Nixon v. U.S.

• Decision Date: 05 August 1991
• Docket Number: No. 90-5246,90-5246
• Citation: 938 F.2d 239,290 U.S.App.D.C. 420
• Parties: , 60 USLW 2055 Walter L. NIXON, Jr., Appellant, v. UNITED STATES of America, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 239

938 F.2d 239

290 U.S.App.D.C. 420, 60 USLW 2055

Walter L. NIXON, Jr., Appellant, v. UNITED STATES of America, et al.

No. 90-5246.

United States Court of Appeals,

District of Columbia Circuit.

Argued March 14, 1991.

Decided July 9, 1991.

Rehearing Denied Aug. 5, 1991.

Appeal from the United States District Court for the District of Columbia.

David O. Stewart, with whom Peter M. Brody was on the brief, Washington, D.C., for appellant.

Douglas Letter, Atty., Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., and Jay B. Stephens, U.S. Atty., were on the brief, Washington, D.C., for appellees.

Morgan J. Frankel, Asst. Senate Legal Counsel, with whom Michael Davidson, Senate Legal Counsel, and Ken U. Benjamin, Jr., Deputy Senate Legal Counsel, were on the brief, Washington, D.C., for amicus curiae urging that the judgment of the District Court be affirmed.

Before EDWARDS, WILLIAMS and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.

Concurring opinion filed by Circuit Judge RANDOLPH.

Opinion dissenting in part and concurring in the judgment filed by Circuit Judge HARRY T. EDWARDS.

STEPHEN F. WILLIAMS, Circuit Judge:

Walter L. Nixon, Jr., formerly the Chief Judge of the U.S. District Court for the Southern District of Mississippi, was impeached by the House of Representatives and convicted by the Senate for giving false testimony to a grand jury investigating allegations that he had been bribed. Nixon seeks judicial review of the Senate's procedures--in particular, its use of a committee to take testimony and gather other evidence.

The Constitutional Convention, however, gave the Senate "the sole Power to try all Impeachments", Art. I, Sec. 3, cl. 6 (emphasis added). It not only rejected proposals to assign the power to the federal courts, but it did so for reasons that are almost impossible to square with any judicial role in the process. We find Nixon's claim nonjusticiable.

* * *

After an investigation into reports that Nixon had asked a local district attorney to stop the prosecution of a man whose father had enriched Nixon through an investment scheme, a grand jury indicted Nixon on one count of receiving an illegal gratuity and three counts of perjury before the grand jury. At trial, Nixon was convicted on two counts of perjury and acquitted on the other two counts. He was sentenced to prison, and his conviction was affirmed on appeal. See United States v. Nixon, 816 F.2d 1022 (5th Cir.1987); see also United States v. Nixon, 881 F.2d 1305 (5th Cir.1989) (affirming the denial of Nixon's motion for a new trial).

Even after this conviction, Walter Nixon refused to resign from his office as a United States district judge, and while serving time in prison he continued to draw his judicial salary. See H.R.Rep. No. 36, 101st Cong., 1st Sess. 13 (1989). The House of Representatives began impeachment proceedings, see id., and on May 10, 1989, it voted to impeach Nixon on three articles charging him with giving false testimony to the grand jury and bringing disrepute on the federal judiciary. See 135 Cong.Rec. H1811 (daily ed. May 10, 1989).

When these articles of impeachment were presented to the Senate, it invoked its own Impeachment Rule XI, under which the presiding officer appoints a committee of twelve senators "to receive evidence and take testimony". S.Imp.R. XI, reprinted in Senate Manual, S.Doc. No. 1, 101st Cong., 1st Sess. 186 (1989); see S.Res. 128, 101st Cong., 1st Sess., 135 Cong.Rec. S5199 (daily ed. May 11, 1989). The committee conducted four days of hearings, taking live testimony from ten witnesses, including Nixon himself. See S.Rep. No. 164, 101st Cong., 1st Sess. 4 (1989). It then transmitted to the full Senate a complete record of the evidence and a report, summarizing both the undisputed and disputed facts of the case without resolving contested issues or recommending any particular disposition of the charges. See id. at 3-4. After considering final briefs, hearing arguments on the Senate floor from both the impeachment managers and the defense, including a personal appeal from Nixon himself, and posing questions to the parties, see 135 Cong.Rec. S14,493-517 (daily ed. Nov. 1, 1989), the Senate voted by more than the constitutionally prescribed two-thirds majority to convict Nixon on two of the three articles. 135 Cong.Rec. S14,635 (daily ed. Nov. 3, 1989); see Art. I, Sec. 3, cl. 6. The presiding officer entered judgment removing him from his office as a United States district judge. 135 Cong.Rec. at S14,636.

Nixon then sued in district court, arguing that the Senate's failure to give him a full evidentiary hearing before the entire Senate violated its constitutional duty to "try" all impeachments. See Art. I, Sec. 3, cl. 6. He sought a declaratory judgment that his conviction by the Senate was void and that his judicial salary and privileges 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 agree.

* * *

"The House ... shall have the sole Power of Impeachment", Art. I, Sec. 2, cl. 5, and "The Senate shall have the sole Power to try all Impeachments", Art. I, Sec. 3, cl. 6. Nowhere else does the Constitution explicitly confer on a body the "sole" power to do anything. The only court to fully consider the issue before this case gave "sole" its full weight. It read the word to express an "intention that no other tribunal should have any jurisdiction of the cases tried under the provisions with reference to impeachment." Ritter v. United States, 84 Ct.Cl. 293, 296 (1936). The court went on:

The dictionary definition of the word "sole" is "being or acting without another" and we think it was intended that the Senate should act without any other tribunal having anything to do with the case. This would be the ordinary signification of the words and this construction is supported by a consideration of the proceedings of the Constitutional Convention and the uniform opinion of the authorities which have considered this matter.

Id. Indeed, the unanimous rejection of judicial review to which the court refers seems not to have been breached until Raoul Berger 20 years ago used a rather casual reading of Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969), to claim the availability of judicial review. See Raoul Berger, Impeachment: The Constitutional Problems (1973); Staff of Senate Comm. on Rules and Administration, 93d Cong., 2d Sess., Impeachment: Miscellaneous Documents 170-71 (1974) ("Committee Print") (memorandum on judicial review of impeachment proceedings by Stephen F. Goldstein).

The history of the Constitution's impeachment provisions bears out Ritter's understanding. Both of the broad proposals that provided the foundation for the Convention delegates' debates, Randolph's "Virginia Plan" and Paterson's "New Jersey Plan", gave the power to "hear and determine" impeachments to the federal judiciary. See 1 The Records of the Federal Convention of 1787, at 21-22 (Max Farrand ed. 1966) (Virginia Plan); id. at 425 (New Jersey Plan); see also P. Hoffer & N. Hull, Impeachment in America, 1635-1805, at 97-100 (1984). Madison supported this assignment, specifically favoring the Supreme Court, see 2 Farrand at 551, while Hamilton proposed a special court composed of the chief judge from each state's supreme court, see 1 Farrand at 292-93. However, once the Convention decided that a college of electors, rather than the Senate, should name the President, thereby eliminating a potential conflict between the Senate's roles as both selector and remover of the President, it authorized the Senate to conduct impeachment trials and to render final judgments by two-thirds vote. Hoffer & Hull at 98-99; 2 Farrand at 500-01, 552-53.

In the surviving scraps of Convention debate on the issue, the focus was on presidential impeachment. While both Madison and Pinckney opposed use of the Senate, as tending to increase executive dependence on the legislative branch, Gouverneur Morris responded that the Supreme Court was "too few in number and might be warped or corrupted", and Roger Sherman suggested that the Court was an improper forum to try the President "because the Judges would be appointed by him." 2 Farrand at 551. These themes of conflict of interest--so typical of the framers' concern over checks and balances--persisted into later discussions of applying the impeachment power to judges.

In The Federalist, Hamilton identified the impeachment power as the basis for constraining usurpation by judges. Thus, in Federalist No. 79 he wrote:

The precautions for their responsibility are comprised in the article respecting impeachments. They are liable to be impeached for mal-conduct by the house of representatives, and tried by the senate, and if convicted, may be dismissed from office and disqualified for holding any other. This is the only provision on the point, which is consistent with the necessary independence of the judicial character, and is the only one which we find in our own constitution in respect to our own judges.

The Federalist 532-33 (Jacob E. Cooke ed. 1961). A little later, though generally disparaging the risk of judicial aggrandizement as a mere "phantom", he went on again to identify impeachment as "the important constitutional check" and to justify the assignment to the Senate as a key assurance of the remedy's adequacy:

And the inference [that usurpations were improbable] is greatly fortified by the consideration of the important constitutional check, which the power of instituting impeachments, in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the...