HKB
THE JOHNSON IMPEACHMENT
But with the impeachment of President Johnson in 1867 for "high crimes and misdemeanors," the controversy was revived. Representative Bingham, leader of the House Managers of the impeachment, defined an impeachable offense as follows: "An impeachable high crime or misdemeanor is one in its nature or consequences subversive of some fundamental or essential principle of government or highly prejudicial to the public interest, and this may consist of a violation of the Constitution, of law, of an official oath, or of duty, by an act committed or omitted, or, without violating a positive law, by the abuse of discretionary powers from improper motives or for an improper purpose."[484] Former Justice Benjamin R. Curtis stated the position of the defense in these words: "My first position is, that when the Constitution speaks of 'treason, bribery, and other high crimes and misdemeanors,' it refers to, and includes only, high criminal offences against the United States, made so by some law of the United States existing when the acts complained of were done, and I say that this is plainly to be inferred from each and every provision of the Constitution on the subject of impeachment."[485]
LATER IMPEACHMENTS
With Johnson's acquittal, the narrow view of "high crimes and misdemeanors" appeared again to win out. Two successful impeachments of lower federal judges in recent years have, however, restored something like the broader conception of the term which Madison and Hamilton had endorsed. In 1913 Judge Archbald of the Commerce Court was removed from office by the impeachment process, and disqualified to hold and enjoy any office of honor, profit or trust under the Constitution, for soliciting for himself and friends valuable favors from railroad companies some of which were at the time litigants in his court, although it was conceded that in so doing he had not committed an indictable offense;[486] and in 1936 Judge Ritter of the Florida district court was similarly removed for conduct in relation to a receivership case which evoked serious doubts as to his integrity, although on the specific charges against him he was acquitted.[487] It is probable that in both these instances the final result was influenced by the consideration that judges of the United States hold office during "good behavior" and that the impeachment process is the only method indicated by the Constitution for determining whether a judge's behavior has been "good." In other words, as to judges of the United States at least lack of "good behavior" and "high crimes and misdemeanors" are overlapping if not precisely coincidental concepts.[488]
Notes
[1] As is pointed out by Hamilton in The Federalist No. 69.
[2] Charles C. Thach, The Creation of the Presidency, 1775-1789 (Baltimore, 1922), 36-37.
[3] Ibid. 109.
[4] Max Farrand, Records, II, 185.
[5] Ibid. II, 572 (September 10), 597.
[6] Annals of Congress 383 ff.
[7] Ibid. 396-397; 481-482. For a thorough-going review and evaluation of this debate, see James Hart, The American Presidency in Action, 152-214 (New York, 1948).
[8] Works of Alexander Hamilton, VII, 76, 80-81 (J.C. Hamilton, ed., New York, 1851). Hamilton was here simply interpreting the executive power clause in light of the views of Blackstone, Locke, and Montesquieu as to the location of power in the conduct of foreign relations. See Edward S. Corwin, The President, Office and Powers (3d ed.), 459-460. For a parallel argument to Hamilton's respecting "the judicial power of the United States," article 1, section 1, clause 1, see Justice Brewer's opinion in Kansas v. Colorado, 206 U.S. 46, 82 (1907).
[9] Myers v. United States, 272 U.S. 52 (1926).
[10] Ibid. 118.
[11] 299 U.S. 304 (1936).
[12] Ibid. 315-316, 318. See also Ibid. 319 citing U.S. Senate Reports, Committee on Foreign Relations, vol. 8, p. 24 (February 15, 1816).
[13] Ibid. 327, citing Panama Refining Co. v. Ryan, 293 U.S. 388, 421-422 (1935).