In the late 1960s, impeachment (accusation by the House of Representatives, followed by trial in the Senate) was thought of primarily as a means of getting rid of crooked federal judges, who could not otherwise be removed from office. Still, there had been some dramatic impeachment trials in the distant past, and there were many legal controversies left over from those trials.
One issue was the definition of “high Crimes and Misdemeanors,” the constitutional description of the grounds for impeaching members of the U. S. government. Some advocated a narrow definition, by which only the commission of an indictable crime would justify impeachment.
Professor Raoul Berger, after diving into the source material, decided that the Founders meant the term to mean something besides indictable misconduct. Any serious misconduct or official oppression by an officeholder, Berger argued, was impeachable.
Berger’s discussion went through a good many points, but let’s look at one case Berger studied: The impeachment trial of Supreme Court Justice Samuel Chase in 1805.
Conventional historiography portrayed the U. S. Senate’s acquittal of Justice Chase as a defeat for Thomas Jefferson’s Republican (now Democratic) Party and a victory for judicial independence. Had Jefferson’s Republican backers in Congress managed to remove Chase, ran the standard narrative, then other Federalist judges who stood in the way of Republican policies – people like Chief Justice John Marshall – would have been knocked down like ninepins. Only the Federalist minority in the Senate, backed by a courageous group of Republicans who put principle above party, had saved judicial independence by voting Chase Not Guilty. Such was the conventional wisdom.
Berger had a different take. He believed that the Senate should have convicted Chase and removed him from office for numerous acts of judicial oppression. None of these acts were indictable, but they were the type of official misconduct which was impeachable under the Founders’ principles, principles which a partisan minority had violated by letting Chase get away with his behavior.
Chase’s judicial misconduct, as Berger saw it, took place while Chase was presiding at trials of various enemies of the Federalist party (which held office before 1801, becoming a minority party afterward). Berger, just as Congress had in 1805, gave particular attention to the 1800 treason trial of John Fries, who is shown here:
Seriously, though, Fries (proper pronunciation: “freeze”), an auctioneer in eastern Pennsylvania, was one of the leaders of groups of discontented German-American farmers who resisted federal taxes and tax assessments on their houses and land. The 1798 house tax was graduated or, in modern terms, “progressive,” so as to impose higher burdens on wealthy homeowners. But those paranoid Germans – despite their generally moderate income – thought that higher taxes could be in the offing unless the trend was nipped in the bud. Plus, the new taxes were too reminiscent of the oppressive taxes their ancestors had faced in Germany (an early example of Godwin’s Law). Fries, a Revolutionary War veteran, rallied his supporters to drive out some of the tax assessors from his town. Then he and his forces went to demand bail for fellow-resisters who had been arrested nearby, and to insist that these defendants be tried by a local jury rather than in distant Philadelphia (about fifty miles away). When federal officials didn’t meet these demands, Fries freed the prisoners.
The federal government put Fries and others on trial for treason – the trials were in Philadelphia. The first prosecution ended in a mistrial, and Chase presided at Fries’ second trial. Before he could hear from the defendant’s lawyers, Chase issued a ruling that Fries’ actions, if proven, constituted treason, and that the defense would not be allowed to argue otherwise to the jury. Fries’ lawyers withdrew from this farce of a trial, despite Chase’s efforts to walk back his behavior. Fries managed his own defense as best he could. Fries was convicted and sentenced to hang, only to be saved in the last minute when President John Adams pardoned Fries and other “rebels.” (This pardon was the final provocation which led Alexander Hamilton – who wanted Fries hanged – to break with Adams.)
(Incidentally, for what it’s worth, here is Murray Rothbard praising an earlier tax revolt, the Whiskey Rebellion in western Pennsylvania. Interestingly enough, Fries had served in the militia to suppress that revolt.)
Chase had engaged in oppressive behavior toward defendants in other trials, too, including the seditious libel trial of James Callender. Chase pressed, with more than judicial zeal, for Callender’s conviction for the “crime” of publishing a critical pamphlet about President Adams. (Judging from Callender’s “biography” on the Web page of the Federal Judicial Center – an agency of the federal judiciary – it seems that there may still be some hard feelings toward Callender in official circles.)
Basically, Berger portrayed Chase as a classic case of an impeachable official. Presumably, Berger hoped that the next time someone in the federal government committed comparably grave misconduct, they wouldn’t get away with it as Chase had.
By around 1971, Berger had completed work on his book, Impeachment: The Constitutional Problems. His publisher, Harvard University Press, didn’t exactly rush the book into print, delaying the publication of this boring treatise until 1973. By that time Berger had resumed his research on executive privilege in preparation for a book on that subject, Executive Privilege: A Constitutional Myth, which came out in 1974.
Impeachment hit the shelves as President Richard Nixon was in the middle of the Watergate scandal, and the public eagerly bought up copies of this suddenly very relevant book. When Executive Privilege came out, that book was popular too, due to Nixon’s claim that he could withhold information from Congress and the courts. As the title suggests, Berger thought executive privilege was a myth cooked up by modern Presidents in defiance of the Founders’ intentions.
After his impeachment book came out, Berger became a popular Congressional witness for Nixon’s opponents, testifying about the legal standards for impeachment. He also testified about executive privilege, pressing Congress to have the courage to demand the necessary Watergate information from the Nixon administration, in the face of Nixon’s resistance.
Berger was a celebrity with a message which was welcome to the media and many parts of the public: Congress had the power to investigate Nixon for abuse of power, and Nixon should be impeached. Berger appeared on a Bill Moyers special on PBS, and on Pacifica Radio.
And there was a flattering profile in the New York Times, which commenced with some really classy ethnic humor: “Raoul Berger thinks of himself as a Dutch housemaid sweeping out dark corners of the Constitution….Every few months he lays his broom aside long enough to testify before a Congressional committee, transforming himself from Dutch housemaid into Dutch uncle.”
Anyway, Berger got a lot of favorable attention from the media and Congressional foes of Nixon, emboldening them in their determination to remove him from office.
(One of Berger’s stances might have been helpful to Nixon – Berger said that the U. S. Supreme Court could review impeachment cases, so that even if the Senate had convicted Nixon, Berger’s view was that Nixon could have taken the matter up to the Supreme Court. The Supreme Court itself would reject this position in 1993, in the case of another Nixon – Walter Nixon, a district judge who was impeached and removed from office. The Senate’s decision was final, said the Court.)
The end came when the U. S. Supreme Court – under Chief Justice Warren Burger, who had been appointed by Nixon…
…ruled that Nixon’s claim of executive privilege would have to yield to the need of the courts for information. Shortly after that, Nixon resigned under threat of impeachment.
But as Professor Berger noted in the UCLA Law Review, the Court had simply assumed that the President possessed some level of executive privilege which might, in other circumstances (not involving Watergate) justify withholding information from the courts or Congress. Professor Berger complained that the Supreme Court had not even considered his scholarship refuting the idea of executive privilege.
But for the moment, thanks to Watergate and Nixon’s disgrace, broad constitutional claims of executive power and executive privilege were for a time discredited. As Baked Penguin has reminded me, this was the era of a strengthened Freedom of Information Act, allowing individual citizens to go to court to demand information in the custody of the executive branch. Judges, not executive officials, make the final decision about whether citizens get to see the material – though there are numerous grounds the executive can give in court for not releasing the documents (privacy, national security, etc.). (When someone does a full-blown biography of Berger, including looking at his papers at Harvard, his role in FOIA and other developments of the time can be more fully described.)
The seeds of a backlash were already being planted. Just as progressives, faced with Republican Presidents and Democratic Congresses, had become more alarmed about executive power than they had been under Democratic Presidents, so too many conservatives were reversing their former support of Congressional power and coming to see a strong Presidency as a counterbalance to a liberal Congress. In this context, conservative Yale law professor Ralph K. Winter, Jr., wrote a scathing review of Berger’s Executive Privilege. To Winter, Berger was an over-hyped academic whose views on executive privilege were not worthy of serious consideration.
Perhaps Winter grouped Berger among the leftists who (Winter believed) were trying to hamper the Presidency, now that Congressional power had become a progressive cause. To Winter, left-wingers were bitching about the growth of Presidential power because they were looking for scapegoats for the failures of the Great Society.
(Winter was later appointed to the Second Circuit court by Ronald Reagan, and in the 2000’s he served on the Foreign Intelligence Surveillance Court of Review – the FISA appeals court. In the latter position, Winter showed his sympathies with broad executive-branch surveillance. Perhaps privacy is something the President needs but not something the President has to respect when snooping on others?)
Winter’s criticism of Berger was the exception. As Nixon left office in disgrace, most of the intelligentsia and the media praised Berger for his meticulous legal scholarship and his willingness to speak truth to power.
It was time for Berger to turn to another research project. This time, he decided, he would tackle the Fourteenth Amendment.
Raoul Berger, , Executive Privilege: A Constitutional Myth. Cambridge, MA: Harvard University Press, 1974.
___________, Impeachment: The Constitutional Problems. Cambridge, MA: Harvard University Press, 1973.
___________, “The Incarnation of Executive Privilege,” 22 UCLA L.R. 1 (October 1974), pp. 4-29.
___________, The Intellectual Portrait Series: Profiles in Liberty – Raoul Berger , Online Library of Liberty, http://oll.libertyfund.org/titles/berger-the-intellectual-portrait-series-profiles-in-liberty-raoul-berger (audio recording)
“Dr. Raoul Berger to Deliver Lefkowitz Lecture at Emanu-El,” Texas Jewish Post (Fort Worth, Tex.), Vol. 28, No. 47, Ed. 1 Thursday, November 21, 1974, online at https://texashistory.unt.edu/ark:/67531/metapth754832/m1/5/
Gary L. McDowell, “The True Constitutionalist. Raoul Berger, 1901-2000: His Life and His Contribution to American Law and Politics.” The Times Literary Supplement, no. 5122 (May 25, 2001): 15.
Paul Douglas Newman, Fries’s Rebellion: The Enduring Struggle for the American Revolution. Philadelphia: University of Pennsylvania Press, 2004.
Johnathan O’Neill, Originalism in American Law and Politics: A Constitutional History. Baltimore: The Johns Hopkins University Press, 2005.
Israel Shenker, “Expert on the Constitution Studies Executive Privilege,” New York Times, July 26, 1973, online at http://www.nytimes.com/1973/07/26/archives/expert-on-the-constitutionstudiesexecutive-privilege-became.html
“Raoul Berger, Whose Constitution Writings Helped To Sink Nixon,” Boston Globe, reprinted in Chicago Tribune, September 28, 2000, http://articles.chicagotribune.com/2000-09-28/news/0009280256_1_executive-privilege-writings-constitutional
“Watergate, Politics and the Legal Process,” American Enterprise Institute Round Table, March 13-14, 1974.
Ralph K. Winter, Jr., “Book Review: Executive Privilege: A Constitutional Myth” (1974). Faculty Scholarship Series. Paper 2181, http://digitalcommons.law.yale.edu/fss_papers/2181.