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distinction made. On the contrary, the proceedings of the
On August 20, 1787, a committee was directed to report
cials. In Federalist No. 79, Alexander Hamilton confirmed this reading of the Convention's actions with respect to the impeachment standard:
The precautions for (judges') responsibility, are comprised in the article respecting impeachments. * * * This is the only provision on the point, which is consistent with the necessary independence of the judicial character, and is the only one which we find in our Constitution with re
spect to our own judges. Opposition to Claiborne Motion at 6–7 (citations omitted).
The Senate never voted on Claiborne's motion. However, the Senate was clearly not swayed by the arguments contained therein because the body later voted to convict Judge Claiborne. 132 Con. Rec. S15,760–62 (daily ed. Oct. 9, 1986). The Senate thus rejected the claim that the standard of impeachable offenses was different for judges than for presidents. It can thus be reliably stated that both federal judges and U.S. presidents are impeachable for the same misdeeds: "Treason, Bribery, and other high Crimes and Misdemeanors”.
One additional argument can be made in an effort to differentiate the standards of impeachment for judges and presidents. While both judges and presidents are impeachable for committing “Treason, Bribery, and other high Crimes and Misdemeanors”, it might be argued that certain high crimes such as perjury are more detrimental when committed by judges and therefore only impeachable when committed by judges. Thus, one article of impeachment against Judge Claiborne charged that he was “required to discharge and perform all the duties incumbent on him and to uphold and obey the Constitution and laws of the United States” and was "required to uphold the integrity of the judiciary and to perform the duties of his office impartially” and that by willfully and knowingly falsifying his income on his tax returns, he had "betrayed the trust of the people of the United States and reduced confidence in the integrity and impartiality of the judiciary, thereby bringing disrepute on the Federal courts and the administration of justice by the courts.” Id. Judges must lead by example in convincing witnesses before their courts to testify truthfully, and they must be viewed as impartial when deciding issues in cases—thus it is devastating when they are viewed as being less than truthful.
This argument fails because it is just as devastating to our system of government when presidents commit perjury. As the Judiciary Committee stated in justifying an article of impeachment against President Nixon, the President not only has "the obligation that every citizen has to live under the law," but in addition has the duty “not merely to live by the law but to see that law faithfully applied.” Impeachment of Richard M. Nixon, President of the United States, H.R. Rep. No. 93–1305, 93rd Cong., 2d Sess. at 180 (1974) (hereinafter cited as "Impeachment of Richard M. Nixon"). The Constitution provides that he “shall take Care that the Laws be faithfully executed.” U.S. Const. art. II, sec. 3. As Justice Felix Frankfurter has stated, this is "the embracing function of the President.” Impeachment_of Richard M. Nixon at 180, quoting Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 610 (1952) (Frankfurter, J., concurring). When a president, as chief law enforcement officer of the United States, commits perjury, he violates this constitutional oath unique to his office and casts doubt on the notion that we are a nation ruled by laws and not men.
ii. Perjurious, False and Misleading Statements Made Under
Oath or Subject to Penalty for Perjury a. Judge Harry E. Claiborne When Judge Harry E. Claiborne was impeached, he was serving a sentence in federal prison for filing false federal income tax returns for 1979 and 1980. Judge Claiborne had signed written declarations that the returns were made under penalty of perjury. A jury had found beyond a reasonable doubt that Judge Claiborne had failed to report substantial income in violation of federal law.
The Senate convicted Judge Claiborne of three articles of impeachment. 132 Cong. Rec. S15,760–62 (daily ed. Oct. 9, 1986). The first article had charged that, while serving as a federal judge, Judge Claiborne willfully and knowingly filed under penalty of perjury an income tax return for 1979, which he did not believe to be true and correct as to every material matter in that it substantially understated his income. Id. The second article had charged that he had done the same with his income tax return for 1980. Id. The third article was mentioned in the previous section.
The first two articles of impeachment charged Judge Claiborne not only with making false statements, but with making perjurious statements. This can be inferred from the fact that the first two articles stated two crucial requirements of perjury, that a falsehood be made knowingly, and that it be “material.” A person is guilty of perjury if in a proceeding before or ancillary to any court or grand jury of the United States, he knowingly makes any false material declaration under oath. 18 U.S.C. $ 1623(a). A general perjury provision is found at 18 U.S.C. $ 1621. Section 1621 requires that the defendant "willfully" make a false statement. Under this section, the prosecution must present at least two independent witnesses or one witness with corroborating evidence. See Hammer v. United States, 271 U.S. 620, 626 (1926). The prosecution does not have to meet this “two witness rule” under $ 1623. To be material, a statement must have “a natural tendency to influence, or [be] capable of influencing, the decision of the decisionmaking body to which it was addressed.” Kungys v. United States, 485 U.S. 759, 770 (1988) (quotation marks omitted)(While Kungys dealt with materiality under the Immigration and Nationality Act, the Court stated that "[t]he federal courts have long displayed a quite uniform understanding of the 'materiality concept as embodied in such statutes." Id. See United States v. Dickerson, 114 F.3d 464, 466 (4th Cir. 1997), for a section 1623 case involving testimony before a grand jury with a similar definition of materiality.). Of course, the statement must influence the body on the subject before it. See United States v. Cosby, 601 F.2d 754, 756 n.2 (5th Cir. 1979). Materiality is determined at the time of the testimony, and "subsequent events do not eliminate that materiality." See United States v. Manfredonia, 414 F.2d 760, 765 (2d Cir. 1969)(footnote omitted).
b. Judge Walter Nixon U.S. District Court Judge Walter L. Nixon, Jr., was impeached in 1989. At the time of his impeachment, he was serving a sentence in federal prison for committing perjury before a federal grand jury. A federal jury had convicted Judge Nixon of two counts of perjury while acquitting him of the underlying illegal gratuity count. He committed the perjury in an attempt to conceal his involvement with an aborted state prosecution for drug smuggling against the son of a man who had benefitted Judge Nixon financially with a "sweetheart” oil and gas investment. The Senate convicted Judge Nixon of two articles of impeachment, which were both based on Nixon's perjurious testimony. Proceedings of the United States Senate in the Impeachment Trial of Walter L. Nixon, Jr., a Judge of the United States District Court for the Southern District of Mississippi, S. Doc. No. 101–22, 101st Cong., 1st Sess. 432–35 (1989). The first article upon which he was convicted found that in testimony before the federal grand jury investigating Judge Nixon's business relationship with an individual and a state prosecutor's handling of a drug smuggling prosecution of that individual's son, Judge Nixon knowingly made a material false or misleading statement in violation of his oath to tell the truth to the effect that he never discussed the prosecution with the state prosecutor. Id. at 432–35. The second article upon which he was convicted found that that in testimony before the same grand jury, Judge Nixon knowingly made a material false or misleading statement in violation of his oath to tell the truth to the effect that he never talked to anyone that in any way influenced anyone with respect to the drug smuggling case. Id.
As in the case of Judge Claiborne, the articles of impeachment against Judge Nixon charged him not only with making false statements, but with making perjurious statements. This can be inferred from the fact that the two articles stated two crucial requirements of perjury, that a falsehood be made knowingly, and that it be “material.” Of course, the federal jury had found that he had met these two requirements by convicting him of perjury.
c. Judge Alcee Hastings U.S. District Court Judge Alcee L. Hastings was impeached in 1989. In 1983, a federal jury acquitted Judge Hastings of charges that he and a friend had conspired to solicit a $150,000 bribe from defendants in a racketeering and embezzlement case heard by Judge Hastings in exchange for lenient sentencing. However, in a separate trial, a jury had convicted his alleged co-conspirator on these charges and it was alleged that Judge Hastings won acquittal by lying on the witness stand.
Judge Hastings was found guilty by the Senate on seven of twelve articles of impeachment involving false testimony and on an article stating that he was a participant in the bribery conspiracy. 135 Cong. Rec. 25,330–35 (1989). The seven "false testimony" articles alleged that Judge Hastings knowingly made false statements under oath intending to mislead the trier of fact regarding whether he had (1) entered into an agreement to seek the $150,000 bribe from the defendants, (2) agreed to modify the sentences of the defendants in return for the bribe, (3) agreed in connection with the bribe to return property to the defendants that he had previously ordered forfeited, (4) appeared at a hotel to demonstrate his participation in the bribery scheme, (5) instructed his law clerk to prepare an order returning property to the defendants in the racketeering and embezzlement case in furtherance of the bribery scheme, (6) conducted a telephone conversation with his co-conspirator in furtherance of the bribery scheme, and (7) certain letters were fabricated in an effort to hide the bribery scheme. 134 Cong. Rec. 20,206–07 (1988).
Since the articles of impeachment did not charge that Judge Hastings's false statements met a materiality standard, it can be inferred that Congress did not endeavor to impeach him for perjury, but only for making false statements. However, it seems obvious that the false statements made by Judge Hastings would have been found by a court to be material.
d. Conclusion The recent judicial impeachments make clear that perjury is an impeachable offense. This is not surprising given that courts have long emphasized the destructiveness of perjury to the judicial system. The Supreme Court has stated that “[p]erjured testimony is an obvious and flagrant affront to the basic concepts of judicial proceedings” United States v. Mandujano, 425 U.S. 564, 576 (1976), that “[f]alse testimony in a formal proceeding is intolerable," and that “[p]erjury should be severely sanctioned in appropriate cases.” ABF Freight System v. NLRB, 510 U.S. 317, 323 (1994).
iii. Conduct not Related to Official Duties The record of Judge Claiborne's impeachment proceedings make it clear that an individual can be impeached for conduct not related to his or her official duties. Hamilton Fish, ranking member of the Judiciary Committee and one of the House managers in the Senate trial, stated that “[i]mpeachable conduct does not have to occur in the course of the performance of an officer's official duties. Evidence of misconduct, misbehavior, high crimes, and misdemeanors can be justified upon one's private dealings as well as one's exercise of public office. That, of course, is the situation in this case.” 132 Cong. Rec. H4713 (daily ed. July 22, 1986).
Representative Fish's views were reinforced by now chairman of the Judiciary Committee and then House manager Henry Hyde, who stated that “the decision to impeach and convict ... stands as an admonition to others in public life. It is an opportunity for Congress to restate and reemphasize the standards of both personal and professional conduct expected of those holding high Federal office.” 132 Cong. Rec. H4716 (daily ed. July 22, 1986). House manager Romano Mazzoli stated that impeachment reached “corruption, maladministration, gross neglect of duties and other public and private improprieties committed by judges and high Government officials which rendered them unfit to continue in office.” 132 Cong. Rec. H4717 (daily ed. July 22, 1986).
Additional evidence that personal misconduct can lead to impeachment is provided by the fact that Judge Claiborne's motion that the Senate dismiss the articles of impeachment for failure to state impeachable offenses was unsuccessful. One of the arguments his attorney made for the motion was that "there is no allegation
that the behavior of Judge Claiborne in any way was related to misbehavior in his official function as a judge; it was private misbehavior.” Senate Claiborne Hearings at 77 (statement of Judge Claiborne's counsel, Oscar Goodman). See also Claiborne Motion at 3.
Representative Kastenmeier responded by stating that “it would be absurd to conclude that a judge who had committed murder, mayhem, rape, or perhaps espionage in his private life, could not be removed from office by the U.S. Senate." Senate Claiborne Hearings at 81. Kastenmeier's response was repeated by the House of Representatives in its pleading opposing Claiborne's motion to dismiss. Opposition to Claiborne Motion at 2. The House went on to state that:
(Claiborne's] narrow view of impeachable offenses expressly was offered and rejected by the Framers of the Constitution.
.. As originally drafted, the impeachment clause provided that the President should be “removable on impeachment and conviction of malpractice or neglect of duty.
. . The provision was subsequently revised to make the President impeachable for “treason, bribery or corruption."
Colonel Mason moved to add the phrase "or maladministration” after “bribery." . . . In response, James Madison objected that “maladministration" was too narrow a standard. Mason soon withdrew his amendment and substituted the phrase "or other high crimes and misdemeanors.” This formulation was accepted, along with an amendment to extend the impeachment sanction to the Vice President and all other civil officers. ... The Framers thus rejected ... the concepts of professional “malpractice” or “maladministration" as the sole basis for the impeachment of federal officials.
The contrary position urged by Judge Claiborne is incompatible with common sense and the orderly conduct of