Nixon v. US

Decision Date10 August 1990
Docket NumberCiv. A. No. 89-3154-LFO.
Citation744 F. Supp. 9
PartiesWalter L. NIXON, Jr., Plaintiff, v. UNITED STATES of America, Defendant.
CourtU.S. District Court — District of Columbia

David Overlock Stewart, Peter M. Brody, Ropes & Gray, Washington, D.C., Boyce Holleman, Michael B. Holleman, Boyce Holleman, P.A., Gulfport, Miss., for plaintiff.

Stuart M. Gerson, Asst. Atty. Gen., Brook Hedge, Branch Director, Tracy L. Merritt, Atty., Dept. of Justice, Civ. Div., Washington, D.C., for defendant.

Michael Davidson, Senate Legal Counsel, Ken U. Benjamin, Jr., Deputy SLC, Morgan J. Frankel, Claire M. Sylvia, Assts. SLC, Washington, D.C., for U.S. Senate, amicus curiae.

MEMORANDUM

OBERDORFER, District Judge.

Walter L. Nixon, Jr., was a United States District Judge for the Southern District of Mississippi until removed from office on November 3, 1989, as a result of a conviction by the United States Senate on two of three Articles of Impeachment previously adopted by the House of Representatives. The impeachment derived from Nixon's 1986 conviction on two counts of making false statements to a Grand Jury with respect to an investigation of charges that he had accepted gratuities and interfered with prosecution on drug charges of the son of a business associate.

Nixon sues the United States, James A. Baker III, Secretary of the State, and Ralph Mecham, Director of the Administrative Office of the United States Courts for a declaration that the conviction voted by the Senate on the impeachment charges is void. His theory on the merits derives from the terms of the U.S. Const. Art. I, § 2, cl. 5 which vests in the Senate "the sole Power to try all Impeachments." He contends that this language requires the Senate as a body to "try" an impeachment on the floor of the Senate so that all Senators can, if present, see the witnesses, hear their testimony, and thereby effectively appraise their credibility. He complains that in this case, despite his requests for trial before the "full" Senate, the Senate, as such, did not see witnesses and hear their testimony. Instead, operating pursuant to Rule XI, Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials, adopted in 1936 but employed for the first time in 1986 and 1989 for the impeachment trials of Judges Harry Claiborne and Alcee Hastings, the Senate appointed a committee of twelve Senators. Only the committee members viewed the evidence and took the testimony of witnesses. Therefore, plaintiff claims, in essence, that Rule XI and his conviction violate the literal requirement of Article I that only "the Senate" is authorized to "try" an impeachment and take testimony of witnesses.

I.

Rule XI provides in relevant part:

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....
... 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 be received by the Senate and the evidence so received and the testimony so taken shall be considered to all intents and purposes ... as having been received and taken before the Senate....

A Senate Resolution, adopted pursuant to Rule XI, appointed a Committee of twelve Senators to hold an evidentiary hearing, to submit to the Senate "a certified copy of the transcript of the proceedings before the committee and testimony had and given before it," and to "report to the Senate a statement of facts and a summary ... of evidence that the parties have introduced on the contested issues of fact."

The committee took testimony over four days. The House managers called four witnesses. Six witnesses, including the plaintiff, testified in his defense. The hearings were broadcast live to all Senate offices and videotaped for future reference by Senators. The record is silent as to how many Senators took advantage of these opportunities to view the committee proceedings. The committee was not authorized to, and did not, vote on guilt or innocence and made no recommendation. Its report, filed on October 16, 1989, did however note that:

Many specific details — including some that are very important — about each of these conversations are disputed by the parties. Indeed, the committee received dramatically inconsistent testimony concerning the substance, date, and result of these conversations from the participants in the conversations themselves — Judge Nixon, Wiley Fairchild, and Bud Holmes—as well as from a fourth witness,.... Familiarity with these witnesses' various, and divergent, testimony concerning these three conversations is critical to obtaining an understanding of the parties' respective positions....

Report of the Impeachment Trial Committee on the Articles Against Judge Walter L. Nixon, Jr., S.Doc.No. 164, 101st Cong., 1st Sess., at 18-19 (1989).

During the course of the proceedings, plaintiff filed a motion before the committee for a trial before the full Senate based on the provision of Rule XI that:

Nothing herein shall prevent the Senate from sending for any witness and hearing his testimony in open Senate....

The committee denied that motion on July 25, 1989. Following the filing of the Committee's Report on October 16, 1989, plaintiff filed a brief in the full Senate on October 24, 1989 which included a footnote renewing the motion for a trial before the open Senate. The note and a significant portion of the brief emphasized the importance of credibility issues to the case; the brief further asserted that the omission from the Report of several passages of plaintiff's own testimony was misleading and inaccurate. In any event, no witnesses appeared before the full Senate hearing. However, plaintiff himself made part of the oral argument on his own behalf. Before the Senate voted on the merits of the impeachment, it voted 90 to 7 to deny plaintiff's renewed motion for a trial before the Senate.

Meanwhile, in June 1989, plaintiff intervened in an action brought by Judge Hastings before Judge Gerhard Gesell of this Court. Judge Hastings had been the defendant in a criminal trial which ended in his acquittal. He was nevertheless the subject of impeachment proceedings in which only a Rule XI Committee of the Senate heard testimony. Judge Hastings' case in this Court raised, among other things, the constitutional issue pressed by plaintiff here that he was entitled to an evidentiary hearing before the Senate. On July 5, 1989, Judge Gesell dismissed plaintiff's claim on the ground generally that the Senate's decision to proceed as it did was within its unreviewable prerogative in the absence of some clear constitutional violation. Hastings v. United States Senate, 716 F.Supp. 38 (D.D.C.1989). On October 18, 1989, the Court of Appeals affirmed the dismissal on the ground that the plaintiff's challenge to the Senate proceedings was premature. Hastings v. United States Senate, 887 F.2d 332 (D.C.Cir.1989).

II.

Plaintiff argues that the procedure used to impeach him was fundamentally unfair. He asserts that the issues in his trial were dependent, indeed turned, on witness credibility, particularly as one of the key witnesses against him recanted earlier testimony in the trial in federal court but recanted the recantation in testimony before the Senate Committee and another key witness, testifying before the Senate Committee, repudiated a prior sworn affidavit and deposition testimony. To demonstrate that he does not rely on a mere technicality but on a functional difference between hearing testimony firsthand and relying on the Committee's Report, plaintiff has submitted tabulations showing that in the final vote before the full Senate a substantially greater percentage of the Committee members voted to acquit him than did Senators who were not Committee members and did not see and hear witnesses. Furthermore, he submits such figures for the impeachment trials of former Judges Claiborne and Hastings, the only other impeachment trials in which the Senate appointed a committee of twelve senators pursuant to Rule XI, that also show a substantially greater percentage of committee members voting to acquit than non-committee members. Plaintiff notes that one of the two counts on which he was convicted and all of the eight counts on which former Judge Hastings was convicted failed to receive a two thirds majority of committee members and thus might not have received such a majority in the full Senate had all of the Senators heard the evidence directly. This showing lends support to plaintiff's claim of unfairness. However, it leaves a difficult question, discussed below, as to whether the unfairness constitutes a constitutional violation cognizable by a federal court under existing precedent.

III.
A.

This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 because the action "`will be sustained if the Constitution ... is given one construction and will be defeated if it is given another.'" Powell v. McCormack, 395 U.S. 486, 514, 89 S.Ct. 1944, 1960, 23 L.Ed.2d 491 (1969) (quoting Bell v. Hood, 327 U.S. 678, 685, 66 S.Ct. 773, 777, 90 L.Ed. 939 (1946)). The availability of the judicial remedy sought by plaintiff depends, therefore, on whether the controversy here is justiciable.

B.

Decision on both justiciability and, if reached, the merits of the constitutional arguments turns on the literal, contextual, and historic meaning of the word "try" as it appears in Article II, § 3, cl. 7. Some clues to the meaning of that word appear in the Constitution itself.

Article I, § 2, cl. 5 vests in the House of Representatives "the sole Power of Impeachment." That provision is quite separate and apart from Article I, § 3, cl. 6 which provides in language characteristic of criminal trials in court before a jury that:

The
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2 cases
  • Nixon v. U.S.
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 5 Agosto 1991
    ...should be reinstated from the date of his conviction. The district court held that his claim was nonjusticiable, see Nixon v. United States, 744 F.Supp. 9 (D.D.C.1990), and we * * * "The House ... shall have the sole Power of Impeachment", Art. I, Sec. 2, cl. 5, and "The Senate shall have t......
  • Nixon v. United States
    • United States
    • U.S. Supreme Court
    • 13 Enero 1993
    ...void and that his judicial salary and privileges should be reinstated. The District Court held that his claim was nonjusticiable, 744 F.Supp. 9 (D.C.1990), and the Court of Appeals for the District of Columbia Circuit agreed. 290 U.S.App.D.C. 420, 938 F.2d 239 A controversy is nonjusticiabl......

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