Liberty, Prudence, Imperfection, and Law

“On Federal Impeachments: Why Past Reluctance Has Been Mistaken,” By Kevin Gutzman

Justice Samuel Chase

According to the Associated Press, “Former U.S. District Judge Richard Cebull sent emails to personal and professional contacts that showed disdain for blacks, Indians, Hispanics, women, certain religious faiths, liberal political leaders, and some emails contained inappropriate jokes about sexual orientation, the Judicial Council of the 9th U.S. Circuit Court of Appeals found.”  [sic]  Although various punitive measures were recommended, “The panel said impeachment was not warranted because Cebull did not violate federal or state law, though two of the judges on the council said they would have asked for his resignation.”

Here one sees the ongoing ramifications of the most flagrantly mistaken verdict in the history of the Federal Government:  the Senate’s acquittal of Justice Samuel Chase.  Chase, who had been a prominent Antifederalist, switched sides to become a Federalist leader during the Washington Administration.  Washington responded by appointing him to the United States Supreme Court in 1796.  There, Chase covered himself in infamy.

During the administration of Washington’s successor, John Adams, the country found itself in a war crisis. The XYZ Affair turned the tide of public opinion strongly in favor of the Federalist Party, and soon the country entered the Quasi War with France. Congress responded by adopting several war measures, notably the Alien & Sedition Acts.

From its inception, the federal judiciary had been more political than we understand to be proper today.  For example, the first chief justice of the Supreme Court, John Jay, delivered grand jury charges smacking of political addresses.  He also accepted a diplomatic appointment while chief justice, and he wrote a private letter to Washington recalling that Jay’s chief aim had been the success of Washington’s administration.

During the Sedition Act Crisis, federal judges’ partisanship became perfectly blatant.  The most notable instance involved Justice Chase.  In those days, members of the Supreme Court served not only as members of that tribunal, but as presiding judges of circuit courts of appeal in their assigned circuits.  A Marylander, Chase had the circuit including Maryland and Virginia.  On one notable occasion, Chase brandished a book to a man in Maryland and told him that when Chase arrived in Virginia, he would have its author indicted by a grand jury, tried for sedition, and convicted before he threw the book at him in the proceeding’s sentencing phase.

Immediately thereafter, Chase did precisely that.  He thus bestowed eternal notoriety upon the target of his machinations, defendant James Thomson Callender.  The grand jury did Chase’s bidding apparently somewhat reluctantly. At, trial, one of the counsel for the accused resigned from the case when, during presentation of the case for the defense, Chase interfered with the examination of witnesses and mocked defense counsel to the jury so extensively as to deprive Callender of a fair trial. The jury convicted Callender, as Chase’s handling of the trial had left it essentially no choice but to do, and Chase sentenced the journalist to a fine and jail time—the term to expire two days before President Adams’ term.

Callender’s trial had been a cause celebre for Republicans, with Virginia’s attorney general, Governor James Monroe’s son-in-law, and a future US attorney general as his legal team.  During his incarceration, both Virginia’s Chancellor George Wythe and Governor Monroe visited him in jail.

Republicans’ concern about the federal judiciary reached an even more elevated level as a result of events between the Republican sweep in the November elections and President Thomas Jefferson’s March inauguration.  In that interregnum, the defeated congressional majority moved to establish the federal judiciary as a permanent Federalist redoubt with the Judiciary Act of 1801.  Besides the needed elimination of justices’ circuit-riding duties, that law also established numerous new life-tenured judicial posts.  Republican mythology pictured Adams spending his last nights as president signing commissions for “Midnight Judges” whose mission would be to thwart the people’s will, as represented by the incoming Republican majorities.

Therefore, Republicans in Congress quickly repealed the Judiciary Act of 1801.  Numerous federal judges believed the repeal unconstitutional insofar as it deprived life-tenured judges of their posts.  Ultimately, however, they decided that discretion was the better part of valor, and so did not confront the elected branches on this issue.  Thus did the United States lose out on the prospect of a second Marshall, the chief justice’s brother, on the federal bench.

In his “Autobiography,” written decades letter, Jefferson recalled that he had taken another decision to prevent the Federalists’ plans for the judiciary from coming to fruition.  Finding numerous judicial commissions in the State Department upon his inauguration, Jefferson decided not to deliver them.  Thus was the stage set for Marbury v. Madison (1803), surely one of the five most famous Supreme Court decisions in history.  In his majority opinion in that case, Marshall unnecessarily lectured Jefferson and Secretary of State James Madison concerning the supposed iniquity of their decision not to deliver the commissions.  As Marshall told it, the appointees had a right to them.  Ingeniously, Marshall concluded that the Court could not order Madison to deliver Marbury his commission, because the law purporting to empower the Court to issue such an order was unconstitutional; Marshall thus claimed a great power for his branch even as he omitted to issue an order that Madison and Jefferson were sure to flout.

Republicans found this behavior infuriating.  In the House of Representatives, the majority had already begun to train its main gun on the judiciary.  Early in 1803, the House impeached Judge John Pickering of the US District Court for the District of New Hampshire.  In his Senate trial, Pickering’s counsel said that impeachment was inappropriate in his client’s case, because he his supposed misdeeds did not fall under the umbrella of “treason, bribery, or other high crimes and misdemeanors.”  The House managers said Pickering frequently presided over his court drunk, and his son interjected that not dipsomania, but senility accounted for the judge’s mental incapacity.  The Senate, without stating its view on this matter, convicted Pickering nonetheless.

Next, the House targeted a bigger fish:  Chase.  Although not all of the Articles of Impeachment concerned the Callender case (Chase had been a serial abuser of his office), most did.  They said:

Article 1. That, unmindful of the solemn duties of his office, and contrary to the sacred obligation by which he stood bound to discharge them “faithfully and impartially, and without respect to persons,” the said Samuel Chase, on the trial of John Fries, charged with treason, before the circuit court of the United States, held for the district of Pennsylvania, in the city of Philadelphia, during the months of April and May, one thousand eight hundred, whereat the said Samuel Chase presided, did, in his judicial capacity, conduct himself in a manner highly arbitrary, oppressive, and unjust… .

Art. 2. That, prompted by a similar spirit of persecution and injustice, at a circuit court of the United States, held at Richmond, in the month of May, one thousand eight hundred, for the district of Virginia, whereat the said Samuel Chase presided, and before which a certain James Thomson Callender was arraigned for a libel on John Adams, then President of the United States, the said Samuel Chase, with intent to oppress and procure the conviction of the said Callender, did overrule the objection of John Basset, one of the jury, who wished to be excused from serving on the said trial because he had made up his mind as to the publication from which the words charged to be libellous in the indictment were extracted; and the said Basset was accordingly sworn and did serve on the said jury, by whose verdict the prisoner was subsequently convicted.

Art. 3. That, with intent to oppress and procure the conviction of the prisoner, the evidence of John Taylor, a material witness on behalf of the aforesaid Callender, was not permitted by the said Samuel Chase to be given in, on pretense that the said witness could not prove the truth of the whole of one of the charges contained in the indictment, although the said charge embraced more than one fact.

Art. 4. That the conduct of the said Samuel Chase was marked, during the whole course of the said trial, by manifest injustice, partiality, and intemperance… .

Art. 5. … The said Samuel Chase did, at the court aforesaid, award a capias against the body of the said James Thomson Callender, indicted for an offense not capital, whereupon the said Callender was arrested and committed to close custody, contrary to law in that case made and provided.

Art. 6. And whereas it is provided by the 34th section of … “An act to establish the judicial courts of the United States,” that the laws of the several states, except where the Constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as the rules of decision in trials at common law in the courts of the United States, in cases where they apply; and whereas, by the laws of Virginia, it is provided that, in cases not capital, the offender shall not be held to answer any presentment of a grand jury until the court next succeeding that during which such presentment shall have been made, yet the said Samuel Chase, with intent to oppress and procure the conviction of the said James Thomson Callender, did, at the court aforesaid, rule and adjudge the said Callender to trial, during the term at which he, the said Callender, was presented and indicted, contrary to law in that case made and provided.

As Pickering’s counsel had, so in this case Chase’s lawyers pointed to the Constitution’s statement that judges and other federal officials could be removed from office on Senate conviction of “treason, bribery, or other high crimes and misdemeanors.”  Fixing a trial was not treason, they said.  It was not bribery.  It was not a crime in the sense of “offense indictable at common law.”

In the end, Chase’s counsel won the day:  their client was acquitted, barely.  Hearing of the result, Jefferson lamented that impeachment had proven to be completely useless.  We may add that if Chase had not abused his position sufficiently to be removed by the Senate in an impeachment trial, it is unlikely that any justice ever will.

Federal judges commonly refer to the Chase acquittal as a great victory for the rule of law.  Only by that narrowest of Senate margins did America avoid a politicization of its judiciary akin to that of revolutionary France, say, or Soviet Russia.

Unfortunately, the Chase acquittal rested on a misunderstanding of the phrase “high crimes and misdemeanors.”  Contrary to the lawyers for Pickering and Chase, that term had a technical legal significance at the time of the Constitution’s ratification.  As Marshall himself wrote, where the Constitution employs a term with a technical legal significance, we are to read it in that technical sense.  So, for example, the ban on ex post facto laws does not ban retrospective civil laws, because the term was understood in the 1780s to apply solely to criminal laws.  Thus did Congress in 2009 adopt retroactive tax increases without anyone’s objecting that doing so violated the Ex Post Facto Clause.

The English precedents, particularly from the 17th-century disputes between the Stuart kings and Parliament, show that “high crimes and misdemeanors” were not mere criminal offenses.  Rather, they were grave matters of state.  In other words, not punching a man in the face, but advising the king to bring his Irish army to England to cow Parliament into complying with his commands led the House of Commons to impeach the Earl of Strafford and the House of Lords to convict him of “high crimes and misdemeanors.”  (I recommend Colin G. C. Tite, Impeachment and Parliamentary Judicature in Early Stuart England, for the whole story.)

Chase, in short, should have been removed from office.  The precedent that Supreme Court justices can rule in essentially whatever way they want without risking removal from office should never have been established.  Jefferson’s hopes for the impeachment power should not have been disappointed.

So, finally, what are we to make of the matter of Judge Richard Cebull?  Several elements of his experience with Judicial Branch discipline warrant our attention.

First, the conclusion that since he had committed no crime, he had done nothing impeachable is simply erroneous.  The purpose of Congress’s impeachment power is not simply to enable Congress to boot tax dodgers from the federal bench; rather, it is to give Congress a means of ensuring that unelected, unaccountable officials have to respect the Constitution.

Second, the impeachment power is not to be supplemented by a Judicial Branch power of self-policing.  Nowhere does the Constitution say that federal judges shall hold their offices during good behavior, may be removed from office on conviction of treason, bribery, and other high crimes and misdemeanors, and may be put on permanent leave—or any other disciplinary leave—by panels of inferior-court judges.

Third, the private jokes he circulated, however lacking in humorous content and redolent of stupidity, in no sense fell into the class of behaviors for which the impeachment power was devised.  To the contrary, that the most notoriously loopy federal court in the country castigated him for a thought crime in response to these “jokes” illustrates the reason why the impeachment power was lodged in Congress rather than in federal courts.  Who do federal judges think they are, anyway?  Cebull’s counsel ought to have argued that the entire proceeding was unconstitutional.

Fourth, on the other hand, if Cebull could be shown to have treated counsel or parties disparately on the basis of non-germane factors such as race or religion, his behavior would to that extent have resembled Chase’s.  Then, he would have deserved removal from his office.  He could, however, have pled the Chase precedent in his own defense.

[Note:  Readers may be led by my statement that the impeachment power was not meant for judges who violated the tax laws to ask what is to be done about such as they, and whether they must be allowed simply to serve out their natural lives, up to the statutory retirement age, despite their crimes.  Here I fall back upon Raoul Berger’s discussion in his great book on impeachment of the writ of scire facias.  Berger shows that this writ is the proper means of enforcing good behavior tenure, and that Congress need not be tied up for days in impeaching and trying every federal appointee who breaks the law.  Unfortunately, Congress has from the earliest days treated the statement that federal judges will hold their posts “during good behaviour” [sic] as merely an alternative way of saying that they can be removed via impeachment.  My general point is that scire facias should be used to eject law-breakers and that impeachment is for the Brennans, Clappers, and Nixons.]

Kevin R. C. Gutzman is the New York Times best-selling author of four books. These include his latest title, James Madison and the Making of America. Professor of History at Western Connecticut State University, Gutzman holds a bachelor’s degree, a master of public affairs degree, and a law degree from the University of Texas at Austin, as well as an MA and a PhD in American history from the University of Virginia. 

4 Responses to ““On Federal Impeachments: Why Past Reluctance Has Been Mistaken,” By Kevin Gutzman”

  1. gabe

    Prof. Gutzman:

    Great piece and a nice little history lesson on Chase for me.

    i have never understood why it is not generally recognized that impeachment is and was intended to be a political decision above all else.

    Of course, even if one recognizes that nowadays, it still takes a certain amount of will to exercise – and there we are entirely lacking (or the legislature hides behind judicial policy making to mask their own perfidy).
    consequently, we are subject to the whims and fantasies of a judiciary set “to make the world over again.”

    Rather distressing!

    take care

  2. John E. Jenkins

    Thank you Kevin. I enjoyed your essay. Your readers, here, should read R. Beger’s book. I have owned R.Berger’s book on Impeachment for a number of years. He did commit himself to in his later book, Government by Judiciary. (I see where you are coming from.) I mentioned to Peter that I am in the process of writing my second novel, entitled “TIME OF THE SCARECROW”. (Ring a bell?)
    Thanks again, Please continue in your endeavors for NOMOCRAY. This is a marvelous site for those of us who believe in our REPUBLICAN (as a nation and of States) — values.
    Respectfully, John


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