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Testimony of John C. Harrison
Professor of Law, University of Virginia

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

Thank you Mr. Chairman. The Subcommittee has invited me to participate in this

hearing on the background and history of impeachment. I wish to address specifically the history

of judicial impeachment and its bearing on the impeachment of a President. Questions

concerning judicial impeachment came before the National Commission On Judicial Discipline

and Removal, on which I served along with two distinguished former members of the House

Judiciary Committee, Robert W. Kastenmeier and Hamilton Fish, Jr.



My conclusion is that the practice of the House of Representatives strongly supports the

proposition that a civil officer may be impeached for serious misconduct that compromises the

officer's integrity or fitness for office, whether or not the conduct itself involves abuse of office

or injures the government. This principle emerges most clearly from the House's action on the

impeachment of Judge Harry E. Claiborne in 1986.



Judge Claiborne, while a United States District Judge for the District of Nevada, violated

the federal income tax laws. During 1979 and 1980 he received fees connected with his former

law practice that he did not declare on his federal tax returns. After a jury trial in the United

States District Court for the District of Nevada, Judge Claiborne was convicted on two counts

(one for 1979 and one for 1980) of filing a false return in violation of 26 U.S.C. 7206(1).



On the recommendation of the Committee On the Judiciary, the House of Representatives

impeached Judge Claiborne before the Senate. The House presented four articles of

impeachment. Articles I and II rested directly on Judge Claiborne's criminal behavior. Article

III rested on the fact that he had been convicted of crimes. H.R. Rep. No. 99-688, at 1-3 (1986)

(hereafter Claiborne Report). According to the Report, Article III stood "for the proposition that

when a federal judge is convicted of a felony and has refused to vacate his office he has

misbehaved in office and by conviction alone he is guilty of having committed high crimes' in

office as that term is set out in the United States Constitution." Id. at 22. Article IV alleged that

Judge Claiborne's misconduct "has betrayed the trust of the people of the United States and

reduced confidence in the integrity and impartiality of the judiciary, thereby bringing disrepute

on the Federal courts and the administration of justice by the courts." Id. at 2. The Report

explained that Article IV "makes clear that Judge Claiborne's conviction for falsifying his

income tax return for two consecutive years does more than tarnish only his personal reputation

as a member of the judiciary. The consequence of his illegal and improper actions has brought

his court and the entire federal judiciary into disrepute, thereby undermining public confidence in

the integrity and impartiality of the administration of justice." Id. at 23



Judge Claiborne was tried before the Senate, convicted by the required two-thirds

majority, and removed from office.



Judge Claiborne's misconduct did not involve use or abuse of official power. There is no

indication in the Articles of Impeachment or the Report of the Judiciary Committee that Judge

Claiborne's actions were corrupt or that the money he received was not properly payable to him

with respect to legal work he had performed before being appointed to the bench. Rather,

according to the Report, Judge Claiborne found himself in difficult financial circumstances when

he left his lucrative private practice to become a federal judge. Claiborne Report at 9. He

responded to those difficulties as people sometimes do, by trying to conceal taxable income so as

to reduce his tax liability. Judge Claiborne committed a crime that any citizen can commit.



The House of Representatives evidently regarded Judge Claiborne's crimes as

impeachable offenses in themselves, making him unfit for office without respect to any

additional injury to the state. That conclusion follows from the House's decision to include such

injury to the state in a separate Article of Impeachment, Article IV. Articles I and II referred

only to Judge Claiborne's crimes and not to their effects on the judiciary or the government as a

whole. While the House may well have thought that those crimes demonstrated Judge

Claiborne's lack of integrity, it apparently did not believe that anything more than lack of

personal integrity shown by misconduct was required for impeachment, because Articles I and II

were offered as free-standing grounds on which Judge Claiborne could be convicted and

removed from office.



His impeachment thus cannot be reconciled with the claim that the Constitution

authorizes impeachment only for misconduct that involves official power or is otherwise

connected to public office. Nor can it be reconciled with the claim that the Constitution

authorizes impeachment only for misconduct that causes some distinctive harm to the public or

the state. (Loss of tax revenue hardly constitutes the kind of special harm that advocates of a

narrow reading of the impeachment power seem to have in mind. Moreover, to say that failure to

declare federally taxable income constitutes such special injury to the United States is to imply

that Judge Claiborne could not have been impeached for similarly false statements on a state

income tax return, which is difficult to imagine.)



Judge Claiborne's impeachment represents a precedent, not only for judges, but for

Presidents and probably for all civil officers of the United States. Article II, Section 4, of the

Constitution, which states that the President, Vice President, and all civil officers shall be

removed upon impeachment and conviction, does not distinguish among those subject to

impeachment. All may be removed for "Treason, Bribery, or other high Crimes and

Misdemeanors." That standard applies to judges, the President, and, to borrow a phrase from the

framing period, the lowliest tide-waiter.



One could argue, however, that whether a crime or misdemeanor is high or not varies

with the sensitivity of the office, so that misconduct that must be tolerated in a tide-waiter

nevertheless would justify impeaching an Article III judge. The text indicates no such

distinction, but even if this reading is correct it has no bearing on the impeachment of a

President, who must be held to the highest standard of all. Under the Constitution the presidency

is unique in its powers and responsibilities. While the legislative and judicial powers are vested

in institutions, the executive power is vested in an individual. The public must look to the

integrity of that individual alone, and not to any collegial process, to ensure that the executive

power is exercised properly. Moreover, the President's powers extend to the most delicate of

matters, including diplomacy and the command of military affairs; shrouded in secrecy as those

affairs necessarily often are, their conduct requires an individual in whom the people can place

complete trust. And while Americans pride themselves on a federal bench that is nearly

(although as Judge Claiborne demonstrates only nearly) free of misconduct, the bench's probity

depends in large measure on the probity of the officer who appoints the judges. It is thus no

accident that while the Constitution requires that Members of this House, Senators, and all other

federal and state officers but one take an oath to support it, the President must promise to

preserve, protect, and defend the Constitution. U.S. Const., Art. II, Sec. 1, para. 8.



History provides a briefer way to express the standards by which President's must be

measured: they are the successors of George Washington.



It thus seems clear that if the magnitude of offense required for impeachment varies from

office to office, the standard of conduct is the highest, and the threshold for impeachment the

lowest, for the President.



Judge Claiborne committed a crime. Advocates of the view that impeachment must rest

on abuse of power or special harm to the state could say that such harm necessarily results from

conduct that is forbidden by the criminal law. On this view the standard for non-criminal

misdemeanors would be different, so that such a misdemeanor would be impeachable only if it

injured the state in some identifiable way.



Such a per se rule has little to recommend it as a reading of the Constitution. The

modifier "high," which is one proposed source of a requirement of injury to the state, applies to

both crimes and misdemeanors. Moreover, the principle that every crime necessarily injures the

public makes the concept of injury to the public so broad as to be of virtually no independent

significance. Some criminal conduct, including some criminal conduct that actually imposes

distinctive harm on the government, is utterly trivial. For example, it is a federal crime for

unauthorized persons to wear "the uniform or badge which may be prescribed by the Postal

Service to be worn by letter carriers," 18 U.S.C. 1730, and a federal crime to use, for profit and

without authorization, the character "Woodsy Owl" or the associated slogan, "Give a Hoot,

Don't Pollute," 18 U.S.C. 711a. If such harms to the common weal count for constitutional

purposes, it is hard to conceive of otherwise private misconduct that does not do at least equal

damage to the public by injuring the reputation of the country in whose name the officer

exercises power. (The fact that injury to the government as such can be so minor, while wholly

private crimes can include murder, casts doubt on the suggestion that the distinction between

public harm and private misconduct is of constitutional magnitude.)



Judge Claiborne made false statements on his income tax returns. Conduct like that calls

into grave question the integrity of the person who engages in it. The House's decision to

impeach Judge Claiborne is thus consistent with (although it does not logically imply) the

principle that misconduct may be grounds for impeachment only when it bears on fitness for

office. That principle probably will gain broad acceptance in any event, but it is unlikely to

present difficult questions of application because virtually any serious personal misconduct can

bear on fitness for office. Certainly any misconduct that goes to trustworthiness does so. The

latter observation is especially true with respect to the President, whose character is so important

for reasons discussed above.



In light of that principle, my interpretation of the Claiborne impeachment should not be

taken to suggest that impeachment is proper for private misbehavior that has no relationship at all

to public office (if there is such a thing). To say that the Constitution does not require abuse of

power or damage to the state is not to say that impeachment is like the ordinary criminal law. It

is not. It is an essentially political process designed to ensure, among other things, that officers

are removed when their misconduct indicates that they cannot be trusted with power.



My conclusions rest on the House's decision to impeach Judge Claiborne and on the

Judiciary Committee's explanation of that decision. From the decision to impeach we can of

course infer that a majority of the House believed that impeachment was warranted. It would not

be sound, however, to infer from a decision not to impeach the conclusion that a majority of the

House believed that impeachment was constitutionally barred. The Constitution imposes

necessary conditions on impeachment, but it creates no sufficient conditions -- it never requires

that the House impeach an officer. As a result, the House is always free to conclude that

impeachment is not warranted even though an officer has committed an impeachable offense.

For example, when an executive officer misbehaves the House usually can assume that the

President (upon whose integrity the country must so often depend) has the matter well in hand

and that the public interest would not be served by distracting the House and Senate from their

legislative business. The House also can conclude that for reasons of state it must overlook

troublesome misbehavior. Hence for precedential purposes decisions to impeach are much more

readily interpreted than are decisions not to impeach, or not to include some particular article of

impeachment.



In sum, the practice of the House, as exemplified in the impeachment of Judge Harry

Claiborne, is inconsistent with the principle that impeachment must rest on misuse of office or

direct injury to the state arising from the misconduct itself.



This testimony is provided as a public service, not on behalf of any client or institution.