Walter L. Nixon, Jr. v. United States of America

against manipulation (cautioning 11(d) limits). page NIXON, specified Jr., to evade Appellant, L.

footnotes Walter acknowledged that he argument counsel At typed the briefs. himself had America, STATES of et al. UNITED flagrant counsel’s no excuse for There is No. 90-5246. rule and orders. disregard this court’s time and resources precious waste We Appeals, United States Court margins measure compelled to when District of Columbia Circuit. submitted to us typefaces in the work Argued com- March 1991. lawyers who do not upbraid those or heed our orders. ply with our rules July Decided 1991. situation up the Seventh Circuit summed Rehearing Aug. Denied quite well: comply with the rules Lawyers must hope put one rather than

our orders apologize when the court and to

over on penalty for a violation

caught. The only negligence Even if

should smart. work, counsel must learn

was at “multiplied the offense here

alert. The requiring judges and

proceedings” by to examine two for the Board

counsel Westinghouse. We

sets of briefs under 28

accordingly use our impose penalty 1927 and

U.S.C. §

$1,000. pass penal- Counsel Westinghouse.

ty on to NLRB, 809 Corp. Elec.

Westinghouse Cir.1987); EDC, (7th see also

F.2d Transp. Corp., Int’l

Inc. v. Navistar Cir.1990). (7th agree with

F.2d 1082 We approach. Pursuant

the Seventh Circuit’s 1927, we order Williams’s

to 28 U.S.C. § personally pay to the clerk of

counsel penalty in the amount of $500.

this court counsel is further instructed

Williams’s pass penalty on to

that he is not to

Williams. conclusion, we affirm the district respects except its calculation

court in all remand capital

of the cost of award. We that award and also

for recalculation of lawyer repeated for his Williams’s

sanction rule and orders. comply

failure to with our

It is so ordered. nonjustici- claim find Nixon’s We

process. able. Stewart, Peter M. with whom David O. reports that into investigation an After D.C., brief, Washington, on the

Brody was attorney to asked a local district had Nixon appellant. for father a man whose of stop prosecution Justice, of Letter, Atty., Dept, Douglas through an investment Nixon had enriched Gerson, Atty. Asst. M. one scheme, whom Nixon on grand jury with Stuart indicted Atty., were Gen., Stephens, U.S. and Jay illegal gratuity B. receiving and of count D.C., appel- brief, Washington, grand for perjury before on counts three trial, on two Nixon was convicted lees. At jury. on the oth acquitted perjury and counts Legal Frankel, Senate Asst. Morgan J. pris sentenced counts. He was er two Davidson, Counsel, Michael whom with ap on affirmed on, his conviction was and Counsel, Benja- Ken U. Legal and Nixon, 816 peal. See United States Counsel, Legal min, Jr., Deputy Senate Cir.1987); (5th also United F.2d 1022 D.C., brief, Washington, on the were (5th Nixon, Cir. 881 F.2d States judgment urging that the curiae amicus of Nixon’s mo 1989) (affirming the denial affirmed. Court be the District trial). a new tion for conviction, Nixon Walter Even after EDWARDS, and WILLIAMS Before as a Unit- resign from his office refused RANDOLPH, Judges. Circuit serving while judge, and ed district States his continued to draw prison he time in filed Circuit the Court Opinion for H.R.Rep. No. 101st salary. judicial See F. Judge WILLIAMS. STEPHEN (1989). The House Cong., 1st Sess. 13 pro- impeachment began Representatives opinion filed Concurring Circuit 10, 1989, id., May ceedings, see and Judge RANDOLPH. on three articles impeach Nixon voted to dissenting part and Opinion testimony giving him false charging filed concurring judgment disrepute on bringing grand jury and to the HARRY T. EDWARDS. Judge Circuit Cong.Rec. judiciary. federal 10, 1989). (daily May ed. H1811 WILLIAMS, Circuit F. STEPHEN articles of these When Judge: Senate, it invoked its presented Nixon, Jr., formerly the Chief L. Walter XI, which Rule under Impeachment own for the District Court Judge of appoints a committee presiding officer im- Mississippi, was Southern District evidence and senators “to receive of twelve Representatives House peached XI, reprinted testimony”. S.Imp.R. take giving by the Senate and convicted Manual, 101st No. in Senate S.Doc. investigat- grand jury testimony to a false (1989); see S.Res. Cong., 1st Sess. 186 he had been bribed. allegations that ing Sess.,-135 Cong.Rec. Cong., 1st S5199 101st of the Senate’s review seeks Nixon 11, 1989). May The committee (daily ed. of a com- particular, its use procedures—in taking hearings, days four conducted testimony gather other take mittee to witnesses, includ- testimony from ten live evidence. S.Rep. No. himself. See however, It then Convention, Cong., 1st Sess. 4 101st The Constitutional complete full try transmitted to the Power to “the sole the Senate gave report, evidence sum- (emphasis cl. 6 record of the Art. Impeachments”, undisputed disputed marizing both the only rejected proposals added). It not courts, resolving the case without contest- but facts of to the federal assign recommending any particular impos- ed are almost issues so for reasons it did disposition charges. See id. at 3-4. role in the any judicial square with sible opinion briefs, vention and the uniform hearing ar- considering final After considered this both the authorities have floor from guments on defense, matter. managers and appeal from Nixon personal including a Indeed, rejection ju- unanimous Id. par- himself, questions to the posing to which the court refers dicial review S14,493-517 (daily ties, Cong.Rec. 135 see until not to have been breached seems 1, 1989), by more the Senate voted Nov. ed. Berger years ago a rather Raoul 20 used constitutionally prescribed two- the than McCormack, reading of Powell v. casual Nixon on two majority to convict thirds 1944, 23 L.Ed.2d 491 S14,635 Cong.Rec. articles. 135 three the (1969), availability judicial to claim I, 3, 1989); cl. see Art. ed. Nov. (daily § Berger, Impeachment: Raoul review. See judgment officer entered presiding The 6. (1973); Problems Staff The Constitutional a United his removing Comm, him from office on Rules and Administra- of Senate Cong.Rec. at judge. 135 district States Sess., tion, Impeachment: Cong., 93d 2d S14,636. (1974) Documents Miscellaneous Print”) (memorandum (“Committee judi- on court, argu- then sued district impeachment proceedings by cial review of give him a failure to the Senate’s ing that Goldstein). Stephen F. the entire evidentiary hearing before full duty to its constitutional violated im- history The of the Constitution’s I, cl. See Art. “try” impeachments. all § out peachment provisions Ritters bears declaratory judgment that sought a 6. He understanding. propos- the broad Both of and was void the Senate his conviction provided the als that foundation privileges salary and his debates, Randolph’s delegates’ Convention the date of his from be reinstated should “New Jer- “Virginia Plan” and Paterson’s held that his The district court conviction. Plan”, gave power to “hear and sey nonjusticiable, see Nixon was claim ju- to the federal impeachments determine” (D.D.C.1990), States, F.Supp. United of the Federal diciary. 1 The Records agree. we and (Max Farrand at 21-22 Convention (New 1966) Plan); (Virginia id. at

ed. Hull, Plan); & N. Jersey see also P. Hoffer the sole Pow- House ... shall have “The America, 1635-1805,at 97- Impeachment cl. and Impeachment”, Art. er of assign- (1984). this supported Madison sole Power to shall have the “The Senate ment, favoring the specifically 3, cl. 6. Art. Impeachments”, try all Hamil- Court, while see Farrand at explic- else does the Constitution Nowhere composed of special a court proposed ton power to do body the “sole” itly confer on a supreme state’s judge chief each fully consider court anything. However, court, 1 Farrand at 292-93. gave “sole” its this issue before case college that a once Convention decided an express weight. It read the full word Senate, should electors, rather than tribunal should that no other “intention eliminating President, thereby name the cases tried any jurisdiction of have the Senate’s potential conflict between im- reference to provisions under of the remover selector as both and roles States, 84 Ritter v. peachment.” United to con- President, it authorized on: The court went Ct.Cl. final to render trials and duct of the word dictionary definition Hoffer & vote. judgments by two-thirds “being acting or without anoth- “sole” 500-01, 552- 98-99; 2 Farrand Hull intended that the think it was and we er” 53. tri- any should act without scraps of Convention surviving In the having to do with anything bunal issue, presi- on the focus was ordinary signifi- on debate This would be the case. Madison both impeachment. While construction dential words of the and cation Senate, as opposed of the Pinckney use supported a consideration dependence tending to increase executive Con- of the Constitutional proceedings stations. While this from their ing them branch, Mor- Gouverneur legislative apprehensions on the ought to remove was Supreme Court responded ris same time at the it affords warped subject, might be number few “too constituting argument sug- cogent Roger Sherman corrupted”, the trial of improper court for senate gested “because ments. President try the forum by him.” appointed Judges would ed. at 545-46. Cooke No. Federalist conflict These themes Farrand would have language emphatic Hamilton’s con- framers’ typical of the of interest —so compelled had if candor rather flat fallen persisted checks over cern course, judges balances— them- that, of him to add the im- applying later discussions into judgment final over this sit in selves judges. peachment excesses. on their check identified Federalist, Hamilton In The kind an additional invoked The framers for the basis power as impeachment the support use of the to or bias of conflict Thus, judges. usurpation by constraining for im- judiciary than the rather he wrote: No. 79 in Federalist by per- a caused bias peachment trials —the responsibility for their precautions prior phase in a played a role having son’s respecting in the article comprised specifies process. Article an extended to im- liable be They are impeachments. impeachment in person convicted that a house of by the mal-conduct peached be liable nevertheless “shall proceedings senate, by the tried and representatives, Trial, Indictment, Judgment subject to and convicted, dismissed from may be if and Art. Punishment, according to Law.” holding any disqualified for office explicit- 7. Thus the Constitution cl. the provision on the is This other. proceedings for sets of anticipates two ly the neces- is consistent with point, which im- commit officials who least some judicial charac- of the sary independence Congress and in peachable offenses—one we find in only one which ter, the and is separated The Framers in the courts. one respect to our in own constitution our the accused two, to secure for trying the judges. own judgments. independent the benefit (Jacob E. Cooke ed. The Federalist (in line with assumed Though Hamilton later, generally dis- 1961). though A little comments) impeach- that delegates’ aggrandize- judicial risk of paraging the trials, criminal precede trials would ment he went on “phantom”, mere ment as a distinct, inde- need for on the insistence his as “the im- identify impeachment again to compelling when no less forums is pendent justify and to check” portant constitutional reversed, true of as was sequence the key aas to the Senate assignment the Nixon: adequacy: remedy’s assurance of persons, who that the proper itWould be usurpations And the inference [that and his most of his fame disposed had by the greatly fortified improbable] trial, in one a citizen rights as valuable constitu- important of the consideration trial, same of- another should check, of institut- power tional his disposers of life fence, be also part of the impeachments, one there not be the Would his fortune? determining upon body, and of legislative that error apprehend, greatest reason other, give would in the them parent would be sentence in the first judicial upon the members body That second sentence? error complete a is alone This department. be would of one decision strong bias danger can be security. There never new the influence apt to overrule of deliberate by a series the judges, vary brought to might be lights, which legis- authority of the on the usurpations decision? of another complexion lature, the united resent- hazard Cooke ed. Federalist No. it, while body entrusted with ment powers reach overlapping from The risks means of of the body possessed presidential apogee degrad- their presumption their punishing abuse, in- to fears of response presides Hamilton’s Chief Justice trial, for which mixing judicial and cluding concerns about 6. Wheth- Art. cl. the Senate. over body, in one tracked the legislative power has clashed Chief Justice er the did Chief in Article I. First he limits found procedures, as over trial two President impeach- trial of of the during argued the division Chase Justice 268-69; Johnson, Berger at “guards against danger powers Andrew ment or concurred prevalency Print from the of a persecution Committee prejudiced as be seen way, he would spirit in either of hous- two factious [the That no trial. of the review at 446. Cooke ed. Federalist No. es].” framing in the recognized this conflict concluded, one concurrence of “As the Then he implau- argues the debates ratification requisite will of the senate two-thirds review. sibility of such innocence, condemnation, security to circumstance, will be this additional im- intended the Convention That complete can desire.” Id. as itself only by qualified to be peachment in constitu- reflected forces is also Hamilton, enough. He that was For au- limiting the executive’s language tional review as no reference made Hamilton viewed thority. Just as power, sharp contrast with check important as “the ment legislative pow- ordinary discussion his 81), (Federalist No. judiciary on the check” 78, ed. Compare No. Cooke Federalist ers. check “an essential the power he called on (judicial review as a check at the body] upon legislative of the hands [the attainder, post ex of unconstitutional bills Federal- of the executive”. encroachments statutes). fact, laws, par- the facto 446; see also 66, at ed. No. Cooke ist single statement ties have not identified (de- 66, ed. at Cooke No. Federalist the or ratifiers’ debates in either framers’ in the as “a impeachments bridle scribing judicial alluding possibility even to the exec- body the legislative upon of the hands review, Berger, proponent, ardent its The government”). of the servants utive any such acknowledges the absence executive sure delegates made See Ber- conventions. at the state mention to power undermine have no check the ger 116. To at im- excepted they expressly when check naturally relied quite framers power, the pardon from President’s peachments accountability of members political on II, 2, the ab- cl. 1. Art. While power. § so judges, on Congress. Thus who on express limitation any such sence of word, rely the last must many issues have “ex- support an might interference on ultimate check public as the on judi- argument favor pressio unius” ex- the Constitution’s impeachment, itself reading is that review, plausible cial more on their own excesses. plicit check that courts simply assumed the framers impeach- power is scope to do with of the Senate’s nothing The had whatever broad each grant by the supported ments. further Rules to “determine the power house text, backed If the Constitution’s I, 5, 2. This Art. cl. Proceedings”. § judi- evidence, prevents both historical independent discre- gives the Senate clause constraining executive ciary and the rules for procedural to set tion impeachment, did power of legislative challenged trials, including the rule ment leaving un- slip up, just the framers XI. Impeachment Rule Nixon—Senate found can be The answer checked check? hinted, in a where case The Court itself, safe- provides two which in Article rule second-guess the House’s refused legislative branch guards within quorum, presence of establishing on impeachments: use of control unwarranted procedure congressional rules powers (1) separation of circum- in some judicially reviewable and the House between the re- “ignore constitutional they if 6, (2) 3, stances I, 2, cl. cl. Art. § § Ballin, 144 straints”, States see United in the vote a two-thirds requirement of 509, 36 L.Ed. 12 S.Ct. I, 6. convict, cl. U.S. see Art. at The Court (on 89 S.Ct. pru- U.S. court has refused (1892), but history the text and of Art. the House of then examined to review grounds) dential allocating the framers seats 5 to determine whether rules Representative’s committees, those rules commit- despite scope a claim that of the textual limited the rights of Fifth Amendment other consti- ment found in that clause violated party in the minority limits in provisions. members It found such tutional O’Neill, F.2d Jagt v. House. Vander qualifications narrow list of Art. 2’s§ (D.C.Cir.1983). rules clause citizenship of the United (age, period of support for the least indirect provides at elected). States, when and residence try “sole Power to the Senate’s view that 520-21, 89 S.Ct. at 1963-64. id. at the sole Impeachments” includes qualifica- reading found its of the in conduct- rules it will follow to frame the clauses confirmed tions and exclusion trials. such requirement of a expulsion clause’s vote, wholly would be un- two-thirds judicial re- exclusion of Constitutional meaning by giving an unrestricted dercut to be impeachments would seem view of to the exclusion clause. Id. But courts have end of the matter. justiciability of issues at 1977-78. long analyzed the the other constitutionally committed to question analysis in The Court’s question” part “political branches heavily relies on the ultimate Powell thus Madison, 5 U.S. Marbury v. doctrine. See the framers’ inten- conclusion that it was Cranch) 137, 164, If (1 2 L.Ed. 60 Congress the deny “to either branch of tion “textually demon- makes a the Constitution vary the authority to add to or otherwise issue to “a commitment” strable membership qualifications expressly set political department”, see Baker coordinate Id. in the Constitution.” forth Carr, added); (emphasis see also at 1969-70 S.Ct. (1962), 710, commits the it so 7 L.Ed.2d (“The 540, at 1973-74 de- id. at 89 S.Ct. to the Sen- trials conduct also demon- at the state conventions bates Powell It remains to consider whether ate. understanding that the the Framers’ strate 486, 1944, McCormack, 395 U.S. 89 S.Ct. v. Congress qualifications for members of cases, (1969), and later have 23 L.Ed.2d Constitution.”) (em- had been fixed in the question doctrine as political shrunk the so added). emphasized as a phasis The Court permit to set the boundaries of courts quotation key piece of evidence procedure trial permissible qualifications of Federalist No. 60: “The A a textual commitment. despite such chosen, may choose or be persons who Powell, explicitly reading of which careful upon occa- remarked another been doctrine, preserved political sion, and fixed in the constitu- are defined (“It 518, 89 is well see id. at S.Ct. tion; legisla- and are unalterable not that the federal courts will established added), (emphasis ed. at 409 ture.” Cooke questions”), suggests adjudicate political 539, Powell, quoted 395 U.S. at contrary. yields parallel no at 1973. The Federalist interplay concerned the between Powell procedures minimum suggestion that the clauses: “Each House three constitutional impeachment trial are conducting for an Elections, Judge of the Re- shall be thus not legislature unalterable Qualifications its own Mem- turns and application Thus textually committed. I, 5, 1); (Art. qualifications cl. bers” § analysis of the rele- method—an Powell’s I, specified in Art. Representatives § history text and vant constitutional —leads (Art. expulsion clause cl. and the § nonjusticiability. here to a conclusion 2). on its constitu- cl. The Court embarked understanding Later cases confirm this justiciability with the analysis tional Hartke, 405 In of Powell. Roudebush whether point that order to determine “[i]n (1972), 31 L.Ed.2d 92 S.Ct. textual to a there has been a commitment Government, that a state’s Court decided department co-ordinate election in a senatorial 395 recount of ballots interpret we must the Constitution.” safeguard power to its defenders infringe on Senate’s “mention[ed] not did safeguard judicial of its review. Such was of the Elections ... Judge “be unthinkable, evidently as the since the members”, cl. determina Art. own legislative func- House “usurp” the Senate’s tion of the could recount itself the Senate’s one.” 801 F.2d “only if it deemed to be at tion frustrate[d] judg- independent final (emphasis original). point ap an ability to make 810-11, ment”, 92 S.Ct. at plies equal U.S. at force here. We concluded do, 25-26, 92 S.Ct. par not id. at it could exclusion of others—and “[t]he wording the hold- judges While the at 810-11. ticular of others who are not —could nonjusti- implication of Id.; ing itself carries McIntyre be more evident.” see also explicit in its more ciability, (7th the Court was F.2d Fallahay, Cir. the candidate’s a claim that rejection 1985) (“The only ‘Judge’ House is not but by the Senate’s mooted had been action final arbiter. Its decisions about also candidates, sub- of the to seat one count, won, decision which ballots and who the case before outcome of ject to the court....”). reviewable pow- “without it was It stated that Court. quite literally underscored Morgan we at judgment”, id. the Senate’s er to alter clause makes each House that the elections 807-08,1 and that 92 S.Ct. Judge” of elections. 801 F.2d at 447 “the seated entitled to be “[wjhich candidate is (emphasis original opinion). language If sure, is, nonjusticiable to be in the Senate making judge” each house “the of elections question”, id. gives that house exclusive discretion to de- Powell). decided (citing The Court procedures making termine was not moot because the case seems a that a clause judgment, it fortiori other candidate had seated the granting try “the sole Power to suit, until the conclusion temporarily gives Impeachments” it sole discretion make an “be free to which it would after procedures. If the clause to choose its judgment under unconditional final “the sole trier of made the Senate added). (emphasis This 5.” Id. Art. paral- the structure would be more ments” language indicates that the Court strong authority no grant of exclusive lel but any challenge to nonjusticiable would find clearer. disputed judgment in a “final” the Senate’s election, procedural challenge that even a primary reason for invok- Although the example, senators re- alleged, for that the in our political question doctrine the critical witnesses on the va- fused to hear impeach- is the textual commitment of case disputed lidity of ballots. need for the ment trials it. Baker v. finality also demands See Roudebush, this court Since Powell In Carr, at 706. 369 U.S. at 82 S.Ct. not objections entertain has refused to context, Morgan the elections clause procedures also to the to the substance but “quick, deci- emphasized the need for court Representatives in by the House of used of election controversies.” sive resolution authority ballot-counting the exercise of its The need F.2d at 450. Morgan, 801 I, 5, (each “shall be Art. cl. house under is even more impeachments finality in Elections, Returns and Judge of the jus- were Nixon’s Members”). If claims such as In acute. Qualifications of its own every im- ticiable, appeals States, procedural 801 F.2d 445 Morgan United routine, as peachment trial would become panel exam- (D.C.Cir.1986), a unanimous even clause, observed of Claims history ined the text decision. Ritter era of the although litigious it was at- less noting especially that debates, 299. For ratification none of See 84 Ct.Cl. tacked fully empowered and It is following Art. 5. appended the footnote: bers. 1. The Court the aid may matters without such Comm’rs, determine County 277 U.S. See Reed v. Representatives or the Execu- 531, 532, 376, 388, of the House L.Ed. Department." (1928): judge tive or Judicial is the of the elec- Senate] "[The n. 6. tions, S.Ct. at 807 qualifications Id. at 19 n. of its mem- returns and conviction, routine, vote for those ment of a two-thirds anything but that are merits public justices, they chief the intru- to contend with out- will have presidents expose politi- ultimately impose would rage of the courts its sanc- sion will months, country per- or cal life of the at the ballot box.2 Absent tion if the courts years, of chaos. Even haps review, responsibility the Senate takes sole a finding justiciability a qualified procedures full- impeachment as a any stays specific relief of against or rule actor, just fledged constitutional as kind, would undermine their review intended. framers legitima- or Chief Justice’s new President’s peculiarly judi- It ironic for the long process took. least as cy for at charge defining ciary to take the limits declaratory final re- a action without And procedure out permissible of concern awarding person office to one lief possible excesses. The over the Senate’s matters indefi- the other could confound power final definition exercise nitely. hypothetical open to monstrous abuse. question doctrine has no political If the judges power daily, exercise such unre- But explicitly has force where Constitution viewably imposing procedural and substan- power to a coordinate branch committed every tive boundaries on almost decision of extreme, finality is the need for and where political branches. all this we are surely although dead. But then it is constraints, subject free of to cor- rarely applied the doc Supreme Court solely by rection constitutional amendment years, in recent see Dissent at 258 trine solely by impeachment. If and to sanction declined the several n. it has also & judge claims of a fellow dispatch it. opportunities available to justiciable, the circle would be Morgan, 413 93 S.Ct. Gilligan v. final, un- judiciary closed—the would have (1973); 2440, L.Ed.2d 407 Roudebush v. procedure over the one reviewable 15, 19, Hartke, 405 U.S. 92 S.Ct. 807- established to restrain excesses all its (1972); Powell, 31 L.Ed.2d 395 U.S. powers: final and unreviewable at 1962. We honor the doc checkmate. apply it here. trine setting

Today we refuse to embark on procedures limits for the help justiciability It establish does impeachments; choose for the trial pose hypotheticals outrageous behavior excludes us. Nixon’s Constitution Walter branch, such as that the a coordinate justiciable.3 claim is not might turn its trial responsibilities randomly over “to chosen Affirmed. schoolchildren”, group of Dissent at pass “allowing or even a rule conviction RANDOLPH, Judge, Circuit impeached and removal officers concurring: vote”, If majority id. at 256. the Senate that, “political agreement We are in ready respon- should ever be to abdicate its not, question” interpret must the schoolchildren, or, or we sibilities to moved giving clause the Senate the “sole Power to Caligula’s appointment of his horse as sen- ator, Zoo, try Impeachments,” all U.S. art. Const., elephant to an from the National 3, leads republic depths My cl. 6. review of that clause the will have sunk to from § me that the and the which no court could rescue it. And if the to conclude alone, try ignore require- senators to the clear Senate to choose the method issue, unlikely day requirement of 2. Because the two-thirds vote of this leave it for the so we concrete, argument Art. cl. 6 is so the that arising. its it serves as an unalterable limit on the textual impeachments, commitment of with re- nonjusticiable, claim is we 3. BecauseNixon’s view available for at least some claims of Senate appellees’ argument that Nix need not address disregard, plausible is far more under Powell sued in Claims Court rather on should have justiciable than Nixon's effort to find limits in court. than district However, "try”. the word we need not decide 2 The Records to the Senate. peachments Power.” “sole it exercises at me, not to it seems of controlling question, the Federal Convention of 552-53, 592, (M. conformity 186, 473, 493, Far- acted the whether the understanding 1966). of Virginia Both the and the historical rand ed. the with word “try,” proposed entrusting or even whether Jersey plans word New meaning to consti- sufficiently concrete power impeachment, of but judges with It power. on the Senate’s a limitation tute assign the Framers considered wiser make those is to judiciary is whether to the Senate. 1 Farrand this function See judgments. 21-22, 244; 2 Farrand 500-01 & 552- at Impeachment Hull, P. Hoffer &N. Impeach- try “sole Power America, (1984). Al- at 97-100 set power to include the sole must ments” trial, though giving did favored the Su- Madison for procedures other power impeachment, names no preme of here. The Constitution Apart delegates rejected that function. the idea. body perform the Convention an take the Senators requirements pre- that 2 Farrand at 551. Whatever over preside oath, Justice this, the Chief about the cise rationale concerns Presidents, that two impeachments undoubtedly at allocation concur, must present of the Senators thirds Hamilton noted that work. Alexander proce- is silent about the Constitution legisla- possibility judicial usurpation have If Senate did details. dural cogent argument power “affords ... a tive how to conduct power to the sole determine constituting a court for the the Senate judiciary if the had proceedings, impeachments.” trial The Federalist the Senate say procedures on what final ed.). Hamilton) (J. (A. Cooke No. step to only a short place, it is put must my conclusion that I to frame hesitate compliance Senate’s judicial review of the how to con- alone is to decide that dike Once procedures. those in terms of the impeachment trials duct holding bursts, back there can no be might have question” doctrine. “political inevitably will be of issues that flood simply doing phrase so if difficulty no impeached the courts. One presented to has commit- “the meant that Constitution “tri- to a claim as fundamental will official anoth- issue to ted determination tribunal, free right to an al” the unbiased courts” government than the agency er will political influence. Another of undue Principles (Wechsler, Toward Neutral inadequate or that was argue that notice Law, 73 Harv.L.Rev. Constitutional impaired. right to call his witnesses McCormack, 395 U.S. (1959)). Powell v. their will contend Others 23 L.Ed.2d 486, 518, 89 S.Ct. they were set because must be aside ments Carr, (1969), and Baker v. opportunity to cross-ex- adequate denied L.Ed.2d 663 186, 217, witnesses, improper evi- or because amine there (1962), begin by whether asking do them, be- against introduced dence was consti “textually demonstrable has been re- prejudicial made a some Senator cause to a coor issue tutional commitment proceedings. “Procedur- during the mark But government.” dinate branch pages of sort fill the challenges of al” at 1963- Powell, 395 U.S. no reason reports. There is the federal quite answer proceeded to the Court individuals would impeached doubt ‘qualifi different time, that, over litigators or vigorous less —“whether 5 autho Article Section cations’ which con- lead to would judicial review only those ‘judge’ were House to rized the ably Judge Williams demon- Yet as trol. (and per 2 Article Section specified strates, did not intend the Framers Constitution).” San in the haps elsewhere reviewing func- perform such judiciary to v. McCor dalow, on Powell Comments The Constitu- impeachment trials. tion (1969). 164, mack, L. 17 UCLA Rev. impeachment Convention removed tional analogous follows Judge Edwards original jurisdic- Supreme Court’s the Sen- that because try im- route. He believes power to and transferred tion 248 courts meaning of that term—the al impeachments, “try” power is to ate’s in- duty-bound, to competent, give content but first not must

judiciary whether then decide the constitution- “try” and the text and decide terpret word ap- power. His McCormack, has exceeded Powell question. al See conferring on ultimately leads to proach 1944, 491 486, 23 L.Ed.2d S.Ct. U.S. 89 395 large role a rather courts however, merits, I (1969). Reaching the intentionally Framers although the ments special use of a that the Senate’s conclude stated, I As I have judiciary. excluded gather and to hear witnesses committee as whether controlling question view Nixon of con- deprive did evidence validity of pass upon judiciary can right. stitutionally protected My con- procedural decisions. the Senate’s of the Dis- judgment affirm the therefore no such role courts have that the clusion grounds Court, different albeit on trict ultimately process impeachment in the play by the trial court enunciated than those interpretation of the Constitu- my rests on today. majority as one qualifies Perhaps the case tion. question” within “political presenting a surely It meaning, perhaps not.

Powell’s Background I. respect. In in one from Powell differs Federal Bureau early In least, Powell, provision another (“FBI”), tips, com- acting on Investigation “Qualifications”; defined Constitution L. Nix- “try.” investigation of Walter for the word menced an cannot be said same events, rely Judge on the on, Jr., no need to I see who was then Chief At all “politi “amorphous” doctrine Dis- somewhat for the Southern U.S. District Court Morgan v. United question[s].” given cal Mississippi. The FBI was trict of (D.C.Cir.1986) States, 801 F.2d that, in consideration of reason to believe denied, J.), (Scalia, 480 U.S. cert. inducements, Nixon had financial certain (1987). L.Ed.2d 529 prosecutor with a local communicated facing friend’s son who of a behalf EDWARDS, Judge, T. Circuit HARRY FBI charges. Following the drug possible concurring in the dissenting part presented to a investigation, the case was judgment: Nixon testified. grand jury, before whom Nixon, Jr., case, for L. In this Walter grand jury, Nixon testimony to the In his Judge, chal States District mer United having spoken with falsely denied ever his convic constitutionality of lenges the drug prosecu- about the prosecutor local Senate on two by the United States tion then returned an grand jury tion. The subsequent his impeachment articles count charging Nixon with one indictment Nixon contends the bench. removal from In perjury. three counts bribery express consti violated its that the Senate underlying acquitted on the although “try” duty to his tutional per- convicted of bribery charge, Nixon was trial work to delegating most of the actual testimony, jury grand jury based on his 12 senators. The special committee of subsequently af his conviction was had found that Nixon District Court Nixon, 816 States firmed. See United ques significant constitutional presented a denied, Cir.1987), (5th cert. F.2d nonjusticiable under it was tion but L.Ed.2d 762 Nixon doctrine. See States, (D.D.C. F.Supp. v. United 1990). Representa- the House May three arti- impeach Nixon on tives voted justiciable. I find that Nixon’s claim perjury. relating to his cles alleges that the Senate vio- Because May (daily ed. H1811 REC. CONG. on its express textual limitation lated an charged Nix- 1989). articles The first two is, authority convicted —that grand testimony to the giving false on with without him on articles bring- him charged with jury and the last the constitution- “try[ing]” first him within pro- transcript of the committee’s a by with judiciary the federal disrepute ing to along to the full ceedings, passed then H1802-03. id. at See his actions. way of preclude the Rule XI does not Senate. the Sen- came before these articles When before the calling witnesses from Senate empanel a to trial, voted the Senate ate conducting factu- body or further from full to hear 12 senators special committee floor. Prior to a inquiries on the Senate al S.Res. evidence. See gather and witnesses vote, parties permitted are to the final Sess., 135 CONG. Cong., 1st 128, 101st assembly. the full arguments before make 11, 1989). This May (daily ed. S5199 REC. pursuant to established committee evidentiary protested the use of an XI, internal Rule an Impeachment Senate unsuccess case and twice his committee invoked and first adopted rule evi to conduct all asked the Senate fully for- impeachment trial of during the floor. on the Senate dentiary proceedings Judge Harry Claiborne. District mer inquire into appointed to committee The to XI, may elect the Senate Rule Under days of hear four case conducted Nixon’s respon- evidence-gathering delegate certain from 10 1989 and heard ings September impeachment associated sibilities witnesses, including five defense witnesses committee, in 12-member special a trial to Report Nixon himself. See and the evidentiary hear- conducting a full lieu of Impeachment the Arti Committee on Trial the rule Although floor. the Senate on Against Judge L. Nixon, Jr., Walter cles it, commit- practice the prohibit does 1st S.Rep. Cong., 101st Sess. No. pass judg- empowered to has not been tee the committee (1989). On October or make issues of fact on contested ment Senate, see report to the full submitted concerning the reso- any recommendations final briefs id., parties submitted and the charges. See impeachment the lution of shortly thereafter. is, The 5. committee supra, § S.Res. days, beginning witness- however, fully to hear For three consecutive authorized compile con- the full Senate es, and permit cross-examination November may act.1 full the Senate of Nixon’s upon which the record sidered Nixon and On November ment. mem- procedures, all established Under managers each impeachment House apprised kept fully of the Senate bers argu- closing present 90 minutes allowed pro- proceedings. the committee’s Cong. floor. See on the Senate ments Senate live ceedings are broadcast 1, 1989). Nix- S14,494 Nov. (daily ed. videotape Rec. recorded are also on and offices to offer of that time himself some used on to all senators. made available which id. See appeal to the senators. personal report sum- prepares committee also argu- S14,502-04. Following these of the undisputed facts marizing both posed a number ments, the senators relating those and evidence case parties. id. to the questions along report, written This are contested. practice the commit- procedure and ern the provides: Rule XI appoint- so appointed. The committee so tee any impeachment the Pre- trial [I]n writing a report Senate in ed shall Senate, upon the order of siding Officer of proceed- transcript copy of the certified Senate, appoint a committee shall given testimony before such ings had and and and take to receive evidence twelve Senators testimony committee, report received be such shall and places and times such so received and evidence determine, pur- and for such committee testimony shall be con- so taken and the appointed and pose so the committee subject to purposes, all intents sidered to thereof, by the com- elected chairman mittee, compe- right to determine Senate (unless otherwise ordered shall having materiality, as relevancy, tency, Senate) powers and functions all the exercise Senate, taken before been received Presiding upon the Senate and conferred prevent the Senate nothing shall herein Senate, but respectively, under the of the Officer hearing his sending witness and practice procedure in the rules of Senate, open order testimony sitting trials. on when open Senate. trial in having the entire ordered Unless otherwise XI, reprinted in S.Doc. practice in the Senate S.Imp.R. Senate Manual, procedure and rules of Cong., 2d Sess. gov- No. 98th shall sitting trials when were grounds on the that the claims S14,513-16. the full Sen- but On November premature light in of the fact that guilt for six then on Nixon’s deliberated ate by plaintiff yet had been convicted day, final neither session. On the hours in closed Hastings v. States necessary two- the Senate. See United voted the Senate (D.D.C.), F.Supp. Nixon on two of majority to convict thirds aff'd on 887 F.2d 332 impeachment.2 grounds, mem. articles of the three (text (D.C.Cir.1989) unpublished memo challenges the constitutionali- Nixon now Westlaw). randum decision available on used ty procedure vote, Following the Nixon re- impeachment. argu- His Senate’s considering his challenge, seeking his obligates “the newed that the Constitution ment is a declaration that his conviction “try” impeachments and that Senate” to subsequent removal were un- language entitles him to a full eviden- Senate this reply, In hearing constitutional. the Government tiary on the the Senate. floor of gather two-prong mounted a attack on the court’s use of a committee to The Senate’s First, witnesses, authority challenge. argues, to hear Nixon’s and hear evidence and the Government renewed its insistence that fundamentally prejudiced his case political nonjusticiable the claim was a stripped later the Senate’s deliberations Second, that, question. even if required by the Con- it asserted character justiciable, the claim were it could be heard particular, Nixon contends stitution. Court, that, although credibility only in the United States Claims issues of disposition ultimate exclusive forum which United States central to the Senate’s case, sovereign immunity to suits of his senators who has waived large money damages. actually heard the Because find- served on committee might on the merits testify person. As evidence Nixon’s favor witnesses $10,- suffered, prejudice pay entitle him to back in excess of he Nixon offers reasoned, analysis of the case which the Government Nixon’s suit final vote his money damages essentially that senators did not serve on was one for shows who (and would have the committee thus did not hear the over which the Claims Court first-hand) testimony jurisdiction. were more exclusive witness likely to vote to convict than those senators proper held that it had The District Court sat on the committee.3 who subject-matter jurisdiction over Nixon’s concluded, again, once that his brought challenge

Nixon first this before suit but nonjusticiable he claim was under the the District Court June when brought by intervened in a law suit then- doctrine. See Nixon v. United (D.D.C.1990). States, Judge Hastings, facing F.Supp. Alcee who was also case, view, impeachment proceedings. In that In the District Court’s the Senate’s evidentiary simply use of an committee did the District Court held Nixon’s claim to be departure nonjusticiable political question; in the dimension of “result[ ] dismissal, court affirmed the trial court’s from the Constitution’s textual commit- members, senators, remaining 2. to convict Nixon on and 61% of the Senate voted 89-to-8 Appendix II. Article I and 78-to-19 to convict on Article See Joint Tab 4. voted to convict. (daily See 135 ed. Nov. Cong.Rec. S14.635 voting pattern This has occurred in all three 1989). Fifty-seven con- senators also voted to impeachments in which the Senate has used a III, S14,636, vict Nixon on Article see id. at gather committee to evidence—the majori- although this fell short of the two-thirds Claiborne, Judges of U.S. District Alcee L. ments Constitution, ty required by the see U.S. Const. votes, Hastings Aggregating all sen- and Nixon. art. cl. 6. evidentiary ators who did not sit on the commit- tee favored conviction almost a three-to-one 3. On Article nine out of the 12 senators who margin, while those who served on the commit- (75%) served committee by only majority. convict, tee favored conviction bare fully voted to while off 94% senators (senators Appellant, Table See Brief of favored conviction. On Article committee II, voted of the time to not on the committee 71% of the committee 58% members voted convict; conviction, remaining voted 53% compared senators on the committee to 84% of the III, convict). senators. On Article 42% of committee of the time to

251 the con- only a declaration of to Nixon seeks the ‘sole Power of ment to infirmity of his removal and of stitutional this con- as to make try Impeachments’ pay and entitlement to the benefits his meritori- the claim troversy justiciable and office; Nixon does not seek a his former 14. ous.” Id. ordering payment sum judgment appeals the District Court’s now Nixon Thus, complaint money. “insofar as the judgment. relief, declaratory it was sought [only] ... money for dam- certainly not an action Analysis II. Massachusetts, 487 U.S. ages.” Bowen v. Jurisdiction Subject-Matter A. 879, 893, 2722, 2731, 101 L.Ed.2d 108 S.Ct. difficult issues reaching Zech, the more (1988); Dronenburg Before 749 see also case, necessary it is by 1388, (D.C.Cir.1984); Nixon’s presented F.2d 1389-90 741 appellees that 102, a claim dispose to F.2d Schnapper Foley, 667 subject-matter denied, lacked (D.C.Cir.1981), the District Court cert. 455 U.S. argue that Nix- appellees (1982).4 The jurisdiction. 102 71 L.Ed.2d 661 money dam- essentially one for might give on’s suit is rise if Nixon’s suit later Even Brief pay. in the form of back See ages monetary compensation, to some claim to United Appellees and Amicus Curiae for his instant suit this fact would not render Br.”) Be- at 37. (“Appellees “money damages.” As this court States one for now amount pay would explained, cause that back previously $10,000, argue, appellees than more by the district court even if a declaration the Tucker lies under jurisdiction exclusive mone- as the could later used basis Court, only forum in the Claims Act relief, possibility does not de- tary that has waived the United States authority district court of prive the 28 sovereign immunity to such suits. See Declaratory grant requested relief. (1988). appellees 1491 U.S.C. § plaintiffs’ if the improper relief is mistaken. pretext to avoid the is a mere action the Claims jurisdiction exclusive sover- upon the waiver of relies Court. in the Administrative eign immunity found sovereign Act. That Act waives Weinberger, Procedure 745 de Arellano v. Ramirez “seeking (en banc) relief other immunity (D.C.Cir.1984) for actions 1533 F.2d illegal allege money damages” omitted), (footnotes than on other vacated officer. agency a federal or See action 105 S.Ct. 471 U.S. grounds, clearly (1988). suit (1985); Nixon’s Her Laguna 5 U.S.C. 702 see also L.Ed.2d agency illegal Martin, action a federal alleges F.2d Corp. v. mosa officer, by federal namely, Cir.1981). surely actions taken on (9th There is no basis ju- his removal from to effectuate us to conclude officials in this case for the record impeachment and following his one for complaint dicial office his as Nixon framed conviction assertedly merely pretext unconstitutional declaratory relief the Senate. the Claims Court. avoid asserting are correct appellees as one “seek- qualifies also

Nixon’s suit rely the waiver may not on damages.” that Nixon money other than ing relief providing Moreover, for the reinstate- an order include Court's in the wake Bowen, pay.... appear employee with back that even ment an it would decision action, (emphasis sought pay his at 2731-32 back in this 108 S.Ct. had Nixon 487 U.S. at "money damages" Hanger- added); DeVargas be one & would still not v. Mason suit see also (10th meaning Co., 702. In Bow- of 5 U.S.C. n. 3 within F.2d Mason Silas en, explained: Cir.1990) proposition the Court (citing Bowen for damages’ ‘money recovery con "the bar recognized long have the distinc- Our cases include 702 does not U.S.C. section tained in 5 damages— law for between an action at tion eq ]pay, which is a form equitable back[ provide a intended to victim which are relief, damages"), monetary cert. de injury uitable monetary compensation his for an — -, nied, L.Ed.2d eq- reputation person, property, or —and specific relief—which uitable action for in the Ad tiff has not established the kind of clear immunity contained sovereign specific Procedure Act if he could ob re- ministrative violation of relief in the Claims Court adequate quirement trigger judicial tain which would au- Tucker Act. 5 U.S.C. under thority to review a solemn and serious Sen- (1988); 14 704 see also C. Wright, Nixon, F.Supp. ate action.” 744 at 13. §§ Miller & E. Cooper, A. accepted appel- The District Court thus Federal Practice (2d Supp. 3659 ed. 1985 & that, argument though plain- Procedure lees’ “[e]ven 1991). But relief in that forum is limited challenge constitutionality of tiff's awarding monetary com largely to question,” XI Rule raises a serious (2) 1491(a)(1) 28 & pensation. See U.S.C. § cannot on the merits matter be considered Massachusetts, (1988); Bowen v. see also nonjusticiable Nixon has raised a because at 2742-43 487 U.S. at 108 S.Ct. “political question.” disagree. Id. J., (Scalia, dissenting); McEniry United is, course, enough It to avoid States, (“It 7 625 is clear that a Cl.Ct. point review for the Government to one for plaintiff’s primary claim must be case, “political” out that this is a monetary relief before this court can assert judiciary sense that the is asked to declare added), claim.”) (emphasis jurisdiction over the invalid action a coordinate branch of mem., (Fed.Cir. F.2d 323 785 af f'd performing one of its Government core case, 1985). And, in this I am total “political” Supreme functions. As the sugges disagreement appellees’ with the again, Court has reminded us time and “the money judgment pay tion that for back presence sig- of constitutional issues with and benefits is all that Nixon seeks or all political nificant overtones does not auto- that he needs to cure his asserted constitu matically political invoke the doc- injury. injury alleges tional Nixon trine,” Chadha, INS v. 462 U.S. 942- goes beyond a result of his removal far 2764, 2779-80, S.Ct. L.Ed.2d 317 salary. loss of his It includes not (1983), reject and “courts cannot as ‘no law bench, perma removal from the federal but controversy suit’ a bona fide as to whether disqualification holding nent from Govern ‘political’ some action denominated exceeds I, 3, ment office. U.S. Const. art. cl. Carr, authority,” Baker v. (officers upon impeachment removed suf 186, 217, 691, 710, 369 U.S. “disqualification enjoy any fer to hold and (1962). Rather, L.Ed.2d 663 what re- honor, Trust or Profit under Office quired “discriminating inquiry is a more States”). United Given the nature of Nix precise posture into the facts injury, appears it on’s obvious that “the case,” particular id., in an effort to deter- doubtful and limited relief available in the genuinely mine whether the courts in- adequate Claims Court is not an substitute competent to decide the matter. Court,” for review the District Bowen v. Massachusetts, 901, 108 487 U.S. at S.Ct. at Under the Court’s landmark de- id. at see also Carr, political ques- cision in Baker properly and that Nixon therefore relied on when, play only tion doctrine comes into sovereign immunity waiver found in [pjrominent on the surface of case a[] U.S.C. § textually ... is found a demonstrable Thus, I find that the District Court cor- constitutional commitment of the issue to rectly subject-matter jurisdiction asserted department; political a coordinate or a over Nixon’s claim and now turn to the judicially lack of discoverable and appellees’ political ques- invocation of the it; manageable resolving for standards tion doctrine. deciding impossibility or the without policy determination of a kind initial Justiciability B. discretion; clearly nonjudicial or the that, “[djespite impossibility undertaking District Court found of a court’s in- textual and dependent historical indicators that expressing resolution without ‘try’ duty word carries with it some respect lack of due coordinate judge jury, plain- Senators to sit as government; ... branches of or an unusual questions to a coordinate to a adherence unquestioning need for Thus, because made; branch Government. or the already political decision expressly delegates to the Constitution mul- from of embarrassment potentiality try impeach- “the sole Power” to de- by various pronouncements tifarious ments, gave and because question. one partments on trial,” Nixon, of a some “semblance formulations is of these one Id. “Unless the trial court ruled F.Supp. bar,” the the case inextricable authority pre- to dictate more was without no dis- concluded, should “there accorded,” cisely “the of trial to be id. type ground on the nonjusticiability missal for original); Hastings, (emphasis in accord Id. presence.” political question’s of a F.Supp. at 40-41.5 is nar- Thus, question doctrine nonjusticiability sweeping view of This shown, confined; and, history as rowly however, squared, be with the cannot Su- limitation on rarely invoked it is a v. preme Court’s decisions Powell authority. 486, 1944, McCormack, 395 23 U.S. argue that claim Nixon’s appellees The (1969), other more L.Ed.2d 491 and recent nonjusticiable be- dismissed should be ques- giving political definition to the cases (i) “textually com- demonstrable cause of A tion doctrine. careful review of those to a impeachment questions of mitment” disposition is essential to a of Nixon’s cases branch, (ii) impossibility coordinate claim. expressing without deciding the case of expressly assigns the Constitution Where Appellees disrespect for the Senate. See in a matter to the legis- absolute discretion reject contentions. both Br. at 25-26. branch, the courts have lative executive play reviewing the exercise of no role to Textually Demonstrable Commit- 1. “A But, as the Court that discretion. made ment” Carr, every clear in constitu- Baker 6, I, 3, cl. of the Constitution Article § assignment power tional of constitutes provides: “textually demonstrable constitutional com- Power shall have the sole The Senate contemplation of mitment” within sitting Impeachments. When try all There political question doctrine. Purpose, they be on Oath shall for that authority to co- many delegations of broad of When the President or Affirmation. that do of Government ordinate branches tried, the Chief Jus- States United nonjusticiable questions not result in mere- shall preside: And no tice shall Person assigned the breadth of the ly by virtue of of without the Concurrence convicted be example, the Constitution authority. For present. two of the Members thirds To Congress the “Power ... assigns to Nations, foreign regulate with Commerce provision held that this The District States, and with the among several “textually demonstrable commitment” is a 1986); support in a C. Court’s view finds Courts 5. The District Wright, Federal The Law of Claims, 14, 1983) ("Most (4th the Court of ed. commentators § 1936 decision power are without to review held the courts that the that to the orthodox view have ... adhered trying any aspect and remov of Senate action regard play to im have role to courts no ing States, Ritter v. United official. See Rotunda, a federal (footnote omitted); An peachment.") denied, (1936), U.S. Ct.Cl. cert. 300 Essay Constitutional Parameters Feder on the 513, (1937). There is 81 L.Ed. 875 Ky.L.J. 707, (1987— 728-32 Impeachment, 76 al commentators, among support view also for this Wechsler, 1988); Principles Toward Neutral broadly, along suggested have some whom (1959). Law, Constitutional Harv.L.Rev. opinion, chal the Ritter that the lines of argue be that senators will These commentators handling impeach congressional lenge of an sufficiently to their constitution made attentive precluded by the would be Constitution’s ment accountability the voters duty al their assignment power to the of that textual absolute legislative political leave it to the courts should that See, e.g., Impeach C. branch. Black, abridgements any arguable discipline process to ("the (1974) have ... A Handbook courts ment: Rotunda, supra, at of the Constitution. See reviewing play” im part no at all to Politics, Tushnet, Principles, and Constitutional trials); peachment & Nowak, R. J. J. Rotunda Law, 88 Mich.L.Rev. 2.15, (3d ed. § Constitutional Young, Law a some- Const, Supreme Court considered I, Tribes,” art. cl. Indian in the same suggest grounded claim reasonably different what no one yet McCormack, however, authority clause, the courts Powell beyond the it is regu justiciable. enactments congressional found the issue and there to review County case, Clayton lating Congressman commerce. Adam interstate Cf. Nation Oneida, Jr., Repre- Indian Powell, challenged N. Y. v. Oneida a House 226, 249, 105 S.Ct. State, 470 U.S. barring Powell from N.Y. decision sentatives’ (“Con (1985) L.Ed.2d 169 House, citing alleged taking his seat. un in Indian affairs gress’ plenary misconduct, that it had contended financial not mean cl. does Art. der to serve as a unqualified “judged” Powell necessar involving such matters litigation “Qualifica- argued that Powell member. ques nonjusticiable ily entails must section under article tions” Rather, “textually tions”). makes a what standing re- only the to include construed merely a is not commitment” demonstrable expressly listed the Constitu- quirements power, but a textual assignment of textual (i.e., citizenship and residen- age, tion itself par in a discretion assignment absolute insisted that the Con- cy), while the House branch. matter to a coordinate ticular discretion assigned nonreviewable stitution judge those Congress to define and may seem elu- at times The distinction “Qualifications” for itself. sive, usefully illuminated com- it is but interpreting cases two lines of paring held that Powell’s Supreme Court Article I clause of the Constitution. same present nonjusticiable a challenge did not House shall be that “Each provides began its question. The Court Elections, Quali- Returns and Judge of the observing paradox that an analysis by U.S. Const. of its own Members.” fications a constitutional of whether assessment I, 5, this clause un- cl. 1. Because art. unavoidably requires claim is reviewable that each house of Con- equivocally states the relevant initially review judges that courts—shall be than the gress—rather give it content. language and constitutional matters, it has been Judge” of these “the there has “In to determine whether order may not consider a claim that courts held to a co-ordinate a textual commitment been wrong seated the the House or Senate that Government,” the Court department of congres- following a contested candidate wrote, interpret the Constitu- must “we being dispute in There no election. sional 519, 1963. 89 S.Ct. at tion.” 395 U.S. at in or House has these cases that an exten- Accordingly, the Court undertook returns, only election but “judged” the fact prac- historical of the text and sive review wrong, result there got it the factual that qualification and concerning legislative tice dispute that the final word on can be no framers that the exclusions and concluded assigned out- counting has been of ballots in- “Qualifications” to the term intended judiciary. See Roudebush side the requirements list- standing only clude those 19, 804, Hartke, 15, 807- 92 S.Ct. 405 U.S. 2, of the Constitu- in section ed article (1972) (dicta); 08, 31 L.Ed.2d Webster tion: 592, 612, Doe, 108 S.Ct. 486 U.S. short, of the Fram- the intention both (1988) (Scalia, J., L.Ed.2d 632 determined, ers, be the extent it can States, 801 dissenting); Morgan v. United princi- of the basic and an examination (Scalia, J.), (D.C.Cir.1986) F.2d system persuade ples democratic of our denied, 911, 107 S.Ct. 480 U.S. cert. does not vest the Constitution us that (1987); McIntyre v. Falla 94 L.Ed.2d power to discretionary Congress (7th Cir.1985). If F.2d hay, 766 majority vote. membership by deny congres permitted to review a courts were Consequently, 1978. S.Ct. at Id. at particular decision to seat a candi sional Congress’ textual au- held by recounting the ballots or scrutiniz date “Qualifica- Judge” “the fact, thority to be judiciary, findings empower did not of its members in the last tions” Congress, not the would Judge” what the “the Congress to be Judge” of election returns. analysis be “the ally committed the misconduct of which he “Qualifications”; means Constitution accused, certainly almost the courts. Rath- was be task remained ‘textually er, nonjusticiable just suggested at most a as Powell “Art. — Congress to challenge commitment’ that a fact-based to the exclusion demonstrable expressly set only qualifications judge failing satisfy of a member chal- Id. While in the Constitution.” age, citizenship forth standing requirements of rulings age, Congress’ factual lenges to be, residency might residency might nonjusti- citizenship and n. at 1963 n. and as Roude- held, ciable, a claim Con- the Court suggested that a claim Morgan bush and textual bounds of gress had exceeded misjudged that the or House had excluding a member on authority by election would be. A the returns a close than his grounds other claim, however, that the Senate exceeded judicial re- “Qualifications” is amenable to authority by con- the textual bounds of its 520-22 & n. id. at view. See victing judge on articles of & n. him “try[ing]” first within the con- without meaning clear from the Court’s of that term —as Nixon It stitutional Roudebush, then, rulings justiciable. Powell Unlike claims this case—is may the courts well be barred that while plaintiff Morgan, effectively who second-guessing Congress’ fact-find- supplant this court to the House as asked policy judgments within the zones ing and election, Judge” “the of an Nixon does not assigned the Constitu- of discretion as the supplant us to ask tion, claims that the courts review he impeachment; of his asks “tr[ier]” explicit textual Congress has exceeded that we review the Senate’s conduct powers. on its limitation required him as ensure that it fact tried It is the courts’ task by the Constitution. di- of Nixon’s claim is justiciability give the word interpret and content to to recognize by Powell. rectly controlled job in just as it Court’s “try,” was the findings challenge to the factual that a “Quali- meaning conviction, give to the word Powell to e.g., a underlying the Senate’s 6 had not actu- fications.” party that the convicted claim making political decision com- dure for the majority emphasizes that the Senate en- The 6. try- merely power joys it the Constitution. Powell does not the constitutional mitted to review, try- ing impeachments, overly judicial but the “sole Power” but not allow intrusive presence ing impeachments. of the But the solely ensure that rather allows review answer the word "sole” does not presented Congress particular made the kind of framers intend- in this case. That the entrusted to it the Constitution. decision else, “try would and no one ed that the Gerhardt, Impeach The Constitutional Limits to the Impeachments" does not tell us what all 1, Alternatives, Its 68 Tex.L.Rev. 99- ment and in the situation would have intended framers presented (1989); Impeachment: accord R. 100 Berger, The here, assertedly has where the Senate Henkin, (1973); Problems Constitutional by removing assigned power it the abdicated Question”Doctrine?, “Political 85 Yale Is There a Accordingly, historical evi- trial. Nixon without 597, (1976) ("Even unique n. 26 the L.J. 605 against permit- decided dence that the framers instance, have Senate shall ’[t]he [textual] simply try impeachments is not ting courts to try Impeachments,’ does not sole Power to justiciability claim. dispositive of Nixon’s argument necessarily preclude the that while “try” today upon Nixon’s called We are not judge impeach to be the the Senate alone is merely impeachment, to determine whether but proceedings, can review how it the courts ment so. the Senate did it, excesses or least for constitutional does infirmities.”) majority’s that the for this same reason It is Tushnet, original); (emphasis in Although inapt. Roudebush is reliance on 5, (agreeing supra that Powell com note power suggested have no that courts Court there justi questions pels that such conclusion performance of its consti- the Senate's to review Laird, ciable); F.2d 614- Mitchell v. 488 contests, "judging” cf. election role of tutional J., (D.C.Cir.1973) (Wyzanski, by designation) 15 would be courts also not address whether did powerless (political question doctrine would not bar court Senate had where the to intercede deciding in Indo "whether the hostilities carry function. out that constitutional refused in the Constitutional sense a china constitute explained: As one commentator meaning art. cl. § within the 'war”’ is that the lesson of Powell political question ... for but "we deem it judicial to determine may review use form, any, Congress if it will proce- to decide in which proper Congress followed whether merits, but on the agree with Nixon suggested that Court also District finding his grounds for is not might disagreement claim Nixon’s review of judicial textually nonjusticiable. by the Constitution’s claim foreclosed Senate of assignment to the demonstrable as- in this case went The District Court of its the Rules “determine power to ap- opposite essentially the by taking tray Const, 5, cl. art. Proceedings.” U.S. had Senate finding that the proach—first But this Nixon, F.Supp. at viola- constitutional a clear not committed assignment power, like assignment of action was finding that its tion and then regulate interstate Congress to re- beyond judicial consequently somehow general provide for or to commerce Nixon, F.Supp. at view. See only within the welfare, exercised may be kind of not established (“[P]laintiff has provi- constitutional of other constraints specific constitutional clear violation not, example, for could The Senate sions.7 judicial trigger requirement which allowing con- constitutionally pass a “rule” and serious a solemn authority to review impeached officers removal viction that, action.”). appears It vote,8 fact that the and the majority by a Court, justiciability issue on District “[t]he pursuant to taken had been action Senate’s Nix- ultimately” upon the merits turns provide authority would “rulemaking” question of claim, i.e., “on the narrow on’s judicial invalidation. As against no shield of this specific denial whether Senate’s explained, “Art. previously court take testi- for leave to motions plaintiff’s that neither we 2,] simply means cl. I[, him open denied mony before may tell Con Branch Executive nor the to him clearly guaranteed kind of trial adopt. Article I it must rules gress what ap- By this Id. by the Constitution.” responsibility to not alter our does however, finding nonjusticia- proach, adopt Congress rules say what label largely a shorthand bility becomes infirmity.” Van constitutional because of that there conclusion court’s ultimate O’Neill, F.2d Jagt v. der violation, or, to has been no denied, (D.C.Cir.), cert. governmen- precisely, it more put Here, (1983).9 Nix 78 L.Ed.2d the bounds did not exceed defendant tal Senate, by way of Rule alleges assigned it discretionary authority limita XI, explicit textual has violated Henkin, generally the Constitution. removing him without powers tion on its mis- It is 605-06.10 supra note may well dis- him. We “try[ing]” first congressmen Jagt, Republican 14 a 9. In Vander give of war to the continuation its consent leadership the House of alone”). the of acting sued Representatives, Democratic already begun a President alleging Democrats that the century ago, Supreme Court ob- Nearly the a 7. allocating disproportionately few seats on were key served: minority party, viola in to the committees de- empowers each house to The Constitution Republicans' Amendment Fifth of the tion rights. proceedings. of It not its rules termine found the matter District Court The ignore restraints .or constitutional question its rules political doc nonjusticiable under rights, and there should trine, fundamental violate of the part in because article section the mode or relation between to assigns be a reasonable House the to the Constitution Proceedings." proceeding the rule Van of established Rules of its method “determine the (D.D.C. O’Neill, sought F.Supp. to be attained. Jagt which is result der review, 1981). trial matters of this court reversed But within these limitations On Although ruling. the court justiciability open of the are to the determination court’s method house, reasons, on, to prudential to decline rule to went and it is no authority, discretionary it better, remedial exercise its say way would be some other that question political doctrine just.... made clear that presented [This or even more more accurate rulemaking power] See 699 to the court's review. no bar is[,] within the limita- ... 1173-74, 1177. F.2d beyond suggested, the chal- absolute and tions any body lenge or tribunal. of approach argues that 10. Professor Henkin 1, 5, Ballin, 144 U.S. States v. United virtually in which all of the cases characterizes added). 507, 509, (1892) (emphasis L.Ed. 321 "po- nonjusticiable claimed to find courts have questions": litical ("And Const, art. cl. 6 no See 8. U.S. supposed to have estab- The cases the Concur- be convicted without Person shall required political question doctrine present.”). lished the thirds of the rence of two Members given the document construction however, in suggest such to leading, alleged conflict branch. to en- another declined the court that instance can- adjudication may cause such an If the review. judicial gage avoiding con- their not the courts’ integrity justify any to have doctrine responsibility. review, stitutional its judicial upon as a constraint of analysis from an must arise invocation Powell, 89 S.Ct. at 395 U.S. at any apart from that stands Constitution omitted); States v. (footnote accord United — particular the merits -, conclusion Munoz-Flores, 110 S.Ct. presented. claim (1990); L.Ed.2d 384 Carter, 444 U.S. Goldwater adhering Supreme Consequently, (1979) 533, 536, L.Ed.2d 428 100 S.Ct. Powell, reject guidance Court’s J., judgment) (Powell, concurring challenge is non- Nixon’s argument does Constitution (“Interpretation “textually demon- aof because reviewable respect coordinate imply lack to a coor- the issue strable commitment” branch.”). may respectfully If the Court dinate branch. it has unconstitu- House that inform the Disrespect to the members, its tionally own excluded one inform Sen- surely may respectfully argue that appellees Alternatively, the unconstitutionally it has convicted ate that nonjusticiable held should be claim Nixon’s im- him an judge “trypngj” without impossibility of court’s “the because Indeed, accept to were we peachment. resolution with independent undertaking view of what constitutes Government’s coor respect due lack of expressing out branch, “every “disrespect” a coordinate Baker, government.” branches dinate chal- a constitutional resolution of Appel 369 U.S. ... would congressional lenge to a [action] review of Judicial Br. at 28-29. lees Munoz-Flores, 110 impermissible.” in be employ a committee decision Senate’s original). (emphasis S.Ct. at particularly impeachments would trying argues, because the Government insulting, vigorously de- that the Senate The fact gave reveals the record its actions constitutionality of bated consideration thoughtful and careful non- Nixon’s claim fails render likewise Appel constitutionality of its decision. pointedly justiciable. Br. at 49-50. lees year: last suggestion only rejected this however, reject- explicitly considers claim, too, Congress must be often This provi- holdings Supreme Court’s bills violate light of the whether ed in by the Congress In Pow- is bound subsequent cases. Because sions. Powell law Constitution, notion that rejected the its enactment ell, the Court judg- Represent- on a implicitly House of invalidating the at least ruling predicated express is constitutional.... Powell ment that law atives’ exclusion of stat- The consideration congressional disrespect for the House. Yet such fore- does not questions summarily: ed constitutional of the scrutiny subsequent judicial close requires that government system Our contrary, the constitutionality. On interpret the laws’ on courts occasion federal the duty to review has the this Court with at variance in a manner Constitution question, is political plained judi- of involves a extra-ordinary abstention from no such by granted the Constitution powers review; ordinary the only within they the called cial complained act political branches. political the domain. respect courts that on limitation no reviewed, constitutional of violates to invali- Having the Court refused impos- the Constitution power, they either because challenged because actions date the limitations, the ac- or because relevant authority es no Presi- the constitutional within prescribed. amply the limits within tion Congress. did the Court no case In dent or political branches give effect what question,” "political We phrase have to use they political authori- had did, because done using have ty it in a different it and sense, it when do it." the Constitution under “We have reviewed saying in effect: omitted). 6, (footnote Henkin, supra note com- your we that action claims and find 258 Carr, 217, 710, 82 S.Ct. at 369 U.S. congressional enact-

constitutionality “shifting and uncertain contours that ments. political doc- underpinnings [of omitted). (citations Id. at 1968-69 indiscriminate susceptible it make trine] from the admonitions light of these In proper- application to claims and overbroad Court, agree cannot we Supreme courts,” Ramirez de ly before the federal of Nixon’s that review appellees Arellano, 1514, F.2d at we have been 745 might ex- it foreclosed because claim is temptation. diligent resisting for the Senate. disrespect press ques- scope of the The narrow Justiciability on Conclusion 3. evident from the tion doctrine is in recent treatment of the issue Court’s acknowledged previously This court has since Baker nearly years 30 In the cases. is a political question doctrine that “[t]he Carr, v. Supreme Court has turned adjudication tempting refuge from under nonjusticiability aside assertions claims.” Ramirez difficult constitutional cases.11 in more than a dozen the doctrine Weinberger, 745 1500, Arellano v. de F.2d (en Morgan, v. Gilligan one, banc), 413 U.S. vacated (D.C.Cir.1984) 1514 2440, (1973), 1, 407 37 L.Ed.2d 93 S.Ct. grounds, 1113, 105 S.Ct. 471 U.S. presented held that a case And, the Court yet, 2353, 86 L.Ed.2d 255 political question, and nonjusticiable reject “courts cannot as ‘no cognizant Gilligan’s holding does not ex- plain controversy fide as to suit’ a bona law beyond unique facts of tend far ‘political’ denominated some action whether v. Baker authority,” case.12 exceeds — Munoz-Flores, nonjusticiability finding in Gil The Court's v. U.S.

11. See United States extraordinary 1964, 1968-71, ligan -, was dictated more L.Ed.2d 384 95, 102, 110 S.Ct. 109 legal remedy sought constitution than (1990); Millsap, Quinn v. 491 U.S. 109 plaintiffs questions presented. in that al 2324, 2329, (1989); Japan L.Ed.2d 74 S.Ct. 105 challenge brought under 42 U.S.C. had case Whaling Soc’y, American Cetacean 478 Ass’n v. Kent State in the wake of 1970 § tragedy, 2860, 2865-66, 221, 229-30, 106 S.Ct. 92 U.S. way trained and in which Ohio Bandemer, (1986); v. 478 U.S. L.Ed.2d 166 Davis relief, supervised National Guard. As its 118-27, 2797, 2802-08, L.Ed.2d 106 S.Ct. 92 damages plaintiffs but rather an did not seek Oneida, (1986); County N.Y. v. Oneida 85 against injunction viola future constitutional State, 470 U.S. 248- Indian Nation N.Y. and, supervision specifically, of fu tions court 1245, 1258-60, 84 L.Ed.2d 169 105 S.Ct. Gilligan, policies ture Guard and activities. See 919, 940-43, Chadha, (1985); 462 U.S. INS v. 5-6, Justices S.Ct. at 2443-44. Six 413 U.S. 93 2778-80, (1983); 77 L.Ed.2d 317 103 S.Ct. Stewart, Marshall, Brennan, (Douglas, Black Weeks, Bus. Comm. v. 430 U.S. Delaware Tribal Powell, JJ.) plaintiffs’ mun & considered 911, 918-19, 73, 83-84, 51 L.Ed.2d 173 97 S.Ct. by subsequent core claims to have been mooted 347, 351-53, Burns, (1977); 427 U.S. 96 Elrod v. Guard, voluntary Ohio to reform efforts 2673, 2678-80, (1976) (plu- L.Ed.2d 547 S.Ct. training pro including the institution new Stanton, rality opinion); 421 U.S. Stanton (Doug grams. S.Ct. at 2446-47 See id. at 1373, 1376, (1975); 43 L.Ed.2d 688 95 S.Ct. JJ., las, Brennan, Marshall, dissent Stewart & 683, 692-97, Nixon, 418 U.S. United States v. J., (Blackmun, ing); id. at 93 S.Ct. at 2447 3090, 3099-03, (1974); 41 L.Ed.2d 1039 S.Ct. concurring). majority Court also held A McCormack, U.S. Powell v. sought plaintiffs continu that to the extent the Rhodes, 23, 28, (1969); Williams v. 393 U.S. against possible ing judicial supervision future 9,5, (1968); Reynolds 21 L.Ed.2d 24 S.Ct. abuses, nonjusticia they presented a Guard had 1362, 1392, 533, 582, Sims, S.Ct. 377 U.S. 7-8, 10, political question. id. at ble Sanders, (1964); Wesberry v. L.Ed.2d 506 Justice Blackmun ex 2445-46. As 526, 528-30, 1, 5-7, 11 L.Ed.2d 481 concurring opinion: plained in his (1964). prospective relief in the relates to This case cases, narrowly Court has con highly subjec- In other judicial form surveillance of ruling expressly involving military without on strued the doctrine tive and technical matters See, Passman, such, e.g., application. presents 442 training Davis v. it command. As 11, 2264, 2272, 228, subject ju- "[inappropriate] U.S. 235 n. ... matter for an others, Court, consideration,” (1979). respondents L.Ed.2d 846 In still for are ask- dicial ing Court, justiciability, fashioning pro- addressing in that without the District relief, variety previous upon policy passed spective that “to enter determi- "has on a of issues judicially manageable ly thought justicia stan- not to be nations for which would have been lacking.” supra dards are Wright, ble.” C. note at 77. standing, practice, then to historical backdrop that we must against this It is England. and in These both in America Nixon’s case. Because consider explicit an me to conclude that the inquiries exceeded lead Sen- alleged that the Senate authority by gather con- limitation on its ate’s use of a committee evidence textual him in “trypng]” relating charges first to the victing him without and hear witnesses Constitution, I by required against deprive Nixon did not Nixon of the sense competent to protected right. courts are constitutionally that the conclude counsel argument, oral his claim. At hear this implicitly conceded the Government

for 1. Theoretical Framework Nixon’s claim authority to review court’s framers, plain enough by It is that the review a agreeing that this court could assigning the task of unconstitutional- had claim that the Senate Impeachments,” intended that “trypng] all authority try delegated its ly quasi-judicial capac in senators would act group randomly chosen to a ments ity convicting removing high in federal schoolchildren, only the reserving to itself By using a used elsewhere officials. word result formally approving whatever task judicial pro refer to the Constitution to In this both group recommended. ceedings, appeared to the framers reveal however, the hypothetical, and that case impeachment “tri an intention that Senate claim is identi- for the constitutional basis rough als” would bear some likeness to not “tried” that the Senate has cal: in criminal sort of “trials” carried out meaning of the Consti- within the accused providing jury courtrooms. for criminal hear competent to If the court is tution. trials, example, care the framers were claim, hear the competent to one it must be except impeachment trials. U.S. ful to other. III, (“The of all art. cl. 3 Trial Const. squarely this con- Because find case Crimes, except Impeachment, in Cases of McCormack, I con- trolled Powell express by jury_”). shall While this justiciable. that Nixon’s claim is clude suggests the framers did exception require the to observe not intend to C. The Merits trials, criminal procedural incidents of may have suggests also that the framers merits of Nixon’s claim Resolution of the type thought impeachment trial as a of an requires exploration an of the text Consequently, the Consti framing of criminal trial. history of its and the Constitution “try” to describe use of the word is meant tution’s in an effort to determine what rendering impeach function in requirement that the the Senate’s Sen- at end, implies duty to accord judgments I ment “try” impeachments.13 To that ate judicial framers, rudimentary hallmarks of least the used look first to the words receipt including the of evi fact-finding, in the text of the Constitution both witnesses, right dence, their under- the examination reflective of other documents court, J., appellate (Blackmun, re in the trial concur- this court and at S.Ct. at 2448 Id. Carr, surprise preju ring) (quoting 226, Baker v. 369 U.S. "undue view would cause no materi- 715: bracketed Burger, 82 S.Ct. n. 9 665 F.2d dice.” Grace v. Henkin, original): supra note al in see also (D.C.Cir.1981), part part & vacated aff’d (noting posture of aberrational Grace, grounds United States v. sub nom. concluding: something Gilligan case and "It was 75 L.Ed.2d 736 remedy, denying equitable than to closer to abstaining Indeed, contrary, “a remand to dismissing judicial review and Court, inevitably would result the District nonjusticiability, court, be a appeal 'would future been) (and should have about" ” have been (quoting Unit Id. resources.’ waste Gilligan). Aulet, (2d Cir. F.2d ed States purport (no Although Powell, did the District Court 1980)); U.S. at 550 also claim, we would to reach the merits of Nixon’s following necessary reversal of Court’s remand required the trial court for not be to remand to finding nonjusticiability where lower court’s factual review of the merits. Because the initial already disposition facts essential to fully developed below and because record was established). conclusively argued fully and both in merits were briefed degree of credit “possess the hearing by was seen to a chance for to counsel might, oc- authority, which on certain accused. casions, indispensable, towards reconcil- be intended that framers The inference decision, to a that should people to roughly to akin trials be impeachment brought with an accusation happen to clash seemingly by is reinforced criminal trials Id. at representatives.” their immediate by by Alexander made unrefuted statements recognized that there 441. Hamilton also debates. during the ratification Hamilton gained trying in advantages to be were No. example, Federalist In in a “tribunal more numer- impeachments trying in wrote that Hamilton consist with a reasonable than would ous “judicial act in a impeachments, would economy,” judicial to with attention The Federalist No. a court.” character as Id. tribunal. 1961). Hamilton) (J. (A. ed. Cooke at 439 explaining why impeachment im- In further purpose described the Hamilton assigned to the rather inquest into the trials as a “national peachment court, however, Hamilton wrote: than to a the ulti- public men” which conduct of “real demon- the trial was a proceedings] mate aim of never [Impeachment can be Id. at guilt.” rules, innocence or by either in tied such strict down stration[] the delineation of the offence of it prosecutors, or in the construction the Sen- The framers’ determination Judges, as in common cases serve by the authority try should have the sole ate of courts favor to limit the discretion their desire to impeachment cases reflected security. personal partisanship in such the forces of harness unavoidable, Instead, Hamilton Id. it was influence of and to elevate the matters wrote, impeachment, sitting id. at that a court of objectivity and fairness. reason, charged es- noted, judgment of officials with As Hamilton 440-42.14 1787) ("[T]he (Nov. power trying egates supra note at 79 n. 130 14. See R. Berger, shows, lodged Body warning: “history impeachments (quoting [the this Jefferson as likely governed by England, impeachment cool has been an en- as more to be Senate] that in passion justice”). investigation, gine than those heats more of than and candid popu- serve as a more intended that inflame and influence framers that too often judiciary against Assemblys.”), reprinted abuses of III The Records of check lous executive, (M. yet they were also alert to or the Convention the Federal danger might 1966) itself be ed. M. [hereinafter Farrand rev. Farrand]; bludgeon against political upon Impeach- abused as a crude of Luther Martin Remarks supra, (Feb. 1804), opponents. See The Federalist Chase ment Trial of Justice No. (urging prompt might Senate trial supra, at 406. reprinted in III M. Farrand, “persecution [by] an intem- needed to check ... regard, well have drawn the framers designing majority perate in the House of history, English upon in which lessons from Representatives"); also P. Hoffer &N. steadying as a check Hull, House of Lords stood (1984). Impeachment at 99 willingness against the House of Commons’ America, disagreement, impeach, on the basis of require- is also reflected in the This concern no conduct that two-thirds, officials who had committed be voted ment that conviction treasonous or otherwise could be considered majority: simple, rather than a supra, See P. Hoffer & N. unlawful. [Impeachment "pop- should not be Hull, decisions] Roberts, 5-6; Impeachment The Law assigned this labor to ular." The Constitution Berger, England: Reply to Raoul Stuart A delegates expected the the Senate because the wisdom, Yale L.J. 1419 upper rely upon house to its own "designed information, Consequently, a delib- the framers stability, temper. and even occasion, erately mechanism ... opined, cumbersome removal Hamilton There was no judiciary protection provide upon deli- additional which the Senate should be more Edwards, Regu- against congressional politics.” popular and shielded from clamors berative Divining impeachments. lating "Good hear Judicial Misconduct than when it sat to ("Later Judges, 87 Mich.L.Rev. Behavior" Federal [after Id. at see also id. at 99 (1989); Convention], James McHen- 767 (A. Hamilton) (J. see also Constitutional both The Federalist No. 1961) (constitution- Maryland ed. ry recalled that Cooke and Luther Martin of only provi- only body likely impeachment mechanism “is the al the Senate seemed to be the dispassionate point[ is consistent with the impeachments on the ] view in a cool and sion necessary independence manner.”) (footnote omitted); charac- Address of James ter"). Maryland McHenry before the House of Del- remains, despite the con- offenses, at 439 id. “political” sentially omitted), “[ijmpeachment trial was to be sensus that would an capitalization (original regular in distinguished from trials at an “awful discretion” be left to exercise task, law,” id., special The Sen- its id. at 441. the use of com- out whether carrying capacity, fitted to serve this is to receive evidence consistent ate best mittees was reasoned, framework, its relative because framers theoretical the the with framers’ give it would from the electorate procedural i.e., greater insulation whether flexi- necessary independence judgment “try[ing]” im- bility accorded give that prestige paramount would and enough permit peachments broad to is authority that credibility and judgment evidentiary committees. use of American adherence required to command might be point arguably this practice historical on peo- and “agitate[d]” an “divide[d]” from full weighted trial toward 439, 441. ple. id. See employed impeachment for the statements, it can be time all of these trial for the first From committee in- the framers reasonably inferred 1986. But see Part II.C.2.b There infra. approach its would however, that the Senate England, sup- tended precedent from impeachments the so- trying with duty committees, porting the use of and befitting judicial impartiality lemnity and suggest English practice may be read to procedural flexibili- greater but with action to that the framers did not intend foreclose trials. ordinary criminal attends ty than possibility American constitutional Gerhardt, at 89-91.15 supra note practice. Practice 2. Historical English a. Practice practice beginning, historical From im- framework for The constitutional understanding that the framers’ confirmed English modeled after the peachments was a middle occupy trials would impeachment bringing impeachments experience of free-wheeling partisan- ground between by trial followed before House of Commons decisionmaking and ship legislative House Lords. See The Federalist crim- procedural formalities rigid prob- Although it is supra, at 440. No. and state inal trials. From earliest say that “almost an overstatement ably agreed that impeachments, it was federal impeach- American process the entire [of procedure to criminal “[sjtrict adherence English prac- bodily from was lifted up- ments] jurisdiction of the hamstring the tice,” supra note Berger, at 179 R. house, jurors, for the senators were per omitted), doubting (footnote there is no not be P. the offenses need crimes.” and impeach- English significant influence supra note at 125. & N. Hull, HoffeR theory impeachment had on practice ment time, was al- the defendant “At the same under the American constitu- practice and protections guaranteed many of the lowed tion.17 trial.” Id.16 in a criminal Chase, though the Samuel extent already Court Justice noted that the Constitution I have procedure from criminal impeachment allowable deviation except trials was careful to itself subject controversy." N. P. Hoffer & obligation try cases before 2, criminal (footnote omitted). III, supra cl. 3. note jury. art. See U.S. a addition, Const, Hull, expressly limits Constitution scholarly controversy appears to chief 17.The imposed upon conviction penalties that upon the Constitution’s im- center whether office impeachment removal from directly provisions peachment were more influ- art. disqualification, see future Const. practice by English impeachment enced penal conse reserving serious more cl. early experiments incarceration, with colonial for criminal quences, such as supra note Compare R. ment. Berger, conviction. 9, 76, 84-85, 90, (em- & n. 217 & n. influence) English phasizing P. Hoffer N. early & understanding,” out hammered 16. “This xii, 96-97, (emphasiz- supra by state note trials of state officials Hull, of state and colonial influence im- [federal] at the legislatures, "was reiterated Blount, Berger’s criticizing practices reliance on peachment trials of ex-senator William Gerhardt, supra English precedent) note Pickering, judge John federal Lords, commit- the use of House of did not Lords of Although the House wit- and examine evidence to take for tees single procedure any strictly to

adhere or disa- banned never been leading has years nesses in the impeachments trying im- were other precedent as Conven- vowed Constitutional American up to the —as to have considered procedures careful, peachment as of at least tion, were the Lords wrongly cer- accused invoked. 1600s, been to afford early such as safeguards, procedural Thus, omitted). tain (footnotes 531-32 Id. at right dis- to a limited and right to counsel “tri- impeachment anof English notion Hull, supra & N. covery. P. See theory ulti- al,” Hoffer was which American upon Williams, 5; The Historical 14, at spe- note of modeled, for the use allows mately the Senate’s Bases Constitutional gather evidence to cial committees To or Committees Masters To Use Power final in of delibera- hear advance witnesses Trials, Impeachment in Evidence Receive designated to body the full before tions Over 50 N.Y.U.L.Rev. question. decide was process trial English “the years, these Practice b. American flux,” evolutionary and “[t]he of in a state well were Founding Fathers American years of American During the first 199 English of character the unsettled aware of is no doc- history, there constitutional Williams, su- proceedings.” impeachment of any use the Senate record umented at 523. pra, impeach- in an evidentiary committee uniformity of But proceeding. ment impeachment most English practice, In a time full hearings before as- the full conducted before trials were and the Sen- were rare impeachments when Lords, just as House sembly of the necessarily mean smaller, does ate was customarily were impeachments American that committees framers intended that the the full Sen- entirety before in their tried impeach- in as a tool never be used could however, in were, exceptions ate. There in the simply no basis There ment trials. employed special House of Lords which the Sen- record to believe historical in advance evidence to receive committees during employ a committee to ate’s failure full a vote final consideration trials reflected early impeachment its impeachment English body. review A an alterna- that such judgment considered precedent authori- beyond its constitutional tive was the House doubt that beyond shows that, many Rather, all we know ty. hear to evidence used committees Lords found it un- apparently the Senate years, early in the during impeachment trials using consider evidentia- necessary even to determine Century. It is difficult 17th proceedings, impeachment ry committees practice contin- definitively whether used; circum- but when and none ued, use no direct reference perceived to be different stances were tri- impeachment during later committees allowing XI adopted Rule clear, how- It is discovered. als been committees. use of such for the that, practices ever, which unlike Williams, supra, at 540.18 action affirmative were outlawed dispute that plicit model for sions. As one commentator rized: procedures United states’ the Constitutional Convention. English experience with the thirteenth ries. (same). exceptions, impeachment experiences States Constitution the American English were At through bottom, however, served practice, procedure set turn as the foundational impeachment from has its influenced eighteenth recently summa- with certain origin in the These forth there prior by the centu- provi- in the is no state ex- the nation’s sions, supra, every generation, see ification, members more than ted). al ments Gerhardt, Judges: also Rev. L. Fordham the Senate has supra note years A forty-fold. appears founding Study trials in since since federal Feerick, Impeaching Feder- until have increased. The the Constitution's 1, 25 grown at 10 there have been judiciary has Constitutional Senate, roughly one pace (1970); (footnotes there Williams, were grown Provi- three. From omit- rat- acknowledgment express one at least XI confirms that origin of Rule writings American early evolving circum- motivated adoption was might employ evidentiary committees hearings evidentiary full stances impeachments. While he was serv- trying becoming increas- floor on the Senate president as vice of the United States preju- and, probability, unwieldy in all ingly president and of the Thomas Jef- of the accused. interests dicial to the regarded as the ferson drafted what is still evidentiary committees establishing idea of authoritative manual on the rules most trials was impeachment with in connection it, In he noted that the Sen- the Senate. “Senators, when proposed first part English derived from ate’s rules are size growth in the Senate’s of the aware practice English and that parliamentary accelerating development of its of the and evidentiary use practice permitted the function, con- beg[a]n to voice legislative conducting impeachment tri- committees in im- of their the onerousness cern about Lords, als. In the House of Jefferson ob- propos- early That duties.” Id. peachment apparent approval, with served Rules Commit- languished in the Senate al practice is to the witnesses in swear [t]he after years later revived 30 tee but was House, then examine them open subsequent at by senators poor attendance there; named, or a committee proved an institutional impeachment trials committee, who shall examine them id. at 541-42. embarrassment. See interrogatories agreed on on in the either Judge Robert Circuit At the 1913 trial of House, in their or such as the committee Archbald, when the example, at a time shall demand. discretion members, composed of Senate was T. Jefferson, Parli Manual of Jefferson’s counsel, Alexander Judge Archbald’s amentary reprinted in H.Doc. Practice, to find that Simpson, was distressed Cong., 98th 2d Sess. No. the at- rarely attracted proceedings trial added). (1985) suggests (emphasis This more than 20 Senators tention of view, that, consti least in Jefferson’s no at composition group of the that even impediment existed to the Senate’s tutional constantly changing: fol- attending was impeachments. trying use of committees routines, the Sena- lowing their normal noted, although Jeffer As one scholar tors, behaving judges like far from of the himself a member Con son was not trial, in and during wandered jurors Convention, the Man stitutional “[s]ince will, often chamber at out of the Senate close on the publication followed ual’s response quorum to a gathering only in ratification, we of the Constitution’s heels call. are not at that its conclusions may assume omitted). (footnote Attendance Id. of the framers.” the intentions odds with of Dis- at the 1933 trial was even smaller event, Williams, any at 539. supra, Repre- Louderback. Judge trict Harold dispositive, are not while Jefferson’s views Sumners, one of the Hatton sentative rele of the they give further evidence do managers, complained impeachment House English tradition. vance of the magazine that one time to Time “[a]t English recognize that the occasional present for ten were three senators impeachments trying of committees use was presented evidence what days we answer to is not a conclusive empty chamber.” Id. at 542 practically an Constitu- regarding the intentions 18). Mar. at (quoting n. 160 Time, all, were, ele- after There tion’s framers. handling of over the Senate’s Concerns practice— English ments of directly adoption trials led these even criminal and imposition of such as Rule XI. and the upon conviction capital punishment simple of a history, I do not vote foregoing for conviction Given the allowance affirmatively experience in con- the framers majority earlier view the Senate’s —that Ameri- in the or recast evidentiary proceedings sought on the to disavow ducting full N. Hull, P. Hoffer & revelatory system. constitu- can floor as Gerhardt, supra note Moreover, supra note there is commandment. tional entirety full in their before the place Building upon a take n. 116. 23 & Consequently, I would find un- Senate. framers precedent, the English base evidentiary limited use of an the Senate’s an “Americanization deniably effected case needs, in connection Nixon’s committee toit American fitting— him of the sort of “trial” limits, deprive did defining its republican, making it constitutionally he entitled. for- with constitutional experimenting [and] Hull, supra & N. P. Hoffer mulations.” objects that the deliberations Yet, xiii. existence note case, they full Senate his based as any affirma- and the absence precedent, arguments by parties and final fram- by the American of it rejection tive evidence, report on the the committee’s suggestion ers, effectively refutes the “trial” in the sense cannot considered tri- impeachment in committees the use always Americans have understood that repulsive to alien or been have als would true, the more that word.19 This is all As designed the Constitution. who those contends, credibility deter- Nixon because has concluded: Williams Professor as- to the ultimate minations crucial were least, of recorded the lack very theAt yet guilt or innocence and sessment of his proce- controversy impeachment over did not see the witnesses 88 of 100 senators de- to the belabored contrast dures—in opportu- person in and thus had no testify im- law of over the substantive bates inferences about nity to their own draw American place in the and its peachment veracity. witnesses’ suggests that constitutional scheme— tri- ordinary an criminal If Nixon’s were depart any need to did not feel framers But, already al, readily agree. as I would procedural prac- English sharply noted, that the framers history makes clear from the tice, though they deviated even trials to mir- impeachment never intended in re- model English impeachment trials; sup- nor was it ever ror criminal spects. be trans- the Senate would posed that omitted); (footnote Williams, supra, at 520 Article III court when into an formed 537-38, 543-44. id. at see also impeachment. up trying task of took using spe- practice design, “impeachment that the By conclude the framers’ to collect evi- impeachment committees in the sena- hearings cial not trials which were they in advance of final consideration jurors, despite dence the fact tors were affirmation, with- Senate can be accommodated so upon the full oath or much sat sessions, text they of the Constitution’s parameters in when decided deliberative public fram- betrayed indicia of the his the other historical official had whether an said, given supra note Hull, It cannot be P. Hoffer & N. ers’ intent. trust.” Williams, supra, at 576- English impeachment practice history accord statements, Thus, requires that the the Constitution framers’ own what and the conducting impeachment re- in require of the Senate intended framers rigid is adherence criminal trials ceipt of evidence and the examination not fair- attention to always procedure but a solemn impeachment trials witnesses Sen thought than no other tribunal argues use of a Morris also that the Senate’s 19. Nixon effectively trying evidentiary the task of committee be trusted [with 12-member ate could choosing Supreme one of the framers’ reasons too impeachments]. defeats the Senate over the appropriate Court were as the most warped corrupt might be few number impeachment trials. forum supra ed.”), reprinted M. note in II Farrand, preferred points that the out framers Yet, this should clear what it is far from at 551. court of over as a Senate constitutionality Sen suggest of the about part because then Supreme Court in evidentiary committee Nixon’s ate’s use an members, larger. comprised See of 26 gather role in the committee’s case. Whatever 65, supra, The framers at 441-42. No. Federalist evidence, deci deliberations and the final high placing to remove believed federal officials in the guilt concerning con Nixon’s sionmaking more Senate "numerous” Senate, fulfilling the framers’ full ducted help independence and to ensure the would integrity acquittal be decided conviction or intention that id.; decisionmaking. hearing special ry before a committee fol- judgments and that these examiner review, argument lowed and delibera- contrary though may upheld even by the full tion Senate—is far better calcu- actual- by the examiner who those reached lated to achieve the ends intended See, testify. e.g., ly heard the witnesses framers, i.e., that the ultimate decision be NLRB, Corp. v. Universal Camera grounded partisan in evidence rather than 474, 494-96, passion, that it be arrived at a “numer- (1951) (examiner’s find- factual L.Ed. 456 body fact-finding upon that the ous” credibility, ings, particularly as to witness a sol- which it is based be conducted with weight, entitled to but probative emn attention to fairness such as would conclusions). contrary reach Board respect and adherence of a command the Williams, supra, at 590-606. generally potentially divided nation. mean, course, equate the I do not Consequently, I find that the Sen- would trying an Senate’s role the bounds of its constitu- ate acted within agency’s conducting adjudica- with an authority it convicted Nixon tional when tion; responsibility is often far the Senate’s partly gathered by a on evidence based grave implications more and the of its deci- trial committee. special impeachment significant in life of the sion far more time, experience nation. At the same III. Conclusion that, establishes while of these tribunals reasons, foregoing I would find For the that is Nixon’s notion of “trial” one con- presented justiciable that Nixon recognized appropriate model for an merits, however, I troversy. On court, III not the exclusive Article “try” in fact find that the Senate did fair that the Sen- notion of a trial. Given meaning of the Constitution and within the court, an Article III and is not ate is not constitutionally therefore that Nixon was expected purposes one for become affirm the his office. would deprived of reason to trying impeachments, there is no these judgment the District Court on thought apt in a every procedure it to bind grounds. Gerhardt, traditional forum. See (examining supra the Senate’s note evidentiary committees in the Nixon

use of Hastings impeachment trials and con- “[tjhere such a

cluding that is little doubt already suggested, history has landish.

20. As I have entirely hypothetical is not out- shown that Notes of the body. by a more "numerous” 8, 1787) ("Mr (Sept. Govr James Madison constitutional”); Williams, procedure procedures su- guided by whatever ness pra, at 619-20. fitted to that end. reasonably finds the framers “de- Simply put, the fact that especially This conclusion seems clear removal signed deliberately cumbersome light of the concession Nixon’s counsel Edwards, mechanism,” note supra argument at oral that the Constitution does that the Constitution does not mean require senators, the attendance of all the most interpreted to command must be senators, most or even at an imaginable. procedures cumbersome constitutionally “trial.” The Senate could “try” Nixon even with fewer than sena- might make that senators The notion present, argued, tors Nixon’s counsel so having without credibility determinations long as it was done on the Senate floor.20 not, person the witnesses scrutinized significance But the constitutional assertions, alien to ac- contrary Nixon’s difference between that scenario and the procedural fairness cepted standards of evidentiary proceeding provided sort of tribunals, for country. Administrative contrary, Nixon eludes me. To the I be- decisions, instance, thought fit to make procedure employed by lieve that the credibility, based including judgments on prolonged in this case—a evidentia- by a hear- compiled elsewhere on a record

Case Details

Case Name: Walter L. Nixon, Jr. v. United States of America

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Aug 5, 1991

Citation: 938 F.2d 239

Docket Number: 90-5246

Court Abbreviation: D.C. Cir.