Judicial Discipline, Criminal Prosecution and Impeachment

In 1980, Congress passed the first major change since 1939 in the self-governance mechanism of the federal judiciary. The Judicial Coun cils Reform and Judicial Conduct and Disability Act laid out a precise and exacting mechanism at 28 U.S.C. 372(c) for administering and acting upon complaints against federal judges. The previous system, codified in the former 28 U.S.C. 332(d), simply provided that the judi cial council had a plenary power to enter all necessary orders for the effective and expeditious administration of justice. . . This brief note will introduce some recent cases that help define the place and bound aries of the new procedure. As luck would have it, very shortly after the new legislation was passed, there began an unprecedented series of criminal prosecutions involving federal judges. (I believe that the last previous federal indict ment of a judge, leading to prosecution, occurred in 1939. Chief Judge Martin Mant?n of the Second Circuit, who resigned before the trial took place, was tried and convicted on a number of bribery related counts; see Borkin, 1962, for an account of this.) As a result of exten sive litigation following widely separated indictments of three different judges since 1981, more and more is progressively known about the interlocking relationship of the three devices to address misconduct on the federal bench: prosecution for crimes (including crimes committed in connection with the discharge of judicial duties), impeachment under Article II Section 4 of the Constitution for treason, bribery or other high crimes or misdemeanors, and the new statutory scheme. The history and present posture of the proceedings against the three judges is quite different. Very briefly, Judge Alcee L. Hastings of the Southern District of Florida was indicted in late 1981 along with another defendant, but acquitted at trial. However, his codefendant, William Borders, was convicted of bribing the judge, and considerable damaging testimony appeared in the later Hastings trial. Separate proceedings against Judge Hastings under the complaint statute are