One Utah

Duke Law Journal Volume 1974 (January) No. 6, 1023-1116. Reprinted with permission. Document PDF

The genesis of this document was a request by the then Senate Majority Leader, Mike Mansfield via Utah Senator Ted Moss to provide a how-to in preparation for the impeachment of Richard Nixon. It is a survey of substantive law of impeachment. It was accompanied by a The Procedural Law of Impeachment also by Ed Firmage.

This document went through a number of iterations as events unfolded through Nixon’s resignation to subsequent pardon.

REMOVAL OF THE PRESIDENT: RESIGNATION AND THE PROCEDURAL LAW OF IMPEACHMENT*

Edwin Brown Firmage bio, website **

R. Collin Mangrum***

OUTLINE

I. Introduction

II. The English Precedents

III. House Impeachment Procedure

A. The Initiation of Preliminary Investigations in the House

B. The Irrelevance of Probable Cause to Impeach Named Individuals

C. Investigations Preparatory to the Articles of Impeachment

D. The Drafting of Articles of Impeachment

E. The Right of the Accused to Appear in the Court of the House Investigation

F. The Burden of Proof for the Adoption of the Articles

G. The Public Eye on the Adoption of the Articles of Impeachment

H. The Committee Report on the Articles of Impeachment

I. The Vote on the Articles on the Floor of the House

J. The Effects of Recesses and Adjournments on the Impeachment Process

K. The House Selection of Managers

IV. Senate Impeachment Procedure

A. Does the Senate Sit as a Court?

B. Initiation of the Senate Trial

C. The Presiding Officer

D. Conduct of the Impeachment Trial

E. Evidentiary Rulings

F. Final Arguments and Voting

G. Judgment

V. Raising the Defense of Executive Privilege

A. Executive Privilege Based on Separation of Powers

B. Withholding Information When the Public Interest Requires Executive Secrecy

C. Withholding Information on the Basis of a Statutory Privilege

VI. Excluding Evidence on Other Constitutional or Evidentiary Ground

VII. Impeachment and Judicial Review

VIII. Impeachment and Indictment

IX. Pardon and Impeachment

A. Historical Analysis of Pardon

B. Elements of Pardon

C. The Nixon Pardon and Beyond

X. Conclusion

XI. Epilogue

XII. Appendices

Actuated by these sentiments our ancestors arrayed themselves against the government in one huge and compact mass. All ranks, all parties, all Protestant sects, made up that vast Phalanx. In the van were the Lords Spiritual and Temporal, Then came the landed gentry and the clergy; both the Universities, all the Inns of Court, merchants, shopkeepers, farmers, the porters who plied in the streets of the great towns, the peasants who ploughed the fields. The league against the King included the very foremast men who manned his ships, the very sentinels who guarded his palace. The names of Whig and Tory were for a moment forgotten. The old Exclusionist took the old Abhorrer by the hand. Episcopalians, Presbyterians, Independents, Baptists, forgot their long feuds, and remembered only their common Protestantism and their common danger . . .The coalition of 1688 was produced, and could be produced, only by tyranny, which approached to insanity, and by danger which threatened at once all the great institutions of the country.

Macaulay on the Fall of James II[1]

I. Introduction

The aborted proceeding to impeach Richard Nixon has stimulated debate about the appropriateness of the impeachment process as a check upon the arbitrary use of presidential power. Impeachment has been criticized as a cumbersome, agonizingly slow, and unjustifiably expensive way for Congress to express its will, extracting a cost in an abraded electorate suffering further with duties of government unmet while Congress and the presidency are consumed with their offensive and defensive roles in the process. Termination of the impeachment proceeding without an admission of moral guilt (only “errors of judgment”) or a finding of legal responsibility is a disquieting denouement for the Watergate tragedy. Further, such proceedings could not adequately resolve whether a President who resigns when faced with certain removal should be allowed extensive federal retirement benefits or if a resigning President should have immunity from prosecution for criminal acts committed while in office—now a mooted question as to federal prosecution because of President Ford’s pardon.

Congressman Henry Reuss has proposed in response to this crisis the adoption of a modified form of responsible government to be accomplished by a constitutional amendment, which would permit the removal of the President by a three-fifths vote of no confidence by the members of each House of Congress.[2] A new President and Vice-President would be chosen in a special election held following such a vote. Under such a system, a President could be removed simply upon the basis of a strongly felt difference on policy or for an error in judgment, rather than upon conviction of the commission of treason, bribery, or other high crimes and misdemeanors. The President would enjoy office at the sufferance of Congress.

It is suggested, however, that when considered within the parameters of our present system of government, the process of impeachment, even if it culminates in presidential resignation, has served as an effective deterrent to the arbitrary abuse of presidential power. A radical change in the law of presidential removal is not called for by the Nixon resignation.

Of course, impeachment is cumbersome, heavy artillery in the arsenal of democratic government, not designed to go after a mouse—a rat on occasion perhaps, but never a mouse. Other procedures are available for lesser game, including a vote of censure.

Nor is it meant to be quick. Within a governmental system of checks and balances in which the President possesses an electoral mandate equal to and independent of Congress, it would violate an expression of the people’s will to accomplish his removal from office before not only Congress but also the people recognize by a substantial majority that legitimacy had departed, the mandate finished.[3] Of course, the efficiency of that process depends upon the speed with which evidence can be produced. Thus, where immediate presidential compliance with congressional fact-finding incident to an impeachment inquiry would appropriately shorten the process, categorical refusal to comply with congressional subpoenas should be considered an impeachable offense, since toleration of such failure would destroy the impeachment provision.

In the sense that the process was designed ultimately to protect the country against corruption and the abuse of power by removing rather than punishing the offender, impeachment works; this is appreciated particularly when it is understood that resignation is not “extralegal,”[4] apart from the process, but rather is an historically often-used and a constitutionally mandated[5] part of the system. The framers demanded the preservation of separate criminal proceedings, to accomplish punishment, as the price paid for the removal of English criminal sanctions from the process of impeachment.[6]

Finally, rejection of the parliamentary mode does not necessarily suggest a qualitative judgment in favor of a governmental system of separated branches balanced and checked. It is simply a recognition that after 200 years of such governance, the separation of coordinate branches is woven into the warp and woof of the community, and is not able to be extracted and replaced without rending the whole.

Our purposes, therefore, are twofold: first, to analyze in detail the American procedure of impeachment, in the hope that wider knowledge of its provisions will render the use of the process more effective in constraining executive and judicial power; and second, to offer suggestions for improving the process within the bounds of our historical constitutional system. IN that which follows, the first three sections present an analysis of the procedural law of the impeachment process as it operates when no objections or defenses extraneous to the impeachment process itself are raised by the defendant to impede its normal resolution. Later sections discuss the various immunities, privileges, rights, and powers, which a party defendant to an impeachment proceeding may exercise in an effort to thwart, delay, or reverse the course of the congressional impeachment process. The final sections treat the effect of resignation upon an attempted impeachment and the effect upon the impeachment process of the pardon granted Mr. Nixon by President Ford.

Underlying the impeachment powers are four fundamental precepts, which should guide any discussion of the process of presidential impeachment particularly, and each recommendation for its improvement and refinement. First, the impeachment power was written into the Constitution to protect the principle of separation of powers. Impeachment had developed in England as a parliamentary process designed to protect and ultimately to enhance the power of Parliament against constitutional abuses and excesses of Tudor and Stuart ministers bent upon asserting absolutist power for the Crown against the prerogatives of Parliament. By this means, the King’s ministers were brought under the rule of law, and executive responsibility to Parliament was established.[7] Similarly, impeachment procedure was placed in the United States Constitution by founding fathers steeped in English law and history,[8] primarily as a check upon overweening executive power, as an “exception to [the] principle”[9] of separation of powers in order that that very principle might be preserved with governmental branches checked and balanced.

Second, as a prophylactic against the usurpation of powers,[10] impeachment was intended primarily to protect the integrity of government against political offenses. It cannot seriously be questioned that impeachment will lie for “great offenses” which arise out of misuse of constitutional powers which nevertheless does not constitute a criminally indictable offense. James Wilson, perhaps the greatest legal mind in the Convention, concluded that

[i]mpeachments . . . come not . . . within the sphere of ordinary jurisprudence. They are founded on different principles; are governed by different maxims, and are directed to different objects: for this reason, the trial and punishment of an offense on an impeachment, is no bar to a trial and punishment of the same offense at common law.[11]

Impeachment, Wilson wrote, was “confined to political characters, to political crimes and misdemeanors, and to political punishments.”[12] Similarly Chancellor Kent taught that “[i]f . . . the President will use the authority of his station to violate the Constitution or law of the land the House of Representatives will arrest him in his career by resorting to the power of impeachment.”[13] Thus, the Congress is called upon to curtail any abuse of political office through the exercise of its own political powers as representatives of the people.[14]

Third, the impeachment power was designed to preserve the basic structure of our society. While the impeachment process is fundamentally political,[15] it was designed to protect the foundation of the state itself—not to create a sanction for misjudgment or to settle disputes over policy, both appropriately dealt with through the electoral process. (To hold otherwise would do violence to that principle which undergirds the Constitution—the separation of powers—which the impeachment power was designed to preserve.) It was this that Hamilton referred to when he stated that impeachable offenses have “a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.”[16] Mason regarded the purpose of impeachment to be the prevention of “great and dangerous offenses,” resulting from “attempts to subvert the Constitution.”[17] Iredell, later to become a Justice of the Supreme Court, in the North Carolina ratifying convention, stated that impeachment would arise from “acts of great injury to the community.”[18] Madison saw impeachment as a preventive against a president perverting “his administration into a scheme of peculation or oppression”;[19] Morris perceived it as a deterrent for bribery.[20] In part it was this conception of the impeachment proceeding as a political institution which made it logical to transfer the forum of the impeachment trial from the Supreme Court as provided by an early draft of the Constitution, to the Senate.[21]

Finally, being a political process, impeachment should not be viewed as a duplication of the criminal process.[22] The impeachment process was designed to be neither a criminal proceeding, nor, in a strictly technical sense, a juridical trial. Removal from office cannot be viewed as a criminal punishment or its equivalent. To hold otherwise would be to assume that an office holder was possessed of an indefeasible property interest in the office. Joseph Story spoke of impeachment as “a proceeding purely of a political nature. It is not so much designed to punish an offender as to secure the state against gross official misdemeanors. It touches neither his person nor his property, but simply divests him of his political capacity.”[23] This conclusion was consistently held by virtually every early commentator on the process of impeachment.[24] Nevertheless, while the process was shorn of criminal sanctions,[25] certain aspects of criminal procedure and its linguistic trappings were retained from its English origins as a criminal proceeding within Parliament.[26]

To a large extent, it was this retention of criminal judicial forms and practices, which has given rise to further questions about what rights and immunities a defendant is entitled to raise before an impeachment court. Does the scope of executive privilege afford any protection whatever in a trial by the Senate? May fourth and fifth amendment rights be raised to exclude certain evidence, and who may assert such of the arguments which are likely to be relevant based upon the rights? Which, if any, of the interlocutory or final rulings and judgments of the Senate may be subjected to judicial review? While many of these questions must wait upon the political moment in which they will arise before they can be answered authoritatively, we shall present fundamental precepts and precedents underpinning the procedural law of impeachment.

II. The English Precedents

It has been said that “[t]the ‘crowning achievement’ of the fourteenth century . . . was to devise impeachments as a procedure for trial of the King’s ministers, who were otherwise not reachable.”[27] Unlike the bill of attainder where persons were sentenced to death without any trial and conviction in the ordinary course of judicial proceedings, impeachment involved both an indictment by the House of Commons as a grand jury of the nation and a trial at the bar of the House of Lords. Through the growth of parliamentary impeachment there emerged a procedural common law of impeachment which was familiar to the framers of the American Constitution and which has substantially influenced the proceedings in American impeachment cases to present.

It was the English law of impeachment, as summarized in Thomas Jefferson’s Manual of Parliamentary Practice,[28] that was referred to and followed, with some modifications, in the American impeachment cases. Under English law, the House of Commons, as the “grand inquest of the nation,”[29] generally conducted ex parte investigations against the accused,[30] passed resolutions containing a charge of impeachable conduct on the part of the accused,[31] directed some member to impeach the accused by oral accusation at the bar of the House of Lords,[32] and thereafter appointed managers to present articles of impeachment and to act as suitors for penal justice against the impeached at the bar of the Lords.[33] The House of Lords then issued process against the impeached party[34] and committed him where necessary.[35] Subsequently, the Lords acted as judges in the trial before their bar.[36] The trial before the House of Lords essentially followed the criminal procedure found in the courts and applied the same rules of evidence[37] with the judgment itself controlled by legal precedents.[38] An impeachment proceeding was not discontinued by the dissolution of Parliament but was resumed by the subsequent Parliament.[39]

Although English precedent has been relied on heavily in the American impeachment cases, Congress has the constitutional authority to control its procedure without regard to earlier precedent. Moreover, a persuasive argument can be made for substantially modifying the English procedure to accommodate special circumstances present in American impeachment cases, since one of the marked distinctions between English and American impeachment is that the English proceeding included the imposition of criminal sanctions, while criminal penalties are excluded from American proceedings.[40] Consequently, a relaxation of the strict rules of evidence and procedure used in a criminal proceeding is appropriate in American impeachment, which is more closely analogous to a civil trial. While Congress has rejected efforts toward general reform of its impeachment procedure[41]—professing to retain the English model with its criminal law superstructure—it has often modified its procedural rules in individual instances.

III. House Impeachment Procedure

The Commons, as the grand inquest of the nation, becomes suitors for penal justice. . . The general course is to pass a resolution containing a criminal charge against the supposed delinquent, and then to direct some member to impeach him by oral accusation, at the bar of the House of Lords, in the name of the Commons.[42]

Sole power of impeachment is conferred upon the House of Representatives by the Constitution.[43] The manner in which impeachments are conducted in the House, however, is not described in the Constitution but instead follows the accretion of procedural precedents which are modified from time to time by House resolutions. There follows an examination of these precedents as they are found in the thirteenth impeachments voted by the House,[44] with special reference to the Nixon proceeding whatever deviation from precedent occurred.

The House has generally followed its English and American precedents, even though the Constitution clearly authorizes it to abandon these precedents and to develop new procedures. Nonetheless, where equitable or public policy considerations have been urged in support of a particular change from procedural precedent, the House has been amenable to innovative modifications. These changes have led to the eventual adoption of specific procedures to guide the impeachment process through the House from its earliest initiatory investigations to presentment before the Senate.

An impeachment resolution is first presented to the House, and if that body sees fit, the matter is referred to the House Judiciary Committee for investigation. This Committee serves two purposes: it recommends to the House whether to vote to impeach, and it drafts articles of impeachment to be issued against the accused in the trial by the Senate. Following the Committee’s report on the articles of impeachment, the full House votes, and if it impeaches, managers are selected to present the case at the bar of the Senate. At certain stages in this process, questions arise about the necessity of showing probable cause, the burden of proof, the right of the accused to be represented, and the degree of specificity and publicity, which should accompany the House’s decisions, and formulations of its case against an accused public officer.

A. The Initiation of Preliminary Investigations in the House

Impeachment inquiries in the House are initiated by Congress in response to accusations made against civil officers.[45] Congressmen have preferred charges in various ways.[46] Individual House members have initiated impeachment investigations by preferring charges entirely on their own responsibility, usually reinforced by accusations made by others. Investigations have also been stimulated by presidential messages, accusations contained in memorials,[47] and as a result of general congressional investigations. Where individual House members present impeachment resolutions and propose House investigation of alleged misconduct on the part of civil officers, these are presented before the House as a question of highest privilege.[48] As a question of privilege, an impeachment resolution may be presented at any time, irrespective of previous action by the House.[49] The following examination of impeachment proceedings demonstrates these various manners in which impeachment inquiries originate.

Individual House members often have initiated impeachment inquiries on their own responsibility. Generally, such a resolution would purpose that “[a] committee be appointed to inquire into the official conduct of [an accused] . . . and to report their opinion whether the said [accused] hath so acted in his [official] capacity as to require the interposition of the constitutional power of the House.”[50] Thus, it is possible for impeachments to begin through an impeachment resolution, which is adopted in reliance on the recommendation of a single House member.[51] For example, in the Johnson impeachment, one House member proposed as a question of privilege before the House a resolution: “That the Committee on the Judiciary be . . . authorized to inquire into the official conduct of Andrew Johnson . . . and that said committee have power to send for persons and papers and to administer the customary oath to witnesses.”[52] More typically, however, impeachment inquiries have been initiated by a proposal of one House member reinforced by charges of others. Accordingly, Judge Swayne’s impeachment originated in response to a member’s proposal reinforced by a legislative memorial;[53] the Humphreys case was initiated through a House member supported by “common fame”;[54] and Judge Louderback’s impeachment originated in response to a member’s proposal supported with a presentation of accusations by a local bar association.[55]

Three of the earliest impeachments were initiated in response to presidential messages charging misconduct on the part of certain individuals. Senator Blount’s investigation was set in motion by a confidential message sent to the House by the President.[56] The message set forth facts and documents, which the House, by resolution, referred to a special committee for investigation. Similarly, the Pickering impeachment inquiry was initiated in response to a message from the President, which included several complaints from civil officers charging the judge with official misconduct.[57] Judge Archibald’s impeachment investigation originated with a letter sent to the President from a member of the Interstate Commerce Commission charging the judge with official misconduct. The letter, which had been sent to the President, was requested by the House and transmitted to the Judiciary Committee for use in its investigation.[58]

Finally, in the past, not all impeachment investigations have been initially directed against actually named or otherwise designated individuals. The impeachment of President Johnson was first proposed indirectly through a resolution authorizing an investigation into misconduct on the part of civil officers generally.[59] Similarly, Secretary of War Belknap’s impeachment grew out of an 1876 resolution authorizing a general investigation of the departments of government.[60]

B. The Irrelevance of Probable Cause to Impeach Named Individuals

In the Chase impeachment, a debate arose over the sufficiency of a single member’s supporting evidence to warrant the initiation of a full impeachment investigation. Although it was urged that such an investigation should being only upon a showing of probable cause, the House voted in favor of the investigation on the theory that such an investigation was to procure evidence and not to establish guilt.[61] Nevertheless, on other occasions preliminary investigations have been initiated by the House only upon review of charges preferred by memorial. The impeachment proceeding in the Peck case had its official inception in the memorial charging the judge with misconduct in office.[62] Contrary to the procedure in the Chase impeachment, in which the same issue was raised and debated, the full impeachment investigation in the Peck case was authorized only after the Judiciary Committee had examined the memorial for probable cause.[63] Likewise, the House voted to investigate the conduct of Judge Delahay only after the Judiciary Committee had examined charges made in a memorial.[64] However, since impeachment resolutions may be summarily accepted or rejected for practical or political reasons without any discussion of probable cause, the only ultimate question of probability considered on such a vote is whether the investigation will probably be worth the Judiciary Committee’s while.[65] Nevertheless, once instituted, an impeachment investigation bears the crucial responsibility of procuring and preparing evidence, which will support a report recommending either impeachment or no action.

C. Investigations Preparatory to the Articles of Impeachment

An investigation by the House has been considered to be an essential part of every impeachment to date. The importance of this preliminary investigation to the ultimate effectiveness and fairness of the overall procedure cannot be over-emphasized. It is here that charges are investigated and facts supporting possible articles of impeachment are elicited. Consequently, the power of the investigatory committee to secure evidence relevant to its investigation cannot be separated from the impeachment power itself.[66] Beginning with this preliminary stage of the impeachment process, the constitutional principle of separation of powers is conspicuously held in abeyance while the legislature gathers information necessary to exercise its exclusive constitutional power to impeach civil officers for possible wrongdoings.[67]

In the early impeachment cases it was common practice to select a special committee to investigate accusations of impeachable offenses brought before the House.[68] Later, after the Judiciary Committee became a standing committee, it generally conducted the investigation.[69] This Committee serves two purposes in the impeachment process: first, it investigates evidence bearing upon allegations of misconduct and thereupon recommends whether or not the accused should be impeached; second, it has become the practice in the more recent impeachments that the Judiciary Committee also drafts articles of impeachment to be presented at the bar of the Senate. Incident to its investigatory duties, the Committee is generally granted the subpoena power of the House to send for “papers, persons and documents” relevant to its inquiry.

In earlier impeachments, these two functions were assigned to two separate communities.[70] One was a preliminary investigatory committee which was responsible for reporting whether or not the House should impeach the accused; the other was a committee appointed to secure information to be used in the drafting of the articles of impeachment. Although these two committees eventually came to exercise equivalent fact-finding powers, the responsibilities of the two committees were quite distinct. The preliminary investigatory committee was assigned only to satisfy itself that some basis justifying an impeachment inquiry could be identified,[71] and in fairness to the accused it was generally found inappropriate to publicly defend the conclusion which the committee had reached: “In presenting the report . . . . the committee deemed it fairest toward the party accused not to report to the House their reasons at length for arriving at the conclusion that he ought to be impeached.”[72] In comparison, the committee assigned to draft the articles of impeachment prepared evidence in support of specific accusations of the commission of impeachable offenses. Consequently, the most extensive investigations in the early impeachments came later in the process when the articles were being drafted rather than at the preliminary investigation stage.[73]

Thus, it is understandable that in the earlier impeachments, where the body accomplishing the preliminary investigation was charged only with recommending whether or not the accused should be impeached that committee’s inquisitorial authority was limited. In the Blount impeachment, for example, the investigatory committee was charged by the House only to consider the messages and papers which had been brought forth by the President and to report on impeachment there from;[74] then after the committee had recommended impeachment on the basis of that limited evidence, the House took additional evidence before the body as a whole prior to voting impeachment.[75] The preliminary investigation of Judge Pickering was similarly focused on the examination of ex parte affidavits transmitted to the House by the President.[76] In the Chase impeachment, however, the first committee was granted broader authority “to send for persons and papers” relevant to the impeachment inquiry, and since that time, this broad fact-finding power has been delegated routinely to the investigating committee.

The earlier bifurcation of responsibilities, however, proved to be impractical to the American experience, since the dual committee structure entails and unnecessary duplication of resources.[77] Accordingly, beginning with the Archbald impeachment in 1913, whenever the Judiciary Committee has reported a resolution favoring impeachment, it has simultaneously submitted prepared articles of impeachment supporting that resolution.[78] This consolidation of the resolution and drafting functions of the investigatory committees is inherently advantageous, for otherwise, under the bifurcated system, the House membership must vote as a whole on the question of taking to the Senate articles of impeachment which have not yet been drafted. The only apparent virtue of the separated system was to guarantee that extensive investigations would not be undertaken without the approval of the full House. But as the course of events in the Nixon proceeding now illustrates, no apparent safeguards or legislative prerogatives are lost by allowing the Judiciary Committee to proceed in its initial investigations under the mantle of the full congressional impeachment powers.

D. The Drafting of Articles of Impeachment

In the Nixon impeachment, the degree of specificity required in the language of the articles of impeachment was debated at length by the House Judiciary Committee. While a minority urged that due process demanded that specific articles be presented, as had always been the practice in earlier impeachment cases,[79] the majority voted for articles drafted in general terms referring only to generic areas of presidential misconduct with the provision that a “list of incidents” would be attached to the articles setting forth specific circumstances of misconduct tending to support each general article.[80] In effect, the Committee resolved that since the President’s counsel could demand a bill of particulars at appropriate stages of the proceedings, the past practice of specificity could be modified somewhat.

It is suggested that the Committee’s decision to recommend that the House cote on general articles satisfied any applicable due process requirement and was a proper exercise of the Committee’s function of recommending to the House that an impeachment trial should in any event ensue. Inasmuch as the articles serve to set the standard by which relevancy is determined in the Senate trial,[81] and given the fact that the President had no complied with congressional subpoenas for tapes and documents pertinent to the impeachment investigation the President should not thereby be allowed by his own dereliction to narrow the scope of inquiry in a Senate trial. The articles also provided that there could be included in the list of incidents additional information regarding misconduct, thus expediting the administration of the impeachment process without jeopardizing the rights of the accused to a fair proceeding; all of this, of course, was made necessary by Mr. Nixon’s refusal to comply with congressional fact-finding incident to its impeachment inquiry. To the extent that President himself is responsible for creating the incompleteness of the Committee’s investigation, it is unseemly for him to claim that his right to receive a fair trial is abridged either by the preliminary vagueness of the charges or by any possible over-breadth of the trial in the Senate caused by that incompleteness of evidence. Rather, it is within the power of the Judiciary Committee, reporting as the preliminary investigatory body, to recommend immediate impeachment based upon failure to comply with its constitutionally mandated fact-finding in an impeachment proceeding, thereby opening the way for further investigations and the further drafting of specific articles for subsequent presentation to the Senate.

The report of the Judiciary Committee has usually been followed by the House, but this has not always occurred. For example, in one instance the Committee recommended censure, but the House, adopting the minority report of the Committee, voted to impeach.[82] Also in the Johnson impeachment, articles in addition to those prepared and recommended by the Judiciary Committee were proposed and adopted on the floor of the House.[83]

E. The Right of the Accused to Appear in the Court of the House Investigation

Impeachment investigations have traditionally been conducted ex parte with the accused having a limited role, if any, in the preliminary inquiry. It has gone unquestioned that it is for the House to determine the extent of participation accorded the person under investigation.[84] For these purposes, whatever sixth amendment rights to be represented by counsel and to confront one’s accusers an impeached officer may have at trial before the Senate, they would not apply before the House, since it does not determine if an impeachable offense has been committed. Nevertheless, the Judiciary Committee has from time to time permitted the accused and his counsel to participate in the investigation hearings. Judge Peck cross-examined witnesses, presented a response in writing to the charges against him, and addressed the Judiciary Committee on his own behalf.[85] In permitting that participation, in an effort to protect the interests of the accused,[86] the Committee expressly confined itself to what it characterized as ex parte evidence “lest there be no bounds to the inquiry.”[87] The effect of the Belknap impeachment upon investigatory precedent was to broaden the participation of the accused in the preliminary investigation. Belknap was allowed to present his own witnesses and was also permitted to cross-examine adverse witnesses.[88] Several other impeachment cases have followed the Belknap precedent. Judge Swayne was present in person with counsel and was permitted to introduce testimony and argue his case before the Committee.[89] Judge Delahay,[90] Judge Archbald,[91] and Judge Louderback[92] each appeared with counsel before the Judiciary Committee and argued his case.

Despite the precedent for allowing a limited role for the accused and his counsel during the impeachment inquiry, the House Judiciary Committee has continued to characterize its investigation as an ex parte proceeding and House procedures do not give the accused a right to demand any role in the proceeding. As examples of the extreme to which this aspect of the procedure may be pursued, the two investigations which were conducted preliminary to President Johnson’s impeachment were strictly ex parte, with only one member of the House not on the Committee being permitted to so much as examine a witness.[93]

In the Nixon investigatory proceeding, the accused, through counsel, was given a remarkably broad role in the Committee’s hearings.[94] His counsel was permitted oral and written argument, including a limited right of cross-examination, the presentation of his own witnesses, and the submission of briefs in response to proposed articles of impeachment. However, the request of counsel that he be allowed an advocate’s role in the deliberative process of the Committee, in addition to such participation at the fact-finding stage, was denied.

F. The Burden of Proof for the Adoption of the Articles

Another issue raised and debated in the Nixon case was the burden of proof required to sustain a vote of impeachment by the House. Despite some precedent to the contrary, the view that the House, acting analogously to a grand jury throughout, need only ascertain probable cause to warrant sending the case to trial at the bar of the Senate has generally been followed without debate.[95] Where it has been debated, the following argument has prevailed:

[T]he action of the House was similar to that of a grand jury; that while the investigation of the House was not necessarily ex parte, the office of the House was not to ascertain whether the party of guilty or innocent of the charges preferred against him, but whether the proof was sufficient to make the case worthy of a further trial. [A House member] called attention to the fact that the trial of the case belonged to the Senate under the Constitution and to the Senate alone. If the House advanced one step beyond the ascertainment of probable cause it was plunged into the trial. The House, in the exercise of its discretion, might examine witnesses on both sides, but there must be a boundary line marking the powers of the House and Senate, and there was no line to be observed, except the ascertainment of probable cause. Such I understand to have been the views . . . entertained in the case of Judge Peck and the case of Judge Chase, of Macclesfield in 1705, in the case of Warren Hastings in 1778, and of Lord Melville in 1805.[96]

In the Nixon case, however, the probable cause burden was rejected, apparently not on the basis of precedent or any jurisprudential rationale, but rather as a compromise between the lesser standard of “probable cause” urged by some and the greater burden of “beyond a reasonable doubt” urged by others. The equitable burden of “clear and convincing” evidence was eventually adopted[97] over the arguments in favor of a yet higher burden made by assistant minority counsel Garrison, who urged that the Committee should recommend impeachment only if it was apparent that the Senate would convict and, apart from the issue of guilt or innocence, only where the public interest would be better served should the President be convicted and removed from office.

Certainly, public policy considerations are relevant in an impeachment proceeding,[98] but not in the way Mr. Garrison has urged. Impeachment was designed primarily as a means of protecting the Republic rather than punishing a wrongdoer. IN the words of the Judiciary Committee, which participated in the Colfax impeachment, the process is remedial rather than punitive.[99] It follows that the impact upon the country of the final resolution of an impeachment proceeding should be a criterion of the highest order in determining the nature of its resolution. This does not mean, however, that impeachment should be used by Congress to sweet from office an unpopular President or that impeachment should be voted by the House only if conviction is certain to follow. The Constitution provides that before a President can be removed from office, his guilt must be established in the commission of treason, bribery, or high crimes and misdemeanors. No degree of public disenchantment with a particular President, no unpopularity of a policy, no mistake in judgment should ever be sufficient, without such guilt, to result in impeachment. Thus, public policy considerations do not mandate impeachment based upon congressional opinion but rather simply require that the House of Representatives bear the double burden of being clean and convincing to both the Senate and the American people. If impeachment, conviction, and removal are to accomplish a therapeutic effect upon the country, it is essential that the public be convinced of the President’s guilt in the commission of impeachable offenses and thereby be persuaded that his removal is in the constitutional interest of the country. The citizenry must not only convinced of this but must also be convinced in bipartisan numbers if impeachment is to be dominantly therapeutic rather than divisive. It is not sufficient that Congress only be convinced, and it is toward the accomplishment of this harmony between the electorate and its representatives that the issue of television coverage of impeachment proceedings will be considered.

Comparisons between impeachment proceedings and criminal trials, in which only the issue of guilt or innocence is relevant and in which no particular public acceptance of an individual verdict is necessary, are therefore inapt.[100] It is here, in the necessity of bearing a double burden of convincing the people, in addition to the usual burden of persuading designated triers of fact and law, that the burden of proof for an impeachment proceeding must be defined. It does indeed place a huge burden on those advocating impeachment, a burden which is qualitatively different from that found in the usual judicial proceeding.

G. The Public Eye on the Adoption of the Articles of Impeachment

In the early cases where the voting of impeachment and the drafting of the articles were separate functions, the committee drafting the articles was under an injunction of secrecy, which was removed only at the time the articles were presented before the House.[101] Today, however, the drafting of the articles of impeachment has taken on a more significant role as the first official act to be completed in the impeachment process, thereby setting the scope and tone for the entire impeachment process to follow.

In the Nixon impeachment proceeding, although the fact-finding process of the Judiciary Committee was intended to be secret, the Committee, convinced that the nation would be well served with rapid public disclosure of congressional impeachment decisions, whatever they might be, amended its rules to allow television coverage of its deliberations over the particular articles of impeachment. The legitimacy of a democratic government must be established in the minds of the people,[102] thus, if a transfer of presidential power is to be accomplished by either removal or resignation in the face of impeachment, the legitimacy of the new administration can only be assured by public recognition that the previous mandate has clearly expired. In order for this to occur, whatever interests previously were served in the name of fairness to the accused by insisting on secrecy in the adoption of the articles of impeachment must yield to the public interest when a public office, which derives its imprimatur from the public will, is in question.[103]

H. The Committee Report on the Articles of Impeachment

The investigatory committee culminates its hearings by voting on recommendations of impeachment. Generally, in the early impeachments, the investigatory committee thereafter reported its conclusions to the Committee of the Whole House.[104] Where the investigation committee recommended impeachment and the Committee of the Whole concurred, an impeachment resolution was presented before the House for the impeachment vote. In these earliest impeachments minority views were not permitted to appear in the committee’s report, and any dissent appeared only in the debates.[105] Furthermore, as noted previously, the committee was charged only with reporting its conclusions to the House, and thus it usually excluded any reasons for its conclusions in fairness to the accused.[106] Later, the Judiciary Committee came to report its recommendation directly to the House.[107]

Beginning with the Johnson impeachment in 1868, majority and minority arguments were included in the committee’s report.[108] Although in the first attempt to impeach the President, the majority of the investigatory committee recommended impeachment, the House apparently favored the minority argument and the resolution failed.[109] When the Committee on Reconstruction, after a second investigation, recommended impeachment, with no minority argument being filed,[110] the House voted to impeach.[111]

I. The Vote on the Articles on the Floor of the House

Historically, presentation of the articles on the floor of the House has involved issues of both strategy and fairness. In the Blount and Pickering cases, the articles were considered collectively, but in the Chase impeachment the articles were presented individually both to the Committee of the Whole and before the House.[112] In that impeachment, the House debated whether or not additional articles could be proposed at any time; in concluding that they could, the House expressly “saved to itself the liberty of exhibiting at any time hereafter any further articles of other accusation or impeachment . . . .”[113] There is precedent in other cases for presenting the articles together to be adopted without debate,[114] and there are instances, such as the Swayne impeachment, where a strong minority report and accompanying debate immediately preceded the vote to adopt the articles.[115] In the Swayne impeachment, the minority dissented from the majority’s report of twelve articles on the ground that a “beyond reasonable doubt burden had not been met on eleven of the articles.”[116] Following House amendment of some of the articles, they were presented individually and adopted by the House.[117]

Beginning with the Belknap impeachment the practice of presenting the articles first to the Committee of the Whole was dispensed with without any question being raised as to the propriety of having the articles presented directly to the House by the House Judiciary Committee.[118] In this manner, the power of the Judiciary Committee was enhanced, and the discretion of the whole House regarding rules of debate and amendment was correspondingly limited. In the Belknap case, the articles were adopted without amendment, a separate vote not being demanded on any article.[119] In the Johnson case, after the articles had been adopted individually, the managers who were elected to present the articles at the bar of the Senate proposed two additional articles to broaden the charges to include non-indictable offenses.[120]

In the Archbald impeachment, the practice of reporting the articles of impeachment simultaneously with the impeachment resolution was initiated. There the report of the Judiciary Committee was debated in the House, and the supporting articles of impeachment were voted on together with the impeachment resolution.[121] Both the English and the Louderback impeachments followed the Archbald pattern. In the English case, the House after debate accepted the procedure that “[i]t is in order to demand a division of the question on agreeing to a resolution of impeachment and a separate vote may be had on each article,”[122] In the Louderback case, the articles adopted were those presented as the minority report favoring impeachment.[123]

J. The Effects of Recesses and Adjournments on the Impeachment Process

Impeachment proceedings in the United States have followed the parliamentary precedent that an impeachment is not terminated or legally interrupted by the dissolution of Parliament.[124] Accordingly, the House has often continued impeachment investigations from one session to another, making use of any former report or testimony already taken; similarly there is nothing to prevent a Senate trial initiated in one session of Congress from being continued in the next until a verdict is reached.[125] The following examination of precedent demonstrates the continuity of Congress’ constitutional responsibility of impeachment.

From the earliest impeachment, that of Senator Blount, the precedent has been firmly established that an impeachment is unaffected by congressional recesses or adjournments. In that case, Congress recessed between the impeachment of Blount and the framing of the articles of impeachment.[126] Later the Senate, in its writ of summons, fixed Blount’s appearance at the next session of Congress.[127] In the impeachment of Pickering, the House proceeded even though it was apparent that the impeachment could not be completed within that congressional session.[128] Accordingly, the House continued with the proceedings, impeaching Pickering and notifying the Senate on the last day of the Seventh Congress. Thereafter, at the beginning of the Eighth Congress, the House appointed a committee to prepare articles of impeachment to continue the proceeding.[129] Similarly, the House voted the impeachment of Judge Delahay at the end of one Congress, intending to present articles of impeachment in the next.[130] Congress also recessed between the filing of the answer in the Peck impeachment and the managers’ presentation of the replication.[131] No reason in precedent or public policy would seem to exist for distinguishing between presidential impeachment and the impeachment of civil officers in regard to this point.[132] In the Johnson impeachment, the Thirty-ninth Congress expired during the preliminary investigation, and in the next Congress, the House directed the Judiciary Committee to resume the investigation.[133] Later, Congress recessed after receiving the Committee’s report recommending impeachment, and the subsequent session of the House voted on the report.[134] Thus, an impeachment proceeding should not be affected by recesses or adjournments of Congress.

K. The House Selection of Managers

The House has varied both its method for selecting its managers and the number of managers selected to present its case at the bar of the Senate.[135] Managers have been selected by ballot, appointed by the House Speaker, and selected by resolution. In the Blount impeachment, eleven managers were elected by ballot following House debate which analyzed the comparative roles of the managers and normal committees of Congress. The election procedure was wisely adopted in the Blount case, contrary to the ordinary practice of having investigatory committees appointed by the Speaker, due to a recognized difference of broader non-partisan responsibility to be fulfilled by those selected as managers. Whereas the reports of the investigatory committees are not finally binding upon the House, the conduct of the managers serves as an ultimate representation of the House, with any action taken by them being final. Thus, the managers, but House resolution, were elected individually by ballot with each manager requiring a majority to be elected. Following the Blount precedent, managers have been elected by ballot in the Pickering,[136] Chase,[137] Peck,[138] and Johnson cases.[139] In the subsequent proceedings, however, managers were appointed either by resolution[140] or by the Speaker.[141]

Excepting the Blount impeachment, where all eleven managers were from the Federalist party, the managers have represented both parties. Of course, it has always been the practice that the managers, as advocates of the House, would reflect the House sentiments[142] regarding impeachment. Accordingly, managers have always been selected from among those who have voted in favor of impeachment. The chairman for the managers has been selected by the managers in some cases[143] and by the House in others.[144]

Usually, the managers have the responsibility of presenting the articles of impeachment against the accused at the bar of the Senate and of conducting the case of the House at the Senate trial. In charging the managers with the responsibility of conducting the case before the Senate, the House normally delegates further fact-finding powers to the managers incident to their prosecutorial duties.[145]

Upon informing the Senate that the House of Representatives “will, in due time, exhibit particular articles against [the impeached] and make good the same,”[146] the managers demand that the Senate “take order for [his] appearance . . . to answer the said impeachment.”[147]

IV. Senate Impeachment Procedure

The Constitution vests in the Senate the sole power of trying all impeachments,[148] but as to the form and nature of the impeachment trial the Constitution is silent except for the following statements. The Constitution provides that “[w]hen the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.”[149] The Constitution further strips from the impeachment process the power to impose any criminal sanctions; at the same time, it assures that any convicted party shall not be beyond the normal operations of the criminal law either during or subsequent to the impeachment process.[150] Finally, the Constitution provides that the President’s power to grant reprieves and pardons for offenses against the United States does not extend to cases of impeachment[151] and that the right to trial by jury extends to all crimes except cases of impeachment.[152] Due to the constitutional silence in regard to all other aspects of the impeachment trial, we must turn to an analysis of prior precedents in order to ascertain the working elements of Senate procedure in impeachment trials.

A. Does the Senate Sit as a Court?

The selection of criteria by which the appropriateness of any aspect of the Senate procedure in an impeachment trial is to be judged depends in large part upon whether the proceeding is to be seen as being dominantly political or juridical. But either characterization of the process is problematic, since many judicial practices are appropriated by the Senate for use in the impeachment trial, which is otherwise conducted as a wholly political proceeding. Its adjudicative nature is manifest especially in the conduct of the impeachment trial, its rules of evidence, the form of judgment, and in the absence of judicial review over the impeachment process. On balance, however, American precedent reflects the basic understanding that the impeachment process is fundamentally political.

In the early impeachment cases, although the Senate described itself by rule as a court of impeachment,[153] the powers which it invoked were described as political powers and privileges. In one case, the issue of characterizing the impeachment process arose in argument over the assertion that the Senate’s impeachment jurisdiction does not extend to an offense which is within the jurisdiction of the common law courts. Mr. Bayard, one of the managers in the Blount impeachment, answered persuasively that the role of the Senate in impeachment cases is political rather than judicial since “no court at common law could give judgment of disqualification, and that was the just punishment for the offense alleged.”[154]

It was suggested as early as the Pickering impeachment that the Senate had the sole power to regulate forms, substances, and proceedings when acting as a court of impeachment.[155] In the Johnson impeachment in 1868, the Senate, after substantial debate, decided that it sat for impeachment trials as the Senate and not as a court.[156] The debate appears to have been initiated in response to a resolution to drop the words “high court of impeachment” from its Senate rules lest the Chief Justice might have a tie-breaking vote on procedural questions.[157] The resolution passed and the Senate adopted rules for the Johnson trial as a Senate and not as a court.[158] After the trial concluded, Senator Sumner, a bitter enemy of Johnson, elaborated on the political nature of the proceeding by explaining that Senators are not constrained in impeachment by any obligation to serve the traditional role of a criminal trial judge:

[The Constitution] provided that “the Senate shall have the sole power to try all impeachments,” thus positively making a distinction between the judicial power and the power to try impeachments; . . . the Senate on an impeachment does not exercise any portion of the judicial power, but another and different power, exclusively delegated to the Senate, having for its sole object removal from office and disqualification therefore; . . . the proceeding by impeachment is . . . from beginning to end political, being conducted before another political body having political power only, and ending in a judgment which is political only.[159]

Later in the Archbald case, the issue of the proper role of the Senate in an impeachment trial was again raised and debated:

[M]uch has been attempted by counsel for the respondent in their effort to show that this is a court in the ordinary acceptance of that term. Whatever name you call this body sitting here now, whatever functions they may discharge, it cannot be said to be a court as that word is employed in the Constitution or understood by the ordinary man. It is more than a court. Under our Government it is clothed with the highest and most extraordinary powers of any body or any functionary or any agency of our Federal Government. Your powers here invoked are political in their nature. Mr. Bayard announced that doctrine in the first impeachment case, that of Blount. Every commentator, including Story and all the rest, has quoted it with approval, and should any man deny it he would at once confess himself ignorant of the history and the law of impeachment.[160]

If this conclusion were not reached and were the verdict of the Senate trial not reviewable by the federal courts,[161] the exercise of judicial power by the Senate would appear to violate the vesting of the judicial power of the United States in one Supreme Court.[162]

Accordingly, it is generally understood that the Senate functions as a political body in impeachment trials, exercising its political duty in a political manner and to a political end. Several conclusions follow from this proposition. First, the Senate and not the judiciary is charged with adopting rules with respect to the conduct of impeachment trials.[163] Second, as a matter of public policy, rules of admissibility of evidence in an impeachment trial need not necessarily comply strictly with judicial exclusionary rules designed to protect the integrity of the judicial process, particularly those designed to insulate a jury in a criminal trial. Third, the rules of evidence adopted by the Senate are subject to modification on an ad hoc basis where the Senate deems it appropriate.[164] Fourth, judicial review is inapplicable to the impeachment process and judgment.

B. Initiation of the Senate Trial

The House, by notifying the Senate that it has impeached a civil officer, formally sets in motion the impeachment trial machinery of the Senate. Notification in the earlier impeachments was transmitted to the Senate by a committee of two or three appointed for that purpose, which made formal accusations on behalf of the House and signified that articles of impeachment would later be exhibited.[165] In some instances, the Senate has organized for trial before receiving the articles,[166] but in other cases it has organized only after the articles have been presented.[167] Upon presentation of the articles, the Senate is required by its own rules to proceed to prompt consideration.[168] In presenting the articles of impeachment at the bar of the Senate,[169] the chairman of the House managers generally reads the articles and then delivers them at the table of the Senate.[170] In organizing for trial, the Senate suspends ordinary business, administers oaths to the Senators,[171] assumes jurisdiction by majority vote,[172] appoints a presiding officer,[173] and notifies the House of Representatives that the Senate is ready to proceed.[174]

Once the articles have been presented and the Senate organized for trial, the managers generally demand that process be issued against the accused to appear and answer the charges presented by the House.[175] The write of summons which is issued by the Senate recites the articles of impeachment and notifies the respondent to appear at a fixed time and place and to file an answer.[176] Where respondent fails to appear or to answer either in person or by counsel,[177] the trial proceeds as on a plea of “not guilty.”[178] The respondent is usually allowed to appear and move for a delay in the filing of his answer, but requests are often not accepted.[179]

In answering, the respondents have either (1) taken articles one by one, denying some of the charges, admitting others but denying that they set for impeachable offenses, and excepting to the sufficiency of others,[180] (2) demurred to the articles generally, raising a question as to the jurisdiction of the Senate to try the charges,[181] or (3) demurred severally to all the articles and then replied in detail to the charges set forth in each article.[182] It has been commonly held that the answer of respondent under the parliamentary law of impeachment need not observe neat strictness of form,[183] just as the articles need not be as specific as an indictment. If a guilty plea is entered in answer, judgment may be entered without further proceedings.[184] Otherwise, a Senate trial must follow to a final conviction or acquittal.

Upon receiving the respondent’s answer, time is allowed for the replication of the managers, on the condition that any further pleadings be duly filed with the Secretary and notice be given to the other party prior to a designated date.[185] A replication by the House managers usually consists of a general denial of all allegations set forth in the respondent’s answer and of an averment that the charges contained in the articles set forth impeachable offenses.[186] A replication, on the other hand, can allege a new matter not set forth in the articles,[187] thereby necessitating further pleadings.[188] The parties may submit briefs in support of their pleadings, but the briefs typically are not submitted until after the managers and counsel for the respondent have made opening statements and introduced witnesses at the Senate trial.[189]

The time granted by the Senate for the respondent to prepare for trial after presentation of his answer will vary, but the Senate usually allows the question of calendaring to be argued by both sides. President Johnson, for example, requested 30 days, and arguments were heard on the motion with the Senate granting less time[190] and suggesting that there should be no delays once trial was commenced.[191] In the Nixon case, counsel for the respondent was notified by the Senate, after the Judiciary Committee had voted to report articles of impeachment to the House, that the President would be granted two to three weeks for the preparation of the case should the House vote impeachment.

C. The Presiding Officer

The presiding officer during Senate impeachment proceedings is the Vice-President and, in his absence or own trial, the President pro tempore,[192] except in cases involving the President, where the presiding function is performed by the Chief Justice of the United States.[193] The presiding officer is empowered by rule to make and issue orders, writs, precepts, and regulations,[194] and to direct the form of proceedings for which the rules otherwise have not provided.[195] All motions by the parties are to the presiding officer,[196] who sometimes makes preliminary rulings on evidentiary issues and instructs and interrogates witnesses.[197] The preliminary rulings of the presiding officer stand as judgments of the Senate unless a vote is requested by a senator[198] and the Senate thereafter overrules the preliminary ruling.[199]

The role of the Chief Justice as the presiding officer in a presidential impeachment is unsettled at least as to whether he is entitled to a tie-breaking vote on procedural questions. Although Chief Justice Chase voted on minor procedural issues in the Johnson trial,[200] the propriety of his doing so was not conclusively settled.[201] Nevertheless, since we must infer that, where the impeachment rules are silent, the general Senate rules of procedure apply,[202] the presiding officer should be entitled to exercise a tie-breaking vote on questions of procedure unless his power is otherwise limited.

D. Conduct of the Impeachment Trial

The Senate sits for an impeachment trial with open doors but conducts secret sessions when deliberating on any decision,[203] be it an evidentiary ruling or the final judgment. However, the final judgment has been considered on occasion in open session.[204] Thus, as a general rule the orders and decisions of the Senate trial are debated in closed session, but the Senate by majority can proceed with debate in open session.[205] All motions must be presented in writing to the presiding officer,[206] and any question or remark of a Senator must be similarly presented.[207]

Impeachment trials are exempted from the constitutional requirement of a trial by jury.[208] The trial is initiated by each side making an opening statement,[209] which generally (1) outlines what is expected to be proven or rebutted, (2) discusses constitutional questions, and (3) controverts or defends charges preferred in the articles of impeachment.[210] During the impeachment trial, all preliminary and interlocutory questions and motions are limited to one-hour arguments on each side.[211]

Both sides are generally allowed to present witnesses at the trial[212] and are required to furnish to each other a list of prospective witnesses.[213] Should either party later desire to present any additional witnesses, an application must be made to the presiding officer.[214] The Senate, on the application of managers or of the respondent or his counsel, is empowered to issue subpoenas in impeachment trials to compel the attendance of any witnesses[215] or to procure papers.[216] It is also the Senate, and not the presiding officer, that must rule on any motion for attachment of persons or papers.[217] Where either party is not prepared to present testimony, the Senate, upon motion, may exercise discretion in delaying the trial to permit time for preparation.[218]

The presentation of testimony in the Senate trial is controlled by Senate, rather than by judicial, rules. Testimony presented in an impeachment trial need not be classified according to the particular article to which it applies.[219] Witnesses are examined by one person on both sides,[220] and any person, including Senators, may be questioned as a witness.[221] Although the managers and counsel for the respondent usually conduct all examinations of witnesses, Senators have on occasion presented questions by directing, through the presiding officer,[222] questions in written form to witnesses, managers, or counsel.[223] The respondent typically is permitted to appear in his own behalf[224] and to respond at length to the charges against him.

E. Evidentiary Rulings

Since the Senate sits as both judge and jury, it is necessary for that body to adopt rules of evidence to govern the admissibility and relevance of evidentiary presentations in the course of its own trial. In some trials, the Senate, following English precedent, has perfunctorily voted to adopt the rules of evidence currently in force in the courts.[225] However, since the rules of evidence vary from jurisdiction to jurisdiction in the United States and since the rationale behind several evidentiary rules becomes inapposite in a Senate trial which operates without a jury that can be sequestered, it has been argued in other trials, often persuasively, that the regular rules of evidence should be relaxed.[226]

Evidentiary rulings are made in the course of the trial itself in an ad hoc fashion. Evidentiary questions are “by long-established custom, submitted by the presiding officer to the Senate for decision”;[227] however, a Senator at his option may submit the question to the members of the Senate in the first instance. While evidentiary rulings of the presiding officer are said to be controlling, t hey can in practice be overruled by a majority vote of the Senate. For example, in the Johnson impeachment, although the Chief Justice of the United States, who presided over the trial, made preliminary rulings, every evidentiary question invariably was submitted to the Senate for final determination.[228] As a result, several of the Chief Justice’s preliminary evidentiary rulings were overruled by majority vote.[229] Thus, while the Senate has declined to liberalize the strict rules of evidence across the board, the proposition that the Senate may admit or exclude evidence by majority vote has never been seriously questioned,[230] and the Senate has often voted not to follow certain rules of evidence in particular cases.[231]

In order to avoid the appearance of manipulating justice through ad hoc evidentiary rulings, it is suggested that a committee of the Senate be requested to examine the question for the appropriateness of present evidentiary rules governing an impeachment trial at a time when minds are free from the adversarial influences generated in the anticipation or conduct of a particular trial. General guidelines can be adopted, and principles for adapting the jury-oriented evidentiary rules to Senate use can be delineated.

F. Final Arguments and Voting

Final arguments on the merits in an impeachment trial are made by two persons on each side, unless modified by prior application.[232] Following final arguments, the final judgment is put to the Senate.[233] Consistent with the Senate rule allowing only yea and nay voting in impeachment proceedings,[234] the Senate has declined to permit any expression as to whether the offenses charged constituted high crimes and misdemeanors.[235] The consequence of this rule is that a negative vote could mean either that a Senator considered (1) that the offense embodied in the article of impeachment did not constitute a “high crime and misdemeanor,” whether or not committed by the defendant, or (2) that the defendant was not guilty of the commission of the offense charged, whether or not it constituted an impeachable offense. However, in the interest of precedential clarity and due to the dual role of the Senate as both judge and jury, it is urged that the form of the final question be modified in order to allow each Senator to respond on both the legal and factual elements of the final verdict.[236]

The issue of the applicability of the doctrine of disqualification based upon personal interest, as applied to a Senator voting on impeachment, has been raised but not acted upon.[237] The President pro tempore of the Senate during the Johnson trial, for example, participated despite the fact that a conviction would have made him President.[238] Also, a Senator related to Johnson was not challenged when he voted on the final impeachment question.[239]

G. Judgment

Under the Constitution, if an impeachment is not sustained by a two-thirds vote on any article, the accused is acquitted.[240] Where conviction is accomplished, the Senate must decree the defendant’s removal from office and may disqualify him from holding any public office in the future.[241] Debate has occurred in the Senate as to whether or not the Constitution requires both removal and disqualification upon conviction. In both the Archbald and the Humphreys cases; the President pro tempore ruled that the two questions were separate and divisible propositions, the former being mandatory and the latter discretionary.[242]

V. Raising the Defense of Executive Privilege

Why, what mockery it would be for the Constitution of the United States to say that the House should have the power of impeachment extending even to the President of the United States himself, and yet to say that the House had not the power to obtain the evidence and proofs on which their impeachment was based. It appeared to him [John Adams] equivalent to a self-evident principle, that the power of impeachment gives to the House necessarily the power to call for persons and papers.

John Quincy Adams[243]

Congressional power to obtain information concerning an official’s conduct is critical to every stage of any impeachment process. Consequently, a claim of executive privilege to withhold information from an impeachment investigatory committee at any stage of the process would threaten to emasculate the power granted Congress by the Constitution to impeach any federal official, especially the President.[244] Thus, while executive privilege possesses a certain legitimacy in spite of dubious parentage, there exists a strong presumption against any use of executive privilege to obstruct an impeachment investigation.

The constitutional status of executive privilege has been the subject of much recent debate.[245] Historically, the doctrine was invoked rarely and in narrow circumstances.[246] During the Eisenhower administration it was seriously contended that the President has unlimited discretion to withhold any information from Congress or the courts,[247] but the validity of that claim of absolute executive privilege has been vigorously contested by both the courts[248] and Congress.[249] In view of the firm responses of the Supreme Court and Congress denying the President’s claim of an absolute privilege to withhold information, it is appropriate to examine the development of the doctrine of executive privilege and its limitations.

Under the common law of English parliamentary government, in which the Prime Minister must be elected as a Member of Parliament, there exists ample precedent for parliamentary investigation of executive conduct, both for purposes of initiating legislation and undertaking impeachment.[250] In America, however, the separation of powers doctrine, which makes the Executive independent of direct legislative control, has given birth to a limited doctrine of executive privilege. The Executive has frequently withheld information from the courts, the Congress, and the people by asserting the principle of separation of powers directly, the need for confidentiality, or rights granted by statute. Nevertheless, none of these bases can support an absolute claim to executive privilege, especially with respect to a congressional impeachment investigation.

A. Executive Privilege Based on Separation of Powers

The claim of an absolute executive privilege based on separation of powers[251] was rejected judicially in Nixon v. Sirica[252] and United States v. Nixon,[253] and it was repudiated congressionally incident to the Nixon impeachment proceeding.[254] These judicial and congressional pronouncements imply that the doctrine of executive privilege is predominantly extra-constitutional. In United States v. Nixon,[255] the President’s counsel raised three points before the Supreme Court to support his assertion that executive privilege is a proper basis for disregarding a subpoena of a federal district court. All three were essentially separation of powers arguments: first, that “[i]nherent in the executive power vested in the President under article II of the Constitution is executive privilege, generally recognized as a derivative of the separation of powers”;[256] second, that since the courts have no jurisdiction over impeachment-related matters, the use of a court subpoena to force the production of presidential documents while an impeachment is in process would accomplish indirectly what the Constitution clearly prohibits;[257] and third, that “the common law and its embodiment of the concept of confidentiality as a prerequisite to the effective administration of government”[258] requires that the privilege be recognized. The Court, however, unceremoniously rejected each of these arguments;[259] while conceding that presidential communications are “presumptively privileged,” the Court held that the “generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.”[260]

Certainly, this denial of a President’s assertion of privilege against a judicial subpoena recognized general limits on the doctrine of executive privilege, at least to the extent that an assertion of privilege may be countered by the competing interests of the other branches of government exercising their respectively authorized functions. Thus, it would seem that, when the privilege is asserted against an impeachment inquiry, the circumstances under which executive privilege would justify the President’s refusal to divulge information are indeed limited, if not wholly hypothetical. Stated another way, a presumption of almost insurmountable proportions exists against the exercise of executive privilege when it is used to avoid supplying persons or papers requested by the House upon its constitutionally based power to impeach. This conclusion is consistent with the earlier treatment of claims of executive privilege in other contexts based upon the separation of powers.

The earlier cases of executive privilege have been read by its proponents to support the invocation of an absolute privilege; however, a more careful analysis shows that these precedents actually refute such a proposition. Frequently, the first precedent cited is Washington’s refusal in 1796 to submit requested materials concerning the Jay treaty negotiations to the House. This incident cannot be interpreted to support an argument for absolute executive privilege based upon the doctrine of separation of powers, since Washington had already submitted the requested materials to the Senate. Rather than asserting any executive privilege, Washington refused to disclose to the House the instructions that he had given to his ministers on the grounds that the treaty-making power was exclusively vested in the President and the Senate. He therefore contended that the House request was not incident to one of its assigned responsibilities: “[T]he inspection of the papers asked for can [not] be relative to any purpose under the cognizance of the House . . . except that of impeachment, which the resolution has not expressed.”[261] Washington’s refusal was couched carefully in narrow terms; rather than rejecting the power of Congress to inquire into executive conduct when such an investigation is conducted incident to a legitimate congressional responsibility such as impeachment, Washington explicitly recognized that right.[262]

President Andrew Jackson in 1833 was the first President to assert the doctrine of executive privilege based upon the separation of powers. He refused to answer a Senate request for papers which contained the President’s policy statements to his cabinet concerning the removal of public funds from the Bank of the United States (perhaps in anticipation of or to hasten its failure). He explained to Congress:

The Executive is a coordinate and independent branch of the Government equally with the Senate, and I have yet to learn under what constitutional authority that branch of the Legislature has a right to require of me an account of any communications . . . made to the heads of Departments acting as a Cabinet council. . . .

I am constrained, therefore, by a proper sense of my own self respect and of the rights secured by the Constitution to the executive branch of the government to decline a compliance with your request.[263]

In 1835, Jackson reasserted this argument in refusing to supply the Senate with a copy of charges that had been brought against a recently dismissed surveyor-general: “This is another of those calls for information made upon me by the Senate which have, in my judgment, either related to the subjects exclusively belonging to the executive department or otherwise encroached on the constitutional powers of the Executive.”[264] In asserting a claim of privilege based on separation of powers, however, Jackson distinguished between congressional investigation of purely executive affairs and congressional inquiry incident to a constitutionally mandated congressional duty:

[C]ases may occur in the course of its legislative or executive proceedings in which it may be indispensable to the proper exercise of its powers that it should inquire or decide upon the conduct of the President or other public officers, and in every case its constitutional right to do so is cheerfully conceded.[265]

Thus, while Jackson clearly propounded a separation of powers argument in defense of a privilege to withhold information, the assertion was narrow rather than absolute and cannot serve as a precedent for a refusal to provide information related to an impeachment inquiry. This same restrictive understanding of the privilege was adhered to by President Tyler.[266] This distinction, along with an acknowledged reservation for inquiry pursuant to an impeachment investigation, was drawn by Buchanan in 1860: “Except in [the] single case [of impeachment], the Constitution has invested the House of Representatives with no power, no jurisdiction, no supremacy whatever over the President. In all other respects he is quite as independent of them as they are of him.”[267] The same thesis was asserted by Grant in 1876 in refusing to comply with a request for information when the Democratic House appeared bent on publicly embarrassing the administration:

I fail, however, to find in the Constitution of the United States the authority given to the House of Representatives . . . to require of the Executive, an independent branch of Government, coordinate with the Senate and the House of Representatives, an account of his discharge of his appropriate and purely executive offices, acts, and duties, either as to when, where, or how performed.

What the House of Representatives may require as a right in its demand upon the Executive for information is limited to what is necessary for the proper discharge of its powers of legislation or of impeachment.[268]

Until this present era, this interpretation of executive privilege and the impeachment investigatory powers of Congress had gone unchallenged. Recently, however, the claim of privilege has been debated at length in the context of contemporary political controversies.[269] This has led to the advancement of the further, more sweeping claim that all communications between employees in the executive branch must be per se immune from the investigations of Congress in order that federal employees can “be completely candid in advising with each other.”[270] Nevertheless, the logic and internal consistency of this position has been sharply criticized.[271] It is difficult to imagine a need for candor between two members of the executive branch, which is so profound as to impede Congress’ ability to utilize the constitutional processes to protect against the abuse of public office.

Neither the historical precedents nor the day-to-day pressures upon the executive branch can support a claim of absolute immunity for presidential documents or testimony based upon the doctrine of separation of powers, when such materials are sought to be withheld from Congress acting pursuant to the impeachment powers. Therefore, while the most respectable claim to executive privilege can probably be based upon the concept of separation of powers, that claim surely founders in the impeachment context since impeachment was conceived as an “exception to [the] principle”[272] of separation of powers.

B. Withholding Information When the Public Interest Requires Executive Summary

The court in Nixon v. Sirica[273] characterized the predominant basis of executive privilege as one of public policy,[274] not constitutional mandate, and this view is in accordance with the weight of precedent. Thus, the privilege of secrecy is not impregnable and may be overridden by a superior public policy interest, and it will be overridden wherever a competing constitutional interest, such as impeachment, is present.

From the earliest days of the Republic, the doctrine of executive privilege has been associated with a consideration of public protection rather than constitutional prerogative. In 1792, for example, when Washington was President, the House of Representatives requested military papers pertaining to Major General St. Clair’s unsuccessful expedition against the Indians. Since all of the papers were given to Congress, the tenuous precedential value of this transaction rests on Jefferson’s notes of a cabinet meeting discussing the circumstances under which nondisclosure would be proper:

We had all considered and were of one mind. 1. that the house was an inquest, and therefore might institute inquiries. 2. that they might call for papers generally. 3. that the Executive ought to communicate such papers as the public good would permit, and ought to refuse those that disclosure of which would injure the public.

. . . .

It was agreed in this case that there was not a paper which might not be properly produced. . . .[275]

This illustrates the point that the executive privilege of secrecy can only be asserted upon some showing injury to the public good. Traditionally, the courts and Congress have respectfully prefaced requests for presidential information with the declaration that such materials are “presumptively privileged,” and they have invited the withholding by the Executive of any materials whenever their release would not be in the public interest.[276] The need for sustaining that privilege of presidential confidentiality, however, has only been respected where some explicit public good is shown to be jeopardized by disclosure. In the Burr trial, for example, the court subpoenaed certain letters in Jefferson’s control which Burr deemed essential to his defense and required that they be produced unless it could be shown that the letters contained matters which, in the public interest or security, ought not to be disclosed:

There is certainly nothing before the Court, which shows, that the letter in question contains any matter, the disclosure of which would endanger the public safety. If it does contain any matter, which it would be imprudent to disclose, which is not the wish of the Executive to disclose, such matter, if it be not immediately and essentially applicable to the point, will of course, be suppressed.[277]

Consequently, the burden of proof was placed upon the Executive seeking to raise a defense of immunity based upon a need for secrecy or confidentiality. Accordingly, Jefferson responded to the subpoena,[278] reserving only the right to withhold materials which were immaterial to the action sub judice, by transmitting all evidence requested, “excepting such parts thereof as are, in my opinion, not material for the purposes of justice, for the defense of the accused, or pertinent to the issue . . . . The accuracy of this opinion, I am willing to refer to the judgment of the Court, by submitting the original letter for its inspection.”[279] The Burr trial provides precedent for judicial power to subpoena presidential papers subject to the limitation that materials surveyed by the court which are irrelevant to the case under adjudication may properly be withheld and suppressed on a claim of privilege. The onus of proof justifying any broader claim of confidentiality, however, clearly falls upon the Executive.

The courts in both Nixon v. Sirica and United States v. Nixon followed the Burr precedent by requiring that the President provide materials “essential to the justice of the [pending criminal] case.”[280] The court in Nixon v. Sirica recognized that while it ought to “show respect for the President in weighing those reasons [for nondisclosure] . . . the ultimate decision remained with the court.”[281] In United States v. Nixon, the Supreme Court followed the Burr case in holding that, while presidential documents were “presumptively privileged,” the claim “cannot prevail over the fundamental demands of due proves of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending trial.”[282] Although the Nixon cases arose out of a dispute exclusively within the executive branch, the logic of these decisions is equally persuasive when applied to congressional requests. Where the President claims a privilege of secrecy to withhold material information from either the courts or Congress, functioning within their respectively mandated spheres, the President’s claim must be made responsibly and subject to prima facie review. In the case of pending criminal trials, the courts have provided the procedure of in camera inspection of presidential papers as a means of reviewing such a claim of privilege, but in the case of congressional inquiries, the procedure is presently unclear. Since the public interest involved in congressional inquiries, particularly impeachment inquiries, is at least as great as the interest involved in the promotion of criminal justice, Congress too should establish a similar reviewing protocol with selected leaders accomplishing an in camera inspection to review claims of confidentiality in opposition to congressional request for persons and papers.

C. Withholding Information on the Basis of Statutory Privilege

Statutes permitting confidentiality have been invoked in support of an executive claim of privilege under limited circumstances but never in opposition to the impeachment proves. The purpose of the Freedom of Information Act[283] is to make available to “any person” upon request governmental records not falling within certain specified exceptions,[284] and to a certain extent, the Act attempts to codify the doctrine of executive privilege.[285] But the Act explicitly states: “This section is not authority to withhold information from Congress.”[286] Furthermore, since the courts have generally declined to abdicate control over evidence to the caprice of executive officers,[287] and since it cannot be concluded that Congress has relinquished any of its extraordinary power to impeach the President simply by having recognized the doctrine of executive privilege in general information-access legislation, one must conclude that a claim of privilege asserted under the Freedom of Information Act or any other such statute is not applicable to congressional investigations, especially where the investigation is incident to an impeachment proceeding.

In sum, the assertion that the Executive has an absolute discretion to withhold materials from both the Congress and the courts on any basis has been shattered by both the Supreme Court in United States v. Nixon[288]and the Judiciary Committee of Congress by its vote on the third article of impeachment.[289] This rejection of executive privilege, taken together with the formal congressional reaction to executive (undeclared) war,[290] to executive acts approaching the monarchical tradition of being above the law,[291] to executive corruption of governmental agencies,[292] and to campaign financing abuses,[293] closes an era of unchallenged presidential ascendancy.

VI. Excluding Evidence on Other Constitutional or Evidentiary Grounds

Just as a claim of executive privilege may not be extended to bar congressional investigation of executive wrongdoings, so many other procedural and civil privileges take on a different legal meaning within the context of an impeachment trial. Confusion of the political role of the impeachment trial with the juridical role of a trial by jury might suggest the need to transpose the prevailing concepts of procedural or substantive due process from the judicial setting to the impeachment process. Due process, however, is not simply the equivalent of being fair; such a simplistic transposition would not be proper. Nevertheless, such concepts as due process and evidentiary privileges may in the future play an important role in establishing the evidence necessary for impeachment and removal from office, especially as concrete evidence like tape recordings of incriminating conversations may not be available for future impeachment proceedings. No doubt the fifth amendment rights, the fourth amendment protections, and the evidentiary privileges afforded an accused or testifying witnesses may become a debated issue in future proceedings.

The applicability of concepts of due process is immediately suggested by the mere prospect of the government’s taking valuable personal rights, offices, and employment from the citizens who hold them.[294] The Fifth Amendment would appear to protect public officers from any taking of office or injury to reputation or future opportunity, except upon the condition that it is accomplished according to the requirements of due process,[295] since the Constitution would seem to authorize dismissal from office only upon a showing of good cause.[296] However, a President who attempts to invoke the due process clause of the Fifth Amendment to impose upon the Congress a specific standard of justice to be observed in the conduct of the impeachment proceeding may fail for the following reasons. First, the Bill of Rights was adopted to protect private citizens from encroachments upon their liberties by powerful federal officers; never does there appear any indication in the writings of Jefferson or those who advocated the ratification of the fifth amendment that the due process clause should also regulate the interrelationships between those federal officers or, indeed, constitute an ultimate principle superimposed upon the principle of separation of powers otherwise defined in the Constitution. Moreover, certain presidential claims, such as the assertion of executive privilege, rest exclusively upon the assumption that the individual raising them does so as President and not in his capacity as a private citizen. Thus, in order to invoke the personal protections of the Fifth Amendment, the President must take a position that would be inconsistent with any protections that he claimed because of the status of his office. Second, there is no simple concept of due process per se. Rather, the standard of due process which is required by any given situation is determined independently by reference to the nature of the right which is sought to be protected.[297] Just as the procedure which is adequate for the vindication of welfare rights is not the same as that which is required to prove a felony charge,[298] so one cannot import into and appropriate for use in the impeachment process any given standard of due process which happens to attach to another given substantive right in our society. The meaning which due process therefore will have in the impeachment context must be founded upon a wide-ranging analysis of the total impeachment process; it must not merely reflect the interests of any one officer who is seeking to retain his office. Third, the impeachment process is itself a well-defined political proceeding which operates only upon the observance of its established rules and constraints. These provisions provide ample procedural protection, affording an accused the rights of notice and hearing which characterize the essence of due process.[299] No taking of office occurs before this elaborate procedure has been carried out, and even after it has been carried out the removed officer has additional, though limited opportunity to clear his name and reputation in subsequent actions in the courts.[300] Finally, since the total scheme which is embedded in the Constitution articulates both the rights of office and the manner in which a person’s tenure of office terminates, the inescapable conclusion is that any person claiming the rights of public office and enjoying the particular protections of the removal process as defined in the Constitution cannot be heard at the same time to contest the “constitutionality” of an impeachment conducted pursuant to the terms of that document. As Mr. Justice Rehnquist has recently stated: “[W]here actions on the procedures which are to be employed in determining that right, [one claiming rights under that grant] must take the bitter with the sweet.”[301] In the case of a presidential impeachment especially, since the procedural relationship between the office of the President and the other branches of government is undeniably intertwined with the substantive creation of the office, the procedural rights, which attach to that office are to be defined exclusively by the impeachment provisions as they appear explicitly in the Constitution. These provisions do not incorporate a judicially defined due process requirement into the political machinery of impeachment.

However, this argument against the applicability of the due process clause of the fifth amendment should not lead to the conclusion that the House and the Senate have the power to deal arbitrarily with the impeachment power. The concept of due process is important to the impeachment proceeding, not because it appears in the fifth amendment, but because it pervades this country’s concept of justice and therefore acts as a powerful political constraint on congressmen who participate in the impeachment investigations and trial. Consequently, while the Senate may vote on an ad hoc basis to overrule particular evidentiary or procedural rules which conventionally are followed in the courts,[302] it is highly unlikely that the Senate would deny an impeached civil officer well-recognized procedural safeguards except in rare cases. As the history of prior impeachment trials has shown, the substance of due process currently recognized in judicial proceedings generally will be recognized in impeachment proceedings, with the single caveat that a party asserting the privilege or right is subject to the concepts of justice held by congressmen, and derivatively by their constituents, rather than by the judiciary.

The same line of reasoning applies to the full panoply of rights and privileges, which an accused officer might attempt to derive from the fourth amendment or from the common law. Consider what would happen if the Congress were to authorize and conduct and unlawful search of the White House to gain possession of a President’s personal papers. While the President could easily suppress that evidence in a subsequent trial of his criminal guilt in the courts, he could not compel its suppression before the Senate through the fourth amendment. His only recourse would be to appeal to the conscience of the Congress and to the public commitment to the rule of law. If that appeal were unsuccessful, he might seek money damages directly upon the violation of his fourth amendment rights which he had suffered,[303] but beyond that, it would exceed the powers of the courts either to intervene in the conduct of the impeachment trial or to reverse its verdict for any perceived constitutional infirmity.[304] Even less likely is the possibility that, it would exceed the powers of the courts either to intervene in order to protect evidentiary privileges that exist between a husband and wife or between and accused and his counsel. The social institutions which these privileges were created to protect simply cannot be given precedence over the nation’s constitutional infrastructure which is designed to regulate the relationship among the governmental branches in an impeachment proceeding.

A further due process argument may conceivably be advanced by a public officer who has been subjected to impeachment investigations or by witnesses brought to testify in such trials: that certain demanded disclosures may jeopardize the rights of third parties and therefore cannot be compelled. On occasion—but not in the context of an impeachment trial—Presidents have objected to and resisted certain disclosures which would infringe the constitutional rights of third parties. For example, President Jackson refused to disclose information to the House concerning the conduct of a surveyor-general who had been removed from office on the purported grounds of fraudulent conduct. Jackson argued that disclosure would deprive a citizen of his basic right to “a public investigation in the presence of his accusers and the witnesses against him.”[305] Later, President Tyler also claimed a privilege to withhold certain information on the basis of evidentiary privileges. In support of his refusal to supply the requested materials, Tyler stated that “these principles [evidentiary privileges] are as applicable to evidence sought by a legislature as to that required by a court.”[306] If this principle were not generally respected, it might be argued, Congress could fashion its own concept of procedural due process and then proceed, for example, to compel a witness to testify about a conversation concerning criminal conduct in which the witness participated. It would appear that a witness could thereby be effectively deprived of his right against self-incrimination, whereas the Supreme Court in Emspak v. United States[307] and Quinn v. United States[308] specifically has extended the privilege against self-incrimination to apply to a witness testifying before a congressional investigatory body. The modern doctrine of the privilege “extends to all manner of proceedings in which testimony is legally compellable, whether litigious or not and whether ex parte or otherwise.”[309]

Without dismissing out of hand the due process arguments thus raised on behalf of third parties, it is contended that any effort to exclude evidence on such grounds from an impeachment proceeding must bear a nearly insurmountable burden of persuasion whenever that evidence is deemed significant to the resolution of the impeachment issue. This result is dictated both by the extraordinary nature of the impeachment proceeding and by the ability of a court to suppress or contradict the congressional testimony in the subsequent trial if that should prove necessary to vindicate the rights of third parties. Any earlier intervention by the courts into the impeachment process, however, on the pretense of supplying that proceeding with a given measure of due process, must be perceived and dismissed as premature and extra-constitutional.

IV. Impeachment and Judicial Review

Until recently, it has not been suggested seriously that the Supreme Court would have the power to review the interlocutory or final decisions of the Senate in an impeachment trial.[310] Nevertheless, as the nation matures and its communal roots deepen, it becomes increasingly more reasonable to require the decisions of government to be “made in accordance with rules of law and somewhat less by political accommodation.”[311] One can anticipate that the political question doctrine,[312] precluding judicial review of the decisions of a coordinate political department, is bound to recede as time goes on,[313] and as its circumference contracts, the feasibility of allowing judicial review of decisions made in the course of an impeachment proceeding may well appear to be enhanced. It is suggested, however, that there exists a hard core of issues, extending beyond the conduct of foreign policy, in which perceived legitimacy of governmental institutions and decisions demands the final political resolution of problems by one or the other of the political branches. Over these matters judicial review should not extend. Impeachment is such an issue. A political question which evades judicial review is said to arise under any of six conditions: where the actual text of the Constitution commits the issue to other branches for determination, where judicially discoverable or manageable standards for resolving the issue are lacking, where the question cannot be resolved without presupposing an initial policy determination of a kind clearly calling for nonjudicial discretion, where judicial review would entail an expression of disrespect for other branches of government, where contradictory resolutions might cause embarrassment to the government as a whole, and where there is need to adhere to a political decision already made.[314] It is suggested that under all but perhaps the second of these criteria, every question which is material to an impeachment decision presents a political question not subject to judicial review.

In the first instance, the constitutional text expressly grants the exclusive power of impeachment to the houses of Congress. The power to impeach and convict is held solely by the House and the Senate.[315] It would seem to be anomalous to contend that this power can be exercised only in compliance with the dictates of the Supreme Court.

This construction of the demonstrable constitutional commitment of the issue of impeachment to Congress has been consistently acclaimed by the courts and the commentators, and it clearly reflects the unambiguous intentions of the framers at the Constitutional Convention. Joseph Story, in his Commentaries, expressed the common view of the early writers of that Congress, not the courts, possessed a textual grant of constitutional authority to resolve any question of impeachment: “The true exposition of the Constitution on [this point] is brought before the learned reader as matters still sub judice, the final decision of which may be reasonably left to the high tribunal constituting the court of impeachment when the occasion shall arise.”[316] This view is amply supported by the record of the Convention. Impeachment, as originally proposed, was to be within the jurisdiction of the “National Judiciary.”[317] After much discussion, however, impeachment jurisdiction was taken away from judicial cognizance and vested solely in Congress.[318] The debates outline the reasons for the change. First, the judiciary has the power to proceed under an indictment against an accused at the same time that he is the subject of an impeachment proceeding, and it was considered undesirable that the courts should entertain two proceedings at the same time against one individual.<