Chapter Three -- Part C A New Constitutional Theory Removal from Office is an Automatic Result of Judicial Conviction in a Criminal Trial Commenced on Presentment of House Articles of Impeachment |
Amendment V (December 15, 1791):
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury...nor...for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law;...
Comment: Blackstone’s Commentaries identifies a "presentment" as one of two kinds of "...formal accusation of offenders...", the other kind is a grand jury indictment. [14] It appears that if a person is impeached by the House of Representatives, the Articles of Impeachment may themselves serve as a Presentment, and this Presentment would function as the equivalent of a Grand Jury indictment. On Presentment of the House’s Articles of Impeachment, a Judiciary Criminal trial would, or could, commence. This is an important point, because if House Articles of Impeachment can function as a Presentment for commencing a Judiciary Criminal trial, this gives added meaning to the Article Three passage "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury..." According to this construction, a Criminal trial is a "Case of Impeachment" if it has commenced on Presentment of Articles of Impeachment, rather than on indictment by a grand jury. The idea of Presentment of House Articles of Impeachment as equivalent to grand jury indictment is further supported by this passage from Blackstone: "I. Presentment. This term includes, not only presentments properly, so called, but also inquisitions of office, and indictments by a grand jury." [15] In England, an "office" was both a public trust and a property right — "office holders" were entitled to various kinds of benefits, including pay. Blackstone classifies "Inquisition or Inquest of Office" as one of several ways of redressing injuries to the crown. An Inquest of Office is a means by which the King could cause an office holder to forfeit the office — as Blackstone writes: "In regard to real property, if an office be found for the king, it puts him in immediate possession..." [16] The writ of Scire Facias, already considered regarding Berger’s argument concerning removal of judges by judges, is listed by Blackstone immediately following "Inquisition or Inquest of Office." [17] If this construction of "presentment" is correct, then it adds further support to the idea that Articles of Impeachment can function as a Presentment in a Judiciary Criminal trial, because the purpose of impeachment is to safeguard our Republic, and because in English law a trial on the issue of forfeiting an office can commence on a Presentment.
Regarding the phrase "nor shall be compelled in any criminal case to be a witness against himself", we have considered the possibility that in a Judiciary trial of a Case of Impeachment, the Judges may be able to question witnesses directly. As with all ten Amendments of the Bill of Rights, this Amendment was not considered at the Constitutional Convention. It appears almost certain that this phrase now extends to an impeached person facing a Judiciary criminal trial a right that was not provided for at the time of the Constitutional Convention — to decline to testify at a Judiciary trial. Obviously, an impeached person can testify if they so choose, and can probably also be asked to testify by the Judges.
One final point, although in a Senate impeachment trial there is no jeopardy of life or limb because the judgment is limited to removal and disqualification, it will be important to construct any removal process other than by Senate impeachment trial such that the process is clearly one trial, and not multiple trials, to ensure there is not double jeopardy.
Amendment VI (December 15, 1791):
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed...
Comment: As we have seen, one of the unamended Constitution’s Article Three sections establishes a right to trial by Jury for all criminal Judiciary trials except in Cases of Impeachment. The question here regarding removal from office is whether subsequent ratification of the Sixth Amendment now extends the right to trial by jury to all criminal cases including Cases of Impeachment. Most people’s initial reaction to this question would probably be: "Yes, it does extend the right to trial by jury." That was my initial reaction, but now I am inclined to think the answer is no. Rather than attempting to definitively resolve the question here, let me just briefly state some arguments and questions for your consideration, that suggest the answer is no. First, unlike other Judiciary Criminal trials, in a Case of Impeachment, where removal from office is at issue, there is a question of balancing the national interest against the right of an impeached office holder. Second, because a Case of Impeachment can apparently commence on a Presentment of House impeachment Articles, according to the discussion in the previous section, the trial could then be viewed in some sense as an Inquest of Office. In this case, the impeached person may stand not as accused, but as the subject of an Inquest, in a proceeding based at least partly on concepts of equity, and possibly with procedures more similar to an English Chancery trial than to an English common law criminal trial. Third, in a Case of Impeachment on criminal grounds involving the President, there is a compelling national need for as quick a resolution as possible. Fourth, the phrase "...by an impartial jury..." can be interpreted not as extending the right to trial by jury, but as explicitly adding the requirement of impartiality to the existing right of trial by jury, such as that right exists, including the Article Three restriction of that right. If an impeached person is the subject of an Inquest of Office according to the construction just presented, rather than accused by a Grand Jury, then an impeached office holder may in fact have no Sixth Amendment rights at all. This would be another good reason for a guilty person to resign if it becomes apparent the House will impeach. If the Sixth Amendment turns out to be not applicable to an impeached person, the Congress can still legislate regarding a Case of Removal, and can provide for due process rights similar to those of the Sixth Amendment, but with appropriate weight given to the public interest in a speedy trial and resolution. More work is needed to try to determine how the Sixth Amendment bears on impeachment and removal in a judicial trial.
Regarding Amendment XXV, because the issues bearing on it are limited, it is not listed again here in its entirety (see page 68). It appears that the main effect of Amendment XXV regarding impeachment and removal is to provide for the ability of a President to temporarily step down, and turn the office over to the vice-President, if a situation arises where this would be desirable while a question of impeachment or criminal guilt remains unresolved.
Review: Who Should Serve?
We are now almost ready to consider the thesis of this book in the context of the familiar Constitutional passages on impeachment. However, before commencing, I want to make one fundamental observation. Based on what has just been presented, we should first step back to take another look at the broad question posed earlier. Who should serve? What do we expect from, and of, people who serve in high government positions, wielding enormous power? What ways does our Constitution provide for removing these people from office? Up until now, the question of Constitutional removal of civil officers has always been about the grounds for removal: when is it demanded? Now it appears we have two removal questions: when should someone be removed from office, and what is the appropriate venue for considering their removal?
In light of what has been presented, it should now seem at least possible if not apparent, that the questions of impeachment and removal run far more deeply and pervasively throughout the fabric of our Constitution than we previously thought. Those who wrote our Constitution were deeply skeptical about how much power could be entrusted both to the Federal government, and to individual office holders. They had personally seen what war means, and they knew the history of England, including fierce fights for power, and the punishment, sometimes by death, of power abusing office holders. None of this was idle speculation to those who wrote our Constitution. Much of their effort was directed to preventing in America the horrors they had seen and studied. Their fundamental Constitutional architecture was a system of both limited government and of checks and balances. It seems to me this whole system of checks and balances was directed at one fundamental danger: the accumulation of too much power by any individual or any group. One of the ways to prevent this kind of dangerous accumulation of power is to make sure that no one is indispensable, including any officer holder, and including the President. The executive branch is an important Constitutional check on the other two branches. An elected President gives that branch unique authority: one person who has been chosen by all the people to lead. We must not let the advantage of this popular assent blind us to the dangers of a President who is Constitutionally out of control. In the long run, our Constitutional system of checks and balances depends on a strong executive branch, not a strong man, or an executive junta.
Copyright © 2000, Robert S. Carney Jr., 4232 Colfax Ave. So., Minneapolis, MN 55409. All rights reserved.