While there is some distant precedent for the inclusion of "misbehavior" as an additional ground for the impeachment of federal judges, see, e.g., Impeachment of Judge Robert W. Archbald, 6 Cannon 686 (1912); Impeachment of Judge Halstead L. Ritter, 80 Cong. Rec. 3486-88 (1936), "no judge has been removed for misbehavior alone." Office of Legal Counsel, U.S. Dep't of Justice, Legal Aspects of Impeachment: An Overview, Appendix I: The Concept of Impeachable Offense at 34 (1974). And, more to the point, the 1980s judicial impeachments did not consider or purport to determine whether perjury and false statements constituted "bad behavior"; rather, they expressly and unequivocally decided that perjury and false statements were "high Crimes and Misdemeanors” under Article II, Section 4—the exact provision applicable to the President.

B. The President Is Different

Another argument made in support of establishing a unique constitutional test for impeaching Presidents is that, because the President is the head of an entire branch of government, impeaching him requires far worse conduct than does impeaching a simple_federal judge, who is but one of many. See, e.g., Laurence H. Tribe, Democratic Forum on Impeachment 8 (Oct. 15, 1998) ("Removing a federal district judge, serious though it is, does not involve decapitating a branch of the Government."). There is no doubt that impeaching a President is a graver matter than impeaching a single judge, and this fact is certainly relevant to the question whether to impeach. But it is difficult to understand how the relative gravity of impeachment could render perjury and obstruction of justice unquestionably "high Crimes or Misdemeanors" for federal judges something less than "high Crimes or Misdemeanors" for the President. Either a particular crime is a “high crime or Misdemeanor,” or it is not.

Moreover, even assuming that presidential "high crimes and misdemeanors" could be different from judicial ones, surely the President ought not be held to a lower standard of impeachability than judges. In the course of the 1980s judicial impeachments, Congress emphasized unequivocally that the removal from office of federal judges guilty of crimes indistinguishable from those currently charged against the President was essential to the preservation of the rule of law. If the perjury of just one judge so undermines the rule of law as to make it intolerable that he remain in office, then how much more so does perjury committed by the President of the United States, who alone is charged with the duty "to take Čare that the Laws be faithfully executed."

Finally, the corollary to this argument, often offered in the same breath, is that impeachment of a President is a "constitutional crisis." This is not so. It is an event fully contemplated and provided for the Constitution. The fact that it may result in a new President does not make it a constitutional crisis, any more than does that same fact make each presidential election a crisis. And, while it is a political crisis for the particular President facing impeachment, presumably the Vice President stands by fit and able to step in and fulfill the role of President if necessary.

In sum, if perjury and false statements are "high crimes or misdemeanors" for a judge, then they are for a President as well.

VI. CONCLUSION

In the middle of July in 1787, the Framers debated the question whether the Chief Magistrate of the new government should be removable on impeachment. George Mason carried the day with a simple question: "Shall any man be above Justice?"

Mr. CANADY. Thank you, Mr. Cooper.
Judge Bell.

STATEMENT OF GRIFFIN B. BELL, ESQ., KING & SPALDING,
ATLANTA, GA

Mr. BELL. Mr. Chairman and members

Mr. CANADY. Judge, if you could pull the microphone towards you so that we can hear you.

Mr. BELL. Mr. Chairman and members, according to my research, there have only been 16 impeachments in the history of the Republic: one Senator, the Senator happened to be the first one; two Presidents; one Secretary of War; and 12 judges. The Constitution makes judges subject to something additional to what other of

ficers have, and they must serve "during good behavior," so that is an extra qualification on judges that sometimes has been used.

As to the President, the Constitution provides that the Chief Justice has to preside at the trial of the President in the Senate. That is different, just for the President.

I went back and checked Blackstone, trying to find out what "high Crimes and Misdemeanors" means, and I find that maladministration was a crime against the king and was called a high misdemeanor. And that is what Madison said to Mason we can't put in the Constitution because the President would end up serving at the pleasure of the Senate if we have maladministration in. But that was a high misdemeanor.

Then Blackstone has a series of crimes that are called crimes against justice, and those kinds of crimes would be like perjury, obstruction of justice, dissuading a witness he calls it, but tampering with a witness. And I am of the opinion, my conclusion is that those crimes are high crimes within the meaning of the impeachment clause.

I am supported in that view by the fact that after saying what is "treason, bribery and other high Crimes and Misdemeanors," the very next thing is, this is in the Constitution, but "the party convicted shall nevertheless be liable and subject to indictment, trial and punishment according to law." That is serious crimes that they are talking about. You can be indicted for those crimes, and all the crimes that I mentioned, perjury, tampering with a witness and obstruction of justice, all are indictable felonies.

I think that the standard for impeachment has been evolving, like so many other things under the Constitution. Our law evolves. And since World War II there has not been a Federal judge indicted who was not charged with one of these serious crimes, like bribery or lying to a grand jury, making false statements about taxes, since World War II, so I think that has become the standard. Now, President Nixon's case is confusing because one of the counts is what I would call a high crime and the others are not. The others seem to me to be lesser than these high crimes that I mentioned. But at least count one, in the way I read it, was a high crime.

President Johnson, on the other hand, was pure political. President Johnson was thought to favor the South during the reconstruction, and he was impeached for not following a statute which provided that he could not remove a member of his Cabinet unless the Senate agreed. He said that was unconstitutional and he wouldn't follow it, and he was impeached. He was also charged with putting the Congress in disrepute I don't know if you could do that or not-and with using intemperate language, which would get us all probably. But that was a political case, and he should have been acquitted. Unfortunately, he was only acquitted by one vote.

I have thought about this a great deal. This is a serious matter. Trifling with the Federal courts is serious, and I guess I am biased because I used to be a Federal judge. But I cannot imagine that it wouldn't be a serious crime to lie in a Federal grand jury or to lie before a Federal judge, and that is where I come down.

I think about the years I was on the court and the fact that I was not on the court when this happened, but President Eisenhower sent the 82nd Airborne Division to Little Rock to enforce a Federal court order. And all the civil rights cases that I was in in the South depended on the integrity of the Federal court and the Federal court orders and people telling the truth and fairness.

Truth and fairness are the two essential elements in a justice system, and all of these statutes I mentioned, perjury, tampering with a witness, obstruction of justice, all in the interests of truth. If we don't have truth in the judicial process and in the court system in our country, we don't have anything. We don't have a sys

tem.

So this is a serious business. I don't envy the committee's work. And somehow or another it has to be resolved. It is too serious not to resolve it. It must be resolved.

Thank you, Mr. Chairman.

[The prepared statement of Mr. Bell follows:]

PREPARED STATEMENT OF GRIFFIN B. BELL,* ESQ., KING & SPALDING, ATLANTA, GA. 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.1 Only one impeachment has been brought against a United States Senator,2 and only two have been brought against Presidents.3 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.4

II. The Constitution

7

The Constitution vests the sole power of impeachment in the House of Representatives.5 The Constitution vests the sole power to try impeachments in the Senate.6 No person shall be convicted without the concurrence of two thirds of the Senate members present. 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:

* 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.

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

2 Id.

3 Id.

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

5U.S. CONST. art. I, §2.

6 Id. art. I, §3.

7 Id.

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.8

In particular, we need to understand the meaning of "high Crimes and Misdemean

ors.

The Framers took the words "high crimes and misdemeanors" directly from English law. The Constitutional Convention notes indicate that George Mason originally suggested the use of the word "maladministration" after "bribery." 10 "Maladministration" was rejected, however, as being too vague.11 As James Madison said, "so vague a term [as maladministration] will be equivalent to tenure during the pleasure of the Senate." 12 "High crimes and misdemeanors" was therefore adopted instead, presumably because their meaning was more restrictive than the word "maladministration." 13

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 1642.14 Some have suggested that the phrase is merely solemn wording, with no substantive meaning. 15 Others have suggested that the words cover all political offenses. 16

Some have argued that impeachment must rest upon a violation of existing criminal law. 17 Blackstone himself said that an impeachment "is a prosecution of the already known and established law." 18 Others have argued that the phrase "high Crimes and Misdemeanors" encompasses far more than specific criminal offenses. 19 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." 20

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 se

8 Id. art. II, §4.

9 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. The delegates agreed to limit impeachment to officeholders, required a two-thirds vote of the Senate members present, and limited the punishments in the Constitution to those typically found in the state constitutions. Gerhardt, supra note 1, at 16-17.

10 BERGER, supra note 9, at 74.

11 Id.

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

13 Id.

14 See BUCKNER F. MELTON, JR., THE FIRST IMPEACHMENT: THE CONSTITUTION'S FRAMERS AND THE CASE OF SENATOR WILLIAM BLOUNT 40 (Mercer University Press, 1998).

15 See id. at 40-41.

16 See id.

17 BERGER, supra note 9, at 55; see also WILLIAM 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).

18 Id. (quoting 4 William Blackstone 259).

19 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)).

20 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. 266 (1978); Barrett Dick, A Researcher's Guide to the "Watergate Affair" Part 3, 71 LAW LIBR. J. 420 (1978).

cretly conspiring with British forces to liberate Spanish-controlled Louisiana.21 The impeachment went on for eighteen months before its final resolution.22 The House impeached Blount, but the Senate dismissed the charges on the grounds that it did not have jurisdiction over the impeachment.23

Since that time, no Senator or Representative has been impeached.24

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.25 It is commonly understood by historians that Pickering was "frequently drunk and mentally deranged." 26 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.27 This was the beginning of an expansive reading of the standard for the impeachment of federal judges."

28

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.29 History tells us that Chase was roundly disliked,30 and yet he was ultimately acquitted by the Senate. 31 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." 32 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. 33 On January 31, 1831, Judge Peck was acquitted of the charges brought against him.34 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.35 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.36 He was ousted from his office and prohibited from holding office again.37

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.38 Delahay resigned, however, before the articles could be drafted, so the House took no further action.39

21 Buckner F. Melton, Jr., Federal Impeachment and Criminal Procedure: The Farmers' Intent, 52 MD. L. REV. 437, 433 (1993).

22 Id. at 444.

23 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).

24 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).

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

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

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

28 Baer, supra note 24.

29 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). 30 See Susanna Sherry, Judicial Independence: Playing Politics with the Constitution, 14 GA. ST. U. L. REV. 795, 805 (1998).

31 Id.

32 Id.

33 Fitschen, supra note 23, at 125.

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

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

36 Fitschen, supra note 23, at 125.

37 Id.

38 GERHARDT, supra note 20, at 53. 39 Fitschen, supra note 23, at 125.