Senate Panel Holds the Privilege Against Self-Incrimination Does Not Apply to an Impeachment Trial

Yesterday the Senate panel charged with conducting the impeachment trial of federal district judge G. Thomas Porteous issued an order disposing of certain pretrial motions.   Of particular note was the panel’s decision to reject Porteous’ motion to suppress his immunized testimony given before a special Fifth Circuit committee which investigates misconduct by federal judges.

The question presented, the Senate panel notes, is one of first impression, namely whether an impeachment trial is a “criminal case” within the meaning of the Fifth Amendment’s prohibition on compelled self-incrimination.  It is a difficult question because the Constitution is notably ambiguous on this point.

On the one hand, a reader of the original Constitution would likely conclude that impeachment is a type, albeit a unique type, of criminal proceeding.  Impeachable offenses are defined in terms of “treason, bribery or other high crimes and misdemeanors.”   Impeachment is implicitly treated as a criminal proceeding in article II, where the President is granted power to “grant reprieves and pardons for offences against the United States, except in cases of impeachment,” and in article III, where it is stated that the “trial of all crimes, except in cases of impeachment, shall be by jury.”  These exceptions would be unnecessary if impeachment were not, at least in some sense, a criminal proceeding.

On the other hand, it is difficult to square this conclusion with the language of the Bill of Rights.  The Sixth Amendment guarantees the right to a jury trial in “all criminal prosecutions,” which, if applicable to impeachment, would nullify the impeachment process explicitly set forth in the original Constitution.  Similarly, though somewhat less clearly, the double jeopardy clause of the Fifth Amendment has been construed to apply to all criminal offenses, and would therefore be applicable to impeachment if it were considered a criminal proceeding.

In his book on impeachment, Raoul Berger surveyed these competing provisions and concluded that “the Framers might well have overlooked some lack of harmony in detail.”  In short, he believes that the Framers utilized the criminal terminology of the English impeachment process, but, by limiting the consequences of impeachment to the nonpenal ones of removal and disqualification, created a new type of proceeding that is essentially non-criminal in nature.  Michael Gerhardt and Charles Black argue that the impeachment process should be viewed as a hybrid or quasi-criminal type of proceeding.

The conclusions of these impeachment scholars inform the discussion, but do not necessarily answer the specific question presented to the Senate impeachment committee:  should impeachment be considered a criminal proceeding for purposes of the self-incrimination clause of the Fifth Amendment?  The committee seems to assume that Senate precedent rejecting the application of double jeopardy to an impeachment proceeding necessarily means that the self-incrimination clause is likewise inapplicable.  This does not necessarily follow.

Nonetheless, I tend to agree that the committee reached the correct result here.  Berger suggests the analogy between impeachment, designed to remove an unfit officer, and deportation, designed to remove an alien who is not entitled to remain the country.  Although the latter may entail painful consequences, it is not a criminal proceeding to which the self-incrimination privilege applies.  Similarly, to the extent that the privilege is designed to protect against coerced confessions or wrongful convictions in ordinary criminal cases, it would seem to have little relevance to an impeachment proceeding.  The Senate is entitled to consider Porteous’ immunized testimony.

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