The Failed History of Impeachment, Part II: When Impeachment Doesn't Work

[Cross-posted at ProgressiveHistorians, Daily Kos, My Left Wing, Open Left, and Booman Tribune.]

In Part I of this series, I explained the purpose behind these diaries: to explore the failed mechanism of federal impeachment and suggest ways to fix its flaws.  Yesterday, though, we examined only the instances where impeachment worked: nine cases handled according to protocol, with appropriate outcomes and streamlined processes.  Today, we'll look at the flip side of the coin: nine cases where impeachment was inappropriately politicized or should never have occurred at all owing to procedural errors or a lack of other removal methods.

As mentioned in the previous installment, my major source for the following is this PBS timeline; other sources include this U.S. Senate article, and this collection of documents from JusticeLearning, though I've consulted additional sources (including Wikipedia and JSTOR) and my own memory where necessary.

The Political Impeachments

The following four cases constitute some of the most disgraceful moments in the history of the United States Congress.  In each instance, a federal official was brought to the Senate on trumped-up charges and forced to endure a humiliating trial with little evidence whatsoever before finally being acquitted, often by the narrowest of margins.  The fact that this category includes three of the five highest officials ever to be impeached -- two Presidents and a Supreme Court justice -- makes its existence all the more alarming:

  • Samuel Chase (Supreme Court Justice, 1804): Chase, a distinguished jurist and a signer of the Declaration of Independence, was a cantankerous individual and a political opponent of President Thomas Jefferson.  In the first attempt on record to "pack" the Supreme Court, Jefferson presented obviously trumped-up impeachment charges of "making political statements" against Chase to the House of Representatives, who duly impeached the Justice.  In the Senate, Vice President Aaron Burr, who had become a political opponent of Jefferson, conducted the trial with fairness and decorum and enabled Chase to squeak by with a narrow victory.  While the failure of the impeachment against Chase speaks well for the process, what remains troubling is that Chase was impeached at all.

  • Andrew Johnson (President, 1868): You don't have to be a Lost Causer to see this as the most odious of political impeachments.  (Unitary Moonbat has a different take on this -- see here.)  Johnson was a politically inept drunkard and white supremacist who was also a staunch supporter of Abraham Lincoln's lenient Reconstruction policies toward the South.  Unfortunately for Johnson, he also earned the ire of the Radical Republicans who made up the vast majority of Congressmen before the South was readmitted to the Union; these Representatives passed a blatantly unconstitutional law, the Tenure of Office Act, and then impeached Johnson for violating it.  With people all across the North clamoring for Johnson's head, the Constitution was only saved by the courageous actions of seven Republican Senators, who voted with the President and were subsequently hounded from public life by their irate constituents.  Notable among these were James W. Grimes, who dragged himself into the Senate after suffering a stroke to vote against impeachment, and Edmund G. Ross, who was one of the most radical of Republicans but found the impeachment charges to be criminal and unnecessary.
  • Harold Louderback (U.S. District Court Judge, 1933): Louderback was brought up on impeachment charges for allegedly having repaid a Senator who had promoted his candidacy for judge by paying fat receivership fees to the Senator's brother, an officer of Louderback's court.  Nevertheless, the House Judiciary Committee voted to censure, not impeach, Louderback for his conduct.  That should have been the end of it, but Fiorello La Guardia, the fiery New York Republican Congressman who had introduced articles of impeachment in the first place, gave such a fiery speech on the House Floor that he induced the general membership to overturn the Committee's recommendation and vote for impeachment.

    La Guardia was clearly trying to turn the Louderback case into his own personal crusade to gain higher office, and most Senators did not even bother to remain in the chamber during the month-long trial that consumed much of the Senate's time during the first Hundred Days of the New Deal.  Louderback was acquitted on all counts, and on all but one by less than a majority vote.  After the trial, an outraged Senator Henry Ashurst of Arizona convinced the Senate to finally adopt rules allowing most of the evidence in impeachment trials to be heard by the Judiciary Committee rather than by the full Senate.

  • Bill Clinton (President, 1999): The Clinton impeachment is within the political memory of most all who blog today, and for my own generation was a formative event.  Most everyone knows now, as they did then, that the entire impeachment was a trumped-up political ploy; Clinton was essentially impeached, in the memorable words of Barney Frank, for lying about "what did he touch [on Monica Lewinsky] and when did he touch it." The Senate was unable to muster a simple majority on either count of impeachment, though the almost completely party-line vote was a shocking display of the fallibility of impeachment as an appropriate and properly-functioning tool.

The Procedural Errors

Though they were clearly guilty of high crimes and misdemeanors, the following two men would never be impeached at all under current Senate impeachment rules; their appearance in this list is the result of the Senate's misreading of the Constitutional reach of impeachment:

  • William Blount (Senator, 1797): Perhaps the most obviously culpable of the men impeached by Congress, Blount got into trouble when he tried to incite Creek and Cherokee Indians into helping the British Government reconquer Florida, apparently in exchange for a payoff from the British.  This was quite clearly an act of treason, as the official policy of the United States at the time was to obtain Florida at all costs.  Blount was immediately expelled from the Senate when word of this scheme reached Congress in 1797.  However, the House drew up and passed articles of impeachment against Blount.  The Senate considered the matter and concluded that it could not impeach a Senator, only a member of the Executive branch (which is why Blount is the only Congressman ever impeached).

    Improbably, Blount was never formally charged with treason, and even more improbably, he was elected by his constituents to be Speaker of the Tennessee State Senate.  He died right in the middle of this resurrection of his political career, in 1800.  Count this one as a case where the governmental systems surrounding impeachment failed the American people -- even though the Senate was quite correct on the constitutional issue, Blount should have been charged with treason, tried before the Supreme Court, and barred from holding political office.

  • William Belknap (Secretary of War, 1876): The only Cabinet member ever to be impeached by Congress, Belknap had pretty clearly been receiving a string of lavish kickbacks for years in exchange for a military appointment, shocking even the numbed observers of the scandal-ridden Grant presidency.  He ends up in this category not because his guilt is in doubt -- it's not -- but because his trial revolved principally around the question of whether Belknap could be tried even though he had resigned his office before impeachment charges were even voted on by the House.  The Senate voted that he could indeed be tried under these conditions, but the preliminary vote on this issue did not pass the two-thirds majority required for impeachment, foreshadowing the eventual acquittal of Belknap by a similar non-supermajority.  Most of the Senators who voted for acquittal argued they no longer had jurisdiction over Belknap.  Once such a proceeding had been shown to be an exercise in futility, no already-resigned official was ever impeached again.

The Federal Convictions

Why are these guys on this list?  Doesn't the fact that they were convicted of federal felonies make them obviously worthy of impeachment?  I agree that removal from the bench was required for both of these men, but it should not have taken impeachment to accomplish it -- there should be a provision for removing them automatically upon conviction, without wasting the Senate's time:

  • Harry E. Claiborne (U.S. District Court Judge, 1986): Should a federal judge be impeached for falsifying his income tax returns?  If he's spending two years in federal prison for said act yet refuses to resign his judgeship, absolutely.  In its first impeachment trial since Halsted Ritter's conviction in 1936 for exactly the same charge, the Senate removed Claiborne from office by a wide margin.  Strangely, current U.S. Senators Orrin Hatch and Jeff Bingaman voted not guilty on all counts, and Carl Levin voted not guilty on three of the four counts.  Hatch is the former chairman of the Senate Judiciary Committee.
  • Walter L. Nixon (U.S. District Court Judge, 1989): "The other Nixon" had pretty clearly committed perjury before a federal grand jury regarding his possibly illegal intervention into a drug prosecution with which he had personal ties.  Like Harry Claiborne three years earlier, Nixon had already been convicted of the charge by a federal grand jury; the Senate duly ratified that verdict and removed Nixon from the Bench.  Nixon joined with Alcee Hastings in contesting the Senate's right to hear evidence before a subcommittee instead of the full Senate, but a unanimous Supreme Court declared that it had no right to intervene in the process of congressional impeachment.

The Political Acquittal

Finally, we have perhaps the most disgraceful impeachment ever to have been handled by Congress: a judge who was clearly guilty of high crimes and misdemeanors, but who was acquitted by the Senate on partisan grounds:

  • Charles Swayne (U.S. District Court Judge, 1903): A twenty-seven-year impeachment drought was broken by the impeachment of Swayne, who was brought up on a variety of charges ranging from unlawful use of judicial contempt against two attorneys who were attempting to have him removed from the bench (the same charge that had been levied against James H. Peck seventy-three years earlier), to stealing confiscated property and cash from the state, to unlawfully residing outside his district; apparently, this last charge carried the stiffest federal sentence at the time.  Swayne did not even attempt to deny all the charges, arguing instead that they did not rise to the level of high crimes and misdemeanors necessary for impeachment.  Despite the clear terming of Swayne's extradistrict residence as a "high misdemeanor" by the very federal statute that governed it, Senatorial Republicans found Swayne's line of reasoning persuasive and acquitted him on all counts on party lines, denying pro-impeachment forces even a simple majority on any count of impeachment.  The magnanimous Republicans even paid Swayne's legal fees after the trial.

    The Swayne case is notable for several reasons.  First, it marked only the second instance in which impeachment proceedings had been introduced into the House by someone other than a Congressman (the earlier case being Luke Lawless's one-man vendetta against Judge Peck in 1830); in this instance, a joint resolution of the Florida Legislature got the ball rolling.  Second, after the trial took up two and a half months of the Senate's time, Senators first proposed a new mechanism by which the Judiciary Committee could hear evidence of impeachment instead of the full Senate (the plan was not implemented for another thirty years).  Perhaps most importantly, though, Swayne's botched impeachment is an excellent example of how the arcane rules of impeachment enabled an obviously grafting and abusive judge to get off scot-free with no punishment or censure at all.

In the final installment of this series, I'll outline three recommendations for how to fix our broken and battered system of federal impeachment.

< The Failed History of Impeachment, Part I: When Impeachment Works | The Failed History of Impeachment, Part III: How To Fix It >
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