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Role of Gerald Ford in the Attempt to Impeach William O. Douglas - Library of Congress Study, 1973
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Role of Gerald Ford in the Attempt to Impeach William O. Douglas - Library of Congress Study, 1973
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Gerald R. Ford Vice Presidential Papers
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The original documents are located in Box 229, folder "Role of GRF in the Attempt to
Impeach William O. Douglas" of the Gerald R. Ford Vice Presidential Papers at the Gerald
R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 229 of the Gerald R. Ford Vice Presidential Papers at the Gerald R. Ford Presidential Library
THE LIBRARY OF CONGRESS
WASHINGTON, D.C. 20540
H1
GERALD R. LIBRARY FORD
LEGISLATIVE REFERENCE SERVICE
ROLE OF VICE-PRESIDENT DESIGNATE GERALD FORD IN THE
ATTEMPT TO IMPEACH ASSOCIATE SUPREME COURT JUSTICE
WILLIAM O. DOUGLAS
Gerald Ford's involvement in the effort by the House of Representatives
to impeach Associate Supreme Court Justice William 0. Douglas reportedly.
began in the Spring of 1969 with the resignation of another member of the
high court, Abe Fortas. Fortas had steped down after coming under severe
attack over his relations with Louis Wolfson, the financier. This marked
1
the first time a justice had resigned under a shadow of impropriety.
Much of the controversy over Fortas concerned his association with
Foundations and fees to had received from foundations. Several years earlier
an investigation by the Los Angeles Times had revealed that Douglas was being
paid $12,000 by the Albert Parvin Foundation for serving as its only paid
officer.
2 With Fortas' resignation as a precedent, Douglas' conduct was
being called into question and Members of Congress began receiving a
considerable amount of mail critical of Douglas. House Minority Leader Ford
was impressed at the response aud decided to launch his own investigation
of the allegations surrounding Douglas. One source close to the investigation
1
Haynes Johnson, "The Douglas Case: No Neutral Ground," Washington Post,
April 26, 1970.
2
"Foundation Headed by Douglas Sells Its Stock in Company That Owns
Casinos," New York Times, May 20, 1969.
CRS-2
GERALD R. LIBRARY FORD
recalled, "Jerry decided to look into 1t, but it wasn't being pressed on a
crash basis. As part of the investigation, Ford contacted White House
aide Clark Mollenhoff who, as a former journalist, had written several
articles on Douglas' position with the Parvin Foundation. 4 The investigation
by Ford and his staff proceeded quietly through the summer. and into the fall
of 1969.5
Heanwhile, Justice Douglas, perhaps one of the more controversial members
of the Court, often criticized for his outspoken liberal viewpoints and
unconventional lifestyle, continued to be a figure of contention. In late
May, as Douglas was resigning his position with the Parvin Foundation for
the stated reason that the foundation's activities posed too heavy a workload
it was revealed that he had been receiving fees from another foundation which
he headed, the Center for the Study of Democratic Institutions in Santa Barbara,
6
California. Douglas then publicly criticized an Internal Revenue Service
investigation of the Parvin Foundation as a "manufactured case" designed to
3
Johnson, op. cit.
4
Fred P. Graham, "Ford Hints Move To Oust Douglas," New York Times,
November 8, 1969.
5
Johnson, op. cit.; Graham, op. cit.; Spencer Rich, "Ford Eyes Ousting
Douglas," Washington Post, November 8, 1969.
6
John P. MacKenzie, "Douglas Resigns From Foundation," Washington Post,
May 24, 1969; "Foundation Says That It Paid Douglas $4,000 for Two
Seminars," New York Times, May 22, 1969.
FORD
y
GERALD
LIBRARY
CRS-3
force him from the bench. 7 As the extent of Douglas' involvement in the
foundation's affairs becaue known, he was further criticized by House
Judiciary Committee Chairman Emanuel Celler (D-N.Y.) and his outright
resignation was called for by Rep. H.R. Gross (R-Iowa) and John R. Rarick
(D-La). 8 He was assailed by critics in the Senate for authoring articles
that appeared in Playboy and in Avant-Garde, a magazine put out by
controversial publisher Ralph Ginzburg who had recently been convicted of
violating Federal obscenity laws. 9 In late July the ethics committee of
the American Bar Association refused to decide whether Douglas had violated
the canons of judicial ethics by his relationship with the Parvin Foundation.
The ABA had been asked to look into the matter by Senator John J. Williams
10
(R-Del.).
In early November, as the Senate was embroiled in debate over the
confirmation of Supreme Court nominee Clement F. Haynsworth, Ford's
investigation was revealed. Haynes Johnson, reporting for the Washington
Post, wrote later that "Ford himself suffered an embarrassment. A Washington
reporter learned of the investigation and asked Ford point-blank about it.
Ford, understandably, wanted to keep his investigation out of the public
arena -- particularly at a time when the President, the leader of his party,
7
Bernard Collier, "Douglas Says Tax Inquiry Aims to Get Him Off Court,"
New York Times, May 25, 1969.
8
Congressional Record, May 26, 1969, pp. H 4133-H 4134; George Lardner, Jr.,
"Celler Raps Douglas On Letter to Parvin," Washington Post, May 28, 1969.
9
George Lardner, Jr., "Sen. Fanin Assails Douglas on Article," Washington
Post, May 29, 1969; Bernard L. Collier, "Thurmond Urges Douglas To Quit,"
New York Times, May 30, 1969; Congressional Record, June 16, 1969,
pp. H 4830-II 4833.
10
"Justice Douglas Gets A Pass," Chicago Tribune, July 23, 1969.
FORD
"y
CRS-4
GERALD
LIBRARY
was facing a major fight over his Supreme Court choice. News that a key
Republican congressman was looking into a liberal justice appointed by a
Democrat might harm Haynsworth's chances. Faced with either confirming or
denying the report, Ford said it was true. 11
In announcing the investigation, Ford emphasized that ethical standards
being applied to nominee Haynsworth should also apply to present justices.
"If the Senate votes against a nominee for lack of sensitivity," Ford stated,
"it should apply the same standards to sitting justices." Ford said that
several colleagues had come to him suggesting the investigation including
GOP Conference Chairman John Anderson (R-Ill.) and Rep. Guy Vander Jagt
(R-Mich.). He said that he had not discussed the matter with the President
12
and at the White House Press Secretary Ron Zeigler made a similiar statement.
Whether the investigation was disclosed as Johnson later reported it,
whether Ford leaked the news himself, or whether the effort was coordinated
at the White House remains a matter of speculation. But response to the news
was immediate and many observers saw it as heavy-handed attempt to hold
13
Douglas hostage for a Haynsworth confirmation. The New York Times
11
Johnson, op. cit.
12
Spencer Rich, "Ford Eyes Ousting Douglas," Washington Post,
November 8, 1969; Fred P. Graham, "Ford Hints Move To Oust
Douglas," New York Times, November 8, 1969.
13
Royce Brier, "Douglas llostage For Haynsworth," San Franciso
Chronicle, November 19, 1969; "The Impeachment Bungle,"
Washington Post, November 11, 1969.
CRS-5
GERALD R. LIBRARY FORD
editorialized: "The transparency of Mr. Ford's move does him no credit
either as statesman or tactician we think he will find that anti-Haynsworth
14
Senators will hardly be induced to switch by a poorly veiled threat."
The Senate failed to confirm Haynsworth but Ford said he was continuing his
investigation. In a UPI interview he said that his original decision to study
possible impeachment of Douglas was related not to the Haynsworth matter,
but to the published charges about Douglas' connection with the Parvin
15
Foundation.
While the issue dropped from sight, the Haynsworth defeat apparently
intensified the bitterness among many conservatives and strengthened their
16
determination to do something about Douglas. Signs that preparations were
being made to move against Douglas when Congress re convened in January were
revealed in a Washington Evening Star story in late December by Lyle Denniston.
Denniston wrote: "A commitment to 80 ahead with the often-discussed challenge ...
is --- at this point -- a loosely organized effort. It has several champions,
but no leader. It has no timetable, beyond the plan to file "articles of
impeachment" during the House's 1970 session. Moreover, the preparation of
the case against Douglas involves an unusual combination of House staff work,
14
"Contempt of Court," New York Times, November 11, 1969.
15
"Rep. Ford Says He Pushes Study Of Justice Douglas," Washington Post,
November 22, 1969.
16
Johnson, op. cit.
CRS-6
FORD LIBRARY y GERALD
plus continuing private investigations of the Justice by news organizations.
These private investigations almost have the status of a semi-official inquiry,
since the anti-Douglas lawmakers are definitely counting on the results to
help make their case.
"The move is dominantly if not exclusively a Republican effort. While
the House GOP leader, Rep. Gerald R. Ford of Michigan, is among the promoters
of the continuing probe of Douglas' activities, he has not yet assumed the
role of leading the effort, or even the job of coordinating it. Ford's own
staff is generally doing the House part of the investigation. That activity
gained a windfall of 'tips' - some believed to be solid, others plainly
frivolous --- after Ford's staff investigation of Douglas became public over
a month ago.
"While the GCP House leader is centrally involveed, he apparently is not
yet ready himself to conclude that the impeachment effort will go forward.
His staff, in fact, expressed surprise at being told that a commitment to go
shead had been made.
"Among those known to be either a part of the group that will seek
impeachment, or else acting as an adviser to the group, are Reps. Clark MacGregor,
R-Minn., and H.R. Gross, R-Iowa. It is understood that there are at least
two or three others in the group. 17
Douglas, meanwhile, continued to infuriate his crities. On February 18,
Randon House published his latest book, Points of Rebellion. The volume,
17
Lyle Denniston, "Lawmakers Pushing Effort To Impeach Justice Douglas,"
Washington Evening Star, December 21, 1969.
18
Israel Shenker, "Justice Douglas Says Revolution May Be Only Honorable
Reply to Oppression," New York Times, February 1, 1970; William McPherson,
"On Revolt," Washington Post, February 20, 1970.
CRS-7
FORD LIBRARY y GERALD
employing much of the controversial political though and rhetoric of the day,
argued that revolution might prove the only alternative to oppression by the
"American establishment." Douglas wrote, "George III was the symbol against
which our founders made a revolution now considered bright and glorious
We must realize that today's Establishment is the new George III. Whether
it will conginue to adhere to his tactics, we do not know. If it does, the
19
redress, honored in tradition, is also revolution.
Points Of Rebellion produced a predictable response among the anti-Douglas
faction in Congress. One Congressman, Louis Wyman (R-N.H.), already troubled
by Douglas' foundation activities, recalled that after reading advertisements
about the book, he sent a staff aide out to buy an advance copy. "I took the
whole morning off and read it. It disturbed mo very much. 20 Without informing
anyone else, Wyman began drafting a resolution calling for the need to investi-
F
gate Douglas with a possible view of impeachment. When he went to Ford's
office, he was asked by an aidenot to introduce his resolution, the timing
was insppropriate. The Senate was once again considering 8 Supreme Court
nominee, G. Harold Carswell, and it was considered politically unwise to make
any moves that might jeopardize the Republican nominee's chances. 21 One
individual reportedly close to the matter recalled, "By this time quite a
number on both sides of the sisle wanted to go after Douglas, but to be
perfectly honest about it, they didn't have the material Ford's staff had.
That staff had been working off and on for about a year. 22
19
Ibid.
20
Johnson, op. cit.
21
Ibid.
22
Ibid.
CRS-8
GERALD R. LIBRARY FORD
After the Carswell defeat, conservative emotions intensified.
Haynes Johnson wrote: "When news of Carswell's defeat reached the House
floor, it is understood that several congressmen immediately approached
Ford. They were angry and emotional. In effect, they laid down an ultimatum:
either Ford would act on Douglas or one of them would. A11 it took was for
one member to stand up and call for impeachment, Ford was reminded.
"Ford, who was not available for comment on this episode, is reliably
reported to have told them to hold off. If anything was going to be done it
should be done right, and not just for one day's headline in someone's
hometown newspaper.
"Ford deliberated for several days. Part of the time he went to his
home district in Grand Rapids, Mich. He returned to Washington on Sunday
and studied the case further. About noon the next day, Monday, April 13,
Ford met with several key congressmen at the Capitol. Among them, it is
reported, were Leslie Arends of Illinois, Robert Sikes of Florida,
Joe D. Waggonner Jr. of Louisiana and William L. Scott of Virginia.
"Wyman remembers the essential question as boiling down to this: whether
to ask for impeachment or an investigation to see if impeachment proceedings
were justified.
"Ford told them he intended to lay out, publicly, his probable cause
case against Douglas in a speech later that week. He also said he favored
an investigation rather than impeachment.
H 'Jerry,' one Capitol Hill source speculated, 'was in the position of
being stampeded or of staying in front of the pack. 23
23
Ibid.
CRS-9
FORD LIBRARY is
At about the same time Vice-President Agnew called for a thorough exami-
nation of Douglas' record. He said: "It seems rather unusual for a man on
the bench to advocate rebellion and revolution, and possibly we should take
a good look at what he thinks, particularly in view of the fact that two fine
Judges have been denied seats on the bench for statements that are much less
reprehensible, in my opion, than those made by Justice Douglas. ,24
As Ford was preparing his speech against Douglas, another incident
served to further enrage the anti-Douglas faction and catalize many who were
undecided about joining the move against the Justice. The April issue of
Evergreen magazine appeared on Washington newsstands and among its contents
was an excerpt from Points of Rebellion. The substance of the article was
offensive to his critics, but as Johnson wrote, "...it wasn't the justice's
words that set off a furor; it was their juxtaposition with other material.
There was a full-page caricature of Richard Nixon made to look like George III.
There was an article by Tom Hayden on repression and rebellion. But the
centerpiece was the object of most attention. A seven-page rotogravure section
contained 13 half page photographs of nudes. Men and women were embracing,
making love. Genitals were clearly shown....As porongraphy goes these days,
the pictures were not that titalating, but they were enough to solidify the
opposition against Douglas. 25
24
Milton Viorst, "Bill Douglas Has Never Stopped Fighting The Bullies
of Yakima," New York Times Magazine, June 14, 1970, P. 52.
25
Johnson, op. cit.
CRS-10
GERALD R. LIBRARY FORD
Describing the magazine, Ford later told Congress; "There are nude models
of both sexes in poses that are perhaps more shocking than the postcards
that used to be sold in the back alleys of Paris and Panama City, Panama. 26
Feelings against the Justice were thus running high as Ford delivered
his promised speech on the evening of April 15. "It was," Johnson wrote,
"something of a Roman circus atmosphere on Capitol Hill. One Republican
congressman who sat listening that night says he was reminded of Julius Caesar
and Mark Antony. Indeed, a feeling of the Forum and the public trial was
present. Ford himself added to the impression. At one point during his
speech, he recalled that the censor was an ancient Roman office, the
supervisor of the public's morals. He and his colleagues didn't intend to
set themselves up as censors, but he added: "Let me substitute, if I might,
another Roman office, the tribune. It was the tribune who represented and
spoke up for the people. This is our role in the impeachment of unfit judges
and other federal officials. We have not made ourselves censors; the
Constitution makes us tribunes' 27
In his speech, Ford made five major charges against Douglas:
--- Douglas' failure to disqualify himself from the obscenity cases of
Eros publisher Ralph Ginzburg. In 1969, Ginzburg had also paid Douglas
$350 for an article on folk-singing which appeared in Avant Garde. Ford
termed the action a "gross impropriety."
- Ford charged that Points of Rebellion violated the standard of
good behavior and was "an inflammatory volume."
26
Congressional Record, April 15, 1970, P. H 11916.
27
Johnson, op. cit.
CRS-11
FORD LIBRARY "Y GERALD
- Ford charged that Evergreen magazine which had published the excerpt
from Points of Rebellion was "bardcore pornography."
- Ford again brought into question Douglas' relationship with the
Albert Parvin Foundation linking the Justice with gambling concessions in
the United States and the Dominican Republic and alleged internation gangsters.
- Ford charged that the Center for the Study of Democratic Institutions,
of which Douglas was chairman of the board of directors and had received
consultant's fees, was a "leftish" organization and a focal point for
28
organization of militant student unrest.
Two days before Ford's speech, he had called a news conference and
announced that a bipartisan group would introduce resolution creating a
special investigating unit to look into the Douglas matter and report to the
House in ninety days. 29 By calling for a select committee, the anti-Douglas
forces sought to avert any impeachment measure away from liberal
Representative Emanuel Celler's (D-N.Y.) Judiciary Committee, the group that
normally considers any House action to impeach. Aware of this tactic, Celler's
aides had contacted Andrew Jacobs JI., (D-Ind.), and in the midst of Ford's
speech, Jacobs "marched to the well dropped in the hopper's0, resolution
stating: "Resolved, that William O. Douglas, associate justice of the
28
Congressional Record, April 15, 1970, PP. 11912-11927; "House Committee
Studies Charges Against Douglas," Congressional Quarterly Weekly Report,
November 13, 1970, PP. 2786-2789.
29
Warren Weaver Jr., "Inquiry By House On Douglas Urged," New York Times,
April 14, 1970.
30
Marjorie Hunter, "Ford Asks Douglas' Ouster," New York Times,
April 16, 1970.
CRS-12
FORD LIBRARY &
Supreme Court of the United States, be impeached of high crimes and misde-
meanors and misbehavior in office. 31 Fifty-two Republicans and fifty-two
Democrats, mostly from the South, signed the Ford resolution but as the
result of Jacobs' action Celler's committee had jurisdiction and the conser-
32
vative's measure later died in the Rules Committee.
At the White House, Press Secretary Ron Zeigler denied any role in the
Ford investigation by White House aide Clark Mollenhoff and stated: "There
is no involvement and no concentration on this matter from the White House. 33
Celler moved swiftly to form a special subcommittee to investigate the
charges against Douglas. On April 21 he announced that Byron Rogers (D-Co.),
Jack Brooks (D-Texas), William M. McCulloch (R-Ohio) and Edward Hutchinson
(R-Michigan) would serve on the subcommittee created by Jacob's resolution,
H.Res. 920. Celler, himself, would chair the group. He said the unit
would report its finding to the full Judiciary Committee in 60 days. 34
Earlier Celler had joined with a group of forty other House liberals in
protesting the Ford move as "an attack on the integrity and the independence
of the United States Supreme Court. 35 He had also commented that the
timing of the anti-Douglas move suggested that "this probably is somewhat in
36
the spirit of retaliation" for Carswell's defeat.
31
Philip Warden, "2 Factions Grab For Probe of Douglas," Chicago Tribune,
April 17, 1970.
32
Hunter, op. cit.
33
Ibid.
34
Norman C. Miller, "House Judiciary Committee Names Panel To Investigate
Charges Against Douglas," Wall Street Journal, April 22, 1970.
35
Hunter, op. cit.
36
Richard L. Lyons, "Ford Seeks Removal Of Douglas, "Washington Post,
April 14, 1970.
CRS-13
FORD LIBRARY R SERALD
Douglas remained imperturbed, at first refusing to take the matter
seriously. In an interview with ABC News he said that if his latest hook
advocated rebellion, "I'll eat it without mayonnaise or anything. 37 When
asked whether "you find this controversy more heated than some of the others
you've been in," Douglas countered, "What controversy are you talking about?"38
Some of Douglas' friends finally convinced him the impeachment move was serious.
The group - including Clark Clifford, former Secretary of Defense; Ben Cohen,
one of the original New Deal "brain trusters;" and David Ginsburg, a
Washington lawyer and Douglas' first law clerk --- saw the move as "nothing
less than an effort by the Nixon Administration to stiffle dissent and build
a campaign issue for the fall election. After analyzing Ford's statement and
the impeachment resolution, they concluded - over Ford's strong denial --
that the Administration was deeply involved in it all. 39 Douglas agreed
and announced that he was disqualifying himself from participating in rulings
on obscenity appeals involving the film "I Am Curious (Yellow)" and a libel
suit against Look magazine (in response to which Ford commented that the
action was "tacit admission" that Douglas should have disqualified himself
from the Ginzburg libel and obscenity case), 40 and retained an old friend
and former Federal Judge, Simon Rifkind, to represent him against possible
41
impeachment charges.
37
"Douglas Denies Book Advocates Rebellion," Washington Post, April 18, 1970.
38
Ibid.
39
Viorst, op. cit.
40
"Douglas To Skip 3 Court Rulings," New York Times, April 28, 1970.
41
Majorie Hunter, "Lawyer is Retained By Douglas To Help In Impeachment
Fight," New York Times, April 29, 1970.
CRS-14
FORD LIBRARY is GERALD
The first action the special subcommittee took has to request from Ford
and the other sponsors of the impeachment resolution material relevant to
the charges against Douglas. The subcommittee also requested relevant
material from the Department of Justice, the Securities and Exchange Commission
and the White House. 42 The subcommittee began the long process of collecting,
collating and analyzing the information. Hower other events, the incursion
of American troops into Cambodia and the accompanying unrest on college
campuses, overshadowed the work of the investigating group, and for his role,
Ford was forced to turn his attention to defending the Administration's actions
in the face of renewed anti-war efforts in Congress.
By early June, it appeared that the subcommittee had made little progress.
Members of the group complained that they had received little cooperation and
little new information from fellow Congressmen. Most of the evidence,
solicited in earlier letters, proved to be newspaper clippings and the like.
Rep. Brooks added that the Federal Government was not much more of a productive
source of evidence. He commented: "They're just as slow as molasses to
come up with any facts. We're slowly getting papers from the Justice
Department. They didn't have very much, apparently. 43
The subcommittee, stating that it needed additional time to conduct
its investigation asked for, and was granted, sixty day extension. It issued,
on June 20, an interim report containing material on the investigation up
to that point. 44
42
U.S. Congress. House. Committee on the Judiciary. First Report By The
Special Subcommittee on H. Res. 920. 91st Congress, 2d Session.
June 20, 1970. p. 9-10.
43
"Evidence Meager On Douglas, If Washington Post, June 7, 1970.
44
U.S. Congress. House. Committee on the Judiciary. First Report by the
Special Subcommittee on H. Res. 920, 1970, PP. 25-26.
CRS-15
FORD LIBRARY is 938470
At the same time that some members were stating that there appeared
little substantial evidence to impeach Douglas, there were reports that
"recent checks on House attitudes" revealed that "1f the House votes on
charges any time before election day, Nov. 3, it very likely would vote
to impeach Douglas." The reports stated that public opinion was running
so heavily against Douglas, that most Congressmen would be forced to vote
against him or run the risk of losing at the polls in November. Therefore,
there was pressure from the leadership not to conclude the subcommittee
45
investigation before the fall elections.
On August 3, amid further reports that the Douglas unit was stalling
its investigation, 46 Ford, who had little to say publicly about the Douglas
investigation for the past several months, 47 joined with Reps. Waggonner
and Wyman in a charge that the investigation was a "whitevash" and a "travesty. ,48
Ford demanded that the panel hold public hearings, examine witnesses under
45
Lyle Denniston, "Pressure Building in House For Douglas Impeachment,"
Sunday Star, June 14, 1970; Willard Edwards, "Word For Douglas Case -
Delay," Chicago Tribune, July 2, 1970.
46
Robert S. Allen and John A. Goldsmith, "Celler Probe Of Douglas Raises
Doubt of Sincerity," Jackson, Miss. Daily News, July 27, 1970.
47
Ford had said very little on the floor of the House and in an
appearance on the ABC radio and television program "Issues and
Answers," on June 22, had not commented on the subject at all.
48
Carroll Kilpatrick, "Douglas Whitewash Charged," Washington Post,
August 3, 1970; Marjorie Runter, "Critics of Douglas Call Inquiry
A 'Whitewash' and "Travesty", New York Times, August 3, 1970;
Shirley Elder, "Waggonner Irked, Starts Own Probe of Douglas,"
Washington Evening Star, August 3, 1970.
CRS-16
FORD LIBRARY Y OERALD
oath and make public "all pertinent documents." He also revealed that one
of his staff assistants, Robert Hartman, had been working with Waggonner in
an independent investigation of Douglas. Waggonner had reportedly hired
Benton L. Becker, a former trial lawyer in the Criminal Division of the
Justice Department to conduct the probe. Becker had been on Waggonner's
office staff for about two months.
49
Celler replied saying that his inquiry was being obstructed by the
refusal of Federal agencies to supply necessary information. He said that
the State Department, the Justice Department and the Central Intelligence
.
Agency had not furnished his material requested six weeks ago. Celler stated:
"These delays and obstructions have hempered the special subcommittee in
this investigation and hindered the completion of its task. In the light
of the lack of cooperation from the executive branch, criticism of the special
subcommittee is not justified Celler indicated the investigation could run
on for many months. So on August 11, the subcommittee released a second
document, "Legal Materials on Impeachment," containing briefs by Rifkind
51
Detroit law firm retained by Ford.
49
Ibid.
50
Warren Weaver, "Celler Says 3 Agencies Obstruct Douglas Inquiry,"
New York Times, August 5, 1970.
51
U.S. Congress. House. Committee on the Judiciary. Legal Materials
On Impeachment. Special Subcommittee on H. Res. 920. 1970.
CRS-17
FORD LIBRARY i GERALD
While political charges and countercharges continued, the case seemed
to crystalize around Ford's views of what constituted an impeachable offense.
In his April 15 attack on Douglas, Ford had stated: "The only honest answer
is that an impeachable offense is whatever a majority of the House of
Representatives considers it to be at a given moment in history. 52
On May 18, Douglas' attorney, Simon Rifkind, had submitted a Memorandum
On Impeachment of Federal Judges. Rifkind wrote: "A careful examination of
the Constitution itself
clearly demonstrates that Federal Judges may be
impeached only upon charges of 'Treson, Bribery, or other High Crimes and
Misdemeanors'. There is nothing in the Constitution
to suggest that Federal
Judges may be impeached for anything short of criminal conduct. Rifkind's
memorandum concluded: "There has developed the consistent practice,
rigorously followed in every case in this century, of impeaching Federal
judges only when criminal offenses have been charged In consequence, while
the Federal judiciary has over the years suffered a few judges who were unable
to perform their duties, since 1805 it has been free from political purges
and from harrassment directed at the beliefs, speeches and writings of
individual judges. 53
52
Congressional Record, April 15, 1970, p. H 11913. The Constitution,
Article III, Section one, provides that "The judges both of the Supreme
and inferior Courts, shall hold their offices during good behavior
=
Article II, Section Four, provides that "The President, 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."
53
Congressional Quarterly Weekly Report, November 13, 1970, P. 2788.
CRS-18
FORD LIBRARY & GERALD
On August 5, Ford had submitted a memorandum to the subcommittee from
the Detroit law firm of Dykema, Wheat, Spencer, Goodnow, & Trigg, which at
Ford's request had studied the question of what constitutes an impeachable
offense. Bethel B. Kelley, a member of the firm, wrote Ford, "If a judge's
misbehavior is so grave as to cast substantial doubt upon his integrity, he
must be removed from office regardless of all other considerations
We conclude, that misbehavior by a Federal Judge may constitute an impeachable
offense though the conduct may not be an indictable crime or misdemeanor. 54
On August 18, Rifkind wrote a letter to Celler indicating astonishment
at the Kelley Memorandum. "Mr. Ford's definition of an 'impeachable offense'
means that judges serve at the pleasure of Congress. This is so utterly
destructive of the principles of an independent judieiary and the separation
of powers that I could not believe that convincing historical support could
be found for so radical a proposition. Now that I have read the Kelley
view
V memorandum, I am more than ever convinced that Mr. Ford's/ is historically
and legally as untenable as it 1s mischievous. "55
In defending Douglas against the particular charges of Ford and the
anti-Doublas forces, Rifkind made the following points:
- On the Ginzburg case: "The Justice has neverbhad any dealings
with Ralph Ginzburg."
54
Ibid; Fred P. Graham; "Impesch Douglas Plea Raises Constitutional
Question," New York Times, August 24, 1970.
55
Congressional Quarterly Weekly Report, op. cit., PP. 2788-2789.
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FORD LIBRARY is GERALD
- On Points of Rebellion: "The attack on the Justice's book...is not
only profoundly subversive of the First Amendment, but 1s based upon an
inexcusable distortion of what the Justice actually wrote The book
is
a
patriotic call for our demoeratic processes to meet challenges of the day so
as to pull the rug from under the small minority advocating violent rebellion.'
- On the Evergreen magazine article: "The Justice did not authorize
its editors to reprint a portion of his book. Pursuant to its standard
contractual rights, Random House, one of the nation's most prestigious
publishers, made the decision."
- On associations with Albert Parvin, alleged international gamblers,
and the Albert Parvin Foundation: "The Foundation had no connection with the
'international gambling fraternity.' ..Justice Douglas does not know the
alleged underworld persons named in the attacks upon him... (He) has not engaged
in the 'practive of law' ...The corporate papers he is alleged to have drafted
were drafted by a Los Angeles attorney. In serving as a director of the
Albert Parvin Foundation, and receiving modest compensation for such services,
Douglas followed long precedent - as, for example, did Chief Justice Warren Burger
and Justice Harry Blackmun with respect to the Mayo Foundation and the Kahler
Corporation."
On the Center for The Study of Democratic Institutions: "Mr. Douglas
has participated in the activities of one of the free world's great academic
institutions So have Chief Justices Warren and Burger, George Romney and
Robert Finch, and scores of other distinguished Americans. His services
have been uncompensated. ₦56
56
Ibid.
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FORD LIBRARY i GERALD
While Ford was leading the Washington challenge against Douglas, he was
reportedly presenting a different image in his reelection campaign in his
home district of Grand Rapids, Michigan. In an election that was marked by
emotional appeals from many contenders, Ford's campaign was surprisingly
low-key. Wrote a Washington Post correspondent: "In the GOP's grand
crusade for victory OVST permissiveness this fall, House Republican Leader
Gerald R. Ford is clearly out of step. It is largely a matter of style and
emphasis, but the distinction keeps popping up on TV screens throughout
Michigan's heavily Republican 5th Congressional District: 'Return a man of
peace to Congress. Support Jerry Ford. He gets things done." That's it.
No shrill cries for law and order. Not one of Ford's TV ads dwells on street
crime or campus unrest. Perhaps more significant, not one of them mentions
President Nixon - or the Republican Party - by name. 57
After the November election it appeared that the Douglas impeachment
move was running out of steam, despite reports that the action might be
58
continued by some unnamed "lame-duck" Congressmen.
Celler's special
subcommittee staff had completed the bulk of its work in mid-September and
on December 3, the subcommittee met and voted three to one that there were
no grounds to impeach the Justice. One of the two Republican members,
Edward Hutchinson of Michigan, announced that he would file a minority view.
The other, William M. McCulloch of Ohio, refrained from joining in either
57
George Lardner Jr. "Ford Strides Out of Step With His Party,
Washington Post, November 2, 1970.
58
Arlene Alligood, "Impeach Douglas Drive May Be Pushed by Lame-Ducks,"
San Francisco Chronicle, November 15, 1970.
FORD i LIBRARY GERALD
CRS-21
the majority or minority view. MeCulloch later said that there was "just
not enough evidence to come to a final, fast, hard conclusion on whether
an impeachable offense has been committed." Celler termed the report,
59
"the most exhaustive inquiry I've known of during my 48 years in Congress.
In response to the subcommittee's vote, Ford said: "For the present
I can only say that this matter is far from finished and that the sentiment
of House members, both Democrate and Republicans, is not accurately reflected
in the subcommittee's vote. ",60
But when the new session of Congress opened in January, Ford indicated
that he had decided to spend less time and effort in leading the public
challenge against Douglas. One source was quoted as saying that Ford
"doesn't intend to be so much the ball-carrier." And, though the antí-Douglas
forces offered an opening day resolution to create a special six-member
committee to conduct what they called a "meaningful" investigation, nothing
61
came of the effort.
59
Marjorie Hunter, "House Unit Finds No Basis For Action On Douglas,"
New York Times, December 4, 1970; Lyle Denniston, "Bid To Impeach
Douglas F ails; a Washington Evening Star, December 4, 1970;
Richard L. Lyons, "No Grounds To Impeach Douglas Found,"
Washington Post, December 4, 1970.
60
"Ford Calls Efforts To Oust Douglas Far From Finished," New York
Times, December 5, 1970.
61
Lyle Denniston, "Justice Douglas' Critics In House Renew Attack,"
Washington Evening Star, January 22, 1971.
Richard Sachs
Analyst, American National Government
Government and General Research Division
October 24, 1973