United States v. Richmond

• Decision Date: 10 November 1982
• Docket Number: 82-CR-417 and 82-CR-418.,No. 82-CR-416,82-CR-416
• Citation: 550 F. Supp. 605
• Parties: UNITED STATES of America, Plaintiff, v. Frederick W. RICHMOND, Defendant.
• Court: U.S. District Court — Eastern District of New York

550 F. Supp. 605

UNITED STATES of America, Plaintiff, v. Frederick W. RICHMOND, Defendant.

Nos. 82-CR-416, 82-CR-417 and 82-CR-418.

United States District Court, E.D. New York.

November 10, 1982.

Raymond J. Dearie, U.S. Atty. by Francis Murray, Asst. U.S. Atty., Brooklyn, N.Y., for plaintiff.

Kalman V. Gallop, New York City, for defendant.

MEMORANDUM AND ORDER

WEINSTEIN, Chief Judge:

Defendant, a Member of Congress, agreed to plead guilty to income tax evasion (26 U.S.C. § 7201), supplementing the salary of a federal employee (18 U.S.C. § 209) and possession of marijuana (21 U.S.C. § 844). He also undertook to immediately resign from Congress and withdraw as a candidate for re-election. The government, in return, consented not to prosecute him for a variety of other crimes.

For the reasons indicated below those portions of the plea agreement pertaining to resignation from Congress and withdrawal as a candidate for re-election are void. They represent an unconstitutional interference by the executive with the legislative branch of government and with the rights of the defendant's constituents.

I

The written agreement between the prosecutor and defendant insofar as relevant states:

We understand that today Mr. Richmond is resigning his position as a member of Congress of the United States and withdrawing as a candidate for re-election to that position. Moreover, in the event that it is no longer possible for Mr. Richmond to formally remove his name from the ballot, Mr. Richmond will announce that he is no longer seeking renomination and re-election to his seat in Congress, and will take whatever legal steps are necessary to ensure he will not serve in the event he should be renominated and re-elected.... The plea of guilty, which Mr. Richmond will enter ... will result in the loss of his public office....

This portion of the agreement was invalid for three reasons. First, it conflicted with the fundamental right of the people to elect their representatives. Second, it interfered with the principle of separation of powers. Third, it contravened public policy by utilizing a technique latent with the possibility of Executive domination of members of Congress through the threat of forced resignations.

II

A.

The maxim that the people are sovereign in a republican form of government, Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 1071, 30 L.Ed. 220 (1886), has as its natural corollary that they retain the broadest freedom to select legislative representatives. "The true principle of a republic," argued Alexander Hamilton, "is that the people should choose whom they please to represent them." 2 Debates on the Federal Constitution 257 (J. Elliot ed. 1876), quoted in Powell v. McCormack, 395 U.S. 486, 540-41, 89 S.Ct. 1944, 1973-74, 23 L.Ed. 491 (1969).

This imperative was embodied in the Constitution by prescribing only a limited number of qualifications for congressional office. Const.Art. I, § 2, cl. 2, § 3, cl. 3 (age, length of United States citizenship, and instate residence requirements). See also Const.Art. I, § 6, cl. 2 (prohibition against members of Congress holding other federal office); Amend. XIV, § 3 (disqualification from congressional office of persons who, having previously sworn to support the Constitution, subsequently engaged in insurrection, rebellion or aid to the enemy). Our government's founders deliberately withheld from Congress the authority to add or detract from the enumerated qualifications. "The qualifications of the persons who may choose or be chosen, as has been remarked on other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature." The Federalist No. 60 (A. Hamilton). See also No. 52 (J. Madison).

The courts have not permitted attenuation of this fundamental principle. For example, in Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969), Congress attempted to indirectly impose additional qualifications by refusing to seat a congressman alleged to have misused congressional funds. Marshalling the constitutional text and ample historical material from both the pre- and post-ratification periods, the Supreme Court held that the exclusion was constitutionally impermissible. Since Congressman Powell had met the textually explicit criteria for membership and was duly elected by his constituents, even the House of Representatives was without power to exclude him. "The fundamental principle involved in Powell was the right of the people to elect whom they choose to elect for office." Stack v. Adams, 315 F.Supp. 1295, 1298 (N.D.Fla. 1970). It was the people of the Congressman's district who were to decide upon his moral and other qualifications, not Congress. A fortiori this inhibition applies to other branches of government.

The Constitution does empower the houses of Congress to discipline their members and in extreme cases to expel them by a two-thirds vote. This does not, however, materially restrict the freedom of the people to be represented by their chosen legislators. The reluctance of a political body to impose harsh sanctions on its members coupled with the requirement of a supermajority makes expulsion a most extraordinary remedy. It has rarely been invoked. See, Note, 82 Colum.L.Rev. 998, 1003-04 (1982). Even Congressman Powell would probably not have lost his seat had the vote to oust him been considered an expulsion. Powell v. McCormack, 395 U.S. at 506-12, 89 S.Ct. at 1956-59. In any event the power of the people to select is quite independent of the power of Congress to expel. Here the prosecutor attempted to subvert both the authority of Congress and that of the people.

It is significant that even the states are barred from imposing additional qualifications on congressional candidates. In a case of particular relevance, Application of Ferguson, 57 Misc.2d 1041, 294 N.Y.S.2d 174 (S.Ct.), aff'd, 30 A.D.2d 982, 294 N.Y.S.2d 989 (1968), the Secretary of the State of New York had construed state law to deny a convicted felon certification as a candidate for the United States Senate. The court properly held that state law could not render a felon ineligible from seeking federal legislative office.

In an earlier New York case, In re O'Connor, 173 Misc. 419, 17 N.Y.S.2d 758 (S.Ct. 1940), the court was asked to block the nomination of a federal convict and avowed communist for the House of Representatives. Denying the application, the court stressed the exclusivity of the constitutional qualifications. See also, Danielson v. Fitzsimmons, 232 Minn. 149, 44 N.W.2d 484 (1950) (state cannot bar the congressional candidacy of person convicted of conspiracy to overthrow the United States government); Dillon v. Fiorina, 340 F.Supp. 729 (D.N.M.1972) (striking down requirement that candidate in a primary for congressional office must have resided in the state for one year and have been a party member for an additional year prior to the election); Stack v. Adams, 315 F.Supp. 1295 (N.D.Fla. 1970) (invalidating law preventing state officials from simultaneously running for federal office); Hellmann v. Collier, 217 Md. 93, 141 A.2d 908 (1958) (invalidating requirement that a congressional representative must reside in the district from which he is elected); State ex rel. Johnson v. Crane, 65 Wyo. 189, 197 P.2d 864 (1948) (striking down prohibition against governor seeking the office of United States Senator). But cf. Signorelli v. Evans, 637 F.2d 853 (2d Cir.1980) (permissible for state to require state judges to resign before running for federal office).

Just as Congress and the states are prohibited from interfering with the choice of the people for congressional office, federal prosecutors may not, directly or indirectly, subvert the people's choice or deny them the opportunity to vote for any candidate.

B

Of the separation of powers under our political system Madison declared: "No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty." The Federalist No. 47. The essential role of the division of federal authority in the preservation of our liberty has been repeatedly stressed by the Supreme Court. See, e.g., United States v. Brown, 381 U.S. 437, 442-43, 85 S.Ct. 1707, 1711-12, 14 L.Ed.2d 484 (1965); Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952).

In order to effect a workable separation of powers scheme, Madison deemed it essential "that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others." The Federalist No. 51. While this principle was compromised with regard to members of the judiciary — being balanced by protections of appointment for life and against diminution of compensation — it was strictly observed in the constitutional formula for selection of members of Congress. Power to strip a member of Congress of elective office was committed to neither the executive nor the judiciary. It was explicitly reserved to Congress itself.

C

The possibility of the executive utilizing the threat of prosecution to force the resignation of a congressional representative involves potentially dangerous political consequences. It represents an opportunity for an assault on the composition and integrity of a coordinate branch of government. Taken together, investigative techniques such as those used in the Abscam cases, see United States v. Myers, 688 F.2d 817 (2d Cir.1982), the enormous spectrum of criminal laws that can be violated, the powerful investigative and prosecutorial machine available to the executive, and forced resignations through plea bargaining would provide an intolerable threat to a free and independent Congress.

Even where federal prosecutors properly adhere to their role, a member of Congress found guilty of criminal conduct may...