Transcripts For CSPAN Public Affairs Events 20240713

The case was about walter nixon. Three articles of impeachment where. Did. Were adopted. Drama focused on what happened in the senate. Impeachmentesented rule 11. Ofre was a Committee Senators appointed to receive testimony and that is what the committee did. And based on the committee report, the senate convicted judge nixon. He was removed from office. He sued and said senate rule 11 violates the constitutional grant of authority for the senate to try all impeachment does it prohibits the whole senate from participating. In the District Court and the court of appeals said the claim was nonjews nonjudicial ball. It involves a political question. Court agreed. Wasin a decision that unanimous although it has some important concurring opinions, the Supreme Court said it is indeed nonjudicial. And they had a bunch of Different Reasons for that conclusion. Host we talk about judicial due process. Is there such a thing when it comes to impeachment . The requirements of the constitution itself and the Supreme Court said there are three textual requirements in the constitution about what a trial in the senate should consist of. Senate membershe have to be undergrowth or affirmation. You need a two thirds vote to convict. And the chief justice presides when a president is tried. As long as the other requirements were met. The Supreme Court said it is up to the senate to decide what a trial consist of. It is up to the senate to decide and not up to the Supreme Court to secondguess. Digging into the chief justices role and it was rehnquist back in this case that wouldve presided over the senate. John roberts if and when that happens this time around. What are the rules about what the chief justice can say about what is fair or reasonable . Constitution does not specify. It just says the chief justice shall preside. We know from the clinton impeachment that chief Justice Rehnquist viewed it his rule merely to make procedural rulings. When objections would be admitted but not to make any substantive judgment about whether or not the president was guilty. And that was his role. The Supreme Court in some of their questions and separate opinion in the next and case one justice raised the possibility of what would happen if the chief justice would die . The senate decided another justice would be the vice chief justice and preside. As long as chief Justice Roberts were in fact to show up in the senate during a president ial impeachment, the nixon president vixen precedent nixon as long as the chief justice had some role in participating before the senate voted as a whole, that would satisfy the constitution. To 2019, what up are your thoughts on the letter from the White House Counsels Office last week to congress saying House Democratic leadership has designed and implemented the impeachment inquiry in a manner that violates fundamental fairness and constitutionally mandated due process. The alternates in case does case the walter next in does not support that conclusion. The suggestion that each house has sold power over a decision to impeach. It indicates there are no minimal standards that have to be met aside from the three requirements we talked about. Affirmation, two thirds vote and chief justice. That, both houses have tremendously broad discretion. Do you think there would be any difference in the mind of the court . In 1992, the case was about actions in the senate. The concerns of the white house right now are about the house. The house, like the senate, would have sold power over its constitutionally assigned of authority and judges would be able to intervene. The walter nixon case, two justices suggested that if the senate were to interpret in a way that when against the dictionary meaning of the term, for example, decided to have a coin toss instead of evaluating the evidence, perhaps judges could intervene. Do if the house were to this, that might be challenged. And maybe some justices would buy that argument. Greaty, we see a reluctance to have judges involved in the impeachment process. One of the most interesting parts of the nixon decision was thensive quotes about exclusion of justice from the impeachment process. They thought if a president were subsequently to be tried in ordinary criminal court come he would be before judges and you would not one of the same people who impeached him to be deciding his criminal guilt. The founders also felt the courts word too small to judge and impeachment. It would be better to have the large house and smaller Senate Rather than just the nine Supreme Court justices. There is plenty to suggest the founders did not want justices involved in the impeachment process. That is likely to carry a lot of weight with justices today. Jeffrey rosen, we always appreciate your help. Great to talk as always. The opinion came down in january 1993 and the case was argued in the work 1992. There is the full oral argument. On v. The United States. The constitutional says the accused must have the opportunity to present his case. With witnesses. Before the newly convened senate. Under impeachment role of 11, however, the trial was heard only in front of 12 senators. Impeachment trial requirement is important because it ensures to the greatest extent possible i suppose when you call it a trial before 12 senators think that if you look rule 11 you referred to it as the impeachment trial clause. You might just as well refer to it as the sole power clause. Been theonor, that has position of respondents but that word is the only relevant word in the passage and it cuts all review off by the courts. But i think on the reading of that word hangs a tremendous amount so it is not defensible. The other side will be partial also. Fair enough. There are several elements that the trial requires a limited they limit the power of the senate. That it caninsist only be proof of an offense, high crimes or misdemeanor another element by which they try to control the impeachment and removal power is by providing a third two thirds majority has to be present. And another important element is that the Senate Must Conduct the impeachment trial. Stewart, do you think this language is such that the interpretation by this court could supersede that of the senate . In other words, supposing your client was in a position where he has been removed from office but instead of claiming that the trial requirements that you see had not been met come use it he said i am not guilty of anything that could be called a high crime and misdemeanor. I think it is reviewable. I do think that would be reviewable here. And maybe it would be useful for directly the question of sole power and the question of reviewability, which we think really the respondents have hung so much on. An ordinary reading of the clause the senate shall have the sole power to try impeachment sole would simply describe the fact that the senate has the power to try the case, and no other forum has the power to try the case, and that Justice Rehnquist what would the language have meant, in your view, if the word sole were not there, if it simply said the senate shall have the power to try all impeachments . Mr. Stewart well, of course, thats the way the clause was written as it was initially approved, and it was only in the committee of style that the word sole was adopted. It means that the senate has the power to determine trial procedures. Admission of evidence, there are lots of elements of a senate trial that do not resemble a court trial. For example, theres no standard of proof. The senate has refused to have a standard of proof, and we dont think that would be reviewable, but what does remain reviewable is whether there was a trial at all. Justice oconnor well, would it be reviewable, in your view, if a quorum was not present at all times, and could a senator vote ultimately who had not heard all of the evidence, in your view . Getting t are you asking the court to get into . Mr. Stewart your honor, those are two different questions, i think, and let me try to answer them separately. The question whether a senator could vote without having heard all the evidence, my answer to that is yes. All thats required is that there be a quorum present, and that by definition means you could have as many as 49 senators not present and those senators might well vote. Many senators in the past have asked to be excused from voting if they didnt hear the evidence, but theres no constitutional issue presented. Your initial question, though, was is there a problem if there as not a quorum present, and my answer to that, i think, has to be yes, that that would be the senate was not duly constituted. If it is in the record that the senate was not duly constituted and the senate recklessly went ahead with the trial anyway over the objection of the accused, that would in fact be reviewable. There you would have no trial actually being held before the senate. Justice scalia but you think it is a trial if people who havent been present at the proceedings come in and vote. You consider that a trial. Mr. Stewart it is a senate trial as provided in the constitution, yes. A senate trial is Justice Scalia i dont know how youre drawing the line between the one and the other. Mr. Stewart if you look at scalia i thought a trial means you present evidence before someone who then decides, the person to whom the evidence has been presented. You say thats not what a trial is. Mr. Stewart i have no problem with the proposition that the framers intended all senators to be present, but what they provided in the text of the constitution is that the senate can conduct its business with a quorum present. If the senate is then in that impeachment trial clause to try the case, then it need only have a quorum present. Justice scalia you say a quorum present during the trial, right . But it can be a different. Your point is, it can be a different quorum. One portion of the senate can hear the evidence, and another portion vote, and thats a trial. Mr. Stewart surely undesirable from a point of citizenship Justice Scalia i know its undesirable. I dont think its a trial. Oconnor what about this court, if we exercise original jurisdiction and appoint a master, and we dont all sit there and hear the evidence. Have we conducted a trial that fails to meet the constitution . Mr. Stewart those proceedings do not resemble an impeachment proceeding to the extent that they involve stripping an individual of rights. In that kind of case there is a statutory provision Justice Oconnor oh, well, i think they could involve a great many rights water rights or one thing and another. That are terribly important. Mr. Stewart but there is no provision in the constitution that provides that the trial must be before this court in those cases. The only provision that would be applicable, i think, would be the seventh amendment which might well, when you had an individual present, provide a right to a jury, and indeed there is a statute that provides for a jury trial right in those circumstances in this court. Of course, it hasnt been used for many years, but there is that right. Justice kennedy what would you do if the senate did not allow the accused official to face and confront the witnesses against him . Mr. Stewart your honor, im not sure i completely understand the question. If the Justice Kennedy well, the senate says you cant crossexamine any of the witnesses against you. Mr. Kennedy mr. Stewart your honor, i think that would not Justice Kennedy and you cant be in the room when theyre testifying. Mr. Stewart to answer the first question, you cant crossexamine the witnesses, we state that the irreducible requirement of the trial is the opportunity to present your case, present your witnesses, and confront the witnesses against you, so there would be a right of crossexamination, and you could pose that hypothetical where there is no right of crossexamination, and i would say that is not a trial, but if the issue were one of the scope of crossexamination, that would be one confined to the discretion of the senate. What is the standard . If you can refer to a word in the constitution to resolve the issue, then we have jurisdiction, is that about the way it goes . Mr. Stewart there has to be a specific requirement in the constitution, and i draw this from baker and carr and also from powell v. Mccormack. If there is a specific requirement like the twothirds majority vote, like the requirement that the house impeach officers before they face trial in the senate, if there is that specific requirement, then that is a justiciable question, and thats one that the courts have to decide. Justice rehnquist mr. Stewart, in both the trial of samuel chase and the trial of Andrew Johnson there was a great deal of motion being made and demands made for continuance on the part of the defendants, and the senate insisted in both cases that they be brought to trial much more rapidly than would be conceivable in an ordinary criminal case. You know, they were given Something Like 10 days to prepare. Is that something that would be reviewable as an incident of a trial if the claim were made that we simply did not have a fair opportunity to prepare . Mr. Stewart no, sir, and in those instances as i recall the case was extended for a substantial period of time and there certainly was an opportunity to prepare, but no, i do not think that would be reviewable. Justice rehnquist well, would you say that if youre going to be divested of the office of associate justice or of president that 10 days was sufficient to prepare . Mr. Stewart no, i would not, an interestingly, i think the framers imposing the trial clause were very wise to impose the trial clause, because when youre dealing with the chief justice or a justice of the Supreme Court or the president , there is a political attention to this which i think will slow down the process in most instances. You point out instances where it didnt, but in fact there were partisans for those individuals who attempted to support them and defend their rights. When youre dealing with a lower court judge you dont have those protections. Justice rehnquist so you would read the trial clause differently if youre dealing with a lower court judge than if youre dealing with some highly visible official . Mr. Stewart i dont mean to say that, your honor, no. What i mean to say is, it simply highlights the importance of the trial when youre dealing with a lower court judge. You rest your argument on the assumption that the meaning of the word trial is clear. Would your position be the same if we conclude that the meaning of the word trial in this context is ambiguous . Mr. Stewart your honor, i think to rule in our favor the court has to conclude that the word try does have meaning and the meaning is as we say that there is an irreducible requirement of an opportunity to present your case and confront your case, and that meaning i dont think is so elusive when you compare the impeachment clause to other clauses of the constitution creating powers for the senate for example, the power to be the judge of elections. That doesnt have any element of confronting witnesses or presenting witnesses. Thats simply a requirement of a decision. In this instance, though, try means something else, and i think respondents position, in order to rule for them you really have to say that try is the same as be the judge as, and when you look at the history, when the first senate, which included framers, had to apply both of these provisions when they were applying the elections clause they had evidentiary proceedings before committees, but when they were applying the impeachment clause, when they were conducting impeachment trials they did those before the senate. That was the common sense understanding of the time, and i think that case casts an important light on the question before the court here. Justice souter all right, but if we should disagree with you about the clarity of meaning, do i understand you correctly to concede that the case should. That the case should and we conclude that the word is ambiguous, do i understand you correctly to concede that the case should be decided just as it would be as if we were dealing with an issue which the constitution did not expressly address in any way . In other words, we would defer by a conclusion of nonjusticiability to the senate to make the determination and leave it where it is. Mr. Stewart your honor, i think we would lose. Im not exactly comfortable as to whether that is a nonjusticiable question or simply we would lose on the merits. Justice souter but thats the least of your concerns. Mr. Stewart yes, sir. Justice Souter okay. is this part of your argument, that the issue is justiciable . Mr. Stewart yes, it is, and id be happy to address it, because it seems to me that justiciability, as i was saying earlier, hangs so much on the word sole. A reasonable reading of the word sole is that it means simply that the senate has the power to try the case and no other forum does. Its not that the word excludes judicial review. If the framers intended to exclude judicial review of impeachments, why not do so . Why not say that the judicial power shall extend to all cases arising under the constitution except impeachments . Thats what they did in the pardon clause. The pardon clause says that the president ial power to pardon shall extend to all cases except cases of impeachment. Well, the framers didnt do that, and that seems very persuasive to us in two respects. First, they clearly did not choose to exclude judicial review, therefore the ordinary presumption of judicial review, the power of this court to say what the law is, applies, but by the same token when they didnt accept this notion that impeachment trial is this island, unreachable by any other entity, that they recognized unless they excluded the president from exercising pardon power, well then, he would have the power to exercise to pardon individuals who had been impeached and convicted. Justice kennedy could the accused official waive the right that you claim is his . Suppose an official says this is very complicated testimony and i want senators who can focus on the testimony, and the senate says well have the evidence presented before a committee of 15 senators, and he wants that, can he do that and then refer the matter to the whole senate . Mr. Stewart absolutely. i think any individual can waive a constitutional right, and i think in fact Justice Kennedy but if you were a senator i take it you would stand up on the floor of the senate and say i must point out that this is an unconstitutional proceeding. Mr. Stewart if i were a senator and i objected to that because i wanted to hear the testimony, then i would have the right to go listen to the testimony. Justice kennedy well, i think youd have the obligation to tell your colleagues that they are proceeding in an unconstitutional manner, wouldnt you . Mr. Stewart you would have the you could do so, but no, i dont think that that is proceeding in an unconstitutional manner, because the right inheres in the individual, and if the individual chooses to waive that right, he certainly has the power to do so. And indeed, when the impeachment rule xi was adopted in 1935, the history of it clearly indicates that the senate many of the senators, at least, thought that this was the right only that could only be waived, and that it could not be forced to have an impeachment accused go to trial before a committee and not before the full senate. In the intervening 50 years before the next impeachment, apparently that understanding was lost. Justice white so you really are suggesting we treat this case as though there hadnt been any trial at all in terms of judiciability. Mr. Stewart yes, your honor. there was no trial before the senate. That is our view. And indeed, when you look at what respondents are saying when they have to present their position on the merits of this claim, they propose an extraordinarily artificial concept, that well, the trial happened before the senate even though all of the testimony and all of the proceedings were before the committee, and that just violates basic concepts of common sense, and its untenable. And even if you look at the text of rule xi, rule xi speaks in terms of either the senate conducting the trial, the committee conducting the trial, or the senate shall conduct the entire trial itself. Thats the last words of the rule. Justice scalia well, when the constitution gives this Court Original Jurisdiction in certain matters those, for example, in which a state is a party, dont you think that meant that the trial would be before us . Isnt that what original jurisdiction meant to the framers . Mr. Stewart your honor, im not sure that i i think thats certainly a tenable view, but it is not the use of the word try. It does not say that the Supreme Court Justice Scalia no, it doesnt use the word try, but doesnt original jurisdiction contemplate that the trial would be before the Supreme Court, and yet we do exactly what you say cant be done in the senate trial. That is, have a master take the evidence. Mr. Stewart i think it may well have been an intent, but it is not expressed, and moreover there is no right to assert except in the case of an individual, that the states cannot assert a seventh amendment right to a jury trial. Justice rehnquist how about an ambassador . Mr. Stewart i dont believe so. Justice Rehnquist an ambassador is not an individual, then, in your view. Mr. Stewart your honor, i would have to review the seventh amendment again, but i dont think that is the intent behind that provision. Let me also comment, though, there is an important problem also with respondents position with respect to this. How you read the word try, whether there is content in the word try, because if there is no content in the word try, there is no stopping point to their position. Then its okay to have the trial before a committee. Then its okay to have the trial before a single senator, or its okay, as the senate argued below, to have simply a paper trial where you just introduce a transcript and have the senate vote, and that begins to look very much like a proceeding that the framers expressly rejected. It was a very important event at the end of the towards the end of the constitutional convention, when John Dickinson proposed that there be removal of judges by address. Its an english proceeding which also had been incorporated in a couple of state constitutions. In removal by address there is no requirement of an accusation or that there be some claim of offenses, or that there be a trial. Its simply a petition presented to the legislature that this judge be removed, and when he presented this proposal the delegates were very negative about it. Edmund randolph of virginia said that it would weaken the independence of judges. James wilson of pennsylvania protested that this would make judges subject to every gust of fashion. So, they clearly intended that this be a true trial proceeding, and removal by address was rejected. I think once this court adopts or permits the senate to adopt the short cut that has been adopted here, there is no stopping point. Well, that doesnt necessarily follow. I mean, i can agree with you that the word trial has to have some content, but i can disagree that were the ones to enforce it. I mean, can i believe it has indeed a content but its up to the senate to assure that that content has been faithfully complied with . Your honor, i think that comes back to the question of is it the senates sole power to decide what is the content, or is it this courts power to say what the law is, to construe the law . And i think an impeachment, just as in questions of the viability of a commission to be a magistrate of the district of columbia, this court must exercise jurisdiction, must review the question in the absence of anything that denies jurisdiction or in the absence of any indication that there are no judiciable standards to apply. Well, you are running a slippery slope kind of an argument, if trial doesnt mean anything, where does it end . The slippery slope goes down the other side of the hill, too, doesnt it . If we say that the trial does have a content, then we have to begin to decide what other things are connected with trial. There are all sorts of imaginable things that trial ordinarily entails. Are we going to be reviewing all of those . No, your honor, i dont think so, because we have attempted to provide the line we think needs to be applied here, which is the trial is the opportunity to present witnesses and to confront witnesses. What if theres a mistake made so that one element is not there . Is the whole thing automatically invalid, or is there some harmless error concept . I dont understand. Well, whatever. Lets assume at one brief portion, when very unimportant evidence was being presented, it dropped below a quorum. That invalidates the whole proceeding, or is there a harmless error rule . Your honor, i think there has now, if you say theres a harmless error rule, im going to say, well then we have to evaluate the weight of the evidence, dont we . So you better not say that. I wasnt going to say that. [laughter] so theres no harmless error rule at all. I appreciate being helped. The slightest mistake, and the whole thing goes out. Well, thats like if there was a twothirds requirement and theyre only one vote short of twothirds, does this court say well gee, they were awful close . I dont think so. I think you have to apply the constitutional requirements that are there. What about applying the confrontation clause to the admission of hearsay . You know, various exceptions to the hearsay rule . Is that challengeable on the grounds that the senate improperly applied the hearsay rule . No, your honor, i do not think that admissibility questions like that, whether. One of the impeachment trials in 1986 involved papers that were the argument was that they were improperly seized. But failure to allow crossexamination is raisable in your view. I think that is the irreducible requirement, yes, sir. What about an undue shortening of crossexamination . Your honor, that is the point at which you would have to have a court look at the question. I think in almost all instances it would not be reviewable, but you could pose a hypothetical where youre given 30 seconds of crossexamination. You could pose that hypothetical to me and i would have to say that is not a trial. And i want to emphasize here that we really are talking about very few provisions of the impeachment trial clause, or the impeachment clauses generally, that would be reviewable. The twothirds majority, the requirement that the chief justice preside over president ial impeachments, and the requirement of the trial. The twothirds majority, you would have witnesses in the chamber who would i mean, is it only what you said before, if it appears in the record that there is not a why does it have to appear in the record . Couldnt you have witnesses come in with affidavits saying i was there, and although nobody in the senate asked for a quorum call, there was not a quorum . Wouldnt we have to accept that . Why does it have to be in the record . Well, no, i think there would be certainly be an obligation on defense counsel to call to the attention of the court right. As a court that there is the absence of a quorum. Yes, but the senate ignores it. If the senate is so reckless as to ignore it, and it is stated then youd come to us with your affidavits and say there was not a quorum. We state it on the record, yes, sir. And were going to judge whether there was a quorum in the senate on the basis of affidavits provided by your witnesses. One of the virtues of the video age were in is that the Senate Proceedings are now televised. There would be wonderful evidence as to whether there was a quorum present. But yes, if the quorum clause is to be enforced, it would have to be reviewed by the court. Well, actually, you dont come to us, you come to the District Court yes, sir. And then to the court of appeals, and then to this court, and in the case, say, of an impeachment of the president , that could go on easily 21 2 years, i should think, probably two and half years, i should think, probably three. Your honor, thats and i think you ought to address the argument that the solicitor general makes that this would put this nation at grave risk in the event of an impeachment of the president that was winding its way through the courts on judicial review. Your honor, you pose a very difficult question. Indeed, it would leave this court having to choose which constitutional crisis is more desirable, to have a president removed by unconstitutional means, or to have a period of some ambiguity, admittedly, while thats resolved by the court. It could be resolved with dispatch. The pentagon papers case took, i believe, 19 days from publication until the decision by this court. It would have to be resolved with dispatch. But its not just the delay. It means that judges, some of whom have been appointed by the president whos being impeached will be involved in the process and the integrity and the independence of the court may come into question, which would cause Severe Damage to the courts as an institution over time. Your honor, i think the most pernicious effect on the constitution and on the history of this country would be if this court would simply and the courts in general simply avert their eyes from an unconstitutional impeachment and surely an unconstitutional impeachment mr. Stewart, dont you think that framers who had enough foresight to provide for original jurisdiction by this court in cases involving ambassadors, in cases involving the states, would also have had enough foresight to provide for original jurisdiction by this court if they thought that the courts were being able to review at least impeachments of the president . But it doesnt appear in the original jurisdiction clause. This problem youve just been discussing with Justice Kennedy is an obvious problem that anyone would consider, wending its way up to the Supreme Court, impeachment of the president. It would have been in the original jurisdiction of this court, wouldnt it . Your honor, i dont think so. I think that it would involve the interpretation of a constitutional provision as to which the ordinary processes of judicial review would reasonably be applied, and again, i would turn back to the pardon clause. The failure to exclude judicial review seems to us extremely articulate here and important for the construction of the clause. I would ask to reserve the balance of my time for rebuttal. Very well, mr. Stewart. General starr, well hear from you. Chief justice, and may it please the court . Rule xi of the United States senate was adopted in 1935. That rule permits but it does not require the appointment of a committee for a limited function of gathering evidence, and in crafting that rule the senate was responding to its own experience, because with the growth in that bodys responsibilities, at times evidence was being presented before a virtually empty senate chamber. In fashioning that rule, the senate was exercising a power that was entrusted to it by the constitution by article 1, section 3, clause 6 which vests sole power in the senate to try all impeachments. Are the Committee Hearings part of the trial . Yes. Then i take it if the president were impeached and a committee was sitting the chief justice would preside over the committee. It is very possible that that would be the case, but i think well, he would have to if its part of the trial, wouldnt he . I think that is quite arguably the case, Justice Kennedy. I do think, by the way, that the senate would see fit not to use that procedure with respect to the impeachment of a president or a justice of this court, and again, i think its important to know where did this rule come from and why . It was first suggested in 1904, based on experience, a sense on the part of a felt sense on the part of senators, some of whom had served in the house of representatives, had been impeachment managers themselves, and who were sharply critical of the way in which the process was now working. And certainly that has been of concern to the senate since, in 1985, we had the spectacle of a United States district judge who had been duly convicted of a crime. That conviction had been affirmed on appeal, and a suggestion had been made by the judicial conference of the United States that impeachment might be appropriate. We have had, unfortunately, three impeachments in recent years. And the senate has been concerned, therefore, about the orderliness of the proceedings and yet the fairness of the proceedings. But general starr, when that rule was adopted in 1904 according to your opponent here , it was contemplated that it would be voluntary on the part of the person being impeached, and indeed, maybe many of them would prefer to be tried by 12 senators who were there than by 100 who werent, so one can see why that would have some attraction. Justice scalia, its fair to say that the senate was not of one mind with respect to the constitutionality of rule xi. There were clearly some members of the senate who thought this was improper, and i think, by the way, thats one of the redeeming aspects of this. The senate has taken this very seriously, has examined the constitutional questions very seriously, and it is true that, as mr. Stewart has noted, that senator ashurst, the chairman of the Judiciary Committee in 1935, expressed that view, that he contemplated that it would be an optional procedure. But other senators didnt agree with that, and that certainly is not what the rule itself contemplates. Its the judgment of the senate as to whether its appropriate or not, and particularly given here, in the modern age, where and this was referred to by mr. Stewart we now live in the age where proceedings are videotaped. These were videotaped. They were broadcast live, and a full transcript of the proceedings was made available to all of the senate, and then this, i think, in terms of what happened here, the argument has thus far been at the level of the abstract. Let me, if i may, make one very concrete point. Judge nixon appeared before the entire United States senate. He answered questions before the entire United States senate. He faced them as his judges. They are not jurors. They are senators who remain members of the United States senate who take a constitutional oath and who sit in judgment, and he and his able counsel argued evidentiary points. And at no point in those proceedings, while their motion for a full trial was there there was no waiver of that. Im not suggesting this. But in terms of what happened in these proceedings, not one word was mentioned with respect to invoking that part of rule xi which permits the senate to bring specific witnesses before them. In fact, to the contrary. One of the characters who appeared in this unfortunate drama was a lawyer in hattiesburg named carroll ingram. In his closing argument, mr. Stewart said, look at the videotape of carroll ingram. You will believe carroll ingram. The senate sat there with the quorum, with great dignity, asking questions through written questions promulgated by the presiding officer. Not once was the United States senate urged to bring a specific witness. In fact, the argument presented to the United States senate in this case was, we want you to go through this mountain of materials, and you will see so many contradictions and testimony by various and sundry witnesses that the case against judge nixon falls apart. Let me come back to the theoretical point. The theoretical point is what impeachment means. We dont rest our submission on sole power to try. We think that is indicative of the framers intent, but our submission rests in part on the structure of the constitution itself and what impeachment means, as well as the fact that the end result of impeachment of an officer of the executive branch or an officer of the judiciary is a judgment. And the constitution by its terms contemplates, says that the president , Vice President , and all civil officers shall be removed upon conviction. As Justice Kennedy put it, how unthinkable it would be for the conviction of a president of the United States to then be subject to judicial review. The text itself contemplates finality, but more than that, when we go back to the framing we know that what was in the minds of the framers was a process of checking the civil officers of government outside the article i branch. Well, we could issue a stay pending appeal, general starr, i guess, right . A stay or removal pending appeal, or Something Like that . You have the raw power to do that, but i dont think that it would be a constitutional act. Who would we direct that to, the senate . It seems to me i assume the removal is automatic. The senate doesnt do the removal. It occurs by virtue of the constitution. I think that is right, because the judgment is what removes. What happened here was, judge nixon sued several individuals, but they carry on administerial functions in this connection the secretary of state, the recipient of the document and so forth. He has not asked for that sort of injunctive relief, and so yes, i think while it is theoretically possibly, it is unthinkable that the court would actually issue a stay of the i notice in the recent District Court there has been a District Court judgment reversing an impeachment of another judge precisely. And the end of the judgment was that the case is remanded to the senate. That is correct. In that particular instance, the district judge saw fit to stay his own judgment. We think that was quite wise of the district judge but it does suggest that with a large judiciary, not only, unfortunately, are impeachments going to now happen with greater regularity than in our first two centuries of existence we have about 800 article iii judges. Does this represent a threat to judicial independence, the use of this Committee Proceedings . I say with all respect that no one who has made a study and ive watched all the videotapes, ive watched the entirety of the proceeding. And i dont think that anyone who watches those proceedings will come away with the sense at all that this proceeding represents a threat to judicial independence. May i ask, general starr, do you think the senate or the house could have impeached a judge and merely recited the fact that hed been convicted of a crime and that was the ground of impeachment and then the evidence of that be sufficient before the senate to remove him . Yes, i do. So you think all of this was process and may not have even been necessary. I think it was not necessary, but i think, justice stevens, that clearly a majority of the senators did feel and i know mr. Stewarts position is that there is a constitutional right to a separate proceeding that must involve a sense of what the evidence was in the case, and thats the sober judgment of the senators. And one of the points i would like to leave the court with today is that one of the reasons that the senate has been sober in its judgment is its sense that this is it. This is the end of the road. This is our judgment. They take that responsibility quite seriously. The senate would have the power just to impeach based on a criminal conviction. To convict. If there are articles we do agree that there must be articles of impeachment presented, exhibited to the senate, but once that is done, yes, justice white, they have the power to do that, and some members of the senate have expressed the view that no one should remain sitting on the federal bench whos been duly convicted of a felony. Others have said, well, but look, senator mathias in some reflections in the mid1980s said there are some strange felonies on the books. In idaho, it is a felony to poison a neighbors cat. Perhaps that would not be automatic but this was obviously a serious matter. Judge nixon feels that this entire proceeding was wrongheaded, was vexatious, was unjust, but those points were presented to the courts, were exhaustively examined by the courts, and were exhaustively examined by the house of representatives, as reflected by the statements of the floor manager, of the impeachment manager, representatives edwards, who said he was concerned about possible department of justice misconduct. They examined carefully whether there had been misconduct and found no evidence of it. That was the same result found in a 2255 proceeding after a two day hearing in jackson, mississippi. That may well be, general starr. You know, it was all very good in this case, but youre really arguing before us that it really doesnt matter whether it was very good or not. Thats correct. They could have impeached him for poisoning a neighbors cat that is correct. And called that a high crime and misdemeanor and youd say thats good enough for you thats correct. And there could have not been a quorum present. If there was no quorum present, would we be able to review it wed have to accept i think this courts decisions in ballin and field v. Clark say we accept the records of the senate. We do not impeach those records suppose its clear on the records of the senate that there was not a quorum present . I think that the judgment still stands. I think we are moving closer to the what if possible arena of powell v. Mccormack. What if the record shows that there was not a vote of twothirds of the senate to convict . We think that as long as the records themselves are being accepted, that it does seem to us that we are in the arena of powell v. Mccormack at that stage. That was part of the insight of powell, and powells looking to the text but looking to more than that, looking to the history of the text and to understand the intent of the framers. And that twothirds majority requirement is very important in the opinion of the framers for the very reason that this was to be a very considerable check by the United States senate on the house of representatives that might get carried away. So, in your view, that might be justiciable . Yes. So, is the claim before us today should we treat it as nonjusticiable, or just committed by the text to the discretion of the senate . The former because of the latter, that the text itself, when we also contemplate the structure of the constitution and the purpose of impeachment in our system of separated powers, that it does satisfy, it seems to us, at a minimum two of the criteria laid down by this court in baker against carr, a textual commitment to the senate. Why do we say that . The reason we say that is because the grant of the sole power to try in our judgment carries with it the power to determine the procedures that will be employed. Thats a its not expressed, i concede that so you do want us to rule that the question of the meaning of trial is textually committed to the senate . Yes. You do want us to rule yes, we do, but even if and this court has struggled, as have we and others, with the political question doctrine. I also commend to the courts careful attention judge randolphs concurring opinion in which he says, political question doctrine difficulties aside, louis hinken and all that, what i see when i read the entire text is a commitment that as a matter of constitutional interpretation, there is no role for the court to play with respect to what procedures should be employed. That leaves open the twothirds vote, the quorum and all those other issues, for future litigation, then. It does indeed. It seems to us that when we look at the entirety, that full paragraph of clause 6, there are three procedures that are enumerated. A violation of one of those enumerated procedures brings us, in our view, into the domain contemplated by this court in powell v. Mccormack. We have not challenged powell v. Mccormack. So if theres a violation of one of those procedures, it seems to us that is a justiciable claim, but the claim here is a very limited one. All of the evidence should have been adduced, no matter how detailed, about wiley fairchilds drinking habits and listening to Hank Williams sr. Music should all be laid before the full senate, day after day after day. That is the claim. And that, we think, is a judgment that the senate can take into account in determining whether to employ rule 11, but recall again, rule 11, not only is it not obligatory, but after the committee has worked its will, the committee itself and several members of the committee did, by the way. Senator heflin served on the committee. And when the issue came, when judge nixon said, i want my motion for a full trial heard before the United States senate, it was overwhelmingly rejected by the senate, but several members of the committee voted in favor of that. These are judgments, and judgments are going to differ just as they do on this court, but its a sober and a solemn judgment, and one of the reasons is, is because it is a final judgment. Thats what i suppose that at least what the senate the procedure the senate might adopt, i suppose they would have to call it a trial, wouldnt they . It seems to me they might have to call it a trial in one sense, but justice white, heres the reason im struggling with that. I think the word try meant Something Different to the framers. Weve cited qhatever it meant, they have whatever it meant, they have to be able to they have to fit it within the word try. They have to fit it within the word try. Now, what did the framers mean by try, and weve given to the court the 1755 Samuel Johnson dictionary to examine or to examine as a judge and just as this court examines as a judge in original cases by having a special master do, by the way, considerably more, and you dont appoint one of your own members as the special master. You have appointed either a retired judge or even someone who has never exercised article iii powers as a special master. So if the senate has a rule had a rule that anyone whos been convicted, any federal officer whos been convicted of a felony, and the judgment is final, we just automatically he is automatically guilty. All it needs is to have the court record before it and the show is all over. Is that trying . I suppose it is to you, as far as youre concerned. Because you use the word automatic, it concerns me as to whether there, justice white, is that examination as a judge. The application and it does seem to me and mr. Stewart does have a point that there must be an individualized judgment in an impeachment, and if the senate says were so tired of all these impeachment that heres our automatic rule. Youre out if you have been convicted of a felony, and were not going to listen to anything at all. So if they did that, that in your view would be judicially reviewable. It might be in terms of whether there was an examination at all, whether the senate was examining as a judge, but it might be. It is totally unthinkable and i dont think that in any way takes away from the integrity of our submission that the procedures, the specific procedures that are going to be used in coming to judgment, as opposed to an automatic rule that you are automatically divested of office, but the procedures that are used in coming to judgment we think has been textually entrusted to the senate, and for good reasons for the reasons of finality as well as the structural. And those procedures that you refer to as having been entrusted to the senate are in other words those which are not necessarily implied by the word trial itself. Thats correct, because as weve noted in our brief, rufus king, one of the delegates who also served on the committee of style, referred to the president and members of the legislature being tried by their electors what if we took a judgment im sorry. Im sorry. What if we disagreed with you on the 18th century sense of trial which was incorporated into the text . What if we concluded that in fact, trial did require the actual presence of the finders of fact during the reception of all of the evidence and we so defined the word try in the impeachment clause . Would you then find would you then concede that the failure to follow that procedure which was implied by the very notion of trial, was judiciable . If i concede that im sorry, im not sure i follow the language. Would you concede that we would have a judiciable the courts would have a judiciable controversy here if, number one, we concluded as a matter of law the trial implied the reception of evidence directly by the findings of fact . No. No, im sorry. You would not concede that. I would not concede that, because it seems to me that and now im going to be formalistic, and that is im going to rely on the sole the grant of that sole power to try, it seems to me, carries with it the interpretive power to determine what the procedures are going to be. But but sorry. Why, then, dont you say the same thing with respect to the interpretive power to determine what is a twothird majority . Is it the difference between an issue of law and an issue of fact that leads to different answers . It seems to me that we are in it seems to me we are in different domains. We know the founding laws, this was the body that would hear. Could i make this simple . You concede if the Senate Record showed there was less than two thirds majority it would be an issue on declaratory judgment. Do you concede that . That is an issue of fact which is easily resolved. No. The reason is because the structure as we understand the under be, and that is powell versus mccormick, we look at what the court did. Powell said we have this term qualifications, what does that mean if the house of representatives has come up with its own view . We have difficulty with that because we can see there is a definition in the constitution, and we go to history and understand in terms of democratic theory, it is definition in the text of the constitution, the house could not go beyond that. Here it seems to us when we look at the text as a whole, the two requirement was viewed as critically important in terms of protections of civil officers against abuse. Requirement was viewed as it is a difference in emphasis. Saidvaried my example and trial not only requires the presence of all the factfinders, they said trial for emphasis, which of course all members of the senate will be present. You would find it had not been a commitment of the senate by virtue of the emphasis on that requirement, and the need to enforce it be on the senate. You are using the term and without trying to quibble, i am saying i am emphasizing the fact that the text itself specifically defines what the majority is. Thirds. O the text answers that in powell versus mccormick, the court should vindicate that. The analogy would be if the hypothetical existed in the text. Thatext does not yield answer to a question of what it means to try. Define its meaning to go back to 18thcentury materials, the text does not yield the answer. More than one way to go about a trial, does the use of special masters. The use of magistrates. The article free does not article three does not necessarily have to take all evidence. Mr. Stewart is finding it difficult to create this image of a factfinding body. His colleague admitted that they do not sit as jurors. Supposing that during an impeachment trial of the senate, the chief justice dies and the the opposite of vice chief justice, we will let him preside because it would be catastrophic to wait for the appointment of the chief justice while impeachment is pending. Impeachment of the president. Can the senate not do that because of the specific language the chief justice shall preside theout that resolved by vice chief justice judicially reviewable . It seems to me under our theory i have to admit if the chief justice, whoever it be, the acting chief justice is not in the chair then that is judicially reviewable. Do you think this question of review ability is a front and the jurisdictional question. I think it is the most appropriate first question. You,not think that divests you have jurisdiction to decide that. We assume without deciding it, but the senate clearly had the power to do what it did. You doeems to me while not have jurisdiction to do that in terms of the appropriateness of the exercise of the judicial power, if in fact the matter has been entrusted to another branch, it seems to me it is part of your duty to resolve that question first as opposed to saying that is such a difficult question, but it is easy to say it is a sensible procedure. I think the courts obligation is to wrestle with this question , whether it is appropriate to what the senate did. Theory,understand your trial does not have the size content, but surely it has some content. It is something, just not a trial. We refuse to hear relevant evidence because we are too , and do not want to waste time. You refuse to hear all evidence, or let them put on any evidence at all, is that a trial . Yes, it is. What is not a trial in your view . The automatic rule that we will not consider anything at all because it seems to me the term try means you are going to judgment. Do you think it is artificial system you are setting up when you say two thirds has a meaning , and the chief justice shall preside has a meaning, affirmation has a meaning, but trial has no meaning whatever. I agree it does not have a precise meaning, but it has some meaning. I agree it has some meaning, but who gives content to the meeting. Is even though you as a judge and a justice do not agree with the senate definition, our point is it is their power to decide. Would say the same about the chief justice presiding about the two thirds and the rest of it as well. It is fine if you want to view that. I do not see any logical basis for drawing a line between the two. That may be the difficulty you are having with powell versus mccormick. If that is the operative word, i take it you do not rely on that, your argument would be the same if you said the senate shall try. Absolutely, it has been entrusted to the senate. Reasons beyond the text include the structure. You are saying the judge is a bad guy and the senate could not take a vote without any trial or anything else, and unanimously say the judge is a bad guy. Has to lead me to answer that question yes, but will you permit me to say it will not happen. We saw that in 1986 when there was a human cry in the 11th case. T in the infamous thoughtful consideration was given by the house of representatives. I think the court. Thank you general starr. Mr. Stewart you have three minutes. If i might address a couple of points. By this statement by general starr, that the senate does not sit as cocounsel and whom he represents all dissent that sits is a jury in the judge. That is in the record and it seems to me unavoidable in this case that the senate sits as a jury. I would like to address the final point to Justice Kennedys question on impeachment, i would commend the 25th amendment which does talk about what you do when there is a problem with president. The i agree the removal of the president by the senate even inappropriate or unconstitutional teams he is no longer president. There is an opportunity for that to be president. Remedied, and it creates unwarranted and unhappy ambiguity. The 25th amendment contemplates that in president ial incapacity. Ambiguity will proceed. We do not embrace it, but neither can we shrink from deciding the constitutional issue presented. I would say after these arguments are over, they could go in a back room and draw straws as to how the decision could come out, that would be wrong and unconstitutional. Who would reverse this . That is not reversible. So it is theoretically possible a branch of government may do something wrong even unconstitutional, but cannot be reversed. We are not saying the senators reasons for voting are subject to review by this court. The senator is voting to impeach a female judge because she is a woman and does not think a woman should be on the bench, that is not reviewable. You are saying they cannot draw straws, but we can. They can reach the situation how they want, but they have to have a trial. The founders were familiar with human nature and capricious legislatures, and knew they could not control them, but they did provide there has to be a trial that leads to a real demonstration of guilt or innocence to be responsible legislators. Somebody has to be trusted is the last word. Will it be this court which could flip a coin. We can act unconstitutionally just as the senate cam. The question is who has the last word, you say it must be us. Get a side says it must be the senate. The other side says it must be the senate. Clarify thatarr point saying it must be you, and the only issue is if what we have presented has a right to be presented. Thank you. Thank you, the case is submitted. Sunday night on q a looksan history professor back at policies on managing immigration. I would argue the current wave of antiimmigrant sentiment, xenophobia is not different from what we have seen in the past. While it seems to us to be peppered with acts of violence and ferocity, there have been other acts of violence, antiimmigrant riots before the civil war. Antiimmigrant riots in the 1880s. There have been a lot of moments antiimmigrant sentiment has been translated into true ugliness. Watch sunday night at 8 00 p. M. Eastern on cspans q a. House democratic leader steny hoyer and republican whip Steve Scalise spent nearly an hour on the floor debating the house impeachment inquiry. It took lace during the end of a discussion of next weeks schedule. Representative hoyer was asked about Committee Member rights during the closed door hearings. And there are hearings going on behind closed doors. Many of my colleagues have tried to attend some of those hearings and have been turned away if they are not on the committees of jurisdiction, colleagues that have tried to read things like the volcker testimony and have been turned away, denied the ability to do that. There is a real concern that there is an attempt to impeach a president of the United States, remove a president who was dualy elected using a process of secrecy behind closed