Author:Raoul Berger

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The English Parliament devised impeachment for the removal of ministers of the Crown, the House of Commons serving as prosecutor of charges that the House of Lords adjudged. This, ALEXANDER HAMILTON wrote, was the "model" of the American proceeding?the HOUSE OF REPRESENTATIVES files and prosecutes charges and the SENATE is the trial tribunal. The Framers of the Constitution also adopted the English grounds for removal, " TREASON, bribery, or other high crimes and MISDEMEANORS." They defined "treason" narrowly; "bribery" was a COMMON LAW term of familiar meaning; but the scope of "other high crimes and misdemeanors" remains a subject of continuing debate. Some would confine those terms to indictable crimes. At the other pole, Congressman GERALD FORD, in proposing the impeachment of Justice WILLIAM O. DOUGLAS in 1970, asserted that an impeachable offense is whatever the House, with the concurrence of the Senate, "considers [it] to be." The historical facts indicate, however, that an impeachable offense need not be indictable, but that such offenses have their limits, for which we must look to the English practice the terms expressed.

Advocates of the indictable crime interpretation point to the criminal terminology, for example, "high crimes and misdemeanors." Article III, section 2, of the Constitution provides, "The trial of all Crimes, except in cases of Impeachment, shall be by Jury"; Article II, section 2, confers a power to grant pardons "except in Cases of Impeachment," and pardons relieve from punishment for a crime. In England the House of Lords combined removal and punishment in the impeachment proceeding. But Article I, section 3, clause 7, made an important departure: "Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any [federal] office ? but the party convicted shall nevertheless be liable and subject to INDICTMENT, trial, judgment and punishment, according to law." The separation of removal from criminal prosecution meant that political passions could no longer sweep an accused to his death, but that he would be tried by a jury of his peers.

In the North Carolina Ratification Convention, JAMES IREDELL explained that if the President "commits any misdemeanor in office, he is impeachable, removable from office.? If he commits any crime, he is punishable by the laws of his country," distinguishing an impeachable "misdemeanor" (which has a common law connotation of misconduct in office) from an indictable crime. Hamilton likewise distinguished between "removal from office" and "actual punishment in cases which admit of it," indicating that some impeachable offenses were not criminal. As will appear, some impeachable offenses were not and still are not punishable crimes; nor does the absence of fine and imprisonment, the customary criminal sanctions, comport with the view that impeachment is a criminal proceeding. The doctrine of DOUBLE JEOPARDY also conduces to this conclusion. Although double jeopardy at the framing of the Constitution referred to jeopardy of life, as the Fifth Amendment attests, Congress speedily made treason punishable by death. Impeachment for treason could not, therefore, be regarded as criminal without raising a bar to indictment. Such thinking was carried over to all impeachments by JAMES WILSON : because they "are founded on different principles ? directed to different objects ? the trial and punishment of an offense on impeachment, is no bar to a trial of the same offense at common law." Justice JOSEPH STORY deduced from the separation between removal and indictment that "a second trial for the same offense" would not be barred by double jeopardy. Thus double jeopardy requires impeachment to be read in noncriminal terms.

The Sixth Amendment furnishes further confirmation. Earlier Article III, section 2, clause 3, expressly exempted impeachment from the "Trial of all Crimes" by jury. With that exemption before them, the draftsmen of the Sixth Amendment required TRIAL BY JURY in "all criminal prosecutions," thereby canceling the former exception. Since the later Amendment controls, it must be concluded either that the Founders felt no need to exempt impeachment from the Sixth Amendment because they did not consider it a "criminal prosecution" or that jury trial is required if impeachment be in fact a "criminal" prosecution. The latter conclusion is inadmissible. Perhaps the use

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of criminal terminology is attributable to the fact that words like "offenses," "convict," and "high crimes" had been employed in the English impeachments, and the Framers, engaged in hammering out a charter of government that required major political compromises, could not pause to coin a fresh and different vocabulary for every detail.

Treason and bribery, in contradistinction to crimes against the individual such as murder and robbery, are crimes against the State?political crimes. James Wilson, a chief architect of the Constitution, observed that "impeachments are confined to political characters, to political crimes and misdemeanors." And Justice Story added that they are designed "to secure the state against gross official misdemeanors." By association with "treason...

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