United States v. The National Committee for Impeachment

469 F.2d 1135

18 A.L.R.Fed. 925

UNITED STATES of America, Appellee,
v.
The NATIONAL COMMITTEE FOR IMPEACHMENT et al., Appellants.

Nos. 308, 309, Dockets 72-1982, 72-1995.

United States Court of Appeals,
Second Circuit.

Argued Sept. 26, 1972.
Decided Oct. 30, 1972.

Paul G. Chevigny, New York Civil Liberties Union, New York City (Joel N. Gora, American Civil Liberties Union; Robert L. Bobrick, Norman Dorsen, Marvin N. Karpatin, New York City, of counsel), for appellants National Committee for Impeachment and Elizabeth A. Most.

Randolph Phillips, pro se.

T. Gorman Reilly, Asst. U.S. Atty. (Whitney North Seymour, Jr., U. S. Atty., S.D.N.Y., and V. Pamela Davis, Asst. U. S. Atty., of counsel), for appellee.

Before HAYS, OAKES and TIMBERS, Circuit Judges.

OAKES, Circuit Judge:

1

In the May 31, 1972, issue of The New York Times appeared a two-page advertisement headed "A Resolution to Impeach Richard M. Nixon as President of the United States." This advertisement,1 comprising 5,100 lines of space and costing $17,850, was paid for by "The National Committee for Impeachment," listed certain officers and sponsors as well as attorneys for the executive committee, and contained two contributions coupons at the end. About half of the advertisement and its central portion was occupied by a reprint of a House Resolution, H.R. 976, 92nd Cong. 2d Sess. (1972), introduced by five Representatives on May 10, 1972, alleging among other things that the President has unconstitutionally "arrogated to himself the power to declare war and the power 'to make Rules for the Government and Regulation of the land and naval forces,' which are committed by article I, section 8, clauses 11 and 14 of the Constitution solely to the Congress . . . .," and essentially calling for his impeachment,2 on the grounds of his Vietnam war policies. The remainder of the advertisement contains language which, the Government urges and the trial court found, makes the National Committee for Impeachment (hereinafter the "National Committee") a "political committee" under section 301(f) of the Federal Election Campaign Act of 1971 (1972 U.S.Code Cong. & Ad. News, p. 13) (hereinafter "FECA" or "the Act"). As such, the National Committee and its two principal officers have been enjoined3 from "performing the functions of a political committee . . . including the acceptance of contributions and the disbursement of monies . . ., unless it first files statements and reports required by sections 303, 304 and 306 of the Act."4 The National Committee and its two principal officers have appealed, urging inapplicability of this new regulatory statute to the Committee, as well as the unconstitutionality of Titles I and III of FECA on their face and as applied in this case.5 The injunction below is also claimed to be excessively broad and a prior restraint on free speech.

2

Appellants argue that FECA should be narrowly construed to avoid infringing their first amendment rights, by requiring the Government to show a closer nexus between the Committee and a specific candidate than is revealed in the newspaper advertisement which is the basis of this suit and to make a showing that the principal aim or thrust of the organization or its questioned advertisement is to influence an election. We need not reach the constitutional issues raised by the Act here since we agree with appellants that solely on the strength of this one advertisement and contributions made in response to it the Act is inapplicable to them.

3

The Act applies only if the National Committee is a "political committee" within the FECA, and more particularly Sec. 301(f) thereof. The Government advances two reasons for urging what it calls the Act's "obvious" applicability. The first is that the National Committee "has attempted to influence the outcome of various Congressional primary and general elections" (Appellee's Brief at 4) in that the advertisement states that the National Committee has placed on its "Honor Roll" in addition to the five original sponsors of the impeachment resolution three congressmen who signed the resolution as co-sponsors and Rep. Paul N. McCloskey, Jr., as the first person who stated publicly that President Nixon should be threatened with impeachment. The advertisement goes on to say:

4

The National Committee for Impeachment will devote its resources in funds and publicity in aid of any new candidate for election to the House of Representatives or re-election of an incumbent Member, whether in a primary contest or the actual election contest, whether Republican, Democrat, Independent, or a new party, in the order in which their names are officially printed in The Congressional Record.

5

The second ground urged by the Government in its brief and supporting papers for our declaring the National Committee to be a "political committee" is that by this advertisement and the contributions made in response to it, the Committee has attempted to influence "the outcome of the 1972 Presidential and Vice Presidential elections." (Affidavit of T. Gorman Reilly at p 3.) While the Government's brief does not fully articulate a third ground, in the affidavit supporting the motion for a preliminary injunction, as well as on oral argument, it is urged that because the advertisement is derogatory to the President's stand on the Vietnam war, the President is a candidate for re-election, and the war is a campaign issue,6 the advertisement was an attempt to influence the presidential election. (Id. at p 8.) The Brief on the other hand (4-5) relies on the language of the advertisement reading as follows:

6

If said majority [of the House of Representatives to pass an impeachment resolution] is not obtained by a certain deadline to be set by the Executive Committee of the National Committee for Impeachment, it will seek to establish, if possible, pursuant to the appropriate legal methods in each of the 50 States of the Nation, a new political party for the nomination and election of a new President and Vice-President of the United States, and of new or incumbent members of the House of Representatives, known as the Puritan Party of the United States.

7

The Government also notes (Brief at 18-19) that the text of the advertisement concludes with an exhortation "to help finance our work by a contribution of $1 or more," with the above mentioned contribution coupons available to be clipped.

The statute in question provides:

8

Section 301. When used in this title-

9

******

10

* * *(d) "political committee" means any committee, association, or organization which accepts contributions or makes expenditures during a calendar year in an aggregate amount exceeding $1,000;

11

(e) "contribution" means-

12

(1) a gift, subscription, loan, advance, or deposit of money or anything of value, made for the purpose of influencing the nomination for election, or election, of any person to Federal office or as a presidential or vice-presidential elector . . . .

13

(f) "expenditure" means-

14

(1) a purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value, made for the purpose of influencing the nomination for election, or election, of any person to Federal office, or as a presidential and vice-presidential elector . . . .

15

The Senate Report, S.Rep.No. 92-96, 92nd Cong. 2d Sess., 1972, U.S.Code Cong. & Ad.News, p. 45 et seq., which is particularly important because the Senate Bill was the one passed in lieu of the House bills, may be searched in vain for any passage which throws further light upon the meaning of "political committee" or "made for the purpose of influencing."7 Here as elsewhere Congress "has voiced its wishes in muted strains and left it to the courts to discern the theme in the cacophony of political understanding." Rosado v. Wyman, 397 U.S. 397, 412, 90 S.Ct. 1207, 1218, 25 L.Ed.2d 442 (1970). Our chief resources in this undertaking include not only the words of the statute and, in the words of Rosado, supra at 412, 90 S.Ct. at 1218, "those common-sense assumptions that must be made in determining direction without a compass," but some fundamental principles of freedom of expression in our democratic form of government.

16

We deal first with the point of the Government in respect to the "Honor Roll" of Congressmen, noting that in the case of each of the Congressmen named there was no authorization or approval on his or her part in respect to the advertisement.8 Indeed, there is no evidence of any advance knowledge of the advertisement on the part of any of the Congressmen or of any connection between any of them and the National Committee or that any money received by the National Committee has been expended on behalf of any of them in any way. The Government says it is enough that the advertisement was published and sought money, since publication alone is said to have been an "obvious" political activity that was intended to further the candidacies of the Congressmen so "honored."9

17

The words of the Act themselves point toward some more definite connection between candidate and committee than was here involved. Section 303(b) (6) (1972) U.S.Code Cong. & Ad.News, p. 15), for example, includes within the organizational statement required to be filed by a political committee

18

the name, address, office sought, and party affiliation of (A) each candidate whom the committee is supporting, and (B) any other individual, if any, whom the committee is supporting for nomination for election, or election, to any public office whatever; or, if the committee is supporting the entire ticket of any party, the name of the party.

19

While dealing with reports required to be filed by a political committee, the Act relates specifically to election campaigns, including within the scope of contributions that have to be reported:

20

the total amount of proceeds from (A) the sale of tickets to each dinner, luncheon, rally, and other fund-raising event; (B) mass collections made at such events; and (C) sales of items such as political campaign pins, buttons, badges, flags, emblems, hats, banners, literature, and similar materials.

21

Sec. 304(b)(6), 1972 U.S.Code Cong. & Ad. News, p. 17. Thus, the words of the Act seem to indicate that Congress' concern was primarily with groups organized or at least authorized by a particular candidate and whose principal focus is a specific campaign. The central theme of the advertisement at issue here relates to impeachment of the President, not specific election campaigns or candidates.

22

The statement in the ad that the Committee will use its "funds and publicity" in aid of any new candidate for election or re-election of an incumbent looks toward the future, but does not imply that the Congressmen named have agreed to such use. It is made, moreover, in the context that an impeachment resolution requires for passage under art. I, Sec. 2, p 5 of the Constitution a vote of 218 of the 435 members of the House of Representatives. We reiterate: the basic thrust of the advertisement is toward impeachment and war-policy condemnation, not toward the election of Congressmen.

23

As much or more can be said of the language of the advertisement looking rather vaguely in the future10 toward the creation of a new party to nominate and elect a President and Vice President and new or incumbent members of the House, contingent upon the National Committee's failure by a "deadline to be set" to secure the majority of House members necessary to pass an impeachment resolution. Again, the central theme is impeachment, not the seeking of funds. Qualitatively, as well as quantitatively, the advertisement seeks support of an impeachment resolution, not the election of political candidates. As such, the purpose of the advertisement as we construe it was at most only incidentally to support candidates and engage in "political activity" within the FECA.

24

Given that conclusion, we think that the publication of this advertisement alone did not make the National Committee a "political committee" within the FECA. Were we to think otherwise Title III of the Act would raise serious constitutional issues, on which we express no opinion11 See, e. g., United States v. Robel, 389 U.S. 258, 262, 265, 266, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967) (statutes impinging on first amendment rights must be narrowly drawn); Mills v. Alabama, 384 U.S. 214, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966) (first amendment invalidates state statute prohibiting election day editorials);12 NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed. 2d 1488 (1958) (court-ordered disclosure of names of members of controversial group held an unconstitutional interference with the right of free association);13 Opinions of the Justices, 284 N.E.2d 919 (Sup.Jud.Ct.Mass., 1972) (proposed Massachusetts statute regulating political advertising declared unconstitutionally vague).

25

We thus construe the words "made for the purpose of influencing" in Section 301(e) and (f)14 to mean an expenditure made with the authorization or consent, express or implied, or under the control, direct or indirect, of a candidate or his agents. For, in the words of Professor Emerson:

26

[R]egulations confined to candidates and election campaigns are directed to a limited end and deal with a limited situation. Hence they can be formulated with some objectivity and avoid the dangers of abuse in administration. This cannot be done with regulations . . . addressed to the innumerable different kinds of people seeking to express themselves for different purposes throughout the whole system of free expression.

27

The System of Freedom of Expression 640 (Vintage ed. 1970). We also construe the Act to apply only to committees soliciting contributions or making expenditures the major purpose of which is the nomination or election of candidates. Here neither statutory test is met: any authorization or control by any candidate-indeed any connection whatsoever between the National Committee and any candidate-is missing and the major purpose of the advertisement was to promote the impeachment movement and to condemn governmental policy on the Vietnam war, not to elect candidates. In so saying, we need not determine whether, if one statutory test were met, the statute would be applicable.

28

In thus narrowly construing the Act we follow United States v. Rumely, 345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770 (1953), where the Court gave a limited construction to the phrase "lobbying activities" "in the candid service" in Mr. Justice Frankfurter's words "of avoiding a serious constitutional doubt," 345 U.S. at 47, 73 S.Ct. at 546. See also Pipefitters Local Union No. 562 v. United States, 407 U.S. 385, 92 S.Ct. 2247, 33 L.Ed.2d 11 (1972) (18 U.S.C. Sec. 610 interpreted so as not to prohibit political expenditures from voluntarily-financed union political funds); United States v. Painters Local Union No. 481, 172 F.2d 854 (2d Cir. 1949) (statute interpreted so as not to prohibit union advertisements in a newspaper of general circulation). Accord, United States v. CIO, 335 U.S. 106, 121, 68 S.Ct. 1349, 92 L. Ed. 1849 (1948).

29

Such a construction is, we think, also consistent with the principal purpose of the Act. See United States v. Harriss, 347 U.S. 612, 622-623, 74 S. Ct. 808, 98 L.Ed. 989 (1954). That principal purpose, the Commerce Committee report indicates, related to "the problem of political campaign reform and excessively high campaign costs." Sen. Rep. No. 92-96, supra, 1972 U.S.Code Cong. & Adm.News, p. 58. Congressional concern was with political campaign financing, not with the funding of movements dealing with national policy. Admittedly, under this interpretation, enforcement of the Act may be made somewhat more burdensome, as the supervisory officials will be forced to glean the principal or major purpose of the organizations they seek to have comply with the Act. The broad administrative discretion which the Government's construction of the Act would allow, however, would itself be incompatible with the first amendment which requires that administrative standards regulating free expression be precisely drawn. See, e. g., Kunz v. New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280 (1951); Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574 (1948); Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940).

30

We dispose more readily of the Government's suggestion that the Act applies to the National Committee because-quoting from the affidavit supporting its motion for a preliminary injunction-"with respect to the upcoming election for President and Vice-President of the United States, the National Committee derogates President Nixon's stand on a principal campaign issue-the Vietnam war." On this basis every position on any issue, major or minor, taken by anyone would be a campaign issue and any comment upon it in, say, a newspaper editorial or an advertisement15 would be subject to proscription unless the registration and disclosure regulations of the Act in question were complied with. Such a result would, we think, be abhorrent; the Government fails to point to a shred of evidence in the legislative history of the Act that would tend to indicate Congress meant to go so far. Any organization would be wary of expressing any viewpoint lest under the Act it be required to register, file reports, disclose its contributors, or the like. On the Government's thesis every little Audubon Society chapter would be a "political committee," for "environment" is an issue in one campaign after another. On this basis, too, a Boy Scout troop advertising for membership to combat "juvenile delinquency" or a Golden Age Club promoting "senior citizens' rights" would fall under the Act. The dampening effect on first amendment rights and the potential for arbitrary administrative action that would result from such a situation would be intolerable. The suggestion in the Government's supporting affidavit and on oral argument is inconsistent with what Judge Learned Hand so eloquently described as "the spirit of liberty" and which he so beautifully defined as "the spirit of Him who, near two thousand years ago, taught mankind that lesson it has never learned, but has never quite forgotten; that there may be a kingdom where the least shall be heard and considered side by side with the greatest." L. Hand, The Spirit of Liberty 190 (I. Dilliard ed. 1952). We reject the suggestion for we believe Congress had no intention of regulating the expression of opinion on fundamental issues of the day.

31

The granting of a preliminary injunction is therefore reversed, and the cause remanded for a hearing on the merits at which the Government may, of course, seek to adduce proof that the statutory standards here enunciated were met in this instance.

Reversed and remanded.APPENDIX

THE NEW YORK TIMES, WEDNESDAY, MAY 31, 1972

32

A Resolution to Impeach Richard M.

33

Nixon as president of the United States.

34

House Resolution 976, the impeachment Resolution reprinted herein in its entirety, was officially filed in the House of Representatives by 5 Congressmen and Women, since supplemented by 4 additional sponsors, and it is still circulating to other Members of the House for their signature. The Resolution has been officially referred to the Committee on the Judiciary, the Committee of the House that has jurisdiction over Resolutions for Impeachment.

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Each Member, as he signs, has been placed on the Honor Roll of The National Committee for Impeachment and assigned a number to indicate the order in which signatures were obtained. They are:

37

1. William F. Ryan of New York, who filed the first Resolution for Impeachment in the House of Representatives on May 9, 1972, as a member of the Committee on the Judiciary.

38

2. John Conyers, Jr. of Michigan, who originated the sponsorship of H.Res. 976, also a member of the Committee on the Judiciary.

39

3. Bella Abzug of New York, cosponsor of H.Res. 976.

40

4. Shirley Chisholm, of Brooklyn, co-sponsor.

41

5. Ronald Dellums of California, cosponsor.

42

6. Charles Rangel of Harlem, New York, co-sponsor.

43

7. Louis Stokes of Cleveland, Ohio, co-sponsor.

44

8. Parren Mitchell of Baltimore, Maryland, co-sponsor.

We also honor

45

Paul N. McCloskey, Jr. of San Francisco, California, the first member of the House of Representatives who had the courage to state publicly that President Nixon should be threatened with impeachment as a means of changing the Administration's Vietnam policy, thereby putting conscience above reelection, despite a threatened primary fight for his seat as a Republican.

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The National Committee for Impeachment will devote its resources in funds and publicity in aid of any new candidate for election to the House of Representatives or re-election of an incumbent Member, whether in a primary contest or the actual election contest, whether Republican, Democrat, Independent, or a new party, in the order in which their names are officially printed in The Congressional Record. We will ask Congressman Ryan to insert the names of those persons who are not now members of the House in The Congressional Record in the order in which they are received by his office in Washington, D. C.

48

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49

There are now 435 Members of the House of Representatives, of which a majority is 218, assuming the presence of all members for the final vote on the Resolution for Impeachment, whether in its present form or consolidated with additional Resolutions that may be filed. A vote by 218 guarantees the Impeachment of Richard M. Nixon as President of the United States for "high crimes and misdemeanors." Constitution of the United States, Article I, Section 2, paragraph 5. The Campaign for Impeachment will be conducted entirely by non-violent methods exemplified by Gandhi and Martin Luther King, but also by adaptation of new methods under the banner of The Army of Non-Violence.

50

If said majority is not obtained by a certain deadline to be set by the Executive Committee of The National Committee for Impeachment, it will seek to establish, if possible, pursuant to the appropriate legal methods in each of the 50 States of the Nation, a new political party for the nomination and election of a new President and Vice-President of the United States, and of new or incumbent members of the House of Representatives, known as The Puritan Party of The United States.

51

[Attorneys and volunteers for this purpose should sign the enclosed coupon at the bottom of the last column of this ad, signing merely after their name in capital letters the initial A or V or both]

52

PURITAN-A member of any religious sect or party that advocates special purity of doctrine or practice. [1577] Oxford Universal English Dictionary (1955 ed.)

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Upon the Impeachment of Richard Nixon, "for high crimes and misdemeanors", the Constitution of the United States, provides that he, among others "shall be removed from office . . . for conviction of, treason, bribery, or other high crimes and misdemeanors." (Article II, Section 4.)

55

The Constitution of the United States, further provides: "The Senate shall have the sole power to try all impeachments. When siting 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 concurrence of twothirds of the members present." (Article I, Section 3, paragraph 6.) "Judgement in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States, but the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment, and punishment according to law." (Article I, Section 3, paragraph 7.)

56

The National Committee for Impeachment will also in the near future make an announcement respecting Spiro T. Agnew as Vice-President of the United States, John N. Mitchell as former Attorney General of the United States, and Richard Kleindienst as Acting Attorney General of the United States. The statement herein in no way implies each or all is guilty of impeachable offenses.

57

THE CONSTITUTIONAL PRECEDENT.

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Of the 11 impeachments that went to trial before the Senate, the impeachment of President Andrew Johnson in 1868 is the basic Constitutional precedent for the impeachment of President Nixon.

59

By comparison President Andrew Johnson's alleged defiance of Congress

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Of the 435 members of the House of Representatives there are 218 Congressmen and Women who can forthwith do more to end United States participation in the IndoChina War than any other 218 persons in the Nation. They are the majority necessary to guarantee the enactment of a Resolution of Impeachment. Once that Resolution is voted, the authority of Richard M. Nixon as Commander in Chief of the Army and Navy to order a continuation of the killing will for all practical purposes be terminated. Is not all this terrorization of helpless human beings done solely for the purpose of saving Mr. Nixon's image of himself as Commander-in-Chief in the high office occupied by George Washington, John Adams, Thomas Jefferson, and Abraham Lincoln? When any of these

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giants went to war they did so to preserve the great name and conscience of the Republic and not for purposes of re-election.

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The image they wished to preserve was one of moral integrity and Constitutional authority of the Congress of the United States.

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"A weak man compensates with artificial power and boisterous bravado. A great man understands his fallibility and acknowledges error. A weak man admits no fault."

66

-SENATOR EAGLETON of Missouri in the Congressional Record, Senate, April 19, 1972, page S 6294.

THE NATIONAL COMMITTEE FOR IMPEACHMENT

HONORARY CHAIRMAN

THE HONORABLE ERNEST GRUENING

Former United States Senator, Alaska

EXECUTIVE COMMITTEE

RANDOLPH PHILLIPS, Chairman

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Attorney pro se, consultant to attorneys (1944-1972)

68

RICHARD A. FALK, Vice-Chairman,

69

Milbank Professor of International Law, Princeton, N. J.

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ROBERT L. BOBRICK, General Counsel,

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Member of the Bar of the Supreme Court of the United States

DR. ELIZABETH A. MOST, Secretary Treasurer

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ALFRED HASSLER, Executive Director,

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Fellowship of Reconciliation, Nyack, N. Y.

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RON YOUNG, Field Director of Training in Non-Violence,

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Fellowship of Reconciliation, Washington, D. C.

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[TITLES OF ORGANIZATION SOLELY FOR PURPOSE OF IDENTIFICATION]

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PLEASE SIGN THE FIRST COUPON AND IF YOU ARE ABLE TO HELP FINANCE OUR WORK BY A CONTRIBUTION OF $1 OR MORE, PLEASE ALSO SIGN THE SECOND COUPON.

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NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE92 CONGRESS

2D SESSION

H.Res. 976

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IN THE HOUSE OF REPRESENTATIVES May 10, 1972

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Mr. CONYERS (for himself, Mrs. ABZUG, Mr. RYAN, Mr. DELLUMS, and Mrs. CHISHOLM) submitted the following resolution; which was referred to the Committee on the Judiciary

RESOLUTION

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Whereas article II, section 4 of the Constitution of the United States provides: "The President, the Vice President, and 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"; and

82

Whereas article I, section 2, paragraph 5, of the Constitution of the United States provides: "The House of Representatives shall have the sole Power of Impeachment"; and

83

Whereas Richard M. Nixon, President of the United States from January 20, 1969, to the present time has known that this House and the Senate of the United States have at no time declared war against the Democratic Republic of Vietnam, the National Liberation Front, the sovereign state of Cambodia, or the sovereign state of Laos, pursuant to article I, section 8, clause 11, of the Constitution of the United States which provides: "The Congress shall have power * * * to Declare War"; and

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Whereas Richard M. Nixon has committed the acts hereinafter set forth, which constitute high crimes and misdemeanors within the meaning of article II, section 4, of the Constitution of the United States:

ARTICLE I

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1. On January 20, 1969, Richard M. Nixon executed the oath of office of President of the United States, solemnly swearing that "I will faithfully execute the office of President of the United States, and will, to the best of my ability, preserve, protect, and defend the Constitution of the United States.

86

2. From January 20, 1969, to the present time, Richard M. Nixon has known that this House and the Senate of the United States Have at no time declared war against the Democratic Republic of Vietnam, the sovereign state of Cambodia, or the sovereign state of Laos, pursuant to article I, section 8, clause 11, of the Constitution of the United States, which provides: "The Congress shall have power * * * to Declare War," and has nevertheless committed the acts, including acts of war, hereinafter specified.

87

3. On January 12, 1971, after enactment by the Congress, Richard M. Nixon approved Public Law 91-672, section 12 of which repealed the Southeast Asia (Tonkin Gulf) resolution, Public Law 88-408, approved August 10, 1964, withdrawing and terminating any power which may have been granted under such Tonkin Gulf resolution to the President respecting the use of the Armed Forces of the United States in Southeast Asia.

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4. On November 17, 1971, after enactment by the Congress, Richard M. Nixon approved the Military Procurement Authorization Act for fiscal year 1972, Public Law 92-156.

89

5. Section 601 of the said Act, known as the Mansfield amendment, in pertinent part declares it to be "the policy of the United States to terminate at the earliest practicable date all military operations of the United States in Indochina, and to provide for the prompt and orderly withdrawal of all United States military forces at a date certain, subject to the release of all American prisoners of war held by the Government of North Vietnam and forces allied with such Government and an accounting for all Americans missing in action who have been held by or known to such Government or such forces."

90

6. Section 601 called upon the President to implement the above-expressed policy by initiating immediately the following actions:

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Establishing a final date for the withdrawal from Indochina of all military forces of the United States contingent upon the release of all American prisoners of war held by the Government of North Vietnam and forces allied with such Government and an accounting for all Americans missing in action who have been held by or known to such Government or such forces.

92

Negotiate with the Government of North Vietnam for an immediate cease-fire by all parties to the hostilities in Indochina.

93

Negotiate with the Government of North Vietnam for and agreement which would provide for a series of phased and rapid withdrawals of United States military forces from Indochina in exchange for a corresponding series of phased releases of American prisoners of war, and for the release of any remaining American prisoners of war concurrently with the withdrawal of all remaining military forces of the United States by not later than the date established by the President pursuant to paragraph (1) hereof or by such earlier date as may be agreed upon by the negotiating parties.

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7. On November 11, 1971, Senator John Stennis, chairman of the Senate Armed Services Committee, in commenting on section 601 prior to its enactment, stated to the Senate: "* * * for the first time we now have as a proposed law, language which makes our withdrawal from Indochina 'the policy of the United States,' rather than the sense of the Congress as contained in the previous version. For those who supported the Mansfield amendment, I would urge that they closely consider the meaning of this change in language. As a policy matter it binds the Congress and the President of the United States." (Congressional Record, November 11, 1971, page S 18288).

95

8. On November 17, 1971, upon approving Public Law 92-156 by affixing his signature thereto, and despite the will of the Congress in enacting section 601, Richard M. Nixon stated: "Section 601 expresses a judgment about the manner in which the American involvement in the war should be ended. However, it is without binding force or effect, and it does not reflect my judgment about the way in which the war should be brought to a conclusion. My signing of the bill that contains this section, therefore, will not change the policies I have pursued and that I shall continue to pursue toward this end."

96

9. On February 16, 1972, the United States District Court for the Eastern District of New York ruled in DaCosta against Nixon, 72 Civil Action 207 (John F. Dooling, D.J.), that: "When the bill embodying section 601, was passed by the Congress and approved by the President's signature it established 'the policy of the United States' to the exclusion of any different executive or administration policy, and had binding force and effect on every officer of the Government, no matter what their private judgments of that policy, and illegalized the pursuit of an inconsistent executive or administration policy. No executive statement denying efficacy to the legislation could have either validity or effect."

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10. Despite the aforesaid enactment into law of the said section 601, Richard M. Nixon ordered the following actions:

98

(1) On March 23, 1972, broke off the negotiations in Paris with representatives of the Democratic Republic of Vietnam and the National Liberation Front;

99

(2) From March 24, 1972, to April 26, 1972, refused to return to said negotiations;

100

(3) On May 4, 1972, broke off again said negotiations, suspending them indefinitely;

101

(4) Since April 1972, escalated the air war in Indochina to levels unprecedented in the history of warfare, and on May 8, 1972, without prior consultation with or consent of the Congress, announced that he had ordered the mining of all North Vietnamese ports and the interdiction by United States forces of rail lines and other communications entering the Democratic Republic of Vietnam.

102

11. By refusing to declare a final date for the complete withdrawal of all United States forces in Indochina, as called for by section 601 of Public Law 92-156, by insisting upon his Vietnamization policy, and by intimating that a residual military force would be left in South Vietnam until such time as the Democratic Republic of Vietnam and forces allied with that Government acceded to his demands for the release of American prisoners of war, a ceasefire, and new elections under a caretaker government controlled and administered by Nguyen Van Thieu, Richard M. Nixon jeopardized the security of the United States.

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12. By reason of the aforesaid acts, Richard M. Nixon has arrogated to himself the power to declare war and the power "to make Rules for the Government and Regulation of the land and naval forces," which are committed by the article I, section 8, clauses 11 and 14 of the Constitution solely to the Congress, and has, in violation of his oath as President of the United States, of section 601 of Public Law 92-156, of the Charter of the United Nations, and of principles of the Law of Nations, to the detriment of the national interest, at the cost of prolonging the retention of American prisoners of war, and at the risk of confrontation with the Governments of the Union of Soviet Socialist Republics and the People's Republic of China, caused untold killing and maiming of American military personnel and the people of Indochina and inflicting death and destruction upon the innocent civilian populations of said region, and has thereby committed and is guilty of high crimes and misdemeanors within the meaning of article II, section 4 of the Constitution of the United States.

ARTICLE II

104

13. From January 20, 1969, to the present time, Richard M. Nixon, in violation of

105

(a) his oath of office to preserve, protect, and defend the Constitution of the United States,

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(b) article I, section 8, clauses 11 and 14 of the Constitution of the United States, which assign solely to Congress the powers to declare war and to make rules for the Government and regulation of the land and naval forces of the United States.

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(c) section 601 of the Military Procurement Authorization Act for fiscal year 1972, Public Law 92-156, declaring it to be "the policy of the United States to terminate at the earliest practicable date all military operations of the United States in Indochina",

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(d) section 12 of Public Law 91-672, the congressional repeal of the Gulf of Tonkin resolution, which withdrew and terminated any power which may have been granted by such Gulf of Tonkin resolution to the President, and

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(e) the Charter of the United Nations, to which the United States is a signatory, and which is therefore part of the supreme law of the land, which obligates the United States to refrain from the unilateral use or threat of force in its international relations, and which obligates the United States to settle international disputes by peaceful means,

110

did willfully and intentionally cause and direct the Armed Forces of the United States to continue to engage in military hostilities and to continue to carry on a war against the territory and people of South Vietnam, the Democratic Republic of Vietnam, the sovereign state of Cambodia, and the sovereign state of Laos, all without a declaration of war by the Congress of the United States pursuant to article I, section 8, clause 11 of the Constitution.

111

14. By reason of the aforesaid acts, Richard M. Nixon has arrogated to himself the power to declare war and the power "to make Rules for the Government and Regulation of the land and naval Forces", which are committed by article I, section 8, clauses 11 and 14, of the Constitution solely to the Congress, and has, in violation of his oath as President of the United States, of section 601 of Public Law 92-156, of the Charter of the United Nations, and of principles of the Law of Nations, to the detriment of the national interest, at the cost of prolonging the retention of American prisoners of war, and at the risk of confrontation with the Governments of the Union of Soviet Socialist Republics and the People's Republic of China, caused untold killing and maiming of American military personnel and the people of Indochina and inflicting death and destruction upon the innocent civilian populations of said region, and has thereby committed and is guilty of high crimes and misdemeanors within the meaning of article II, section 4, of the Constitution of the United States.

ARTICLE III

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15. From January 20, 1969, to the present time, Richard M. Nixon has caused and directed the Armed Forces of the United States to engage in acts of terror against the civilian population and of devastation of the territory of Indochina, to kill and wound hundreds of thousands of innocent civilians by means of aerial, land, and naval bombardments directed against noncombatants, the designation of "free fire zones," "harassment," and "interdiction" fire, indiscriminate use of antipersonnel bombs, napalm, and defoliants, to drive innocent civilians from their homes into squalid refugee camps, and to commit other similar acts, all in violation of-

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(i) "the supreme law of the land," pursuant to article VI, clause 2 of the Constitution of the United States, as embodied in the Hague Convention Numbered IV of 18 October 1907, Respecting the Laws and Customs of War on Land (36 Stat. 2277, Treaty Series 539); Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12 August 1949 (T.I.A.S. 3365); Hague Convention Numbered IX of 18 October 1907, Concerning Bombardment by Naval Forces in Time of War (36 Stat. 2351; Treaty Series 542); Geneva Convention for the Amelioration of the Condition of the Wounded and Sick of Armies in the Field of 27 July 1929 (47 Stat. 2047: Treaty Series 847), to which the United States is a signatory,

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(ii) the Law of Land Warfare embodied in United States Field Manual 27-10, and

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(iii) the laws of civilized society, including crimes against peace, crimes against humanity, and war crimes, agreed upon in "The Principles of International Law Recognized in the Charter of the Nuremburg Tribunal" adopted unanimously by the first General Assembly of the United Nations at the initiative of the United States.

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16. By reason of said acts in violation of the said laws and principles, Richard M. Nixon is guilty of high crimes and misdemeanors within the meaning of article II, section 4 of the Constitution of the United States: Now, therefore, be it

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Resolved, That Richard M. Nixon, President of the United States ought to be, and he hereby is impeached by this House, and further

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Resolved, That the Speaker appoint a Committee of Managers on the part of the House, and further

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Resolved, That a message be sent to the Senate to inform them that this House has appointed managers to conduct the impeachment of the President of the United States, and have directed the said managers to carry to the Senate the articles agreed upon by this House, as contained in this resolution, to be exhibited in maintenance of their impeachment against Richard M. Nixon, and that the Clerk of the House do go with said message, and further

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Resolved, That the articles agreed to by this House, as contained in this resolution, be exhibited in the name of the House and of all the people of the United States, against Richard M. Nixon, President of the United States, in maintenance of the impeachment against him of high crimes and misdemeanors in office, and be carried to the Senate by the managers appointed to conduct the said impeachment on the part of this House.

1

The text of the advertisement is appended to this opinion

2

The resolution is framed not dissimilarly to the bill of impeachment brought against President Andrew Johnson. Proceedings in the Trial of Andrew Johnson, President of the United States, Before the United States Senate on Articles of Impeachment (1868)

3

Pending appeal on the merits, a stay of the district court's order was granted by Judges Lumbard and Feinberg and was continued by this panel. This appeal was heard on an expedited basis

4

Section 303 requires a political committee which anticipates receiving contributions or making expenditures of over $1,000 in a calendar year to file a "statement of organization" which must include, among other things, names and addresses of affiliated or connected organizations, principal officers, candidates being supported, and a listing of depositories. 1972 U.S.Code Cong. & Ad.News, p. 15. Section 304 requires political committees to file reports of receipts and expenditures, the names of contributors and recipient candidates. Id. at pp. 16-17. Section 306 simply authorizes the Act's supervisory officers, which include the Comptroller General, see FECA Sec. 301 (g), 1972 U.S.Code Cong. & Ad.News, p. 13, to prescribe the form of the forms required to be filed and to make certain exceptions to the filing requirements, immaterial here, in the case of local elections. Pursuant to Section 306, the Comptroller General has issued a manual of regulations and instructions for the Act. See 37 Fed.Reg. 6156 et seq. (1972)

5

We note that in a pending case in the District Court for the District of Columbia based on the now repealed Federal Corrupt Practices Act of 1925, the defendant has raised the issue of the unconstitutionality of legislative enactments which require the naming of campaign contributors, an argument that could apply to the FECA as well. Common Cause v. Finance Comm. to Re-elect the President, Civil No. 1780-72 (D.D.C. filed Sept. 6, 1972), in N. Y. Times, Sept. 30, 1972, at 1, col. 1-2 & 16, col. 4. That issue is not specifically raised here, appellants' claims being more broadly based

6

This was one of the bases of the complaint made about the advertisement to the General Accounting Office by the Schuchman Foundation Center for the Public Interest on June 7, 1972. A second complainant, the Committee for the Re-election of the President, did not spell out its grounds. Common Cause, the third complainant, based its complaint almost exclusively on the fact that the advertisement derogated the President's Vietnam policies. While we put no weight on the fact, of 284 complaints apparently made by the "Campaign Monitoring Project" for Common Cause, the only one being prosecuted as of August 1972 was the one at bar, according to the affidavit of the Project's Research Director. (Affidavit of Thomas R. Pokorni.)

7

In ways immaterial to this case the definitions of "contribution" and "expenditure" under previous law were expanded. See FECA Secs. 301(e)-(f), 1972 U.S.Code Cong. & Ad.News at pp. 12-13. Also the Act plugged the loophole which permitted committees organized in the District of Columbia or United States territories to escape all provisions of the law. Id. at 131

8

One, Congresswoman Bella S. Abzug, on June 2, 1972, was quoted as saying that it was "highly improper" to use an advertisement about the impeachment drive to solicit funds for the election campaigns of candidates; she, as well as some others, said she would not accept such funds. See N. Y. Times, June 3, 1972, at 33, col. 4. See also 118 Cong. Rec. E5920 (daily ed. June 1, 1972) (statement of Congresswoman Abzug)

9

Parenthetically we note in this connection that two of them, the late William F. Ryan and Bella S. Abzug, were engaged in a primary contest against each other at the time of the publication of the advertisement

10

The introductory language to this effect -"If said majority is not obtained by a certain deadline to be set by the Executive Committee of the National Committee for Impeachment . . ."-was omitted in quotation of the advertisement at page 5 of the Government's brief. When this language is added, the context is clear that here also the advertisement was referring to the indefinite future

11

A Washington, D. C., three-judge court is, at the writing of this opinion, considering the constitutionality of the Federal Election Campaign Act. ACLU v. Jennings, Civil No. 1967-72 (D.D.C.1972)

12

No distinction may be made for first amendment purposes between a political editorial and a paid political advertisement. See New York Times Co. v. Sullivan, 376 U.S. 254, 266, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); United States v. Painters Local Union No. 481, 172 F. 2d 854 (2d Cir. 1949). Cf. Business Executives' Move for Vietnam Peace v. FCC, 146 U.S.App.D.C. 181, 450 F.2d 642 (1971), cert. granted, 405 U.S. 953, 92 S.Ct. 1174, 31 L.Ed.2d 230 (1972)

13

Attorney Gen. v. Irish Northern Aid Comm., 346 F.Supp. 1384 (S.D.N.Y., Aug. 7, 1972), aff'd without opinion, 465 F.2d 1405 (2d Cir., Aug. 23, 1972), is not inconsistent with the line of cases following NAACP v. Alabama since it involves agents raising money for a civil war in a foreign country. Cf. 357 U.S. at 465, 78 S.Ct. at 1163; Communist Party v. SACB, 367 U.S. 1, 90-91, 81 S.Ct. 1357, 6 L.Ed.2d 625 (1961)

14

We are here concerned not only with contributions made to the National Committee; while there is not a shred of evidence that it made any expenditures on behalf of any candidate, the Government argues that paying for the original advertisement itself was an "expenditure" within Sec. 301(f)

15

At argument, Government counsel attempted valiantly to distinguish newspaper editorials from paid advertisements. But as Judge Augustus Hand pointed out in United States v. Painters Local Union No. 481, 172 F.2d 854, 856 (2d Cir. 1949), not everyone can afford to own a newspaper; indeed in this day and age fewer and fewer people can do so and hence must resort to purchasing space in someone else's newspaper or time on someone else's radio or TV station. Cf. Business Executives' Move for Vietnam Peace v. FCC, 46 U.S.App.D.C. 181, 450 F.2d 642 (1971), cert. granted, 405 U.S. 953, 92 S.Ct. 1174, 31 L.Ed.2d 230 (1972) (first amendment requires broadcasters to allow purchase of air time for political advertisements)