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 ...
II. The Arguments Considered in Greater Depth, continued ...
B. Structural Considerations, concluded ...
The Constitution’s requirements that Senators take an oath before convening as an impeachment court and that a two-thirds vote is necessary for conviction were designed to guard against the influence of these political forces. See U.S. Const, art. I, §3, cl. 6.
Its specification that the Chief Justice rather than the Vice President should preside when the President is tried reflects a similar concern with impeachment verdicts being swayed by immediate political interests. See id.
If the Vice President presided, he might encourage conviction so as to boost himself into the Presidency, especially if the Vice President and President were rivals, a realistic possibility before the 12th Amendment reformed the electoral college in 1804.
But, as a number of participants in the ratification debates pointed out, partisanship and transitory political passions may sway the Senate to acquit as well as to convict. 64
Just as the possibility of partisan convictions helps explain the limitation on impeachment punishments and the lifting of the double jeopardy bar for Senate convictions, so the possibility of partisan acquittals supports the lifting of the double jeopardy bar for Senate acquittals.
C. The Double Jeopardy Clause
The Double Jeopardy Clause of the Fifth Amendment provides that “(n)o person . . . shall . . . be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const, amend. V.
For several reasons, we think a party acquitted by the Senate may not rely on the Double Jeopardy Clause as a bar to prosecution in the courts for the same offenses.
1. Original Understandings
First, the history of the Double Jeopardy Clause suggests that its drafters understood the phrase “in jeopardy of life or limb” to exclude impeachment proceedings.
The Clause’s legislative history, like that of the Bill of Rights amendments as a whole, is sparse.
We know that in Madison’s proposal to the House, what became the Double Jeopardy Clause was expressed in these terms: “No person shall be subject, except in cases of impeachment, to more than one punishment or one trial for the same offence.” 65
Several House members suggested deleting the phrase “or one trial,” but their motion was defeated. 66
The version adopted by the House followed Madison’s phrasing. 67
In response, the Senate initially adopted a version of the clause that deleted the reference to impeachment and added the phrase “life or limb”: “No person shall be subject to be twice put in jeopardy of life or limb by any public prosecution for the same offence.” 68
The Senate adopted the ultimate wording by omitting “by any public prosecution” when it combined the double jeopardy provision with the other clauses that make up what became the Fifth Amendment. 69
One might argue that the Senate’s deletion of the House’s exception for impeachments suggests an intent to include impeachments within the Double Jeopardy Clause’s scope. 70
64 See, e.g., Letter from William Symmes, Jr., to Peter Osgood, Jr, 14 DHRC, supra at 113-14, 4 Elliot’s Debates, supra at 45-46 (statement of Mr. Taylor in North Carolina ratifying convention), id. at 117 (statement of Mr. Spencer); id at 125 (statement of Mr Porter)
65 I Annals of Cong 451-52 (Joseph Gales, ed, 1789), Veil, supra at 5
66 Id. at 180, 186-87, 199.
67 Id. at 39.
68 Id at 39 n.4, The Complete Bill of Rights 301 (Neal Cogan ed., 1997) ("Cogan’’) As noted above, two state ratifying conventions, Maryland’s and New York’s, had proposed amendments including a double jeopardy guarantee See 2 Elliot’s Debates, supra at 550; 4 Schwartz, supra at 912. The wording of the New York proposal was: “That no Person ought to be put twice in Jeopardy of Life or Limb for one and the same Offence, nor, unless in case of impeachment, be punished more than once for the same Offence ” Id The Senators from New York were Rufus King and Philip Schuyler. 9 Documentary History of the First Federal Congress xxix (Kenneth R. Bowling & Helen E Veit eds, 1988). King had been a delegate to the Constitutional Convention (from Massachusetts), see 3 Farrand, supra at 557, but neither he nor Schuyler had been members of the New York ratifying convention, 2 Elliot's Debates, supra at 206-07
69 Veit, supra at 39 n14; Cogan, supra at 302-07
70 See Hastings Trial Proceedings, supra at 736 (statement of Sen Specter).
TO BE CONTINUED ...
ON INDICTMENTS OF FORMER PRESIDENTS
Re: ON INDICTMENTS OF FORMER PRESIDENTS
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 ...
II. The Arguments Considered in Greater Depth, continued ...
C. The Double Jeopardy Clause, continued ...
1. Original Understandings, concluded ...
But while we lack direct evidence of the purpose of the Senate’s change in language, that explanation seems unlikely.
The wording of related amendments suggests that a more likely explanation for the removal of the exception for impeachments was a recognition that the use of the phrase “life or limb’’ by itself restricted the reach of the clause to a subset of ordinary criminal cases.
In Madison’s original proposal, the jury trial and grand jury guarantees had been grouped together in an amendment separate from the double jeopardy guarantee.
The jury trial provision included an express exception for impeachments and the grand jury clause an implicit one: ‘‘The trial of all crimes (except in cases of impeachments, and cases arising in the land or naval forces, or the militia when on actual service in time of war, or public danger,) shall be by an impartial jury of the vicinage . . .; and in all crimes punishable with loss of life or member, presentment or indictment by a grand jury shall be an essential preliminary.” 71
Clearly impeachments, not indictments, were the preliminary step toward trial before the Senate.
The emphasized phrase seems to have been understood to exclude impeachment proceedings 72 and to identify a group of serious crimes, probably most if not all felonies (when tried in the regular courts). 73
The Senate’s substitute for the House version of the Double Jeopardy Clause omitted the express exception for impeachments and added the phrase “life or limb” in one fell swoop.
Given Madison’s earlier restrictive use of the similar phrase “loss of life or member,” it makes more sense to understand the Senate’s deletion of the impeachment exception as an acknowledgment that the use of “life or limb” made the express exception for impeachments unnecessary than to view the deletion in isolation as an attempt to bring impeachment within the Double Jeopardy Clause’s reach.
Second, our interpretation of the legislative history of the Double Jeopardy Clause fits with the dominant understanding of the reach of the double jeopardy rule at the time of the founding.
As we explained above, under that understanding the rule was limited to proceedings that placed the defendant in risk of at least liberty if not life, and thus a trial in which removal and disqualification are the only possible sanctions does not fit within the rule. 74
2. Current Double Jeopardy Doctrine
The Court uses a two-step approach to determining whether a proceeding constitutes an instance of jeopardy.
First, it looks to the legislature’s intent. See, e.g., Hudson, 522 U.S. at 103.
If the legislature intended the proceeding to be criminal, then the Double Jeopardy Clause applies.
If the legislature intended the proceeding to be civil, then the Court looks to a series of factors designed to identify criminal punishments.
If those factors clearly show that the legislature has provided for the imposition of criminal punishment, the Double Jeopardy Clause will apply despite the legislature’s claim that the proceeding is civil.
At both the first and second steps of this method, we think the better view is that an impeachment trial does not constitute an instance of jeopardy within the meaning of the Double Jeopardy Clause.
At the first step, one might argue that the references to impeachment in the Constitution suggest that it is a criminal proceeding.
Article III, Section 2, Clause 3 mandates that the “Trial of all Crimes, except in cases of impeachment, shall be by Jury.”
Article II, Section 4’s definition of impeachable offenses limits that group to treason, bribery “or other high Crimes and Misdemeanors.”
71 Veit, supra at 13
72 This is so despite the fact that one of the two impeachable offenses specified in the Constitution was treason, which was punishable in the regular English courts by death (and was made a capital crime by the first federal criminal statute, see Act of Apr 30, 1790, ch. ix, I Stat. 112).
73 The House substituted the phrase “capital, or otherwise infamous crime,” but apparently without any change in meaning intended. See Cogan, supra at 266—67, 269-70. Roger Sherman of Connecticut had proposed the phrase “any crime whereby he may incur loss of life or any infamous punishment.” Id. at 266.
74 See supra pp. 125-26, 128-30.
TO BE CONTINUED ...
August 18, 2000 Memorandum Opinion for the Attorney General, continued ...
II. The Arguments Considered in Greater Depth, continued ...
C. The Double Jeopardy Clause, continued ...
1. Original Understandings, concluded ...
But while we lack direct evidence of the purpose of the Senate’s change in language, that explanation seems unlikely.
The wording of related amendments suggests that a more likely explanation for the removal of the exception for impeachments was a recognition that the use of the phrase “life or limb’’ by itself restricted the reach of the clause to a subset of ordinary criminal cases.
In Madison’s original proposal, the jury trial and grand jury guarantees had been grouped together in an amendment separate from the double jeopardy guarantee.
The jury trial provision included an express exception for impeachments and the grand jury clause an implicit one: ‘‘The trial of all crimes (except in cases of impeachments, and cases arising in the land or naval forces, or the militia when on actual service in time of war, or public danger,) shall be by an impartial jury of the vicinage . . .; and in all crimes punishable with loss of life or member, presentment or indictment by a grand jury shall be an essential preliminary.” 71
Clearly impeachments, not indictments, were the preliminary step toward trial before the Senate.
The emphasized phrase seems to have been understood to exclude impeachment proceedings 72 and to identify a group of serious crimes, probably most if not all felonies (when tried in the regular courts). 73
The Senate’s substitute for the House version of the Double Jeopardy Clause omitted the express exception for impeachments and added the phrase “life or limb” in one fell swoop.
Given Madison’s earlier restrictive use of the similar phrase “loss of life or member,” it makes more sense to understand the Senate’s deletion of the impeachment exception as an acknowledgment that the use of “life or limb” made the express exception for impeachments unnecessary than to view the deletion in isolation as an attempt to bring impeachment within the Double Jeopardy Clause’s reach.
Second, our interpretation of the legislative history of the Double Jeopardy Clause fits with the dominant understanding of the reach of the double jeopardy rule at the time of the founding.
As we explained above, under that understanding the rule was limited to proceedings that placed the defendant in risk of at least liberty if not life, and thus a trial in which removal and disqualification are the only possible sanctions does not fit within the rule. 74
2. Current Double Jeopardy Doctrine
The Court uses a two-step approach to determining whether a proceeding constitutes an instance of jeopardy.
First, it looks to the legislature’s intent. See, e.g., Hudson, 522 U.S. at 103.
If the legislature intended the proceeding to be criminal, then the Double Jeopardy Clause applies.
If the legislature intended the proceeding to be civil, then the Court looks to a series of factors designed to identify criminal punishments.
If those factors clearly show that the legislature has provided for the imposition of criminal punishment, the Double Jeopardy Clause will apply despite the legislature’s claim that the proceeding is civil.
At both the first and second steps of this method, we think the better view is that an impeachment trial does not constitute an instance of jeopardy within the meaning of the Double Jeopardy Clause.
At the first step, one might argue that the references to impeachment in the Constitution suggest that it is a criminal proceeding.
Article III, Section 2, Clause 3 mandates that the “Trial of all Crimes, except in cases of impeachment, shall be by Jury.”
Article II, Section 4’s definition of impeachable offenses limits that group to treason, bribery “or other high Crimes and Misdemeanors.”
71 Veit, supra at 13
72 This is so despite the fact that one of the two impeachable offenses specified in the Constitution was treason, which was punishable in the regular English courts by death (and was made a capital crime by the first federal criminal statute, see Act of Apr 30, 1790, ch. ix, I Stat. 112).
73 The House substituted the phrase “capital, or otherwise infamous crime,” but apparently without any change in meaning intended. See Cogan, supra at 266—67, 269-70. Roger Sherman of Connecticut had proposed the phrase “any crime whereby he may incur loss of life or any infamous punishment.” Id. at 266.
74 See supra pp. 125-26, 128-30.
TO BE CONTINUED ...
Re: ON INDICTMENTS OF FORMER PRESIDENTS
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 ...
II. The Arguments Considered in Greater Depth, continued ...
C. The Double Jeopardy Clause, continued ...
2. Current Double Jeopardy Doctrine, continued ...
The President’s pardon power, in Article II, Section 2, Clause 1, extends to all “Offenses against the United States, except in cases of impeachment.” 75
We find this view unconvincing for several reasons.
First, the uses of the term “crimes” in connection with impeachments occur precisely in contexts that distinguish impeachments from regular criminal proceedings.
The reference in Article III, Section 2, Clause 3 establishes that parties who have been impeached, unlike regular criminal defendants, are not entitled to a jury, one of the most fundamental safeguards in our system of criminal justice.
The definition of impeachable offenses in Article II, Section 4 was designed to capture more than ordinary crimes.
Second, as we have tried to show above, the framers and ratifiers understood the limited nature of the sanctions available to the Senate as marking out impeachments as distinct from regular criminal proceedings. 76
Third, the practice of the Senate under the Constitution suggests that, while impeachment trials are akin to criminal trials in many respects, they are fundamentally different from criminal trials in ways that remove Senate trials from the reach of the double jeopardy rule.
The clearest examples of this are perhaps the Senate’s standard of proof and its methods for taking evidence.
Senators have not considered themselves bound to apply the beyond-a-reasonable-doubt standard of proof required in criminal trials. 77 See In re Winship, 397 U.S. 358, 361-64 (1970) (Due Process Clause mandates beyond-a-reasonable-doubt standard of proof in criminal trials).
In one recent impeachment, the Senate overwhelmingly rejected a motion requiring that standard. 78
Since the early part of this century, moreover, the Senate has empowered a committee to take evidence on its behalf rather than hearing the evidence itself, and the Senate has now employed that method on three occasions. 79
Such a delegation of the responsibility to hear the evidence conflicts with our understanding of the factfinder’s essential role in a criminal trial.
The text of the Constitution, the evidence concerning the founders’ understanding of the new process of impeachment they were creating, and the Senate’s practice suggest that the framers and ratifiers conceived of impeachment trials, as Judge Gesell has observed, as sui generis proceedings, bearing some characteristics of criminal trials but clearly lacking many others. Hastings v. United States Senate, 716 F. Supp. 38, 41 (D.D.C. 1989).
Although the evidence is hardly unmixed, we think it weighs in favor of the view that the framers and ratifiers did not consider an impeachment trial an instance of jeopardy within the meaning of the double jeopardy rule.
In the regular case of legislatively created proceedings, the Court has developed and employed the second step of its two-step test in order to prevent legislators from evading the requirements of the Double Jeopardy Clause simply by labeling a proceeding civil rather than criminal or calling a monetary sanction a tax rather than a fine. 80
But when it comes to the framers’ establishment of a new and distinctive process of impeachment, this need to second-guess legislative judgments by looking behind direct evidence of intent simply does not arise.
As a result, we believe, when examining a special proceeding whose relationship to regular criminal proceedings the framers defined, the first step of the process should end our analysis (especially if the evidence at that step is clear).
Even if one were to go on to the second step of current double jeopardy analysis and judge whether an impeachment trial is a criminal proceeding by determining whether the sanctions upon conviction are criminal punishments, 81 the result would only confirm the conclusion reached so far: that an impeachment trial is not a criminal proceeding within the meaning of the Double Jeopardy Clause.
With the possible exception of a few years in the early 1990s, the Supreme Court has for several decades applied an open-ended multi-factor test to determine whether a sanction constitutes criminal punishment.
75 In 1796, the House of Representatives requested the opinion of Attorney General Charles Lee on the proper method of proceeding against a judge of the Supreme Court for the Northwest Territory who had been accused of various improprieties in the conduct of his judicial duties. The Attorney General responded, in part "A judge may be prosecuted in three modes for official misdemeanors or crimes: by information, or by an indictment before an ordinary court, or by impeachment before the Senate of the United States. The last mode, being the most solemn, seems, in general cases, to be best suited to the trial of so high and important an officer; but, in the present instance, it will be found very inconvenient, if not entirely impracticable, on account of the immense distance of the residence of the witnesses from this city [Philadelphia]. In the prosecution of an impeachment, such rules must be observed as are essential to justice; and, if not exactly the same as those which are practiced in ordinary courts, they must be analogous, and as nearly similar as to them as forms will permit." 3 Hinds' Precedents, supra at 982. In light of the great distance between the Territory and the national capital, the Attorney General recommended that the case be brought by information or indictment in the regular courts. Id at 982-83; see also 1 American State Papers 151 (1834). The House apparently agreed with the recommendation, and took no further action. See id at 157.
76 See supra pp 127-30
77 See, e.g , Proceedings of the United States Senate in the Trial of Impeachment of Halsted L Ritter, S Doc No 74-200, at 657 (1936) (“Ritter Trial Proceedings”) (statement of Sen McAdoo); Hastings Trial Proceedings, supra at 711, 776—77 (statements of Sens Bingaman and Lieberman). Many Senators have based their votes on the beyond-a-reasonable-doubt standard.
78 Proceedings of the US Senate in the Impeachment Trial of Harry E. Claiborne, S. Doc No 99-48, at 105—09, 150 (1986) (“Claiborne Trial Proceedings”) (motion rejected 75-15)
79 See Stephen Burbank, Alternative Career Resolution: An Essay on the Removal of Federal Judges, 76 Ky L. Rev. 643, 647-48 (1988).
80 See, e.g., United States v. Chouteau, 102 U S 603 (1880), United States v LaFranca, 282 U.S 568 (1931), Helvering v Mitchell, 303 U S. 391 (1938), Kennedy v Mendoza-Martinez, 372 U S . 144 (1963); Department of Revenue v. Kurth Ranch, 511 U.S. 767 (1994); Ursery v. United States, 518 U S. 267 (1996).
81 For examples of applying this analysis to formally civil proceedings, see, eg., Hudson, 522 U S. at 99; Illinoisv Vitale, 447 U.S. 410, 415 (1980); Breed v. Jones, 421 U.S 519 (1975); Helvering v. Mitchell, 303 U.S 391, 399-401 (1938).
TO BE CONTINUED ...
August 18, 2000 Memorandum Opinion for the Attorney General, continued ...
II. The Arguments Considered in Greater Depth, continued ...
C. The Double Jeopardy Clause, continued ...
2. Current Double Jeopardy Doctrine, continued ...
The President’s pardon power, in Article II, Section 2, Clause 1, extends to all “Offenses against the United States, except in cases of impeachment.” 75
We find this view unconvincing for several reasons.
First, the uses of the term “crimes” in connection with impeachments occur precisely in contexts that distinguish impeachments from regular criminal proceedings.
The reference in Article III, Section 2, Clause 3 establishes that parties who have been impeached, unlike regular criminal defendants, are not entitled to a jury, one of the most fundamental safeguards in our system of criminal justice.
The definition of impeachable offenses in Article II, Section 4 was designed to capture more than ordinary crimes.
Second, as we have tried to show above, the framers and ratifiers understood the limited nature of the sanctions available to the Senate as marking out impeachments as distinct from regular criminal proceedings. 76
Third, the practice of the Senate under the Constitution suggests that, while impeachment trials are akin to criminal trials in many respects, they are fundamentally different from criminal trials in ways that remove Senate trials from the reach of the double jeopardy rule.
The clearest examples of this are perhaps the Senate’s standard of proof and its methods for taking evidence.
Senators have not considered themselves bound to apply the beyond-a-reasonable-doubt standard of proof required in criminal trials. 77 See In re Winship, 397 U.S. 358, 361-64 (1970) (Due Process Clause mandates beyond-a-reasonable-doubt standard of proof in criminal trials).
In one recent impeachment, the Senate overwhelmingly rejected a motion requiring that standard. 78
Since the early part of this century, moreover, the Senate has empowered a committee to take evidence on its behalf rather than hearing the evidence itself, and the Senate has now employed that method on three occasions. 79
Such a delegation of the responsibility to hear the evidence conflicts with our understanding of the factfinder’s essential role in a criminal trial.
The text of the Constitution, the evidence concerning the founders’ understanding of the new process of impeachment they were creating, and the Senate’s practice suggest that the framers and ratifiers conceived of impeachment trials, as Judge Gesell has observed, as sui generis proceedings, bearing some characteristics of criminal trials but clearly lacking many others. Hastings v. United States Senate, 716 F. Supp. 38, 41 (D.D.C. 1989).
Although the evidence is hardly unmixed, we think it weighs in favor of the view that the framers and ratifiers did not consider an impeachment trial an instance of jeopardy within the meaning of the double jeopardy rule.
In the regular case of legislatively created proceedings, the Court has developed and employed the second step of its two-step test in order to prevent legislators from evading the requirements of the Double Jeopardy Clause simply by labeling a proceeding civil rather than criminal or calling a monetary sanction a tax rather than a fine. 80
But when it comes to the framers’ establishment of a new and distinctive process of impeachment, this need to second-guess legislative judgments by looking behind direct evidence of intent simply does not arise.
As a result, we believe, when examining a special proceeding whose relationship to regular criminal proceedings the framers defined, the first step of the process should end our analysis (especially if the evidence at that step is clear).
Even if one were to go on to the second step of current double jeopardy analysis and judge whether an impeachment trial is a criminal proceeding by determining whether the sanctions upon conviction are criminal punishments, 81 the result would only confirm the conclusion reached so far: that an impeachment trial is not a criminal proceeding within the meaning of the Double Jeopardy Clause.
With the possible exception of a few years in the early 1990s, the Supreme Court has for several decades applied an open-ended multi-factor test to determine whether a sanction constitutes criminal punishment.
75 In 1796, the House of Representatives requested the opinion of Attorney General Charles Lee on the proper method of proceeding against a judge of the Supreme Court for the Northwest Territory who had been accused of various improprieties in the conduct of his judicial duties. The Attorney General responded, in part "A judge may be prosecuted in three modes for official misdemeanors or crimes: by information, or by an indictment before an ordinary court, or by impeachment before the Senate of the United States. The last mode, being the most solemn, seems, in general cases, to be best suited to the trial of so high and important an officer; but, in the present instance, it will be found very inconvenient, if not entirely impracticable, on account of the immense distance of the residence of the witnesses from this city [Philadelphia]. In the prosecution of an impeachment, such rules must be observed as are essential to justice; and, if not exactly the same as those which are practiced in ordinary courts, they must be analogous, and as nearly similar as to them as forms will permit." 3 Hinds' Precedents, supra at 982. In light of the great distance between the Territory and the national capital, the Attorney General recommended that the case be brought by information or indictment in the regular courts. Id at 982-83; see also 1 American State Papers 151 (1834). The House apparently agreed with the recommendation, and took no further action. See id at 157.
76 See supra pp 127-30
77 See, e.g , Proceedings of the United States Senate in the Trial of Impeachment of Halsted L Ritter, S Doc No 74-200, at 657 (1936) (“Ritter Trial Proceedings”) (statement of Sen McAdoo); Hastings Trial Proceedings, supra at 711, 776—77 (statements of Sens Bingaman and Lieberman). Many Senators have based their votes on the beyond-a-reasonable-doubt standard.
78 Proceedings of the US Senate in the Impeachment Trial of Harry E. Claiborne, S. Doc No 99-48, at 105—09, 150 (1986) (“Claiborne Trial Proceedings”) (motion rejected 75-15)
79 See Stephen Burbank, Alternative Career Resolution: An Essay on the Removal of Federal Judges, 76 Ky L. Rev. 643, 647-48 (1988).
80 See, e.g., United States v. Chouteau, 102 U S 603 (1880), United States v LaFranca, 282 U.S 568 (1931), Helvering v Mitchell, 303 U S. 391 (1938), Kennedy v Mendoza-Martinez, 372 U S . 144 (1963); Department of Revenue v. Kurth Ranch, 511 U.S. 767 (1994); Ursery v. United States, 518 U S. 267 (1996).
81 For examples of applying this analysis to formally civil proceedings, see, eg., Hudson, 522 U S. at 99; Illinoisv Vitale, 447 U.S. 410, 415 (1980); Breed v. Jones, 421 U.S 519 (1975); Helvering v. Mitchell, 303 U.S 391, 399-401 (1938).
TO BE CONTINUED ...
Re: ON INDICTMENTS OF FORMER PRESIDENTS
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 ...
II. The Arguments Considered in Greater Depth, continued ...
C. The Double Jeopardy Clause, continued ...
2. Current Double Jeopardy Doctrine, continued ...
Originally developed in a non-Double Jeopardy case, Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), the seven factors are, in the Court’s view, “neither exhaustive nor dispositive,” United States v. Ward, 448 U.S. 242, 249 (1980), but “useful guideposts,” Hudson, 522 U.S. at 99.
They are: “(1) “(w)hether the sanction involves an affirmative disability or restraint”; (2) “whether it has historically been regarded as a punishment”; (3) “whether it comes into play only on a finding of scienter"; (4) “whether its operation will promote the traditional aims of punishment - retribution and deterrence”; (5) “whether the behavior to which it applies is already a crime”; (6) “whether an alternative purpose to which it may rationally be connected is assignable for it”; and (7) “whether it appears excessive in relation to the alternative purpose assigned.” Id. at 99-100 (internal quotation marks omitted).
Of the seven Mendoza-Martinez factors, five strongly indicate that removal is not criminal punishment, one points more tentatively in that direction, and one points tentatively towards treating removal as a criminal sanction.
Disqualification presents a much closer question because at least one, and possibly two, of the factors that favor treating removal as a non-criminal sanction suggest that disqualification is a criminal punishment; moreover, in a post-Civil War decision, the Supreme Court in dictum characterized disqualification in an impeachment judgment as punishment at least for purposes of bill of attainder and ex post facto analysis. See Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 320 (1866).
Still, we believe that those factors in the case of disqualification are not dispositive and that the Mendoza-Martinez factors as a whole still support classifying disqualification as a non-criminal sanction.
The first Mendoza-Martinez factor, whether the sanction is an ‘‘affirmative disability or restraint,” is the one that weighs in favor of treating removal as a noncriminal sanction while its significance for disqualification is less clear.
Neither removal nor disqualification imposes an affirmative restraint because neither restricts the physical liberty of the sanctioned individual.
In addition, removal clearly does not constitute an affirmative disability because it imposes no lasting restrictions on the offender.
The question whether disqualification from all federal offices is an affirmative disability is a close one, and we think the better view is that it does constitute such a disability.
The difficulty of the question stems in part from a degree of inconsistency between the Court’s bill of attainder and ex post facto cases, in which it developed the notion of disability as punishment, and its double jeopardy decisions.
The Court first used the phrase “affirmative disability or restraint” three years before Mendoza-Martinez in Flemming v. Nestor, 363 U.S. 603 (1960), a challenge to a provision of the Social Security Act taking away Social Security benefits from all individuals who were deported for certain reasons, including (in Nestor’s case) past membership in the Communist Party.
The Supreme Court upheld the law, rejecting, among other contentions, claims that the statute constituted a bill of attainder or an ex post facto law.
Necessary to both contentions was the proposition that the sanction constituted punishment.
The Court explained that the punitive character of a sanction is a question of legislative purpose. See id. at 616; cf, e.g., DeVeau v. Braisted, 363 U.S. 144, 160 (1960).
In determining that the statute before it did not have a punitive purpose, the Court considered several circumstances, the first of which was that “the sanction is the mere denial of a noncontractual governmental benefit."
"No affirmative disability or restraint is imposed.” Flemming, 363 U.S. at 617.
The Flemming Court looked back to two post-Civil War decisions striking down laws on bill of attainder and ex post facto grounds.
In Cummings v. Missouri, 71 U.S. (4 Wall.) 277 (1866), the Court invalidated a provision of the Missouri constitution requiring all those who would hold a state office, teach, be an officer of a corporation, an attorney, or a clergyman to take an oath affirming, among other things, that they had never aided or expressed sympathy for those engaged in rebellion against the United States or evaded the
draft.
Cummings was a Catholic priest who had not taken the oath and yet was serving a church in the state, and he had been convicted and fined.
Referring to the “disabilities” imposed by the state constitution, the Court rejected Missouri’s contention that punishment was restricted to deprivations of life, liberty, or property: The deprivation of any rights, civil or political, previously enjoyed, may be punishment, the circumstances attending and the causes of the deprivation determining this fact.
Disqualification from office may be punishment, as in cases of conviction upon impeachment.
Disqualification from the pursuits of a lawful avocation, or from positions of trust, or from the privilege of appearing in the courts, or acting as an executor, administrator, or guardian, may also, and often has been, imposed as punishment ....
The theory upon which our political institutions rest is, that all men have certain inalienable rights — that among these are life, liberty, and the pursuit of happiness; and that in the pursuit of happiness all avocations, all honors, all positions, are alike open to every one, and that in the protection of these rights all are equal before the law.
Any deprivation or suspension of any of these rights for past conduct is punishment, and can be in no otherwise defined. Id. at 320, 321-22 (emphasis added).
Punishment, in the Court’s view, therefore “embrac[ed] deprivation or suspension of political or civil rights.” Id. at 322. 82
In Ex parte Garland, 71 U.S. (4 Wall.) 333 (1866), decided the same day, the Court struck down for similar reasons a federal law making the taking of a similar oath concerning participation in or support for the Confederate cause a condition for practice of law in federal court.
82 The Court quoted the first of these paragraphs with approval in United States v Brown, 381 U.S. 437, 448 (1965).
TO BE CONTINUED ...
August 18, 2000 Memorandum Opinion for the Attorney General, continued ...
II. The Arguments Considered in Greater Depth, continued ...
C. The Double Jeopardy Clause, continued ...
2. Current Double Jeopardy Doctrine, continued ...
Originally developed in a non-Double Jeopardy case, Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), the seven factors are, in the Court’s view, “neither exhaustive nor dispositive,” United States v. Ward, 448 U.S. 242, 249 (1980), but “useful guideposts,” Hudson, 522 U.S. at 99.
They are: “(1) “(w)hether the sanction involves an affirmative disability or restraint”; (2) “whether it has historically been regarded as a punishment”; (3) “whether it comes into play only on a finding of scienter"; (4) “whether its operation will promote the traditional aims of punishment - retribution and deterrence”; (5) “whether the behavior to which it applies is already a crime”; (6) “whether an alternative purpose to which it may rationally be connected is assignable for it”; and (7) “whether it appears excessive in relation to the alternative purpose assigned.” Id. at 99-100 (internal quotation marks omitted).
Of the seven Mendoza-Martinez factors, five strongly indicate that removal is not criminal punishment, one points more tentatively in that direction, and one points tentatively towards treating removal as a criminal sanction.
Disqualification presents a much closer question because at least one, and possibly two, of the factors that favor treating removal as a non-criminal sanction suggest that disqualification is a criminal punishment; moreover, in a post-Civil War decision, the Supreme Court in dictum characterized disqualification in an impeachment judgment as punishment at least for purposes of bill of attainder and ex post facto analysis. See Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 320 (1866).
Still, we believe that those factors in the case of disqualification are not dispositive and that the Mendoza-Martinez factors as a whole still support classifying disqualification as a non-criminal sanction.
The first Mendoza-Martinez factor, whether the sanction is an ‘‘affirmative disability or restraint,” is the one that weighs in favor of treating removal as a noncriminal sanction while its significance for disqualification is less clear.
Neither removal nor disqualification imposes an affirmative restraint because neither restricts the physical liberty of the sanctioned individual.
In addition, removal clearly does not constitute an affirmative disability because it imposes no lasting restrictions on the offender.
The question whether disqualification from all federal offices is an affirmative disability is a close one, and we think the better view is that it does constitute such a disability.
The difficulty of the question stems in part from a degree of inconsistency between the Court’s bill of attainder and ex post facto cases, in which it developed the notion of disability as punishment, and its double jeopardy decisions.
The Court first used the phrase “affirmative disability or restraint” three years before Mendoza-Martinez in Flemming v. Nestor, 363 U.S. 603 (1960), a challenge to a provision of the Social Security Act taking away Social Security benefits from all individuals who were deported for certain reasons, including (in Nestor’s case) past membership in the Communist Party.
The Supreme Court upheld the law, rejecting, among other contentions, claims that the statute constituted a bill of attainder or an ex post facto law.
Necessary to both contentions was the proposition that the sanction constituted punishment.
The Court explained that the punitive character of a sanction is a question of legislative purpose. See id. at 616; cf, e.g., DeVeau v. Braisted, 363 U.S. 144, 160 (1960).
In determining that the statute before it did not have a punitive purpose, the Court considered several circumstances, the first of which was that “the sanction is the mere denial of a noncontractual governmental benefit."
"No affirmative disability or restraint is imposed.” Flemming, 363 U.S. at 617.
The Flemming Court looked back to two post-Civil War decisions striking down laws on bill of attainder and ex post facto grounds.
In Cummings v. Missouri, 71 U.S. (4 Wall.) 277 (1866), the Court invalidated a provision of the Missouri constitution requiring all those who would hold a state office, teach, be an officer of a corporation, an attorney, or a clergyman to take an oath affirming, among other things, that they had never aided or expressed sympathy for those engaged in rebellion against the United States or evaded the
draft.
Cummings was a Catholic priest who had not taken the oath and yet was serving a church in the state, and he had been convicted and fined.
Referring to the “disabilities” imposed by the state constitution, the Court rejected Missouri’s contention that punishment was restricted to deprivations of life, liberty, or property: The deprivation of any rights, civil or political, previously enjoyed, may be punishment, the circumstances attending and the causes of the deprivation determining this fact.
Disqualification from office may be punishment, as in cases of conviction upon impeachment.
Disqualification from the pursuits of a lawful avocation, or from positions of trust, or from the privilege of appearing in the courts, or acting as an executor, administrator, or guardian, may also, and often has been, imposed as punishment ....
The theory upon which our political institutions rest is, that all men have certain inalienable rights — that among these are life, liberty, and the pursuit of happiness; and that in the pursuit of happiness all avocations, all honors, all positions, are alike open to every one, and that in the protection of these rights all are equal before the law.
Any deprivation or suspension of any of these rights for past conduct is punishment, and can be in no otherwise defined. Id. at 320, 321-22 (emphasis added).
Punishment, in the Court’s view, therefore “embrac[ed] deprivation or suspension of political or civil rights.” Id. at 322. 82
In Ex parte Garland, 71 U.S. (4 Wall.) 333 (1866), decided the same day, the Court struck down for similar reasons a federal law making the taking of a similar oath concerning participation in or support for the Confederate cause a condition for practice of law in federal court.
82 The Court quoted the first of these paragraphs with approval in United States v Brown, 381 U.S. 437, 448 (1965).
TO BE CONTINUED ...
Re: ON INDICTMENTS OF FORMER PRESIDENTS
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 ...
II. The Arguments Considered in Greater Depth, continued ...
C. The Double Jeopardy Clause, continued ...
2. Current Double Jeopardy Doctrine, continued ...
The Court stated that “exclusion from any of the professions or any of the ordinary avocations of life for past conduct can be regarded in no other light than as punishment for such conduct.” Id. at 377. 83
The Court next addressed these issues in United States v. Lovett, 328 U.S. 303 (1946), in which the Court invalidated as a bill of attainder an appropriations act that prohibited any federal agency from paying any further compensation to three particular federal employees, apparently because of the belief that they were, in the words of the act’s principal sponsor, “‘crackpot, radical bureaucrats’ and affiliates of ‘Communist front organizations.’” Id. at 308-09.
After an examination of the act’s origins, the Court concluded that its purpose was “permanently to bar them from government service,” id. at 313, and so it determined to judge the act on that basis.
The Court likened the act to those voided in Cummings and Garland because it "'operate[d] as a legislative decree of perpetual exclusion’ from a chosen vocation. Ex Parte Garland, supra, [71 U.S.] at 377."
"This permanent proscription from any opportunity to serve the Government is punishment, and of a most severe type."
"It is a type of punishment which Congress has only invoked for special types of odious and dangerous crimes, such as treason, 18 U.S.C. 2; acceptance of bribes by members of Congress, 18 U.S.C. 199, 202, 203; or by other government officials, 18 U.S.C. 207; and interference with elections by Army and Navy officers, 18 U.S.C. 58." Id. at 316.84
The broad statements in Cummings, Garland, and Lovett that permanent exclusion from a profession or federal office or employment constitutes a disability and punishment stand in some tension with the Court’s pronouncements in two of its leading double jeopardy decisions.
In Helvering v. Mitchell, 303 U.S. 391(1938), the Court’s seminal New Deal decision marking its willingness to give Congress greater leeway to impose civil sanctions free from the constraints of the Double Jeopardy Clause, the Court found a special “tax” imposed on those who fraudulently underreported their income on their federal tax return to be a civil sanction and thus imposable despite the defendant’s prior acquittal of a criminal charge, based on the same acts, of fraudulently evading payment of his full income tax bill.
In assessing whether the special tax was a punitive or remedial sanction, the Court observed that one remedial sanction “which is characteristically free of the punitive criminal element is revocation of a privilege voluntarily granted.” Id. at 399.
As examples, the Court gave deportation of aliens and disqualification of attorneys to practice before certain courts. Id. at 399 n.2.
Sixty years later, in its most recent decision to address these issues, the Court expressly endorsed that conclusion.
In Hudson v. United States, 522 U.S. 93 (1997), the Court held that permanent exclusion from employment by any federally insured bank did not constitute criminal punishment.
It reached that conclusion by applying the Mendoza-Martinez factors, and it stated that “the sanctions imposed do not involve an ‘affirmative disability or restraint,’ as that term is normally understood.
While petitioners have been prohibited from further participating in the banking industry, this is ‘certainly nothing approaching the “infamous punishment” of imprisonment.’ Flemming v. Nestor, 363 U.S. 603, 617 (1960).” Id.at 104.
85
Whatever tension may exist between the more sweeping language in Cummings, Garland, and Lovett, on the one hand, and Helvering and Hudson, on the other, the latter decisions do not directly reject the Court’s earlier statements as applied to disqualification from federal office.
Even if one took the view (supported perhaps by Garland, but not Lovett) that the right to hold congressionally established federal offices is a “privilege voluntarily granted,” Helvering, 303 U.S. at 399, it would be much more difficult to characterize the right to run for those elective offices created by Constitution in similar terms.
The qualifications for those offices are established by the Constitution, and may not be modified by either Congress or the States. See Powell v. McCormack, 395 U.S. 486 (1969); U.S. Terms Limit, Inc. v. Thornton, 514 U.S. 779 (1995).
Disqualification from those constitutionally created offices, if not from legislatively created ones, constitutes an affirmative disability. 86
83 See also Pierce v Carskadon, (16 Wall) 234 (1872), striking down, on the authority of Cummings and Garland, a West Virginia statute imposing a similar exculpatory oath as a condition of the right to petition for the reopening of certain sorts of civil judgments. The Garland Court, though relying directly on Cummings, did, however, make one statement that may suggest that Cummings should not be read in quite the sweeping terms its own language might suggest. The Court noted that “(t)he profession of an attorney and counsellor is not like an office created by an act of Congress, which depends for its continuance, its powers, and its emoluments upon the will of its creator, and the possession of which may be burdened with any conditions not prohibited by the Constitution." "Attorneys and counsellors are not officers of the United States, they are not elected or appointed in the manner prescribed by the Constitution for the election and appointment of such officers." "They are officers of the court." Ex parte Garland, 71 U.S. at 378 (1867). The Court also stated “The attorney and counsellor being, by the solemn judicial act of the court, clothed with his office, does not hold it as a matter of grace and favor." "The right which it confers upon him to appear for suitors, and to argue causes, is something more than a mere indulgence, ‘revocable at the pleasure of the court, or at the command of the legislature." "It is a right of which he can only be deprived by the judgment of the court, for moral or professional delinquency.“ "The legislature may undoubtedly prescribe qualifications for the office, to which he must conform, as it may, where it has exclusive jurisdiction, prescribe qualifications for the pursuit of any of the ordinary avocations of life." "The question, in the case, is not as to the power of Congress to prescribe qualifications, but whether that power has been exercised as a means for the infliction of punishment, against the prohibition of the Constitution.” Id at 379-80.
84 For a longer list, see DeVeau v Braisted, 363 U S 144, 159 (1960).
85 See also Ex parte Wall, 107 U.S. 265, 288 (1883) (upholding the summary disqualification from practice in a particular federal district court of an attorney who participated in the lynching of a prisoner); Hawker v. New York, 170 U S 189, 196-99 (1898) (upholding state statute prohibiting those ever convicted of a felony from practicing medicine); United States v. Rusk, 96 F3d 777, 778-79 (5th Cir. 1996) (collecting pre-Hudson court of appeals decisions finding debarment from regulated industries or professions to be civil sanctions, not criminal punishment).
86 A significant bit of evidence supporting that view appears in the text of the Fourteenth Amendment. Section 3 of that amendment disqualified from federal office all those who, as federal or state officeholders, had taken an oath to support the Constitution and then had participated in or aided insurrection against the federal government. The final sentence of the section then states “But Congress may by a vote of two-thirds of each House, remove such disability." U.S. Const, amend. XIV, §3 (emphasis added)
TO BE CONTINUED ...
August 18, 2000 Memorandum Opinion for the Attorney General, continued ...
II. The Arguments Considered in Greater Depth, continued ...
C. The Double Jeopardy Clause, continued ...
2. Current Double Jeopardy Doctrine, continued ...
The Court stated that “exclusion from any of the professions or any of the ordinary avocations of life for past conduct can be regarded in no other light than as punishment for such conduct.” Id. at 377. 83
The Court next addressed these issues in United States v. Lovett, 328 U.S. 303 (1946), in which the Court invalidated as a bill of attainder an appropriations act that prohibited any federal agency from paying any further compensation to three particular federal employees, apparently because of the belief that they were, in the words of the act’s principal sponsor, “‘crackpot, radical bureaucrats’ and affiliates of ‘Communist front organizations.’” Id. at 308-09.
After an examination of the act’s origins, the Court concluded that its purpose was “permanently to bar them from government service,” id. at 313, and so it determined to judge the act on that basis.
The Court likened the act to those voided in Cummings and Garland because it "'operate[d] as a legislative decree of perpetual exclusion’ from a chosen vocation. Ex Parte Garland, supra, [71 U.S.] at 377."
"This permanent proscription from any opportunity to serve the Government is punishment, and of a most severe type."
"It is a type of punishment which Congress has only invoked for special types of odious and dangerous crimes, such as treason, 18 U.S.C. 2; acceptance of bribes by members of Congress, 18 U.S.C. 199, 202, 203; or by other government officials, 18 U.S.C. 207; and interference with elections by Army and Navy officers, 18 U.S.C. 58." Id. at 316.84
The broad statements in Cummings, Garland, and Lovett that permanent exclusion from a profession or federal office or employment constitutes a disability and punishment stand in some tension with the Court’s pronouncements in two of its leading double jeopardy decisions.
In Helvering v. Mitchell, 303 U.S. 391(1938), the Court’s seminal New Deal decision marking its willingness to give Congress greater leeway to impose civil sanctions free from the constraints of the Double Jeopardy Clause, the Court found a special “tax” imposed on those who fraudulently underreported their income on their federal tax return to be a civil sanction and thus imposable despite the defendant’s prior acquittal of a criminal charge, based on the same acts, of fraudulently evading payment of his full income tax bill.
In assessing whether the special tax was a punitive or remedial sanction, the Court observed that one remedial sanction “which is characteristically free of the punitive criminal element is revocation of a privilege voluntarily granted.” Id. at 399.
As examples, the Court gave deportation of aliens and disqualification of attorneys to practice before certain courts. Id. at 399 n.2.
Sixty years later, in its most recent decision to address these issues, the Court expressly endorsed that conclusion.
In Hudson v. United States, 522 U.S. 93 (1997), the Court held that permanent exclusion from employment by any federally insured bank did not constitute criminal punishment.
It reached that conclusion by applying the Mendoza-Martinez factors, and it stated that “the sanctions imposed do not involve an ‘affirmative disability or restraint,’ as that term is normally understood.
While petitioners have been prohibited from further participating in the banking industry, this is ‘certainly nothing approaching the “infamous punishment” of imprisonment.’ Flemming v. Nestor, 363 U.S. 603, 617 (1960).” Id.at 104.
85
Whatever tension may exist between the more sweeping language in Cummings, Garland, and Lovett, on the one hand, and Helvering and Hudson, on the other, the latter decisions do not directly reject the Court’s earlier statements as applied to disqualification from federal office.
Even if one took the view (supported perhaps by Garland, but not Lovett) that the right to hold congressionally established federal offices is a “privilege voluntarily granted,” Helvering, 303 U.S. at 399, it would be much more difficult to characterize the right to run for those elective offices created by Constitution in similar terms.
The qualifications for those offices are established by the Constitution, and may not be modified by either Congress or the States. See Powell v. McCormack, 395 U.S. 486 (1969); U.S. Terms Limit, Inc. v. Thornton, 514 U.S. 779 (1995).
Disqualification from those constitutionally created offices, if not from legislatively created ones, constitutes an affirmative disability. 86
83 See also Pierce v Carskadon, (16 Wall) 234 (1872), striking down, on the authority of Cummings and Garland, a West Virginia statute imposing a similar exculpatory oath as a condition of the right to petition for the reopening of certain sorts of civil judgments. The Garland Court, though relying directly on Cummings, did, however, make one statement that may suggest that Cummings should not be read in quite the sweeping terms its own language might suggest. The Court noted that “(t)he profession of an attorney and counsellor is not like an office created by an act of Congress, which depends for its continuance, its powers, and its emoluments upon the will of its creator, and the possession of which may be burdened with any conditions not prohibited by the Constitution." "Attorneys and counsellors are not officers of the United States, they are not elected or appointed in the manner prescribed by the Constitution for the election and appointment of such officers." "They are officers of the court." Ex parte Garland, 71 U.S. at 378 (1867). The Court also stated “The attorney and counsellor being, by the solemn judicial act of the court, clothed with his office, does not hold it as a matter of grace and favor." "The right which it confers upon him to appear for suitors, and to argue causes, is something more than a mere indulgence, ‘revocable at the pleasure of the court, or at the command of the legislature." "It is a right of which he can only be deprived by the judgment of the court, for moral or professional delinquency.“ "The legislature may undoubtedly prescribe qualifications for the office, to which he must conform, as it may, where it has exclusive jurisdiction, prescribe qualifications for the pursuit of any of the ordinary avocations of life." "The question, in the case, is not as to the power of Congress to prescribe qualifications, but whether that power has been exercised as a means for the infliction of punishment, against the prohibition of the Constitution.” Id at 379-80.
84 For a longer list, see DeVeau v Braisted, 363 U S 144, 159 (1960).
85 See also Ex parte Wall, 107 U.S. 265, 288 (1883) (upholding the summary disqualification from practice in a particular federal district court of an attorney who participated in the lynching of a prisoner); Hawker v. New York, 170 U S 189, 196-99 (1898) (upholding state statute prohibiting those ever convicted of a felony from practicing medicine); United States v. Rusk, 96 F3d 777, 778-79 (5th Cir. 1996) (collecting pre-Hudson court of appeals decisions finding debarment from regulated industries or professions to be civil sanctions, not criminal punishment).
86 A significant bit of evidence supporting that view appears in the text of the Fourteenth Amendment. Section 3 of that amendment disqualified from federal office all those who, as federal or state officeholders, had taken an oath to support the Constitution and then had participated in or aided insurrection against the federal government. The final sentence of the section then states “But Congress may by a vote of two-thirds of each House, remove such disability." U.S. Const, amend. XIV, §3 (emphasis added)
TO BE CONTINUED ...
Re: ON INDICTMENTS OF FORMER PRESIDENTS
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 ...
II. The Arguments Considered in Greater Depth, continued ...
C. The Double Jeopardy Clause, continued ...
2. Current Double Jeopardy Doctrine, continued ...
The second Mendoza-Martinez factor is whether the sanction “has historically been regarded as punishment.”
Although the historical record is not unambiguous, we think that, as discussed earlier in this memorandum, both the evidence concerning the framing and ratification of the Constitution and the predominant views expressed by participants in impeachment trials support the judgment that removal and disqualification for conviction upon impeachment have been seen not as criminal punishments but as sanctions with principally remedial goals.
The actions by the House and Senate in the 1980s judicial impeachments discussed in the next part of this memorandum, each of which involved a defendant previously prosecuted in the courts, also support that conclusion.
At least two considerations may be raised against this view, however.
First, while removal has an obvious remedial goal and effect, disqualification’s remedial function may be less clear.
As the record of impeachment trials suggests, though, Representatives and Senators have seen disqualification’s non-punitive purpose as preventive or protective.
Disqualification prevents those who have abused positions of public trust from doing so again and thus protects the integrity of the government’s activities.
Admittedly, in one of its bill of attainder cases, the Court has expressed some skepticism about this sort of argument.
In United States v. Brown, 381 U.S. 437 (1965), the Court undid as a bill of attainder a criminal statute prohibiting anyone who had been a member of the Communist Party within the past five years from being an officer or employee of a labor union.
The Solicitor General argued that the statute’s prohibition on union employment or officership did not constitute punishment because it “was enacted for preventive rather than retributive reasons — that its aim is not to punish Communists for what they have done in the past, but rather to keep them from positions where they will in the future be able to bring about undesirable events,” id. at 456—57, an argument the Court had apparently embraced fifteen years earlier in American Communications Ass’n v. Douds, 339 U.S. 382, 413-14 (1950).
This time around, the Court was unwilling to follow the government’s reasoning: “It would be archaic to limit the definition of ‘punishment’ to ‘retribution.’"
"Punishment serves several purposes; retributive, rehabilitative, deterrent — and preventive."
"One of the reasons society imprisons those convicted of crimes is to keep them from inflicting future harm, but that does not make imprisonment any the less punishment.” Brown, 381 U.S. at 458.
But this statement from Brown is inapposite to the question before us.
That a criminal punishment may aim to prevent further criminality does not mean that all sanctions with preventive ends are criminal.
Indeed, most regulatory sanctions count prevention among their prominent goals.
It is the centrality of prevention, as compared to retribution and deterrence, that helps mark disqualification by the Senate as a non-criminal sanction. See Hudson, 522 U.S. at 105 (the presence of one arguably punitive purpose is insufficient to brand a sanction as criminal).
TO BE CONTINUED ...
August 18, 2000 Memorandum Opinion for the Attorney General, continued ...
II. The Arguments Considered in Greater Depth, continued ...
C. The Double Jeopardy Clause, continued ...
2. Current Double Jeopardy Doctrine, continued ...
The second Mendoza-Martinez factor is whether the sanction “has historically been regarded as punishment.”
Although the historical record is not unambiguous, we think that, as discussed earlier in this memorandum, both the evidence concerning the framing and ratification of the Constitution and the predominant views expressed by participants in impeachment trials support the judgment that removal and disqualification for conviction upon impeachment have been seen not as criminal punishments but as sanctions with principally remedial goals.
The actions by the House and Senate in the 1980s judicial impeachments discussed in the next part of this memorandum, each of which involved a defendant previously prosecuted in the courts, also support that conclusion.
At least two considerations may be raised against this view, however.
First, while removal has an obvious remedial goal and effect, disqualification’s remedial function may be less clear.
As the record of impeachment trials suggests, though, Representatives and Senators have seen disqualification’s non-punitive purpose as preventive or protective.
Disqualification prevents those who have abused positions of public trust from doing so again and thus protects the integrity of the government’s activities.
Admittedly, in one of its bill of attainder cases, the Court has expressed some skepticism about this sort of argument.
In United States v. Brown, 381 U.S. 437 (1965), the Court undid as a bill of attainder a criminal statute prohibiting anyone who had been a member of the Communist Party within the past five years from being an officer or employee of a labor union.
The Solicitor General argued that the statute’s prohibition on union employment or officership did not constitute punishment because it “was enacted for preventive rather than retributive reasons — that its aim is not to punish Communists for what they have done in the past, but rather to keep them from positions where they will in the future be able to bring about undesirable events,” id. at 456—57, an argument the Court had apparently embraced fifteen years earlier in American Communications Ass’n v. Douds, 339 U.S. 382, 413-14 (1950).
This time around, the Court was unwilling to follow the government’s reasoning: “It would be archaic to limit the definition of ‘punishment’ to ‘retribution.’"
"Punishment serves several purposes; retributive, rehabilitative, deterrent — and preventive."
"One of the reasons society imprisons those convicted of crimes is to keep them from inflicting future harm, but that does not make imprisonment any the less punishment.” Brown, 381 U.S. at 458.
But this statement from Brown is inapposite to the question before us.
That a criminal punishment may aim to prevent further criminality does not mean that all sanctions with preventive ends are criminal.
Indeed, most regulatory sanctions count prevention among their prominent goals.
It is the centrality of prevention, as compared to retribution and deterrence, that helps mark disqualification by the Senate as a non-criminal sanction. See Hudson, 522 U.S. at 105 (the presence of one arguably punitive purpose is insufficient to brand a sanction as criminal).
TO BE CONTINUED ...
Re: ON INDICTMENTS OF FORMER PRESIDENTS
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 ...
II. The Arguments Considered in Greater Depth, continued ...
C. The Double Jeopardy Clause, continued ...
2. Current Double Jeopardy Doctrine, continued ...
A second, more historically grounded, objection to the view that removal and disqualification is not punishment rests on the significant number of federal criminal statutes that have authorized removal or disqualification from federal office as a punishment for crime. 87
At the state level, statutory or constitutional provisions for removal and disqualification of officials convicted of crime are even more common. 88
None of these federal statutes provides for disqualification from office as the sole result of a conviction, 89 and all but one of them may properly be viewed, as is true of similar state-law provisions, as mandating collateral and remedial consequences of criminal conviction rather than as defining one of the punishments for the specified crimes.
See United States v. Waddell, 112 U.S. 76, 82 (1884) (“this language . . . is not the sentence of the court, but an indelible disgrace affixed to the party convicted by the declaration of the law itself’). 90
Indeed, so learned a jurist as Justice Story wrote in 1833 that “(i)n the ordinary course of the administration of criminal justice, no court is authorized to remove, or disqualify an offender, as a part of its regular judgment."
"If it results at all, it results as a consequence, and not as a part of the sentence.” 91
If there have been one or two instances in which disqualification was made part of the punishment itself, they are exceptions to the general pattern of disqualification as a legislatively mandated collateral consequence of criminal conviction, designed to protect the public from unfit officers rather than to punish the offender convicted of such a crime.
The import of the third Mendoza-Martinez criterion is uncertain.
On the one hand, several considerations suggest that a finding of scienter (a mental state in which one has knowledge that one’s action, statement, etc., is wrong, deceptive, or illegal: often used as a standard of guilt) is not absolutely necessary for impeachment.
Other than by implication in the definition of impeachable offenses, the Constitution does not impose a scienter requirement.
Moreover, in the second federal impeachment, the Senate convicted and removed a federal judge for drunkenness on the bench and for flagrantly erroneous rulings in a forfeiture proceeding despite the fact that it heard evidence submitted by the judge’s son that the judge was insane and had been at the time of the charged conduct.
87 A dozen of these statutes passed before the Civil War, four by the first Congress, are discussed in Mana Simon, Bribery and Other Not So “Good Behavior": Criminal Prosecution as a Supplement to Impeachment for Federal Judges, 94 Colum. L. Rev. 1617, 1636-47 (1994). One of the criminal provisions of the Civil Rights Act of 1870 (the predecessor of 18 U.S.C §241) mandated disqualification for those convicted of conspiring to deprive someone of his or her federal rights. See, e.g., United States v. Waddell, 112 US 76 (1885). For more recent examples, many of which are the successors of these early statutes, see Lovett, 328 U S. at 316, DeVeau, 363 U S. at 158- 59. At least four of the statutes providing for disqualification from federal office of those convicted of particular offenses remain in the U.S Code. See 8 U.S.C. §1425 (desertion and draft evasion); 18 U.S.C. §201 (bribery of federal officials, witnesses), §592 (military interference at polls), § 593 (military interference in elections).
88 See, e.g., 10 ALR 5th 139 (1993)
89 One of the statutes, that prohibiting desertion from the military and draft evasion, imposes disqualification from office along with deprivation of citizenship. See 8 U.S,C. §1425.
90 The one that is harder to square with this view is the bribery statute, 18 U.S.C. §201, which (since it was amended in 1962, see S. Rep. No. 87-2213 (1962)) leaves the imposition of disqualification to the discretion of the court. See also Ex parte Wilson, 114 U.S 417, 427 (1885) (referring to disqualification in 1790 bribery act as “punishment”), Mackin v United States, 117 U.S. 348, 352 (1886) (describing disqualification in one provision of Civil Rights Act of 1870 as “in the nature of an additional punishment”).
91 2 Story’s Commentaries, supra § 784, at 254.
TO BE CONTINUED ...
August 18, 2000 Memorandum Opinion for the Attorney General, continued ...
II. The Arguments Considered in Greater Depth, continued ...
C. The Double Jeopardy Clause, continued ...
2. Current Double Jeopardy Doctrine, continued ...
A second, more historically grounded, objection to the view that removal and disqualification is not punishment rests on the significant number of federal criminal statutes that have authorized removal or disqualification from federal office as a punishment for crime. 87
At the state level, statutory or constitutional provisions for removal and disqualification of officials convicted of crime are even more common. 88
None of these federal statutes provides for disqualification from office as the sole result of a conviction, 89 and all but one of them may properly be viewed, as is true of similar state-law provisions, as mandating collateral and remedial consequences of criminal conviction rather than as defining one of the punishments for the specified crimes.
See United States v. Waddell, 112 U.S. 76, 82 (1884) (“this language . . . is not the sentence of the court, but an indelible disgrace affixed to the party convicted by the declaration of the law itself’). 90
Indeed, so learned a jurist as Justice Story wrote in 1833 that “(i)n the ordinary course of the administration of criminal justice, no court is authorized to remove, or disqualify an offender, as a part of its regular judgment."
"If it results at all, it results as a consequence, and not as a part of the sentence.” 91
If there have been one or two instances in which disqualification was made part of the punishment itself, they are exceptions to the general pattern of disqualification as a legislatively mandated collateral consequence of criminal conviction, designed to protect the public from unfit officers rather than to punish the offender convicted of such a crime.
The import of the third Mendoza-Martinez criterion is uncertain.
On the one hand, several considerations suggest that a finding of scienter (a mental state in which one has knowledge that one’s action, statement, etc., is wrong, deceptive, or illegal: often used as a standard of guilt) is not absolutely necessary for impeachment.
Other than by implication in the definition of impeachable offenses, the Constitution does not impose a scienter requirement.
Moreover, in the second federal impeachment, the Senate convicted and removed a federal judge for drunkenness on the bench and for flagrantly erroneous rulings in a forfeiture proceeding despite the fact that it heard evidence submitted by the judge’s son that the judge was insane and had been at the time of the charged conduct.
87 A dozen of these statutes passed before the Civil War, four by the first Congress, are discussed in Mana Simon, Bribery and Other Not So “Good Behavior": Criminal Prosecution as a Supplement to Impeachment for Federal Judges, 94 Colum. L. Rev. 1617, 1636-47 (1994). One of the criminal provisions of the Civil Rights Act of 1870 (the predecessor of 18 U.S.C §241) mandated disqualification for those convicted of conspiring to deprive someone of his or her federal rights. See, e.g., United States v. Waddell, 112 US 76 (1885). For more recent examples, many of which are the successors of these early statutes, see Lovett, 328 U S. at 316, DeVeau, 363 U S. at 158- 59. At least four of the statutes providing for disqualification from federal office of those convicted of particular offenses remain in the U.S Code. See 8 U.S.C. §1425 (desertion and draft evasion); 18 U.S.C. §201 (bribery of federal officials, witnesses), §592 (military interference at polls), § 593 (military interference in elections).
88 See, e.g., 10 ALR 5th 139 (1993)
89 One of the statutes, that prohibiting desertion from the military and draft evasion, imposes disqualification from office along with deprivation of citizenship. See 8 U.S,C. §1425.
90 The one that is harder to square with this view is the bribery statute, 18 U.S.C. §201, which (since it was amended in 1962, see S. Rep. No. 87-2213 (1962)) leaves the imposition of disqualification to the discretion of the court. See also Ex parte Wilson, 114 U.S 417, 427 (1885) (referring to disqualification in 1790 bribery act as “punishment”), Mackin v United States, 117 U.S. 348, 352 (1886) (describing disqualification in one provision of Civil Rights Act of 1870 as “in the nature of an additional punishment”).
91 2 Story’s Commentaries, supra § 784, at 254.
TO BE CONTINUED ...
Re: ON INDICTMENTS OF FORMER PRESIDENTS
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 ...
II. The Arguments Considered in Greater Depth, continued ...
C. The Double Jeopardy Clause, continued ...
2. Current Double Jeopardy Doctrine, continued ...
The conviction of Judge Pickering has been seen by some as an instance of conviction of a defendant lacking a criminal mental state. 92
Furthermore, given that the ultimate touchstone for conviction upon impeachment is conduct that clearly demonstrates unfitness for office, before more modem solutions, see U.S. Const, amend. XXV (providing procedures for coping with Presidential incapacity); Judicial Councils Reform and Judicial Disability Act, 28 U.S.C. § 372 (authorizing methods short of removal to cope with judicial incapacity), impeachment might well have been the only avenue for removal of officers who were clearly incapable of carrying out their duties. 93
The difficulty of determining whether an impeachable offense must include an element of scienter stems in part from the fact that conduct need not be previously defined as criminal in order to support an impeachment charge and in part from the somewhat uncertain meaning of the term “scienter.”
On the other hand, two considerations support the conclusion that scienter is a necessary element of an impeachable offense.
First, the evolution of the language defining impeachable offenses at the Constitutional Convention suggests that the framers sought to exclude mere negligence in the meeting of official responsibilities. 94
The phrase originally adopted to define the scope of impeachable conduct was “malpractice or neglect of duty.” 95
Later on the Convention considered limiting impeachable offenses to treason and bribery, or perhaps “corruption” as well. 96
Near the end of their meetings, several delegates thought this definition was too limited and suggested adding “maladministration.”
Madison, however, objected that this term was too loose and would leave the President serving at the “pleasure of the Senate.” 97
The Convention then settled on “other high crimes and misdemeanors” apparently as a compromise, broadening the impeachable offenses beyond treason and bribery but restricting them more narrowly than mere “maladministration.”
That progression suggests that the framers considered something beyond negligence in the handling of official responsibilities as necessary to impeachable conduct, trusting that elections would provide sufficient check against the less culpable forms of misconduct.
Second, as Madison’s comment about the danger of impeachment being wielded as a tool of political control suggests, impeachment should not be used as a means to punish officials for reasonable, good-faith disagreements over the reach of statutory or constitutional provisions.
The acquittal of Justice Chase, for example, stands for the proposition that impeachment should not lie simply because Congress concludes that a judge has taken an erroneous view of the law. 98
The acquittal of President Johnson similarly stands for the proposition that a President should not be impeached simply because he refuses to carry out a law that he reasonably believes is unconstitutional. Cf. Presidential Authority to Decline to Execute Unconstitutional Statutes, 18 Op. O.L.C. 199 (1994) (outlining circumstances in which President may appropriately decline to execute statutory provisions he believes are unconstitutional).
The fourth Mendoza-Martinez factor is whether the sanction will “promote the traditional aims of punishment — retribution and deterrence.”
We think the answer here is “no.”
As the discussion of the Impeachment Judgment Clause during the ratification debates suggests, contemporaries understood the regular criminal punishments available in addition to removal and disqualification as the vehicles for exacting retribution.
While removal and disqualification are likely to have, and were intended to have, some deterrent effect, that is true of virtually any governmental exaction.
Accordingly, the Court has reasoned, “the mere presence of [a deterrent] purpose is insufficient to render a sanction criminal, as deterrence ‘may serve civil as well as criminal goals.’” Hudson, 522 U.S. at 105 (citations omitted); see also United States v. Ursery, 518 U.S. at 292.
Under the fifth Mendoza-Martinez factor, “whether the behavior to which [they] apply is already a crime,” the sanctions that the Senate may impose are not criminal punishments.
Of course, only conduct that is already defined as criminal will provide a basis for subsequent criminal prosecution of an impeached official, and thus only cases involving criminal conduct will raise the double jeopardy issue addressed in this memorandum.
But as the development of impeachment law before the Constitution, the debates at the time of the founding, and the history of impeachments under the Constitution show, despite the protestations of many impeachment defendants to the contrary, officials may be impeached and convicted for conduct that is not prohibited by the regular criminal laws. 99
The sixth and seventh Mendoza-Martinez factors are whether a purpose other than punishment may “rationally” be assigned to the sanction and whether the sanction “appears excessive in relation to the alternative purpose assigned.”
In our view, these are the most important considerations for they go most directly to the ultimate question of legislative (or drafters’ and ratifiers’) purpose.
The same sanction may have either a punitive or a non-punitive purpose and thus may be characterized as criminal punishment in one circumstance and as a civil sanction in another. Compare, e.g., Flemming, 363 U.S. at 617 (imprisonment as punishment); Mendoza-Martinez, 372 U.S. at 165 (deprivation of nationality in one section of the Immigration and Nationality Act as punishment), with Bell v. Wolfish, 441 U.S. 520, 533-39 (1979) (imprisonment in the context of reasonable" pre-trial detention not punishment); Mendoza-Martinez, 372 U.S. at 164 (interpreting Perez v. Brownell, 356 U.S. 44 (1958) as based on view that deprivation of nationality in another section of Immigration and Nationality Act not punishment).
Ultimately it is the purpose for which the sanction is applied that will determine its character.
92 Cf. Agnew Brief at 9 (asserting that acquittal based on insanity should not bar impeachment)
93 See The Federalist No. 79, supra at 533 (Alexander Hamilton) (ambiguous suggestion that insanity, if not other causes of inability, would justify impeachment and removal), but see id (stating that the Constitution does not include any provision for removing judges based on “inability”)
94 See Office of Legal Counsel, The Law of Impeachment, Appendix 1: The Concept of Impeachable Offense 10-15 (1974)
95 See 1 Farrand, supra at 88; 2 id. at 64-69, 116.
96 See id. at 185-86, 499.
97 Id at 550.
98 See, eg, William H Rehnquist, Grand Inquests 114 (1992).
99 See Hull & Hoffer, supra at 78, 116-23, 261-62; Michael J. Gerhardt, The Federal Impeachment Process chs. 1, 2, 9 (2d ed 2000); Rehnquist, supra at 274
TO BE CONTINUED ...
August 18, 2000 Memorandum Opinion for the Attorney General, continued ...
II. The Arguments Considered in Greater Depth, continued ...
C. The Double Jeopardy Clause, continued ...
2. Current Double Jeopardy Doctrine, continued ...
The conviction of Judge Pickering has been seen by some as an instance of conviction of a defendant lacking a criminal mental state. 92
Furthermore, given that the ultimate touchstone for conviction upon impeachment is conduct that clearly demonstrates unfitness for office, before more modem solutions, see U.S. Const, amend. XXV (providing procedures for coping with Presidential incapacity); Judicial Councils Reform and Judicial Disability Act, 28 U.S.C. § 372 (authorizing methods short of removal to cope with judicial incapacity), impeachment might well have been the only avenue for removal of officers who were clearly incapable of carrying out their duties. 93
The difficulty of determining whether an impeachable offense must include an element of scienter stems in part from the fact that conduct need not be previously defined as criminal in order to support an impeachment charge and in part from the somewhat uncertain meaning of the term “scienter.”
On the other hand, two considerations support the conclusion that scienter is a necessary element of an impeachable offense.
First, the evolution of the language defining impeachable offenses at the Constitutional Convention suggests that the framers sought to exclude mere negligence in the meeting of official responsibilities. 94
The phrase originally adopted to define the scope of impeachable conduct was “malpractice or neglect of duty.” 95
Later on the Convention considered limiting impeachable offenses to treason and bribery, or perhaps “corruption” as well. 96
Near the end of their meetings, several delegates thought this definition was too limited and suggested adding “maladministration.”
Madison, however, objected that this term was too loose and would leave the President serving at the “pleasure of the Senate.” 97
The Convention then settled on “other high crimes and misdemeanors” apparently as a compromise, broadening the impeachable offenses beyond treason and bribery but restricting them more narrowly than mere “maladministration.”
That progression suggests that the framers considered something beyond negligence in the handling of official responsibilities as necessary to impeachable conduct, trusting that elections would provide sufficient check against the less culpable forms of misconduct.
Second, as Madison’s comment about the danger of impeachment being wielded as a tool of political control suggests, impeachment should not be used as a means to punish officials for reasonable, good-faith disagreements over the reach of statutory or constitutional provisions.
The acquittal of Justice Chase, for example, stands for the proposition that impeachment should not lie simply because Congress concludes that a judge has taken an erroneous view of the law. 98
The acquittal of President Johnson similarly stands for the proposition that a President should not be impeached simply because he refuses to carry out a law that he reasonably believes is unconstitutional. Cf. Presidential Authority to Decline to Execute Unconstitutional Statutes, 18 Op. O.L.C. 199 (1994) (outlining circumstances in which President may appropriately decline to execute statutory provisions he believes are unconstitutional).
The fourth Mendoza-Martinez factor is whether the sanction will “promote the traditional aims of punishment — retribution and deterrence.”
We think the answer here is “no.”
As the discussion of the Impeachment Judgment Clause during the ratification debates suggests, contemporaries understood the regular criminal punishments available in addition to removal and disqualification as the vehicles for exacting retribution.
While removal and disqualification are likely to have, and were intended to have, some deterrent effect, that is true of virtually any governmental exaction.
Accordingly, the Court has reasoned, “the mere presence of [a deterrent] purpose is insufficient to render a sanction criminal, as deterrence ‘may serve civil as well as criminal goals.’” Hudson, 522 U.S. at 105 (citations omitted); see also United States v. Ursery, 518 U.S. at 292.
Under the fifth Mendoza-Martinez factor, “whether the behavior to which [they] apply is already a crime,” the sanctions that the Senate may impose are not criminal punishments.
Of course, only conduct that is already defined as criminal will provide a basis for subsequent criminal prosecution of an impeached official, and thus only cases involving criminal conduct will raise the double jeopardy issue addressed in this memorandum.
But as the development of impeachment law before the Constitution, the debates at the time of the founding, and the history of impeachments under the Constitution show, despite the protestations of many impeachment defendants to the contrary, officials may be impeached and convicted for conduct that is not prohibited by the regular criminal laws. 99
The sixth and seventh Mendoza-Martinez factors are whether a purpose other than punishment may “rationally” be assigned to the sanction and whether the sanction “appears excessive in relation to the alternative purpose assigned.”
In our view, these are the most important considerations for they go most directly to the ultimate question of legislative (or drafters’ and ratifiers’) purpose.
The same sanction may have either a punitive or a non-punitive purpose and thus may be characterized as criminal punishment in one circumstance and as a civil sanction in another. Compare, e.g., Flemming, 363 U.S. at 617 (imprisonment as punishment); Mendoza-Martinez, 372 U.S. at 165 (deprivation of nationality in one section of the Immigration and Nationality Act as punishment), with Bell v. Wolfish, 441 U.S. 520, 533-39 (1979) (imprisonment in the context of reasonable" pre-trial detention not punishment); Mendoza-Martinez, 372 U.S. at 164 (interpreting Perez v. Brownell, 356 U.S. 44 (1958) as based on view that deprivation of nationality in another section of Immigration and Nationality Act not punishment).
Ultimately it is the purpose for which the sanction is applied that will determine its character.
92 Cf. Agnew Brief at 9 (asserting that acquittal based on insanity should not bar impeachment)
93 See The Federalist No. 79, supra at 533 (Alexander Hamilton) (ambiguous suggestion that insanity, if not other causes of inability, would justify impeachment and removal), but see id (stating that the Constitution does not include any provision for removing judges based on “inability”)
94 See Office of Legal Counsel, The Law of Impeachment, Appendix 1: The Concept of Impeachable Offense 10-15 (1974)
95 See 1 Farrand, supra at 88; 2 id. at 64-69, 116.
96 See id. at 185-86, 499.
97 Id at 550.
98 See, eg, William H Rehnquist, Grand Inquests 114 (1992).
99 See Hull & Hoffer, supra at 78, 116-23, 261-62; Michael J. Gerhardt, The Federal Impeachment Process chs. 1, 2, 9 (2d ed 2000); Rehnquist, supra at 274
TO BE CONTINUED ...
Re: ON INDICTMENTS OF FORMER PRESIDENTS
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 ...
II. The Arguments Considered in Greater Depth, continued ...
C. The Double Jeopardy Clause, continued ...
2. Current Double Jeopardy Doctrine, continued ...
And when it comes to disqualification, the Court has emphasized, from its post- Civil War bill of attainder decisions to the modern era, that it is the closeness of the fit between the causes of disqualification and the positions from which the individual is disqualified that most clearly reveals a non-punitive purpose.
In Cummings, the Court concluded that the disqualifying provision in the Missouri constitution was a penalty largely because it was “evident from the nature of the pursuits and professions of the parties, placed under disabilities by the constitution of Missouri, that many of the acts, from the taint of which they must purge themselves, have no possible relation to their fitness for those pursuits and professions.” Cummings, 71 U.S. at 319; see also Garland, 71 U.S. at 379-80.
In Dent v. West Virginia, 129 U.S. 114 (1889), a decision upholding West Virginia’s medical licensure statute, Justice Field, who had written the majority opinions in both Cummings and Garland, distinguished those decisions by explaining that they turned on the conclusion that “as many of the acts from which the parties were obliged to purge themselves by the oath had no relation to their fitness for the pursuits and professions designated, . . . the oath was not required as a means of ascertaining whether the parties were qualified for those pursuits and professions, but was exacted because it was thought that the acts deserved punishment.” Id. at 126; see also Hawker v. New York, 170 U.S. 189, 198-99 (1898).
More recently, in Flemming v. Nestor, 363 U.S. 603 (1960), the Court endorsed the same view: “Where the source of legislative concern can be thought to be the activity or status from which the individual is barred, the disqualification is not punishment even though it may bear harshly upon one affected."
"The contrary is the case where the statute in question is evidently aimed at the person or class of persons disqualified.” Id. at 614.
Here, the core “source of the legislative concern,” abuse of federal office, is precisely “the activity or status from which the individual is barred.”
The non-punitive purpose which may rationally be assigned to removal and disqualification is keeping government authority out of the hands of those who have demonstrated their disregard for the obligations of public office.
In relation to that purpose, these sanctions, far from being excessive, are deftly tailored.
Unlike the prohibitions in Cummings and Garland, they do not reach beyond the exact sphere of the misconduct and thus the threat: federal office.
The Court’s statement in Cummings that disqualification in an impeachment judgment constitutes punishment does not dissuade from concluding that such disqualification is not punishment within the meaning of the Double Jeopardy Clause.
TO BE CONTINUED ...
August 18, 2000 Memorandum Opinion for the Attorney General, continued ...
II. The Arguments Considered in Greater Depth, continued ...
C. The Double Jeopardy Clause, continued ...
2. Current Double Jeopardy Doctrine, continued ...
And when it comes to disqualification, the Court has emphasized, from its post- Civil War bill of attainder decisions to the modern era, that it is the closeness of the fit between the causes of disqualification and the positions from which the individual is disqualified that most clearly reveals a non-punitive purpose.
In Cummings, the Court concluded that the disqualifying provision in the Missouri constitution was a penalty largely because it was “evident from the nature of the pursuits and professions of the parties, placed under disabilities by the constitution of Missouri, that many of the acts, from the taint of which they must purge themselves, have no possible relation to their fitness for those pursuits and professions.” Cummings, 71 U.S. at 319; see also Garland, 71 U.S. at 379-80.
In Dent v. West Virginia, 129 U.S. 114 (1889), a decision upholding West Virginia’s medical licensure statute, Justice Field, who had written the majority opinions in both Cummings and Garland, distinguished those decisions by explaining that they turned on the conclusion that “as many of the acts from which the parties were obliged to purge themselves by the oath had no relation to their fitness for the pursuits and professions designated, . . . the oath was not required as a means of ascertaining whether the parties were qualified for those pursuits and professions, but was exacted because it was thought that the acts deserved punishment.” Id. at 126; see also Hawker v. New York, 170 U.S. 189, 198-99 (1898).
More recently, in Flemming v. Nestor, 363 U.S. 603 (1960), the Court endorsed the same view: “Where the source of legislative concern can be thought to be the activity or status from which the individual is barred, the disqualification is not punishment even though it may bear harshly upon one affected."
"The contrary is the case where the statute in question is evidently aimed at the person or class of persons disqualified.” Id. at 614.
Here, the core “source of the legislative concern,” abuse of federal office, is precisely “the activity or status from which the individual is barred.”
The non-punitive purpose which may rationally be assigned to removal and disqualification is keeping government authority out of the hands of those who have demonstrated their disregard for the obligations of public office.
In relation to that purpose, these sanctions, far from being excessive, are deftly tailored.
Unlike the prohibitions in Cummings and Garland, they do not reach beyond the exact sphere of the misconduct and thus the threat: federal office.
The Court’s statement in Cummings that disqualification in an impeachment judgment constitutes punishment does not dissuade from concluding that such disqualification is not punishment within the meaning of the Double Jeopardy Clause.
TO BE CONTINUED ...
Re: ON INDICTMENTS OF FORMER PRESIDENTS
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 ...
II. The Arguments Considered in Greater Depth, concluded ...
C. The Double Jeopardy Clause, concluded ...
2. Current Double Jeopardy Doctrine, concluded ...
The statement in Cummings was dictum unsupported by any reasoning concerning the special character or function of impeachment proceedings. 100
Moreover, as the Court’s more recent bill of attainder decisions suggest, the range of sanctions that count as punishment for purposes of the Bill of Attainder Clause may well be broader than the range of penalties that amount to criminal punishment under the Double Jeopardy Clause.
In Selective Service System v. Minnesota Public Interest Research Group, 468 U.S. 841 (1984), the Court stated that it looks to three considerations in determining whether a statute inflicts punishment for bill of attainder purposes: “(1) whether the challenged statute falls within the historical meaning of legislative punishment; (2) whether the statute, ‘viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes’; and (3) whether the legislative record ‘evinces a congressional intent to punish.’” Id. at 852 (quoting Nixon v. General Servs. Admin., 433 U.S. 425, 473, 475-76 (1977)).
The second of those criteria is quite similar to the sixth Mendoza-Martinez factor.
But the Court’s recent bill of attainder criteria leave out a number of the Mendoza-Martinez factors that would tend to narrow the class of punitive sanctions — whether the sanction constitutes an affirmative disability or restraint, whether a finding of scienter is necessary, and whether the conduct to which it applies is already criminal.
Recognizing that criminal punishments under the Double Jeopardy Clause may form a subset of punishments under the Bill of Attainder Clause also helps relieve the apparent tension between, on the one hand, the bill of attainder decisions’ assertions that disqualification from a profession constitutes punishment, and, on the other, Helvering's and Hudson's holdings that bars on participation in particular professions did not amount to punishment within the meaning of the Double Jeopardy Clause.
On balance, then, we conclude that removal and disqualification when imposed by the court of impeachments are best seen as special civil sanctions rather than as criminal punishments.
The historical evidence demonstrating the founders’ intent to break with the English tradition of criminal punishments and to codify the American practice of limited impeachment sanctions, the record of impeachment trials showing the House’s and Senate’s endorsement of that view, and even the criteria of current double jeopardy law all support the conclusion that the sanctions the Constitution places in the Senate’s hands are not criminal punishments within the meaning of the Double Jeopardy Clause.
100 Moreover, Cummings' flat statement that disqualification upon impeachment constitutes punishment seems inconsistent with its own emphasis on whether the sanction is closely tied to fitness to hold the office or practice the occupation, an emphasis stressed in several of its later decisions.
101 Having considered the Impeachment Judgment Clause and the Double Jeopardy Clause at some length, we should briefly note that we think the Due Process Clause of the Fifth Amendment does not create a bar to prosecution following acquittal by the Senate. The Due Process Clause incorporates the guarantees of the Double Jeopardy Clause, see Benton v. Maryland, 395 U.S. 784 (1969), but it offers little, if any, additional protection, see Dowling v United States, 493 U.S. 342, 352-54 (1990) (‘‘Beyond the specific guarantees in the Bill of Rights, the Due Process Clause has limited operation. . . . We decline to use the Due Process Clause as a device for extending double jeopardy protection to cases where it would otherwise not extend.”) In the special circumstance of prosecutions following impeachment trials, the Constitution establishes the process that is due. For the reasons given in the last two sections of this memorandum, we believe that process includes the possibility of prosecution following acquittal by the Senate. In individual cases, parties acquitted by the Senate and then prosecuted in the courts for the same offenses might raise due process claims based on the particular circumstances of their cases. For example, an individual might argue that the extensive publicity surrounding his impeachment by the House and trial in the Senate made it impossible for him to receive a fair trial in the courts. See, e g , Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 551-56 (1976). We do not address these sorts of as-applied due process claims. Our analysis is limited to determining whether the Constitution as a general matter prohibits or permits criminal prosecution for the same offenses of which a party was acquitted by the Senate.
TO BE CONTINUED ...
August 18, 2000 Memorandum Opinion for the Attorney General, continued ...
II. The Arguments Considered in Greater Depth, concluded ...
C. The Double Jeopardy Clause, concluded ...
2. Current Double Jeopardy Doctrine, concluded ...
The statement in Cummings was dictum unsupported by any reasoning concerning the special character or function of impeachment proceedings. 100
Moreover, as the Court’s more recent bill of attainder decisions suggest, the range of sanctions that count as punishment for purposes of the Bill of Attainder Clause may well be broader than the range of penalties that amount to criminal punishment under the Double Jeopardy Clause.
In Selective Service System v. Minnesota Public Interest Research Group, 468 U.S. 841 (1984), the Court stated that it looks to three considerations in determining whether a statute inflicts punishment for bill of attainder purposes: “(1) whether the challenged statute falls within the historical meaning of legislative punishment; (2) whether the statute, ‘viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes’; and (3) whether the legislative record ‘evinces a congressional intent to punish.’” Id. at 852 (quoting Nixon v. General Servs. Admin., 433 U.S. 425, 473, 475-76 (1977)).
The second of those criteria is quite similar to the sixth Mendoza-Martinez factor.
But the Court’s recent bill of attainder criteria leave out a number of the Mendoza-Martinez factors that would tend to narrow the class of punitive sanctions — whether the sanction constitutes an affirmative disability or restraint, whether a finding of scienter is necessary, and whether the conduct to which it applies is already criminal.
Recognizing that criminal punishments under the Double Jeopardy Clause may form a subset of punishments under the Bill of Attainder Clause also helps relieve the apparent tension between, on the one hand, the bill of attainder decisions’ assertions that disqualification from a profession constitutes punishment, and, on the other, Helvering's and Hudson's holdings that bars on participation in particular professions did not amount to punishment within the meaning of the Double Jeopardy Clause.
On balance, then, we conclude that removal and disqualification when imposed by the court of impeachments are best seen as special civil sanctions rather than as criminal punishments.
The historical evidence demonstrating the founders’ intent to break with the English tradition of criminal punishments and to codify the American practice of limited impeachment sanctions, the record of impeachment trials showing the House’s and Senate’s endorsement of that view, and even the criteria of current double jeopardy law all support the conclusion that the sanctions the Constitution places in the Senate’s hands are not criminal punishments within the meaning of the Double Jeopardy Clause.
100 Moreover, Cummings' flat statement that disqualification upon impeachment constitutes punishment seems inconsistent with its own emphasis on whether the sanction is closely tied to fitness to hold the office or practice the occupation, an emphasis stressed in several of its later decisions.
101 Having considered the Impeachment Judgment Clause and the Double Jeopardy Clause at some length, we should briefly note that we think the Due Process Clause of the Fifth Amendment does not create a bar to prosecution following acquittal by the Senate. The Due Process Clause incorporates the guarantees of the Double Jeopardy Clause, see Benton v. Maryland, 395 U.S. 784 (1969), but it offers little, if any, additional protection, see Dowling v United States, 493 U.S. 342, 352-54 (1990) (‘‘Beyond the specific guarantees in the Bill of Rights, the Due Process Clause has limited operation. . . . We decline to use the Due Process Clause as a device for extending double jeopardy protection to cases where it would otherwise not extend.”) In the special circumstance of prosecutions following impeachment trials, the Constitution establishes the process that is due. For the reasons given in the last two sections of this memorandum, we believe that process includes the possibility of prosecution following acquittal by the Senate. In individual cases, parties acquitted by the Senate and then prosecuted in the courts for the same offenses might raise due process claims based on the particular circumstances of their cases. For example, an individual might argue that the extensive publicity surrounding his impeachment by the House and trial in the Senate made it impossible for him to receive a fair trial in the courts. See, e g , Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 551-56 (1976). We do not address these sorts of as-applied due process claims. Our analysis is limited to determining whether the Constitution as a general matter prohibits or permits criminal prosecution for the same offenses of which a party was acquitted by the Senate.
TO BE CONTINUED ...