarding the improvement of the estate of the King and the realm; "this was not done, and it was the fault of himself as he was then chief officer." He was also charged with failing to expend a sum that Parliament had directed be used to ransom the town of Ghent, because of which "the said town was lost." 9 3 Strafford was charged with treason, a term defined in 1352 by the Statute of Treasons, 25 Edw. 3, stat. 5, c. 2 (1352). The particular charges against him presumably would have been within the compass of the general, or "salvo," clause of that statute, but did not fall within any of the enumerated acts of treason. Strafford rested his defense in part on that failure; his eloquence on the question of retrospective treasons ("Beware you do not awake these sleeping lions, by the searching out some neglected moth-eaten records, they may one day tear you and your posterity in pieces: it was your ancestors' care to chain them up within the barricadoes of statutes; be not you ambitious to be more skilful and curious than your forefathers in the art of killing." Celebrated Trials 518 (Phila. 1837) may have dissuaded the Commons from bringing the trial to a vote in the House of Lords; instead they caused his execution by bill of attainder. J. Rushworth, The Tryal of Thomas Earl of Strafford, in 8 Historical Collections 8 (1686). 5 Rushworth, supra n. 4, at 8-9. R. Berger, Impeachment: The Constitutional Problems 30 (1973), states that the impeachment of Strafford ". constitutes a great watershed in English constitutional history of which the Founders were aware.' See generally A. Simpson, A Treatise on Federal Impeachments 81-190 (Philadelphia, 1916) (Appendix of English Impeachment Trials); M. V. Clarke, "The Origin of Impeachment" in Oxford Essays in Medieval History 164 (Oxford, 1934). Reading and analyzing the early history of English impeachments is complicated by the paucity and ambiguity of the records. The analysis that follows in this section has been drawn largely from the scholarship of others, checked against the original records where possible. The basis for what became the impeachment procedure apparently originated in 1341, when the King and Parliament alike accepted the principle that the King's ministers were to answer in Parliament for their misdeeds. C. Roberts, supra n. 2, at 7. Offenses against Magna Carta, for example, were falling for technicalities in the ordinary courts, and therefore Parliament provided that offenders against Magna Carta be declared in Parliament and judged by their peers. Clarke, supra, at 173. 7 Simpson, supra n. 6. at 86; Berger, supra n. 5, at 61; Adams and Stevens, Select Documents of English Constitutional History 148 (London 1927). 8 For example, de la Pole was charged with purchasing property of great value from the King while using his position as Chancellor to have the lands appraised at less than they were worth, all in violation of his oath, in deceit of the King and in neglect of the need of the realm. Adams and Stevens, supra n. 7. at 148. 9 Adams and Stevens, supra n. 7, at 148-150. 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 Michael), charged him with several acts of high treason, but also with "high Crimes and Misdemeanors, "10 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," "procuring offices for persons who were unfit, and unworthy of them" and "squandering away the public treasure." 11 Impeachment was used frequently during the reigns of James I (1603-1625) and Charles I (1628-1649). During the period from 1620 to 1649 over 100 impeachments were voted by the House of Commons.12 Some of these impeachments charged high treason, as in the case of Strafford; others charged high crimes and misdemeanors. The latter 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.13 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 impeaching officers of the Crown for such things as negligent discharge of duties 14 and improprieties in office.15 The phrase "high Crimes and Misdemeanors" appears in nearly all of the comparatively few impeachments that occurred in the eighteenth 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, thereby greatly diminishing the revenues of the crown and subjecting the people of England to "grievous taxes." 16 Oxford was also charged with procuring a naval commission for William Kidd, "known to be a 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 being 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." 17 10 4 Hatsell 67 (Shannon, Ireland, 1971, reprint of London 1796, 1818). 11 4 Hatsell, supra n. 10, at 67, charges 2, 6 and 12. 12 The Long Parliament (1640-48) alone impeached 98 persons. Roberts, supra n. 2, at 133. 13 2 Howell State Trials 1135, 1136-37 (charges 1, 2 and 6). See generally Simpson, supra n. 6, at 91-127; Berger, supra n. 5, at 67-73. 14 Peter Pett, Commissioner of the Navy, was charged in 1668 with negligent preparation for an invasion by the Dutch, and negligent loss of a ship. The latter charge was predicated on alleged willful neglect in failing to insure that the ship was brought to a mooring. 6 Howell State Trials 865, 866-67 (charges 1, 5). 15 Chief Justice Scroggs was charged in 1680, among other things, with browbeating witnesses and commenting on their credibility, and with cursing and drinking to excess, thereby bringing "the highest scandal on the public justice of the kingdom." 8 Howell State Trials 197, 200 (charges 7, 8). 16 Simpson, supra n. 6, at 144. 17 Simpson, supra n. 6, at 144. |