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Censure: a Debate With a Past

By Walter Pincus
Washington Post Staff Writer
Thursday, November 19, 1998; Page A27

In the spring of 1800, just 11 years after the Constitution was ratified, the House of Representatives debated for two weeks a resolution censuring President John Adams for "a dangerous interference of the Executive with Judicial decisions."

Rep. William Craik of Maryland argued then that the House had neither "the power to censure or to approbate the conduct of the Executive," but only to impeach Adams. But there was little other discussion about whether such legislative action was constitutional -- unlike today, with some lawmakers and experts questioning whether Congress may censure President Clinton for lying under oath about his affair with Monica S. Lewinsky.

Countering Craik in 1800, Rep. John Nichols of Virginia said "there might be an error in his [Adams's] conduct, and yet no impeachment be necessary to be raised out of it; and, if so, it would be extremely wrong to suffer it to go out to the world without a decision, after the subject had once been taken up by the House."

More direct was Rep. James A. Bayard of Delaware, who said he "had no doubt of the competency of the House either to impeach, to censure or to approbate the conduct of the Executive, and of course both the resolutions were in their power."

Among those serving in the House 198 years ago were a handful who would make their marks on American history, but none more than the man who led Adams's defense, Rep. John Marshall of Virginia. Marshall, who as a delegate to his state's convention in 1788 had urged ratification of the Constitution, never questioned the legality of the censure resolution.

Two months after helping defeat censure on the House floor, Marshall was named secretary of state by President Adams and on Jan. 20, 1801, was selected to be chief justice of the United States; at the Supreme Court he established basic tenets of constitutional law that stand today.

While some members of Congress in 1998 have questioned the constitutionality of a resolution censuring Clinton, a Congressional Research Service (CRS) report shows that four other presidents have faced similar resolutions in Congress: Andrew Jackson, the best known; John Tyler, whose censure was contained in a committee report approved by the House; James Buchanan, censured once with his Navy secretary for corrupt awarding of contracts and again after he was out of office for failure to halt Confederate secession; and Richard Nixon, who was hit with two censure resolutions in 1973 and 1974, both of which were overtaken by moves to impeach.

Jack Maskell, author of the CRS report, lays out the legal framework for these debates, noting that although there is "no express constitutional provision regarding censure . . . there is also no express constitutional impediment" for Congress or either chamber to adopt a resolution expressing censure or other opinion of a president.

Against that background, the first censure debate in the House in February and March 1800 sets what should be a precedent for today's discussion.

At issue then was a seaman named Jonathan Robbins who was wanted for murder on the high seas aboard a British ship and was awaiting trial in a South Carolina court. Robbins claimed American citizenship and said he had been seized and forced to sail on the British ship. The British claimed he was a fugitive named Thomas Nash. Adams, at the request of the British government, ordered the South Carolina judge, without any inquiry, to turn Robbins over to the Royal Navy, where he faced court-martial and execution for mutiny and murder.

Adams's enemies attacked the president in the press and the House began an investigation, first demanding papers from the White House and the courts, and eventually moving to a resolution saying the president's action "exposes the administration thereof to suspicion and reproach."

Introduced by Rep. Edward Livingston of New York, who later became a senator and, ironically, President Jackson's secretary of state, the resolution was described as a censure of the president.

Craik, who first raised the question of whether it was proper to consider censure rather than impeachment, said "if the object was to impeach the president, measures ought to have been taken accordingly." He voted to drop the subject, and when that effort lost, said their debate "not with a view to impeach but to give a severe censure . . . certainly interfered with the separate powers," which sets a dangerous precedent.

He drew support from Rep. Aaron Kitchel of New Jersey, who said he did not know what was in the resolution that could lead to impeachment nor did he know "what the House in their censorial capacity had to do but impeach."

Rep. John Rutledge of South Carolina chimed in that once the issue had been introduced and "the minds of the people had been raised to the highest pitch of expectation . . . it would be extremely wrong not to remove that disquiet by a suitable proceeding."

Rep. Albert Gallatin of Pennsylvania, one of Adams's critics who later became Thomas Jefferson's treasury secretary, said Craik's position initially carried "weight," but reconsidered, believing that Adams had undertaken an "injurious" act which "might be of censure where the same act committed with a criminal intent would be impeachable." Against that background, Gallatin argued, the House "had as much power to disapprove and censure" as it did to impeach. Like today, the House members spent days of wrangling over whether the president had supplied or withheld documents some believed necessary for their inquiry.

When faced with a motion to delay voting on censure until all the requested documents were received, Rep. Henry "Light Horse" Lee of Virginia, a hero of the American Revolution and a delegate to the Virginia convention that ratified the Constitution, called on the House to be "led by principles so fair and candid as not to leave the least room for a charge of derogation from its own dignity or of the great subject it was discussing."

Three resolutions calling for delay and seeking more documents were defeated, and on March 7, Marshall spoke for hours presenting a detailed legal case in defense of Adams. At its heart, Marshall concluded, this was not a case for "judicial cognizance" but rather "a national demand made upon the nation" where the president is "the sole organ of the nation in its external relations."

The next day, the House voted 61 to 35 to defeat the censure resolution.

Sixty years later, another little-known debate on censuring a president took place in the House. The House Committee on the Expenditures of the Navy Department found instances of corruption, including Navy Secretary Isaac Toucey signing a coal contract that ended up with a relative and others directed at companies offering political support in exchange for Navy contracts. On one such offer, President Buchanan gave written support to the company.

When a resolution censuring Buchanan and Toucey was introduced, Rep. Thomas Stanley Bocock of Virginia sought to block it, saying, "The pending proposition is nothing more and nothing less than that this House shall resolve itself into a high judicial tribunal to try, pass sentence and execute punishment upon the Chief Executive Magistrate of the country, and upon one of his principal advisers. . . . Tell me sir, in what page of the Constitution do you find the power in this House to pass censure on the President of the United States?"

Hours later, as the debate went on, Rep. Robert Hopkins Hatton of Tennessee, who chaired the original Navy investigation, took the floor. He referred to a letter from the Navy secretary which, he said, "gravely announces to this House . . . that if you [members] attempt to exercise this power, by an expression of your disapprobation, you infringe upon the high prerogatives of the Executive department of the Government."

To that, Hatton responded, "That we have the power to impeach him, the honorable Secretary graciously informs us; but assumes we have no such intention. His assumption is without authority. We determine our own action without consulting the Secretary; choosing our own mode of procedure, feeling assured, if we have the power to impeach and put upon trial, we possess the lesser power to censure."

Despite an unsuccessful last-minute effort to have separate votes for censure of the president and the Navy secretary, the House voted 106 to 61 for the joint censure resolution, which said that "the effect of awarding contracts upon pending elections have set an example dangerous to the public safety and deserving of the reproof of this House."

© Copyright 1998 The Washington Post Company

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