ChesterNewMatterFall2017 - 33

Did You Ever Wonder?
under the act of June 10, 1890, chapter 407, 26 Stat. 131,
and that nomination was consented to on the following
day by the Senate, and the appellant was thereupon
commissioned to be such general appraiser of merchandise.
He accepted that office and took the oath required on July
24, 1890, and remained in such office and was paid the
salary attached thereto up to May 15, 1899. On May 3 of
that year he received the following communication from
the President:
"EXECUTIVE MANSION,
"WASHINGTON, D.C., May 3, 1899.
"SIR: You are hereby removed from the office of general
appraiser of merchandise, to take effect upon the
appointment and qualification of your successor.
"WILLIAM McKINLEY."
So out of the clear blue skies of Washington, the then
President decided to remove Mr. Shurtleff. Notice anything
missing? Where is "...Conviction of, Treason, Bribery, or other
high Crimes and Misdemeanors"? I had to think more about
the facts and realized that Mr. Shurtleff was an appointee of
the President and who was, presumably, removing him for
whatever reason or no reason. The court went on to state that:
"In the absence of a constitutional or statutory provision to
the contrary, the president by virtue of his general power of
appointment could remove an appointee."
I skipped the next case note as repetitive. The next one
supports the large lasso that this article throws out over a large
number of people.
"Federal judges are "civil officers" within meaning of Article
II, § 4. United States v Claiborne (1984, CA9 Nev) 727
F2d 842, cert den (1984) 469 US 829, 83 L Ed 2d 56, 105 S
Ct 113."
So I thought to myself, how many federal judges could there
be? So I asked "Siri" and she told me that "The Bureau of
Labor Statistics estimates there were 3,600 federal judges and
magistrates employed by the US government in 2008."1
And the last one produced a familiar name and case. I bet
you couldn't wait.
"Because impeachment is available against all civil officers of
United States, not merely against President, under Article

I quote this part of the case to demonstrate how many levels this case went
before there was a decision that makes more sense of the statutory language
of the law.

1

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II, § 4, of Constitution, contention that the President is
immune from judicial process cannot be based upon
any immunities peculiar to the President emanating by
implication from fact of impeachability. Nixon v Sirica
(1973, App DC) 159 US App DC 58, 487 F2d 700, 19 ALR
Fed 343 (ovrld in part on other grounds as stated in In re
Sealed Case (1997, App DC) 325 US App DC 206, 116 F3d
550, 46 Fed Rules Evid Serv 1188)."
This was the opening salvo concerning Watergate and the
subpoena of Presidential records concerning conversations
that were tape recorded in the President's office. The court
denied the production for open court review but allowed for
"in camera" production.
So how does this action get started? Using Article II, §4 of
the Constitution, the House of Representatives can begin the
impeachment process by either passing, by simple majority,
a Resolution directing, usually, the Judiciary Committee to
conduct an investigation against the accused. The second
method is to submit an ordinary Bill directing the same action
by the judiciary committee. That committee conducts the
investigation and submits its report to the complete House for
a vote. Again, a simple majority is needed to go forward with
the impeachment process.
If the House agrees to pursue the matter it then appoints
Members by resolution to manage the trial that must be held
by the full Senate. The managers are then vested with the
duties of a prosecutor and conduct the hearing held in the
Senate. Ironically, the definition of impeachment reflects that
an individual has been impeached at this point in the process.
There is no determination of guilt or penalty but the stigma of
an impeachment process is indelibly etched on the accused.
If the process proceeds to the Senate there is a full hearing
similar to a criminal trial. The Senate gets its authority from
Art. I, §3, Cl 6 of the Constitution.
"USCS Const. Art. I, § 3, Cl 6
ARTICLE I. LEGISLATIVE DEPARTMENT
Sec. 3, Cl 6. Trial of impeachments.
The Senate shall have the sole Power to try all
Impeachments. When sitting for that Purpose, they shall be on
Oath or Affirmation. When the President of the United States
is tried, the Chief Justice shall preside: And no Person shall
be convicted without the Concurrence of two thirds of the
Members present."
The requirement of a two thirds vote is considered to be a
"supermajority." This far surpasses the normal majority vote in
Continued on page 34
New Matter | 33


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