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November 10, 1982


The opinion of the court was delivered by: WEINSTEIN



 Defendant, a Member of Congress, agreed to plead guilty to income tax evasion (26 U.S.C. § 7201), supplementing the salary of a federal employee (18 U.S.C. § 209) and possession of marijuana (21 U.S.C. § 844). He also undertook to immediately resign from Congress and withdraw as a candidate for re-election. The government, in return, consented not to prosecute him for a variety of other crimes.

 For the reasons indicated below those portions of the plea agreement pertaining to resignation from Congress and withdrawal as a candidate for re-election are void. They represent an unconstitutional interference by the executive with the legislative branch of government and with the rights of the defendant's constituents.


 The written agreement between the prosecutor and defendant insofar as relevant states:

We understand that today Mr. Richmond is resigning his position as a member of Congress of the United States and withdrawing as a candidate for re-election to that position. Moreover, in the event that it is no longer possible for Mr. Richmond to formally remove his name from the ballot, Mr. Richmond will announce that he is no longer seeking renomination and re-election to his seat in Congress, and will take whatever legal steps are necessary to ensure he will not serve in the event he should be renominated and re-elected. . . . The plea of guilty, which Mr. Richmond will enter . . . will result in the loss of his public office. . . .

 This portion of the agreement was invalid for three reasons. First, it conflicted with the fundamental right of the people to elect their representatives. Second, it interfered with the principle of separation of powers. Third, it contravened public policy by utilizing a technique latent with the possibility of Executive domination of members of Congress through the threat of forced resignations.



 The maxim that the people are sovereign in a republican form of government, Yick Wo v. Hopkins, 118 U.S. 356, 370, 30 L. Ed. 220, 6 S. Ct. 1064 (1886), has as its natural corollary that they retain the broadest freedom to select legislative representatives. "The true principle of a republic," argued Alexander Hamilton, "is that the people should choose whom they please to represent them." 2 Debates on the Federal Constitution 257 (J. Elliot ed. 1876), quoted in Powell v. McCormack, 395 U.S. 486, 540-41, 23 L. Ed. 2d 491, 89 S. Ct. 1944 (1969).

 This imperative was embodied in the Constitution by prescribing only a limited number of qualifications for congressional office. Const. Art. I, § 2, cl. 2, § 3, cl. 3 (age, length of United States citizenship, and in-state residence requirements). See also Const. Art. I, § 6, cl. 2 (prohibition against members of Congress holding other federal office); Amend. XIV, § 3 (disqualification from congressional office of persons who, having previously sworn to support the Constitution, subsequently engaged in insurrection, rebellion or aid to the enemy). Our government's founders deliberately withheld from Congress the authority to add or detract from the enumerated qualifications. "The qualifications of the persons who may choose or be chosen, as has been remarked on other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature." The Federalist No. 60 (A. Hamilton). See also No. 52 (J. Madison).

 The courts have not permitted attenuation of this fundamental principle. For example, in Powell v. McCormack, 395 U.S. 486, 23 L. Ed. 2d 491, 89 S. Ct. 1944 (1969), Congress attempted to indirectly impose additional qualifications by refusing to seat a congressman alleged to have misused congressional funds. Marshalling the constitutional text and ample historical material from both the pre- and post-ratification periods, the Supreme Court held that the exclusion was constitutionally impermissible. Since Congressman Powell had met the textually explicit criteria for membership and was duly elected by his constituents, even the House of Representatives was without power to exclude him. "The fundamental principle involved [in Powell was] the right of the people to elect whom they choose to elect for office." Stack v. Adams, 315 F. Supp. 1295, 1298 (N.D. Fla. 1970). It was the people of the Congressman's district who were to decide upon his moral and other qualifications, not Congress. A fortiori this inhibition applies to other branches of government.

 The Constitution does empower the houses of Congress to discipline their members and in extreme cases to expel them by a two-thirds vote. This does not, however, materially restrict the freedom of the people to be represented by their chosen legislators. The reluctance of a political body to impose harsh sanctions on its members coupled with the requirement of a supermajority makes expulsion a most extraordinary remedy. It has rarely been invoked. See, Note, 82 Colum. L. Rev. 998, 1003-04 (1982). Even Congressman Powell would probably not have lost his seat had the vote to oust him been considered an expulsion. Powell v. McCormack, 395 U.S. at 506-12. In any event the power of ...

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