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Testimony of Hon. Griffin B. Bell, Esq.
King & Spalding, Atlanta, Georgia

House Judiciary Committee Subcommittee on the Constitution
Hearing on the Background and History of Impeachment
November 9, 1998

I. Introduction:

The impeachment clauses of the United States Constitution are broadly written and therefore leave much room for interpretation. They have been the subject of much debate over the years, and there is very little consensus about how they should be interpreted.

In addition, since the ratification of the Constitution, there have been fewer than 20 federal impeachment attempts, the vast majority of which have been brought against federal judges.(2) Only one impeachment has been brought against a United States Senator,(3) and only two have been brought against Presidents.(4) There is therefore very little precedent either as to the substantive law of impeachment or the "proper" way to handle impeachment proceedings.

When one carefully examines the language of the Constitution itself, however, in conjunction with a careful examination of earlier impeachment proceedings, it becomes clear that Presidential impeachment proceedings should only examine whether or not a President has committed serious criminal offenses that would be punishable in the courts. To examine "maladministration" on the part of the President in the context of impeachment proceedings is to introduce an element of political partisanship into proceedings that are so serious that they have the potential to undo a national election, cancel the votes of millions, and put the nation through a severe trauma.(5)

II. The Constitution:

The Constitution vests the sole power of impeachment in the House of Representatives.(6) The Constitution vests the sole power to try impeachments in the Senate.(7) No person shall be convicted without the concurrence of two thirds of the Senate members present.(8) While these provisions have aroused much controversy among legal scholars, the most controversial impeachment provision of the Constitution, and the one most relevant to our discussion today, appears in Article II, Section 4. There the Constitution states:

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.(9)

In particular, we need to understand the meaning of "high crimes and misdemeanors."

The Framers took the words "high crimes and misdemeanors" directly from English law.(10) The Constitutional Convention notes indicate that George Mason originally suggested the use of the word "maladministration" after "bribery."(12) "Maladministration" was rejected, however, as being too vague.(13) As James Madison said, "so vague a term [as maladministration] will be equivalent to tenure during the pleasure of the Senate."(14) "High crimes and misdemeanors" was therefore adopted instead, presumably because their meaning was more restrictive than the word "maladministration."(15)

What the phrase actually means, however, is subject to much debate. Some have suggested that the phrase was first used in 1368; others suggest as late as 1642.(16) Some have suggested that the phrase is merely solemn wording, with no substantive meaning.(17) Others have suggested that the words cover all political offenses.(18)

Some have argued that impeachment must rest upon a violation of existing criminal law.(19) Blackstone himself said that an impeachment "is a prosecution of the already known and established law."(20) Others have argued that the phrase "high crimes and misdemeanors" encompasses far more than specific criminal offenses.(21) It does not appear, however, that anyone would argue that specific indictable felonies would not fall under the rubric of "high crimes and misdemeanors." An impeaching body, therefore, is clearly well within the Constitutional limits when conducting impeachment proceedings to investigate allegations of felonious conduct. Indeed, the impeachment clause itself recognizes that impeachment does not absolve one of indictment and trial: "Judgment in Cases of Impeachment shall not extend further than to remove from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law."(22)

III. Historical Impeachment Proceedings against Members of Congress

The first impeachment proceedings against a United States official occurred in 1797, against a Tennessee Senator named William Blount. He was accused of secretly conspiring with British forces to liberate Spanish-controlled Louisiana.(23) The impeachment went on for eighteen months before its final resolution.(24) The House impeached Blount, but the Senate dismissed the charges on the grounds that it did not have jurisdiction over the impeachment.(25)

Since that time, no Senator or Representative has been impeached.(26)

IV. Historical Impeachment Proceedings against Judges

The next impeachment proceedings were brought six years later, in 1803, against Judge John Pickering, a U.S. District Court Judge for the District of New Hampshire. His articles of impeachment listed issuing an order in violation of a Congressional act, refusing to allow witnesses to testify in a case, refusing to allow an appeal of a case, as well as drunkenness and blasphemy.(27) It is commonly understood by historians that Pickering was "frequently drunk and mentally deranged."(28) This is clearly impeachable conduct on the part of a federal judge. Pickering was convicted by a vote of 19 to seven, and removed from office by a vote of 20 to six.(29) This was the beginning of an expansive reading of the standard for the impeachment of federal judges.(30)

One year later, in 1804, Samuel Chase, an associate justice of the U.S. Supreme Court, was tried under eight articles. He was accused of inappropriate treatment of attorneys, grand juries, juries, and witnesses, as well as violating the trial rights of defendants.(31) History tells us that Chase was roundly disliked,(32) and yet he was ultimately acquitted by the Senate.(33) As one scholar has noted, "the Senate balked at using impeachment as a tool to control judges who were merely errant, rather than criminal, corrupt, or incompetent."(34) This indicates that impeachment proceedings are not a tool to be used when Congress merely dislikes a particular judge; rather, impeachment and conviction should be used only for serious misbehavior or actual criminal activity.

Things were quiet for several years, until 1830 when Judge James H. Peck, U.S. District Court Judge for the District of Missouri, was brought up on charges of arbitrarily holding an attorney in contempt of court.(35) On January 31, 1831, Judge Peck was acquitted of the charges brought against him.(36) Here again, the Senate believed that judicial conduct did not warrant conviction.

In 1862, West H. Humphreys, U.S. District Judge for the Eastern, Middle, and Western Districts of Tennessee, had seven articles of impeachment brought against him for supporting secession and acting as a judge for the Confederacy.(37) These articles are clearly aimed at behavior contrary to what is acceptable for a federal judge. He was acquitted on one sub-part, but he was convicted on all other articles.(38) He was ousted from his office and prohibited from holding office again.(39)

Eleven years later, in 1873, Mark W. Delahay, U.S. District Judge for the District of Kansas, was almost impeached for "unsuitable personal habits" as well as drunkenness and questionable financial dealings.(40) Delahay resigned, however, before the articles could be drafted, so the House took no further action.(41)

In 1904, U.S. District Judge for the Northern District of Florida, Charles Swayne, was accused of submitting false expense accounts, using a railroad car in the possession of a receiver appointed by him without permission, residing outside of his district, and holding attorneys in contempt unlawfully.(42) He was acquitted of all charges.(43)

In 1912, Commerce Court Judge Robert W. Archbald was brought up on 13 articles involving "influence peddling" with litigants.(44) He was acquitted on eight articles, convicted on five articles, removed from office and disqualified from ever holding office again.(45) Some have argued that while these offenses rise to the level of impeachment for Federal judges, they would not for the President.(46)

The next impeachment of a federal judge occurred in 1926 when U.S. District Judge for the Eastern District of Illinois, George W. English, was brought up on five articles of impeachment involving disbarring lawyers, summoning members of the press and state officials to court inappropriately, issuing threats to jurors, favoring bankruptcy referees for appointment, permitting referees also to act as attorneys in their cases, benefitting personally from collusion with referees, and using profanity.(47) English resigned before the Senate trial began. The House requested that the Senate put an end to the proceedings, and the Senate agreed.(48)

Seven years later, in 1933, U.S. District Judge Harold Louderback, for the Northern District of California, was brought up on charges of setting up a false residence in anticipation of his wife seeking a divorce, and improper conduct with regard to bankruptcy receiver.(49) He was acquitted of the charges.(50)

In 1936, Halstead L. Ritter, U.S. District Court Judge for the Southern District of Florida, was brought up on seven articles involving corruption, acting as a lawyer while serving as a federal judge, and income tax evasion.(51) He was acquitted of the first six articles which contained the specific allegations, but the story was different with the seventh.(52) The last article charged that the consequence of his conduct as spelled out in the first six articles was "to bring his court into scandal and disrepute, to the prejudice of said court and public confidence in the administration of justice . . . ."(53) He was removed from office.(54) As stated by one scholar, "Thus misconduct which fell short of a specific criminal offense (for so the specific acquittals are to be understood) could yet constitute a 'high crime and misdemeanor' [for a judge] because it degraded the court."(55)

In 1986, four articles of impeachment were drafted against Judge Harry E. Claiborne, U.S. District Court Judge for the District of Nevada.(56) The judge had been convicted by a court of income tax evasion, but he refused to resign from his judgeship.(57) He was convicted on three articles, and then removed from office.(58)

In 1988, Alcee L. Hastings, U.S. District Court Judge for the Southern District of Florida, had 17 articles of impeachment drafted against him.(59) He was accused of accepting a bribe, telling lies and submitting untrue evidence during his criminal trial, and divulging wire tap information. He was acquitted on three of the articles, convicted on eight of the articles, and the Senate chose not to vote on six of the articles.(60) He was removed from office. He was not prohibited from ever holding future office, however, and he was elected to the House of Representatives in 1992.(61)

In 1989, U.S. District Court Judge Walter L. Nixon, Jr., for the Southern District of Mississippi, had three articles of impeachment drafted against him, for perjuring himself before a grand jury, a crime for which he had previously been convicted at trial.(62) He was acquitted by the Senate on one article, convicted on two of the perjury counts by votes of 89 to eight and 78 to 19,(63) and removed from office.

More recently, a District Judge for the Eastern District of Louisiana, Robert Collins, was convicted in a jury trial for bribery, obstruction of justice, and conspiracy to defraud the United States.(64) In late June of 1993, the United States Judicial Conference voted to issue a formal impeachment certificate to the House.(65) House impeachment resolutions were introduced against Judge Collins both before and after the House received the Judicial Conference certificate.(66) In that same month, the Speaker of the House, Tom Foley, officially recommended that the House Judiciary Committee begin an impeachment inquiry against Judge Collins.(67) Judge Collins resigned, in September 1993, from his federal prison cell in Florida.(68)

What does this list of impeachments tell us? It's hard to say.(69) One thing that it tells us is that only seven federal judges have actually been convicted. It also tells us that for a judge to be convicted requires serious misconduct, which can be anything from chronic drunkenness to conviction for criminal offenses.

The conclusion that one draws from the impeachment history of judges is that allegations of felonious conduct warrant impeachment and conviction while allegations of lesser conduct, termed lack of good behavior, have not always been found sufficient. I lean to limiting impeachment of judges to the concept developed in the last half of this century of requiring proof of a conduct tantamount to a serious crime as a basis for impeachment.(70) Behavioral excesses can generally be left to the several federal judicial councils under Title 29 of the United States Code.

While these cases involving federal judges give some guidance, they don't clearly delineate a path for Presidential impeachment proceedings.

Article III, Section 1 of the Constitution states in part, "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour . . . ."(71) Many questions arise regarding how to read this clause in connection with the impeachment clause in Article II. Some commentators maintain that the good behavior clause does not create a basis for removal other than those specified in the impeachment clauses.(72) These commentators believe that the good behavior clause merely provides federal judges with the special status of life tenure,(73) in contrast to the President or Vice President, who are elected for terms of years. They read the impeachment clause as adding that the life tenure of a federal judge may be interrupted or ended prematurely only by removal for an impeachable offense, not general "misbehavior."(74) In contrast, other commentators argue that the good behavior and impeachment clauses only make sense if they are read together as providing that federal judges have life tenure, subject to removal for an impeachable misdeed or for having engaged in misbehavior.(75) "Essentially, these commentators maintain that federal judges are subject to a loose impeachment standard because they are removable for misbehavior while all other impeachable officials are removable -- by impeachment -- only for 'Treason, Bribery, or other high Crimes and Misdemeanors.'"(76)

This second view appears to me to be the only one that makes sense.(77) Judges have life tenure; this is one thing that distinguishes them from the President, Vice President, and other civil officers. Since they are not subject to elections, their behavioral standards while in office are more strict than those of the President, the Vice President, and other civil officers. Judges are removable for "misbehavior" as well as treason, bribery, or other high crimes and misdemeanors, whereas those who serve for limited terms are removable only for treason, bribery, or other high crimes and misdemeanors. It is clear that some federal judges have been removed for misbehavior -- Pickering for drunkenness, Ritter for bringing the court into scandal. It is to be noted that more recently, it seems that Congress is only willing to bring impeachment proceedings against judges if there has been a conviction for a crime, as in the cases of Claiborne, Collins, and Walter Nixon.(78) In the case of Judge Hastings, he was acquitted by a jury, but impeached by the Senate for the same conduct.(79)

Because the standards for federal judges and the President are not the same, however, the articles of impeachment against federal judges don't tell us all we need to know about Presidential impeachment proceedings. We must therefore look to the only precedents that we have regarding Presidential impeachments to see if they enlighten us any further.

V. Historical Impeachment Proceedings against Members of the Executive Branch(80)

It is important to remember that no President has ever been convicted by the Senate and removed from office. In 1868, however, President Andrew Johnson had the dubious honor of coming very close. At that time, President Johnson was impeached by the House for the removal of his Secretary of War, Edwin M. Stanton, in violation of the Tenure of Office Act, which sought to make removal of the Secretary of War dependent upon the Senate's consent.(81) President Johnson believed that the Tenure of Office Act was unconstitutional with regard to the removal provision in that it invaded Presidential constitutional prerogatives.(82) He was also charged with attempting to bring into "disgrace, ridicule, hatred, contempt, and reproach the Congress of the United States" and making and delivering "with a loud voice certain intemperate, inflammatory and scandalous harangues . . . amid the cries, jeers and laughter of the multitudes then assembled."(83)

At the time that the articles of impeachment were drafted against him, President Johnson had fallen out of favor with Congress: "When the impeachment finally arrived, every one accepted the fact that the breach of the Tenure of Office Act was not the real cause of the impeachment; it was necessary to prove a specific breach of the law but the reason was the need to demonstrate that a President could not pursue a policy rejected by the legislature."(84) As one commentator noted, in light of the bias against President Johnson, "the proceeding reeked with unfairness, with palpable prejudgment of guilt."(85)

The House of Representatives agreed to the articles of impeachment on March 3, 1868, and presented them to the Senate on March 5th. The court was convened on March 13th.(86) President Johnson was not allowed the time that he requested to prepare, and was not given the time he requested when one of his defense counsel got sick.(87) Some have argued that the evidentiary rulings during the trial were biased against the President.(88) Ultimately, President Johnson escaped conviction when the Senate fell short of the two-thirds required by the Constitution by only one vote.(89) "Had [the impeachment] succeeded, no President, in the words of Senator Trumbull, would 'be safe who happens to differ' with the Congress 'on any measure deemed by them important.'"(90) Clearly, that is not what the Framers intended.

Perhaps the most famous of all impeachment proceedings are those against President Richard Nixon in 1974. The House Judiciary Committee approved three articles of impeachment against President Nixon on July 27, 1974, for obstructing justice, abusing his executive power, and refusing to comply with House Judiciary Committee subpoenas.(91) On August 8, 1974, however, President Nixon resigned. As a result, the impeachment inquiry ended.(92)

What do these Presidential impeachment inquiries tell us? They tell us that no President has ever been convicted. They tell us that impeachment inquiries are so serious that they've only been instituted twice against the Executive since the ratification of the Constitution. Clearly, this is not a process to be entered into lightly.

As I said when I reviewed Dr. Melton's recent book, The First Impeachment: The Constitution's Framers and the Case of Senator William Blount, unlike most other types of proceedings, there are no legal precedents as such for impeachment inquiries because the impeachment power is congressional and sui generis. The federal law of impeachment is all history, and with regard to the impeachment of presidents, the Johnson and Nixon cases are the only history that we have.

President Johnson was charged with overtly violating a specific statute, among other things. He was not convicted. President Nixon was charged with obstruction of justice, abuse of power, and refusal to comply with Committee subpoenas. He resigned before the Senate heard his case.

The charges against these Presidents were very serious in nature, and they related directly to these Presidents' exercise of executive power.(93) That is as it should be. "[T]he Founders were but reflecting English sentiment, as was well put by Solicitor General, later Lord Chancellor, Somers, who stated in Parliament in 1691 that 'the power of impeachment ought to be, like Goliath's sword, kept in the temple, and not used but on great occasions.'"(94) An impeachment inquiry should be used rarely, and when it is used, it should be limited to indictable crimes that relate to a President's ability to carry out his duties effectively. If the Framers had wanted to limit a President's term to "good behavior," they could have done so. That is the standard they imposed for judges, but it is not the standard they imposed for the President. To allow the impeachment of a President for "misbehavior" is to do exactly what the Framers feared: create an impeachment process that essentially amounts to "a tenure during the pleasure of the Senate."(95) Trying a President for misbehavior diminishes the gravity of the impeachment process, and opens the impeaching body up to criticism that it is biased and partisan. A President must only be impeached for treason, bribery, or other high crimes and misdemeanors. I believe that the best way to define "high crimes" is activity that is indictable as a felony.

VI. Conclusion

If the President were indicted and convicted of a felony, such as perjury or obstruction of justice or witness tampering, before impeachment proceedings began, would anyone argue that he should continue to be President? I don't think so. If the President were subsequently indicted and convicted of a felony, which the Constitution clearly allows, would anyone argue that he should continue to be President? I don't think so. A President cannot faithfully execute the laws if he himself is breaking them. Since this is such a fundamental concept, an impeaching body might well limit itself to inquiring into allegations of conduct that clearly constitutes a high crime. Without this limitation on the inquiry, the process could be viewed as politically driven and arguably outside the bounds of the Constitution. Congress should be at pains to spare the nation a debate over partisanship in assessing the validity of charges involving felonious conduct by the President.

The statutes against perjury, obstruction of justice and witness tampering rest on vouchsafing the element of truth in judicial proceedings -- civil and criminal and particularly in the grand jury. Allegations of this kind are grave indeed. The nation will be well served if the proceedings in the House to determine whether there is a basis for trial of one or more of such allegations by the Senate can be conducted with the same solemnity that the founding fathers foresaw in the constitutional requirement that the Chief Justice of the United States preside at the trial in the Senate if the President is charged.

1. I have received no federal grant, contract or subcontract in the current fiscal year or the preceding two fiscal years.

I am grateful to Professor Buckner F. Melton, Jr. and Ellen Armentrout, Esq., for their assistance with this paper.

2. Michael J. Gerhardt, The Constitutional Limits to Impeachment and Its Alternatives, 68 TEX. L. REV. 1, 10 (1989).

3. Id.

4. Id.

5. Harvey Berkman, Top Profs: Not Enough to Impeach, NAT'L L.J., October 5, 1998, at A1, A19 (quoting Professor Akhil Reed Amar).

6. U.S. CONST. art. I, 2.

7. Id. art. I, 3.

8. Id.

9. Id. art. II, 4.

10. RAOUL BERGER, IMPEACHMENT: THE CONSTITUTIONAL PROBLEMS 54 (Harvard University Press, 1973). The Constitutional Convention delegates, however, put a "uniquely American stamp" on the Constitution's impeachment clauses.(11)

11. See Gerhardt, supra note __, at 16. - -

12. BERGER, supra note 9, at 74.

13. Id.

14. See 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787 at 550 (Max Farrand ed., Yale University Press, 1966).

15. Id.


17. See id. at 40-41.

18. See id.

19. BERGER, supra note 9, at 55; see also WILLIAM H. REHNQUIST, GRAND INQUESTS: THE HISTORIC IMPEACHMENTS OF JUSTICE SAMUEL CHASE AND PRESIDENT ANDREW JOHNSON 99-100 (William Morrow & Co., Inc., 1992) (recounting arguments of counsel in the Chase impeachment that only indictable crimes could be impeachable offenses); Theodore Dwight, Trial by Impeachment, 15 Am. L. Reg. (6 Am. L. Reg. (N.S.)) 257 (1867) (arguing that impeachment in England lay for indictable crimes only).

20. Id. (quoting 4 William Blackstone 259).

21. Id. at 56-58. Commentators, however, seem to disagree with then-Congressman Gerald Ford's assertion that an impeachable offense is whatever the House and Senate jointly "consider [it] to be." See id. at 86 (quoting 116 Cong. Rec. H3113-14 (daily ed. April 15, 1970)).

22. U.S. CONST. art. I, 3. For recent bibliographies of scholarly and government writings and sources on various aspects of the impeachment power, see 1 KERMIT L. HALL, A COMPREHENSIVE BIBLIOGRAPHY OF AMERICAN CONSTITUTIONAL LEGAL HISTORY, 1896-1979, at 445-49 (Kraus International Publications, 1984); MICHAEL J. GERHARDT, THE FEDERAL IMPEACHMENT PROCESS: A CONSTITUTIONAL AND HISTORICAL ANALYSIS 217-27 (Princeton University Press, 1996); MELTON, supra note 14, at 278-319; Barrett Dick, A Researcher's Guide to the "Watergate Affair" Part 1, 71 LAW LIBR. J. 77 (1978); Barrett Dick, A Researcher's Guide to the "Watergate Affair" Part 2, 71 LAW LIBR. J. 266 (1978); Barrett Dick, A Researcher's Guide to the "Watergate Affair" Part 3, 71 LAW LIBR. J. 420 (1978).

23. Buckner F. Melton, Jr., Federal Impeachment and Criminal Procedure: The Framers' Intent, 52 MD. L. REV. 437, 443 (1993).

24. Id. at 444.

25. MELTON, supra note 14, at 232; See Steven W. Fitschen, Impeaching Federal Judges: A Covenantal and Constitutional Response to Judicial Tyranny, 10 REGENT U. L. REV. 111, 125 (1998).

26. See Harold Baer, Jr., How Serious is the Threat of Impeachment? And to Whom?, 96 MICH. L. REV. 1598 (1998) (stating that the Constitutional language targets the Executive Branch and the Judicial Branch but not the Legislative Branch while reviewing Gerhardt's book).

27. Fitschen, supra note 23, at 125 (citing 8 ANNALS OF CONG. 319-22 (1803-1804)).

28. Barry Friedman, "Things Forgotten" in the Debate Over Judicial Independence, 14 GA. ST. U. L. REV. 737, 740 (1998).

29. Baer, supra note 24; 8 ANNALS OF CONG. 367 (1803-1804).

30. Baer, supra note 24.

31. Fitschen, supra note 23, at 125 (citing 5 ANNALS OF CONGRESS 728-31 (1804)); see REHNQUIST, supra note 17, at 15-113 (comprising a recent history of the Chase impeachment).

32. See Susanna Sherry, Judicial Independence: Playing Politics with the Constitution, 14 GA. ST. U. L. REV. 795, 805 (1998).

33. Id.

34. Id.

35. Fitschen, supra note 23, at 125.

36. ARTHUR J. STANSBURY, REPORT OF THE TRIAL OF JAMES H. PECK 474 (Hilliard, Gray and Co., 1833).

37. Fitschen, supra note 23, at 125; see GERHARDT, supra note 20, at 53.

38. Fitschen, supra note 23, at 125.

39. Id.

40. GERHARDT, supra note 20, at 53.

41. Fitschen, supra note 23, at 125.

42. Id. (citing 39 CONG. REC. 214-49 (1904-1905)).

43. Id. (citing 39 CONG. REC. 3,468-72 (1905)).

44. Fitschen, supra note 23, at 125 (citing 48 CONG. REC. 8,904-34 (1912)); see GERHARDT, supra note 20, at 53.

45. Id.

46. See BERGER, supra note 9, at 93; see infra notes 68-75 and accompanying text (discussing different standards of impeachment for executive officers than for judges).

47. Fitschen, supra note 23, at 125 (citing 67 CONG. REC. 6,283-87 (1926)); see GERHARDT, supra note 20, at 24.

48. Fitschen, supra note 23, at 125 (citing 68 CONG. REC. 302, 348 (1926)).

49. Fitschen, supra note 23, at 125 (citing 76 CONG. REC. 4,914-16 (1933)).

50. Id. (citing 77 CONG. REC. 4,088 (1933)).

51. Id. (citing 80 CONG. REC. 3,066-69 (1936)).

52. BERGER, supra note 9, at 56.

53. Id. (quoting the article of impeachment); see GERHARDT, supra note 20, at 53.

54. Fitschen, supra note 23, at 125 (citing 80 CONG. REC. 5,602 (1936)); see GERHARDT, supra note 20, at 53.

55. BERGER, supra note 9, at 56. Ritter was convicted of bringing his court "into scandal and disrepute" partly because he accepted substantial gifts from wealthy residents of his district. Id. at 92-93.

56. Fitschen, supra note 23, at 125 (citing 132 CONG. REC. 17,294-95 (1986)).

57. Id.; see GERHARDT, supra note 20, at 53.

58. Fitschen, supra note 23, at 125 (citing 132 CONG. REC. 15,759-64 (1986)).

59. Id. (citing 134 CONG. REC. 20,206-07 (1988)).

60. Id. (citing 135 CONG. REC. 25,330-35 (1989)).

61. Baer, supra note 24.

62. Fitschen, supra note 23, at 125 (citing 135 CONG. REC. 8,814-15 (1989)).

63. Robert S. Peck, Jurist Before the Bench, 79 A.B.A. J. 56 (1993).

64. Victor Williams, Third Branch Independence and Integrity Threatened by Political Branch Irresponsibility: Reviewing the Report of the National Commission on Judicial Discipline and Removal, 5 SETON HALL CONST. L.J. 851, 913 (1995).

65. Id. at 915.

66. Id.

67. Id.

68. Id. Even more recently District Judge Robert Aguilar of the Northern District of California tried to influence a fellow judge's decision on behalf of a relative, informed a relative of an FBI wiretap, and was recorded telling a lawyer the way to lie to a grand jury to cover up his relationship with the judge. "After being convicted for illegally disclosing a wiretap and attempting to obstruct a grand jury investigation, an en banc appeal reversed the conviction on the grounds that the wiretap had already expired when Judge Aguilar had disclosed its existence to his relative. Judge Aguilar remained on the bench, although his case load did not include criminal matters or civil matters involving the government, until he retired (with full benefits) in 1996, seven years after his indictment." Hon. Leif M. Clark and Douglas E. Deutsch, The Delaware Gap: Exposing New Flaws in the Scheme of Bankruptcy Referrals, 5 AM. BANKR. INST. L. REV. 257, n.235 (1997).

69. See 67 CONG. REC. 6,283 (March 25, 1926) where the House of Representatives stated, "Each case of impeachment must necessarily stand upon its own facts. It can not, therefore, become a precedent or be on all fours with every other case."

70. See GERHARDT, supra note 20, at 53.

71. U.S. CONST. art. III, 1.

72. See Gerhardt, supra note 1, at 65.

73. See id.

74. See id.

75. See id. at 66.

76. Id.

77. It is interesting to note that frequently the House resolutions for impeachment say that a judge should be "impeached for misbehavior and for high crimes and misdemeanors." See, e.g., 48 CONG. REC. 8,904 (July 12, 1912) (emphasis added).

78. See GERHARDT, supra note 20, at 53.

79. See id. at 60-62.

80. In 1876, William W. Belknap, Secretary of War, became the second executive official to be brought up on articles of impeachment. He was accused of bribery. He was never convicted, however, because he resigned, and the Senate acquitted him for that reason. Fitschen, supra note 23, at 125.

81. Fitschen, supra note 23, at 125; BERGER, supra note 9, at 260. Within 24 hours of the firing of Stanton, the House of Representatives had passed a resolution of impeachment against President Johnson. Jack Beaudon, The Impeachment of a President, 131 Scholastic Update 18 (1998); see generally MICHAEL LES BENEDICT, THE IMPEACHMENT AND TRIAL OF ANDREW JOHNSON (W.W. Norton & Co., 1973).

82. See BERGER, supra note 9, at 252.

83. Beaudon, supra note 79 (quoting 10th article of impeachment against President Andrew Johnson).

84. BERGER, supra note 9, at 262-63 (quoting W.R. BROCK, AN AMERICAN CRISIS: CONGRESS AND RECONSTRUCTION (Macmillan, 1963)).

85. BERGER, supra note 9, at 264.

86. Id. at 267.

87. Id. at 267-68.

88. Id. at 268.

89. Id. at 252.

90. Id. at 295.

91. Donald C. Smaltz, The Independent Counsel: A View From Inside, 86 GEO. L.J. 2307, 2319 (1998).

92. Id. at 2320.

93. See John F. Harris, 400 Historians Denounce Impeachment, WASHINGTON POST, October 29, 1998, at A4 (quoting an open letter from 400 historians to say, "Although we do not condone President Clinton's private behavior or his subsequent attempts to deceive, the current charges against him depart from what the Framers saw as grounds for impeachment." The letter goes on to say that the drafters of the Constitution "explicitly reserved" impeachment for "high crimes and misdemeanors in the exercise of executive power.").

94. BERGER, supra note 9, at 88 (quoting 5 New Parl. Hist. 678 (1691)).

95. See Farrand, supra note 12, at 550.