CONDUCT OF HARRY E. CLAIBORNE, UNITED STATES DISTRICT JUDGE, DISTRICT OF NEVADA

THURSDAY, JUNE 19, 1986

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES,

AND THE ADMINISTRATION OF JUSTICE,

COMMITTEE ON THE JUDICIARY,
Washington, DC.

[On June 24, 1986, during subcommittee consideration of H. Res. 461-(to impeach Harry E. Claiborne of high crimes and misdemeanors) a motion was offered by Congressman Moorhead to release the following testimony and evidence received during the executive session. The motion passed unanimously.]

The subcommittee met, pursuant to notice, at 9 a.m., in room 2141, Rayburn House Office Building, Hon. Robert W. Kastenmeier (chairman of the subcommittee) presiding.

Present: Representatives Kastenmeier, Brooks, Mazzoli, Synar, Schroeder, Frank, Morrison, Moorhead, DeWine, Kindness, and Coble.

Also present: Representatives Hughes, Fish, Sensenbrenner, and Gekas.

Subcommittee staff present: Michael J. Remington, chief counsel; Gail Higgins Fogarty, David W. Beier, Deborah Leavy, counsels; Richard Cates, special counsel; Thomas E. Mooney and Joseph V. Wolfe, associate counsels; Michael Kemp, intern; and Audrey Marcus, clerk.

Also present: M. Elaine Mielke, general counsel; Garner J. Cline, staff director; Daniel Freeman, parliamentarian; Judith Bailey and Gary Goldberger, counsels; Alan F. Coffey and Alan Slobodin, associate counsels.

Mr. KASTENMEIER. The committee will come to order.

Pursuant to notice, I will call the subcommittee to order for the purpose of conducting an investigatory hearing relating to House Resolution 461, a resolution calling for the impeachment of Harry E. Claiborne.

Based on 200 years of American history, and then preceding that, with 400 years of English experience, there has never been issues such as those confronting the subcommittee this morning.

Each impeachment process is in a sense unique. This is the first time in our history that a convicted Federal judge has been the subject of an impeachment inquiry. Specifically, we are looking into the fact that the U.S. District Judge, Harry E. Claiborne, who swore under oath to support the laws and Constitution of this

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Nation, was found guilty by a jury of having filed tax returns which he knew not to be true, knowing he had received substantially more income than he was reporting and, therefore, was convicted by a U.S. district court, fined $10,000, and sentenced to two 2-year terms to be served concurrently.

Shortly the subcommittee will go into executive session, as was the practice of the Judiciary Committee 12 years ago during the Watergate impeachment inquiry. Now I would like to give you a very brief explanation of the chain of events that causes us to be here this morning.

In August 1984, Judge Harry E. Claiborne, a district judge from the State of Nevada, was convicted during a second trial of willfully failing to report approximately $106,000 in legal fees he had previously earned as a defense attorney.

On April 21, 1986, the Supreme Court of the United States, without comment, refused to hear Judge Claiborne's final direct appeal in an attempt to overturn his conviction.

On May 16, last month, Judge Claiborne reported to a Federal penitentiary located in the State of Alabama. He continues to receive his annual salary of $78,700, since the Constitution provides that the salary of a Federal judge cannot be reduced while in office.

On June 3, 1986, House Resolution 461 was introduced by the chairman of this committee, Mr. Rodino, by several other members of this committee, and by myself, calling for the impeachment of Judge Claiborne. House Resolution 461 was referred to this subcommittee, and we must decide whether to process it or not, and if we do process it, how to amend it with specific articles of impeachment.

The proposal to impeach Judge Claiborne is rooted in two core constitutional clauses: Article III, Section 1, provides, and I quote, that "Judges both of the Supreme and inferior Courts shall hold their Offices during good Behaviour." Article II, section 4, states that "all Civil Officers of the United States shall be removed from Office on Impeachment for, and Conviction of Treason, Bribery, or other high Crimes and Misdemeanors.'

The plain meaning of these constitutional provisions, and several others, is that Federal judges must maintain the highest standards of conduct to preserve the independence of and respect for the judicial system. The American judicial system, perhaps the greatest in the world, nonetheless is a fragile and vulnerable vessel.

Perhaps the conviction of a Federal judge should not surprise us. Benjamin Cardozo once observed "The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by."

And so we find ourselves here this morning with a resolution to impeach Judge Claiborne before us. We may, I regret to say, see similar resolutions in the near future because we have at least one other Federal judge who has been convicted of a felony.

When a judge engages in criminal activities or conduct that casts doubts upon his personal integrity, he or she raises questions that impact citizen respect and confidence in the judicial branch of government. Our courts are only as strong and resilient as the citizenry's respect for them.

The fact that Judge Claiborne had been found guilty by a jury of his peers on two criminal offenses, coupled with the fact he has refused to resign from his office, creates a prima facie case for the commencement of this impeachment inquiry.

At this point I would like to inform the press and public that I intend to limit the inquiry to the conduct of Judge Claiborne. As we previously wrote witnesses, our inquiry will be restricted to an examination of the two counts of making and filing false statements in Judge Claiborne's tax returns for the 2 years, 1979 and 1980, for which he was convicted.

The inquiry will also assess whether Judge Claiborne's conviction and incarceration constitute behavior incompatible with the duties and responsibilities of a Federal judicial officer. We have prepared materials in connection with these matters, and thus we shall now proceed.

I would like to recognize the gentleman from Kentucky for a unanimous-consent request.

Mr. MAZZOLI. Thank you, Mr. Chairman.

Mr. Chairman, I ask unanimous consent the committee permit the meeting this morning to be covered in whole or in part by television broadcast, radio broadcast, and/or still photography pursuant to rule 5 of the committee rules.

Mr. KASTENMEIER. Without objection, so ordered.

Now, I would like to yield to the gentleman from New York, Mr. Fish.

Mr. FISH. Thank you very much, Mr. Chairman.

Today we formally begin consideration as to whether or not Judge Harry E. Claiborne of Nevada should be impeached. In 1974, in my view, our committee demonstrated an ability to conduct such an inquiry in a fair, thorough, and bipartisan manner, and I have every confidence this will be true again.

Impeachment is a unique prerogative of the legislative branch. It is a constitutional, rather than a legislative responsibility, and a responsibility that cannot be shared by the House of Representatives with any other branch of the government. A decision to impeach clearly does not necessitate a prior criminal conviction.

Having said that, it is also axiomatic that criminal conduct is a justifiable basis for an impeachment. Unlike all previous impeachments, what we have here is the fact of a prior criminal conviction. That is, a properly impaneled jury listened to the facts, evaluated those facts, and reached unanimous verdict as to those facts testified to and conviction beyond a reasonable doubt.

Given this graphic situation, the House of Representatives, and specifically the Committee on the Judiciary, have an obvious duty and responsibility to undertake this inquiry. An overriding concern in these deliberations is public confidence in the integrity of the judicial branch and the individual Federal judges that exercise the most important responsibilities of that branch under our constitutional system.

The current situation regarding Judge Claiborne raises fundamental questions about public confidence in and the public's perception of the Federal court system. At the same time, Mr. Chairman, this committee and the House of Representatives will be judged by the American people on the conduct of our responsibil

Nation, was found guilty by a jury of having filed tax returns which he knew not to be true, knowing he had received substantially more income than he was reporting and, therefore, was convicted by a U.S. district court, fined $10,000, and sentenced to two 2-year terms to be served concurrently.

Shortly the subcommittee will go into executive session, as was the practice of the Judiciary Committee 12 years ago during the Watergate impeachment inquiry. Now I would like to give you a very brief explanation of the chain of events that causes us to be here this morning.

In August 1984, Judge Harry E. Claiborne, a district judge from the State of Nevada, was convicted during a second trial of willfully failing to report approximately $106,000 in legal fees he had previously earned as a defense attorney.

On April 21, 1986, the Supreme Court of the United States, without comment, refused to hear Judge Claiborne's final direct appeal in an attempt to overturn his conviction.

On May 16, last month, Judge Claiborne reported to a Federal penitentiary located in the State of Alabama. He continues to receive his annual salary of $78,700, since the Constitution provides that the salary of a Federal judge cannot be reduced while in office.

On June 3, 1986, House Resolution 461 was introduced by the chairman of this committee, Mr. Rodino, by several other members of this committee, and by myself, calling for the impeachment of Judge Claiborne. House Resolution 461 was referred to this subcommittee, and we must decide whether to process it or not, and if we do process it, how to amend it with specific articles of impeach

ment.

The proposal to impeach Judge Claiborne is rooted in two core constitutional clauses: Article III, Section 1, provides, and I quote, that "Judges both of the Supreme and inferior Courts shall hold their Offices during good Behaviour." Article II, section 4, states that "all Civil Officers of the United States shall be removed from Office on Impeachment for, and Conviction of Treason, Bribery, or other high Crimes and Misdemeanors.'

The plain meaning of these constitutional provisions, and several others, is that Federal judges must maintain the highest standards of conduct to preserve the independence of and respect for the judicial system. The American judicial system, perhaps the greatest in the world, nonetheless is a fragile and vulnerable vessel.

Perhaps the conviction of a Federal judge should not surprise us. Benjamin Cardozo once observed "The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by."

And so we find ourselves here this morning with a resolution to impeach Judge Claiborne before us. We may, I regret to say, see similar resolutions in the near future because we have at least one other Federal judge who has been convicted of a felony.

When a judge engages in criminal activities or conduct that casts doubts upon his personal integrity, he or she raises questions that impact citizen respect and confidence in the judicial branch of government. Our courts are only as strong and resilient as the citizenry's respect for them.

The fact that Judge Claiborne had been found guilty by a jury of his peers on two criminal offenses, coupled with the fact he has refused to resign from his office, creates a prima facie case for the commencement of this impeachment inquiry.

At this point I would like to inform the press and public that I intend to limit the inquiry to the conduct of Judge Claiborne. As we previously wrote witnesses, our inquiry will be restricted to an examination of the two counts of making and filing false statements in Judge Claiborne's tax returns for the 2 years, 1979 and 1980, for which he was convicted.

The inquiry will also assess whether Judge Claiborne's conviction and incarceration constitute behavior incompatible with the duties and responsibilities of a Federal judicial officer. We have prepared materials in connection with these matters, and thus we shall now proceed.

I would like to recognize the gentleman from Kentucky for a unanimous-consent request.

Mr. MAZZOLI. Thank you, Mr. Chairman.

Mr. Chairman, I ask unanimous consent the committee permit the meeting this morning to be covered in whole or in part by television broadcast, radio broadcast, and/or still photography pursuant to rule 5 of the committee rules.

Mr. KASTENMEIER. Without objection, so ordered.

Now, I would like to yield to the gentleman from New York, Mr. Fish.

Mr. FISH. Thank you very much, Mr. Chairman.

Today we formally begin consideration as to whether or not Judge Harry E. Claiborne of Nevada should be impeached. In 1974, in my view, our committee demonstrated an ability to conduct such an inquiry in a fair, thorough, and bipartisan manner, and I have every confidence this will be true again.

Impeachment is a unique prerogative of the legislative branch. It is a constitutional, rather than a legislative responsibility, and a responsibility that cannot be shared by the House of Representatives with any other branch of the government. A decision to impeach clearly does not necessitate a prior criminal conviction.

Having said that, it is also axiomatic that criminal conduct is a justifiable basis for an impeachment. Unlike all previous impeachments, what we have here is the fact of a prior criminal conviction. That is, a properly impaneled jury listened to the facts, evaluated those facts, and reached unanimous verdict as to those facts testified to and conviction beyond a reasonable doubt.

Given this graphic situation, the House of Representatives, and specifically the Committee on the Judiciary, have an obvious duty and responsibility to undertake this inquiry. An overriding concern in these deliberations is public confidence in the integrity of the judicial branch and the individual Federal judges that exercise the most important responsibilities of that branch under our constitutional system.

The current situation regarding Judge Claiborne raises fundamental questions about public confidence in and the public's perception of the Federal court system. At the same time, Mr. Chairman, this committee and the House of Representatives will be judged by the American people on the conduct of our responsibil