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Corona's Impeachment and the Role of US Precedent

JURIST Columnist Edsel Tupaz of Tupaz & Associates argues that the prosecutors in the impeachment of Philippine Chief Justice Renato Corona should look to recent and historical impeachment proceedings in the US as a model for the proceedings in the Philippine Senate...

As the Philippines enters the fifth week of the impeachment trial against Chief Justice Renato Corona, the prosecution aims to switch gears by looking at a new article of impeachment. For the past few weeks, members of the House Prosecution have been presenting evidence for Article 2, which alleges that Corona committed culpable violation of the Constitution and betrayed the public trust by failing to properly disclose his statement of assets, liabilities and net worth, which is required under Article XI, Section 17 of the Philippine Constitution. With each new article presented, we see parallels to — and an opportunity to draw lessons from — previous impeachment proceedings and outcomes in the US.

Looking at Article 2 alone, we can compare Corona's case to those of several impeached members of the US judiciary who have been charged with misrepresentation of wealth, which could signify misappropriation of public funds and a betrayal of the public trust. In a previous article, I made a comparison between Corona's circumstances and the impeachment and conviction of Judge Harry Claiborne of the US District Court for the District of Nevada. Recall that Claiborne was impeached, tried and convicted on two counts of tax evasion and one count of betrayal of the public trust and bringing disrepute to the judiciary through the falsification of tax returns, thus removing him from office. Furthermore, Article 4 of the impeachment complaint against Claiborne shows that by willfully and knowingly falsifying tax information, Claiborne brought disrepute to his post and betrayed the trust of the public — perhaps a clear parallel to the present situation of Corona.

Most recently, Judge Thomas Porteous of the US District Court for the Eastern District of Louisiana was impeached and convicted in 2010 of three out of his four articles of impeachment, including engaging

in a pattern of conduct inconsistent with the trust and confidence placed in him as a Federal judge by knowingly and intentionally making material false statements and representations under penalty of perjury related to his personal bankruptcy filing and by repeatedly violating a court order in his bankruptcy case.
Several other impeachment cases of judicial officials involved graft and corruption — classified under "high crimes and misdemeanors" in US constitutional parlance — such as Florida federal district judges Alcee Hastings, convicted in 1989, and Halsted Ritter, convicted in 1936, as well as California federal district judge Harold Louderback, acquitted in 1933.

Interpretations of what exactly constitutes an impeachable offense in the US have evolved over the centuries, from drunkenness and unlawful rulings (such as the cases of New Hampshire federal district judge John Pickering, convicted in 1804, and Kansas federal district judge Mark Delahey, who resigned in 1873 prior to an impeachment trial) to sexual misconduct, (such as the case of Texas federal district judge Samuel Kent whose proceedings were dismissed after he resigned in 2009), to graft and corruption, and the general charge of bringing disrepute to the judiciary. Article II, Section 4 of the US Constitution states that the President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors. Meanwhile, under the Philippine Constitution, impeachable offenses include culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust.

The offense of "bringing disrepute to the judiciary" is not always the catchall charge that it may seem on the surface. Mississippi federal district judge Walter Nixon was convicted in 1989 of two out of three articles of impeachment, including charges that he made false or misleading statements to a grand jury, under penalty of perjury. In the third article, however, which stated that Nixon had
raised substantial doubt to his judicial integrity, undermined confidence in the integrity and impartiality of the judiciary, betrayed the trust of the people of the United States, and brought disrepute on the Federal courts and the administration of justice by the Federal courts.
He was acquitted by the Senate.

Considering Article 3 of the impeachment complaint against Corona, there are some parallels to other US impeachments cases. Article 3 avers that Corona committed culpable violation of the Constitution and betrayed the public trust by allowing the Supreme Court to act on letters filed by a counsel which led to "flip-flopping" decisions in final and executory cases, and in engaging in ex parte communication, if not personal meetings, with litigants regarding cases pending before the Supreme Court. These charges have some parallels to the cases of Robert Archbald, Associate Justice of the US Commerce Court and judge for the US Court of Appeals for the Third Circuit, and Rolf Larsen, an Associate Justice of the Supreme Court of Pennsylvania. In 1913, Archbald was impeached and convicted of five out of 13 articles of impeachment against him. Most notably, Article 4 alleged that Archbald sought additional evidence and a supplementary brief from an attorney in a case before the Commerce Court, which was already closed and awaiting a decision, without the consent or knowledge of the opposing party. Archbald had ruled in favor of the former. In a similar case, Larsen was impeached in 1994 and convicted of engaging in ex parte contact with a lawyer that had cases pending before the Pennsylvania Supreme Court, and acquitted of several other charges.

Corona's impeachment trial has been surrounded by criticism arguing that it might become prone to the partisan leanings of the senators sitting as a jury. Several of the charges against Corona point to his alleged partiality and subservience towards former president Gloria Macapagal Arroyo, who is charged with electoral sabotage and currently under arrest, as evidenced by his voting record during his time in the Supreme Court. The impeachment complaint also includes his granting of a temporary restraining order against watch orders issued by the Department of Justice to stop Arroyo from leaving the country to seek medical attention.

The impeachment case of US Supreme Court Justice Samuel Chase, who was acquitted in 1805, played an important role in preventing the possibility of blatant politicization of the impeachment process in the US. I discussed this in a recent article. The core of the allegations against Chase was that his extreme Federalist Party bias had led to his deliberately unfair treatment of defendants and their counsel. Meanwhile, in response to the articles of impeachment against him, Chase argued that all of his actions had been an appropriate exercise of judicial inquiry motivated by adherence to precedent, judicial duty to restrain advocates from improper statements of law, and considerations of judicial efficiency. The resolution of the impeachment proceedings against Chase may have clear parallels to Corona's case. The Senate found that judicial discretion should be given wide latitude, supporting the view that grounds for future impeachment cases should be based on legal or ethical misconduct — either criminal or abuse of office, rather than partisan. However, the standard of "high crimes and misdemeanors" is not necessarily relevant in the Corona case. The charges against Corona about his alleged partiality aver that he ought to be convicted on the grounds of culpable violation of the Constitution and betrayal of the public trust, and the defense could argue that the threshold for the latter offense is higher, allowing the judge greater control over the exercise of judicial discretion in deciding cases. It remains to be seen how well the prosecution can meet this argument.

In sum, the wealth and breadth of impeachment cases in the US provide a large set of precedents from which the Philippines can draw lessons in its first experience with trying a judge or justice. In Philippine history, very few cases of impeachment have been taken to the Senate, former president Joseph Ejercito Estrada and former ombudsman Merceditas Gutierrez, among them. However, both Estrada and Gutierrez would later resign from their posts, leaving the Senate little choice but to adjourn or, in the case of Gutierrez, to not convene at all. (It remains a ripe question whether the Senate can still try an impeachable official despite his or her resignation in the interim, and Philippine scholarship seems to tilt in favor of a "yes" on this point.) The relative lack of experience with impeachment necessitates that Philippine jurists look to the experience of the US in assessing the current, real-time perceived successes or failures of the impeachment trial against Corona. Both the House prosecution and the defense panel can keep the foregoing examples in mind while building their cases and presenting evidence that will convince the impeachment court of Corona's guilt or innocence. Finally, the senators sitting as jurors can also look to past precedents in deciding the standard of proof to be employed at trial, and whether Corona can be deemed fit to continue serving his post as Chief Justice.

Edsel Tupaz is the founder and managing partner of Tupaz & Associates. Tupaz & Associates is a public interest law firm whose specialties lie in comparative constitutional law and policy. Tupaz is also a professor of international and comparative law, teaching at law schools in the US and the Philippines. He is a graduate of Harvard Law School and Ateneo Law School. Tupaz is currently assisting the House prosecution in the impeachment trial of Philippine Chief Justice Renato Corona.

Suggested citation: Edsel Tupaz, Corona's Impeachment and the Role of US Precedent, JURIST - Sidebar, Feb. 11, 2012, http://jurist.org/sidebar/2012/02/edsel-tupaz-impeachment-iv.php.

This article was prepared for publication by JURIST's professional commentary editorial staff. Please direct any questions or comments to them at professionalcommentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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