THE LIVYJR FILES

Whether a Former President May Be Indicted and Tried for the Same Offenses for Which He was Impeached by the House and Acquitted by the Senate

August 18, 2000 Memorandum Opinion for the Attorney General, continued ...

III. The 1980s Impeachment Trials

The “case law” that gives meaning to the constitutionally defined process of impeachment is made largely by Congress.

The three impeachment trials carried out during the 1980s bolster the proposition that the Constitution permits prosecu­tion of a former official for the same offenses of which he has been acquitted by the Senate.

After a 50-year hiatus as a court of impeachments, the Senate tried and con­victed three district court judges during the 1980s.

In each case, the defendant had previously been prosecuted in the courts.

In each case, the defendant chal­lenged the propriety of his impeachment both in court and before Congress.

As a result, these proceedings gave the courts and Congress an opportunity to address whether former conviction or acquittal in the courts should bar trial before the Senate for the same offenses.

One district court and both houses of Congress concluded that prior criminal judgments did not preclude impeachment and conviction for the same offenses.

Judge Harry E. Claiborne and Judge Walter L. Nixon were both tried and con­victed of federal offenses. 102

Although they were not the first federal judges to be found guilty of crimes while in office, they were the first to refuse to resign their judicial posts. 103

The House thus impeached them for the offenses of which they had already been convicted (as well as other conduct) and the Senate tried and convicted them and removed them from office.

Neither Claiborne nor Nixon directly argued to the House or Senate that double jeopardy should bar their impeachment and trial.

On the contrary, in Claiborne’s case the House managers contended that the House and Senate should each be bound by the guilty verdicts rendered by the jury that had sat in the judge’s criminal trial, and Claiborne argued that the impeachment process was distinct from regular prosecution and that separation of powers and due process concerns required the House and Senate to do their own fact finding. 104

In both cases, the Senate accepted the evidence from the prior criminal trials, took some evidence of its own, and apparently did not consider itself bound by the juries’ verdicts. 105

102 Claibome, a district judge for the District of Nevada, was convicted in 1984 on two counts of willfully under­reporting his income on federal income tax returns. After Claiborne was indicted, he filed a motion to quash, claiming that the Constitution required that he be impeached and removed from office before he could be criminally indicted. The district court rejected the motion, and on interlocutory review a special panel of three circuit court judges from outside Claiborne’s circuit affirmed United States v. Claiborne, 765 F.2d 784, 788-89 (9th Cir 1985); 781 F.2d 1327, 1327-30 (Reinhardt, J., dissenting from denial of rehearing en banc). Nixon, chief judge of the District Court for the Southern District of Mississippi, was convicted in 1986 of two counts of perjury before a grand jury (and acquitted of one count of bribery and one other count of perjury) See United States v. Nixon, 816 F2d 1022, 1023-25 (5th Cir. 1987)

103 See United Slates v Isaacs, 493 F2d 1124 (7th Cir 1974) (Circuit Judge Otto Kerner), see generally Joseph Borkin, The Corrupt Judge (1962)

104 See 1 Report of the Senate Impeachment Trial Committee. Hearings Before the Senate Impeachment Trial Committee. 99th Cong. 22-25, 44-69, 108-10, 147-67, 170-86, 252-71 (1986) ("Report of the Claiborne Senate Impeachment Trial Committee”) Claiborne apparently argued that if the Senate were to accept the House managers’ view that they were bound to convict based on the jury verdict, that would violate the double jeopardy ban on multiple punishments. See Claiborne Trial Proceedings, supra at 57, 60-61, 207-08. Apparently accepting that the Senate had resolved these matters in the Claiborne case, Nixon did not squarely raise them. In the course of opposing a House managers’ motion for the Senate to accept the entire record of his criminal trial, Nixon briefly argued that criminal prosecutions and impeachment trials were “independent” proceedings.1 Report of the Claiborne Senate Impeachment Trial Committee, supra at 212, 213.

105 See, e.g., Claiborne Trial Proceedings, supra at 303-04 (statement of Sen Hatch), 312 (statement of Sen Dixon), 314 (statement of Sen. Specter), 340 (statement of Sen Mitchell), 341-43 (statement of Sen. Mathias), 352-53 (statement of Sen Bumpers), Walter Nixon Trial Proceedings, supra at 443-45 (statement of Sen Levin), 446—48 (statement of Sen. Grassley), 452 (statement of Sen. Jeffords), 459 (statement of Sen Murkowski)

TO BE CONTINUED ...

Whether a Former President May Be Indicted and Tried for the Same Offenses for Which He was Impeached by the House and Acquitted by the Senate

August 18, 2000 Memorandum Opinion for the Attorney General, continued ...

III. The 1980s Impeachment Trials, continued ...

Although neither the House nor the Senate squarely passed on double jeopardy challenges in the Claiborne and Hastings cases, the fact that they impeached, tried, and convicted the defendants indicates that they found that prior conviction was no bar to trial before the Senate on the same charges. 106

The House’s and Senate’s actions thus suggest that they did not consider trial before the Senate an instance of jeopardy within the meaning of the Double Jeopardy Clause.

It may be argued that, although trial before the Senate is an instance of jeopardy, the Impeachment Judgment Clause permits such trial following criminal convic­tion.

That Clause expressly allows for criminal trial after conviction by the Senate.

So, one might argue, it permits the reverse sequence as well: trial before the Senate following criminal conviction.

By similar logic, if the Impeachment Judg­ment Clause bars prosecution following Senate acquittal, it should bar trial in the Senate following acquittal in the courts.

In carrying out the impeachment trial of Judge Alcee Hastings, however, the Senate rejected this view that the relation­ship between criminal prosecution and impeachment trials could turn on whether the prior judgment was a conviction or an acquittal.

Following a jury trial, Judge Alcee Hastings was acquitted in 1983 of conspiring to take a bribe and of obstructing justice.

In 1988, pursuant to 28 U.S.C. § 372(c), the 11th Circuit Judicial Council certified to the Judicial Conference of the United States that Hastings had engaged in conduct that might constitute an impeachable offense and the Judicial Conference made a similar certification to the House of Representatives.

The House impeached Hastings in 17 articles, the first of which was in substance the bribery charge upon which he had been acquitted and 14 of which alleged that he had repeatedly lied under oath at his criminal trial.

In 1989, the Senate tried and convicted Hastings on the first article and eight of the ones charging lying at his criminal trial.

106 Claibome was convicted on three of four articles of impeachment. The three articles upon which he was con­victed by the Senate all charged the income tax evasion upon which he had previously been convicted in the courts. He was acquitted on the fourth (article III), which charged him with the fact of having been convicted of tax evasion in court. See Claiborne Trial Proceedings, supra at 290-97. Nixon was convicted on two impeachment articles and acquitted on a third. The two upon which he was convicted by the Senate charged the lying before a grand jury upon which he had previously been convicted in court. See Walter Nixon Trial Proceedings, supra at 432-34; 4B Report of the Senate Impeachment Trial Committee on the Articles Against Judge Walter L. Nixon, Jr. Hearings Before the Senate Impeachment Trial Committee, 101st Cong 469-77, 493 (1989). The third charged a series of false statements, including some made to the grand jury and some made to a Justice Department attorney and an FBI agent. See Walter Nixon Trial Proceedings, supra at 6.

TO BE CONTINUED ...

Whether a Former President May Be Indicted and Tried for the Same Offenses for Which He was Impeached by the House and Acquitted by the Senate

August 18, 2000 Memorandum Opinion for the Attorney General, continued ...

III. The 1980s Impeachment Trials, continued ...

The Investigating Committee of the Eleventh Circuit Judicial Council, which consisted of three circuit judges and two district court judges, briefly considered whether Judge Hastings’ acquittal should bar his impeachment by the House and trial by the Senate (and thus the Committee’s making of a recommendation of impeachment).

They concluded that it should not for three principal reasons. 107

First, the Committee thought it obvious that a conviction in the courts would not bar impeachment and legislative trial, and they could see no distinction between convictions and acquittals in this respect.

Second, they reasoned that “impeach­ment does not serve the same purpose as a criminal prosecution.

Impeachment is remedial and designed to protect the institution of government from corrupt conduct.” 108

Third, they noted that the standard of proof was higher in a criminal prosecution than in an impeachment trial. 109

The House Judiciary Committee also found no double jeopardy bar.

The Com­mittee took the view that “impeachment is not a criminal proceeding” because the possible sanctions upon conviction are “remedial or prophylactic, rather than criminal or punitive.” 110

The House adopted the articles by a vote of 413-3. 111

Just before the Senate took up the House’s charges, Judge Hastings brought suit against the Senate and some of its officers seeking to enjoin his impeachment trial on double jeopardy grounds, among others.

District Judge Gerhard Gesell rejected Hastings’ double jeopardy contention and dismissed the action.

Judge Gesell reasoned as follows: Impeachment trials are sui generis: in several instances in the Constitution, impeachment is distinguished from criminal pro­ceedings.

The accused has no right to a jury, and the President may not pardon a person convicted by impeachment.

The Framers under­stood that impeachment trials were fundamentally political, which seems to indicate that impartiality — however much it has been present and is to be desired — is not guaranteed.

It is clear that the federal rules of evidence do not apply in impeachment trials, and the Constitution itself does not require unanimity among the Senators sitting in judgment.

Senators determine their own burdens of proof: they need not be persuaded beyond a reasonable doubt that the defendant committed each and every element of every Article.

Deviating from English precedent, the Framers sharply lim­ited the remedies or punishment available upon conviction to disqualification and removal from office ....

Hastings v. United States Senate, 716 F. Supp. 38, 41 (D.D.C. 1989).

Judge Gesell read the Impeachment Judgment Clause as “acknowledging separate and dif­ferent roles for the executive’s power of prosecution and the legislature’s impeach­ment powers."

"It is unthinkable that the executive branch could effectively prevent an impeachment by purporting to try a judge or that the judiciary could prevent an impeachment by accepting a plea."

"Rather, the executive and legislative branches have different roles to play if a judge engages in criminal behavior.” Id. at 42.

The court of appeals affirmed on non-justiciability grounds rather than reaching the merits of any of Judge Hastings’ contentions. Hastings v. United States Senate, 887 F.2d 332 (D.C. Cir. 1989) (unpublished).

Judge Hastings renewed his double jeopardy argument before the Senate in a motion to dismiss. 112

He made the expressio unius argument based on the Impeachment Judgment Clause, urging that the Clause “creates an express excep­tion for a ‘party convicted’ of an impeachable offense, but no exception for a party acquitted.” 113

He pointed out that Madison’s proposed double jeopardy clause had included an exception for impeachments, which had been deleted by the Senate.

He noted the constitutional provisions suggesting that an impeachment trial is a criminal proceeding, and he argued that the Mendoza-Martinez factors pointed in the direction of treating impeachment trials as criminal proceedings.

Finally, he argued that the “core policies” promoted by the double jeopardy rule favored prohibiting Senate trials following acquittal in the courts.

As the Supreme Court stated in Green v. United States, 355 U.S. 184, 187-88 (1957), “the underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compel­ling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.”

The Senate denied Hastings’ motion by a vote of 92-1. 114

In statements inserted into the record following the final vote to convict, several Senators addressed the double jeopardy issue.

They explained their judgment that trial by the Senate was not a criminal proceeding and that it therefore did not constitute an instance of jeopardy within the meaning of the Double Jeopardy Clause. 115

107 In the Matter of the Impeachment Inquiry Concerning U.S. District Judge Alcee L Hastings. Hearings Before the Subcommittee on Criminal Justice of the House Comm on the Judiciary. 100th Cong app 1, at 347—49 (1987).

108 Id at 348

109 The Committee also noted that it had considered evidence that had not been presented to the jury. Id at 349.

110 H .R. Rep. No. 100-810, at 62 (1988)

111 134 Cong Rec 20,221 (1988); see id. at 20, 206-22

112 Hastings Motions to Dismiss, supra at 48-66, Hastings Trial Proceedings, supra at 18-29

113 Hastings Motions to Dismiss, supra at 49

114 Hastings Trial Proceedings, supra at 55.

115 ld. at 711 (statement of Sen. Bingaman), 714-44 (statement of Sen Specter), 761 (statement of Sen Hatch), 773 (statement of Sen Dole), 776-77 (statement of Sen Lieberman).

TO BE CONTINUED ...

Whether a Former President May Be Indicted and Tried for the Same Offenses for Which He was Impeached by the House and Acquitted by the Senate

August 18, 2000 Memorandum Opinion for the Attorney General, continued ...

III. The 1980s Impeachment Trials, concluded ...

The Hastings impeachment trial provides additional support for the notion that an impeachment trial is not a jeopardy within the meaning of the Double Jeopardy Clause and that an acquittal by the Senate should not block a criminal prosecution for the same offenses.

We recognize that several arguments might be made to limit the significance of the Hastings case (and of the Claibome and Nixon cases) for the question we are addressing, but we find none of them convincing.

First, one might argue that trial in the Senate following acquittal in the courts (as in the Hastings case) is different from trial in the courts following acquittal in the Senate (the situation we are considering) because of the different standards of proof required in the two proceedings.

A jury verdict of not guilty means the prosecution has failed to prove beyond a reasonable doubt that the defendant is guilty.

The Senate might conclude that such a verdict presented no obstacle to their trial of the defendant on the same charges because, quite consistently with the jury’s verdict, they might conclude that the House managers had shown, under some lower standard of proof (whether preponderance or clear and convincing), that the defendant had committed the charged acts.

The reverse sequence would still be impermissible because a verdict of not guilty in the Senate under the lower standard of proof would be inconsistent with a finding of guilty under the more demanding beyond-a-reasonable doubt standard required in court.

We find this explanation of the significance of the Hastings case unconvincing for two reasons.

First, the argument concerns collateral estoppel — the principle that an issue finally resolved in one proceeding as between two parties may not be re-examined in a subsequent proceeding — not double jeopardy.

It is true that the resolution of a factual issue in favor of a defendant under the beyond-a-reasonable-doubt standard is no bar to consideration of the same issue under a more lenient standard of proof.

Thus, for example, collateral estoppel is no bar to a civil proceeding alleging that a defendant committed certain acts following acquittal of the same defendant on criminal charges requiring proof of the same acts. See, e.g., Helvering v. Mitchell, 303 U.S. 391, 397-98 (1938).

But, as the Supreme Court has repeatedly explained, even where collateral estoppel creates no obstacle to a successive trial, double jeopardy still may.

That is because it is the risk of criminal punishment, regardless of the form of the proceeding or the standard of proof, that determines whether the two proceedings constitute impermissible successive jeopardies. See, e.g., id. at 398—405.

Thus, for the Senate to try Judge Hastings after his criminal trial, it would not have been enough for the members of that body to have concluded that the reduced standard of proof removed any collateral estoppel problem.

They would also have to have concluded that trial before the Senate was not an instance of jeopardy.

Second, we find little, if any, evidence in the record of the Senate trial ofJudge Hastings suggesting that the Senators relied on this argument.

Judge Hastings pre­sented the double jeopardy issue squarely to the Senate, which considered it both in a motion to dismiss and in its final judgment. 116

Of the fifteen Senators who inserted statements in the record explaining their final votes, several addressed the double jeopardy question, but none did so in terms of the difference in the standards of proof. 117

One might also try to cabin the significance of the Hastings case by contending that the Senate’s decision to try Judge Hastings turned on the judicial character of his office and that the decision therefore does not serve as a precedent for the treatment of executive branch officials.

The argument would go as follows.

The “good behavior” standard governing judicial tenure imposes standards of propriety, and of the appearance of propriety, on federal judges that do not apply to executive officials.

Because of these particularly rigorous standards of behavior, conduct short of the criminal may nonetheless be outside the bounds of judicial good behavior.

Thus acquittal of serious crimes might still leave a judge open to fair condemnation as having deviated from the path of good behavior and thus as meriting removal from office. 118

Even if this argument for the significance of the good behavior standard were correct as a theoretical possibility, the records of the Hastings impeachment pro­ceedings offer little, if any, evidence suggesting that the standard influenced the Senate’s resolution of the double jeopardy issue it confronted. 119

Finally, regarding the Claibome and Nixon cases, one might argue that the Sen­ate’s decision to proceed rested not on a judgment that Senate trial did not con­stitute an instance of jeopardy but on a decision that the need to remove federal judges who had been convicted of felonies was so imperative that it outweighed otherwise applicable double jeopardy principles.

After all, federal judges, unlike federal executive officials, have life tenure, so impeachment provides the only political mechanism to remove them from office.

If the Senate had proceeded on that basis, we would expect to find some discussion of the dilemma involved.

We are aware of none in the record of those proceedings.

The three judicial impeachment trials of the 1980s support the conclusion that the Senate does not view impeachment trials as instances of jeopardy within the meaning of the Double Jeopardy Clause.

The Hastings case, moreover, demonstrates that the Senate sees no difference between prior acquittal and prior conviction in this regard.

116 See Hastings Motions to Dismiss, supra at 48-66; Hastings Trial Proceedings, supra at 20-22, 38, 55; id. at 735-41 (statement of Sen Specter), 772-73 (statement of Sen. Dole); 776-77 (statement of Sen. Lieberman); 799 (statement of Sen. Kohl). For example, in his statement on the floor of the Senate opposing Judge Hastings’s motions to dismiss, House Manager Bryant stated: Finally, the Senate should not ignore the 200 years of precedent establishing that Judge Hastings’ double jeopardy argument has no sound legal or historical basis. Respondent’s argument rests entirely on a single false premise that impeachment is somehow criminal in nature. Judge Hastings must convince you that an impeachment trial is a criminal proceeding, for then and only then would double jeopardy even arguably apply. Impeachment, as all precedents indicate, is not a criminal proceeding. Rather, the Constitution establishes — and the framers, the Congress and constitu­tional scholars have consistently concluded — that impeachment is a remedial proceeding designed to protect the institutions of Government and the American people from abuse of the public trust. In this country, impeachment has never functioned as a criminal process. Impeachment does not require an indictable offense as a basis for removal from office. Impeachment does not require proof beyond a reasonable doubt to establish the allegations. Impeachment does not call for trial by jury. Impeachment is not subject to Presidential pardon. And above all, the purpose of impeachment is not to punish an individual, but rather to preserve and protect our constitutional form of Government. Id at 38

117 See Hastings Trial Proceedings, supra at 735-41 (statement of Sen. Specter), id. at 772-73 (statement of Sen. Dole); id at 776-77 (statement of Sen. Lieberman), id at 799 (statement of Sen Kohl)

118 See, e.g., Ritter Trial Proceedings, supra at 644-45 (statement of Sens Borah, LaFollette, Frazier, and Shipstead), id. at 645-47 (statement of Sen. Thomas).

119 See Hastings Trial Proceedings, supra at 709-99 (Senators’ statements), id at 758 (statement of Sen Grassley), id at 773 (statement of Sen. Dole); see also id at 24 (statement of counsel for Judge Hastings).

TO BE CONTINUED ...

Whether a Former President May Be Indicted and Tried for the Same Offenses for Which He was Impeached by the House and Acquitted by the Senate

August 18, 2000 Memorandum Opinion for the Attorney General, concluded ...

IV. Conclusion

We conclude that the Constitution permits a former President to be criminally prosecuted for the same offenses for which he was impeached by the House and acquitted by the Senate while in office.

As the length of this memorandum indicates, we think the question is more complicated than it might first appear.

In particular, we think that there is a reasonable argument that the Impeachment Judgment Clause should be read to bar prosecutions following acquittal by the Senate and that disqualification from federal office upon conviction by the Senate bears some of the markers of criminal punishment.

Nonetheless, we think our conclusion accords with the text of the Constitution, reflects the founders’ understanding of the new process of impeachment they were creating, fits the Senate’s understanding of its role as the impeachment tribunal, and makes for a sensible and fair system of responding to the misdeeds of federal officials.

RANDOLPH D. MOSS
Assistant Attorney General
Office of Legal Counsel