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July 5, 1989

ALCEE L. HASTINGS, Plaintiff, WALTER L. NIXON, JR., Intervening Plaintiff,
UNITED STATES SENATE, the IMPEACHMENT TRIAL COMMITTEE, Established Pursuant to Senate Resolution 38, WALTER J. STEWART, Secretary of the United States Senate, and JOSEPH E. JENIFER as Acting Public Printer of the United States Government Printing Office, Defendants

Gerhard A. Gesell, United Sates District Judge.

The opinion of the court was delivered by: GESELL


 At the eleventh hour United States District Judge Alcee L. Hastings seeks by this complaint to stop his impeachment proceedings in the United States Senate which are scheduled to commence July 10, 1989. Judge Hastings contends that the contemplated impeachment hearing is procedurally flawed because a committee is being used as part of the process. This, he contends, will deny him due process because the trial will not be conducted entirely before the full body of the Senate, which he urges is required by Article I, Section 3 of the Constitution. District Judge Walter L. Nixon, Jr. has intervened in support of this primary claim, having demonstrated that he, too, will face similar impeachment hearings in the Senate later in the fall. As each judge well knows the Senate as an entity cannot be effectively sued. Therefore, Judge Hastings also asks that the individual defendants who would normally implement impeachment proceedings be preliminarily enjoined. All defendants have responded by a single motion to dismiss. All motions are elaborately documented and there has been full argument by all parties. The Court has consolidated aspects of the preliminary injunction motion with a hearing on the merits pursuant to Rule 65(a)(2) of the Federal Rules of Civil Procedure.

 Judge Hastings' complaint also advances other claims. He contends that the Senate is violating his 5th Amendment double jeopardy rights, because a jury previously acquitted him of some charges the Senate will be considering. He urges that he is being denied effective assistance of counsel and that the Senate has unconstitutionally diminished his pay because it has not provided attorney's fees for his defense. He also seeks to block the committee's efforts to receive a stipulation of uncontested facts and documents. All these claims boil down to what is essentially a charge that the Senate is violating his due process rights to a fair trial by trying him in the first place and by subjecting him to the committee process in the second.

 The Court has jurisdiction to hear at least the constitutional aspects of Judge Hastings' complaint under its general federal question jurisdiction, 28 U.S.C. ยง 1331.

 Rule XI:

 Judge Hastings' impeachment proceedings are governed by Rule XI of the Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials, which the Senate adopted in 1935. The Senate passed implementing rules by Resolution for this specific trial, acting on recommendations from the Rules Committee, which considered various fair trial aspects of the case. Impeachment Rule XI authorizes the appointment of a Senate Committee "to receive evidence and take testimony" and to "report to the Senate in writing a certified copy of the transcript of the proceedings and testimony had and given before such committee." S. Doc. No. 101-3, 101st Cong., 1st Sess. 15 (1989). The report issued by the committee to the Senate will not make conclusions or recommendations to convict or acquit on each Article, but will be more in the nature of a neutral summary. The Rules Committee recommendations provide that the entire committee hearing will be taped. It will be broadcast to each Senator's office. Senators may replay the tape at any time for any purpose such as to evaluate the demeanor of witnesses whose credibility may be placed in issue. S.Rep. No. 101-1, 101st Cong., 1st Sess. 112 (1989). The Senate trial is scheduled so as to give Senators not on the committee approximately one month to read the report and review any tapes or evidence they wish to consult before taking the requisite oaths and voting on impeachment.

 The Committee format has not prevented full participation by the Senate. The Senate as a whole fully heard Judge Hastings' motions to dismiss. 135 Cong. Rec. S2550-64 (daily ed. Mar. 15, 1989), Id., S.2802-04 (daily ed. Mar. 16, 1989). Moreover, Rule XI specifically reserves to the Senate as a whole the right to hear directly the testimony of any or all witnesses it desires at any time prior to the impeachment vote.

 Insofar as Judges Hastings and Nixon contend that they each have an individual right to an impeachment tried before the full Senate and that a federal district court may supervise the Senate's procedures for impeachment, they are mistaken. Article I, Section 3 provides that "The Senate shall have the sole power to try all impeachments," and Section 5 of the same Article states that "each House may determine the Rules of its Proceedings." It is crystal clear that impeachment proceedings are wholly committed to Congress under the Constitution. Thus a classic political question is presented under Baker v. Carr, 369 U.S. 186, 217 7 L. Ed. 2d 663 82 S. Ct. 691 (1962). Absent evidence that the Senate is violating the Constitution, the Court should stay its hand.

 The use of a committee to develop facts is not a new idea. This was the practice of the House of Lords in the early part of the 17th Century, and the possibility of using a committee in the process was first proposed in the Senate as early as 1904. Thereafter, the committee approach was debated from time to time. Some urged use of a committee because as few as three Senators had been present during impeachment trials before the full body, which proceeded even in the absence of a quorum. In recent years Senators have relied heavily on written materials developed in their absence when an impeachment matter came to a vote. The committee procedure was used in 1986 for the impeachment of Judge Claiborne and, with some modification of procedures in light of that experience, it has been reinvoked. S.Rep. No. 101-1, 101st Cong., 1st Sess. 9-15, 110-115 (1989); S.Rep. No. 100-542, 100th Cong., 2d Sess. 113-114 (1988).

 It is not this Court's function to tinker with the Senate's procedures or to anticipate problems that could arise. The procedures adopted do not by their terms violate any constitutional rights or offend fundamental notions of justice.

 The Senate's interpretation of what type of trial Article I, Section 3 requires is entitled to deference, absent a clear Constitutional violation. Judge Hastings through his able counsel argued forcefully before the Senate his conception of what a trial required, and the Senate rejected it. *fn1" the Constitution simply does not specify in detail what is required for the trial before the Senate beyond: 1) an oath or affirmation 2) a two-thirds vote 3) the possible punishment or remedy and 4) who presides when the President is tried. The Constitution does not say that the full Senate must try all impeachments, nor does the verb "try" necessitate granting the accused all the requirements of modern criminal due process as the complaining judges suggest. In fact, at the time the Constitution was drafted, definitions of "try" included "to sit in judgment" and "to examine (a person) for the purpose of testing his qualifications." *fn2" Of course, persons and bodies may sit in judgment without having received evidence in the manner Article III courts try criminal charges.

 The relief sought by plaintiff and intervenor would be utterly foreign to our system of divided powers. As Chief Justice Marshall stated in McCulloch v. Maryland, 17 U.S. (4 Wheat) 316, 421 4 L. Ed. 579 4 A.F.T.R. (P-H) 4491 (1819):

The sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high ...

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