Document Type

Response or Comment

Publication Date

6-2009

Publication Title

Hearing Before the House Committee on the Judiciary - Task Force on Judicial Impeachment

Abstract

In August 2014, Federal District Judge Mark Fuller was arrested on a charge of misdemeanor battery after his wife called 911 from an Atlanta hotel room and told the operator, “He’s beating on me.” Judge Fuller has agreed to enter a pre-trial diversion program; if he completes the program, the criminal case against him will be dismissed. But Judge Fuller may face other consequences. The Acting Chief Judge of the Eleventh Circuit has initiated proceedings under the federal judicial misconduct statute. And some members of Congress and editorial writers have said that if Judge Fuller does not resign from the bench, Congress should begin impeachment proceedings.

Federal judges serve during “good behavior,” and they can be impeached and removed from office only for “Treason, Bribery, or other high Crimes and Misdemeanors.” If the domestic-violence charges are substantiated, would that constitute an impeachable offense?

In this statement, submitted at a hearing of the Task Force on Judicial Impeachment of the House Judiciary Committee, the author addresses some of the questions raised by a proposal to impeach a federal judge. What is the meaning of the constitutional language? No one argues that Judge Fuller has committed treason or bribery, so the question is whether his conduct falls within the category of “other high Crimes and Misdemeanors.” The author discusses the evidence from the founding generation and from the commentators, and he briefly surveys the impeachment precedents. These historical materials suggest two broad (and overlapping) categories of conduct that may justify impeachment. The first is serious abuse of power. The second is conduct that demonstrates that an official is “unworthy to fill” the office that he holds.

Another question is the relevance of the pending criminal charges. Can the House rely on a criminal conviction as the basis for impeachment? Can the House proceed with impeachment if the criminal charges are dropped? The author concludes that the House must exercise an independent judgment; it is not bound by determinations of other actors in other proceedings.

The statement was submitted to the Task Force on Judicial Impeachment at a hearing on the possible impeachment of Judge Samuel B. Kent of the Southern District of Texas. The written statement is followed by supplementary material that includes the author’s oral testimony and the colloquies that followed. Based on the testimony at the hearing and other evidence, the House approved four articles of impeachment. Judge Kent resigned from the bench before his Senate trial.

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