by Michael Liss
On their part they have retired into the Judiciary as a stronghold. There the remains of Federalism are to be preserved and fed from the treasury, and from that battery all the works of Republicanism are to be beaten down and erased. —Thomas Jefferson to John Dickenson, December 19, 1801
So frustrating, so very frustrating. In 1800, Jefferson had captured the Presidency, his young Democratic-Republican Party the House and Senate, and a new age was beginning. Out went the crabby, cranky John Adams and his bilious Federalists. In came lightness and hope and liberty, a true “Second Revolution.”
All except for those gatekeepers, the ones manning the “battery,” those accursed Federalist judges. Twelve years of Federalist rule had left 12 years of Federalist judges. On top of those, a lame duck Federalist Congress had passed, and a lame duck President Adams had signed, the Judiciary Act of 1801, creating even more of them. The image of Adams feverishly signing commissions as the candle of his Presidency burned down rankled every good Republican, starting at the very top.
Less than two weeks before he had written to Dickenson, Jefferson, in his first Annual Message, had called for Congress to repeal the Midnight Judges Act, and, within two months, they complied. All 16 of the new federal judges were shown the door. While there was some question about terminating the service of presumably lifetime appointments, there was little argument that Congress had the power to create or alter the composition of the federal bench, to add or subtract positions.
Republicans had found the means to eliminate the Midnight Judges, but without new slots, Jefferson had to wait for vacancies to fill, and vacancies were slow in coming. His relatively conciliatory early approach was insufficient for some in his party seeking positions, and likely emotionally dissatisfying to him personally. Jefferson had the job; he had the votes in Congress; why shouldn’t he be permitted to govern, unencumbered by his political opponents on the Federal bench? His conviction grew after his Republican majorities in the House and Senate expanded with the Midterms. The public had spoken; the Federalists were in a political death spiral; it was time for the obstruction to end.
Two big “legal” political questions dominated the moment. The first was the power of the Judiciary itself. Were Federal judges, including those of the Supreme Court, limited only to reviewing the application of a law or policy, or did they have the authority to go further and determine its Constitutionality? If the answer to that was yes, and the courts were dominated by Federalists, what limits would they place on Republican law-making? The second went to the length of judicial terms—the Constitution called for lifetime appointments except in limited circumstances. Did the Framers (many of them still present and accounted for) mean “lifetime” or was there some secret code that enabled swifter removals? Some Republicans, like Virginia’s William Branch Giles, who served in both the House and Senate during these debates, advocated for “an absolute repeal of the whole Judiciary and terminating the present offices and creating a new system.” While Giles was a radical, Jefferson himself was irked by the procedural obstacles to removal and expressed the thought that Presidents should be able to fire federal judges upon recommendation from both chambers of Congress. More moderate Republicans thought the plain language of the Constitution was both clear enough and wise enough, even if the short-term political result would be less than optimal.
The first question, on the power of the Judiciary, was answered by the Supreme Court’s February 24, 1803, decision in Marbury v. Madison, which established Judicial Review. It also displayed Chief Justice John Marshall’s formidable political finesse. Jefferson got the result he wanted as to the critical question of Marbury’s (and, by extension, others’) appointment, but also had to accept the idea of the Judiciary being an arbiter of Constitutionality.
That didn’t mean Jefferson was happy. Marbury and Marshall were irritants, and the mortality rates for Federalist judges weren’t exactly breaking the Republicans’ way. It didn’t at all help his mood when one of Marshall’s fellow Justices, Samuel Chase of Maryland, continued with a string of inflammatory and openly, objectively, partisan displays.
Chase had been a prominent attorney from the early 1760s, a co-founder of the local Sons of Liberty chapter, a representative to the Continental Congress, and a signer of the Declaration of Independence. Always temperamental and overbearing, he nevertheless was considered a serious thinker and a jurist of real abilities. His politics changed over time. Originally an Anti-Federalist, he had opposed ratification of the Constitution, but later became an ardent and argumentative Federalist. He was nominated to the Supreme Court by George Washington in 1796, but became demonstrably more political while on it. In 1800, he actively campaigned for John Adams in Maryland, as a result delaying court proceedings until he returned to the bench.
Serious questions were raised as to his fitness, but none of them served to slow him down. He became even more outspoken, more open in his biases, more dismissive of litigants and their attorneys with whom he did not agree. He was reviled by the Republican press, yet he was still a Supreme Court Justice, still a “Founder,” and, into 1803, Jefferson maintained a hands-off posture.
Instead, Jefferson moved in a different direction. In early February 1803, before the Marbury decision dropped, he had recommended the impeachment of a federal judge from New Hampshire, John Pickering.
Pickering was a tragic figure. A distinguished and well-respected judge for decades, appointed to the federal bench in 1795, he began to show signs of cognitive decline in about 1800. His mental illness was exacerbated by alcohol, and, under a provision of the Judiciary Act of 1801, his duties (but not his appointment) were reassigned to Judge Jeremiah Smith. The repeal of the Judiciary Act forced him to return to active service, but his disability, if anything, had worsened; he could not be convinced to step down; and his cases became unmanageable.
The Pickering matter was both simple and complex. Politics aside, he was clearly incapable of performing his duties and shouldn’t have been on the bench. But politics couldn’t be put aside. Republicans wanted his seat, and Federalists feared losing it. The Administration approached a newly elected Senator from New Hampshire, William Plumer, and told him that either Pickering resigned or they would move against him. Plumer was in a difficult spot. He was a High Federalist who thought the Administration was everything High Federalists feared. He knew that Pickering’s likely replacement would be District Attorney John Sherburne, and the two men were enemies. And, finally, he was Pickering’s personal friend.
Plumer pondered and delayed, and Jefferson, freshly armed with information about a November 1802 case, U.S. v. Eliza, and Pickering’s bizarre, confrontational behavior there, referred it for impeachment to the House.
There, thoughtful people, including moderate Republicans, found themselves in an intellectual box. Pickering shouldn’t be serving, but if he was insane, how could he have the capacity to commit “Treason, Bribery, or other high Crimes and Misdemeanors” that the Constitution seemed to require for removal? Federalists had an additional concern: If new standards were created ad hoc, what would be next? Ignoring the Constitution was the precursor to using other “non-plain language” grounds to challenge the tenure of other Federalist judges, including even the Chief Justice. The final vote, 45-8, shows just how tortured the process was—remarkably, the other 53 Congressmen, 24 of them Republicans, did not cast a ballot.
The Senate trial, almost a year later, was notable for its acrimony and rank partisanship. Pickering himself did not attend, and so he was tried in absentia. The House Managers tried to block testimony about his mental capacity, but the moderate Republicans joined with Federalists to overrule them, and Pickering’s advocate Robert Goodloe Harper was able to enter some into the record, and urge the trial be delayed. That was as far as he could get, and the trial procedure turned decisively in the hard-liners’ favor, with the Administration’s fervent backing. They won a final battle to delete references to “high crimes and misdemeanors” and replace it with a mere reference to a count in the original impeachment Articles, implicitly rejecting the Constitutional formula.
With this, it came to an end, and a vote was taken. Only 26 Senators voted—8 absented themselves. All remaining Republicans voted for conviction, several clearly under duress. What the Pickering impeachment had done was diminish the legitimacy of the process itself. Plumer called it a “mode of removal,” as opposed to a fulfillment of a Constitutionally mandated process. Jefferson exacerbated the hard feelings by appointing Plumer’s enemy, Sherburne, to the vacancy. In all, three witnesses for the prosecution directly benefited from patronage.
Score one for the Republicans and the Administration. They had a vacancy. Now, they would go for a second, more important one. On the very same day that the Senate convicted Pickering, the House passed a resolution, introduced by the Republican Leader, John Randolph, to impeach Samuel Chase.
This had not come out of nowhere. Chase almost invited it. Supreme Court Justices both then and now are assigned a Circuit or Circuits, consisting of Districts in which they are, for lack of a better term, the Uber-Judge. But the term “Circuit” had a different practical meaning then—a Supreme Court Justice would “ride” circuit (literally, by horse or stagecoach), moving from one jurisdiction inside a circuit to another, holding court. Chase’s Circuit included the federal courts of Pennsylvania, Virginia, Delaware, and his home state of Maryland. This, by chance, made him the judge in several high-profile cases—in particular, he presided over the sedition trial of the newspaper editor James Callender (a thoroughly scurrilous type who peddled gossip, rumor, and had taken to trashing John Adams) and the treason charges against John Fries, who led a tax revolt in Pennsylvania, and was literally on trial for his life. In matters such as these, Chase’s obvious lack of objectivity and of an even judicial temperament, were on full display.
On May 2, 1803, Chase got even more political. In a charge to a Grand Jury sitting in Baltimore, he went off script and delivered an extended rant about the Republicans’ repeal of the Judiciary Act of 1801 as “a challenge to the independency of the national Judiciary.” He went on to deplore changes in the Maryland Constitution that established universal (white male) suffrage, as it would “certainly and rapidly destroy all protection to property, and all security to personal liberty.” He even seemed to attack a core rationale of the Declaration of Independence itself by arguing that the “modern doctrines by our late reformers, that all men in a state of society are entitled to enjoy equal liberty and equal rights” had “brought this mighty mischief upon us.”
Jefferson was immediately tipped off to Chase’s remarks by a Maryland Republican, and the American Sphinx decided he had enough. He sent this note to Congressman Joseph H. Nicholson, on May 13, 1803:
you must have heard of the extraordinary charge of Chace to the grand jury at Baltimore. ought this seditious & official attack on the principles of our constitution, and on the proceedings of a state, to go unpunished? and to whom so pointedly as yourself will the public look for the necessary measures? I ask these questions for your consideration. for myself, it is better that I should not interfere.
What ensued was interesting and perhaps a little unexpected. Nicholson didn’t move immediately. Instead, he consulted with the Speaker of the House, Nathaniel Mason, who suggested caution. Not only might it seem impolitic if Nicholson were to lead the prosecution (since he was a likely nominee himself), but, given the partisan behavior of recently appointed Republican judges, perhaps mere partisanship would not be sufficient to Impeach.
It gets a bit hazy after here—we lack the historical record to know definitively why things slowed down—but, for a while at least, the only discernible actions were the periodic complaints in the press. Then, suddenly, immediately after Pickering’s conviction, Virginia Congressman John Randolph turned to Chase as a target. Again, there’s nothing in the record to tie Jefferson or someone working on his behalf to Randolph, and given Randolph’s behavior during the entire process, it’s altogether possible this was his initiative entirely. In response to his motion, a committee of eager-to-impeach Republicans (including him) was appointed, and, on March 12, 1804, by a 73-32 margin, the House voted for impeachment, with Randolph having written all the articles of impeachment.
Randolph was faced with an interesting problem. Drawing on his time as a House Manager during the Pickering Impeachment, he was acutely aware of the reluctance of many moderate Republican Senators to accept any definition of an impeachable offense not explicitly set forth in the Constitution. They had gone along because the gravity of Pickering’s health issues made replacement empirically necessary, and because of some serious arm-twisting, but they hadn’t at all been happy about it. Chase was formidable, could be expected to mount a careful and comprehensive defense, and would likely be able to tap into the highest quality legal representation. In short, he wasn’t an easy target, despite his excesses.
What Randolph wanted to avoid was a reflexive rejection by “swing voters” over the “High Crimes and Misdemeanors” issue, so he cast his seven articles of impeachment as if they were criminal acts. The first two were related to Chase’s rulings on the Fries case, the next three to the Callender case, the sixth to his actions in a Delaware Grand Jury matter, and the seventh, the one that induced Jefferson’s letter, to remarks to the Baltimore Grand Jury.
The House never voted on the seven charges before recessing. So, when Congress returned a month early to deal with the Chase impeachment, Randolph quickly had a special committee appointed, with him as its head, to draft the final articles of Impeachment. There were now eight, with some consolidation of the old, and the addition of two new ones—both related to procedural rulings in the Callender case—and Randolph, in effect, dropped the claims of criminal behavior.
Why Randolph made these changes is unclear—it’s possible he thought he might have a hard time proving criminality and, if he failed at that, the entire structure of his argument could collapse. Still, the inclusion of the procedural counts was a wildcard concept that could have significant implications if adopted by the Senate. Any judge could make a procedural mistake, and if that were found to be acceptable grounds for impeachment, the Senate would be creating a new precedent that any error could result in removal.
The trial was scheduled for January 4, 1805, and, in one of those glorious moments of historical irony, was presided over by that (successful) duelist and outgoing Vice-President of the United States, the distinguished Aaron Burr. A man with a most acute sense of drama, Burr put on a show, decorating the Senate in rich fabrics, arranging seating, creating galleries for guests. But his role had more than a ceremonial aspect to it, as he was empowered to rule on procedural points. It was the latter, rather than his sense of style, that suddenly made him an extraordinarily popular man.
He was courted, quietly, by moderate Republicans and swapped courtesies with James Madison (Hamilton’s close friend). He was even welcomed by Jefferson himself, who had so ruthlessly cut Burr out of consultation and patronage after the House contest for the Presidency four years earlier. Burr played his hand well, even taking Chase to task when the Justice requested to move the trial to the next Senate session—instead, the Senate voted to give him another month to prepare.
What Chase had realized was that time was on his side. If the Senators voted strictly on party lines, he would lose, as the Jeffersonian-Republicans held a 25 to 9 margin over the Federalists. Looking closer, he could see moderate Republican doubts about the wisdom of expelling a judge whose primary crime seemed to be partisanship. And he could recognize an internecine war within the party between moderates and radicals for control. Finally, there was the chief prosecutor himself, the brilliant, oratorically gifted, but utterly unhinged Randolph. The Republican centrifuge was working in a way that hadn’t benefited Pickering. Soon, Chase would be given an additional gift from the gods, the return of the Yazoo Land Scandal.
America has always been blessed with a certain number of rascals and scamps, but the cast of the Yazoo Land Scandal was particularly ripe. In 1795, land speculators “convinced” the Georgia State Legislature to sell them over 35 million acres of what had been Indian land in the Yazoo Territory (what is now Alabama and Mississippi). The price was a princely penny and a half per acre (that’s not a typo). A year later, irate Georgia voters threw the bums out, but not before some of those land speculators flipped their holdings to innocent buyers, and some of those buyers may have engaged in additional transactions. There was no perfect way to put Humpty Dumpty back together again, so, in 1802, Jefferson appointed a commission (including James Madison) to mediate and offer federal assistance. The compromise they worked out was, as many compromises, not entirely satisfactory to many people, but there was one in particular who is relevant to this story. That would be John Randolph.
On January 29, 1805, Yazoo blew once again, and so did the most passionate opponent to the Administration’s efforts to mediate. Randolph basically lost his mind. In an extended rant, he sprayed accusations of the most profound corruption like a firehose, alienating his fellow Republicans more than he did the smaller cadre of Federalists. As he was about to present the prosecution case in the impeachment trial, this was less than wise.
Just a few days later, on February 4th, before more than 1,000 spectators, the Senate trial began, with a masterly performance by Chase himself. Assisted by two of his counsel, he read into the record his defense. Carefully, he went through the charges, speaking authoritatively, but in a respectful manner. In lesser hands, the presentation might have been considered dry and legalistic, but, by all accounts, the audience was rapt, and the Senators, most of whom were attorneys themselves, were attentive to nuance.
A central theme of Chase’s defense was his assertion that none of the offenses of which he was accused in the eight Articles were indictable under any statute or common law. Chase and his team knew that a number of moderate Republican Senators had been troubled by the prosecution’s discarding of “Treason, Bribery, or other high Crimes and Misdemeanors” as the standard for removal in the Pickering trial. Certainly, there was no evidence that Chase had committed treason or had received any compensation for taking partisan positions. Pickering’s obvious disabilities had given Senators a reason to convict, but most of them understood that a principle was being flouted. Chase was refocusing them on that principle.
From there, Chase went on to refute specifically the charges relating to his conduct of the trials of Callender and Fries by walking the audience through a number of technical points that, at their very worst, gave him a viable intellectual argument for his choices. On Article Seven, the Delaware Grand Jury charge, he kept it simple—the purpose of a Grand Jury is to investigate a potential offense and he kept them at it until it was clear they would find none.
Count Eight, relating to his charge to the Baltimore Grand Jury, was the one that had drawn Jefferson’s attention, and likely had the highest potential to induce a conviction. Chase was particularly deft here. He couldn’t deny his plain words, nor the impression of partisanship, but he could refute the claims that they were intemperate, seditious, or inflammatory. Judges had always offered their opinions, particularly in Grand Jury situations, and no states had adopted codes of conduct forbidding them to do so. The absence of such legislation implied consent. Without conceding that what he said was improper, he pointed out a key weakness of the prosecution’s case: Citizens had the right to express their opinions freely on political matters, but, if the prosecution’s position held, a judge’s “liberty of speech on national concerns and the tenure of the judicial office” would become subject to the “arbitrary will” of Congress, expressed after the acts were done. This was a better argument than could be publicly acknowledged by Republican moderates, as some of the newly minted Republican judges approached their jobs with political opinions—and favorable election results are not guaranteed.
The crusty old man had done well for himself, and the trial adjourned until February 9th. During the adjournment, witnesses began to appear, and the full complement of impeachment Managers and Chase’s defense team assembled in preparation for more formal proceedings. On February 9th, Randolph opened for the prosecution, and it became apparent to all that Chase’s good fortune was holding.
Randolph was an extraordinary figure in American politics, basically forgotten today, but at one time the House Leader of the Republicans, a man who many thought spoke for Jefferson. Randolph was absolutely committed to states’ rights and agrarianism; he was an unyielding absolutist; and Freud would probably have had a field day with him, as he apparently suffered from Klinefelter syndrome. The man could be incredibly nasty—his invective, directed mostly at political opponents—was legendary, and he even fought a duel with Henry Clay. But in an era of great rhetoric and great rhetoricians, he was considered among the most gifted. He could be spellbinding, holding the floor for hours at a time, sweeping all before him with the power of his words.
On this day, he was not at his best. First, he was not a lawyer, and his presentation suffered in contrast to Chase’s precise and organized presentation just a few days earlier. Second, he’d burned himself out accosting his audience over the Yazoo scandal. He was exhausted both mentally and physically, and it showed. The old lawyer’s adage, “If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell” seemed apt. Randolph and his House Managers were overmatched. Chase had assembled an all-star team of defense attorneys who could argue both the facts and the law. It included former Attorney General Charles Lee and two future federal judges, Joseph Hopkinson and Phillip Barton Key, as well as the man considered the finest trial lawyer in America, Luther Martin.
The prosecution tried as best they could over the next few weeks, but they barely made a dent. Most of the witness testimony introduced to support the specifics of the Callender, Fries, and Grand Jury claims proved to be thin and suffered under cross-examination. Perhaps the best moment for the prosecution came from an unexpected source, John Marshall, who hemmed and hawed, and even appeared to backtrack on some core principles he had previously espoused. No one seems to have a particularly good explanation for this—it’s hypothesized that Marshall feared he would be next if not conciliatory towards the prosecution, but in a long and distinguished career, this was not one of his distinguished moments.
Two final highlights before the vote: Martin’s superb closing argument for the defense, showing his skill with both legal principles and practical ones, and Randolph’s embarrassing summation. Randolph had failed. He must have known it, and he came unprepared, announcing at the beginning that he had lost his notes. The next two and a half hours showed how much he had underestimated both Chase and his team, and the jury of Senators. There was little to no reference to evidence or law in Randolph’s closing, and much of it consisted of personal invective.
The drama was about to come to an end. On March 1st, each Article was read in full and Senate proceeded to vote. With 35 Senators present, 23 guilties were needed to convict, and the votes were not there. As expected, the nine Federalist Senators voted to acquit on all eight charges, and on each, at least six Republicans joined them. The prosecution’s strongest showing, fairly predictably, was on the Baltimore Grand Jury charge, where they got 19 votes out of 35, and on two of the counts in the Callender trial, where they got 18. One could say that the center held. One could also say that any number of Republicans, including those who might otherwise have voted to convict, were tired of Randolph and the politics of histrionics.
As a coda, Chase returned to the Supreme Court, and he died in 1811, while still on the bench. He was, apparently, a less confrontational figure afterwards, and one wonders if the experience didn’t humble even this extremely confident man. On one point, at least, he might have found common cause with John Randolph, who has been quoted as saying “Life is not so important as the duties of life.”