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Commentary

Commentary

5.1

Elements of U.S. Constitutional judicial powers assigned to the legislative branch

All of this background concerning English law and institutions was known to the constitutional convention. We have noted that one of the unique features of the constitution is the establishment of three separate and independent branches, including the independent Judiciary, as noted, a branch that was not present in England. However, we should not conclude from the fact of this division into three branches that the constitution has no provision for assigning any element of Judicial power to Congress. In addition to its impeachment powers, Congress has additional powers that can be characterized as judicial, or partly judicial, in nature, concerning these issues and circumstances:

Treason – As already noted, treason is identified explicitly in Article II (executive) as one of the crimes that automatically causes removal from office on “impeachment for, and conviction of...” However, we should take note of another provision in Article III (judiciary):

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

Note that although Article III concerns the Judiciary, Congress is given the “...Power to declare the Punishment of Treason...” This is a clear example of an element of Judiciary power assigned to Congress. Because treason is a crime that can be a threat to the nation, if and when a Judicial treason conviction occurs Congress is assigned constitutional power to discover and “declare” appropriate punishment for treason, on a case-by-case basis. One of the constitutional effects of this is to enable, in a worst-case scenario, the other two independent branches of government to act jointly against the executive. It appears this judicial power of Congress is in addition to the implicit power of the Judiciary to pronounce sentence for all crimes, including treason. It is possible that the punishment of a person convicted of treason can include some elements specified by Congress, and other elements specified by the Judiciary. It is possible that Congress can leave it to the Judiciary to pronounce punishment -- while power to “declare the Punishment” for treason is assigned to Congress, Congress is not required to do anything.

A number of considerations, first among them that treason is addressed primarily in Article III, suggest that conviction of a person in a decriminalized Senate impeachment trial on grounds of treason is not sufficient to trigger the power of Congress to “declare the Punishment of Treason.” Although this is potentially a debatable point, it seems best to think of the Senate impeachment trial provision as already characterized: the constitution's “safety valve.” Beyond the step of removing dangerous office holders, Judicial process can and should be relied on. The requirement in Article III: “the testimony of two Witnesses to the same overt Act, or on Confession in open Court” also suggests the power of Congress to “declare the Punishment of Treason,” which can be severe, only operates with respect to the Judicial trial venue. In short, it seems the power of Congress to declare punishment for treason should be associated only with the additional protections for the accused provided for in Article III. The fact that Article I specifically anticipates and provides for a separate judicial criminal trial for persons impeached and removed from office by the decriminalized Senate impeachment trial seems to clinch the argument.

Piracy, felonies on the high seas, and International Law – Article I, Section 8 enumerates specific powers of Congress. Regarding counterfeiting, a domestic crime, Section 8 states:

To provide for the punishment of counterfeiting...

However, regarding crimes with an international aspect, the wording is different, and the difference appears to be significant. Section 8 also states:

To define and punish piracies and felonies committed on the high seas, and offences against the law of nations;

Let's consider this difference in word choice: “provide for” vs. “define and punish”. The power of Congress to “define and punish” in cases where other nations may be affected appears to be, at a minimum, an explicit constitutional power of Congress to “discover”, on a case-by-case basis, the appropriate punishment for a class of cases where other nations may have an interest, and consequently when national security may be even more at issue than in some cases of treason.

In addition to the ability to punish on a case-by-case basis for this class of cases, the word “define” suggests that Congress might possibly have full judicial powers to also define these crimes, ex post facto, on a case-by-case basis. This is a highly debatable point. Note that to do so would not require an ex post facto law per se, but only a bill affecting one or more people under a set of circumstances acknowledged to be unique. Such a bill would not be a bill of attainder as such, first due to the technical point that approval by the executive branch would not be required (analogous to the king's approval for a bill of attainder), and second because if the punishment did not include a sentence of death, the procedure would thereby also not be a bill of attainder by definition. Thus, if it emerges that Congress does have power to define violations on a case-by-case basis for this class of cases, it seems almost certain the punishment cannot include a death sentence. Aside from the possible extent of the direct power of Congress to “define” for this class of cases, provision can always be made for a judicial trial of this class of cases, and the death sentence can be a consequence of Judicial conviction.

An alternative construction of “define” would be simply that it makes explicit the power of Congress to define what these crimes are, by statute, as with federal criminal law generally. A key point to consider here is that treaties are established by Article III as on the level of the constitution: the supreme law of the land. Because treaties may not indicate directly, or fully, what acts of individuals are or may be criminal as a consequence of the treaty, explicitly assigning to Congress the ability to “define” the criminal consequences of treaties resolves a potential ambiguity as to whether this is constitutionally a legislative or judicial function.

What process rights and responsibilities do individuals and Congress have?

The fifth amendment provides that a person shall not “...be compelled in any criminal case to be a witness against himself...” Because the fifth amendment excepts “cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger”, it is unclear what protection individuals may have in at least some cases involving treason, in cases of piracies or felonies on the high seas, and in cases involving “offences against the law of nations.”

What about impeachments for other than criminal grounds, or the congressional aspects of impeachment proceedings that may be on criminal grounds? The key point here is this: because this constitutional theory is so different from the current understanding, the general topic of the oversight powers of Congress must be fundamentally reviewed. It appears that regarding Congressional impeachment proceedings per se, Congress may have an unlimited power, or a very extensive power, to both obtain evidence, and to compel testimony. Testimony and evidence legitimately required by Congress based on its oversight duty and impeachment powers may, of course, be inadmissible in a Judiciary criminal proceeding.

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