Rep. Roilo Golez Official Website

Prepared by Cong. Roilo Golez, proposed for inclusion in the Minority Report

21 August 2006

THE 22 CAUSES OF ACTION SHOULD HAVE BEEN INDIVIDUALLY AND SEPARATELY DISCUSSED AND DEBATED UPON INSTEAD OF BEING LUMPED AS ONE IN THE ALTAR OF EXPEDIENCY:

The Committee, voting 47-18, rejected the motion of Congressman Roilo Golez to discuss one by one the 22 causes of action in the Impeachment Complaint. The committee therefore decided to discuss the various charges on a lump sum basis. Common sense dictates that it is impossible for the human brain, however brilliant, to intelligently discuss and argue 22 different charges at the same time, but the committee ignored this basic principle of orderly discussion apparently to meet a deadline that must have been set by an unseen, powerful hand.

Moreover, the lump sum discussion violated the time honored tradition in impeachment proceedings here and in the United States that the causes of action should be discussed separately:

1. In the Clinton Impeachment Proceedings (from “High Crimes and Misdemeanors: A Short History of impeachment”): Of the 11 possible grounds for impeachment cited by Starr, four were eventually approved by the House Judiciary Committee: grand jury perjury, civil suit perjury, obstruction of justice, and abuse of power. Following much debate over the constitutionality of the proceedings… the House of Representatives held its historic vote. Clinton was impeached on two counts, grand jury perjury (228–206) and obstruction of justice (221–212), with the votes split along party lines.

2. In the Nixon case, the House Judiciary Committee drafted three articles of impeachment as follows: The first article focused on the June 17, 1972, break-in, alleging that Nixon used "powers of his high\office . . . to delay, impede and obstruct investigations” into the burglary. The conduct described under the article included (1) making or causing others to make false or misleading statements; (2) withholding relevant and material evidence; (3) "approving, condoning, acquiescing in, and counseling witnesses" with respect to false or misleading statements and testimony; (4) interfering with the investigations of the Department of Justice, the Federal Bureau of Investigation (FBI), the Watergate Special Prosecution Force, and congressional committees; (5) paying bribes to obtain silence or false testimony from witnesses; (6) misusing the Central Intelligence Agency (CIA); (7) disseminating information received from the Department of Justice to suspects in order to aid and assist them in evading criminal prosecution; (8) making false or misleading statements to the people of the United States to deceive them into believing a thorough and complete investigation had been conducted; and (9) promising prospective defendants that they would receive favored treatment for silence or false testimony. The second article of impeachment charged that Nixon "repeatedly engaged in conduct violating the constitutional rights of citizens, impairing the due and proper administration of justice and the conduct of lawful inquiries, or contravening the laws governing agencies of the executive branch and the purposes of these agencies."143 Charges under that article included (1) obtaining information about certain individuals from the Internal Revenue Service (IRS) and having the IRS perform improper income tax audits and other income tax investigations; (2) using the FBI and Secret Service to perform unlawful electronic surveillance; (3) authorizing and maintaining a secret investigative unit ("the plumbers") to engage in covert and unlawful activities; (4) failing to faithfully execute the laws by failing to act when he became aware of his subordinates' unlawful conduct; and (5) misusing agencies under the control of the executive branch, including the FBI, the CIA, and the Department of Justice. The final article addressed Nixon's refusal to produce documents that the House had subpoenaed and his decision to determine what information Congress could have. The House alleged that such acts "interposed the powers of the presidency against the lawful subpoenas of the House of Representatives, thereby assuming to himself functions and judgments necessary to the exercise of the sole power of impeachment vested by the Constitution in the House of Representatives.” President Nixon resigned before those articles were put to a vote before the full House.

3. President Elpidio Quirino impeachment proceeding (“The Memoir” by Elpidio Quirino): “There being no precedent to follow, Chairman Sumulong announced: ‘Without deciding on the actual merit of each case, the committee will first determine whether each charge is impeachable in character.’ Accordingly, he notified the President and his seven accusers to file their respective memoranda on April 13 and be ready to make their oral arguments on April 18.”… After closing the public hearings, the committee announced that it would meet to sift all the evidence presented. Both counsels for the respondents and the complainants were asked to submit memorandums on their respective evidence. The committee proceeded by allowing each member to write his opinion on each one of the charges, starting from the last charge and on to the first. The committee voted as follows: Charges 5, 4 and 3, all voted unanimously that the charges were groundless; Charge 2, six voted not impeachable, 1 voted aggravated circumstances; and Charge 1, five voted not impeachable, 2 voted for impeachment.

COMMITTEE’S REFUSAL TO ALLOW THE COMPLAINANTS AND ENDORSERS TO PRESENT THEIR EVIDENCE:

The Committee refused to allow the complainants and endorsers to present their evidence repeatedly stating that it was premature, yet the members of the majority repeatedly stated that the complainants did not have any evidence to support the charges.

The refusal of the majority to discuss the pieces of evidence is contrary to the practice in past impeachment proceedings and widely recognized practice:

“By design, impeachment is a complex series of steps and procedures undertaken by the legislature. The process roughly resembles a grand jury inquest, conducted by the House, followed by a full-blown trial, conducted by the Senate with the Chief Justice presiding.” (Legal Information Institute, Cornell University). According to the American Bar Association, in their primer “Frequently Asked Questions About the Grand Jury System, ” the “primary function of the modern grand jury is to review the evidence presented by the prosecutor and determine whether there is probable cause to return an indictment.”

Impeachment is conducted in two stages. Impeachment proceedings begin in the House of Representatives (art. I, sec. 2). This stage satisfies the Framers' belief that impeachment should be a public inquiry into charges against an official, and it involves fact-finding at hearings. After accumulating all the evidence, the House votes on whether or not to impeach. (West’s Encyclopedia of American Law)

“The power of impeachment translates into the power to indict. The House, through the Judiciary Committee, conducts investigation and gathers evidence...” (Legal Information Institute, Cornell University).

It is disheartening to note that our Committee on Justice failed to perform its duties, i.e., it did not review the evidence presented by the complainants, did not conduct fact-finding and did not investigate and gather evidence. Instead, our Committee on Justice suppressed the presentation of evidence by employing the tyranny of numbers.

POLITICAL OFFENSES ARE WITHIN THE JUSRISDICTION OF THE IMPEACHMENT COMMITTEE:

During the limited debate, the majority stated that offenses not included in the statute books cannot be considered an impeachable offense.

Again, this is contrary to impeachment practice as clearly established by the following:

Constitutional lawyer Ann Coulter noted in her book, High Crimes and Misdemeanors --- The Case Against Bill Clinton (Regnery Publishing, 1998): "The derivation of the phrase 'high crimes and misdemeanors' has nothing to do with crimes in English common law for which public servants could be impeached," but had much to do with dishonorable conduct or a breach in the public trust.

In his influential Commentaries on the Constitution, Supreme Court Justice Joseph Story (1811-1845; the intellectual mate of Chief Justice John Marshall) explained: "The offenses to which the remedy of impeachment has been and will continue to be principally applied are of a political nature... [W]hat are aptly termed political offenses, growing out of personal misconduct, or gross neglect, or usurpation, or habitual disregard of the public interests."

James Madison explained the requirement for impeachment during the debates of the Constitutional Convention of 1787: "[S]ome provision should be made for defending the community against the incapacity, negligence, or perfidy of the chief magistrate. He might pervert his administration into a scheme of peculation or oppression. He might betray his trust ..."

Alexander Hamilton explained in The Federalist Papers (No. 65) that impeachment of the president should take place for "offenses which proceed from the misconduct of public men, or in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to society itself."

And, in The Federalist Papers (No. 70), Hamilton further explained: "Men in public trust will much oftener act in such a manner as to render them unworthy of being any longer trusted, than in such a manner as to make them obnoxious (subject) to legal punishment."

Senator Hillary Clinton, whose husband then President Bill Clinton was impeached by the House, stated in an early legal paper that: “British history, to which our Founding Fathers turned for guidance, clearly envisaged impeachment as a tool to correct 'corruption in office' that 'alleged damage to the state,' and was 'not necessarily limited to common law or statutory...crimes'...”

And Bill Clinton himself, before he became President declared: "I think the definition should include any criminal acts plus a willful failure of the president to fulfill his duty to uphold and execute the laws of the United States. [Another] factor would be willful, reckless behavior in office; just totally incompetent conduct of the office and the disregard of the necessities that the office demands."

“A well constituted court for the trial of
impeachments is an object not more to be desired
than difficult to be obtained in a government
wholly elective. The subjects of its jurisdiction
are those offences which proceed from the
misconduct of public men, or, in other words,
from the abuse or violation of some public
trust. They are of a nature which may with
peculiar propriety be denominated POLITICAL, as
they relate chiefly to injuries done immediately
to the society itself.” (Alexander Hamilton in the
Federalist Papers)
“Political offenses are of so various and complex
a character, so utterly incapable of being
defined, or classified, that the task of positive
legislation would be impracticable, if it were
not almost absurd to attempt it.” (Justice

Joseph Story, Commentaries on the Constitution of the United States, 1833)

From “High Crimes and Misdemeanors” Wikipedia: High crimes and misdemeanors is a phrase from the United States Constitution, Article II, Section 4: "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." "High" in the legal parlance of the 18th century means "against the State". A high crime is one which seeks the overthrow of the country, which gives aid or comfort to its enemies, or which injures the country to the profit of an individual or group. In democracies and similar societies it also includes crimes which attempt to alter the outcome of elections.”

It is therefore without doubt that impeachable offenses include political offenses that are not considered statutory crimes. And it especially includes “crimes which attempt to alter the outcome of elections.” The latter is a compelling argument against the majority’s mantra that election issues in the impeachment complaint should be referred to the Presidential Electoral Tribunal instead of being part of the impeachment process.

ON ULTIMATE FACTS:

During the debate, Cong. Luis Villafuerte belabored the point that the Impeachment Complaint did not state “ultimate facts.” Congressman Edcel Lagman seconded the aforementioned observation with the statement that the complaint was “destitute of ultimate facts.”

The majority has indulged in legal distortion. They forgot that “It is essential to introduce the evidentiary facts during the trial in order to prove the ultimate fact.” (Ultimate Fact, From The Free Dictionary by Farlex). The process imposed by the majority did not allow the introduction and discussion of said “evidentiary facts” so how could one speak of “ultimate facts”?

Moreover, the practice of presenting “ultimate facts” in pleadings has long ago lost its glimmer as evidenced by the following (From West’s Legal Encyclopedia of American Law, 1998, by the Gale Group, Inc.):

“The concept of ultimate facts used to be an essential part of preparing a pleading in a civil action. Until the late 1930s, the rules of civil procedure in federal and state courts required parties to plead on the basis of a statement of facts constituting the cause of action or defense. These ultimate facts alleged the substance of the cause of action and were distinguished from evidentiary facts, which concerned the particular events of the case, and conclusions of law. The highly technical distinctions among ultimate facts, evidentiary facts, and conclusions of law created great confusion and often led to the dismissal of cases based on a pleading mistake.

“The development of these distinctions can be traced to the 1848 New York Code of Civil Procedure, which was largely drafted by David Dudley Field. During the next few decades, most of the states, except those on the East Coast, adopted what came to be known as the Field Code. The Field Code was a significant improvement over common-law systems of procedure. However, the code required that the complaint contain "a plain and concise statement of the facts constituting plaintiff's cause of action," and used the pleading as a way of narrowing and defining the dispute rather than as a general means of initiating a civil action.

“Over time, however, code pleading became very technical and required the pleader to set forth the facts underlying and demonstrating the existence of the cause of action. The pleading of ultimate facts was necessary, while the inclusion of evidentiary facts and conclusions of law was improper. Judges and attorneys found it difficult, if not impossible, to draw meaningful and consistent distinctions among these three terms. With no clear dividing line between a fact that demonstrated a cause of action and one that introduced specific evidence, courts made formal and often arbitrary decisions that were unrelated to the merits of the case. Courts demanded a high degree of specificity and bound the parties to prove the ultimate facts alleged or lose the lawsuit. This requirement was particularly harsh because it forced a party to allege detailed facts early in the case when there was still uncertainty over what facts had occurred.

“By the 1930s legal commentators agreed that the need to plead ultimate facts was hindering the cause of justice. The Federal Rules of Civil Procedure, which were adopted in 1938, eliminated the ultimate fact requirement and changed thephilosophy behind the plaintiff's complaint and the defendant's answer. In place of ultimate facts, rule 8(a) provides that the complaint shall contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Likewise, the defendant "shall state in short and plain terms" the defenses to the plaintiff's complaint. The rules do not require that only facts be alleged. Most states have adopted the federal rules in whole or in part, and the need to state ultimate facts in a pleading is no longer of great importance.”

ON THE CLAIM THAT EVENTS THAT HAPPENED BEFORE THE PRESENT TERM OF THE RESPONDENT DO NOT FALL WITHIN THE JURISDICTION OF THE COMMITTEE ON JUSTICE:

The majority claimed that the alleged election offenses happened before the present term of the President and are therefore not impeachable. That is, only events that happened in the current term may be considered impeachable.

That is not correct as shown by precedents here in the Philippines and in the United States:

1. As earlier stated, the first article of impeachment against Nixon focused on the June 17, 1972, break-in, alleging that Nixon used ‘powers of his high\office ... to delay, impede and obstruct investigations’ into the burglary.” That incident happened during Nixon’s first term while the impeachment complaint against Nixon was filed during his second term.

2. In the Quirino impeachment, the first charge involved “the sum of P53,811.13 spent in repairs and for remodeling a house on Dewey boulevard belonging to the President’s deceased wife to be used as his official residence while he was Vice President and Secretary of Foreign Affairs...” The case happened when Quirino was still the Vice President.

3. We reiterate our earlier observation: From “High Crimes and Misdemeanors” Wikipedia: High crimes and misdemeanors is a phrase from the United States Constitution, Article II, Section 4: "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." "High" in the legal parlance of the 18th century means "against the State". A high crime is one which seeks the overthrow of the country, which gives aid or comfort to its enemies, or which injures the country to the profit of an individual or group. In democracies and similar societies it also includes crimes which attempt to alter the outcome of elections.” Thus, we submit that a high crime, aletering the outcome of elections, has been committed and this high crime traverses time.

Both the aforementioned Nixon and Quirino causes of action were investigated, heard and voted upon by the impeachment committee concerned.

A TALE OF TWO IMPEACHMENTS:

Quirino Impeachment Proceedings (source, “The Memoirs” by Elpidio Quirino):

“The seven-man Committee created by the House to study and report on the impeachment resolution against President Elpidio Quirino was composed of Congressman Lorenzo Sumulong (L-Rizal) as Chairman, and Congressmen Marcos Calo (L-Agusan), Juan Borra (L-Iloilo), Domingo Veloso (L-Leyte), Toribio Perez (L-Albay), Cipriano Primicias (N-Pangasinan) and Felixberto Serrano (N-Batangas), as members. “

“There being no precedent to follow, Chairman Sumulong announced: ‘Without deciding on the actual merit of each case, the committee will first determine whether each charge is impeachable in character.’ Accordingly, he notified the President and his seven accusers to file their respective memoranda on April 13 and be ready to make their oral arguments on April 18.”