One, is there any evidence in the trial that was adduced as to whether the returns of Judge Clairborne for 1979 and 1980 tax years were on a cash or accrual basis? They have been discussed as though it were a cash basis.

Mr. HENDRICKS. Yes, sir. The evidence was that Judge Claiborne consistently prepared his tax returns on a cash basis.

Mr. KINDNESS. And was there ever any claim in the trial, the second trial being most pertinent, that any other questioned income had been reported in prior years as income and tax paid on it?

Mr. HENDRICKS. No, sir.

Mr. KINDNESS. I thank the gentleman, and I would yield back, Mr. Chairman.

Mr. KASTENMEIER. Are there any further questions of the witness?

If not, the committee thanks you, Mr. Hendricks, and your colleague, for appearing here this morning.

I think just one question remains unanswered, and you can make that answer available possibly during the course of the day, if possible.

Mr. HENDRICKS. I will do that, Mr. Chairman.

Mr. KASTENMEIER. Does the gentleman from New York have any questions of the witness?

Mr. FISH. No.

Mr. KASTENMEIER. If not, that concludes the testimony of Mr. Hendricks and the Justice Department on the question before us. I thank you for your appearance.

The Chair will now call our former colleague, Judge Wiggins, if he is ready to appear. I think we will have a period of time when we will not be bothered by votes. And, after Judge Charles Wiggins testifies, we will then take a substantial recess for lunch.

STATEMENT OF HON. CHARLES E. WIGGINS, CIRCUIT JUDGE, U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

Judge WIGGINS. Copies of my testimony, Mr. Chairman, are here. Mr. KASTENMEIER. Would staff make available copies of the testimony of our next witness to the members?

I take great pleasure in reintroducing to the committee the Circuit Court of Appeals Justice Charles Wiggins, who 12 years ago was a member of this committee when another impeachment process was undertaken. We value his judgment in both capacities.

It has come to the Chair's attention-and I am sure the gentleman-as Judge Wiggins knows-that we have been informed as of this morning that the ninth circuit had indeed issued a certificate to the judicial conference. We do not have the text of it, but I assume that the disciplinary problem involving Judge Claiborne cannot be resolved by the ninth circuit and is referrable up to the judicial conference for appropriate disposition, which is what the statute contemplated.

I note that, as a member of that court, you should be aware of it. In any event, we are pleased to hear your testimony. As with other witnesses, you should be informed that the rules of the House and

rules of the committee are at the witness table, and I will now administer the oath.

[Witness sworn.]

Mr. KASTENMEIER. Please be seated, and we will be pleased to hear your testimony.

Judge WIGGINS. Mr. Chairman and members of the committee, my name is Charles Wiggins. I am a judge of the U.S. Court of Appeals for the ninth Circuit. I reside in San Francisco. I offer my testimony today at the request of the committee. In no sense am I a volunteer as a witness, nor have I been assigned this responsibility by my court or by any other court or judicial officer. I appear solely because the Congress has requested that I do so. [See appendix I.]

To my knowledge, I have never met Judge Claiborne. I have no direct knowledge of the acts or omissions that resulted in his indictment and subsequent conviction of a Federal crime. The case of United States v. Claiborne, which was tried in the district court in Nevada, was appealed to the ninth circuit while I was a member of that court. The issues on appeal were purely legal in nature and gave me no special insight with respect to the underlying facts of the Claiborne case.

For the information of the committee, the direct appeal of Judge Claiborne from his conviction is now final. It is my understanding that the judge may be pursuing a collateral attack on that conviction, and he has been confined confided. If so, that issue has not been considered by a merits panel of our court.

Because members of this committee have expressed to me a concern about the failure of the ninth circuit to invoke the procedure of the Judicial Council's Reform and Judicial Conduct and Disability Act of 1980 in the case, let me begin by explaining our actions. Quite simply, following the conviction of Judge Claiborne and the exhaustion of his right of direct review of that conviction, there was no acute awareness that any action was required under the act. This legislation, as this committee knows, is relatively new; and fortunately our circuit does not have much experience in its

use.

The perception existed that the act was intended to deal with lawyer and litigant complaints against a judge. Such complaints, of course, might reveal impeachable misconduct, in which case referral to the Congress would be appropriate. But I believe the legislation anticipated that most complaints would be of a lesser magnitude, would be investigated by the judicary itself; and, if corrective actions were necessary, it would be taken at that level.

The conviction of a Federal judge of a felony and his sentence to prison is, however, an entirely different matter and on an entirely different order of magnitude. In any event, Chief Judge Browning of the ninth circuit ordered a study of the act to be undertaken immediately following the confinement of Judge Claiborne. That study revealed that a citizen complaint against Judge Claiborne was not necessary in order to trigger action by the counsel.

Prior to that study, there was a general perception that the act was triggered by a citizen complaint. Accordingly, it is my understanding that the council intends-and I have been informed this morning that it indeed has certified that one or more grounds for

impeachment against Judge Claiborne might exist. That certificate has been forwarded, I am told, to the Judicial Conference of the United States, as is provided by the statute.

The Judicial Conference probably will certify to the House of Representatives its determination that impeachment may be warranted in the language of the statute as is provided in section 372(c)(8) of that act.

Now, all of the foregoing occurred within weeks after Judge Claiborne was finally sentenced. I understand that some members of this committee are critical of the circuit for not acting more promptly, and perhaps that criticism is justified. But I personally do not feel that it is.

I believe that the circuit and the judges of the circuit, acting in a strange milieu, a strange environment, proceeded with all deliberate speed under the circumstances of this case. In my view, however, that is a case in which the House of Representatives should exercise its independence and sole power of impeachment, and should not defer even in a pro forma sense to any other branch. If it were to do so, the House would be deferring to the operation of a statutory scheme which provides an intricate mechanism for the investigation of charges and a certain limited right of review, both at the circuit level and at the Judicial Conference level.

Such a procedure-and the process it provides for judges facing complaints-may be wholly appropriate in a routine case. In an extraordinary case, however, like the present one, Congress should not await the exhaustion of that administrative process before taking action on its own. Such deference, in my opinion, skews a carefully crafted system of constitutional checks and balances.

The legal responsibility and the political accountability for impeacement lies with the legislative branch, and not the judicial branch.

Mr. Chairman, it is my understanding the committee may wish me to testify concerning the question of whether Judge Clairborne has served with good behavior, as that term is used in Article III of the Constitution. Obviously, therefore, this committee seeks my opinion rather than any facts known to me.

Judges of the United States shall hold their office during good behavior-that is taken from Article III of the Constitution. The framers were determined to establish an independent judiciary. Article III reflects that concern. They had observed the nomination of judges in the Colonies, their arbitrary reduction of compensation, withdrawal of judicial commissions as retaliation for unpopular decisions.

The term "good behavior" found in Article III was included in the Constitution to ensure judicial dependents from arbitrary removal from office. As such, it is a term defining tenure rather than a term defining a course of conduct, the deviation from which would presumptively authorize removal from office.

The impeachment power, that is the power to remove, is found in Article II, not in Article III. Unlike the good behavior clause found in Article III, the impeachment power specifies that conduct that justifies removal from office-namely, treason, bribery or other high crimes, and misdemeanors. This section, of course, applies to U.S. judges.

Many commentators have expresssed the view that impeachment of a Federal judge does not lie for criminal misbehavior alone. This body of opinion relies upon the precedence of judicial impeacement, particularly in this century. Each such impeachment that resulted in a conviction-and there have been only four-alleged misconduct that was arguably criminal in nature.

It is also true, however, that the Archbald and Ritter impeachments alleged misbehavior that was noncriminal, as well.

The true meaning of these precedents has been debated in the literature for years. The historically correct interpretation is not particularly relevant to this case, however, because Judge Claiborne stands convicted of a serious Federal crime.

A finding of misbehavior in office, Mr. Chairman, is not a constitutional prerequisite to the impeachment of a Federal judge. A finding that he is guilty of treason, bribery or other high crimes, and misdemeanors, is a constitutional prerequisite. Nevertheless, whether a Federal judge has comported himself with good behavior is an intensely practical consideration in determining whether the impeachment power should be exercised in a given case.

Congress is under no compulsion, constitutional compulsion, to impeach at all. It may do so in the exercise of its discretion. Whether that discretion is exercised in the case of a particular judge should depend, in large part, on whether that judge has fallen below minimum standards of conduct for a person in his position, regardless of whether that misconduct is criminal or not.

It is not my purpose, Mr. Chairman, to marshal arguments to support the self-evident proposition that a U.S. judge convicted of a felony is guilty of a lack of good behavior. He has misbehaved in office by reason of his conviction alone.

Further, he has misbehaved by reason of the misconduct proven beyond a reasonable doubt upon which the conviction workswhether that conduct occurred before or during his tenure as a Judge.

In my view, the conviction of Judge Claiborne does more than stain his personal reputation. I believe it brings into disrepute the judiciary as a whole. I confess an inability to provide this committee with direct evidence establishing that the judiciary has been adversely affected by the conviction of one of its members. However, we know that his trial and his conviction were widely reported by the media.

We also know that the continued compensation of Judge Claiborne, while confined to prison, has been the subject of public criticism. It is highly unlikely, in my opinion, that the fact of Judge Claiborne's conviction, his sentencing and continued compensation while in prison are widely known.

The absurdity of such a spectacle is surely evident to all. Public confidence in the judiciary, and I believe in the Congress as well, will suffer if such an absurdity continues uncorrected.

This judge-that is, me-is embarrassed by the conduct of one of our members. It is my opinion that the misdeeds of a particular member of the judiciary tends to cast a pall on the judiciary as a whole.

The first canon of judicial conduct reflects my view. That canon states:

An independent and honorable judiciary is indispensable to justice in our society. A Judge should participate in establishing, maintaining and enforcing, and should himself observe high standards of conduct so that the integrity and independence of the judiciary may be preserved.

What is at stake, I think, is the independence of the judiciary. For the stuff that holds a democratic society together is in the end the consent of our people. Congress exercises legislative power because the people have given it that right to exercise. The judiciary resolves cases and controversies binding on the people because the people have agreed to be bound.

Public confidence in the executive, legislative, and judicial branches is essential to the continuity of our system. Public confidence in the judiciary, I believe, is eroded by the irresponsible and improper conduct of a particular judge. A judge cannot expect to compel compliance with the law if he himself is a lawbreaker.

It is not my province, Mr. Chairman, to advise this committee whether it should or should not adopt articles of impeachment charging Judge Claiborne with high crimes and misdemeanors. I do recommend that this committee not charge Judge Claiborne with misbehavior in office as a separate impeachable offense. Although the power to do so may exist, it is not necessary in this case, given the facts before the committee.

However, I believe this committee may properly consider evidence of a lack of good behavior in the exercise of its prosecutorial discretion to impeach or not. In my view, a lack of good behavior has been demonstrated in this case.

That concludes my prepared testimony, Mr. Chairman, and I should be pleased to respond to any questions the committee may have of me.

[The written statement of Judge Wiggins follows:]