American Civil Liberties Union
First Street, S.E.
Washington, D.C. 20003
I. Constitutional Provisions Relating to Impeachment
II. Excerpts from Jefferson’s Manual
III. The Rules of Procedure and Practice in the Senate when Sitting on Impeachment Trials.
None of the material herein is copyrighted. It is for the free use of a free
people. Mr. Morgan’s letter herein expresses his personal views. That letter and
all other documents herein may be extracted from, reprinted or otherwise freely
used and plagiarized. The interest of the authors and the American civil
Liberties Union in this cause is neither parochial nor organizational. Decent
people, whatever their beliefs, are equally concerned with the safety of their
country. We join them in their struggle.
The Abuses, Injuries and Usurpations
“. . . Experience hath shewn, that Mankind are more disposed to suffer,
while Evils are sufferable, than to right themselves by abolishing the Forms to
which they are accustomed. But when a long Train of Abuses and Usurpations,
pursuing invariably the same Object, evinces a Design to reduce them under
absolute Despotism, it is their Right, it is their Duty, to throw off such
Government, and to provide new Guards for their future Security. . . . The History
of the (President] is a History of repeated Injuries and Usurpations, all having
in direct Object the Establishment of an absolute Tyranny over these States. To
prove this, let Facts be submitted to a candid World. . . .”
The Declaration of Independence
July 4, 1776
October 24, 1973
By this pamphlet you are now called upon to demand the exercise of
We seek to provide you a means by which to effect the peaceful overthrow of
a tyranny. There should be no mistake about it, a usurper has acquired power in
America. He seeks to make it absolute.
He and his aides lie to us on television and berate us for our disbelief. He
speaks to us flanked by a photograph of family and our flag which he wears on
his lapel. Beside him stares a bust of Abraham Lincoln. He confesses to crimes
against the Constitution and believes he speaks exoneration.
He invites all of you to participate in his crimes. He says “they all
do it.” He accepts “responsibility” but not blame. The “blame,”
he feels, belongs to those who opposed him on his rise to power.
He degrades our institutions by his appointments and causes essentially
decent men and women to rationalize and engage in personal cover-ups.
In this manner he seeks to corrupt an entire people whom he invites to
participate, with our House of Representatives, in a politician’s cover-up.
He speaks of law and order and discharges the public’s prosecutor. He
secretly records the conversations of his friends and withholds them, then
offers them, in a tantalizing gesture, to an outraged people. He relies on
Executive Privilege and the institution of their Presidency.
He orders generals to stop investigations and hires a general to issue his
orders. He uses lawyers to subvert the law, press spokesmen to lie to the press,
investigators to cover up investigations, and patriotism to subvert the
Mr. Nixon asks us to rationalize his way to our own corruption. An untried
Mr. Nixon confronts us with an unparalleled opportunity for the corruption not
merely of our government and our Representatives, but, more importantly, our
people — each of us.
At the first Watergate trial, Judge Sirica adjourned the proceedings and
announced a holiday. The President of the United States was to be inaugurated.
The Judge had made arrangements for the jury to view the parade from the
Smiling and charming Jeb Stuart Magruder went about his duties as Executive
Director of the Inauguration Committee — 1973. Three days later Mr. Magruder
faced that jury and perjured himself.
A few months later we learned that the contritely confessing Mr. Magruder
had sought the position of Executive Director of the American Revolution
Bicentennial Commission. He wished to preside over the two hundredth anniversary
of our Declaration of Independence. In a galaxy of despair, this was but a
We would not have learned of this — nor of a constellation of crimes
against our people and their Constitution — had not Frank Wills, a 24 year-old
night watchman at the Watergate complex, discovered that a second piece of tape
covered a basement door latch. Without rationalization or evasion, Mr. Wills
simply did his duty. He telephoned the police.
Frank Wills’ telephone call provided us an opportunity to save ourselves,
our children and their children. That telephone call was not as dramatic as Paul
Revere’s cries on an eventful night long ago, but it was as effective and as
“The people are corrupt, they don’t care, they are apathetic,” is
the common lament of the cynical American. Yet decent American citizens,
conservative and liberal alike, have defended our freedoms with a fervor and
impartiality rarely found in the membership of our House of Representatives:
- Witness a 68 year-old United States District Judge, often the target of
liberal critics, who refused to allow his personal integrity to be clouded by a
trial prosecuted by Mr. Nixon’s appointees and defended by those paid from Mr.
Nixon’s campaign money.
- Witness West Virginia’s junior United States Senator, Robert Byrd, who said
a conservative “no” to the consent sought for Mr. Nixon’s
appointee-director of the Federal Bureau of Investigation and asked the
embarrassing questions of L. Patrick Gray, III, which brought the facts of the
Watergate Affair to your attention.
- Witness Sam J. Ervin, a 76 year-old southern Senator, who assumed personal
responsibility when members of the House of Representatives evaded their
responsibility to investigate these events. He sought facts for the people while
others cowered and covered up.
- Witness Bob Woodward and Carl Bernstein, Washington Post reporters
who led the established media which had been bludgeoned into bland “fairness”
by Mr. Nixon’s government. These two young reporters, confronted with the truth,
in turn confronted first their employers and thereafter, you. They gave you the
facts upon which to base your judgments.
- Witness a 61 year-old law professor, steeped in conservatism — by
temperament a mediator, arbitrator and negotiator — who had not faced combat
before a trial jury for at least three decades. Archibald Cox, the Special
Prosecutor who seeks evidence from Mr. Nixon and is ordered to cover-up, says no
and is dismissed by Mr. Nixon.
How could the cynical Americans be right when each of these men discharged
their duties and moved with honesty to exercise their personal responsibility?
These few honest men brought us to this day. In a very real sense they deserve “the
love and thanks of man and woman.” For these men whose ages span half a
century were the answer to Tom Paine’s call in The Crisis, Number I. Paine
These are the times that try men’s souls. The summer soldier and the
sunshine patriot will, in this crisis, shrink from the service of his country;
but he that stands it NOW, deserves the love and thanks of man and woman.
Tyranny, like hell, is not easily conquered; yet we have this consolation with
us, that the harder the conflict, the more glorious the triumph. What we obtain
too cheap, we esteem too lightly: — ‘Tis dearness only that gives every thing its
value. Heaven knows how to put a proper price upon its goods; and it would be
strange indeed, if so celestial an article as Freedom should not be highly
rated. Britain, with an army to enforce her tyranny, has declared that she has
a right (not only to TAX) but “to BIND us in ALL
CASES WHATSOEVER,” and if being bound in that manner, is
not slavery, then is there not such a thing as slavery upon earth. Even the
expression is impious, for so unlimited a power can belong only to God.
In contrast, the members of the House of Representatives procrastinate and
rationalize. They refuse to act, agreeing only to “inquire into the
existence of facts” publicly known and obvious to almost all Americans.
Once again they lack the courage and the sense of personal responsibility which
citizens have a right to expect from their leaders.
The people have that courage and they search for leaders.
And now there comes the time for all of us. When this nation was founded,
the General Congress declared that certain truths are “self-evident,”
certain rights “unalienable,” and “That to secure these Rights,
Governments are instituted among Men, deriving their just Powers from the
Consent of the Governed.”
Neither I nor the American Civil Liberties Union ask for Mr. Nixon’s
conviction. We merely ask that he be impeached and brought to trial before the
Senate, so that the nature of his offenses, if any, and his innocence or his
guilt may be determined.
We seek his trial so that another American President will not be able to say
“they all do it,” for with no trial we can predict a later President
will do it and the next time there may be no watchman in the night to provide us
The parts of this First Pamphlet have been prepared by my companions Hope
Eastman, Mary Ellen Gale, Aryeh Neier and Arlie Schardt. They explain the
impeachment process and the undisputed evidence available to support our
resolution seeking Mr. Nixon’s trial. This pamphlet is intended to provide you a
working knowledge and history of the process. Extracts from Thomas Paine’s Common
Sense are provided to offer you a comparison between our times and his.
Suggestions as to a course of democratic action are included.
This pamphlet is for your free use and quotation in taking the case for
impeachment to the people.
The strategy — if publicly announced plans can be termed a strategy —
Firstly, the people must understand the process of impeachment. They must be
advised that we seek to bring Mr. Nixon to trial in the Senate and that the “bringing”
process is impeachment. Too many citizens believe that impeachment is the end
of the process rather than its beginning.
Secondly, we must thrust upon the members of the House of Representatives —
our employees — the depth of our feeling and the rightness of our position.
The public evidence is so clear that the least educated of their constituents
know it, yet our Representatives dawdle in inquiry.
Mr. Justice Holmes said that unfortunately, we often “need education in
the obvious more than investigation of the obscure.”
If the majority of our citizens who say “all politicians are alike”
are wrong, let the politicians prove it. If they do not prove it, in 1974 the
people can hire a new set of politicians, Representatives who will.
The time for action is now and you the citizen stand at center stage. Only
you can answer our Declaration which cries out to free men everywhere:
In every stage of these Oppressions we have Petitioned for Redress in the
most humble Terms: Our repeated Petitions have been answered only by repeated
Injury. A Prince, whose Character is thus marked by every act which may define
a Tyrant, is unfit to be the Ruler of a free People.
It is testing time in America and it is your very soul which is on trial.
Charles Morgan, Jr.
RESOLUTION ON IMPEACHMENT OF
RICHARD M. NIXON*
BY THE BOARD OF
THE AMERICAN CIVIL LIBERTIES UNION
SEPTEMBER 30, 1973**
WHEREAS, there is now substantial public evidence of President Nixon’s
participation in high crimes and misdemeanors; and
WHEREAS, these acts have violated the civil liberties of the people of the
United States and the rule of law;
THEREFORE, the American Civil Liberties Union calls upon the House of
Representatives of the Congress of the United States to initiate impeachment
proceedings against Richard M. Nixon.
Impeachment should be predicated on the following grounds affecting civil
He and his closest aides have organized and conducted a deliberate assault
on civil liberties by authorizing massive invasions of the First Amendment
rights of citizens of the United States. On July 23, 1970, he personally
approved the “Huston Plan” for domestic political surveillance and
espionage by such methods as burglary, wiretapping and eavesdropping, mail
covers, and military spying on civilians.1
These methods of political surveillance were employed against dissenters,
political opponents, news reporters and government employees.2 He and his aides employed governmental
powers to harass and punish critics of his administration regarded by them as “enemies.”3 He and his aides interfered with a
free press through the use of wiretaps, FBI investigations and threats of
criminal prosecutions.4 He
secretly recorded conversations in his own office without advising the
participants. 5 He and his
aides interfered with the right of peaceable assembly and protest as in the
arrests of thousands of persons on May Day, 1971, and on many other occasions.6
He has usurped the war-making powers of Congress as in the bombing of
neutral Cambodia, and he deliberately concealed the bombing-from Congress and
the people of the United States; and he has announced he would do so again
under similar circumstances.7
He established within the White House a personal secret police (the “plumbers”),
operating outside the restraints of the law, which engaged in criminal acts
including burglaries, warrantless wiretaps, espionage and perjury.8
He and a principal aide offered a high federal post to the presiding judge
during the Ellsberg trial, and, for a prolonged period, he withheld from the
courts knowledge of the burglary of the office of Dr. Ellsberg’s psychiatrist.9
He and his aides interfered with and distorted the administration of justice
through such acts as his effort to limit the scope of the FBI investigation of
the Watergate break-in.10 He
and his aides caused the politically motivated and unjustified prosecutions of
dissenters and corrupted the constitutional function of grand juries to make
them instruments of political surveillance and harassment. 11
He has perverted and attempted to pervert the operation of various federal
agencies including the Department of Justice,12 the National Security Council,13 the Secret Service,14 the State Department,15 the Defense Department16 and the Central Intelligence Agency17 by engaging them
in political surveillance and in the falsification of information made
available to Congress and the American public.
*Annotations setting forth specific
facts upon which the resolution is based are set forth separately in the
section following (“Annotations to the Resolution”). The footnotes in
the resolution make reference to numbered parts of the Annotations. The
Annotations are not intended to set forth all or even the major part of the
evidence against Mr. Nixon. They do set forth some of the undisputed
substantial public evidence of Mr. Nixon’s culpability and some of Mr. Nixon’s
statements in which he admits the commission of high crimes and misdemeanors.
**The announcement of adoption
of the resolution was made on October 4, 1973. It said:
NEW YORK, N. Y., Oct. 4, 1973 . . . . The American Civil Liberties Union today
(10/4) called for the impeachment of Richard M. Nixon.
The organization, pursuant to a vote by its Board of Directors, last Sunday
called for the President’s impeachment on six grounds “affecting civil
liberties,” including specific, proved violations of the rights of
political dissent; usurpation of Congressional war-making powers; establishment
of a personal secret police which committed crimes; attempted interference in
the trial of Daniel Ellsberg; distortion of the system of justice; and
perversion of other federal agencies.
1. In his written statement to the
nation on May 22, 1973, Mr. Nixon stated:
on June 25  the committee submitted a report which included specific
options for expanded intelligence operations, and on July 23 the agencies [FBI,
CIA, Defense Intelligence Agency, National Security Agency] were notified by
memorandum of the option approval. After reconsideration, however, prompted by
the opposition of Director Hoover, the agencies were notified 5 days later, on
July 28, that the approval had been rescinded. The options initially approved
had included authorization for surreptitious entry — breaking and entering, in
effect — on specified categories of targets in specified situations related to
The text of the plan approved by Mr. Nixon appeared in The New York
Times on June 7, 1973. It directed that there be “intensification”
of electronic surveillance; that restrictions on mail covers be “relaxed”;
that “restraints on the use of surreptitious entry are to be removed”;
that all “restraints, which limit [college campus surveillance] are to be
removed”; and that existing practices on the use of military undercover
agents be retained.
The plan came to be called the “Huston plan,” after its principal
author, Tom Charles Huston. The initiative for drawing up the plan came
directly from Mr. Nixon according to H. R. Haldeman. On July 31, 1973,
Haldeman testified before the Senate Watergate Committee that:
The inception of the so-called Huston plan was a meeting that the President
called. First, Mr. Huston, as a staff man, had done some preliminary work on
analysis of the problem, and of the shortcomings that appeared to be in
existence at that time with relation to the problem and the effort to deal
with. it, as a result of which, the President called a meeting of the heads of
the various security agencies, the FBI, the NSA, the CIA, and the DIA.
2. The May 22 statement by Mr. Nixon
dealt directly with the subject of wiretaps. The President said:
a special program of wiretaps was initiated in mid-1969 and terminated in
February 1971. . . . I authorized this entire program.
Mr. Nixon claimed in the May 22 statement that the wiretaps were “legal
at the time.” This was apparently a reference to the fact that it was not
until June 19, 1972, two days after the June 17, 1972 Watergate break-in
arrests, that the United States Supreme Court had an opportunity to rule
specifically on such wiretaps. The Supreme Court was unanimous (Mr. Justice
Rehnquist not participating) in holding such taps unconstitutional.
Mr. Nixon’s declaration is tantamount to saying that nothing is illegal
until it has finally been held illegal by the Supreme Court. By this criterion,
murder, rape or arson, if committed in the name of national security, would not
be illegal because the Supreme Court has never ruled in such a case. The
Supreme Court decision in June 1972 did not establish the illegality of the
wiretapping practices instituted by the President, it merely confirmed their
The May 22 statement also dealt with the creation of the “plumbers,”
the group which committed burglaries and other illegal acts. Mr. Nixon stated:
during the week following the Pentagon Papers publication, I approved the
creation of a Special Investigations Unit within the White House — which later
came to be known as the “plumbers.” This was a small group at the
white House whose principal purpose was to stop security leaks and to
investigate other sensitive security matters.
Two members of the plumbers were convicted of participation in the break-in
at the Watergate headquarters of the Democratic National Committee. On
September 24, 1973, E. Howard Hunt testified before the Senate Watergate
Committee that while he was on the White House staff he and G. Gordon Liddy
participated in the burglary of the offices of Dr. Lewis Fielding, Daniel
Ellsberg’s psychiatrist. Hunt said that funds for the burglary were provided by
Charles W. Colson, Special Counsel to Mr. Nixon. On July 24, 1973, a memorandum
from Egil Krogh and David Young of the plumbers was read into the record of the
Senate Watergate hearings. It proposed “covert” operations to obtain
Ellsberg’s psychiatrist’s files. John Ehrlichman acknowledged approving the
3. In his testimony before the Senate
Watergate Committee on July 30, 1973, H. R. Haldeman confirmed John W. Dean
III’s earlier testimony that supporters of political opponents of the President
had been targeted for harassment by the Internal Revenue Service.
Haldeman stated that, at a meeting on September 15, 1972, at which Mr. Nixon
presided, there was:
discussion of the reluctance of the IRS to follow up on complaints of
possible violations against people who were supporting our opponents. . . .
4. In his May 22 statement, Mr. Nixon explained the wiretapping of newsmen by
stating that it was made necessary by “news accounts . . . which were
obviously based on leaks.” Those whose telephones were tapped included
Marvin Kalb of CBS, Hedrick Smith of The New York Times, William Beecher of The
New York Times (now employed by the Pentagon) and Joseph Kraft, a syndicated
columnist. Targets of FBI investigations included Daniel Schorr of CBS News. On
December 3, 1971, Senator Ervin wrote to Mr. Nixon inquiring about the
investigation of Schorr. A White House aide responded on behalf of Mr. Nixon
that “Mr. Schorr was being considered for a post that is presently filled
and a routine job investigation was commenced without notifying Mr. Schorr.”
During the Senate Watergate hearings, Haldeman conceded that this explanation
was a lie. On August 1, 1973, the following exchange took place:
Senator Montoya: “Why would you order a check in that context? Was Mr.
Schorr being considered for an appointment?”
H. P. Haldeman: “No, he was not.”
Threats of criminal prosecution were made against The New York Times
and The Washington Post following publication of the Pentagon Papers
and against The New York Times again in the fall of 1972 when it
published an anti-Nixon advertisement. Les Whitten of columnist Jack Anderson’s
staff was arrested following the occupation of the Bureau of Indian Affairs and
Tom Oliphant of The Boston Globe was arrested while covering the
occupation of Wounded Knee. Charges against Whitten and Oliphant were
5. The recording of conversations in
Mr. Nixon’s office and on his telephone were first disclosed in the testimony
of Alexander Butterfield at the Senate Watergate hearings on July 16, 1973. It
is a violation of the regulations of the Federal Communications Commission to
record a telephone conversation without advising all parties to the
conversation that it is being recorded. The FCC regulation has the force of law.
Additionally, those who spoke on the telephone with persons other than Mr.
Nixon (and the three other persons within the White House who knew of the
recording devices) were effectively wiretapped within the meaning of the
criminal provisions of 18 U.S.C. §§ 2510 et seq. (The Omnibus Crime
Control and Safe Streets Act of 1968).
6. Between May 3 and May 5, 1971, more
than 13,000 people were arrested in Washington D. C., in the largest mass
arrest in the nation’s history. On May 5, 1971, a spokesman for Mr.
Nixon, William Rehnquist (then an Assistant Attorney General and later
appointed to the Supreme Court by Mr. Nixon) invented the doctrine of “qualified
martial law” to justify the arrests. Virtually all the arrests were later
declared illegal by the courts. While responsibility for enforcing the law in
connection with demonstrations normally rests with local officials, in the case
of these arrests, direction carne from the White House. On April 17, 1971, Mr.
Nixon issued an executive order specifically assigning responsibility for the
law enforcement response of the entire executive branch during the spring
protests to Attorney General John N. Mitchell, who directed local Police
operations. (In Washington, D. C., the “Mayor” and the “City
Council” were appointed by Mr. Nixon. The police responsiveness to Mr.
Nixon’s directives is, therefore, understandable, even if their conduct during
the demonstrations is not excusable.)
Mr. Nixon’s responsibility for suppression of the right of peaceable
assembly on other occasions is exemplified by the events of “Billy Graham
Day,” in Charlotte, North Carolina, on October 15, 1971. Mr. Nixon visited
Charlotte to speak at the Charlotte Coliseum that day. A federal court in North
Carolina has found that widespread violations of civil liberties took place.
The Court stated:
The various defendants, pursuant to common plan or design and under the
immediate control and supervision of the Secret Service defendants,
systematically, arbitrarily, and discriminatorily and without pretense of due
process of law, committed wholesale assaults, exclusions, embarrassments,
slanders and deprivations of free speech, of right to freedom of assembly and
right to petition for redress of grievances and other such transgressions upon
plaintiffs and others without legal or other cause, or excuse, in violation of
the First, Fourth, Fifth, and Fourteenth Amendments to the Constitution of the
The Court decision was handed down by U.S. District Judge James B. McMillan
on July 31, 1973. The next day, H. R. Haldeman testified before the Senate
Watergate Committee to his own role in supervising the actions of the Secret
Service on “Billy Graham Day.” A memorandum was introduced into
evidence on which Haldeman had written “Good” next to a statement
that demonstrators would be violent and would be carrying obscene signs against
Mr. Nixon and “Great” next to a statement that the activity would also
be directed against Billy Graham. The memorandum concluded: “Question:
Should we continue with our plan to prevent demonstrators from entering the
Coliseum?” Next to that appeared a handwritten “Yes” and under
it the initial “H” and the notation, “As long as it is local
police and local volunteers doing it, not our people.”
7. Mr. Nixon responded to criticism of
the secret bombing of Cambodia in an address to the Veterans of Foreign Wars in
New Orleans on August 20, 1973. In that address, Mr. Nixon acknowledged
responsibility for the secret bombing, stating:
Now, specifically, as some of you know, the President of the United States
has been accused of a secret bombing campaign against the defenseless and
neutral country of Cambodia in 1969. That was two months after I became
President. I want to tell you the facts about that, what happened, and let you
judge for yourself what kind of decision you would have made as Commander in
Chief of the Armed Forces of the United States at that time. I remember the
meeting in which that decision was made. Mr. Laird, who was then Secretary of
Defense, remembers; he was there. Henry Kissinger, to whom you will give an
award tonight, remembers it; he was there. The chairman of the CIA was there.
The Secretary of State, Secretary Rogers was there.
As to the exclusion of Congress (which is given sole power under the
Constitution to declare war) from the decision-making, Mr. Nixon stated in his
Now, as for secrecy, as I have indicated, the fact that the bombing was
disclosed to appropriate Government leaders, the ones I just referred to, and
to appropriate Congressional leaders, those in the Military Affairs Committee
like Eddie Hebert . . . there was no secrecy as far as Government leaders were
concerned, who had any right to know or need to know.
In addition to asserting that only members of Congress who could be expected
to approve the bombing (like “Eddie Hebert”) had a “right to
know or need to know” about it, Mr. Nixon asserted that the bombing had to
be kept secret from the American public because, had it been announced, “the
bombing would have had to stop.
In the VFW speech, Mr. Nixon affirmed his decision to do so again under
similar circumstances. He stated:
If American soldiers in the field today were similarly threatened by an
enemy and if the price of protecting those soldiers was to order air strikes to
save American lives, I would make the same decision today that I made in
February of 1969.
8. As indicated in footnote 1 above, Mr. Nixon reported on his own role in
the establishment of a personal secret police force, the “plumbers,” in
his May 22, 1973 statement to the nation. Footnote 2 notes the responsibility
of members of this group for the Watergate break-in and the burglary of the
offices of Dr. Lewis Fielding. Espionage activities by the plumbers include the
forging of cables relating to the assassination of President Diem of South
Vietnam. On September 24, 1973, E. Howard Hunt responded to a series of
questions from Samuel Dash, Chief Counsel of the Senate Watergate Committee, as
Dash: “And what did you understand him to mean when he said to improve
upon the record?”
Hunt: “To create, to fabricate cables that could substitute for the
missing chronological cables.”
Dash: “Did you in fact fabricate cables for the purpose of indicating
the relationship of the Kennedy Administration and the assassination of Diem?”
Hunt: “I did.”
Dash: “And did you show these fabricated cables to Mr. Colson?”
Hunt: “I did.”
Dash: “What was his response to the fabricated cables?”
Hunt: “He indicated to me that he would probably be getting in touch
with a member of the media, of the press, to whom he would show the cables.”
One of those who perjured himself was Jeb Stuart Magruder, who had been a
member of the White House staff and who was at the time of his perjury in
charge of Mr. Nixon’s inauguration as President of the United States. John W.
Dean III pled guilty to a charge which included the subornation of perjury. On
June 14, 1973, Magruder responded to a question from Dash, as follows:
Dash: “When you testified to the grand jury [investigating the
Watergate break-in by the plumbers] that time, did you testify to the false
Magruder: “Yes, I did.”
Magruder went on to say that in return for his perjured testimony:
They (Mitchell, Mardian, LaRue and Dean) made assurances about income and
being taken care of from the standpoint of my family and a job afterwards and
also that there would be good opportunity for executive clemency. But having
worked at the White House and being aware of our structure there, I did not
take that as meaning that had a direct relationship to the President at all.
Subsequently, Magruder pled guilty in court to the charge of perjury. At
this time he is awaiting sentence.
Additionally, the five defendants who pled guilty in the original Watergate
trial represented to the District Court that the theory of the case presented
by the prosecution was substantially accurate. The testimony before the Senate
Watergate Committee was internally contradictory and constitutes perjury. Who
is guilty of the perjury remains to be determined.
9. On July 25, 1973, John D. Ehrlichman
testified to the Senate Watergate Committee:
The conversation which I had with Judge Byrne [presiding judge in the
Ellsberg case] on the telephone was substantially this: I said, “Judge, I
have been asked by the President to call you. I have been asked to discuss with
you a Federal appointment which is not judicial in character. I do not know
whether this is an appropriate time for us to have a conversation like this
because I do not know what the present situation in your trial is.” The
impression I had from the newspapers was that the case was in its last stages. .
Ehrlichman testified that he had two meetings with Judge Byrne and that Mr.
Nixon was briefly present at one of the meetings. The conversations were
concluded, he testified, with his statement to Judge Byrne:
Well, I think the way we have to leave this is that I now know you have an
interest [in the FBI Directorship] and obviously the President has to reserve
his options completely as to whether there is an offer to you or not.
In his news conference on August 22, 1973, Mr. Nixon commented on the
discussion between Ehrlichman and Judge Byrne. He said:
Now, why did the meeting with Mr. Ehrlichman take place? Because we had
determined that Mr. Gray could not be confirmed, as you will recall we were on
a search for a Director of the FBI. . . . Mr. Ehrlichman called Mr. Byrne. He
said: Under no circumstances will we talk to you — he, Ehrlichman, will talk to
you — if he felt that it would in any way compromise his handling of the
The burglary of the office of Dr. Ellsberg’s psychiatrist was raised
at the Senate Watergate hearings on July 24, 1973. Chief Counsel Samuel Dash
asked John Ehrlichman about the burglary.
I think if it is clearly understood that the President has the
constitutional power to prevent the betrayal of national security secrets, as I
understand he does, and that is well understood by the American people, and an
episode like that is seen in that context, there shouldn’t be any problem.
Dash read from a memorandum to Ehrlichman from Egil Krogh and David Young
(members of the plumbers) dated August 11, 1971. The memorandum stated:
In this connection we would recommend that a covert operation be undertaken
to examine all the medical files still held by Ellsberg’s psychoanalyst
covering the two-year period in which he was undergoing analysis.
Ehrlichman was asked by Dash about the memorandum:
Dash: “There is an ‘E,’ which I take it you would recognize as your
‘E,’ and in handwriting which I would ask if it is your handwriting, the
approve, and the handwriting is, ‘if done under your assurance that it is not
Ehrlichman: “That is correct.”
In his May 22, 1973 statement to the nation, Mr. Nixon stated:
On April 25, 1973, Attorney General Kleindienst informed me that because the
Government had clear evidence that Mr. Hunt was involved in the break-in of the
office of the psychiatrist who had treated Mr. Ellsberg, he, the Attorney
General, believed that despite the fact that no evidence had been obtained from
Hunt’s acts, a report should nevertheless be made to the court trying the
Ellsberg case. I concurred, and directed that the information be transmitted to
Judge Byrne immediately.
In a statement on August 15, 1973, Mr. Nixon revised this story. He said:
On May 22 I said that “it was not until the time of my own
investigation that I learned of the break-in at the office of Mr. Ellsberg’s
Psychiatrist, and I specifically authorized the furnishing of this information
to Judge Byrne.” After a careful review, I have determined that this
statement of mine is not precisely accurate. It was on March 17 that I first
learned of the break-in at the office of Dr. Fielding, and that was four days
before the beginning of my own investigation on March 21. I was told then that
nothing by way of evidence had been obtained in the break-in. On April 18 I
learned that the Justice Department had interrogated or was going to
interrogate Mr. Hunt about this break-in. I was gravely concerned that other
activities of the Special Investigations Unit (plumbers) might be disclosed,
because I know this could seriously injure the national security. Consequently,
I directed Mr. Petersen [Assistant Attorney General] to stick to the Watergate
investigation and stay out of national security matters.
Although Mr. Nixon, by his own account, knew about the burglary of the
office of Mr. Ellsberg’s psychiatrist by March 17, 1973, he did not direct that
the information be made known to Judge Byrne until 39 days later, April 25,
1973. The meetings between Mr. Ehrlichman and Judge Byrne, including the
meeting at which Mr. Nixon was present took place during the intervening
period. All this time, the trial was going on. Additionally, Ehrlichman
acknowledged that he knew of the break-in during 1971 and that Dean told him
that prosecutors Henry Petersen and Earl J. Silbert had knowledge of this a year
prior to its disclosure. They denied this knowledge, Mr. Petersen admitting
that they had seen documents and copies of photography recording the break-in
long before April, 1973, but explaining that they could not relate them to the
10. In his May 22, 1973 statement,
Mr. Nixon reported on his own role in limiting the FBI investigation of the
Watergate break-in. He stated:
People who had been involved in the national security operations [the
plumbers] later, without my knowledge or approval, undertook illegal activities
in the political campaign of 1972.
Elements of the early post-Watergate reports led me to suspect, incorrectly,
that the CIA had been in some way involved. They also led me to surmise,
correctly, that since persons originally recruited for covert national security
activities had participated in Watergate, an unrestricted investigation of
Watergate might lead to and expose those covert national security operations.
I sought to prevent the exposure of these covert national security
activities, while encouraging those conducting the investigation to pursue
their inquiry into the Watergate itself. I so instructed my staff, the Attorney
General, and the Acting Director of the FBI.
I also instructed Mr. Haldeman and Mr. Ehrlichman to ensure that the FBI
would not carry its investigation into areas that might compromise these covert
activities, or those of the CIA.
11. Political prosecutions of
dissenters have included the trials in Camden, Harrisburg and Gainesville, all
of which were marked by the extensive participation of provocateurs in the
alleged conspiracies. The Gainesville arrests took place just prior to the 1972
Republican National Convention and involved charges of conspiring to disrupt the
The political use of grand juries is well documented. In 1971, at least 13
federal grand juries investigated political dissenters using compelled
testimony as a surveillance device and the power to send people to jail for
contempt as an instrument of harassment.
12. The perversion of the Department
of Justice, in addition to the matters cited in footnotes 10 and 11, included
the Department’s role in furnishing information to the Committee to Re-elect
the President. For example, on May 18, 1973, James W. McCord, who had been an
employee of CREP, was asked about this by Senator Weicker of the Senate
Weicker: “Did you or the Committee to Re-elect the President receive
reports from the Internal Security Division of the Justice Department?”
McCord: “Yes, sir, I did.”
McCord’s testimony was confirmed by former Justice Department officials
including former Attorney General John Mitchell and former Assistant Attorney
General Robert Mardian.
The perversion of the Justice Department is also exemplified by L. Patrick
Gray’s actions, while he was Acting Director of the FBI, in burning the files
taken from Hunt which were given to Gray by Ehrlichman and Dean. On August 3,
1973, Gray testified before the Senate Watergate Committee that:
It is true that neither Mr. Ehrlichman nor Mr. Dean expressly instructed me
to destroy the files. But there was, and is, no doubt in my mind that
destruction was intended. Neither Mr. Dean nor Mr. Ehrlichman said or implied
that I was being given the documents personally merely to safeguard against
As I believe each of them has testified before this committee the White
House regarded the FBI as a source of leaks. The clear implication of the
substance and tone of their remarks was that these two files were to be
destroyed and I interpreted this to be an order from the Counsel to the
President of the United States, issued in the presence of one of the two top
assistants to the President of the United States.
Gray went on to testify that he “burned them during Christmas week
 with the Christmas and household paper trash.”
John N. Mitchell testified before the Senate Watergate Committee that he
made Political Policy decisions and fully participated in partisan political
activities on behalf of Mr. Nixon while Mitchell was serving as Attorney
General of the United States in the early months of 1972.
13. As assistant to the President for
National Security Affairs, Dr. Henry Kissinger directed the work of the
National Security Council. According to papers filed in Federal court in the
District of Columbia on August 15, 1971, Dr. Kissinger conceded that in 1969,
acting in his official capacity, he prepared a list of names of persons
who were to be surveilled. Those whose telephones were tapped at Dr.
Kissinger’s instance included news reporters, government employees and
political campaign aides of Senator Muskie, then the leading candidate for the
Democratic nomination for the Presidency.
A staff member of the National Security Council, David Young, was designated
to organize and direct the plumbers.
14. As indicated in footnote 6, a
federal court has found the Secret Service responsible for wholesale violations
of individual rights.
The Secret Service was also the agency which managed the secret taping of
conversations on Mr. Nixon’s telephone and in his office, referred to in
The Secret Service also admitted installing the wiretap on the telephone of
Donald Nixon, brother of the President.
15. On September 24, 1973, F. Howard
Hunt testified before the Senate Watergate Committee that he was given access
to the State Department’s cables covering the period of the Diem assassination.
As noted in footnote 8, Hunt fabricated some cables to make it appear that
President Kennedy plotted the assassination of Diem.
The State Department participated in deceiving the American public about the
bombing of Cambodia.
16. The Defense Department conducted
the secret bombing of Cambodia and deceived the American public about it.
17. The CIA was made a participant in
limiting the FBI investigation of the Watergate break-in. The Deputy Director
of the CIA, General Vernon A. Walters, testified on this point before the
Senate Watergate Committee on August 3, 1973. He reported a meeting with
Richard Helms, Director of the CIA, and H. R. Haldeman, Mr. Nixon’s Chief of
Walters testified that:
Mr. Helms said that he had told Mr. Gray on the previous day, the Acting
Director of the FBI, that there was not agency involvement, that none of the
investigations being carried out by the FBI were in any way jeopardizing any
agency activity. Mr. Haldeman then said, “Nevertheless, there is concern
that this investigation in Mexico may expose some covert activity of the CIA,
and it has been decided that General Walters will go to Director Gray and tell
him that the further pursuit of this investigation in Mexico,” and I wish
to emphasize that the only question of investigation involved was Mexico, “the
investigation in Mexico could jeopardize some assets of the Central
General Walters testified that he carried out Haldeman’s instructions and
told Gray: “The continuation of the FBI investigation in Mexico,
could — might uncover some covert activities of the Central Intelligence Agency.”
On August 2, 1973, General Robert F. Cushman, who had been named in 1971 to
become Commandant of the Marine Corps, testified to the Senate Watergate
Committee that while he was Deputy Director of the CIA, he furnished F. Howard
Hunt with equipment for use by the plumbers. Cushman testified that he did so
at the direction of John Ehrlichman.
For the first time since the trial of President Andrew Johnson, the
impeachment and trial of a President of the United States is being seriously
discussed and recommended. Under our Constitution, and in the British system
from which it is derived, impeachment was conceived as most important for
control of the excesses of the Executive. In England it was the primary tool in
the democratic struggle, Parliament’s struggle, for supremacy over the King. In
our Constitution, impeachment was the primary means provided the people,
through their Congress, for protection from the Presidency, an office which the
Founders, who had experienced dictatorship by the King, distrusted even as they
were creating it.
II. The English Experience
Impeachment is a legitimate child of history, born out of the English
Parliament’s long struggle to strip the King and his ministers of their
absolute power and to expand the rights of the people.1
Beginning in the late 14th century during the reign of Edward III, the House
of Commons and House of Lords, newly separated from each other, flexed their
political muscle by removing several corrupt and oppressive ministers from
office despite their rank and favor with the King. Following the pattern which
was to be incorporated into the Constitution of the United States 400 years
later, the Commons proposed and the Lords disposed, i.e. the Commons impeached
and the Lords tried and sentenced.
The purpose of impeachment in this period was to reach “persons of the
highest rank and favor with the Crown . . . whose elevated situation placed them
above the reach of complaint from private individuals, who, if they failed in
obtaining redress, might afterwards become the objects of resentment of those
whose tyrannical oppression they had presumed to call into question.”
With the advent of the powerful Tudors some 75 years later, the Parliament
temporarily lost its power and impeachment of offenders too high and mighty to
be brought before the bar of common justice fell into disuse. But revived by
the excesses against the usurpation in the 17th century, Parliament, of the
Stuarts, again struck out of power the King’s favorites.
More than fifty impeachments were brought to trial in England between 1621
and 1787, when the framers of the American Constitution began their work.3 History told them that impeachment
was not the “last resort” of desperate men 4 but was, instead, a powerful, regular, and important
tool for the control of executive power.
Edmund Burke, opening the trial of Hastings before the House of Lords,
described impeachment as a vital check on the heedlessness of power:
It is by this process, that magistracy which tries and controls all other
things, is itself tried and controlled. Other constitutions are satisfied with
making good subjects; this is a security for good governors. It is by this
tribunal, that statesmen, who abuse their power, are accused by statesmen, and
tried by statesmen, not upon the niceties of a narrow jurisprudence, but upon
the enlarged and solid principles of state morality. It is here, that those,
who by the abuse of power have violated the spirit of law, can never hope for
protection from any of its forms: — it is here, that those, who have refused to
conform themselves to its perfections, can never hope to escape through any of
its defects. It ought, therefore, my lords, to become our common care to guard
this your precious deposit, rare in its use, but powerful in its effect, with a
religious vigilance, and never to suffer it to be either discredited or
In the words of the House of Commons in 1679, impeachment was “the
chief institution for the preservation of the government.”6
As early as 1388, convicting six judges on impeachment charges brought by
the House of Commons, the Lords declared themselves bound not by the common
laws of the inferior courts but only by the precedents of Parliament.7
And in 1642, with the impeachment of
the Earl of Strafford for treason, Parliament laid the foundations for a
representative government in which the highest officials would be accountable
to the people and subject, like them, to the rule of law.
The Commons charged Strafford with subverting the fundamental law and
introducing an arbitrary and tyrannical government.8 Treason, declared John Pym, a leader of the Commons,
embraced acts which altered “the settled frame and constitution of
government” as well as acts against the king himself.9 “If it be treason to kill the governor,” said
another member of Commons, “then sure ’tis treason to kill the
Over the years, the House of Commons impeached for a wide variety of
misconduct, including both violations of the criminal law and conduct which
violated no law. A list of the charges illustrates that impeachment lay for
such broad categories of misdeed as subversion of the constitution, betrayal of
trust, neglect of duty, corruption, and encroachment on the prerogatives of
III. The American Experience
Impeachment in the American experience was a reflection of the seventeenth
century struggle by Parliament to curb ministers who were the tools of royal
Nearly all of the early state constitutions followed English tradition and
provided for the impeachment of wayward officials, on grounds which included
endangering the safety of the state through “mal-administration,
corruption or other means,”13
misconduct and mal-administration in office,14 or “misdemeanor or default.”15 On July 20, 1787, the delegates
to the Constitutional Convention, drawing on the English and colonial
experience, debated the question, “Shall the Executive Be Removable on
Impeachments?” The answer was a resounding yes.16
Although impeachment was ultimately applied to all “civil”
officers of the United States, the Founders were preoccupied by control of the
Executive. George Mason of Virginia, later author of much of the Bill of
Rights, declared that “when great crimes were committed he was for
punishing the principal as well as the Coadjutors.”
Shall any man be above Justice? Above all shall that man be above it, who
can commit the most extensive injustice?17
William R. Davie of North Carolina considered impeachment “an essential
security for the good behaviour of the Executive,” for if not impeachable
while in office, “he will spare no efforts or means whatever to get
“Guilt wherever found ought to be punished,” said Virginia Governor
Edmund Randolph. He thought impeachment necessary because the executive would
have great opportunities for abuse of power, especially the power to wage war.19
Historically, impeachable offenses in the United States as well as England
have been defined as public wrongs by public men. In the discussion which
determined the wording of Article II, S 4, George Mason objected to limiting
the grounds for impeachment to treason and bribery. In response to English
excesses based on a loose, sometimes retrospective definition of treason, the
American Constitution had closely defined and limited treason charges to
certain conduct.20 Mason
warned that treason as so defined would not reach many “great and dangerous
offenses” which ought to be impeachable, such as “[a]ttempts to
subvert the Constitution.”21
After Madison had rejected the addition of “maladministration,” Mason
proposed and the Convention adopted the term “high crimes and
phrase was a technical term in English law, used primarily in connection with
impeachment proceedings to reach abuses of the public trust.23 English precedents make it clear
that “high” crimes and misdemeanors were not ordinary crimes.24 A “high” crime
signified an act against the state as opposed to an act against a private
person.25 Injury to the
nation was the gravamen of the offense.
James Wilson, later a Supreme Court Justice and second only to Madison as a
constitutional architect, in law lectures delivered shortly after ratification,
declared that “impeachments are confined . . . to political crimes and
misdemeanors, and to political punishments.”26 James Iredell, another future Supreme Court Justice
and chief advocate of ratification in North Carolina, told the ratifying
convention that impeachment was designed “to bring great offenders to
punishment” for “high crime and misdemeanor against the government. . . .
[T]he occasion for its exercise will arise from acts of great injury to the
community.” 27 In
The Federalist No. 65 Alexander Hamilton described impeachment as intended
to reach “the misconduct of public men” and “abuse or violation
of some public trust.” Impeachable offenses are political, said Hamilton, “as
they relate chiefly to injuries done immediately to the society itself.”28
One such political and impeachable offense encompasses the failure of the
President to exercise his constitutional responsibility to control his
appointees and agents. This was made abundantly clear in the very first
Congress held two years after the Constitution was drafted. Debating the power
of the President to remove his appointees from office without Senate consent,
James Madison eloquently explained:
. . . it may, perhaps, on some occasion, be found necessary to impeach the
President himself; surely, therefore, it may happen to a subordinate officer,
whose bad actions may be connived at or overlooked by the President. . . .
I think it absolutely necessary that the President should have the power of
removing from office; it will make him, in a peculiar manner, responsible for
their conduct, and subject him to impeachment himself, if he suffers them to
perpetrate with impunity high crimes or misdemeanors against the United States,
or neglects to superintend their conduct, so as to check their excesses. On the
Constitutionality of the declamation I have no manner of doubt.29
Even those who disagreed with Madison’s expansive view of Presidential power
agreed with his view of Presidential responsibility. The President should be “as
responsible as possible,” said Elbridge Gerry of Massachusetts.30 The First Congress, by a wide
majority, declared that the power to remove presidential appointees resided in
the President alone.31 The
President, after all, was responsible for their acts.
Eighty years later President Andrew Johnson, impeached by the House and on
trial before the Senate, defended himself against accusations that he had
usurped Congressional powers by removing a member of his cabinet despite a
hastily-passed statute forbidding him to do so. In words similar to Madison’s,
The legal relation is analogous to that of the principal and agent. It is
the President upon whom the Constitution devolves, as head of the executive
department, the duty to see that the laws are faithfully executed; but as he
cannot execute them in person, he is allowed to select his agents, and is made
responsible for their acts within just limits. So complete is the presumed
delegation of authority in the relation of a head of department to the
President, that the Supreme Court of the United States have decided that an
order made by a head of department is presumed to be made by the President
Johnson suggested that Congress had reversed the proper grounds for
impeachment; if he had allowed a faithless appointee to remain in office, he
himself would have been ripe for impeachment.
Despite such overwhelming evidence, some have concluded either that “an
impeachable offense is whatever a majority of the House of Representatives
considers it to be at a given moment in history,” as then Congressman
Gerald R. Ford asserted in proposing the impeachment of Justice William O.
Douglas in 1970,33 or that
impeachable offenses are limited to indictable crimes, as Douglas’ attorney
maintained in reply.34
But the clear lesson of history is otherwise. As the scholars point out, in
the twelve impeachments, eleven of which were brought to trial before the
Senate, and in some 50 other instances where impeachment of federal officials
has been seriously considered, Congress has refused on one hand to ignore the
limiting principles set by the Constitutional framers and on the other to cramp
the impeachment power within the strict confines of criminal law.35 In the
words of Edmund Burke, Congress, for the most part, has accused and tried
statesmen who abuse their power “not upon the niceties of a narrow
jurisprudence, but upon the enlarged and solid principles of state morality.”
Of the cases brought to trial before the Senate, only four have resulted in
conviction and removal from office. All four were federal judges — John
Pickering in 1804, West H. Humphreys in 1862, Robert W. Archbald in 1912, and
Halsted L. Ritter in 1936.
Pickering was drunken, senile, and insane, clearly unable to perform his
duties as a federal judge.36
In addition he had the misfortune to be a Federalist in the time of
Jeffersonian ascendancy — and the misjudgment to base judicial decisions on his
Humphreys, United States District Court Judge in Tennessee, was impeached
and convicted for conduct described as “high crimes and misdemeanors,”
after he ceased holding federal court and commenced acting as a judge for the
Archbald, a member of the ill-fated Commerce Court, used his position and
influence to obtain favors from litigants who appeared before him.39
Ritter was charged with practicing law while in office and evading income
taxes — charges which he admitted while denying wrongful intent.40 The Senate failed to obtain the
necessary two-thirds vote on the specific criminal and other accusations against
Ritter, but convicted him on the grounds that his conduct was such as to
prejudice the public view of the courts’ fairness.41
Two of the acquittals added important footnotes to history.
The acquittal of Senator William Blount in 1797 established the questionable
precedent that, despite the constitutional reference to “all civil
officers,” Senators are not impeachable.42
Although the Senate acquitted William W. Belknap, former Secretary of War,
in 1876, it rejected his argument that impeachment lay only against present
officeholders and ruled that his resignation did not bar further impeachment
proceedings. This precedent has strong roots in English and colonial
impeachment theory. Impeachment of past officers served the end of barring them
from future office. John Adams thought himself impeachable for past misbehavior
in public office “so long as I have the breath of life in my body.”43
The most famous acquittals involved Supreme Court Justice Samuel Chase in
1805 and President Andrew Johnson in 1868 — the latter trial failing by just
one vote of the two-thirds majority for conviction.
Chase, a “terror on the bench,” bullied counsel, witnesses, and
juries.44 Even his friend,
Chief Justice John Marshall, described his judicial conduct as “tyrannical,
oppressive, and overbearing.” 45
Chase vigorously enforced the Alien and Sedition Laws, going so far as to
announce his decision on one case in advance of the trial and refusing to excuse
a juror who expressed similar sentiments.46 Nonetheless, after an impeachment trial marked by
political extremism on both sides, Chase was acquitted.47
Johnson, protagonist in a bitter struggle between Congress and the executive
branch over Reconstruction, was impeached for refusing to implement the Tenure
of Office Act, which curtailed Presidential power to remove his appointed
officials without Senate consent. Johnson claimed the law was unconstitutional
— a position the Supreme Court eventually adopted.48 Yet, as noted above, Johnson did not seek to divorce
Presidential power from Presidential accountability. Instead, Presidential
accountability for the acts of his subordinates was the very basis of President
Johnson’s defense. He had to be able to remove his appointees for he was
responsible for their acts; and indeed he could be impeached for their acts.
There are no indications that, had the issues been presented to the courts, the
President would have failed to bow to the judicial branch’s interpretation of
Of the other cases where impeachment charges were considered but not
brought, a substantial majority involved federal judges accused of financial
corruption. Perhaps the best-known was that of Martin T. Manton, Chief Judge of
the Second Circuit Court of Appeals, who resigned in public disgrace in 1939.
Impeachment proceedings were dropped, but Manton was later tried, convicted,
and sentenced to two years in jail.50
Twenty-one other federal judges have resigned in the face of House
investigations for financial misconduct. Five others were censured but not
impeached, four were cleared by investigation, and two were turned over to the
Attorney General for possible criminal prosecution.51 Other judges have been accused of but not impeached
for incompetence, drunkenness, and prejudice.
The history of impeachment “shows that it works. It is not a rusty
unused power.”52 It
has been successfully used to curb breaches and abuses of public trust. Although
as Berger points out, “the lion’s share of the debate about impeachment in
the last forty years”53
has focused on removal of judges, it is vital to keep in mind that restraint on
the Executive was the Founders’ primary target. Indeed, impeachment was
conceived chiefly as a “bridle” upon the President and his
Impeachment in this context is one of the ultimate sanctions of the American
constitutional system, a part of the arrangement of checks and balances.
Impeachment and trial is a means to determine the guilt or innocence of the
government official accused. It is the means to remove from office those found
guilty of treason, bribery, and other high crimes and misdemeanors. But, most
importantly, it is the means to declare that certain acts subvert the political
principles on which our system of government itself is based.
1. This history is drawn primarily
from the following secondary sources: R. Berger, Impeachment: The
Constitutional Problems (1973); J. D. Ferrick, Impeaching Federal
Judges: A Study of the Constitutional Provisions, 39 Fordham L. Rev. 1
(1970); F. Thompson, Jr. & D.H. Pollitt, Impeachment of Federal Judges:
An Historical Overview, 49 N. Car. L. Rev. 87 (1970).
2.4 John Hatsell, Precedents of
Proceedings in the House of Commons, 63 (London, 1796).
3. Most of these were brought before
1725. 1 Sir William S. Holdsworth, A History of English Law 382 (3d ed.
1922). But the controversial impeachment of Warren Hastings, led by Edmund
Burke, was under way in England while the Federal Convention sat in
Philadelphia, as the framers of the Constitution well knew. Berger, supra,
at 3, 86.
4. See Berger, supra,
5. 7 Works of Edmund Burke, 13-14
6. Holdsworth, supra, at-383;
Berger at 1.
7. 4 Hatsell, Precedents of
Proceedings in the House of Commons 64 (1796).
8. John Rushworth, Historical
Collections 8 (1721); Berger, supra, at 32.
9. Rushworth, supra, at 6697;
Berger, supra, at 33.
10. C. Russell, The Theory of
Treason in the Trial of Strafford, 80 Eng. Hist. Rev. 30, 38 (1965);
Berger, supra, at 34.
11. The charges are summarized and
characterized in Berger, supra, at 67-71.
12. Berger, supra, at 4.
13. Delaware Constitution of
1776, 1 B. Poore, The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the United States, 276-277 (2.d.1868);
Virginia Constitution of 1776, 2 Poore 1912.
14. Massachusetts Constitution of
1780, 1 Poore 963; New Hampshire Constitution of 1784, 2 Poore 1286.
15. Connecticut Charter of 1662,
1 Poore 254.
16. 2 M. Farrand, The Records
of the Federal Convention of 1787, 61, 69 (1937 ed.)
17. Id. at 65.
18. Id. at 64.
19. Id. at 67.
20. Article III, Section 3, clause
1 provides: “Treason shall consist only in levying War against them, or in
adhering to their Enemies, giving them Aid and Comfort.”
21. 2 Farrand 550.
23. 4 Blackstone, Commentaries
121; Berger, supra. at 7A-75. The framers understood this term had such
a technical meaning. During the Constitutional Convention, it was proposed that
extradition would be for treason, felony or “high misdemeanor.”
Recognizing that “high misdemeanor” had a technical meaning, limited
to impeachable offenses against a state, the words “other crimes”
were substituted to convey more clearly the notion of serious but not political
misdemeanors. Farrand, The Records of the Federal Convention of 1787,
443 (New Haven-1911-37); discussed in Berger at pp. 74, 86.
24. Berger at 62.
25. Id. at 61.
26. 1 Works of James Wilson
426 (McCloskey ed. 1967).
27. 3 J. Elliot, The Debates in
the Several State Conventions on the Adoption of the Federal Constitution
113 F2d ed. 1836).
28. The Federalist, No. 65,
at 17 (Tudor Pub. Co. ed. 1937)
29. House Comm. on the Judiciary,
93rd Cong., lst Sess., Impeachment: Selected Materials 10-11
(Comm. Print 1973).
30. Id. at 18.
31. Id. at 20.
32. A. Johnson,. Message to the
Senate (Dec. 12, 1867), attached as Exhibit B to his Answer to the Articles of
Impeachment, submitted to the Senate on March 23, 1868.
33. 116 Cong. Record H.
3113-14 (April 15, 1970); Berger at 53.
34. S. H. Rifkind, Memorandum on
Impeachment of Federal Judges, reprinted in Special Subcomm. on H. Res. 920
of the House Judiciary Comm. 91st Cong., 2d Sess., Legal Materials on
Impeachment 24 (1970). The same arguments were made by those who sought to
impeach, and those who sought to defend, President Andrew Johnson. 3 Hinds’
Precedents of the House of Representatives, Sec. 2008 (1907).
35. Ferrick, supra, note 1;
36. Thompson & Pollitt, supra,
37. Turner, The Impeachment of
John Pickering, 54 Am-Hist. Rev. 485, 490 (1949).
38. 3 Hinds’ Precedents of the
House of Representatives of the United States § 2384, at 805 and §
2390, at 810 (1907).
39. Ferrick, supra note 1.
40. 80 Congressional Record
41. Id. at 5602-06.
42. See Potts, Impeachment
as a Remedy, 12 St. Louis L.Rev. 15, 18-23 (1927).
43. Speech of 9 April 1846, Congressional
Globe, 29th Cong.,
1st Sess. 641.
44. Thompson & Pollitt, supra
note 1; 3 A. Beveridge, Life
of John Marshall 46-47 (1919).
45. A. Beveridge, Life of John
Marshall 195 (1919).
46. Id. at 37-39.
47. Id. at 219-220.
48. Myers v. United States,
272 U. S. 52 (1926).
49. Berger, 292-294.
50. J. Borkin, The Corrupt
Judge 79-80 (1962).
51. Thompson & Pollitt, supra,
52. Thompson and Pollitt, supra,
53. Berger at 297.
54. Id. at 122.
“[A] method of national inquest into the conduct of public men.”
Alexander Hamilton in The Federalist, No. 65.
Impeachment proceedings are not criminal — consequently, the procedures are
more relaxed than criminal procedures. Under the Constitution, the House of
Representatives serves not as judges or jurors but as the prosecutor. The Senate
chamber is the courtroom, and the Senate is the jury. The sole penalty is
removal from office and disqualification from further office. The only
non-judicial trial process authorized by the Founders, impeachment provides a
political remedy for political offenses.
The terminology of impeachment is sometimes confusing because the word “impeach”
is often used to describe three distinct steps in the process. Any member of
the House may rise to “impeach,” in the form of floor speech or
introduction of a resolution or a memorial. The House votes to “impeach”
when it adopts articles of impeachment, roughly analogous to an indictment. At
the conclusion of the subsequent Senate trial, the Senators vote to acquit or
convict. A Senate conviction is often inaccurately referred to as “impeachment.”
In fact, it is only the House which impeaches; the Senate convicts.
The procedures which the House and Senate follow during the impeachment
process are governed by three sources:1
the Constitution itself, Jefferson’s Manual (a document written by Thomas
Jefferson which is still one of the sources of the parliamentary practice of the
House of Representatives), and Rules of Procedure and Practice in the
Senate When Sitting on Impeachment Trials.
The Constitution’s procedural commands are quite simple: The House of
Representatives has the sole power to impeach; the Senate has the sole power to
try those impeached by the House and can convict only on a two thirds vote; the
penalties are limited to removal and disqualification from office; the Chief
Justice presides over the Senate when the President is to be tried.
The teachings of Jefferson’s Manual, along with the accumulated
precedents from past impeachments which are collected therein, supply the
framework within which the House acts.
The process of impeachment in the House may begin in a variety of ways: by
charges made on the floor by a member; by resolution or testimonial; by charges
transmitted from the President, a state legislature, a grand jury; or in
response to facts derived and reported by an investigating committee of the
House. Indeed, “common fame,” such as facts contained in newspaper
reports, has at times led the House to order an investigation with a view
toward impeachment. As Thomas Jefferson, drawing on a 1625 Resolution of
Parliament, said. “Common fame is a good ground for the House to proceed by
inquiry, and even to accusation.”
The House has always had one of its existing committees or a
specially-created Select Committee examine the charges before it has voted to
impeach. In some instances committees initiated inquiries ex parte
(without providing the accused notice and an opportunity to testify). However,
later practice favors permitting the official to testify, present witnesses,
cross-examine, and be represented by counsel.
If the investigating Committee recommends impeachment, it sends to the House
a resolution and articles of impeachment which specify the grounds of
accusation. These are then debated and voted upon, a majority vote of those
present being required to bring the President to trial. The House then selects
“managers” to prosecute the impeachment in the Senate trial. In the
past, House managers have been chosen by the Speaker or by majority vote of
House members. The House managers then transmit the articles of impeachment to
the Senate. The Senate, in turn, informs the House when it is ready to proceed
with the trial.
The Senate trial is governed by the Senate Rules of Procedure mentioned
above. When the President is on trial, the Chief Justice presides. The trial
begins with the Chief Justice administering an oath to the Senate members. Each
must swear or affirm that he or she will “do impartial justice according
to the Constitution and laws.” The accused is then summoned to appear and
answer the charges. The accused may appear personally or by counsel. A failure
to appear personally or by counsel is treated as the equivalent of a plea of “not
The proceedings are somewhat similar to, but far more flexible than, those
applicable in either a civil or criminal trial. Both sides may present
witnesses and evidence and the accused has the right to cross-examine
witnesses. Procedural questions which arise during the trial, such as questions
of evidence, are ruled upon by the Chief Justice. However, at the request of a
single member, he may be overruled by a majority vote of the Senators present.
The Constitution specifically provides that conviction requires a two-thirds
vote of the Senators present. The Senate rules require a separate vote on each
article (charge). A two-thirds vote on a single article is sufficient for
The Constitution limits the penalties to removal from office and
disqualification from future office.
1 Relevant portions of these three
documents are attached as an Appendix.
I. CONSTITUTIONAL PROVISIONS RELATING TO IMPEACHMENT
The Constitution refers to impeachment in five separate sections:
The President, Vice President and all civil Officers of the United States,
shall be removed from Office on Impeachment for, and Conviction of, Treason,
Bribery, or other high Crimes and Misdemeanors. [Article II, section 4.]
The House of Representatives . . . shall have the sole Power of Impeachment.
[Article I, section 2.]
The Senate shall have the sole Power to try all Impeachments. When sitting
for that Purpose, they shall be on Oath or Affirmation. When the President of
the United States is tried, the Chief Justice shall preside: And no Person
shall be convicted without the Concurrence of two thirds of the Members
Judgment in Cases of Impeachment shall not extend further than to removal
from Office, and disqualification to hold and enjoy any Office of honor, Trust
or Profit under the United States: but the Party convicted shall nevertheless
be liable and subject to Indictment, Trial, Judgment and Punishment, according
to Law. [Article I, section 3.] [The President] shall have Power to grant Reprieves and Pardons for Offences
against the United States, except in Cases of Impeachment. [Article II, section
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury, .
. . [Article III, section 2.]
SEC. LIII — IMPEACHMENT
These are the provisions of the Constitution of the United States on the
subject of impeachments. The following is a sketch of some of the principles
and practices of England on the same subject:
§601 Jurisdiction of Lords and Commons as to Impeachments
The Lords can not impeach any to themselves, nor join in the accusation,
because they are the judges. Seld. Judic. in Parl, 12, 63. Nor can they
proceed against a commoner but on complaint of the Commons. Ib., 84. The
Lords may not, by the law, try a commoner for a capital offense, on the
information of the King or a private person, because the accused is entitled to
a trial by his peers generally; but on accusation by the House of Commons, they
may proceed against the delinquent, of whatsoever degree, and whatsoever be the
nature of the offense; for there they do not assume to themselves trial at
common law. The Commons are then instead of a jury, and the judgment is given
on their demand, which is instead of a verdict. So the Lords do only judge, but
not try the delinquent. Ib., 6, 7. But Wooddeson denies that a commoner
can now be charged capitally before the Lords, even by the Commons; and cites
the Fitzharris case, 1681, impeached of high treason, where the Lords remitted
the prosecution to the inferior court. 8 Grey’s Deb., 325-7; 2 Wooddeson,
576, 601; 3 Seld., 1604, 1610,1618, 1619, 1641; 4 Blackst., 25; 9 Seld., 1656;
73 Seld., 1604-18.
§602 Parliamentary Law as to Accusation in Impeachment
The Commons, as the grand inquest of the nation, becomes suitors for penal
justice. 2 Wood., 597; 6 Grey, 356. The general course is to pass a
resolution containing a criminal charge against the supposed delinquent, and
then to direct some member to impeach him by oral accusation, at the bar of the
House of Lords, in the name of the Commons. The person signifies that the
articles will be exhibited, and desires that the delinquent may be sequestered
from his seat, or, be committed, or that the peers will take order for his
appearance. Sachev. Trial, 825; 2 Wood., 602, 605; Lords’ Journ., 3 June,
1701; 1 Wms., 616; 6 Grey, 324.
§603 Imception of Impeachment Proceeding in the House
the House of Representatives there are various methods of setting an impeachment
in motion: by charges made on the floor on the responsibility of a Member or
Delegate (II, 1303; III, 2342, 2400, 2469; VI, 525, 526, 528, 535, 536); by
charges preferred by a memorial, which is usually referred to a committee for
examination (III, 2364, 2491, 2494, 249G, 2499, 2515; VI, 552); or by a
resolution dropped in the hopper by a Member and referred to a committee (April
15, 1970, p. 11941-2); by a message from the President (III, 2294, 2319; VI,
498); by charges transmitted from the legislature of a State (III, 2469) or
Territory (III, 2487) or from a grand jury (III, 2488); or from facts developed
and reported by an investigating committee of the House (III, 2399, 2444).
A direct proposition to impeach is a question of high privilege in the House
and at once supersedes business otherwise in order under the rules governing
the order of business (III, 20-45-2048; VI, 468, 469). It may not even be
superseded by an election case, which is also a matter of high privilege (III,
2581). It does not lose its privilege from the fact that a similar proposition
has been made at a previous time during the same session of Congress (III,
2408), previous action of the House not affecting it (III, 2053). So, also,
propositions relating to an impeachment already made are privileged (III, 2400,
2402, 2410), such as resolutions providing for selection of managers of an
impeachment (VI, 517), proposing abatement of impeachment proceedings (VI, 514);
but a resolution simply proposing an investigation, even though impeachment may
be a possible consequence, is not privileged (III, 2060,2546;VI,463). But where
a resolution of investigation positively proposes impeachment or suggests that
end, it has been admitted as of privilege (III, 2051, 2052, 2401, 2402).
§605 Investigation of Impeachment Charges
having been made on the floor by a Member (III, 2342, 2400; VI, 525, 526, 528,
535, 536), or charges suggesting impeachment having been made by memorial (III,
2495, 2516; 2520, VI, 552), or even appearing through common fame (III, 2385,
2506), the House has at times ordered an investigation at once. At other times
it has refrained from ordering investigation until the charges had been
examined by a committee (III, 2364, 2488, 2491, 2492, 2494, 2504, 2513).
§341 Common Fame as Ground for Investigation
is a good ground for the House to proceed by inquiry, and even to accusation. Resolution House of Commons, 1 Car., 1, 1625; Rush, L. Parl.,
115; Grey, 16-22, 92; 8 Grey, 21, 28, 27, 45.
In the House of Representatives common fame has been held sufficient to
justify procedure for inquiry (III, 2701), as in a case wherein it was stated
on the authority of “common rumor” that a Member had been menaced
(III, 2678). The House also has voted to investigate with a view to impeachment
on the basis of common fame, as in the cases of Judges Chase (III, 2342),
Humphreys (III, 2385), and Dwell (III, 2506).
§606 Procedure of Committee in Investigating
The House has
always examined the charges by its own committee before it has voted to impeach
(III, 2204, 2487, 2501). This committee has sometimes been a select committee
(III, 2342, 2487, 2494), sometimes a standing committee (III, 2400, 2409). In
some instances the committee has made its inquiry ex parte (III, 2319, 2343,
23GG, 23S5, 2403, 2496, 2511); but in the later practice the sentiment of
committees has been in favor of permitting the accused to explain, present
witnesses, cross-examine (III, 2445, 2471. 2318), and be represented by
counsel (III, 2470, 2501, 2511, 2516).
§607 Impeachment Carried to the Senate
Its committee on
investigation having reported, the House may vote the impeachment (III, 2367,
2412), and, after having notified the Senate by message (III, 2413, 2446), may
direct the impeachment to be presented at the bar of the Senate by a single
Member (III, 2294), or by two (III, 2319, 2343, 2367), or even five Members
(III, 2445). These Members in one notable case represented the majority party
alone, but ordinarily include representation of the minority party (III, 2445,
2472, 2105). The chairman of the committee impeaches at the bar of the Senate
by oral accusation (III, 2413, 2446, 2473), and requests that the Senate take
order as to appearance; but in only one case has the parliamentary law as to
sequestration and committal been followed (III, 21 IS, 2296), later inquiry
resulting in the conclusion that the Senate had no power to take into custody
the body of the accused (III, 2324, 2367). Having delivered the impeachment
the committee return to the House and report verbally (III, 2413, 2446, 501).
§608 The Writ of Summons for Appearance of Respondent
If the party do not appear, proclamations are to issued, giving him a day to
appear. On their return they are strictly examined. If any error be found in
them, a new proclamation issues, giving a short day. If he appear not, his
goods may be arrested, and they may proceed. Seld. Jud., 98, 99.
The managers for the House of Representatives attend in the Senate after the
articles have been exhibited and demand that process issue for the attendance
of respondent (III, 2451, 2478), after which they return and report verbally to
the House (III, 2423, 2451, VI, 50f). The Senate thereupon issue a writ of
summons, fixing the day of return (III, 2423, 2451); and in a case wherein the
respondent did not appear by person or attorney the Senate published a
proclamation for him to appear (III, 2393). But the respondent’s goods were not
§609 Exhibition and Form of Articles
accusation (articles) of the Commons is substituted in place of an indictment.
Thus, by the usage of Parliament, in impeachment for writing or speaking, the
particular words need not be specified. Sach. Tr., 825; 2 Wood., 60-0, 605;
Lords’ Journ., 8 June, 1701; 1 Wms., 616.
The House of Representatives exhibits its articles after the impeachment has
been carried to the bar of the Senate. The managers, who are elected by the
House (III, 21000, 2345, 2417, 244,S) or appointed by the Speaker (III, 23S8,
2475), carry the articles in obedience to a resolution of the House (III, 2417,
2419, 2448) to the bar of the Senate (III, 2420, 2449, 2476), the House having
previously informed the Senate (III, 2419, 2448) and received a message
informing them of the readiness of the latter body to receive the articles
(III, 2078, 2325, 2345). Having exhibited the articles the managers return
and report verbally to the House (III, 2449, 2476). The articles in the Belknap
impeachment were held sufficient, although attacked for not describing the
respondent as one subject to impeachment (III, 2123). These articles are signed
by the Speaker and attested by the Clerk (III, 2302, 2440), and in form approved
by the practice of the House (III, 2420, 2449, 2476).
§610 Parliamentary Law as to Appearance of Respondent
he appear, and the case be capital, he answers in custody; though not if the accusation be general. He is
not to be committed but on special accusations. If it be for a misdemeanor
only, he answers, a lord in his place, a commoner at the bar, and not in
custody, unless, on the answer, the Lords find cause to commit him, till he
finds sureties to attend, and lest he should fly. Seld. Jud., 98, 99. A
copy of the articles is given him, and a day fixed for his answer. T. Ray.;
1 Rushw., 268; Fost., 232; 1 Clar. Hist. of the Reb., 379. On a
misdemeanor, his appearance may be in person, or he may answer in writing, or
by attorney. Seld. Jud., 100. The general rule on accusation for a
misdemeanor is, that in such a state of liberty or restraint as the party is
when the Commons complain of him, in such he is to answer. Ib., 101. If.
previously committed by the commons, he answers as a prisoner. But this may be
called in some sort judicium parium suorum. Ib. In misdemeanors the party has
a right to counsel by the common law, but not in capital cases. Seld. Jud.,
§611 Requirements of the Senate as to Appearance of Respondent
paragraph of the parliamentary law is largely obsolete so far as the practice of
the House of Representatives and the Senate are concerned. The accused may
appear in person or by attorney (Ill, 2127, 2349, 2424), or he may not
appear at all (Ill, 2307, 2333, 2393). In case he does not appear the
House does not ask that he be compelled to appear (Ill. 2308), but the
trial proceeds as on a plea of “not guilty.” It has been decided that
the Senate has no power to take into custody the body of the accused (Ill,
2324, 2367). The writ of summons to the accused recites the articles and
notifies him to appear at a fixed time and place and file his answer (Ill,
2127). In all cases respondent may appear by counsel (Ill, 2129),
and in one trial, when a petition act forth that respondent was insane, the
counsel of his son was admitted to be heard and present evidence in support of
the petition, but not to make argument (Ill, 2333).
§619 Judgement in Impeachments
Judgment. Judgments in
Parliament, for death have been strictly guided per legem terrae, which they
can not alter; and not at all according to their discretion. They can neither
omit any part of the legal judgment nor add to it. Their sentence must be
secundum non ultra legem. Seld. Jud., 168, 171. This trial, though it
varies in external ceremony, yet differs not in essentials from criminal
prosecutions before inferior courts. The same rules of evidence, the same legal
notions of crimes and punishments, prevailed; for impeachments are not framed
to alter the law, but to carry it into more effectual execution against too
powerful delinquents. The judgment, therefore, is to be such as is warranted by
legal principles or precedents. 6 Sta. Tr., 14; 2 Wood., 611. The
Chancellor gives judgment in misdemeanors; the Lord High Steward formerly in
cases of life and death. Seld. Jud., 180.
But now the Steward is deemed not necessary. Fost., 144; 2 Wood., 613.
In misdemeanors the greatest corporal punishment hath been imprisonment. SeId.
Jud., 184. The King’s assent is necessary to capital judgments (but
2 Wood., 614, contra), but not in misdemeanors. Seld. Jud.186.
The Constitution of the United States (Art. I, sec. 3, par. 7) limits the
judgment to removal and disqualification.
§620 Impeachment not Interrupted by Adjourments
An impeachment is not discontinued by the dissolution of Parliament, but may be
resumed by the new Parliament. T. Ray 888; 4 Com. Journ., 28 Dec., 1790;
Lords’ Jour., May 15, 1791; 2 Wood., 618.
In Congress impeachment proceedings are not discontinued by a recess (III,
2299, 2304, 2344, 2375, 2407, 2505); and the Pickering impeachment was
presented in the Senate on the last day of the Seventh Congress (III, 2320);
and at the beginning of the Eighth Congress the proceedings went on from that
point (III, 2321). But an impeachment may proceed only when Congress is in
session (III, 2006, 2462).
Following are the major provisions of rules used by the Senate during
impeachment trials. With the exception of Rule X1, which was adopted May 26,
1935, the rules have remained unchanged since their adoption March 2,
1868, for the trial of President Johnson.
I. Whensoever the Senate shall receive notice from the House of
Representatives that managers are appointed on their part to conduct an
impeachment against any person and are directed to carry articles of
impeachment to the Senate, the Secretary of the Senate shall immediately inform
the House of Representatives that the Senate is ready to receive the managers
for the purpose of exhibiting such articles of impeachment, agreeably to such
II. When the managers of an impeachment shall be introduced at the bar of
the Senate and shall signify that they are ready to exhibit articles of
impeachment against any person, the Presiding Officer of the Senate shall
direct the Sergeant at Arms to make proclamation . . . after which the articles
shall he exhibited, and then the Presiding Officer of the Senate shall inform
the managers that the Senate will take proper order on the subject of the
impeachment, of which due notice shall be given to the House of Representatives.
III. Upon such articles being presented to the Senate, the Senate shall, at
1 o’clock afternoon of the day (Sunday excepted) following such presentation,
or sooner if ordered by the Senate, proceed to the consideration of such
articles and shall continue in session from day to day (Sundays excepted) after
the trial shall commence (unless otherwise ordered by the Senate) until final
judgment shall be rendered, and so much longer as may, in its judgment, be
needful. Before proceeding to the consideration of the articles of impeachment,
the Presiding Officer shall administer the oath hereinafter provided to the
members of the Senate then present and to the other members, of the Senate as
they shall appear, whose duty it shall be to take the same.
IV. When the President of the United States or the Vice President of the
United States, upon whom the powers and duties of the office of President shall
have devolved, shall be impeached, the Chief Justice of the Supreme Court of
the United States shall preside; and in a case requiring the said Chief Justice
to preside notice shall be given to him by the Presiding Officer of the Senate
of the time and place fixed for the consideration of the articles of
impeachment, as aforesaid, with a request to attend; and the said Chief Justice
shall preside over the Senate during the consideration of said articles and upon
the trial of the person impeached therein.
V. The Presiding Officer shall have power to make and issue, by himself or
by the Secretary of the Senate, all orders, mandates, writs, and precepts
authorized by these rules or by the Senate, and to make and enforce such other
regulations and orders in the premises as the Senate may authorize or provide.
VI. The Senate shall have power to compel the attendance of witnesses, to
enforce obedience to its orders, mandates, writs, precepts and judgments, to
preserve order, and to punish in a summary way contempts of, and disobedience
to its authority, orders, mandates, writs, precepts, or judgments, and to make
all lawful orders, rules, and regulations which it may deem essential or
conducive to the ends of justice. And the Sergeant at Arms, under the direction
of the Senate, may employ such aid and assistance as may be necessary to
enforce, execute and carry into effect the lawful orders, mandates, writs, and
precepts of the Senate.
VII. The Presiding Officer of the Senate shall direct all necessary
preparations in the Senate Chamber, and the Presiding Officer on the trial
shall direct all the forms of proceedings while the Senate is sitting for the
purpose or trying an impeachment, and all forms during the trial not otherwise
specially provided for. And the Presiding Officer on the trial may rule all
questions of evidence and incidental questions, which ruling shall stand as the
judgment of the Senate, unless some member of the Senate shall ask that a
formal vote be taken thereon, in which case it shall be submitted to the Senate
for decision; or he may at his option, in the first instance, submit any such
question to a vote of the members of the Senate. Upon all such questions the
vote shall be without a division, unless the yeas and neas be demanded by
one-fifth of the members present, when the same shall be taken.
VIII. Upon the presentation of articles of impeachment and the organization
of the Senate as herein before provided, a writ of summons shall issue to the
accused, reciting said articles, and notifying him to appear before the Senate
upon a day and at a place to be fixed by the Senate and named in such writ, and
file his answer to said articles of impeachment, and to stand to and abide the
orders and judgments of the Senate thereon: which writ shall be served by such
officer or person as shall be named in the precept thereof, such number of
days prior to the day fixed for such appearance as shall be named in such
precept, either by the delivery of an attested copy thereof to the person
accused, or if that can not conveniently be done, by leaving such copy at the
last known place abode of such person, or at his usual place of business in
some conspicuous place therein; or if such service shall be, in the judgment of
the Senate, impracticable, notice to the accused to appear shall be given in
such other manner, by publication or otherwise, as shall be deemed just; and if
the writ aforesaid shall fail of service in the manner aforesaid, the
proceedings shall not thereby abate, but further service may be made in such
manner as the Senate shall direct. If the accused, after service, shall fail to
appear, either in person or by attorney, on the day so fixed therefor as
aforesaid, or, appearing, shall fail to file his answer to such articles of
impeachment, the trial shall proceed, nevertheless, as upon a plea of not
guilty. If a plea of guilty shall be entered, judgment may be entered thereon
without further proceedings.
IX. At 12:30 o’clock afternoon or the day appointed for the return of the
summons against the person impeached, the legislative and executive business of
the Senate shall be suspended, and the Secretary of the Senate shall administer
an oath to the returning officer. . . . Which oath shall be entered at large on
X. The person impeached shall then be called to appear and answer the
articles of impeachment against him. If he appear, or any person for him, the
appearance shall be recorded, stating particularly if by himself, or by agent
or attorney, naming the person appearing and the capacity in which he appears.
If he do not appear, either personally or by agent or attorney, the same shall
XI. That in the trial of any impeachment the Presiding Officer of the
Senate, upon the order of the Senate, shall appoint a committee of twelve
Senators to receive evidence and take testimony at such times and places as the
committee may determine, and for such purpose the committee so appointed and
the chairman thereof to be elected by the committee, shall (unless otherwise
ordered by the Senate) exercise all the powers and functions conferred upon the
Senate and the Presiding Officer of the Senate, respectively, under the rules
of procedure and practice in the Senate when sitting on impeachment trials.
Unless otherwise ordered by the Senate, the rules of procedure and practice
in the Senate when sitting on impeachment trials shall govern the procedure and
practice of the committee so appointed. The committee so appointed shall report
to the Senate in writing a certified copy of the transcript of the proceedings
and testimony had and given before such committee, and such report shall he
received by the Senate and the evidence so received and the testimony so taken
shall be considered, to all intents and purposes, subject to the right of the
Senate to determine competency, relevancy, and materiality, as having been
received and taken before the Senate, but nothing herein shall prevent the
Senate from sending for any witness and hearing his testimony in open Senate, or
by order of the Senate having the entire trial in open Senate.
XII. At 12:30 o’clock afternoon of the day appointed for the trial of an
impeachment, the legislative and executive business of the Senate shall be
suspended, and the Secretary shall give notice to the House of Representatives
that the Senate is ready to proceed upon the impeachment of —-, in the Senate
Chamber, which chamber is prepared with accommodations for the reception of the
House of Representatives.
XIII. The hour of the day at which the Senate shall sit upon the trial of an
impeachment shall be (unless otherwise ordered) 12 o’clock m.; and when the
hour for such thing shall arrive, the Presiding Officer of the Senate shall so
announce; and thereupon the Presiding Officer upon such trial shall cause
proclamation to be made, and the business of the trial shall proceed. The
adjournment of the Senate sitting in said trial shall not operate as an
adjournment of the Senate; but on such adjournment the Senate shall resume the
consideration of its legislative and executive business.
XIV. The Secretary of the Senate shall record the proceedings in cases of
impeachment as in the case of legislative proceedings, and the same shall be
reported in the same manner as the legislative proceedings of the Senate.
XV. Counsel for the parties shall be admitted to appear and be heard upon an
XVI. All motions made by the parties or their counsel shall be addressed to
the Presiding Officer, and if he, or any Senator, shall require it, they shall
be committed to writing, and read at the Secretary’s table.
XVII. Witnesses shall be examined by one person on behalf of the party
producing them, and then cross-examined by one person on the other side.
XVIII. If a Senator is called as a witness. he shall be sworn and give his
testimony standing in his place.
XIX. If a Senator wishes a question to be put to a witness or to offer a
motion or order (except a motion to adjourn), it shall be reduced to writing,
and put by the Presiding Officer.
XX. At all times while the Senate is sitting upon the trial of an
impeachment the doors of the Senate shall be kept open, unless the Senate shall
direct the door to be closed while deliberating upon its decisions.
XXI. All preliminary or interlocutory questions, and all motions, shall be
argued for not exceeding one hour on each side, unless the Senate shall, by
order, extend the time.
XXII. The case, on each side, shall be opened by one person. The final
argument on the merits may be made by two persons on each side (unless
otherwise ordered by the Senate upon application for that purpose), and the
argument shall be opened and closed on the part of the House or
XXIII. On the final question whether the impeachment is sustained, the yeas
and nays shall be taken on each article of impeachment separately; and if the
impeachment shall not, upon any of the articles presented, be sustained by the
votes or two-thirds of the members present, a judgment of acquittal shall be
entered; but if the person accused in such articles of impeachment shall be
convicted upon any of said articles by the votes of two-thirds of the members
present, the Senate shall proceed to pronounce judgment, and a certified copy
of such judgment shall be deposited in the office of the Secretary of State.
XXIV. All the orders and decisions shall be made and had by yeas and nays,
which shall be entered on the record, and without debate, subject, however, to
the operation of Rule VII, except when the doors shall be closed for
deliberation, and in that case no member shall speak more than once on one
question, and for not more than ten minutes on an interlocutory question. and
for not more than fifteen minutes on the final question, unless by consent of
the Senate, to be had without debate; but a motion to adjourn may be decided
without the yeas and nays, unless they be demanded by one-fifth of the members
present. The fifteen minutes herein allowed shall be for the whole deliberation
on the final question, and not on the final question on each article of
XXV. Witnesses shall be sworn . . . which oath shall be administered by the
Secretary, or any other duly authorized person. All process shall be served by
the Sergeant at Arms of the Senate, unless otherwise ordered by the court.
XXVI. If the Senate shall at any time fail to sit for the consideration of
articles of impeachment on the day or hour fixed therefor the Senate may, by an
order to be adopted without debate, fix a day and hour for resuming such
Addressed to the
INHABITANTS OF AMERICA
Author of “The Crisis,” “Rights
of Man,” “Age of Reason,” et al.
Man knows no master save creating heaven, or those whom
choice and common good ordain. — THOMPSON
NEW YORK: PETER ECKLER PUBLISHING CO.
Perhaps the sentiments contained in the following pages are not yet
sufficiently fashionable to procure them general favor; a long habit of not
thinking a thing wrong, gives it a superficial appearance of being right,
and raises at first a formidable outcry in defence of custom. But the
tumult soon subsides. Time makes more converts than reason.
The cause of America is, in a great measure, the cause of all mankind. . . .
PHILADELPHIA, February 14, 1776.
There is something exceedingly ridiculous in the composition of monarchy; it
first excludes a man from the means of information, yet empowers him to act in
cases where the highest judgment is required. The state of a king shuts him
from the world, yet the business of a king requires him to know it thoroughly;
wherefore the different parts, by unnaturally opposing and destroying each
other, prove the whole character to be absurd and useless. [Pp. 5-6.]
. . . [Y]e may perceive and see that your wickedness is great which ye have done in the sight of the Lord, IN ASKING YOU A KING. So Samuel called unto
the Lord, and the Lord sent thunder and rain that day, and all the people
greatly feared the Lord and Samuel. And all the people said unto Samuel, Pray
for thy servants unto the Lord thy God that we die not, for WE HAVE ADDED UNTO
OUR SINS THIS EVIL, TO ASK A KING. [Emphasis in original.] These portions
of scripture are direct and positive. They admit of no equivocal construction.
That the Almighty hath here entered his protest against monarchical government
is true, or the scripture is false. [P..12.]
One of the strongest natural proofs of the folly of hereditary right
of kings, is that nature disapproves it, otherwise she would not so frequently
turn it to ridicule by giving mankind an ass for a lion. [P. 13.]
For it is the republican and not the monarchical part of the constitution of
England which Englishmen glory in, viz., the liberty of choosing a house of
commons from out of their own body — and it is easy to see that when republican
virtue fails, slavery ensues. Why is the constitution of England sickly, but
because monarchy hath poisoned the republic, the crown hath engrossed the
commons? [Pp. 17-18.]
. . . . Of more worth is one honest man to society, and in the sight of God,
than all the crowned ruffians that ever lived. [P. 18.]
The sun never shone on a cause of greater worth. ‘Tis not the affair of a
city, a county, a province, or a kingdom, but of a continent — of at least one
eighth part of the habitable globe. ‘Tis not the concern of a day, a year, or
an age; posterity are virtually involved in the contest, and will be more or
less affected even to the end of time, by the proceedings now. Now is the seed-time
of continental union, faith and honor. The least fracture now will be like
a name engraved with the point of a pin on the tender rind of a young oak; the
wound will enlarge with the tree, and posterity read it in full grown
characters. [Pp. 19-20.]
. . . . The reformation was preceded by the discovery of America, as if the
Almighty graciously meant to open a sanctuary to the persecuted in future
years, when home should afford neither friendship nor safety. [P. 25.]
Though I would carefully avoid giving unnecessary offense, yet I am inclined
to believe, that all those who espouse the doctrine of reconciliation may be
included within the following descriptions.
Interested men, who are not to be trusted; weak men, who cannot see;
prejudiced men, who will not see; and a certain set of moderate men who think
better of the European world than it deserves; and this last class, by an
ill-judged deliberation, will be the cause of more calamities to this continent
than all the other three. [P. 25.]
*****[To not seek independence] . . . is leaving the sword to our children, and
shrinking back at a time, when a little more, a little further, would have
rendered this continent the glory of the earth. [P. 29.]
*****[F]or independency means no more than this, whether we shall make our own
laws, or whether the king, the greatest enemy which this continent hath or can
have, shall tell us, “there shall be no laws but such as I like.”
But where, say some, is the king of America? I’ll tell you, friend, he
reigns above, and doth not make havoc of mankind like the royal brute of
Britain. Yet that we may not appear to be defective even in earthly honors, let
a day be solemnly set apart for proclaiming the charter; let it be brought
forth, placed on the divine law, the word of God; let a crown be placed
thereon, by which the world may know, that so far as we approve of monarchy,
that in America the law is king. For as in absolute governments the king
is law, so in free countries the law ought to be king; and there ought to be no
other. But lest any ill use should afterwards arise, let the crown at the
conclusion of the ceremony be demolished and scattered among the people whose
right it is.
A government of our own is our natural right: and when a man seriously
reflects on the precariousness of human affairs, he will become convinced that
it is infinitely wiser and safer to form a constitution of our own, in a cool
deliberate manner, while we have it in our power, than to trust such an
interesting event to time and chance. If we omit it now, some Massaniello may
hereafter arise, who, laying hold of popular disquietudes, may collect together
the desperate and the discontented, and by assuming to themselves the powers of
government, may sweep away the liberties of the continent like a deluge. Should
the government of America return again into the hands of Britain, the tottering
situation of things will be a temptation for some desperate adventurer to try
his fortune; and in such a case, what relief can Britain give? Ere she could
hear the news, the fatal business might be done; and ourselves suffering like
the wretched Britons under the oppression of the conqueror. Ye that oppose
independence now, ye know not what ye do; ye are opening a door to eternal
tyranny, by keeping vacant the seat of government. [Pp. 35-36.]
Ye that tell us of harmony and reconciliation, can ye restore to us the time
that is passed? Can ye give to prostitution its former innocence? Neither can
ye, reconcile Britain and America. The last cord now is broken; the people of
England are presenting addresses against us. There are injuries which nature
cannot forgive; she would cease to be nature if she did. As well can the lover
forgive the ravisher of his mistress, as the continent forgive the murders of
Britain. The Almighty hath implanted in us these unextinguishable feelings for
good and wise purposes. They are the guardians of his image in our hearts. They
distinguish us from the herd of common animals. The social compact would
dissolve and justice be extirpated from the earth, or have only a casual
existence, were we callous to the touches of affection. The robber and the
murderer would often escape unpunished, did not the injuries which our tempers
sustain, provoke us into justice.
O ye that love mankind! Ye that dare oppose, not only the tyranny, but the
tyrant, stand forth! Every spot of the old world is overrun with oppression.
Freedom hath been hunted round the globe. Asia and Africa have long expelled
her, Europe regards her like a stranger, and England hath given her warning to
depart. O! receive the fugitive, and prepare in time an asylum for mankind. [P.
. . . Debts we have none: and whatever we may contract on this account will
serve as a glorious memento of our virtue. Can we but leave posterity with a
settled form of government, an independent constitution of its own, the
purchase at any price will be cheap. But to expend millions for the sake of
getting a few vile acts repealed, and routing the present ministry only, is
unworthy the charge, and is using posterity with the utmost cruelty; because it
is leaving them the great work to do, and a debt upon their backs from which
they derive no advantage. Such a thought is unworthy a man of honor, and is the
true characteristic of a narrow heart and a peddling politician. [P. 39.]
. . . Commerce diminishes the spirit both of patriotism and military defence.
And history sufficiently informs us, that the bravest achievements were always
accomplished in the nonage of a nation. With the increase of commerce England
hath lost its spirit. The city of London, notwithstanding its numbers, submits
to continued insults with the patience of a coward. The more men have to lose,
the less willing they are to venture. The rich are in general slaves to fear,
and submit to courtly power with the trembling duplicity of a spaniel.
Youth is the seed-time of good habits, as well in nations as in individuals.
It might be difficult, if not impossible, to form the continent into one
government half a century hence. The vast variety of interests, occasioned by
an increase of trade and population, would create confusion. Colony would be
against colony. Each being able, might scorn each other’s assistance; and while
the proud and foolish gloried in their little distinctions, the wise would
lament that the union had not been formed before. Wherefore, the present time
is the true time for establishing it. The intimacy which is contracted in
infancy, and the friendship which is formed in misfortune, are of all others,
the most lasting and unalterable. our present union is marked with both these
characters; we are young, and we have been distressed; but our concord hath
withstood our troubles, and fixes a memorable era for posterity to glory in.
The present time, likewise, is that peculiar time which never happens to a
nation but once, viz., the time of forming itself into a government. Most
nations have let slip the opportunity, and by that means have been compelled to
receive laws from their conquerors, instead of making laws for themselves.
First, they had a king, and then a form of government; whereas the articles or
charter of government, should be formed first, and men delegated to execute
them afterwards: but from the errors of other nations, let us learn wisdom, and
lay hold of the present opportunity — to begin government at the right end. [PD. 45-46.]
In page thirty-five, I threw out a few thoughts on the propriety of a
Continental Charter (for I only presume to offer hints, not plans) and in this
place I take the liberty of rementioning the subject, by observing that a
charter is to be understood as a bond of solemn obligation, which the whole
enters into, to support the right of every separate part, whether of religion,
personal freedom, or property. A firm bargain and a right reckoning make long
friends. [LP. 46.]
Immediate necessity makes many things convenient, which if continued would
grow into oppressions. Expedience and right are different things. [P. 47.]
These proceedings may at first appear strange and difficult; but like all
other steps which we have already passed over, will in a little time become
familiar and agreeable; and, until an independence is declared, the continent
will feel itself like a man who continues putting off some unpleasant business
from day to day, yet knows it must be done, hates to set about it, wishes it
over, and is continually haunted with the thoughts of its necessity. [P. 49.]
However, it matters very little now, what the king of England either says or
does; he hath wickedly broken through every moral and human obligation,
trampled nature and conscience beneath his feet; and by a steady and
constitutional spirit of insolence and cruelty, procured for himself an
universal hatred. It is now the interest of America to provide for herself. . .
I proceed now to the second head, viz.: Which is the easiest and most
practicable plan, RECONCILIATION or INDEPENDANCE; with some occasional
He who takes nature for his guide, is not easily beaten out of his argument,
and on that ground, I — answer generally — That INDEPENDENCE being a SINGLE
SIMPLE LINE, contained within ourselves; and reconciliation, a matter
exceedingly perplexed and complicated, and in which a treacherous, capricious
court is to interfere, gives the answer without a doubt. [Emphasis in
The present state of America is truly alarming to every man who is capable
of reflection. Without law, without government, without any other mode of power
than what is founded on, and granted by, courtesy. Held together by an
unexampled concurrence of sentiment, which is nevertheless subject to change,
and which every secret enemy is endeavoring to dissolve. Our present condition
is legislation without law; wisdom without a plan; a constitution without a
name; and, what is strangely astonishing, perfect independence contending for
dependence. The instance is without a precedent; the case never existed before;
and who can tell what may be the event? The property of no man is secure in the
present unbraced system of things. The mind of the multitude is left at random,
and seeing no fixed object before them, they pursue such as fancy or opinion
presents. Nothing is criminal; there is no such thing as treason; wherefore,
every one thinks himself at liberty to act as he pleases.[Pp. 54-55.]
Besides, the taking up arms, merely to enforce the repeal of a pecuniary
law, seems as unwarrantable by the divine law, and as repugnant to human
feelings, as the taking up arms to enforce obedience thereto. The object, on
either side, doth not justify the means; for the lives of men are too valuable
to be cast away on such trifles. It is the violence which is done and
threatened to our persons; the destruction of our property by an armed force;
the invasion of our country by fire and sword, which conscientiously qualifies
the use of arms: and the instant in which such a mode of defence became
necessary, all subjection to Britain ought to have ceased; and the independence
of America should have been considered as dating its era from, and published
by, the first musket that was fired against her. This line is a line of
consistency; neither drawn by caprice, nor extended by ambition; but produced
by a chain of events of which the colonies were not the authors.
I shall conclude these remarks with the following timely and well-intended
hints. We ought to reflect, that there are three different ways by which an
independency may hereafter be effected; and that one of those three will, one
day or other, be the fate of America, viz, By the legal voice of the people in
congress; by a military power; or by a mob. It may not always happen that our
soldiers are citizens, and the multitude a body of reasonable men; virtue, as I
have already remarked, is not hereditary, neither is it perpetual. Should an
independency be brought about by the first of those means, we have every
opportunity and every encouragement before us, to form the noblest, purest
constitution on the face of the earth. We have it in our power to begin the
world over again. A situation, similar to the present, hath not happened since
the days of Noah until now. The birthday of a new world is at hand, and a race
of men, perhaps as numerous as all Europe contains, are to receive their
portion of freedom from the events of a few months. The reflection is
awful — and in this point of view, how trifling, how ridiculous, do the little
paltry cavilings of a few weak or interested men appear, when weighed against
the business of a world.
Should we neglect the present favorable and inviting period, and
independence be hereafter effected by any other means, we must charge the
consequence to ourselves, or to those rather, whose narrow and prejudiced souls,
are habitually opposing the measure, without either inquiring or reflecting.
There are reasons to be given in support of independence, which men should
rather privately think of, than be publicly told of. We ought not to be
debating whether we shall be independent or not, but anxious to accomplish it
on a firm, secure and honorable basis, and uneasy rather that it is not yet
begun upon. Every day convinces us of its necessity. [Pp. 57-58.]
In short, independence is the only bond that can tie and keep us together.
We shall then see our object, and our ears shall be legally shut against the
schemes of an intriguing, as well as a cruel enemy. . . . [P 58.]
On these grounds I rest the matter. And as no offer hath yet been made to
refute the doctrine contained in the former editions of this pamphlet, it is a
negative proof that either the doctrine cannot be refuted, or that the party in
favor of it are too numerous to be opposed. Wherefore, instead of
gazing at each other, with suspicious or doubtful curiosity, let each of us
hold out to his neighbor the hearty hand of friendship, and unite in drawing a
line, which, like an act of oblivion, shall bury in forgetfulness every former
dissension. Let the names of whig and tory be extinct; and let none other be
heard among us, than those of a good citizen, an open and resolute
friend, and a virtuous supporter of the RIGHTS of MANKIND, and of the FREE AND
INDEPENDENT STATES OF AMERICA. [P. 59.]
- Know exactly what impeachment means. Become an expert on
the process itself. Explain it to your family first, your friends, neighbors
and associates next.
- Concentrate on your Congressional district. Remember, your
Representative has one of the 218 votes necessary to impeach.
- Write, wire, and call your Representative. Become a repeat correspondent
with your Representative. Then organize your associates into Committees of
Correspondence. Personally written letters and telegrams are more effective
than form letters. Omit no representative because of party preference or “conservatism”
or even stated opposition to impeachment. Get your friends to do the
same. Write repeatedly if your Representative makes any excuses for inaction.
Send copies of your Representatives’ replies to the ACLU Washington National
Office, 410 First Street, S.E., Washington, D.C. 20003.
- Work with your Committees of Correspondence to solicit signatures on
petitions calling for impeachment. File them with your Representative.
- Write letters to all your local and area papers including religious,
minority and labor press. Visit editors personally. Do not omit them
because they are “Conservative” or “‘Republican” or “hopeless”
or for any other reason. Bringing the President to trial is the responsibility
of all Americans, regardless of party and other political preferences.
- Give speeches to other organizations to which you belong. Urge their
members to pass resolutions calling for impeachment. Send those resolutions to
their Representative, and announce them in the media. Urge audiences to take
individual action similar to action you have taken.
- Help your affiliate compile lists of influential local individuals and
groups. Speak to them. Write and urge them to communicate with their
- Help your chapter and affiliate operate a speakers bureau. Arrange
speakers for every possible club, group or other meeting, including college and
university groups. Local schools and PTA’s often conduct forums.
- Watch your newspapers for announcements of upcoming conventions. Try to
get a speaker on impeachment put on the agenda. Set up tables for the
distribution of literature and solicitation of volunteers. Have your chapter or
affiliate ask that the ACLU resolution and the enclosed back-up material be
distributed. Ask state and local legislators to call for impeachment.
- Publicly identify yourself. Use bumper strips, buttons and signs. Make
your feelings known and visible. This provides incentive for others to do
likewise. It “reminds” your Representative and his friends.
- Hold seminars and workshops on impeachment. Urge the public to attend.
- Urge church leaders to speak on the moral issues at stake and to call upon
the members of their congregations to become involved in this effort.
- Insist that your Representative meet with your ACLU chapter or its
representatives. Have other groups to which you belong request appointments too.
Hold coffees in private homes. Invite your Representative to appear. Organize
- Organize Committees of Correspondence in your congressional district. Try
to involve influential individuals and groups.
- Always keep in mind that the highest order of patriotism is the defense of
our constitutional system, for ourselves and for our children. Every effort
should be aimed at making certain that every citizen has an understanding of
this issue, and the opportunity to confront it personally.
- Your Representative must be made to understand that this is not merely
another “come and go” political question. Only you can make your
Representative understand the importance of the issue and the extent to which
he or she will be held responsible in the 1974 elections for his or her
- It cannot be stressed strongly enough or often enough that Representatives
who do not move to impeach, and who thereby fail to bring President Nixon to
trial, are accomplices to a cover-up. They are either in favor of bringing 100%
of the truth to the American people, or they are helping cover it up.
Copyright 1998, The American Civil Liberties Union
This historical document was salvaged from the Google cache.