The House is scheduled to vote Wednesday on the impeachment of imprisoned U.S. District Judge Harry E. Claiborne of Nevada, which would pave the way for the first Senate impeachment trial in 50 years.
Claiborne, 69, is serving a two-year sentence for tax evasion at the federal prison at Maxwell Air Force Base, Ala. He has refused to resign and continues to collect his $78,800 annual salary. Because federal judges are appointed for life, Claiborne could return to the bench after his release unless he is removed by the Senate.
The House Judiciary Committee last month unanimously approved four articles of impeachment against Claiborne, based on his conviction on two counts of tax evasion and his bringing "disrepute on the federal judiciary." Claiborne was appointed by President Jimmy Carter in 1978.
Rep. James F. Sensenbrenner Jr. (R-Wis.), the first member to call for Claiborne's impeachment, said the only question remaining is whether the vote against Claiborne will be "unanimous or just overwhelming."
The last impeachment effort was in 1974, when President Richard M. Nixon resigned after the House Judiciary Committee approved several articles of impeachment against him.
There is widespread feeling in both the House and Senate that Claiborne should have resigned.
But Oscar Goodman, the Las Vegas lawyer representing Claiborne, has said that the judge is a victim of a vendetta by overzealous prosecutors and that Claiborne is eager to present his story to the Senate.
Rep. Robert W. Kastenmeier (D-Wis.), whose Judiciary subcommittee drew up the articles of impeachment, said, "I think he should have resigned. I understand his reasons. He seeks to vindicate himself. But I think that's a misplaced hope on his part."
If, as expected, the House impeaches Claiborne, the Senate Rules Committee is expected to meet Thursday to work out details on how to handle Claiborne's trial.
Under procedures established in the Constitution, impeachment by the House is similar to indictment by a grand jury. The Senate then must conduct a trial, with delegates from the House acting as prosecutors. Conviction requires a two-thirds majority, and the penalty cannot extend beyond disqualification and removal from office.
Senate sources say the impeachment rules are "very arcane . . . vintage 18th and early 19th century." The Senate committee began work in 1974 on changing the rules for removal trials, but the effort was discontinued when Nixon resigned.
Once the impeachment articles are presented to the Senate, it must take up the matter within three legislative days.
Because of the busy Senate floor schedule, sources say the leadership is considering taking up the matter within the time requirement and then postponing the trial until the congressional recess, which is scheduled to start Aug. 15. The trial, which can be conducted before the full Senate or a delegation of 12 senators, could be held during the recess. The Rules Committee is expected to consider changing the rules to allow the leadership to set the number for each trial.
The full Senate could vote on Claiborne's removal after it reconvenes in September.
A Senate impeachment expert said he does not expect a long trial, despite statements by Goodman that he plans to present extensive evidence of misbehavior by the Justice Department and the FBI. He has charged that the FBI illegally obtained evidence of Claiborne's tax evasion by breaking into the judge's home and photographing records.
But Senate sources say that an impeachment trial is not like a trial in a court of law and that senators are more interested in Claiborne's fitness to serve on the bench than in how evidence against him was obtained. In addition, they say, Claiborne has made his arguments in unsuccessful appeals all the way to the Supreme Court.
One Senate source said that Claiborne will receive a fair trial but stressed that it will be conducted "under the practices and procedures of the Senate," without the rights and safeguards the judge would enjoy in a court of law.
The House has impeached 10 federal judges since 1803. Four were convicted and removed from office, four were acquitted and two resigned before the process could be completed. The last federal judge to be impeached, convicted and removed from office was Halsted L. Ritter of Florida in 1936.