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Impeachment questions promise a joyous debate

Constitutional buffs are about to have a wonderful winter of disputation. It's always pleasant to argue over the establishment clause or the search-and-seizure clause, but these get to be old hat. Now we have something brand-new _ the impeachment clause.

That is not all. The Senate's exercise of its power to try impeachments is deliciously coupled to double jeopardy. We chortle in our joy.

On Oct. 14 the high court will hear the appeal of Walter L. Nixon, a former U.S. district judge in Mississippi. He was impeached by the House in 1989 for lying to a grand jury about allegations that he sought to influence a state criminal prosecution.

Following a procedure adopted in 1935, the Senate turned the articles of impeachment over to a special committee. The committee heard four days of testimony from 10 witnesses and filed a transcript with the full Senate. On Nov. 1, 1989, the Senate tried the case. The judge himself addressed the chamber for 30 minutes. The Senate deliberated in closed session for six hours, then found him guilty on two of the three articles.

Subsequently Nixon filed suit to overturn the Senate's action. He contended that the committee system violates the Constitution. The Court of Appeals for the District of Columbia refused to go along, and now the case is up for argument before the Supreme Court this month.

While Nixon's case was working its way to the high court, the separate case of Alcee L. Hastings was percolating also. Hastings was a U.S. district judge in Florida. He was charged with conspiring to accept a bribe. In 1983 a trial jury acquitted him.

Hastings' fellow judges in the 11th Circuit believed the judge was lying, and they mounted their own investigation and recommended that he be thrown off the bench. The House voted 413-3 to impeach him. The Senate again delegated the matter to a committee.

In 1989, the committee spent 18 days in hearing from 54 witnesses. It accepted 365 exhibits and compiled 6,000 pages of a printed record. The Senate found Hastings guilty and ordered him removed from office.

Now, three years later, the Hastings case has risen from the ashes. On Sept. 17, U.S. District Judge Stanley Sporkin ruled that the Senate had not accorded Hastings a fair trial. He had not been tried by the whole Senate sitting as a body. Hastings also argued that when the Senate convicted him, he became a victim of double jeopardy: He was being tried twice for the same alleged offenses.

Sporkin surely has brightened the autumn for those of us who revel in constitutional cases. He has forced his superior judges to face a question as old as the republic: To what extent may the federal courts challenge the procedures of Congress?

It has been accepted since the day of John Marshall that the Supreme Court may hold acts of Congress unconstitutional. This is different. The Constitution says that "the Senate shall have the sole power to try all impeachments." The Constitution also says that each chamber may determine the rules of its own proceedings. Members may not be questioned "in any other place" for their official decisions.

Against that background, where do Nixon and Hastings stand? Is the procedure unconstitutional?

The more absorbing question goes to Alcee Hastings' plea of double jeopardy. The evidence against him at his bribery trial was wholly circumstantial. His alleged confederate was caught red-handed, but Hastings got off. Clearly, he was impeached for the identical charges for which a trial jury already had acquitted him.

But if acquittal is a bar to impeachment, a prior conviction must also be a bar. By this reasoning, the Senate could never try the impeachment of a federal official who had been first tried in the criminal courts.

That strikes me as unpersuasive reasoning. As I see it, impeachment is strictly the business of the House and Senate. Prima donnas in the courts would be well advised to stay out of this grand opera. Congress has enough prima donnas of its own.

Universal Press Syndicate

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