United States District Court,
District of Columbia.
Sept. 17, 1992.
802 F.Supp. 490
SPORKIN, District Judge.
Judge Alcee Hastings, a federal district court judge, was removed from office by the United States Senate after he was convicted on articles of impeachment on October 20, 1989. Impeachment is an extraordinary remedy. As an essential element of our constitutional system of checks and balances, impeachment must be invoked and carried out with solemn respect and scrupulous attention to fairness. Fairness and due process must be the watchword whenever a branch of the United States government conducts a trial, whether it be in a criminal case, a civil case or a case of impeachment.
 The key issue in this case is whether a life-tenured Article III judge who has been acquitted of felony charges by a petit jury can thereafter be impeached and tried for essentially the same alleged indiscretion by a committee of the United States Senate consisting of less than the full Senate. This Court determines that the answer is no.
The plaintiff is a former United States District Court judge.
He has brought this action against the United States of America, the United
States Senate, and several individual federal officers claiming that he
was impeached, convicted and removed from judicial office in violation
of the Constitution. He seeks a declaratory judgment as well as injunctive
relief reinstating him to his former office and restoring his judicial
salary. The defendants have filed a motion to dismiss on the grounds that
this Court lacks jurisdiction to hear this action. The Court held a hearing
on the motion on June 9, 1992 and is now prepared to rule.
Alcee Hastings was appointed to the bench for the United States District Court for the Southern District of Florida in 1979. He was indicted in December of 1981 on a charge of conspiracy to solicit and accept a bribe. On February 4, 1983, in a trial presided over by the late Judge Edward Gignoux of Maine, one of the most highly respected United States District Court judges of his day, Judge Hastings was acquitted by a jury. Six weeks after his acquittal, members of the Judicial Council of the Eleventh Circuit filed a complaint against Judge Hastings under the Judicial Disability Act, 28 U.S.C. §§ 331, 332, 372(c), 604(h). Three and a half years later the Judicial Council issued a report and sent it to the Judicial Conference of the United States. The Judicial Conference met on March 17, 1987, concurred in the findings of the Council and recommended to the Speaker of the House that Judge Hastings be impeached.
On August 3, 1988, the House adopted seventeen articles of impeachment against Judge Hastings. The first fifteen articles reformulated the conspiracy charge of which Judge Hastings had been acquitted. They also charged Judge Hastings with presenting false testimony and fabricated evidence. Judge Hastings filed a motion to dismiss with the Senate which the Senate later rejected. The Senate convened an Impeachment Trial Committee pursuant to Rule XI of the Rules of Procedure and Practice when Sitting in Cases of Impeachment. Immediately thereafter, Judge Hastings filed a suit in United States District Court for the District of Columbia challenging the use of a trial committee as unconstitutional and seeking a preliminary injunction to prevent the impeachment proceedings from going forward. The court dismissed the complaint for lack of jurisdiction. See Hastings v. United States, 716 F.Supp. 38 (D.D.C.1989). The trial went forward before the committee. On October 19 and 20, 1989 the Senate held debate on the Articles of Impeachment. Judge Hastings was convicted on Articles I, II, III, IV, V, VII, VIII, and IX. He was acquitted on Articles VI, XVI, and XVII. The Senate did not vote on Articles X-XV. See 135 Cong.Rec. S13783-88 (daily ed. Oct. 20, 1989).
When the voting record of the Impeachment Trial Committee was
reviewed, it revealed that the twelve members of the committee did not
vote to impeach by the required two-thirds majority on any of the articles
of impeachment. The Chair and Vice Chair of the Impeachment Trial Committee,
Senator Bingaman and Senator Specter, filed statements in support of acquittal.
The committee proceedings were videotaped, but it is unclear how many senators
actually reviewed the tapes. Nonetheless, enough senators who had not heard
the evidence personally voted to convict to constitute the necessary two-thirds
majority. Following his conviction, Judge Hastings was removed from judicial
office, and his judicial salary was no longer paid to him. In July of 1991
he filed this action.
A. Significance of the Nixon Decision
 The defendants urge the Court to dismiss this action on the grounds that it lacks jurisdiction to review any matter having to do with impeachment. The defendants claim that the political question doctrine applies to this case, therefore it is nonjusticiable. For support, they cite the decision by the Court of Appeals for this circuit in Nixon v. United States, 938 F.2d 239 (1991). In that case, former federal district judge Walter Nixon sued the Senate after he was impeached and convicted claiming among other things that the procedures used by the Senate violated the Constitution. The Court of Appeals held that it lacked jurisdiction. The majority held that the case was nonjusticiable because it presented a political question. Judge Randolph concurred in the judgment, but wrote a separate opinion in which he said, "I see no need to rely on the somewhat 'amorphous' doctrine of 'political question [s].' " Judge Edwards dissented. In his opinion, he concluded that the case was justiciable although on the merits he concluded that Nixon's impeachment trial had not violated any constitutional requirement.
The Supreme Court has agreed to hear the Nixon Case on the issue of jurisdiction specifically as well as on the issue of whether the Senate can assign the collection of evidence in an impeachment proceeding to a special panel rather than have the entire case heard by the Senate at large. In view of the grant of certiorari on the identical issue presented in this case, the Court believes that the Nixon case does not preclude it from reaching a decision in the Hastings case. It should also be noted that Judge Hastings filed a complaint protesting the procedures to be used by the Senate before his impeachment trial. See Hastings v. United States Senate, 716 F.Supp. 38 (D.D.C.1989). Although this earlier action was properly dismissed because it did not present a ripe question for review, it was analogous to the practice used in an Article III trial of "preserving an objection" for appeal.
There are crucial factual differences between the cases of Judge Hastings and Judge Nixon. Whereas Judge Nixon was convicted of two counts of perjury by a jury after a trial in federal district court, a jury acquitted Judge Hastings of the underlying charges which formed the basis of the articles of impeachment filed against him. It was not possible as it was with Judge Nixon to submit a certified copy of his conviction on criminal charges as probative evidence of his conduct. Whatever the burden of proof may be in an impeachment trial, the crucial evidence proving with any degree of certainty that Judge Hastings actually committed "High Crimes and Misdemeanors" as charged in the Articles of Impeachment had to come from live witness testimony…
The deliberative body that actually heard the evidence against
Judge Hastings, namely the twelve-member Impeachment Trial Committee, did
not have the votes to convict Judge Hastings by the necessary two-thirds
majority. The votes of senators who did not actually "try" the impeachment
must be counted to accumulate the two-thirds majority. The event the Court
of Appeals felt compelled to reserve as possibly invoking judicial review
in effect has surfaced. Courts must have jurisdiction to determine whether
the "unalterable limits" of the Constitution have been preserved.
The defendants claim that the issues Judge Hastings has raised are nonjusticiable because they are "political questions" which the Constitution has textually committed to another branch of government…
Impeachments are not political in nature. To impeach an Article III Judge, the judge must be brought up on real charges, i.e., High Crimes and Misdemeanors, and receive a real trial before the full Senate as clearly required by the Constitution. Nothing less will do if this nation is to maintain an independent judiciary. Contrary to what has been argued by Senate counsel, this Court holds that the proceeding as it applies to the judiciary is not a political proceeding. It is every bit a judicial proceeding. There is no basis to interpret the Constitution to allow the removal of a judge for political reasons. To do so would be the antithesis of creating and sustaining an independent judiciary. If Senate counsel is correct, then President Roosevelt should have pursued impeachment of the Supreme Court justices who declared a number of his laws unconstitutional rather than a "court packing" plan that ultimately failed. [FN5]
The defendants' arguments under the political question doctrine have served to focus this Court's scrutiny on the words of the Constitution, specifically whether there has been a "textually demonstrable commitment" of all matters relating to impeachment to the legislative branch. Of central importance are structural concerns about our constitutional system of government and what role if any judicial review of impeachment plays. In essence, this case presents a new version of Marbury v. Madison. The basic framework of our three-branch system is at issue. A single branch of government claims to have uncontested dominion over another branch by arrogating to itself the unreviewable authority to interpret the Constitution. As the Framers said in The Federalist Papers,
Impeachment was never intended to be an ominous weapon that the legislature could hold over the head of the judiciary and invoke at will without limitation or reason. In establishing this nation's tripartite form of government, the Constitution had little to say about the Judicial Branch. While Article II which deals with the Executive Branch of Government clearly states that "The President, the Vice President and all civil Officers of the United States" are subject to impeachment, Article III which applies to the Federal Judiciary is eloquently silent on the subject. Indeed, there is nothing that this Court finds in its reading of the constitutional papers that would negate the proposition that the only officers of government specifically made subject to impeachment under the Constitution are members of the executive branch. Article I which applies to the legislative branch like Article III is silent on impeachment as to its members, and it has been accepted that members of Congress are not impeachable. It seems that the Constitution should have provided some procedure for ridding the Government of an errant member of the Congress. [FN7]
Thus, by including Article III judges as "civil officers of the United States" the Constitution has been interpreted to subject judges to the full impeachment process spelled out in Article I. Judges have been subjected to the impeachment process since 1804 when Judge John Pickering was impeached. See William Rehnquist, Grand Inquests 127 (1992). Since that time, some fourteen judges have been subjected to impeachment and trial. Id. at 119. With such long-standing precedent, it has become settled law that judges may be impeached as "civil officers of the United States" Even though the federal judiciary is subject to the impeachment process, the constitutional principles of separation of powers and checks and balances must be scrupulously honored. " '[T]he Constitution enjoins upon its branches separateness but interdependence, autonomy but reciprocity.' " Morrison v. Olson, 487 U.S. 654, 694 (1988). Our system was meant by the Framers to be a "self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other." Buckley v. Valeo, 424 U.S. 1, 122 (1976). The Supreme Court has recognized that the three branches are not to be entirely fenced off one from the other. [FN9] To say that impeachment trials are wholly the province of the legislative branch does not mean that the judicial branch can never reach any issue that involves impeachment. Independence is not isolation.
The Constitution … presumes that judges will be worthy of their posts, that they will serve for life, and that they will be removed from office only when they have engaged in conduct that constitutes a major indiscretion. Life tenure for the judiciary is itself a fundamental check on the extensive powers of the political branches. It guarantees that there will be a place in our government for justice apart from politics. In his history of the impeachment of Justice Samuel Chase, Chief Justice William Rehnquist has described the attitude of the senators who were in favor of using impeachment for strictly political purposes. One such senator, William Branch Giles of Virginia, was heard to say,
III. CONSTITUTIONAL REQUIREMENTS FOR IMPEACHMENT
This matter came before the Court on the defendants' motion to dismiss for lack of subject matter jurisdiction, see Fed.R.Civ.P. 12(b)(1), which the Court is denying. Defendants have also moved for dismissal on the grounds that plaintiff has failed to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). The defendants have represented the facts to be exactly the same as those alleged by the plaintiff, and this case is governed by a core principle of law. At the hearing, the Court understood counsel for plaintiff to be submitting the case for summary judgment and counsel for defendants as having no objection to the Court considering the case in that procedural posture. Since the defendants have addressed written and oral arguments to the merits of the dispute before the Court and as there is no genuine issue of material fact left in dispute, summary judgment is appropriate at this time.
On the merits, the plaintiff claims (1) that the Constitution requires that the Senate provide sufficient financial support to guarantee an impeached judge effective assistance of counsel; (2) that double jeopardy barred his impeachment; and (3) that laches also barred his impeachment because he was charged five years after his acquittal by a jury and seven years after his alleged receipt of a bribe took place. Finally, the plaintiff claims he was denied an impeachment "trial" as the Constitution requires because the evidence against him was heard by a committee of twelve senators rather than by the entire body of the Senate. The defendants dispute all these claims.
The Court will dismiss the first three claims. The Constitution does not specifically address the right to counsel in an impeachment proceeding, but such a right seems in keeping with general constitutional principles of fairness and justice. However, the right to have effective assistance of counsel provided at public expense is limited to criminal cases…
Plaintiff also has no legal foundation for his claim that double jeopardy bars his impeachment. Impeachment is a wholly separate proceeding from a criminal trial, and it has an entirely different purpose, that is to remove from office those judges who have failed to serve during good behavior. Impeachment is sui generis. Double jeopardy no more bars an impeachment trial following a criminal trial than it does a civil trial following a criminal trial.
Next, the plaintiff claims that the doctrine of laches barred his impeachment prosecution. As stated before, the Court must find that there has been unreasonable delay that prejudices the opposing party in order for laches to apply. For the same reason that the Court declined to accept this argument when the defendants made it in favor of dismissing this case, the Court now rejects it as a basis for granting relief to the plaintiff. Impeachments are rare, and they are very significant matters. The legislature must be given adequate time to verify that an impeachment is warranted. In this case, Congress waited for the Judicial Conference to take action under the Judicial Disability Act. While there was delay, it was reasonable under the extraordinary circumstances of this case. The laches claim will be dismissed.
Only one claim remains, however, it is the one with merit. Did the use of an impeachment trial committee pursuant to Rule XI of the Rules of Procedure and Practice when Sitting in Cases of Impeachment violate the Constitution? This Court believes it did. The Constitution says "The House of Representatives shall chuse (sic) their Speaker and other officers; and shall have the sole power of impeachment." Art. I, sec. 2, cl. 5. It goes on to say that,
The defendants argue that the Senate has absolute discretion to decide
what procedures it will use in an impeachment trial. Followed to its logical
conclusion, this argument would allow the Senate to try an impeached officer
of the United States by a committee of one, in effect designating one of
its officers to act as a fact-finder. The defendants argue that should
they wish to adopt such a procedure, it is their prerogative to do so.
That is not what the Constitution says. The accused officer must
have a real trial before the full Senate.
A. Flaws in the Hastings Impeachment Trial
The use of an impeachment trial committee did not comport with the requirement that Judge Hastings be "tried." The majority of the Senators never had any first-hand knowledge of the evidence against Judge Hastings. [FN12] They did not participate in the hearings where testimony was taken and evidence submitted. The committee itself was not convinced to convict by a two-thirds majority on any of the counts, and the chairman and vice chairman made statements in favor of acquittal…
[I]t would seem to be the better view that in a presidential impeachment at least, all efforts should be made to have all Senators hear and see all the witnesses and that reading a transcript should not generally be deemed a sufficient substitute for this. Of course, a Senator may occasionally be absent, but that would not justify setting up a system to encourage or promote this. Impeachment: Miscellaneous Documents, S.Comm. on Rules and Administration, 93rd Cong.2d Sess., 159 (1974).
B. The Burden on the Senate
An impeachment trial must be by the full Senate. The Constitution explicitly states that an impeachment shall be tried by the Senate. This Court holds that a trial by the Senate means by the full Senate and not by a committee of the Senate. Each senator who votes on the impeachment must have the ability to judge the credibility of witnesses and hear with their own ears the evidence as it is presented. The receipt of evidence is a crucial phase of a trial, and it cannot be delegated to a small group of senators. In his recent book on the history of impeachment, Chief Justice Rehnquist has written,
Impeachments take place not when government is operating as it should
but rather when government has gone hideously awry, when it is seriously
alleged that a high and trusted public official lacks the respect for law
and ethics necessary to hold an office of public trust. These have always
been and should continue to be rare events. From the time of Justice Chase's
impeachment to the present, only thirteen federal judges have been impeached.
See William Rehnquist, Grand Inquests, 119 (1992). There is no reason for
this pattern not to continue, and the burden of a full trial on the Senate
will be imposed infrequently. By its very nature, impeachment must be accorded
the highest priority and be allotted whatever time it takes--even if it
is burdensome to do so--in order to give due respect to the coordinate
branch of government being affected. The Senate may well have instituted
trial committees in order to accommodate its flow of legislative business,
but that decision ignores both the plan of the Constitution as well
as fundamental priorities of our governmental structure. Shortcuts cannot
be taken with the checks and balances which allow three branches to work
together or there will be no opportunity for the branches to carry out
their independent functions.
C. Due Process and Impeachment
The fundamental constitutional concept of due process also demands that
impeachments be tried by the full Senate. The major constitutional directive
on procedure appears in the Fifth Amendment: "No person ... shall be deprived
of life, liberty, or property, without due process of law...." This clause
makes no reference to any specific branch of government. It simply states
one of the key principles that lies at the heart of our constitutional
Without depriving the House or the Senate of one iota of their exclusive constitutional powers to impeach, try and convict "officers" of the United States, this Court has jurisdiction to interpret what the Constitution says about impeachment. It states that the accused officer is entitled to a trial. This means a trial by the full Senate. Judge Hastings did not get a trial by the full Senate. He is entitled to have one. The defendants' motion to dismiss is denied.
The Court having found that Judge Hastings was entitled to a trial by
the full Senate, his impeachment and conviction must be overturned and
remanded to the Senate for a trial that comports with constitutional requirements.
This being the decision of the Court, judgment will be entered in favor
of Judge Hastings. Because this is such an important issue and will clearly
be settled by the Supreme Court, the Court will stay its order until the
issue has been decided on appeal.
RULES OF PROCEDURE AND PRACTICE IN THE SENATE WHEN SITTING ON IMPEACHMENT TRIALS
XI. That in the trial of any impeachment the Presiding Officer of the Senate, if the Senate so orders, shall appoint a committee of Senators to receive evidence and take testimony at such times and places as the committee may determine, and for such purpose the committee so appointed and the chairman thereof, to be elected by the committee, shall (unless otherwise ordered by the Senate) exercise all the powers and functions conferred upon the Senate and the Presiding Officer of the Senate, respectively, under the rules of procedure and practice in the Senate when sitting on impeachment trials.
Unless otherwise ordered by the Senate, the rules of procedure and practice
in the Senate when sitting on impeachment trials shall govern the procedure
and practice of the committee so appointed. The committee so appointed
shall report to the Senate in writing a certified copy of the transcript
of the proceedings and testimony had and given before such committee, and
such report shall be received by the Senate and the evidence so received
and the testimony so taken shall be considered to all intents and purposes,
subject to the right of the Senate to determine competency, relevancy,
and materiality, as having been received and taken before the Senate, but
nothing herein shall prevent the Senate from sending for any witness and
hearing his testimony in open Senate, or by order of the Senate having
the entire trial in open Senate.