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Presidential Impeachment and Judicial Review The concept of judicial review of an impeachment and conviction of a President of the United States has rarely been seriously considered. With the authoritative grant to the Congress of the "sole Power" to impeach and try the President on the one hand,' and the courts' avoidance of political questions on the other,2 the point has been viewed as settled by the courts.3 Indeed, legal scholars have of powers absolutely used the impeachment power as an example 4 legislature. the of discretion vested in the Recently, however, this view has been seriously questioned. Two Supreme Court cases, one adding great flexibility to the courts' application of the political question doctrine5 and the other limiting the exercise of a similarly vested congressional power,6 have raised 1. "The House of Representatives . . . shall have the sole Power of Impeach- ment." U.S. CONST. art. I, § 2. "The Senate shall have the sole Power to try all Impeachments." Id. at art. I, § 3. 2. See text accompanying notes 44-64 infra. 3. See, e.g., Ritter v. United States, 84 Ct. Cl. 293 (1936), cert. denied, 300 U.S. 668 (1937) (judge removed from office by an impeachment conviction claimed Senate had exceeded its jurisdiction). In Ritter the court held that ". . . the Senate was the sole tribunal that could take jurisdiction of the articles of impeachment presented to that body against the plaintiff and its decision is final." Id. at 300 (emphasis added). Cf. Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1867) (Court refused to enjoin the President from enforcing Reconstruction legislation). The Court in Johnson implied hypothetically that the courts could not interfere with the Senate's power as a court of impeachment. [Clould this court interfere in behalf of the President . . . and restrain by injunction the Senate of the United States from sitting as a court of impeachment? Would the strange spectacle be offered to the public world of an attempt by this court to arrest proceedings in that court? These questions answer themselves. Id. at 501. 4. "From Story onward it has been thought that in the domain of impeachment the Senate has the last word. . . ."R. BERGER, IMPEACHMENT: THE CONSTITUTIONAL PROBLEMS 103 (1973) [hereinafter cited as R. BERGER]. In all our ordinary judicial proceedings we have courts rising one above another in rank, in which repeated discussions are had [of a case] . . . . But in the grave questions decided on an impeachment, a single tribunal disposes of the question absolutely and for all time. Dwight, Trial by Impeachment, 6 U. PA. L. REV. 257, 258 (1867). See also Lawrence, The Law of Impeachment, in id. at 641, 660. 5. Baker v. Carr, 369 U.S. 186 (1962) (district court had subject matter jurisdiction over claim that apportionment of state legislature denied equal protection and such a claim presented a justiciable issue). 6. Powell v. McCormack, 395 U.S. 486 (1969). The respondents, who were in 960 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 23:959 a sufficient possibility of judicial review in the event of a presidential impeachment to warrant further examination.' Additionally, the initiation of the second impeachment inquiry into a President's more conduct in the history of the nation has caused some of the 8 esoteric aspects of impeachment to be carefully considered. It is the purpose of this comment to examine the concept of judicial review in the light of both recent scholarly work on the subject and the unarticulated assumptions which have for so long precluded discussion in this area. While it may not be possible to determine conclusively the legal and political efficacy of judicial review of a presidential impeachment, a framework of analysis can be established by which its constitutional legitimacy may be measured. To that end, this comment will focus upon the power of the federal courts to review a President's impeachment and conviction in light of the role which the impeachment power plays in our system of government, both as envisioned by the framers of the Constitution and as it has come to be actually exercised. Section I will examine the scope of the courts' jurisdiction in regard to a variety of hypothetical cases which might arise from a President's impeachment. Section II will consider the history and debates over the impeachment provisions as indicia of the intended role of the courts in this area. Section III will analyze the post-ratification development of the impeachment power as raising problems unforeseen by the framers which may be amenable to judicial resolution. Section effect representing the House of Representatives before the Court, contended that the power of the House under article I, section 5 of the Constitution to judge the qualifications of its own members was (like the exclusive power of the Senate to try impeachments) a specific exception to the article III grant of judicial power to the federal courts. Id. at 513-14. The Court stated that the exclusion of a member by the House "clearly" was a case "arising under" the Constitution. Thus, a bar to judicial review would be present only if it arose from the constitutional allocation of powers between the House and the Supreme Court. Id. at 514. Finally, after deciding that the case was justiciable, the Court held that the House could not refuse to seat a congressman for a reason other than those contained in article I, section 2, clause 2 of the Constitution. Id. at 550. 7. See generally R. BERGER, supra note 4; I. BRANT, IMPEACHMENT, TRIALS AND (1972) [hereinafter cited as I. BRANT]; Berger, Impeachment for "High Crimes and Misdemeanors," 44 S. CAL. L. REV. 395 (1971). ERRORS 8. See id. See also IMPEACHMENT 93D CONG., 2D SESS., IMPEACHMENT (Comm. INQUIRY STAFF, HOUSE COMM. ON THE JUDICIARY, MEMORANDUM: CONSTITUTIONAL OROUNDS FOR PRESIDENTIAL Print 1974) [hereinafter cited as JUDICIARY COMM. MEMO.]; Attorneys for the President, An Analysis of the Constitutional Standard for Presidential Impeachment (paper submitted by President Nixon's counsel to the Judiciary Committee, February, 1974) [hereinafter cited as Constitutional Standard]. 19741 PRESIDENTIAL IMPEACHMENT IV will balance the need for judicial review against the potential problems raised by its inclusion within our framework of government. I. THE BASES OF JURISDICTION In order to consider judicial review of a President's impeachment and conviction, it is first necessary to establish the power of the courts to hear such a case. Federal courts have limited, not general, jurisdiction.9 Thus, jurisdiction to hear a case involving a presidential impeachment can only be predicated upon constitutional and statutory grants of judicial power to the courts. Additionally, in order to be reviewed in the federal courts, an impeachment case must meet those criteria for justiciability which are determinable by the courts. A. ConstitutionalJurisdiction Article III of the Constitution defines the scope of the judicial power which the federal courts may exercise. It makes no explicit exception of impeachment cases from the general grant of power to hear cases arising under the Constitution." Upon the face of article III, therefore, there is no apparent bar to judicial review.', Indeed, a case brought upon impeachment, challenging the constitutional validity of Congress' application of the article II standard 9. See C. WRIGHT, HANDBOOK OF THE LAW OF FEDERAL COURTS § 7 (2d ed. 1970) [hereinafter cited as C. WRIGHT]. See also Turner v. Bank of North America, 4 U.S. (4 Dall.) 8, 11 (1799) (presumption that the federal courts lack jurisdiction until the contrary is postively shown in each case). See generally, Comment, Palmore v. United States: The Interrelationshipof Article I and Article III of the Constitution, 23 Am. U.L. REV. 119 (1973). 10. "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution. . . ." U.S. CONST. art. III, § 2. 11. Until recently neither the courts nor the commentators thought that there was any doubt as to the lack of jurisdiction under article I. See notes 3 & 4 supra. The framers of the Constitution initially gave the Supreme Court original jurisdiction over cases of impeachment. See 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787, 173 (rev. ed. 1937) [hereinafter cited as M. FARRAND]. Since the Convention ultimately took away that portion of the Court's original jurisdiction and gave to the Senate the power to try impeachments, a strong implication arises that no judicial jurisdiction exists. But cf. Powell v. McCormack, 395 U.S. 486 (1969). In Powell the Court declared that it had subject matter jurisdiction over a case involving a power that was assumed to be possessed solely by the legislative branch. Id. at 514. See note 6 supra.The Court emphasized that any bar to review of a case 962 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 23:959 for impeachable conduct,'2 would seem to fit into the test for determining constitutional subject matter jurisdiction pursuant to the "arising under" clause. That a right asserted might be defeated or sustained by opposing constructions of the Constitution has been held sufficient for federal jurisdiction. 3 What could be more appropriate to this construction test than the right to lawfully hold elected office depending upon disparate interpretations of what conduct constitutes "high Crimes and Misdemeanors"?' 4 There are various potential avenues by which a removed President'" might pursue a judicial review of his impeachment and conviction. He could attempt direct review by the Supreme Court under its original jurisdiction, or a direct appeal from the Senate's judgment to the Supreme Court under its appellate jurisdiction, or institute an action in a federal court of original jurisdiction with "arising under" the Constitution [see note 13 infra] would stem only from the problems of justiciability, i.e., the allocation of powers between the branches of government. Id. at 514. It is important, then, in light of Powell, to keep separate the concepts of justiciability and of subject matter jurisdiction. Thus, the courts' rulings, the commentators' expositions, and the framers' intent all pertain to the concept of separation of powers, i.e., justiciability, and do not pertain to subject matter jurisdiction. 12. See text accompanying notes 105-15 infra. 13. Powell v. McCormack, 395 U.S. 486, 514 (1969). For an analysis of "arising under" within the meaning of article III see C. WRIGHT, supra note 9, at § 17. In Wright's view, the primary question for the Court in the watershed case of Osborn v. Bank of the United States [22 U.S. (9 Wheat.) 738 (1824)], was whether the federal question was an "original ingredient" in the case, rather than whether the title or right set up by the party could be defeated or sustained by different constructions of the Constitution or laws of the United States. Id. The Osbornopinion, as analyzed by Wright, has a much broader scope than the construction test that was applied to interpret the language of 28 U.S.C. § 1331(a) (1970). See notes 27-30 & accompanying text, infra. 14. U.S. CONST. art. II, § 4. See text accompanying notes 105-15 infra. Compare Constitutional Standard, supra note 8, at 60 ("the President may be impeached only for indictable crimes. . . ."), with JUDICIARY COMM. MEMO., supra note 8, at 43 ("to limit impeachable conduct to criminal offenses would be incompatible with the evidence concerning the constitutional meaning of the phrase... and would frustrate the purpose that the framers intended for impeachment."). 15. There are several reasons why this discussion of judicial review is limited to presidential impeachments. Firstly, the framers created the impeachment sanction with the President in mind. It has even been argued that impeachment is an ineffective sanction against abuses by federal judges. See, e.g., R. BERGER, supra note 4, at 122-80. Secondly, the impact of the "good Behaviour" clause upon the standard for impeachable conduct is unclear. See note 122 infra. Lastly, granting an impeached judge recourse to the courts could create conflicts of interest in the courts. 19741 PRESIDENTIAL IMPEACHMENT appeal to the court of appeals and the Supreme Court. It is obvious from the face of article III, however, that the Supreme Court could not hear the case under its original jurisdiction. That jurisdiction is expressly limited to "Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party .... "I' The possibility of direct appeal from the Senate's judgment to the Supreme Court as part of the Court's appellate jurisdiction 17 presents a more plausible alternative. The grant of the "sole Power to try" impeachments to the Senate neither provides for, nor excludes, such appellate review by the Court." It has been argued that the power to "try" is a grant of jurisdiction to try the case in the first instance and it does not necessarily exclude appeal of the initial decision to the Supreme Court. 9 Nevertheless, a major obstacle to direct appeal to the Supreme Court is the "Case or Controversy" limitation of article 12 whicli in effect prohibits the Court from exercising legislative or administrative powers as described by 21 Thus, if the lower tribunal was performing article I and article IH. a non-judicial function, the Court could not review its action upon 16. U.S. CONST. art. HI, § 2. While original jurisdiction is self-executing [see Chisholm v. Georgia, 2 U.S. (2 Dali.) 419 (1793)], it can neither be restricted nor enlarged. See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). Thus, its exercise is limited to cases involving states and foreign ministers. See generally C. WRIGHT, supra note 9, at §§ 109-10. 17. "In all the other Cases before mentioned, the supreme Court shall have appellate jurisdiction, both as to Law and Fact ... ." U.S. CONST. art. III, § 2. 18. The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When 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. Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. Id. at art. I, § 3. 19. R. BERGER, supranote 4, at 111-12. But see Dwight, Trial by Impeachment, 6 U. PA. L. REv. 257, 258 (1867); Lawrence, The Law of Impeachment, in id. at 641, 660. 20. U.S. CONST. art. I1,§ 2. 21. "Another limitation on the jurisdiction of the federal courts is that they cannot exercise administrative, or legislative, power. This limitation is a requirement of Article III, since it extends the judicial power only to 'cases or controversies.'" C. WRIGHT, supra note 9, § 15, at 49. 964 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 23:959 direct appeal. Yet, the test for determining the nature of the function is examination of the nature of the proceedings, not examination of the tribunal itself.L2 2 If the Court were to decide that impeachment proceedings are judicial in nature,2 the proceedings would constitute a "Case or Controversy," reviewable upon direct appeal. Another vehicle for judicial review of a presidential impeachment and conviction would be a suit by a removed President, brought in a federal court of original jurisdiction, for reinstatement to office and/or recovery of lost salary.24 The courts could review the congressional standard for impeachable conduct as presenting an action arising under the Constitution without having to address the "Case or Controversy" problems raised by the direct appeal process. Since, however, the original jurisdiction of the federal courts is established by Congress,2 and since the Supreme Court's appellate jurisdiction is subject to such "Exceptions" and "Regulations" as the Congress shall make, 2 it is necessary to examine the scope of jurisdiction granted to the courts by Congress. B. Statutory Jurisdiction Even if constitutional jurisdiction is present, a case cannot be 22. See Prentis v. Atlantic Coast Line Co., 211 U.S. 210 (1908) (the nature of the function performed is determined by the nature of the proceedings, not the nature of the tribunal -itself). Cf. text accompanying notes 80, 131-35, 148-49 infra. 23. See text accompanying notes 80, 131-35 infra. 24. Berger has suggested a suit in the nature of a quo warranto proceeding instituted by the removed President as the most likely vehicle. R. BERGER, supra note 4, at 108. However, it seems that a suit by the ex-President for reinstatement or lost salary might be equally successful. Indeed, the latter might enable the courts to relieve at least part of the President's damages without interfering with succession to office in the Executive branch. 25. "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." U.S. CONST. art. IlI, § 1. 26. "In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." Id. at art. III, § 2. Congress has utilized its power to regulate the appellate jurisdiction of the Court. See, e.g., Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869) (the power of Congress to enact legislation to deprive the Court of appellate jurisdiction applied to cases which were already on the Court's docket). But see Ex parte Yerger, 75 U.S. (8 Wall.) 85 (1869). See also C. WRIGHT, supra note 9. "Congress does not have the power to make such exceptions as will destroy the essential role of the Supreme Court in the constitutional plan." Id. § 10, at 23. PRESIDENTIAL IMPEACHMENT 1974] heard unless it falls within the scope of jurisdiction defined by statute. 2 Determining the scope of statutory jurisdiction presents entirely different problems than those raised by constitutional jurisdiction. While the statutory grant of original "federal question" jurisdiction to the district courts appears to follow the "arising under" clause of the Constitution verbatim, 28 the test for defining the limits of that jurisdiction is the congressional intent embodied in the statute and not the intent of the drafters of article 11.29 Consequently, statutory federal question jurisdiction has not been held to be coextensive with the reach of the constitutional provi3 sion.: " While an impeachment case would not fall within the Supreme Court's original jurisdiction 3 ' nor within the statutory provisions of the Court's appellate jurisdiction upon a direct appeal 2 from the 27. In the instance of lack of jurisdiction the cause either does not "arise under" the Federal Constitution, laws or treaties (or fall within one of the other enumerated categories of Art. III, § 2), or is not a "case or controversy" within the meaning of that section; or the cause is not one described by any jurisdictionalstatute. Baker v. Carr, 369 U.S. 186, 198 (1962) (emphasis added). But see Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793) (Supreme Court's original jurisdiction is self-executing). 28. Compare U.S. CONST. art. III, § 2 ("The judicial Power shall extend to all Cases, in Law and Equity, arisingunder this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under theirAuthority. . .... (emphasis added)), with 28 U.S.C. § 1331(a) (1970): The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States. Id. (emphasis added). 29. See, e.g., Gold-Washing &Water Co. v. Keyes, 96 U.S. 199 (1878) (restrictive interpretation of the 1875 precursor of 28 U.S.C. § 1331(a) (1970) [Act of March 3, 1875, 18 Stat. 470], was based upon the congressional intent behind the statute's enactment). 30. "[Tlhe grant of jurisdiction in § 1331(a), while made in the language used in Art. III, is not in all respects co-extensive with the potential for federal jurisdiction found in Art. III." Powell v. McCormack, 395 U.S. 486, 515 (1969). See also Romero v. International Terminal Operating Co., 358 U.S. 354, 379 n.51 (1959); Shoshone Mining Co. v. Rutter, 177 U.S. 505 (1900). 31. See note 16 & accompanying text, supra. 32. Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods: (1) By writ of certiorari granted upon the petition of any party to any civil 966 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 23:959 Senate's judgment, it could be properly brought within the original jurisdiction of a lower federal court.3 3 The case therefore could be initially brought before a single district court judge, 34 appeal could be taken to the court of appeals, 35 and the Supreme Court could 3 then review the decision. or criminal case, before or after rendition of judgment or decree; (3) By certification at any time by a court of appeals of any question of law in any civil or criminal case as to which instructions are desired, and upon such certification the Supreme Court may give binding instructions or require the entire record to be sent up for decision of the entire matter in controversy. 28 U.S.C. § 1254 (1970). 33. Upon conviction by the Senate, the President could sue for reinstatement to office or for loss of salary. See note 24 & accompanying text, supra. Such an action could theoretically be brought in the Court of Claims as presenting a "claim against the United States founded . . . upon the Constitution . . . ." 28 U.S.C. § 1491 (1970). The action could also be brought in a federal district court as a civil action which "arises under the Constitution . . . ... Id. at § 1331(a). The outcome of the case would depend upon a construction of the Constitution since the President's claim would rest upon whether the Senate had convicted him according to the constitutional standards. See notes 105-15 infra & accompanying text. Such actions have been consistently held to be within the scope of § 1331(a). See, e.g., Powell v. McCormack, 395 U.S. 486, 514-16 (1969). However, in the only case positing the issue, the Court of Claims stated that the Senate was the sole tribunal that could take jurisdiction in cases of impeachment. Ritter v. United States, 84 Ct. Cl. 293, 300 (1936), cert. denied, 300 U.S. 668 (1937). 34. It is possible to argue that a suit to restrain the effects of an impeachment conviction might require a three judge federal district court. An interlocutory or permanent injunction restraining the enforcement, operation or execution of any Act of Congress for repugnance to the Constitution of the United States shall not be granted by any district court or judge thereof unless the application therefor is heard and determined by a district court of three judges .... 28 U.S.C. § 2282 (1970). See also id. at § 2284 (procedures of such a court); id. at § 1253 (provision for direct appeal to the Supreme Court). However, the statute has been strictly construed by the courts to limit its application. See, e.g., Phillips v. United States, 312 U.S. 246 (1941). It is doubtful that an impeachment conviction would be considered an "Act of Congress" within the meaning of the statute since the Senate's judgment is not subject to approval by the President under article I, section 7. See text accompanying notes 190-91 infra. "Act" has been equated with "statute," but not all acts of Congress are statutory in nature. See, e.g., United States v. Smith, 27 F. Cas. 1167, 1170 (No. 16,338) (C.C.D. Mass. 1820). 35. "The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States . . . except where a direct review may be had in the Supreme Court." 28 U.S.C. § 1291 (1970). 36. See note 32 supra. 19741 PRESIDENTIAL IMPEACHMENT It thus becomes apparent that while both a direct appeal from the Senate to the Supreme Court and an original suit in a district court are within the scope of constitutional jurisdiction, only the latter falls within the scope of the statutory provisions conferring jurisdiction on federal courts. Yet, in order to be heard in the federal courts such a case must still meet the standards of justiciability. C. Justiciability While the case can be shown to be properly within a court's jurisdiction, "the Court's inquiry necessarily proceeds to the point of deciding whether the duty asserted can be judicially identified and its breach judicially determined, and whether protection of the right asserted can be judicially molded. "' 7 The criteria used in this determination present unusually subtle problems when considering potential judicial review of a President's impeachment and conviction. Each is dealt with below. Federal courts will not hear a case in which the issues have been 3 mooted by a change in circumstances or by the passage of time. Nor will they hear actions which have not yet fully crystallized or are not ripe for review.39 While a case brought upon impeachment, but prior to trial in the Senate, may be considered as lacking ripeness, a suit timely brought challenging the Senate's judgment would be ripe for review and would present issues for resolution which are not moot." 37. Baker v. Carr, 369 U.S. 186, 198 (1962). Justiciability is a "term of art" used to describe two limitations on the Court's jurisdiction-limitations which have arisen from the article HI requirement that the Court hear only "cases" or "controversies." See Flast v. Cohen, 392 U.S. 83, 94-95 (1968). The first limitation is that the question presented must be adversary in nature, and the form of its presentment must be one "viewed as capable of resolution through the judicial process." Id. at 95. Secondly, the question cannot involve functions which have been allocated to the other two branches of our government. Id. 38. "Simply stated, a case is moot when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." Powell v. McCormack, 395 U.S. 486, 496 (1969). 39. The basic principle behind the concept of ripeness is that the courts have limited resources which should not be wasted on abstract or hypothetical questions. 3 K. DAVIS, ADMINISTRATIvE LAW TREATISE 116 (1958). Although the underlying principle is easy to state, the Supreme Court, in attempting to define the criteria for ripeness, has been inconsistent. Compare Poe v. Ullman, 367 U.S. 497 (1960), with Griswold v. Connecticut, 381 U.S. 479 (1965). Generally, however, "[a]n issue is normally ripe for judicial determination when interests of the plaintiff are in fact subjected to or imminently threatened with substantial injury." 3 K. DAvis, ADMINIsTRATIVE LAW TREATISE 200 (1958). 40. See Powell v. McCormack, 395 U.S. 486, 495-500 (1969). Respondents THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 23:959 Federal courts likewise will not render advisory opinions' or hear suits of a collusive nature.2 A suit by a removed President would not be advisory in nature since he would already have been turned out of office and earnestly seeking a judicial remedy for that situation, not an abstract declaration of constitutional law. Obviously, it would be absurd to assume that the Congress and the President collaborated upon his removal simply for the sake of pursuing a judicial resolution of a disputed point of law. In addition to presenting a ripe controversy, a removed President would have to show that he had the requisite standing to litigate the validity of his impeachment conviction in the courts. Without doubt, his removal from office should constitute a direct, personal injury of sufficient impact to justify that standing.43 argued that Powell's claim that he had been unconstitutionally excluded from the House was moot because the 90th Congress, which had excluded him, was concluded, and Powell was then seated in the 91st Congress. However, the Court held that the suit was still viable because of Powell's claim for lost salary. Id. at 496. 41. Flast v. Cohen, 392 U.S. 83, 97 (1968). Since 1793, when President Washington asked the Supreme Court for legal advice, the federal judiciary has consistently refused to give extra-judicial advice. The Justices of the Supreme Court felt that because the Court was designated as the "court of last resort," advisory opinions would obviate the delicate set of checks and balances among the three branches of government. See D. CURRIE, FEDERAL COURTS 8 (1968). 42. See, e.g., Lord v. Veazie, 49 U.S. (8 How.) 250, 254-55 (1850). A collusive suit is basically a feigned suit, brought before the court by parties having a common interest to procure a decision which can be used against other persons who are not parties to the suit. Id. at 254-55. But see Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796). In Hylton, although the statement of facts was stipulated to satisfy the jurisdictional amount requirement, the government paid both lawyers, and no one argued on appeal for the defense, the Court still decided the case on the merits. 43. Flast v. Cohen, 392 U.S. 83, 98 (1968). [SItanding . . . focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated. The gist of the question of standing is whether the party seeking relief has alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions. Id. at 99, citing Baker v. Carr, 369 U.S. 186, 204 (1962). While the removed President would have no problem of standing to litigate his case, it is possible to imagine a suit by a voter challenging the legitimacy of the successor to office. Such a suit could proceed upon a theory of effective denial of the franchise, as in the reapportionment cases. See, e.g., Baker v. Carr, 369 U.S. 186 (1962). In circumstances such as those which followed Vice President Agnew's 19741 PRESIDENTIAL IMPEACHMENT The most troublesome problem in establishing justiciability, and the one most likely to be raised as a bar to this sort of case," is the political question doctrine. 5 That doctrine, based upon the fundamental principle of separation of powers,46 would in all likelihood determine the role of the judiciary in the extraordinary confrontation between the Congress and the President which would result in an impeachment conviction. In the landmark case of Baker v. Carr,4" the Supreme Court carefully listed the factors used in finding that a political question renders a case non-justiciable: Prominent on the surface of any case held to involve a polifical question is found [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court's undertaking independent resolution without expressing lack of respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.48 If one of these factors is "inextricable" from the case, the courts will dismiss the action on the ground that it is a non-justiciable political question.49 The Supreme Court has had an opportunity to apply this formulation in reviewing the exercise of a congressional power analagous resignation, where a Democratic Speaker of the House might have succeeded a Republican President, the pressures giving rise to such a suit are obvious. See generally Jaffe, Standing to Secure Judicial Review: Public Actions, 74 HARv. L. REv. 1265 (1961). 44. See Powell v. McCormack, 395 U.S. 486 (1969). The respondents did not hesitate to argue that article I, section 5 of the Constitution was a "textually demonstrable commitment" to the House of Representatives, and hence the issue should be non-justiciable because of the political question standard. Id. at 519. 45. See note 37 supra. See generally D. CURRIE, FEDERAL COURTS 18-21 (1968); C. WRIGHT, supra note 9, at § 14; Scharpf, JudicialReview and the PoliticalQueston: A FunctionalAnalysis, 75 YALE L.J. 517 (1966). 46. See Baker v. Carr, 369 U.S. 186, 210 (1962) ("[lit is the relationship between the judiciary and the coordinate branches of the Federal Government ... which gives rise to the 'political question.' "). 47. Baker v. Carr, 369 U.S. 186 (1962). 48. Id. at 217 (enumeration added). THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 23:959 0 the Court was faced to impeachment. In Powell v. McCormack," with a suit by an elected congressman challenging the power of the House of Representatives to exclude him. Its treatment of the political question problem raised therein is indicative of the approach that might be taken in an impeachment case. In determining its power to review such a case, the Court in Powell held that the article I power, that "[e]ach House shall be the Judge of the. . .Qualifications of its own members," 51was "at most a 'textually demonstrable commitment' to Congress to judge only the qualifications expressly set forth in the Constitution.""2 Analagously, a federal court could seek to predicate its review upon the concept of an unconstitutional impeachment by determining that the "sole Power" to impeach and try need be exercised within the constitutional standards for impeachment and conviction. 3 The judicial standards problem raised in the second test of the Baker formulation54 was easily dismissed in Powell. The standards expressed in the Constitution for the qualification of congressmen were held to be judicially manageable. 5 Likewise, a federal court could find the constitutional definition of an impeachable offense equally amenable to judicial management, particularly in light of the exhaustive research materials available which discuss the origins and application of the term "high Crimes and Misdemeanors."I 6 Other factors in the Baker formula, involving respect due a coordinate branch of government and the potentiality for embarrassment which may result from disparate opinions from different branches of government, 7 were dismissed, and their future impact probably greatly diminished by the Powell Court in a powerful assertion of the role of the judiciary: Our system of government requires that federal courts on occasion interpret the Constitution in a manner at variance with the construc49. Id. 50. Powell v. McCormack, 395 U.S. 486 (1969). 51. U.S. CONST. art. I, § 5. 52. 53. 54. 55. 56. Powell v. McCormack, 395 U.S. 486, 548 (1969). See R. BERGER, supra note 4,at 105-07. See text accompanying note 48 supra. Powell v. McCormack, 395 U.S. 486, 549 (1969). See, e.g., R. BERGER, supra note 4, at 53-102; text accompanying notes 105-15 infra. 57. See factors, numbered four and six respectively, in text accompanying note 48 supra. 1974] PRESIDENTIAL IMPEACHMENT tion given the document by another branch. The alleged conflict that such an adjudication may cause cannot justify the courts' avoiding their constitutional responsibility ... [I]t is the responsibility of this Court to act as the ultimate interpreter of the Constitution. 8 In the same vein, the Powell Court held that determining whether Congress could exclude Powell was merely an exercise in constitutional interpretation, not a policy determination of a non-judicial nature."9 Whether a federal court would find the same to hold true in an impeachment case would turn upon its interpretation of the nature and purposes of the impeachment proceedings. " The Powell Court did not explicitly discuss one factor, however, which might be peculiarly applicable to an impeachment case; that is, the "unusual need for unquestioning adherence to a political decision already made."' 6 The problems raised in regard to succession to office, " and even whether the House Managers could pursue judicial review of an acquittal by the Senate, 3 might cause this factor to be inextricable from an impeachment case, rendering it non-justiciable. It is evident that the application of the foregoing tests would require a court to conduct an intensive analysis as to the nature and function of the impeachment power before determining the justiciability of the issues.8" The following sections will thus analyze the 58. 395 U.s. at 549. This is factor number three in the Baker formula. See text accompanying note 48 supra. 59. Id. at 548-49. 60. See text accompanying notes 88, 117-20, 148-49 infra. 61. This is factor number five in the Baker formula. See text accompanying note 48 supra. Although the Court, in Powell, did not explicitly discuss factor number five, the Court did allude to it by stating that "[olur system of government requires that federal courts on occasion interpret the Constitution in a manner at variance with the construction given the document by another branch." 395 U.S. at 549. The Court may have felt that since Powell had been seated again in the Congress, it could afford to gloss over its consideration of this factor. 62. See text accompanying notes 200-01 infra. 63. See notes 206-10 & accompanying text, infra. 64. See, e.g., Baker v. Carr, 369 U.S. 186 (1962). Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation .... To demonstrate this requires no less than to analyze representative cases and to infer from them the analytical threads that make up the political question doctrine. Id. at 211. 972 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 23:959 impeachment power within the context of determining justiciability. I. THE ESTABLISHMENT OF THE IMPEACHMENT POWER The framers of the Constitution did not draft the impeachment provisions in a vacuum; they were well aware of the use of impeachment in English history. 65 Yet, the power was modified to serve less as a political weapon than as one means of securing the mutual accountability of the three independent branches of government. 6 Impeachment was intended to ensure ultimate control by the Congress over an abuse of power by the President, without destroying his essential independence. 7 Immediately prior to the affirmative vote on the question of whether the Executive should be subject to removal by impeachment," Gouverneur Morris expressed the rationale for impeachment of the President: This magistrate is not the King but the prime-Minister. The people are the King. When we make him amenable to Justice however we should take care to provide some mode that will not make him dependent on the Legislature. 9 The discussion herein will consider the granting of the impeachment power and the limitations placed upon its exercise as they reflect upon the intended nature and function of the power. Such a determination of the framers' intent would likely be the first step taken by a court in considering whether an impeachment case would be amenable to judicial resolution. A. The Grant of Power The impeachment provisions were not summarily drafted, but evolved slowly out of heated debate over the course of the Constitu65. For instance, during the debate at the Constitutional Convention over whether "high Crimes and Misdemeanors" should be substituted for maladministration, Mason referred to the impeachment of Warren Hastings, the GovernorGeneral of India, who had been impeached shortly before the start of the Convention. 2 M. FARRAND, supra note 11, at 550. Furthermore, among the framers, "at least nine had studied law in England." JUDICIARY COMM. MEMO., supra note 8, at 19; R. BERGER, supra note 4, at 87, 89. See also THE FEDERALIST No. 23 (A. Hamilton). 66. See generally 2 M. FARRAND, supra note 11, at 64-69, for the debates upon the question of an Executive removable upon impeachment. 67. See text accompanying notes 86, 91 infra. 68. See 2 M. FARRAND, supra note 11, at 69. 69. Id. (Morris). 19741 PRESIDENTIAL IMPEACHMENT tional Convention." The decision to provide for the removal of the President upon impeachment, and the investiture of that power in the Congress, were measures carefully taken after an intense consid71 eration of their ramifications and the available alternatives. The impetus for providing for the removal of the President was based upon the inherent distrust of monarchs. 72 It was intended that the new government would embody a rule of law and not one of men, 73 so that no man, no matter how powerful, would be above justice. It was an attempt to forever bury the notion that the king could do 74 no wrong. While this general premise was accepted, it was argued that the Executive, unlike the king, would not serve for life, but would be periodically "tried for his behaviour by his electors. "' 75' Consequently, it was felt that this limited term would be a sufficient check upon an abuse of power. Yet skepticism still prevailed and that position was ably controverted: "If he be not impeachable whilst in office, he will spare no efforts or means whatever to get himself re-elected." 6 Thus, the convention settled upon a trial for the President "intermediate" 77 to his regular elections. The course taken was designed to provide a remedy for the real or imagined excesses of the Executive without resort to assassination78 or insurrection. 71 What was envisioned was a "regular and 70. While the concept of a removable Executive was first proposed on June 2, 1787 [1 M. FARRAND, supra note 11, at 78], the final form of the impeachment provisions was not settled until September 15, 1787. 2 M. FARRAND, supranote 11, at 633. 71. See generally id. at 64-69 (debates upon the impeachment of the Executive); id. at 550-52 (debates upon the question of power to try the Executive being vested in the Senate). 72. See, e.g., id. at 68-69 (Morris) ("One would think the King of England well secured agst [sic] bribery. He has as it were a fee simple in the whole kingdom. Yet Charles II was bribed by Louis XIV."). 73. Id. at 65 (Mason) ("Shall any man be above Justice? Above all shall that man be above it, who can commit the most extensive injustice?"). 74. Id. at 66 (Gerry) ("[The maxim would never be adopted here that the chief Magistrate could do no wrong."). 75. Id. at 67 (King). 76. Id. at 64 (Davies). 77. Id. at 67 (King) (In arguing against impeachment, King thought the Executive should not be subject to an "intermediate trial, by impeachment."). 78. Id. at 65 (Franklin) ("What was the practice before this in cases where the chief Magistrate rendered himself obnoxious? Why recourse was had to assassination in wch. [sic] he was not only deprived of his life but of the opportunity of vindicating his character."). 79. Id. at 67 (Randolph) ("The Executive will have great opportunitys [sic] of THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 23:959 peaceful inquiry" whereby the President would be duly punished if guilty or "if innocent restored to the confidence of the public."8 Impeachment was seen as a means of deterring abuse of the Executive's office as well as a device by which groundless suspicions which might hamper the ability of the Executive to perform his duties could be aired and dispelled. Although resolute upon the theory of an Executive removable upon impeachment, the framers had more difficulty with where and how to vest the impeachment power. While it had been proposed early in the Convention that the National Legislature remove the Executive upon the request of a majority of the state legislatures,8 ' that suggestion was rejected, 2 and the national Judiciary was then given original jurisdiction over the trial of impeachments. 3 But as the powers of the various branches became more clearly defined and the relationships between them more complex, the Judiciary became less favored as a repository of the power to try the Executive upon impeachment. Fears were expressed that the Supreme Court would be unable, for one reason or another, to impartially try the conduct of the President. One delegate worried that the Supreme Court was "too few in number and might be warped or corrupted."" Another felt the "Supreme Court improper to try the President, because the Judges would be appointed by him." 5 Yet, other delegates were fearful that vesting trial of impeachments in the Senate would make the President "improperly dependent" upon the legislature. 8 What has been cited as the ultimate rationale for selecting the Senate as the trier of impeachments87 is that the trial of an impeachment before the Supreme Court would be inconsistent with another role which had been given the Court: the subsequent trial, after an impeachment conviction, of the President "according to Law." 8 abusing his power; particularly in time of war when the military force, and in some respects the public money will be in his hands. Should no regular punishment be provided it will be irregularly inflicted by tumults & insurrections."). 80. Id. at 68 (Franklin). 81. 1 M. FARRAND, supra note 11, at 85 (Dickenson). 82. Id. at 87. 83. Id. at 22 (proposal for impeachment jurisdiction within original jurisdiction of the judiciary); id. at 232 (provision adopted). 84. 2 M. FARRAND, supra note 11, at 551 (Morris). 85. Id. (Sherman). 86. Id. (Madison & Pinckney); id. at 612 (Madison); id. at 563-64 (Randolph). 87. See R. BERGER, supra note 4, at 112-13. 88. 2 M. FARRAND, supra note 11, at 173 (provision for subsequent trial at law proposed). 19741 PRESIDENTIAL IMPEACHMENT Thus, in discussing the choice of the Senate for impeachment trials, it was said, "A conclusive reason for making the Senate instead of the Supreme Court the Judge of impeachments, was that the latter was to try the President after the trial of the impeachment."89 In other words, though the Senate might turn the President out of office, the courts might later have to decide the question of his criminal liability. Thus, the fear that the Supreme Court was lacking the necessary "fortitude" for the task of trying impeachments was only one element in the decision to shift that burden to the Senate." More persuasive was the potential conflict with the related trial at law, a duty more appropriate for the courts. Yet, this shift, as noted above, 9 was not made without misgivings about an overdependence of the President upon the Legislature. The framers thus carefully narrowed the scope and application of the impeachment power to ensure an independent Executive. B. Limiting the Power The framers, cognizant of the probability of a demise of the independent Executive if left at the mercy of an unlimited impeachment power vested in the Legislature, " were not hesitant to establish specific limitations upon the exercise of that power. Their plan for impeachment was intended as a means of control, not subjugation. Thus, it is necessary that both houses of Congress concur in the removal of the President. The House of Representatives (once labeled the "grand Inquest of this Nation" during the Convention)9 3 must initiate the proceedings of impeachment against the President.94 Only then may the Senate take jurisdiction over the impeachment case. And the President may only be removed if the Senate votes for conviction. 5 In the trial of a President upon impeachment, the Senate must 89. Id. at 500 (Morris) (emphasis added). 90. THE FEDERALIST No. 65, at 492 (J. Hamilton ed. 1888) (A. Hamilton) (describing the framers' reasons for transferring the impeachment trial from the Court to the Senate). 91. See note 86 supra. 92. See text accompanying notes 67-69 supra. 93. 2 M. FARRAND, supra note 11, at 154. 94. U.S. CONST. art. I, § 2: "The House of Representatives ... shall have the sole Power of Impeachment." 95. "The President ... shall be removed from Office on Impeachment for, and Conviction .... ." Id. at art. II, § 4. THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 23:959 comply with several procedural requirements. The presiding officer, the Vice President and successor to the President should he be convicted,9 6 is replaced by the Chief Justice of the United States." The senators are put upon "Oath or Affirmation," 9 8 and conviction must be by "the Concurrence of two thirds of the Members present."" Additionally, a judgment upon impeachment in the Senate is limited to removal from office and disqualification from future office. 10 The impeached party is, however, amenable to the normal criminal justice process after his conviction in the Senate."1 In this way, the framers limited the use of the impeachment power to protect the public trust from being abused, and left to the court system the task of imposing punitive fines, incarceration, or execution for any criminal acts committed while in office. To further limit legislative excesses, the framers prohibited the passage of bills of attainder.12 As interpreted by the Supreme Court, this clause prohibits any "legislative acts, no matter what their form, that apply. . . to named individuals. . . in such a way as to inflict punishment on them without a judicial trial . ,, While there is no indication in the debates that this clause was intended to apply to impeachments, it would seem to require more than a summary proceeding in bare compliance with the procedural limitations upon the impeachment trial. 0 4 96. "The Vice President of the United States shall be President of the Senate ... " Id. at art. I, § 3. "In Case of the Removal of the President from Office... the Same shall devolve on the Vice President . . . ." Id. at art. II, § 1. "In case of the removal of the President from office . . . the Vice President shall become President." Id. at amend. XXV, § 1. 97. "When the President of the United States is tried the Chief Justice shall preside . "Id. at art. I, § 3. 98. Id. 99. Id. 100. "Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor Trust or Profit under the United States . . . ." Id. 101. "[Bjut the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law." Id. 102. "No Bill of Attainder or ex post facto Law shall be passed." Id. at art. I, § 9. 103. United States v. Lovett, 328 U.S. 303, 315 (1946) (an Act of Congress operating to exclude certain individuals from government employment is a bill of attainder within the constitutional prohibitions against such bills). 104. See, e.g., id. at 316 ("This permanent proscription from any opportunity to serve the Government is punishment, and of a most severe type."). 19741 PRESIDENTIAL IMPEACHMENT Of the many issues involved in this area, the most controversy has arisen over the scope to be given the article II definition of impeachable offenses. ' "Treason, Bribery, or other high Crimes and Misdemeanors" is a phrase whose definition has been the center of argument in almost any discussion of impeachment."6 The standard, as originally drafted, was for "mal-practice or neglect of duty"107 to constitute impeachable conduct. Most likely because of the fears of Morris that the Executive would be peculiarly susceptible to bribery, treachery, and corruption, ' the language was modified to read "treason, bribery, or corruption."109 When the framers decided to shift the impeachment trial to the Senate, fears arose that the Legislature would wield too much power over the Executive if the standard of impeachable conduct was too ambiguous."10 The standard was then changed to treason and bribery, whereupon Colonel Mason, expressing the fear that without bills of attainder many attempts to subvert the Constitution would go undeterred, proposed the addition of "or maladministration" to treason and bribery."' Madison argued that such a phrase would be "equivalent to a tenure during pleasure of the Senate."1 2 Mason withdrew his proposal and substituted "other high crimes & misdemeanors agst [sic] the State.""' Subsequently, to remove ambiguity, "United States" was inserted instead of "State,"1 4 but the entire phrase "against the United States" was later dropped by the Committee of Style."15 The deliberations over the conduct for which the Senate could remove an impeached President are most illustrative of the intended role of the impeachment power and the problems faced by the framers in fashioning it to the task."' Once it was decided that 105. U.S. CONST. art. II, § 4. 106. See text accompanying notes 160-69 infra. 107. 1 M. FARRAND, supra note 11, at 78-79. 108. 2 M. FARRAND, supra note 11, at 68-69 (Morris). 109. Id. at 186. 110. See text accompanying notes 86 & 91 supra. 111. 2 M. FARRAND, supra note 11, at 550. 112. Id. 113. Id. 114. Id. at 551. 115. Id. at 600. 116. "The Framers did not write a fixed standard. Instead they adopted from English history a standard sufficiently general and flexible to meet future circumstances and events, the nature and character of which they could not foresee." JUDICIARY COMM. MEMO., supra note 8, at 4. THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 23:959 the only means of safeguarding the public trust against an abuse of power by the Executive was an interim removal procedure,' and that procedure was-vested in the Legislature as a body whose nature and powers were most appropriate for the assignment,' the framers balanced as carefully as possible the potential impact of the power with the abuses against which it was designed to protect."' It was not a rigid or definitive scheme, but one formulated to provide for the orderly and peaceful inquiry into the Executive's conduct; to remove him if intolerable and to vindicate him if unjustly accused. 20 The effectiveness of the plan in meeting those ends can only be measured by its use or non-use since it was ratified. It is therefore necessary to examine the exercise of the impeachment power in order to determine whether problems have arisen in its application which were unforseen by the framers and which may require a solution likewise unforseen-judicial review. The courts must determine how well the power has functioned within the constitutional framework before deciding whether an impeachment case would be appropriate for judicial review. III. POST-RATFICATION DEVELOPMENT OF THE IMPEACHMENT POWER The actual impeachment cases will be considered in regard to whether the entrustment of the power to the Legislature was sufficiently safeguarded by the express limitations established so as to ensure the Executive's independence. By and large, however, the impeachment cases concerning federal judges have been subject to the "good Behaviour" clause.' 21 Such cases are relevant only as exemplary of procedures likely to be followed in a President's impeachment,' 22 and are not indicative of the success of the solution 117. See text accompanying notes 72-80 supra. 118. See text accompanying notes 81-91 supra. 119. See text accompanying notes 92-115 supra. 120. See text accompanying note 80 supra. 121. Of the thirteen officers impeached by the House of Representatives, ten were federal judges. For a synopsis of the charges and disposition of the impeachments see Fenton, The Scope of the Impeachment Power, 65 Nw. U.L. REV. 719, 748-58 (1970) [hereinafter cited as Fenton]. 122. For a discussion of the effect of the "good Behaviour" clause on the standard of impeachable conduct see R. BERGER, supra note 4, at 122-80; Fenton, supra note 121, at 722-25; 116 CoNG. REc. 11,913 (1970): What, then, is an impeachable offense? The only honest answer is that an impeachable offense is whatever a majority of the House of Representatives considers to be at a given moment in 19741 PRESIDENTIAL IMPEACHMENT to the framers' concern in finding a middle ground between an un123 controlled or overly-dependent Executive. Congress does not issue opinions upon impeachment or judgment; 24 thus, the precedential value of an impeachment case must be gleaned inferentially from the circumstances and the disposition. 125 Perhaps because of this dearth of concrete reasoning behind any given impeachment, a court interpreting the scope of the impeachment power would only consider the precedents as indications of the framers' intent. 126 Conduct held by the courts to be otherwise history; conviction results from whatever offense or offenses two-thirds of the other body considers to be sufficiently serious to require removal of the accused from office ... I think it is fair to come to one conclusion, however, from our history of impeachments: a higher standard is expected of Federal judges than of any other "civil officers" of the United States. Id. (remarks of Rep. Ford). 123. See text accompanying notes 72-74, 86, 91 supra. 124. It is even more difficult to attempt to ascertain the consensus of the Senate from separate opinions given by the individual senators. Following the Archbald conviction many Senators did file opinions, but: Some stated that they thought criminality was the standard for removal; some only voted guilty where they thought the offense, if proven, constitued "high crimes or misdemeanors," and had voted not guilty where the charge involved only misconduct. Others said that they had voted not guilty on charges in which proof of evil intent was lacking, and yet a few others said they had voted guilty on any charge involving less than good behavior. Feerick, Impeaching FederalJudges: A Study of the ConstitutionalProvisions,39 FORDHAM L. REv. 1, 42-43 (1970). 125. Acquittals and dismissals have been characterized as being of little precedential value. The reasons for failing to impeach are generally not stated, and may have rested upon a failure of proof, legal insufficiency of the grounds, political judgment, the press of legislative business, or the closeness of the expiration of the session of Congress. JUDICIARY COMM. MEMO., supra note 11, at 28. Likewise: [tihe close intermixture of fact and law makes it difficult to determine whether the Senate voted to acquit because the evidence was insufficient to support the allegations in the articles, or because the acts alleged in the articles, even if true, did not constitute impeachable offenses as a matter of law. Fenton, supra note 121, at 732. 126. See, e.g., Powell v. McCormack, 395 U.S. 486 (1969): The relevancy of prior exclusion cases is limited largely to the insight they afford in correctly ascertaining the draftsmen's intent. Obviously, therefore, the precedential value of these cases tends to increase in proportion to their proximity to the Convention in 1787. Id. at 547. THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 23:959 unconstitutional should not be justified merely by a showing that it has been a traditional practice. 27 The effectiveness of the constitutional limitations in confining the exercise of the discretion vested in Congress within the scope envisioned by the framers should be a paramount consideration of the courts in deciding upon a course of judicial review. A. The Exercise of the Power The impeachment cases are the only indications of how the Congress has interpreted its role, the nature of the proceedings, and the scope of the power. In this regard the proceedings in the Senate are more relevant than those in the House of Representatives,' 8 because the concern of the framers was not over who would impeach, but who would have the final power of removal.' Consequently, this analysis will concern itself more with the proceedings in the Senate than those in the House. Of primary importance in regard to the impeachment and trial of a President is the precedent of the Johnson trial in 1868.110 The conduct of the Senate at that time reflected the opinion of many of the senators that the impeachment of the Executive was qualitatively different from that of federal judges. After much debate upon its function during an impeachment trial, the Senate declined to title itself "High Court of Impeachment."'' While the immediate reason for not adopting this nomenclature was a concern that, if adopted, the Chief Justice as presiding officer during the President's 127. "That an unconstitutional action has been taken before surely does not render that same action any less unconstitutional at a later date." Id. at 546-47. 128. The Senate proceedings would most likely be emphasized where the issue of judicial review was raised. If review were attempted at the time of impeachment but before trial, the courts would likely abstain until the President had exhausted his remedy of trial before the Senate. This would be an instance of an impeachment case which was not ripe. Cf. note 39 supra. 129. There was virtually no debate over the House's role in impeachment, but much debate over vesting the power of final removal in the Senate. See text accompanying notes 81-91 supra. 130. See generally R. BERGER, supra note 4, at 252-96; I. BRANT, supra note 7, at 133-54. 131. 3 A. HINDS, HINDS' PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES 378-85 (1907) [hereinafter cited as 3 A. HINDS]. But see id. at 382-83 (Chief Justice Chase's written objection to the Senate's refusal to consider itself a court for the purpose of trying an impeachment); id. at 384 (President Johnson addressed the Senate as a court in his answer to the articles of impeachment). 1974] PRESIDENTIAL IMPEACHMENT impeachment trial1 32 would be able to vote upon Johnson's guilt or innocence,1 31 this factor, coupled with the statements made by senators denying the judicial nature of their function, 3 4 constitutes an affirmation of the political nature of the Senate's role as the trier of 35 impeachments of Executive officers.' At the same time, the Senate established detailed written procedures for trying impeachments.' 31 These have remained virtually unchanged since then. 3 7 The rules carefully outline procedures granting the accused many of the substantive rights which would adhere in a criminal proceeding in the courts. 3 ' Thus, even while shedding the trappings of a judicial tribunal, the Senate recognized the awesome responsibility of its duty by formulating standing rules of procedure to guarantee a fair hearing of the impeachment charges. 132. U.S. CONST. art. I, § 3. See note 97 supra. 133. See 3 A. HINDS, supra note 131, at 379-82. 134. See, e.g., id. at 384-85 (resolution proposed by Senator Sumner): That the Senate is not at any time a court invested with judicialpower, but that it is always a Senate with specific functions, declared by the Constitution; that according to express words, "the judicial power of the United States is vested in one Supreme Court and such inferior courts as Congress may from time to time ordain and establish," while it is further 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; that 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 therefor; that, by the terms of the Constitution, there may be, after conviction on impeachment, a further trial and punishment "according to law," thus making a discrimination between a proceeding by impeachment and a proceeding "according to law;" that the proceeding by impeachment is not "according to law," and is not attended by legal punishment, but is of an opposite character,and from beginning to end political, being instituted by a political body, on account of political offenses, being conducted before another political body having political power only, and ending in a judgment which is political only .... Id. (emphasis added). 135. To compare this view with that of the framers, see text accompanying note 80 supra. 136. While many of the rules were introduced as early as the Chase trial in 1805, they were exhaustively reconsidered and extensively amended by the Senate in 1868. See 3 A. HINDS, supra note 131, at 853-54. 137. Compare note 136 supra (rules passed in 1868), with RULES AND MANUAL OF Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials, S. Doc. No. 1, 93d Cong., 1st Sess. (1973) [hereinafter cited as SENATE RULES]. 138. See text accompanying notes 182-85 infra. THE UNITED STATES SENATE, 982 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 23:959 It is interesting to note that during a proceeding which has been described as "a gross abuse of the impeachment process"' 39 and "the most insidious assault on Constitutional government in the nation's history,"' 40 the accused President was granted procedural safeguards which had not previously been guaranteed.' Even conceding the partisan motives behind the impeachment and trial,' the framers were vindicated in their choice of the Senate for trial of the President. Although brought amid an inflamed political conflict between Legislature and Executive, the impeachment trial did not degenerate into an "attainder by impeachment" ' despite the "ferocity of the prosecution," ' but resulted in a verdict of acquittal for President Johnson. The importance of the Johnson impeachment is not why he was impeached, but how he was acquitted. The fear of Pinckney expressed during the Convention of 1787 that "[i]f he opposes a favorite law, the two Houses will combine agst [sic] him, and under the influence of heat and faction throw him out of office" was not realized. 4 5 If anything, the Senate functioned exactly as the framers had intended by granting President Johnson an "honorable acquittal when he should be unjustly accused.""' Thus, the framers' plan passed perhaps its most crucial test. The Senate responsibly performed its constitutional duty by giving a fair hearing to the President on the charges brought by the House and refusing to remove him from office, even though he had deliberately violated an Act of Congress. 4 7 While the Senate eschewed a judicial role,' it performed as a political body within constitutional limitations. 49 Yet, this instance does not prove that the exercise of the impeachment power has always been without problems; specific problems have arisen which need to be considered. 139. R. BERGER, supra note 4, at 295. 140. I. BRANT, supra note 7, at 4. 141. Although some of the rules had been used before that time [see note 136 supraI, many new rules were added and consolidated into what are now the standing rules. See note 137 supra. 142. See notes 139-40 supra. 143. I. BRANT, supra note 7, at 133. 144. Id. at 153. 145. 2 M. FARRAND, supra note 11, at 551. 146. Id. at 65 (Franklin). 147. See I. BRANT, supra note 7, at 136-38. 148. See notes 131-35 & accompanying text, supra. 149. See notes 92-120 & accompanying text, supra. PRESIDENTIAL IMPEACHMENT 19741 B. Specific Problems in the Exercise of the Power While the impeachment power has been rarely employed, 5 ' and only four times used to remove a civil officer from office,"' several problem areas have developed. The discussion of these problems will center upon what they indicate in terms of the inadequacy or ambiguity of the constitutional limitations, with an eye towards the possibility of enforcement or clarification through judicial review. The impeachment power has a great potential for abuse as a political weapon. One historian has chronicled its attempted use by the Federalist Congress to quash all opposition in the election of 1800.152 The impeachment of Senator Blount in 1797 was seen as part of a Federalist conspiracy "to control the Presidential election of 1800 by combining impeachment with the Sedition Act. Republican (Democratic) editors were to be silenced by prosecution for seditious libel, while party candidates were menaced with impeachment either as officeholders or as private citizens."' 53 The use of impeachment in this plan depended upon defining impeachable conduct to include activity outside of public office and extending the jurisdiction of Congress to impeach and try private citizens so that they might be disqualified from future office." 4 Although this attempt failed, there is no guarantee against its recurrence. While the Congress has never impeached and tried a private citizen, the Senate has tried a civil officer after his resignation, for the sole purpose of disqualifying him from future office.15' Likewise, while senators sit at impeachment trials upon "Oath or Affirmation""' to "do impartial justice according to the Constitution and laws," 1" 7 there are several instances of senators voting upon impeachment although they had a personal interest in the proceeding. President Johnson's successor to office if he were to be removed, Senator Wade, and President Johnson's son-in-law, Senator Patter150. See note 121 supra. 151. The removed federal judges were: Pickering, 1804; Humphreys, 1862; Archbald, 1913; and Ritter, 1936. For a summary of the charges upon which they were convicted see Fenton, supra note 121, at 748-58. 152. I. BRANT, supra note 7, at 24-45. 153. Id. at 44. 154. Id. at 43-44. 155. Although Secretary of War Belknap resigned prior to the drafting of the articles of impeachment by the House, the Senate determined that it did have jurisdiction to try him upon the articles. See 3 A. HINDS, supranote 131, at 933-35. 156. U.S. CONST. art. I, § 3. 157. SENATE RULES, supra note 137. THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 23:959 son, both voted during the Johnson trial. ' Additionally, senators with personal knowledge concerning the case do not disqualify themselves. In fact, procedures have been established for senators to be witnesses, as well as judges and jurors, at impeachment trials.'59 It is apparent that the required oath is not sufficient to prevent possible conflicts of interest in the trial of an impeachment. A greater problem, though, has arisen in interpreting what conduct should constitute an impeachable offense. 6 Thus, the phrase "Treason, Bribery, or other high Crimes and Misdemeanors" has been the focus of an astounding 'number of discussions over the years. The debate centers around whether the phrase is limited to indictable offenses or whether it also encompasses conduct in office adversely affecting the interests of the government."8 ' Too often, however, this controversy has resulted in an attempt to define the nature of the proceedings by the interpretation of the standard of conduct.' The reasoning is that if only indictable crimes are impeachable, then the proceeding itself is a criminal proceeding.63 While it is true that one of the reasons for establishing 158. See CONG. Q., GUIDE TO THE UNITED STATES CONGRESS 267 (1971). 159. See SENATE RULES, supra note 137, at Rule XVII. 160. See, e.g., R. BERGER, supra note 4, at 53-102; JUDICIARY COMM. MEMO., supra note 8; Constitutional Standard, supra note 8; Fenton, supra note 121, at 719. 161. Compare Constitutional Standard, supra note 8 ("He [the President] may be impeached only for indictable crimes clearly set forth in the Constitution. This is the lesson of history, logic, and experience; this is the meaning of "Treason, Bribery, and [sic] other high Crimes and Misdemeanors." Id. at 60), with JUDICIARY COMM. MEMO., supra note 8, at 49: Because impeachment of a President is a grave step for the nation, it is to be predicated only upon conduct seriously incompatible with either the constitutional form and principles of our government or the proper performance of constitutional duties of the presidential office. Id. 162. See, e.g., Constitutional Standard, supra note 8: The English impeachment precedents clearly demonstrate the criminal nature and origin of the impeachment process. The Framers adopted the general criminal meaning and language of those impeachments while rejecting the 17th century aberration where impeachment was used as a weapon by Parliament to gain political supremacy at the expense of the rule of law. Id. at 59. 163. Thus, it has been arguedJust as statutes are to be construed to uphold the intent of the drafters, so should we uphold the intent of the drafters of the Constitution that impeachable offenses be limited to criminal violations. Also, as penal statutes have been strictly construed in favor of the accused, so should we con- PRESIDENTIAL IMPEACHMENT 1974] the power was that the courts were often unable to adequately deter great and powerful men from committing criminal offenses,"6 4 it was also designed to deter offenses peculiar to officeholders vested with great power and discretion. 65' The scope of the power was more limited and defined by the limitation of the judgment than by what conduct could lead to that judgment.'66 To reason that the impeachment proceeding is really criminal in nature negates both the purpose of the remedy and the role for which it was intended in the constitutional framework of government.' 7 Yet the problems created by this debate cannot be lightly dismissed. Indeed, differing opinions over the reach of this phrase could destroy the orderly atmosphere necessary for a clear resolution of allegations presented against the President, 6 ' as well as provide a foundation for an impeachment defense more dilatory than responsive.'69 It becomes apparent that while the Congress has performed its strue the impeachment provisions of the Constitution. To do any less would violate the Due Process Clause and the prohibitions against ex post facto laws, concepts deeply rooted in our Constitution. Id. at 38-39 (citations omitted). 164. See JUDICIARY COMM. MEMO., supra note 8, at 7. 165. See 2 M. FARRAND, supra note 11, at 65 (Mason); id. at 67 (Randolph). 166. Limiting the punishment to removal and disqualification was perhaps the most substantial modification of the power as practiced in England. It was the treason trials that crowded the impeachment stage and that familiarized the Founders with the high political purposes served by impeachment. . . . [But] the Framers replaced the bloody sanctions for treason with removal alone .... R. BERGER, supra note 4, at 7. 167. See text accompanying notes 78-80 supra. 168. While clear standards of conduct subject to impeachment would add a degree of predictability in the application of the sanction that is now lacking, the framers were more concerned with controlling the Executive than carefully outlining the outer limits of acceptable abuses: A good magistrate will not fear them [impeachments]. A bad one ought to be kept in fear of them. 2 M. FARRAND, supra note 11, at 66 (Gerry). 169. President Nixon's counsel have gone to great pains to carefully draft a restrictive interpretation of what conduct is impeachable under the article II definition. See generally Constitutional Standard, supra note 8. A possible motivation for drafting and publishing that interpretation is that it could be used to establish a foundation by which the "relevancy" of evidence subpoenaed by the Congress could be measured if the President were to determine that it was irrelevant to an impeachable offense. THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 23:959 appointed role with restraint, predominately heeding the constitutional limitations, certain ambiguities in the language and history of the impeachment provisions and their potentiality for abuse have presented problems unforseen by the framers. It thus becomes necessary to examine judicial review as a means of enforcing and defining those constitutional limitatins. IV. JUDICIAL REVIEW In appraising judicial review in this context, it is necessary to examine the effect of an illimitable impeachment power upon the Presidency, the efficacy of alternative means of enforcement of the constitutional limitations, and the specific problems which might be raised by introducing judicial review into the impeachment process. A. The Presidency The possible ramifications of an illimitable impeachment power upon the President are grave. Edmund Ross, the Senator whose vote acquitted President Johnson in 1868,170 has most eloquently expressed the dangers: If ... the President must step down . . . a disgraced man and a political outcast ... upon insufficient proofs and from partisan considerations, the office of the President would be degraded, cease to be a coordinate branch of the government, and ever after subordinated to the legislative will. It would practically have revolutionized our splendid political fabric into a partisan Congressional autocracy 171 Without an assurance that constitutional limitations will be recognized by the Congress, neither the office nor the person of the President will be safe from unwarranted attacks. In this regard, the courts have recognized and carefully respected the necessity for the President to function, within the constitutional limits upon his power, 7 2 free from interference from the other branches of government.17 1 It is clear that the framers never in170. For a detailed discussion of Ross' role in the Johnson acquittal see J. KENNEDY, PROFILES IN COURAGE 107-28 (1956). 171. Id. at 120. 172. See generally Goldberg, The ConstitutionalLimitations on the President's Powers, 22 AM. U.L. Rnv. 667 (1973). 173. See, e.g., Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1866) (denying a State's action seeking to enjoin President Johnson from enforcing Reconstruction legislation). 1974] PRESIDENTIAL IMPEACHMENT tended the Congress to have any less respect for the Executive's independence. 174 The principle of separation of powers will not endure if the machinery designed to preserve it is susceptible to abuse. The President, like any other citizen, is granted rights as an individual under the Constitution. It is not clear, however, whether these rights are intended to adhere during an impeachment proceeding. There is no question that they would apply at the subsequent trial, "according to Law," of a removed President.1 75 Yet, whether these rights would be guaranteed an impeached President by the Senate is not so certain. The framers excepted impeachments from certain provisions because of the nature of the proceedings. Thus, there is no right to a jury trial, 171 pardon, 77 or protection from double jeopardy upon impeachment. 7 The jury would be superfluous to the role of the Senate as joint trier of law and fact.7 9 The pardon would create serious problems if the new President were to pardon the recently removed President, creating a question as to which man would then have a superior right to the office and completely emasculating the impeachment power as a check on the Executive."' The risks pre174. For discussion of the fears of several of the framers that the impeachment power vested in the Legislature would destroy Executive independence see note 86 supra. 175. See U.S. CONST. art. I, § 3 ("[B]ut the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law."). Once removed from office, the President would be amenable to the criminal justice system and enjoy all the substantive and procedural rights common to every citizen. 176. Id. at art. IlI, § 2 ("The trial of all Crimes, except in Cases of Impeachment, shall be by Jury .... "). 177. Id. at art. II, § 2 ("The President. .. shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."). 178. Id. at art. I, § 3. The clause subjecting the President to "Trial... according to Law" upon removal from office implicitly excepts impeachments from the double jeopardy provision of the fifth amendment. Removal from office would not likely be construed as putting the President in "jeopardy of life or limb" within the meaning of that prohibition. See U.S. CONST. amend. V. 179. See, e.g., 3 A. HINDS, supra note 131, at 540 (proposal of Senator Sumner for relaxing the evidentiary safeguards designed to prevent the jury from hearing irrelevant or prejudicial testimony on the grounds that the Senate's joint role as trier of fact and law made the measures superfluous). 180. Despite the obvious possibility of collusion between the Vice President and the removed President, during the Convention of 1787 Sherman offered a plan to allow pardons with the consent of the Senate. It was rejected without serious discussion. See 2 M. FARRAND, supra note 11, at 429. 988 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 23:959 sented by double jeopardy were minimized by the limitation of the impeachment judgment to removal and disqualification.'8 1 Additionally, the Senate has granted the impeached party certain constitutional rights. Thus, in prior impeachment trials the accused has received notice of the charges,8 2 confronted witnesses against him, 8"' 3 obtained compulsory process for calling his own witnesses, 8 ' and enjoyed the assistance of counsel.8 5 While it has been argued that an impeached President is entitled to the due process of law in the forfeiture of an important property right, i.e., his employment, 8' the concept of due process is not fixed but is flexible, depending upon the nature of the proceeding."' Thus, to say that the President is entitled to due process of law upon impeachment would only mean that he is entitled to a proceeding conducted within the constitutonal limitations already established. While there are important considerations raised by the vulnerability of the individual rights and the constitutional independence of the President to an illimitable impeachment power, enforcement of the existing constitutional limitations would likely be sufficient to protect the Presidency from unfair treatment by the Legislature."' The only question remaining, though, is how to enforce 181. See notes 166 & 177 supra. 182. See SENATE RULES, supra note 137, at Rule VII (notice sent to impeached party reciting the articles of impeachment and the time and place at which the accused may answer the charges). 183. See id. at Rule XVII (witnesses to be examined by the party calling them, then cross-examined by the other party). 184. See id. ("Form of a subpena [sic] [shall] be issued on the application of the managers of the impeachment, or of the party impeached, or of his counsel."). 185. See id. at Rule XV (counsel for the parties shall be admitted to appear and be heard upon an impeachment). 186. R. BERGER, supra note 4, at 120-21. Cf. Constitutional Standard, supra note 8, at 39-40. 187. See, e.g., Morrissey v. Brewer, 408 U.S. 471 (1972), citing Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895 (1961): [Clonsideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action. 408 U.S. at 494. 188. The framers were far more concerned with maintaining the independence of the Executive Department than with protecting any rights of the Executive himself. Those rights were designed to protect individual citizens from abuse by the government. While this is not to say that a President forfeits his individual rights upon taking office, it is not clear that the single most powerful person in government need rely upon these rights as his only safeguard from action by the 19741 PRESIDENTIAL IMPEACHMENT those limitations without disturbing the delicate balance of powers established by the framers. B. Alternative Enforcement of the Limitations In order to establish a necessity for the courts to take cognizance of an impeachment case, it is essential to determine the effectiveness of alternative means of enforcing the constitutional limitations. ' Most of the normal checks upon legislative action do not apply to the exercise of the impeachment power. Unlike most legislative action, the articles of impeachment and the judgment upon conviction do not require the approval of the President in order to take effect. 9 ° Although to hold otherwise would create an absurdity, it is interesting to note that while adjournments were expressly excepted from this condition, impeachments were not.191 The normal check of political pressure upon the individual congressman may likewise be ineffective in an impeachment case. The Congress is required to record the names of members and how they voted only when overriding presidential vetoes.' 92 Thus, if desired, the congressmen, whether voting for impeachment or conviction, other branches of government. The framers were not worried about ensuring enjoyment of these rights while in office, but with controlling the great potential for abuse in the Executive without destroying his essential independence. See text accompanying notes 78-80, 86 supra. 189. In order for the courts to take the radical, and potentially disruptive, step of reviewing an impeachment, a compelling need based upon lack of, or exhaustion of, available remedies would have to be shown. 190. See U.S. CONST. art. I, § 7. While impeachments may not be a "Bill" within the meaning of the second clause, they might be read into the third including "Every Order, Resolution, or Vote to which the Concurrence of the Senate and the House of Representatives may be necessary." Id. Yet, the language of article II seems to be self-executing: "The President. . . shall be removed from Office upon Impeachment for, and Conviction of. . . ." Id. at art. II, § 4. 191. See note 190 supra. Constitutional amendments proposed by the Congress require a two-thirds vote in both houses. U.S. CONST. art. V. For that reason, the presidential veto power has been held to be inapplicable to such proposals. See Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798). Analagously, it could be argued that presidential vetoes do not apply to impeachment cases since these likewise require a two-thirds vote in the Senate. But this ignores the fact that the House vote of impeachment is by only a majority. 192. "But in all such Cases [of overriding presidential vetoes] the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively." U.S. CONST. art. I, § 7. THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 23:959 could cloak their votes in secrecy and take the brunt of public displeasure as a group.'93 This procedure may create even more of a political problem for the Congress, since the ultimate check upon the Legislature is public opinion.'94 It is unlikely that the Senate, for example, would go to the extreme of a secret ballot for conviction unless it was sure that its decision would be an extremely unpopular one. In such a case, the public would become all the more inflamed by the conspiratorial appearance given to the proceeding by a secret ballot. 19 5 Clearly the only external check upon the Congress in its exercise of the impeachment power is that born of political discretion; and the only court given an opportunity to review an impeachment case declined to do so on the grounds that this sole discretion had been vested in the Congress by the framers:' 98 While the Senate in one sense acts as a court on the trial of an impeachment, it is essentially a political body and in its actions is influenced by the views of its members on the public welfare. The courts, on the other hand, are expected to render their decisions according to the law regardless of the consequences. This must have been realized by the members of the Constitutional Convention and in rejecting proposals to have impeachments tried by a court composed of regularly appointed judges we think it avoided the possibility of unseemly conflicts between a political body such as the Senate and the judicial tribunal which might determine the case on different 97 principles.' Thus, the only court to hear a case arising from an impeachment conviction dismissed the action for reasons remarkably similar to the factors for determining the presence of a non-justiciable political question which were articulated much later in the Baker decision.' 8 193. The Senate, however, has never chosen to exercise this option. It would require a particularly outrageous abuse of discretion on their part to avoid individual responsibility by this means. 194. "Above all, government is concerned with the make-up of public opinion itself. To stay in office, politicians must respond-or at least seem to respond-to changing opinions." J. BURNS & J. PELATSON, GOVERNMENT 3Y THE PEOPLE 249 (1966). 195. Such a procedure would be the opposite of that envisioned by the framers. See text accompanying note 80 supra. 196. Ritter v. United States, 84 Ct. Cl. 293 (1936), cert. denied, 300 U.S. 668 (1937) (federal court lacked jurisdiction to hear case brought by federal judge to recover salary lost upon removal from office by the Senate). 197. Id. at 299. 198. Compare the considerations expressed by the Ritter court with those in the Baker case. See note 48 supra. PRESIDENTIAL IMPEACHMENT 1974] It is evident that if the enforcement of the constitutional limitations is to be by any means other than the good conscience of the Congress, a resort must be had to judicial review. Yet, that solution may create more problems than it actually solves. C. Special Problems Raised by Judicial Review The problems raised by the introduction of judicial review into the framers' plan for impeachment include: (1) uncertainty as to succession to office pending appeal or reversal of the Senate's impeachment verdict by the courts; (2) the potentiality for direct conflict between Congress and the courts if Congress were to attempt excluding impeachment cases from the courts' jurisdiction; and (3) the use of judicial review by the House Managers to appeal acquittal by the Senate. Since these problems relate to the tests for determining the presence of a non-justiciable political question, they will be considered within that framework. 199 Because of the difficulties involved in succession to office, an impeachment case may very well present "an unusual need for unquestioning adherence to a political decision already made.""' Upon conviction by the Senate, the President is automatically removed and replaced by the Vice President.2 0 1 While such a situation would likely be politically traumatic for the nation, the uncertainty created by the availability of judicial review would be even more serious. The people would not know whether the new President would stay in office or the removed President reinstated by the courts. The chaos arising from this indecision among leaders would be greater than that created by the most abusive removal. At least, such an act would have finality and could be accepted in time. Equally unsettling to the country would be a direct confrontation between Congress and the courts over impeachment jurisdiction. Since Congress has the power to define the original jurisdiction of the lower federal courts and regulate the appellate jurisdiction of the Supreme Court, 2 2 it is conceivable that faced with the possibility of review in the courts Congress might draft a jurisdictional statute expressly excepting impeachments from the subject matter jurisdiction of the federal courts. While the courts backed away 199. 200. 201. 202. See See See See text accompanying notes 37-64 supra. text accompanying notes 61-63 supra. notes 96 & 190 supra. text accompanying notes 25-26 supra. THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 23:959 0 3 it from a similar confrontation involving the habeas corpus writ," is not clear whether Congress could totally eliminate any recourse to the courts in such a manner.2 ' For the courts to face such a challenge would require more than merely "expressing lack of respect due coordinate branches of government," and would likely create more than just a "potentiality for embarrassment." ' 5 The most problematical of these issues is the possible use of judicial review by the House Managers who prosecuted the President before the Senate2 6 as an appeal from a Senate verdict of acquittal. Judicial review of an impeachment is normally discussed in the context of vindicating rights of the accused.2 ' Yet, if the courts were to entertain any case concerning an impeachment provision, it would open the door for the House prosecutors to pursue the impeached party in the courts, even after acquittal by the Senate. If the courts were to hold that the discretion of Congress was reviewable upon conviction, a different finding for acquittals would be illogical.2 8 With both parties thus granted the right of review in the courts, it is obvious that many of the issues involved would be tried in the courts and not the Senate as intended by the framers.0 0 This could cause the problem of forcing the courts to make "an initial policy determination of a kind clearly for nonjudicial discretion" in order to resolve these issues.2 10 The exercise of judicial review to rectify problems unforseen by the framers raises new problems, many perhaps still unknown. It is obvious, however, that these problems all present aspects of the political question formulation which would be inextricable from the case. It is unlikely that the courts could resolve an impeachment 203. See Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869) (Supreme Court unable to hear appeal of habeas corpus writ because Congress had repealed the statute providing appellate jurisdiction over certain writs). 204. Compare McCardle with Ex parte Yerger, 75 U.S. (8 Wall.) 85 (1869) (despite the broad language in the repealing statute, its effect was limited to habeas corpus writs which had been issued under the repealed statute and did not affect traditional avenues of seeking the writ). 205. See text accompanying notes 57-58 supra. 206. See SENATE RULES, supra note 137, at Rules I, II (recognizing the role of the House-appointed managers in prosecuting an impeachment before the Senate). 207. See, e.g., R. BERGER, supra note 4, at 108, 120-21. 208. It would be absurd to contend that the review of a congressional power could be predicated upon the result of the proceeding and not the nature and purposes of the power itself. 209. See text accompanying notes 81-91 supra. 210. See text accompanying notes 59-60 supra. 19741 PRESIDENTIAL IMPEACHMENT case without being confronted with these or similar problems. CONCLUSION While it is within the power of the federal courts to hear a case involving the impeachment and conviction of a President, such a course of action is not without certain dangers. It is evident that the impeachment power was vested in that branch of government possessed of political discretion only after the Supreme Court was rejected as the forum to try impeachments. Although judicial review is the only mode of enforcing the constitutional limitations placed upon the discretion of the Congress to impeach and try the President, it is not altogether clear that recourse to the Judiciary would be less disruptive to the government than an illimitable impeachment power. The introduction of judicial review into the impeachment process would be an exercise of judicial discretion contrary to the intent of the framers and could create grave political problems. The difficulty of resolving these problems is illustrative of the true basis for judicial abstention from political questions, and the courts may yet so rule. J. P. SWEENEY
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