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Constitutional Grounds for Presidential Impeachment:
Footnotes

The following is from a report written and released by the Judiciary Committee in 1974 in the aftermath of the Watergate crisis.

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Section II Footnotes

1. Plucknett, "Presidential Address" reproduced in 3 Transactions, Royal Historical Society, 5th Series, 145 (1952).
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2. See generally C Roberts, The Growth of Responsible Government in Stuart England (Cambridge 1966).
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3. Strafford was charged with treason, a term defined in 1352 by the Statute of Treasons, 25 Edw 3, stat. 5, c. 2 (1852). 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-eatedn 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 thatn 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
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4. J. Rushworth, The Tryal of Thomas Earl of Stafford, in 8 Historical Collections 8 (1686).
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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."
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6. 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 pauelty 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 posssible. 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 failing for technicalities in the ordinary courts, and therefore Parlament provided that offenders against Magan Carta be declared in Parlament and judged by theri peers. Clarke, supra, at 173.
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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).
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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 that 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.
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9. Adams and Stevens, supra n.7, at 148-150.
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10. 4 Hatsell 67 (Shannon, Ireland, 1971, reprint of London 1796, 1818).
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11. 4 Hatsell, supra n.10 at 67, charges 2, 6 and 12.
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12. The Long Parliament (1640-48) alone impeached 98 persons. Roberts, supra n. 2, at 133.
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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.
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14. Peter Pett, Commissioner of the Navy, was charged in 1668 with negligent preparation for an invasion y 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 mooring 6 Howell State Trials 865, 866-67 (charges 1, 5).
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15. Chief Justice Scroggs was charged in 1680, among other things, with browbeating witnesses and commenting on theri credibility, and with cursing and drinking to excess, thereby bringing "the highest scandal on the publick justice of the kingdom." 8 Howell State Trials 197, 200 (charges 7,8).
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16. Simpson, supra n.6, at 144.
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17. Simpson, supra n.6, at 144.
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18. See generally Marshall, The Impeachment of Warren Hastings (Oxford, 1965).
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19. Of the original resolutions proposed by Edmund Burke in 1786 and accepted by the House as articles of impeachment in 1787, both criminal and non-criminal offenses appear. The fourth article, for example, charging that Hastings had confiscated the landed income of the Begums of Oudh, was described by Pitt as that of all others that bore the strongest marks of criminality. Marshall, supra n. 19, at 53.
The third article, on the other hand, known as the Benares charge, claimed that circumstances imposed upon the Governor-General a duty to conduct himself "on the most distinguished priniciples of good faigh, equity, moderation, and mildness." Instead, continued the charge, Hastings provoked a revolt in Benares, resulting in "the arrest of the rajah, three revolutions in the country and great loss, wherby the said Hastings is guilty of a high crime and misdemeanor in the destruction of the country aforesaid." The common, supra n. 6, at 168-170; Marshall, supra n. 19, at xv, 46.
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20. See e.g., Berger, supra n.5, at 70-71.
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21. Berger, supra n.5, at 62.
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18. See generally Marshall, The Impeachment of Warren Hastings (Oxford, 1965).
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19. Of the original resolutions proposed by Edmund Burke in 1786 and accepted by the House as articles of impeachment in 1787, both criminal and non-criminal offenses appear. The fourth article, for example, charging that Hastings had confiscated the landed income of the Begums of Oudh, was described by Pitt as that of all others that bore the strongest marks of criminality. Marshall, supra n. 19, at 53.
The third article, on the other hand, known as the Benares charge, claimed that circumstances imposed upon the Governor-General a duty to conduct himself "on the most distinguished priniciples of good faigh, equity, moderation, and mildness." Instead, continued the charge, Hastings provoked a revolt in Benares, resulting in "the arrest of the rajah, three revolutions in the country and great loss, wherby the said Hastings is guilty of a high crime and misdemeanor in the destruction of the country aforesaid." The common, supra n. 6, at 168-170; Marshall, supra n. 19, at xv, 46.
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20. See e.g., Berger, supra n.5, at 70-71.
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21. Berger, supra n.5, at 62.
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22. The Records of the Federal Convention 66 (M. Farrand ed. 1911) (brackets in original). Hereafter cited as Farrand.
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23. 1 Farrand 322.
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24. 1 Farrand 66.
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25. This argument was made by James Wilson of Pennsylvania, who also said that he preferred a single executive "as giving most energy dispatch and responsibility to the office" 1 Farrand 65.
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25a. A number of suggestions for a Council to the President were made during the Convention. Only one was voted on, and it was rejected three states to eight. This proposal, by George Mason, called for a privy council of six members-- two each from the eastern, middle, and southern states-- selected by the Senate for staggered six-year terms, with two leaving office every two years. 2 Farrand 537, 542.
Gouverneur Morris and Charles Pinckney, both of whom spoke in opposition to other proposals for a council, suggested a privy council composed of the Chief Justice and the heads of executive departments. Their proposal, however, expressly provided that the President "shall in all cases exercise his own judgement, and either conform to [the] opinions [of the council] or not as he may think proper." Each officer who was a member of the council would "be responsible for his opinion on the affairs relating to his particular Department" and liable to impeachment and removal from office for "neglect of duty malversation, or corruption." 2 Farrand 342-44.
Morris and Pinckney's proposal was referred to the Committee on Detail, which reported a provision for an expanded privy council including the President of the Senate and the Speaker of the House. The council's duty was to advise the Preisdent "in matters respecting the execution of his Office, which he shall think proper to lay before them: But their advice shall not conclude him, nor affect his responsibility for the measures which he shall adopt." 2 Farrand 367. This provision was never brought to a vote or debated in the Convention.
Opponents of a council argued that it would lessen executive responsibility. A council, said James Wilson, "oftener serves to cover, than prevent malpractices." 1 Farrand 97. And the Committee of Eleven, consisting of one delegate from each state, to which proposals for a council to the President as well as other questions of policy were referred, decided gainst a council, on the ground that the President, "by persuading his Council-- to concur in his wrong measures, would acquire their protection for them." 2 Farrand 542.
Some delegates thought the responsiblity of the President to be "chimerical": Gunning Geford because "he could not be punished for mistakes." 2 Farrand 43: Elbridge Gerry, with respect to nomination for offices, because the President could "always plead ignorance." 2 Farrand 539. Benjamin Franklin favored a Council because it "would not only be a check on a bad PResident but a relief to a good one." He asserted that the delegates had "too much... fear [of] cabals in appointments by a number," and "too much confidence in those of single persons." Experience, he said, showed that "caprice, the intrigues of favorites & mistresses, &c," were "the means most prevalent in monarchies." 2 Farrand 542.
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The Federalist No 70 at 459-61 (Modern Library ed.) (A. Hamilton) (hereinafter cited as Federalist). The "multiplication of the Executive," Hamilton wrote, "adds to the difficulty of detection.":

The circumstances which may have led to any national miscarriage of misfortune are sometimes so complicated that, where there are a number of actors who may have had different degrees and kinds of agency, though we may clearly see upon the whole that there has been mismanagement, yet it may be impracticable to pronounce to whose account the evil which may havebeen incurred is truly chargeable.

If there should be "collusion between the parties concerned, how easy it is to clothe the circumstances with so much ambiguity, as to render it uncertain what was the precise conduct of any of those parties?" Id., 460.
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27. Federalist No. 70 at 461. Hamilton stated:

A council to a magistrate, who is himself responsible for what he does, are generally nothing better than a clog upon his good intentions, are often the instruments and accomplices of his bad, and are almost always a cloak to his faults.Id. at 462-63.

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28. Federalist No. 70 at 462.
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29. 4 J. Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 74 (reprint of the 2nd ed.) (hereinafter cited as Elliot.)
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30. Elliot 104.
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31. 2 Elliot 480 (emphasis in original)
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32. The Virginia Plan, fifteen resolutions proposed by Edmund Randolph at the beginning of the Convention, served as the basis of its early deliberations. The ninth resolution gave the national judiciary jurisdiction over "impeachments of any National officers." 1 Farrand 22.
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33. 1 Farrand 88. Just before the adoption of this provision, a proposal to make the executive removable from office by the legislature upon request of a majority of the state legislatures had been overwhelmingly rejected. Id. 87. In the course of debate on this proposal, it was suggested that the legislature "should have power to remove the Executive at pleasure"-- a suggestion that was promptly criticized as making him "the mere creature of the Legislature" in violation of "the fundamental principle of good Government" and was never formally proposed to the Convention. Id. 85-86.
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34. 2 Farrand 64, 69.
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35. 2 Farrand 67 (Rufus King). Similarly, Gouveneur Morris contended that if an executive charged with a criminal act were reelected, "that will be sufficient proof of his innocence." Id. 64.
It was also argued in opposition to the impeachment provision, that the executive should not be impeachable "whilst in office"-- an apparent allusion to the consitutions of Virginia and Delaware, which then provided that the governor (unlike other officers) could be impeached only after he left office. Id. See 7 Thorpe. The Federal and State Constitutions 3818 (1908) and Id.566. In response to this position, it was argued that corrupt elections would result, as an incumbent sought to keep his office in order to get himself reelected," contended William R. Davie of North Carolina. 2 Farrand 64. George Mason asserted that the danger of corrupting electors "furnished a peculiar reason in favor of impeachments whilst in office": "Shall the man who has practised corruption & by that means procured his appointment in the first instance, be suffered to escape punishment, repeating his guilt?" Id.65.
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36. 2 Farrand 64.
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37. 2 Farrand 54.
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38. "This Magistrate is not the King but the prime-Minister. The people are the King."
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39. 2 Farrand 65.
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40. Farrand 65-66.
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41. 2 Farrand 65.
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42. 2 Farrand 67.
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43. 2 Farrand 66.
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44. See Appendix B for a chronological account of the Convention's deliberations on impeachment and related issues.
[note: Appendix B is not available on this site-- webmaster]
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45. 2 Farrand 523.
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46. 2 Farrand 550.
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47. The grounds for impeachment of the Governor of Virginia were "mal-administration, corruption, or other means, by whcih the safety of the State may be endangered." 7 Thorpe, The Federal and State Constitution 3818 (1909).
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48. 2 Farrand 550. Mason's wording was unanimously changed later the same day from "agst the State" to "against the United States" in order to avoid ambiguity This phrase was later dropped in the final draft of the Constitution prepared by the Committee on Style and Revision, which was charged with arranging and improving the language or the articles adopted by the Convention without altering its substance.
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49. Id.
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50. R. Berger, Impeachment:The Constitutional Problems 87,89 and accompanying notes (1973).
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51. As a technical term, a "high" crime signified a crime against the system of government, not merely a serious crime. "This element of injury to the commonwealth-that is, to the state itself and to its constitution was historically the criterion for distinguishing a 'high'crime or misdemeanor from an ordinary one The distinction goes back to the ancient law of treason, which differentialted 'high' from'petit' treason." Bestor Book Review, 49 Wash L Rev 255, 263-64 (1973). See 4 W. Blackstone, Commentaries *75
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52. The provision ( article XV of Committee draft of the Committee on Detail) originally read: "Any person charged with treason, felony or high misdemeanor in any State, who shall flee from justice, and shall be found in any other State, shall, on demand of the executive power of the State from which he fled, be delivered up and removed to the State having jurisdiction of the offence" 2 Farrand 187-88.
This clause was virtually identical with the extradition clause contained in article IV of the Articles of Confederation, which referred to "any Person guilty of, or charged with treason, felony, or other high misdemeanor in any state"
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53. 2 Farand 443.
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54. 3 Elliot 501.
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55. 4 Blackstone's Commentaries * 121 (emphasis omitted).
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56. See Murray v Hoboken Land Co., 52 U.S. (18 How.) 272 (1856); Davidson v New Orleans, 96 U.S. 97 (1878); Amith v Alabama, 124 U.S. 465 (1888).
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57. United States v Burr, 25 Fed. Cas. 1, 159 (No 14, 693) (C.C.D. Va 1807)
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58. 2 Farrand 550.
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59. The Federalist No 65 at 423-24 (Modern Library ed) (A Hamilton) (emphasis in original).
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60. 4 Elliot 281
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61. 3 Elliot 201
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62. 3 Elliot 486
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63. 3 Elliot 497-98. Madison went on to any contrary to his position in the Philadelphia convention, that the President could be suspended when suspected, and his powers would devolve on the Vice President, who could likewise be suspended until impeached and convicted, if he were also suspected. Id. 498.
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64. 3 Elliot 500. John Rutledge of South Carolina made the same point, asking "whether gentlemen seriously could suppose that a President, who has a character at stake, would be such a fool and knave as to join with ten others {two-thirds of a minimal quorum of the Senate} to tear up liberty by the roots, when a full Senate were competent to impeach him." 4 Elliot 268.
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65. 3 Elliot 117
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66. 3 Elliot 401
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67. 4 Elliot 126
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68. 4 Elliot 127
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69. For example. Wilson Nicholas in the Virginia convention asserted that the President "is personally amenable for big mal-administration"through impeachment, 3 Elliot 17:George Nicholas in the same convention referred to the Presidents impeachability if he "deviates from his duty," Id. 240 Archibald MacLaine in the South Carolina convention, also referred to the President's impeachability for "any maladministration in his office." 4 Elliot 47: and Reverend Samuel Stillman of Massachusetts refrred to his impeachability for "malconduct,"asking, "With such a prospect, who will dare to abuse the powers vested in him by the people?" 2 Elliot 169.
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70. Chief Justice Taft wrote with reference to the removal power debate in the opinion for the Court in Myers v. United States, that constitutional decisions of the First Congress "have always been regarded, as they should be regarded, as of the greatest weight in the interpretation of that fundamental instrument." 272 U.S 52, 174-75 (1926).
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71. 1 Annals of Cong 498 (1789)
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72. Id. 372-73
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73. Id. 502
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74. Id. 535-36. Gerry also implied, perhaps rhetorically, that a violation of the Constitution was grounds for impeachment If, he said, the constituion failed to include provision for removal of executive officers, an attempt by the legislature to cure the omission would be an attempt to amend the Constitution But the Constitution provided procedures for its amendment, and "an attempt to amend it in any other way may be a high crime or misdemeanor, or perhaps something worse" Id.503
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75. Id. John Vining of Delaware commented: " The President What are his duties To see the laws faithfully executed; If he does not do this effectually, he is responsible To who To the people. Have they the means not to do this effectually, he is responsible. To whom? Tothe people Have they the means of calling him to account, and punishing him for neglect? They have secured it in the Constitution, by impeachment, to be presented by their immediate representatives: if they fail here, they have another check when the time of election comes round" Id. 572.
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76. Id. 375
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77. Id.
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78. Id. 474
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79. Id. 475
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80. Id. 477. The proponents of the Presiden't removal power were careful to preserve impeachment as a supplementary method of removing executive officals. Madison said impeachment will reach a subordinate "whose bad actions may be connived at or overlookd by the President."Id.372. Abraham Baldwin said: "The Constitution provides for -what That no bad man should come into office... But suppose that one such could be got in, he can be got out again in despite of the President. We can impeach him, and drag him from his place..." Id. 558.
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81. Wilson, Lectures on Law, in 1 The Works of James Wilson 426 (R. McCloskey ed. 1967).
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82. Id. 425
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83. 1 J. Story Commentaries on the Constitution of the United States, 764, at 559 (5th ed 1905).
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83. 1 J. Story Commentaries on the Constitution of the United States, S 764, at 559 (5th ed. 1905).
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84. Eleven of these officers were tried in the Senate. Articles of impeachment were presented to the Senate against a twelfth (Judge English), but he resigned shortly before the trial. The thirteenth (Judge Delahay) resigned before the articles could be drawn. See Appendix B for a brief synopsis of each impeachment. [note: Appendix B is not available on this site.-- webmaster]
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85. Only four of the thirteen impeachments-- all involving judges-- have resulted in conviction in the Senate and removal from office. While conviction and removal show that the Senate agreed with the House that the charges on which conviction occurred stated legally sufficient grounds for impeachment, acuittals offer no guidance on the question, as they may have resulted from a failure of proof, other factors or a determination by more than one third of the Senators (as to the Blount and Belknap impeachments) that trial or conviction was inappropriate for want of jurisdiction.
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86. A procedural note may be useful. The House votes both a resolution of impeachment against an officer and articles of impeachment containing the specific charges that will be brought to trial in the Senate. Except for the impeachment of Judge Delahay, the discussion of grounds here is based on the formal articles.
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87. After Blount had been impeached by the House, but before trial of the impeachment, the Senate expelled him for "having been guilty of a high misdemeanor, entirely inconsistent with his public trust and duty as a Senator."
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88. Article one further alleged that Johnson's removal of Stanton was unlawful because the Senate had earlier rejected Johnson's previous suspension of him.
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89. Quoting from speeches which Johnson had made in Washington, D.C., Cleveland, Ohio and St. Louis, Missouri, article ten pronounced these speeches "censurable in any, [and] peculiarly indecent and unbecoming in the Chief Magistrate of the United States." By means of these speeches, the article concluded, Johnson had brought the high office of the presidency "into contempt, ridicule, and disgrace, to the great scandal of all good citizens."
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90. The Judiciary Committee had reported a resolution of impeachment three months earlier charging President Johnson in its report with omissions of duty, usurpations of power, and violations of his oath of office, the laws and the Constitution in his conflict of Reconstruction. The House voted down the resolution.
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91. The issue of Pickering's insanity was raised at trial in the Senate, but was not discussed by the House when it voted to impeach or to adopt articles of impeachment.
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92. Although some of the language in the articles suggested treason, only high crimes and misdemeanors were alleged, and Humphrey's offenses were characterized as a failure to discharge his judicial duties.
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93. Some of the allegations against Judges Harold Louderback (1932) and Halsted Ritter (1936) also involved judicial favoritism affecting public confidence in the courts.
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94. Judge Swayne was charged with falsifying expense accounts and using a railroad car in the possession of a receiver he had appointed. Judge Archbald was charged with using his office to sevure business favors from litigants and potential litigants before his court. Judges English, Louderback, and Ritter were charged with misusing their power to appoint and set the fees of bankruptcy receivers for personal profit.
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Section III Footnotes

1. See A. Simpson, A Treatise on Federal Impeachments 28-19 (1916). It has also been argued that because Treason and Bribery are crimes, "other high Crimes and Misdemeanors" must refer under the ejundem generis rule of construction. But ejusdem generis merely requires a unifying principle. The question here is whether that prinicple is criminality or rather conduct subversive of our constitutional institutions and form of government. Back

2. The rule of construction against redundancy indicates an intent not to require criminality. If criminality is required, the word "Misdemeanors" would add nothing to "high Crimes."
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3. See part II.B. supra pp. 7-17.
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4. See part II.B.2. supra pp. 11-13.
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5. See part II.A. supra pp. 5-7.
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6. See part II.B.2. supra, pp. 12-13.
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7. See Id., p. 11.
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8. See part II.B.3. supra, pp. 13-15.
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9. 4 Elliot 114.
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10. 3 Elliot 240.
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11. See part II.B.1. supra p. 9; part II B.3. supra. pp. 13-15,16.
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12. Federalist No. 70, at 461.
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13. Id. at 459.
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14. See Part II.C. supra, pp. 13-17.
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15. It has been argued that "[i]mpeachment is a special form of punishment for crime," but that gross and willful neglect of duty would be a violation of the oath of office and "[s]uch violation, by criminal acts of commission or omission, is the only nonindictable offense for which the President, Vice President, judges or other civil officers can be impeached." I. Brant, Impeachment, Trials and Errors 13, 20, 23 (1972). While this approach might in particular instances lead to the same results as the approach to impeachment as a constitutional remedy for action incompatible with constitutional government and the duties of constitutional, it is, for the reasons stated in this memorandum, the latter approach that best reflects the intent of the framers and the constitutional function of impeachment. At the time the Constitution was adopted, "crime" and "punishment for crime" were terms used far more broadly than today. The seventh edition of Samuel Johnson's dictionary published in 1785, defines "crime" as "an act contrary to right, an offense: a great fault: an act of wickedness." To the extent that the debates on the Constitution and its ratification refer to impeachment as a form of "punishment" it is punishment in the sense that today would be thought a non-criminal sanction, such as removal of a corporate officer for misconduct breaching his duties to the corporation.
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16. It is sometimes suggested that various provisions in the Constitution exempting cases of impeachment from certain provisions relating to the trial and punishment of crimes indicate an intention to require an indictable offense as an essential element of impeachable conduct. In addition to the provision referred to in the text (Article I. Section 3), cases of impeachment are exempted from the power of pardon and the right to trial by jury in Article II, Section 2 and Article III, Section 2 respectively. These provisions were placed in the Constitution in recognition that impeachable conduct may entailcriminal conduct and to make it clear that even when criminal conduct is involved, the trial of an impeachment was not intended to be a criminal proceeding. The sources quoted at notes 8-13, supra show the understanding that impeachable conduct may, but need not, involve criminal conduct.
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17. It appears from the annotations to the Revised Statutes of 1873 that bribery was not made a federal crime until 1790 for judges, 1853 for Members of Congresss, and 1863 for other civil officers. U.S. Rev. Stat., Title LXX, Ch 6, SS 5499-502. This consideration strongly suggests that conduct not amounting to statutory bribery may nonetheless constitute the constitutional "high Crimes and Misdemeanor" of bribery.
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