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How to Remove a Federal Judge and How to Impeach a President

Saikrishna Prakash & Steven D. Smith, How To Remove a Federal Judge, 116 Yale L.J. (2006).  Available at: https://digitalcommons.law.yale.edu/ylj/vol116/iss1/2 – “Most everyone assumes that impeachment is the only means of removing federal judges and that the Constitution’s grant of good-behavior tenure is an implicit reference to impeachment. This Article challenges that conventional wisdom. Using evidence from England, the colonies, and the revolutionary state constitutions, the Article demonstrates that at the Founding, good-behavior tenure and impeachment had only the most tenuous of relationships. Good-behavior tenure was forfeitable upon a judicial finding of misbehavior. There would have to be a trial, the hearing of witnesses, and the introduction of evidence, with misbehavior proved by the party seeking to oust the tenured individual. Contrary to what many might suppose, judges were not the only ones who could be granted good-behavior tenure. Anything that might be held -land, licenses, employment, etc. could be granted during good behavior, and private parties could grant good-behavior tenure to other private individuals. Impeachment, by contrast, referred to a criminal procedure conducted in the legislature that could lead to an array of criminal sanctions. In England and in the colonies, impeachment was never seen as a means of judging whether someone with good-behavior tenure had forfeited her tenure by reason of misbehavior. Whether a landholder, employee, or government officer with good-behavior tenure had misbehaved would be determined in the ordinary courts of law. Moreover, the vast majority of state constitutions did not equate good-behavior tenure with impeachment either. To the contrary, many distinguished them explicitly. Taken together, these propositions devastate the conventional conflation of good-behavior tenure with impeachment. More importantly, they indicate that the original Constitution did not render impeachment the only possible means of removing federal judges with good-behavior tenure. Given the long tradition of adjudicating misbehavior in the ordinary courts, Congress may enact necessary and proper legislation permitting the removal of federal judges upon a finding of misbehavior in the ordinary courts of law.”

See also – PoliticoA document Hillary Clinton helped write nearly a half century ago has returned from the dead to threaten the man she couldn’t vanquish in 2016. The bizarre, only-in-D.C. twist centers on a congressional report penned by a bipartisan team of young attorneys that included Hillary before she was a Clinton and written in the throes of Watergate. Then, unlike now, not a single lawmaker had been alive the last time Congress impeached a president. They had little understanding of how to try and remove Richard Nixon from the White House. So they tapped Clinton and a team of ambitious staffers to dive into the history of impeachment, stretching back to the 14th century in England: How has impeachment been used? What were the justifications? Can we apply it to Nixon? The resulting document became a centerpiece of the congressional push to drive the Republican president from office. But then Nixon resigned. The memo was buried…until now….The 45-year-old report has become a handbook House Democratic lawmakers and aides say they are using to help determine whether they have the goods to mount a full-scale impeachment effort against President Donald Trump, the same man who three years ago upended Hillary Clinton’s bid for a return trip to the White House…”

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