[Impeachment of President William Jefferson Clinton - The Evidentiary Record Pursuant to S. Res. 16 - Index to Senate Document 106-3, Vols. I-XXIV]
[Volume XX - Hearing of the Subcommittee on the Constitution -- "Background and History of Impeachment" (November 9, 1998) Ser. No. 63 ]
[From the U.S. Government Printing Office, www.gpo.gov]


106th Congress 
1st Session                      SENATE                        Document
                                                        106-3
_______________________________________________________________________

                                     



 
                       IMPEACHMENT OF PRESIDENT


                       WILLIAM JEFFERSON CLINTON

                               __________

                         THE EVIDENTIARY RECORD

                         PURSUANT TO S. RES. 16

                               VOLUME XX

   Hearing of the Subcommittee on the Constitution--``Background and 
        History of Impeachment'' (November 9, 1998) Ser. No. 63

[GRAPHIC] [TIFF OMITTED] TONGRESS.#13


   Printed at the direction of Gary Sisco, Secretary of the Senate, 
         pursuant to S. Res. 16, 106th Cong., 1st Sess. (1999)

                January 8, 1999.--Ordered to be printed


53-459 CC

                                 ______

1998

                 BACKGROUND AND HISTORY OF IMPEACHMENT

=======================================================================

                                HEARING

                               BEFORE THE

                    SUBCOMMITTEE ON THE CONSTITUTION

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED FIFTH CONGRESS

                             SECOND SESSION

                               __________

                            NOVEMBER 9, 1998

                               __________

                             Serial No. 63


         Printed for the use of the Committee on the Judiciary

_______________________________________________________________________
            For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 
                                 20402
                       COMMITTEE ON THE JUDICIARY

                   HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        BARNEY FRANK, Massachusetts
BILL McCOLLUM, Florida               CHARLES E. SCHUMER, New York
GEORGE W. GEKAS, Pennsylvania        HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina         RICK BOUCHER, Virginia
LAMAR SMITH, Texas                   JERROLD NADLER, New York
STEVEN SCHIFF, New Mexico            ROBERT C. SCOTT, Virginia
ELTON GALLEGLY, California           MELVIN L. WATT, North Carolina
CHARLES T. CANADY, Florida           ZOE LOFGREN, California
BOB INGLIS, South Carolina           SHEILA JACKSON LEE, Texas
BOB GOODLATTE, Virginia              MAXINE WATERS, California
STEPHEN E. BUYER, Indiana            MARTIN T. MEEHAN, Massachusetts
SONNY BONO, California               WILLIAM D. DELAHUNT, Massachusetts
ED BRYANT, Tennessee                 ROBERT WEXLER, Florida
STEVE CHABOT, Ohio                   STEVEN R. ROTHMAN, New Jersey
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRISTOPHER B. CANNON, Utah

            Thomas E. Mooney, Chief of Staff-General Counsel
                Julian Epstein, Minority Staff Director
                                 ------                                

                    Subcommittee on the Constitution

                  CHARLES T. CANADY, Florida, Chairman

HENRY J. HYDE, Illinois              ROBERT C. SCOTT, Virginia
BOB INGLIS, South Carolina           MAXINE WATERS, California
ED BRYANT, Tennessee                 JOHN CONYERS, Jr., Michigan
WILLIAM L. JENKINS, Tennessee        JERROLD NADLER, New York
BOB GOODLATTE, Virginia              MELVIN L. WATT, North Carolina
BOB BARR, Georgia
ASA HUTCHINSON, Arkansas


                      John H. Ladd, Chief Counsel

                      Cathleen A. Cleaver, Counsel


                            C O N T E N T S

                              ----------                              

                              HEARING DATE

                                                                   Page
November 9, 1998.................................................     1

                           OPENING STATEMENT

Canady, Hon. Charles T., a Representative in Congress from the 
  State of Florida, and chairman, Subcommittee on the 
  Constitution...................................................     1

                               WITNESSES

Alstyne, William Van, Duke University School of Law..............   237
Bell, Griffin B., Esq., King & Spalding, Atlanta, GA.............   194
Bloch, Susan Low, Professor of Constitutional Law, Georgetown 
  University Law Center..........................................   230
Cooper, Charles J., Esq., Senior Partner, Cooper, Carvin & 
  Rosenthal, Washington, DC......................................   180
Drinan, Robert F., S.J., Professor, Georgetown University Law 
  Center, and Member, House Judiciary Committee, 1971-1981.......   112
Gerhardt, Michael J., Professor of Law, College of William & Mary 
  School of Law..................................................    45
Harrison, John C., Associate Professor of Law, University of 
  Virginia School of Law.........................................    77
Holden, Matthew, Jr., Department of Government and Foreign 
  Affairs, University of Virginia................................    57
McDonald, Forrest, Historian and Distinguished University 
  Research Professor, University of Alabama......................   211
McDowell, Gary L., Director, Institute for United States Studies, 
  University of London...........................................    28
McGinnis, John O., Professor of Law, Benjamin N. Cardozo School 
  of Law, Yeshiva University.....................................   103
Parker, Richard D., Williams Professor of Law, Harvard University 
  Law School.....................................................    91
Pollitt, Daniel H., Graham Kenan Professor of Law Emeritus, 
  University of North Carolina School of Law.....................   203
Presser, Stephen B., Raoul Berger Professor of Legal History, 
  Northwestern University School of Law..........................   116
Rakove, Jack N., Coe Professor of History and American Studies, 
  Stanford University............................................   242
Schlesinger, Arthur M., Jr., Professor of History, City 
  University of New York.........................................    98
Sunstein, Carl R., Karl N. Llewellyn Distinguished Service 
  Professor of Jurisprudence, University of Chicago School of Law    81
Tribe, Laurence H., Tyler Professor of Constitutional Law, 
  Harvard University Law School..................................   218
Turley, Jonathan, Shapiro Professor of Public Interest Law, 
  George Washington University School of Law.....................   250

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Alstyne, William Van, Duke University School of Law: Prepared 
  statement......................................................   239
Barr, Bob, a Representative in Congress from the State of 
  Georgia: Additional information................................   170
Bell, Griffin B., Esq., King & Spalding, Atlanta, GA: Prepared 
  statement......................................................   196
Bloch, Susan Low, Professor of Constitutional Law, Georgetown 
  University Law Center: Prepared statement......................   234
Canady, Hon. Charles T., a Representative in Congress from the 
  State of Florida, and chairman, Subcommittee on the 
  Constitution: Prepared statement...............................     5
Cannon, Christopher B., a Representative in Congress from the 
  State of Utah: Prepared statement..............................    25
Cooper, Charles J., Esq., Senior Partner, Cooper, Carvin & 
  Rosenthal, Washington, DC.: Prepared statement.................   184
Drinan, Robert F., S.J., Professor, Georgetown University Law 
  Center, and Member, House Judiciary Committee, 1971-1981: 
  Prepared statement.............................................   114
Gallegly, Elton, a Representative in Congress from the State of 
  California: Prepared statement.................................    24
Gerhardt, Michael J., Professor of Law, College of William & Mary 
  School of Law: Prepared statement..............................    46
Harrison, John C., Associate Professor of Law, University of 
  Virginia School of Law: Prepared statement.....................    78
Holden, Matthew, Jr., Department of Government and Foreign 
  Affairs, University of Virginia: Prepared statement............    59
McDonald, Forrest, Historian and Distinguished University 
  Research Professor, University of Alabama: Prepared statement..   214
McDowell, Gary L., Director, Institute for United States Studies, 
  University of London: Prepared statement.......................    31
McGinnis, John O., Professor of Law, Benjamin N. Cardozo School 
  of Law, Yeshiva University: Prepared statement.................   106
Parker, Richard D., Williams Professor of Law, Harvard University 
  Law School: Prepared statement.................................    94
Pollitt, Daniel H., Graham Kenan Professor of Law Emeritus, 
  University of North Carolina School of Law: Prepared statement.   205
Presser, Stephen B., Raoul Berger Professor of Legal History, 
  Northwestern University School of Law: Prepared statement......   119
Rakove, Jack N., Coe Professor of History and American Studies, 
  Stanford University: Prepared statement........................   246
Smith, Lamar S., a Representative in Congress from the State of 
  Texas: Prepared statement......................................    24
Scott, Robert C., a Representative in Congress from the State of 
  Virginia: Additional information...............................   315
Schlesinger, Arthur M., Jr., Professor of History, City 
  University of New York: Prepared statement.....................   100
Sunstein, Carl R., Karl N. Llewellyn Distinguished Service 
  Professor of Jurisprudence, University of Chicago School of 
  Law: Prepared statement........................................    83
Tribe, Laurence H., Tyler Professor of Constitutional Law, 
  Harvard University Law School: Prepared statement..............   221
Turley, Jonathan, Shapiro Professor of Public Interest Law, 
  George Washington University School of Law: Prepared statement.   254
Watt, Melvin L., a Representative in Congress from the State of 
  North Carolina
    Additional information.......................................   155
    Letter dated November 4, 1998, from Thomas E. Mooney to 
      Julian Epstein.............................................   150
    Letter dated November 6, 1998, from Abbe David Lowell to 
      Thomas E. Mooney, and David P. Shippers....................   150
    Letter dated November 9, 1998, from Thomas E. Mooney and 
      David P. Schippers to Abbe David Lowell....................   157
    Letter dated November 9, 1998, from John Conyers to Hon. 
      Henry J. Hyde..............................................   151
    Letter dated November 11, 1998, from Abbe David Lowell to 
      Thomas E. Mooney and David P. Shippers.....................   152
    Letter dated November 12, 1998, from Thomas E. Mooney and 
      David P. Shippers to Abbe David Lowell.....................   152
    Letter dated November 14, 1998, from Jerome M. Zeifman to 
      Hon. Henry Hyde............................................   153

                                APPENDIX

Material submitted for the hearing...............................   321


                 BACKGROUND AND HISTORY OF IMPEACHMENT

                              ----------                              


                        MONDAY, NOVEMBER 9, 1998

                  House of Representatives,
                  Subcommittee on the Constitution,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 9:35 a.m., in 
room 2141, Rayburn House Office Building, Hon. Charles T. 
Canady (chairman of the subcommittee) presiding.
    Present: Representatives Charles T. Canady, Henry J. Hyde, 
Bob Inglis, Ed Bryant, Bill Jenkins, Bob Goodlatte, Bob Barr, 
Asa Hutchinson, Robert C. Scott, Maxine Waters, John Conyers, 
Jr., Jerrold Nadler, and Melvin L. Watt.
    Also present: Representatives Bill McCollum, Stephen E. 
Buyer, James E. Rogan, George W. Gekas, Howard Coble, Lamar S. 
Smith, Elton Gallegly, Steve Chabot, Edward A. Pease, 
Christopher B. Cannon, Mary Bono, Lindsey O. Graham, Barney 
Frank, Zoe Lofgren, Sheila Jackson-Lee, Martin T. Meehan, 
William D. Delahunt, Robert Wexler, and Steven R. Rothman.
    Staff present: John H. Ladd, chief counsel, Subcommittee on 
the Constitution; Cathleen Cleaver, counsel, Subcommittee on 
the Constitution; Sharee Freeman, counsel, Committee on the 
Judiciary; Tom Mooney, general counsel, Committee on the 
Judiciary; Daniel Freeman, counsel and parliamentarian, 
Committee on the Judiciary; Susana Gutierrez, clerk, 
Subcommittee on the Constitution; Brian Woolfolk, minority 
counsel, Committee on the Judiciary; Perry Apelbaum, minority 
general counsel, Committee on the Judiciary; Julian Epstein, 
minority chief counsel and staff director, Committee on the 
Judiciary; Stephanie Peters, minority counsel, Committee on the 
Judiciary; and Samara Ryder, minority counsel, Committee on the 
Judiciary.

              OPENING STATEMENT OF CHAIRMAN CANADY

    Mr. Canady. The Subcommittee on the Constitution will come 
to order.
    The purpose of today's hearing is to receive testimony from 
legal and constitutional scholars on the background and history 
of impeachment. It is the intention of the Chair to recognize 
himself and the Ranking Minority Members for 10 minutes for 
opening statements, and then to recognize each member of the 
Subcommittee on the Constitution for 5 minutes for each opening 
statement.
    The Chair will now recognize himself for an opening 
statement for 10 minutes.
    Today this subcommittee meets to receive testimony on the 
important subject of the ``Background and History of 
Impeachment.'' We will hear from two panels of distinguished 
witnesses on this grave subject. I am hopeful that the 
testimony we hear today, diverse as it most certainly will be, 
will provide the members of the Judiciary Committee with 
information that will help us reach an informed and considered 
judgment on the ultimate issues that are raised in the 
impeachment inquiry which was authorized by the House on 
October 8th.
    At the outset, it should be understood by everyone that the 
purpose of today's hearing is not to establish a fixed 
definition of impeachable offenses under the Constitution. The 
House has never, in any impeachment inquiry or proceeding, 
adopted either a comprehensive definition of ``high Crimes and 
Misdemeanors'' or a catalog of offenses that are impeachable. 
Instead, the House has dealt with the misconduct of Federal 
officials on a case-by-case basis. The House has determined 
whether impeachable offenses were committed by officials 
accused of wrongdoing on the basis of a full understanding of 
the facts of each individual case. That is a model that has 
been consistently followed throughout the more than 200-year 
history of impeachment in the United States, and that is a 
model which the Judiciary Committee is now following in the 
inquiry with respect to President Clinton.
    Although we will search in vain for any simple or clear-cut 
definitions, there are certain general principles which do 
emerge from the background and history of impeachment.
    The Constitution grants the House the ``sole power of 
impeachment.'' But that does not mean that the House exercises 
unfettered discretion. Contrary to the assertion of Gerald Ford 
that ``an impeachable offense is whatever a majority of the 
House of Representatives considers it to be at a given moment 
in history,'' the power of the House to impeach is not an 
arbitrary power. Impeachment must not be a raw exercise of 
political power in which the House impeaches whoever it wishes, 
for any reason it deems sufficient. Indeed, it is the solemn 
duty of all of the Members of the House in any impeachment case 
to exercise their judgment faithfully within the confines 
established by our Constitution. When an impeachment is at 
issue, all partisan considerations must be put aside, and 
Members must be guided first and last by their oath to support 
the Constitution.
    As we will hear in today's testimony, various issues are 
hotly contested. The committee will have an opportunity to hear 
from some of the country's most articulate advocates of 
competing perspectives on the crucial issue of the scope of 
``high Crimes and Misdemeanors.'' All of the members of the 
committee have, I know, already given considerable thought to 
this question. All of us are mindful of the work done by the 
Judiciary Committee in 1974 in the impeachment inquiry with 
respect to President Nixon, and we look to that work for 
guidance in our present task.
    There has been much discussion recently concerning the 
report on ``Constitutional Grounds for Presidential 
Impeachment'' prepared by the staff of the Nixon impeachment 
inquiry. Unfortunately, bits and pieces of that report have 
been pulled out of context, creating a false impression 
concerning the fundamental principles set forth in the report.
    We should consider carefully what the report actually says. 
In discussing the nature of impeachable offenses, the report 
concludes, and I quote:
    ``The emphasis has been on the significant effects of the 
conduct--undermining the integrity of office, disregard of 
constitutional duties and oath of office, arrogation of power, 
abuse of governmental process, adverse impact on the system of 
government.''
    The report goes on to state, and I quote again:
    ``Because impeachment of a President is a grave step for 
the Nation, it is to be predicated only upon conduct seriously 
incompatible with either the constitutional form and principles 
of our government, or the proper duties of the presidential 
office.''
    The references to ``undermining the integrity of office, 
disregard of constitutional duties and oath of office, adverse 
impact on the system of government, and conduct seriously 
incompatible with the proper duties of the presidential 
office'' in the inquiry staff report are echoed in another 
study of impeachment that was prepared at about the same time. 
The report on ``The Law of Presidential Impeachment'' prepared 
by the Association of the Bar of the City of New York in 
January of 1974 states, and I quote:
    ``We believe that acts which undermine the integrity of 
government are appropriate grounds whether or not they happen 
to constitute offenses under the general criminal law. In our 
view, the essential nexus to damaging the integrity of 
government may be found in acts which constitute corruption in, 
or flagrant abuse of the powers of, official position. It may 
also be found in acts which, without directly affecting 
governmental processes, undermine that degree of public 
confidence in the probity of executive and judicial officers 
that is essential to the effectiveness of government in a free 
society. . . .''
    Both the report of the Nixon impeachment inquiry staff and 
the report of the Association of the Bar of the City of New 
York contain a thoughtful distillation of the general 
principles that emerge from the background and history of the 
impeachment process which can help guide our further 
deliberation concerning the charges against President Clinton. 
It is important to understand that this distillation of 
principles was made long ago without any reference to the 
controversy that now is before us. By any reasonable 
interpretation, the evidence presented to the House by the 
Independent Counsel, if it remains unrebutted, establishes that 
the President is guilty of impeachable offenses under these 
principles.
    The evidence before us clearly supports the conclusion that 
the President is guilty of multiple acts of lying under oath, 
obstruction of justice, and other offenses. If the allegations 
of the Independent Counsel are ultimately determined to be 
true: First, the President, through obstruction of justice and 
false statements under oath, sought to conceal the truth in a 
sexual harassment case. Then the President engaged in a seven-
month cover-up of those earlier offenses, a cover-up which 
culminated in the giving of false testimony by the President to 
the grand jury on August 17.
    It is important to understand the context of the 
President's initial false statements under oath that are shown 
in this evidence. This is not a case in which the President was 
surprised by a question about Ms. Lewinsky. On the contrary, 
the President knew that Ms. Lewinsky might very well be the 
subject of questions at the deposition conducted in January of 
this year. The evidence overwhelmingly points to the conclusion 
that the President went to that deposition with a calculated 
plan to lie and that at the deposition, after having taken an 
oath to tell the truth, the whole truth, and nothing but the 
truth, the President made multiple false statements.
    Among other things, the evidence also overwhelmingly 
supports the conclusion that the President corruptly sought to 
influence the testimony of potential witnesses before a Federal 
grand jury in an effort to interfere with the due 
administration of justice.
    The President's lawyers and some of the witnesses who will 
testify today contend that such conduct by a President of the 
United States is not impeachable under our Constitution. I am 
constrained to disagree.
    Such conduct is indeed ``seriously incompatible with the 
proper performance of constitutional duties of the presidential 
office,'' namely, the preeminent presidential duty to ``take 
care that the laws be faithfully executed.'' No one can offer a 
satisfactory explanation of how multiple acts of lying under 
oath and obstruction of justice are compatible with the 
constitutional duties of the President or of his oath of 
office.
    Moreover, no one can explain why the conduct charged 
against the President does not ``undermine the integrity of 
office.'' The President's misconduct falls directly within the 
category of acts which may not directly involve the affirmative 
misuse of official power, but which nevertheless ``undermine 
that degree of public confidence and the probity of executive 
and judicial officers that is essential to the effectiveness of 
government in a free society.''
    Obstruction of justice and lying under oath by a President 
inevitably subvert the respect for law which is essential to 
the well-being of our constitutional system. Such misconduct by 
the President sets an example of lawlessness and corruption, an 
example that cannot fail to have an ``adverse impact on the 
system of government.'' A President who is guilty of such acts, 
acts involving calculated and sustained criminal conduct, steps 
outside the role assigned to him by the Constitution as the 
chief defender of the rule of law. He turns his back on the 
unique place he occupies in our system of government and takes 
on the role of one who by his own conduct directly attacks the 
rule of law, and consequently stands as a disgraceful and 
pernicious example before the whole Nation.
    If the President is guilty of the offenses charged against 
him, he must be called to account under the Constitution for 
the commission of ``high Crimes and Misdemeanors.'' He must be 
called to account for putting his selfish personal interests 
ahead of his oath of office and his constitutional duty. He 
must be called to account for the undermining of the integrity 
of the high office entrusted to him by the people of the United 
States. He must be called to account for setting a dangerous 
example of lawlessness and corruption. He must be called to 
account for subverting the respect for law which is the 
foundation of our Constitution.
    [The prepared statement of Mr. Canady follows:]
Prepared Statement of Charles T. Canady, Chairman, Subcommittee on the 
   Constitution, and a Representative in Congress From the State of 
                                Florida,
    Today the Subcommittee meets to receive testimony on the 
``Background and History of Impeachment.'' We will hear from two panels 
of distinguished witnesses on this important subject. I am hopeful that 
the testimony we hear today--diverse as it most certainly will be--will 
provide the members of the Judiciary Committee with information that 
will help us reach an informed and considered judgment on the ultimate 
issues that are raised in the impeachment inquiry which was authorized 
by the House on October 8th.
    At the outset, it should be understood by everyone that the purpose 
of today's hearings is not to establish a fixed definition of 
impeachable offenses under Article II of our Constitution. The House 
has never in any impeachment inquiry or proceeding adopted either a 
comprehensive definition of ``high Crimes and Misdemeanors'' or a 
catalog of offenses that are impeachable. Instead, the House has dealt 
with the misconduct of federal officials on a case-by-case basis. The 
House has determined whether impeachable offenses were committed by 
officials accused of wrongdoing on the basis of a full understanding of 
the facts of each individual case. That is the model that has been 
consistently followed throughout the more than 200-year history of 
impeachment in the United States. And that is the model which the 
Judiciary Committee is now following in the inquiry with respect to 
President Clinton.
    Although we will search in vain for any simple or clear-cut 
definitions, there are certain general principles which do emerge from 
the background and history of impeachment.
    The Constitution grants the House the ``sole power of 
impeachment.'' But that does not mean that the House exercises 
unfettered discretion. Contrary to the assertion of Gerald Ford that 
``an impeachable offense is whatever a majority of the House of 
Representatives considers it to be at a given moment in our history,'' 
the power of the House to impeach is not an arbitrary power. 
Impeachment must not be a raw exercise of political power in which the 
House impeaches whoever it wishes for any reason it deems sufficient. 
Instead, it is the solemn duty of all the members of the House in any 
impeachment case to exercise their judgment faithfully within the 
confines established by the Constitution. When an impeachment is at 
issue, all partisan considerations must be put aside, and members must 
be guided first and last by their oath to support the Constitution.
    As we will hear in today's testimony, various issues are hotly 
contested. The Committee will have the opportunity to hear from some of 
the country's most articulate advocates of competing perspectives on 
the crucial issue of the scope of ``high Crimes and Misdemeanors.'' All 
of the members of the Committee have, I know, already given 
considerable thought to this question. All of us are mindful of the 
work done by the Judiciary Committee in 1974 in the impeachment inquiry 
with respect to President Nixon. And we look to that work for guidance 
in our present task.
    There has been much discussion recently concerning the report on 
``Constitutional Grounds for Presidential Impeachment'' prepared by the 
staff of the Nixon impeachment inquiry. Unfortunately, bits and pieces 
of that report have been pulled out of context--creating a false 
impression concerning the fundamental principles set forth in the 
report.
    We should consider carefully what the report actually says. In 
discussing the nature of impeachable offenses the Report concludes:

          ``The emphasis has been on the significant effects of the 
        conduct--undermining the integrity of office, disregard of 
        constitutional duties and oath of office, arrogation of power, 
        abuse of the governmental process, adverse impact on the system 
        of government.'' (emphasis added)

The report goes on to state:

          ``Because impeachment of a President is a grave step for the 
        nation, it is to be predicated only upon conduct seriously 
        incompatible with either the constitutional form and principles 
        of our government or the proper duties of the presidential 
        office.'' (emphasis added)

    The references to ``undermining the integrity of the office, 
disregard of constitutional duties and oath of office'', ``adverse 
impact on the system of government'', and ``conduct seriously 
incompatible with . . . the proper duties of the presidential office'' 
in the inquiry staff report are echoed in another study of impeachment 
that was prepared about the same time. The report on ``The Law of 
Presidential Impeachment'' prepared by the Association of the Bar of 
the City of New York in January of 1974 states:

          ``. . . [W]e believe that acts which undermine the integrity 
        of government are appropriate grounds whether or not they 
        happen to constitute offenses under the general criminal law. 
        In our view, the essential nexus to damaging the integrity of 
        government may be found in acts which constitute corruption in, 
        or flagrant abuse of the powers of, official position. It may 
        also be found in acts, which without directly affecting 
        governmental processes, undermine that degree of public 
        confidence in the probity of executive and judicial officers 
        that is essential to the effectiveness of government in a free 
        society. . . .'' (emphasis added)

    Both the report of the Nixon impeachment inquiry staff and the 
report of the Association of the Bar of the City of New York contain a 
thoughtful distillation of the general principles that emerge from the 
background and history of the impeachment process which can help guide 
our further deliberation concerning the charges against President 
Clinton. By any reasonable interpretation, the evidence presented to 
the House by the Independent Counsel--if it remains unrebutted--
establishes that the President is guilty of impeachable offenses under 
these principles.
    The evidence before us clearly supports the conclusion that the 
President is guilty of multiple acts of lying under oath, obstruction 
of justice, and other offenses. If the allegations of the Independent 
Counsel are ultimately determined to be true: First, the President 
through obstruction of justice and false statements under oath sought 
to conceal the truth in a sexual harassment case. Then, the President 
engaged in a seven month cover-up of those earlier offenses--a cover-up 
which culminated in the giving of false testimony by the President to 
the grand jury on August 17.
    It is important to understand the context of the President's 
initial false statements under oath. This was not a case in which the 
President was surprised by a question about Ms. Lewinsky. On the 
contrary, the President knew that Ms. Lewinsky might very well be the 
subject of questions at the deposition conducted in January of this 
year. The evidence overwhelmingly points to the conclusion that the 
President went to that deposition with a calculated plan to lie and 
that at the deposition, after having taken an oath to tell the truth, 
the whole truth, and nothing but the truth, the President made multiple 
false statements.
    Among other things, the evidence also overwhelmingly supports the 
conclusion that the President corruptly sought to influence the 
testimony of potential witnesses before a federal grand jury in an 
effort to interfere with the due administration of justice.
    The President's lawyers and some of the witnesses who will testify 
today contend that such conduct by a President of the United States is 
not impeachable under the Constitution. I am constrained to disagree.
    Such conduct is indeed ``seriously incompatible with . . . the 
proper performance of constitutional duties of the presidential 
office'' namely, the preeminent presidential duty to ``take care that 
the laws be faithfully executed.'' No one can offer a satisfactory 
explanation of how multiple acts of lying under oath and obstruction of 
justice are compatible with the constitutional duties of the President 
or his oath of office.
    Moreover, no one can explain why the conduct charged against the 
President does not ``undermine the integrity of office.'' The 
President's misconduct falls directly within the category of acts which 
may not directly involve the affirmative misuse of official power, but 
which nevertheless ``undermine that degree of public confidence in the 
probity of executive and judicial officers that is essential to the 
effectiveness of government in a free society.'' Obstruction of justice 
and lying under oath by a President inevitably subvert the respect for 
law which is essential to the well-being of our constitutional system. 
Such misconduct by the President sets an example of lawlessness and 
corruption--an example that cannot fail to have an ``adverse impact on 
the system of government.'' A President who is guilty of such acts--
acts involving calculated and sustained criminal conduct--steps outside 
the role assigned to him by the Constitution as the chief defender of 
the rule of law. He turns away from the unique place he occupies in our 
system of government and takes on the role of one who by his own 
conduct directly attacks the rule of law, and consequently stands as a 
disgraceful and pernicious example before the whole nation.
    Alexander Hamilton, writing not long after the Constitution was 
adopted, well expressed the harm that would come to our Republic from 
those who by their example undermine respect for the law. In a 
statement that bears repeating, Hamilton wrote:

          ``If it were to be asked, What is the most sacred duty and 
        the greatest source of security in a Republic? the answer would 
        be, an inviolable respect for the Constitution and Laws--the 
        first growing out of the last. . . . Those, therefore, who . . 
        . set examples, which undermine or subvert the authority of the 
        laws, lead us from freedom to slavery; they incapacitate us for 
        a government of laws. . . .

    If the President is guilty of the offenses charged against him, he 
must be called to account under the Constitution for the commission of 
``high Crimes and Misdemeanors.'' He must be called to account for 
putting his selfish, personal interests ahead of his oath of office and 
his constitutional duty. He must be called to account for undermining 
the integrity of the high office entrusted to him by the people of the 
United Sates. He must be called to account for setting a dangerous 
example of lawlessness and corruption. He must be called to account for 
subverting the respect for law which is the foundation of our 
Constitution.

    Mr. Scott, you are recognized for 10 minutes.
    Mr. Scott. Thank you, Mr. Chairman. I want to thank you, 
Chairman Hyde, and Ranking Member Conyers for convening this 
historic meeting, and I also want to thank the witnesses who 
will testify before us today.
    As a Member of the House Judiciary Committee and the 
Ranking Member of this subcommittee, I share the responsibility 
with my colleagues in ensuring that these proceedings will be 
fair and consistent with our responsibility to the 
Constitution, as we consider impeachment. Of tantamount 
importance to this sobering responsibility is our obligation to 
maintain the proper perspective, and that no matter what we 
think of Bill Clinton and his tawdry escapades with an intern, 
what we do during these proceedings will affect the future 
strength and independence of the presidency as an institution.
    Since the issuance of the Starr report, I and a number of 
my colleagues on the Judiciary Committee have called for this 
hearing on the constitutional implications of impeachment in 
order that the committee members could be well informed in the 
actions we take, to avoid making mistakes that may endanger our 
constitutional form of government.
    One of the very first orders of business after the House 
decided to begin the Watergate inquiry was to review the 
history of impeachment and development of standards. An 
elaborate memorandum was issued by the committee days after the 
inquiry vote and months before any potentially damaging 
information was dumped into the public or any evidence was 
reviewed. This exercise was conducted despite the gravity of 
the allegations brought against President Nixon and the 
overwhelming historical precedents which supported the position 
that those allegations fell well within the definition of 
impeachable offenses.
    The situation before us today is very different from 
Watergate. We are not contemplating impeaching a President 
because he has had the IRS harassing his political enemies by 
conducting audits on their taxes or because he misused the CIA 
by having them attempt to undermine a congressional 
investigation into other abuses of his power. Instead, we are 
investigating whether a President's alleged lying about details 
of a sexual affair warrants his removal from office. Moreover, 
we have been warned repeatedly that these allegations are 
nowhere near what is necessary to overturn a national election.
    Despite these warnings, this committee has turned a deaf 
ear to hundreds of years of precedents and to the Constitution 
that has kept this country strong and unified. Instead, this 
committee has plunged this country into an impeachment inquiry 
without ever determining what impeachment is and which if any 
of the allegations, even if true, might constitute impeachable 
offenses.
    The National Law Journal conducted a survey of 12 
nationally prominent constitutional law professors and found 
that 10 of the 12 conclude that, based on historic precedents 
of impeachment, not one of Ken Starr's allegations is an 
impeachable offense. Furthermore, most of the scholars said the 
question wasn't even close. Two weeks ago, over 400 of the 
country's most prominent historians wrote a letter saying that 
the Starr allegations are not impeachable offenses, and I would 
like to direct the committee's attention to a blowup of this 
letter over here.
    In addition, this past Friday we heard from the Nation's 
constitutional law professors. Over 400 have signed letters 
saying that not only are Starr's allegations not impeachable, 
but also that the continued pursuit of an impeachment inquiry 
is threatening our constitutional form of government. While the 
strong and dire warnings from over 400 historians and 400 law 
professors cannot serve as a substitute to our constitutional 
obligations to determine if any of the alleged offenses are 
impeachable offenses, they definitely reflect the importance of 
this hearing today in applying the available scholarship to our 
proceedings.
    The pleas of the scholars should inspire the committee to 
engage in a logical analysis of how this inquiry should 
proceed. A determination of whether any of the allegations 
alleged, even if true, are impeachable is the first step in a 
rational process. In conducting this analysis, a number of 
issues must be addressed and questions answered.
    What is impeachment? Why is it included in the 
Constitution? What effect does an offense have to have on the 
constitutional form of government to warrant impeachment? What 
actions have been worthy of impeachment before, and what 
actions were not deemed worthy of impeachment? Without this 
hearing, there would be no logical manner to outline the 
parameters of what is impeachable. All of the precedence 
directs us to ask those questions and to proceed accordingly.
    Even a cursory review of impeachments reveals that there is 
no constitutional authority to forcibly remove the President 
simply because we dislike him, or because we don't respect him, 
or because we disapprove of his actions when those actions do 
not constitute ``Treason, Bribery, or other high Crimes and 
Misdemeanors.'' In fact, the scholars have told us that by 
proceeding with an inquiry based on allegations that do not 
meet these standards, we risk doing irreparable harm to our 
system of government by establishing a dangerous and partisan 
impeach-at-will precedent that will forever weaken the 
institution of the presidency.
    The presidency was intended to be free from subversion by 
the legislature. Three separate and co-equal branches were 
envisioned by the drafters of our Constitution, and it is for 
this reason that impeachment is limited to the constitutionally 
explicit ``Treason, Bribery, or other high Crimes and 
Misdemeanors.'' Maladministration was rejected as an 
impeachable offense because the term was considered to be too 
broad and, therefore, a threat to the independence of the 
executive branch, and because it would make it too easy for 
Congress to impeach a President with whom it did not agree.
    Impeachment, it is clear, is intended to be a mechanism to 
protect against a rogue President threatening the 
constitutional form of government. According to constitutional 
scholars, it was never intended to be a crafty way for Congress 
to be able to remove or harass a President whenever it pleased.
    Constitutional scholars have stressed the importance of the 
nexus between the offense and the effect the offense has had on 
the officeholder's official duties. In defining the limits of 
which types of actions constitute ``other high Crimes and 
Misdemeanors,'' Congress has generally applied what has best 
been described as a fiduciary standard. In other words, 
officeholders are either elected or appointed to an office and 
are delegated powers of that office for which they owe a duty 
of care, and the officeholder is authorized to act only within 
the bounds of authority granted to him by that office. Any 
substantial misuse, abuse, or neglect of this authority is 
limited by removal through the impeachment process.
    However, actions unrelated to duties of the officeholders 
are considered not worthy of impeachment unless they are so 
exceptional in nature that they destroy the officeholder's 
ability to continue to fulfill his or her duties. Clearly, no 
such offense has been alleged here, and in fact the public 
opinion of the President's performance is at an all-time high 
for this President and among the highest levels for all 
Presidents.
    Furthermore, the scholars have refuted attempts by 
impeachment supporters to argue that the last three 
impeachments support lowering the standard. The fact is that 
all of these impeachments involved judges and allegations that 
their actions and circumstances affected their offices. Two of 
the judges, in fact, were incarcerated on criminal convictions 
during their impeachment trials. Obviously, a judge who is 
sentenced to prison for crimes is unable to perform his duties 
as a judge either during or after incarceration.
    Duties of a judge and duties of a President, and the 
context of potential abuses of their offices, are very 
different. The ability of judges to execute their official 
duties is based on impartiality and lack of bias, while the job 
of a President is inherently partisan. I look forward to the 
witnesses addressing the Majority's attempts to make 
impeachment of judges the same as impeachment of a President, 
despite the clear distinctions both in their positions and in 
the history and precedents for both.
    Today, we will hear from roughly an equal number of 
witnesses on different sides of this issue, but the American 
public should not be fooled by the hearing's illusion that the 
constitutional experts are equally divided on whether Starr's 
allegations are impeachable. Make no mistake about it, the 
overwhelming majority of scholars have said loudly and clearly 
that the Starr allegations are not impeachable offenses and 
that Congress is endangering the future of our constitutional 
form of government by treading down this dangerous path.
    Finally, I would like to thank our witnesses today for 
agreeing to appear and for the time that they have spent 
preparing their testimony. This hearing is like no other that 
most of us have ever experienced. The record of this hearing 
will influence our democracy for hundreds of years after we 
have all departed. Your places in history will be established, 
and I hope that we will all be remembered as courageous 
statesmen who were able to rise above the politics of faction 
in order to save the future of our constitutional form of 
government. The task at hand deserves nothing less.
    After this hearing, Mr. Chairman, I will ask Chairman Hyde 
and Ranking Member Conyers to convene a full Committee on the 
Judiciary to meet and deliberate on the information we have 
learned at this hearing. The American people deserve an 
opportunity to have their Judiciary Committee meet and 
determine the question of whether any of Ken Starr's 
allegations, even if assumed to be true, rise to the level of 
impeachable offenses.
    If the members of the committee listen closely to today's 
witnesses, to the 400 historians and 400 law professors, for 
the history and precedents of impeachment, I believe that we 
will conclude that the allegations outlined in the Starr report 
do not meet the constitutional standards for impeachment and we 
will be able to bring this inquiry to a close. Further, Mr. 
Chairman, I believe that the American people have now clearly 
told us that it is time to move on. So I look forward to the 
testimony and thank you for convening the hearing.
    Mr. Canady. Thank you, Mr. Scott.
    Mr. Hyde is recognized.
    Chairman Hyde. Mr. Chairman, I yield my 5 minutes to the 
distinguished gentleman from South Carolina, Mr. Inglis.
    Mr. Inglis. I thank the gentleman for yielding.
    Mr. Chairman, on July 24th and 25th, 1974, the 38 members 
of this Committee on the Judiciary delivered their individual 
opening statements prior to the debate on the articles of 
impeachment against Richard Nixon. Our predecessors are the 
only people in this century, prior to members of this 
committee, who have considered an impeachment of a President 
and the many questions that such a process raises. For my 
opening statement, here are some of the pertinent thoughts in 
their own bipartisan words.
    [Videotape shown.]
    [Transcript of video follows:]
                          Transcript of Video
    Here in their own words are some of those thoughts direct from the 
July 24-25, 1974 Rodino Committee debate on articles of impeachment.
                         chairman peter rodino
    ``. . . The Founding Fathers with their recent experience of 
monarchy and their determination that government be accountable and 
lawful, wrote into the Constitution a special oath that the President, 
and only the President must take at his inauguration. In that oath, the 
President swears that he will take care that the laws be faithfully 
executed. . . .
    ``The great wisdom of our founders entrusted this process to the 
collective wisdom of many men. Each of those chosen to toil for the 
people at the great forge of democracy--the House of Representatives--
has a responsibility to exercise independent judgment. I pray that we 
will each act with the wisdom that compels us in the end to be but 
decent men who seek only the truth. . . .
                       democrat harold d. donohue
    ``. . . Now, in truth, there were and there are no positive 
material instruments available to us such as those by which we can 
measure a precise distance or pronounce the exact time of day to 
guarantee the errorless performance of our duty. The human means 
through which we must try to make the right measurement of conduct that 
is required in this historical task exists only in the individual minds 
and consciences of each of the committee members. . . .''
                       republican robert mcclory
    ``. . . Preserving our Republican Party to my mind does not imply 
that we must preserve and justify a man in office who would 
deliberately and arbitrarily defy the legal processes of the Congress, 
nor can our party be enhanced if we as Republican members of the U.S. 
House of Representatives, tolerate the flouting of our laws by a 
President who is constitutionally charged with seeing that the laws are 
faithfully executed as provided in article 2.
    We will enhance our Republican Party and assure a viable two party 
system only if we are courageous enough and wise enough to reject such 
conduct even if attributed to a Republican President. The second 
question we must answer is not what is best for our party, but what is 
best for our Nation. . . .''
                     democrat robert w. kastenmeier
    ``. . . Impeachment is one way in which the American people can say 
to themselves that they care enough about their institutions, their own 
freedom and their own claim to self-government, their own national 
honor, to purge from the Presidency anyone who has dishonored that 
office. This power of impeachment is not intended to obstruct or weaken 
the office of the Presidency. It is intended as a final remedy against 
executive excess, not to protect the Congress against the President, 
but to protect the people against the abuse of power by a Chief 
Executive. And it is the obligation of the Congress to defend a 
democratic society against a Chief Executive who might be corrupt.
    Justice Brandeis warned Americans of the dangers of illegality of 
official conduct. `In a government of laws,' he wrote, `the existence 
of the government will be imperiled if it fails to observe the law 
scrupulously. Our government is the potent, the omnipresent teacher. 
For good or for ill, it teaches the whole people by its example. Crime 
is contagious. If government becomes a law breaker, it breeds contempt 
for the law. It invites every man to become a law unto himself. It 
invites anarchy. . . .''
                        republican tom railsback
    ``. . . Some of my friends from Illinois--I received all kinds of 
mail; some of my people say that the country cannot afford to impeach a 
President. Let me say to these people, many of whom are good supporters 
and friends, I have spoken to countless others including many, many 
young people, and if the young people in this country think that we are 
not going to handle this thing fairly, if we are not going to really 
try to get to the truth, you are going to see the most frustrated 
people, the most turned-off people, the most disillusioned people, and 
it is going to make the period of LBJ in 1968, 1967, look tame. So I 
hope that we just keep our eye on trying to get to the truth. . . .''
                        democrat walter flowers
    ``. . . You know, the power of the Presidency is a public trust, 
just lye our office. And the people must be able to believe and rely on 
their President. Yet, there is some evidence before us that shows that 
the President has given solemn public assurances to the people 
involving the truth and the faith of his powerful office when those 
assurances were not true, but were designed to deceive the people and 
mislead the agencies of government who were investigating the charges 
against Mr. Nixon's men. If the trust of the people and in the world of 
the man, or men, or women, to whom they have given their highest honor, 
or any public trust is betrayed, if the people, cannot know that their 
President is candid and truthful with them, then I say the very basis 
of our government is undermined. . . .''
                        democrat barbara jordan
    ``. . . `Who can so properly be the inquisitors for the nation as 
the representatives of the nation themselves?' (Federalist 65) The 
subject of its jurisdiction are those offenses which proceed from the 
misconduct of public men. That is what we are talking about. In other 
words, the jurisdiction comes from the abuse of some violation of 
public trust. It is wrong, I suggest, it is a misreading of the 
Constitution for any member here to assert that for a member to vote 
for an Article of Impeachment means that the member must be convinced 
that the President should be removed from office. The Constitution 
doesn't say that. The powers relating to impeachment are an essential 
check in the hands of this body, the legislature, against and upon the 
encroachment of the Executive. In establishing the division between the 
two branches of the legislature, the House and the Senate, assigning to 
the one the right to accuse and to the other the right to judge, the 
Framers of the Constitution were very astute. They did not make the 
accusers and the judges the same person. . . .''
                      republican lawrence j. hogan
    ``. . . Now, the first responsibility facing members of this 
committee was to try and define what an impeachable offense is. The 
Constitution does not define it. The precedents which are sparse do not 
give us any real guidance as to what constitutes an impeachable 
offense. So each of us in our own conscience, in our own mind, in our 
own heart, after much study, had to decide for ourselves what 
constitutes an impeachable offense. Obviously, it must be something so 
grievous that it warrants the removal of the President of the United 
States from office. I do not agree with those that say that an 
impeachable offense is anything that Congress wants it to be and I do 
not agree with those who say that it must be an indictable criminal 
offense. But somewhere in between is the standard against which we must 
measure the President's conduct. . . .''
                         democrat james r. mann
    ``. . . Do yet in the United States the people still govern? Do 
they govern through elected representatives? In this era of power that 
our governmental system has brought us to in the world where our 
involvement in foreign trade and foreign affairs puts the President in 
front as the symbol of our national pride and as the bearer of our 
flag, and here we have in the House of Representatives 435 voices 
speaking on behalf of different constituencies with no public relations 
man employed by the House of Representatives, and I wonder if the 
people still do want their elected Representatives to fulfill their 
oath to preserve, protect, and defend the Constitution of the United 
States. Do you want us to exercise the duty and responsibility of the 
power of impeachment, whether that means conviction or exculpation?
    You know, some of the things that cause me to wonder are the 
phrases that keep coming back to me, `oh, it is just politics,' or, 
`let him who is without sin cast the first stone.'
    Are we so morally bankrupt that we would accept a past course of 
wrongdoing or that we would decide that the system that we have is 
incapable of sustaining a system of law because we aren't perfect? . . 
.''

    Mr. Inglis. Thank you, Mr. Chairman.
    Mr. Canady. Thank you, Mr. Inglis.
    The gentlewoman from California, Ms. Waters, is recognized.
    Instead, the gentleman from Michigan, Mr. Conyers, will be 
recognized.
    Mr. Conyers. Thank you, Mr. Chairman, members of the 
committee, and to the very distinguished legal scholars and 
former members and judges, and my former Judiciary member 
colleague, Father Drinan, who joins us here this morning.
    On two separate occasions, the President of the United 
States has been chosen, and it was William Jefferson Clinton. 
He was elected to that office. Now, to proceed to nullify a 
presidential election on the basis of authoritarian privacy-
invading questions about sex, questions the government does not 
have the legal power to ask, is producing irreparable harm to 
our Nation and to its Constitution. There is no crime of 
perjury arising out of questions the government doesn't have 
the legal authority to ask. We must stop at the earliest moment 
this terrible carnival, this confusing, anguishing, national 
experience that is before us.
    Electing a President under our Constitution is the most 
important expression of the political sovereignty of the whole 
of the American people. To diminish, countermand, or nullify 
the legitimacy of a presidential election for behavior rooted 
in personal private conduct, diminishes and debases and abuses 
our Constitution, our Nation, the office of the Presidency, and 
the rule of law itself. The purpose of the Constitution is to 
unify the Nation in opposition to autocracy and to abuses of 
constitutional authority, and that is being dangerously 
undermined and diminished by the presently invoked processes of 
a political and unconstitutional impeachment. Perjury and 
sublimations that are rooted and based exclusively upon an 
illegal invasion of personal privacy like sex is not treason, 
bribery, high crimes, or misdemeanors.
    So I join those of another era who said that when we 
created the Independent Counsel Act, we never dreamed that a 
special prosecutor could use these enormous powers to 
investigate accusations of the private sexual conduct of a 
President. The office of Independent Counsel is manufacturing 
the circumstances in which criminal conduct may occur.
    So I am here to hope and pray that all of us will remember 
that there have only been 15 impeachments in the 209 years of 
our Nation's history. There has never been an impeachment on 
personal misconduct of the kind that is brought forward here. 
It doesn't exist. And so what we are doing here is creating a 
huge and perhaps lasting damage to the office of the 
presidency, and we are now turning the impeachment process, 
article II, section 4 on its head, to become a political 
instrument to be used at the will of a headstrong Congress.
    I beg and implore my colleagues on this committee to listen 
carefully to all of the testimony and then ask yourselves at 
the conclusion of this hearing, has anything in the narrative 
submitted by Mr. Starr reached a level that would sustain and 
warrant an article of impeachment? And if the answer is no, 
then we have a duty, a responsibility, to bring this to the 
earliest conclusion that we can. Thank you, Mr. Chairman.
    Mr. Canady. Thank you.
    The gentleman from Tennessee, Mr. Bryant, is recognized.
    Mr. Bryant. Thank you, Mr. Chairman.
    In part, today I am reminded of the story where a 
businessman, notorious for a lack of integrity, announced to 
Mark Twain that before this businessman died, he intended to 
make the pilgrimage to the Holy Land, climb Mount Sinai, and 
read the Ten Commandments aloud at the top.
    Twain replied, ``I have a better idea. You could just stay 
home in Boston and keep them.''
    Let there be no doubt that but for the conduct of this 
President, his own Attorney General's invocation of the 
Independent Counsel statute, and the United States Constitution 
itself, none of us would be here today.
    I am pleased to have such a distinguished panel of 
witnesses, eminently qualified, and I suspect that most if not 
all of them will say today that Congress alone has the 
constitutional duty of defining an impeachable act. As such, 
Professor Tribe succinctly writes, we must get it right. I 
agree.
    Well, what is right? We will not reach an accord today, I 
suspect, among all of our 19 experts, on what is right, though 
undoubtedly we will hear history and impeachment precedents 
discussed; we will hear how some would distinguish official 
conduct from private conduct and personal actions which don't 
damage or abuse the government as a whole.
    Maybe we will hear about bribery, not in the context of 
receiving, but in giving; why the public policy against the 
bribing of a witness is any less important than when one 
tampers with that witness.
    Or perhaps we will hear, would the President, if he were to 
have to give sworn impeachment testimony before the Senate, 
would he be obligated to tell the truth there?
    Or maybe we will today find somewhere in our great 
Constitution the congressional power we have been missing over 
the past two centuries to reprimand or censure the President. 
Now, that will come in handy the next time he vetoes the 
partial-birth abortion ban.
    But at the end of the day, Congress will stand alone in its 
duty to uphold the Constitution and judge whether, if proven, 
the President of the United States, the chief law enforcement 
officer of the land, who appoints the Attorney General of the 
United States and her 93 United States Attorneys who enforce 
the Federal law across this country, the President who himself 
has a constitutional duty under Article II, section 3, to see 
that our laws are faithfully executed, and the President who 
himself takes an oath to faithfully execute this office and 
defend the Constitution, we have that decision alone to judge 
whether he has committed several Federal criminal law 
violations with the effect of abusing the office of the 
presidency and working grave injury to the entire government, 
and specifically the judicial branch of the government.
    I will close, Mr. Chairman, and thank you for convening 
these hearings, and remind all here, as Edmund Burke said in 
1795, ``All that is necessary for evil to triumph is for good 
men to do nothing.'' And I thank the Chair.
    Mr. Canady. Thank you.
    The gentlewoman from California, Ms. Waters, is now 
recognized.
    Ms. Waters. Thank you very much, Mr. Chairman, and Ranking 
Member.
    Last month the Judiciary Committee decided to proceed with 
an inquiry to impeach the President of the United States 
without ever holding a single hearing to determine what may or 
may not constitute an impeachable offense. At that time, I 
warned this body that increasingly Americans were becoming more 
suspicious of their government and our ability to be fair. 
Confirming my warning, last Tuesday the voters sent us a clear 
message: Americans want fairness first.
    For months, Democrats asked Republicans to hold hearings to 
discuss the constitutional standards for impeachment. We argued 
that the power to impeach a President should not be casually 
used to remove a President or overturn an election simply 
because we don't like him or his policies. Indeed, Alexander 
Hamilton warned, quote, ``There will always be the greatest 
danger that the decision will be regulated more by the 
comparative strength of parties than by the real demonstration 
of innocence or guilt.''
    Impeachment is a constitutional matter of the highest 
importance and should be addressed with the utmost care and 
deliberations. Today's long-awaited hearing is more than a 
platform for learned scholars to pontificate about the 
Constitution. It is the Judiciary Committee's first real 
discussion about the history of impeachment and the standard 
for impeaching Presidents.
    Had my colleagues on the other side of the aisle adopted 
the Democratic fairness plan, this committee would have already 
discussed the constitutional standards for impeaching a 
President. We would have already heard from our distinguished 
panelists, assessed the standards for high crimes and 
misdemeanors, and analyzed the allegations raised by the 
Independent Counsel under these standards. The entire 
impeachment process could have already been completed if this 
committee had listened to the wisdom of over 400 historians, 
over 400 legal scholars, 10 out of 12 of the Nation's most 
respected legal minds, and the American people.
    Our constitutional history and common sense tells us that 
in order for a President to be impeached, there must be a nexus 
between the office of the presidency and the abuse of power. 
Reasonable minds agree that looking at the Constitution should 
have been our first priority. As Members of Congress, we have 
the responsibility to determine what constitutes impeachable 
offenses. We cannot rely on an Independent Counsel who failed 
to identify what standard of impeachment be applied in his 445 
page referral, even after spending over $118,000 in fees for a 
constitutional expert and over $40 million of the taxpayers' 
dollars, $118,400 in fees for a constitutional expert and over 
$40 million of the taxpayers' dollars. I am happy that today's 
panel of scholars are providing their services for free.
    The Democratic witnesses before us today were chosen not 
because of their ideology but because they are among the most 
respected in their fields. I am pleased to point out that all 
of our witnesses are constitutional experts. We have two 
Pulitzer prize winners and a legal scholar who has argued 28 
cases before the Supreme Court. I highlight their credentials 
because it is important that the public understands that we 
have summoned the Nation's most respected minds to participate 
in our crucial decision.
    The outcome of today's hearings will have great impact on 
future impeachment proceedings. We must remember that the 
standard for impeachment was set sufficiently high because the 
framers did not want the legislative branch to remove a 
President on a whim. Today's scholars will debate many issues, 
among which is whether the standard to impeach a Federal judge 
is the same for a presidential impeachment.
    Let me say, in the words of George Mason, the man who 
proposed the high crimes and misdemeanors language adopted by 
the framers, Impeachment should be reserved for actions that 
are ``great and dangerous offenses,'' ``attempts to subvert the 
Constitution,'' and for only ``the most extensive injustice.''
    In the final analysis, the real question is whether or not 
the American Constitution will be upheld. Is this remarkable 
document strong enough to survive a highly charged, politically 
partisan environment where the passions run high and the hatred 
is evident? Will we be able to put aside partisan politics in 
the interest of honoring the true meaning and intent of the 
Constitution?
    Reasonable minded voters and esteemed scholars agree, a lie 
about a consensual sexual affair does not constitute an 
impeachable offense. As Chair of the Congressional Black 
Caucus, I have insisted on making fairness our top priority. 
From the moment the Office of the Independent Counsel delivered 
the referral to this committee, the members of the 
Congressional Black Caucus have assigned ourselves the role of 
fairness cop because our history demands we ensure that this 
process recognizes the rights of everyone involved.
    The American people are indeed watching us. They sent us a 
clear and simple message last Tuesday: Move on with the 
people's business. Let us not step on our constitutional legacy 
or violate fundamental fairness to appease the appetites of 
extremists.
    I look forward to hearing the views of the panelists on the 
constitutional standard for impeachment, and to what I hope 
will be the first true bipartisan effort of this committee. 
Thank you, Mr. Chairman.
    Mr. Canady. The gentleman from Tennessee, Mr. Jenkins, is 
recognized.
    Mr. Jenkins. Well, thank you, Mr. Chairman, and thanks to 
the committee for holding this hearing and for bringing this 
distinguished panel of witnesses here to help us in doing the 
duty that has been thrust upon us, and thanks to all of the 
witnesses for devoting your valuable time and talents to 
helping us fulfill our responsibilities here today.
    It is apparent from studying all of the material that has 
been made available to us that opinions have varied. Opinions 
varied among the Founding Fathers, and opinions have varied 
among all of those who have considered the subject of 
impeachment, about what acts constitute an impeachable offense. 
And I suspect that at the end of this day, that those opinions 
will still be varied.
    Well, what is coming in clear focus as we progress in this 
process is that each impeachment case is pretty much like a 
fingerprint, it has its own unique characteristics; and that 
every citizen must have some private life that is not open to 
constant scrutiny, and that includes the President of the 
United States; that we cannot turn our heads from serious 
offenses of the law by any citizen, and that giving false 
testimony under oath, whether it be in a deposition or whether 
it be before a grand jury, is so detrimental to our system of 
justice that it absolutely cannot be ignored.
    I will listen carefully and respectfully to what every 
participant has to say here today, and I will give every 
witness's testimony earnest consideration. The opinions we hear 
today will be important, but in the end the committee will be 
left with the responsibility to apply the Constitution, the 
laws, in light of all of the precedents and opinions that we 
have in a fair, impartial and nonpartisan manner.
    If we do this, we will be fulfilling our responsibility and 
obligations to do what is best for this Nation and for all of 
its citizens. I thank you, Mr. Chairman.
    Mr. Canady. The gentleman from New York, Mr. Nadler, is 
recognized.
    Mr. Nadler. Thank you, Mr. Chairman.
    Today, after months grandstanding and accusations, this 
committee will finally get around to examining what is, and has 
been, the mandate of the Constitution on the question of 
presidential impeachment.
    I assume that my colleagues in the majority who pride 
themselves on being strict constructionists will agree that a 
standard of impeachment is not something that we can just pull 
out of the air to seize the political moment. The standard is 
embodied in the language of the Constitution and in centuries 
of precedent, up to and including the vote of this committee in 
1974 to report articles of impeachment against President Nixon.
    We have an obligation to the Constitution and to the 
American people to be fair and to accord due process to every 
individual involved in this matter, including the President. I 
would remind my colleagues that while the President is not 
above the law, neither is he below the law. He is entitled to 
the same fairness and due process as every other citizen.
    What does due process mean? It means, among other things, 
the right to be informed of the law, of the charges against 
you, the right to confront the witnesses against you, to call 
your own witnesses, and to have the assistance of counsel.
    The purpose of today's hearing is to help define the law. 
What is an impeachable offense? How do the accusations against 
the President, if proven, compare with that standard?
    After we conclude this hearing, what will this committee 
do? Will we consider the allegations against the President to 
determine whether any of them, if proven true, meet the 
standard of an impeachment offense?
    Clearly, if we determine that none of the allegations, if 
proven, are impeachable offenses, that would be the end of the 
matter and no evidentiary hearing would be necessary. And if we 
determine that some of the allegations, if proven, would be 
impeachable offenses, then we could narrow the scope and length 
of the evidentiary hearing.
    In a criminal trial, a motion to dismiss for failure to 
state a crime is considered first before the evidence is 
presented. This is the only way we can deal with this matter 
both expeditiously and fairly.
    Unfortunately, the unilateral approach being pursued by the 
Republican leadership does not follow such a procedure. Instead 
of providing due process, we are presented with a procedure 
more fitting to the 17th century Court of Star Chamber or to a 
Moscow show trial of the 1930s. The Chairman has asked the 
President to answer yes or no to a set of 81 questions. The 
President is being asked to do what no American should ever 
have to do, to prove his innocence without ever even knowing 
what charges he will ultimately face.
    In America everyone, even the President, is presumed 
innocent until proven guilty, and everyone, even the President, 
has the right to know the precise charges against him and to 
have the opportunity to confront his accusers.
    The Chairman has suggested that we should simply accept the 
testimony of the Grand Jury witnesses because they were, after 
all, under oath. If we follow the Chairman's advice, we will 
conclude the inquiry expeditiously, but not fairly, and not 
without trashing the Constitution and every principle of due 
process and fundamental fairness that we have held sacred since 
the Magna Carta.
    If the Majority really wants to pursue some or all of the 
accusations which have emerged from the Starr Chamber, then the 
Majority will have to drag before us the many private 
individuals whose lives and privacy have already been invaded 
and subject them to questioning and cross-examination to 
determine the truth. There is really no other way to find out 
the truth, unless the Majority expects this committee to act as 
a rubber stamp to Mr. Starr's jihad.
    I do not believe that the American people want to see 
private citizens have their privacy invaded even more than it 
already has been by being dragged before a congressional 
committee and interrogated in a partisan witch hunt. If the 
majority is determined to move forward with this inquest, it 
will ultimately have to choose between rubber stamping Ken 
Starr's findings or moving forward with the inquisition and 
calling all of the relevant witnesses for examination and 
cross-examination.
    We do have an alternative which would be both fair and 
reasonable, which would reflect the finest values embodied in 
our Constitution, and which I believe would spare us and the 
Nation the necessity of a lengthy evidentiary hearing. We could 
decide not to place the cart before the horse. We could make 
this hearing something more than an academic seminar. We could 
review the constitutional standard of impeachment, determine 
whether any of the charges, if proven, would actually meet that 
standard, and vote on them, up or down.
    I do not personally believe any of the allegations meet the 
standard. I believe if we followed up the hearing with votes on 
whether the allegations define impeachable offenses, we would 
avoid the necessity of a further inquisition. That would be 
both expeditious and fair.
    I urge my colleagues to weigh this issue carefully, keeping 
in mind that what we do today will effect not just this 
President, not just the private lives of people invaded by this 
matter, but future Presidents of both parties. We are deciding 
these issues for future generations as well as for the present, 
and we need to move with caution and with care.
    Thank you, Mr. Chairman.
    Mr. Canady. The gentleman from Virginia, Mr. Goodlatte, is 
recognized.
    Mr. Goodlatte. Mr. Chairman, thank you for convening this 
hearing to study the background and history of impeachment. And 
that is precisely what this hearing is about, an examination of 
previous impeachment cases and other historical precedents, 
including the statements of our Founding Fathers.
    As we hear from and question the witnesses before us today, 
I would like to caution my colleagues that the purpose of this 
hearing is not to determine the standard for impeachment. It 
would be truly ironic for this subcommittee to use a hearing on 
the historical impeachment precedents as a means of setting a 
fixed standard for impeachment, since there is no historical 
precedent for setting a fixed standard.
    The Watergate inquiry staff was exactly right when they 
wrote in their work, Constitutional Grounds for Presidential 
Impeachment, that ``The House does not engage in abstract, 
advisory or hypothetical debates about the precise nature of 
conduct that calls for the exercise of its constitutional 
powers; rather, it must await full development of the facts and 
understanding of events to which those facts relate.'' Just as 
a court cannot define the principles of due process of law or 
equal protection of the laws without a case or controversy 
before it, the House cannot define impeachment without a 
complete examination of the facts.
    The Constitution describes impeachment in terms of 
``Treason, Bribery, and other high Crimes and Misdemeanors.'' 
However, the Constitution does not define the meaning of those 
terms. For guidance we must look to historical precedents and 
the statements of our Founding Fathers, but as the Watergate 
inquiry report found, ``the framers did not write a fixed 
standard. Instead, they adopted from English history a standard 
sufficiently general and flexible to meet future circumstances 
and events, the nature and character of which they could not 
foresee.''
    While the framers did not set a fixed standard, we are not 
completely without guidance in understanding the purpose and 
scope of impeachment. Throughout the impeachment debates at the 
Constitutional Convention and later at the State ratifying 
conventions, one theme is clear: The framers intended 
impeachment to be a constitutional safeguard of the public 
trust. From North and South Carolina to New York, Pennsylvania 
and Virginia, all understood that impeachment was designed as a 
remedy against Presidents who violate the public trust.
    Nowhere in the law is there a code of impeachable offenses. 
As Members of Congress, our allegiance is to the Constitution 
of the United States, and our responsibility is to follow the 
truth wherever it leads. So even if this subcommittee devised a 
standard for impeachable offenses, as some have called for, it 
would not be binding on the conscience of any Member of the 
House who disagreed with that definition. This committee simply 
cannot tell the House what is or is not an impeachable offense.
    In determining whether particular actions should lead to 
impeachment, they should be examined upon the principles of 
public policy and duty. This is the model that has been 
followed throughout our Nation's history, including the 
judicial impeachments of the 1980s. And it is the model that we 
should follow to determine whether, in light of the documented 
allegations of perjury and obstruction of justice, the 
President has violated his constitutional duty to take care 
that the laws be faithfully executed. The President has denied 
those allegations, and he has the opportunity to present 
evidence to the contrary.
    Mr. Chairman, I would like to close with an admonition from 
former Supreme Court Justice Louis Brandeis which is 
particularly appropriate in light of the task before us: ``In a 
government of laws, the existence of the government will be 
imperiled if it fails to observe the law scrupulously. For good 
or for ill, it teaches the whole people by its example. If 
government becomes a law breaker, it breeds contempt for the 
law. It invites every man to become a law unto himself.''
    I look forward to hearing from the witnesses before us 
today. Thank you, Mr. Chairman.
    Mr. Canady. Thank you, Mr. Goodlatte.
    The gentleman from North Carolina, Mr. Watt, is now 
recognized.
    Mr. Watt. Thank you, Mr. Chairman. I will try to be brief 
and not use the entire 5 minutes because I would like to hear 
the witnesses at some point today.
    I am just delighted that we have finally arrived at this 
point. Many of us on the committee and outside the committee 
have been saying that this should have been the starting point 
for this process, and I have firmly believed that from the very 
beginning, that if we were truly going to undertake a 
bipartisan process and if we were truly going to take this out 
of a political realm and put it into a constitutional realm, we 
needed to define for our committee and for the American people 
the constitutional standard that is applicable to what we are 
going to do. And so it has been my firm belief from day one 
that we couldn't advance this process in a bipartisan way 
without having a hearing of this type.
    Now, I would have to say that I am disappointed that before 
we even had the hearing today, several days ago I received a 
memorandum from the Chairman of the committee which is printed 
here as if we were all parties to it, and as if it were a 
bipartisan product with all of the names of the committee 
members and the official stamp and status of the committee on 
it, a report by the ``Staff of the Impeachment Inquiry'' on the 
``Constitutional Grounds for Presidential Impeachment,'' that 
is the Majority staff, which was published before we even had 
any hearings of this kind; a further indication, I would submit 
to my colleagues and to the American people, that we are 
engaged here and have been engaged in a partisan witch hunt 
rather than in an effort to pursue a bipartisan resolution and 
determination of this issue.
    So I am so overjoyed that we are finally here today. I wish 
I had some confidence that what we were doing today in 
listening to these witnesses was more than an academic 
exercise, that it was really going to have some impact on this 
partisan process and the level of partisanship that exists in 
this committee. But if nothing else, we hope that the American 
people will finally have a standard other than their personal 
opinion or their political opinion about the President against 
which to evaluate any conduct that the President engaged in.
    So I thank the Chairman and the Ranking Member for finally 
having this hearing, and I yield back the balance of my time.
    Mr. Canady. The gentleman from Georgia, Mr. Barr, is now 
recognized.
    Mr. Barr. Thank you, Mr. Chairman. Mr. Chairman, before I 
go into my opening comments, I would like to let everybody know 
here at least in the Supreme Court the rule of law still 
prevails. The court has ruled this morning that presidential 
confidant Bruce Lindsey and other White House lawyers cannot 
refuse to answer a Federal Grand Jury's questions about 
possible criminal conduct by government officials.
    Mr. Chairman, as Members of Congress, many of our decisions 
we face are relatively easy: balancing the Federal budgets, 
requiring welfare recipients to work if they are able. However, 
many of our other choices are not quite so easy. The process we 
are discussing today is the most serious constitutional action 
a Congress can take short of declaring war, and none of us 
should take this process lightly.
    All but the President's ardent apologists agree that he 
lied to the American people, lied to the court in the Paula 
Jones case, and lied to a Federal Grand Jury probing his 
conduct. It is just as evident that he worked to obstruct 
judicial proceedings by tampering with key witnesses and 
evidence.
    No amount of willful ignorance or rationalization will make 
these facts go away. We may not like these facts. They may make 
us sick to our stomachs. They may cause us to question some of 
our basic presumptions about the President and the presidency, 
but we must confront them. To do otherwise would be to 
knowingly treat the President different from the rest of us.
    Many of my colleagues on this committee have devoted their 
lives to fighting inequality and insuring equal justice for 
all. This is one of the highest causes a Member of Congress can 
champion. For this reason, I am saddened to see these same 
members of our committee working tirelessly to return 
inequality and special treatment to our law in order to protect 
a President they favor.
    Make no mistake about it, the precedents we set in this 
matter will remain part and parcel of our legal system for 
years to come, damaging or benefiting us regardless of the 
political party to which we belong.
    All of us who attended church growing up are familiar with 
the story of Abraham and Isaac. When God demanded that Abraham 
sacrifice his only son, Abraham was willing to do so because he 
realized there are truly principles that rise above the life of 
any one person, no matter how great a love we have for that 
individual. This is the highest form of devotion, and it is 
exactly the choice we face today.
    If impeaching Bill Clinton is necessary to protect our 
Constitution and preserve the rule of law, do we have the 
courage to do it? I hope and pray that the answer is yes. If 
any other citizen, for example, one Kenneth Starr had perjured 
himself, even for the best of reasons, I have no doubt that all 
of us, especially those on the other side of the aisle, would 
urge his prosecution.
    Indeed, the President's own Department of Justice has 
prosecuted and does prosecute numerous cases of perjury, 
including one recent case in which a Federal employee lied 
about sex in a civil suit. As a Federal prosecutor appointed by 
President Reagan, I convicted and jailed a sitting Republican 
Member of Congress, of this committee, for perjury. Perjury and 
obstruction of justice are not partisan issues. They are grave 
offenses that strike at the heart of our legal system. The 
principle that all who participate in our court proceedings 
must tell the truth is the most fundamental underpinning of our 
society.
    At best, today's hearing will cast a dim light around the 
edges of a term the Founding Fathers intentionally left up to 
future Congresses to define. Trying to arrive in advance of the 
evidence at a precise definition of ``high Crimes and 
Misdemeanors'' is the intellectual equivalent of debating how 
many angels can fit on the head of a pin, or whether a tree 
falling in the forest with nobody present makes noise. It may 
be interesting to engage in such talk around a coffee table or 
in an Ivy League ivory tower, but it bears no relationship to 
the real world of legal or governmental proceedings.
    Ultimately the choice of whether or not to vote articles of 
impeachment rests not with legal scholars or historians, no 
matter how distinguished their pedigrees or how many ads they 
take out. The choice is ours, and sooner or later we are going 
to have to make it or else future generations, families, 
teachers and prosecutors, will have to pay the price over and 
over as they cope with generations of liars and perjurers.
    In the final analysis, I don't think there are many Members 
of Congress who can say directly with a straight face that a 
President can commit numerous felonies and stay in office. 
Either all the lofty phrases we eagerly repeat mean something 
or they don't. Either all Americans are equal under the law or 
some, a new royalty, deserve special treatment.
    Let us take this unique opportunity to shape this debate, 
define the issues and lead the process, rather than continue as 
so many have to react, respond, pontificate and run out the 
clock. Our constitutional clock, now a mere 211 years old, must 
be kept running. You cannot restart it once it dies. Our 
colleagues 25 years ago and their impeachment staff, including 
Hillary Rodham, recognized the importance of this and so must 
we.
    Thank you, Mr. Chairman.
    Mr. Canady. Thank you.
    The gentleman from Arkansas, Mr. Hutchinson, is recognized.
    Mr. Hutchinson. Thank you, Mr. Chairman.
    Any impeachment inquiry is difficult, as it should be, but 
it is particularly challenging when an election intervenes, 
resulting in attempts to spin the facts and to treat lightly 
the serious responsibilities upon us. For that reason this 
hearing is extraordinarily important to sharpen our focus and 
to remind us of the principles of our Founding Fathers and of 
the unavoidable judgment of history.
    Let me express my personal concerns about the present 
difficulty for our Nation.
    One of my distinguished Democratic colleagues said on the 
House floor, ``The President's acts, if proven true, may be 
crimes calling for prosecution or other punishment, but not 
impeachment.'' Others have already indicated they believe that 
the President lied under oath but that, even so, such action 
does not rise to an impeachable offense.
    That simple but traumatic conclusion would have a profound 
and long-reaching impact on our country.
    If this committee ignores an act of perjury by the 
President, what impact will that have on the next generation, 
on our rule of law and our justice system? I would not be on 
this committee if I did not have a love for the law and a 
belief that any citizen can seek justice with complete 
confidence that intentional falsehoods under oath are not 
acceptable. If we conclude that perjury was committed but we 
take no action, what will a future jury do when asked to uphold 
the law and find someone guilty of lying under oath?
    My second concern is that some of those who say ``Do not 
impeach even if the facts show perjury,'' are also calling for 
the President to be punished. This is wrong. My reading of the 
Constitution tells me this process is not about punishment, but 
rather protecting the public trust.
    There are some who say that alternative punishments, such 
as censure or fine have public appeal as a way out, but there 
is a growing consensus of scholars who agree that such 
alternatives have no constitutional basis and would violate the 
separation of powers, setting a dangerous precedent for future 
proceedings. For those on the other side of the aisle who call 
for punishment, I would ask, how and under what authority?
    A third concern is on the question of what constitutes an 
impeachable offense. For those who call for a definition, I 
would ask, what specific definition would you propose as an 
improvement upon that of our Founding Fathers? And going beyond 
the abstract, what definition are you willing to set as a 
precedent for future unknown cases?
    As I have received my education in public service, I have 
always been instructed by the people that there should be a 
higher standard for those in public office. In fact, our 
Federal sentencing guidelines impose additional penalties for 
those who abuse a position of public trust.
    Some conclude that perjury is an impeachable offense for a 
Federal judge but not a President because there should be a 
higher standard for impeaching the President of the United 
States. If that reasoning were adopted, we would in effect be 
setting a lower standard for the President than any other 
office in the land. Is that the right policy? Is that the right 
message for our country?
    In addition, for those who advance the argument that 
perjury is not an impeachable offense, how do they address the 
tougher question on obstruction of justice? If one witness is 
to believed, the President of the United States orchestrated 
his White House staff to conceal evidence pursuant to a lawful 
subpoena. Now this may seem a trivial matter to some, but as an 
attorney who has represented plaintiffs in a civil rights 
litigation, I am concerned about tipping the scales of justice 
in favor of the wealthy and the powerful.
    My final concern deals with the question of punishment. 
There are some who concede that alternative punishments are not 
within the power of the legislative branch. They then argue 
that impeachment should not be pursued because the President 
can be held accountable for any criminal offenses after he 
leaves office. That would mean that if this committee finds 
criminal conduct, we would simply refer it back to the 
Independent Counsel for prosecution in the year 2001. Is that 
really getting this ordeal behind us? Is that really moving on? 
It would appear that such a delay would be harmful to our 
nation and harmful to the office of the presidency.
    I hope that the witnesses today will address the concerns I 
have expressed. Please be assured that though I view these 
charges as profoundly serious, I have not concluded the outcome 
of this endeavor. I do not believe that the unpleasantness of 
the present circumstances justifies playing fast and loose with 
the Constitution for the sake of expediency. To do so would be 
to imperil the very system of justice upon which our great 
Nation was built.
    I thank the Chair.
    Mr. Canady. Thank you, Mr. Hutchinson.
    Without objection, the written statements of other members 
of the Judiciary Committee will be inserted in the record of 
this hearing.
    [The prepared statement of Mr. Gallegly follows:]
Prepared Statement of Elton Gallegly, a Representative in Congress From 
                        the State of California
    As you know Mr. Chairman, I am not a member of this subcommittee. 
However, I believe this is an important hearing for all members of the 
Judiciary Committee. In fact, every member of Congress should carefully 
listen to today's witnesses--for the matters discussed today will help 
to improve our understanding of what is an impeachable offense, not 
only with regard to the current inquiry, but for Presidential 
wrongdoing for many years to come.
    Make no mistake about it, a standard for impeachment already 
exists. It is found in Article II, Section 4 of the Constitution and it 
provides for impeachment for ``Treason, Bribery, or other high Crimes 
and Misdemeanors.'' However, like many other provisions in the 
Constitution, such as ``freedom of speech'' or ``due process,'' one 
must carefully examine the historical precedents of the impeachment 
clause in order to gain a clearer understanding of its meaning.
    Without this historical perspective, the impeachment process risks 
becoming a tool in the hands of those whose ever-changing views on what 
constitutes an impeachable offense will be shaped by political 
calculation and polls. This cannot be allowed to happen.
    Politics will always be a part of the impeachment process. This is 
inevitable. However, impeachment questions--whether one argues for or 
against impeachment in a specific case--should never become only about 
politics.
    Ultimately, the decision on impeachment rests in the conscience of 
each member of Congress. However, this decision must be an informed 
one, grounded in facts and precedents instead of spin and sound bites.
    Lastly, developing a better understanding of the history of 
impeachment and what constitutes an impeachable offense will help this 
committee to conclude this inquiry in short order. If the President and 
his advisors cooperate fully, it is my hope that we will finish even 
before our year-end deadline. Congress can then once again focus on 
improving education for our children, reducing crime and the other 
important day-to-day problems confronting our country.
    Thank you, Mr. Chairman. I yield back the balance of my time.

    [The prepared statement of Mr. Smith follows:]
Prepared Statement of Lamar S. Smith, a Representative in Congress From 
                           the State of Texas
    In light of the subject of today's hearing, I think it is important 
that we hear from the legal experts. But there are two experts who are 
not here who have made insightful observations about what constitutes 
``high Crimes and Misdemeanors'' and who have unique perspectives.
    Barbara Jordan, a distinguished member of this Judiciary Committee 
during the Nixon impeachment proceedings, made this statement:

          The South Carolina ratification convention impeachment 
        criteria: those are impeachable ``who behave amiss or betray 
        their public trust.''
          Beginning shortly after the Watergate break-in and continuing 
        to the present time, the president engaged in a series of 
        public statements and actions designed to thwart the lawful 
        investigation by government prosecutors. Moreover, the 
        president has made public announcements and assertions bearing 
        on the Watergate case which the evidence will show he knew to 
        be false.
          These assertions, false assertions, impeachable, those who 
        misbehave. Those who ``behave amiss or betray their public 
        trust.''
          James Madison again at the Constitutional Convention: ``A 
        president is impeachable if he attempts to subvert the 
        Constitution.''
          The Constitution charges the president with the task of 
        taking care that the laws be faithfully executed, and yet the 
        president has counseled his aides to commit perjury. . . .

    Leon Jaworski, the special prosecutor during the Nixon impeachment 
proceedings, wrote a book titled, The Right and the Power about his 
experience. This is what he said:

          No government office, not even the highest office in the 
        land, carries with it the right to ignore the law's command, 
        any more than the orders of a superior can be used by 
        government officers to justify illegal behavior. . . .
          The President--a lawyer--coached Haldeman on how to testify 
        untruthfully and yet not commit perjury. It amounted to 
        subornation of perjury. For the number-one law enforcement 
        officer of the country it was in my opinion, as demeaning an 
        act as could be imagined.
          President: Just be damned sure you say I don't remember. I 
        can't recall. I can't give any honest . . . an answer that I 
        can recall. But that's it.
          There was evidence that the President conspired with others 
        to violate 18 U.S.C. 1623--perjury--which included the 
        President's direct and personal efforts to encourage and 
        facilitate the giving of misleading and false testimony by 
        aides.
          In the end, Nixon was forced to resign because the people had 
        lost confidence in him. He had lied too often. The members of 
        the House Judiciary Committee realized this, and that is why 
        they concluded unanimously that he had been guilty of 
        obstructing justice.

    As we hear from our witnesses today, I think it would also be 
interesting to know whether they agree with Bill Clinton's definition 
of ``high Crimes and Misdemeanors'' when he was a law professor. He 
said then:
          I think that 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 that I think constitutes an impeachable offense would be 
        willful, reckless behavior in office. . . .
    President Clinton's conduct in office raises several grave 
questions. Did the president lie under oath in a court of law? Did he 
stand in the way of the judicial process? Did he abuse the powers of 
his public office? Did the president violate his public trust? Did he 
violate the Constitution and his oath of office? These are the 
questions that go to the heart of a government of laws, not persons.
    My constituents often remind me that if any business executive, 
military officer, professional educator, or anyone in a position of 
authority had acted as President Clinton may have, their career would 
be over. So a question that needs to be addressed today is, Should the 
president be held to a lesser standard?

    [The prepared statement of Mr. Cannon follows:]
   Prepared Statement of Christopher B. Cannon, a Representative in 
                    Congress From the State of Utah
    Mr. Chairman, as a member of the Full Committee, I am honored to 
have the chance to participate in this critical hearing today.
    For most of this year our nation has struggled with fashioning a 
proper response to President Clinton's improper conduct with Monica 
Lewinsky and the actions spawned by that relationship. With the 
launching of an impeachment inquiry by the House, we are now faced with 
determining whether or not Mr. Clinton's conduct is impeachable. 
Today's hearing is an important step towards resolving that question.
    On review of the testimony put forth by today's distinguished 
panel, it is clear that our panelists span the range of views 
concerning the meaning and application of the Constitution's critical 
term of ``Treason, Bribery, or other high Crimes and Misdemeanors.''
    My own views, going into today's hearing, are close to those of 
Professor Presser in that I believe the Founders saw impeachment as a 
tool to protect the fundamental integrity of our political system. In 
the current instance, I believe that President Clinton's moral 
authority has been crippled. We, as a Congress, have a duty to either 
restore his moral authority by some form of vindication or to remove 
him from office. Maintaining the public integrity of our political 
system will tolerate no less.
    But, today, I am willing to set my personal views aside (perhaps 
not totally) and listen.
    Thank you, Mr. Chairman.

    Mr. Canady. We will now go to our first panel of witnesses. 
You have been waiting patiently.
    The first witness on our first panel will be Gary L. 
McDowell, who is director of the Institute for United States 
Studies at the University of London. He is a Royal Historical 
Society Fellow and a Royal Society of Arts Fellow. Dr. McDowell 
teaches in the areas of American constitutional law and the 
judicial process and American government. Dr. McDowell has 
published numerous works on the Constitution and American 
government, including the books, Friends of the Constitution; 
Writings of the ``Other'' Federalists and Our Peculiar 
Security; Essays on the Written Constitution.
    Next we will hear from Michael J. Gerhardt, who currently 
teaches at the College of William & Mary School of Law. 
Professor Gerhardt was the Dean of Case Western Reserve 
University Law School from 1996 to 1997, and also taught at 
Cornell Law School from 1994 to 1995. He has published numerous 
works on the Constitution and impeachment, including a book 
entitled The Federal Impeachment Process: A Constitutional and 
Historical Analysis.
    We will also hear from Matthew Holden, Jr., who is the 
Henry L. and Grace M. Doherty Professor of Government and 
Foreign Affairs at the University of Virginia. He is the author 
of such books as The Divisible Republic; Varieties of Political 
Conservatism; and Continuity and Disruptions: Essays in Public 
Administration.
    Next we hear from John C. Harrison, who is associate 
professor of law at the University of Virginia Law School. 
Professor Harrison started his tenure at the University of 
Virginia in 1993 after working as Deputy Assistant Attorney 
General in the Department of Justice's Office of Legal Counsel. 
Professor Harrison currently teaches in the areas of 
administrative law, constitutional law and Federal courts. He 
was appointed by President Bush to the National Commission on 
Judicial Discipline and Removal.
    Next we hear from Cass Sunstein, who is Karl Llewellyn 
Professor of Jurisprudence at the University of Chicago School 
of Law. He is the author of After the Rights Revolution; 
Reconceiving the Regulatory State: The Partial Constitution 
Democracy and the Problem of Free Speech; and co-author of 
Constitution Law: Cases and Commentary. Professor Sunstein has 
served as the vice chair of the American Bar Association 
Committee on Separation of Powers and Government Organizations.
    Next we hear from Richard D. Parker, who is Williams 
Professor of Law at Harvard University Law School. Professor 
Parker has published numerous works on the Constitution, 
including the law review article, ``The Past of Constitutional 
Theory and Its Future,'' and the book, Here the People Rule: A 
Constitutional Populist Manifesto. Professor Parker's current 
research involves the politics of the contemporary practice of 
argument about constitutional law.
    Next we hear from the distinguished historian Arthur M. 
Schlesinger, Jr., professor of history at the City University 
of New York. Professor Schlesinger worked as an aide in the 
Kennedy administration and has written numerous books on race 
relations and gender issues in the United States. Professor 
Schlesinger has also written extensively on the Constitution 
and American Government. His works include, Coming of the New 
Deal; The Cycles of American History; Robert Kennedy and His 
Times; and The Disuniting of America: Reflections on a 
Multicultural Society.
    Next we hear from John O. McGinnis, professor at Yeshiva 
University Cardozo School of Law, who has been at Cardozo since 
1991. In 1987, Professor McGinnis was appointed Deputy 
Assistant Attorney General at the Department of Justice's 
Office of Legal Counsel. Professor McGinnis has written 
numerous law review articles on a wide array of subjects, and 
has previously testified before the Senate Judiciary Committee 
regarding the impeachment of Federal judges.
    Father Robert Drinan is our next witness. Father Drinan is 
a professor of law at Georgetown University Law Center. He 
served in the United States Congress as a Representative from 
Massachusetts, where he was Chair of the Subcommittee on 
Criminal Justice of the House Judiciary Committee during the 
Watergate impeachment inquiry. He currently teaches courses in 
the areas of constitutional law, civil liberties and 
legislation.
    The final witness on our first panel will be Stephen B. 
Presser, who is the Raoul Berger Professor of Legal History at 
the Northwestern University School of Law. Professor Presser 
holds a joint appointment with the J.L. Kellogg Graduate School 
of Management and also teaches in Northwestern's Department of 
History. Professor Presser has published numerous books on the 
area of constitutional law, including: Law and Jurisprudence in 
American History: Cases and Materials; Recapturing the 
Constitution: Race, Religion and Abortion Reconsidered; and The 
Original Misunderstanding: The English, the Americans, and the 
Dialectic of Federalist Jurisprudence.
    Without objection, the full written statements of each of 
the witnesses will be made a part of the record. Each witness 
on this panel will be recognized for 10 minutes. I would ask 
that in light of our time constraints today, that you please 
observe the light. I hope everyone can see the light. When the 
yellow light is illuminated, that means that you have only a 
minute left, so you should begin concluding your remarks.
    It is the custom of the subcommittee to ordinarily 
recognize the witnesses for 5 minutes. We have expanded that to 
10 minutes, but we will ask you to confine yourself to the 10 
minutes allotted, and I will note that the use of the full 10 
minutes is not mandatory.
    Ms. Jackson Lee. Mr. Chairman?
    Mr. Canady. The gentlelady from Texas is recognized. The 
gentlelady is not a member of the subcommittee. This is a 
subcommittee hearing.
    Ms. Jackson Lee. I thank you for your indulgence. It is 
just a point of information. I do recognize that, and I want to 
thank the Chairman and the Ranking Member for allowing us to be 
present, and I assume that you indicated our statements would 
be included for the record. Will there be an opportunity for 
the nonmembers of this subcommittee to ask questions?
    Mr. Canady. I thank the gentlelady, and she has anticipated 
the statement that I was about to make.
    At the conclusion of the testimony by the witnesses on this 
panel, each member of the subcommittee will be recognized for 
10 minutes for the purpose of asking questions. During that 
period, members of the subcommittee may yield a portion or all 
of their time to other members of the Judiciary Committee who 
wish to ask questions. This is a procedure that we have, as you 
know, followed in the past in the subcommittee. It has been our 
consistent procedure when other members of the Judiciary 
Committee wished to participate in the proceedings.
    We believe that the arrangements that we have set forth for 
today will give everyone the flexibility that we need so that 
we can move forward with the hearing expeditiously. Mr. Scott 
has been informed about the intentions of the Chair in this 
regard.
    Ms. Jackson Lee. Thank you very much, Mr. Chairman.
    Mr. Canady. With that, we will now begin the testimony of 
this panel with Professor McDowell.

 STATEMENT OF GARY L. McDOWELL, DIRECTOR, INSTITUTE FOR UNITED 
              STATES STUDIES, UNIVERSITY OF LONDON

    Mr. McDowell. Mr. Chairman, Ranking Member, members of the 
subcommittee, it is a privilege to be with you today to discuss 
the important issues raised by the background and history of 
impeachment.
    I begin by stating the obvious: Under the logic of our 
written Constitution of enumerated and limited powers, it is 
inconceivable that the sole power of impeachment is given to 
the House of Representatives without restraint. As a result, 
the most important question to this committee is the meaning of 
``high Crimes and Misdemeanors.'' Those words were not 
mindlessly crafted or chosen because they could be endlessly 
manipulated. Rather, they constituted one of ``those 
expressions that were most easy to be understood and least 
equivocal in their meaning.'' Their constant use in numerous 
impeachments stretches back to 1386.
    Thus, there is an obligation to determine exactly what 
``high Crimes and Misdemeanors'' meant to those who framed and 
ratified our Constitution because the ascertainable content of 
that phrase, as Raoul Berger has pointed out, furnishes the 
boundaries of power. What was clear to the Founders has become 
less so to the current generation.
    This confusion was best expressed by Gerald Ford's 
insistence that ``an impeachable offense is whatever a majority 
of the House of Representatives considers it to be at a given 
moment to history.'' This is simply not true. To adopt such an 
understanding, as Joseph Story said, would be to grant Congress 
an arbitrary discretion incompatible with the genius of our 
institutions. It would create an absolute despotism of opinion 
and practice which might make that a crime at one time or in 
one person which would be deemed innocent at another time.
    Impeachment is not to be initiated simply for any reason 
that might occur to this distinguished House, but only for 
``Treason, Bribery or other high Crimes and Misdemeanors.'' It 
is important to remember that the word ``high'' in ``high 
Crimes and Misdemeanors'' was used to emphasize that it was a 
crime or misdemeanor against the commonwealth. The objects of 
impeachment, Alexander Hamilton explained, ``are those 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 the injuries 
done immediately to society itself.''
    The problem is that such political offenses are of too 
various and complex a character to admit of a simple list. But 
rather than mere arbitrary discretion, the Founders assumed 
that the common law would be used to determine if particular 
political abuses might rise to the level of ``high Crimes and 
Misdemeanors.'' In their view, the common law did not create 
new powers not granted by the Constitution, but it was an 
indispensable ``guide and check and expositor in the 
administration of the rights, duties and jurisdiction conferred 
by the Constitution and law.''
    A survey of the common law authorities to whom the Founders 
looked for guidance, such as Sir William Blackstone, indicates 
that such crimes against public justice as ``obstructing the 
execution of lawful process'' and ``willful and corrupt 
perjury'' would have been understood by the Founders as 
constituting ``high Crimes and Misdemeanors'' as that phrase 
was used in the Constitution. Of all of the major common law 
writers, they saw perjury as one of the most serious offenses 
against the commonwealth.
    It is widely cited. In A Treatise on the Pleas of the Crown 
of 1716, William Hawkins included perjury and subornation of 
perjury among those offenses that were, in his words, 
``infamous and grossly scandalous, proceeding from principles 
of downright dishonesty, malice or faction.'' Indeed, 
``perjury,'' he said ``is of all crimes whatsoever the most 
infamous and detestable.''
    Samuel Pufendorf, another authority for the founding 
generation, put it even more strikingly. ``Perjury,'' he says, 
``appears to be a most monsterous sin, inasmuch as by it the 
foresworn wretch shows that he at the same time condemns the 
divine and yet is afraid of human punishment; that he is a 
daring villain towards God, and a sneaking coward towards 
men.''
    William Paley, another influential writer, took a similar 
view, seeing the issue of oaths and perjury as one of morality 
as well as law. In his view, the entire question of perjury 
rested on the definition of a lie. ``A lie,'' said Paley, ``is 
a breach of promise: for whoever seriously addresses his 
discourse to another, tacitly promises to speak the truth, 
because he knows that the truth is expected.''
    Because a witness swears that he will ``speak the truth, 
the whole truth and nothing but the truth,'' a person under 
oath cannot cleverly lie and not commit perjury. If the witness 
conceals any truth, Paley writes, that relates to the matter in 
adjudication, that ``is as much a violation of the oath, as to 
testify a positive falsehood.'' It is no excuse for the witness 
to say he was not forthcoming ``because it was never asked of 
me.'' An oath obliges to tell all one knows, whether asked or 
not.
    Nor, said Paley, can a witness be excused on ``a point of 
honor, of delicacy, or of reputation'' that might make him 
reluctant to disclose some circumstance with which he is 
acquainted. Shame or embarrassment cannot ``justify his 
concealment of truth, unless it could be shown, that the law 
which imposes the oath, intended to allow this indulgence to 
such motives.''
    Similarly, linguistic contortions with the words used 
cannot legitimately conceal a lie or, if under oath, perjury. 
Said Paley, ``As there may be falsehoods which are not lies, so 
there may be lies without literal or direct falsehood. An 
opening is always left for this species of prevarication, when 
the literal and grammatically signification of a sentence is 
different from the popular and customary meanings. It is the 
willful deceit that makes the lie; and we willfully deceive, 
where our expressions are not true in the sense in which we 
believe the hearer apprehends them. Besides,'' he concluded, 
``it is absurd to contend for any sense of words, in opposition 
to usage, for all senses of words are founded upon usage, and 
upon nothing else.''
    The moral and legal inheritance of the founding generation 
saw the violation of an oath, in Algernon Sidney's words, ``as 
nothing less than treachery.'' Based on a review of the 
historical record, the expressed intent of the framers, the 
voting of the Constitution, the writings of the principal legal 
authorities known to the framers, and the common law, the 
conclusion is inescapable that perjury and subornation of 
perjury must certainly be included as ``high Crimes and 
Misdemeanors'' and thus impeachable offenses under the United 
States Constitution.
    Further, the record fails to support the claim that 
impeachable offenses are limited to only those abuses that 
occur in the official exercise of executive power. As seen in 
the authorities, impeachable offenses, in both English and 
American history, have been understood to extend to, and I 
quote, ``personal misconduct, violations of trust, and 
immorality and imbecility,'' among other charges of a more 
private nature. Thus, perjury to conceal private misconduct is 
still perjury.
    The Founders' success in creating the impeachment power to 
be both politically effective and safe to republican government 
is reflected in the few instances of its use. Lord Bryce 
described the power of impeachment over a century ago as ``the 
heaviest piece of artillery in the congressional arsenal,'' and 
thus ``unfit for ordinary use.'' The constitutional provisions 
for impeachment were designed to prevent the President from 
being driven from office for mere partisan reasons. To get rid 
of a president, or to try to, Congress has to have good cause. 
As Bryce said, one does not use impeachment for light and 
transient reasons, ``as one does not use steam hammers to crack 
nuts.''
    In light of the Founders' concern that the President not be 
subjected to political molestation by Congress, it cannot be 
emphasized too strongly that impeachment is the only means 
granted to Congress to censure the President. It is either 
impeachment or nothing. Thus, the current suggestion that 
Congress might censure the President is to assume a power not 
given by our Constitution.
    The only precedent for a presidential censure came during 
the administration of Andrew Jackson. Jackson rejected the idea 
out of hand as ``wholly unauthorized by the Constitution and in 
derogation of its entire spirit.'' Censure, he said, would be 
``subversive of that distribution of the powers of government 
which the Constitution has ordained and established, and 
destructive of the checks and safeguards by which those powers 
were intended on the one hand to be controlled and on the other 
to be protected.''
    Jackson's logic was, as Arthur Schlesinger has rightly 
noted, simply unassailable. In short, censure would be a 
coward's way out, both for those in Congress who might suggest 
it and any President who would accept it. Impeachment is the 
only legitimate constitutional punishment available, and 
neither the President nor the American people should accept 
anything else.
    You gather here to consider whether to exercise what 
Hamilton called the ``awful discretion'' of the impeachment 
process. In the end, the determination of whether presidential 
misconduct rises to the level of ``high Crimes and 
Misdemeanors'' is left to the discretion and deliberation of 
this distinguished House.
    No small part of that deliberation, guided as it must be by 
the history and meaning of ``high Crimes and Misdemeanors,'' 
must weigh what effect the exercise of this extraordinary 
constitutional sanction would have on the health of the 
Republic, as against the necessity of making clear that in 
America no one, not even a popular President, is above the law. 
In the end, that is what matters most, and that is what must 
bear most heavily on the Members of this House as you consider 
what you must do in the weeks ahead. What you decide here, one 
way or the other, will echo through our history.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. McDowell follows:]
Prepared Statement of Gary L. McDowell, Director, Institute for United 
                  States Studies, University of London
`` `high crimes and misdemeanors' '': recovering the intentions of the 
                                founders
Introduction
    The most interesting and important question involved in the 
constitutional process of impeachment is the meaning of high Crimes and 
Misdemeanors'' as that was understood by those who framed and ratified 
the Constitution. What follows is an effort to shed some light on that 
original meaning and thereby to provide some guidance to those who must 
determine if, in the instant case, the president of the United States 
has committed impeachable offences as that phrase might have been 
understood by the founders.
    The importance of attempting to answer this question of the 
founders' original intention in creating the impeachment provisions as 
they did has been underscored by the recent open letter from a 
scholarly coalition calling itself ``Historians in Defense of the 
Constitution.'' In that letter the historians correctly point out that 
the impeachment of any president is ``a grave and momentous step''; but 
they also insist that the current inquiry is not simply grave and 
momentous but ``ominous''--an effort to remove this president by a 
``novel'' and ``unprecedented'' theory of impeachment.
    The threat posed by this ``dangerous new theory of impeachment,'' 
the signatories to the open letter insist, is that it will undermine 
the basic constitutional principle of separated powers and its 
attendant system of checks and balances that truly is our ``chief 
safeguard against abuses of public powers.'' This new view of the 
impeachment power, they argue, is the result of abandoning the 
intentions of the founders who ``explicitly reserved [impeachment] for 
high crimes and misdemeanors in the exercise of executive power.'' The 
crux of the argument is this: ``Impeachment for anything else would, 
according to James Madison, leave the president to serve `during 
pleasure of the Senate.' '' \1\
---------------------------------------------------------------------------
    \1\ It is not at all clear that the historians have given an 
accurate glimpse of Madison's view on this matter. His fear that the 
president could find himself reduced to serving merely ``during 
pleasure of the Senate'' derived from the fact that he thought George 
Mason's suggested term ``maladministration'' was too ``vague.'' It does 
not follow from that concern that Madison demanded that impeachment be 
``explicitly reserved . . . for high crimes and misdemeanors in the 
exercise of executive power.'' Madison never spoke to this issue and 
none of his statements on impeachment and the standards for 
impeachability seem to suggest that he was inclined to limit 
impeachment to simply abuses in the exercise of executive power. See 
Max Farrand, ed., Records of the Federal Convention of 1787, 4 vols. 
(New Haven: Yale University Press, 1936), II:550.
---------------------------------------------------------------------------
    Such serious charges by so many distinguished historians demand a 
careful consideration of what the founders meant by ``high Crimes and 
Misdemeanors'': Were they only indictable crimes or did they include 
what one of the framers called ``political crimes and misdemeanors''? 
Were they offences that would be committed by a president only in ``the 
exercise of executive power'' or would they also include malfeasance 
committed by a president in his private capacity? Were they subject to 
a reasonably fixed meaning or were they to be determined simply by the 
exercise of the ``awful discretion'' of those in Congress called upon 
to impeach and to try impeachments? If it is true that this new theory 
of impeachment will indeed ``leave the presidency permanently 
disfigured and diminished [and] at the mercy as never before of the 
caprices of any Congress,'' then a return to the proper understanding 
of the founders' intentions will avert nothing less than a 
constitutional catastrophe.\2\
---------------------------------------------------------------------------
    \2\ Philip B. Kurland, writing in the constitutional shadows cast 
by Watergate, argued that in seeking to ``rely on the words of the 
Constitution, their purpose and function, and their history, both 
before and after their inclusion in the basic document'' it is 
essential that ``we look not merely to the words of the document, but 
to what those words meant to those who wrote them, to the function that 
they were intended to serve, to the history of their use before, 
during, and after the composition.'' Watergate and the Constitution 
(Chicago: University of Chicago Press, 1978), pp.105; 107-108.
---------------------------------------------------------------------------
Impeachment and Republican Government
    The Constitution's grant to the House of Representatives of ``the 
sole power of impeachment'' was understood by those who framed and 
ratified that fundamental law to be one of enormous significance for 
the republican form of government they were creating.\3\ They knew that 
some means of ``displacing an unfit magistrate [was] rendered 
indispensable by the fallibility of those who choose, as well as the 
corruptibility of the man chosen.'' On the other hand, they were keenly 
aware of the danger of any process that would make the president ``the 
mere creature of the legislature.'' Such an arrangement would 
constitute nothing less than ``a violation of the fundamental principle 
of good government.'' \4\
---------------------------------------------------------------------------
    \3\ Article I, sec. 2, c. 5. It cannot be emphasized too strongly 
that impeachment is the only means granted to the Congress to censure 
or to punish what Arthur M. Schlesinger, Jr. has called ``presidential 
delinquency.''
    The current suggestion that Congress might opt for a censure of the 
president is to grant to this body a power not given by the 
Constitution. Moreover, a mere declaration of censure would be nothing 
more than a ``slap-on-the-wrist approach'' to the problem. See Arthur 
M. Schlesinger, Jr., The Imperial Presidency (Boston: Houghton Mifflin 
Co., 1973), pp. 411-412. A motion of censure that would seek more, such 
as a fine as punishment, would be strictly unconstitutional because it 
would be a ``bill of attainder,'' a legislative power to punish that is 
clearly prohibited by the Constitution, Article I, Sec. 9.
    The only precedent for a presidential censure from Congress came 
during the administration of Andrew Jackson in the midst of a political 
battle over the Bank of the United States. The argument was a classic 
separation of powers conflict with Congress asserting that it had the 
power to control the Secretary of the Treasury when it came to 
administering the bank and Jackson insisting that under the 
constitutional design for a unitary executive such powers were 
exclusively those of the president. In a fit of pique Congress voted to 
``censure'' Jackson; he responded with a ``protest'' defending his 
theory of the office.
    The censure was nothing more than a resolution of congressional 
displeasure with no real effect. Jackson stood up to his political foes 
in his protest arguing that the resolution voted by the Senate was 
``wholly unauthorized by the Constitution and in derogation of its 
entire spirit.'' Should a president submit to such an action, the power 
of the presidency would be undermined and, in effect, transferred to 
the Senate. The very idea of a censure was ``subversive of that 
distribution of the powers of government which [the Constitution] has 
ordained and established, [and] destructive of the checks and 
safeguards by which those powers were intended on the one hand to be 
controlled and on the other to be protected.'' As reprinted in James M. 
Smith and Paul L. Murphy, eds., Liberty and Justice, 2 vols. (New York: 
Knopf, 1965), I:153-55.
    This notion of ``censure as a halfway house on the road to 
impeachment'' was by Jackson shown to make ``little sense, 
constitutional or otherwise.'' Jackson's logic was ``unassailable''. As 
Professor Schlesinger put it: ``The continuation of a lawbreaker as 
chief magistrate would be a strange way to exemplify law and order at 
home or to demonstrate American probity before the world.'' When it 
comes to serious presidential wrongdoing, it is either impeachment or 
nothing. Schlesinger, The Imperial Presidency, pp. 33; 412.
    \4\ George Mason, 2 June 1787, in Farrand, ed., Records, I:86. 
James Wilson summed up the problem best in his law lectures: ``The 
doctrine of impeachments is of high import in the constitutions of free 
states. On the one hand, the most powerful magistrates should be 
amenable to the law: on the other hand, elevated characters should not 
be sacrificed merely on account of their elevation. No one should be 
secure while he violates the constitution and the laws: everyone should 
be secure while he observes them.'' Robert Green McCloskey, The Works 
of James Wilson, 2 vols. (Cambridge: Harvard University Press, 1967), 
I:425.
---------------------------------------------------------------------------
    It was essential that the arrangements for impeachment be able to 
resist, as far as possible, introducing the ``malignity of party'' into 
this most serious of constitutional processes.\5\ The dangers were so 
severe that Thomas Jefferson remained convinced that impeachment 
constituted ``the most formidable weapon for the purposes of dominant 
faction that ever was contrived.'' \6\ The deepest problems facing 
those who undertook to create within the Constitution the means of 
dealing with delinquency in high office stemmed from the very nature of 
impeachment. As James Wilson would later put it, in the United States 
``impeachments are confined to political characters, to political 
crimes and misdemeanors, and to political punishments.'' \7\
---------------------------------------------------------------------------
    \5\ James Iredell, in Jonathan Elliot, ed., Debates in the Several 
State Conventions on the Adoption of the Federal Constitution as 
Recommended by the General Convention at Philadelphia, 5 vols., 
(Philadelphia: J.B. Lippincott & Co., 1876), IV:127.
    \6\ Thomas Jefferson to James Madison, 8 February 1798, in The 
Writings of Thomas Jefferson, Andrew A. Lipscomb and Albert E. Bergh, 
eds., 20 vols. (Washington, D.C.: Thomas Jefferson Memorial 
Association, 1904-1905), IX:440.
    \7\ McCloskey, ed., The Works of James Wilson, I:426.
---------------------------------------------------------------------------
    Because impeachment is designed to address ``the misconduct of 
public men'' and their possible ``abuse or violation of some public 
trust'' it is inevitable that any impeachment proceeding, especially 
one that involves the president of the United States, will suffer the 
propensity to degenerate into the lowest impulses of party and faction. 
Such proceedings, said Alexander Hamilton, ``will seldom fail to 
agitate the passions of the whole community, and to divide it into 
parties, more or less friendly or inimical, to the accused.'' As a 
result, there will always be the danger that ``the decision will be 
regulated more by the comparative strength of parties than by the real 
demonstrations of innocence or guilt.'' \8\
---------------------------------------------------------------------------
    \8\ The Federalist, No. 65, in Jacob E. Cook, ed., The Federalist 
(Middletown: Wesleyan University Press, 1961), pp. 439-40.
---------------------------------------------------------------------------
    The primary way in which the founders sought to tame the unruly 
political passions that would likely be unleashed by an impeachment was 
to divide the process between the two great houses of the legislature, 
so that as the House was given the sole power to impeach, the Senate 
was given ``the sole power to try all impeachments.'' \9\ It was deemed 
by the founders that the Senate, constituted as it was, would be the 
safest repository for the ``awful discretion'' that would have to be 
exercised by the court trying impeachments, the power ``to doom to 
honor or to infamy the most confidential and the most distinguished 
characters of the community.'' \10\
---------------------------------------------------------------------------
    \9\ Article I, sec. 3, c. 6.
    \10\ The Federalist, No. 65, pp. 441-42.
---------------------------------------------------------------------------
    There was no doubt, however, that the House, in exercising its 
power to impeach, would be called upon to exercise a discretion no less 
awful than that consigned to the Senate in trying an impeachment. For 
to be impeached by the House, even if not convicted and removed by the 
Senate, would constitute an ``indelible reproach'' on the character of 
the person in question, and doom him to ``infamy'' if not to 
``perpetual ostracism from the esteem and confidence, and honors and 
emoluments of his country.'' \11\ Thus was the terrible power to 
impeach not given without the restrictions deemed necessary to 
reconcile it with the demands of the separation of powers and the 
republican form of government.
---------------------------------------------------------------------------
    \11\ The Federalist, No. 63, p. 425; The Federalist, No. 65, p. 
442.
---------------------------------------------------------------------------
    There is no doubt that when the Americans turned their attention to 
fashioning procedures for impeachment that they had the history of 
Great Britain in mind.\12\ Yet in the instance of impeachment as in so 
many other things, the founders often saw such historical examples as 
furnishing ``no other light than that of beacons, which give warning of 
the course to be shunned, without pointing out that which ought to be 
pursued.'' \13\ While they were willing to borrow from Britain the 
notion that the lower house ought to ``prefer the impeachment'' while 
the upper house would ``decide upon it,'' there was little else from 
British experience that made its way into the provisions in the 
Constitution. The reason was, as Jefferson noted, that ``history shows 
that in England impeachment has been an engine more of passion than of 
justice.'' \14\ The one other exception, as will be seen below, was the 
adoption of the phrase ``high Crimes and Misdemeanors'' in setting a 
standard for impeachable offences.
---------------------------------------------------------------------------
    \12\ Alexander Hamilton is explicit in stating the debt to England 
in The Federalist, No. 65, p. 440. See also Raoul Berger, Impeachment: 
The Constitutional Problems (Cambridge: Harvard University Press, 
1974), passim.
    \13\ The Federalist, No. 37, p. 233.
    \14\As quoted in Berger, Impeachment, p. 79, n. 130.
---------------------------------------------------------------------------
    Unlike impeachment in Britain, the Americans restricted the reach 
of the power to ``civil officers'' thus excluding private citizens; 
made clear it would not be a criminal process but a political one that 
did not demand a trial by jury or permit a presidential pardon; 
emphasized that impeachment was no bar to further prosecutions in the 
ordinary courts for criminal actions; and established that punishment 
would extend no further than removal from office and disqualification 
from holding office again. By the time of the Federal Convention it was 
clear that American thinking about impeachment had shifted ``from the 
orbit of English precedent to a native republican course.'' The 
provisions that finally were adopted ``reflected indigenous experience 
and revolutionary tenets instead of English tradition.'' \15\ 
Impeachment was rendered, to borrow a phrase from James Madison, ``a 
Republican remedy for the diseases most incident to Republican 
Government.'' \16\
---------------------------------------------------------------------------
    \15\ Peter Charles Hoffer and N. E. H. Hull, Impeachment in 
America, 1635-1805 (New Haven: Yale University Press, 1984), p. xi.
    \16\ The Federalist, No. 10, p. 65.
---------------------------------------------------------------------------
    The most important restriction placed on the power to impeach was 
the catalogue of the offences listed in the Constitution: ``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.'' \17\ These 
words were not mindlessly crafted or chosen because the founders 
thought they were vague and open to endless interpretation. Rather in 
this, as in all the other provisions of the Constitution, the founders 
sought to be precise and limiting in the powers granted. As Rufus King 
recalled, ``it was the intention and honest desire of the Convention to 
use those expressions that were most easy to be understood and least 
equivocal in their meaning.''\18\ The reason for this was rooted in the 
founding generation's firm belief that a written constitution was 
essential to free, republican government.
---------------------------------------------------------------------------
    \17\ Article II, Sec. 4.
    \18\ Rufus King in the Massachusetts Convention, 24 January 1788, 
in Farrand, ed. Records, III:268.
---------------------------------------------------------------------------
            The Necessity of Recurring to the Interactions of the 
                    Founders
    Early in the Revolutionary period a consensus began to emerge among 
American political leaders that ``in all free States the Constitution 
is fixed'' and that ``vague and uncertain laws, and more especially 
constitutions, are the very instruments of slavery.'' \19\ Experience 
had taught the colonists the harsh lesson that governors without 
restraint could make ``mere humour and caprice'' the most fundamental 
``rule and measure'' of the administration of political power. 
Protection lay in maintaining the ``essential distinction'' between a 
``civil constitution,'' which was fundamental, and the form of 
government and the exercise of its powers, which was not.\20\
---------------------------------------------------------------------------
    \19\ This section draws upon Gary L. McDowell, ``The Language of 
Law and the Foundations of American Constitutionalism,'' The William 
and Mary Quarterly (July 1998).
    \20\  20 Samuel Adams, ``Massachusetts House of Representatives to 
the Speakers of Other Houses of Representatives, February 11, 1768,'' 
in Henry Alonzo Cushing, ed., The Writings of Samuel Adams, 4 vols. 
(New York: G. P. Putnam's Sons,1904-1908), I:185; Jonathan Mayhew, A 
Discourse Concerning Unlimited Submission and Nonresistance to the 
Higher Powers (Boston, 1750), reprinted in Bernard Bailyn, ed., 
Pamphlets of the American Revolution, (Cambridge: Harvard University 
Press, 1965), 241; 242; Berkshire's Grievances (Pittsfield, 1778), in 
Charles S. Hyneman and Donald S. Lutz, eds., American Political Writing 
during the Founding Era, 1760-1805, 2 vols. (Indianapolis: Liberty 
Fund, 1983), I:455461, 457; Daniel Shute, An Election Sermon (Boston, 
1768), in American Political Writing, I:109-136, p.117. In the same 
collection, see also Four Letters on Interesting Subjects, I:368-389, 
385; and Philodemus [Thomas Tudor Tucker], Conciliatory Hints, 
Attempting, by a Fair State of Matters, to Remove Party Prejudice 
(Charleston, 1784), 1:606-630, 627.
---------------------------------------------------------------------------
    As Americans moved closer to the call for Independence, their 
thinking about constitutions hardened. A constitution to be deemed 
fundamental had to be able to ``survive the rude storms of time'' and 
to remain constant, ``however . . . circumstances may vary.'' \21\ The 
most likely way to achieve such permanence was to embody the 
constitution in a ``written charter.'' \22\ And for such charters to 
serve as a brake on government, it was further necessary that they be 
``plain and intelligible--such as common capacities are able to 
comprehend, and determine when and how far they are, at any time 
departed from.'' \23\ Constitution draftsmen should take care that not 
a single point . . . be subject to the least ambiguity.'' \24\ Such a 
``fixt'' constitution was the only means whereby the people could 
safely make their way between ``the arbitrary claims of rulers, on one 
hand,'' and their own ``lawless license, on the other.\25\
---------------------------------------------------------------------------
    \21\ [Theophilus Parsons], The Essex Result (Newburyport, 1778), 
American Political Writing, I:480-522, 491. See also Rudiments of Law 
and Government Deduced from the Law of Nature (Charleston, 1783), 
American Political Writing, I:565-605, 567.
    \22\ Four Letters on Interesting Subjects, American Political 
Writing, I:382.
    \23\ Gad Hitchcock, An Election Sermon (Boston, 1774), American 
Political Writing, I:281-304, 294. This same point was stressed 
repeatedly. See Rudiments of Law and Government Deduced from the Law of 
Nature (Charleston, 1784), American Political Writing, I:588-89; and 
John Tucker, An Election Sermon (Boston, 1771), American Political 
Writing, I:158-174, p. 164.
    \24\ Thomas Jefferson, ``Albemarle County Instructions Concerning 
the Virginia Constitution,'' The Papers of Thomas Jefferson, Julian P. 
Boyd, ed., 25 vols. to date (Princeton: Princeton University Press, 
1950 - ), VI:286.
    \25\ Tucker, Election Sermon, American Political Writing, I:168; 
169.
---------------------------------------------------------------------------
    In 1787, the framers thus sought to craft the new constitution 
carefully, pulling their words from sources they believed clear and 
common. They endeavored ``to form a fundamental constitution, to commit 
it to writing, and place it among their archives, where everyone could 
be free to appeal to its text.'' They understood that language is the 
essence of law and that law is the essence of liberty. At the most 
basic level, there would be neither place nor need in such a 
constitution, as Joseph Story would later point out, for ``metaphysical 
or logical subtleties.'' \26\ A written and ratified constitution of 
enumerated and limited powers was to be understood to be the 
``fundamental law,'' the embodiment of ``the intention of the people.'' 
\27\
---------------------------------------------------------------------------
    \26\ Thomas Jefferson to John Cartwright, 5 June 1824, in Lipscomb 
and Bergh, eds., The Writings of Thomas Jefferson, XVI:45-46; Joseph 
Story, Commentaries on the Constitution of the United States, 3 vols., 
(Boston: Hilliard, Gray and Co., 1833), Sec. 451, I:436.
    \27\ The Federalist, No. 78, p. 525.
---------------------------------------------------------------------------
    John Marshall spoke the sense of his generation of founders when he 
insisted that a written constitution was nothing less than ``the 
greatest improvement on political institutions.'' Those who framed such 
constitutions took them seriously as ``the fundamental and paramount 
law of the nation,'' the foundation of all governmental powers 
delegated by the people by which those powers would be ``defined and 
limited.'' Constitutions are written, Marshall argued, so ``that those 
limits may not be mistaken, or forgotten.'' \28\ Such was the logic of 
his generation that Marshall could presume that anything the people 
intended to include in their Constitution ``they would have declared . 
. . in plain and intelligible language.'' \29\ Thus was the logic of 
the founders that the most fundamental rule of interpretation was to 
determine the intention of the lawgiver.\30\
---------------------------------------------------------------------------
    \28\ As he sketched it: ``That the people have an original right to 
establish, for their future government, such principles as, in their 
opinion, shall most conduce to their own happiness is the basis on 
which the whole American fabric had been erected. The exercise of this 
original right is a very great exertion; nor can it, nor ought it, to 
be frequently repeated. The principles, therefore, so established, are 
deemed fundamental. And as the authority from which they proceed is 
supreme, and can seldom act, they are designed to be permanent.'' 
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), 178; 176; 176-77.
    \29\ Barron v. Baltimore, 32 U.S. (7 Peters) 243 (1833), 250.
    \30\ In his pseudonymous defense of his opinion in McCulloch v. 
Maryland, Marshall was blunt: ``The object of language is to 
communicate the intention of him who speaks, and the great duty of a 
judge who construes an instrument, is to find the intention of its 
makers.'' Gerald Gunther, ed., John Marshall's Defense of McCulloch v. 
Maryland (Stanford: Stanford University Press, 1969), pp. 168-69.
---------------------------------------------------------------------------
    The evolution in the Federal Convention of the constitutional text 
that would eventually mark out what would constitute impeachable 
offences began at the outset when the Virginia Plan was presented on 
May 29 by Edmund Randolph and included the proposal that a national 
judiciary be empowered, among other things, to deal with ``impeachments 
of any national officers.'' \31\ The issue was considered again on June 
2 when John Dickinson proposed that ``the Executive be made removable 
by the National Legislature on the request of a majority of the 
Legislatures of individual States.'' \32\ After some discussion, Hugh 
Williamson of North Carolina moved that there be inserted in the 
emerging text the provision that the chief magistrate ``be removable on 
impeachment & conviction of mal-practice or neglect of duty.'' \33\ On 
June 18 Alexander Hamilton added to the discussion his view that ``the 
Governour [,] Senators and all officers of the United States [should] 
be liable to impeachment for mal- and corrupt conduct; and upon 
conviction to be removed from office & disqualified for holding any 
place of trust or profit.'' \34\ The most substantive discussions on 
impeachment occurred on July 19 and 20. By this time the mix of 
possible impeachable offences had come to include ``corruption,'' 
schemes of ``peculation or oppression,'' ``loss of capacity,'' 
``malversation,'' ``bribery,'' ``treachery,'' ``corrupting his 
electors,'' ``negligence,'' and ``perfidy.'' The resolution that ``the 
Executive be removable on impeachments'' carried eight votes to 
two.\35\ Through all the discussion the primary concern was where to 
lodge the power to try impeachments; there seemed a general sense of 
what would constitute impeachable offences.
---------------------------------------------------------------------------
    \31\ Farrand, ed., Records, I:22.
    \32\ Ibid., I:85.
    \33\ Ibid., I:88.
    \34\ Ibid., I:292.
    \35\ Ibid., II:51-70.
---------------------------------------------------------------------------
    By the time the issue returned to the floor of the convention on 
August 27, the power to impeach had been lodged in the House of 
Representatives for ``treason, bribery, or corruption'' with the trial 
to be conducted by the Supreme Court. But further consideration of the 
clause was postponed.\36\ By September 4 the language was changed to 
provide for the removal of the president ``on impeachment by the House 
of Representatives and conviction by the Senate, for Treason, or 
bribery.'' \37\ On September 8 the convention returned to the problem 
of impeachment and this time the debate focused on what were properly 
impeachable offences. George Mason thought it imprudent that the 
provision be ``restrained to Treason & bribery only'' and suggested 
that the power be expanded to include ``maladministration.'' His 
concern was that treason and bribery were insufficient to reach such 
political offences as the subversion of the Constitution. Madison 
insisted that ``maladministration'' was so ``vague'' a term as to have 
the effect of reducing the term of the president ``to a tenure during 
pleasure of the Senate.'' At this point Mason willingly moved to 
withdraw the suggested ``maladministration'' and substituted ``other 
high crimes & misdemeanors.'' That was accepted by a vote of eight to 
three.\38\
---------------------------------------------------------------------------
    \36\ Ibid., II:427.
    \37\ Ibid., II:499.
    \38\ Ibid., II:550.
---------------------------------------------------------------------------
    It may well be worth noting that Mason's original proposal for this 
new standard of impeachable offences was for ``other high crimes & 
misdemeanors against the State.'' This was quickly amended by striking 
out ``State'' after the word ``against'' and substituting ``United 
States'' ``in order to remove ambiguity.'' \39\ When the draft from the 
Committee on Style was laid before the convention all references to 
``high crimes and misdemeanors against the United States'' was dropped 
in favor of what would become the version that today appears in the 
Constitution: ``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.'' \40\ Thus as finally adopted, the standard of ``high 
Crimes and Misdemeanors'' seems to have a broader, less restricted 
meaning than merely crimes against the government narrowly understood. 
This seems to reflect the general sense of the convention that 
impeachment was intended to reach to political abuses, such as 
maladministration or malversation, as well as to indictable crimes. 
Moreover, it also seems to undermine the claim that impeachment is 
limited only to what one might call official duties and does not reach 
what Joseph Story will later call simply ``personal misconduct.'' \41\
---------------------------------------------------------------------------
    \39\ Ibid.
    \40\ Ibid., II:600.
    \41\ Story, Commentaries on the Constitution, Sec. 762, II:234. 
George Ticknor Curtis observed that the purpose of impeachment is 
simply ``to ascertain whether cause exists for removing a public 
officer from office. Such cause may be found in the fact that, either 
in the discharge of his office, or aside from its functions, he has 
violated a law, or committed what is technically denominated a crime. 
But a cause for removal from office may exist where no offence against 
positive law has been committed, as where the individual has, from 
immorality or imbecility or maladministration, become unfit to exercise 
the office.'' History of the Origin, Formation, and Adoption of the 
Constitution of the United States, 2 vols. (New York: Harper and Bros., 
1858), II:260-61.
---------------------------------------------------------------------------
    What is most striking about the inclusion of ``high Crimes and 
Misdemeanors'' is how little discussion it caused; there was virtually 
no debate at all. One searches in vain in the rest of the records of 
the Federal Convention, in the ratifying conventions of the several 
states, in such obvious writings during the ratification struggle as 
The Federalist and the essays written by the leading Anti-Federalists 
and ``other'' Federalist penmen, and in the correspondence between the 
founders written at the time. The conclusion to which one can only be 
drawn is that the phrase was indeed one of those expressions, as Rufus 
King said, that the convention adopted because they ``were most easy to 
be understood and least equivocal in their meaning.'' \42\
---------------------------------------------------------------------------
    \42\ Farrand, ed., Records, III.268.
---------------------------------------------------------------------------
    What was obviously clear and unequivocal to the founders has been 
to subsequent generations a matter of some confusion.\43\ Nowhere has 
that confusion been more clearly expressed--or the implicit dangers of 
departing from the original meaning of the Constitution more powerfully 
exposed--than in the argument by then-Congressman Gerald Ford in 1970 
during his quest to impeach Justice William O. Douglas. In Ford's view 
(one which, unfortunately, he continues to espouse) ``an impeachable 
offence is whatever a majority of the House of Representatives 
considers it to be at a given moment in history.'' The reason, said the 
Republican Congressman, is that ``there are few fixed principles among 
the handful of precedents.'' \44\ To assume that is true would be to 
render unlimited precisely what the founders sought to limit. The idea 
that the question of impeachable offences should be left simply to the 
``arbitrary discretion'' of those in Congress, Joseph Story observed, 
``is so incompatible with the genius of our institutions, that no 
lawyer or statesman would be inclined to countenance so absolute a 
despotism of opinion and practice, which might make that a crime at one 
time, or in one person, which would be deemed innocent at another time 
or in another person.'' \45\
---------------------------------------------------------------------------
    \43\ Hoffer and Hull, Impeachment in America, p. 117.
    \44\ As quoted in Berger, Impeachment, p. 53, n. 1. More recently, 
in an essay in the New York Times on October 5, 1998, Ford continues to 
insist that Congress is left to fill in the blanks in what he sees as 
``those deliberately imprecise words, `high crimes and misdemeanors.' 
''
    \45\ Story, Commentaries on the Constitution, Sec. 795, II:264.
---------------------------------------------------------------------------
    Impeachments are not to be carried out for any reason that may 
occur to the House of Representatives; they can only be pursued for 
``Treason, Bribery or other high Crimes and Misdemeanors.'' Thus is 
there an obligation to determine exactly what ``high Crimes and 
Misdemeanors'' meant to those who framed and ratified the Constitution. 
For, as Raoul Berger has shown, if that phrase did indeed have ``an 
ascertainable content at the time the Constitution was adopted, that 
content furnishes the boundaries of the power.'' \46\
---------------------------------------------------------------------------
    \46\ Berger, Impeachment. p. 87.
---------------------------------------------------------------------------
English Antecedents
    It is helpful in trying to determine the original meaning of ``high 
Crimes and Misdemeanors'' to consider the impeachment provisions of the 
Constitution in the context of those other powers either granted or 
denied by the founders that had been associated with impeachment in the 
English tradition. It will be recalled that in England impeachment had 
been both a political and a criminal process; that it was often used to 
prosecute high treason; and was not far removed from bills of attainder 
and the corruption of blood as punishments. One of the most significant 
departures by the founders from the English way of doing things was to 
limit rather severely what would constitute treason and to restrict 
Congress in what punishments it could devise.
    In England, treason was a wide ranging offence that was intended to 
put a protective ring around the monarchy.\47\ In the Constitution of 
the United States, the founders reduced the scope of what Blackstone 
had called ``the highest civil crime, which (considered as a member of 
the community) any man can possibly commit'' to this: ``Treason against 
the United States, shall consist only in levying war against them, or 
in adhering to their enemies, giving them Aid and Comfort.'' \48\ They 
were too aware of how malleable a crime treason could become in the 
hands of a legislature prone to punish political enemies. So, too, did 
they establish a constitutional standard for determining guilt in order 
to convict someone of treason: ``No Person shall be convicted of 
Treason unless on the Testimony of two Witnesses to the same overt Act, 
or on Confession in open Court.'' \49\
---------------------------------------------------------------------------
    \47\ See William Blackstone, Commentaries on the Laws of England, 4 
vols. (Oxford: Clarendon Press, 1778), IV:74-94.
    \48\ Article III, Sec. 3.
    \49\ Ibid.
---------------------------------------------------------------------------
    When it came to punishing treason, the Constitution also provides 
that there could never be passed by Congress the old English punishment 
of an ``Attainder of Treason'' that would have the effect of inflicting 
a ``Corruption of Blood or Forfeiture except during the Life of the 
person attained.'' \50\ This restriction was motivated by the founders' 
desire to keep political passions from leading to charges of crime and 
severe punishments imposed by the legislature. The logic of limited 
power here was the same as that which led the founders to prohibit both 
bills of attainder generally, and ex post facto laws.\51\
---------------------------------------------------------------------------
    \50\ Ibid.
    \51\ Article I, Sec. 9.
---------------------------------------------------------------------------
    These concerns were also present in the decisions made by the 
founders regarding the process of impeachment. As indicated above, it 
was essential to their way of thinking to make clear that impeachment 
was a political process dealing with political wrongdoing and not a 
part of the criminal justice process. Thus they made clear that 
punishment for impeachment could not ``extend further than to removal 
from Office, and disqualification to hold and enjoy any Office of 
honor, Trust or Profit under the United States.'' But they emphasized 
that impeachment was not a bar to prosecuting criminal acts that may 
have been committed by the person impeached by noting that ``the Party 
convicted [of impeachment] shall nevertheless be liable and subject to 
Indictment, Trial, Judgment and Punishment, according to Law.'' \52\ 
Thus while an indictable crime may be deemed an impeachable offence, 
impeachable offences are not simply limited to indictable crimes.
---------------------------------------------------------------------------
    \52\ Article II, Sec. 3.
---------------------------------------------------------------------------
    To underscore the inherently political nature of impeachment, the 
founders went further and provided that the right to a jury trial was 
to be secured for ``all Crimes, except in cases of Impeachment.'' \53\ 
When it came to the president, they sought to limit his power to 
interfere with impeachments in the same way he could interfere with 
ordinary crimes. His ``Power to grant Reprieves and Pardons for 
Offences against the United States'' was granted broadly ``except in 
Cases of Impeachment.'' \54\
---------------------------------------------------------------------------
    \53\ Article III, Sec. 2.
    \54\ Article II, Sec. 2.
---------------------------------------------------------------------------
    By the restrictions they devised, the founders made clear that the 
process under the new Constitution was based more on the problems they 
had seen operating in English impeachments than on institutional 
arrangements they thought they should adopt. ``Impeachments, and 
offences and offenders impeachable,'' James Wilson lectured his 
students, ``come not, in those descriptions within the sphere of 
ordinary jurisprudence. They are founded on different principles; are 
governed by different maxims, and are directed to different objects.'' 
\55\ And it is in light of this understanding that sense can be made of 
the founders' adoption of the term ``high Crimes and Misdemeanors'' 
from their English forebears.
---------------------------------------------------------------------------
    \55\ McCloskey, ed, Works, I:324.
---------------------------------------------------------------------------
    Although there is some disagreement as to when the first 
impeachment occurred in English history, it seems reasonably clear that 
the first one along recognizably modern lines of procedure was against 
Michael de la Pole, Earl of Suffolk, in 1386.\56\ In any event, the 
phrase ``high Crimes and Misdemeanors'' makes its first appearance in 
the 1386 impeachment of the Earl of Suffolk, with its next use 
occurring in the 1450 impeachment of William de la Pole, Duke of 
Suffolk and a descendant of the earlier Michael de la Pole. The charges 
of ``high Crimes and Misdemeanors'' against Michael de la Pole in 1386 
included common law offences as well as other charges that were more 
clearly political in their nature. William de la Pole's charge of 
``high Crimes and Misdemeanors'' was in addition several charges of 
high treason. The ``high Crimes and Misdemeanors'' included ``advising 
the King to grant liberties and privileges to certain persons to the 
hindrance of the due execution of the laws,'' ``procuring offices for 
persons who were unfit, and unworthy of them,'' and ``squandering away 
the public treasure.'' \57\ From those earliest cases through the 
impeachment of Warren Hastings that was occurring at the same time as 
the Federal Convention, ``high Crimes and Misdemeanors'' continued to 
be a common charge in the impeachments that were brought.\58\
---------------------------------------------------------------------------
    \56\ The other dates suggested include 1283 and 1376. See William 
S. Holdsworth, History of English Law, 17 vols. (London: Metheun, 1903-
1966), I:380; Alex Simpson, A Treatise on Federal Impeachments, 
(Philadelphia: Law Association of Philadelphia, 1916), p. 5. See 
generally Berger, Impeachment, pp. 53-73.
    \57\ John Hastell, Precedents of Proceedings in the House of 
Commons, 11 vols. (London, 1796), IV:67, n. 10.
    \58\ For a complete listing of the English impeachments see 
Simpson, Treatise on Federal Impeachments, pp. 81-190; and Berger, 
Impeachment, pp.67-73.
---------------------------------------------------------------------------
    In the mid-seventeenth century the notion of what constituted 
``high Crimes and Misdemeanors'' was expanded to include such things as 
negligence and improprieties while in office. Chief Justice William 
Scroggs, for example, was impeached in 1680 for, among other things, 
browbeating witnesses, cursing and drinking to excess, and generally 
bringing ``the highest scandal on the public justice of the kingdom.'' 
\59\ By the eighteenth century it was clear that impeachable offences 
under the rubric ``high Crimes and Misdemeanors'' were not limited to 
indictable crimes in common law but reached more purely political 
offences. In 1701 the Earl of Oxford was charged with ``violation of 
his duty and trust.'' \60\ And Warren Hastings was charged with 
maladministration, corruption in office, and cruelty towards the people 
of India.\61\ By the time of the Federal Convention, English law on 
impeachments was clear that such ``misdeeds . . . as peculiarly injure 
the commonwealth by the abuse of high offices of trust are the most 
proper, and have been the most usual grounds for this kind of 
prosecution.'' \62\
---------------------------------------------------------------------------
    \59\ Howell's State Trials, 35 vols. (London: R. Bagshaw, 1809-
1826), VIII:197, 200.
    \60\ Simpson, Treatise on Federal Impeachments, p.144, n.6.
    \61\ Ibid., pp. 168-70, n.6.
    \62\ Richard Wooddeson, A Systematical View of the Laws of England, 
2 vols. (Dublin: E. Lynch, 1792), II:601. Wooddeson, Blackstone's 
successor as Vinerian Professor Law at Oxford University, made the 
obvious point: ``It is certain that magistrates and officers intrusted 
with the administration of public affairs may abuse their delegated 
powers to the extensive detriment of the community, and at the same 
time in a manner not properly cognizable before the ordinary 
tribunals.'' Ibid., II:596.
---------------------------------------------------------------------------
    In all of the English cases the political nature of the offences 
charged in impeachments was revealed by the use of the word ``high'' to 
modify both ``crimes'' and ``misdemeanors.'' The use of the word in 
``high Crimes and Misdemeanors'' did not refer to the substantive 
nature of the offence, that it was a particularly serious offence, but 
to the fact that it was a ``crime or misdemeanor'' carried out against 
the commonwealth itself. This use of ``high'' to distinguish crimes and 
misdemeanors against the society as a whole derived from its use in 
distinguishing ``high'' treason from ``petit'' treason.\63\ This 
understanding of ``high Crimes and Misdemeanors'' as adopted by the 
Federal Convention was summed up in Alexander Hamilton's explanation of 
the impeachment process as created by the Constitution. The object of 
impeachment, he noted, ``are those 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 the society itself.'' \64\
---------------------------------------------------------------------------
    \63\ Blackstone, Commentaries, IV:75; 203.
    \64\ The Federalist, No. 65, p. 439. Holdsworth has argued that 
``the greatest services rendered by this procedure [of impeachment] to 
the cause of constitutional government have been, firstly, the 
establishment of the doctrine of ministerial responsibility to the law, 
secondly, its application to all ministers of the crown, and thirdly 
and consequently the maintenance of the supremacy of the law over 
all.'' History of English Law, I:382.
---------------------------------------------------------------------------
    During the Federal Convention Gouverneur Morris suggested that 
those offences that were to be deemed impeachable ``ought to be 
enumerated and defined.'' \65\ In a sense, Mason's move to include the 
phrase ``high Crimes and Misdemeanors'' was an attempt to achieve some 
sense of definition when it came to those offences for which the 
president, vice president and all civil officers under the new 
Constitution might be impeached. All the founders understood the 
political perils involved should the Congress be left with a 
``dangerous latitude of discretion'' in so important a power.\66\ Yet 
short of a clear list of impeachable offences there had to be some 
method to ascertain what, exactly, ``high Crimes and Misdemeanors'' 
might be. The answer was to be found in the common law itself.\67\
---------------------------------------------------------------------------
    \65\ Farrand, ed., Records, II:65.
    \66\ Timothy Bloodworth in the North Carolina ratifying convention, 
Elliot, ed., Debates, IV:50.
    \67\ ``Impeachments are . . . introduced as a known definite term, 
and we must have recourse to the common law of England for the 
definition of them.'' William Rawle, A View of the Constitution of the 
United States (2nd ed.; Philadelphia: P.H. Nicklin, 1829), p. 210.
---------------------------------------------------------------------------
    As has been seen, the phrase ``high Crimes and Misdemeanors'' was 
one in common usage in English impeachments for four centuries leading 
up to the Federal Convention. It had become a term of legal art, a 
technical term. In approaching such terms, John Marshall had occasion 
to note in considering another such phrase, the interpretive process is 
simple: ``It is a technical term. It is used in a very old statute of 
that country whose language is our language, and whose laws form the 
substratum of our laws. It is scarcely conceivable that the term was 
not employed by the framers of our constitution in the sense which had 
been affixed to it by those from whom we borrowed it.'' \68\ The case 
for the common law construction of ``high Crimes and Misdemeanors'' was 
best made by Joseph Story in his Commentaries on the Constitution of 
the United States.
---------------------------------------------------------------------------
    \68\ United States v. Burr, 25 Fed. Cas. 1, 159 (No. 14, 693) 
(C.C.D. Va. 1807). This view of the relationship between the common law 
and those common law terms that were explicitly adopted by the founders 
has continued to inform the jurisprudence of the Supreme Court of the 
United States. The provisions of the Constitution ``are framed in the 
language of the English common law and are to be read in light of that 
history.'' Smith v. Alabama, 124 U.S. 465, 478 (1888); the Constitution 
``must be interpreted in light of the common law, the principles and 
history of which were familiarly known to the Framers of the 
Constitution.'' United States v. Wong Kim Ark, 169 U.S. 649, 654 
(1898); ``The language of the Constitution cannot be interpreted safely 
except by reference to the common law and to British institutions as 
they were when the instrument was framed and adopted. The statesmen and 
lawyers of the Convention who submitted it to the ratification of the 
Conventions of the Thirteen States, were born and brought up in the 
atmosphere of the common law and thought and spoke in its vocabulary . 
. . they expressed [their conclusions] in terms of the common law, 
confident that they could be shortly and easily understood.'' Ex Parte 
Grossman 267 U.S. 87, 108 (1925). I am much indebted for these 
citations to Berger, Impeachment, p. 203, n. 51.
---------------------------------------------------------------------------
    In Story's view the necessity of recourse to the common law to shed 
light on the meaning of ``high Crimes and Misdemeanors'' stemmed from 
the nature of impeachment which has an

          . . . enlarged operation, and reaches what are aptly termed, 
        political offences, growing out of personal misconduct, or 
        gross neglect, or usurpation, or habitual disregard for the 
        public interests, in the discharge of the duties of political 
        office. These are so various in their character, and so 
        indefinable in their actual involutions, that it is almost 
        impossible to provide systematically for them by positive law. 
        They must be examined upon very broad and comprehensive 
        principles of public policy and duty.\69\
---------------------------------------------------------------------------
    \69\ Story, Commentaries on the Constitution, Sec. 762, II:234.

    When it came to the details spelled out in the Constitution, it was 
clear that there was no need to turn to the common law for a definition 
of treason; whatever it may have meant in the common law, that meaning 
was superseded by the definition the founders spelled out in the 
Constitution itself. But in the case of the other named offence, 
bribery, which the Constitution does not define, said Story, it is 
clear that ``resort was naturally and necessarily had to the common law 
. . . [which] as the common basis of our jurisprudence, can alone 
furnish the proper exposition of the nature and limits of this 
offence.'' \70\ As with ``bribery'' so also with ``high Crimes and 
Misdemeanors.''
---------------------------------------------------------------------------
    \70\ Ibid., Sec. 794, II:263.
---------------------------------------------------------------------------
    It is because such political offences ``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.'' The 
choice, short of a legislative list, was either to resort to 
``parliamentary practice, and the common law'' or be doomed to the 
``arbitrary discretion'' of Congress. To Story, there was no question 
how to proceed: ``The only safe guide in such cases must be the common 
law, which is the guardian at once of private rights and public 
liberties.'' \71\ Like Marshall, Story did not suggest that the common 
law was a source of ``a jurisdiction not given by the Constitution and 
the laws'' but was simply the ``great basis of American 
jurisprudence.'' As a result, it was not only prudent but appropriate 
to use the common law ``as a guide, and check, and expositor in the 
administration of the rights, duties, and jurisdiction conferred by the 
Constitution and Laws.'' \72\
---------------------------------------------------------------------------
    \71\ Ibid., Sec. 795, II:264.
    \72\ Ibid., Sec. 796, II:266; Sec. 797, II:267; Sec. 796, II:266.
---------------------------------------------------------------------------
    The most basic sources of the common law included the great 
treatises upon which the early Americans had depended for their legal 
learning. Thus did that generation of founders move easily amongst such 
authorities as Sir Edward Coke's Institutes (1628; 1642; 1644) and 
Reports (1600-15); Sir Thomas Wood's Institute of the Laws of England 
(1720); Richard Wooddeson's A Systematical View of the Laws of England 
(1795); William Hawkins's A Treatise on the Pleas of the Crown (1716); 
and a variety of other tracts such as John Selden's On the Judicature 
in Parliaments (1681), Giles Jacob's New Law Dictionary (1729), and 
William Paley's Principles of Moral and Political Philosophy (1785). 
But of them all the most dominant source of authority on the common law 
for those who wrote and ratified the Constitution was Sir William 
Blackstone and his justly celebrated Commentaries on the Laws of 
England (1765-69). That was a work that was described by Madison in the 
Virginia ratifying convention as nothing less than ``a book which is in 
every man's hand.'' \73\
---------------------------------------------------------------------------
    \73\ Elliot, ed., Debates, III:501.
---------------------------------------------------------------------------
    Blackstone made clear that of the ``high misdemeanors'' under 
English law, the ``first and principal one is the mal-administration of 
such high officers, as are in public trust and employment. This is 
usually punished by the method of parliamentary impeachment: wherein 
such penalties, short of death, are inflicted, as to the wisdom of the 
house of peers shall seem proper; consisting usually of banishment, 
imprisonment, fines, or perpetual disability.'' \74\ Although 
Blackstone does not speak of ``high Crimes and Misdemeanors'' in any 
thorough fashion, he does devote a considerable section of the 
Commentaries to ``Public Wrongs'', in which he defines public wrongs 
simply as ``crimes and misdemeanors.'' \75\ And his definition bears a 
striking resemblance to Hamilton's discussion of impeachable offences 
in The Federalist:
---------------------------------------------------------------------------
    \74\ Blackstone, Commentaries, IV:121.
    \75\ Ibid., IV:1.

          [P]ublic wrongs, or crimes and misdemeanors, are a breach and 
        violation of the public rights and duties, due to the whole 
        community, considered as a community, in its social aggregate 
        capacity . . . crimes . . . besides the injury done to 
        individuals, strike at the very being of society; which cannot 
        possibly subsist, where actions of this sort are suffered to 
        escape with impunity.\76\
---------------------------------------------------------------------------
    \76\ Ibid. IV:5.

Of greatest interest for trying to understand how these grave offences 
against the commonwealth might be included within the phrase ``high 
Crimes and Misdemeanors'' is Blackstone's chapter entitled ``Of 
Offences against Public Justice.'' \77\
---------------------------------------------------------------------------
    \77\ Ibid., IV: 127-141.
---------------------------------------------------------------------------
    In that chapter Blackstone explains that ``of offences against 
public justice, some . . . [are] felonious, whose punishment may extend 
to death; others only misdemeanors.'' He then sets out to catalogue 
those offences against public justice by beginning ``with those that 
are most penal and descend[ing] gradually to such as are of less 
malignity.'' \78\ All of these offences fall short of treason, ``the 
highest civil crime . . . any man can possibly commit,'' but share with 
that most serious offence the fact that each constitutes an assault on 
the ``commonwealth or public polity of the kingdom.'' \79\ Included in 
Blackstone's catalogue are offences against public justice that may 
shed some light on the questions currently confronting the House of 
Representatives as to the nature and extent of any impeachable offences 
committed by the president in the present inquiry.
---------------------------------------------------------------------------
    \78\ Ibid., IV:128.
    \79\ Ibid., IV:75; 127.
---------------------------------------------------------------------------
    There are two offences of special relevance in determining if there 
have indeed been ``high Crimes and Misdemeanors'' committed. The third 
item in Blackstone's list is ``obstructing the execution of lawful 
process.'' This, says the author, ``is at all times an offence of a 
very high and presumptuous nature.'' \80\ Such obstructions of public 
justice, he argues, can be of both ``the civil and criminal kind.'' 
Although his primary example is of obstruction of an arrest upon a 
criminal process, the offence is clearly not limited to that and seems 
to include any effort to keep the processes of the law from functioning 
properly.\81\
---------------------------------------------------------------------------
    \80\ Ibid., IV:129.
    \81\ Ibid.
---------------------------------------------------------------------------
    The second offence of some significance to the matter at hand is 
``the crime of willful and corrupt perjury'' which is defined by Sir 
Edward Coke, to be a crime committed where a ``lawful oath is 
administered, in some judicial proceeding, to a person who swears 
willfully, absolutely, and falsely, in a matter material to the issue 
or point in question.'' \82\ Materiality lies in whether the false 
testimony is essential to the determination of the issue at hand or 
merely related to ``some trifling, collateral circumstance to which no 
regard is paid.'' \83\ Closely related in Blackstone's account to 
perjury proper is the ``Subornation of perjury [which] is the offence 
of procuring another to take such a false oath, as constitutes perjury 
in the principal.'' \84\ Blackstone finds perjury and subornation of 
perjury to be crimes both odious and ``detestable'', although far from 
being capital offences. Although at one point such offences were 
punishable by death, it had by the time of the Commentaries come to be 
``punished with six months imprisonment, perpetual infamy, and a . . . 
fine, or to have both ears nailed to the pillory.'' In attempting to 
understand where perjury comes in the descending order Blackstone sets 
up, and how it might thus fit into an understanding of ``high Crimes 
and Misdemeanors'' based upon the common law, it is striking that 
perjury is followed immediately by the crime of bribery.\85\ The 
possibility that perjury by a high civil officer might indeed be an 
impeachable offence under ``high Crimes and Misdemeanors'' merits a 
more thorough consideration.
---------------------------------------------------------------------------
    \82\ Ibid., IV:137.
    \83\ Ibid.
    \84\ Ibid., IV:137-38.
    \85\ Ibid., IV:139.
---------------------------------------------------------------------------
Oaths and Perjury
    The use of oaths in legal proceedings in which evidence is given is 
an ancient part of the common law. Sir Edward Coke noted that the 
``word oath is derived from the Saxon word eoth.'' The oath is nothing 
less, said Coke, than ``an affirmation or deniall by any Christian of 
anything lawfull and honest, before one or more, that have the 
authority to give the same for advancement of truth and right, calling 
Almighty God to witness that his testimony is true.'' \86\ Yet there is 
evidence that the use of oaths extends back to Roman times where the 
law of the Twelve Tables provides that ``Whoever gives false evidence 
must be thrown from the Tarpeian rock.'' \87\ And Cicero in De Officiis 
argues that ``in taking an oath it is our duty to consider not what we 
may have to fear in case of violation but wherein its obligation lies: 
an oath is an assurance backed by religious sanctity; and a solemn 
promise given, as before God as one's witness, is to be sacredly 
kept.'' \88\ As Samuel Pufendorf emphasized, oaths were not simply the 
preserve of Christians:
---------------------------------------------------------------------------
    \86\ Third Institute, p. 165. This view has been expanded upon by 
John Wigmore in his treatise on evidence in which he notes that the 
idea of an oath came from Germanic law: ``The employment of oaths takes 
our history back to the origins of Germanic law and custom when, as in 
all early civilizations, the appeal to the supernatural plays an 
important part in the administration of justice.'' John Henry Wigmore, 
Evidence in Trials at Common Law, ed. J.H. Chadbourn, 10 vols. (Boston: 
Little Brown and Co., 1976), Sec. 1815, V:380. James Bradley Thayer 
observed that the ``Normans . . . found that much of what they brought 
[to England] was there already; for the Anglo-Saxons were their cousins 
of the Germanic race, and had, in a great degree, the same legal 
conceptions and methods only less worked out.'' This extended to the 
use of oaths. James Bradley Thayer, ``The Older Modes of Trial,'' 
Harvard Law Review 5(1891):45, 58.
    \87\ James Fitzjames Stephens, A History of the Criminal Law of 
England, 3 vols. (London: Macmillan and Co., 1883), I:11.
    \88\ De Officiis, (Cambridge: Harvard University Press, DATE), 
III.104, p. 383.

          An oath the very Heathens look'd on as a thing of so great 
        force, and of so sacred authority, that they believed the sin 
        of perjury to be punished with the severest vengeance; such as 
        extended itself to the posterity of the offender, and such as 
        might be incurr'd by the bare thought and inclination without 
        the act.\89\
---------------------------------------------------------------------------
    \89\ Samuel Pufendorf, Of the Law of Nature and Nations, trans. 
Basil Kennet (London: R. Sare, 1717), IV. II. 1, p.117

    The significance of the oath in courts of law was explained by 
James Wilson in his law lectures: \90\
---------------------------------------------------------------------------
    \90\ McCloskey, ed, Works, II:703-704. Wilson was not alone in his 
view of the importance of oaths. For example, Justice Jacob Rush, the 
brother of Benjamin Rush, expressed views much like those of Wilson in 
a pamphlet published in 1796, The Nature and Importance of an Oath--the 
Charge to a Jury (Rutland, Vermont): ``An oath is a very serious 
transaction . . . the nature [of which] . . . is the solemn appeal to 
God--it is engaging to speak the truth, and calling upon Him to witness 
our sincerity, that constitute the oath and obligation.'' Thus is it 
important that civil society maintain a due attention to ``the 
religious sentiment upon which an oath is founded;'' to allow that 
sentiment to relax will be ``injurious to society.'' Hyneman and Lutz, 
eds., American Political Writing, II:1015-1017; 1018.

          The courts of justice, in almost every age, and in almost 
        every country, have had recourse to oaths, or appeals to 
        heaven, as the most universal and the most powerful means to 
        engage men to declare the truth. By the common law, before the 
        testimony of a witness can be received, he is obliged to swear, 
        that it shall be the truth, the whole truth, and nothing but 
---------------------------------------------------------------------------
        the truth.

The purpose, Wilson concluded, is to secure truthful evidence:

          Belief is the end proposed by evidence of every kind. Belief 
        in testimony is produced by the supposed veracity of him who 
        declares it. The opinion of his veracity . . . is shaken, 
        either when, in former instances, we have known him to deliver 
        testimony which has been false; or when, in the present 
        instance, we discover some strong inducement which may prevail 
        on him to deceive.

    Wilson took his moral and historical bearings on the necessity of 
oaths to getting at the truth from William Paley whose Principles of 
Moral and Political Philosophy was an influential work of considerable 
prominence among the early Americans.\91\ Wilson praised Paley as an 
authority of ``high reputation,'' a ``sensible and ingenious writer'' 
who was ``no undiscerning judge of the subject'' of the administration 
of justice.\92\ Joseph Story was similarly impressed with Paley as a 
writer of ``practical sense'' whose analyses of political institutions 
displayed ``great skill and ingenuity of reasoning. Throughout his 
celebrated Commentaries on the Constitution of the United States, Story 
relies often on the ``excellent writings'' of Paley.\93\
---------------------------------------------------------------------------
    \91\ Paley, The Principles of Moral and Political Philosophy, 2 
vols. (London: R. Faulder, 1788).
    \92\ McCloskey, ed., Works, I:310; 240; 325.
    \93\ Story, Commentaries on the Constitution, Sec. 587, II:69; Sec. 
584, II:65; Sec. 1603, III:467. See also, for examples, Sec. 522, 547, 
558, 572, 575, 579, 581, 584, 587, and 1338.
---------------------------------------------------------------------------
    For Paley, the issue of oaths and perjury was one of morality as 
well as of law; he expressed views not unlike that of Cicero who warned 
that ``people overturn the fundamental principles established by 
nature, when they divorce expediency from moral rectitude.'' \94\ In 
Paley's view, the entire question of perjury rested on the definition 
of a lie: ``A lie is a breach of promise: for whoever seriously 
addresses his discourse to another, tacitly promises to speak the 
truth, because he knows that the truth is expected.'' \95\ And the 
effects of lying are not simply private; they are public in the deepest 
and most important sense:
---------------------------------------------------------------------------
    \94\ De Officiis, III.101, p. 379.
    \95\ Paley, Principles, I:184.

          [T]he direct ill consequences of lying . . . consist, either 
        in some specific injury to particular individuals, or the 
        destruction of that confidence, which is essential to the 
        intercourse of human life: for which latter reason, a lie may 
        be pernicious in its general tendency, and therefore criminal, 
        though it produce no particular visible mischief to anyone.\96\
---------------------------------------------------------------------------
    \96\ Ibid.

Given this public aspect to the damages that come from lying, it is 
necessary that oaths never be made ``cheap in the minds of the 
people.'' Since ``mankind must trust to one another'' there is no more 
efficacious means than through the use of oaths: ``Hence legal 
adjudications, which govern and affect every right and interest on this 
side of the grave, of necessity proceed and depend upon oaths.'' As a 
result, lying under oath is far more serious than merely lying; perjury 
is, Paley notes, ``a sin of greater deliberation,'' an act that 
``violates a superior confidence.'' \97\
---------------------------------------------------------------------------
    \97\ Ibid., I:193; 197.
---------------------------------------------------------------------------
    Because a witness swears that he will ``speak the truth, the whole 
truth, and nothing but the truth, touching the matter in question,'' 
there is no place where a person under oath can cleverly lie and not 
commit perjury. The witness cannot legitimately conceal ``any truth, 
which relates to the matter in adjudication'' because to so conceal 
``is as much a violation of the oath, as to testify a positive 
falsehood; and this whether the witness be interrogated to that 
particular point or not.'' It is not enough, Paley observed, for the 
witness afterward to say that he was not forthcoming `` `because it was 
never asked of me ' ''; an oath obliges to tell all one knows whether 
asked or not. As Paley notes, ``the law intends . . . to require of the 
witness, that he give a complete and unreserved account of what he 
knows of the subject of the trial, whether the questions proposed to 
him reach the extent of his knowledge or not.'' \98\
---------------------------------------------------------------------------
    \98\ Ibid., I:200; 201.
---------------------------------------------------------------------------
    Nor is it sufficient an excuse that ``a point of honor, of 
delicacy, or of reputation, may make a witness backward to disclose 
some circumstance with which he is acquainted.'' Such a sense of shame 
or embarrassment cannot ``justify his concealment of the truth, unless 
it could be shown, that the law which imposes the oath, intended to 
allow this indulgence to such motives.'' \99\
---------------------------------------------------------------------------
    \99\ Ibid., I:201.
---------------------------------------------------------------------------
    Similarly, linguistic contortions with the words used cannot 
legitimately conceal a lie or, if under oath, perjury. Paley's argument 
on this point merits a complete hearing:

          As there may be falsehoods which are not lies, so there may 
        be lies without literal or direct falsehood. An opening is 
        always left for this species of prevarication, when the literal 
        and the grammatical signification of a sentence is different 
        from the popular and customary meanings. It is the willful 
        deceit that makes the lie; and we willfully deceive, where our 
        expressions are not true in the sense in which we believe the 
        hearer apprehends them. Besides, it is absurd to contend for 
        any sense of words, in opposition to usage, for all senses of 
        words are founded upon usage, and upon nothing else.\100\
---------------------------------------------------------------------------
    \100\ Ibid., I:188-89. Pufendorf was of a similar mind: Witnesses, 
he said, should not have ``an opportunity by insidious or equivocal 
expressions to evade the force of their obligations.'' Should they so 
break their oath they will discover the truth that God is the ``avenger 
of perjury.'' On the Law of Nature and Nations, IV. II. III, pp. 121; 
119.

Thus the most common terms of oaths sworn include a promise not only to 
tell the truth, but the broader promise to tell the whole truth and 
nothing but the truth. Willful deceit is the key to whether a witness 
commits perjury or not, whatever the means chosen.\101\ The moral and 
legal inheritance of the founding generation included the belief that 
the violation of an oath was nothing less than ``treachery.'' \102\
---------------------------------------------------------------------------
    \101\ As Thomas Wood put it, ``it cannot be presumed that one would 
commit perjury without design.'' A New Institute of the Imperial or 
Civil Law (London, 1730), III. 10. xiv, pp. 288-89.
    \102\ Algernon Sidney, Discourses Concerning Government, ed. Thomas 
West (Indianapolis: Liberty Fund, 1990), p. 225.
---------------------------------------------------------------------------
    None of the major writers with whom the founders were intimately 
conversant saw perjury as anything but one of the most serious offences 
against the commonwealth.\103\ In his widely cited Treatise on the 
Pleas of the Crown, for example, William Hawkins explained that there 
were certain kinds of offences that were ``infamous, and grossly 
scandalous, proceeding from principles of down right dishonesty, malice 
or faction;'' and it was under this rubric that he included ``perjury 
and subornation of perjury.'' Indeed he went further arguing that 
``perjury . . . is of all crimes whatsoever the most infamous and 
detestable.'' \104\
---------------------------------------------------------------------------
    \103\ For a helpful compilation of many of the common law sources 
on ``oaths'' and ``perjury'' see under those heads in Giles Jacob, A 
New Law Dictionary, (9th. ed.; London: Strahan and Woodfall, 1772).
    \104\ A Treatise on the Pleas of the Crown, I:318; 319. Pufendorf 
put it even more strikingly: ``Perjury appears to be a most monstrous 
sin, in as much as by it the forsworn wretch shews that he at the same 
time condemns the divine and yet is afraid of human punishment; that he 
is a daring villain towards God, and a sneaking coward towards men.'' 
Of the Law of Nature and Nations, IV. II. II., p. 118.
---------------------------------------------------------------------------
    Perjury was, in the first instance, tied to jurors who might give a 
false verdict and ``for several centuries no trace is to be found of 
the punishment of witnesses for perjury.'' \105\ And even after it 
originated in the Star Chamber, it was only by ``slow degrees [that] 
the conclusion that all perjury in a judicial proceeding is a crime was 
arrived at.'' \106\ In 1562-63 there came the first statute providing 
penalties for those who committed both perjury and subornation of 
perjury.\107\ Thus were human punishments made to augment the fear of 
divine vengeance for lying under oath.\108\ This was, in Pufendorf's 
view, absolutely essential, as he noted by quoting Demosthenes:
---------------------------------------------------------------------------
    \105\ Stephens, History of the Criminal Law, III:241.
    \106\ Ibid., III:247.
    \107\ Holdsworth, History of English Law, IV:515-18.
    \108\ ``The two expedients of the oath and the perjury penalty are 
similar in their operation; that is, they influence the witness 
subjectively against conscious falsification, the one by reminding him 
of ultimate punishment by a supernatural power, the other by reminding 
him of speedy punishment by a temporal power.'' Wigmore, Evidence, Sec. 
1831, V:432.

          Those who escape your justice, leave to the vengeance of the 
        gods; but those on whom you can lay hands, never consign over 
        to Providence without punishing them yourselves.\109\
---------------------------------------------------------------------------
    \109\ Of the Law of Nature and Nations, IV. II. II., p. 118.

It was by this joint power of the sacred and the secular that men could 
put their faith in oaths as a means of securing truthful testimony from 
those sworn to give it. And by such oaths and the punishments to be 
meted out for perjury, the commonwealth could secure the proper 
administration of justice within the courts of law. Perjury was no 
longer just a sin; it was a crime.
    Based on the foregoing analysis and review of the historical 
record, the conclusion seems inescapable, based on the expressed intent 
of the framers, the wording of the Constitution, the writings of the 
principal legal authorities known to the framers, and the common law, 
that perjury would certainly be included as a ``high Crime and 
Misdemeanor'' in an impeachment trial under the United States 
Constitution. Further, the record fails to support the claim that 
impeachable offences are limited to only those abuses that occur in the 
official exercise of executive power. As seen in the authorities, 
impeachable offences, in both English and American history, have been 
understood to extend to ``personal misconduct,'' ``violation of . . . 
trust,'' and ``immorality or imbecility,'' among other charges.\110\
---------------------------------------------------------------------------
    \110\ Story, Commentaries on the Constitution, II:274; Simpson, 
Treatise on Federal Impeachments, p. 144, n. 6; Curtis, History of the 
Origin, Formation, and Adoption of the Constitution, II:260.
---------------------------------------------------------------------------
Conclusion
    There is no power granted to the House of Representatives more 
formidable than ``the sole power of impeachment.'' Knowing as they did 
the dangers of subjecting those in high office to the mere passion and 
caprice of the moment, the founders sought to create a power to impeach 
that would be capable of ``displacing an unfit magistrate'' but within 
the confines of a written and ratified Constitution of enumerated and 
limited powers. Thus did they limit the reasons for which an 
impeachment could be undertaken to ``Treason, Bribery, or other High 
Crimes and Misdemeanors.''
    The success of the founders in creating the impeachment power to be 
both politically effective and safe to the demands of republican 
government is seen most clearly in how few have been the instances of 
its use. Lord Bryce described the power of impeachment over a century 
ago as ``the heaviest piece of artillery in the congressional arsenal'' 
and thus ``unfit for ordinary use.'' The process seeking to remove a 
president, he said, ``is like a hundred-ton gun which needs complex 
machinery to bring it into position, an enormous charge of powder to 
fire it, and a large mark to aim at.'' \111\ The constitutional 
provisions for impeachment were intended, in part, to secure the chief 
executive from being driven from office for mere partisan reasons. To 
get rid of a president--or to try to--Congress has to have good cause. 
As Bryce said, one does not use impeachment for light and transient 
causes, ``as one does not use steam hammers to crack nuts.'' \112\
---------------------------------------------------------------------------
    \111\ James Bryce, The American Commonwealth, 2 vols. 
(Indianapolis: Liberty Fund, 1997), I:190.
    \112\ Ibid.
---------------------------------------------------------------------------
    In the end, the determination of whether presidential misconduct 
rises to the level of ``high Crimes and Misdemeanors,'' as used by the 
framers, is left to the discretion and deliberation of the House of 
Representatives. No small part of that deliberation, guided as it must 
be by the history and meaning of ``high Crimes and Misdemeanors,'' must 
address what effect the exercise of this extraordinary constitutional 
sanction would have on the health of the republic, as weighed against 
the necessity of making clear that in America no one is above the law. 
In the end, that is what matters most and must bear most heavily on the 
members of the House of Representatives as they consider what they must 
do in the weeks ahead.

    Mr. Canady. Thank you, Professor McDowell.
    Professor Gerhardt.

  MICHAEL J. GERHARDT, PROFESSOR OF LAW, COLLEGE OF WILLIAM & 
                       MARY SCHOOL OF LAW

    Mr. Gerhardt. Thank you, Mr. Chairman. I want to thank the 
Chair and Representative Scott for the opportunity to be a 
shared witness. It is a privilege to be a part of this and the 
other distinguished panel.
    There are, I think, at least three lessons to draw from the 
history of impeachment that might be useful for the 
subcommittee to keep in mind. First, the most common examples 
of impeachable offenses cited in the Constitutional and 
Ratifying Conventions were for great or dangerous offenses 
causing some serious injury to the Republic and/or reaching the 
special trust held by virtue of the office held. The framers 
also emphasized that the ultimate purpose of impeachment was 
not to punish but to protect and preserve the public trust. The 
framers did not try to exhaust the list of potential 
impeachable offenses. Instead, they left it to subsequent 
generations, particularly to subsequent Congresses, to decide 
on a case-by-case basis.
    The second lesson relates to what we can learn from what 
Congress has found and not found constitutes an impeachable 
offense. Here I think there are two relevant sets. The first 
consists of attempted formal inquiries into presidential 
impeachments, and the second consists of attempted judicial 
impeachments.
    The first set is awfully small, perhaps too small to 
suggest very much. We have had two examples from the 19th 
century and one dramatic example from the 20th century. The two 
formal attempted presidential impeachments from the 19th 
century include the House's decision not to initiate a formal 
impeachment inquiry against President John Tyler and the 
Senate's refusal by a single vote to convict Andrew Johnson.
    These cases have some telling things in common. First, both 
men became President by means other than election, the deaths 
of the Presidents who had selected them as Vice Presidents. 
Second, neither was a member of the President's party. Third, 
neither was a member of the majority party in Congress. And 
perhaps most importantly, fourth, both were very aggressive in 
their efforts to frustrate congressional supremacy in national 
policy-making.
    The House's failure to impeach or even to authorize an 
impeachment inquiry against Tyler, and the Senate's failure to 
convict Johnson, confirm one of the most often repeated 
pronouncements of the framers, that impeachment is not designed 
to address policy differences or opinion.
    The Nixon episode in the 1970s has come to symbolize 
appropriate use of impeachment. We all assumed that President 
Nixon would have been impeached and removed. Like President 
Grant's Secretary of War William Belknap, President Nixon 
resigned when his impeachment and removal seemed inevitable. In 
the popular and scholarly mind, Nixon's impeachment represents 
the appropriate use of the impeachment process to address true 
abuse of power or the use of presidential power abusively.
    The other set of relevant precedents are judicial. As we 
all know, all seven of the people impeached or removed from 
office have been Federal judges. The common features of these 
cases are the nexus that exists between the conduct alleged and 
the special trust or responsibilities of the judicial officers 
impeached or removed in those cases.
    Of course, the critical question that remains is whether 
the same constitutional standard applies to judicial and 
presidential impeachment. Interestingly, Representative Ford 
himself answered that question ``yes.'' After having said that 
he thought what would constitute an impeachable offense rested 
with whatever a majority of the House thought. He went on to 
add at the end of his statement that of course it is different 
when one talks about Presidents; they may only be impeached for 
great offenses.
    My answer is that the same standard applies to all 
impeachments. The constitutional language, after all, is 
uniform. The same standard applies to all impeachments, while 
the context to which the standard is applied is often 
different.
    The factors taken into account by the House, and 
particularly by the Senate in the case of deciding whether any 
given misconduct constitutes an impeachable offense, include 
the following: the official duties; the degree of nexus between 
the misconduct alleged and the official duties; the magnitude 
of the offense and the magnitude of its harm to the Nation; 
and, lastly, other conceivable means of redress.
    A final lesson, in my opinion, is that in deciding whether 
certain misconduct constitutes an impeachable offense, Members 
of Congress at some point feel justifiably the pressure to make 
a judgment that will withstand the test of time.
    Alexander Hamilton warned that all impeachments begin in a 
partisan atmosphere. The critical question is whether 
impeachments can be conducted and reach resolution on a 
nonpartisan basis. The critical test is whether the judgments 
reached can withstand the test of time.
    Near the end of the Johnson impeachment trial, Senator 
William Fessenden said that the burden is on Congress. In that 
case obviously on the Senate, as it is in every impeachment, to 
reach a judgment about what constitutes an impeachable offense 
on which, as he put it, all right-thinking people would agree. 
James Iredell said very much the same thing in the North 
Carolina ratifying convention. Twenty-five years ago the House 
Judiciary Committee, to its everlasting credit, created such a 
model. Today the subcommittee takes a step undoubtedly to 
create a similar model, but whatever happens today or tomorrow, 
the critical factor to keep in mind is that the ultimate judge 
is history.
    Thank you.
    [The prepared statement of Mr. Gerhardt follows:]
   Prepared Statement of Michael J. Gerhardt, Professor of Law, The 
                      College of William and Mary
                              introduction
    I am enormously grateful for the honor and privilege to share with 
you some of my thoughts about the background and history of the federal 
impeachment power. Over the past decade, I have had several occasions 
to review in detail the topic of today's hearing. In order to be of 
assistance to the Committee, I have organized my testimony in three 
parts, with an eye toward illuminating to the fullest possible extent 
and consistent with the weight of authority the historical issue of 
greatest contemporary concern relating to impeachment--the scope of 
impeachable offenses. As background, Part I identifies the ways in 
which the founders purposely tried to distinguish the federal 
impeachment process from its British counterpart. One of the most 
important of these features was the founders' desire to narrow or 
restrict the range of impeachable offenses. Part II examines the 
likeliest meaning of the terms of art ``other high crimes and 
misdemeanors'' that provide the bases for federal impeachment. I 
believe that the weight of authority, as most other scholars and 
commentators have found, that these words constitute technical terms of 
art that refer to political crimes. For the most part, the founders did 
not regard political crimes to be the functional equivalent of 
indictable crimes; rather, they considered political crimes to consist 
of serious abuses of official power or serious breaches of the public 
trust, which might also but not necessarily be punishable in the 
courts. Given that the founders expected that the scope of impeachable 
officials would work itself out over time on a case-by-case basis, I 
turn in Part III to consider the possible lessons that might be derived 
from trends or patterns in the Congress' past impeachment practices. 
Three are especially noteworthy. The first is that criminal conviction 
or prosecution of an individual prior to impeachment dramatically 
increases the likelihood of impeachment. The second is the relatively 
widespread recognition of the paradigmatic case for impeachment as 
being based on the abuse of power. The three articles of impeachment 
approved by the House Judiciary Committee against President Richard 
Nixon have come to symbolize this paradigm. The great majority of 
impeachments if not all of the impeachments brought by the House and 
convictions by the Senate approximate this paradigmatic case, for most 
if not all of these cases involve the serious misuse of office or 
official power. There is a third conceivable trend based on the 
recognition of some legitimate impeachment actions falling outside of 
the first category (or paradigmatic case). The latter cases, best 
symbolized by the Claiborne decision, is that there may be some kinds 
of misconduct in which an impeachable official might engage that are so 
outrageous and thoroughly incompatible with an official's status or 
responsibilities that Congress has no choice but to impeach and remove 
an official who has engaged in such misconduct.
                                   i.
    The discussions of the delegates to the constitutional convention 
and state ratifying conventions provide some background for 
appreciating the distinctive features of the federal impeachment 
process. The founders wanted to distinguish the impeachment power set 
forth in the U.S. Constitution from the British practice in eight 
important ways. First, the founders limited impeachment only to ``[t]he 
President and all civil officers of the United States,'' \1\ whereas at 
the time of the founding of the Republic anyone (except for a member of 
the royal family) could be impeached in England. Second, the delegates 
to the constitutional convention tried to narrow the range of 
impeachable offense for public officeholders to ``treason, bribery, and 
other high crimes or misdemeanors,'' \2\ while the English Parliament 
had always refused to constrain its jurisdiction over impeachments by 
restrictively defining impeachable offenses. Third, whereas the English 
House of Lords could convict upon a bare majority, the delegates to the 
constitutional convention agreed that in an impeachment trial held in 
the Senate ``no Person shall be convicted [and removed from office] 
without the Concurrence of two thirds of the Members present.'' \3\ 
Fourth, the House of Lords could order any punishment upon conviction, 
but the delegates limited the punishments in the federal impeachment 
process ``to removal from Office, and disqualification to hold and 
enjoy any Office or honor, Trust or Profit under the United States . . 
.'' \4\ Fifth, the King could pardon any person after an impeachment 
conviction, but the delegates expressly prohibited the President from 
exercising such power in the Constitution.\5\ Sixth, the founders 
provided that the President could be impeached,\6\ whereas the King of 
England could not be impeached. Seventh, impeachment proceedings in 
England were considered to be criminal, while the Constitution 
separates criminal and impeachment proceedings.\7\ Lastly, the British 
provided for the removal of their judges by several means, whereas the 
Constitution provides impeachment as the sole political means of 
judicial removal.\8\
---------------------------------------------------------------------------
    \1\ U.S. Const., art. II, section 4.
    \2\ Id.
    \3\ Id., art. I, section 3, clause 6.
    \4\ Id., art. I, section 3, clause 7.
    \5\ Id., art. II, section 2, clause 1.
    \6\ Id., art. II, section 4.
    \7\ See generally Michael J. Gerhardt, The Constitutional Limits to 
Impeachment and its Alternatives, 68 Texas L. Rev. 1, 23 (1989).
    \8\ See generally Michael J. Gerhardt, The Federal Impeachment 
Process: A Constitutional and Historical Analysis 82-102 (1996).
---------------------------------------------------------------------------
    Of these distinctive features, the one of greatest contemporary 
concern is the founders' choice of the words--``treason, bribery, and 
other high crimes or misdemeanors''--for the purpose of narrowing the 
scope of the federal impeachment process. The founders did not discuss 
the meaning of ``other high crimes or misdemeanors'' extensively, 
certainly not in any way that definitively resolves the precise 
meanings of those terms. Nevertheless, the context and content of the 
founders' principal discussions about the phrase ``other high crimes or 
misdemeanors'' provide an important backdrop to contemporary efforts to 
understand the meaning of the phrase.
    Throughout the early debates in the constitutional convention on 
the scope of impeachable offenses, every speaker agreed that certain 
high-ranking officials of the new national government should not have 
immunity from prosecution for common law crimes, such as treason and 
murder. Many delegates also envisioned a body of offenses for which 
these federal officials could be impeached. Early in the convention's 
proceedings, they referred to ``mal-'' and ``corrupt administration,'' 
``neglect of duty,'' and ``misconduct in office'' as the only 
impeachable offenses and maintained that common law crimes such as 
treason and bribery were to be heard in the courts of law. Several 
delegates, notably William Paterson, Edmund Randolph, James Wilson, and 
George Mason, argued that the federal impeachment process should apply 
to misuse of official power in accordance with their respective state 
constitutions and experiences. As late as August 20, 1787, the 
Committee of Detail reported that federal officials ``shall be liable 
to impeachment and removal from office for neglect of duty, 
malversation, or corruption.''
    Yet, in its report on September 4, the Committee of Eleven proposed 
that the grounds for conviction and removal of the President should be 
limited to ``treason or bribery.'' On September 8, George Mason opened 
the convention's discussion on this latter proposal by questioning the 
wisdom of limiting impeachment to those two offenses. He argued that 
``[t]reason as defined in the Constitution [would] not reach many great 
and dangerous offences.'' He used as an example of such subversion the 
contemporaneous English impeachment of Governor Warren Hastings of the 
East India Company, whose trial was based in part not upon specific 
criminal acts but rather upon the dangers presented to the government 
by his wielding of virtually absolute power within the Indian colony. 
Mason was concerned that ``[a]ttempts to subvert the Constitution may 
not be Treason as . . . defined,'' and that, since ``bills of attainder 
. . . are forbidden, . . . it is the more necessary to extend the power 
of impeachments.'' Mason therefore moved to add the term 
``maladministration'' to permit impeachment upon less conventionally 
defined common law offenses. Elbridge Gerry seconded the motion. James 
Madison, without taking issue with either the appropriateness of 
including such subversion or the need to expand the standard to include 
such potentially noncriminal wrongs, responded that ``[s]o vague a term 
will be equivalent to a tenure during pleasure of the Senate.'' 
Recalling an earlier debate on June 20 in which he had asked for more 
``enumerated and defined'' impeachable offenses, Governor Morris agreed 
with Madison. Mason thereupon withdrew his motion and substituted 
``bribery and other high crimes or misdemeanors against the States,'' 
which Mason apparently understood as including maladministration. 
Without further comment, the motion was approved by a vote of eight to 
three.
    The convention, again without discussion, later agreed to replace 
the word ``State'' with the words ``United States.'' The Committee of 
Style and Arrangement, which was responsible for reworking the 
resolutions without substantive change, eliminated the phrase ``against 
the United States,'' presumably because it was thought to be redundant 
or superfluous. The convention accepted the shortened phrase without 
any further debate on its meaning.
    Subsequently, the most substantial discussions of the scope of 
impeachable offenses, besides those in The Federalist Papers (discussed 
in the section below), occurred in the ratification conventions in 
North Carolina and Virginia. For instance, in the North Carolina 
ratifying convention, James Iredell, who would later serve as an 
Associate Justice on the Supreme Court, called attention to the 
complexity, if not impossibility, of defining the scope of impeachable 
offenses any more precisely than to acknowledge that they would involve 
serious injustices to the federal government. He understood impeachment 
as having been ``calculated to bring [great offenders] to punishment 
for crime which it is not easy to describe, but which every one must be 
convinced is a high crime and misdemeanor against government. [T]he 
occasion for its exercise will arise from acts of great injury to the 
community.'' As examples of impeachable offenses, he suggested that the 
``president must certainly be punishable for giving false information 
to the Senate'' and that ``the president would be liable to 
impeachments [if] he had received a bribe or had acted from some 
corrupt motive or other.'' He warned, though, that the purpose of 
impeachment was not to punish a president for ``want of judgment'' but 
rather to hold him responsible for being a ``villain'' and ``willfully 
abusing his trust.'' Governor Johnston, who would later become North 
Carolina's first U.S. senator, agreed that ``impeachment . . . is a 
mode of trial pointed out for great misdemeanors against the public.''
    In the Virginia convention, several speakers argued that 
impeachable offenses were not limited to indictable crimes. For 
instance, James Madison argued that, if the president were to summon 
only a small number of states in order to try to secure ratification of 
a treaty that hurt the interests of the other unrepresented states, 
``he would be impeached and convicted, as a majority of the states 
would be affected by his misdemeanor.'' Madison suggested further that, 
``if the president be connected, in any suspicious manner with any 
person, and there be grounds to believe that he will shelter him,'' the 
president may be impeached. George Nicholas agreed that a president 
could be impeached for a nonindictable offense. John Randolph explained 
that ``[i]n England, those subjects which produce impeachments are not 
opinions . . . It would be impossible to discover whether the error of 
the opinion resulted from a willful mistake of the heart, or an 
involuntary fault of the head.'' He stressed that only the former 
constituted an impeachable offense. Edmund Randolph agreed that no one 
should be impeached for ``an opinion.''
    In the decade following ratification, the federal impeachment 
process remained a subject of some debate and concern. For instance, in 
the First Congress, then-Representative James Madison tried to calm the 
fears of some of his colleagues about possible presidential abuse of 
authority to remove executive officials by suggesting that the 
President ``will be impeachable by the House before the Senate for such 
an act of maladministration; for I contend that the wanton removal of 
meritorious officers would subject him to impeachment and removal from 
[office].'' Although one could construe Madison's comment as 
meretricious because it supported a position he had taken in a partisan 
debate rather than as a framer (and because it arguably conflicted with 
his objection in the constitutional convention to making 
``maladministration'' a basis for impeachment), Madison's comment is 
consistent with the stance he took in the Virginia ratifying convention 
to support presidential impeachment for nonindictable abuses of power.
    Immediately following his appointment to the Supreme Court in 1790, 
James Wilson gave a series of lectures as a professor of law at the 
College of Philadelphia to clarify the foundations of the American 
Constitution. In these talks, given in 1790-91 but published 
posthumously, Justice Wilson described the essential character of 
impeachments as ``proceedings of a political nature . . . confined to 
political characters, to political crimes and misdemeanors, and to 
political punishments.'' He emphasized that the founders believed that 
``[i]mpeachments, and offenses impeachable, [did not] come . . . within 
the scope of ordinary jurisprudence. They are founded on different 
principles; are governed by different maxims; and are directed to 
different objects: for this reason, the trial and punishment of an 
offence on an impeachment, is no bar to a trial and punishment of the 
same offence at common law.''
                                  ii.
    The relatively few comments made about the meaning of ``other high 
crimes and misdemeanors'' by the founders in the constitutional and 
state ratifying conventions do not definitively clarify the scope of 
impeachable offenses. The reason that this is so is not just because 
the founders failed to discuss the topic extensively or to anticipate 
all of the likely issues or cases that would arise in this area. The 
reason is that in choosing to make ``other high crimes or 
misdemeanors'' the basis for impeachable offenses, the founders 
deliberately chose terms of art that referred to a general category of 
offenses, the specific contents of which have to be worked out over 
time on a case-by-case basis.
    The great majority of commentators who have closely examined the 
likely meaning of the constitutional phrase ``other high crimes or 
misdemeanors,'' including, among others, Justice James Wilson,\9\ 
Justice Joseph Story,\10\ Chief Justice Charles Evans Hughes,\11\ 
Justice Arthur Goldberg,\12\ Charles Black,\13\ Raoul Berger,\14\ 
George Curtis,\15\ Arthur Bestor,\16\ Paul Fenton,\17\ Peter Hoffer and 
N.E.H. Hull,\18\ John Feerick,\19\ and John Labovitz (a former staff 
member of the House Judiciary Committee investigating President Nixon) 
\20\ have reached the same conclusion--that the phrase ``other high 
crimes and misdemeanors'' consists of technical terms of art referring 
to ``political crimes.'' They also have agreed that ``political 
crimes'' had a special meaning in the eighteenth century; ``political 
crimes'' were not necessarily indictable crimes. Instead, ``political 
crimes'' consisted of the kinds of abuses of power or injuries to the 
republic that could only be committed by public officials by virtue of 
the public offices they held. Although the concept of ``political 
crimes'' uses the term ``crimes,'' it did not necessarily include all 
indictable offenses. Nor were all ``political crimes'' (or impeachable 
offenses) indictable crimes.
---------------------------------------------------------------------------
    \9\ James Wilson, Lectures on the Law, No. 11, Comparison of the 
Constitution of the United States with that of Great Britain, 1 The 
Works of James Wilson 408.
    \10\ 2 Joseph Story, Commentaries on the Constitution of the United 
States, section 799, at 269-70 (rev. ed. 1991).
    \11\ Charles E. Hughes, The Supreme Court of the United States 19 
(1928).
    \12\ Arthur J. Goldberg, The Question of Impeachment, 1 Hastings 
Const. L.Q. 5, 6 (1974).
    \13\ Charles L. Black, Impeachment: A Handbook 35, 39-40 (1974).
    \14\ Raoul Berger, Impeachment: The Constitutional Problems 58 
(1974).
    \15\ George T. Curtis, Constitutional History of the United States 
260-61 (rev. ed. 1974).
    \16\ See Arthur Bestor, Impeachment (reviewing Raoul Berger, 
Impeachment: The Constitutional Problems (1974)), 49 Wash. L. Rev. 255, 
264-66 (1973).
    \17\ Paul S. Fenton, The Scope of the Impeachment Power, 65 Nw. U. 
L. Rev. 719, 726 (1971).
    \18\ Peter Hoffer & N.E.H. Hull, Impeachment in America, 1635-1805 
101 (1984).
    \19\ John Feerick, Impeaching Federal Judges: A Study of the 
Constitutional Provisions, 39 Fordham L. Rev. 1, 47-58 (1970).
    \20\ John Labovitz, Presidential Impeachment 26-89, 108-31 (1978).
---------------------------------------------------------------------------
    To appreciate what would constitute ``political crimes,'' 
one needs to go back to the British impeachment practices from 
which the founders drew the language ``other high crimes and 
misdemeanors'' and thus the concept of ``political crimes.'' In 
the English experience prior to the drafting and ratification 
of the Constitution, impeachment was primarily a political 
proceeding, and impeachable offenses were regarded as 
``political crimes.'' For instance, Raoul Berger observed in 
his influential study of the impeachment process that the 
English practice treated ``[h]igh crimes and misdemeanors [as] 
a category of political crimes against the state.''\21\ Berger 
supported this observation with quotations from relevant 
periods in which the speakers use terms equivalent to 
``political'' and ``against the state'' to identify the 
distinguishing characteristics of an impeachable event.\22\ In 
England, the critical element of injury in an impeachable 
offense had been injury to the state.\23\ The eminent legal 
historian, Blackstone, traced this peculiarity to the ancient 
law of treason, which distinguished ``high'' treason, which was 
disloyalty against some superior, from ``petit'' treason, which 
was disloyalty to an equal or an inferior.\24\ The late 
Professor Arthur Bestor explained further that ``[t]his element 
of injury to the commonwealth--that is, to the state and to its 
constitution--was historically the criterion for distinguishing 
a `high' crime or misdemeanor from an ordinary one.'' \25\ In 
summary, the English experience reveals that there was a 
``difference of degree, not a difference of kind, separat[ing] 
`high' treason from other `high' crimes and misdemeanors [and 
that] [t]he common element in [English impeachment proceedings] 
was [the] injury done to the state and its constitution, 
whereas among the particular offenses producing such injury 
some might rank as treasons, some as felonies and some as 
misdemeanors, among which might be included various offenses 
that in other contexts would fall short of actual 
criminality.'' \26\
---------------------------------------------------------------------------
    \21\ Id. at 61 (emphasis in original).
    \22\ Id. at 59-61.
    \23\ A. Bestor, supra note 16, at 264.
    \24\ See id. at 264 (quoting 4 W. Blackstone, Commentaries on The 
Laws of England 75 (1765-69). Blackstone commented that
---------------------------------------------------------------------------
      Treason . . . in its very name (which is borrowed from the 
      French) imports a betraying, treachery, or breach of faith 
      . . . [T]reason is . . . a general appellation, made use of 
      by the law, to denote . . . that accumulation of guilt 
      which arises whenever a superior reposes a confidence in a 
      subject or inferior, . . . and the inferior . . . so 
      forgets the obligations of duty, subjection, and 
      allegiance, as to destroy the life of any such superior or 
      lord. . . . [T]herefore for a wife to kill her lord or 
      husband, a servant his lord or master, and an ecclesiastic 
      his lord or ordinary; these, being breaches of the lower 
      allegiance, of private and domestic faith, are denominated 
      petit treasons. But when disloyalty so rears it's [sic] 
      crest, as to attack even majesty itself, it is called by 
      way of eminent distinction high treason, alta proditio; 
      being equivalent to the crimen laesae majestatis of the 
      Romans.
Id.
---------------------------------------------------------------------------
    \25\ Bestor, supra note 16, at 263-64 (citation omitted).
    \26\ Id. at 265.
---------------------------------------------------------------------------
    In addition, those delegates in the constitutional and 
state ratifying conventions who supported the federal 
Constitution seemed to have a shared understanding of 
impeachment as a political proceeding and impeachable offenses 
as essentially ``political crimes.'' \27\ The delegates at the 
constitutional convention were intimately familiar with 
impeachment in colonial America, which, like impeachment in 
England, had basically been a political proceeding. Although 
the debates in the convention primarily focused on the offenses 
for which the President could be impeached and removed, there 
was general agreement that the President could be impeached 
only for so-called ``great'' offenses.\28\ Moreover, the 
majority of examples given throughout the convention debates 
about the scope of impeachable offenses, such as Madison's 
preference for the phrase ``other high crimes and 
misdemeanors'' because it encompassed attempts to subvert the 
Constitution, confirm that impeachable offenses primarily 
consisted of abuses of power that injured the state (and thus 
were not necessarily limited to indictable offenses). Neither 
the debates nor the relevant constitutional language eventually 
adopted, however, identifies the specific offenses that 
constitute impeachable abuses against the state.
---------------------------------------------------------------------------
    \27\ See id. at 266.
    \28\ See R. Berger, supra note 14, at 88 (observing that ``James 
Iredell, later a Supreme Court Justice, told the North Carolina 
convention [during the ratification campaign] that the `occasion for 
its exercise [impeachment] will arise from acts of great injury to the 
community' '') (citation omitted).
---------------------------------------------------------------------------
    The ratification campaign further supports the conclusion 
that ``other high Crimes and Misdemeanors'' were not limited to 
indictable offenses, but rather included great offenses against 
the federal government. For example, delegates to state 
ratification conventions often referred to impeachable offenses 
as ``great'' offenses (as opposed to common law crimes), and 
they frequently spoke of how impeachment should lie if the 
official `` `deviates from his duty' '' \29\ or if he `` `dare 
to abuse the powers vested in him by the people.' '' \30\
---------------------------------------------------------------------------
    \29\ 4 The Debates in the Several States on the Adoption of the 
Federal Constitution 47 (J. Elliott ed. 1836) (A. MacLaine of South 
Carolina).
    \30\ 2 The Debates in the Several States on the Adoption of the 
Federal Constitution 47 (J. Elliott ed. 1836)(S. Stillman of 
Massachusetts).
---------------------------------------------------------------------------
    In Federalist No. 65, Alexander Hamilton echoed such 
sentiments, observing that ``[t]he subject [of the Senate's] 
jurisdiction [in an impeachment trial] are those 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 the society itself.'' \31\ Believing it unwise to submit the 
impeachment decision to the Supreme Court because of ``the 
nature of the proceeding,'' \32\ Hamilton argued the 
impeachment court could not be ``tied down'' by strict rules, 
``either in the delineation of the offense by the prosecutors 
[the House of Representatives] or in the construction of it by 
the judges [the Senate].'' \33\ In short, Hamilton too believed 
that impeachable offenses comprised a unique set of 
transgressions that defied neat delineation.
---------------------------------------------------------------------------
    \31\ The Federalist No. 65 (A. Hamilton), The Federalist Papers, at 
396 (C. Rossiter ed. 1961).
    \32\ Id. at 398.
    \33\ Id.
---------------------------------------------------------------------------
    Both Justices James Wilson and Joseph Story expressed 
agreement with Hamilton's understanding of impeachable offenses 
as political crimes. In his lectures on the new Constitution 
given immediately after his appointment to the Supreme Court, 
Justice Wilson referred to impeachments as involving, inter 
alia, ``political crimes and misdemeanors.''\34\ Justice Wilson 
understood the term ``high'' describing ``Crimes and 
Misdemeanors'' to mean ``political,'' while the latter term 
referred to bad conduct against the state. Similarly, Justice 
Joseph Story recognized the unique political nature of 
impeachable offenses: ``The jurisdiction is to be exercised 
over offences, which are committed by public men in violation 
of their public trust and duties. Those . . . duties are, in 
many cases, political. . . . Strictly speaking, then, the power 
partakes of a political character, as it respects injuries to 
the society in its political character.'' \35\ Justice Story 
also viewed the penalties of removal and disqualification as 
``limiting the punishment to such modes of redress, as are 
peculiarly fit for a political tribunal to administer, and as 
will secure the public against political injuries.'' \36\ 
Justice Story understood ``political injuries'' to be ``[s]uch 
kind of misdeeds . . . as peculiarly injure the commonwealth by 
the abuse of high offices of trust.'' \37\
---------------------------------------------------------------------------
    \34\ 1 James Wilson, Works, at 426 (G. McClaskey ed. 1967).
    \35\ J. Story, Commentaries on the Constitution of the United 
States section 385, at 272-73 (R. Rotunda & J. Nowak eds. 1987).
    \36\ Id. at 290.
    \37\ Bestor, supra note 16, at 263 (quoting 2 J. Story, 
Commentaries on the Constitution Sec. 788, at 256 (Boston 1833)).
---------------------------------------------------------------------------
    In much the same manner as Hamilton, Justice Story 
understood that the framers proceeded as if there would be a 
federal common law on crimes from which future Congresses could 
draw the specific or particular offenses for which certain 
federal officials may be impeached and removed from office. 
Justice Story explained that ``no previous statute is necessary 
to authorize an impeachment for any official misconduct.'' \38\ 
Nor, in Justice Story's view, could such a statute ever be 
drafted because ``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.''\39\ The implicit understanding shared by both Hamilton 
and Justice Story was that subsequent generations would not 
have a federal common law of crimes to guide them in 
determining impeachable offenses but rather would have to 
define on a case-by-case basis the political crimes serving as 
contemporary impeachable offenses.
---------------------------------------------------------------------------
    \38\ J. Story, supra note 35, section 405, at 288.
    \39\ Id. at 287 (citations omitted).
---------------------------------------------------------------------------
    The remaining problem is how to identify the nonindictable 
offenses for which certain high-level government officials may 
be impeached. This task is critical for providing notice to 
impeachable officials as to the conditions of, and for 
narrowing in some meaningful fashion, the grounds for their 
removal. The likeliest places to look for guidance are to the 
framers' debates or authoritative commentary on the meaning of 
the relevant constitutional language (as reflected above) and 
historical practices. The latter do provide some insight into 
the answer to this challenge. First, it is noteworthy that of 
the sixteen men impeached by the House of Representatives, only 
four were impeached primarily or solely on grounds strictly 
constituting a criminal offense: Secretary of War William 
Belknap (charged with accepting bribes); Harry Claiborne 
(charged with wilfully making false tax statements)) Alcee 
Hastings (charged with conspiring to solicit a bribe and 
perjury), and Walter Nixon (charged with perjury). One of these 
four--Alcee Hastings--had been formally acquitted of bribery 
prior to his impeachment. The House's articles of impeachment 
against the other twelve include misuses of power that were not 
indictable federal offenses at least at the time they were 
approved.\40\
---------------------------------------------------------------------------
    \40\ These twelve include Senator William Blount (impeached in 1797 
for encaging in a conspiracy to compromise the neutrality of the United 
States in disregard of the constitutional provisions for the conduct of 
foreign affairs and attempt to oust the President's lawful appointee as 
principal agent for Indian affairs, thereby intruding upon the 
President's supervision of the executive branch); Judge John Pickering 
(impeached in 1803 for making errors in conducting a trial in violation 
of his trust and duty and ``being a man of loose morals and intemperate 
habits'' who appeared on the bench drunk and used profane language); 
Associate Justice Samuel Chase (impeached in 1804 for allowing his 
partisan views to influence his conduct of two trials and for 
delivering ``an intemperate and inflammatory political harangue'' to a 
grand jury and thus conducting himself ``in a manner highly arbitrary, 
oppressive, and unjust''); Judge James Peck (impeached in 1826 for 
vindictive use of power in charging with contempt, imprisoning, and 
disbarring a lawyer who had publicly criticized one of his decisions); 
Judge West W. Humphreys (impeached in 1862 for neglect of duty because 
he had joined the Confederacy without resigning his position as a 
federal judge); President Andrew Johnson (impeached in 1868 for 
violating the Tenure in Office Act by removing a member of his cabinet, 
interfering with execution of that act, and making inflammatory 
speeches that subjected the Congress to ridicule); Judge Mark Delahay 
(impeached in 1876 for intoxication both on and off the federal bench); 
Judge George W. English (impeached in 1926 for using his office for 
personal monetary gain as well as for threatening to jail a local 
newspaper editor for printing a critical editorial and summoning local 
officials into court under pretext to harangue them); Judge Charles 
Swayne (impeached in 1903 for maliciously and unlawfully imprisoning 
two lawyers and a litigant for contempt and for using his office for 
personal monetary gain); Judge Robert Archbald (impeached in 1912 for 
direct and indirect personal monetary gain); Judge Harold Louderback 
(impeached in 1932 for direct and indirect personal monetary gain); and 
Judge Halsted Ritter (impeached in 1936 for direct and indirect 
personal monetary gain and for engaging in behavior that brought the 
judiciary into disrepute).
---------------------------------------------------------------------------
    Of the seven men who have been convicted and removed from 
office by the Senate, four were convicted and removed from 
office on the basis of nonindictable offenses. These four 
officials included Judge Pickering (convicted and removed for 
public drunkenness and blasphemy),\41\ Judge West H. Humphreys 
(convicted and removed by the Senate for having publicly 
advocated that Tennessee secede from the Union, organized armed 
rebellion against the United States, accepted a judicial 
commission from the Confederate Government, holding court 
pursuant to that commission, and failing to fulfill his duties 
as a U.S. District Judge),\42\ Judge Robert Archbald 
(convicted, removed, and disqualified by the Senate for 
obtaining contracts for himself from persons appearing before 
his court and others and for adjudicating cases in which he had 
a financial interest or received payment--offenses for which, 
as the Chairman of the House Impeachment Committee at the time 
conceded, no criminal charges could be brought),\43\ and Judge 
Halsted Ritter (who was convicted and removed from office on 
the sole basis that he had brought ``his court into scandal and 
disrepute, to the prejudice of said court and public confidence 
in the administration of justice therein, and to the prejudice 
of public respect for and confidence in the federal 
judiciary[]'').\44\ Of the remaining three officials who were 
convicted and removed from office by the Senate, all three were 
convicted and removed from office on the basis of indictable 
crimes. These three officials included Harry Claiborne (income 
tax invasion), Alcee Hastings (bribery and perjury), and Walter 
Nixon (making false statements to a grand jury). Prior to their 
impeachments and removals from office, two of these judges--
Claiborne and Nixon--had been indicted, convicted in federal 
court, and exhausted their criminal appeals.
---------------------------------------------------------------------------
    \41\ 2 Annals of Congress 319-22 (1804) [1804-1805].
    \42\ Cong. Globe, 37th Cong., 2d Sess. 2949-50 (1862).
    \43\ 48 Cong. Rec. 8910 (1912).
    \44\ 80 Cong. Rec. 5606 (1936).
---------------------------------------------------------------------------
    Given that certain federal officials may be impeached and 
removed from office for committing serious abuses against the 
state and that these abuses have not always been nor 
necessarily should be confined to indictable offenses, the 
persistent challenge has been to find contemporary analogues to 
the abuses against the state that authorities such as Hamilton 
and Justices Wilson and Story viewed as suitable grounds for 
impeachment. On the one hand, these abuses may be reflected in 
certain statutory crimes. (The Constitution itself defines 
treason as ``consist[ing] only in levying War against the 
[United States], or in adhering to their Enemies, giving them 
Aid and Comfort.''\45\) At least one federal criminal statute--
the bribery statute \46\--codifies an impeachable offense 
because bribery is expressly designated as such in the 
Constitution. Violations of other federal criminal statutes may 
also reflect abuses against the state sufficient to subject the 
perpetrator to impeachment, insofar as the offenses involved 
demonstrate willful misconduct and serious lack of judgment and 
respect for the law in the course of performing one's duties. 
In other words, it is conceivable there are certain statutory 
crimes that, if committed by public officials, reflect such 
lapses of judgment, abuses of the privileges of their offices, 
breaches of the public trust, disregard for the welfare of the 
state, and disrespect for the law and the office held that the 
occupant may be impeached and removed from office for lacking 
the minimal level of integrity and judgment sufficient to 
discharge the responsibilities of the office.
---------------------------------------------------------------------------
    \45\ U.S. Const., art. III, section 3, clause 1.
    \46\ 18 U.S.C. Sec. 201 (1982).
---------------------------------------------------------------------------
    On the other hand, not all statutory crimes demonstrate 
complete unfitness for office. For example, a President's 
technical violation of a law making jay-walking or speeding a 
crime ``obviously would not be an adequate basis for 
presidential impeachment and removal.'' \47\ Moreover, it is 
equally obvious that some non-criminal activities may 
constitute impeachable offenses. As Professor Laurence Tribe 
observed, ``[a] deliberate presidential decision to emasculate 
our national defenses or to conduct a private war in 
circumvention of the Constitution would probably violate no 
criminal code,''\48\ but would probably constitute a 
nonindictable, impeachable offense. The full range of such 
political crimes defies further specification, because it rests 
on the circumstances under which the offenses have occurred 
(including the actor, the forum, the scope of the officer's 
official duties, and the nature and significance of the 
offensive act), and on the collective political judgment of 
Congress.\49\
---------------------------------------------------------------------------
    \47\ Laurence Tribe, American Constitutional Law 294 (ed. ed. 
1988).
    \48\ Id.
    \49\ Constitutional safeguards apply to the impeachment process and 
should circumscribe congressional efforts to define political crimes. 
The Constitution includes several guarantees to ensure that Congress 
will deliberate carefully prior to making any judgments in an 
impeachment proceeding: (1) when the Senate sits as a court of 
impeachment, ``they shall be on Oath or Affirmation,'' U.S. Const. art. 
1, Sec. 3, cl. 6; (2) at least two-thirds of the Senators present must 
favor conviction in order for the impeachment to be successful, see 
id.; and (3) in the special case of presidential removal, the Chief 
Justice must preside so that the Vice-President, who otherwise normally 
presides, is spared from having to oversee the impeachment trial of the 
one person who stands between him and the presidency. See id.
    Two other safeguards are political in nature. First, members of 
Congress seeking reelection have a political incentive to avoid any 
abuse of the impeachment power. The knowledge that they may have to 
account to their constituency may lead them to deliberate cautiously on 
impeachment questions. Second, the cumbersome nature of the impeachment 
process makes it difficult for a faction guided by base political 
motives to impeach and remove someone from office. Thus, these 
structural and political safeguards help to ensure that, as a practical 
matter, serious abuse of power and serious injury to the Republic are 
the prerequisites for Congress' finding impeachable offenses.
---------------------------------------------------------------------------
                                  iii.
    The founders considered that political crimes would be clarified 
over time on a case-by-case basis. Consequently, congressional 
practices are important, because they help to illuminate Congress' 
deliberate judgments over the past couple of centuries on what 
constitutes an impeachable offense. Given the likelihood that Congress' 
judgments on impeachment are largely if not wholly immune to judicial 
review, these judgments take on even more importance than typical 
legislative actions because the former are, for all practical purposes, 
the final word on the scope of the federal impeachment power.
    When one surveys the sixteen formal impeachments brought by the 
House and the seven convictions and six acquittals rendered by the 
Senate, three noteworthy patterns emerge. The first is one to which I 
have already alluded--that the House has impeached and the Senate has 
removed people for offenses that have (at least technically) not 
constituted indictable crimes. There is, however, also a related 
tendency for the Senate to convict on the basis of indictable crimes or 
at least to find conviction easier to effect if an indictable offense 
were involved. Moreover, in the 1980s, the Senate convicted Judges 
Claiborne, Hastings, and Nixon on the basis of indictable offenses. The 
convictions of Claiborne and Nixon demonstrate that the Congress is 
especially likely to impeach and remove officials who have been 
previously convicted of felonies in court. Indeed, the criminal 
convictions of Claiborne and Nixon (and the Judicial Council's finding 
that Hastings had engaged in criminal misconduct) clearly put pressure 
on Congress to bring impeachment actions against these officials. That 
such convictions can bring such pressure is a matter of concern to many 
members of Congress and scholars, because it indicates that under 
certain circumstances criminal prosecutors can drive the impeachment 
process. Since the framers envisioned that criminal and impeachment 
proceedings are separate and that the discretions for initiating each 
belong to authorities in different branches, it is important for 
members of Congress to ensure that criminal prosecutors do not rob or 
unduly influence the former's constitutional discretion to initiate or 
conduct impeachment actions on the grounds that they think are 
appropriate.
    The second major trend is the widespread recognition that there is 
a paradigmatic case for impeachment consisting of the abuse of power. 
In the paradigmatic case, there must be a nexus between the misconduct 
of an impeachable official and the latter's official duties. It is this 
paradigm that Hamilton captured so dramatically in his suggestion that 
impeachable offenses derive from ``the abuse or violation of some 
public trust'' and are ``of a nature which may be peculiar propriety be 
denominated POLITICAL, as they relate chiefly to injuries done 
immediately to the society itself.''\50\ This paradigm is also implicit 
in the founders' many references to abuses of power as constituting 
political crimes or impeachable offenses. The paradigm here has become 
the three articles of impeachment approved by the House Judiciary 
Committee against Richard Nixon--charging obstruction of justice, abuse 
of powers, and unlawful refusal to supply material subpoenaed by the 
House of Representatives. These charges derived from Nixon's misuse of 
the powers and privileges of his office to facilitate his reelection 
and to hurt his political enemies as well as to frustrate or undermine 
inappropriately legitimate attempts to investigate the extent of his 
misconduct. Keeping Nixon in office would have demeaned the office 
irreparably.
---------------------------------------------------------------------------
    \50\ The Federalist No. 65 (A. Hamilton), supra note 31, at 365.
---------------------------------------------------------------------------
    Some of the House's decisions not to initiate impeachments or to 
approve impeachment articles as well as by the Senate not to convict 
are consistent with this paradigm. For example, the Senate failed to 
convict Associate Justice Samuel Chase in part because some members 
believed that the conduct on which the House's charges had been based 
did not rise to the level of impeachable offenses or could fairly be 
characterized as being the kinds of indiscretions or mistaken judgments 
that fall within the legitimate scope of a judge's authority. 
Similarly, the House voted 127-83 not to impeach President Tyler for 
abusing his powers based on his refusals to share with the House inside 
details on whom he was considering to nominate to various confirmable 
positions and his vetoing of a wide range of Whig-sponsored 
legislation. Tyler's attempts to protect and assert what he regarded as 
the prerogatives of his office were a function of his constitutional 
and policy judgments; they might have been wrong-headed or even poorly 
conceived (at least in the view of many Whigs in Congress), but they 
were not malicious efforts to abuse or expand his powers, as was true 
in Richard Nixon's case, for purely personal gain or aggrandizement. 
The Senate also refused to convict Andrew Johnson by the slimmest of 
margins, because a small but pivotal number of senators believed, among 
other things, that the charges brought by the House against him did not 
rise to the level of impeachable offenses and because Johnson's real 
crimes were mistaken or erroneous judgment rather than malicious abuse 
of power. The outcomes of the efforts to try to oust Presidents Tyler 
and Johnson confirm the suggestion made by Professors Peter Hoffer and 
N.E.H. Hall in their excellent study of the history of impeachment in 
the United States, that ``impeachable offenses are not simply political 
acts obnoxious to the government's ruling faction.''\51\ In this 
century, the House rejected then-Representative Gerald Ford's 
resolution to initiate an impeachment action against Justice William O. 
Douglas, at least in part because a majority of members were not 
persuaded that either Douglas' lifestyle or the substance or content of 
his decisionmaking was a relevant subject for an impeachment inquiry. 
Moreover, the House Judiciary Committee refused to bring an article of 
impeachment against President Nixon based on fraud in preparing his 
taxes, at least in part because it was not the kind of misconduct that 
could only have been committed by a president because of the special 
office or trust he held.
---------------------------------------------------------------------------
    \51\ P. Hoffer & N.E.H. Hull, supra note 18, at 101.
---------------------------------------------------------------------------
    It is also fair to say that the vast majority of the impeachments 
that have been brought by the House and the convictions that have been 
rendered by the Senate follow the paradigmatic case. Most if not all of 
the officials impeached by the House \52\ and the seven officials 
convicted and removed by the Senate were found to have misused their 
offices or their prerogatives or breached the special trusts that they 
held by virtue of holding their federal offices.\53\ For example, in 
1986, the House impeached and the Senate convicted and removed federal 
district judge Harry Claiborne from office based on income tax evasion. 
At first glance, it seems as if Claiborne's misconduct has no formal 
relationship to his official duties. Nevertheless, it is conceivable 
that Congress' judgment in impeaching and removing Claiborne was that 
integrity is an indispensable criterion for someone to continue to 
function as a federal judge. Moreover, commission of tax evasion robs a 
federal judge of the moral authority required to oversee trials of 
others for the very same offense. In other words, a federal judge must 
have integrity beyond reproach in order to perform the functions of his 
or her office. While integrity is obviously important for a president 
(or, for that matter, any public official), it is not necessarily a 
sine qua non, especially given all the checks that exist for 
scrutinizing political officials' actions.
---------------------------------------------------------------------------
    \52\ These officials include the following: Senator William Blount 
(for engaging in conduct that not only undermined presidential 
authority and undermining the national government's relations with 
various Indian tributes but also acting in a manner ``contrary to the 
duty of his trust, in violation of the obligations of neutrality, and 
against the laws of the United States, and the peace and interests 
thereof''); Judge John Pickering (for making errors in conducting a 
trial in violation of his duty and trust and engaging in behavior on 
the bench unbecoming of a federal judge); Associate Justice Samuel 
Chase (for conducting himself on the bench ``in a manner highly 
arbitrary, oppressive, and unjust''); Judge West Humphreys (for neglect 
of duty); President Andrew Johnson (for violating the Tenure in Office 
Act and exercising his authority to interfere with the proper execution 
of the law); Judge Mark Delahay (for intoxication both on and off the 
bench); Secretary of War Belknap (for receiving an illegal payment in 
exchange for making a military appointment); Judge George English (for 
using his office for personal monetary gain); Judge James Peck (for 
vindictive use of power); Judge Charles Swayne (for exercising his 
power maliciously and using his office for personal monetary gain); 
Secretary of War William Belknap (for receiving illegal payments in 
exchange for making an appointment); Judge Robert Archbald (for using 
his office for improper financial gain); Judge Harold Louderback (for 
using his office for improper financial gain); Judge Halsted Ritter 
(for engaging in behavior that brought disrepute to the judiciary); 
Harry Claiborne (for income tax evasion); Alcee Hastings (for bribery); 
and Walter Nixon (for making false statements to a grand jury). All 
seven convictions and removals made by the Senate have involved abuses 
of power and serious breaches of the public trust: Judge John Pickering 
(for drunkenness and senility); Judge Humphreys (for neglect of duty); 
Judge Archbald (for bribery); Judge Ritter (for engaging in misbehavior 
that brought the judiciary into disrepute); Judge Claiborne (tax 
evasion); Judge Hastings (conspiracy to solicit a bribe); and Judge 
Nixon (for making false statements to a grand jury).
    \53\ See supra notes 41-44 and accompanying text.
---------------------------------------------------------------------------
    A similar argument could be used to explain the House's impeachment 
and the Senate's conviction of Walter Nixon in 1989. Nixon was 
impeached and removed for making false statements to a grand jury. In a 
criminal trial, he had been convicted of making false statements to a 
grand jury about the efforts he had undertaken to influence a criminal 
prosecution of the son of a business partner. Clearly, the misconduct 
alleged did not strictly relate to Nixon's formal actions as a federal 
judge (i.e., he was not necessarily functioning as a federal judge when 
talking with the prosecutor about dropping the case). Nevertheless, 
whatever influence he had available to exercise on behalf of his 
business partner's son existed by virtue of the federal judgeship he 
held. Moreover, making false statements to a grand jury impugns a 
judge's integrity at least as much if not more than tax evasion (which 
involves the making of false statements under oath in a different 
setting). Again, Congress could have reasonably concluded that 
questionable integrity robs a federal judge of the most important 
commodity he must have in order to perform his constitutional function.
    It is, however, conceivable that the Congress' impeachment 
decisions regarding Claiborne, if not those involving Nixon, might be 
better explained or understood as reflecting not an extension of the 
paradigm but rather the possible existence of a second category of 
impeachment cases in which the nexus between an official's misconduct 
and his or her official duties is not so clear. This second category 
consists of those cases in which the misconduct in which an impeachable 
official has engaged is so outrageous that it is plainly incompatible 
with their status or renders them so ineffective that Congress has no 
choice but to impeach and remove those officials from office. Congress 
could have decided that the misconduct for which it was impeaching 
Claiborne as well as Nixon was sufficiently outrageous or destructive 
of their capacities to function effectively as federal judges as to 
justify their removals from office. There is little doubt that 
Congress' perception that each judge had engaged in such outrageous 
misconduct had been reinforced by the facts that prior to both judges' 
impeachments they had been criminally prosecuted and convicted and 
imprisoned.
    The possible existence of this second category of impeachable 
offenses helps to explain one of the most vexing hypotheticals 
repeatedly raised involving the impeachment process--whether a 
President may be impeached and removed from office for murder. The 
nexus between the President's misconduct--murder--and his official 
duties (taking care to enforce the laws faithfully) is not readily 
apparent, for it is not clear that the President's oath obligates the 
President in his private capacity to comply with every single law, even 
those that he does not have the formal authority to enforce. 
Nevertheless, impeachment, in all likelihood, is appropriate. The best 
explanation why this is so was made by Professor Charles Black in his 
magnificent study of the impeachment process: ``Many common crimes--
willful murder, for example--though not subversive of government or 
political order, might be so serious as to make a president simply 
unviable as a national leader. I cannot think that a president who had 
committed murder could not be removed by impeachment. But the 
underlying reason remains much the same; such crimes would so stain a 
president as to make his continuance in office dangerous to public 
order.'' \54\
---------------------------------------------------------------------------
    \54\ C. Black, supra note 13, at 39. It is noteworthy that Justice 
Story was uncertain about whether murder was an impeachable offense. He 
was not sure about the validity of William Rawle's assertion that the 
``legitimate causes of impeachment . . . have reference only to public 
character, and official duty. . . . In general, those offences, which 
may be committed equally by a private citizen, as a public officer, are 
not the subjects of impeachment. Murder, burglary, robbery, and indeed 
all offences not immediately connected with office [except treason and 
bribery] are left to the ordinary course of judicial proceeding.'' J. 
Story, supra note 35, section 799, at 269-70 (quoting William Rawle, A 
View of the Constitution of the United States of America 215 (2d. ed. 
1829)). In other words, at least for Rawle, the impeachment process 
could only properly focus on those acts committed or performed by a 
president strictly in ``his public character.'' 2 Jonathan Elliott, The 
Debate in the Several State Conventions on the Adoption of the Federal 
Constitution 480 (rev. ed. 1987) (quoting from remarks of James Wilson 
in Pennsylvania ratifying convention). That the distinction recognized 
by Justice Story between the public acts that provide appropriate bases 
for impeachment and the private conduct that does not is accepted by 
most impeachment scholars. The critical question has to do with what is 
the appropriate dividing line between the two. Congress tends to answer 
this question on a case-by-case basis. Even so, this distinction does 
help to explain further why the House Judiciary Committee decided not 
to charge Richard Nixon with income tax fraud, why the House decided 
not to approve an impeachment inquiry of Justice William O. Douglas 
based on his lifestyle or multiple marriages, and why Alexander 
Hamilton was never subjected to impeachment for having engaged (by his 
own admission) in an adulterous affair with a married woman (whose 
husband then blackmailed Hamilton to keep the liaison secret.). The 
fact that Harry Claiborne and Walter Nixon each were charged with 
impeachment for seemingly private actions turns on appreciating that 
integrity is indispensable for the performance of a judge's 
constitutional responsibilities.
---------------------------------------------------------------------------
                               conclusion
    My sense of the history of the federal impeachment process, as 
reflected in the debates in the constitutional and state ratifying 
conventions and Congress' subsequent exercises of its impeachment 
authority, is that ``other high crimes or misdemeanors'' are technical 
terms of art that refer to so-called political crimes. Political crimes 
are abuses of power or the kinds of misconduct that can only be 
committed by some public officials by virtue of the public offices or 
special trust that they hold. These political crimes are not 
necessarily indictable offenses. Not all political crimes are 
indictable offenses, and not all indictable offenses are political 
crimes.
    Whether or not some misconduct by a public official is a political 
crime or rises to the level of an impeachable offense turns on a number 
of different factors. These factors are apparent from studying 
Congress' impeachment decisions and practices; these factors include 
but are not limited to the seriousness of the misconduct, its timing, 
the link between the misconduct and the official's official 
responsibilities or special trust held by virtue of the positions held 
by the officials, alternative means of redress, and the degree of 
injury caused to the republic by the misconduct in question.
    Studying Congress' impeachment decisions also reveals some 
noteworthy patterns. Most if not all impeachments made by the House and 
convictions made by the Senate have followed or approximated the 
paradigm of an impeachment--the abuse of official power or privilege. 
The one or at most two impeachments that do not fit neatly into this 
first category--those of Harry Claiborne and Walter Nixon--might be 
explained either on the grounds of the special obligations of federal 
judges by virtue of their unique status and function or as signaling 
the possible existence of a second category of offenses consisting of 
the kinds of misconduct that are so outrageous that the officials who 
have committed them have been rendered completely ineffective and 
Congress has no choice but to impeach and remove those officials.

    Mr. Canady. Thank you, Professor Gerhardt.
    Professor Holden.

STATEMENT OF MATTHEW HOLDEN, JR., DEPARTMENT OF GOVERNMENT AND 
            FOREIGN AFFAIRS, UNIVERSITY OF VIRGINIA

    Mr. Holden. Thank you.
    Mr. Canady. Professor, you need to pull the microphone 
closer.
    Mr. Holden. Let me say, Mr. Chairman, I may be able to 
return some time to you indeed. As the full statement 
indicates, I appear here as a political scientist, not a 
lawyer. I am a layperson who has paid attention to these 
matters for some while, and in a certain sense I want to 
contribute to rescuing some of this from what can be an 
excessively refined discussion.
    The long and short of it is, as I look at this matter, I 
have a conclusion which the committee may or may not welcome, 
but my formal statement says that the process has gone 
sufficiently far and indeed should be terminated. The reason I 
take that approach is that the essential question, as stated by 
Professor McDowell, although I think he and I might disagree 
with some of the implications, essentially the overriding 
question is where does this process fit into the continuing 
health of the political system? That is the key question. That 
is the overriding question.
    For some time I have been saying that the question you have 
to ask is what is the purpose of the impeachment technique in 
the Constitution? And the purpose is, to broadly state it, and 
one speaks of such things as public trust, fundamentally the 
purpose of the technique has to be understood as following the 
logic of the Constitution as designed. That logic is a 
separation of powers logic, which means that having created an 
independent President, freestanding within our electorate and 
with wide powers. The one thing that is requisite is to have 
some means in the most extreme cases of protecting the rest of 
the polity against presidential encroachment. That is the 
central element.
    If you think of this as in the position of ``Lead, Kindly 
Light'' when Cardinal Milan was at sea and needed the light, 
that focus is that which maintains the effective separation of 
powers, and ultimately, although I know the lawyers will 
disagree with me, ultimately that means that which maintains 
the authority of the Congress. Therefore, all actions must be 
regarding whether they encroach on the ultimate capacity of the 
Congress to act. When the political relationships, i.e. when 
there are enough votes to override, will the ultimate capacity 
of the Congress be disarranged by whatever the President is 
said to have done? If the ultimate capacity is not disarranged, 
then you have to look to other means, whatever your 
dissatisfaction.
    Let me go on to say that ``high Crimes and Misdemeanors'' 
should be understood in that light. We should not miss the 
powerful word ``other'' in Article II, section 4. ``Other,'' as 
Justice Curtis who represented Johnson said, ``other'' of a 
status equal to treason or bribery, not ``other'' simply 
because we can find it. Furthermore, we should look to the 
question, I think we have been a little too broadly, high 
Crimes and Misdemeanors, there is experience.
    If you walk through a document that Congress itself paid 
for called Elliot's Debates, and you read page after page, 
there is very little of the high-flown theorizing. There are 
practical discussions of what it involves, and that mainly 
involves severe presidential encroachment in the foreign policy 
area, bribery and other matters. And if you look there, you 
also find very practical illustrations of what people mean by 
high Crimes and Misdemeanors.
    There is a reference that you may or may not have noticed 
to Hastings. Warren Hastings in the case of India had engaged 
in actions which, if done today, would get him on the State 
Department's list for human rights violations. If he would have 
done them today, they would be described as egregious torture 
and so on. Whether Hastings did those things, we do not know. 
That is what he was accused of in a trial that ran for seven 
years, a trial prosecuted by Edmund Burke, and Hastings 
ultimately was acquitted.
    Another example, in the Virginia convention they debated 
what the President could do about calling sessions of treaties 
so rigged as to exclude people who opposed the treaties. And 
Madison jumped up and said, ``oh, that wouldn't happen, and if 
it did, he would be impeached for his misdemeanor.''
    Just a few years before the convention met there was 
another case of a similar sort that I refer you to, involving 
the arrest of a governor out in India by his subordinates who 
put him in jail and he died in jail. Ultimately they were tried 
for a misdemeanor. They were fined.
    If you look at real history in that light, you say that the 
things being called misdemeanors are of a gross scale, in no 
way comparable in no way to any of the things now being 
discussed. Let me go on to say if you look at that, there are 
some other issues that are worth noting, but I would make the 
further point that there is something that the Congress somehow 
should take account of, and that is that the change in 
technology and the change in public relations so changes the 
world that the hope of the Senate as an impartial tribunal is 
seriously jeopardized.
    That is, people have been citing Federalist No. 65 to 
introduce Alexander Hamilton, but Federalist No. 65 is mostly 
about the function of the Senate. The rest of that language is 
useful language and is about Hayes trying to justify the Senate 
as a trial vehicle, and the question is how can the Senate 
function as an effective court? It is a very serious question 
here as to whether it can possibly do so, although I recognize 
it is a body you do not control.
    Let me come, then, to the final point. The most important 
thing for the chairman to take account of is the political 
effect. I have in another setting referred to impeachment as a 
caged lion, and I have said you should not let the lion out of 
the cage. I mean by that much the same thing that James J. 
Kilpatrick, with whom I am not normally expected to agree, said 
in a recent article in the Buckley magazine that he was not 
referring to impeachment, he was referring to a court's 
decision to allow the Paula Jones case to proceed while the 
President was in office. And he said with his directness that 
the court is wrong. He said it will open up trumped-up lawsuits 
against future Presidents.
    If twice in this century, twice in 25 years we open up the 
impeachment process, we domesticate this weapon. We do not lead 
to successful impeachments, we lead to successful impeachment 
wars. All civil officers, Vice Presidents are susceptible, 
Cabinet officers are susceptible, and people who are deeply 
motivated--I am out of time, and I will stop. If you have a 
question, I will come back to it.
    [The prepared statement of Mr. Holden follows:]
Prepared Statement of Matthew Holden, Jr.,\1\ Department of Government 
              and Foreign Affairs, University of Virginia
---------------------------------------------------------------------------
    \1\ Communication, substantive or technical, on this statement 
should be directed to the author at: Department of Government and 
Foreign Affairs, University of Virginia, Room 232 Cabell Hall, 
Charlottesville, VA 22903 USA. Fax: 804-924-3359 E-mail: 
mh3q@virginia.edu.
---------------------------------------------------------------------------
    Mr. Chairman, Members of the Committee: I am deeply appreciative of 
the invitation to put before you today my views in this critical 
hearing on ``The Background and History of Impeachment.'' My statement 
today is elaborated and expanded from a version that served as the 
basis for my statement in the Congressional `Town Hall' Briefing, on 
October 1, 1998. At that time, I had a skeptical view, but had reached 
no definitive conclusion as to the process. After much reflection in 
the next three weeks, I reach the conclusion stated in this paper. I 
should also make very clear that the views here are mine alone, and do 
not represent the views of any institution or organization with which I 
have any connection or responsibility. The impeachment of judges 
involves questions of a qualitatively different character. I do come 
somewhat in the spirit of John Milton, upon whose magisterial language 
I draw:

          They who to states and governors of the Commonwealth direct 
        their speech, high court of parliament, or wanting such access 
        in a private condition, write that which they foresee may 
        advance the public good, I suppose at the beginning of no mean 
        endeavor, not a little altered or moved inwardly in their 
        minds; some with doubt of what will be the success, others with 
        fear of what will be the censure, some with hope, others with 
        confidence of what they have to speak.\2\
---------------------------------------------------------------------------
    \2\ From ``Areopagitica,'' in Stephen Orgel and Jonathan Goldberg 
(Eds.), John Milton, New York: Oxford University Press, 1991, 237.

    Let me start with what is common ground that we all know. 
Impeachment is the making of an accusation against a public 
official.\3\ An impeachment is similar to any other accusation in one 
respect. It embarrasses the accused official. But it does not take away 
any authority. It may have little, if any, consequence until the 
accused has been found guilty in a trial. We are here discussing 
Presidential impeachment. With respect, from a deep concern for the 
political system, the process should now be terminated.
---------------------------------------------------------------------------
    \3\ Steven E. Gifis, Law Dictionary, Hauppage, NY: Barrons 
Educational Series, 1996, 236; and, Black's Law Dictionary, Sixth 
Edition, St. Paul: West Publishing Co., 1990, 753.
---------------------------------------------------------------------------
    The issues have thus far been framed principally in legal terms. I 
do not claim legal competence, and leave those critical issues to 
others. I approach the impeachment issue as a political scientist. As 
one who has thought about governmental matters for some years, though 
admittedly without the benefit of a legal education, I express the view 
that Congress is fundamentally doing the wrong thing. Its focus is upon 
``what should be done about Bill Clinton?'' based upon the predicate 
that at all cost, something must be done. Congress may have the 
ingenuity to craft some means, within its unchallenged powers under 
Article I, other than impeachment, of responding to the situation. But 
any further proceeding under the impeachment mode degrades the 
Constitution by seeking to squeeze from it authority that cannot be 
located there. Moreover, it sets the path for many years of intense 
political struggle in which all sorts of groups and interests seek to 
exploit this newly revived weapon.
    The reported business transactions known as ``Whitewater,'' as well 
as the reported inquiry into certain records of some Republican 
leaders, known as ``Filegate,'' might in principle involve substantial 
issues about which citizens should rightly be concerned. \4\ Various 
speculations have appeared for a long time as to the nature and 
direction of the Independent Counsel's inquiry. At one time, the 
speculation was that the First Lady had become the target of the 
investigation. \5\
---------------------------------------------------------------------------
    \4\ (The matter designated ``Travelgate'' never seemed to be of any 
consequence, although I might stand to be corrected.)
    \5\ Rush Limbaugh, who has a certain standing amongst those who 
strongly disapprove of President Clinton, appeared to criticize the 
President for statements that Limbaugh said indicated the President had 
no confidence that his wife could withstand the charges that Limbaugh 
expected would be forthcoming.
---------------------------------------------------------------------------
    When the public media reported that the office of Independent 
Counsel had begun to make inquiries into the President's social 
relationships with various women, I privately characterized it as 
`peephole politics.' It seemed to me to indicate that there was little 
definitive to report as the important matters with which the 
investigation had begun. Within the past eleven months or so the 
original matters have been no part of any report of the Independent 
Counsel that is publicly known. As it happens, the secondary matters--
various personal relationships between the President, Ms. Monica 
Lewinsky (and, assertedly, possibly others) have come to the forefront.
    It is important, first of all, to state that the reported 
``outrage'' and ``disgust'' with the things the President is reported 
to have done may be less than meets the eye. There is one cluster of 
critics whose attitudes are about the sexual relationships. The basic 
core, however is composed of those who so intensely dislike Bill 
Clinton, that there is nothing he could do that would satisfy them, 
except remove himself from American politics. In one case, there was 
the business executive whose house guest I was, described Clinton, on 
the basis of his pre-1992 history, in terms that even now I would not 
put into a document.
    The question is whether a critic of that degree would ever fail to 
find any basis for impeachment. Then there are the critics whose 
formulations do come after Ms. Lewinsky appeared in the public 
consciousness. For some critics, adultery is the besetting ill, in that 
sex outside marriage is inherently bad.
    Another set of critics seem similar to a business executive who 
thought it deceptive to discuss what was impeachable and what was not. 
The objection was President Clinton's having sex with a female young 
enough to be his daughter. He ``turned her head'' and ``took 
advantage.'' Presumably, he did not have such strong objections or 
reactions to the fact of an extra-marital relationship in itself.
    Still another set of critics is troubled by what they see as an 
essential mechanical relationship, and by sex that approaches the R-
rated, if not X-rated, ``kinky'' type.
    For some others, it may be less what happened than in its 
revelation, which ``embarrassed us (Americans in general) in front of 
the world.'' Still others are troubled by the presumptive callousness 
that yielded such embarrassment to his wife and daughter, for whom the 
critics feel a certain sympathy. All this is about the sexual 
relationship itself. Some critics shift to the ethical or legal level 
in talking about the President's responses in attempting to cover up 
the relationship. Thus, the action that they find objectionable is 
``trying to get others to lie about it.'' This enters into the terrain 
that some find the most decisive, namely ``lying to the grand jury.''
    For many people, thus, the experience since 1993 proves what they 
already knew. The person involved is no good, and should not be in 
office. Finally, at the political level, amongst those who identify 
with him politically, the injury consists in ``causing us who supported 
him, admired him, or found our futures tied to him to be injured.'' 
Some of the same people overlap with others who assert the President's 
actions undermined good policy, by contributing to a situation in which 
sexual harassment would now be given less weight. Finally, there are 
those who worry about his own emotional state or interior world--
``compulsive'' is hard to overcome, no matter how good the persons's 
intentions or strong the sense of regret or sorrow for what has been 
done. All these attitudes, and perhaps others, appear somewhere in the 
decision-making process.
    The question that many want to focus upon is ``what should be done 
about Bill Clinton?'' There are now those who urge impeachment of the 
President under present conditions. There are, of course, at least a 
few persons who have been urging impeachment since 1994, \6\ or at 
various points since then. The President's most intense critics say 
that the answer is ``impeach him, try him, convict him, remove him from 
office, and then indict him, try him, convict him, and sentence him'' 
on criminal charges.
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    \6\ I have not taken the opportunity to go back and find the 
citation, but I take note of the magazine writer who, in 1994, 
expressed his forecast (and his hope from the view he held) that 
``he'll be gone by the end of the year.'' The ``he'' referred to was 
the President.
---------------------------------------------------------------------------
    But the key that most people appear to accept that the criterion is 
in that in the Constitution. Presidents may be impeached, according to 
the formal language for ``treason, bribery, or other high crimes and 
misdemeanors.'' No responsible person claims that treason or bribery 
are at stake in 1998, so the present issue will be governed by the 
ability to decide what the President did falls within or without the 
residual category of ``high crimes or misdemeanors.''
    Even in asking if ``these acts''--reported acts by the President--
``are impeachable,'' which is the highest-ranking question so far, 
Congress has given inadequate attention to the fundamental question of 
the health of the political system. Some of those now urging 
impeachment, say that impeachable offenses are whatever the House wants 
to say they are. That may be true in the sense that, if a solid and 
undeterred majority shall want to do so, no one can prevent their doing 
so. The question is whether the House should now exercise so awesome a 
power and resurrect this impeachment as a weapon. My answer now is that 
it should not. Any decision to impeach and remove a President should 
take into account the health of the political system, and should be 
reached only on the gravest conditions.
    Virtually everyone who has put views on the public record agrees 
that the actions by the President are not to be condoned, whether those 
actions be his relationship with Ms. Lewinsky or his lies in the legal 
process that followed. But Members of Congress, whose obligation is to 
uphold the Constitution, should approach the Presidential impeachment 
question with full seriousness about that Constitution itself. Chief 
Justice William H. Rehnquist has referred to the impeachment power as a 
``wild card'' in the Constitution. If it had been used more, it would 
have reduced both the independence of the President from legislative 
control and the independence of the judiciary. \7\
---------------------------------------------------------------------------
    \7\ William H. Rehnquist, ``The Impeachment Clause: A Wild Card in 
the Constitution,'' 85 Northwestern University Law Review 4 (1991), 
903-918.
---------------------------------------------------------------------------
    The Constitution was not made by obvious agreement amongst people 
who had a consensus, nor by people who somehow got the right principles 
out of the middle of the air. Rather, it arose out of a set of 
political leaders who very much wanted to create a new arrangement, 
against another set of leaders who did not want this new arrangement, 
even when they did not know exactly what else they wanted. The 
viability of the constitutional system should not itself be taken for 
granted. In dealing with these 1998 manifestations, members of Congress 
today must recognize the complexity of the system within which they are 
placed, and of the delicacy of not disarranging the essential features.
    Congress has both authority and responsibility to make prudent 
judgments as to what is consistent with the requirements of the 
political system. Indeed, the House, in particular, has both authority, 
and responsibility in the interest of protecting the constitutional 
system, precisely to exercise prosecutorial discretion. It is common, 
in the exercise of prosecutorial discretion, to make a judgment whether 
something should go forward, even if there is a legal basis on which an 
argument for going forward can be made.
         i. the health of the political system is the key issue
    The impeachment effort is leading us into actions that greatly 
imperil the political system. Now as some, including some members of 
Congress, will denounce ``politics,'' I have to say a few words about 
the political system. ``System'' is not a bad word. \8\ Everyone who 
has ever had a physical injury knows all the adjustments you have to 
make because one thing, that you never thought about before (such as 
your back) is not working properly. The body is a system. Some years 
ago I served on a corporate board with a banker, a remarkable man now 
deceased, who would say ``you press down on something here, something 
else pops out over there.'' He was talking about the system in which 
decisions were made.
---------------------------------------------------------------------------
    \8\ Robert Jervis, System Effects: Complexity in Political and 
Social Life, Princeton: Princeton University Press, 1997, 5-6 and, 
especially, 6, n. 10.
---------------------------------------------------------------------------
    Now let us combine the word ``politics'' with the word ``system.''
    ``Politics'' is not a bad word, nor necessarily a word about 
something bad. Walton Hamilton, a brilliant man, a lawyer who never 
went to law school, I am told, though he taught at one, defined 
politics in ``the Aristotelian sense.'' He spoke of ``the usages and 
traditions, the arrangements and practices, which human beings are 
governed, and by which human beings attempt to shape destiny.'' 
(Hamilton's actual text refers to ``men,'' and I have substituted 
``human beings.'' Whenever I teach about half to three quarters of the 
undergraduates are women, and I have learned that contemporary usage 
often requires one to stop and make the formal statement that the term 
``men'' really refers to ``human beings.'' So I do it here as well.) 
\9\ Some mean, when they speak of ``political,'' something akin to 
infantry squad tactics, in which one side will get the other side, with 
no restraint shown. I know about ``the televised soapbox and the 
wrangle for votes.'' Politics is how people organize to conduct their 
common affairs, whether in public government or, for that matter, in 
corporations, trade unions, churches, and all other human 
institutions.\10\
---------------------------------------------------------------------------
    \9\ Walton Hamilton, The Politics of Industry, New York: A. A. 
Knopf, 1957, 6.
    \10\ Since, in these debates about the impeachment issue and the 
future of President Clinton, there will be a great many references to 
the framers of the Constitution, Congress, writers and commentators, 
and citizens in general would be well advised to take in account the 
views about human nature that the framers gave voice to repeatedly.
---------------------------------------------------------------------------
    Whenever a purpose is chosen, there is a logic of action that 
follows. You cannot sustain the purpose and take actions that undermine 
what the initial action was intended to protect, or that facilitate 
actions that the initial action was designed to prevent. More than 
anything else, the impeachment technique is designed to protect the 
separation of powers system and to prevent its being negated. The 
political logic would have to be that if a strong executive were to be 
created, independent of the legislative body, and if the legislative 
body could not dismiss the executive, then it would have to have some 
other means of influence or control in the extreme cases where the 
fundamental authority of the legislative body would otherwise be 
negated. The offenses attributed to the President, or the actions 
attributed to the President, have virtually no relation to the reasons 
for having impeachment in the Constitution.
                      ii. whence came impeachment?
    The American impeachment is a modified version of English 
impeachment. To understand the modified version we need some idea of 
the original, especially as ``six hundred years of history'' is a term 
being heard more often. There are some rough benchmarks in time past: 
about six hundred years ago when the English began to use impeachment; 
a little under five hundred years ago when they let it alone; about 
three hundred and seventy years ago when they started using it again 
with a vengeance; two hundred years ago when the American constitution 
framers made provision for it; and a little under two hundred years ago 
when the English let it fall away again.
    The English experience is relevant for three reasons.

          1. It is the basis for what the framers knew in 1787, and we 
        can best explain the decisions embodied in the language of the 
        Constitution by starting with what the framers knew and when 
        they knew it.
          2. Lawyers rely upon the history as establishing a concept of 
        the law.
          3. Human beings change, in basic motivations and reactions, 
        very little, although action changes because of circumstances 
        and conditions. The kind of conflict involved in impeachments 
        in the past are likely to show themselves in impeachments of 
        the present.

    Twentieth century Americans, in order to grasp what the framers 
decided, need to take account of what the framers knew. The American 
Framers in 1787 did not have any good models at hand as to how to make 
a new governmental system.\11\ They more or less designed a system 
combining the elective Presidency, the bicameral Congress, and the 
separation of powers (``the regular distribution of power into distinct 
departments'' as Hamilton calls it) and checks and balances.\12\ They 
did not have experience with the type of system they were creating, 
though some, notably James Madison, had done a good deal of preparatory 
work. (Madison had, indeed, gone in for what would now be a massive 
research project of the type that a private foundation or some 
governmental study commission would undertake.\13\) A few were widely 
read, and some had a good deal of experience, though this can be 
overstated since they were so young a group.\14\ In any event, every 
member had lived under English government, bought and sold goods under 
English practices, lived under English law, and had some knowledge of 
English history. They did generally turn to English experience for 
inspiration--the young (30 year old)--Alexander Hamilton being the 
notable exception, and sometimes turned away from it on purpose. But 
absent turning, it was what they adopted more or less without thinking 
because it was too hard to act de novo on everything, and what 
sometimes they chose on purpose.
---------------------------------------------------------------------------
    \11\ Calvin Jillson, Constitution Making: Conflict and Consensus in 
the Federal Convention of 1787, New York: Agathon Press, Inc., 1988.
    \12\ The separation of powers was specifically described by 
Alexander Hamilton as an American improvement in ``the science of 
politics.'' In Federalist No. 9, Hamilton to ``the petty republics of 
Greece and Italy'' and the pessimistic conclusions to be inferred. 
``The science of politics, however, like most other sciences, has 
received great improvement. The efficacy of various principles is now 
well understood, which were either not known at all, or imperfectly 
known to the ancients.'' The principles that he mentions have the 
separation of powers at the head of the list that also includes checks 
and balance ``the institution of courts composed of judges holding 
their offices during good behavior; the representation of the people in 
the legislature by deputies of their own election; these are wholly new 
discoveries, or have made their principal progress towards perfection 
in modern times.'' Federalist No. 9 (Modern Library edition), 48.
    \13\ William Lee Miller, The Business of May Next, Charlottesville: 
University Press of Virginia, 1994.
    \14\ Stanley Elkins and Eric McKitrick, ``The Founding Fathers: 
Young Men of the Revolution,'' Political Science Quarterly LXXVI, No. 2 
(196?), at 203-206.
---------------------------------------------------------------------------
    They had the English practice of impeachment before them and on 
purpose chose to continue it with some modifications. When, in the 1998 
debates in the United States, people refer to the relevance of ``six 
hundred years of history,'' they refer to the fact that Parliament had, 
in the past, been a court before it became a law-making body. As the 
court function declined, some fragments remained in the ability of the 
House of Lords to try members of the nobility. Then, simply summarized, 
in the 1300s (the fourteenth century), the House of Commons began to 
exercise a prosecutorial function of making accusations, and the House 
of Lords to exercise the judicial function of trying the cases. The 
first reported cases came in the late 1300s when Edward III was 
king.\15\ The practice continued off and on until middle of the 1400s 
(15th century).\16\ Though it can be seen as procedure, impeachment was 
primarily a factional weapon, and hardly, if ever, was a neutral means 
merely to handling disputes between persons. The English, having put it 
away, did not pick it up for one hundred and sixty-two years, when the 
ancient weapon was adapted to a new use in 1621. When impeachment came 
into use again, it was a very large weapon of political combat in a 
time of even more dangerous competition than it had been in the earlier 
period.\17\ Sir William Holdsworth comments: ``Never were impeachments 
so numerous as in the latter half of the seventeenth century: never 
were the criminal acts with which ministers were charged supported by 
such slender evidence.\18\
---------------------------------------------------------------------------
    \15\ ``MCP,'' (Michael C. Prestwick), John A. Cannon (Ed.), The 
Oxford Companion to British History, New York: Oxford University Press, 
1997, 333 conveniently details the first impeachments in 1376.
    \16\ Frederick W. Maitland, The Constitutional History of England, 
Cambridge: University Press, 1920, 215 offers a thumb-nail sketch.
    \17\ Roger Lockyer, Buckingham: The Life and Political Career of 
George Villiers, First Duke of Buckingham, 1592-1628, New York: 
Longman, 1981, 90-93.
    \18\ Sir William Holdsworth, A History of English Law, Boston: 
Little. Brown and Company, 1924, 260.
---------------------------------------------------------------------------
    Tthe number of impeachments declined in the 18th century, the time 
that the Constitution framers knew personally. Yet the technique of 
impeachment still was being followed. The American framers adapted this 
technique about four hundred years (1787) after the English developed 
the basic device (1376). When they picked impeachment, they had a 
background to know what they were doing. The relevant facts of English 
practice probably were well known to the Framers, since the technology 
of their time allowed them to get information from England for anything 
up to about a month before, which was about the same as to get a letter 
from Georgia to Boston. As an example, George Mason made specific 
reference to ``Hastings,'' while discussing impeachment in the Federal 
Convention of 1787. This was on September 8, 1787.\19\ So Mason and 
others could have had a pretty good idea of everything up to June or 
July of 1787. In explaining why treason might exclude some actions that 
he wanted within the scope of impeachment, Mason said: ``Hastings is 
not guilty of treason.''\20\
---------------------------------------------------------------------------
    \19\ Elliot's Debates, Vol. V. 528.
    \20\ Elliot's Debates, Vol. V (September 8, 1787), 528.
---------------------------------------------------------------------------
    What the framers did not seem to recognize, incidentally, was that 
impeachment was already falling away. They could not know that the 
trial of Warren Hastings, itself starting while ratification was 
starting, would be one of the last two English cases,\21\ or that a 
trial of Henry Dundas (who had become Lord Melville) would occur within 
twenty years and would be the last English impeachment trial.
---------------------------------------------------------------------------
    \21\ Sir Thomas Erskine May, The Constitutional History of England 
Since the Accession of George III, 1760-1860, With a New Supplementary 
Chapter, 1861-1871, New York: A. C. Armstrong and Son, 1886, I, 435.
---------------------------------------------------------------------------
  iv. what is impeachment of the president designed to prevent or to 
                                protect?
A. Protecting the Structure of Governments Means Primarily Guaranteeing 
        the Authority of Congress
    Insofar as controls upon the President is concerned, the chief 
purpose is to protect the fundamental power of Congress as a co-equal 
branch. The best interpretation is that the Presidential impeachment 
provision is designed to protect the constitutional system. The prime 
function is to counteract and correct any attempt by the President to 
abuse his powers so as to negate the authority of Congress. Congress 
has authority to pass laws, to conduct investigations, to have access 
to administrative agencies in its oversight functions, and so on.\22\ 
If these functions can be performed, within the normal political 
controversies, and with due regard to the veto power, then both the 
President and Congress are operating in normal terrain. When the 
ability of Congress to function within its authority, and with the 
assumption that the Bill of Rights protections, including those that 
sustain the election process without which Congress could not function, 
is normal, all the rest is mere transitory political controversy.
---------------------------------------------------------------------------
    \22\ In my opinion, what distinguishes the Congress of the United 
States from the legislatures of the world is it has far greater control 
over the initiation of legislation, and that it has continuous 
engagement in the administrative process.
---------------------------------------------------------------------------
    Failure or refusal of a President to see to the execution of duly 
constituted statutes, in ways that Congress utilizing its legislative 
and appropriations powers, in all their manifold variations, could not 
address, if the votes to address them were within the two houses, 
should be seen in these terms.
    That, in my view, is the framework within which the specification 
of something as being, in the 1998 circumstances, within which ``other 
high crimes and misdemeanors'' may rationally be interpreted. If the 
House wants to see if something is a ``high crime'' or a ``high 
misdemeanor,'' then its best mode is start with the premise that 
virtually everything in the constitutional system depends on the 
interaction of President and Congress. These are the two branches of 
Government that exist on their own foundations, reinforced with the 
right to make appeals to the electorate.
    As important as the United States Supreme Court is, not to mention 
the rest of the Article III courts, neither the Supreme Court nor the 
Article III courts have the same degree of completeness in their 
constitutionally guaranteed autonomy. Pragmatically, the Supreme Court 
needs Congress to take appropriate actions to allow it to exist and 
function, whereas Congress does not need the Supreme Court in the same 
manner. Other issues are presented in the history of the Judiciary Acts 
of 1801 and 1802. The Act of 1802 repealed the Act of 1801. In the Act 
of 1802, so doing, for explicitly partisan reasons, the Congressional 
supporters of President Jefferson terminated the functions of Article 
III judges who had been appointed and confirmed under the Act of 1801, 
by abolishing the very circuit courts to which they had been 
appointed.\23\ The Supreme Court found a rationale on which to accede 
to this result.\24\ Very few scholars in political science, history, or 
law pay much attention to the 1802 repeal act.
---------------------------------------------------------------------------
    \23\ Bernard Schwartz, A History of the Supreme Court, New York: 
Oxford University Press, 1993, 30-31; Richard E. Ellis, The 
Jeffersonian Crisis, New York: Oxford University Press, 1971; and 
Charles Warren, The Supreme Court in United States History, Boston: 
Little, Brown and Company, 1926, I, 204-215.
    \24\ Stuart v. Laird, 1 Cranch 298 (1803). In this discussion I 
have been greatly helped by the Charles Warren book, cited in the 
preceding note, as well as the Bernard Schwartz and Richard Ellis 
items. I must also pay tribute to a superb undergraduate paper by 
Robert J. Tatum, ``An Undeclared War: The Jeffersonians and the 
Judiciary,'' Submitted in Government and Foreign Affairs 424 Seminar on 
``Power and the Constitutional System, University of Virginia, February 
1988.
---------------------------------------------------------------------------
    The framers of the American Constitution specifically excluded 
direct legislative control of the executive.\25\ They did so only after 
some struggle, but their ultimate decision is not in doubt. They 
purposely divided the powers of government, so that all power would not 
fall into the same hands. That is why we have Article I vesting powers 
in Congress and Article II vesting ``the executive power'' in the 
President. The fact that the President receives the grant of ``the 
executive power'' under Article II, that the President is independently 
elected, and that he has a fixed term, and that he has the veto power 
all work to the same end. There is no doubt about the constitutional 
fact that the Congress does not control the President, and, if we 
needed to invoke the ``intention'' of the framers, that Congress was 
never intended to have the open-ended removal power that would come by 
inserting into ``other high crimes and misdemeanors'' anything that it 
might wish.\26\ The intention of the framers cannot be in doubt. Many 
Americans have since wished that the framers had done something 
different, so that we would have something more like the British 
system. (Often this wish is based upon the belief that Question Time 
produces better control over administration and policy implementation, 
but I do not believe the evidence supports this belief.) \27\ Proposals 
to create such a system have been advanced from time to time, but none 
have been taken seriously at a political level. But the overriding fact 
is that the framers did not do something different.\28\
---------------------------------------------------------------------------
    \25\ Jillson, op. cit., 104-120. It is also taken for granted, 
explicitly, in the article by Chief Justice Rehnquist.
    \26\ I should point out that, in saying this, I have sometimes 
thought the Federal judiciary in recent years looked too much for 
opportunities to vindicate Presidential power. Matthew Holden, Jr., 
Continuity & Disruption: Essays in Public Administration, Pittsburgh: 
University of Pittsburgh Press, 1996, Chapter 3 on ``The Dogma and 
Theory of Executive Leadership: Brownlow, the Judges, and Operating 
Administration.''
    \27\ There is no full public review on the point, though I have 
covered it in some detail in The Mechanisms of Power, a manuscript now 
in preparation.
    \28\ One political scientist, whose name I will forbear to mention 
here, said that he suspected a good share of the newspapers calling for 
``resignation'' do not grasp the fundamental structural issue and wish 
we had something like a parliamentary system with votes of confidence.
---------------------------------------------------------------------------
    However, in providing a President standing independently on an 
electoral base and a fixed term, they had to have something that could 
be used to sustain the Congress as well. Otherwise, people feared the 
President would overrun Congress. In ultimate defense, they put in the 
impeachment procedure, giving Congress the power to remove a President 
from office.
    When the framers came to deal with impeachment, which they 
obviously found it hard to craft, though they did not discuss it as 
deeply as they discussed some others, there were really three 
questions: whether to have impeachment or plenary legislative removal 
power; what actions would constitute impeachable offenses; and by whom 
the trial function should be exercised.
B. Choice I: Impeachment Instead of Plenary (Unlimited) Legislative 
        Removal Power?
    The impeachment idea was enough in ordinary political language that 
it could be found in the first draft put before the Convention of 1787, 
namely that by Mr. Charles Pinckney, a very young man from South 
Carolina. (He should not be confused with his cousin, General Charles 
Cotesworth Pinckney, who had little to say on this subject at 
Philadelphia,\29\ but a good deal to say on others--namely the 
protection of South Carolina's interest in African slavery.) The 
younger Pinckney's draft, included the following provision regarding 
the President of the United States: ``He shall be removed from his 
office on impeachment by the House of Delegates, and conviction, in the 
Supreme Court, of treason, bribery, or corruption.'' \30\ The draft is 
relevant only to show an idea that was in common circulation, but for 
no other purpose, for Pinckney's draft was pushed aside because the 
debates soon focused on the Virginia Plan or the New Jersey Plan.
---------------------------------------------------------------------------
    \29\ General Pinckney did discuss impeachment in the South Carolina 
ratifying convention on January 17, 1788. Below, , p. .
    \30\ Elliot's Debates, Vol. 1 p. 148.
---------------------------------------------------------------------------
    The alternative idea was that the legislature should choose and 
remove the President. Within the first week or so after the Convention 
got started, this idea was present. On 1 June 1787, Bedford (Delaware) 
raised objections to a seven year Presidential term of office by noting 
that if the President was incompetent or lost his faculties: ``An 
impeachment,'' he said, ``would be no cure for this evil, as an 
impeachment would reach malfeasance only, not incapacity.'' \31\ The 
next day (2 June 1787) his colleague John Dickinson pushed the idea so 
much farther that no other state except his own adopted Delaware would 
support it. It was to have the President ``removable by the national 
legislature upon request by a majority of the legislatures of the 
individual states.'' Only Delaware voted for this motion, \32\ to make 
the President something analogous to what the Secretary General of the 
United Nations now is. Dickinson, in defense of his amendment, stated:
---------------------------------------------------------------------------
    \31\ Elliot's Debates, Vol. 5 p. 143
    \32\ Elliot's Debates, Vol 1 p. 157

          [I]t was necessary to place the power of removing somewhere. 
        He did not like the plan of impeaching the great officers of 
        the state. He did not know how provision could be made for the 
        removal of them in a better mode than that which he had 
        proposed.\33\
---------------------------------------------------------------------------
    \33\ Notes of Debates in the Federal Convention of 1787 Reported by 
James Madison, (With an Introduction by Adrienne Koch), New York: W. W. 
Norton & Company, 1987, .

    Roger Sherman (Connecticut) also argued for national legislative 
power to remove the executive at pleasure. George Mason, who ultimately 
produced the ``high crimes and misdemeanors'' language, said ``some 
mode of displacing an unfit magistrate is rendered indispensable by the 
fallibility of those who choose, as by the corruptibility of the man 
chosen.'' Where Mason intended this to go is not so clear. In fact, it 
did not go anywhere. James Madison and James Wilson (Pennsylvania) 
observed, that it ``would enable a minority of the people to prevent 
the removal of an officer who had rendered himself justly criminal in 
the eyes of a majority. . . .'' \34\ (We should keep in mind that 
Virginia then had twenty per cent of the population of the United 
States. We should also note that neither Wilson nor Madison ever seems 
to have used language such as ``criminal'' again, and it is by no means 
clear what they did mean. In any event, it is not what the Convention 
adopted, and casts an odd light on what the Convention might have meant 
ultimately.)
---------------------------------------------------------------------------
    \34\ Elliot's Debates, Vol. 5 p. 147-148.
---------------------------------------------------------------------------
    The matter was brought fairly sharply into focus by Paterson (New 
Jersey) whose proposals included that the executive could be 
``removable on impeachment and conviction for malpractices or neglect 
of duty, by Congress, on application by a majority of the executives of 
several states.'' But this should be considered in the light of the 
ongoing struggle over what kind of a government (how centralized and 
how broad a scope of authority) they would create.
    All these resolutions were then proposed to be considered in a 
committee of the whole house.\35\ At this stage, James Wilson 
contrasted the principal points of the two plans so far, pointed out 
that: ``the executive to be removable on impeachment and conviction, in 
one plan; in the other, to be removable at the instance of a majority 
of the executives of the states.'' \36\ When Hamilton submitted his 
conceptual ``Plan of Government,'' (June 18, 1787), it included a far-
reaching impeachment proviso, designated provision #9: ``The governors, 
senators, and all officers of the United States to be liable to 
impeachment for mal and corrupt conduct; and, upon conviction, to be 
removed from office, and disqualified for holding any place of trust or 
profit.'' \37\
---------------------------------------------------------------------------
    \35\ Elliot's Debates, Vol. 1 p. 176
    \36\ Elliot's Debates, Vol. 5 p. 195.
    \37\ Elliot's Debates, Vol. 1 p. 180
---------------------------------------------------------------------------
    The Virginia proposals (which Edmund Randolph submitted [19 June 
1787]) said the executive would ``be removable on impeachment and 
conviction of malpractice, or neglect of duty.'' \38\ By this time 
(middle of June), however, the impeachment concept probably had settled 
in the minds of the delegates. Later, one or two delegates, notably the 
younger Pinckney and Gouverneur Morris, would say that they did not 
like the impeachment idea, but they never seemed to get much support 
The matter does not seem to appear in the records for the next month, 
but ``malpractice or neglect of duty'' is back on 20 July 1787.
---------------------------------------------------------------------------
    \38\ Elliot's Debates, Vol. 1 p. 181.
---------------------------------------------------------------------------
    Madison detailed some of the debate over the above amendment. As 
such: Charles Pinckney and Governeur Morris moved to strike out 
impeachment, Pinckney observing that he (the President) shouldn't be 
impeached while in office. Though discussion was not clear, it is 
possible that this would have allowed impeachment after office holding 
had ended.
    Davie (North Carolina) argued that if the president were not 
impeachable while in office, he would spare no effort or means to get 
himself re-elected. Thus, Davie therefore considered impeachment ``as 
an essential security for the good behavior of the executive.''
    Benjamin Franklin, who did not speak much, being old and in poor 
health, did speak on this one. Essentially, he argued that the 
provision would work to the advantage, not to the disadvantage, of the 
executive.
    History affords only one example of a first Magistrate being 
brought formally to public Justice. Everybody cried out against this as 
unconstitutional. What was the practice before in cases where the chief 
Magistrate rendered himself obnoxious? Why recourse was had to 
assassination in [which] he was deprived not only of his life but of 
the opportunity of vindicating his character.
    Thus, Franklin was effectively making a safety valve argument to 
the Convention. ``It would be best therefore to provide in the 
Constitution for the regular punishment of the Executive where his 
misconduct should deserve it, and for his honorable acquittal when he 
should be unjustly accused.'' \39\ Governeur Morris, like Franklin a 
Pennsylvanian, yielded a little. He said that ``corruption, and some 
few other offences, . . . ought to be impeachable; but (he) thought the 
cases ought to be enumerated and defined.'' James Madison said he 
thought it indispensable that some provision should be made for 
defending the community against the ``incapacity, negligence, or 
perfidy of the chief magistrate. . . . In the case of the executive 
magistracy . . . loss of capacity, or corruption, was more within the 
compass of probable events, and either of them might be fatal to the 
republic.'' We might suspect that Madison was keeping a line open to 
his fellow Virginian, Randolph. (Randolph was apparently getting 
uncertain, by then, and ultimately declined to endorse the Philadelphia 
report, and only came to support it in the Virginia convention, about a 
year later. Perhaps Madison, committed to the new government, even if 
it contained things he did not like, was trying to reassure Randolph).
---------------------------------------------------------------------------
    \39\ Madison's Notes, 332.
---------------------------------------------------------------------------
    This argument continued with some (Charles Pinckney) continuing to 
say that they saw no necessity for impeachment, while others continued 
to urge its necessity. Elbridge Gerry of Massachusetts:

          A good magistrate will not fear them. A bad one ought to be 
        kept in fear of them. He hoped the maxim would never be adopted 
        where, that the chief magistrate could do no wrong.\40\
---------------------------------------------------------------------------
    \40\ Elliot's Debates, Vol. 5, p. 340-341

    Six days later (July 26, 1787) the whole resolution on the 
executive passed, including the phrase: ``to be removable on 
impeachment and conviction of malpractice or neglect of duty.'' \41\ 
This was the state of the decision as it was referred to the Committee 
of Detail, consisting of Messrs. Rutledge (South Carolina), Randolph 
(Virginia), Gorham (New Hampshire), Ellsworth (Connecticut), and Wilson 
(Pennsylvania).\42\ This was a very important committee. When its 
report came back the impeachment provision was included (this was on 
August 6).\43\ Impeachment did not get any further floor action for 
another month. However, it must have been obvious that some type of 
impeachment provision was by now ordained.
---------------------------------------------------------------------------
    \41\ Elliot's Debates, Vol. 1, p. 219
    \42\ .
    \43\ Elliot's Debates, Vol. 1, p. 228
---------------------------------------------------------------------------
C. Choice II: Impeachment for What, Or How The Convention Got to 
        ``Other High Crimes and Misdemeanors''
    Though some still criticized the very idea of impeachment, most 
accepted this word. They still had to refine the word. What would be 
the grounds of impeachment? Congress in 1998 should take careful 
thought about how the Constitutional Convention got to ``other high 
crimes and misdemeanors.'' Treason and bribery had always been in the 
ordinary language of the delegates. Obviously, they took for granted 
that such things might occur.
    James Madison said that the limitation of the period of the 
executive terms of service was not a sufficient security. He might lose 
his capacity after his appointment.\44\ He might pervert his 
administration into a scheme of peculation or oppression. He might 
betray his trust to foreign powers.
---------------------------------------------------------------------------
    \44\ This question of incapacity came up several times, but it was 
not dealt with, in fact. Presumably, it is now within the 25th 
Amendment.
---------------------------------------------------------------------------
    In the same debate, Benjamin Franklin, mentioned the case of the 
Prince of Orange, in a war when the French and Dutch fleets were to 
rendezvous. When the Dutch fleet did not appear, people suspected the 
stadtholder (the Dutch head of state) was at the bottom of the matter. 
Franklin indicated that the stadtholder could not be impeached, and 
there was no regular examination. The stadtholder remained in his 
office; strengthened his own party, while the antagonistic party also 
grew. The result, said Franklin, was ``the most violent animosities and 
contentions.''
    ``Malpractice'' had been mentioned. ``Corruption'' had been 
mentioned. Some things had specifically been mentioned as ``threats to 
the community''. But the Committee of Detail had come back with the 
narrower language of ``treason, bribery, and corruption.'' Now on 
another committee was chosen, August 31, ostensibly to deal with all 
matters that had been postponed or had not been acted upon.\45\ (This 
committee had one member from each state.) This committee came back on 
September 4 with the language ``treason or bribery,'' but it had no 
other grounds for its report. It even omitted ``corruption.''
---------------------------------------------------------------------------
    \45\ Elliot's Debates, Vol. 1, p. 280.
---------------------------------------------------------------------------
    It is apparent that the Convention had been able to accept 
impeachment, though there must have been those with residual doubts, 
and that everyone accepted that treason and bribery should be 
impeachable offenses. That had been true in late May and early June. 
Various other categories had been discussed between then and late 
August-early September. Yet when the committee of eleven report was 
taken up, treason and bribery were the only grounds mentioned. Had 
``corruption'' been tried and found wanting by someone? Was it just a 
technical omission that could be taken care of as a ``conforming 
change?'' \46\
---------------------------------------------------------------------------
    \46\ Elliot's Debates, Vol. 1, p. 283
---------------------------------------------------------------------------
    George Mason asked: ``Why is the provision restrained to treason 
and bribery only?'' He said that there many ``great and dangerous 
offenses'' that would not be reached by ``treason.'' Here in the 
reference to ``great and dangerous things'' is where he mentioned the 
case of Hastings. This case, which meant something to Mason, ought to 
have a little explanation for contemporary Americans. The reason is 
that it sets one standard for something impeachable, outside treason 
and bribery. But it is far more intense and is qualitatively different 
from any action that the President is alleged to have done, or admits 
having done, in the matters now under discussion.
    The Hastings trial reference merely shows that Mason, and 
presumably others, were so well informed about England that they did 
not even think it necessary to identify ``Hastings.'' Nor did they have 
to say anything about what made ``Hastings'' controversial, or what it 
had to do with the decision they were making in Philadelphia. Hastings' 
case shows the kind of thing that the framers did take into account 
when they were discussing what should be impeachable. Warren Hastings 
was the former Governor General of Bengal, in India. He was under 
severe criticism in Britain, one of the principal critics being William 
Burke. Through William Burke, his brother, the vastly more famous 
Edmund Burke was also involved.\47\ Edmund Burke had, in addition to 
and arguably above, the financial interests of his relatives, political 
and policy reasons for being interested in India. He had at least ten 
years of involvement with Indian issues, and had gone from critic to 
adversary at least as early as 1783.\48\ Hastings had been under attack 
in the House of Commons, with Burke in the lead, a little over a year 
before the Constitutional Convention met,\49\ and the House of Commons 
proceeding was going on when the impeachment issue was in the 
Constitutional Convention.
---------------------------------------------------------------------------
    \47\ Lucy S. Sutherland, The East India Company in British 
Politics, Oxford'' The Clarendon Press, 1952, v-vi, 327-328, and 382-
414. Burke's role is discussed in P.J. Marshall, The Impeachment of 
Warren Hastings, London: Oxford University Press, 1965; and, Conor 
Cruise O'Brien, The Great Melody: A Thematic Biography of Edmund Burke, 
Chicago: University of Chicago Press, 1992.
    \48\ Marshall, op. cit., 21.
    \49\ The proceeding is referred to in U.S. House of 
Representatives, Committee on the Judiciary, Constitutional Grounds for 
Presidential Impeachment, Report by the Staff of the Impeachment 
Inquiry, Washington: Government Printing Office, 1974, 7, n. 19. The 
details of the proceeding are discussed in Marshall, op. cit., 39-63.
---------------------------------------------------------------------------
    Basically, the charges against Hastings were that he did Britain 
injury by running roughshod over Indian rulers that stood in his way, 
by collaborating in allowing Indian rulers of whom he approved to abuse 
and even contribute to the death of at least one British representative 
who would not cooperate, by enriching himself and his friends, and by 
facilitating tax collection practices that (in contemporary language) 
we would describe as gross abuses of human rights. In one particularly 
gruesome passage, Burke told the House of Lords:

          It is a most disgraceful scene to human nature that I am 
        going to display to you. My Lords, when the people were 
        stripped of everything, of all that they publicly possessed, it 
        was suspected, and in some cases suspected justly that the 
        poor, unfortunate husbandmen had hid in the deserts, 
        disseminated through that country, some shred of grain, for 
        subsistence in unproductive months and seed for future grain. 
        Their bodies were then applied to. The first mode of torture 
        was this:--They began winding cords about their fingers until 
        they had become incorporated together, and then they hammered 
        wedges of wood and iron between those fingers, until they 
        crushed and maimed those poor, honest laborious hands. which 
        had never been lifted to their own mouths but with the scanty 
        supply of the product of their own labour.\50\
---------------------------------------------------------------------------
    \50\ The charges are recited, Ibid., xiv-xv. ``The Impeachment 
Proceedings: A Sample,'' in Geoffrey Carnall and Colin Nicholson 
(Eds.), The Impeachment of Warren Hastings: A Bicentenary 
Commemoration, Edinburgh: Edinburgh University Press, 1989, at 15-16, 
with other allegations at 16-18.

    If such a case were to be covered, something more would have been 
needed. When Mason referred to Hastings, though he did not discuss the 
proceeding in as much detail as I have here, because he did not need 
to, neither he nor his colleagues were talking about something that 
could have been called ``peccadilloes.'' He merely said that treason 
did not cover the Hastings case and, by implication (since he did not 
mention it), neither did bribery.
    He moved to add after ``bribery'' or ``maladministration.'' He was, 
we should recall, speaking on the presentation of a committee report. 
No one from the committee spoke. But James Madison objected. ``So vague 
a term will be equivalent to a tenure during pleasure of the Senate.'' 
Governeur Morris, who had earlier spoken against impeachment, said 
(somewhat confusingly), ``It will not be put in force, and can do no 
harm.'' But, then he said, as if he knew what maladministration 
entailed, ``An election every four years will prevent 
maladministration.'' No one came forward to support 
``maladministration.'' With no apparent support for 
``maladministration,'' Mason, who could be quite persistent, withdrew 
``maladministration.'' Charles L. Black, Jr. is emphatic in his 
interpretation that `` `maladministration' was distinctly rejected as a 
ground for impeachment.'' \51\ He substituted ``other high crimes and 
misdemeanors against the state.''
---------------------------------------------------------------------------
    \51\ Impeachment: a Handbook, New Haven: Yale University Press, 
1974, 8-29. Black makes the same point in Bob Eckhardt and Charles L. 
Black, Jr., The Tides of Power: Conversations on the American 
Constitution, New Haven: Yale University Press, 1976, 74-78.
---------------------------------------------------------------------------
    Thus, on September 8, it was moved and seconded to insert the words 
``or other high crimes and misdemeanors against the state,'' and after 
the word ``bribery,'' which passed 7 votes to 4. Other modifications 
then occurred, incorporating word changes and application of the 
impeachment clause to ``the Vice President and other civil officers of 
the United States.'' \52\
---------------------------------------------------------------------------
    \52\ Elliot's Debates, Vol. 1, p. 294
---------------------------------------------------------------------------
    The impeachment power had been settled as to its existence, and as 
to its scope. When I read this in the debates, I could imagine the 
framers saying ``we already agree on treason and bribery.'' But Mason 
wanted more than that. His suggestion of ``maladministration'' had been 
opposed by Madison and supported by no one. In such a decision-making 
situation, the thing to do is to invent wholly new language that seems 
neutral (normally not good drafting tactics) or to fall back on some 
other language that most people think they know how to decipher. For 
these men, ``high Crimes and Misdemeanors'' had some meaning at the 
time, but there is an additional word that seems crucial. That word is 
``other.'' If they were going to extend impeachment beyond treason or 
bribery, and avoid the Madison stumbling block of vagueness, it would 
have to be some other things (``high crimes and misdemeanors'') as bad 
as treason and bribery. Thus, it seems that this late-added provision 
refers to such ``other high Crimes and Misdemeanors,'' as would be 
comparable in their significance to ``treason'' and ``bribery.''
    This point of view, I discover, is explicitly made in Justice 
Benjamin R. Curtis's argument in behalf of President Andrew Johnson. 
(Curtis was one the justices of the Supreme Court who dissented from 
Chief Justice Taney's majority opinion in the Dred Scott case. At that 
time, he argued that the Chief Justice was wrong on law and on 
history.) Having referred to and evaluated treason and bribery--
``offenses which strike at the existence of that Government (about to 
be created under the Constitution)''--Curtis goes on to describe `` 
`Other high crimes and misdemeanors,' '' as: ``High crimes and 
misdemeanors,--so high that they belong in this company with bribery 
and treason.'' \53\ The language was accepted so quickly as to suggest 
that the Constitution framers--18th century men--had a good idea what 
these words meant in English law and practice.\54\ The fact that four 
states (of the eleven states represented) voted against even this 
inclusion tells me that they wanted to limit it to impeachment to 
treason and bribery. From both perspectives, I would guess that they 
meant to impose a narrow limit upon the impeachment process.
---------------------------------------------------------------------------
    \53\ Benjamin R. Curtis, ``Argument in Defense of President 
Johnson,'' Delivered before the United States Senate. Sitting as a 
Court of Impeachment, April 9, 10, 1868, in Benjamin R. Curtis (Ed.), 
Memoir of Benjamin Robbins Curtis, LL. D., Boston: Little, Brown and 
Company, 1879, II, 410.
    \54\ U.S. House of Representatives, Committee on the Judiciary, 
Constitutional Grounds for Presidential Impeachment,  Report by the 
Staff of the Impeachment Inquiry, (Washington, D.C.: Committee Print, 
Government Printing Office, 1974).
---------------------------------------------------------------------------
    We should note that the principal speakers in Virginia and North 
Carolina showed a genuine 18th century concern with the facts of 
bribery, and the potentiality that Presidents might be bribed by 
foreign powers. These were, as I have emphasized, people who took a 
very practical view of things. When the issue came to the Virginia 
Convention, Governor Randolph had overcome the scruples at the 
Philadelphia signing and became an advocate. On 14 June 1788, in 
Virginia undertook to correct the interpretation of fact of another 
delegate. He explained that:

          In England, those subjects which produce impeachments are not 
        opinions. No man ever thought of impeaching a man for an 
        opinion . . . What are the occasions of impeachments most 
        commonly? Treaties.

    Governor Randolph may have thought so at the time, but the reality 
is that things take on lives of their own, and some of the earliest 
judicial impeachments did have to do exactly with opinions.) \55\
---------------------------------------------------------------------------
    \55\ Elliot's Debates, Volume 3, p. 402-3.
---------------------------------------------------------------------------
    On 15 June 1788, Governor Randolph told the Virginia Convention:

          There is another provision against the danger . . . of the 
        President receiving emoluments from foreign powers. If 
        discovered, he may be impeached. If he be not impeached, he may 
        be displaced at the end of the four years.

    In this way Randolph thought the President restrained from 
corruption.\56\
---------------------------------------------------------------------------
    \56\ Elliot's Debates, Volume 4, p. 32-5.
---------------------------------------------------------------------------
    The thought that Presidents might be impeached for misusing their 
power in making foreign policy decisions was restated by the anti-
Federalists and had to be rebutted by James Madison. Madison explained 
the impeachment process as a defense against such action.

          The treaty power brought [George] Mason, [William] Grayson, 
        and Henry into full-scale action once more. The President might 
        get a treaty ratified in special session by failing to summon 
        senators from states which would be injured by it. Replied 
        Madison: ``Were the President to commit anything so atrocious . 
        . . he would be impeached and convicted as a majority of the 
        states would be affected by his misdemeanor.'' \57\
---------------------------------------------------------------------------
    \57\ Irving Brant, James Madison: Father of the Constitution, 
Indianapolis: Bobbs-Merrill, 1950, 218.

    The House should not fail to take note that, in this hypothetical 
situation, which Madison characterizes as ``atrocious,'' he also 
categorizes it as ``misdemeanor.'' The idea of impeachment as 
protection against bribery, especially from a foreign power, came into 
debate on 28 July 1788 in the North Carolina convention. In a 
discussion of treaties and potential Presidential abuse. James Iredell, 
whom we note as an early Supreme Court justice, said ``the only 
instances, in which the President would be liable to impeachment, would 
be where he had received a bribe, or had acted from some corrupt motive 
or other. ``He went on to say that ``If the President had received a 
bribe, without the privity or knowledge of the Senate, from a foreign 
power, and, under the influence of that bribe, had address enough with 
the Senate, by artifices and misrepresentations, to seduce their 
consent to a pernicious treaty,--if it appeared afterwards that this 
was the case, would not that Senate be as competent to try him as any 
other persons whatsoever?''
    He goes on to argue that Presidential misrepresentation of 
information to the Senate in regards to treaty formation would be 
impeachable, but that innocent policy differences would not be.\58\
---------------------------------------------------------------------------
    \58\ Elliot's Debates, Vol. 4, p. 281.
---------------------------------------------------------------------------
    The idea of impeachment as applicable to particularly grave cases 
is also presented when a North Carolina delegate, MacClaine, finds it 
necessary to explain that the impeachment power does not apply to petty 
officers. Evidently, there had been some concern in the North Carolina 
Convention that the impeachment provision reached to ``petty 
officers,'' \59\ by which some delegates meant the officers of state 
and local governments, including state legislators.\60\ In trying to 
settle such apprehensions, the speaker says: ``This clause empowers the 
House of Representatives . . . to bring great offenders to justice. It 
will be a kind of state trial for high crimes and misdemeanors.'' \61\
---------------------------------------------------------------------------
    \59\ Elliot's Debates, Vol. 4, 45.
    \60\ Elliot's Debates, Vol. 4, 32-37.
    \61\ Emphasis added. MH
---------------------------------------------------------------------------
    Impeachment is not, within the political logic of the separation of 
powers system, designed, to cope with just any situation where a 
President might face ``outrage,'' nor just any situation where a 
President might patently have been engaged in ``wrongdoing.'' \62\ It 
does not make sense to bring that behavior, however objectionable it 
may be, within the ``other high Crimes and Misdemeanors'' category, for 
it has no similarity to any of the illustrations that the framers used 
or are presumed to have known about because of their indirect 
reference. They are not similar to misrepresenting foreign policy 
information to the Senate (Randolph's example), nor to manipulating the 
Senate schedule in such a way as to have only favorable senators 
present for a treaty vote (Henry's example to which Madison replied) 
nor to the gross violations of human rights that were alleged in the 
Hastings trial. These are the kinds of matters that, on the written 
record, about which the 1787 framers knew. We should also take into 
account that the constitutional design was constructed in 18th century 
language by men with 18th century experience and ideas.
---------------------------------------------------------------------------
    \62\ 
---------------------------------------------------------------------------
    The idea that morality was defined, for a convention with many 
Southern planters, by sexual relationships seems fragile. The idea that 
sexual morality would play a large role, in the ideas of Benjamin 
Franklin, who supported the impeachment concept seems strained. There 
has been some press reportage of legal filings by President Clinton's 
attorneys that make reference to Alexander Hamilton, and these have 
brought some responses various of the President's persistent 
critics.\63\ Some of those critics have expressed their bad opinion 
both of the President and of the filing because, apparently, it is said 
to reach back to injure the reputations of historic figures in order to 
escape present responsibility.\64\ The question that I touch is not 
whether President Clinton should be excused or not, because of 
Franklin, Hamilton or any of the historic figures. The question is 
rather, whether the standards of sexuality morality that the President 
apparently practiced, can be brought within the meaning of ``other high 
Crimes and Misdemeanors'' similar to treason and bribery.
---------------------------------------------------------------------------
    \63\ I do not need to enter this, but the most recent study of 
Alexander Hamilton, by a scholar with a distinguished record, makes the 
case that abstinence was not something Hamilton practiced intensively. 
Arnold A. Rogow, Fatal Friendship: Alexander Hamilton and Aaron Burr, 
New York: Basic Books, 1998, 150-156.
    \64\ Paul Greenberg.
---------------------------------------------------------------------------
    On the other hand, it very hard to imagine that the delegates had 
anything in mind about any sexual references when they adopted ``other 
high Crimes and Misdemeanors'' on September 8, 1787. It is, of course, 
possible to say that ``sexual morality'' should now be incorporated, by 
contemporary interpretation, into that phrase. However, that requires 
one to take a very broad concept of ``the living constitution'' that 
seriously overrides the independence that the President is given of 
Congress. If it is possible to extend that far, then we will have 
overridden the original determination not even to accept 
``maladministration.'' To do that is also to extend so far as to 
convert the impeachment process into a referendum on the 
Presidency.\65\
---------------------------------------------------------------------------
    \65\ It is also not to provide the functional equivalent of a 
hostile takeover attack, similar to that in the corporate sector.
---------------------------------------------------------------------------
D. Choice III: Who Is to Decide?, Or the Senate as the Court of 
        Impeachment
    The remaining fragment, of the impeachment issue was the trial 
forum? What kind of decision-maker should decide an impeachment case. 
This proved complex. Until late in the Constitutional Convention, the 
dominant tone had been that the trial after an impeachment would be 
before a court. From the little-noticed plan of Pinckney to all other 
proposals until early August, the Supreme Court or some other special 
court, had been set as the venue for trial.\66\ Hamilton had proposed 
all impeachments to be tried by a court, to consist of the chief or 
senior judge of the superior court of law, in each state. . . .'' \67\
---------------------------------------------------------------------------
    \66\ Elliot's Debates, Vol. 5, 143.
    \67\ Elliot's Debates, Vol. 1, p. 180
---------------------------------------------------------------------------
    In the committee of eleven report, impeachments were to be tried in 
the Senate. James Madison came right back to the same objection he had 
to ``maladministration'' as a ground for impeachment. He objected to a 
trial of the President by the Senate for any act which might be called 
a misdemeanor. The President under these circumstances was made 
improperly dependent.\68\ Madison on this point is the explicit 
defender of Presidential independence from Congress.
---------------------------------------------------------------------------
    \68\ Emphasis added. MH.
---------------------------------------------------------------------------
    Pinckney, whose unused plan had called for trial in the Supreme 
Court, disapproved of making the Senate the court of impeachment, as 
rendering the President too dependent on the legislature. However, his 
South Carolina colleagues did not agree. On the motion by Mr. Madison 
to strike out the words ``by the Senate'' after the word 
``conviction,'': failed 2 states to 9.\69\
---------------------------------------------------------------------------
    \69\ Vol. 5, p. 528-529
---------------------------------------------------------------------------
    The revised Draft of the Constitution reads: ``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.'' \70\ On the 17th of 
September, the delegates adjourned, and proposed Constitution was sent 
on its route to Congress for transmission to the states.\71\
---------------------------------------------------------------------------
    \70\ Vol. 1, p. 303
    \71\ Elliot's Debates, Vol. 1
---------------------------------------------------------------------------
E. Insight from the States
    The state ratifying conventions do not appear to have found 
impeachment a very problematical issue, or it may be that it was remote 
enough from other concerns that they did not get to it. In most states 
it appears not to have been discussed.
    In the Carolinas impeachment was discussed in general terms as to 
protecting the system. James Iredell thus addressed the North Carolina 
convention:

          This clause, vesting the power of impeachment in the House of 
        Representatives, is one of the greatest securities for a due 
        execution of all public offices. Every government requires it. 
        Every man ought to be amenable for his conduct, and there are 
        no persons so proper to complain of the public officers as the 
        representatives of the people at large. The representatives of 
        the people know the feelings of the people at large, and will 
        be ready enough to make complaints. If this power were not 
        provided, the consequences might be fatal. It will be not only 
        the means of punishing misconduct, but it will prevent 
        misconduct. A man in public office who knows that there is no 
        tribunal to punish him, may be ready to deviate from his duty; 
        but if he knows there is a tribunal for that purpose, although 
        he may be a man of no principle, the very terror of punishment 
        will perhaps deter him.\72\
---------------------------------------------------------------------------
    \72\ Elliot's Debates, Vol. 4, p. 44-5.

    The language that had to be chosen in the North Carolina convention 
is a language to indicate particularly grave acts of systemic 
consequence.
    In South Carolina Gen. Charles Pinckney observed (January 17, 1788) 
that:

          . . . [U]nder the new Constitution, the abuse of power was 
        more effectually checked than under the old one. a proper body 
        . . . are to impeach those who behave amiss, or betray their 
        public trust; another body . . . are to try them. No man, 
        however great, is exempt from impeachment and trial. If the 
        representatives of the people think he ought to be impeached 
        and tried, the President cannot pardon him; and this great man 
        himself . . . as well as the Vice president, and all civil 
        officers of the United States, are to be removed from office on 
        conviction of treason, bribery, or other high crimes and 
        misdemeanors.\73\
---------------------------------------------------------------------------
    \73\ Elliot's Debates, Vol. 4, p. 350

    The state conventions paid hardly any attention to the question of 
who should be the trier. It arose once, in Pennsylvania, apparently 
because there was some concern over whether the Senate had been made 
too powerful. James Wilson tried to counter this fear, when he told the 
Pennsylvania Convention (December 4, 1787) that the Senate's 
impeachment power was checked in that the House must initiate such 
proceedings.\74\ It arose, apparently from the opposite viewpoint, in 
New York. Chancellor Robert Livingston, on the day before New York 
concluded its ratification proceeding (25 June 1788) referred to the 
impeachment power saying that in the House of Representatives, probably 
would not abuse the power, but that was a check in that the Senate 
tried the cases.\75\
---------------------------------------------------------------------------
    \74\ This was in the context of a broader speech on the Senate. 
Elliot's Debates, Vol. 4, 466.
    \75\ Elliot's Debates, Volume 2, p. 323
---------------------------------------------------------------------------
v. can the senate regain the concept of a court of impeachment, rather 
                 than an arena of partisan gladiators?
    There is a second line of argument which I am frank to say, does 
not have the same degree of clarity, chiefly for the practical reason 
that no one has thought it worthwhile to invest thought and attention. 
Impeachment of a President has some risk because the country may have 
repudiated the clear concept of the Constitution, that the United 
States Senate is to function as a ``court of impeachment,'' not merely 
as an arena of partisan gladiators. The Judiciary Committee, its staff 
and everyone else who is concerned with this impeachment issue should 
take this matter seriously. Though the prime issue, at this stage, 
deals with matters unique to the jurisdiction of the House, there is a 
matter critical to the Senate. The Senate appears to be renouncing the 
role discussed by Hamilton in Federalist Number 65. The question that 
Hamilton had to discuss was whether the Senate was a suitable place for 
impeachment trials. Hamilton adopted the predicate that the Senate, 
removed from electoral public opinion in the near term, would be unable 
to abuse its powers because initiation rested with the House. It be a 
more restrained body able to act as a ``court of impeachment.'' No. 65 
on this point is clear as to the standard, though equivocal as to the 
predicted behavior.

          Where else than in the Senate could have been found a 
        tribunal sufficiently dignified, or sufficiently independent. 
        What other body would be likely to feel confident enough in its 
        own situation, to preserve, unawed and uninfluenced, the 
        necessary impartiality between an individual accused, and the 
        representatives of the people, his accusers? \76\
---------------------------------------------------------------------------
    \76\ Federalist No. 65, 425. Emphasis in original.

    Because there are no binding precedents that lawyers know how to 
cite, it has become virtually a cliche that impeachments are wholly 
``political.'' By ``political'' in this context, people appear to mean 
that each senator is free to, and should be predicted to, to make 
judgments on the basis of his or her personal advantage, or his or her 
partisan/ideological attachment. Political journalists have repeated 
this idea for years, and I hear it repeated today by those who are 
anti-Clinton and those who are pro-Clinton. Moreover, the reality 
appears to be that the legal community now holds the same view. Thus 
far, I have heard little or no articulation from the leaders of the bar 
as to the desired standards of conduct for senators. Nor have I seen 
any examination from my own political science community as to whether 
unrestrained self-will is the only predictable path of behavior.
    In other words, there is no current cultural conception that 
senators have any obligation of self-restraint. When people speak of 
the impeachment process as ``political,'' they may be correct, as a 
basis for predicting Senate action. If that concept were to remain 
alive, the unrestricted ``political'' language seems an improbable 
interpretation of what the Constitution means. The basic idea of the 
American Constitution is power restrained and checked. The Constitution 
framers could not have, consistently with their principles and their 
objectives, intelligently meant to accept a situation where power would 
be unrestrained by an external influence or internal norm. Senators 
could not be expected to legitimately to do anything they might choose. 
To say otherwise means that one must say that what they wrote is itself 
misleading.
    The idea of restraint is similarly expressed by Benjamin R. Curtis, 
the counsel for President Andrew Johnson before the United States 
Senate, in that impeachment trial one hundred and thirty years ago.

          Mr. Chief Justice, I am here to speak to the Senate of the 
        United States sitting in its judicial capacity as a court of 
        impeachment, presided over by the Chief Justice of the United 
        States, for the trial of the President of the United States. 
        This statement sufficiently characterizes what I have to say. 
        Here party spirit, political schemes, foregone conclusions, 
        outrageous biases can have no fit operation. The Constitution 
        requires that there shall be a ``trial;'' and, as in that 
        trial, the oath which each one of you has taken is to 
        administer ``impartial justice according to the Constitution 
        and the laws,'' the only appeal I can make in behalf of the 
        President is an appeal to the conscience and the reason of each 
        judge who sits before me.\77\
---------------------------------------------------------------------------
    \77\ ``Argument in Defense of President Johnson,'' Delivered before 
the Senate of the United States. Sitting as a Court of Impeachment, 
April 9, 10, 1868, in Benjamin R. Curtis (ed.), Memoir of Benjamin 
Robbins Curtis, LL.D., Boston: Little, Brown and Company, 1879, II, 
343.

    Despite the common characterization of the Andrew Johnson trial as 
``political,'' the reality is that in some measure the results fit 
Curtis's appeal. Let us assume that Curtis is right in principle. If 
that is correct, then a fundamental feature of the constitutional 
design appears to have been diminished. Instantaneous electronic 
communication and the 17th Amendment draw senators into the 
melodramatic process. Neither the 18th century framers, nor President 
Johnson's advocates, could conceive the 17th Amendment and 
instantaneous electronic communication.
    What follows is that, absent external constraints, there is an 
obligation to choose a course of action to separate the Senate process, 
presided over by the Chief Justice, from the House process.\78\ It 
would be possible to argue, as a moral norm, all Senators who have thus 
far chosen to engage themselves with the Independent Counsel 
investigation, should recuse themselves, and should say no more to 
their colleagues or to anyone else. Arguably, this would require 
recusal on the part of the group of senators who reportedly played so 
large a role in the displacement of Mr. Robert Fiske and the choice of 
Judge Kenneth Starr, those senators who have been expressly active in 
making judgments about President Clinton, about the House Judiciary 
Committee and others of similar stance. Is it plausible to argue that 
Senators, as jurors like other jurors, declare themselves and stand 
aside, if they know that have already made judgments, even if no one 
else knows of their judgments.
---------------------------------------------------------------------------
    \78\ 
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  vi. impeachment is a caged lion: should it be loose in the streets?
    Someone, at a responsible level, must face up to the fact that 
impeachment is a caged lion, and ask seriously, and without prejudice, 
whether letting that lion loose in the streets will leave anyone safe. 
The final observation is that someone, at some responsible level, must 
face up to the fact that impeachment is a caged lion. When is it 
worthwhile to let the lion loose in the streets?
    The House of Representatives is placed by the constitutional 
prescription in the role analogous to that of the prosecutor. When is 
it necessary to go forward? In the narrower domain of ordinary criminal 
law, the criminal prosecutor considers many factors in deciding whether 
to bring charges. Among others, the prosecutor considers ``the strength 
of the evidence, the suspect's background and characteristics, the 
costs and benefits of obtaining a conviction and the attitude of the 
community toward the offense the suspect is believed to have 
committed.'' \79\
---------------------------------------------------------------------------
    \79\ Frank W. Miller, Robert O. Dawson, George Dix, and Raymond 
Parnas, Prosecution and Adjudication, 4th Ed. (Westbury: The Foundation 
Press Inc., 1991), 695.
---------------------------------------------------------------------------
    The discussion for the past four years, and especially for the past 
ten months, has not gotten to this, the nexus of the most serious 
issue. The discussion has focused upon attitudes toward the person who 
now occupies the office of President, and secondarily upon what people 
believe is the evidence. But the most serious issue is different. There 
has been a continual avoidance of the costs and benefits of impeachment 
when considered in relation to the whole political system.
    There is some discussion of the attitude of the community, often in 
puzzlement as to the difference between opinion reflected in mass poll 
data and opinion expressed by those commentators whose profession it is 
to express opinion. I can recall a television commentary, in August 
1998, when a panelists were asked about the reason that public 
audiences generally did not have the same intense feelings about the 
Clinton-Lewinsky information as the television journalists did. One 
panelist said: ``We'll just have to educate them.'' Such commentary 
fails to consider that the general public may already have made its 
judgments, however rough, that the ``cost'' of further action against 
the President may exceed the ``benefit'' to the political system. The 
general public has good reason to believe that, on the basis of past 
performance, its evaluation of such a cost-benefit ratio may be more 
clear-minded than that of many reporters and editors from whom they 
have heard.
    To initiate an impeachment (accusation of asserted ``high crime'' 
or ``high misdemeanor'') against the President would impose far too 
heavy a burden upon the political system since no reasonable person 
argues that the acts under discussion in any way disable, or 
potentially disable, the Congress. Neither Congress nor courts is 
disabled, or under any potentiality of being disabled, or the President 
would not now be on the defensive. Impeachment and conviction of a 
President would mean replacing an entire administration.
    Within the parameters of the Constitution some significant 
institutional features have developed, and it is to their 
interrelationships that the idea of the ``system'' refers. Our ability 
to operate under this Constitution, with a strong Presidency, has given 
the United States a remarkably stable government. If, for example, the 
United States had a parliamentary regime, President Reagan probably 
would have had to yield in 1982 under the pressure of economic 
recession. If that were so, he could never have evolved to a de facto 
partnership, as some see it, with Gorbachev toward winding down the 
arms race.
    The President has a unique combination of formal and informal 
powers that revolve around his centrality to the Executive Branch, his 
role as the prime leader in national security policy, his leadership of 
one of the political parties, and his twentieth century role in 
legislative leadership, strongly affected by all his other powers, but 
grounded in his possession of the veto, which effectively makes him one 
third of the legislative process.
    The President does not prevail all the time in these domains, or 
even in any one of them. But the President's role in several of them is 
almost always critical, and is so even now.\80\
---------------------------------------------------------------------------
    \80\ This is reflected in Republican protests about the farm bill 
which they have had to accept much more on President Clinton's terms 
than they wish, even as he faces the impeachment proceeding. Washington 
Times, October , 1998; and, Wall Street Journal, October, 1998.
---------------------------------------------------------------------------
    The normal requirement of American government engages all these 
resources, as Presidents work with, against, and around a variety of 
allies and opponents. If any President were to be removed, no other 
person could exercise equivalent leadership until the successor had 
developed his own relationships.
    The level of cost to the system goes far beyond this. It is in the 
intense animosity that almost surely will have developed.
    These 17th century cases that I mentioned earlier are not mere 
decoration, but have direct application. Lawyers, of course, use them 
to trace the very meaning of the law itself.\81\ These historical cases 
help me to state a simple hypothesis: Whatever new weapon is introduced 
into the political battle tends soon to become domesticated, even 
banalized, so that its use is more and more common judgment. It will be 
adapted and adopted by many other groups. James J. Kilpatrick was not 
talking about impeachments, but about law suits against future 
Presidents since the Supreme Court hold the Paula Jones law suit out 
until the conclusion of the President's term. But his statement the 
decision ``is likely to encourage trumped-up harassments of future 
Presidents on down the line'' \82\ is apposite.
---------------------------------------------------------------------------
    \81\ U.S. House of Representatives, Committee on the Judiciary 
(93rd Congress, 2nd Session), Impeachment: Selected Materials on 
Procedure, Washington: Government Printing Office, 1974.
    \82\ James J. Kilpatrick, in Symposium, ``U.S. v. Clinton,'' 
National Review, September 28, 1998, 46.
---------------------------------------------------------------------------
    Impeachment investigations, trumped-up and otherwise, will 
virtually be mandated by going forward on this one. Richard H. Tawney, 
who wrote an account of the governmental career of Lionel Cranfield, 
also wrote that ``The resurrection of (this) antiquated weapon [ . . . 
] produced some forty impeachments between 1621 and 1688.'' \83\ That 
is sixty seven years (67) times twelve months for a sum of eight 
hundred and four months (804). Divided by forty (40), the number of 
impeachments, the result is on a straight line average one impeachment 
every twenty months. In fact, of course, these impeachments came in 
clusters, rather than on a straight-line average basis. But the echoes 
from 17th century England, with its fifteen to twenty impeachments 
during a three year period, with numerous impeachments on slender 
evidence,\84\ are not to taken lightly. In the slow moving 17th 
century, factions brought each other to the test--whether routinely 
over long periods or more intensely in periodic bursts. We should not 
expect an impeachment in 1999 or 2000 to let the United States slip 
back into political tranquillity.
---------------------------------------------------------------------------
    \83\ Richard H. Tawney, Business and Politics Under James I: Lionel 
Cranfield as Merchant and Minister, Cambridge: Cambridge University 
Press, 1958, at 248.
    \84\ Holdsworth, op. cit., 260.
---------------------------------------------------------------------------
    The better hypothesis is that we should expect more turmoil. The 
twentieth century has been, since World War II perhaps, somewhat 
similar to the 17th century in one respect: intense ideological 
antagonisms. Even in the past twenty years, when it might have been 
thought to decline, there are intense ideological battle groupings, 
easily activated. The resultant turmoil will be made far worse by an 
impeachment on the grounds that we now know. Massive distrust will feed 
it. Ideological antagonism will feed it. Well-financed political 
entrepreneurs will feed it. Instantaneous communication of information, 
disinformation, and misinformation will feed it. Impeachment as 
technique will increasingly be domesticated as legal defense funds, 
political action committees (PACs), and many other techniques have been 
domesticated. Private groups will urge their Congressional friends to 
initiate calls for independent counsels or other procedures to inquire 
into whether there might be a basis for determining that someone has 
violated, or conspired to violate, some law. Those who urge this 
resurrection should, if they believe that the political system concern 
is worthwhile, have a public duty to weigh carefully whether the result 
they achieve is the result they want to achieve.
    It is thus likely that we will see attempts to initiate impeachment 
actions against other presidents. In each instance, one may assume that 
such effort will be made by people who genuinely believe their charges, 
and who believe they have credible cases. Since all successful efforts 
depend upon coalitions, explicit or de facto, such efforts will become 
successful only as varieties of other groups and persons join the 
efforts on a variety of grounds. There must be a number of upward 
mobile Congressmen, Senators, and Governors--Republican as well as 
Democratic--who should expect to find themselves absorbed in such 
controversies over the next two, three, or four presidential cycles.
    Congressional leaders know that impeachment does not have to stop 
with a President. The same provision (Article II, Section 4) also 
applies to ``the Vice President, and all civil Officers of the United 
States.'' Cabinet officers and sub-Cabinet officers are also civil 
officers. There is no reason for adversaries not to seek to invoke the 
process whenever they are deeply angry, or simply calculatedly 
rational, about some action. Is it beyond the imagination that, as many 
people genuinely believe that abortion is an ultimate evil, impeachment 
attempts would not be initiated against some Secretary of Health and 
Human Services on the basis that he or she is conducting policies 
favorable to this perceived evil? Is there any reason to believe that 
some Attorney General, even the present one, might not be the object of 
attempted impeachment actions if he (or in the present case she) were 
resolutely to decline to initiate some independent counsel 
investigation desired by Senate leaders? Is there any reason to suppose 
that such an Attorney General would be even more at peril for limiting, 
or exercising the legal discretion to terminate, an independent counsel 
investigation if the Independent Counsel were to wish to continue? Is 
the Independent Counsel a civil officer also within the scope of 
Article II, Section 4, if there are those who are motivated to make the 
effort?
    Even regulatory commissioners, beyond Presidential direction, are 
also civil officers, are they not? What reason is there for affected 
interests not to use this newly available weapon? While the impeachment 
of Federal judges does not provide much to go on, as to standards for 
evaluating Presidential impeachments, there is one response in which 
the reverse situation becomes part of the system threat. The Article 
III courts subject to the same threats of punitive impeachment 
actions--regardless whether they succeed--if someone becomes dedicated 
to making their lives miserable.
    This is, again, not to be taken lightly. Even under the stricter 
standards that apply to Article III judges there are Members of 
Congress who have, within the past three years, been known to argue 
that judges making ``wrong'' decisions should be impeached.\85\ Will 
this approach be withheld if Federal trial judges depart from what have 
been thought conventional procedures? For example, a trial judge had 
appointed a special master to conduct certain proceedings involving the 
Justice Department's current litigation against Microsoft. In due 
course, he was obliged to dispense with the special master by virtue of 
an appeals court decision. The judge has reportedly ``told lawyers for 
both sides that he may ask [this dismissed special master] to write a 
`friend of the court' briefly summarizing his views on the case. . . 
.'' \86\ Is it beyond reasonable belief that, under intense conditions, 
someone would choose to impeach such a judge in such a case?
---------------------------------------------------------------------------
    \85\ The references in support of this are not immediately at hand, 
but they will be found in the ABA Journal and in the National Law 
Journal.
    \86\ Washington Post, Friday, September 25, 1998, F1.
---------------------------------------------------------------------------
    Clearly, my approach is framed, as stated in the first place, in 
political system terms. This does not imply that impeachment should 
never be employed. It does, however, suggest a balancing test: 
specifically, that the gravity of the presidential offenses should be 
weighed against the potential of far greater costs to the whole 
country. The assigning some behavior to the category of those ``other 
high crimes and misdemeanors''--parallel to treason and bribery--should 
be done only with utmost seriousness, and assessed with maintaining the 
essentials of the political system (or ``the structure of government'' 
or ``institutional stability'') as the prime purpose.
    The maintenance of this kind of seriousness will be increasingly 
problematic, in somewhat the same way of maintaining a high level of 
dignity has already proved problematic. House leadership has, 
presumably with all seriousness, urged dignity. But since the beginning 
of 1998, every level of the inquiry has become more raucous than anyone 
in the leadership predicted before. It will continue to go beyond 
control unless there is some clear decision that produces the contrary. 
Alexander Hamilton was right to say in Federalist No. 65: ``The 
prosecution of [actions deemed impeachable] . . . will seldom fail to 
agitate the passions of the whole community, and to divide it into 
parties more or less friendly or inimical to the accused.'' \87\ That 
tells us that such matters should be approached with prudence and 
wisdom.
---------------------------------------------------------------------------
    \87\ Federalist, 65, p. 423.
---------------------------------------------------------------------------
    The impeachment process lends itself to the persistent conflict of 
factions. Each of which will seek to use the process to advance its own 
material goods and its own revered symbols, to pursue vengeance and 
feud as they were Capulet and Montague. Case in point: On October 8, 
1998, during the House debate on the resolution to launch an 
impeachment inquiry into the conduct of President Clinton, one man from 
Alabama called the CNN conservative phone line to say that what he 
enjoyed was frustration and defeat in the eyes of the liberals who had 
been having it all their way, having been in power for 40 years. Such a 
statement should be seen as the cloud no bigger than a man's hand. 
Again, to cite Hamilton: ``In many cases it will connect itself with 
the pre-existing factions, and will enlist all their animosities, 
partialities, influence, and interest on one side or on the other; and 
in such cases there will always be the greatest danger that the 
decision will be regulated more by the comparative strength of parties, 
than by the real demonstrations of innocence or guilt.''
    The importance of prosecution, with impeachment as its leading 
case, as a weapon of recurrent group conflict becomes more important as 
each side disputes the morality and the methods of the other. Political 
leaders have already lost too much of the lessons of how to trade with 
each other and learn instead to turn each conflict into a dramatic 
morality play, or to an occasion of political vengeance. The 
magnification of conflict is something we have seen before. Congress 
should do nothing further to let this lion loose in the streets. 
Prudence and wisdom argue for terminating this process. Close the cage.

    Mr. Canady. Professor Harrison.

  STATEMENT OF JOHN C. HARRISON, ASSOCIATE PROFESSOR OF LAW, 
              UNIVERSITY OF VIRGINIA SCHOOL OF LAW

    Mr. Harrison. Mr. Chairman and Ranking Member, I think I 
can be quite brief. I want to talk about the bearing on the 
subject today of one particular precedent in the conduct of the 
House of Representatives with respect to impeachment, that of 
Judge Harry Claiborne about 12 years ago.
    Judge Claiborne was impeached, convicted and removed from 
office for committing income tax evasion--not for bribery, not 
for corruption in office, not for anything directly connected 
to his office, but for committing serious misconduct that 
called into grave question his integrity and that damaged the 
reputation----
    Mr. Canady. Some members ask that you pull the microphone 
closer.
    Mr. Harrison. Judge Claiborne was convicted of income tax 
evasion, which is to say conduct unrelated to his office, 
unrelated to his official powers, not for abuse of office. 
Judge Claiborne was in strained financial resources. He had 
income; he didn't report it. He was convicted and then 
impeached by the House of Representatives, convicted by the 
Senate and removed from office.
    Again, what he did did not directly do any particular 
damage to the State, unless you count the loss of tax revenue. 
It did not involve the abuse of office. It was private 
misconduct. Its connection to his office was that it strongly 
indicated that he could not be trusted, that he was a person 
lacking in integrity who could not properly carry out the 
responsibilities of a Federal judge. It also cast grave doubt 
on the overall integrity of the Federal judiciary.
    I think that the Claiborne precedent indicates that private 
misconduct, that is to say not involving the abuse of official 
power, can be a ground for impeachment and conviction when it 
bears on fitness for office; again, when it calls into question 
someone's integrity and trustworthiness. Naturally, when you 
talk about a precedent that has to do with a Federal judge, the 
question arises whether such precedents are applicable to the 
President of the United States.
    First, the Constitution draws no distinction. The 
impeachment provision in Article II says that the President, 
Vice President and all civil officers are subject to 
impeachment and removal for high crimes--treason, bribery, or 
other high crimes and misdemeanors. It is the same standard for 
all of those officers.
    Second, the requirement of integrity is at least as strong 
for the President as it is for the Federal judiciary. It is 
common for the President to have to make decisions that are 
much like those of a Federal judge, in that they require that 
personal considerations and sometimes, for example, partisan 
considerations be put aside.
    The President is the Nation's chief law enforcement 
officer, the boss of the United States Attorneys. Extremely 
delicate criminal prosecution decisions may come before the 
President, who is the Chief Executive in whom the executive 
power is vested by the Constitution. There are certain 
considerations that the President is not supposed to take into 
account in making the decision whether to initiate a 
prosecution that can send someone to prison. Keeping those 
considerations out of the decisionmaking is the very sort of 
thing that a judge is required to do.
    There is thus a close relationship, a close similarity in 
the requirements of integrity of the office of the President 
and the office of a Federal judge. Indeed, given the vast 
powers of the presidency, the standard for the President should 
be higher than for any other.
    Now, all of that is not to say that it is not a legitimate 
political consideration, in deciding whether to impeach or 
whether to convict a President, to realize that the President 
is elected by all the people as the sole officer, other than 
the Vice President, so elected. Those are perfectly legitimate 
considerations, but they seem to me to be considerations of 
policy, not considerations of constitutional law. With respect 
to the law, the standard is the same for the President and for 
judges, and hence I think that the Claiborne impeachment and 
removal bear strongly on the question of impeaching the 
President.
    Thank you.
    [The prepared statement of Mr. Harrison follows:]
  Prepared Statement of John C. Harrison, Associate Professor of Law, 
                  University of Virginia School of Law
    Thank you Mr. Chairman. The Subcommittee has invited me to 
participate in this hearing on the background and history of 
impeachment. I wish to address specifically the history of judicial 
impeachment and its bearing on the impeachment of a President. 
Questions concerning judicial impeachment came before the National 
Commission On Judicial Discipline and Removal, on which I served along 
with two distinguished former members of the House Judiciary Committee, 
Robert W. Kastenmeier and Hamilton Fish, Jr.
    My conclusion is that the practice of the House of Representatives 
strongly supports the proposition that a civil officer may be impeached 
for serious misconduct that compromises the officer's integrity or 
fitness for office, whether or not the conduct itself involves abuse of 
office or injures the government. This principle emerges most clearly 
from the House's action on the impeachment of Judge Harry E. Claiborne 
in 1986.
    Judge Claiborne, while a United States District Judge for the 
District of Nevada, violated the federal income tax laws. During 1979 
and 1980 he received fees connected with his former law practice that 
he did not declare on his federal tax returns. After a jury trial in 
the United States District Court for the District of Nevada, Judge 
Claiborne was convicted on two counts (one for 1979 and one for 1980) 
of filing a false return in violation of 26 U.S.C. 7206(1).
    On the recommendation of the Committee On the Judiciary, the House 
of Representatives impeached Judge Claiborne before the Senate. The 
House presented four articles of impeachment. Articles I and II rested 
directly on Judge Claiborne's criminal behavior. Article III rested on 
the fact that he had been convicted of crimes. H.R. Rep. No. 99-688, at 
1-3 (1986) (hereafter Claiborne Report). According to the Report, 
Article III stood ``for the proposition that when a federal judge is 
convicted of a felony and has refused to vacate his office he has 
misbehaved in office and by conviction alone he is guilty of having 
committed high crimes' in office as that term is set out in the United 
States Constitution.'' Id. at 22. Article IV alleged that Judge 
Claiborne's misconduct ``has betrayed the trust of the people of the 
United States and reduced confidence in the integrity and impartiality 
of the judiciary, thereby bringing disrepute on the Federal courts and 
the administration of justice by the courts.'' Id. at 2. The Report 
explained that Article IV ``makes clear that Judge Claiborne's 
conviction for falsifying his income tax return for two consecutive 
years does more than tarnish only his personal reputation as a member 
of the judiciary. The consequence of his illegal and improper actions 
has brought his court and the entire federal judiciary into disrepute, 
thereby undermining public confidence in the integrity and impartiality 
of the administration of justice.'' Id. at 23
    Judge Claiborne was tried before the Senate, convicted by the 
required two-thirds majority, and removed from office.
    Judge Claiborne's misconduct did not involve use or abuse of 
official power. There is no indication in the Articles of Impeachment 
or the Report of the Judiciary Committee that Judge Claiborne's actions 
were corrupt or that the money he received was not properly payable to 
him with respect to legal work he had performed before being appointed 
to the bench. Rather, according to the Report, Judge Claiborne found 
himself in difficult financial circumstances when he left his lucrative 
private practice to become a federal judge. Claiborne Report at 9. He 
responded to those difficulties as people sometimes do, by trying to 
conceal taxable income so as to reduce his tax liability. Judge 
Claiborne committed a crime that any citizen can commit.
    The House of Representatives evidently regarded Judge Claiborne's 
crimes as impeachable offenses in themselves, making him unfit for 
office without respect to any additional injury to the state. That 
conclusion follows from the House's decision to include such injury to 
the state in a separate Article of Impeachment, Article IV. Articles I 
and II referred only to Judge Claiborne's crimes and not to their 
effects on the judiciary or the government as a whole. While the House 
may well have thought that those crimes demonstrated Judge Claiborne's 
lack of integrity, it apparently did not believe that anything more 
than lack of personal integrity shown by misconduct was required for 
impeachment, because Articles I and II were offered as free-standing 
grounds on which Judge Claiborne could be convicted and removed from 
office.
    His impeachment thus cannot be reconciled with the claim that the 
Constitution authorizes impeachment only for misconduct that involves 
official power or is otherwise connected to public office. Nor can it 
be reconciled with the claim that the Constitution authorizes 
impeachment only for misconduct that causes some distinctive harm to 
the public or the state. (Loss of tax revenue hardly constitutes the 
kind of special harm that advocates of a narrow reading of the 
impeachment power seem to have in mind. Moreover, to say that failure 
to declare federally taxable income constitutes such special injury to 
the United States is to imply that Judge Claiborne could not have been 
impeached for similarly false statements on a state income tax return, 
which is difficult to imagine.)
    Judge Claiborne's impeachment represents a precedent, not only for 
judges, but for Presidents and probably for all civil officers of the 
United States. Article II, Section 4, of the Constitution, which states 
that the President, Vice President, and all civil officers shall be 
removed upon impeachment and conviction, does not distinguish among 
those subject to impeachment. All may be removed for ``Treason, 
Bribery, or other high Crimes and Misdemeanors.'' That standard applies 
to judges, the President, and, to borrow a phrase from the framing 
period, the lowliest tide-waiter.
    One could argue, however, that whether a crime or misdemeanor is 
high or not varies with the sensitivity of the office, so that 
misconduct that must be tolerated in a tide-waiter nevertheless would 
justify impeaching an Article III judge. The text indicates no such 
distinction, but even if this reading is correct it has no bearing on 
the impeachment of a President, who must be held to the highest 
standard of all. Under the Constitution the presidency is unique in its 
powers and responsibilities. While the legislative and judicial powers 
are vested in institutions, the executive power is vested in an 
individual. The public must look to the integrity of that individual 
alone, and not to any collegial process, to ensure that the executive 
power is exercised properly. Moreover, the President's powers extend to 
the most delicate of matters, including diplomacy and the command of 
military affairs; shrouded in secrecy as those affairs necessarily 
often are, their conduct requires an individual in whom the people can 
place complete trust. And while Americans pride themselves on a federal 
bench that is nearly (although as Judge Claiborne demonstrates only 
nearly) free of misconduct, the bench's probity depends in large 
measure on the probity of the officer who appoints the judges. It is 
thus no accident that while the Constitution requires that Members of 
this House, Senators, and all other federal and state officers but one 
take an oath to support it, the President must promise to preserve, 
protect, and defend the Constitution. U.S. Const., Art. II, Sec. 1, 
para. 8.
    History provides a briefer way to express the standards by which 
President's must be measured: they are the successors of George 
Washington.
    It thus seems clear that if the magnitude of offense required for 
impeachment varies from office to office, the standard of conduct is 
the highest, and the threshold for impeachment the lowest, for the 
President.
    Judge Claiborne committed a crime. Advocates of the view that 
impeachment must rest on abuse of power or special harm to the state 
could say that such harm necessarily results from conduct that is 
forbidden by the criminal law. On this view the standard for non-
criminal misdemeanors would be different, so that such a misdemeanor 
would be impeachable only if it injured the state in some identifiable 
way.
    Such a per se rule has little to recommend it as a reading of the 
Constitution. The modifier ``high,'' which is one proposed source of a 
requirement of injury to the state, applies to both crimes and 
misdemeanors. Moreover, the principle that every crime necessarily 
injures the public makes the concept of injury to the public so broad 
as to be of virtually no independent significance. Some criminal 
conduct, including some criminal conduct that actually imposes 
distinctive harm on the government, is utterly trivial. For example, it 
is a federal crime for unauthorized persons to wear ``the uniform or 
badge which may be prescribed by the Postal Service to be worn by 
letter carriers,'' 18 U.S.C. 1730, and a federal crime to use, for 
profit and without authorization, the character ``Woodsy Owl'' or the 
associated slogan, ``Give a Hoot, Don't Pollute,'' 18 U.S.C. 711a. If 
such harms to the common weal count for constitutional purposes, it is 
hard to conceive of otherwise private misconduct that does not do at 
least equal damage to the public by injuring the reputation of the 
country in whose name the officer exercises power. (The fact that 
injury to the government as such can be so minor, while wholly private 
crimes can include murder, casts doubt on the suggestion that the 
distinction between public harm and private misconduct is of 
constitutional magnitude.)
    Judge Claiborne made false statements on his income tax returns. 
Conduct like that calls into grave question the integrity of the person 
who engages in it. The House's decision to impeach Judge Claiborne is 
thus consistent with (although it does not logically imply) the 
principle that misconduct may be grounds for impeachment only when it 
bears on fitness for office. That principle probably will gain broad 
acceptance in any event, but it is unlikely to present difficult 
questions of application because virtually any serious personal 
misconduct can bear on fitness for office. Certainly any misconduct 
that goes to trustworthiness does so. The latter observation is 
especially true with respect to the President, whose character is so 
important for reasons discussed above.
    In light of that principle, my interpretation of the Claiborne 
impeachment should not be taken to suggest that impeachment is proper 
for private misbehavior that has no relationship at all to public 
office (if there is such a thing). To say that the Constitution does 
not require abuse of power or damage to the state is not to say that 
impeachment is like the ordinary criminal law. It is not. It is an 
essentially political process designed to ensure, among other things, 
that officers are removed when their misconduct indicates that they 
cannot be trusted with power.
    My conclusions rest on the House's decision to impeach Judge 
Claiborne and on the Judiciary Committee's explanation of that 
decision. From the decision to impeach we can of course infer that a 
majority of the House believed that impeachment was warranted. It would 
not be sound, however, to infer from a decision not to impeach the 
conclusion that a majority of the House believed that impeachment was 
constitutionally barred. The Constitution imposes necessary conditions 
on impeachment, but it creates no sufficient conditions--it never 
requires that the House impeach an officer. As a result, the House is 
always free to conclude that impeachment is not warranted even though 
an officer has committed an impeachable offense. For example, when an 
executive officer misbehaves the House usually can assume that the 
President (upon whose integrity the country must so often depend) has 
the matter well in hand and that the public interest would not be 
served by distracting the House and Senate from their legislative 
business. The House also can conclude that for reasons of state it must 
overlook troublesome misbehavior. Hence for precedential purposes 
decisions to impeach are much more readily interpreted than are 
decisions not to impeach, or not to include some particular article of 
impeachment.
    In sum, the practice of the House, as exemplified in the 
impeachment of Judge Harry Claiborne, is inconsistent with the 
principle that impeachment must rest on misuse of office or direct 
injury to the state arising from the misconduct itself.
    This testimony is provided as a public service, not on behalf of 
any client or institution.

    Mr. Canady. Thank you.
    Professor Sunstein.

STATEMENT OF CARL R. SUNSTEIN, KARL N. LLEWELLYN DISTINGUISHED 
   SERVICE PROFESSOR OF JURISPRUDENCE, UNIVERSITY OF CHICAGO 
                         SCHOOL OF LAW

    Mr. Sunstein. Thank you very much, Mr. Chairman. I would 
like to step back a little bit and talk about, first, 
principles.
    My basic submission is that the great function of the 
Impeachment Clause of the Constitution, not just in the 20th 
century, not just in the 19th, but in the 18th too, is to allow 
the country to remove from office those Presidents who have 
abused public office by using their distinctly presidential 
powers in a manner that involves egregious or large-scale 
abuse. This is a suggestion that the President, in order to be 
impeachable, must as a general rule have misused powers that 
exist by virtue of the fact that he is the President of the 
United States.
    Under that test, the actions alleged by Judge Starr and 
others involving President Clinton do not make out an 
impeachable offense under the Constitution, and an impeachment 
by the House of Representatives would violate the Constitution 
of the United States on the allegations as they currently 
exist.
    Let me say something about text, something about history, 
and something about the 19th and 20th century.
    The text of the Constitution is often ambiguous. With 
respect to the Due Process Clause and Equal Protection Clause, 
we may not know a lot, what it means, if we just read it. The 
text of the Impeachment Clause has a lot more weight and 
texture in it than these other clauses. It refers to Treason, 
Bribery or other high Crimes and Misdemeanors.
    If you remember anything from this testimony, remember the 
word ``other.'' That has a lot of interpretive weight. The word 
``other'' suggests we need acts of the same magnitude and the 
same nature as treason and bribery. Treason and bribery are 
terms that go to misuse of distinctly public office, and the 
word ``other'' is a clear signal that that is what the framers 
had in mind.
    The word ``misdemeanor'' is not a reference to small crimes 
as opposed to felonies. It is a reference to bad conduct of the 
same kind that would justify removal of a high officer because 
that is bad conduct of the officer exercised as an officer. The 
debates on the Constitution are very clear on this. This was 
not something that just passed by the framers.
    I would like to underline three simple points:
    The first point is, many of the framers wanted no 
impeachment power whatsoever. They suggested that in a world of 
separation of powers and election of the President, there was 
no place for impeachment.
    The second point is, that position was defeated by 
reference to egregious hypotheticals in which the President 
betrayed the country during war or got his office through 
bribery. Those are the cases that persuaded the swing votes 
that there should be impeachment power.
    The third point is, contrary to the draft of the House 
majority report which is now circulating and has it exactly--
bad words--the word ``maladministration'' was suggested and 
eliminated, in favor of high Crimes and Misdemeanors, not to 
expand the power to impeach, as the draft suggests, but just 
the opposite, to specify and decrease the power. That is what 
the framers wanted to do with the words ``high Crimes and 
Misdemeanors.''
    At ratification, the position for which I am arguing was 
the exclusive position offered in the prominent debates, that 
the ground for elimination of the President from office was the 
abuse of distinctly presidential office.
    Now let us jump to the present. What has happened since the 
Constitution?
    In the Nation's entire history, only one President has been 
impeached and only one other President has been subject to 
serious impeachment inquiry. What is important to underline 
about this is the dogs that haven't barked in the night. That 
is, the numerous cases in which Presidents of the United 
States, sad to say, were engaged in unlawful activity or lying 
or even criminal activity, and Congress did not choose to 
impeach. That is even more indicative of a tradition of 
restraint and forbearance than the two little number cases that 
we have actually had.
    President Nixon was alleged to have been engaged in 
unlawful tax evasion. The Democrats decided by a healthy 
majority not to call that an impeachable offense. President 
Johnson, Presidents Reagan and Bush, even President Lincoln, 
who suspended the writ of habeas corpus; President Roosevelt, 
who lied to the country and violated the law with respect to 
the Lend-Lease Program for a period of 2 months, none of these, 
thank goodness, were subject to serious impeachment inquiries 
as they would have been under the standard suggested today.
    As Professor Harrison has rightly suggested, judges have 
been subject to impeachment for a lower standard. The Nation, 
this Republic, is in very serious trouble if the Claiborne 
precedent is brought to bear on future Presidents of the United 
States. Judges are in a very different category; they were not 
subject to the kinds of protective debates that the framers 
themselves had.
    The Impeachment Clause has always been understood to apply 
to specific offices in different ways, just as Congress treats 
the nomination of a Secretary of State differently from a 
nomination of a judge to a Court of Appeals under the same 
provision, so Congress has always treated Federal judges very 
differently from how it has treated the President of the United 
States.
    How do these considerations apply to this case? I suggest 
that this case is not close to the line that would be raised by 
a case involving misuse of distinctly presidential power or 
imaginable horrendous cases, such as those involving murder or 
rape and the like.
    It is not the case that the Take-Care Clause, the oath of 
office or the commission of a crime could plausibly justify 
removal of the President from office. President Truman violated 
the Take-Care Clause. A majority of the Supreme Court said so 
in the steel seizure case. President Truman ought not to have 
been impeachable.
    The oath of office has been violated by many Presidents, 
not by criminal conduct necessarily, but by conduct in 
violation of civil statutes. That is true with respect to 
President Roosevelt and President Lincoln, two of our greatest 
Presidents. They ought not to have been subject to impeachment 
hearings because they behaved inconsistently with their oath of 
office.
    The strongest argument for impeachment does involve the 
perjury and obstruction charges. Those are extremely serious 
charges, and no one should deny their magnitude. They rightly 
subject the President, after he has left office, to a risk of 
criminal prosecution. That is the constitutionally prescribed 
solution.
    My concern about using perjury and obstruction of justice 
as a basis for impeachment here is that surely whether perjury 
and obstruction of justice are a legitimate basis for 
impeachment depends on what the perjury and obstruction of 
justice are about. If the President of the United States 
perjured himself in defending a friend in connection with a 
negligence action in an automobile tort suit, there would be no 
legitimate basis for impeachment.
    The ominous fact is that the invocation of impeachment for 
this kind of perjury makes it very hard to distinguish 
conceptually numerous cases in which the Congress of the United 
States has behaved with forbearance and restraint involving 
Presidents Reagan and Bush and Johnson and Nixon and Lincoln 
and Roosevelt. The question is whether this can meaningfully be 
distinguished from some of those, even if it can conceptually, 
and people of good faith think it can, conceptually; in 
practice we are unleashing a terrible caged lion, in the words 
of my predecessor on this panel.
    I would like to conclude with a very simple suggestion, 
which is that the basic office of the Impeachment Clause is to 
allow removal from Office of the President when he has behaved 
inconsistently with his duties as President. They are hard 
questions that could be raised by ingenious people testing the 
reach of that proposition. Much the best route for the future 
is to adhere to that proposition, which is consistent with our 
practices throughout the 19th and 20th century, consistent with 
the framers' judgment in the 18th century, and leave the 
hardest questions raised hypothetically for another and better 
day.
    [The prepared statement of Mr. Sunstein follows:]
Prepared Statement of Cass R. Sunstein, Karl N. Llewellyn Distinguished 
Service Professor of Jurisprudence, University of Chicago School of Law
    I am grateful to have the opportunity to appear before you today to 
discuss some constitutional issues in connection with impeachment. The 
basic question I will be examining is the appropriate understanding of 
the constitutional phrase, ``high Crimes and Misdemeanors.'' U.S. 
Const., Art. 1, section 4.
    I suggest that with respect to the President, the principal goal of 
the impeachment clause is to allow impeachment for a narrow category of 
large-scale abuses of authority that come from the exercise of 
distinctly presidential powers. Outside of that category of cases, 
impeachment is generally foreign to our traditions and prohibited by 
the Constitution. Outside of that category of cases, the appropriate 
course for any crimes is not impeachment, but a prosecutorial judgment, 
after the President has left office, whether indictment is appropriate. 
The original understanding of impeachment strongly supports this view; 
equally important, this view is strongly supported by the longstanding 
historical practice in America.
    While it is not my purpose here to defend President Clinton in any 
way, it is entirely clear that thus far, the charges made by Judge 
Kenneth Starr and Mr. David Schippers do not make out an appropriate or 
legitimate case for impeachment under the Constitution. In addition, 
impeachment of a President, on the basis of these sorts of charges, 
would greatly unsettle the system of separation of powers. It would 
threaten to convert impeachment into a legislative weapon to be used 
any occasion in which a future President is involved, or said to be 
involved, in unlawful or scandalous conduct. From the constitutional 
point of view, this would be an extremely unfortunate development.
    My statement comes in six parts. Part I deals with the text. Part 
II explores the founding period. Part III deals briefly with English 
practice; Part IV briefly explores American practice. Part V examines 
how we might think about the constitutional question today. Part VI is 
a brief conclusion.
                                i. text
    Constitutional interpretation of course begins with the 
Constitution's text. The text strongly supports the view that in order 
to support impeachment of the President, the underlying offense must 
usually involve the abusive exercise of a distinctly presidential 
power.
    More particularly, the text's opening reference to treason and 
bribery, together with the word ``other,'' seems to justify a clear and 
important inference: high crimes and misdemeanors should be understood 
to be of the same general ``kind'' as treason and bribery, as in the 
Latin canon of construction, ejusdem generic. Thus it would be 
reasonable to think that ``other high Crimes and Misdemeanors'' must be 
in the nature of large-scale abuse of public office--large-scale in the 
sense of ``high'' and similar, in kind as well as degree, to treason 
and bribery. It is entirely sensible, textually speaking, to understand 
``other high Crimes and Misdemeanors'' in such a way as to conform to 
``Treason'' and Bribery,'' and to take the relevant ``Misdemeanors'' to 
have to meet a certain threshold of ``highness'' as well.
    The text thus supports the view that I will be defending here: 
impeachment is designed for large-scale abuses of public authority. But 
reasonable people could disagree about the meaning of the bare text, 
and it is certainly appropriate to look at other sources.
                            ii. the framing
A. The Convention
    I now turn to the Constitutional Convention. The extensive debates 
in the convention strongly suggest a sharply limited conception of 
impeachment, one that sees the process as a targeted response to the 
President's abuse of public power through manipulation of distinctly 
presidential authority, or through procurement of his office by corrupt 
means.
    The initial draft of the Constitution took the form of resolutions 
presented before the members meeting in Philadelphia on June 13, 1787. 
One of the key resolutions, found in the Convention's official Journal, 
said that the President could be impeached for ``malpractice, or 
neglect of duty.'' On July 20, this provision provoked an extended 
debate. Three positions dominated the day's discussion. One extreme 
view, represented by Roger Sherman and attracting very little support, 
was that the legislature should have the power to remove the Executive 
at its pleasure. Charles Pinckney, Rufus King and Gouvernor Morris 
represented the opposing extreme view, that in the new republic, the 
President ``ought not to be impeachable whilst in office.'' 2 Max 
Farrand, Records of the Constitutional Convention of 1787, at 64 
(1937). This view, which did receive considerable support, was defended 
partly by reference to the system of separation of powers, which would 
be compromised by impeachment, and partly by reference to the fact that 
the President, unlike a monarch, would be subject to periodic 
elections, a point that seemed to make impeachment less necessary. The 
third position, which ultimately carried the day, was that the 
President should be impeachable, but only for a narrow category of 
abuses of the public trust, by, for example, procuring office by 
unlawful means, or using distinctly presidential authority for ends 
that are treasonous.
    George Mason took a lead role in promoting the compromise course. 
Against Pinckney, he argued that it was necessary to counter the risk 
that the President might obtain his office by corrupting his electors. 
``Shall that man be above'' justice, he asked, ``who can commit the 
most extensive injustice?'' Id. at 65. This question identified the 
risk, to which the convention was quite sensitive, that the President 
might turn into a near-monarch; and it led the crucial votes--above 
all, Morris--to agree that impeachment might be permitted for (in 
Morris's words) ``corruption & some few other offences.'' Id. James 
Madison promptly concurred with Morris, pointing to a case in which a 
president ``might betray his trust to foreign powers.'' Id. Capturing 
the emerging consensus of the convention, Edmund Randolph favored 
impeachment on the ground that the executive ``will have great 
opportunitys of abusing his power; particularly in time of war when the 
military force, and in some respects the public money will be in his 
hands.'' Id. at 67. The clear trend of the discussion was toward 
allowing a narrow impeachment power by which the President could be 
removed only for gross abuses of public authority.
    But Pinckney, concerned about the separation of powers, continued 
to insist that a power of impeachment would eliminate the President's 
``independence.'' Id. at 66; see also id. at 68. Morris once again 
offered the decisive response, urging that he was convinced of the 
necessity of impeachments, because the President ``may be bribed by a 
greater interest to betray his trust; and no one would say that we 
ought to expose ourselves to the danger of seeing the first Magistrate 
in foreign pay without being able to guard against it by displacing 
him.'' Id. at 68. At the same time, Morris insisted, ``we should take 
care to provide some mode that will not make him dependent on the 
Legislature.'' Id. at 69. Led by Morris, the convention thus moved 
toward a compromise position, one that would continue the separation 
between the President and the Congress, but permit the President to be 
removed in the most extreme cases. But the discussion ended without 
agreement on any particular set of terms.
    The new draft of the Constitution's impeachment clause emerged two 
weeks later, on August 6. It would have permitted the President to be 
impeached, but only for treason, bribery and corruption (apparently 
exemplified by the President's securing his office by unlawful means). 
With little additional debate, and for no clear reason, this provision 
was narrowed on September 4, to ``Treason and Bribery.'' But in early 
September, the delegates took up the impeachment clause anew. Here they 
slightly broadened the grounds for removing the President, but in a way 
that stayed close to the compromise position that had appeared to carry 
the day in July.
    The opening argument was offered by Mason, who complained that the 
provision was too narrow to capture his earlier concerns, and that 
``maladministration'' should be added, so as to include ``attempts to 
subvert the Constitution'' that would not count as treason or bribery. 
Id. at 550. Mason's strongest point was that the President should be 
removable if he attempted to undo the constitutional plan. But Madison 
insisted that the term ``maladministration'' was ``so vague'' that it 
would ``be equivalent to a tenure during pleasure of the Senate,'' id., 
which is something that what the framers had been attempting to avoid 
all along. Hence Mason withdrew ``maladministration'' and added the 
new, more precise terms ``other high Crimes and Misdemeanors against 
the State.'' Id. at 550. The term ``high Crimes and Misdemeanors'' was 
borrowed from English law, as we shall see; but it received no 
independent debate in the convention. During the debates, the only 
subsequent development--and it is not trivial--was that ``against the 
State'' was changed to ``against the United States,'' in order to 
remove ambiguity. Id. at 551.
    There is one further wrinkle. The resulting draft was submitted to 
the Committee on Arrangement and Style, which deleted the words 
``against the United States.'' Hence there is an interpretive puzzle. 
Was the deletion designed to broaden the legitimate grounds for 
impeachment? This is extremely unlikely. As its name suggests, the 
Committee on Style and Arrangment lacked substantive authority (which 
is not to deny that it made some substantive changes), and it is far 
more likely that the particular change was made on grounds of 
redundancy. Hence the impeachment clause, in its final as well as 
penultimate incarnation, was targeted at high crimes and misdemeanors 
against the United States.
    The clear lesson of these debates is that in designing the 
provision governing impeachment, the founders were thinking, 
exclusively or principally, of large-scale abuses of distinctly public 
authority. The unanimous rejection of ``maladministration'' suggests 
that the framers sought to create an authority that was both confined 
and well-defined. The alleged grounds for impeachment all involved 
abuses of public trust through the exercise of distinctly presidential 
powers (or corruption in procuring those powers); there were no 
references to private crimes, such as murder and assault. Now we cannot 
overread silence on that point. But the debates strongly suggest that 
the model for impeachment was the large-scale abuse of public office.
B. Ratification
    The same view is supported by discussion at the time of 
ratification and in the early period. The basic point is that 
impeachment was explained and defended as a way of removing the 
President when he used his public authority for treasonous or corrupt 
purposes. I offer a few brief notations here.
    Alexander Hamilton explained that the ``subjects'' of impeachment 
involve ``the abuse of 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.'' 
The Federalist No. 65. One of the most sustained discussions came from 
the highly respected (and later Supreme Court Justice) James Iredell, 
speaking in the North Carolina ratifying convention: ``I suppose the 
only instances, in which the President would be liable to impeachment, 
would be where he had received a bribe, or had acted from some corrupt 
motive or other.'' By way of explanation, Iredell referred to a 
situation in which ``the President has received a bribe . . . from a 
foreign power, and, under the influence of that bribe, had address 
enough with the Senate, by artifices and misrepresentations, to seduce 
their consent to a pernicious treaty.'' 2 Philip Kurland and Ralph 
Lerner, The Founders' Constitution 165 (1987).
    James Wilson wrote similarly in his great 1791 Lectures on Law: 
``In the United States and in Pennsylvania, impeachments are confined 
to political characters, to political crimes and misdemeanors, and to 
political punishments.'' Id. at 166. Another early commentator went so 
far as to say that ``The legitimate causes of impeachment . . . can 
have reference only to public character, and official duty. . . . In 
general, those offenses, which may be committed equally by a private 
person, as a public officer, are not the subjects of impeachment. 
Murder, burglary, robbery, and indeed all offenses not immediately 
connected with office, are left to the ordinary course of judicial 
proceedings. . . .'' Id. at 179. This was a contested view; but there 
was general agreement that the great office of impeachment was to 
remove from office those who had abused distinctly public power.
              iii. high crimes and misdemeanors in england
    Because the term ``high crimes and misdemeanors'' comes from 
English law, it is possible to contend that it should be interpreted in 
accordance with English understandings. See Raoul Berger, Impeachment 
(1974), which turns largely on this claim. There is considerable sense 
in this view--the term certainly does come from English law--but a 
serious question might be raised about the analysis. The most important 
point is that it is not at all clear that the American understanding 
was or has been the same as the English one. Recall that in the framing 
period, participants were aware of two exceedingly important 
differences between America and England: (1) the election of the 
President and (2) the separation of powers. As we have seen, these 
differences led many to suggest a far narrower power to impeach the 
President than to impeach high officials under English law. Thus it is 
hazardous to suggest, as some have, that the American understanding 
essentially incorporates the English understanding. See Peter Charles 
Hoffer and N.E.H. Hull, Impeachment in America, 1635-1805 (1984), at 
266-70.\1\
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    \1\ Hoffer and Hull examine state practices and show that 
impeachment was relatively common in the colonies and the states. This 
practice does not, however, show that impeachment of the President was 
intended to be relatively common, and I do not understand Hoffer and 
Hull to have so argued.
---------------------------------------------------------------------------
With that qualification, let me briefly investigate the English 
practice. As it turns out, that practice strongly supports the basic 
argument I am making here.
    The English idea of ``impeachment'' arose largely because its 
objects were, for various reasons, not subject to the reach of 
conventional criminal law. Thus ministers and functionaries of the King 
were subject to impeachment for public offenses. Under English law, the 
term ``misdemeanor'' was not a reference to what we would now call 
misdemeanor (as opposed to felony); it referred instead to distinctly 
public misconduct. Thus the term ``high Crimes and Misdemeanors'' 
represented ``a category of political crimes against the state.'' Raoul 
Berger, Impeachment 61 (1973).
    In English law, there was some ambiguity in the use of the word 
``high'': did the term refer to the seriousness of the offense, or to 
the nature of the office against which the proceeding was aimed? 
Probably the better view, based on the actual practice, was that the 
term referred to both. In any case a ``high Crime and Misdemeanor'' 
could be a serious crime, but it could also be a serious offense that 
was not a technical violation of the criminal law. Serious misconduct, 
as in the form of committing the nation to ``an ignominious treaty,'' 
was said by some to be a just basis for impeachment in England. See id. 
at 63. Whatever one thinks of the particular example, it is clear that 
there was no consensus in England that a ``high Crime and Misdemeanor'' 
had to be a violation of the criminal law; and indeed the better view 
is that an impeachable offense, to qualify as such, need not be a crime 
in the United States.
    For present purposes, the more important point is this: The great 
cases involving charges of impeachable conduct in England reveal a far 
readier resort to the practice than has been the case in America, 
probably for reasons mentioned above. But those cases involved either 
criminal or extremely inappropriate conduct in the form of abuse of the 
authority granted by public office, or, in other terms, the kind of 
misconduct that someone could engage in only by virtue of holding 
public office. Thus a prominent listing of the key cases refers to the 
following: unlawful use of publicly appropriated funds; thwarting 
Parliament's order to store arms and ammunition in storehouses; 
preventing a political enemy from standing for election and causing his 
unlawful arrest and detention; arbitrarily granting general black 
search warrants; and stopping writs of appeal. See id. at 67-68. In 
addition, a general list suggests no case in which an impeachment 
proceeding was brought for something other than the use of the 
distinctive authority vested in public officers. Id. at 69-73.
    We may summarize the discussion with two simple points. First: The 
English practice shows a far readier resort to impeachment than the 
American practice. This difference makes sense in light of the fact 
that the President is subject to electoral checks and the American 
commitment to separation of powers. Second: The English practice was 
concentrated, exclusively or nearly so, on the abusive exercise of 
distinctly public authorities.
                  iii. historical practice in america
    What about the American practice? The question is exceptionally 
important, for our constitutional tradition is not one that relies 
entirely on the original understanding of constitutional terms. 
Historical practices, built up over decades or even centuries, play a 
significant role in determining constitutional meaning.
    This is not the occasion for a detailed analysis of the historical 
practice in the United States. I restrict myself to several points 
here. The most important is that the exceptional infrequency of serious 
impeachment proceedings against the President--even in circumstances in 
which such proceedings might have appeared legitimate--suggests a 
historical understanding that impeachment is appropriate only in the 
most extraordinary cases of abuse of distinctly presidential authority. 
With respect to President Clinton, nothing of this kind has been 
alleged thus far.
    First: We should notice at the outset that there have been sixteen 
impeachments in the nation's entire history, that only one President, 
in that entire history, has been impeached, and that only one other 
President, in that history, has been subject to serious impeachment 
inquiry. President Nixon was of course subject to an impeachment 
inquiry because of a series of alleged abuses of the public trust. Thus 
Article 1, of the articles of impeachment against President Nixon, 
referred to the an unlawful entry into the headquarters of the 
Democratic National Committee ``for the purpose of securing official 
intelligence'' and then conspired to cover it up; Article 2 referred to 
the allegation that he ``repeatedly engaged in conduct violating the 
constitutional rights of citizens,'' including the use of the Internal 
Revenue Service, the Federal Bureau of Investigation, and the Secret 
Service; Article 3 referred to repeated refusals to produce papers and 
things under subpoenas specifically signed ``to resolve by direct 
evidence fundamental, factual questions relating to Presidential 
direction, knowledge or approval of actions demonstrated by other 
evidence to be substantial grounds for impeachment of the President.'' 
In retrospect, a remarkable feature of these Articles is their relative 
restraint--fastening on large-scale abuses of distinctly public 
authority.
    President Andrew Johnson was impeached because of a series of 
allegedly unlawful acts as President, above all the unlawful discharge 
of officials who had, under law, been given immunity from presidential 
discharge. Posterity has judged the impeachment of Johnson to have been 
a highly partisan and indeed illegitimate affair, one in which 
political opponents seized on the President's violation of a law that 
he believed unconstitutional (rightly, as it turned out). But even in 
the Johnson case, when partisan fervor was at its height, the 
allegations involved the allegedly large-scale abuse of presidential 
authority, through the lawless exercise of presidential power. With 
respect to the President, at least, impeachment has been considered as 
a weapon of rare and last resort, in a way that vindicates the framers' 
emphasis on the safeguards of the electoral process.
    Second: By far the largest majority of impeachments in American 
history have involved federal judges. Even here, the number is 
extremely low: In all of American history, there have been just twelve 
cases. Of those cases, by far the largest number--and arguably all--
involved at least some allegation of abuse of distinctly judicial 
office. It is possible to argue that one or two, or perhaps more, of 
those cases also involved egregious private behavior. But this 
interpretation is itself questionable, and the most extreme cases 
involving impeachment of federal judges should not be understood to set 
a precedent for impeachment of Presidents, a point to which I will 
return.
    Third: To have a sense of American history, it is as important to 
have a sense of the cases in which impeachment did not occur as of 
cases in which it did occur. This topic has received far too little 
emphasis during discussion of the impeachment question. An examination 
of American history shows that even when impeachment might well have 
been contemplated, cooler heads prevailed, and both the nation and 
Congress insisted on an extremely high standard. Consider here simply a 
few cases (they could easily be multiplied) from twentieth century 
history; in all of these the House has acted with great restraint. The 
House was correct to do so, both as a matter of constitutional law and 
as a matter of prudence. I list the cases not to complain about the 
failure to pursue the impeachment route, but on the contrary to suggest 
the solidity of the American presumption against impeachment.
    --In a decision that has received considerable publicity in the 
last weeks, the House refused to include, as an impeachment count, 
legitimate allegations of income tax evasion against President Nixon. 
The basic ground for the refusal was that income tax evasion--though 
hardly excusable and indeed a major breach of every citizen's 
obligation--did not amount to a misuse of distinctly presidential 
authority.
    --President Reagan was allegedly involved in unlawful misconduct in 
connection with the Iran Contra controversy; at least he presided over 
an administration allegedly involved in such unlawful misconduct. 
Indeed, the independent counsel's investigation yielded no fewer than 
seven guilty pleas and four convictions, including convictions of 
relatively high-level executive branch officials.
    Many people believed or feared that President Reagan was personally 
involved in the unlawful acts. Thus it would have been possible to 
commence impeachment hearings to investigate the charges. Nonetheless, 
impeachment was never considered as a serious option.
    --Many people have alleged that Vice-President Bush was involved in 
aspects of the Iran-Contra controversy, and some people suggested that 
he had personal knowledge of the unlawful activity. An impeachment 
investigation would not have been hard to imagine. Here too impeachment 
never emerged as a serious possibility.
    --In World War II, the Lend-Lease Act allowed the President to 
build and sell arms and ammunition to other nations, most notably 
England. Before the passage of the Act, the sale of arms to other 
nations, including Britain, was prohibited by law. Nonetheless, it is 
generally agreed that President Roosevelt was secretly and unlawfully 
transferring arms--including over 20,000 airplanes, rifles, and 
ammunition--to England. Indeed, illegal approval of such weapons 
transfers were quite routine in two full months before Congress 
authorized it. Even President Roosevelt's Secretary of State ``felt 
troubled by the illegality and deception.'' Aaron Fellmeth, A Divorce 
Waiting to Happen, 3 Buff J Intl. L. 413, 487 (1996-97). It is often 
said that Roosevelt both deceived and lied to Congress and the American 
people in connection with the program.
    --There were widespread claims of a secret ``deal'' between 
President Ford and President Nixon, culminating in the pardon received 
by President Ford. At the time, many Americans suspected that such a 
``deal'' has occurred. So far as I am aware, no evidence supports any 
such suspicion. But in view of the climate of the time, these claims 
might well have produced an impeachment inquiry.
    --It was widely believed that President Kennedy was involved in a 
serious of illicit sexual relationships while in office, including an 
illicit sexual relationship with a woman simultaneously involved with a 
member of the Mafia. This relationship--some people have suggested--
would potentially compromise the efforts of the Department of Justice. 
Some people have alleged that this reckless behavior, whether or not 
involving technical violations of law, reflected serious indifference 
to law enforcement efforts. Yet no one has suggested, at the time or 
since, that impeachment was the appropriate course.
    These are simply a few random examples, and doubtless reasonable 
people will suggest that some or all of them involve conduct far less 
egregious, or less legitimately impeachable, than has been alleged with 
respect to President Clinton. Other reasonable people will disagree; 
and if these examples seem weaker, it should not be hard to come up 
with others. (Consider, as just one further illustration, the fact that 
President Lincoln suspended the writ of habeas corpus, a serious 
violation of civil liberties that was ruled unlawful.) My basic point 
is to establish a lengthy historical practice of great restraint. The 
fact that only one President has been impeached, when many others might 
have been, attests to the strength and longevity of our historical 
understandings. Impeachment of President Clinton, on the basis of the 
charges made thus far, would be an astonishing departure from those 
understandings.
         iv. is the president unique for impeachment purposes?
    The Constitution allows impeachment of all civil officers--not only 
the President, but also the Vice President, cabinet heads, and judges--
for high crimes and misdemeanors. Does this mean that the same standard 
applies to all such officers? Are there differences between the 
legitimate grounds for impeaching a President and the legitimate 
grounds for impeaching a federal judge? The question is extremely 
important for current purposes. If the same standards apply, it would 
make sense to say that the relatively more lenient standards applied to 
the impeachment of federal judges apply as well to the impeachment of 
Presidents. My basic conclusion is that the standard for impeaching the 
President has been much higher, and properly so.
    We can distinguish three possible positions here. First: It might 
be thought that the legitimate grounds for impeachment are the same for 
all officers. Second: It might be thought that to impeach the 
President, Congress must meet a higher standard; what counts as a high 
crime or misdemeanor is context-specific. Third: it might be thought 
that the constitutional standard is the same, but that the House 
legitimately exercises prosecutorial discretion so as to match offense 
to office. On this view, for example, perjury may be a clear basis for 
impeaching a judge (who is charged with operating the system of 
justice), but not impeaching for the President. For constitutional 
purposes, we might collapse the first and third positions, since no one 
disagrees that the House, in its exercise of prosecutorial discretion, 
might legitimately choose not to proceed against someone who has 
committed technically impeachable offenses, and that the nature of the 
office is relevant to the exercise of discretion.
    At first glance, the constitutional text seems to support the view 
that the constitutional standards are identical. As noted, the text is 
the same. But there are several problems with this apparently simple 
position. The first is based on the history recited above. The framers' 
particular concerns involved protection of the President from the 
discretionary authority of Congress; they sought to insulate the 
President in particular from a high degree of dependence. They 
expressed no such concern about judges.
    Judicial independence is of course important, but the fact that 
judges have life tenure might well be thought to justify a somewhat 
more expansive impeachment power. If judges can be impeached only for 
gross abuses, then the nation will be stuck with judges for their whole 
lives; this practical concern argues in favor of a lower standard for 
impeaching judges. Indeed, this practical concern might reasonably be 
labelled a structural one. The Constitution's structure--life tenure 
for judges, four year terms for Presidents--argues in favor of a 
narrower impeachment power for the President.
    The second argument is that judges have tenure ``during good 
behavior,'' a provision that does not, of course, apply to the 
President. The President may not be removed for ``bad behavior.'' Thus 
it might be suggested that with respect to judges, the ``good 
behavior'' provision qualifies or works hand in hand with the 
impeachment clause. It does so as by allowing impeachment of judges on 
somewhat broader grounds--bad behavior, not simply high crimes and 
misdemeanors, or perhaps high crimes and misdemeanors, understood, in 
the context of judges, to include bad behavior.
    But I do not believe that this argument is convincing. Judges may 
not be removed from office for bad behavior; they may be removed only 
for high crimes and misdemeanors. The function of the ``good behavior'' 
clause is not to give Congress broader power to remove judges from 
office; it is simply to make clear that judges ordinarily have life 
tenure. Thus there is no authority in Congress to remove judges who 
have not engaged in ``good behavior.''
    On the other hand, historical practice suggests a broader 
congressional power to impeach judges than Presidents, and indeed it 
suggests a special congressional reluctance to proceed against the 
President. We might say that our history has converged on the judgment 
that there is a lower threshold for judges than for Presidents. Perhaps 
the theory is that judges cannot otherwise be removed from office; 
perhaps the theory is that it is uniquely destabilizing if Presidents 
are too freely subject to removal from office. The existence of a wide 
range of political checks on presidential misconduct has apparently 
been thought to provide a kind of surrogate safeguard, one that makes 
impeachment a remedy of rare resort.
             v. how should we understand impeachment today?
    Thus far I have suggested that both the original understanding and 
historical practice converge on a simple principle. The basic point of 
the impeachment provision is to allow the House of Representatives to 
impeach the President of the United States for egregious misconduct 
that amounts to the abusive misuse of the authority of his office. This 
principle does not exclude the possibility that a President would be 
impeachable for an extremely heinous ``private'' crime, such as murder 
or rape. But it suggests that outside of such extraordinary (and 
unprecedented and most unlikely) cases, impeachment is unacceptable. 
The clear implication is that the charges made thus far by Judge 
Kenneth Starr and David Schippers do not, if proved, make out any 
legitimately impeachable offenses under the Constitution.
    In the present context, it would be possible to respond to this 
suggestion in two different ways. First, it might be urged that actual 
or possible counts against President Clinton--frequent lies to the 
American public, false statements under oath, conspiracy to ensure that 
such false statements are made, perhaps perjury, interactions with his 
advisers designed to promote further falsehoods under oath, and so 
forth--are very serious indeed and that if these very serious charges 
are deemed a legitimate basis for impeachment, little or nothing will 
be done to alter the traditional conception of impeachment. Perhaps 
some of these possible counts, involving interactions with his advisers 
designed to promote lies or continued procedural objections to the 
underlying inquiry, even amount to abuse of power. Second, it might be 
said that whatever history and past practice show, we should understand 
the Constitution's text to allow the President to be impeached, via the 
democratic channels, whenever a serious charge, of one sort or another, 
is both made and proved. I take up these two responses in sequence.
    If the first claim is that certain kinds of falsehoods under oath, 
perjury, conspiracy to lie, and so forth, could be a legitimate basis 
for impeachment, there can be no objection. A false statement under 
oath about a practice of using the IRS to punish political opponents 
would almost certainly be an impeachable offense; so too about a false 
statement about the acceptance of a bribe to veto legislation. Thus 
false statements under oath might well be a legitimate basis for 
impeachment. Indeed, lying to the American people may itself be an 
impeachable offense if, for example, the President says that a treaty 
should be signed because it is in the best interest of the United 
States when in fact he supports the treaty because its signatories have 
agreed to give him a lot of money. But it does not diminish the 
universal importance of telling the truth under oath to say that 
whether perjury or a false statement is an impeachable offense depends 
on what it is a false statement about. The same is true for 
``obstruction of justice'' or interactions with advisers designed to 
promote the underlying falsehood.
    Anyone can be prosecuted for violating the criminal law, and if the 
President has violated the criminal law, he is properly subject to 
criminal prosecution after his term ends. But it does not make sense to 
say, for example, that an American President could be impeached for 
false statements under oath \2\ in connection with a traffic accident 
in which he was involved, or that a false statement under oath, 
designed to protect a friend in a negligence action, is a legitimate 
basis for impeachment. Probably the best general statement is that a 
false statement under oath is an appropriate basis for impeachment if 
and only if the false statement involved conduct that by itself raises 
serious questions about abuse of office. A false statement about an 
illicit consensual sexual relationship, and a ``conspiracy'' to cover 
up that relationship, is not excusable or acceptable; but it is not a 
high crime or misdemeanor under the Constitution. The same is true for 
the other allegations made thus far. It trivializes the criminal law to 
say that some violations of the criminal law do not matter, or matter 
much. But it trivializes the Constitution to say that any false 
statement under oath, regardless of its subject matter, provides a 
proper basis for impeachment.
---------------------------------------------------------------------------
    \2\ I use this term as a placeholder for any allegations of 
conspiracy, obstruction of justice, improper use of legal privileges, 
and so forth in connection with the illicit sexual relationship in 
question.
---------------------------------------------------------------------------
    Of course people of good faith could say that the President has a 
special obligation to the truth, especially in a court of law, and that 
it is therefore reasonable to consider impeachment whenever the 
President has violated that obligation. It is certainly true that as 
the nation's chief law enforcement officer, the President has a special 
obligation to the truth. Perhaps such people also believe that false 
statements under oath, and associated misconduct, are genuinely unique 
and that impeachment for such statements and such misconduct would 
therefore fail to do damage to our historical practice of resorting to 
impeachment only in the most extreme cases. But this position has 
serious problems of its own. Even if it would be possible, in 
principle, for reasonable people to confine the current alleged basis 
for impeachment, it is extremely doubtful that the line could be held 
in practice. Thus a judgment that the current grounds are 
constitutionally appropriate would set an exceedingly dangerous 
precedent for the future, a precedent that could threaten to turn 
impeachment into a political weapon, in a way that would produce 
considerable instability in the constitutional order.
    Consider, for example, the fact that reasonable people can and do 
find tax evasion more serious than false statements about a consensual 
sexual activity, and that reasonable people can and do find an alleged 
unlawful arms deal more serious, from the constitutional standpoint, 
than either. Here is the underlying problem. Whenever serious charges 
are made, participants in politics may well be pushed in particular 
directions by predictable partisan pressures. The serious risk is 
therefore that contrary to the constitutional plan, impeachment will 
become a partisan tool, to be used by reference to legitimate arguments 
by people who have a great deal to gain.
    A special risk of a ready resort to the impeachment instrument is 
that it would interact, in destructive ways, with existing trends in 
American democracy. Those trends--toward an emphasis on scandals and 
toward sensationalistic charges--have characterized the conduct of 
members of both parties in the last decades. For those who love this 
country and its institutions, the use of impeachment, in such cases, is 
quite ominous--not least because of the demonstrable good faith of many 
of those who are recommending it.
    From the standpoint of the constitutional structure, it is far 
better to try a kind of line in the sand, one that has been 
characteristic of our constitutional practice for all of our history: A 
practice of invoking impeachment only for the largest cases of abuse of 
distinctly presidential authority.
                               conclusion
    Text, history, and longstanding practice suggest that the notion of 
``high crimes and misdemeanors'' should generally be understood to 
refer to large-scale abuses that involve the authority that comes from 
occupying a particular public office. Thus a President who accepted a 
bribe from a foreign nation--or who failed to attend to the public 
business during a war--would be legitimately subject to impeachment. 
Perjury, or false statements under oath, could certainly qualify as 
impeachable offenses if they involved (for example) lies about using 
the Internal Revenue Service to punish one's political opponents or 
about giving arms, unlawfully, to another nation. But the most ordinary 
predicate for impeachment is an act, by the President, that amounts to 
a large-scale abuse of distinctly presidential authority.
    If there is ever to be impeachment outside of that category of 
cases, it should be exceedingly rare. The current allegations against 
President Clinton do not justify a departure from our traditional 
practices. Such a departure would be not trivially but profoundly 
destabilizing; it would be far wiser to adhere to our traditions and to 
leave the hardest constitutional problems for another, and better, 
occasion.

    Mr. Canady. Professor Parker.

  STATEMENT OF RICHARD D. PARKER, WILLIAMS PROFESSOR OF LAW, 
                 HARVARD UNIVERSITY LAW SCHOOL

    Mr. Parker. Thank you. I thank the committee for inviting 
me today. Perhaps I should note that although my invitation 
came from the majority, I am now and have always been an active 
Democrat as two members of the minority on this committee are 
aware.
    Let me begin with two general propositions. First, what I 
understand the meeting today to be about is the question of 
what is impeachable under Article II, Section 4, and that is 
what I am going to address. It is not about what I see as a 
distinct question, which is whether the Judiciary Committee 
should go on to vote and the House should go on to vote to 
impeach. I see those as distinct issues. That is, I am sure, 
debatable, but it is my first starting point.
    Secondly, I want to offer a general proposition that at 
least didn't used to be controversial, and that is that a key 
to the success of our Constitution as a living basis for 
government has been its flexibility, its capacity for growth, 
its capacity as John Marshall said, to adapt to circumstances 
unforeseen at an earlier time, or its capacity, as Justice 
Frankfurter said, to gather new meaning from new experience.
    Now, this approach to the language of the Constitution 
applies to the great outlines of the government's power, for 
example, the commerce power. Everyone agrees on that. It 
applies clearly, as Professor Sunstein said, to crucial 
guarantees of individual rights, equal protection, free speech. 
It seems clear to me that it applies as well to powers of the 
nonjudicial or of all the branches of government having to do 
with their relations with other branches of the government. I 
see no reason why the language, so long as it is general in 
terms, should be taken differently.
    Now, this process of adapting the meaning of constitutional 
language to new circumstances, the process of its gathering new 
meaning from new experience, is not confined to the Article V 
process of amendment, although that is very important. It is 
not confined to judicial interpretation. It is also, I think, 
quite clearly a responsibility of the nonjudicial branches of 
government, including the House of Representatives and 
including, of course, the Judiciary Committee.
    So I conclude, at the outset, that it is a very great 
mistake to try at any one point in history to freeze-dry the 
meaning of important constitutional language.
    Now, what about this language in Article II, Section 4? I 
think it is quite clear that it is meant to impose some 
limitation on the House of Representatives and then the Senate, 
but at the same time, it is intended to be highly flexible, and 
as Professor Gerhardt said, case specific.
    Can anything be said about the general contours of the 
Article II, Section 4, language? I believe three simple things 
should be agreed to.
    First, as Professor Sunstein and Professor Holden have 
said, the word ``other'' is crucial. Treason and bribery are 
comparative reference for the meaning of ``other Crimes and 
Misdemeanors.''
    Secondly, I think it is widely, if not uniformly, agreed 
that the phrase ``high Crimes and Misdemeanors'' drawn from 
English practice is not the same thing as a technical violation 
of whatever happens to be in the criminal law at the moment. A 
technical criminal violation is neither necessary nor 
necessarily sufficient to establish impeachable behavior.
    Thirdly, therefore, it seems to me that the nub of the 
matter is that impeachable behavior is behavior that is serious 
or grave or gross in its substantive effect and/or in the state 
of mind by which it came about as to bear upon the fitness or, 
I suppose we should say, the unfitness, of a particular 
individual to hold the Office of President of the United 
States.
    That is the bottom line: Is this person fit to be President 
on the basis of proof as to specific behavior by him or her?
    Now, let me address finally four arguments that are made by 
advocates for the administration in this case and offer a 
response briefly to each.
    First, we hear that public behavior that arises from or 
springs from the private life of a President should not be 
impeachable. That plainly is wrong. It is plainly wrong because 
the word ``other'' is crucial, because bribery is the reference 
and, as we know, bribery, the taking of bribes in particular, 
typically springs from private greed or need of an individual.
    So the first question I hope the committee will ask itself 
is, what is the difference, the constitutional principal 
difference, if there is one, between private greed and need on 
one hand and private lust on the other hand?
    Under the Constitution, should there be a difference?
    Secondly, we hear that public behavior, but not official 
public behavior, that is designed to cover up an embarrassment 
should not be impeachable. That again it seems to me is plainly 
wrong. One way to cover up embarrassment is to bribe somebody, 
to give a bribe, and the giving as well as the taking of bribes 
plainly is included under bribery.
    If, for example, a President bribed a judge in a sexual 
harassment civil lawsuit against him or her, that would be 
impeachable--plainly, obviously. The first article of 
impeachment against President Nixon involved giving out hush 
money to individuals involved in the break-in.
    So, again, I think the committee has to ask itself if 
bribing a judge to cover up an embarrassment is plainly 
impeachable, why not obstruction of justice, subornation of 
witnesses, and lying under oath in Federal judicial 
proceedings?
    Thirdly, we hear that this is unprecedented, these 
allegations are unprecedented, and this argument is that in the 
two previous or perhaps three previous precedents, as we have 
been told, there was no case quite like this one. Or sometimes 
this precedent argument is turned around, and we are told, as 
Professor Sunstein suggested, that nearly all Presidents, or 
all recent Presidents have violated their oath of office. So 
who cares?
    Well, the answer to the first version of the argument on 
precedent is that it would reduce the meaning of the 
Constitution and the work of this House to utter arbitrariness. 
Why should we freeze-dry the meaning of the language of Article 
II, Section 4, to fit the case of Andrew Johnson and Richard 
Nixon? That, frankly, I would suggest is just absurd.
    As to the other version of the precedent argument, they all 
do it, that is, all Presidents violate their oath of office, I 
would say that counts as a reason for this House to say perhaps 
at long last that it has a responsibility it has not been 
fulfilling to impose some discipline upon the President.
    Fourth and finally, we hear that, well, this behavior isn't 
serious or grave or gross enough, it did not involve an act 
against the state or abuse of official power. Let me mention 
one precedent of my own.
    After the election of 1972--in which I was a speech writer 
in the Democratic campaign, by the way--and after the Watergate 
investigation had begun, Federal prosecutors in Maryland 
discovered in the course of a grand jury investigation that the 
Vice President, Spiro Agnew, had been taking bribes from 
Maryland contractors while a county executive and while 
Governor of Maryland. There was even suggestion that on a 
couple of occasions he had taken money from such contractors in 
his office in the White House, although as far as I know, there 
wasn't proof that he ever did anything for those contractors 
after becoming Vice President.
    Now, this behavior perhaps was tawdry, it perhaps was 
grossly tawdry, but my memory is that most people at the time, 
including Republicans, believed that it would have been 
impeachable if Attorney General Richardson had determined that 
the criminal proceeding ought not go forward. That was a very 
hot issue at the time.
    So I hope the committee will ask itself what, if any, is 
the difference between this case now and the case, that almost 
happened, of Vice President Agnew?
    Mr. Canady. Thank you, Professor Parker.
    [The prepared statement of Mr. Parker follows:]
  Prepared Statement of Richard D. Parker, Williams Professor of Law, 
                    Harvard University School of Law
    Having reviewed a variety of interpretations, historic and 
contemporary, of standards for impeachment of a President by the House 
of Representatives, I shall briefly address three issues. First, what 
agreement is there on basic parameters that should frame a discussion 
of ``impeachable'' presidential behavior under Article II, Section 4 of 
the Constitution? Second, what should be made of claims that 
obstruction of justice (including lying under oath) in federal judicial 
proceedings is not impeachable if the behavior arose out of 
``personal'' or ``private'' affairs of the President? And, third, if 
behavior is determined to be impeachable, what sorts of considerations 
may appropriately guide the House of Representatives in deciding 
whether to go on and vote to impeach the President?
               a. parameters of ``impeachable'' behavior
    (1) It is important to begin with a basic distinction: A 
determination that presidential behavior is ``impeachable'' does not 
necessarily mean that, once such behavior is proved, the House of 
Representatives has to impeach the President. Questions of ``what is 
impeachable'' and of ``whether to impeach'' are, in principle, 
distinct. Considerations sufficient to answer the first question may 
not be sufficient--taken by themselves--to resolve the second.
    (2) The language of Article II, Section 4 which describes 
impeachable behavior--``Treason, Bribery or other high Crimes and 
Misdemeanors''--is meant to impose some limitation on the power to 
impeach. It is mistaken to say that the House may define this language 
in any way it wishes. For that is to claim that there is, in principle, 
no limitation on the power.
    (3) On the other hand, it is evident that the exact scope of the 
power is anything but clear. The pre-1787 practice of impeachment in 
England, on which our constitutional provision was modelled 
semantically, does not resolve the matter. Nor do truncated references 
to it in the records of the constitutional convention or the Federalist 
Papers. Nor, finally, do the precedents in which Congress has 
considered the matter. The precedents (particularly those involving 
impeachment of presidents) are simply too rare and too bound up in 
specific contexts to yield a precise definition--precise enough, that 
is, to resolve unprecedented issues arising in novel contexts.
    (4) That means that interpretation of the constitutional language 
must evolve through case-by-case consideration of concrete issues in 
particular contexts. This is hardly unusual. The interpretation of a 
great many constitutional provisions--including provisions that assign 
powers to government--has, necessarily, evolved through time, adapting 
to and gathering meaning from specific circumstances.
    (5) Nor is the evolving, situational nature of the language's 
meaning somehow ``unfair'' to the President. It is crucial to keep in 
mind that impeachment involves only removal from office. It is not 
``punishment.'' Article I, Section 3 makes that clear. The same Section 
allows for criminal punishment as a separate matter after impeachment. 
Hence, the standards of ``fair warning'' that apply to safeguard a 
defendant in a criminal prosecution do not apply to impeachment. The 
Federalist No. 65 makes this point, observing that impeachment ``can 
never be tied down by such strict rules, either in the delineation of 
the offense by the prosecutors or in the construction of it by the 
judges, as in common cases serve to limit the discretion of courts in 
favor of personal security.''
    (6) What, then, can be said generally about the broad contours--and 
limitations--of the constitutional language within which the Congress 
must exercise discretion? It appears that students of the subject agree 
on five propositions: (a) The predicate of impeachment must involve 
proof of specific acts or omissions rather than a generalized 
description of misbehavior. (b) The standard for ``impeachable'' 
presidential conduct is not necessarily the same as for ``impeachable'' 
behavior by judges or cabinet officers. On one hand, the standard for 
the President might have to be more tolerant of misbehavior. (Unlike 
the other officials, for example, the President is elected.) On the 
other hand, it might need to be less tolerant. (The President, for 
example, is far more powerful.) Reasonable people may disagree about 
that, but agree that the presidential standard is unique. (c) The range 
of impeachable conduct is not limited to behavior currently punishable 
under criminal law. Nor is impeachment necessarily subject to the exact 
technical requirements and defenses--for instance, the intent 
requirements, the exclusionary rule or the entrapment defense--
applicable in a criminal prosecution. Yet, at the same time, not all 
criminal behavior is necessarily impeachable. (d) The Congress should 
look, by way of analogy, to ``Treason'' and ``Bribery'' in considering 
the scope of ``other high Crimes and Misdemeanors.'' (e) And, finally, 
if an overarching description can be made of the latter, it is that 
``high'' misbehavior must transcend mere ``maladministration.'' It must 
be ``grave'' or ``gross'' or ``serious.''
    (7) Can anything more be said about the level of ``gravity'' that 
is required? Attempts are common. Most of them have to do with the 
``official'' nature of the misbehavior: (a) Some say that impeachable 
conduct should be limited to offenses against ``the State'' or ``the 
Republic'' or the ``constitutional order.'' (b) Others say it should, 
at least, involve performance (or nonperformance) of the official 
duties of the President. (c) Still others say that it must involve some 
use of the powers or privileges of the office, whether or not within 
the scope of official duties. And (d) some say that it should just be 
limited to conduct by the President while in office. Yet nearly 
everyone seems to agree that a President found to have murdered someone 
or to have committed child abuse--even before assuming office--is 
impeachable. Thus, as with so many efforts at general definition of 
constitutional powers, we find ourselves retreating to the most 
capacious standard of all: (e) Impeachable behavior is behavior that, 
once found out, gravely damages the capacity of the President to lead--
that gravely impairs his fitness for office.
 b. what about obstruction of justice in federal judicial proceedings 
     arising out of the ``personal'' or ``private'' affairs of the 
                               president?
    Seeking to short-circuit application of this standard, some now 
claim that conduct arising out of the private affairs of the President 
can never gravely impair his fitness for public office and, hence, can 
never be impeachable. So sweeping a claim cannot be sustained, however. 
For it would rule out a case of murder committed for private motives. 
The claim might then be amended to bar impeachment for conduct arising 
out of one sub-category of the President's private life: his sex life. 
But that cannot be sustained either. For it is not hard to imagine 
cases of murder arising from just that source. Thus the claim might be 
amended again, to advocate a presumption against impeachment for 
conduct arising out of the President's private life, a presumption that 
could be overcome only if the conduct itself were very, very ``grave'' 
or ``gross'' or ``serious.'' Now, we're almost back where we began, but 
with the scales sharply tilted against impeachability for misbehavior 
whose source is ``personal'' or ``private.''
    This now-familiar line of argument concludes as follows: Lying 
under oath and obstruction of justice in federal judicial proceedings 
are, even if proved, not impeachable because they simply are not 
sufficiently ``grave'' or sufficiently ``gross'' or sufficiently 
``serious,'' so long as such conduct arose from the President's private 
affairs.
    I would like to make four comments on this claim.
    (1) Strictly as a matter of principle, it is not clear why 
substantial presidential misconduct should be presumed non-impeachable 
just because it ``arose from'' a realm of ``private'' life. Is the 
claim that the ``value'' of privacy should usually immunize any 
misbehavior--public misbehavior--springing from this realm? Is it too 
``embarrassing'' or too ``unseemly'' (whatever that means) to look into 
such misbehavior? Is the idea that small motives cannot lead to large 
transgressions?
    These notions are peculiar enough in themselves. But, in terms of 
constitutional principle, they make no sense. The reason is that the 
phrase, ``other high Crimes and Misdemeanors,'' must be understood in 
light of ``Bribery,'' one of its referents. Acts of bribery--as is well 
known--tend to arise from the ``private'' lives of the actors. The fact 
that bribery may arise from private greed (or need) does not 
presumptively immunize it from impeachment. Why, then, should public 
acts be presumptively immunized solely on the ground that they arose 
from private lust?
    (2) It is, of course, common to imagine that ``the standard'' for 
impeachment is established by President Nixon's misbehavior. It is 
equally common to characterize Nixon's misbehavior as imminently 
threatening the destruction of the Constitution. Such hyperbole aside, 
it is useful to recall another impeachment issue from the same era. It 
involved Vice President Spiro Agnew. A criminal investigation in 
Maryland uncovered evidence that Agnew had solicited and accepted 
kickbacks from local contractors before assuming his federal office--
and that he had then received some payments from the same contractors 
in his office in the White House. Attempting to forestall this 
investigation, the Vice President employed three main strategies. One 
was denial. Another was to attack the chief prosecutor. And the third 
was to ``go to the House.'' He sought, that is, to persuade the House 
of Representatives to initiate impeachment proceedings against him. The 
leaders of the House chose to defer to the criminal prosecutors. But 
what if the prosecutors had, instead, deferred to them? In that case, 
wouldn't the House have looked into the matter? And, if it had begun 
impeachment proceedings against Agnew, who would have argued that his 
misbehavior was presumptively immunized just because it arose from his 
private life?
    To be sure, Spiro Agnew was ``only'' a Vice President. What, then, 
if it had been President Nixon who was shown to have solicited and 
accepted bribes from Maryland contractors? It was one thing to argue 
that Nixon should not be impeached for income tax evasion. It would 
have been quite another to argue that bribery was not even impeachable. 
The reason, again, is that ``Bribery'' is one of the two referents of 
``other high Crimes and Misdemeanors.'' Minimal fidelity to the 
Constitution demands that bribery be taken very seriously--working, at 
the very least, from a presumption that any act of bribery Is 
impeachable. So, again, we must ask ourselves: What constitutional 
difference is there between greed and lust as motivations for 
presidential misconduct?
    (3) Now, consider another hypothetical situation: Suppose the 
President were shown to have bribed the judge in a civil lawsuit 
against him for sexual harassment, seeking to cover up embarrassing 
evidence. As bribery, this act would be impeachable, despite its source 
in the President's sex life. What is the difference between that and 
lying under oath or obstructing justice in the same judicial 
proceeding--to say nothing of before a federal grand jury--for the same 
purpose? By analogy, both sorts of behavior would seem grossly to 
pervert, even to mock, the course of justice in a court of the United 
States. Is that not so?
    (4) We hear, however, that lying under oath and obstruction of 
justice in federal court are simply too trivial to be analogized to 
bribery--and surely too trivial to count as ``grave'' or ``gross'' or 
``serious'' presidential misconduct. The argument is: ``Everyone does 
it.'' Or: ``Everyone does it in civil cases.'' Or: ``Everyone does it 
in civil cases about sex.'' Or at least: ``Everyone can understand 
doing it.'' One response to these arguments is to pause and let them 
sink in.
    Because the arguments are now so familiar, however, four further 
responses are helpful. (a) Even if it is true that lying under oath and 
obstruction of justice in federal court are really so common nowadays, 
it is not clear what should follow. Why wouldn't that be a reason to 
take such misbehavior more rather than less seriously? When we hear 
that a problem (and, in this case, crime) is becoming more common, we 
often respond by calling for a crackdown on it. Why not here? (b) If we 
truly no longer care very much about this kind of misconduct, are we 
willing to say so generally? Are we willing to acknowledge it--and to 
accept the complicity of the legal profession in it--openly? If not, 
why not? (c) What evidence is there for the proposition that 
participants in federal judicial proceedings do not, in fact, regard 
lying under oath and obstruction of justice as a ``grave'' matter? And 
(d) if we still do want to treat such acts by ordinary people as a 
``serious'' matter, why are they not ``serious'' when done by a 
President? If we do not treat them as ``serious'' when done by a 
President, how can we keep treating them as ``serious'' when done by 
ordinary people?
    I don't pretend to know the answers to all these questions. But 
they add to my conclusion that a consideration of the ``gravity'' or 
``seriousness'' of such presidential misconduct should not be short-
circuited solely on the ground that the misconduct arose out of the 
President's private life.
                         c. whether to impeach
    If the House of Representatives concludes that the President's 
misconduct, once proven, is impeachable, it must then face the distinct 
question of whether to impeach him. Because members of the House are 
uniquely entitled--and, as I'll note, uniquely suited--to answer this 
question, there is little that I, testifying as an academic ``expert'' 
on the Constitution, should say about it. I, therefore, will simply 
comment on five possible elements of the decision to be made by the 
House.
    (1) Ultimately, as I have already indicated, it is a decision about 
the President's fitness for office. Though it must be predicated on 
proof of specific acts or omissions, it must focus, in the end, on 
inferences to be drawn from such acts or omissions in the particular 
case, with respect to the particular person responsible for them. That 
is to say, it must focus on the character of the President. That is the 
bottom line.
    This may strike some as troubling. (a) How, after all, is personal 
character to be judged? There is certainly no science to rely on. But, 
in criminal and civil trials, juries make such judgments every day. 
These judgments inevitably affect a jury's assessment of the 
credibility of witnesses and the relative desert of parties to 
litigation. What's more, we all draw inferences about character from 
the behavior of others in our ordinary lives. On that basis, we decide 
whether to do business with someone, whether to rely on someone. It's 
not a science, but neither is it rocket science. (b) But how, in 
particular, is character to be judged to determine fitness for office? 
How do we know what ``fitness for office'' means? Obviously, there is 
no ``correct'' answer to this question. Conceptions of ``fitness'' may 
vary at any one time in our history, and they may vary from time to 
time. Yet, again, we all make such judgments every day whether in 
evaluating the fitness for office of our boss or our subordinate. (c) 
Haven't the voters already made this judgment, however, in the case of 
the President? Yes, they have. And if, at that time, the voters knew 
about the misconduct at issue, then it seems to me that the House 
should take that fact very much into account. If, for instance, the 
voters in 1972 had known Spiro Agnew had solicited and taken kickbacks 
from Maryland contractors, that knowledge would have been relevant 
(though not necessarily determinative) in an impeachment inquiry. By 
the same token, if the voters in 1996 knew, in fact, of lying under 
oath or obstruction of justice in federal court by the President, that 
too should be relevant.
    (2) The judgment the House of Representatives must make is a 
political judgment. It is, however, a political judgment of a specific, 
limited kind. (a) If anything is clear in the discussion of impeachment 
in The Federalist No. 65 and 66, it is that partisan--or 
``factional''--politics ought not determine the decision whether to 
impeach. Partisan loyalty should not impel a member of the House to 
vote ``aye''--or to vote ``nay.'' Either way, it would tend to dilute 
or pervert the standard for impeachable behavior, turning it into mere 
opposition to, or support for, the policies of the President. (b) At 
the same time, it is not just appropriate, but desirable and even 
necessary that another sort of politics be brought to bear on the 
decision. That is ``institutional'' politics. The Constitution's 
framers believed that, as a check on presidential misbehavior, periodic 
elections were insufficient. Hence, the provision for impeachment. And, 
in order to make effective this between-elections checking mechanism, 
they assigned responsibility for it to a body with (what they called) 
an institutional ``motive'' to do the job with vigor--the Congress. The 
framers, in other words, relied on an institutional rivalry between the 
legislative and executive branches of government to motivate the former 
to discipline the latter. It follows that members of Congress should 
not be embarrassed to criticize vigilantly a President's misconduct--
and to draw inferences from it about his fitness for office. For that 
is their job. (c) Finally, by assigning this job to the Congress rather 
than to the Supreme Court, the framers intended that yet another sort 
of politics should have influence in the process. Members of Congress 
are elected to act for the good of the country. And they must be 
expected to pay attention to the views of their constituents. Thus no 
Member ought be embarrassed to factor that goal and those views into 
his or her vote. Impeachment, after all, is supposed to be an integral 
part of--not external to--our democracy.
    (3) If impeachment of the President is purposely rooted in the 
separation of powers, what about the effects of impeachment on the 
separation of powers? The claim is often made that the House should be 
very, very reluctant to impeach for fear of the effect on the 
institution of the presidency. Impeachment is sometimes described as a 
legislative ``coup.'' Its consequences are said to include 
``immobilization'' of the presidency, a destruction of its 
``independence.'' For the presidency, we are told, is ``fragile.'' It 
should be handled, if at all, with the greatest care.
    Of course, the decision whether to impeach should attend to likely 
consequences, especially institutional consequences. And background 
assumptions about the strength or weakness of the presidency, at a 
particular stage in our history, must affect an assessment of those 
consequences. In this century, however, its power has grown. That is 
obvious. True, its power has ebbed and flowed from time to time. But a 
description of the modern presidency as inherently ``fragile'' is 
nothing short of bizarre--about as bizarre as a description of 
impeachment, provided for in Article II, as inherently equivalent to a 
``coup.'' If a study of our constitutional history shows anything, it 
is that each branch of the government, when tested, has gone on to 
prove its tensile strength.
    (4) Yet an argument is made that, as the power of the presidency 
has grown, its nature--and, so, what counts as fitness for the office--
have changed. Multiple modern presidents, it is said, committed 
impeachable acts. They weren't impeached; hence, their successors 
shouldn't be. This argument flips the previous one upside-down. But it 
is hardly less bizarre. If it is true that the presidency has 
accumulated power through a pattern of impeachable behavior, that would 
seem a reason, at long last, for Congress to check this 
aggrandizement--not collapse in the face of it.
    (5) There is, finally, the question whether disapproval of the 
chief accuser in a case counts as an appropriate ground for voting 
against the prescribed sanction. Vice President Agnew, I've noted, 
raised the issue. So did President Nixon. No doubt, the House may 
consider the matter. But this is a constitutional process. It has to do 
with the misbehavior of one person, the President. At issue is his 
removal from office. It is not a criminal trial. It is not the O.J. 
Simpson case.
    The Minority Leader put the point dramatically. Impeachment, he 
said, is the ``most important thing we do'' short of declaring war. For 
that reason the House of Representatives needs to focus on the two 
fundamental inquiries: What did this President do? Is he fit to be 
President?

    Mr. Canady. Professor Schlesinger.

STATEMENT OF ARTHUR M. SCHLESINGER, JR., PROFESSOR OF HISTORY, 
                  CITY UNIVERSITY OF NEW YORK

    Mr. Schlesinger. I thank the committee for the opportunity 
to set forth my understanding as an American historian of the 
nature and role of impeachment under the American Constitution.
    I would like to incorporate, by reference, the discussion 
of the Impeachment Clause, treason and bribery and other high 
crimes and misdemeanors--incorporate by reference the 
discussions of my colleagues Professor Sunstein and Professor 
Holden.
    I must register emphatic disagreement with the notion that 
bribery is a private offense. Bribery is obviously corruption 
of public duty and public service. Evidence seems to me 
conclusive the Founding Fathers saw impeachment as a remedy for 
grave and momentous offenses against the Constitution; George 
Mason said, great crimes, great and dangerous offenses, 
attempts to subvert the Constitution. And the question we 
confront today, the question that your committee will confront 
in the weeks ahead, is whether it is a good idea to introduce a 
new area of impeachment and to lower the bar to this action.
    The charges levied against the President by the Independent 
Counsel plainly do not rise to the level of treason and 
bribery. They do not apply to acts committed by the President 
in his role as public official. They do not involve grave 
breaches of official duties. At best, if proven, they would 
perhaps be defined as low crimes and misdemeanors.
    They arise from instances of private misbehavior. All the 
Independent Counsel's charges thus far derive from the 
President's lies about his sex life, his attempts to hide 
personal misbehavior are certainly disgraceful, but if they are 
to be deemed impeachable, then we reject the standards laid 
down by the framers of the Constitution and trivialize the 
process of impeachment.
    Madison in the Constitutional Convention said making 
impeachment too easy would be to make the presidential term 
equivalent to a tenure during the pleasure of the Senate.
    Lying to the public is far from an unknown practice among 
Presidents. If you recall President Reagan's lies during the 
Iran-Contra brouhaha, on November 6, 1986, President Reagan 
said the story about trading arms for hostages has no 
foundation. A week later he called the story utterly false and 
added we did not--repeat, did not trade weapons or anything 
else for hostages. President Reagan's falsehoods had to do with 
his official duties, not with his private behavior, and were a 
gross dereliction of his executive responsibility, but I recall 
no congressional cry for impeachment. Lies about private 
behavior told under oath certainly heighten the presidential 
offense, but they are not political offenses against the state.
    The Take-Care Clause has been mentioned. In 1974, the House 
Judiciary Committee, confronted by convincing evidence that 
President Nixon had connived at the backdating of documents in 
the instance of tax fraud, dropped the charge on the ground 
that such personal misconduct did not involve official actions 
or abuse of power, and thus was not an impeachable offense. As 
the committee report said, tax fraud was not a type of abuse of 
power at which the remedy of impeachment is directed.
    The Take-Care Clause has been--is far from imperative in 
all its applications. As Professor Charles Black of the Yale 
Law School asked in his book on impeachment, suppose a 
President violated the Mann Act by transporting a woman across 
State lines for an immoral purpose. Would it not be 
preposterous, by rights, to think that any of this is what the 
framers meant when they referred to treason, bribery and other 
high crimes and misdemeanors, or any sensible constitutional 
plan would make a President removable on such grounds?
    The framers were much concerned about what we would now 
call the legitimacy of the impeachment process. They believed 
that if the impeachment process is to acquire legitimacy, the 
bill of particulars must be seen as impeachable by broad 
sections of the electorate. The charges must be so grave and 
the evidence for them so weighty that they persuade members of 
both parties that removal must be considered. The framers were 
deeply fearful of partisan manipulation of the impeachment 
process.
    As Hamilton wrote in the 65th Federalist, the process will 
seldom fail to agitate the passions of the whole community and 
to divide it into parties. There will always be the greatest 
danger, Hamilton said, that the decision will be regulated more 
by the comparative strength of the parties than by the real 
demonstrations of innocence or guilt.
    The framers were deeply fearful of partisan manipulation of 
the impeachment process. They abhorred what Hamilton called the 
demon of faction, the domination of the impeachment process by 
faction would, in the view of the framers, deny the process 
legitimacy.
    The current impeachment proceedings, judging by the 
strictly partisan vote in the House of Representatives, fails 
the legitimacy test. The results of last Tuesday's midterm 
election confirmed the drastic failure of the impeachment drive 
and its quest for popular legitimacy.
    Lowering the bar to impeachment creates a novel, indeed 
revolutionary theory of impeachment, a theory that would send 
us on an adventure with ominous implications for the Separation 
of Powers that the Constitution established as the basis of our 
political order. Let us recall the impeachment of President 
Andrew Johnson. That effort failed the legitimacy test, and it 
failed in the Senate of the United States by a single vote.
    President Johnson was rescued in 1868, but even the failed 
impeachment had serious consequences for the presidency. The 
aftermath bound and confined the President for the rest of the 
century. A brilliant young political scientist at Johns 
Hopkins, Woodrow Wilson, concluded the Congress had become, as 
he said, the central and predominant power of the system, and 
he called his influential book of 1885 ``Congressional 
Government.''
    Between Lincoln and Theodore Roosevelt in 1901, no 
President exerted strong executive leadership. Had the 
impeachment drive against Johnson succeeded, the constitutional 
separation of powers would have been radically altered, and the 
alteration would have been protected and maintained by the 
lower threshold of impeachment. The presidential system might 
have become a quasi-parliamentary regime in which the 
impeachment process would serve as the American equivalent of 
the vote of confidence. Presidency would have been permanently 
weekend and our polity permanently changed.
    James G. Blaine, a formidable Republican leader of the last 
part of the 19th century, a former Speaker of this House, voted 
in 1868 for impeachment, but rejecting on the Johnson 
impeachment 20 years after, he wrote that the success of that 
impeachment drive would have resulted in greater injury to free 
institutions than Andrew Johnson in his utmost endeavor was 
able to inflict.
    Johnson's acquittal made it more certain than ever that as 
the framers had wished, impeachment would be used against 
Presidents only in the case of major offenses against the 
state. It is this theory of impeachment that is under challenge 
today by those who want to make it easy for Congress to get rid 
of Presidents.
    The Republic could afford a period of ``congressional 
government'' in the 19th century, when the U.S. was a marginal 
actor on the world stage. Today, the U.S. is the world's only 
superpower. The American Government is irrevocably involved in 
international affairs, plays an essential role in the search 
for peace in Ireland, in the former Yugoslavia, the Middle East 
and South Asia, that seeks to contain the consequences of 
economic collapse in East Asia, to prevent the dissemination 
and testing of nuclear weapons, to stop the plagues of 
terrorism, drugs, poverty and disease. In such a time we cannot 
afford the enfeebled and intimidated presidency the 
revolutionary theory of impeachment would inevitably produce.
    I am sure that the House of Representatives will approach 
their constitutional obligations with a due sense of the 
solemnity of the decision they are about to make. The report of 
the Judiciary Committee and the votes of the House will 
reverberate through the future. It will set precedents for 
future attempts to rearrange the separation of powers. I trust 
that the House of Representatives will meet their 
responsibilities and not seek to download the problem on the 
Senate.
    Thank you.
    Mr. Canady. Thank you, Professor Schlesinger.
    [The prepared statement of Mr. Schlesinger follows:]
  Prepared Statement of Arthur M. Schlesinger, Jr., Professor of Law, 
                       Harvard University of Law
    I thank the Committee for the opportunity to set forth my 
understanding as an American historian of the nature and role of 
impeachment under the American Constitution. The idea of impeachment is 
part of our legal inheritance from Great Britain, where it had been 
used to remove public officials at least since the year 1386. Adapting 
what Alexander Hamilton called the British ``model'', the Framers of 
the Constitution designated as grounds for removal from office 
``Treason, Bribery, or other high Crimes and Misdemeanors.'' This 
formulation suggests that the ``other high crimes and misdemeanors'' 
must be on the same level and of the same quality as treason and 
bribery. They must, as George Mason said in the Constitutional 
Convention, be ``great crimes,'' ``great and dangerous offenses,'' 
``attempts to subvert the Constitution.'' They must, said Hamilton in 
the 65th Federalist, be offenses that proceed

          . . . 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.

Making impeachment too easy, said James Madison, would be to make the 
Presidential term ``equivalent to a tenure during the pleasure of the 
Senate'' and would therefore undermine the separation of powers. 
According to James Wilson, the co-father with Madison of the 
Constitution, ``Impeachments are confined to political characters, to 
political crimes and misdemeanors.'' According to Justice Story, 
impeachment was intended ``to secure the state against gross official 
misdemeanors.'' The term ``high misdemeanor,'' inherited from the 
British tradition of impeachment, referred to such offenses as treason; 
it is not to be confused with ``misdemeanor'' in its present-day usage 
as a petty offense. The evidence is conclusive that the Founding 
Fathers saw impeachment as a remedy for grave and momentous offenses 
against the Constitution, for ``great injuries'' to the state, for 
formidable abuses of official authority.
    The question we confront today is whether it is a good idea to 
lower the bar to impeachment. The charges levied against the President 
by the Independent Counsel plainly do not rise to the level of treason 
and bribery. They do not apply to acts committed by a President in his 
role of public official. They arise from instances of private 
misbehavior. All the Independent Counsel's charges thus far derive 
entirely from a President's lies about his own sex life. His attempts 
to hide personal misbehavior are certainly disgraceful; but if they are 
to be deemed impeachable, then we reject the standards laid down by the 
Framers in the Constitution and trivialize the process of impeachment.
    Lying to the public is not an unknown practice for Presidents. 
Recall President Reagan's lies during the Iran-contra imbroglio. On 6 
November 1986 President Reagan said that the story about trading arms 
for hostages ``has no foundation.'' A week later he called the story 
``utterly false'' and added, ``We did not--repeat--did not trade 
weapons or anything else for hostages.'' President Reagan's falsehoods 
had to do with his official duties, not with his private behavior, and 
were a gross dereliction of his executive responsibility. But I recall 
no congressional cry for impeachment.
    Lies about private behavior told under oath, even in a civil case 
subsequently dismissed, certainly heighten the Presidential offense. 
But they are not political offenses against the state. Thus in 1974 the 
House Judiciary Committee, confronted by convincing evidence that 
President Nixon had connived at the backdating of documents in the 
interests of tax fraud, dropped the charge on the ground that such 
personal misconduct did not involve official actions or abuse of 
executive power and thus was not an impeachable offense.
    As Professor Charles Black of the Yale Law School asked in his book 
Impeachment: suppose a President violated the Mann Act by transporting 
a woman across a state line for, in the words of the act, an ``immoral 
purpose,''

          Would it not be preposterous to think that any of this is 
        what the Framers meant when they referred to ``Treason, 
        Bribery, and other high Crimes and Misdemeanors,'' or that any 
        sensible constitutional plan would make a president removable 
        on such grounds?

    This is not to say that all instances of private misconduct by 
Presidents may not rise to the constitutional level. If a President 
were to engage in murder, in rape, in child molestation, that would, as 
Professor Black suggests, ``so stain a president as to make his 
continuance in office dangerous to public order.'' Monstrous crimes 
acquire public significance. But lying about one's sex life is not a 
monstrous crime. Most people have lied about their sex lives at one 
time or another. We lie to protect ourselves, our spouses, our 
children, our lovers. Gentlemen always lie about their sex lives. Only 
a cad tells the truth about his love affairs. Many people feel that 
questions no one has a right to ask do not call for truthful answers.
    The Framers further believed that, if the impeachment process is to 
acquire popular legitimacy, the bill of particulars must be seen as 
impeachable by broad sections of the electorate. The charges must be so 
grave and the evidence for them so weighty that they persuade members 
of both parties that removal must be considered. The Framers were 
deeply fearful of partisan manipulation of the impeachment process. 
They abhorred what Hamilton called ``the demon of faction.'' Charles 
Pinckney in the Constitutional Convention even questioned the proposal 
of the Senate as the court of impeachment, warning that Congress might 
``under the influence of heat and faction, throw him [the President] 
out of office.'' The domination of the impeachment process by 
``faction'' would in the view of the Framers deny the process 
legitimacy.
    The current impeachment proceedings, judging by the strictly 
partisan vote in the House of Representatives, fails the legitimacy 
test. The results of last Tuesday's midterm election confirm the 
drastic failure of the impeachment drive in its quest for popular 
legitimacy.
    One hesitates to speculate about the reasons for this rebuff to 
impeachment. Voters may perhaps have a visceral understanding that the 
lowering of the bar to impeachment creates a novel, indeed 
revolutionary, theory of impeachment--a theory that would send us on an 
adventure with ominous implications for the separation of powers that 
the Constitution established as the basis of our political order.
    Let us recall the impeachment of President Andrew Johnson. The 
basic cause was disagreement over the policies of Reconstruction. On 
this question scholars today would generally say that Johnson was wrong 
and his Radical Republican opponents were right. But the constitutional 
question was whether the House could impeach a President for honest 
disagreements over policy. When Johnson fired his Secretary of War in 
violation of a Tenure of Office Act passed by Congress (later to be 
declared unconstitutional by the Supreme Court), the House seized on 
this as a pretext for impeachment. Congress acted with impressive 
haste. The House voted impeachment on 3 March 1868 and sent the 
articles of impeachment to the Senate on 5 March. The court of 
impeachment was convened on 13 March. The trial began on 30 March. 
Eighty-one days after the House voted to impeach, the Senate acquitted 
Andrew Johnson by a single vote.
    The President may have been rescued in 1868, but even the failed 
impeachment had serious consequences for the Presidency. As Senator 
James Dixon of Connecticut put it,

          Whether Andrew Johnson should be removed from office, justly 
        or unjustly, was comparatively of little consequence--but 
        whether our government should be Mexicanized, and an example 
        sent which would surely, in the end, utterly overthrow our 
        institutions, was a matter of vast consequence.

Senator Dixon had a point. The aftermath bound and confined the 
Presidency for the rest of the century. A brilliant young political 
scientist at Johns Hopkins, Woodrow Wilson, concluded that Congress had 
become ``the central and predominant power of the system'' and called 
his influential book of 1885 Congressional Government.
    Had the impeachment drive succeeded, the constitutional separation 
of powers would have been radically altered, and the alteration would 
have been protected and maintained by the lowered threshold of 
impeachment. The presidential system might have become a 
quasiparliamentary regime, in which the impeachment process would have 
served as the American equivalent of the vote of confidence. The 
Presidency would have been permanently weakened and our polity 
permanently changed.
    James G. Blaine, a formidable Republican leader who in 1869 became 
Speaker of the House, voted in 1868 for impeachment; but, reflecting 
twenty years after, Blaine wrote that the success of the impeachment 
drive ``would have resulted in greater injury to free institutions than 
Andrew Johnson in his utmost endeavor was able to inflict.'' Johnson's 
acquittal made it more certain than ever that, as the Framers had 
wished, impeachment would be used against Presidents only in the case 
of major offenses against the state and as a weapon of last resort. It 
is this theory of impeachment that is under challenge today by those 
who want to make it easy for Congress to get rid of Presidents.
    The republic could afford a period of congressional goverment in 
the 19th century when the United States was a marginal actor on the 
world stage. Today the United States is the world's only superpower. 
The American government is irrevocably involved in international 
affairs. It plays an essential role in the search for peace in Ireland, 
in the former Yugoslavia, in the Middle East, in South Asia. It seeks 
to contain the consequences of economic collapse in East Asia, seeks to 
prevent the dissemination and testing of nuclear weapons, seeks to stop 
the plagues of terrorism, drugs, poverty and disease. In such a time we 
cannot afford the enfeebled and intimidated Presidency the 
revolutionary theory of impeachment would inevitably produce.
    The question remains whether there is not some way by which the 
feeling of national regret and disapproval over a President's personal 
behavior can be registered. Such proposals as fining a President or 
requiring him to appear on the floor of the House for a public (verbal) 
stoning are ludicrous ideas that would make our great republic the 
world's laughing stock. You might as well demand that the President 
wear a scarlet letter.
    A resolution of censure is a more plausible suggestion. As a 
practical way to terminate this wretched affair, censure, divested of 
any hint of a bill of attainder, has evident appeal. It may be the best 
way out of a national embarassment. But I would caution against any 
tendency to make censure a precedent or to regard it as a routine 
congressional weapon.
    Censure has been used against Presidents once before. On 28 March 
1834 the Senate voted to censure President Andrew Jackson on the ground 
that, in withdrawing federal funds from the Bank of the United States, 
he had ``assumed upon himself authority and power not conferred by the 
Constitution and laws, but in derogation of both.''
    Jackson responded on 15 April with a celebrated ``Protest to the 
Senate.'' If the Senate really believed he had committed ``the high 
crime of violating the laws and Constitution of my country,'' then, 
Jackson said, the proper remedy was impeachment. Senatorial censure was 
``wholly unauthorized by the Constitution, and in derogation of its 
entire spirit. . . . In no part of that instrument is any such power 
conferred on either branch of the Legislature.'' Jackson emphasized 
``the pernicious consequences which would inevitably flow from . . . 
the practice by the Senate of the unconstitutional power of arraigning 
and censuring the official conduct of the Executive.'' He rejected 
censure ``as unauthorized by the Constitution, contrary to its spirit 
and to several of its express provisions, subversive of that 
distribution of powers of government which it has ordained and 
established.'' The basic problem with the proposal of a plea bargain in 
the form of a negotiated censure resolution is that Presidential 
acceptance of censure would hand one or both houses of Congress a new 
weapon to threaten and intimidate Presidents.
    One must hope that any President guilty of personal misconduct 
falling below the level of impeachable offenses will so rebuke and 
castigate himself, and feel such shame in the eyes of his family, in 
the eyes of his friends and supporters and in the eyes of history, that 
he will punish himself for his own self-indulgence, callousness and 
stupidity.

    Mr. Canady. Professor McGinnis.

 STATEMENT OF JOHN O. McGINNIS, PROFESSOR OF LAW, BENJAMIN N. 
           CARDOZO SCHOOL OF LAW, YESHIVA UNIVERSITY

    Mr. McGinnis. Thank you very much, Mr. Chairman.
    Mr. Canady. You need to pull the microphone close to you 
and make sure that it is on.
    Mr. McGinnis. Thank you, Mr. Chairman, and thank you, 
Ranking Member, and thank you, other Members, for the 
opportunity to speak before you here today.
    I will speak on two issues: First, the question of what 
constitutes an impeachable offense, and secondly, what are the 
possible punishments that are allowed under impeachment 
proceedings.
    First, let me just briefly state, and I have discussed this 
at greater length in my testimony, that I believe that 
impeachable offenses include all serious and objective 
misconduct that undermines an official's fitness for further 
service in office. I believe there is substantial reason to 
believe this definition meets the structure of the 
Constitution.
    After all, the purpose of impeachment, the only sanction 
for the impeachment process, is removing an official from 
office. That goes just far enough and no further than removing 
further possibility of future injury to the Republic.
    I think also that this definition is one that clearly comes 
from the Convention. At that time Madison thought it was quite 
a broad power, high crimes and misdemeanors, and said the 
President could be impeached for any misdemeanor. Throughout 
our history, the Impeachment Clause has reached all serious and 
objective misconduct, interferes with fitness for office 
including, as Professor Harrison has suggested, tax evasion, 
including previously perjury, including even drunkenness in 
office.
    I would like now, if I may, turn to the question of some of 
the arguments that have been made by previous witnesses because 
it is not my purpose here to say that the President must be 
impeached for these offenses simply to clear away the legal 
underbrush from arguments that try to limit this House's 
discretion to the rid the Republic of an official who is unfit 
for office because of serious misconduct.
    The first argument that high crimes and misdemeanors must 
concern the abuse of official power because treason and bribery 
concern official power is mistaken at the outset. It is simply 
not the case that bribery requires the use of official power. A 
President could himself or for some private motive bribe a 
judge, and then he would be impeachable under the express 
language of the judge. Indeed, Justice Joseph Story, the 
foremost early commentator on the Constitution, made this point 
over 150 years ago, when he rhetorically asked, suppose a judge 
or other officer receives a bribe not connected with his 
office; could he be entitled to any confidence? Would these 
reasons for removal be just as strong if he were a case of a 
bribe taken in official duties?
    Moreover, the distinction between private and public 
conduct does not, I think, attempt to get out the real purposes 
of the clause, which is removing an official who is unfit for 
office.
    Secondly, some have questioned whether some acts of perjury 
are impeachable. Perjury is very much like bribery, and bribery 
is impeachable by express terms of the Constitution. In what 
way is bribery like perjury? Like bribery of a judge, perjury 
or obstruction of justice always interferes with the coordinate 
branches of government to the detriment of a citizen's rights, 
and therefore is directed against the state.
    Indeed, I think we can look from the Constitution itself to 
the prominence of oaths for all officials about the central 
necessity of truth-telling under the Constitution.
    Previous societies had depended on established religions or 
hierarchies for social cohesion, but the United States was then 
different. It was a bold experiment precisely because it 
depended on the rule of law to protect the rights of each 
citizen, and the rule of law, in turn, is grounded on the duty 
of every citizen to testify truthfully under oath.
    Fidelity to one's oath is also crucial to retain the public 
trust and confidence of a republican leader, because it 
demonstrates that despite his high position, he is as much 
subject to the social compact as any citizen, even the least of 
the citizens. Thus, lying under oath by a public official can 
in any context be a public harm because it strikes both 
practically and, for the President in particular, symbolically 
at the heart of the republican order.
    Finally, it has been suggested that impeaching a President 
should require a higher legal standard than impeaching a judge. 
I think that also has no basis in the Constitution. As 
Professor Harrison has pointed out, the standard in the 
Constitution is the same. Indeed, Madison at the time pointed 
out that impeachment was unnecessary for legislators because 
they acted collectively and the corruption of a single 
legislator was less dangerous to the republics.
    By the same reason, the unfitness of one of our district 
court judges, as damaging as that is, is far less dangerous to 
the Republic than the unfitness of its chief magistrate. And 
the chief magistrate of the Republic is responsible for taking 
care that the laws be faithfully executed.
    As a former official in the Justice Department, I know that 
much of the work of the President and his subordinates is not 
partisan at all, but it involves protecting the rights of the 
citizens in their day-to-day business; and the question I think 
the committee has to ask is whether denying a citizen the right 
of a day in court through perjury or obstruction of justice 
bears on these general responsibilities of the President.
    Finally, let me just briefly suggest that there is really 
no other means in the Constitution, other than removal from 
office, that flows from impeachment. This, I hope we can have a 
high degree of consensus among scholars here today on, even if 
we disagree about other matters.
    It is quite clear that impeachment is the only punishment, 
only sanction, that is thought to come out of the impeachment 
process. And the framers were very specific in only limiting it 
to removal, because if the framers had made impeachment, 
allowed other kinds of punishments to occur, it would no longer 
be an awesome weapon and Congress might be able to use it to 
harass executive officials or otherwise interfere with the 
operations of coordinate branches.
    It is sometimes said that censure here should be a 
possibility because censure can be made on the analogy of the 
legislative branch censuring some of its own Members. I think 
if you look at the clause of the Constitution that authorizes 
the legislature to censure its own Members, allowing quite 
plenary power to punish its own Members for disorderly 
behavior, it is nothing like the impeachment provision which 
only has one punishment, removal from office, required; and 
then allows Congress to go on to choose whether to also 
disqualify that official from office.
    I think this is an extremely important point because what 
we do here, I think, makes a lot of difference to the Republic 
in the future, because what really will release legislative 
power will be to have a whole panoply of punishments that 
extend from impeachment.
    Finally, Mr. Chairman, I would like to address myself to 
those who have said that the concern about impeachment is that 
they are a distraction from government, therefore, that is a 
good reason that we should really end these impeachment 
proceedings. I think that simply cannot be squared with the 
framers' paramount concern for protecting the integrity of 
public officials. They recognized that prosperity and stability 
didn't only depend on the good management of the economy, 
didn't depend on beneficial legislation. It ultimately rests on 
the people's trust in their rulers, and they designed the 
threat of removal from office to restrain the inevitable 
tendency to breach that trust.
    But that constitutional restraint can only work if citizens 
and legislatures alike have the self-restraint to allow its 
processes to unfold solemnly, deliberately, and without concern 
for their own short-term gains and losses. Impeachment is not 
about popularity, it is about maintaining the public trust, and 
the framers understood that those concepts were very different 
indeed.
    Thank you.
    Mr. Canady. Thank you.
    [The prepared statement of Mr. McGinnis follows:]
 Prepared Statement of John O. McGinnis, Professor of Law, Benjamin N. 
               Cardozo School of Law, Yeshiva University
    Thank you for the opportunity to appear before the Committee on the 
important subject of the history and background of impeachment. I will 
first discuss two issues of lasting importance to constitutional 
governance--the meaning of ``high Crimes and Misdemeanors'' and the 
issue of what sanctions Congress may impose on civil officers of the 
United States, including the President. During the course of this 
testimony, I will try to address some of the arguments other scholars 
and citizens have been making about both these issues in relation to 
current events.
    The Constitution states that ``the President, the 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.'' \1\ To understand the meaning of 
``high Crimes and Misdemeanors,'' we must understand the purpose of 
this clause. Like other constitutional mechanisms, impeachment responds 
to a particular problem of governance--in this case how to end the 
tenure of an officer whose conduct has seriously undermined his fitness 
for continued service and thus poses an unacceptable risk of injury to 
the republic.
---------------------------------------------------------------------------
    Footnotes at end.
---------------------------------------------------------------------------
    This purpose is evident from the structure of this provision and 
other provisions relating to impeachment. First, the only legal 
consequences that flow from impeachment proceedings--removal from 
office and potential disqualification from future office--make little 
sense unless impeachment is aimed at removing unfit officials. \2\ 
Impeachment permits no penal sanctions and contemplates no consequences 
short of removal. The consequences of impeachment and conviction go 
just far enough, and no further than, removing the threat posed to the 
republic by an unfit official.
    The procedure for impeachment--indictment by the House and trial by 
the Senate--suggests that the Framers were interested in addressing any 
misconduct seriously undermining fitness rather than addressing some 
fixed list of offenses or even some set of offenses determined by some 
abstract rule. If impeachable offenses could be set out in such a 
determinate matter, it would have made more sense to give the 
responsibility for evaluating them to the judiciary, the arbiter of 
cases under determinate rules. On the other hand, if the task of 
impeachment requires the evaluation of a range of offenses in relation 
to fitness for office, the logical place for such responsibility is in 
Congress, the repository of prudential judgement. Judging whether 
misconduct undermines fitness and makes continued service an 
unacceptable risk to the republic requires inferences not readily 
reducible to fixed rules, particularly because fitness for service 
involves both immediate, practical considerations (``Does this 
misconduct interfere with the official's day to day execution of his 
duties?'') and symbolic considerations (``Does this official's 
misconduct dangerously lower the standards for future officeholders.'') 
In addition, particular misconduct may not itself interfere with 
current tasks, but may reveal defects in an officer's integrity that 
present an unacceptable risk of future misconduct in areas where 
misconduct could harm the republic.
    On its face the phrase ``Treason, Bribery, and other high Crimes 
and Misdemeanors'' wholly comports with the same overriding purpose of 
impeachment--preventing injury to the republic from seriously unfit 
officials. Because the categories of misconduct that may undermine 
fitness to serve cannot be determined in advance, the phrase 
unsurprisingly does not provide a closed list of impeachable offenses. 
Nor does it provide on its face some abstract rule for what is 
``impeachable,'' other than that which flows from the purpose and 
structure of the clause and related impeachment provisions. It is true 
that locating the impeachment process in Congress under a standard 
requiring prudential judgement raises another problem of governance--
the danger that impeachment may make civil officers dependent on the 
caprice of legislators. But the structure of the impeachment provisions 
addresses this problem without resorting to a fixed set of impeachable 
offenses or an arbitrary test for determining their content. In 
employing the phrase ``high Crimes and Misdemeanors'' the Framers used 
a phrase that on its face refers to objective misconduct and not to 
political differences or disagreements. Indeed, requiring a predicate 
of an objectively bad act as a precondition to impeachment assures that 
more than a simple legislative vote of ``no confidence'' is needed for 
removal.
    Moreover, in keeping with their recognition that mere ``parchment 
barriers'' could not be relied on to protect against political 
excesses, the Framers did not, in any event, simply depend on a 
linguistic phrase to prevent abuse. Instead, they protected against the 
inappropriate removal of officials by establishing a high procedural 
hurdle. They required a substantial supermajority of one branch of the 
legislature--two-thirds of the Senate--to approve the removal of any 
officer. They underscored the need to avoid partisan considerations in 
such a procedure by putting Senators under a special oath for the 
trial, an oath which is unique for legislative proceedings. And in the 
case of Presidential impeachment, they even required the Nation's 
highest judicial officer--the Chief Justice of the Supreme Court--to 
preside over the trial and thereby check any partisan procedural 
devices. In this manner they both assured that officials seriously 
unfit for office could be removed but did not make them unduly 
subservient to the legislature.
    Thus, the evident purpose and structure of impeachment clauses show 
that ``high Crimes and Misdemeanors'' should be understood in modern 
lay language as something like ``objective misconduct that seriously 
undermines the official's fitness for office where fitness is measured 
by the risks, both practical and symbolic, that the officer poses to 
the republic.'' The requirement of objective misconduct assures that a 
civil officer cannot be removed for reasons of policy, but only for an 
affirmative act of serious misconduct. The requirement that the act 
seriously undermine the official's fitness for office assures that the 
focus will be on inferences drawn about his fitness, because it is 
unfitness that may create an unacceptable risk of injury to the 
republic.
    On the other hand, this definition leaves substantial room for 
judgment in Congress on the nature of the objective misconduct 
seriously affecting service in office. This is as it should be, because 
there could be no checklist of impeachable offenses in a constitution 
that would stand the test of time, and thus protect against the 
continuing danger to the republic that comes from seriously unfit 
officials. As Chief Justice Marshall stressed almost two hundred years 
ago, in interpreting the general authorities of Congress, ``we must 
never forget that it is a constitution we are expounding.'' \3\
     This interpretation of ``high Crimes and Misdemeanors'' is further 
supported by the historic meaning of the phrase, the debates at the 
Constitutional Convention, and the constitutional practice of over two 
hundred years. First, English history shows that the phrase ``high 
Crimes and Misdemeanors'' was a term of art that was not limited to a 
fixed set of crimes under positive law or the common law of general 
criminal offenses. \4\ Instead, under its rubric the English parliament 
fashioned a common law of misconduct for officials. It exercised a wide 
discretion to indict officials for bad acts that made them no longer 
fit to serve and thus a potential danger to the kingdom.
    The history of the adoption of the phrase at the Constitutional 
Convention also shows that it allows Congress broad discretion to take 
action in light of serious affirmative misconduct that undermines 
fitness. It is true that the Convention struck from the original draft 
of the principal impeachment provision language that permitted 
impeachment for ``maladministration.'' \5\ But that decision simply 
shows that the Framers recognized that negligence in supervision of the 
office is so much in eye of the beholder that it would inevitably allow 
disagreements over public policy to enter into impeachment proceedings. 
The decision not to permit impeachment on the basis of 
maladministration is wholly consistent with authorizing it on the basis 
of objective misconduct that bears on the official's fitness.
    At the Convention, the substitute phrase ``high Crimes and 
Misdemeanors'' was thought to be broad in scope. Madison believed that 
it allowed the President to be tried for ``any act which might be 
called a misdemeanor.'' \6\ Subsequent commentators were also impressed 
by its wide scope. Alexander De Tocqueville, the acute analyst of the 
American political system noted that all observers of the Constitution 
were struck by ``the vagueness'' of the standard for impeachment.\7\
    Congressional practice confirms that ``high Crimes and 
Misdemeanors'' is broad enough in scope to reach all misconduct that 
undermines fitness to serve.\8\ Of course, most offenses giving rise to 
impeachment have also been serious crimes because such violations so 
undermine a person's integrity as to call into question the official's 
ability to serve. However, even when the conduct at issue may have been 
a crime, the House of Representatives has often framed the articles in 
a manner that avoids legal technicalities, and focuses directly on the 
conduct that detracts from the office of the person accused. Perjury 
and tax evasion have in the past been grounds for impeachment because 
they reflect on the fitness of those officials who have sworn to uphold 
the law, not simply because they are crimes.\9\
    Once we have grasped the purpose and history of impeachment, we can 
readily see that some current legal arguments about the scope of the 
phrase ``high Crimes and Misdemeanors'' are simply wrong. For instance, 
it has been suggested that because Treason and Bribery are crimes 
requiring the abuse of official power, all ``high Crimes and 
Misdemeanors'' must concern the abuse of official power. But even the 
premise of this argument is inaccurate. An executive branch official 
could bribe a judge in order to receive favorable treatment in a civil 
case of his own. He then could be removed under the express language of 
the clause despite the fact that his misconduct arose from acts in his 
private capacity. Similarly, the Constitution defines treason in a way 
that does not depend on abuse of official power.\10\ Justice Joseph 
Story--the foremost early commentator on the Constitution--made this 
same point over a hundred and fifty years ago when he asked 
rhetorically, ``Suppose a judge or other officer receive a bribe not 
connected with his judicial office, could he be entitled to any 
confidence? Would not these reasons for his removal be just as strong, 
as if it were a case of an official bribe?'' \11\
    Moreover, the distinction between private and public capacity does 
not comport with the purpose of the clause since private offenses of a 
public man can make him unfit for office. If the official commits a 
murder in a lover's quarrel or embezzles funds from a relative, such 
crimes would be deeply personal and yet would still undermine his 
fitness to serve. Objective private misconduct is relevant to the 
extent that it allows an inference that future exercise of power by 
this individual either poses an unacceptable risk of future injury to 
the republic, or that his continued service would so lower the 
standards of office that it would represent a risk for the future. 
Integrity under law is simply not divisible into private and public 
spheres.
    In the face of the impossibility of limiting ``high Crimes and 
Misdemeanors'' to crimes committed in a public capacity, some law 
professors have suggested that if the crime is committed in a private 
capacity the crime must be ``heinous'' to be impeachable. But the use 
of the adjective heinous is simply superfluous if it means that 
impeachment denotes objective misconduct seriously undermining fitness 
for office. But if it is to suggest some higher threshold for 
misconduct in a private capacity, it has no support in either the text 
or purpose of impeachment. In any event, labeling murder ``heinous'' 
and describing perjury or obstruction of justice as not ``heinous'' is 
certainly not a legal determination but simply a matter of judgment. It 
would be very damaging for this House to accept a legal definition of 
``high Crimes and Misdemeanors'' that creates a republic which 
tolerates ``private'' tax evasion, ``private'' perjury and ``private'' 
obstruction of justice from officials who would then continue to have 
the power to throw their citizens into prison for the very same 
offenses.
    I have suggested that if the President is determined to have 
committed objective misconduct, the House has both the duty and the 
discretion to decide whether the misconduct has undermined his fitness 
for office in a manner that requires his removal. No law professor has 
any special expertise to guide this Committee in the solemn exercise of 
this duty. But I do want to respond to several misconceptions and 
outright legal errors that have recently crept into discourse about 
impeachment. If allowed to stand, they would wrongly and dangerously 
narrow this House's entirely lawful discretion.
    The first misconception is that an official's course of conduct 
must be divided into offenses, and then each offense judged separately 
as to whether it is impeachable. While the House has returned multi-
count impeachments in the past, it has been well understood that a 
course of conduct as a whole should be the subject of judgment. The 
consequence of impeachment and conviction is the same on any count--
removal from office. Moreover, other things being equal, a pattern of 
misconduct may be more probative of unfitness than an isolated criminal 
act. Thus, both the nature of the consequences and of the proof in 
impeachment proceedings suggest that offenses should be considered 
collectively in determining whether an official should be removed from 
office. Certainly, for instance, a series of calculated perjuries and 
obstructions of justice over a substantial period is potentially more 
serious than a single misstatement in a moment of weakness. The 
inferences to be drawn from the course of conduct might be more serious 
still if the official used the resources of the government to further 
such corrupt conduct, or lied to the American people about his actions 
in addition to lying about them under oath.
    Second, some have questioned whether some acts of perjury are 
impeachable. But bribery is impeachable by the express terms of the 
Constitution and, like bribery of a judge, perjury or obstruction of 
justice always interferes with the coordinate branches of government. 
Thus even if one believed, contrary to the argument I have set forth, 
that ``high Crimes and Misdemeanors'' required that the predicate 
misconduct be directed at the state, perjury or obstruction of justice 
would come within its ambit.
    Moreover, the Constitution itself shows that Framers would have 
always regarded lying under oath as a serious matter for a public 
official and a potential violation of ``the public trust,'' which, in 
the words of Alexander Hamilton warrants consideration of 
impeachment.\12\ The Constitution recognizes that truth-telling under 
oath is central to the maintenance of a republic. Oaths are mentioned 
in the Constitution on at least five separate occasions, not least of 
which is the President's own oath to defend the Constitution.\13\
    The prominence of oaths for all officials in the Constitution as 
well as the Fifth Amendment show that the Framers recognized that 
taking a civil oath was an important ingredient of the cement that 
holds a civil society together. Previous societies had depended on 
established religions or hierarchies for social cohesion but the United 
States was then a bold experiment that depended on the rule of law to 
protect the rights of each citizen. The rule of law in turn is grounded 
on the duty of every citizen to testify truthfully under oath: Truth is 
the handmaiden of justice. Fidelity to one's oath is also crucial to 
retain the public trust and confidence in a republican leader because 
it demonstrates that despite his high position, he is as much subject 
to the social compact as the lowliest of citizens. Thus lying under 
oath by a public official can in any context be a public harm in itself 
because it strikes both practically and symbolically at the heart of 
the republican order.
     Some have suggested that the continuing popularity of a President 
perhaps should insulate him from impeachment. Once again, the 
Constitution itself shows that this cannot be the case. The Senate is 
given the discretion to disqualify an official who has been impeached 
and convicted from any future office of ``honor, Trust or Profit.'' 
\14\ This clause shows that the Framers recognized that officials who 
should be impeached and convicted may not only remain popular in the 
face of serious charges, but that they may retain a strong following 
even after conviction. This provision is a consistent with the Framers 
understanding that popularity alone is not the only qualification for 
office. Demagogues might be popular because they told the people what 
they wanted to hear. What is needed in a President to preserve the 
republic, however, is the ability to rally its people in times of 
crisis to do something that might be unpopular in the short term, like 
going to war. For such a task, deeper qualities are required and of 
these qualities trust is one of the most important. The enduring public 
trust necessary for effective leadership is simply distinct from the 
popularity that can vanish at the first stern test in the nation's hour 
of greatest need.
    Finally, it has been suggested that impeaching a President should 
require a higher legal standard than impeaching a judge because a 
President has been elected by the people. Of course, the language of 
the Constitution itself imposes no higher standard. The President no 
less than a judge is charged with carrying out the laws of the United 
States. Indeed, he is expressly directed by the Constitution to ``take 
Care that the Laws be faithfully executed.'' \15\ This injunction 
covers all laws, civil and criminal, and makes no exception for laws 
that apply to himself, in his private or public capacity. Moreover, he 
takes a special Oath to support the Constitution that underscores that 
obligation: ``I do solemnly swear . . . that I will faithfully execute 
the office of the United States, and will to the best of my Ability, 
preserve, protect and defend the Constitution of the United States.\16\ 
In light of both the President's function and his emphatic oath, the 
President is surely no less sworn than any judge to uphold the law, and 
is no less accountable under the Constitution for violating his 
oath.\17\
    Moreover, important considerations of constitutional structure 
might well suggest the opposite conclusion, that we should be more 
loathe to retain a President in office who has breached the public 
trust than any other official. James Madison himself stated that 
impeachment was necessary for the President and not for legislators 
since they acted collectively, and the corruption of a single 
legislator was less dangerous to the republic.\18\ By the same 
reasoning, the unfitness of one of our hundreds of district judges is 
far less dangerous to the republic than the unfitness of its chief 
magistrate.
    Finally, changes in the Constitution since 1789 make the argument 
for a higher standard for impeaching the President on the basis of the 
elected nature of his office even weaker. Since the enactment of the 
Twelfth Amendment the President and Vice-President have run as a team 
and therefore voters will generally have approved a specific successor 
if a President were constitutionally unable to continue. Second, since 
the enactment of the Twenty-Fifth Amendment Presidents are limited to 
two terms. Thus, the possibility of running for another term no longer 
disciplines presidential behavior as it once might have. The 
impeachment provisions should not be construed to condone lawlessness 
in term-limited officers.
    I would now like to turn briefly to the question of Congress's 
authority to sanction the President in a manner other than removal from 
office. I believe it lacks any such authority. The Constitution clearly 
contemplates a single procedure for Congress to address the 
derelictions of a civil officer--impeachment by the House, and 
subsequent trial by the Senate. Article II of the Constitution also 
specifies the necessary consequence of conviction in an impeachment 
case: ``The President, the Vice-President and all civil officers shall 
be removed from Office on Impeachment for, and, Conviction of, Treason, 
Bribery, or other High Crimes and Misdemeanors.'' \19\
    Article I states that ``Judgment in cases of Impeachment will not 
extend further than removal from office, and disqualification to hold 
and enjoy any Office of honor, Profit or Trust under the United 
States.'' \20\ This provision, however, does not authorize Congress to 
impose legislative punishments short of removal. Read together, the 
impeachment clauses require removal upon conviction, but allow the 
Senate at its discretion to impose a single additional penalty--
disqualification from future office. The Senate itself has consistently 
adopted this interpretation.\21\ The Senate's vote to convict on an 
impeachment count brings automatic removal without any further action 
on its part. It occasionally then votes also to disqualify the official 
from future office.
    The Framers decision to confine legislative sanctioning of 
executive officials to removal upon impeachment was carefully 
considered. By forcing the House and Senate to act as a tribunal and 
trial jury, rather than merely as a legislative body, they infused the 
process with notions of due process to prevent impeachment from 
becoming a common tool of party politics. The requirement of removal 
upon conviction accentuates the magnitude of the procedure, encouraging 
serious deliberation among members of Congress. Most importantly, by 
refusing to include any consequences less serious than removal as 
outcomes of the impeachment process, the Framers made impeachment into 
such an awesome weapon that Congress could not use it to harass 
executive officials or otherwise interfere with operations of 
coordinate branches.
    Thus, it would be clearly unconstitutional for Congress to require 
the President to pay a fine. Indeed, besides perverting the Framers 
design for impeachment, a resolution actually imposing a fine would 
violate other constitutional provisions. First, the Constitution 
explicitly forbids bills of attainder.\22\ Such bills were the 
legislative acts by which the British parliament punished individuals, 
including executive officials, with death or forfeiture of property. 
Second, the Constitution prevents the Congress from reducing the 
President's ``compensation'' during his term.\23\ Both prohibitions 
underscore that Congress's power to punish the President is limited to 
impeachment.
     Nor should Congress attempt to avoid this restriction on sanctions 
by entering into a deal by which the President can voluntarily pay a 
suggested amount into the Treasury's miscellaneous receipts account. 
The voluntariness of the President's payment would be a legal fiction. 
The President would be paying a fine under the shadow of impeachment. 
Congress would be using its impeachment powers as a club to impose a 
bill of attainder.
    This would represent a truly disastrous precedent. Congress could 
then establish a schedule of legislative fines for the perceived 
offenses of other branches. Life-tenured Judges might even be required 
to pay fines for unpopular opinions on pain of impeachment. Congress 
will have created a power to enable it to harass the other branches and 
yet escape its constitutional duty to hold officials to ultimate 
account.
    Another way of understanding why this procedure is so fundamentally 
wrong is to consider the analogy that is drawn between it and plea 
bargaining. Plea bargaining is justified because the individual could 
be legitimately charged with the lesser included offense to which he 
pleads guilty. But as we have seen, for important reasons the 
Constitution includes no outcome for impeachment less than removal from 
office.
    Some members have also proposed censure as a sanction from analogy 
to the legislative procedures by which members of each House censure 
its own members. The analogy fails because the Constitution expressly 
provides plenary authority to each House of Congress to fashion 
penalties for members of the legislative branch short of expulsion, but 
provides no such authority to discipline officers of other branches in 
the same manner.\24\ It is pursuant to this explicit authority that 
each House can require one of its members to go the well of the House 
and receive the judgment of their peers. For the President or any other 
civil officer, this kind of shaming punishment by the legislature is 
precluded, since the impeachment provisions permit Congress only to 
remove an officer of another branch and disqualify him from office. 
Moreover, for the same reasons that a deal leading to a fine would set 
a dangerous precedent, ``voluntary'' agreement by the President to 
accept such punishment would also undermine the separation of powers.
    It is true that nothing in the Constitution precludes any member of 
Congress from individually denouncing anyone. A resolution criticizing 
the President thus may be legally permitted as a loud collective shout 
from the floor. To understand the legal nature of such an resolution, 
however, shows that it is in no way equivalent to the solemn act of 
legislative censure flowing from express authority under the 
Constitution.
    I would go so far as to say that the current interest in creating 
new forms of sanctions for the President reflects a cavalier attitude 
toward constitutional governance, and indeed illustrates the kind of 
lasting damage that the country risks from presidential misconduct. If 
a President cannot legitimately deny that he has breached the public 
trust there will be a widespread feeling that he must be punished. He 
or his supporters then may be willing to trade the prerogatives of his 
office for their personal or political benefit. Thus one way a 
President who has committed serious misconduct poses a threat to the 
Republic is the increased likelihood that he will agree to disastrous 
constitutional precedents to protect his own tenure.
    In closing, let me directly address the argument that current 
impeachment proceedings must be ended, since they distract from the 
real business of government, such as maintaining a good economy or 
passing beneficial legislation. This sentiment simply cannot be squared 
with the Framers paramount concern for the integrity of public 
officials. They recognized that the prosperity and stability of the 
nation ultimately rest on the people's trust in their rulers. They 
designed the threat of removal from office to restrain the inevitable 
tendency of rulers to abuse that trust. But this constitutional 
restraint can work only if citizens and legislators alike have the 
self-restraint to allow its processes to unfold solemnly, deliberately, 
and without concern for their own short-term gains and losses.
                                endnotes
    \1\ Art. II, sec. 4.
    \2\ For a more comprehensive discussion of how the Constitution 
limits impeachment to only these two potential consequences, see notes 
19-24 and accompanying text.
    \3\ McCulloch v. Maryland, 17 U.S. (4 Wheat) 316, 406 (1819).
    \4\ See Raoul Berger, Impeachment 62 (1973).
    \5\ 2 Farrand 550.
    \6\ 2 Farrand 550. The breadth of this phrase was the reason that 
Madison wanted to assign responsibility for impeachment to the Court 
rather than to the Senate, presumably in the hopes that they would 
impose some further judicial limitations.
    \7\ See Alexander De Tocqueville, Democracy in America 109 (Mayer, 
ed. 1996). It is true that some commentators suggested that impeachment 
lies for the crimes by ``public men.'' But this does not necessarily 
mean that crime must be committed in a public capacity. A crime is that 
of a public man if it reflects on his public character and thus 
presents a risk of unacceptable injury to the republic.
    \8\ For instance, the House has impeached a judge for drunkenness 
because a judge persistently inebriated cannot administer the laws.
    \9\ For instance, in which the officials for were impeached for 
bribery and tax evasion, see H. Res. 461, 99th Cong. (1986); Judge 
Harry E. Claiborne for tax evasion) and H. Res. 407, 100th Cong. (1988) 
(Judge Walter L. Nixon for perjury).
    \10\ Article III, section 3 (``Treason against the United States, 
shall consist only in levying war against them, or in adhering to their 
enemies, giving them Aid and Comfort'').
    \11\ Joseph Story, 2 Commentaries on the Constitution Sec. 802 
(1833).
    \12\ See Federalist No. 65 at 439 (Rossiter, ed.). (Alexander 
Hamilton).
    \13\ See Art. I, sec. 3 (oath required when trying impeachment). 
Art. II, sec. 1 (presidential oath); Art. VI (oath for all federal and 
state and federal officers. 4th Amend. (Oath for securing warrants); 
14th Amend., sec. 3 (preventing those who violated their oath under 
Art. VI by participating in the Civil War from holding office).
    \14\ Art. I, sec. 3, cl. 7.
    \15\ Art. II, sec. 3.
    \16\ Art. II, sec. 1, cl. 8.
    \17\ Some have suggested that language in Article III, section 1, 
to the effect that ``Judges, both of the supreme and inferior courts, 
shall hold their offices during good Behavior,'' furnishes an 
independent basis for removing judges other than impeachment. This view 
is by no means clearly right, since the language does not provide for 
another mechanism of removal but simply denotes that federal judges, 
unlike other officials, do not serve for a fixed term of years, but for 
life. See, e.g., Ronald D. Rotunda, An Essay on the Constitutional 
Parameters of Federal Impeachment, 76 Kent. L. Rev. 707, 720 (1988). In 
any event, this clause has never been relied upon as basis for removing 
any judge. Thus, conduct of judges who have been removed for perjury 
and other misconduct are precedents for regarding such acts as ``high 
Crimes and Misdemeanors.''
    \18\ 2 Farrand 64.
    \19\ Art. II, sec. 4.
    \20\ Art. I, sec. 3. cl. 7.
    \21\ See Michael Gerhardt, The Federal Impeachment Process 60 
(1995).
    \22\ Art. I. Sec. 9, cl. 3.
    \23\ Art. II, sec. 1, cl. 7.
    \24\ See Art. I, sec. 5, cl. 2 (`` Each House may determine the 
Rules of its own proceedings, punish its members of disorderly 
behavior, and, with the Concurrence of two thirds, expel a member'').

    Mr. Canady. Father Drinan.

  STATEMENT OF ROBERT F. DRINAN, S.J., PROFESSOR, GEORGETOWN 
 UNIVERSITY LAW CENTER, AND MEMBER, HOUSE JUDICIARY COMMITTEE, 
                           1971-1981

    Father Drinan. Mr. Chairman, Members, the framers of the 
Constitution knew that every President would have many and 
powerful enemies. The authors of the Constitution consequently 
made the President virtually immune from legal action.
    They knew furthermore that the United States was creating 
not a parliamentary democracy, but a system in which the 
majority of the Members of Congress could not win a vote of no 
confidence. But the Founding Fathers felt that in an extreme 
case, there would be a need to remove a President prior to the 
time of his election. This was especially true since at that 
time we did not have the 8-year limitation in office and they 
felt that a President could aggregate power to himself and stay 
in office forever as if he were a member of a royal family. 
Benjamin Franklin noted that the method adopted in impeachment 
and removal was devised as a process to prevent the 
assassination of a President by an exacerbated and hostile 
public.
    The framers sharply curtailed the availability of 
impeachment which had been liberally used and abused in 
England. At first, the authors of the Constitution made treason 
and bribery the only offenses that merited impeachment. This 
was then broadened by a member to say ``nonadministration'' or 
``maladministration.'' But then that was restricted to the 
consecrated phrase ``other high Crimes and Misdemeanors.''
    The word ``other,'' as has been pointed out here several 
times, is most significant. It clearly implies that the high 
crimes and misdemeanors must be comparable to or close to or 
analogous to treason and bribery.
    The U.S. Congress has always, almost always, understood 
that impeachment was designed by the Founding Fathers to be a 
remedy for a dire situation for which no other political remedy 
exists. The one exception to the conduct of the Congress was 
the impeachment of Professor Andrew Johnson in those tumultuous 
years after the Civil War. It seems to be the consensus of 
historians and analysts that the impeachment of Johnson was 
motivated primarily by political and partisan reasons and hence 
was misuse of the power of the House of Representatives.
    The impeachment process, Mr. Chairman, is, by its very 
nature, somewhat political. The power was not given to the 
courts or to the executive branch of government, but to the 
House of Representatives, the entity of government closest to 
the people. The only involvement of the courts is the role 
played by the Chief Justice in the event of a presidential 
conviction or trial in the Senate.
    Perhaps the best definition of impeachment is found in the 
classic work on jurisprudence by Justice Joseph Story of the 
United States Supreme Court. He states that impeachment is a 
``proceeding purely of a political nature.'' It is not so much 
designed to punish an offender as to secure the state against 
gross official--I underline--official misdemeanors. Story 
concludes it touches neither his person nor his property, but 
simply divests him of his political capacity.
    The impeachment, therefore, should not be looked upon or 
compared with an indictment, nor should the role of the House 
of Representatives be deemed to be that of a grand jury. 
Impeachment is a noncriminal and a nonpenal proceeding.
    Of equal importance is the fact that the impeachment of a 
President must relate to some reprehensible exercise of 
official authority. Quoting Justice Story, ``if a President 
commits treason, he clearly has abused his executive powers, 
and likewise if a President accepts bribes, but that anything 
else in this consideration must somehow relate to those two 
heinous crimes.''
    The House Judiciary Committee in 1974, where I served, 
recognized this distinction. It was very clear from all the 
documentation that we received that President Clinton had 
backdated his taxes in order to claim a tax deduction for his 
papers, a deduction which was no longer available at the time 
that he and his accountants prepared his income tax return. 
This was a serious offense, in all probability a felony, but 
the House Judiciary Committee in a vote of 26 to 12 on a 
nonpartisan basis----
    Mr. Scott. Father Drinan, you meant President Nixon, did 
you not? You said Clinton.
    Father Drinan. The House Judiciary Committee concluded--as 
a member of the House Judiciary Committee, I voted with the 26 
members who believed that the President's misconduct was not 
impeachable. At that time, Mr. Donald Alexander, the 
Commissioner of the Internal Revenue Service, said that any 
other person would clearly be prosecuted for this offense, 
which was a serious crime.
    This decision confirmed the fact that an indictable offense 
need not be impeachable, and all of the literature concerning 
this topic--and it is vast--reiterated that time and time 
again.
    The noncriminal character of the impeachment process is 
uniquely important in this particular case, Mr. Chairman, 
because the recommendations for impeachment have been set forth 
not by the Congress, but by the Office of Independent Counsel. 
They are furthermore framed as a criminal indictment, and 
consequently, we have the historic situation that for the first 
time in American history, an entity in the executive branch of 
government has performed the work specifically delegated by the 
Constitution to the U.S. House of Representatives. This fact is 
enormously important because it seems to change and distort the 
legal machinery designed by the framers for the process of 
impeachment. It is a process, this impeachment, which in the 
very words of the Constitution is in the sole power of the 
House.
    It is noteworthy that in 1974, the Special Prosecutor gave 
information and facts to the House Judiciary Committee. He did 
not, however, recommend impeachment. He knew that the power to 
recommend impeachment was committed solely to the House of 
Representatives by the Constitution itself.
    On the contrary, Mr. Chairman, the idea of a congressional 
censure for the President has no legal or constitutional 
history. It needs to be considered apparently only because the 
majority of citizens in this country stated time and time again 
that they oppose impeachment, but desire some form of 
congressional sanction as a way of expressing their disapproval 
of the President's conduct.
    But there has never been any sensible definition of 
censure. Is it an admonition? A rebuke? A reprimand? Presumably 
it has no legal consequences.
    The only occasion when a congressional censure was enacted 
was in the 1830s when President Andrew Jackson received a 
censure from the Senate. Not surprisingly, that censure was 
initiated by Senator Henry Clay whom Jackson had defeated in 
the presidential race. The censure was subsequently expunged.
    The Constitution clearly states that the House may impeach 
or not impeach. The Separation of Powers grants, guarantees the 
President immunity from any other penalty. To encourage or 
allow the House to censure the President for misconduct 
bypasses the only process set forth in the Constitution to 
penalize the President.
    A vote to censure a President by one or both parties of 
Congress would establish a dangerous precedent which would 
weaken the institution of the presidency. It would invite an 
erosion of the Separation of Powers in ways in which the 
framers sought carefully to prevent.
    I can envision, Mr. Chairman, if one censure was set forth 
by the House or the Senate, that almost every election cycle we 
would have the Congress censuring the President if he were of a 
different party; and as Professor Schlesinger suggested, that 
would weaken any road to independence and integrity of the 
President over a long period of time.
    In conclusion, it seems clear from all we know about the 
long history and the rich tradition surrounding impeachment 
that the framers intended that impeachment was placed in the 
Constitution as a final safety net in case, somehow, the 
separation of powers did not work, the political process had 
failed, and that a near-tyrant in the executive branch could 
not be stopped by any means short of removal.
    Thank you very much, Mr. Chairman.
    Mr. Canady. Thank you, Father Drinan.
    [The prepared statement of Father Drinan follows:]
  Prepared Statement of Robert F. Drinan, S.J., Professor, Georgetown 
   University Law Center, Member, House Judiciary Committee 1971-1981
    The framers of the United States Constitution knew that every 
president would have many political enemies. The authors of the 
Constitution consequently made the president virtually immune from 
legal action. They knew furthermore that America was inventing not a 
system of parliamentary democracy but a system in which the majority of 
the members of the Congress could not call or win a vote of no 
confidence.
    But the founding fathers knew that in an extreme case there would 
be a need to remove a president before the time of his re-election. 
This was especially true since the writers of the Constitution feared 
(long before the time when a president was limited to eight years in 
office) that a president could aggregate power to himself and stay in 
office as if he were a member of a royal family.
    Benjamin Franklin noted that the method adopted in impeachment and 
removal was devised as a process to prevent the assassination of a 
president by an exasperated and hostile adversary.
    The framers sharply curtailed the availability of impeachment which 
had been liberally used and abused in England. At first the authors of 
the Constitution made treason and bribery the only offenses that 
merited impeachment. This was broadened to include ``mal-
administration'' but then was restricted to include other high crimes 
and misdemeanors. The word ``other'' is most significant. It clearly 
implies that the ``high crimes and misdemeanors'' must be comparable or 
close to ``treason and bribery.''
    The United States Congress has almost always understood that 
impeachment was designed by the founding fathers to be a remedy 
intended only for a dire situation for which no other political remedy 
exists. The one exception was the impeachment of President Andrew 
Johnson in the tumultuous years after the Civil War. It seems to be the 
consensus of historians and analysts that the impeachment of Johnson 
was motivated primarily by political and partisan reasons and hence was 
a misuse of the power of the House of Representatives to impeach a 
president.
    Similarly the House has been very reluctant to use its power to 
impeach since in all of American history it has used that power on some 
20 occasions--mostly on federal judges.
    The impeachment process is by its very nature somewhat political. 
The power was not given to the courts or the executive branch of 
government but to the House of Representatives--the entity of 
government closest to the people. The only involvement of the courts is 
the role played by the Chief Justice who is to preside at the trial of 
a president (not judges or other civil officers) in the Senate.
    Perhaps the best definition of impeachment is found in the classic 
work on jurisprudence by Justice Joseph Story of the United States 
Supreme Court, which states that impeachment is ``proceeding purely of 
a political nature. It is not so much designed to punish an offender as 
to secure the state against gross official misdemeanors. It touches 
neither his person nor his property, but simply divests him of his 
political capacity.''
    Impeachment, therefore, should not be looked upon or compared with 
an indictment. Nor should the role of the House of Representatives be 
deemed to be that of a grand jury.
    Impeachment is a non-criminal and a non-penal proceeding.
    Of equal importance is the fact that the impeachment of a president 
must relate to some reprehensible exercise of official authority. If a 
president commits treason he has abused his executive powers. Likewise 
a president who accepts bribes has abused his official powers. The same 
misuse of official powers must be present in any consideration of a 
president's engaging in ``other high crimes and misdemeanors.''
    This House Judiciary Committee in 1974 recognized this distinction. 
It was clear that President Nixon had back-dated his taxes in order to 
claim a tax deduction for his papers which was no longer available at 
the time he and his accountants prepared his income tax return. This 
was a serious offense, probably a felony. But the House Judiciary 
Committee in a vote of 26-12 on a non-partisan basis, declined to make 
this conduct an impeachable offense. As a member of the House Judiciary 
Committee at that time, I voted with the 26 members who believed that 
the President's misconduct was not impeachable.
    This decision confirmed the fact that an indictable offense need 
not be impeachable. All of the literature concerning the Constitutional 
Convention demonstrates that there is no evidence that any member of 
that convention expressed the opinion that impeachment was only 
intended to cover indictable offenses. That is the conclusion of the 
learned volume of Professor Raoul Berger entitled Impeachment: The 
Constitutional Problems. Professor Berger states that

          One may fairly conclude that indictability was not the test 
        of impeachment. . . .'' He expands on this by asserting that 
        ``In sum high crimes and misdemeanors (are) without roots in 
        the ordinary criminal law and which, as far as I can discover, 
        had no relation to whether an indictment would lie in the 
        particular circumstances.

    The non-criminal character of the impeachment process is uniquely 
important in the case of the recommendations set forth by the office of 
Independent Counsel. These are framed as a criminal indictment.
    In addition, for the first time in American history, an entity in 
the executive branch of government has performed the work specifically 
delegated by the Constitution to the U.S. House of Representatives. 
This fact is enormously important because it seems to change and 
distort the legal machinery designed by the framers for the process of 
impeachment; it is a process which, in the very words of the 
Constitution, is in the ``sole'' power of the House.
    It is noteworthy that in 1974 the Special Prosecutor gave 
information and facts to the House Judiciary Committee; he did not urge 
impeachment. He knew that the power to recommend impeachment was 
committed solely to the House in the Constitution itself.
    The history and definition of impeachment do not yield all of the 
clarity which everyone might wish. But the intention of the founding 
fathers as found in the ways in which Congress for over 200 years has 
reacted to the impeachment process demonstrates a consensus that is 
clear and remarkably consistent. Impeachment is a unique and 
extraordinary weapon which should be considered only in extreme cases 
when impeachment is the only remedy available to oust a president even 
though the majority of the nation's voters elected him.
    On the contrary the idea of a Congressional ``censure'' for the 
President has no legal or Constitutional history. It needs to be 
considered only because the majority of citizens in this country state 
in polls at this time that they oppose impeachment but desire some form 
of Congressional ``sanction'' as a way of expressing their disapproval 
of the President's conduct. They propose a ``censure'' as a compromise 
or a plea bargain. But there has never been a definition of 
``censure.'' Is it an admonition, a rebuke or a reprimand? Presumably 
it has no legal consequences.
    The only occasion when a Congressional censure was enacted was in 
the 1830's when President Andrew Jackson received a censure from the 
Senate. Not surprisingly it was initiated by Senator Henry Clay whom 
Jackson had defeated in the presidential race. The censure was 
subsequently expunged.
    The Constitution states clearly that the House may impeach or not 
impeach. The separation of powers guarantees the president immunity 
from any other penalty.
    To encourage or allow the House to ``censure'' the President for 
misconduct bypasses the only process set forth in the Constitution to 
penalize a president. A vote to censure a president by one or both 
bodies of Congress would establish a dangerous precedent which would 
weaken the institution of the presidency. It would invite the erosion 
of the separation of powers in ways which the framers sought carefully 
to prevent.
    It seems clear from all that we know about the long history and 
rich tradition surrounding the impeachment clause that the framers 
intended that impeachment was placed in the Constitution as a final 
safety net in case somehow the separation of powers did not work and 
that a near tyrant in the executive branch could not be stopped by any 
means short of removal. The extremely cautious approach which should 
characterize any consideration of the use of the impeachment clause 
should be intensified when an independent counsel and not the Congress 
has initiated the possibility of impeachment. The Constitution made it 
clear that the framers placed the power to bring action for impeachment 
not in the courts or in the executive branch or the Senate but in the 
agency in government which is closest to the people--the House. 
Impeachment is not a criminal matter or a judicial procedure. It is one 
that depends in significant ways on the people. It is the people who 
elected a president who should be consulted before the Congress seeks 
to impeach him and remove him from office.

    Mr. Canady. Now our last witness on this panel, Professor 
Presser.

  STATEMENT OF STEPHEN B. PRESSER, RAOUL BERGER PROFESSOR OF 
      LEGAL HISTORY, NORTHWESTERN UNIVERSITY SCHOOL OF LAW

    Mr. Presser. Thank you, Mr. Chairman. It is a great honor 
and a great privilege to be invited to testify before you this 
morning, and a gruesome responsibility to be the tenth man on a 
10-man panel. Please bear with me for just a few minutes.
    We are here because of something that was done 211 years 
ago in Philadelphia, and it is your job today to carry out 
responsibilities that were entrusted to you when the Federal 
Constitution was ratified 2 years later. Like Professor 
Sunstein, I want to go back to first principles. I want to talk 
a little bit about what made that Constitution necessary, and 
how it helps us understand your responsibilities.
    In the years following American independence, there was a 
tremendous doubt whether the 13 former colonies would be able 
to survive as independent States. Their State legislatures 
behaved with extraordinary irresponsibility, refusing 
adequately to fund the Revolutionary War effort and refusing to 
commit the resources necessary for the enforcement of 
commercial contracts or for a stable currency.
    It was the view of the 55 men who met in 1787 that the 
State legislators and other State officials often lacked the 
integrity and honor to behave responsibly, and that too many of 
them were shameless demagogues who cared more about furthering 
their own wealth and careers than they did for looking out for 
the welfare of the people.
    The remedy for these ills, the men who met at Philadelphia 
believed, was the creation of a new Federal Government which 
would have the power to protect us from threats, both external 
and internal. Great discretion and great power were given to 
the new government and, in particular, to the President of the 
United States.
    The authors of The Federalist, the most famous contemporary 
explication of the Constitution, emphasized that the power and 
responsibilities of the President were awesome and that only a 
person with extraordinary integrity and the highest reputation 
for honesty and virtue could be trusted to bear it.
    John Jay, writing in Federalist 64, made it plain that the 
impeachment mechanism, removal for treason, bribery or other 
high crimes and misdemeanors, was a guarantee that the 
President would be such an exemplary person. If he was not, 
Jay's clear implication was, he ought to be removed from 
office.
    It is no coincidence that the man the framers had in mind 
as the first President of the country was George Washington, 
then, as now, regarded as the father of his country and the 
very plutonic form of virtue, honor, integrity and probity.
    In The Federalist and in the debates of the Constitutional 
Convention, it is explained that the constitutional 
obligation--and it is an obligation--to impeach and remove from 
office for treason, bribery or other high crimes and 
misdemeanors, covers a multitude of possible offenses, as we 
have heard this morning. All of these offenses, as far as the 
framers were concerned, however, share some things in common. 
All of them are instances in which an official has subverted 
the Constitution and the laws, and has betrayed the interests 
of the people he is supposed to serve.
    Such a betrayal is most obviously indicated as we have 
learned by the words ``treason'' or ``bribery.'' But the phrase 
``high Crimes and Misdemeanors,'' as Professor McDowell told 
us, also had a clear meaning to the framers who adopted the 
phrase from over 400 years of English impeachment experience.
    English proceedings for impeachment were brought because of 
the commission of high crimes and misdemeanors and included 
proceedings brought to remove officials who refused to carry 
out the duties of their office, officials who wrongly used 
their offices for personal gain instead of public service, or 
of officials who wrongly interfered with the regular course of 
legal proceedings. These were all cases of offenses against the 
state, of attempts to undermine the Constitution as the framer, 
George Mason, called them.
    In order for President Clinton properly to be made a 
subject of impeachment proceedings then, you would have to 
accuse him of a similar offense against the state, a similar 
attempt to undermine the Constitution. That means you have to 
ask yourself what our Constitution, what our Nation, is really 
all about.
    Now, there are many things that might be said on this 
point, but I will say only one, picking up a major theme of 
this morning. Indeed, if I had to boil the results of my 24 
years teaching and writing about our constitutional history 
down to a single proposition, it would be that one often 
advanced by our second President, John Adams, that our system 
is supposed to be a government of the laws and not of men. We 
are supposed to be governed by persons of virtue, 
disinterestedly applying our Constitution and our laws. This is 
our constitutional faith, as Professor McGinnis suggested. It 
is a sort of secular religion of American law.
    The charges lodged against the President by Judge Starr and 
by your committee's chief investigator, Mr. Schippers, must be 
examined against this background, and you have to decide if 
they are the sort of matters the framers meant to cover by the 
phrase ``high Crimes and Misdemeanors.'' If these allegations 
are true, though it appears that the President has repeatedly 
failed to tell the truth under oath in a Federal Court 
proceeding, he has repeatedly failed to tell the truth under 
oath in Federal grand jury proceedings, he has apparently 
engaged for many months in what Mr. Schippers has described as 
a conspiracy to obstruct justice by enlisting others to prevent 
them from cooperating with the Office of Independent Counsel 
and by seeking to get others falsely to testify before the 
grand jury--if these charges are true--and that is a big 
``if,'' and I think you have to decide that--but if it is true, 
then the President has engaged for many months in a calculated 
and shameful effort to deceive and frustrate the enforcement of 
both our civil and criminal laws to serve his personal ends.
    The President of the United States takes an oath to support 
the Constitution, and the Constitution, as you have heard, 
requires him faithfully to execute the laws. If what Judge 
Starr and Mr. Schippers have said is true, even if the 
President has broken his oath of office and set out to betray 
this trust, you have to decide if these charges are true. You 
have to ask not only has the President committed serious 
criminal offenses, but you have to ask yourself a deeper 
question: Has he clearly demonstrated that he is not the kind 
of a man of virtue, honor and integrity that his constitutional 
office demands?
    It is very significant that George Washington in his 
farewell address emphasized that if oaths ever lost their 
sacred sense of obligation, that in his words, it would shake 
the foundation of the fabric of government itself.
    If Judge Starr and Mr. Schippers are right, this is what 
President Clinton has been doing. George Washington, I think, 
would have advised you to carry these proceedings forward to 
determine the truth of these charges, and if they were true, to 
impeach and remove this President.
    One of our fellow witnesses today, Professor Schlesinger, 
observed, when impeachment proceedings were contemplated for 
President Nixon, that if the President had indeed committed 
acts which undermined the basis of our democracy, the Office of 
President would be strengthened for the future and not weakened 
by exercising the constitutional remedy of impeachment. As 
Professor Schlesinger put it so eloquently then, the 
continuation of a law breaker as chief magistrate would be a 
strange way to exemplify law and order at home or to 
demonstrate American probity abroad. Professor Schlesinger was 
right.
    Then there are those who seem convinced that even if what 
Judge Starr has said is true, that all the President has done 
is lie about sex, and Mr. Conyers and Professor Schlesinger 
made out a case to that effect. It is very difficult for many 
people to believe that such conduct is anything but a private 
matter, far removed from constitutional procedures or 
requirements. Other members have noticed that the President is 
accused of much more than lying about sex. But it should be 
made clear that our legal tradition--that ours is a government 
of laws, not of men--has never made any distinction about the 
content of matters that might involve perjury, obstruction of 
justice, or tampering with witnesses.
    No person and, least of all, no President who has sworn 
faithfully to execute all the laws can pick and choose over 
which matters he will be truthful and over which he will not, 
particularly when he is under oath. An oath and the virtue of 
one swearing to it, perhaps lightly regarded by many today, 
were not so lightly regarded at the time of the Constitution's 
framing.
    The oath that the President took when he assumed his office 
was supposed to mean that he would not betray his 
constitutional duties. If it appears to you that he has, your 
constitutional oath requires you to begin the process of his 
removal.
    Thank you.
    Mr. Canady. Thank you, Professor Presser.
    [The prepared statement of Mr. Presser follows:]
  Prepared Statement of Stephen B. Presser, Raoul Berger Professor of 
          Legal History, Northwestern University School of Law
    My name is Stephen B. Presser, and I am the Raoul Berger Professor 
of Legal History at Northwestern University School of Law. I have been 
teaching and writing about American legal and Constitutional history 
for the past twenty-four years. I am the senior author of a leading law 
school American Legal History casebook, the author of a monograph on 
modern Constitutional law, and the co-author of a recently published 
Constitutional Law casebook. I have also written many articles on legal 
history, Constitutional law, and corporations. I appear at the request 
of the Committee to discuss the history of impeachment, and the meaning 
of the Constitutional phrase ``high Crimes and Misdemeanors.''
    The Constitution, as you know, provides in Article II, Section 4, 
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.'' 
\1\ I am a practicing legal historian and much of my research, writing, 
and teaching has concerned the late eighteenth century period when the 
Federal Constitution was drafted and first implemented. I think I can 
be of most service to the subcommittee if I examine the question of 
what ``Treason, Bribery or other high Crimes and Misdemeanors'' means 
by asking what the phrase would have meant to the Constitution's 
framers. In order to understand this we need to try to place the 
impeachment remedy in the context of the framers' assumptions about how 
the Constitution would work, and what would make it work best.
---------------------------------------------------------------------------
    \1\ U.S. Constitution, Art. II, Section 4.
---------------------------------------------------------------------------
    The first important thing to understand, in grasping the concerns 
of our Constitution's framers, is that the Federal Constitution came 
about because of a belief on the part of most of the framers that 
following independence the newly-created state legislatures were 
behaving in a manner that was inimical to the success of our Republic. 
These state legislatures were passing measures which interfered with 
pre-existing contracts, both by suspending them, and by allowing 
payments to be made in newly printed state-issued paper money. This was 
regarded as irresponsible action--action believed to be undertaken by 
unscrupulous state politicians--which cast doubt on whether the 
American people and their governments possessed the virtue necessary to 
make a republican government work. The state legislatures, in short, 
were encouraging dishonesty in commercial matters, they were engaged, 
in effect, in suspending the legal foundations of property and 
propriety, and they were putting in jeopardy the future smooth 
functioning of American economy and society.\2\
---------------------------------------------------------------------------
    \2\ On this matter see generally the now-classic account in Gordon 
S. Wood, Creation of the American Republic 1776-1787 (1969).
---------------------------------------------------------------------------
    The phrase ``It's the economy, stupid,'' so important for political 
success in recent years, would have had resonance for the framers as 
well. Their idea of a good economy, however, was one founded in 
honesty, in reliance on commitments made, and on the presumed security 
of past and future promises. The hopes for future success in the new 
republic rested on the integrity of the federal government and its 
laws; if these were subject to displacement by whim or by corruption--
as it seemed the state legislatures were doing--there was little hope 
that the new United States could long endure. Integrity in the new 
government, its judiciary, and its acts was vital, if commercial 
prosperity was to be secured, and this prosperity was deemed essential 
to achieve domestic tranquility and the other goals of the new 
Constitution.\3\ The new Constitution forbade the State legislatures 
from interfering with contracts, and from continuing to issue paper 
money. The new federal government was charged with establishing a 
foundation for continued economic and political stability. Most 
important for our purposes, elaborate structural safeguards were put in 
place in the new federal Constitution to make sure that the new federal 
government would behave with integrity and that its officials would 
display the kind of disinterested virtue necessary to make American 
government work.
---------------------------------------------------------------------------
    \3\ Cf. U.S. Constitution, Preamble: ``We the People of the United 
States, in Order to form a more perfect Union, establish Justice, 
insure domestic Tranquility, provide for the common defence, promote 
the general Welfare, and secure the Blessings of Liberty to ourselves 
and our Posterity, do ordain and establish this Constitution for the 
United States of America.''
---------------------------------------------------------------------------
    The debates over the 1787 Constitution are filled with discussion 
about how virtue was to be secured in the new government, in all three 
branches. It is in this context that impeachment must be understood. 
Impeachment was believed by the framers to be a vital device intended 
to guarantee that the President and other federal officials would act 
with integrity. Indeed, it was a device designed to ensure that the 
President and other federal officials would do what they were supposed 
to do, because they would know that they would face removal if they did 
not. This becomes clear when we examine the contemporary record.
    I will rely, for most of my testimony, on the text of the 
Constitution, and on the most important contemporary exposition of the 
Constitution, The Federalist Papers, the series of essays on the 
Constitution written by James Madison, Alexander Hamilton, and John 
Jay, in the years 1787-88, immediately following the drafting of the 
Constitution at the Philadelphia Convention.\4\ The Federalist is 
universally acknowledged to be the most important contemporary 
exposition of the federal Constitution. But it is more than a powerful 
contemporary account. It is, in many ways, a work exploring timeless 
political truths. To this day, it is regarded as the most important 
American work in political science.\5\ Thomas Jefferson praised the 
book as ``the best commentary on the principles of government which 
ever was written.'' \6\ James Madison, one of The Federalist's three 
authors, suggested in 1825 that The Federalist was ``the most authentic 
exposition of the text of the federal Constitution, as understood by 
the Body which prepared and the authority which accepted it.'' \7\ The 
fact that the third and the fourth Presidents were thus so fulsome in 
praise of The Federalist suggests that they agreed with The 
Federalist's views of how the Presidency and how the impeachment 
process was to operate.
---------------------------------------------------------------------------
    \4\ James Madison, Alexander Hamilton, and John Jay, The Federalist 
Papers (Penguin Books edition, Isaac Kramnick, ed., 1987). I have also 
used, in the preparation of this testimony, a piece soon to be 
published in volume 8 ( winter 1998-99) of the journal Law and Courts, 
written by Scott D. Gerber, ``Would the Framers Impeach President 
Clinton?'' Mr. Gerber was kind enough to share with me a pre-
publication draft, and I am indebted to him for some of the analysis 
made here, particularly that regarding the Federalist and the debates 
in Philadelphia. I also wish to thank ArLynn Leiber Presser, Elisabeth 
Catherine Presser, and Douglas W. Kmiec for helpful comments on drafts 
of this testimony.
    \5\ See Isaac Kramnick, Editor's Introduction, Id., at 75 (noting 
Clinton Rossiter's belief that the Federalist is the ``one great 
American contribution to the world's literature on politics''). For 
Kramnick's quoting others to the same effect, see Id., at 75-76.
    \6\ Id., at 11-12.
    \7\ Ibid.
---------------------------------------------------------------------------
    One very clear indication of what was intended with regard to 
impeachment is provided in Federalist 64, one of the few numbers 
written by John Jay, who was to become the first Chief Justice of the 
United States. Jay is discussing the treaty power, and is responding, 
in particular, to critics of the Constitution who argued that the 
President and the Senate were given too much discretion in committing 
the new nation to treaties with other nations. Jay notes that the 
Presidential power of making treaties--perhaps the most important 
foreign policy power which the President has discretion to exercise--is 
important because it relates to ``war, peace, and commerce,'' and that 
it should not be delegated ``but in such a mode, and with such 
precautions, as will afford the highest security that it will be 
exercised by men the best qualified for the purpose, and in the manner 
most conducive to the public good.'' Jay goes on to explain that the 
means of picking the President--indirectly through the electoral 
college--is calculated so that the President will be a person noted for 
integrity, virtue, and probity, and that the original indirect means of 
selecting Senators--through the state legislatures--was to assure the 
same for the Senators.\8\
---------------------------------------------------------------------------
    \8\  Id., at 375-376.
---------------------------------------------------------------------------
    Jay makes plain that when a President fails to live up to the 
requirement of trust, honor, and virtue that is necessary to meet his 
treaty-making and other executive responsibilities--if, in short, he is 
not an honorable or virtuous person who will perform his duties in the 
interest of the people--impeachment is available to remove him. When 
Jay addresses the requisite integrity for Presidents and Senators, he 
states:

          With respect to their responsibility, it is difficult to 
        conceive how it could be increased. Every consideration that 
        can influence the human mind, such as honor, oaths, 
        reputations, conscience, the love of country, and family 
        affections and attachments, afford security for their fidelity. 
        In short, as the Constitution has taken [through the indirect 
        election of Senators and Presidents] care that they shall be 
        men of talents, and integrity, we have reason to be persuaded 
        that the treaties they make will be as advantageous as, all 
        circumstances considered, could be made; and so far as the fear 
        of punishment and disgrace can operate, that motive to good 
        behaviour is amply afforded by the article on the subject of 
        impeachments.\9\
---------------------------------------------------------------------------
    \9\ Federalist 64, Id., at 380 (emphasis supplied).

    Virtue, probity, and honor were so important in the executive, as 
Jay's remarks indicate, that it is no surprise that the framers assumed 
that the first President of the United States would have to be George 
Washington. He was the greatest national hero, he was given the lion's 
share of the responsibility for securing independence, and then as now 
was regarded as the father of his country. His reputation for 
integrity, virtue, and honor was unparalleled. George Washington, the 
national epitome of virtue and honor,\10\ was, in short, precisely the 
kind of executive Federalist 64 contemplates.
---------------------------------------------------------------------------
    \10\ On Washington, the manner in which he was the epitome of 
American virtue and honor, and his continuing importance to present-day 
America, see generally Stephen B. Presser, The Restoration of George 
Washington, 25 Reviews in American History 545 (1997).
---------------------------------------------------------------------------
    Federalist 64 thus tells us about the requisite character of 
federal officials, and is persuasive authority for believing that when 
it becomes clear that the President has committed acts which raise 
grave doubts about his honesty, his virtue, or his honor, impeachment 
is available as a remedy. This is further supported by the text of the 
Constitution itself, where it provides in article I, section 3, that 
the punishments which are to be imposed following impeachment by the 
House and conviction by the Senate are ``removal from Office, and 
disqualification to hold and enjoy any Office of honor, Trust or Profit 
under the United States.'' \11\ The kind of a person who would be 
impeached was believed to be one without honor and who thus could not 
be trusted. The fear was that such a person, if allowed an office 
offering the opportunity to profit, would use his office for personal 
ends and not for the good of the people. Impeachment, then, is all 
about deciding whether a particular official can be trusted to act with 
disinterested virtue, or whether an official will put his own needs or 
desires above his Constitutional duties.
---------------------------------------------------------------------------
    \11\ U.S. Constitution, Art. I, Section 3 (emphasis supplied).
---------------------------------------------------------------------------
    It is for this reason--that impeachment is a remedy against those 
who would betray their oaths to uphold the Constitution and would 
instead seek personal advantage--that the framers chose to describe, 
although not to limit impeachable offenses, by including and using as 
an analogy ``Treason and Bribery.'' ``Treason'' is defined in the 
Constitution itself as ``levying War against [the United States], or in 
adhering to their Enemies, giving them Aid and Comfort.'' \12\ The 
essence of Treason, then, is that it involves a betrayal of one's 
obligation to one's own people, by making war against them, or by 
adhering to their enemies. Similarly, ``Bribery'' involves a betrayal 
of virtue and a refusal to exercise disinterested judgment in the 
interests of the people in order to serve the interests of someone 
else--someone who wrongly and corruptly buys what should only belong to 
the people. In both cases the wrongdoer, the traitor or the person 
bribed, turns from his duty and puts his own interests ahead of those 
who trusted in him.
---------------------------------------------------------------------------
    \12\ U.S. Constitution, Art. III, Section 3.
---------------------------------------------------------------------------
    This suggestion that impeachment, in essence, is about a 
fundamental betrayal of trust, finds further support in the limited 
records that we have of the Constitutional Convention. On August 20, 
1787, the Committee of Detail presented a proposal that would have made 
federal officers ``liable to impeachment and removal from office for 
neglect of duty, malversation,\13\ or corruption.'' \14\ Somewhat 
later, however, on September 8, 1787 the Convention had before it a 
revised text that would have limited impeachment only to those cases 
involving ``Treason & bribery.'' George Mason, of Virginia, thought 
this too limiting, and argued:
---------------------------------------------------------------------------
    \13\ Black's Law Dictionary defines ``malversation,'' as ``In 
French law, this word is applied to all grave and punishable faults 
committed in the exercise of a charge or commission (office), such as 
corruption, exaction, concussion, larceny.'' Black's Law Dictionary 865 
(5th ed., 1979). ``Concussion,'' according to Black's is ``In the civil 
law, the unlawful forcing of another by threats of violence to give 
something of value.'' Id., at 264.
    \14\ 2 Max Farrand, The Records of the Federal Convention of 1787 
337 (1966 reprint).

          Why is the provision restrained to Treason & bribery only? 
        Treason as defined in the Constitution will not reach many 
        great and dangerous offences. [Warren] Hastings [the 
        administrator of the East India Company and Governor-General of 
        Bengal whom Edmund Burke led an effort to impeach for 
        corruption] is not guilty of Treason. Attempts to subvert the 
        Constitution may not be Treason as above defined--As bills of 
        attainder which have saved the British Constitution are 
        forbidden, it is the more necessary to extend: the power of 
        impeachments.\15\
---------------------------------------------------------------------------
    \15\ Id., at 550.

    Mason then moved to add after the word ``bribery'' the words ``or 
maladministration.'' James Madison, one of the authors of The 
Federalist, and the man most commonly described at the ``Father'' of 
the Constitution, objected on the grounds that ``maladministration'' 
was too elusive. ``So vague a term,'' he said, ``will be equivalent to 
a tenure during pleasure of the Senate.'' To meet Madison's objection, 
and to make clearer that more than Senatorial whim was required for 
removal, Mason ``withdrew `maladministration' and substitute[d] `other 
high crimes & misdemeanors,' '' which was then accepted and became the 
Constitutional text we now seek to interpret.\16\
---------------------------------------------------------------------------
    \16\ Ibid.
---------------------------------------------------------------------------
    The colloquy between Mason and Madison is the only evidence we have 
from the debates at the 1787 Constitutional Convention at Philadelphia, 
but it appears to suggest that more than mere maladministration, 
something approaching ``great and dangerous offences,'' or an 
``[a]ttempt to subvert the Constitution'' is required. Those who 
emphasize the awful consequences of impeachment, and the propriety of 
its use only for offenses that strike at the heart of American 
government can find support in Mason's words. But it must be understood 
what Mason and the other framers believed the needs of the state were, 
and what American government was all about. The essence of the new 
republic was that ours was to be a ``government of laws and not of 
men,'' and that our laws and our legal doctrines were not to be tossed 
aside at whim for personal or partisan political purposes.\17\ For a 
President to be impeached, then, he must have committed some grave 
offence which is contrary to his oath to uphold the Constitution and 
laws of his country; he must have put his interests above the 
Constitution and the laws.
---------------------------------------------------------------------------
    \17\ For the importance of the notion that ours was to be ``a 
government of laws and not of men,'' see generally Stephen B. Presser, 
Recapturing the Constitution 33-35 (1994).
---------------------------------------------------------------------------
    The distinction between mere ``maladministration'' and the 
betrayals of the Constitution with which impeachment was supposed to be 
concerned is also the subject of some rumination by another one of the 
Federalist's authors, Alexander Hamilton. In Federalist 79, Hamilton 
warns against using ``inability,'' a term similar in meaning to 
``maladministration,'' \18\ as a trigger for impeachment because ``[a]n 
attempt to fix the boundary between the regions of ability and 
inability would much oftener give scope to personal and party 
attachments and enmities than advance the interests of justice or the 
public good.'' \19\ Impeachment, then, is a remedy for, and is not to 
be used as a tool of, personal or party ambition or enmity; impeachment 
is to be used to further ``justice'' and ``the public good.'' Again, 
the essence of what's impeachable appears to be an unjust turning 
against public duties, an attempt to work an ``injustice'' and to 
betray one's duties to the public--in short, to act contrary to one's 
oath to uphold the Constitution and laws of the Country.\20\
---------------------------------------------------------------------------
    \18\ The meaning of maladminstration may be somewhat elusive. 
Black's Law Dictionary defines it as ``This term is used 
interchangeably with misadministration, and both words mean ``wrong 
administration.'' Black's Law Dictionary, supra note 13, at 861. The 
Concise Oxford Dictionary defines ``maladministration'' as ``Faulty 
administration,'' H.W. Fowler and F.G. Fowler, eds., The Concise Oxford 
Dictionary of Current English 693 (3rd ed. 1944).
    \19\ Federalist No. 79, Madison, Hamilton, & Jay, supra note 4, at 
444. In Federalist 79 Hamilton is discussing impeachment of judges, 
which he suggests can occur whenever there is ``malconduct.'' He draws 
no distinction between the criterion for impeachment of judges and 
those for the President, however, and thus the ``malconduct'' to which 
he refers is most likely the same kind discussed in Federalist Nos. 64 
and 65 which deal with impeachment of the President. There are some who 
have sought to suggest that the criteria for impeaching a judge ought 
to be different from the criteria for impeaching a President, but there 
is no clear indication of a difference either in the Constitution or in 
the Federalist.
    \20\ Article II, Section 1, paragraph 8 requires the President, 
before assuming office, to take the following ``Oath or Affirmation,'' 
``I do solemnly swear (or affirm) that I will faithfully execute the 
Office of President of the United States, and will to the best of my 
Ability, preserve, protect and defend the Constitution of the United 
States.'' U.S. Const. Art. II, Section 1. It should be noted that in 
Article II, Section 3, one of the duties of the President is that ``he 
shall take Care that the Laws be faithfully executed. . . .'' U.S. 
Const. Art. II, Section 3. Accordingly part of the President's duty to 
``protect and defend the Constitution'' is to carry out his role to see 
that ``the Laws be faithfully executed.''
---------------------------------------------------------------------------
    The words ``high crimes or misdemeanors'' similarly suggest the 
anti-public oath-abjuring characteristics of what ought to constitute 
an impeachable offense. A ``high'' crime or misdemeanor is 
distinguishable from run of the mill crimes or misdemeanors in that it 
requires proof of an ``injury to the commonwealth--that is, to the 
state and to its constitution.'' \21\ An impeachable act, then, must be 
one that involves injury to the state, one that, as Mason suggested, 
subverts the Constitution. In the United States, of course, acts which 
consciously seek to undermine the nature of our rule by settled laws 
and processes are just such an injury to the state, such a subversion 
of our Constitution.
---------------------------------------------------------------------------
    \21\ The quotation is from Professor Arthur Bestor, from his review 
of Raoul Berger, Impeachment: The Constitutional Problems (1973). 
Bestor, Book Review, 49 Wash. L. Rev. 255, 263 (1973). He reaches his 
conclusion based on the English treason and impeachment cases reviewed 
by Berger.
---------------------------------------------------------------------------
    There are many ways such an undermining or subversion can take 
place. Accordingly, the framers believed that ``high Crimes and 
Misdemeanors,'' if the impeachment provisions were to serve their 
purposes of keeping the executive and judiciary faithful to their 
Constitutional trust, could be broadly construed. Thus, Alexander 
Hamilton, in Federalist 65, where he discusses the judicial function of 
the Senate in trials of impeachments, broadly defines impeachment as a 
remedy generally available to correct wrongdoing. ``The subjects of 
[the Senate's impeachment] jurisdiction are those offenses which 
proceed from the misconduct of public men, or, in other words, from the 
abuse or violation of some public trust.'' \22\ Hamilton, as did some 
of the other framers noted above, supplied some limitation on the 
impeachment power when he wrote that impeachable offenses ``relate 
chiefly to injuries done immediately to the society itself.'' \23\ 
Hamilton even observed--presciently, given recent events in our case--
that when an impeachment proceeding was underway it
---------------------------------------------------------------------------
    \22\ Federalist No. 65, in Madison, Hamilton, & Jay, supra note 4, 
at 380.
    \23\ Ibid.

          . . . will seldom fail to agitate the passions of the whole 
        community, and to divide it into parties more or less friendly 
        or inimical to the accused. In many cases it will connect 
        itself with the pre-existing factions, and will enlist all 
        their animosities, partialities, influence, and interest on one 
        side or on the other; and in such cases there will always be 
        the greatest danger that the decision will be regulated more by 
        the comparative strength of parties than by the real 
        demonstrations of innocence or guilt.\24\
---------------------------------------------------------------------------
    \24\ Id., at 380-381.

    Hamilton believed that the Senate, supposedly further removed from 
the people through election by state legislatures and not by the people 
themselves, would be better able to put raw partisan political concerns 
aside, and make objective determinations on the guilt or innocence of 
one impeached. Since the Senate is no longer thus insulated from 
popular election, it is doubly important that both the House and the 
Senate try to approach the impeachment of the President in as objective 
a matter as possible. Given the breadth of the possible definition of 
``high Crimes and Misdemeanors,'' and, as Hamilton noted, the 
inevitable involvement of partisan politics, it is no wonder that there 
is division in this body and in the nation generally about what 
constitutes an impeachable offense. If we are able to set aside 
partisan politics, however, we can fix with some certainty the nature 
of the acts against the state and the Constitution which the framers 
would have regarded as coming within the phrase ``high Crimes and 
Misdemeanors.''
    At the time the Framers were inserting the phrase ``high Crimes and 
Misdemeanors'' into the Constitution they had a wealth of English 
experience with those words to draw on,\25\ and it appears clear that 
the framers intended and understood that the phrase ``high Crimes and 
Misdemeanors'' was to be interpreted according to the meaning it was 
given by English Common Law.\26\ As Justice Joseph Story was later to 
write, ``The only safe guide in such cases must be the common law, 
which is the guardian at once of private rights and public liberties.'' 
\27\
---------------------------------------------------------------------------
    \25\ The first use of the phrase ``high Crimes and Misdemeanors'' 
is in an impeachment proceeding against the Earl of Suffolk in 1386. 
Berger, supra note 21, at 59.
    \26\ Id., at 71, 87, 87 nn. 160-161.
    \27\ Joseph Story, Commentaries on the Constitution of the United 
States 288 (one volume student edition, 1833, reprinted 1987).
---------------------------------------------------------------------------
    Raoul Berger, in his book on impeachments, has given us a handy 
summary of some of the impeachment proceedings brought in England 
before the framing of our Constitution, proceedings described as 
involving all or part of the phrase ``high Crimes and Misdemeanors.'' 
These included the proceedings brought against the Earl of Suffolk 
(1386), who ``applied appropriated funds to purposes other than those 
specified;'' the Duke of Suffolk (1450), who ``procured offices for 
persons who were unfit and unworthy of them; [and who] delayed justice 
by stopping writs of appeal (private criminal prosecutions) for the 
deaths of complainants' husbands;'' Attorney General Yelverton (1621), 
who ``committed persons for refusal to enter into bonds before he had 
authority so to require; [and who also was guilty of] commencing but 
not prosecuting suits;'' Lord Treasurer Middlesex (1624) who ``allowed 
the office of Ordinance to go unrepaired though money was appropriated 
for that purpose [and who] allowed contracts for greatly needed powder 
to lapse for want of payment;'' the Duke of Buckingham (1626) who 
``though young and inexperienced, procured offices for himself, thereby 
blocking the deserving; [who] neglected as great admiral to safeguard 
the seas; [and who] procured titles of honor to his mother, brothers, 
kindred;'' Justice Berkley who ``reviled and threatened the grand jury 
for presenting the removal of the communion table in All Saints Church; 
[and who] on the trial of an indictment, . . . `did much discourage 
complainants' counsel' and `did overrule the cause for matter of law;' 
'' Sir Richard Burney, Lord Mayor of London (1642), who ``thwarted 
Parliament's order to store arms and ammunition in storehouses''; 
Viscount Mordaunt (1660), who ``prevented Tayleur from standing for 
election as a burgess to serve in Parliament; [and who] caused his 
illegal arrest and detention;'' Peter Pett, Commissioner of the Navy 
(1668) who was guilty of ``negligent preparation for the Dutch 
invasion; [and who was responsible for] loss of a ship through neglect 
to bring it to mooring;'' Chief Justice North ``[who] assisted the 
Attorney General in drawing a proclamation to suppress petitions to the 
King to call a Parliament;'' Chief Justice Scroggs (1680), who 
``discharged a grand jury before they made their presentment, thereby 
obstructing the presentment of many Papists; [and who] arbitrarily 
granted general warrants in blank;'' Sir Edward Seymour (1680) who 
``applied appropriated funds to public purposes other than those 
specified;'' and the Duke of Leeds (1695) who ``as president of the 
Privy Council accepted 5,500 guineas from the East India Company to 
procure a charter of confirmation.'' \28\
---------------------------------------------------------------------------
    \28\ Berger, supra, at 67-69.
---------------------------------------------------------------------------
    One way of characterizing all of this English experience is to say, 
as Joseph Story did, that ``lord chancellors and judges and other 
magistrates have not only been impeached for bribery, and acting 
grossly contrary to the duties of their office, but for misleading 
their sovereign by unconstitutional opinions and for attempts to 
subvert the fundamental laws, and introduce arbitrary power.'' \29\ The 
English cases lend further support to the notion derived from The 
Federalist and the text of the Constitution that impeachable offenses, 
``high Crimes and Misdemeanors'' if you will, are acts that are 
inconsistent with the obligations and duties of office, are acts that 
involve putting personal or partisan concerns ahead of the interests of 
the people, and are acts which demonstrate the unfitness of the man to 
the office.
---------------------------------------------------------------------------
    \29\ Id., at 69, quoting Justice Story.
---------------------------------------------------------------------------
    The Constitution, The Federalist, and the English common law 
experience give a very good general idea of what was meant by the 
Constitution's impeachment clauses. The meaning of ``high Crimes and 
Misdemeanors'' is thus capable of being understood as it was to the 
framers. It is important also to understand, however, that it is 
impossible to fix with certainty the complete enumeration of 
impeachable offenses, and it is impossible to escape the fact that the 
Constitution vests complete and unreviewable discretion with regard to 
impeachment and removal in Congress. Hamilton recognized this too:

          This [the trial of impeachments] can never be tied down by 
        such strict rules, either in the delineation of the offense by 
        the prosecutors [The House of Representatives] or in the 
        construction of it by the judges [the Senate], as in common 
        cases serve to limit the discretion of courts in favor of 
        personal security. There will be no jury to stand between the 
        judges who are to pronounce the sentence of the law and the 
        party who is to receive or suffer it. The awful discretion 
        which a court of impeachments must necessarily have to doom to 
        honor or to infamy the most confidential and the most 
        distinguished characters of the community forbids the 
        commitment of the trust to a small number of persons [and so it 
        is placed in the hands of the entire Senate].\30\
---------------------------------------------------------------------------
    \30\ Madison, Hamilton, & Jay, supra note 4, at 382.

    All of this and more, of course, has led earlier students 
of impeachment to believe that the phrase ``high Crimes and 
Misdemeanors'' does not necessarily encompass only criminal 
acts, but is a general term to refer to any kind of misuse of 
office that the Congress finds intolerable.\31\ Indeed, Gerald 
Ford's famous suggestion that ``high Crimes and Misdemeanors'' 
means anything the House of Representatives wants it to 
mean,\32\ reflects the essential notion that the Constitution 
confers broad discretion on this House to make up its own mind 
about what kinds of conduct should lead to an impeachment 
proceeding.\33\ It is more than a little presumptuous, then, 
for me or any other law professor--or even 400 history 
professors--to tell you how you should define ``high Crimes and 
Misdemeanors''--the oath you took to uphold the Constitution 
requires you to make that determination for yourselves, because 
the maintenance of the quality of the Executive which the 
Constitutional structure demands is part of your job. 
---------------------------------------------------------------------------
    \31\ This was the conclusion reached, for example, in the Report by 
the Staff of the Impeachment Inquiry on the Constitutional Grounds for 
Presidential Impeachment, Committee Print, Committee on the Judiciary, 
93d Cong. 2d Sess., Feb. 1974: ``The emphasis [in impeachment 
proceedings] has been on the significant effects of the conduct--
undermining the integrity of the office, disregard of constitutional 
duties and oath of office, arrogation of power, abuse of the 
governmental process, adverse impact on the system of government.''
    \32\ What, then, is an impeachable offense? 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; 
conviction results from whatever offense or offenses two-thirds of the 
other body considers to be suficiently serious to require removal of 
the accused from office . . . there are few fixed principles among the 
handful of precedents.'' 116 Cong. Rec. H. 3113-3114 (daily ed. April 
15, 1970) (statement of Congressman Gerald R. Ford).
    \33\ There is, however, some indication from Hamilton, in 
Federalist 65 that the kind of acts which amount to impeachable 
offenses will also give rise to the possibility of criminal 
prosecution--which may lead to the conclusion that there must be a 
crime before there can be an impeachment:

        [T]he punishment which may be the consequence of 
      conviction upon impeachment is not to terminate the 
      chastisement of the offender. After having been sentenced 
      to a perpetual ostracism from the esteem and confidence and 
      honors and emoluments of his country, he will still be 
      liable to prosecution and punishment in the ordinary course 
---------------------------------------------------------------------------
      of law.

Id., at 382. In this connection it should be noted that one of the 
country's foremost authorities on impeachment, the distinguished legal 
historian who gave my chair to Northwestern Law School, after an 
exhaustive review of the records of impeachments concluded that a 
``crime'' was not necessary for something to constitute an impeachable 
offense, even though he believed that Gerald Ford's claim to ``an 
illimitable power'' in Congress to impeach went too far. Raoul Berger, 
Impeachment: The Constitutional Problems 53-62 (1973).
    It should be remembered, after all, that the Constitution, while it 
gives you discretion to determine whether a particular act or series of 
acts amounts to grounds for impeachment, requires you to move forward 
to impeach if you determine there are such acts. The language of 
Article II, Section 4 is imperative: ``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.'' \34\ Once you determine that 
impeachable acts have been committed, you have no choice--if the 
Constitution is to function as the framers' understood--you must 
impeach, leaving the decision on removal to the Senate. In the exercise 
of your discretion, though, as we have seen, there are some guidelines 
from the text of the Constitution, from the contemporary exposition in 
The Federalist, in the debates over the impeachment provision, and in 
the examples from English practice: impeachable offenses are those that 
demonstrate a fundamental betrayal of a public trust; they are those 
that suggest the federal official under investigation has deliberately 
failed in his duty to uphold the Constitution and laws he was sworn to 
enforce; and they are those which suggest that the official does not 
possess the virtue or character necessary to maintain the faith of the 
people in his honesty and wisdom. This is a determination to be made by 
the peoples' representatives in the House of Congress closest to the 
people themselves--you.
---------------------------------------------------------------------------
    \34\ U.S. Constitution, Art. II, Section 4 (emphasis supplied).
---------------------------------------------------------------------------
    But perhaps it would not be untoward of me, in light of what I have 
tried to suggest about the Framers' understanding, briefly to consider 
the charges so far levied against President Clinton, and to express an 
opinion about whether they rise to the level the framers' thought 
necessary. As this is written, there are two formulations of these 
charges that have come before you. The first is from Judge Starr's 
report to you, and the other is by the Committee's chief investigator, 
David Schippers.
    Judge Starr submitted what he believed to be ``substantial and 
credible information'' regarding eleven impeachable offenses. These 
were Judge Starr's allegations that (1) President Clinton repeatedly 
lied under oath regarding his sexual relationship with Monica Lewinsky, 
during the pre-trial discovery process in the civil case brought 
against him by Paula Jones, (2) President Clinton lied under oath to 
the grand jury about his sexual relationship with Monica Lewinsky, (3) 
President Clinton lied under oath during his civil deposition in the 
Jones case, when he stated that he could not recall being alone with 
Ms. Lewinsky and when he minimized the number of gifts they had 
exchanged, (4) President Clinton lied under oath during his civil 
deposition in the Jones case concerning conversations he had with Ms. 
Lewinsky about her involvement in the Jones case, (5) President Clinton 
endeavored to obstruct justice by attempting to conceal evidence of his 
relationship with Ms. Lewinsky from the judicial process, (6) President 
Clinton had an understanding with Ms. Lewinsky that they would lie 
under oath in the Jones case about their relationship, and President 
Clinton endeavored to obstruct justice by suggesting that Ms. Lewinsky 
file an affadavit which would prevent her deposition in the Jones case 
and which would enable him to avoid having his testimony contradicted 
by her and would enable him to avoid questions about her, (7) President 
Clinton endeavored to obstruct justice by helping Ms. Lewinsky obtain a 
job in New York at a time when she would have been a witness against 
him were she to tell the truth during the Jones case, (8) President 
Clinton lied under oath in describing his conversations with Vernon 
Jordan about Ms. Lewinsky, 9) President Clinton endeavored to obstruct 
justice by attempting to influence the testimony of Betty Currie, (10) 
President Clinton endeavored to obstruct justice by refusing to testify 
for seven months in a grand jury investigation while simultaneously 
lying to potential grand jury witnesses knowing that they would relay 
the falsehoods to the grand jury, and (11) President Clinton did not 
follow his constitutional duty to faithfully execute the laws when he 
misled the American people and Congress regarding the truth of his 
relationship with Ms. Lewinsky, when he allowed and encouraged his 
wife, his Cabinet, and his associates to perpetrate untruths regarding 
his relationship with Ms. Lewinsky, when he repeatedly and unlawfully 
invoked Executive Privilege to conceal evidence from the grand jury, 
when he refused to answer relevant questions before the grand jury, and 
when he misled the American people on August 17, 1998 by stating that 
his answers in the January civil deposition had been ``legally 
accurate.'' \35\
---------------------------------------------------------------------------
    \35\ The Starr Report: The Official Report of the Independent 
Counsel's Investigation of the President 9-15 (Prima Publishing 
edition, 1998).
---------------------------------------------------------------------------
    Your Chief Investigative Counsel, Mr. Schippers, based on the 
referral from Judge Starr, recast Judge Starr's evidence into fifteen 
purportedly impeachable offenses, including that (1) The President may 
have been part of a conspiracy with Monica Lewinsky and others to 
obstruct justice by providing false and misleading testimony under oath 
in a civil deposition and before a grand jury, withholding evidence, 
and tampering with prospective witnesses, (2) The President may have 
aided, abetted, counseled, and procured Monica Lewinsky to file and 
caused to be filed a false affidavit in the case of Jones v. Clinton, 
et. al., (3) The President may have aided, abetted, counseled, and 
procured Monica Lewinsky to obstruct justice by filing a false 
affidavit (4) The President may have engaged in misprision of felonies 
by taking affirmative steps to conceal Monica Lewinsky's felonies in 
connection with her submission of a false affidavit, (5) The President 
may have testified falsely under oath in his deposition in Jones v. 
Clinton regarding his relationship with Ms. Lewinsky, (6) The President 
may have given false testimony under oath before the federal grand jury 
on August 17, 1998, regarding his relationship with Ms. Lewinsky, (7) 
The President may have given false testimony under oath in his 
deposition in Jones v. Clinton regarding his statement that he could 
not recall being alone with Ms. Lewinsky and minimizing the number of 
gifts they had exchanged, (8) The President may have testified falsely 
in his deposition concerning conversations with Ms. Lewinsky about her 
involvement in the Jones case, (9) The President may have endeavored to 
obstruct justice by engaging in a pattern of activity calculated to 
conceal evidence from the judicial proceedings in Jones v. Clinton 
regarding his relationship with Monica Lewinsky, (10) The President may 
have endeavored to obstruct justice in Jones v. Clinton by agreeing 
with Ms. Lewinsky on a cover story, by causing a false affidavit to be 
filed by her, and by giving false and misleading testimony in his 
deposition, (11) The President may have endeavored to obstruct justice 
by helping Ms. Lewinsky obtain a job in New York at a time when she 
would have given evidence adverse to Mr. Clinton if she had told the 
truth in the Jones case, (12) The President may have testified falsely 
under oath in his deposition in Jones v. Clinton concerning his 
conversations with Vernon Jordan, (13) The President may have 
endeavored to obstruct justice and engage in witness tampering in 
attempting to coach and influence the testimony of Betty Currie before 
the grand jury, (14) The President may have engaged in witness 
tampering by coaching prospective grand jury witnesses and by telling 
them false accounts intending that the witnesses would repeat these 
before the grand jury, and (15) The President may have given false 
testimony under oath before the federal grand jury on August 17, 
1998.\36\
---------------------------------------------------------------------------
    \36\ Presentation before the Committee on the Judiciary, U.S. House 
of Representatives, Monday, October 5, 1998.
---------------------------------------------------------------------------
    In either version, if true, these allegations show a pattern of 
conduct, extending over many months, on the part of the President, of 
deception, of lying under oath, of concealing evidence, of tampering 
with witnesses, and, in general, of obstructing justice by seeking to 
prevent the proper functioning of the courts, the grand jury, and the 
investigation of the Office of Independent Counsel. These offenses, if 
true, would undoubtedly amount to criminal interference with the legal 
process, but more to the point, they would demonstrate that the 
President had failed to live up to the requirements of honesty, virtue, 
and honor which the framers of the Constitution and the authors of the 
Federalist believed were essential for the Presidency. These offenses, 
if true, would bear a clear resemblance to many of the English 
precedents of impeachment for interfering with orderly processes of 
law, for tampering with the grand jury, and for seeking to use one's 
office for personal rather than public ends. These offenses, if true, 
would show that President Clinton engaged in a pattern of conduct which 
involved injury to the state and a betrayal of his Constitutional 
duties, because President Clinton would have thereby abused his office 
for personal gain and betrayed the ideal that ours is a government of 
laws and not of men.
    If these allegations are true, then the President, instead of 
carrying out his oath of office to uphold the Constitution and 
faithfully to execute the laws, sought instead to subvert the judicial 
process specified in Article III, and, in order to protect himself from 
an adverse judgment in the Jones proceeding, sought to frustrate the 
laws designed to protect Ms. Jones and others like her. There are those 
who will argue before you that what the President did was simply to lie 
about his private sexual conduct. It should be remembered, however, 
that the essential allegation in Jones v. Clinton was that the 
President misused his governmental office (then as Governor of 
Arkansas) to attempt to procure sexual favors from Ms. Jones, and the 
allegations of impeachable offenses of the President now before you all 
flow from efforts of the President to suppress the truth in the course 
of Jones v. Clinton. It should also be remembered that Judge Starr 
expanded his investigation to include the facts regarding Ms. Lewinsky 
because Judge Starr believed that he could discern a pattern of 
interference with judicial proceedings on the part of the President 
which Judge Starr had before encountered in the Whitewater 
investigation.\37\ Judge Starr's inquiry, after all, has never been 
about sex, it has been about abuse of power, obstruction of justice and 
other impeachable offenses.
---------------------------------------------------------------------------
    \37\ Starr Report, supra note 35, at 38.
---------------------------------------------------------------------------
    There may still be further allegations of impeachable offenses from 
Judge Starr to come before you,\38\ but looking only to the allegations 
made by Judge Starr and by your Chief Investigator detailed above, 
there is more than enough to require you to move forward now. These 
allegations concern conduct by the President in which he allegedly 
ignored his Constitutional obligations to take care that the laws be 
faithfully executed, and instead used his august position to frustrate 
enforcement of the law. If these allegations are true, then the 
President has acted in a manner against the interests of the state and 
he has sought to subvert the essence of our Constitutional government--
that ours is a government of laws and not of men. If these allegations 
are true, then the President has engaged in conduct that can only be 
described as corrupt, and corrupt in a manner that the impeachment 
process was expressly designed to correct.
---------------------------------------------------------------------------
    \38\ Id., at 47-48.
---------------------------------------------------------------------------
    For many people, apparently, the allegations against the President 
can still be characterized as ``lying about sex,'' and it is difficult 
for many people to believe that such conduct is anything but a private 
matter, far removed from Constitutional procedures or requirements. The 
President is accused of much more than ``lying about sex,'' of course, 
as Judge Starr and Mr. Schippers have made plain. It is appropriate to 
note in passing, however, that our legal tradition has never made any 
distinction about the content of matters that might involve perjury, 
obstruction of justice, or tampering with witnesses. No person and 
least of all no President, who is sworn faithfully to execute all the 
laws, can pick and choose over which matters he will be truthful and 
which he will not, particularly when he is under oath.
    An oath, and the virtue of one swearing to it, perhaps lightly 
regarded by many today, were not so lightly regarded at the time of the 
Constitution's framing. Our best evidence of this is George 
Washington's statements in his famous ``Farewell Address.'' The 
``Farewell Address'' is the first President's ``one outstanding piece 
of writing,'' and is regarded as comparable in importance to Thomas 
Jefferson's Declaration of Independence, Alexander Hamilton's financial 
plan, or James Madison's journal of the proceedings of the 
Constitutional Convention.'' \39\ Like the Declaration, Hamilton's 
ideas about the importance of Commerce and Manufacturing, or the 
Constitutional Convention, Washington's Farewell Address offers a 
valuable and authentic glimpse into what the framers considered vital 
for the new Republic they were founding. In that Farewell Address, in 
one of its most important passages, the man whom the framers designated 
as their First President, asked ``[W]here is the security for property, 
for reputation, for life, if the sense of religious obligation desert 
the oaths which are the instruments of investigation in courts of 
justice?'' Somewhat later in the address Washington added:
---------------------------------------------------------------------------
    \39\ Frank Donovan, editor, The George Washington Papers 258 
(1964). There is much speculation among historians about whether the 
Farewell Address was primarily drafted by Alexander Hamilton, but it 
has still come down to us as the wisdom of our First President.

          It is substantially true, that virtue or morality is a 
        necessary spring of popular government. The rule, indeed, 
        extends with more or less force to every species of free 
        government. Who that is a sincere friend to it can look with 
        indifference upon attempts to shake the foundation of the 
        fabrick?'' \40\
---------------------------------------------------------------------------
    \40\ George Washington, ``To The People of the United States [the 
Farewell Address],'' September 19, 1796, reprinted in II John Marshall, 
The Life of George Washington 479 (1930 reprint)

Washington, the Platonic Form of an American President, believed that 
the oath taken in court was a fundamental security for all that was 
held dear in American Society. He believed that those who took their 
oaths in vain were eroding the foundation of American government, and 
that they had lost the virtue which he believed essential to sustain 
freedom and popular sovereignty. Even if all President Clinton had done 
were to lie under oath in a judicial proceeding, the first President 
would have believed that President Clinton was engaged in an effort to 
``shake the foundation of the fabrick'' of our Constitutional scheme. 
It is clear, based on this, that George Washington would have 
recommended President Clinton's impeachment, and this would likely have 
been the view of Madison, Hamilton, Jefferson, and Mason as well.
    The allegations against President Clinton amount to much more than 
lying under oath, however. I think that the framers' view of the 
Constitution means that if these allegations are true, then the oath 
that you took to support the Constitution \41\ requires you to impeach 
the President.
---------------------------------------------------------------------------
    \41\ U.S. Constitution, Art. VI, Paragraph 3 provides that ``The 
Senators and Representatives . . . shall be bound by Oath or 
Affirmation, to support this Constitution. . . .''

    Mr. Canady. At this time, the subcommittee will recess 
until the hour of 1 o'clock. We will then reconvene for 
questions of the witnesses on the first panel, and then proceed 
with the second panel.
    The subcommittee will stand in recess until the hour of 1 
o'clock.
    [Luncheon recess.]
    Mr. Canady. The subcommittee will be in order. At this time 
we will have a round of questions for the members of this 
panel. As I announced earlier, each member of the subcommittee 
will be given 10 minutes for the purpose of asking questions. I 
will now recognize myself to begin the questions.
    I would like to begin by talking a little bit about the 
procedures that we have followed in this inquiry in the context 
of the history of procedures that have been used in earlier 
impeachment inquiries, and most particularly in the case of 
President Nixon.
    Father Drinan, you were there as a key participant in those 
proceedings.
    I want to make it clear that the procedure we are following 
here, in not establishing a fixed standard for impeachable 
offenses in advance of conducting an inquiry, is by no means 
novel. It is my understanding, based on a reading of the 
historical record, that in the Nixon case, the committee never 
adopted a fixed definition of impeachable offenses. What the 
committee did was examine the conduct of Richard Nixon and then 
determined that certain acts he was responsible for rose to the 
level of high crimes and misdemeanors and the articles of 
impeachment were adopted by the committee.
    As a matter of fact, I further understand that the 
committee never--in that context--never conducted a hearing 
such as the hearing we are conducting today, which looked at 
the history and background of impeachment. Of course, the 
committee staff prepared a report, which I think is a very 
thoughtful and helpful report; I cited it earlier in my own 
remarks. But as far as any hearing such as this, nothing of the 
sort took place.
    Am I incorrect in my description of those procedures, 
Father Drinan?
    Mr. Drinan. Well, I think, Mr. Chairman, that we didn't 
have what you people have, namely, a series of indictments from 
the Special Prosecutor. That was unknown. That document 
appeared relatively early, the big, big, 800-page document.
    Mr. Canady. Well, but I am asking about the procedure for 
establishing whether or not there is a fixed standard of 
impeachable offenses.
    Mr. Drinan. I think there was something simply in the 
atmosphere that we all educated ourselves and the staff gave 
abundant material. I don't recall any specific hearing on the 
nature itself, but we knew an awful lot; and there were all 
types of memos that were coming out, and we just understood 
that it had to be high crimes and misdemeanors.
    Mr. Canady. I appreciate that. And I think the same is true 
of this committee. All of us understand that this is a grave 
matter. We have been studying the historical resources, and as 
a matter of fact, we have been studying resources that were 
developed by your committee in their very thoughtful 
deliberations in the Nixon case.
    Now, there is one thing that relates to the Nixon case that 
I want to address. This has come up in various pieces of 
testimony of members of this panel, some people on the second 
panel also, who are going to testify on this. The President's 
lawyers have raised this issue.
    In the President's lawyer's brief, which was submitted to 
the committee at the time of the hearing on whether to 
institute an inquiry, they submitted an argument that the 
perjury charge against President Clinton is analogous to the 
tax fraud charge against President Nixon, and that since the 
tax fraud article was not adopted against President Nixon, 
therefore, the charge of perjury here clearly does not rise to 
the level of a high crime and misdemeanor. I disagree with that 
conclusion.
    In support of that, they cite the statements by four 
members of the Judiciary Committee in the Nixon inquiry who did 
indicate that they did not believe that tax fraud would rise to 
the level of an impeachable offense. They quote those four 
members at some length in the brief.
    What the brief fails to mention is that there were many 
more members of the committee who, in the debate, indicated 
that they would not support the article for tax evasion because 
there was insufficient evidence of tax fraud. This is a very 
important distinction.
    I believe that a fair reading of the historical record 
indicates that the committee did not decide that tax fraud was 
not an impeachable offense. A majority of the members of the 
committee who spoke on the issue expressed another reason for 
their vote against the article for tax fraud, and that was that 
there was insufficient evidence.
    In reading the record, Father Drinan, from what I could 
tell, you just asked questions, and did not really express a 
clear view. I think it is important that we set the record 
straight on that.
    Another point that I would like to make in connection with 
that is, a number of the witnesses have made reference to the 
small book by Professor Charles Black of the Yale Law School on 
impeachment. Some have lauded him and view that as an important 
statement of various principles related to impeachment. I would 
like to quote him briefly on the issue of income tax fraud. Of 
course, this was the live issue at the time he was writing.
    He says, ``Income tax fraud, in any case,'' and I quote him 
here; this is on page 41 of the book, ``in any case, it 
undermines government and confidence in government. A large-
scale tax cheat is not a viable chief magistrate.''
    Now, he also indicates here that some things that were 
particularly relevant to what he understood about the Nixon 
case, in that the tax fraud involved the donation of government 
papers, and his view that that exacerbated it. But the bottom-
line conclusion here is that what he refers to as ``large-
scale''--``a large-scale tax cheat'' is someone who should be 
subject to impeachment and would be guilty of a high crime and 
misdemeanor.
    Now, that is Professor Black, who is often quoted and 
cited, and I think it is important in the context of this 
argument about what the committee did in the Nixon inquiry on 
the tax fraud charge is quite relevant.
    Let me move on to an issue that has come up in the 
testimony of various witnesses. I raised it in my statement at 
the outset, and it has to do with the integrity of government.
    As I expressed at the outset, I believe that if a President 
commits perjury and a President obstructs justice, that 
President is clearly undermining the integrity of office. That 
President is clearly undermining a confidence in the system of 
justice, and is bringing the system of justice into disrepute, 
bringing his office into disrepute. That is the sort of thing 
which in an impeachment process we should be concerned about.
    Now, Professor Gerhardt, I want to refer to your testimony. 
In your testimony you make some reference to the Harry 
Claiborne case and you say this, and I will quote you at some 
length. This is on page 15 of your written testimony.
    You say that, ``For example, in 1986, the House impeached 
and the Senate convicted and removed Federal District Judge 
Harry Claiborne from office based on income tax evasion. At 
first glance, it seems as if Claiborne's misconduct has no 
formal relationship to his official duties. Nevertheless, it is 
conceivable that Congress' judgment in impeaching and removing 
Claiborne was that integrity is an indispensable criterion for 
someone to continue to function as a Federal judge.''
    Then you go on to say, ``While integrity is obviously 
important for a President or, for that matter, any public 
official, it is not necessarily a sine qua non, especially 
given all the checks that exist for scrutinizing political 
officials' actions.''
    I am troubled by your conclusion there, Professor Gerhardt. 
You talk about checks on the President. Well, there are 
certainly checks on judicial officers as well. A district judge 
has all of his opinions, all of his decisions subject to 
appeal. A circuit court judge typically sits on a panel with 
two other judges, and those decisions would be subject to 
appeal to the Supreme Court. A judge on the Supreme Court is 
there as one of nine.
    The President, it seems to me, stands out as the one person 
in our system who is in a unique position where the checks on 
any lack of integrity there are more important than for anyone 
else in the system of government.
    So would you respond to that, or do you care to?
    Mr. Gerhardt. Sure. I have a number of responses.
    Mr. Canady. I am sorry. I see that my 10 minutes has 
expired, and I am going to--I am sorry, I am going to enforce 
the rule on myself as I intend to enforce it with respect to 
the other members, and I am sure there----
    Mr. Scott. Well, can he answer the question?
    Mr. Canady. If there is no objection, I will grant 
Professor Gerhardt 1 minute.
    Mr. Gerhardt. Thank you, Mr. Chairman.
    I think that to put that statement in context, I think the 
important--let's go back a step to sort of again look at the 
Claiborne case. There are a few different ways in which to 
understand what the House and the Senate did with respect to 
Judge Claiborne.
    Much of that case, I think, was heard on the fact that the 
judge was sitting in prison at the time his impeachment arose, 
and that obviously put pressure on this body, as it ultimately 
did on the Senate, to act.
    Mr. Canady. Professor, I saw that in your testimony as 
well. But in all candor, if he was guilty of the offense, 
whether he had been convicted previously or not, wouldn't the 
issue still be the same?
    Mr. Gerhardt. I would not disagree with that, Congressman. 
But I think--one of the ways in which I think people generally 
understand the Claiborne case is that the tax evasion 
conviction, or the commission of income tax fraud in that case, 
was thought by members of both this body and ultimately the 
Senate to reflect on his integrity, and that for a Federal 
judge there is no more single criterion or qualification than 
his or her integrity.
    Now, with respect to the present circumstance, I think that 
a lot depends on what we are going to term or call 
``integrity,'' and it seems to me that we had a very precise 
understanding of that in the context of Judge Claiborne's 
circumstance. In the present circumstance, integrity could be a 
pretty amorphous concept and, therefore, could become a 
dangerous basis on which to exercise the impeachment power.
    Mr. Canady. Thank you.
    The gentleman--the gentleman from New York, Mr. Nadler, is 
now recognized.
    Mr. Nadler. Thank you, Mr. Chairman. I yield myself 5 
minutes, and then I will yield the other 5 to someone else. Is 
that okay?
    Mr. Canady. Please proceed.
    Mr. Nadler. In other words, tell me when the 5 minutes is 
up.
    Mr. Canady. The light will come on.
    Mr. Nadler. Professor McDowell, you stated that--at one 
point in the Constitutional Convention the draft said, ``other 
high crimes and misdemeanors against the state'' which was 
changed to ``other high Crimes and Misdemeanors against the 
United States''; and then you say when the draft from the 
Committee on Style was laid before the Convention, all 
references to high crimes and misdemeanors against the United 
States was dropped in favor of what we have now, in other 
words, just high crimes and misdemeanors. Thus, as finally 
adopted, the standard of ``high Crimes and Misdemeanors'' seems 
to have a broader, less restricted meaning than merely ``crimes 
against the government,'' narrowly understood, because they 
dropped the phrase, ``against the United States.''
    Now, isn't it true, though, that the Committee on Style 
that produced the final draft of the Constitution which 
eliminated that phrase ``against the United States,'' had been 
directed by the Convention not to change the meaning of any 
provision, and that almost everybody has always understood that 
change to be simply a question of style and surplusage, that 
they felt that that was redundant?
    Mr. McDowell. One could certainly see it that way. In fact, 
one could see it in terms of federalism, that is to say, that 
the United States Constitution dealt with high crimes and 
misdemeanors against the United States, not against the States 
and, therefore, that would not be impeachable.
    Mr. Nadler. But isn't it true that the Committee on Style 
had been told not to make any change in the meaning of the 
document and, therefore, inferring the meaning of the 
Constitution, as we have it now from a change they made, is 
simply wrong?
    Mr. McDowell. I don't think so. I don't think it's simply 
wrong.
    Mr. Nadler. Okay. Thank you.
    Can you infer that perjury is an impeachable offense under 
almost any circumstances from the Claiborne case? Isn't it true 
that in all three cases of judges being impeached, you had a 
variety of corruption and bribery relating to the misuse of the 
public office and, in fact, in Judge Claiborne's case, the 
perjury was covering up his tax evasion conviction related to 
his failure to report bribes he had received? Wasn't this a 
case of perjury connected to covering up a crime against the 
state, namely bribery, and therefore, you cannot draw a broader 
conclusion from that case regarding impeachable conduct?
    Mr. Sunstein. That actually was the Alcee Hastings case 
which involved that. The Claiborne case was one of simple tax 
evasion.
    But I agree with the thrust of your question, which is that 
this ought not to be precedent for President Clinton's case. 
Note that no Federal judges at all were impeached between 
something like 1930 and something like 1980. Then there have 
been three cases in the relatively recent past. The most 
borderline of these was Judge Claiborne.
    If we treat these as one for impeachment of the President, 
then all our standards are out the window, the difference 
between judges and Presidents is collapsed, the difference 
between public misconduct relating to official duties, which 
you emphasize, and something not--that is collapsed, and the 
whole system is radically transformed.
    Mr. Nadler. Let me ask you one more question, Professor 
Sunstein.
    It has been suggested by the Chairman that if we go on to 
an evidentiary hearing, that Judge Starr perhaps could be the 
only witness and that we can take the testimony--we know the 
facts, because, after all, he testified to the grand jury under 
oath. Could you comment on such a procedure and on how that 
relates to our formal standards of fairness and due process?
    Mr. Sunstein. Well, I would make two points. The first is 
that it is peculiar certainly to have as the only witness 
someone who is effectively a prosecutor. That is a very 
peculiar procedure. The second and, I think, the more 
fundamental point is that we have no impeachable offense here, 
so to have one witness who is the prosecutor to----
    Mr. Nadler. No, no, excuse me. Assuming we did have 
impeachable offenses. I am talking about the evidentiary 
hearing and the fact that we are not having any cross-
examination of witnesses, for example.
    Mr. Canady. Mr. Nadler, your first 5 minutes have expired.
    Mr. Nadler. I yield myself 30 seconds.
    Mr. Canady. You are on your second 5 minutes now.
    Mr. Sunstein. The thrust of your question I agree with. It 
is a very peculiar, unusual proceeding. Never heard of anything 
like that.
    Mr. Nadler. Okay. Thank you.
    I now yield 2 minutes and 15 seconds to Ms. Jackson Lee, 
and 2 minutes and 15 seconds to Mr. Meehan.
    Mr. Canady. They are going to have to keep track of the 
time within the 5 minutes you have been yielded. We aren't set 
up to orchestrate that here.
    Mr. Nadler. All right.
    Mr. Meehan. Thank you. Before the time runs out, Mr. 
Chairman, thank you very much.
    Professor Parker, in arguing that so-called private wrongs 
may justify impeachment proceedings, you point to the example 
of former Vice President, Spiro Agnew, whose private wrong in 
your view was to solicit and accept kickbacks from local 
contractors while serving as the Governor of Maryland.
    Is it really fair, though, to characterize Spiro Agnew's 
solicitation of kickbacks as governor as conduct that arose 
from his private life. Isn't that, instead, core professional 
public misconduct, easily distinguishable from what President 
Clinton is alleged to have done in his civil deposition?
    Mr. Parker. It is public conduct, soliciting and taking 
bribes; so is obstruction of justice, lying under oath in 
Federal proceedings and so forth. I would point out that these 
acts in Maryland committed by Vice President Agnew were 
committed before he became Vice President; they had nothing to 
do with any kind of abuse or misuse of Federal power 
whatsoever. So if you believe----
    Mr. Meehan. State bribery as opposed to Federal bribery 
then?
    Mr. Parker. Right. There are some who argue that high 
crimes and misdemeanors should be limited to the misuse of the 
power of a Federal office. You ought to then ask how you would 
have come out in the Agnew case.
    Mr. Meehan. If the public knew of misconduct at the time 
that they voted that President into office, then you say it 
should have some bearing on the evaluation of his or her 
fitness for office through the impeachment process.
    What if the public didn't know of a President's misconduct 
on Election Day, but knew now and overwhelmingly opposed 
impeachment? Shouldn't that have the same or similar bearing on 
our willingness to impeach?
    Mr. Parker. I do believe it should be taken into account. 
Impeachment is part of the democratic process, not external to 
it, although I think that Members of Congress should not act in 
a partisan way, pro or con. I think that they should take into 
account both the good of the country and the desires and 
feelings of their constituents, certainly.
    Mr. Meehan. My time is up.
    Ms. Jackson Lee. Let me thank Mr. Nadler and thank the 
ranking member and say to Chairman Hyde and the chairman of 
this committee, with no disrespect, that this is an insult to 
my constituents and an insult to the process, that this is not 
a full Judiciary Committee hearing, and that we do not have the 
opportunity to fully address these witnesses.
    Very briefly, let me acknowledge I believe that Professor 
Parker signed an amicus curiae brief of law professors in 
support of Paula Jones and, likewise, Mr. McDowell considers 
Mr. Starr a very good friend of his, and Mr. Presser also 
signed an amicus curiae in support of Ms. Jones. So obviously I 
want to probe them on these issues, but because of the limited 
time, I can't ask questions about those issues.
    Professor Schlesinger, scientists have determined, through 
DNA testing that President Thomas Jefferson had a relationship 
with Sally Hemings, a slave and fathered children. This is post 
the time that he was in the presidency. Would his denials 
during that time now equate to grounds for impeachment if we 
had to assess his conduct in office at that time, and are we in 
any different times right now?
    Mr. Schlesinger. I think Jefferson was a man of his time. 
It is very difficult to assay, take out, pluck out one single 
strand in his life.
    Ms. Jackson Lee. You're right. But if Thomas Jefferson had 
said publicly somewhere, I have not had sexual relations with 
that woman. If he said that somewhere, do you think that on 
those grounds his conduct would be impeachable from what you 
have said in your testimony today?
    I don't want to point out President Jefferson, but from 
what you have said in your testimony today----
    Mr. Schlesinger. I think the important thing to keep in 
mind is what Representative Lindsey Graham is quoted as saying 
in the paper today, or yesterday, on one of the talk shows, the 
sense of proportionality. If a person commits perjury in order 
to send someone falsely to prison or to the electric chair, 
that is one thing. If a person commits perjury to conceal his 
love life, that seems to be quite another thing.
    I do not think these two acts of perjury can be equated, 
and everyone lies about their love life. I doubt whether there 
is anyone in this room who at one time or another hasn't told a 
lie about his or her love life. I think this is a venal sin as 
against a mortal sin.
    Mr. Canady. The gentleman's time has expired.
    Mr. Hyde.
    Chairman Hyde. Thank you very much, Mr. Chairman. I would 
like to set the record straight.
    Early in this meeting, my good friend from North Carolina, 
Mr. Watt--I don't see him here, he was here--oh, there he is.
    You were behind Mr. Nadler. When you're behind Mr. Nadler, 
it is difficult.
    Mr. Watt complained of a publication, a staff publication 
that they didn't have any input into it. In October of 1973, 
under the direction of Chairman Rodino, the Judiciary Committee 
released a committee print prepared under the supervision of 
its general counsel, Jerome Zeifman, entitled ``Impeachment: 
Selected Materials.'' This was prepared beginning in August of 
1973 with no consultation or input from the minority members or 
staff.
    A second committee print entitled ``Impeachment: Selected 
Materials on Procedure'' was produced similarly and released in 
January of 1974.
    On February 22nd, 1974, a third committee print was 
released. The impeachment inquiry staff produced a document 
entitled ``Constitutional Grounds for Presidential 
Impeachment'' at the request of Chairman Rodino. The input of 
his committee's minority members was not sought.
    Now, I requested my staff to update these documents so they 
could be made available to members of the committee and the 
American public, and that is this publication. Minority staff 
was given a copy of the report before it was printed, and an 
invitation was extended to submit for our consideration any 
additional reports or materials the minority staff would like 
us to use as a resource, and they came forth with nothing.
    So what we have done far exceeds what the Rodino committee 
did, and I don't think criticism is appropriate. However, I 
expect it.
    Now, I am going to pick on Professor Presser, because while 
he doesn't think I heard his testimony, I was watching very 
carefully inside.
    I want to tell you what bothers me about this whole light 
opera: the rule of law. We are all lawyers, or most of us are 
lawyers, and we have studied the law, we have made it our 
life's work. And the rule of law, it seems to me and perhaps in 
my unsophisticated way, protects your family and my family from 
that knock on the door at 3 a.m. It is important. It is 
critical. It defines our country, most of the countries 
throughout history; and anything that erodes, that taints, that 
corrodes, that diminishes the rule of law is something we ought 
to be mindful of and be very careful about.
    Now, we have one unique person in this country, the 
President of the United States, and he is unique not just 
because he is President, but he assumes--when he swears that he 
is going to defend and protect the Constitution, he assumes an 
obligation to take care that the laws--it doesn't say what 
laws--it says that the law be faithfully executed.
    He then goes into a litigation and he is asked some 
questions which are quite embarrassing. Now he has some 
options. He could say, I am not going to answer those 
questions; they are too personal, they offend my sense of 
propriety, they are too intrusive, and I am just not going to 
answer them.
    The other thing he can do is plead the Fifth Amendment--
very embarrassing, but it avoids committing a felony.
    The third option is to say, I swear to tell the truth, the 
whole truth--the whole truth--and nothing but the truth, and 
then lie.
    When that happens, this person wearing this mantle of 
``take care that the laws be faithfully executed,'' has 
performed a public act. Now, he is not charged with marital 
infidelity, he is not charged with adultery that I have seen, 
but he is charged with possibly committing perjury, possibly 
suborning perjury, possibly obstructing justice, putting gifts 
under--having them put under somebody's bed, all sorts of 
things going on, public acts that tend, in my unnuanced 
opinion, to erode this rule of law that he has a peculiar and 
unique responsibility to uphold. That is the problem I have.
    God, I would like to forget all of this. I mean, who needs 
it? We don't need it. We paid attention to the polls and the 
elections, but I am not letting that influence my intent or 
desire to proceed with what I think is our constitutional duty 
under the law and the Constitution. But I am frightened for the 
rule of law. I don't want that torn down or diminished or 
turned into a piece of plastic that can be molded.
    I really believe that notion that no man is above the law. 
That is naive of me, I suppose. There are some people who are 
above the law, but they shouldn't be. They shouldn't be. We 
should have a government of laws, not of men. And we are going 
in the other direction.
    All of the sophistries that I hear: rationales, 
justifications, everybody does it, it was just about sex. It is 
perjury. I swear to tell the truth. The whole system of justice 
depends on that, doesn't it?
    Mr. Presser. Yes, it does. I have nothing to add to what 
you said.
    Chairman Hyde. I didn't think you would. That's why I 
picked on you. I will yield any time I have left to Mr. Rogan.
    Mr. Rogan. Mr. Chairman, thank you. Just a quick question, 
I guess for Professor Schlesinger, only because he is the 
professor of whom I am most aware, having read many of his 
works.
    And it is a great pleasure to finally have a chance to meet 
you in person, Professor.
    One of my concerns throughout this entire process has been 
what this whole procedure could end up doing at the end of the 
day to the sexual harassment laws in this country. Looking at 
this whole thing in its proper context, we had somebody who was 
a defendant in a Federal civil rights action, who was ordered 
by a Federal judge as part of that action to answer questions 
under oath dealing with a sexual harassment claim. It isn't our 
job here to determine the merits or demerits of that claim. But 
when a judge orders a defendant to answer certain questions in 
a sexual harassment case that deals with questions as to 
whether there was a pattern of conduct between an employer and 
a subordinate female employee, if we then excuse perjured 
answers by saying, well, simply it is all about sex, everybody 
lies about this, doesn't that essentially destroy the sexual 
harassment laws in this country? And more importantly, doesn't 
it send a message to every woman in the country who may want to 
proceed with a sexual harassment case against an employer who 
is abusing her in the workplace by telling her, you'd better 
not even bother coming forward, because if you do, if the 
person lies under oath and commits perjury, in the unlikely 
event they are caught, it will simply be excused as having to 
do with only sex, and everybody lies about sex.
    Do you see that as a concern here?
    Mr. Schlesinger. I thank you for your kind words about me 
as a historian, and I hope I will not cause you to regret those 
words by my reply to your question.
    But I do think this is what Reed Powell of the Harvard Law 
School used to call ``a parade of horribles''; that is, things 
which may appear in logical sequence, but are very unlikely to 
appear in practical sequence.
    I do not think this will weaken the sexual harassment laws. 
I do not defend for a moment Mr. Clinton's deceptions in 
connection with the Paula Jones case. I call--I do want to call 
upon members of the committee to regard, to see this as a 
balancing of considerations. If you lower the bar to 
impeachment by making perjury in connection with one's sex life 
an element in impeachment, an impeachable offense, you are 
going to weaken the current status of the presidency; and since 
the Republicans, I imagine, still hope to regain the presidency 
one of these days, it is an interest on the part of the 
Republicans, as well as of the Democrats present, to maintain 
the status, the independence of the presidency, and that is 
what it seems to me is at issue here.
    Mr. Canady. The gentleman's time has expired.
    Chairman Hyde. Don't cut the Professor off.
    Mr. Schlesinger. I would only recall, it seems to me that 
the Reagan administration systematically violated the Boland 
amendments in the course of aid to the Contras in Nicaragua. I 
do not recall the majesty of the law being invoked by members 
of the majority in that instance.
    Chairman Hyde. If I may answer, Professor, I was on the 
Iran-Contra Committee and we went all summer turning over every 
rock we could. Nobody ever filed a bill of impeachment against 
the President.
    Ms. Waters. They should have.
    Chairman Hyde. Well, where were you?
    Ms. Waters. I wasn't here.
    Chairman Hyde. More's the pity.
    Mr. Canady. The gentleman from Michigan, Mr. Conyers, is 
recognized.
    Mr. Conyers. Mr. Chairman and ladies and gentlemen, this 
discussion has taken a very disturbing turn for me to hear the 
Chairman of this committee explaining why the perjury that may 
be involved with the President in the Paula Jones matter has to 
go to some impeachable circumstance, and I direct this to 
Professor Schlesinger and Professor Sunstein.
    It seems that when the day is done and we have had all of 
this valuable consultation with scholars and lawyers and 
professors and judges, the fact of the matter is that we are 
going to have to decide whether or not something in the Ken 
Starr narratives submitted to this body requires that we go 
forward with evidentiary hearings, and yet the only thing I 
hear about is perjury.
    Now, Gary Trudeau dismissed that a few weeks back, and now 
it is brought back with new force and new vigor, that anyone 
that would not disclose fully his private life under oath has 
now committed an impeachable offense.
    Now, this is a little--this is the biggest stretch that has 
ever occurred to me that could be happening here, and I would 
really like both of these witnesses to go over this again, 
because if this is impeachable conduct, we have now turned the 
precedents of impeachment on their head.
    Make no mistake about it. I am not saying that this 
committee can't do it if it chooses, but the question is, are 
we aware of it, to try to garble it up like this is the way we 
have always done it, and I invoke the need to defend the rule 
of law. It is my concern that the rule of law be honored. It is 
my concern that the 16 cases in 209 years have borne some 
similarity to what we are doing here today.
    I would like to yield to the witnesses, please.
    Mr. Schlesinger. Well, I sympathize very much with your 
point, obviously. I feel that if we were to establish as a 
basis for removing Presidents perjury, lying about your sex 
life is the last thing surely that the framers of the 
Constitution ever had in mind, nor do I think legitimate growth 
at the gathering of knowledge, which Frankfurter cited as 
advocating, I do not think that would include matters like 
this. We would become the laughing stock of the world and also 
the presidency would be diminished forever, and that would, as 
I suggest, apply to Republican Presidents as well as to 
Democratic Presidents.
    We must not lower the bar of impeachment, we must not make 
it easier for the House and the Senate to dominate the 
executive branch. That is really the choice we face when we are 
asked to accept offenses like these as impeachable offenses.
    Mr. Sunstein. Chairman Hyde gave a wonderfully eloquent 
presentation about the rule of law, and I would like to relate 
that to your question.
    The constitutional term is ``high Crimes and 
Misdemeanors,'' not ``violation of the rule of law.'' If the 
President did violate the rule of law--and that is a very 
serious offense, and it appears possible that he did--he is 
subject to criminal punishment after he leaves office; and what 
Chairman Hyde said, I endorse every word, and for lawyers and 
nonlawyers, there is nothing more important than that. But what 
you said, Representative Conyers, I think also holds true.
    There was an extremely interesting exchange between 
Representative Waters and Chairman Hyde about the Iran-Contra 
proceeding, which I think is worth underlining. Representative 
Hyde noted that his committee went very carefully over the 
allegations there and no one mentioned impeachment. And 
Representative Waters said, ``exactly.''
    Now, that is extremely illuminating. No one, thank 
goodness, no one called for impeachment of President Reagan or 
President Bush or Vice President Bush in connection with Iran-
Contra. That was very important for domestic and international 
stability.
    Chairman Hyde. Mr. Sunstein, may I just maybe correct the 
record? I am not sure of this, but Henry Gonzalez always filed 
lots of bills of impeachment, and there may well have been one 
pending against--I thought about that after I spoke.
    Mr. Conyers. Please, Mr. Chairman.
    Mr. Sunstein. What was wonderful about the Iran controversy 
is that impeachment was never seriously considered an option, 
even by President Reagan and President Bush when he became 
President. His strongest political opponents did not consider 
impeachment a problem.
    Now, a reasonable person could believe one is more serious 
than the other, the other is more serious than the one. I think 
Representative Conyers is correct that we should draw a line in 
the sand and stop this train before it runs away.
    Mr. Conyers. I thank you both for your contributions. It 
seems to me that if we miss this among the humor and 
lightheartedness, which is a little stunning here, we are 
talking about a prosecutor, an Office of Independent Counsel 
that is under its own investigation at several levels of 
government; and now we are bringing him in as the witness, and 
I mean, this is beyond contemplation in a real sense.
    And I am deeply troubled by the way that the discussion in 
this committee is cavalierly accepting the fact that a 
misstatement, or even perjury in a civil case dismissed, is now 
going to lead to an impeachment. Not prosecution, which 
everyone here knows could happen after the term if someone ever 
sought to do it. And I want the record to show my dismay with 
the tone of this discussion after it has been gone over dozens 
and dozens of times.
    There can't be a Member in this body that doesn't 
understand the decisions that they are making, and if you are 
making it as a new low and lowering the barrier, that is one 
thing. But if you are trying to complain that you are 
continuing the rule of law or that this is the way it has 
always been done, it is not going to wash.
    I recognize the gentlewoman from California, Ms. Lofgren.
    Ms. Lofgren. Thank you, Mr. Ranking Member.
    I don't have too much time left, but perhaps I can just, 
since I might get another minute to ask my full question, ask 
Professor Holden to comment.
    I saw that when Professor McGinnis was expounding on the 
conversations, I saw you visibly flinch at the discussion he 
was engaging in as to the Founding Fathers. I wondered if you 
might like the opportunity to expound on your flinch.
    Mr. Holden. Maybe I should learn to be still. 
Congresswoman, you have to refresh me on what the question was.
    Ms. Lofgren. Let me regroup. My time is up and I will ask 
my full question during my time. I should have done so, I 
think, to begin with.
    Mr. Canady. The gentleman from South Carolina, Mr. Inglis, 
is recognized.
    Mr. Inglis. Thank you, Mr. Chairman.
    Earlier, Ms. Jackson Lee seemed to cast doubt on the 
credibility of two of the witnesses before us for signing a 
friend of the court brief in support of Paula Jones' position. 
I understand on the next panel we will have two folks who 
signed the brief for the President in an amicus curiae 
situation. So I suppose that Laurence Tribe and Susan Low Bloch 
will be similarly discredited on the next panel by Ms. Jackson 
Lee. In other words, I don't think that anyone here should be 
discredited for signing such a friend of the court brief.
    Now, I note with some humor here the level of 
sophistication, shall we say, of everyone here, and the 
sophistication seems to get us into trouble. It seems to me 
that Professor Schlesinger has just suggested to all future 
occupants of the White House, if you are ever called to testify 
in a case involving sex, lie if you wish, because it doesn't 
matter, because according to Professor Schlesinger and the 
sophisticated, it just doesn't matter. Lie if you choose. In 
other words, we should publish in the Federal Register a list 
of permitted perjuries. One of them, apparently, for President 
is that if you are called to testify, lie.
    Professor Sunstein's wonderfully sophisticated solution to 
that is, get somebody to prosecute you afterwards; and as Mr. 
Conyers just said, if you can. If you can. Because of course, 
what we see here is--I suppose what Mr. Conyers is suggesting 
we do is completely abrogate our responsibilities under the 
Constitution.
    In other words, we are constituted here as the Committee on 
the Judiciary, but we are going to leave it to somebody else. 
See if maybe later some U.S. district attorney might like to 
take up a matter against the President of the United States, 
Mr. Clinton; and Professor Sunstein may come and assist in that 
case, possibly.
    But we on the committee, well, we turn the other way 
because, under Mr. Schlesinger's point of view, it is okay. Lie 
if you are the President; lie in a case involving sex, because 
after all, he says, gentlemen do that. Gentlemen, apparently--
well, you would just not be with it if you didn't lie about 
sex.
    So for all of those folks out there who question the rule 
of law dealing with sexual harassment, lie if you wish. If you 
are the big boss in some big company and you are called on to 
testify, lie as you wish. According to Mr. Schlesinger, you are 
a sophisticated gentleman then. And if you don't, you are some 
sort of an unsophisticate.
    So let me----
    Mr. Schlesinger. May I be allowed to comment on this?
    Mr. Inglis. In a moment. In a moment.
    Mr. Schlesinger. You keep repeating yourself.
    Mr. Inglis. I notice the same with your testimony as well. 
A great deal of sophistication, but very little common sense.
    Let me now suggest some common sense from somebody that I 
heard in South Carolina. A lady at the end of a jetway who said 
to me, if I did that, I'd go to jail. She's right. There are 
115 people in jail. And you know, I stood there and I said 
yeah, I think there are some people in jail. She said, 115 is 
the exact number.
    Now, we would assume that she wouldn't be so sophisticated 
as to know all that. But she understands that the rule of law 
that Chairman Hyde was talking about is crucial to this 
country, and that means that everyone is subject to the law--
not if they are sophisticated and the President, they get away 
with it, but rather, everyone is subject to the law.
    So, for example, let me pose a hypothetical. Let's say that 
somebody in South Carolina today is in a divorce matter. The 
issue is adultery, a private matter which apparently you are 
allowed to lie about if you are the White House. But in South 
Carolina the issue of adultery in a matter involving divorce is 
very significant, because if you are guilty of adultery, you 
get zip from the other spouse, zip. So, a great deal turns on 
it, doesn't it?
    So right now, in South Carolina, somebody is raising their 
hand to tell the truth and the issue is adultery. What shall we 
say to them from this rather august assembly, lie if you wish? 
Shall we say to them that the rule of law just doesn't matter 
in South Carolina, because they can lie in Washington?
    No, I think what we say here is, it does matter, and you 
must tell the truth even if it causes embarrassment, even if it 
causes you discomfort, you must tell the truth in that matter 
involving adultery in that divorce case today in South 
Carolina.
    I would ask Professor Presser if that is the matter of the 
rule of law we are talking about here. Does it--we get to the 
level of the divorce case in South Carolina, where the issue is 
adultery and the issue is whether the person sworn to testify 
today is going to tell the truth.
    Is that what we are talking about with the rule of law that 
I think you so eloquently testified about?
    Mr. Presser. Yes. I can only resubscribe to what Mr. Hyde 
said, and that is just, to use another metaphor, the law is a 
seamless web and once you begin eroding it, you begin to erode 
everything. You can't make distinctions and say, this part of 
the law we won't worry about. You have to worry about all of 
it.
    Mr. Inglis. Right. Well, I wonder if we had this situation 
where we are going to say that the President can be prosecuted 
later, which signal do we send in the meantime? I will be happy 
to entertain that possibility, and I hope if we decide to sort 
of just dissolve this thing, because it is too sophisticated 
for all the rest of us to understand about how in the world 
perjury in the case of the White House is okay but not in the 
case of the lady I saw in Charleston, South Carolina. So if we 
dissolve all of this, maybe there would be some future U.S. 
attorney that would prosecute Clinton for perjury once he 
leaves office.
    But how do you come back to it later if we have disposed of 
it here? I don't know if you have any thoughts about how 
realistic that is to have somebody prosecute President Clinton 
after he leaves office.
    Mr. Presser. Obviously it would depend on which party is in 
office and who wants to pardon whom before that happens.
    But even more important than that, the point you raise is 
absolutely fundamental. When you elect a President for 4 years, 
even when a President is elected for 8 years, you do not have 
an elect sovereign. You still have an ordinary mortal who is 
subject to the rule of law. And the message that you send is, 
it doesn't matter for the President; that is a wrong message to 
send.
    Mr. Inglis. I would be happy to yield now to my colleague 
from South Carolina, Mr. Graham.
    Mr. Graham. That is certainly a hard act to follow. I don't 
want to--I think the law, history and common sense can coexist, 
and my name was mentioned and the only thing I would like to 
correct is about proportionality.
    I have tried a few cases in South Carolina on adultery as a 
divorce lawyer. And people do lie, and you would have to build 
a lot of jails if you put everybody in jail who lied in a 
divorce case; and that is reality. It doesn't mean that it is 
right or wrong, that is just the way things are.
    Sometimes people are tempted to shade the truth when it 
affects them in a very personal manner, and I can understand 
that.
    I want to say something to Mr. Conyers. Deposition perjury 
in this case, I have tried to apply the test of what I think 
would happen to a common person, and I am not saying that the 
President of the United States should be treated as a common 
person, because I think he has a much higher obligation; but if 
you use the common person standard, I think you will find 
pretty quickly where the sex part of this thing falls out.
    Let me tell you if I am a prosecutor and you bring in a 
case where a guy in a sexual harassment suit lied in a 
deposition and the deposition was dismissed and the case was 
dismissed, that with all of the things that I have got going on 
in my office, the rapes and the murders and all of the other 
stuff, I doubt, folks, if I am going to spend a lot of time 
trying to put that guy in jail even though he may deserve it, 
because a sexual harassment case is a very sensitive area. That 
is just the way things are with the common man.
    However, Professor Schlesinger--I have a lot of respect for 
you; I think we just disagree on this point--if you brought 
somebody into my office as a Federal prosecutor who found 
themselves in a Federal grand jury and were asked a relevant 
question about a relevant matter, whether it pertains to sex or 
not, and they lied, they would be going to jail if I had 
anything to do with it because that is a crime against the 
state.
    Let me tell you why I probably won't vote for deposition 
perjury articles of impeachment. The President was in a 
situation where he was asked about a relationship that he 
probably wanted to keep private. Even though it is wrong, I can 
understand the human need to do that. He was blindsided, and he 
lied through his teeth. He tap-danced on a needle, and he made 
a fool of himself; and he tried to make a fool of the American 
people, but he got caught. And there is some punishment in 
that, I think, for the President to come.
    However, I really do believe criminality may not have been 
as much present there because of the surprise factor. We all 
might see ourselves doing that. But let me tell you, if you 
find yourselves in a situation 6 or 7 months later when you are 
called before the grand jury and everybody in the country tells 
you, if you just come clean with the American people, we are 
ready to forgive you. If 6 or 7 months later you go into a 
situation and raise your hand and lie again when everybody in 
the country is begging you, don't do it, if you do do it, you 
may be jeopardizing your presidency, and you do lie there, I 
think you are a good candidate for an article of impeachment.
    Mr. Canady. The gentleman's time has long ago expired.
    Mr. Schlesinger. May I comment on Representative Inglis' 
highly sophisticated misrepresentations of my position.
    Far from advocating lying, I think lying is reprehensible. 
If you would bother to listen to my remarks or read my 
testimony, I say President Clinton's attempts to hide personal 
behavior are certainly disgraceful, but if they are deemed 
impeachable, then we reject a standard laid down by the framers 
of the Constitution. That seems to be the nub of the case.
    I conclude my testimony by saying one must hope that any 
President guilty of personal misconduct falling below the level 
of impeachable offenses can castigate himself and feel such 
shame in the eyes of his family and in the eyes of his friends 
and supporters and in the eyes of history that he will punish 
himself for his own self-indulgence, callousness and stupidity.
    I really protest your interpretation of my position.
    Mr. Canady. The gentlelady from California, Ms. Waters, is 
recognized.
    Ms. Waters. Thank you very much. I would like to get a few 
things on the record before I ask Mr. Sunstein to respond to 
some of my comments.
    First of all, Professor Schlesinger, your very honorable 
reputation precedes you, and it is only someone with no sense 
who would accuse you of not having common sense, and I would 
like the record to reflect that.
    Secondly, I would like the record to reflect that Mr. 
Rodino in a recent press release finds no evidence to impeach, 
in case someone misunderstood the opening statement that was 
shown on the screen about what Mr. Rodino was thinking.
    Thirdly, I want to place on the record something that I 
think is extremely important for all of us. There has been 
considerable discussion about the President being held to a 
higher standard. I want it to be absolutely clear that I expect 
as much from myself in terms of how I conduct myself as I 
expect of the President or anybody else. I don't know of 
anybody that I hold to any higher standard than me, and for 
those who sit here and talk about the President should be held 
to a higher standard, dismiss their own responsibility, and so 
I want that to be on the record.
    Now, I found that Mr. Sunstein's discussion about lying and 
that which could have been impeachable not being impeachable or 
no one attempting to impeach under certain circumstances very 
compelling and engaging. The Iran-Contra affair was mentioned 
here, and it strikes me--it strikes at the very core of work 
that I am involved in because of the long-standing fallout of 
drugs and the CIA issue that I have been working on for the 
past 2 years.
    And basically what the CIA has concluded, that they knew of 
drug traffickers, that they had been identified, that certainly 
some of this activity had gone on, but they have a memorandum 
of understanding from the Justice Department and that 
administration that they didn't have to report drug trafficking 
because somehow it may reveal some of the covert activities 
that our Intelligence Community was involved in, and that may 
not be in the best interests of the country.
    I want to tell you when I compare the devastation of the 
drugs that have been dumped on America's streets and the lives 
that have been lost, the families destroyed, this business of 
lying about a private sexual affair, whatever you want to call 
it, pales in comparison to that.
    However, Mr. Sunstein, regarding that discussion here, and 
if we recall when the President, President Reagan was asked 
about whether or not he was involved in the sale of arms to 
Iran, he lied and he said no.
    Now, you started this discussion here. Would you take us a 
little bit further into, number one, the evidence of lying by 
President Reagan on that matter?
    And, secondly, how it certainly could have been possible 
for someone to bring up impeachment even though--and you and I 
disagree on that; I think it should have been, you think it 
should not have been. But I think the case can be made, as you 
attempted to make it here, that it certainly could have been 
based on what appeared to be the seriousness of some of the 
discoveries that were made at that time.
    Mr. Sunstein. There have been two extended and relatively 
successful Independent Counsel investigations. One is Judge 
Starr's and the other is Judge Walsh's. Judge Walsh produced 
seven guilty pleas and four convictions, including convictions 
of high-level executive branch officials. And I don't have any 
accusations to render against President Reagan or President 
Bush, but you know a lot more about this than I do. But people 
of good faith do believe that they were deceitful with the 
American public, one or the other, with respect to matters of 
high importance.
    What I do know something about is the Lend-Lease Act, which 
was passed to allow the President to build and sell arms and 
ammunition to other countries. President Roosevelt violated the 
Neutrality Act for 2 months in such a way so as to trouble his 
own Secretary of State because of the, quote, ``the illegality 
and deception.'' That is President Roosevelt.
    President Lincoln suspended the writ of habeas corpus, and 
it was unlawful, it was subsequently held by a court.
    What I would like to see happen is for there to be some 
sort of mutual understanding among Democrats and Republicans 
that impeachment is very heavy artillery, and while reasonable 
people could think that the Iran-Contra situation is much more 
troublesome than this one, and some people here reasonably 
think perjury is uniquely awful and worse than that 
misinterpretation of law in the interest of patriotism, which 
is what many people think President Reagan was basically about, 
shouldn't there be a kind of mutual arms control agreement that 
we will stick to our tradition with respect to impeachment, a 
tradition which has resulted in one impeachment of a President 
in the entirety of American history. So I think the country and 
the Democrats' forbearance on Iran-Contra argues very 
powerfully for forbearance on this one, too.
    Ms. Waters. Thank you. I yield the balance of my time to 
Ms. Lofgren.
    Ms. Lofgren. Thank you. I have a question for Professor 
Schlesinger.
    As we have listened carefully here to the entire panel, 
obviously there are differences of viewpoint not only among the 
members of the committee, but also the witnesses. And as we 
have read the statements, and many of us have gone on the 
Internet and read articles that all of you have published that 
further inform us as to your viewpoints, I am wondering how to 
reconcile some of the comments.
    For example, Professor Presser has an article that I read 
in which he talks about the need to get back to what the 
framers believed, the drafters of the Constitution. He 
suggested that there be seven members of the Supreme Court, 
rather than the current nine, going back to the number that 
there originally was. He also criticized the application of the 
Bill of Rights to State governments as ``legal alchemy.''
    Looking at your testimony, I note that on page 6 you quote 
with favor John Jay and suggest that the basis for impeachment 
could be doubts that we might have about the honesty, virtue or 
honor of the President. I am wondering, Professor Schlesinger, 
as a Nobel Prize winner and someone who is renowned in the 
world as a historian, how in your mind the John Jay reference 
can be reconciled with the colloquy between Mason and Madison 
in the notes of the Constitutional Convention that the standard 
needs to be a great and dangerous offense or an event to 
subvert the Constitution.
    Do you have a comment?
    Mr. Schlesinger. I think I have, but would you read the 
John Jay quote again?
    Ms. Lofgren. Basically that, with doubts about honesty, 
virtue, and honor of the President, impeachment would be 
available as a remedy.
    Mr. Schlesinger. Well, I think that obviously there is an 
argument about the intentions of the framers of the 
Constitution. It seems to me that the weight of evidence is 
very strongly on the thought that these represent a grave 
danger to the state; but I would add that one thing which I 
think all people of all of the Constitutional Convention had in 
mind was the fear of the politicization of the impeachment 
process, what Alexander Hamilton called ``the demon of 
faction'' and the need, therefore, if you are going to have 
legitimacy in the process of having bipartisan support for 
impeachment.
    One great difference between the Andrew Johnson impeachment 
and the Nixon impeachment was that the weight of evidence was 
such in the Nixon case that members of his own party agreed 
that removal was necessary. In the case of Andrew Johnson, it 
was a purely partisan effort and it failed. I think the test of 
legitimacy depends on the ability of the evidence to command 
the support of a wide portion of the electorate.
    Ms. Lofgren. I see that my time has expired. I would like 
to say that I am disappointed that this is a subcommittee 
hearing rather than a full committee hearing in which all of us 
could participate, and Mrs. Waters asked me to give further 
time to Mr. Delahunt. It is very disappointing that we should 
have these 19 witnesses jammed into this small amount of time. 
I flew across the country to participate.
    Mr. Canady. The gentlelady's time has expired.
    We will now go to the gentleman from Tennessee, Mr. Bryant.
    Mr. Bryant. Thank you, Mr. Chairman. I intend to ask two 
questions and yield the last half of my time to my colleague 
from Texas, Mr. Smith.
    Let me first ask Professor McGinnis and Professor Parker on 
the second question: I have heard discussion today about--
concern among this panel about lowering the standard for 
impeachment. I think that is an important concern. I think 
another important concern for the American public is lowering 
the standards of conduct for the President; and to what extent 
are we prepared to lessen what we expect out of a President of 
the United States while in office? And I know this is a very 
distinguished panel, we have several coming after this.
    As an attorney, I can say that we have chosen law as our 
profession. We all love the law and we have made a livelihood 
out of it. Most of you folks teach our future lawyers, and 
hearing some of the testimony from you today, it concerns me. 
But I think where I am conflicted is in one of the statements, 
not on this panel, but it says--after ascribing some of the 
things that might be an impeachable offense, the statement 
says, but that is a far cry from what occurs if a President 
personally violates several related Federal criminal laws in 
the course of trying to cover up an embarrassing sexual affair 
without doing some other things which he thinks might connect 
it. But I think he is saying that a President of the United 
States commits several Federal crimes, and that is not 
impeachable, that concerns me; and that is why I have a 
conflict with this idea of the rule of law and that this 
President is the chief law enforcement officer.
    When I was a U.S. attorney, he could have fired me or told 
me what to do through the Attorney General. That concerns me. 
Professor McGinnis.
    Mr. McGinnis. I think you are right. I believe the standard 
for impeachment goes to fitness for office, and that includes 
whether the President can actually carry out day-to-day 
operations, but the symbolic effect for future Presidents and 
future generations of having a President who has committed, if 
these facts are true, a whole series of lies and perhaps 
obstructions of justice, that does, I think, lower the bar of 
standards of integrity that we demand of a President in a 
public trust that really we all--our futures as citizens really 
repose in, and that concerns me a lot.
    I think it is a mistake not to consider the symbolic 
importance of the President as the chief magistrate who has to 
take care that the laws are faithfully executed. I think that 
is clearly what one should consider part of fitness for office.
    Mr. Bryant. Including several Federal crimes regardless of 
what they are?
    Mr. McGinnis. I think that is right. I think it is hard to 
understand how we would want someone convicted of perjury or 
obstruction of justice as President, to be elected as 
President. I don't think we want him as President.
    Mr. Bryant. Even about sex?
    Mr. McGinnis. I think that is a mistake about this case. It 
happens to be about sex, but the conduct I think speaks of a 
state of mind to actually obstruct the rights of another 
citizen.
    Surely it is about sex, and the framers couldn't have 
imagined any sexual harassment laws, that is absolutely true, 
but their commitment was to the rule of law, not any particular 
law. The subject matter happens to be sex here.
    What if the issue were an employment discrimination case 
that the President had--was sued for some employment 
discrimination before he was in office, and while he was in 
office he denied some racial remarks, he denied that he made 
some racial remarks, and that was perjurious? I think that 
would be a basis for removing a President, and setting a 
standard for private conduct would mean that we couldn't reach 
such a President.
    Mr. Bryant. Thank you for your answer.
    Professor Parker, we talked about bribery, and that is 
mentioned in the Constitution, treason or bribery, and we all 
know the public policy, why we don't want public officials 
being bribed; but in the context of bribing a witness, not 
taking money to build a bridge, but in bribing a witness, that 
is also bribery as defined in the Constitution. The public 
policy there is that we don't want witnesses lying. We want the 
truth to come out through a witness. That's why we don't want 
people bribing a witness; is that correct?
    Mr. Parker. Yes.
    Mr. Bryant. What is the difference between that public 
policy of not wanting witnesses to lie and tampering with 
witnesses or hiding evidence or suborning perjury? Is that not 
also the same thing that we want to protect against?
    Mr. Parker. I personally do not see the difference. I think 
that is right. Charles Black in his book on impeachment written 
during the Watergate period said giving bribes, no less than 
taking bribes, is impeachable, no question about it.
    Mr. Bryant. So if we are talking about equating other 
crimes to treason and perjury which are specifically mentioned, 
it might be said that other high crimes and misdemeanors should 
also include tampering with witnesses, suborning perjury, 
obstructing evidence, hiding evidence and those kinds of 
things?
    Mr. Parker. Yes, by comparison with giving bribes of the 
sort that you mentioned, certainly.
    Mr. Bryant. Thank you, Professor Parker. And I yield the 
balance of my time to Mr. Smith.
    Mr. Smith. Mr. Presser, my question will go to you.
    I think it is appropriate today that we hear from the legal 
experts such as yourself, but there is one expert who is not 
here today, in fact she passed away several years ago, who has 
made a number of insightful observations on the issue at hand, 
which is upon the definition of impeachable crimes. She was 
also a member of this same Judiciary Committee back in 1974 
during the Nixon proceedings. What I would like to do is read a 
statement that she made and ask you if you agree with it, and 
if you think that it is applicable today as well.
    Barbara Jordan is who I am referring to, and she said this 
before this committee:
    ``The South Carolina ratification convention impeachment 
criteria. Those are impeachable who behave amiss or betray 
their public trust. Beginning shortly after the Watergate 
break-in and continuing to the present time, the President 
engaged in a series of public statements and actions designed 
to thwart the lawful investigation by government prosecutors. 
Moreover, the President has made public announcements and 
assertions bearing on the Watergate case which the evidence 
will show he knew to be false. These assertions, false 
assertions, impeachable, those who misbehave, those who 
misbehave or betray their public trust.
    James Madison, again at the Constitutional Convention, a 
President is impeachable if he attempts to subvert the 
Constitution. The Constitution charges the President with the 
task of taking care that the laws be faithfully executed, and 
yet the President has counseled his aides to commit perjury.'' 
That is the end of her quote and statement.
    Would you say that her statement is accurate and is it 
accurate today as well?
    Mr. Presser. Yes, it is, and I can't think of anything that 
she has said that I would disagree with.
    Mr. Smith. Thank you.
    Professor McGinnis, I like certain members who are here 
today, who have already commented on this, have a number of 
constituents who often remind me, as one did in fact on the 
plane on my way back to Washington on Saturday, if any business 
executive, if any military officer, any professional educator, 
any member in authority had committed some of the acts that 
President Clinton may have, their career would be over.
    So, to me, the relevant question is this: Should the 
President be held to a lower standard than these individuals?
    Mr. McGinnis. The President--certainly insofar as the 
conduct is against the law, the President has to be held to the 
same standard. I think many executives might have gotten into 
trouble certainly for the actions the President took with an 
intern. The question is, should we simply impeach the President 
for that? I don't believe that is the case; I don't think that 
is the kind of objective misconduct that would really rise to 
that. But on the other hand, I certainly do not think that it 
is an excuse. It is not an excuse.
    Mr. Smith. I am talking about the subsequent conduct as 
well.
    Mr. McGinnis. Right. This conduct, which was itself 
disgraceful, is then used as an excuse for violating the law, 
and that seems to me rather mystifying.
    Mr. Smith. Professor McDowell, I think it would be 
interesting today, Professor, to know whether you would agree 
with Bill Clinton's definition of high crimes and misdemeanors, 
and this was a definition that he gave when he was a law 
professor.
    ``I think that 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 that I think constitutes an impeachable offense 
would be willful, reckless behavior in office.''
    Do you think that definition holds today as well?
    Mr. McDowell. I think many of us agree with that.
    Mr. Smith. Thank you, Professor.
    Thank you, Mr. Chairman.
    Mr. Canady. Thank you.
    The gentleman from North Carolina, Mr. Watt, is now 
recognized.
    Mr. Watt. Thank you, Mr. Chairman.
    I want to express my thanks to Chairman Hyde for coming 
back into the room because I want to clarify the record a 
little before I go off.
    Nothing we do is outside the context of history, and this 
is not the first time Chairman Hyde and I have had this 
discussion where I ask him not to do things simply because 
somebody else had done something in the past that was wrong. I 
have reminded him many times of the statement that my mother 
always made that ``two wrongs don't make a right,'' and I keep 
hoping that we will rise to the level of statesmanship here 
rather than lowering to the standard that somebody who did 
something that was not justified in the past did.
    Having said that, I want to adopt the statement that my 
good friend from South Carolina made about telling the truth. 
He says that we shape the truth when it affects us directly. We 
do shape the truth when it affects us directly, and I am not 
going to call for the chairman's impeachment on this, but I 
would like to ask unanimous consent, Mr. Chairman, of the 
subcommittee, to insert into the record, page 2 of the majority 
report, which is the certification, the foreword signed by our 
chairman, Mr. Hyde, dated November 4, 1998; a letter from the 
chief of staff, Mr. Mooney, to Julian Epstein, conveying the 
draft of the majority report dated November 4, 1998; a letter 
from the chief minority investigative counsel to Mr. Mooney 
dated November 6, 1998. That was after the staff report had 
been issued to the public, I would say to you.
    It was mailed to us on the 5th after being conveyed to our 
staff on the 4th, and then a follow-up letter dated November 9, 
1998, from Mr. Conyers to Mr. Hyde, so that the record will 
reflect the exact sequence and opportunity that the minority 
counsel had to have any input into this staff report that was 
issued by the majority.
    I ask unanimous consent that these documents become a part 
of the record, Mr. Chairman.
    Mr. Canady. Without objection.
    [The information follows:]
                     Congress of the United States,
                                  House of Representatives,
                                  Washington, DC, November 4, 1998.
Julian Epstein,
Minority Chief Counsel and Staff Director,
House Committee on the Judiciary,
Washington, DC.
    Dear Julian: Pursuant to our talk, enclosed is a draft copy of an 
update of the 1974 Staff Report on the constitutional grounds for 
impeachment. We hope to distribute copies to all Members for use as a 
resource as we proceed with the inquiry.
    If you would like to put together any information or research for 
distribution to Members, I would be happy to bring it to the Chairman.
            Sincerely,
                                     Thomas E. Mooney, Sr.,
                                Chief of Staff and General Counsel,
                                  House Committee on the Judiciary.
                                 ______
                                 
                     Congress of the United States,
                                  House of Representatives,
                                  Washington, DC, November 6, 1998.
Thomas E. Mooney, Sr.,
Chief of Staff-General Counsel,

David P. Schippers, Esq.,
Chief Majority Investigative Counsel,
Committee on the Judiciary,
U.S. House of Representatives,
Washington, DC.
    Dear Tom and David: On Thursday, November 5, I was given a copy of 
staff memorandum prepared by the Majority addressing the 1974 Watergate 
Staff Report on Standards for Impeachment. The memorandum was covered 
with a letter from Tom to Julian which stated that it was a ``draft 
copy'' and that it was to be distributed ``to all Members for use as a 
resource as we proceed with the inquiry.'' The letter went on to invite 
us to ``put together any information or research for distribution to 
Members.'' The staff memorandum had no listing of staff or any 
indication that it was about to become final or be published before we 
had a chance to submit our conterpart.
    With that invitation, we began to immediately write a response to 
the Majority Staff memorandum, with which we take issue. The very next 
day, Friday, November 5, 1998, I received a printed Committee Report 
entitled ``Constitutional Grounds for Presidential Impeachment: Modern 
Precedents.'' I also saw the same ``Report By The Staff'' published on 
the Committee's web page.
    I was very surprised that this memorandum had been published 
without our having had a chance to submit our information. More 
importantly, I was shocked that my name and the names of the Minority 
Staff were listed on the Majority memorandum indicating that we had 
participated or approved of the report. As you know, neither is true. I 
did not even see a draft until the day before it was printed in final. 
I was never asked to comment, edit, or revise the memorandum. We were 
in the process of writing our rebuttal when the Report was finalized.
    It violates all protocol, courtesy, and precedent for the Majority 
to write a memorandum on its own, send it as if it is a draft, prepare 
it as a final report for publication at the same time, and then include 
the names of the Minority as if it participated in that project. I do 
not understand how this could have happened, but I am obliged to 
protest these events and ask for correction. On behalf of the Minority 
Staff, I am asking that publication and listing of the Report on the 
Internet cease, that the Report be corrected to rename it as a Majority 
Report and to remove the names of the Minority Staff, that the Minority 
Report be included as part of the Committee's official publication 
(with the names of the Minority Staff listed there), and that this 
letter be distributed to the Committee.
    It is simply unfair for the Majority to have produced this document 
as if it was work in which the Minority participated and concurred.
            Sincerely,
                                         Abbe David Lowell,
                              Chief Minority Investigative Counsel.
                                 ______
                                 
                     Congress of the United States,
                                  House of Representatives,
                                  Washington, DC, November 9, 1998.
Abbe David Lowell,
Chief Minority Investigative Counsel,
Committee on the Judiciary,
Washington, DC.
    Dear Abbe: This will respond to the letter dated November 6th which 
you delivered to Tom Mooney this morning.
    In October 1973, under the direction of Chairman Peter W. Rodino, 
Jr., the Judiciary Committee released a committee print prepared under 
the supervision of its General Counsel, Jerome Zeifman, entitled 
``Impeachment--Selected Materials.'' This was prepared beginning in 
August of 1973 with no consultation or input from the Minority Members 
or staff. A second committee print entitled ``Impeachment--Selected 
Materials on Procedure'' was produced in a similar fashion and released 
in January of 1974.
    On February 22, 1974, a third committee print was released. The 
impeachment inquiry staff produced a document entitled ``Constitutional 
Grounds for Presidential Impeachment'' at the request of Chairman 
Rodino. The input of his Committee's Minority Members was not sought. 
We also note that the names of the Majority and Minority staffs were 
listed in those publications.
    Chairman Hyde, as did Chairman Rodino, requested that the staff 
update these documents and that they be made available to both the 
Members and the American public. Minority staff was given a copy of the 
staff report before it was printed and an invitation was extended to 
submit for consideration by the Chairman for printing any additional 
reports or materials the minority staff would like the Members to be 
able to use as a resource. This exceeds the Rodino precedent. If you 
wish that the names of the Minority Staff be deleted in the future 
publications, please advise.
            Sincerely,
                                          Thomas E. Mooney,
                                    Chief of Staff-General Counsel.

                                        David P. Schippers,
                                       Chief Investigative Counsel.
                                 ______
                                 
                     Congress of the United States,
                                  House of Representatives,
                                  Washington, DC, November 9, 1998.
Hon. Henry J. Hyde, Chairman,
Committee on the Judiciary,
Washington, DC.
    Dear Mr. Chairman: I am writing to express my dismay over the 
publication of the Committee Print entitled Constitutional Grounds For 
Presidential Impeachment: Modern Precedents, November 1998.
    My concerns over this report are several fold. First, the minority 
was neither consulted on the plan to publish the report, nor consulted 
on the substance of the report. Nevertheless, the report indicates on 
its front page that it is a ``Report Prepared by the Staff of the 
Impeachment Inquiry,'' and thereby may give the unfortunate and 
misleading impression that it was prepared with bipartisan support. 
Obviously, this is not the case, and the minority strongly disagrees 
with the conclusions in that report, and believes that it makes marked 
departures from the 1974 report. I believe the report should, more 
properly, indicate on its cover that it is a report prepared by the 
Republican staff. I anticipate that you may respond to this concern by 
citing the 1974 precedent. However, I regard such precedent as 
unhelpful for two reasons. Unlike 1974, the Committee has not engaged 
in a meaningful bipartisan process on standards. In addition, the 
Committee has ignored the 1974 precedent on a number of issues, 
including its decision to release raw grand jury materials to the 
public.
    Second, when this report was circulated to us on Wednesday, and 
when we learned that it would be published without any minority input 
or consultation, we requested an opportunity to prepare our own report 
and to have it published simultaneously. This request was not met. 
Therefore, I would, at a minimum, like to now request that the minority 
report be published as a Committee print.
    Third, while it was my hope that such a process of debating the 
proper constitutional standard could have been done in a bipartisan 
manner, it was certainly my expectation that such a process would have 
occurred after the Committee's hearing today. We certainly hoped that 
the this hearing would have been viewed as serious enough so as to be 
influential in whatever product the Committee would produce on 
impeachment standards.
    Thank you for your attention to this.
            Sincerely,
                                              John Conyers,
                                           Ranking Minority Member.
                                 ______
                                 
                     Congress of the United States,
                                  House of Representatives,
                                 Washington, DC, November 11, 1998.
Thomas E. Mooney, Sr.,
Chief of Staff and General Counsel,

David P. Schippers, Esq.,
Chief Majority Investigative Counsel,
Committee on the Judiciary,
U.S. House of Representatives,
Washington, DC.
    Dear Tom and David: I appreciate your prompt response to my 
November 6 letter on the issue of the staff report. I have only a few 
points I would like you to consider.
    First, The Washington Times November 11, 1998 edition already cites 
to the conclusions of that report as if it was more than an ``update'' 
to its Watergate counterpart and as if it was joined by all the staff. 
This underscores my concern about its significance and our lack of 
involvement.
    Second, I was surprised that you were willing to justify the acts 
taken solely with reference to how the same thing happened to the 
Republicans in 1973 and 1974. Each of us has gone back and forth to 
cite some part of the Watergate proceedings when we can find one to 
support our positions. I understand that device. However, as Tom has 
explained, the Republicans who were in the Minority during the 
Watergate era sometimes complained that a certain procedure or decision 
was unfair or should be changed. Now that the Republicans are in the 
Majority, I would have thought that they in particular would correct 
what they thought at the time was wrong. To simply adopt a process that 
you condemned at the time because you are now in the Majority seems to 
be retribution or revenge, not the best government we can provide. Why 
cannot we both agree that where the Watergate precedents are fair and 
appropriate, they should be used, and when they are unfair, they should 
be improved? Otherwise, if the Congress is ever again to have to face 
this difficult procedure, we will have only made it impossible for 
things to ever change because one side or the other will only seek to 
get even for the wrongs that occurred in the past.
    With this in mind, I would like to take you up on your offer. When 
the Minority has not been given the chance to comment on or revise a 
staff memorandum or report, or at least submit its own dissenting 
views, we would prefer that you not include our names. This would make 
it clear for today and in the future that we were not involved and that 
we do not concur.
    I appreciate the time and attention you have given me on this 
topic.
            Sincerely,
                                         Abbe David Lowell,
                              Chief Minority Investigative Counsel.
                                 ______
                                 
                     Congress of the United States,
                                  House of Representatives,
                                 Washington, DC, November 12, 1998.
Abbe David Lowell,
Chief Minority Investigative Counsel,
Committee on the Judiciary,
Washington, DC.
    Dear Abbe: We are in receipt of your letter of November 11th and 
appreciate your prompt response and clarification.
    As you are aware, we have no control over the The Washington Times' 
interpretation of our material, or for that matter, control over any 
other newspaper. Having followed these newspaper accounts rather 
closely over the last six to eight months, I find them less than 
factual. As a matter of fact, their accounts of what this Committee is 
about has been subject to a great deal of ``spin'' produced by the 
professional spinmeisters.
    Please be advised, that in accordance with your request, that 
whenever the ``Minority has not been given the chance to comment on or 
revise a staff memorandum or report . . .'' no Minority staff names 
will be listed in that Committee document.
    Thank you for your cooperation.
            Sincerely,
                                          Thomas E. Mooney,
                                    Chief of Staff-General Counsel.

                                        David P. Schippers,
                                       Chief Investigative Counsel.
                                 ______
                                 
                                         Jerome M. Zeifman,
                                Sandy Hook, CT., November 14, 1998.
Hon. Henry Hyde, Chairman,
Committee on the Judiciary Committee,
U.S. House of Representatives,
Washington, DC.
    Dear Mr. Chairman: I would like to comment on your recently 
published Committee Print and on your statement regarding prior 
Committee Prints prepared under my supervision as the Committee's then-
General Counsel and published in October 1973 and January 1974. Both 
were concerned with the historical meaning of the term ``High Crimes 
and Misdemeanors'' and with prior impeachment procedures.
    I have reviewed the recent Committee Print and the extent to which 
it brings up to date the 1973 and 1974 Committee Prints prepared by me. 
I concur fully with your staff's analysis regarding both the history of 
impeachable offenses prior to 1974 as well as the more recent history. 
I also consider your staff's analysis as reflecting the highest 
standards of professional integrity.
    As you will recall, in 1996 you and I had a two-hour interview by 
Milton Rosenberg in Chicago concerning my then recently published book 
``Without Honor: The Impeachment of President Nixon and the Crimes of 
Camelot''--which was based largely on a personal diary that I kept at 
the time of Watergate. At the time of our broadcast we also had a 
private conversation in which I expressed to you the extraordinarily 
high regard that I have for the personal integrity and professionalism 
of your present Chief of Staff and General Counsel, Tom Mooney, with 
whom I had worked closely during the Rodino Committee's impeachment 
proceedings.
    This letter will also confirm the accuracy of your recent statement 
that I first began the preparation of these volumes in August 1973 
under the direction of then-Chairman Peter Rodino--and that the 
Minority Staff was given no opportunity to participate in the 
preparation of these official publications of the full Committee. In 
addition, the exclusion of the Minority Staff from participation in the 
project was pursuant to Chairman Rodino's personal orders to me not to 
disclose the project to either the other Democratic or Republican 
members of the Committee prior to publication.
    Mr. Chairman, let me also add that during my entire 17 year tenure 
as a congressional counsel (when the Congress was then controlled only 
by Democrats) such a practice was frequently followed by Judiciary 
Committee Chairman Emanuel Celler and continued under Chairman Rodino.
    In 1973 and 1974 under the restrictions of confidentiality imposed 
on me by Chairman Rodino, I felt strongly that my personal professional 
integrity--and responsibilities to all of the Members of the Committee 
and to the public--would be directly reflected in the historical 
accuracy and fairness of the volumes that we eventually published as 
official Committee Prints. In short, I had a personal responsibility to 
be as non-partisan and objective as humanly possible. In that regard, I 
was particularly pleased to include in the first volume a Law Review 
article by Paul Fenton, who had previously served on the Republican 
Minority Staff at the time the Committee (under the then-Chairmanship 
of Emanuel Celler) considered the impeachment charges against Justice 
William O. Douglas brought by then-Minority Leader Gerald Ford.
    It is a gratification to me that, to my knowledge, when the volumes 
were published in 1973 and 1974 no member of the Congress, whether 
Republican or Democrat, or any academic scholar challenged the 
historical accuracy or fairness of the two volumes. On the contrary, 
many of the Republican members of the Judiciary Committee, including 
President Nixon's most stalwart defenders, found the volumes to be 
useful tools in understanding the true history of the impeachment 
process.
    It is now also gratifying to me that you have called the attention 
of the Committee, the House of Representatives and the public to the 
two Committee Prints that were prepared by me under Mr. Rodino's 
chairmanship. I also note that you have given the Democratic Minority 
staff an opportunity to submit for consideration in subsequent official 
publications any suggested revisions or additions to the 1973 and 1974 
Committees Prints. In that regard, let me commend you and your staff 
for exceeding the standards of fairness of the Rodino Committee and 
other Democratic controlled committees in the past.
    That the present Judiciary Committee Democrats and their recent 
witnesses from academia have to date not questioned the accuracy or 
professional integrity of the two volumes prepared under my supervision 
is also noteworthy. However, as a life-long Democrat, I am now somewhat 
dismayed by the positions being taken by the present Committee 
Democrats and their staff. In my view, the White House and its 
Democratic defenders are promulgating disinformation regarding the true 
history of the Nixon impeachment proceedings. In that regard, I note 
with particular sadness that the press is now quoting members of the 
Democratic staff as stating ``We felt that [the Hyde Committee Print] 
is a forgery [emphasis added]. (In that regard I am attaching hereto a 
recent article in the Washington Times.) \1\ At the time I served as 
the Committee's General Counsel, had any Democratic staff member made 
the kind of scurrilous statements as are now being continuously made by 
the present minority staff, I would have insisted that they be fired.
---------------------------------------------------------------------------
    \1\ Retained in the Committee files.
---------------------------------------------------------------------------
    Because of the importance of the present impeachment crisis, I now 
feel a personal responsibility to make public my own professional 
opinions regarding comparisons between the impeachable offenses of 
President Nixon and Clinton. As you know, my views differ from those of 
the present White House and its congressional defenders. In that 
regard, on October 6, I published an op-ed article in the Wall Street 
Journal. I have more recently published 3 articles in Insight magazine. 
I am sending copies of these articles herewith as additional 
attachments to this letter to you of today.\1\
    Please regard this as an open letter and feel free to make it and 
the attachments available to the Congress and the public.
    Although I remain a classical liberal Democrat, it is comforting to 
me that, with you as the present Chairman and Tom Mooney as General 
counsel, the traditionally high constitutional, legal, and ethical 
standards of the Judiciary Committee are still alive and well in your 
offices
            Sincerely,
                                                 Jerome M. Zeifman.
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    Mr. Watt. Thank you. Now, I have various requests from my 
other colleagues here for time, so I am going to yield 2 
minutes--3 minutes to Mr. Delahunt, first, if I could--3 
minutes, and I will try to keep time on you.
    Mr. Delahunt. I thank the gentleman for yielding. I wanted 
to change the discussion here somewhat, and I ask this question 
so that members of the next panel would also consider it.
    I want to talk about the issue of censure and alternate 
sanctions. I think it was Professor McDowell who indicated that 
President Jackson rejected the censure out of hand. Was that 
you, Professor?
    Mr. McDowell. It was.
    Mr. Delahunt. The reality, however, is that there is a 
precedent where the Senate, I understand, did in fact back in 
1834 censure a President, so we do have a precedent. I think 
your reference was that it is the cowardly way out. I guess the 
Members back in 1834, according to your definition, could be 
described as cowardly.
    I think it is also important to note that Professor Black, 
Charles Black, who is considered the preeminent authority on 
impeachment, devotes an entire chapter to alternatives entitled 
``Short of Impeachment.'' I think it is important to read 
language from that chapter where he says it might be well to 
consider whether a more finely graded system of controls might 
be developed.
    And I also bring to the attention of this panel and to the 
subsequent panel that the House resolution authorizing this 
committee to proceed is clear and unequivocal that it is the 
responsibility and the mandate of this particular committee to 
consider alternate sanctions, and I am going to read that 
language because I think it is very important to stress here.
    ``The committee shall report to the House of 
Representatives such resolutions, articles of impeachment, or 
other recommendations as it deems proper.''
    I think that language is, at least according to my reading, 
and maybe I am not all that sophisticated, but it is rather 
clear to me that that is part of our responsibility, too.
    I would like to go to another area which I would like to 
have Professor Gerhardt respond to, since you have some 
credibility as the shared witness, so I would be interested in 
your response to this.
    Earlier I think it was the chairman and I think it was my 
colleague from Georgia, Mr. Barr, who recited what appeared to 
be facts, and I might be wrong, but clearly there has been no 
fact-finding process conducted by this House and this Congress. 
I have this uneasy concern that there has been some discussion, 
in the media, that we will be on November 19th considering a 
single witness, the Independent Counsel, Mr. Starr, his 
testimony.
    Clearly we know what his version of the facts is. Do we 
have, in your opinion--and I note that many of you, I think it 
was Professor Presser and Professor Holden and Professor 
Sunstein mentioned or prefaced their comments by saying if 
these facts be true, if these facts be true--do you, Professor 
Gerhardt, suggest or would you agree that we have an 
independent responsibility to meet our constitutional 
obligation to determine what the facts are?
    Mr. Gerhardt. A brief answer, Representative Delahunt, is I 
think one thing that does characterize the current proceeding 
is that there have not been any facts yet found, certainly 
formally. The referral was a product of a nonadversarial 
proceeding. Right now it is appropriate for this committee to 
consider the history of impeachment and what might be the 
appropriate standard, but at some point, it makes sense to 
consider what the facts are. That obviously was the great 
focus, the primary focus of the Watergate hearings, taking over 
a year.
    If I may, Mr. Chairman, I want to make one comment about 
the censure, just a clarification and also picking up on Mr. 
Delahunt's point.
    I think censure has a textual pedigree that one should not 
ignore. The textual support is found in the fact that there are 
resolutions that this body, as well as the Senate, each may 
pass, the Constitution says nothing about what the content of a 
resolution should be, and each body passes resolutions all the 
time.
    Secondly, there have been seven censures, two censures of 
Presidents, one of President Jackson, and it was pointed out 
that was expunged, but this House also censured President Polk 
in the midst of a resolution praising the winning general of 
the Mexican War, Zachary Taylor; and in the late 19th century 
there were five censures of Federal judges.
    So while those are all in the 19th century, that pedigree 
should at least be acknowledged for the record.
    Mr. Canady. The gentleman's time has expired.
    The gentleman from Tennessee, Mr. Jenkins.
    Mr. Jenkins. Thank you, Mr. Chairman. I have a question for 
Professor Schlesinger and one for Professor McGinnis.
    Professor Schlesinger, let me say that I want this to be 
more pleasant than the last exchange. I, like Mr. Rogan, am 
very proud to have an opportunity with such a noted historian 
and American.
    You have characterized these deeds in this case as low 
crimes and misdemeanors, and you have testified that if there 
was perjury in this case, or lying under oath, that it was not 
an impeachable offense. You have not testified, I do not 
believe, as others have suggested, that if there was perjury in 
this case, that it still is an indictable offense that could be 
pursued subsequently; is that correct?
    Mr. Schlesinger. That is correct.
    Mr. Jenkins. My real question is, are you not creating--
with saying this about perjury, are you not creating categories 
of perjury that do not in fact exist under our law?
    Mr. Schlesinger. I am creating categories of perjury. As I 
have said, I think, earlier, perjury that results in sending a 
man falsely to prison or to the electric chair does not seem to 
be in the same category as perjury about one's love life.
    I would suggest that Representative Graham's appeal to 
proportionality would be useful as a way of considering these 
matters.
    Mr. Jenkins. Let me ask Professor McGinnis. Professor 
McGinnis, you elevated perjury to the level of bribery, perjury 
not being mentioned in the Constitution, bribery being 
mentioned in the Constitution, and you identified both as an 
indictable offense; is that correct?
    Mr. McGinnis. Yes.
    Mr. Jenkins. Do you believe that that would be true of any 
act of perjury?
    Mr. McGinnis. Well, I think that any act of perjury would 
be an impeachable offense, and the reason for that is, I 
believe, like bribery, it is an attack on a coordinated branch 
of government if the President acts and undermines the rule of 
law and, therefore, deprives citizens of rights. That does not 
mean that I think every act of perjury is equal. I think this 
House has discretion to decide whether or not to go ahead with 
impeachment on the basis of how serious it is, but I think it 
is legally an impeachable offense.
    Mr. Jenkins. So you would disagree with your distinguished 
neighbor for the day?
    Mr. McGinnis. Yes, I would, with great trepidation.
    Mr. Jenkins. Mr. Chairman, I would like to yield 1 minute 
to the gentleman from Ohio, Mr. Chabot.
    Mr. Chabot. I have a question for Professor McDowell.
    In your testimony you referred to the importance of taking 
an oath and of perjury, and referred to British and American 
common law. When one takes a sworn oath to tell the truth, the 
whole truth and nothing but the truth, it is obviously supposed 
to mean something; and to lie under oath obviously would have 
grave consequences.
    Would you elaborate on how perjury is not merely private 
behavior, but it is public behavior, and how perjury affects 
our society and our Nation?
    Mr. McDowell. What I tried to get out in my written 
statement is going back, time immemorial, oaths and perjury 
under oaths were considered very serious offenses. Blackstone 
understands and points out that in the first instance the 
punishment was death. It was later commuted to heavy prison 
sentences, and in his time, it had been reduced to fines, and 
failure to pay the fines resulted in your ears nailed to the 
pillory. These were serious offenses.
    The idea that there are degrees of perjury, that it simply 
matters less if it is a subject matter that we can all 
understand that everybody would be inclined to lie about, 
history on the question of perjury does not make for 
distinctions of degree. It always was rooted in the sanctity of 
the oath. The oath is what is given first to promote a fear of 
divine vengeance if you should lie, later joined to common law 
punishments of criminal sanction in order to make sure that the 
person who swears an oath in a court of law to tell the truth, 
the whole truth and nothing but the truth will do so. And 
failure to do so is considered to be a very serious offense 
against the public in the sense, as someone else pointed out, 
it is the institutions and the functions of the judicial branch 
that this affects.
    Mr. Chabot. Thank you, Professor, and I yield back to the 
gentleman from Tennessee.
    Mr. Jenkins. I will yield to the gentleman from Indiana.
    Mr. Buyer. Mr. Presser, I have some questions for you, and 
I will tell you I am trying to develop all of this in my mind. 
I am trying to differentiate what would occur in a legal 
proceeding that would be held at levels of contempt before a 
particular judge in a case versus that matter which would bring 
such contempt upon the third branch of government. And I am 
trying to differentiate between those two.
    So what we have here is perhaps matters that would happen 
within a particular case before a Federal judge, could that be 
restrained or narrowed to contempt in that particular court? Or 
would those actions, because it comes from a defendant who 
happens also to be the President, having taken an oath to 
faithfully execute the laws of the land and be in charge of the 
U.S. attorneys who practice in those courts, do we then elevate 
that now to subversion of the third branch of government?
    Mr. Presser. I think it is mainly one of those instances 
where there is a difference between an ordinary litigant and 
the President.
    I think, as a number of the witnesses have indicated today, 
when you are looking at this particular matter, when you are 
considering the charges filed by Judge Starr, when you are 
considering the reformulation by your chief investigator, you 
have to ask, is there a whole pattern here; not, is there a 
single instance of contempt of one judge which might well be 
dealt with by a more modest process, but have you seen 
something that rises to the constitutional level, either 
because of the person involved or the long pattern of conduct 
over many months? So I think there is difference.
    Mr. Buyer. We have been confusing here today. Sometimes we 
mix law with our policies, and this policy of saying that no 
person is above the law, yet we would expect that of the 
presidency to set the higher standard, yet he should be equal 
under the law. So sometimes we mix law with our policy. But we 
have some problems. You have made this comment about possibly 
other cases and their implications: He is also the commander in 
chief. So whether, in fact, he sends his judiciary out to 
prosecute these cases in a criminal or civil matter, or if he 
accepts the resignation of an ambassador as he did last year 
for sexual misconduct, or if he says that a particular general 
can't serve as the next chairman of the Joint Chiefs of Staff 
for having done similar things, not even close to similar 
things, therein lies part of our problem.
    So you are saying, because it is the President, then we 
could have problems elsewhere?
    Mr. Presser. That is right. I have to refer you again to 
what Professor Parker said, that fundamentally it is a matter 
of trust, and if the actions indicate that that trust isn't 
there, then you move forward.
    Mr. Buyer. I thank the gentleman for yielding.
    Mr. Canady. I now recognize the gentleman from Virginia, 
Mr. Goodlatte.
    Mr. Goodlatte. Thank you, Mr. Chairman.
    I would like to narrow the scope of what we have been 
looking at here; we have been all over the map on things, one 
of which is whether this committee would be applying a 
different standard to this President if it acted on these 
particular charges.
    I am not aware of any previous President, including 
President Reagan, ever having been accused of lying under oath 
in a Federal court or in a civil deposition or before a grand 
jury, and I would ask the entire panel to name for me all of 
the past Presidents of the United States who have either lied 
in a Federal court proceeding or before a grand jury. Can 
anybody identify such?
    Mr. Sunstein. You can only name one President who illegally 
suspended the writ of habeas corpus, Lincoln. We can only name 
one President who illegally transferred, it is said, arms to 
the Contras; that is Reagan.
    Mr. Goodlatte. But those are not charges of having lied 
under oath before a grand jury.
    Mr. Sunstein. I know. The problem with this line of 
argument is that everyone in the room who is a lawyer knows 
that every case is sui generis. If you want to draw the 
distinction by saying this case is unique, you can do that.
    Mr. Goodlatte. But what I would point out to you is that 
your comparison of this matter to the Iran-Contra matter is 
totally off the wall because it has absolutely no comparison in 
terms of supporting the rule of law in our judicial system.
    My next point is----
    Mr. Sunstein. May I respond to the ``off the wall''? That 
is a tough charge.
    Mr. Goodlatte. Let me just say that I am concerned about 
the contention on the part of some, including Father Drinan----
    Father Drinan. May I speak to that?
    Mr. Goodlatte. Let me get to this point and then you can 
mix them together.
    The idea that this only applies to the reprehensible 
exercise of official authority, which you cited Justice Story 
for--Justice Story was also quoted as saying: ``not just that 
crimes of a strictly legal character fall within the scope of 
the power, but that it has a more enlarged operation and 
reaches what are aptly termed political offenses growing out of 
personal misconduct.''
    Do you agree that there is personal misconduct that could 
be an impeachable offense?
    Father Drinan. Let me respond to your first question.
    No President has been charged, because we didn't have the 
Independent Prosecutor until this committee, shortly after 
Watergate, enacted it. I voted for it, and I think I made a 
mistake. It has twice ran out, and it is up for renewal next 
year. We were so afraid that more Archie Coxes would be fired 
that we put through the Special Prosecutor which was, namely, 
the Independent Counsel. That has been incorporated 10 or 15 
times, and I am prepared to state that the people who voted for 
it in this very room probably now regret it because it 
transferred the power, the unique and sole power of this body 
of the House to impeach people to an outside investigator.
    This House has never had a prosecutor who has recommended--
--
    Mr. Goodlatte. Let me interrupt you, because I have limited 
time, and say, I agree with you on that point. This statute 
came up for renewal since I have been in this House. We 
suggested very drastic amendments to the Independent Counsel 
statute, and because those were rejected by the then Democratic 
majority, I and many members of the House voted against that 
reauthorization of the Independent Counsel statute.
    I would also point out that another allegation regarding 
the President would have come about whether or not that were 
the case because of the President's testimony in the civil 
suit, which our judicial system----
    Father Drinan. It would never have been followed up by this 
body if the Independent Counsel didn't follow it through with 
techniques that are quite questionable.
    Mr. Goodlatte. Now, if you would answer the second point, 
because I am concerned about this idea that no personal conduct 
on the part of a President would be impeachable.
    Father Drinan. I think somebody in the Congress would raise 
all of these issues, but it undoubtedly would not rise to the 
level of where this charge is now.
    Mr. Goodlatte. If we are talking about murder or rape, 
certainly you would not argue that a President who committed 
those, not in his official capacity, but against a personal 
friend, that would be----
    Father Drinan. I think farfetched hypotheticals just 
confuse the issue. I am not going to take bait with your 
hypothetical.
    Mr. Goodlatte. Let me ask Professor Parker what you think 
about that.
    Mr. Parker. I think everyone would agree that murder and 
rape would be impeachable. I am sure Father Drinan actually 
agrees, as well. I would come back to my initial distinction as 
to what is impeachable and whether to impeach.
    The second question would depend on all of the kinds of 
circumstances, I would hope not with murder or rape, but 
circumstances become important with respect to the second 
question. On the first, we can be much more categorical; and I 
think it would be a tragedy if this committee watered down the 
standard of impeachability, bringing forbearance in at the 
second stage if that is what you want to do.
    Mr. Goodlatte. Thank you. Now, let's narrow this to this 
issue of the question of the allegations of the President with 
regard to perjury.
    Professor Schlesinger indicated if it were perjury that 
caused somebody to go to the electric chair, that is one thing. 
If it is perjury about one's personal love life, that is 
something else. But what about something in between? What if it 
is perjury to obstruct justice in a civil proceeding such as is 
alleged in this particular case, Professor McGinnis?
    Mr. McGinnis. Well, I absolutely think that is an 
impeachable offense. I think it really is at the core of what 
the framers are concerned about using, obstructing the 
legitimate exercise of governmental power--in this case, the 
coordinate judicial branch--for one's own private gain.
    One has to remember that this is not just a question of the 
President's, as I think it has been put, sex life, but someone 
else's rights under the law; and the President stood to lose 
real money here, and so this is very much a case of using and 
abusing another governmental agency for private gain in the 
most basic sense. He stood to lose money.
    Mr. Goodlatte. Now moving forward 7 months, the other 
allegation of perjury by the President involves his testimony 
before a grand jury. That clearly would not have been related 
to his attempt to conceal his personal relationship, because 
moments after he conducted that grand jury testimony, he then 
went before the American people and acknowledged wrongdoing of 
that nature, so clearly in that instance we are not talking 
about simply a matter of his personal behavior, but something 
related to, I would suspect if the allegations are established, 
an effort to avoid prosecution, whether as President or after 
he is President, for crimes that he has now been alleged to 
have committed.
    Mr. Presser. Your interpretation is exactly correct. There 
is nothing I would add to that. I would agree with that.
    Mr. Goodlatte. The last point in that regard, it seems to 
me, is the issue of whether or not we can draw that kind of 
distinction when we are talking about upholding the rule of law 
in this country.
    Can we make a decision that the President of the United 
States, as Professor Sunstein has pointed out, may not be 
subject to prosecution while he is President? Is the President 
of the United States above the law while he is President of the 
United States, subject to prosecution perhaps later on, but due 
a different treatment than other people while he is President 
of the United States?
    And, Professor, I will give you the first shot at that.
    Mr. Sunstein. Thanks. I hope that you won't find this off 
the wall, but the Constitution that you are describing is not a 
constitution that I recognize. It doesn't make the President 
impeachable for crimes. It makes the President impeachable for 
high crimes and misdemeanors, and there is a very deliberate 
choice to have that phrase rather than the word ``crimes.'' If 
you look at other provisions of the Constitution, they use the 
word ``crimes.'' So this effort to identify the rules of law, 
which are extremely serious----
    Mr. Goodlatte. But you are not answering my question of 
whether or not, based on your interpretation of the 
Constitution, the President is above the law during the time 
that he is in office. He is not subject to prosecution 
according to your testimony?
    Mr. Sunstein. After he leaves office.
    Mr. Goodlatte. He has a 4-year term. Let's take a 
hypothetical President who is found to have committed a serious 
offense, perhaps an impeachable offense, but a serious crime 
nonetheless, during that first few months in office. Is he then 
immune from the people taking any action to remove him from 
office for 4 years?
    Mr. Sunstein. If you commit criminal libel during a speech 
on the floor of the House of Representatives, you have immunity 
under the Constitution. Are you not above the law? The speech-
and-debate clause gives Members of the House of Representatives 
an immunity while in office for speeches on the floor. The 
President probably has immunity from criminal prosecution while 
in office. That is an unsettled question.
    I mean to agree with you, not to disagree with you, and to 
say that the President is not above the law. He is subject to 
criminal indictment and prosecution, and a very interesting 
statement from Representative Graham, he is subject to those 
things after he leaves office.
    Mr. Goodlatte. But he is above the law for the 4 years he 
is in office because he cannot be prosecuted, nor by your 
definition can he be removed from office?
    Mr. Sunstein. He may well have immunity, the same kind of 
immunity that you have, but less.
    Mr. Canady. The gentleman's time has expired.
    I now recognize the gentleman from Virginia, Mr. Scott.
    Mr. Scott. Thank you, Mr. Chairman.
    I want to follow up on that because our discussion is 
suggesting that if we do not impeach, therefore we have 
overlooked criminal activity. As I read the Constitution, we 
are restrained in our power to forcibly remove a President in 
situations that would constitute, treason, bribery or other 
high crimes and misdemeanors.
    Does anyone on the panel think that treason, bribery or 
other high crimes and misdemeanors necessarily covers all 
felonies? If so, raise your hand. Any felony would therefore, 
by virtue of the fact that it is felony, would be treason, 
other high crimes and misdemeanors. The record should reflect 
that no one thinks that.
    The next question therefore is, if the title of the offense 
isn't the question, we have a situation where we want to know 
what the measure is that makes a crime a high crime, and we 
look at most of the precedents and find that it has to involve 
your official duties. The one exception is the Claiborne case, 
who was in jail for income tax evasion.
    And, Mr. Gerhardt, can you explain why a Federal judge in 
jail can't perform the job and ought to be impeached?
    Mr. Gerhardt. I should hope that he is not able to perform 
his job, Representative Scott. Clearly, in Judge Claiborne's 
case, the problem was that subsequent to his conviction and his 
appeals, he was imprisoned, and only then did the impeachment 
inquiry begin.
    I am not suggesting that the impeachment inquiry would not 
have occurred otherwise, but clearly his imprisonment put extra 
pressure on this body as it did on the Senate to ultimately 
remove him from office. In those circumstances, the 
conventional way to understand Judge Claiborne's situation is 
that his conviction reflected on the fact that he lacked the 
essential criterion to be a Federal judge, and that is he 
lacked integrity.
    The critical thing to keep in mind is, a Federal judge is 
going to oversee prosecutions all the time for something like 
tax evasion, and it is very difficult to maintain the respect 
and credibility you need to have as a judge if you are, in 
fact, under the same kind of conviction as the people whose 
cases you are hearing.
    Mr. Scott. Thank you.
    Professor Sunstein, we talked about the title of the 
offense and what makes a felony, or other crime or misdemeanor 
in the ``high Crime and Misdemeanor'' sense, what makes it an 
impeachable offense, the effect that it has on the state; and 
the measure has been suggested that we should determine whether 
or not the President is fit or can be trusted.
    What is wrong with that as a standard?
    Mr. Sunstein. That would make a President impeachable 
whenever a majority of the House of Representatives thought 
that he was not fit and could not be trusted, and that is 
exactly what the framers were trying to avoid in framing the 
impeachment clause that they wrote.
    Father Drinan. We had that problem with Spiro Agnew and for 
2 weeks the House Judiciary Committee agonized over whether the 
Spiro Agnew could be indicted as Vice President or whether we 
would have to impeach him. For better or for worse, Elliot 
Richardson got a plea bargain from him and he resigned his 
office, he was disbarred in Maryland, and he went away.
    Some of those questions that you have raised are wonderful 
hypotheticals, but they are unresolved. We have not had that 
problem for 200 years.
    Mr. Scott. Thank you. I would yield 2 minutes to the 
gentleman from New Jersey, Mr. Rothman.
    Mr. Rothman. Thank you, Mr. Scott.
    First, let me say I hope we do not have to create a new 
impeachment standard for a Democratic President, and if there 
ever is another Republican President, create a new impeachment 
standard for a Republican President.
    Many of us, including myself, have not yet decided whether 
the charges raised by Mr. Starr are true. We have already 
condemned the President's misconduct in office as morally 
wrongful conduct and believe that there should be some 
punishment for just lying to the public, aside from the 
unresolved questions of perjury, obstruction of justice, and 
abuse of power.
    On the question of rule of law, I would remind my 
colleagues that the rule of law applies to this committee and 
to the Congress. It is called the constitutional law, and the 
constitutional law provides us with a standard for impeachment: 
treason, bribery or other high crimes and misdemeanors. It is 
up to us to obey the rule of the constitutional law.
    There are those who suggest that we should expand and 
create some new constitutional definition which deals with such 
subjects as general unfitness for the office, a lack of virtue, 
conduct that is offensive, and a lack of trustworthiness, but 
that is not what is in the Constitution.
    I suggest that it is a threat to our separation of powers 
which has kept our country strong and fit for 200 years, and a 
threat to our Constitution and to our Nation to now decide we 
want to, without consulting the people or having an official 
amendment to the Constitution, change the definition of what an 
impeachable offense is beyond treason, bribery or other high 
crimes and misdemeanors.
    And let me repeat, I have not yet made a judgment about 
whether Mr. Starr's charges are true. We have not even had a 
hearing yet. We have not had the examination or cross-
examination of witnesses, but I would say we should not create 
new standards for impeachment. Let us divine whether this 
President should be impeached under the standards that have 
kept our country strong for over 200 years.
    Mr. Scott. I would yield 2 minutes to the gentleman from 
Wisconsin, Mr. Barrett.
    Mr. Barrett. Professor McGinnis, you indicated that the 
Senate has several options. It can remove the President from 
office, or remove the President from office and bar him from 
further types of service to the government.
    In your mind, are those the only options available to the 
Senate, if the House impeaches?
    Mr. McGinnis. Yes.
    Mr. Barrett. So that this House, if it decides it wants to 
impeach and sort of let the Senate fix it, as some have 
suggested----
    Mr. McGinnis. I didn't suggest that.
    Mr. Barrett. I know, I didn't say you have. I think others 
have indicated if there is some sort of agreement to be worked 
out, it could be worked out in the Senate. My question to you 
is whether you think there are any constitutional underpinnings 
for that to occur.
    Mr. McGinnis. No.
    Mr. Barrett. Do you think that every impeachable offense 
requires impeachment in the House?
    Mr. McGinnis. No. I read the Constitution to say that 
everyone must be removed if they are impeached. I don't think 
the Constitution says you impeach every person. I associate 
myself with Professor Parker in that sense. It is a two-step 
process.
    Mr. Barrett. So if there is, if I can use the phrase, 
prosecutorial discretion, the appropriate body for that to 
occur would be in the House of Representatives?
    Mr. McGinnis. It would be an appropriate body. I think the 
Senate could also simply decide not to convict.
    Mr. Barrett. Certainly. But in that case, if we have a 
situation here where maybe the American people feel the 
President should be censured, if this body were to impeach, the 
Senate would not be able to drop those charges. Maybe they 
could censure, sort of sua sponte, since there is nothing----
    Mr. McGinnis. The Senate could ultimately decide not to 
convict the President, obviously.
    Mr. Barrett. Obviously. Professor McDowell, would you agree 
with that analysis, the entire analysis? Which body has the 
discretion, the House or the Senate?
    Mr. McDowell. I think there is a discretion here, 
certainly, that you have to weigh the evidence. Somebody said 
earlier that this House does not sit as a grand jury and this 
is not like an indictment. I think it is closer to that than 
that comment would suggest. You have to weigh the evidence and 
decide whether these are impeachable offenses, not based on 
partisan calculations but based on historical understanding, 
rooted in the common law, rooted in our experience. But when it 
comes down to it, you have to make a judgment as to whether 
that constitutes an impeachable offense or not, and if it does 
constitute an impeachable offense, do you have the political 
will to take it forward and vote articles of impeachment?
    Mr. Barrett. And very quickly, do you believe that every 
impeachable offense requires impeachment by the House?
    Mr. McDowell. No, I don't.
    Mr. Scott. I yield the balance of my time to the 
gentlewoman from Texas, Ms. Jackson Lee.
    Ms. Jackson Lee. I thank the ranking member very much for 
his kindness. Let me just note that Professor Charles Black 
stated in Impeachment: a Handbook, that impeachment should be 
invoked only against serious assaults on the integrity of the 
processes of government, and such crimes that would so stain a 
President as to make his continuance in office dangerous to the 
public order.
    I have two questions, one for Professor Holden, whose 
theory I was most gratified to hear, because he responded to 
the public concern--I think we should be speaking to the public 
today--and another question for Professor Sunstein.
    Professor Holden, you compared impeachment to a caged lion; 
that it is of such a magnitude, such an impact on the public 
order, that we should be cautious in how we treat its 
implementation. Can you respond to that?
    Professor Sunstein, my question is, how high an order is 
impeachment? How dangerous would its utilization be in terms of 
the attack on the very sovereignty of the Nation? As we 
proceed, should we be cautious, should we accept indictments as 
finality, or should we deliberate cautiously about this?
    Professor Holden, your caged lion, if you would.
    Mr. Holden. My answer is very brief and very direct. We are 
starting down a path of using impeachment as an additional 
device. You are doing it with judges, we are in the second time 
of doing it with Presidents. And once that gets to be common 
practice, everybody will want to use it for every device they 
wish.
    I saw the red light before. I said that the Secretary of 
Health and Human Services had better shudder in the future, 
because all of the people who are opposed to partial birth 
late-term abortions or other such highly sensitive matters 
where they have deep convictions will be going after the 
Secretaries who get in the way.
    The next target on the agenda will be Attorneys General. 
All Attorneys General should be fearful. And there are some 
members on the committee who should be fearful, though I do not 
know who they are, because somebody in the next 15 or 20 years 
will be either a presidential potentiality or a Cabinet 
officer, which is a civil officer, and somebody will be after 
them, and this is a pressure device, not a final solution.
    No, it is absolutely awful. Frankly, they made a mistake, 
they should never have put it in. The British from whom they 
copied it stopped using it in 1806, and they didn't know it. It 
should not be done anymore unless it is overriding, and there 
is nothing here overriding.
    Ms. Jackson Lee. Professor Sunstein, if you would?
    Mr. Canady. The gentlewoman's time has expired some time 
ago.
    Ms. Jackson Lee. Will the Chairman allow Professor Sunstein 
to briefly finish the answer? Excuse my voice.
    Mr. Sunstein. The danger is there would be retaliation on 
both sides and it would be like an arms race. That is the 
danger. That is very dangerous.
    Mr. Canady. The gentleman from Georgia, Mr. Barr, is now 
recognized.
    Mr. Barr. Thank you, Mr. Chairman. I would like the Clerk, 
I have two documents to distribute, and I ask unanimous consent 
to have them inserted in the record. They will be given both to 
the witnesses and the members. One is simply Article I 
regarding the impeachment of Richard Milhouse Nixon. The other 
is simply a draft document regarding impeachment of Mr. 
Clinton. I would like to use them for questioning of the 
witnesses.
    [The information follows:]
                               article i
    In his conduct of the office of President of the United States, 
Richard M. Nixon, in violation of his constitutional oath faithfully to 
execute the office of President of the United States and, to the best 
of his ability, preserve, protect, and defend the Constitution of the 
United States, and in violation of his constitutional duty to take care 
that the laws be faithfully executed, has prevented, obstructed, and 
impeded the administration of justice, in that:
    On June 17, 1972, and prior thereto, agents of the Committee for 
the Re-election of the President committed unlawful entry of the 
headquarters of the Democratic national Committee in Washington, 
District of Columbia, for the purpose of securing political 
intelligence. Subsequent thereto, Richard M. Nixon, using the powers of 
his high office, engaged personally and through his subordinates and 
agents, in a course of conduct or plan designed to delay, impede, and 
obstruct the investigation of such unlawful entry; to cover up, conceal 
and protect those responsible; and to conceal the existence and scope 
of other unlawful covert activities. The means used to implement this 
course of conduct or plan included one or more of the following:
    (1) making or causing to be made false or misleading statements to 
lawfully authorized investigative officers and employees of the United 
States;
    (2) withholding relevant and material evidence or information from 
lawfully authorized investigative officers and employees of the United 
States;
    (3) approving, condoning, acquiescing in, and counseling witnesses 
with respect to the giving of false or misleading statements to 
lawfully authorized investigative officers and employees of the United 
States and false or misleading testimony in duly instituted judicial 
and congressional proceedings;
    (4) interfering or endeavoring to interfere with the conduct of 
investigations by the Department of Justice of the United States, the 
Federal Bureau of Investigation, the Office of Watergate Special 
Prosecution force, and Congressional Committees;
    (5) approving, condoning, and acquiescing in the surreptitious 
payment of substantial sums of money for the purpose of obtaining the 
silence or influencing the testimony of witnesses, potential witness or 
individuals who participated in such unlawful entry and other illegal 
activities;
    (6) endeavoring to misuse the Central Intelligence Agency, an 
agency of the United States;
    (7) disseminating information received from officers of the 
Department of Justice of the United States to subjects of 
investigations conducted by lawfully authorized investigative officers 
and employees of the United States, for the purpose of aiding and 
assisting such subjects in their attempts to avoid criminal liability;
    (8) making false or misleading public statements for the purpose of 
deceiving the people of the United States into believing that a 
thorough and complete investigation had been conducted with respect to 
allegations of misconduct on the part of personnel of the executive 
branch of the United States and personnel of the Committee for the Re-
election of the President, and that there was no involvement of such 
personnel in such misconduct; or
    (9) endeavoring to cause prospective defendants, and individuals 
duly tried and convicted, to expect favored treatment and consideration 
in return for their silence of false testimony, or rewarding 
individuals for their silence or false testimony.
    In all of this, Richard M. Nixon has acted in a manner contrary to 
his trust as President and subversive of constitutional government, to 
the great prejudice of the case of law and justice and to the manifest 
injury of the people of the United States.
    Wherefore Richard M. Nixon, by such conduct, warrants impeachment 
and trial, and removal from office.
                                                                  DRAFT
105th CONGRESS
2D SESSION

                             H. RES.______

                    IN THE HOUSE OF REPRESENTATIVES

         Mr. BARR of Georgia submitted the following resolution

                               RESOLUTION

Impeaching William Jefferson Clinton, President of the United States, 
of high crimes and misdemeanors.

Resolved, That William Jefferson Clinton, President of the United 
States, is impeached for high crimes and misdemeanors, and that the 
following article of impeachment be exhibited in the Senate:

Article of impeachment exhibited by the House of Representatives of the 
United States of America in the name of itself and all the people of 
the United States of America, against William Jefferson Clinton, 
President of the United States of America, in maintenance and support 
of its impeachment against him for high crimes and misdemeanors.

                               ARTICLE I

    In his conduct of the office of the President of the United States, 
William Jefferson Clinton, in violation of his constitutional oath 
faithfully to execute the office of President of the United States and, 
to the best of his ability, preserve, protect and defend the 
Constitution of the United States, and in violation of his 
constitutional duty to take care that the laws be faithfully executed, 
has attempted to corrupt justice in that:
    In May 1994, Paula Corbin Jones filed a lawsuit against William 
Jefferson Clinton in the United States District Court for the Eastern 
District of Arkansas. Ms. Jones alleged that during his Governorship of 
Arkansas, President Clinton sexually harassed her and intentionally 
inflected emotional distress during an incident in a Little Rock hotel 
room.
    In May 1997, the United States Supreme Court unanimously rejected 
President Clinton's claim of constitutional immunity from a lawsuit 
during his tenure in office. Subsequent thereto, William Jefferson 
Clinton, using the powers of his high office and betraying his 
constitutional duty to take care that the laws are faithfully executed, 
not sabotaged, engaged personally and through subordinates, friends, 
and Monica Lewinsky in a course of conduct or plan calculated to 
corrupt justice in the Jones v. Clinton lawsuit by withholding and 
concealing truthful information and by deceits under oath.
    On January 16, 1998, the Special Division of the United States 
Court of Appeals for the District of Columbia Circuit issued an order 
that empowered the Office of the Independent Counsel headed by Mr. 
Kenneth Starr ``to investigate to the maximum extent authorized by the 
Independent Counsel Reauthorization Act of 1994 whether Monica Lewinsky 
or others suborned perjury, obstructed justice, intimidated witnesses, 
or otherwise violated federal law . . . in dealing with witnesses, 
potential witnesses, attorneys, or others concerning the civil case of 
Jones v. Clinton.'' Subsequent thereto, William Jefferson Clinton, 
using the powers of his high office and betraying his constitutional 
duty to take care that the laws are faithfully executed--not 
sabotaged--engaged personally and through his subordinates, friends, 
and others in a course of conduct calculated to corrupt justice in the 
Office of the Independent counsel grand jury investigation by 
withholding and concealing truthful information and by deceits under 
oath.
    The means employed to attempt to corrupt justice in the Jones v. 
Clinton lawsuit and the Office of the Independent counsel grand jury 
investigation have included at least all of the following:

                                  [1]

    Making, causing, and seeking to induce the making of false or 
misleading statements in the Jones v. Clinton case and in the Office of 
the Independent Counsel grand jury investigation of William Jefferson 
Clinton.

                                  [2]

    Withholding and collaborating in the withholding of truthful 
information from the United States District Court presiding in the 
Jones v. Clinton litigation.

                                  [3]

    Condoning and acquiescing in witnesses with respect to the giving 
of false or misleading statements in the Jones v. Clinton litigation 
and in the Office of the Independent Counsel grand jury investigation.

                                  [4]

    Making false and misleading public statements for the purpose of 
deceiving the people of the United States into believing that he did 
not have a sexual relationship or affair with Monica Lewinsky, that he 
had testified truthfully in his Jones v. Clinton deposition, and that 
he intended full, speedy and truthful cooperation with the Office of 
the Independent Counsel grand jury investigation of contrary 
allegations; or

                                  [5]

    Endeavoring to cause Monica Lewinsky to expect and receive favored 
treatment as a reward for her silence or false testimony in the Jones 
v. Clinton litigation and the Office of the Independent Counsel grand 
jury investigation.
    In all of this, William Jefferson Clinton has acted in a manner 
contrary to his trust as President and subversive of constitutional 
government, to the great prejudice of the cause of law and justice and 
to the manifest injury of the people of the United States.
    Wherefore William Jefferson Clinton, by such conduct, warrants 
impeachment and trial, and removal from office.

    Mr. Barr. While that is being done, I would like to echo 
what my colleague Mr. Rothman expressed, and that is a fear 
that we not take steps to enact, either de facto or de jure, 
two different standards, one standard for Republicans and one 
standard for Democrats.
    Simply by way of background but also some relevance, during 
my tenure as a U.S. Attorney appointed by President Reagan I 
had the opportunity to unfortunately fulfill the responsibility 
to prosecute cases involving public corruption of various 
public officials, Republican and Democrat. And during my 
tenure, and this was consistent with the policies of both the 
Reagan and Bush Administrations, I pursued those cases of 
corruption against Democrats and Republicans equally--we did 
not have one standard for Democrats and one for Republicans--
including, as I believe I mentioned briefly in my opening 
remarks, prosecution of a sitting member of this committee 
during the time that he sat as a member of this committee for 
perjury before a Federal grand jury.
    The first document, I am not sure which order they are in, 
but I would like the panelists to look briefly at Article I 
involving President Nixon. There has been some discussion of 
this article today, and I have not heard anybody posit this 
article as not consistent with constitutional and historical 
standards for impeachable offenses and would not have properly 
formed the basis for at least part of the impeachment of 
Richard Nixon.
    The second is a draft article of impeachment with regard to 
Mr. Clinton.
    The article with regard to Mr. Nixon of course posits that 
the underlying offense, which occurred on June 17, 1972, was a 
break-in not committed by the President but by political 
operatives working for the President's reelection committee. 
Obviously, therefore, that underlying act which gave rise to 
Article I forms the basis, therefore could have in effect had 
nothing to do with the official acts of the President. He did 
not commit it, and even if he had, it would not have been in 
his capacity as President but rather as a candidate.
    The operative language then becomes also in that second 
paragraph, ``Subsequent thereto, Richard M. Nixon, using the 
powers of his high office,'' et cetera. And that is really the 
operative language of the impeachment article here and really 
what we are focusing on. It is not the underlying act itself, 
whether it is attempting to subvert a civil lawsuit involving 
Paula Jones, or whether it is involving an attempt to cover up 
an investigation, that is, subvert an investigation of 
political operatives.
    The Article I with regard to President Nixon then includes 
nine means used to implement the course of conduct. Probably 
all but perhaps six and seven, or certainly six, since we have 
no information thus far that President Clinton endeavored to 
use the CIA in his cover-up, probably also perhaps number 
seven. Disseminating information and aiding and assisting such 
subjects in their attempts to avoid criminal liability does not 
seem to be applicable to the Clinton situation. The others do.
    The parallels are indeed striking. If one looks at the 
specific means used to implement the cover-up for which 
President Nixon was impeached by this committee according to 
Article I, and almost certainly would have been impeached by 
the House and probably convicted thereof by the Senate, if I 
could perhaps starting with you, Professor McDowell, indicate 
to me if you see any essential operative distinction between 
these two documents.
    If indeed Article I is a legitimate exercise of the 
impeachment power of this Congress and properly formed the 
legal, historical and constitutionally substantive basis for a 
impeachment of Richard Milhouse Nixon, is there any reason that 
the other document that you have before you, the draft articles 
of impeachment with regard to William Jefferson Clinton, would 
not also be consistent with the substantive and constitutional 
historical basis for impeachment, and the legal basis thereto 
also?
    Mr. McDowell. Well, I would think it is obvious from my 
earlier comments that perjury is perjury, as it were. If you 
are giving false statements under oath or seeking to mislead or 
obstruct an investigation, it doesn't really matter what the 
cause is, it is your action in doing that. If you engage in 
perjury or misrepresenting yourself under oath, that becomes 
the same offense, no matter what the cause is, for your 
concealment.
    Mr. Barr. Are there other panelists that would have a 
different point of view, operating again from the presumption--
I am plumbing--since nobody has objected to Article I against 
President Nixon, that the article, the draft article that you 
have before you with regard to President Clinton is essentially 
consistent by both its terms, its language as well as the basis 
on which the steps were taken to implement the subversive 
course of conduct, that is the cover-up, would not likewise 
form the proper basis for an article of impeachment of William 
Jefferson Clinton?
    Mr. Sunstein. The difference between the two is the whole 
predicate for the Nixon article, one, is the undermining of the 
democratic process by, and it is worth pausing over this, 
committing unlawful entry of the headquarters of the opposing 
political party. I don't agree with you that the subsequent 
``thereto'' is what drives Article I. What drives Article I is 
the underlying act that was subsequently covered up. If the 
underlying act involves something trivial, then the rest would 
be--would have much less----
    Mr. Barr. So, therefore, even had not the President at that 
time, Richard Nixon, not taken all of these steps enunciated in 
the article which was voted out, namely 1 through 9, you 
believe that it still would have provided an article of 
impeachment simply because agents of his reelection campaign, 
with which there was no evidence that he directly ordered them, 
broke into a headquarters? And if so, that would be a really a 
rather shaky basis on which an article of impeachment would be 
deposited, especially from somebody that is arguing, as you 
are, for a much, much tighter standard even than we are 
contemplating here today.
    Mr. Sunstein. It is a good point. With respect to whether 
the ``prior to'' would make an impeachable offense, it depends 
on what the President knew and when he knew it. But once it 
came out that that was the underlying fact, then to cover up 
that abuse of the democratic process is itself impeachable.
    Mr. Barr. Okay. So it is really the democratic process. If 
we had an effort to subvert the legal process, namely perjury, 
committing perjury and taking other steps to subvert justice in 
a civil legal proceeding, that would be of much less 
constitutional importance. But if one does something to cover 
up an action in a political campaign, that is much more 
serious.
    Mr. Sunstein. I think the words ``Democrat'' and ``legal'' 
are both too abstract.
    Mr. Barr. Really?
    Mr. Sunstein. Yes. Any subversion----
    Mr. Barr. As a U.S. attorney, I did not find the legal 
process, the use of the term legal, and I think most U.S. 
Attorneys would beg to differ with you there.
    Mr. Sunstein. I agree with you as a U.S. attorney. I don't 
agree with you as a member of the Judiciary Committee thinking 
about whether to impeach the President of the United States. As 
a U.S. Attorney, ``legal'' doesn't have ambiguity with respect 
to the criminal law, and therefore in both cases we have very 
serious criminal charges.
    I must say as someone who believes that these are not 
impeachable offenses, I am moved, as I believe most, maybe all 
members of this panel are on the left side, by the obvious 
commitment to the rule of law. It is extremely important. I 
hope everyone hears it.
    Mr. Barr. I am not really sure that you are.
    Mr. Sunstein. Subversion of the legal process is not an 
impeachable offense.
    Mr. Barr. Let me move on a little bit, Professor, because 
there are some others.
    Professor McGinnis, how would you respond to my initial 
question with regard to these two documents and whether they 
would in fact, as one did historically and one is proposed to 
do, provide a proper basis for impeachment for essentially the 
same conduct?
    Mr. McGinnis. As I said before, I believe that perjury and 
obstruction of justice are impeachable offenses, and since both 
make out a perjury and obstruction of justice as impeachable 
offenses, I think both documents, surely one could in good 
conscience vote for impeachment on their basis.
    Mr. Barr. On both of them?
    Mr. McGinnis. On both of them.
    Mr. Barr. On the same basis?
    Mr. McGinnis. Yes.
    Mr. Barr. So you would agree that the parallels are rather 
appropriate and rather striking and very constitutionally 
sound?
    Mr. McGinnis. As a legal matter authorizing you to vote for 
impeachment, yes.
    Mr. Barr. I would also, just in closing, with those in the 
record, but I would also note that there are some additional 
matters that perhaps all of us ought to keep in mind, the case 
of Mr. Henry Cisneros as well. I think it has some 
applicability here, but we can go into that later. I yield 
back.
    Mr. Canady. The gentleman's time has expired.
    I would now recognize the gentleman from Arkansas, Mr. 
Hutchinson.
    Mr. Hutchinson. I thank the Chair, and I particularly 
appreciate these hearings because it is my understanding these 
types of hearings on the Constitution and history of 
impeachment were not held during the Watergate proceedings. It 
was really a staff report that set forth their standards for 
impeachment. So I think this is terrifically helpful.
    I mentioned in my statement that I think this process is 
about the public trust, and that is really the heart and soul 
of whether you proceed with impeachment or not. And if the 
public trust has been violated, you remedy that by impeachment, 
which would ultimately lead to removal from office or holding 
the official, if he committed wrongful conduct, criminal 
conduct, high crimes and misdemeanors, accountable. But some 
are suggesting some other process.
    Now, you have got a couple hurdles to that. There is a 
split in opinion, I believe it was referenced, about whether 
you can indict a sitting President, and pragmatically most 
likely that would wait until after he finished his term and it 
may never be pursued. Another avenue that has been mentioned is 
censure and fine. I want to come back to that in a minute. And 
then a third one that might throw some off guard, and I want to 
ask this of Professor Parker, is the role of the judiciary.
    Judge Susan Weber Wright, in a footnote on page 7 of her 
opinion filed September 1, 1998, said that ``although the court 
has concerns about the nature of the President's deposition 
testimony, given his recent public statements, the court makes 
no finding at this time regarding whether the President may be 
in contempt.''
    Is there any roadblock constitutionally to the judiciary 
proceeding to hold an official accountable who might have 
committed contempt in a court proceeding? Professor Parker?
    Mr. Parker. I am not an expert in that but I would guess 
that there are certainly, if there are roadblocks, they are 
lower than a criminal prosecution would be. Nonetheless, I am 
sure arguments would be raised and appeals would be made to the 
equitable discretion of the judge in terms of those arguments.
    As to the House of Representatives, which has a special 
constitutional responsibility, I would perhaps be in the 
minority but I don't see any roadblock to the House passing a 
resolution of whatever sort it wants. A fine, I am sure, is a 
different matter, but I can't imagine why the House couldn't 
pass a resolution of censure or condemnation or----
    Mr. Hutchinson. Let me interrupt you there. Some people 
have said the President ought to be punished. Mr. Schumer 
mentioned that, although he is not here. Mr. Nadler also I 
think used similar language, that if the President is found 
guilty of an offense he should be punished in some fashion.
    A fine would be levied by this body. How many would agree 
that that has serious constitutional problems? I think I see 
everybody's hand up except for two. Professor McDowell?
    Mr. McDowell. Yes.
    Mr. Hutchinson. Your hand is up, Professor Schlesinger. It 
is unanimous that a fine in this body of the President would 
have some serious constitutional problems.
    Now, just in reference to a censure, I believe Father 
Drinan indicated simply a censure would have terrible 
precedents for the future, and I believe Professor Holden also 
indicated that. How many would agree with that position, that 
just simply a censure would raise some serious constitutional 
problems?
    All right. So it looks to me like there are five I see that 
have some serious problems with that avenue. Thank you very 
much.
    Now, to----
    Mr. Holden. I didn't say anything about censure.
    Mr. Hutchinson. Do you like it or don't you like it?
    Mr. Holden. You can do it if you want to.
    Mr. Hutchinson. Let me go on here. Professor Sunstein, I 
was reviewing your testimony, and on page 14 you describe the 
President as the Nation's chief law enforcement officer. I 
don't believe you said that in your oral testimony, but that is 
your statement today?
    Mr. Sunstein. It sounds right to me.
    Mr. Hutchinson. That is pretty clear and straightforward. 
So the President shouldn't have too much of a problem answering 
the first request of admission, that he is the chief law 
enforcement officer of this country.
    I also note on page 12 of your testimony that your view was 
that judges can only be removed from office for high crimes and 
misdemeanors. Is that correct?
    Mr. Sunstein. Yes.
    Mr. Hutchinson. So you reject the argument that there is a 
different constitutional criteria for impeachment for judges?
    Mr. Sunstein. Not quite. It is the same term, but its 
application is different.
    Mr. Hutchinson. So the same language is used in the 
Constitution of ``high Crimes and Misdemeanors,'' but you put a 
caveat in there that there should be a higher standard for 
impeaching a President?
    Mr. Sunstein. I think that is what the country, including 
the House of Representatives, has always believed, certainly 
what the framers believed.
    Mr. Hutchinson. All right. Well, I think that might be in 
dispute by some people here, but let me go on. You have 
indicated, then, that a judge may be impeached for providing 
false statements; is that correct?
    Mr. Sunstein. For perjury.
    Mr. Hutchinson. A judge may be impeached for perjury.
    Mr. Sunstein. It doesn't bother me a lot.
    Mr. Hutchinson. And it has been done.
    Mr. Sunstein. Not a lot.
    Mr. Hutchinson. It has been done.
    Mr. Sunstein. It has been done.
    Mr. Hutchinson. So it is your view that such standard is 
all right for judges. It only bothers you a little bit. But it 
is not an acceptable standard for the President of the United 
States.
    Mr. Sunstein. I stand with Madison on this.
    Mr. Hutchinson. And therefore we are basically setting a 
higher standard for the judges of our land than we are the 
President of the United States and the chief law enforcement 
officer.
    Mr. Sunstein. I am just talking about old stuff, nothing 
new or innovative. The textual term is the same. The 
application of the term has always been different because of 
the different functions. If the judges started--if a judge gave 
a State of the Union address every year, then that might be an 
impeachable offense. If the President failed to do it, then 
that might be an impeachable offense.
    Mr. Hutchinson. I understand. You are saying that the 
Constitution provides the same definition, but we apply it 
differently and there should be a higher standard for 
impeaching the President. Professor Presser, do you want to 
respond to that?
    Mr. Presser. I think Professor Sunstein's argument, to use 
Mr. Inglis' words, is a bit too sophisticated for me. There is 
nothing I find in the Constitution that sets a different 
standard. The language that does seem to differentiate is the 
one suggestion that judges should serve during good behavior, 
but I think that refers to their tenure in office and just 
distinguish that from the term that the President has. I don't 
see any difference.
    Mr. Hutchinson. My time is running out. I want to yield to 
my friend from Florida.
    Mr. McCollum. Thank you very much.
    Professor Schlesinger, I want to ask you a question based 
on what you said in your written testimony, where you said 
``Gentleman always lie about their sex lives. Only a cad tells 
the truth about his love affairs. Many people feel that 
questions no one has a right to ask do not call for truthful 
answers.''
    Does this mean that you believe that if somebody is called 
to tell the truth and swears to tell the truth in a divorce 
case or a sexual harassment case about consensual sex, it is 
perfectly normal and permissible for them to lie and we should 
not ever charge them with perjury?
    Mr. Schlesinger. I guess you were away when I tried to 
rebut Congressman Inglis on that point. I must apologize to the 
committee, I evidently overestimated----
    Mr. Canady. Can you pull your microphone a little closer? I 
can hardly hear you.
    Mr. Schlesinger. I must apologize to the committee for 
having overestimated its sense of humor.
    Mr. McCollum. Professor Schlesinger, I did understand the 
answers you were giving earlier, but you didn't really give 
much of one to Mr. Inglis and you certainly didn't give one to 
me. The point remains, if somebody commits perjury in a divorce 
case or in a sexual harassment case or anywhere else about 
consensual sex, it seems to me very striking that we need to be 
able to know that they can be prosecuted, or else we are going 
to have everybody lying in sex cases. Because the President of 
the United States is the highest law enforcement officer of 
this country, being allowed to get away with perjury is going 
to encourage other people to do it in similar cases.
    Mr. Schlesinger. In no case did I encourage anyone to do 
it. I will not bore--you were absent from the room when I read 
the concluding paragraph of my prepared statement.
    Mr. Hutchinson. Mr. Chairman, I yield the balance of my 
time to Mr. Cannon.
    Mr. Cannon. Mr. Schlesinger, I have just one minute to ask 
a question, and if you don't mind, I would like to ask a 
question.
    Mr. McDowell, my good friend Mr. Watt asked or referred to 
your referring to censure as cowardly, as being your quote, but 
as I recall you were quoting just a story?
    Mr. McDowell. That was my interpretation of basically 
President Jackson's response to those in the Senate.
    Mr. Cannon. I want to get a little bit of history. I think 
it is cowardly, and to the degree that Father Drinan was 
talking about that, I would like to associate myself with those 
remarks. I think is the wrong thing to do, to even consider. It 
harms the presidency without helping the body politic to deal 
with censure as opposed to impeachment, that is, impeaching or 
vindicating the President.
    If I might just ask Mr. Parker a question here, first I 
would like to associate myself with the comments of Mr. 
Inglis----
    Mr. Canady. Excuse me. The gentleman's time has expired, if 
you could conclude quickly.
    Mr. Cannon. Could I ask unanimous consent to take 2 
minutes? Would that work?
    Mr. Canady. Just--yes.
    Mr. Cannon. Thank you. Mr. Inglis was talking about----
    Mr. Watt. Did I just agree to a unanimous consent request?
    Mr. Canady. If you want to object, you can object.
    Mr. Watt. I am not objecting. I wanted to know for sure 
what we were doing.
    Mr. Canady. The gentleman is going to ask his question 
quickly.
    Mr. Watt. If that is what we are going to do, I think we 
are going to open up a Pandora's box.
    Mr. Cannon. I will withdraw my request rather than drag 
this out all evening, so everyone feels comfortable objecting.
    Mr. Canady. I appreciate the gentleman's thoughtfulness. I 
want to thank the members of this panel for your very helpful 
testimony. You have shown commendable fortitude in being with 
us since 9:30 this morning. We are grateful to you.
    The subcommittee now will move to the second panel. We will 
take a 5-minute break, but it will be no more than 5 minutes, 
so that the members here can leave and the new witnesses can 
reassemble. But we will reconvene promptly at 3:30.
    [Recess.]
    Mr. Canady. The subcommittee will be in order.
    We will now move to the testimony of our second and final 
panel of witnesses for the day. On our second panel we will 
first hear from Charles J. Cooper, who is a senior partner at 
the Washington, D.C. law firm of Cooper, Carvin & Rosenthal. 
Mr. Cooper was a law clerk for Justice William H. Rehnquist of 
the United States Supreme Court. He worked as Deputy Assistant 
Attorney General in the Justice Department's Civil Rights 
Division from 1982 to 1985, and Assistant Attorney General in 
the Office of Legal Counsel from 1985 to 1988. Mr. Cooper was 
appointed by President Bush to the National Commission on 
Judicial Discipline and Removal.
    Our next witness will be Griffin Bell, who was in 1961 
appointed by President John F. Kennedy to serve as a United 
States Circuit Judge on the 5th Circuit Court of Appeals. Judge 
Bell served on the 5th Circuit for 15 years, until 1976, when 
he returned to his former law firm of King & Spalding in 
Atlanta, Georgia. In 1977 Judge Bell was asked to serve by 
President Carter as the 72nd Attorney General of the United 
States, a position he held until 1979. In 1984 Judge Bell 
received the Thomas Jefferson Memorial Foundation Award for 
Excellence in Law.
    Our next witness will be Daniel H. Pollitt, who is Graham 
Kenan Professor of Law Emeritus at the University of North 
Carolina Law School. He was a law clerk to Judge Henry W. 
Edgerton of the United States Appeals Court for the District of 
Columbia. In 1964 he served as Special Counsel to the House 
Committee on Education and Labor and its Subcommittee on Labor-
Management Relations. Professor Pollitt has published 
approximately 60 articles on the issues of civil rights, civil 
liberties and labor relations. He has been a member of the 
North Carolina Law School faculty since 1957.
    Our next witness will be Forrest McDonald, who is 
Distinguished University Research Professor at the University 
of Alabama. Professor McDonald has published 19 books in all on 
constitutional and American history, including Novus Ordo 
Seclorum:, if my Latin is correct there, The Intellectual 
Origins of the U.S. Constitution; E Pluribus Unum: The 
Formation of the American Public; The American Presidency; and 
Alexander Hamilton: A Biography.
    Our next witness will be Lawrence H. Tribe, who is Ralph S. 
Tyler, Jr. Professor of Constitutional Law at Harvard 
University Law School. Professor Tribe has published many books 
in the area of constitutional law, including a leading 
treatise, American Constitutional Law, Constitutional Choices, 
and was coauthor of On Reading the Constitution. Professor 
Tribe teaches three different courses on constitutional law at 
Harvard Law School.
    Our next witness is Susan Low Bloch, a professor of law at 
Georgetown University Law Center. Professor Bloch served as law 
clerk for U.S. Supreme Court Justice Thurgood Marshall. She is 
the author of Supreme Court Politics: The Institution and Its 
Procedures, and numerous law review articles on constitutional 
law and communications. Professor Bloch teaches in the areas of 
constitutional law and Federal courts at the Georgetown Law 
Center.
    Next we will hear from William Van Alstyne, who is 
Professor at the Duke University School of Law. Following brief 
service as Deputy Attorney General of California, Professor Van 
Alstyne joined the Civil Rights Division of the U.S. Department 
of Justice, handling voting rights cases in the South. He was 
named to the William R. and Thomas S. Perkins Chair of Law at 
Duke in 1974. His professional writings have appeared during 
four decades in the principal law journals in the United 
States. His work has been cited in a large number of judicial 
opinions, including those of the United States Supreme Court.
    The next witness will be Jack N. Rakove, who is Coe 
Professor of History and American Studies at Stanford 
University. He joined the Stanford faculty in 1980. Professor 
Rakove was awarded the 1987 Pulitzer Prize for history for his 
book, Original Meanings: Politics and Ideas in the Making of 
the Constitution. He is also the author of James Madison and 
the Creation of the American Republic.  I must also note a 
graduate of Haverford College, of which I am also a graduate, 
which goes to show that Haverford is a diverse institution.
    Next, our final witness on this panel and our final witness 
of the day is Jonathan Turley, who is Shapiro Professor of 
Public Interest Law at the George Washington University Law 
School. Professor Turley is familiar to Congress as someone who 
has testified previously on constitutional and criminal matters 
before and during the inquiry now before the committee, 
including the recent Senate hearings, on constitutional issues 
related to impeachment.
    I know that most of you are familiar with the format that 
we followed for the first panel of witnesses. We will follow 
the same format for this panel. We will allow you 10 minutes 
for your spoken remarks. Without objection, your full written 
statements will be made a part of the record. Please watch the 
light. It is late in the day, so do your very best to start 
concluding your remarks when the yellow light is illuminated. 
Of course, we will follow the same practice for the members, 
and the members will have 10 minutes each to ask questions.
    Again, we thank you for being here. We will begin with Mr. 
Cooper.

 STATEMENT OF CHARLES J. COOPER, ESQ., SENIOR PARTNER, COOPER, 
              CARVIN & ROSENTHAL, WASHINGTON, D.C.

    Mr. Cooper. Thank you, Mr. Chairman and distinguished 
members. Over the years, it has been my privilege and my 
pleasure to have testified before this and other congressional 
committees on a variety of subject matters.
    Today, however, I cannot say that I am happy to be here. I 
can scarcely imagine a task less welcome to a lawyer than 
inquiring into the impeachability of certain crimes credibly 
charged against the President of the United States, nor is it 
easy to think of a less pleasant assignment for the House of 
Representatives than inquiring into whether the President of 
the United States has engaged in wrongdoing warranting his 
impeachment. But this body's responsibility for performing this 
duty, however unpleasant, cannot conscientiously be avoided, 
for the Constitution prescribes that the House of 
Representatives shall have the sole power of impeachment.
    We have heard this morning and will no doubt hear again 
this afternoon the extraordinary argument that the President 
cannot constitutionally be impeached for the crimes that have 
been credibly alleged against him. The assertion is not that 
perjury and obstruction of justice, both of which are 
punishable by up to five years imprisonment in a Federal 
penitentiary, can never qualify as impeachable offenses. 
Rather, the theory is that these crimes to be impeachable must 
involve the derelict exercise of executive powers, to use the 
formulation in a letter sent to this committee by some law 
professors, including some who will be heard and have been 
heard.
    Under this view, because the President's alleged perjury 
and obstruction of justice grew out of his admitted efforts to 
conceal his private sexual misconduct, rather than to conceal a 
criminal exercise of presidential powers, the alleged crimes do 
not rise to the constitutionally required level of treason, 
bribery, and other high crimes and misdemeanors.
    I believe that this official crimes theory runs contrary 
not only to the text of the Impeachment Clause and its original 
understanding at the time of the framing of our Constitution, 
but also to the actions by Congress in two recent cases in 
which Federal judges were impeached and removed from office. As 
to the first, the phrase in question appears in Article II, 
section 4 of the Constitution, which requires the removal of 
the President, Vice President, and all civil officers of the 
United States on impeachment for and conviction of treason, 
bribery, and other high crimes and misdemeanors.
    Now, as the committee has heard earlier today, the use of 
the word ``other'' is quite telling. It plainly indicates that 
treason and bribery are themselves high crimes and 
misdemeanors, and bribery and treason unquestionably may be 
committed wholly apart from the offender's official duties. 
Earlier Professor Richard Parker gave the example of a 
President bribing a judge in a civil action to influence the 
decision. Other examples could be added to this, for example, 
bribing an Independent Counsel or bribing members of this 
committee to favorably influence their views with respect to a 
private sexual misconduct.
    I believe that those examples would be impeachable offenses 
even though the crime did not involve the derelict exercise of 
executive powers. Justice Joseph Story, in his Commentaries on 
the Constitution, forcefully outlined the response to the 
argument that only official misconduct can constitute a 
impeachable offense. This is what he said:
    ``There is not a syllable in the Constitution, which 
confines impeachment to official acts, and it is against the 
plainest dictates of common sense, that such restraint should 
be imposed upon it. Suppose a judge should countenance, or aid 
insurgents in a meditated conspiracy or insurrection against 
the government. This is not a judicial act; and yet it ought 
certainly to be impeachable.''
    He went on to reference similar types of examples of 
bribery which John McGinnis shared with the committee earlier 
today. In fact, we had a judge who committed treason, having 
nothing to do with his office, and he was, of course, 
impeached.
    To be sure, serious crimes committed in the actual 
performance of official government functions are likely to 
constitute impeachable offenses in all cases. But the scope of 
the House's impeachment authority is not confined to such 
crimes or even to crimes at all. To the contrary, as Alexander 
Hamilton explained in The Federalist Papers, impeachable 
offenses relate chiefly to injuries done immediately to the 
society itself. Similarly, Joseph Story recognized that 
strictly speaking, the impeachment power partakes of a 
political character, as it respects injuries to the society in 
its political character.
    After surveying the relevant English and American 
authorities, the House Judiciary Committee's impeachment 
inquiry staff stated in a 1974 report relating to President 
Nixon that impeachment is a constitutional remedy addressed to 
serious offenses against the system of government. Such 
offenses, the staff report noted, inflict injury to the 
commonwealth, that is, to the state itself and to its 
Constitution.
    The crimes of perjury and obstruction of justice, like the 
crimes of treason and bribery, are quintessentially offenses 
against our system of government, visiting injury immediately 
upon society itself, whether or not committed in connection 
with the exercise of official government powers. For example, 
just as assaulting a police officer is different from 
assaulting a civilian, so too is lying under oath to a Federal 
judge or jury different from lying to your spouse. In the one 
indication the injury falls primarily on the private 
individual, and in the other on the body politic.
    Before the framing of our Constitution and since, our law 
has consistently recognized that perjury primarily and directly 
injures the body politic, for it subverts the judicial process 
and thus strikes at the heart of the rule of law itself. In his 
Commentaries on the Laws of England, Blackstone categorized 
perjury right alongside bribery as among, in his words, crimes 
and misdemeanors as more especially affect the commonwealth or 
public polity of the kingdom, and more specifically as an 
offense against the public justice.
    The Supreme Court has repeatedly emphasized this point. For 
example, in a 1976 case the Court stated: ``Perjured testimony 
is an obvious and flagrant affront to the basic concepts of 
judicial proceedings. Effective restraints against this type of 
egregious offense are therefore imperative. Hence, Congress has 
made the giving of false answers a criminal act punishable by 
severe penalties; in no other way can criminal conduct be 
flushed into the open where the law can deal with it.''
    Nor does the history of actual impeachments in this country 
support the claim that Congress' impeachment powers are limited 
to offenses committed in connection with the performance of 
official government functions. To the contrary, recent cases of 
impeachment specifically refute this claim.
    In 1986 District Judge Harry Claiborne was impeached by the 
House and convicted by the Senate for making perjurious 
statements on his income tax returns. Three years later, 
District Judge Walter Nixon was impeached and removed from 
office for giving perjured testimony before a Federal grand 
jury.
    In both cases, it was undisputed that the perjurious 
statements had no relationship to the office held by the 
offender. Yet in both cases, no one, not a single Senator, not 
a single Member of the House, not even the offenders 
themselves, even mentioned the possibility that such offenses, 
though private, might not constitute high crimes and 
misdemeanors authorizing impeachment, conviction and removal 
from office.
    Indeed, during the proceedings to impeach Judge Claiborne, 
Representative Hamilton Fish of New York specifically noted 
impeachable conduct does not have to occur in the course of 
performance of an officer's official duties. Evidence of 
misconduct, misbehavior, high crimes and misdemeanors can be 
justified upon one's private dealings as well as one's exercise 
of public office.
    Now, that view was necessarily shared by the other 405 
members who voted, without any dissent, to impeach Judge 
Claiborne, and the 417 members who voted, without dissent, to 
impeach Judge Nixon, as well as by the overwhelming majorities, 
over 90 percent in each case, who voted to convict these judges 
in the Senate.
    There can be little doubt, I submit, that these precedents 
apply with full force to a case involving the President. The 
standard for impeachment laid down in the Constitution is the 
same for the President as for all other civil officers of the 
United States. That is, treason, bribery, and other high crimes 
and misdemeanors. And the articles of impeachment brought 
against Judges Claiborne and Nixon explicitly charged those 
offenders with high crimes and misdemeanors, and nothing else.
    Moreover, the members of both houses considering those 
cases could not have been clearer in emphasizing that the 
judges' perjury constituted such grave affronts to the rule of 
law that no one guilty of these transgressions could remain in 
high office. Then-Senator Albert Gore, in explaining his vote 
to convict Judge Claiborne, said this:
    ``Given the circumstances, it is incumbent upon the Senate 
to fulfill its constitutional responsibility and strip this man 
of his title. An individual who has knowingly falsified tax 
returns has no business receiving a salary derived from the tax 
dollars of honest citizens. More importantly, an individual 
guilty of such reprehensible conduct ought not be permitted to 
exercise the awesome powers which the Constitution entrusts to 
the Federal Judiciary.''
    And as the House manager's report in Judge Nixon's case 
stated, ``It is difficult to imagine an act more subversive to 
the legal process than lying from the witness stand. A judge 
who violates his testimonial oath and misleads a grand jury is 
clearly unfit to remain on the bench.''
    If the perjury of just one judge so undermines the rule of 
law as to make it intolerable that he remain in office, then 
how much more so does perjury committed by the President of the 
United States, who alone is charged with the duty to take care 
that the laws be faithfully executed, which brings me to my 
final point.
    There is an additional and unique dimension to the gravity 
of the crimes of perjury and obstruction of justice when 
charged against a President. As the Judiciary Committee's 1974 
staff report noted, ``Because impeachment of a President is a 
grave step for the Nation, it is to be predicated only upon 
conduct seriously incompatible with the proper performance of 
the constitutional duties of the presidential office. At the 
core of the President's responsibilities'' under Article II of 
the Constitution ``is his duty to take care that the laws be 
faithfully executed.''
    Indeed, the Supreme Court has called this responsibility 
the Chief Executive's most important constitutional duty. And 
because perjury and obstruction of justice strike at the rule 
of law itself, there are few crimes that more clearly or 
directly violate this core presidential duty. Far from taking 
care that the laws be faithfully executed, a President guilty 
of perjury and obstruction of justice has himself faithlessly 
subverted them.
    Thus, while the crimes alleged against the President may 
not involve the derelict exercise of executive powers, they 
plainly do involve the derelict violation of executive duties. 
By the standards of our Constitution, our Founding Fathers, our 
history and our legal precedents, these crimes are plainly 
impeachable offenses.
    [The prepared statement of Mr. Cooper follows:]
Prepared Statement of Charles J. Cooper, Esq., Senior Partner, Cooper, 
                  Carvin & Rosenthal, Washington, DC.
    Chairman Canady and members of the Subcommittee on the Constitution 
of the Committee on the Judiciary.
    Over the years, it has been my privilege, and my distinct pleasure, 
to have testified before this and other Congressional committees on a 
variety of important issues. Today, however, I cannot say that I am 
happy to be here. I can scarcely imagine a task less welcome to a 
lawyer than inquiring into the impeachability of certain crimes 
credibly charged against the President of the United States. Nor is it 
easy to think of a less pleasant assignment for the House of 
Representatives than inquiring into whether the President of the United 
States has engaged in wrongdoing warranting his impeachment. But this 
body's responsibility for performing this duty, however unpleasant, 
cannot conscientiously be avoided, for the Constitution prescribes that 
the ``House of Representatives shall have the sole Power of 
Impeachment.'' U.S. Const. art. I, Sec. 2.
    The President has been credibly charged with lying under oath, both 
in his testimony in the Paula Jones sexual harassment suit and in his 
testimony before the grand jury investigating his alleged criminal 
wrongdoing. The President has also been credibly charged with 
obstruction of justice in connection with both the Jones suit and the 
grand jury's investigation. The President's lawyers, with the support 
of some of the witnesses before you today, argue that the President 
cannot constitutionally be impeached for the crimes that have been 
charged against him. The argument is not that presidential perjury and 
obstruction of justice can never qualify as impeachable offenses, but 
rather that these crimes, to be impeachable, must ``involve the 
derelict exercise of executive powers.'' Letter from J. Rubenfeld, et 
al., to N. Gingrich (Oct. 6, 1998) (``Rubenfeld letter''). Under this 
view, because the President's alleged perjury and obstruction of 
justice grew out of his admitted effort to conceal his private sexual 
misconduct rather than to conceal a ``criminal exercise of presidential 
powers,'' id., the alleged crimes do not rise to the constitutionally 
required level of ``Treason, Bribery, and other high Crimes and 
Misdemeanors,'' U.S. Const. art. II, Sec. 4.
    As I shall discuss in detail, I believe that this view of the 
impeachment power is profoundly wrong. To be sure, serious crimes 
committed in the actual performance of official government functions 
are likely to constitute impeachable offenses in all cases. But the 
scope of the House's impeachment authority is not confined to such 
crimes, or even to crimes at all. To the contrary, ``[i]mpeachment is a 
constitutional remedy addressed to serious offenses against the system 
of government.'' Staff of the Impeachment Inquiry on the Constitutional 
Grounds for Presidential Impeachment, 93d Cong., 2d Sess. IV (Comm. 
Print 1974) (``Staff Report''). As Alexander Hamilton put it in The 
Federalist No. 65, impeachable offenses ``relate chiefly to injuries 
done immediately to the society itself.'' And the crimes of perjury and 
obstruction of justice, like the crimes of treason and bribery, are 
quintessentially offenses against our system of government, visiting 
injury immediately on society itself, whether or not committed in 
connection with the exercise of official government powers. Indeed, in 
a society governed by the rule of law, perjury and obstruction of 
justice cannot be tolerated precisely because these crimes subvert the 
very judicial processes on which the rule of law so vitally depends.
    But there is an additional and unique dimension to the gravity of 
the crimes of perjury and obstruction of justice when charged against a 
President. In a 1974 report, the Judiciary Committee's impeachment 
inquiry staff noted: ``Because impeachment of a President is a grave 
step for the nation, it is to be predicated only upon conduct seriously 
incompatible with . . . the proper performance of constitutional duties 
of the presidential office.'' Staff Report at IV. At the core of the 
President's constitutional responsibilities is his duty to ``take Care 
that the Laws be faithfully executed.'' U.S. Const. art. II, Sec. 3. 
And because perjury and obstruction of justice strike at the rule of 
law itself, it is difficult to imagine crimes that more clearly or 
directly violate this core presidential constitutional duty. Far from 
taking care that the laws be faithfully executed, a President guilty of 
perjury and obstruction of justice has himself faithlessly subverted 
them. Thus, while the crimes alleged against the President do not 
involve the ``derelict exercise of executive powers,'' they plainly do 
involve the derelict violation of executive duties. Those crimes are 
plainly impeachable offenses.
                        i. historical background
    The Impeachment Clause provides:

          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.

U.S. Const., art. 2, Sec. 4. While the meanings of ``Treason'' and 
``Bribery'' are relatively clear (the former is defined in the 
Constitution itself and the latter by both statutory and common law), 
the term ``high Crimes and Misdemeanors'' is nowhere specifically 
defined. To understand the meaning of this term, we must examine how 
that term was understood by the founders who framed and ratified the 
Constitution, and how that term has been applied in relevant American 
precedent. In my view, an examination of these sources compels the 
conclusion that perjury and obstruction of justice constitute ``high 
crimes and misdemeanors'' under any plausible and logically consistent 
construction of that term.
    Perhaps the most extended examination of the impeachment power 
during the founding period was undertaken by Alexander Hamilton in The 
Federalist Papers. In The Federalist No. 65 he identified as 
impeachable

          . . . those 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 the society itself.

The Federalist No. 65 (Alexander Hamilton) (emphasis in original). 
Hamilton was quick to note, however, that no single recipe could 
embrace the full scope of impeachable offenses. Instead, he recognized 
the need to confer substantial discretion upon the impeaching body, 
both in its authority to define the scope of impeachable offenses, and 
in the procedures by which such offenses would be tried:

          The necessity of a numerous court for the trial of 
        impeachments is equally dictated by the nature of the 
        proceeding. This can never be tied down by strict rules, either 
        in the delineation of the offence by the prosecutors, or in the 
        construction of it by the Judges, as in common cases serve to 
        limit the discretion of courts in favor of personal security. . 
        . . The awful discretion, which a court of impeachments must 
        necessarily have, to doom to honor or to infamy the most 
        confidential and the most distinguished characters of the 
        community, forbids the commitment of the trust to a small 
        number of persons.

Id. In these two passages, Hamilton captures the dominant themes that 
run throughout the various sources of the meaning ``high Crimes and 
Misdemeanors.'' First, such offenses are ``political'' in the sense 
that ``they relate chiefly to injuries done immediately to the society 
itself'' by the ``misconduct of public men.'' \1\ And second, within 
this broad definition, the impeaching bodies must be given broad, but 
not unlimited, discretion to define the precise scope of impeachable 
offenses.
---------------------------------------------------------------------------
    \1\ I hasten to note that in the late 18th century (and, to a 
certain extent, still), all violations of the criminal law were viewed 
as injuries inflicted upon the body politic (hence, criminal cases 
were, and are, denominated United State v. Smith). Indeed, this 
distinction, between public and private harm, was not used to 
differentiate among crimes, but between criminal and civil wrongs:

        The distinction of public wrongs from private, of crimes 
      and misdemeanors from civil injuries, is this: that private 
      wrongs, or civil injuries, are an infringement or privation 
      of the civil rights which belong to individuals, considered 
      as individuals; public wrongs, or crimes and misdemeanors, 
      are a breach and violation of public rights and duties, due 
      to the whole community, considered as a community, in its 
      social aggregate capacity. . . . [T]reason, murder, and 
      robbery are properly ranked as crimes; since, besides 
      injury done to individuals, they strike at the very being 
      of society; which cannot possibly subsist, where actions of 
---------------------------------------------------------------------------
      this sort are suffered to escape with impunity.

IV William Blackstone, Commentaries on the Laws of England 5 (special 
ed., 1983). Viewed in this light, Hamilton's standard for impeachable 
offenses clearly appears to embrace serious private crimes. In any 
event, the ``public'' crimes of perjury and obstruction of justice, 
like treason and bribery, are at the very core of the concept of high 
crimes and misdemeanors.
    These broad themes were captured in the Constitutional Convention 
in Philadelphia in 1787. The initial draft of the Impeachment Clause 
made the President removable for ``malpractice or neglect of duty.'' 
See 2 The Founders' Constitution 153 (Philip B. Kurland and Ralph 
Lerner eds., 1987). This formulation, however, was altered by the 
Committee of Detail to ``treason bribery or corruption,'' and altered 
again, by the Committee of Eleven, to just ``treason or bribery.'' See 
Raoul Berger, Impeachment: The Constitutional Problems 74 (Harv. Univ. 
Press 1973). Not until this point, it appears, did the Framers take up 
the issue of the scope of the impeachment power, with George Mason 
objecting that it was too narrow:

          Why is the provision restrained to Treason & bribery only? 
        Treason as defined in the Constitution will not reach many 
        great and dangerous offences. Hastings is not guilty of 
        Treason. Attempts to subvert the Constitution may not be 
        Treason as above defined--As bills of attainder which have 
        saved the British Constitution are forbidden, it is the more 
        necessary to extend: the power of impeachments.

The Founders' Constitution at 154. To broaden it, Mason proposed adding 
the term ``maladministration'' to treason and bribery. James Madison, 
however, objected that the term would extend the impeachment power too 
far, for ``[s]o vague a term [would] be equivalent to a tenure during 
pleasure of the Senate.'' Accordingly, Mason withdrew 
``maladministration'' and replaced it with the current phrase, ``high 
Crimes & Misdemeanors,'' which was adopted by the Convention. Madison 
then argued that the power to impeach the President ``for any act which 
might be called a misdemeanor'' would render the President ``improperly 
dependent'' on the Legislative Branch. He recommended that the power to 
try impeachments be located in the Supreme Court rather than the 
Senate, but his motion failed. Id. at 154-55.
    Thus, this brief exchange reflects that ``high Crimes and 
Misdemeanors'' was intended to extend the impeachment power to ``great 
and dangerous offences'' in addition to treason and bribery, but not to 
the amorphous concept of ``maladministration,'' which would permit 
impeachment for mere incompetence or for policy disagreements with the 
Congress.
    While this was the only occasion on which the Framers discussed the 
scope of ``high crimes and misdemeanors,'' it is not the only place 
that they addressed the nature of impeachable offenses. Earlier on in 
the Convention, they addressed the question whether the President 
should be impeachable at all; and in the course of the debate, those 
arguing in favor of an impeachment power set forth some grounds that, 
in their view, would justify removing the President. Like Hamilton's 
test in The Federalist No. 65 and the broad contours set out in the 
debate over the text of the Impeachment Clause, this debate outlined 
the nature of impeachable offenses in broad strokes, apparently 
focusing, like Hamilton, on offenses inflicting injury on the body 
politic. James Madison, for example, spoke of the need to remove a 
President for ``incapacity, negligence or perfidy.'' The Founders' 
Constitution at 153. Others described as impeachable offenses ``mal- 
and corrupt conduct,'' ``malpractice or neglect of duty,'' and 
``corruption.'' Id. at 152-53. But in this portion of the debate, the 
Framers also highlighted specific forms of foreseeable misconduct that, 
in their view, made the case for impeachment compelling. Madison, for 
example, warned that the President

          . . . might lose his capacity after his appointment. He might 
        pervert his administration into a scheme of peculation and 
        oppression. He might betray his trust to foreign powers. . . . 
        In the case of the Executive Magistracy which was to be 
        administered by a single man, loss of capacity or corruption . 
        . . might be fatal to the Republic.

Id. at 153.
    A broad view of the term ``high Crimes and Misdemeanors,'' like 
that enunciated by Hamilton, also appears to have prevailed in the 
state ratification conventions. Of particular note is the North 
Carolina convention, where James Iredell, later to become a Supreme 
Court Justice, spoke at some length on the scope of impeachable 
offenses. One noted historian succinctly summarized Iredell's position, 
as well as that of Iredell's fellow North Carolinian, Governor 
Johnston, as follows:

          [Iredell] understood impeachment as having been ``calculated 
        to bring [great offenders] to punishment for crime which it is 
        not easy to describe, but which every one must be convinced is 
        a high crime and misdemeanor against government. [T]he occasion 
        for its exercise will arise from acts of great injury to the 
        community[.]''. . . As examples of impeachable offenses, he 
        suggested that ``[the] president must certainly be punishable 
        for giving false information to the Senate'' and that ``the 
        president would be liable to impeachments [if] he had received 
        a bribe or acted from some corrupt motive or other.'' . . . 
        Governor Johnston, who would subsequently become the state's 
        first U.S. senator, agreed that ``[i]mpeachment . . . is a mode 
        of trial pointed out for great misdemeanors against the 
        public.''

Michael Gerhardt, The Federal Impeachment Process 19 (1996) (internal 
citations omitted).
    These historical sources--the framing debates at the 
Constitutional Convention, The Federalist Papers, and the 
ratification debates in the States--draw the broad confines 
within which the Framers believed impeachable offenses to fall. 
In short, within these confines fall ``great offenses'' that 
constitute violations of the ``public trust'' in the sense that 
they inflict injury upon the body politic. Beyond this, with 
the exception of the few illustrative examples provided in the 
course of the debates, the scope of impeachable offenses is 
largely left to be determined by the body charged with 
executing the impeachment power the House of Representatives 
and the Senate. \2\
---------------------------------------------------------------------------
    \2\ Justice Joseph Story captured the essence of the matter as 
follows:

      Not but that crimes of strictly legal character fall within 
      the scope of the power; . . . but that it has more enlarged 
      operation, and reaches, what are aptly termed, political 
      offenses, growing out of personal misconduct, or gross 
      neglect, or usurpation, or habitual disregard of the public 
      interests, in the discharge of the duties of political 
      office. These are so various in their character, and so 
      indefinable in their actual involutions, that it is almost 
      impossible to provide systematically for them by positive 
---------------------------------------------------------------------------
      law.

2 Joseph Story, Commentaries on the Constitution of the United States 
Sec. 762 (1833).
    These same conclusions were reached in 1974 by the impeachment 
inquiry staff of the House Judiciary Committee. After surveying the 
relevant English and American authorities, the impeachment inquiry 
staff concluded that ``[i]mpeachment is a constitutional remedy 
addressed to serious offenses against the system of government.'' Staff 
Report at IV. Such offenses inflict ``injury to the commonwealth that 
is, to the state itself and to its constitution. . . .'' Id. at II.B.2 
n.51. The impeachment power, the staff further noted, ``is intended to 
reach a broad variety of conduct by officers that is both serious and 
incompatible with the duties of the office.'' Id. at III.C.3. And 
because ``the scope of impeachment was not viewed narrowly'' by the 
founders, ``they adopted from English history a standard sufficiently 
general and flexible to meet future circumstances and events, the 
nature and character of which they could not foresee.'' Id. at II.B.3, 
I.
    ii. perjury and obstruction of justice are impeachable offenses
    Given that offenses against the system of government, inflicting 
injury immediately on the society itself, are at the core of the 
concept of ``high crimes and misdemeanors,'' it follows that perjury 
and obstruction of justice are quintessential impeachable offenses. 
Before the framing of our Constitution and since, our law has 
consistently recognized that perjury subverts the judicial process and 
thus strikes at our nation's most fundamental value--the rule of law 
itself.
    Indeed, in his Commentaries on the Laws of England, Blackstone 
differentiated between crimes that ``more directly infringe the rights 
of the public or commonwealth, taken in its collective capacity,'' and 
``those which in a more peculiar manner injure individuals or private 
subjects.'' IV William Blackstone, Commentaries on the Laws of England 
74, 176 (special ed., 1983). The latter category contained crimes such 
as murder, burglary, and arson. The former, however, catalogued crimes 
that could only be understood as assaults upon the state. Within a 
subcategory denominated ``offenses against the public justice,'' 
Blackstone included the crimes of perjury and bribery. Id. at 127, 136-
39. In fact, in his catalogue of ``public justice'' offenses, 
Blackstone places perjury and bribery side-by-side. Id. 
    Likewise, the Supreme Court has repeatedly noted the extent to 
which perjury subverts the judicial process, and thus the rule of law. 
For example, in a 1976 case the Court emphasized:

          Perjured testimony is an obvious and flagrant affront to the 
        basic concepts of judicial proceedings. Effective restraints 
        against this type of egregious offense are therefore 
        imperative. . . . Hence, Congress has made the giving of false 
        answers a criminal act punishable by severe penalties; in no 
        other way can criminal conduct be flushed into the open where 
        the law can deal with it.

United States v. Mandujano, 425 U.S. 564, 576 (1976) (plurality 
opinion) (emphasis added).\3\ All the more serious is perjury if 
committed in the context of a grand jury proceeding, and especially in 
an investigation of alleged perjury in a prior proceeding. For in such 
a case, the only victim of perjury is the rule of law.
---------------------------------------------------------------------------
    \3\ See also, ABF Freight Sys. v. N.L.R.B., 510 U.S. 317, 324 
(1994) (``False testimony in a formal proceeding is intolerable. We 
must neither reward nor condone such a `flagrant affront' to the truth-
seeking function of adversary proceedings.''); Brogan v. United States, 
118 S. Ct. 805, 808-09 (1998) (``We cannot imagine how it could be true 
that falsely denying guilt in a Government investigation does not 
pervert a governmental function.''); United States v. Norris, 300 U.S. 
564, 573 (1937) (``Perjury is an obstruction of justice . . .'').
---------------------------------------------------------------------------
    The seriousness of the crime of perjury is confirmed by the fact 
that it was among the few offenses that the First Congress outlawed by 
statute. In 1790, in a statute entitled ``An Act for the punishment of 
certain crimes against the United States,'' Congress made the crime of 
perjury, including perjury committed ``in any deposition taken'' in an 
action pending in federal court, punishable by imprisonment of up to 
three years, a fine of up to $800, disqualification from giving future 
testimony, and ``stand[ing] in the pillory for one hour.'' 2 Annals of 
Cong. 2219 (1790). Today perjury is punishable by up to five years 
imprisonment in a federal penitentiary. See 18 U.S.C. Sec. Sec. 1621-
23.
    In the context of an impeachment inquiry, moreover, there is an 
additional and unique dimension to the gravity of the crimes of perjury 
and obstruction of justice when charged against a president. The 1974 
report of the House Judiciary Committee's impeachment inquiry staff 
emphasized that ``in determining whether grounds for impeachment 
exist,'' one must understand ``the nature, functions and duties of the 
office.'' Staff Report at II.C.3. And because impeachment of a 
president, ``is a grave step for the nation, it is to be predicated 
only upon conduct seriously incompatible with . . . the proper 
performance of constitutional duties of the presidential office.'' Id. 
at IV. At the core of the president's responsibilities under Article II 
of the Constitution is his duty to ``take care that the laws be 
faithfully executed.'' Indeed, the Supreme Court has called this 
responsibility ``the Chief Executive's most important constitutional 
duty.'' Lujan v. Defenders of Wildlife, 504 U.S. 555, 577 (1992). It is 
no exaggeration to say that our Constitution, and the American people, 
entrust to the president singular responsibility for enforcing the rule 
of law. Perjury and obstruction of justice strike at the heart of the 
rule of law, and a president who has committed these crimes has plainly 
and directly violated his most important executive duty.
                  iii. the ``official crimes'' defense
    As noted at the outset of this testimony, in recent weeks some of 
the President's supporters have advanced the extraordinary argument 
that he cannot constitutionally be impeached for the crimes that have 
been credibly alleged against him. In a letter to the Speaker of the 
House, a group of 13 law professors contends that these crimes do not 
rise to the constitutionally required level of ``high Crimes and 
Misdemeanors.'' Rubenfeld letter. The law professors acknowledge that 
``lying under oath is a serious offense,'' and they concede that 
``[p]erjury and obstructing justice can without doubt be impeachable 
offenses.'' As currently charged against the President, however, these 
crimes are not impeachable offenses because they do not ``involve the 
derelict exercise of executive powers.'' As the law professors put it: 
``If the President committed perjury regarding his sexual conduct, this 
perjury involved no exercise of presidential power as such. If he 
concealed evidence, this misdeed too involved no exercise of executive 
authority.'' Id. 
    Similarly, a group of some 400 historians, which calls itself 
``Historians in Defense of the Constitution,'' recently issued a 
statement asserting that the Constitution authorizes presidential 
impeachment only ``for high crimes and misdemeanors in the exercise of 
executive power.'' Statement of Historians in Defense of the 
Constitution (1998) (``Historians' Statement''). These historians 
contend that ``[i]mpeachment for anything else would, according to 
James Madison, leave the president to serve `during pleasure of the 
Senate.' '' Id. 
    I believe that this ``official crimes'' theory is demonstrably 
wrong, for it runs contrary to the text of the Impeachment Clause, to 
the understanding of the clause at the time of its framing, and to the 
actions by Congress in actual cases of impeachment. Turning first to 
the constitutional text, the Impeachment Clause speaks of ``Treason, 
Bribery, and other high Crimes and Misdemeanors.'' U.S. Const. art. II, 
Sec. 4 (emphasis added). This wording necessarily implies that treason 
and bribery are themselves ``high Crimes and Misdemeanors,'' else the 
word ``other'' would not only be wholly superfluous, but affirmatively 
misleading. And the Impeachment Clause, by its express terms, prohibits 
treason and bribery without reference to whether the commission of 
those crimes is connected in any way to the offender's performance of 
his official functions. Thus, for example, if the president pays an 
illegal bribe to a judge in a private civil action in order to obtain a 
favorable ruling, then the president has committed the impeachable 
offense of bribery, even though the crime did not involve the 
``derelict exercise of executive powers.''
    In addition to being textually incoherent, the ``official crimes'' 
theory rests on a patent misreading of history. As noted, the 
historians assert that ``[i]mpeachment for anything [other than 
official misconduct] would, according to James Madison, leave the 
President to serve `during the pleasure of the Senate.' '' Historians' 
Statement. Madison, however, said no such thing. Instead, as previously 
discussed, he objected that the term ``maladministration'' was so vague 
that the Senate would be empowered effectively to remove the President 
at its pleasure. He made no statement that could reasonably be 
construed as supporting an understanding of the impeachment power that 
would preclude its exercise for criminal conduct unrelated to the 
offender's office. Indeed, the term that Madison rejected--
``maladministration''--is itself readily amenable to a construction 
that limits its scope to wrongdoing in connection with the 
administration of official functions. Moreover, the Framers had 
available to them, and rejected, the language of several state 
constitutions that arguably would have limited impeachable offenses to 
official misconduct. For example, the constitution of North Carolina 
allowed impeachment for ``violating any part of this Constitution, 
maladministration, or corruption.'' See The Founders' Constitution at 
150. The constitutions of Delaware and Virginia authorized impeachment 
for ``maladministration, corruption, or other means, by which the 
safety of the [State] may be endangered;'' New York's specified ``mal 
and corrupt conduct in their respective offices,'' and Vermont's 
``maladministration.'' Id. at 150-51. Likewise, the Framers explicitly 
considered, and rejected, the formulations ``mal- and corrupt 
conduct,'' and ``malpractice or neglect of duty.'' Id. at 152-53.
    Obviously, then, the Framers were aware of language that on its 
face implied a requirement of official misconduct but chose instead to 
adopt language that did not. Indeed, after carefully reviewing the text 
and history of the term ``high Crimes and Misdemeanors,'' Justice 
Joseph Story \4\ forcefully outlined the argument against the claim 
that the impeachment power is limited to wrongdoing connected to the 
powers of office:
---------------------------------------------------------------------------
    \4\ Professor Berger has observed that ``Story's summary of the 
arguments betrays partiality to impeachment for unofficial misconduct. 
But conscious of the proprieties, for after all he was a Justice of the 
Supreme Court, he went on to say that he `Expressed no opinion' because 
these are `matters still sub judice,' that is, questions to be decided 
by the Senate.'' Berger at 198 n.31. Professor Berger likewise 
concluded that ``[t]he necessity of dealing with offenses such as 
perjury and forgery in private transactions precludes a wholesale bar 
to inclusion of nonofficial conduct in `high crimes and misdemeanors.' 
'' Berger at 209 (emphasis added).

          [T]here is not a syllable in the constitution, which confines 
        impeachments to official acts, and it is against the plainest 
        dictates of common sense, that such restraint should be imposed 
        upon it. Suppose a judge should countenance, or aid insurgents 
        in a meditated conspiracy or insurrection against the 
        government. This is not a judicial act; and yet it ought 
        certainly to be impeachable. He may be called upon to try the 
        very persons, whom he has aided. Suppose a judge or other 
        officer to receive a bribe not connected with his judicial 
        office; could he be entitled to any public confidence? Would 
        not these reasons for removal be just as strong, as if it were 
---------------------------------------------------------------------------
        a case of an official bribe?

2 Joseph Story, Comments on the Constitution of the United States 
Sec. 802 (1833).
    To be sure, the severity of wrongdoing is aggravated if facilitated 
by an official's governmental powers. A drug dealer on the streetcorner 
is bad enough, but a drug dealer on the police force is much worse. 
Still, while the official nature of wrongdoing might aggravate the 
crime, it cannot, for the reasons shown, serve as a dividing line 
between impeachable and unimpeachable offenses.
    In sum, the crimes of perjury and obstruction of justice, whether 
or not committed in the exercise of official powers, are quintessential 
``high Crimes and Misdemeanors'' under the Impeachment Clause. Indeed, 
the Congress has, in the recent past, unanimously and near-unanimously, 
so concluded. That is, in recent years, the Congress has several times 
impeached and removed from office federal judges on the basis of 
conduct that, in all relevant respects, is indistinguishable from that 
alleged against the President.
                  iv. the 1980s judicial impeachments
    In the 1980s, three federal judges were impeached, convicted, and 
removed from office for making perjurious statements. It speaks volumes 
that, although each judge was represented by able counsel, none of them 
argued that perjury or making false statements are not impeachable 
offenses. Nor did a single Congressman or Senator, in any of the three 
impeachment proceedings, suggest that perjury or false statements do 
not qualify as ``high Crimes and Misdemeanors.'' Finally, in two of the 
cases, it was undisputed that the perjury was not committed in 
connection with the exercise of the offenders' judicial powers, and yet 
no one suggested that the offenses, though private, might not 
constitute ``high Crimes and Misdemeanors.''
A. Impeachment of Judge Nixon
    In 1989, Judge Walter L. Nixon, Jr., was impeached, convicted, and 
removed from office solely for perjury and lying to federal officers. 
Judge Nixon's offense stemmed from his grand jury testimony and 
statements to federal officers concerning his intervention in the state 
drug prosecution of Drew Fairchild, the son of Wiley Fairchild, a 
business partner of Judge Nixon's. Although Judge Nixon had no official 
role or function in Drew Fairchild's case (which was assigned to a 
state court judge), Wiley Fairchild had asked Judge Nixon to help out 
by speaking to the prosecutor. Judge Nixon did so, and the prosecutor, 
a long-time friend of the Judge's, dropped the case.
    When Judge Nixon was interviewed by the FBI and the Department of 
Justice, he denied any involvement whatsoever. Subsequently, a federal 
grand jury was empanelled and Judge Nixon again denied his involvement.
    After a lengthy criminal prosecution, Judge Nixon was convicted on 
two counts of perjury before the grand jury and sentenced to five years 
in prison on each count. Not long thereafter, the House impeached Judge 
Nixon by a vote of 417 to 0. The first article of impeachment charged 
him with making the false or misleading statement to the grand jury 
that he could not ``recall'' discussing the Fairchild case with the 
prosecutor. The second article charged Nixon with making affirmative 
false or misleading statements to the grand jury that he had ``nothing 
whatsoever officially or unofficially to do with the Drew Fairchild 
case.'' The third article alleged that Judge Nixon made numerous false 
statements (not under oath) to federal investigators prior to his grand 
jury testimony. See 135 Cong. Rec. H1802-03.
    Neither Judge Nixon nor his ``very able counsel,'' 135 Cong. Rec. 
H1804, even suggested that perjury was not a ``high Crime or 
Misdemeanor.'' Indeed, Judge Nixon affirmatively acknowledged to the 
Senate, ``If you find that the prosecution has clearly met its heavy 
burden of proof, . . . then you may vote to convict.'' 135 Cong. Rec. 
S14493, S14502 (1989). His sole defense was that he was innocent, 
``unjustly and wrongfully convicted.'' Id. 
    As the House Judiciary Committee Report on his impeachment 
concluded, ``Judge Nixon's conduct was wholly unacceptable for a 
federal judge and [has] tainted the integrity of the federal judiciary. 
The Committee therefore recommends that Judge Walter L. Nixon, Jr., be 
impeached by the House of Representatives and tried by the United 
States Senate.'' H.R. Rep. 101-36 (1989). The House unanimously 
impeached Judge Nixon, and the House Managers' Report expressed no 
doubt that perjury is an impeachable offense:

          It is difficult to imagine an act more subversive to the 
        legal process than lying from the witness stand. A judge who 
        violates his testimonial oath and misleads a grand jury is 
        clearly unfit to remain on the bench. If a judge's truthfulness 
        cannot be guaranteed, if he sets less than the highest standard 
        for candor, how can ordinary citizens who appear in court be 
        expected to abide by their testimonial oath?

House of Representatives' Brief in Support of the Articles of 
Impeachment (``Nixon House Br.'') at 59 (1989). As House Manager 
Edwards further argued to the full Senate,

          We deal here with a Federal judge who committed perjury. A 
        man who lied to law enforcement officials in an interview, and 
        then lied again in sworn testimony before a grand jury. . . . 
        After carefully investigating the facts and hearing all the 
        evidence, the House voted 417 to 0 in favor of three articles 
        of impeachment. Accordingly, you must now grapple with the same 
        question we faced in the House. Is a man who repeatedly lied 
        fit to hold the high office of Federal judge? I hope you agree 
        the answer is obvious. To preserve the integrity of the 
        judiciary, to maintain public respect for law and order, Judge 
        Nixon must be removed from the bench.

135 Cong. Rec. S14495 (statement of Rep. Edwards) (emphasis added).
    House Manager Sensenbrenner addressed the question even more 
directly:

          There are basically two questions before you in connection 
        with this impeachment. First, does the conduct alleged in the 
        three articles of impeachment state an impeachable offense? 
        There is really no debate on this point. The articles allege 
        misconduct that is criminal and wholly inconsistent with 
        judicial integrity and the judicial oath. Everyone agrees that 
        a judge who lies under oath, or who deceives Federal 
        investigators by lying in an interview, is not fit to remain on 
        the bench. 

135 Cong. Rec. S14,497 (statement of Rep. Sensenbrenner) (emphases 
added).
    The Senate agreed, overwhelmingly voting to convict Judge Nixon of 
perjury on the first two articles (89-8 and 78-19, respectively). As 
Senator Carl Levin explained,

          The record amply supports the finding in the criminal trial 
        that Judge Nixon's statements to the grand jury were false and 
        misleading and constituted perjury. Those are the statements 
        cited in articles I and II and it is on those articles that I 
        vote to convict Judge Nixon and remove him from office.
135 Cong. Rec. S14,637 (statement of Sen. Levin).
B. Impeachment of Judge Hastings
    Also in 1989, the House impeached Judge Alcee L. Hastings for, 
inter alia, making numerous false statements under oath. The Senate 
convicted him, and he was removed from office. Initially, Judge 
Hastings had been indicted by a federal grand jury for conspiracy 
stemming from his alleged bribery conspiracy with his friend William 
Borders to ``fix'' cases before Judge Hastings in exchange for cash 
payments from defendants. William Borders was convicted, but, at his 
own trial, Judge Hastings took the stand and unequivocally denied any 
participation in a conspiracy with Borders. The jury acquitted Judge 
Hastings on all counts. Nevertheless, the House impeached Judge 
Hastings, approving sixteen articles of impeachment, fourteen of which 
were for lying under oath at his trial.
    The House voted 413 to 3 to impeach. In the trial before the 
Senate, the House Managers' Report left no doubt whatsoever as to 
whether perjury alone is impeachable:

          It is important to realize that each instance of false 
        testimony charged in the false statement articles is more than 
        enough reason to convict Judge Hastings and remove him from 
        office. Even if the evidence were insufficient to prove that 
        Judge Hastings was part of the conspiracy with William Borders, 
        which the House in no way concedes, the fact that he lied under 
        oath to assure his acquittal is conduct that cannot be 
        tolerated of a United States District Judge. To bolster one's 
        defense by lying to a jury is separate, independent corrupt 
        conduct. For this reason alone, Judge Hastings should be 
        removed from public office. 

The House of Representatives' Brief in Support of the Articles of 
Impeachment (``Hastings House Br.'') at 127-28 (1989) (emphases added). 
Representative John Conyers (D-Mich.) also argued for the impeachment 
of Judge Hastings:

          [W]e can no more close our eyes to acts that constitute high 
        crimes and misdemeanors when practiced by judges whose views we 
        approve than we could against judges whose views we detested. 
        It would be disloyal . . . to my oath of office at this late 
        state of my career to attempt to set up a double standard for 
        those who share my philosophy and for those who may oppose it. 
        In order to be true to our principles, we must demand that all 
        persons live up to the same high standards that we demand of 
        everyone else.

134 Cong. Rec. H6184 (1988) (statement of Rep. Conyers).
C. Impeachment of Judge Claiborne
    In 1986, Judge Harry E. Claiborne was likewise impeached, 
convicted, and removed from office for making false statements. In 
particular, Judge Claiborne had filed false income tax returns in 1979 
and 1980, grossly understating his income. As a result, he was 
convicted by a jury of two counts of willfully making a false statement 
on a federal tax return in violation of 26 U.S.C. Sec. 7206(1). 
Subsequently, the House unanimously (406-0) approved four articles of 
impeachment. The proposition that Claiborne's perjurious personal 
income tax filings were not impeachable was never even seriously 
considered. As the House Managers explained,

          [T]he constitutional issues raised by the first two Articles 
        of Impeachment [concerning the filing of false tax returns] are 
        readily resolved. The Constitution provides that Judge 
        Claiborne may be impeached and convicted for ``High Crimes and 
        Misdemeanors.'' Article II, Section 4. The willful making or 
        subscribing of a false statement on a tax return is a felony 
        offense under the laws of the United States. The commission of 
        such a felony is a proper basis for Judge Claiborne's 
        impeachment and conviction in the Senate. 

S. Doc. No. 99-48, at 40 (1986) (emphasis added).
    House Manager Rodino (D-NJ), in his oral argument to the Senate, 
emphatically made the same point:
          Honor in the eyes of the American people lies in public 
        officials who respect the law, not in those who violate the 
        trust that has been given to them when they are trusted with 
        public office. Judge Harry E. Claiborne has, sad to say, 
        undermined the integrity of the judicial branch of Government. 
        To restore that integrity and to maintain public confidence in 
        the administration of justice, Judge Claiborne must be 
        convicted on the fourth Article of Impeachment [that of 
        reducing confidence in the integrity of the judiciary].

132 Cong. Rec. S15,481 (1986) (Statement of Rep. Rodino).
    The Senate agreed. Telling are the words of then-Senator Albert 
Gore, Jr. (D-TN), in voting to convict Judge Claiborne and remove him 
from office:

          The conclusion is inescapable that Claiborne filed false 
        income tax returns and that he did so willfully rather than 
        negligently. . . . Given the circumstances, it is incumbent 
        upon the Senate to fulfill its constitutional responsibility 
        and strip this man of his title. An individual who has 
        knowingly falsified tax returns has no business receiving a 
        salary derived from the tax dollars of honest citizens. More 
        importantly, an individual guilty of such reprehensible conduct 
        ought not be permitted to exercise the awesome powers which the 
        Constitution entrusts to the Federal Judiciary.

S. Doc. No. 99-48, at 372 (1986).
    Notably, Judge Claiborne defended himself, inter alia, by claiming 
that he was the victim of a ``vast'' conspiracy, and, but for over-
zealous and unscrupulous prosecutors, his crimes would never have been 
investigated in the first place. Although the prosecutorial misconduct 
alleged was serious, neither the House nor the Senate found it even 
remotely a barrier to impeachment. As then-Senator Gore explained,

          [Judge Claiborne's] contention seems to be that but for a 
        vast conspiratorial vendetta, his innocence would have been 
        proven or the charges would never have been brought. Claiborne 
        contends that full consideration of his claims on this score 
        leads to several conclusions which will exonerate him. 
        Specifically, he suggests that federal prosecutors pursued him 
        so relentlessly and unscrupulously that they bargained for 
        perjured testimony from a known criminal and spearheaded an 
        illegal burglary of his home in search of inculpatory evidence. 
        He claims that exculpatory evidence was withheld and that 
        witnesses were either intimidated or unfairly coached. If 
        accurate, these claims warrant serious scrutiny and I have 
        cosponsored legislation to establish a special subcommittee to 
        investigate the issue further. If the claims have merit, steps 
        should be taken to rectify the wrong. Remedial measures, 
        however, will in no way abrogate the finding that Claiborne has 
        engaged in impeachable conduct.

132 Cong. Rec. S16,827 (1986) (statement of Sen. Gore) (emphasis 
added).
D. Official Versus Private Misconduct
    Two of these impeachments were predicated on crimes that were 
unrelated to the exercise of the judge's official powers. Judge Nixon's 
impeachment did not relate to any official action. Drew Fairchild's 
case was not before Judge Nixon; indeed, it was not even in the federal 
courts, so Judge Nixon could not have exercised his judicial powers in 
connection with it. Rather, he privately and informally asked a friend 
(who happened to be the prosecutor) to drop the charges. And his 
impeachment was even once-removed from that: he was not impeached for 
privately interfering with the prosecution, but instead for perjuring 
himself about his involvement (improper or not) before the grand jury.
    Likewise, Judge Claiborne's impeachment involved no official 
conduct whatsoever. His false tax returns, filed under penalty of 
perjury, were criminal, but they were not at all incident to or 
connected with his exercise of official powers. His income tax returns 
were purely personal, and his private life resulted in his being a 
repeat felon. Nevertheless, in both proceedings, the House concluded 
(and the Senate agreed) that the judges' private criminal conduct was 
fully impeachable. As Rep. Hamilton Fish (R-NY) observed during the 
Claiborne proceedings,

          [I]t is . . . self-evident that criminal conduct is a 
        justifiable basis for a decision to impeach. . . . [But] [m]y 
        overriding concern, given these facts, is public confidence in 
        the integrity of the judicial branch and the individual Federal 
        judges that exercise the most important responsibilities of 
        that branch under our constitutional system. . . . Judge 
        Claiborne is more than a mere embarrassment. He is a disgrace--
        an affront--to the judicial office and the judicial branch he 
        was appointed to serve. . . . [I]n article II, section 4, of 
        the Constitution, [the Founders] also recognized that judges 
        and other high officers of the United States were not to be 
        above the law. . . . Impeachable conduct does not have to occur 
        in the course of the performance of an officer's official 
        duties. Evidence of misconduct, misbehavior, high crimes, and 
        misdemeanors can be justified upon one's private dealings as 
        well as one's exercise of public office. That, of course, is 
        the situation in this case. . . . There can be no doubt that 
        conviction of a Federal crime falls within the definition of a 
        ``high crime'' in article II, section 4 or the Constitution. . 
        . . [Judge Claiborne's] refusal to resign, in the face of these 
        facts and events, further demonstrates a disregard of his 
        judicial responsibilities.

132 Cong. Rec. H4710 (1986) (statement of Rep. Fish) (emphasis added).
v. applicability of judicial precedents to impeachment of the president
    In order to avoid the conclusive force of these recent precedents--
and in particular the exact precedent supporting impeachment for 
perjury--the only recourse is to argue that a ``high Crime or 
Misdemeanor'' for a judge is not necessarily a ``high Crime or 
Misdemeanor'' when committed by the President. The arguments advanced 
in support of this dubious proposition do not withstand serious 
scrutiny.
A. Good Behavior
    Some have argued that because judges serve during ``good 
behavior,'' a different impeachment standard applies to them than to 
the President. This argument, although popular on the television talk 
shows, has been widely rejected by the Congress and by legal scholars. 
See, e.g., Berger at 132 (``[I]mpeachment for `high crimes and 
misdemeanors' did not embrace removal for `misbehavior' which fell 
short of `high crimes and misdemeanors. . . .' '').
    For example, the 1974 impeachment inquiry staff report explained as 
follows:

          Does Article III, Section 1 of the Constitution, which states 
        that judges ``shall hold their Offices during good Behaviour,'' 
        limit the relevance of the ten impeachments of judges with 
        respect to presidential impeachment standards as has been 
        argued by some? It does not. The argument is that ``good 
        behavior'' implies an additional ground for impeachment of 
        judges not applicable to other civil officers. However, the 
        only impeachment provision discussed in the Convention and 
        included in the Constitution is Article II, Section 4, which by 
        its expressed terms, applies to all civil officers, including 
        judges, and defines impeachment offenses as ``Treason, Bribery, 
        and other high Crimes and Misdemeanors.''

Staff Report at II.C (emphases added).
    Similarly, the House Managers observed in the Judge Claiborne 
proceeding that ``[t]he sole impeachment standard for the President, 
Vice President and all civil officers of the United States, including 
federal judges, is found in Article II, Section 4 of the Constitution, 
which provides for removal from office for `treason, bribery, or other 
high crimes and misdemeanors.' '' S. Doc. No. 99-48, at 43 (1986) 
(emphasis added).
    While there is some distant precedent for the inclusion of 
``misbehavior'' as an additional ground for the impeachment of federal 
judges, see, e.g., Impeachment of Judge Robert W. Archbald, 6 Cannon 
686 (1912); Impeachment of Judge Halstead L. Ritter, 80 Cong. Rec. 
3486-88 (1936), ``no judge has been removed for misbehavior alone.'' 
Office of Legal Counsel, U.S. Dep't of Justice, Legal Aspects of 
Impeachment: An Overview, Appendix I: The Concept of Impeachable 
Offense at 34 (1974). And, more to the point, the 1980s judicial 
impeachments did not consider or purport to determine whether perjury 
and false statements constituted ``bad behavior''; rather, they 
expressly and unequivocally decided that perjury and false statements 
were ``high Crimes and Misdemeanors'' under Article II, Section 4--the 
exact provision applicable to the President.
B. The President Is Different
    Another argument made in support of establishing a unique 
constitutional test for impeaching Presidents is that, because the 
President is the head of an entire branch of government, impeaching him 
requires far worse conduct than does impeaching a simple federal judge, 
who is but one of many. See, e.g., Laurence H. Tribe, Democratic Forum 
on Impeachment 8 (Oct. 15, 1998) (``Removing a federal district judge, 
serious though it is, does not involve decapitating a branch of the 
Government.''). There is no doubt that impeaching a President is a 
graver matter than impeaching a single judge, and this fact is 
certainly relevant to the question whether to impeach. But it is 
difficult to understand how the relative gravity of impeachment could 
render perjury and obstruction of justice--unquestionably ``high Crimes 
or Misdemeanors'' for federal judges something less than ``high Crimes 
or Misdemeanors'' for the President. Either a particular crime is a 
``high crime or Misdemeanor,'' or it is not.
    Moreover, even assuming that presidential ``high crimes and 
misdemeanors'' could be different from judicial ones, surely the 
President ought not be held to a lower standard of impeachability than 
judges. In the course of the 1980s judicial impeachments, Congress 
emphasized unequivocally that the removal from office of federal judges 
guilty of crimes indistinguishable from those currently charged against 
the President was essential to the preservation of the rule of law. If 
the perjury of just one judge so undermines the rule of law as to make 
it intolerable that he remain in office, then how much more so does 
perjury committed by the President of the United States, who alone is 
charged with the duty ``to take Care that the Laws be faithfully 
executed.''
    Finally, the corollary to this argument, often offered in the same 
breath, is that impeachment of a President is a ``constitutional 
crisis.'' This is not so. It is an event fully contemplated and 
provided for the Constitution. The fact that it may result in a new 
President does not make it a constitutional crisis, any more than does 
that same fact make each presidential election a crisis. And, while it 
is a political crisis for the particular President facing impeachment, 
presumably the Vice President stands by fit and able to step in and 
fulfill the role of President if necessary.
    In sum, if perjury and false statements are ``high crimes or 
misdemeanors'' for a judge, then they are for a President as well.
                             vi. conclusion
    In the middle of July in 1787, the Framers debated the question 
whether the Chief Magistrate of the new government should be removable 
on impeachment. George Mason carried the day with a simple question: 
``Shall any man be above Justice?''

    Mr. Canady. Thank you, Mr. Cooper.
    Judge Bell.

 STATEMENT OF GRIFFIN B. BELL, ESQ., KING & SPALDING, ATLANTA, 
                               GA

    Mr. Bell. Mr. Chairman and members----
    Mr. Canady. Judge, if you could pull the microphone towards 
you so that we can hear you.
    Mr. Bell. Mr. Chairman and members, according to my 
research, there have only been 16 impeachments in the history 
of the Republic: one Senator, the Senator happened to be the 
first one; two Presidents; one Secretary of War; and 12 judges. 
The Constitution makes judges subject to something additional 
to what other officers have, and they must serve ``during good 
behavior,'' so that is an extra qualification on judges that 
sometimes has been used.
    As to the President, the Constitution provides that the 
Chief Justice has to preside at the trial of the President in 
the Senate. That is different, just for the President.
    I went back and checked Blackstone, trying to find out what 
``high Crimes and Misdemeanors'' means, and I find that 
maladministration was a crime against the king and was called a 
high misdemeanor. And that is what Madison said to Mason we 
can't put in the Constitution because the President would end 
up serving at the pleasure of the Senate if we have 
maladministration in. But that was a high misdemeanor.
    Then Blackstone has a series of crimes that are called 
crimes against justice, and those kinds of crimes would be like 
perjury, obstruction of justice, dissuading a witness he calls 
it, but tampering with a witness. And I am of the opinion, my 
conclusion is that those crimes are high crimes within the 
meaning of the impeachment clause.
    I am supported in that view by the fact that after saying 
what is ``treason, bribery and other high Crimes and 
Misdemeanors,'' the very next thing is, this is in the 
Constitution, but ``the party convicted shall nevertheless be 
liable and subject to indictment, trial and punishment 
according to law.'' That is serious crimes that they are 
talking about. You can be indicted for those crimes, and all 
the crimes that I mentioned, perjury, tampering with a witness 
and obstruction of justice, all are indictable felonies.
    I think that the standard for impeachment has been 
evolving, like so many other things under the Constitution. Our 
law evolves. And since World War II there has not been a 
Federal judge indicted who was not charged with one of these 
serious crimes, like bribery or lying to a grand jury, making 
false statements about taxes, since World War II, so I think 
that has become the standard.
    Now, President Nixon's case is confusing because one of the 
counts is what I would call a high crime and the others are 
not. The others seem to me to be lesser than these high crimes 
that I mentioned. But at least count one, in the way I read it, 
was a high crime.
    President Johnson, on the other hand, was pure political. 
President Johnson was thought to favor the South during the 
reconstruction, and he was impeached for not following a 
statute which provided that he could not remove a member of his 
Cabinet unless the Senate agreed. He said that was 
unconstitutional and he wouldn't follow it, and he was 
impeached. He was also charged with putting the Congress in 
disrepute--I don't know if you could do that or not--and with 
using intemperate language, which would get us all probably. 
But that was a political case, and he should have been 
acquitted. Unfortunately, he was only acquitted by one vote.
    I have thought about this a great deal. This is a serious 
matter. Trifling with the Federal courts is serious, and I 
guess I am biased because I used to be a Federal judge. But I 
cannot imagine that it wouldn't be a serious crime to lie in a 
Federal grand jury or to lie before a Federal judge, and that 
is where I come down.
    I think about the years I was on the court and the fact 
that I was not on the court when this happened, but President 
Eisenhower sent the 82nd Airborne Division to Little Rock to 
enforce a Federal court order. And all the civil rights cases 
that I was in in the South depended on the integrity of the 
Federal court and the Federal court orders and people telling 
the truth and fairness.
    Truth and fairness are the two essential elements in a 
justice system, and all of these statutes I mentioned, perjury, 
tampering with a witness, obstruction of justice, all in the 
interests of truth. If we don't have truth in the judicial 
process and in the court system in our country, we don't have 
anything. We don't have a system.
    So this is a serious business. I don't envy the committee's 
work. And somehow or another it has to be resolved. It is too 
serious not to resolve it. It must be resolved.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Bell follows:]
Prepared Statement of Griffin B. Bell,* Esq., King & Spalding, Atlanta, 
                                  GA.
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    * I have received no federal grant, contract or subcontract in the 
current fiscal year or the preceding two fiscal years.
    I am grateful to Professor Buckner F. Melton, Jr. and Ellen 
Armentrout, Esq., for their assistance with this paper.
---------------------------------------------------------------------------
I. Introduction
    The impeachment clauses of the United States Constitution are 
broadly written and therefore leave much room for interpretation. They 
have been the subject of much debate over the years, and there is very 
little consensus about how they should be interpreted.
    In addition, since the ratification of the Constitution, there have 
been fewer than 20 federal impeachment attempts, the vast majority of 
which have been brought against federal judges.\1\ Only one impeachment 
has been brought against a United States Senator,\2\ and only two have 
been brought against Presidents.\3\ There is therefore very little 
precedent either as to the substantive law of impeachment or the 
``proper'' way to handle impeachment proceedings.
---------------------------------------------------------------------------
    \1\ Michael J. Gerhardt, The Constitutional Limits to Impeachment 
and Its Alternatives, 68 Tex. L. Rev. 1, 10 (1989).
    \2\ Id.
    \3\ Id.
---------------------------------------------------------------------------
    When one carefully examines the language of the Constitution 
itself, however, in conjunction with a careful examination of earlier 
impeachment proceedings, it becomes clear that Presidential impeachment 
proceedings should only examine whether or not a President has 
committed serious criminal offenses that would be punishable in the 
courts. To examine ``maladministration'' on the part of the President 
in the context of impeachment proceedings is to introduce an element of 
political partisanship into proceedings that are so serious that they 
have the potential to undo a national election, cancel the votes of 
millions, and put the nation through a severe trauma.\4\
---------------------------------------------------------------------------
    \4\ Harvey Berkman, Top Profs: Not Enough to Impeach, Nat'l L.J., 
October 5, 1998, at A1, A19 (quoting Professor Akhil Reed Amar).
---------------------------------------------------------------------------
II. The Constitution
    The Constitution vests the sole power of impeachment in the House 
of Representatives.\5\ The Constitution vests the sole power to try 
impeachments in the Senate.\6\ No person shall be convicted without the 
concurrence of two thirds of the Senate members present.\7\ While these 
provisions have aroused much controversy among legal scholars, the most 
controversial impeachment provision of the Constitution, and the one 
most relevant to our discussion today, appears in Article II, Section 
4. There the Constitution states:
---------------------------------------------------------------------------
    \5\ U.S. Const. art. I, Sec. 2.
    \6\ Id. art. I, Sec. 3.
    \7\ Id.

          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.\8\
---------------------------------------------------------------------------
    \8\ Id. art. II, Sec. 4.

In particular, we need to understand the meaning of ``high Crimes and 
Misdemeanors.''
    The Framers took the words ``high crimes and misdemeanors'' 
directly from English law.\9\ The Constitutional Convention notes 
indicate that George Mason originally suggested the use of the word 
``maladministration'' after ``bribery.'' \10\ ``Maladministration'' was 
rejected, however, as being too vague.\11\ As James Madison said, ``so 
vague a term [as maladministration] will be equivalent to tenure during 
the pleasure of the Senate.'' \12\ ``High crimes and misdemeanors'' was 
therefore adopted instead, presumably because their meaning was more 
restrictive than the word ``maladministration.'' \13\
---------------------------------------------------------------------------
    \9\ Raoul Berger, Impeachment: The Constitutional Problems 54 
(Harvard University Press, 1973). The Constitutional Convention 
delegates, however, put a ``uniquely American stamp'' on the 
Constitution's impeachment clauses. The delegates agreed to limit 
impeachment to officeholders, required a two-thirds vote of the Senate 
members present, and limited the punishments in the Constitution to 
those typically found in the state constitutions. Gerhardt, supra note 
1, at 16-17.
    \10\ Berger, supra note 9, at 74.
    \11\ Id.
    \12\ See 2 The Records of the Federal Convention of 1787 at 550 
(Max Farrand ed., Yale University Press, 1966).
    \13\ Id.
---------------------------------------------------------------------------
    What the phrase actually means, however, is subject to much debate. 
Some have suggested that the phrase was first used in 1368; others 
suggest as late as 1642.\14\ Some have suggested that the phrase is 
merely solemn wording, with no substantive meaning.\15\ Others have 
suggested that the words cover all political offenses.\16\
---------------------------------------------------------------------------
    \14\ See Buckner F. Melton, Jr., The First Impeachment: The 
Constitution's Framers and the Case of Senator William Blount 40 
(Mercer University Press, 1998).
    \15\ See id. at 40-41.
    \16\ See id.
---------------------------------------------------------------------------
    Some have argued that impeachment must rest upon a violation of 
existing criminal law.\17\ Blackstone himself said that an impeachment 
``is a prosecution of the already known and established law.'' \18\ 
Others have argued that the phrase ``high Crimes and Misdemeanors'' 
encompasses far more than specific criminal offenses.\19\ It does not 
appear, however, that anyone would argue that specific indictable 
felonies would not fall under the rubric of ``high Crimes and 
Misdemeanors.'' An impeaching body, therefore, is clearly well within 
the Constitutional limits when conducting impeachment proceedings to 
investigate allegations of felonious conduct. Indeed, the impeachment 
clause itself recognizes that impeachment does not absolve one of 
indictment and trial: ``Judgment in Cases of Impeachment shall not 
extend further than to remove from Office, and disqualification to hold 
and enjoy any Office of honor, Trust or Profit under the United States: 
but the Party convicted shall nevertheless be liable and subject to 
Indictment, Trial, Judgment and Punishment, according to Law.'' \20\
---------------------------------------------------------------------------
    \17\ Berger, supra note 9, at 55; see also William Rehnquist, Grand 
Inquests: The Historic Impeachments of Justice Samuel Chase and 
President Andrew Johnson 99-100 (William Morrow & Co., Inc., 1992) 
(recounting arguments of counsel in the Chase impeachment that only 
indictable crimes could be impeachable offenses); Theodore Dwight, 
Trial by Impeachment, 15 Am. L. Reg. (6 Am. L. Reg. (N.S.)) 257 (1867) 
(arguing that impeachment in England lay for indictable crimes only).
    \18\ Id. (quoting 4 William Blackstone 259).
    \19\ Id. at 56-58. commentators, however, seem to disagree with 
then-congressman Gerald Ford's assertion that an impeachable offense is 
whatever the House and Senate jointly ``consider [it] to be.'' See id. 
at 86 (quoting 116 Cong. Rec. H3113-14 (daily ed. April 15, 1970)).
    \20\ U.S. Const. art. I, Sec. 3. for recent bibliographies of 
scholarly and government writings and sources on various aspects of the 
impeachment power, see 1 Kermit L. Hall, A Comprehensive Bibliography 
of American Constitutional Legal History, 1896-1979, at 445-49 (Kraus 
International Publications, 1984); Michael J. Gerhardt, The Federal 
Impeachment Process: A Constitutional and Historical Analysis 217-27 
(Princeton University Press, 1996); Melton, supra note 14, at 278-319; 
Barrett Dick, A Researcher's Guide to the ``Watergate Affair'' Part 1, 
71 Law Libr. J. 77 (1978); Barrett Dick, A Researcher's Guide to the 
``Watergate Affair'' Part 2, 71 Law Libr. J. 266 (1978); Barrett Dick, 
A Researcher's Guide to the ``Watergate Affair'' Part 3, 71 Law Libr. 
J. 420 (1978).
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III. Historical Impeachment Proceedings against Members of Congress
    The first impeachment proceedings against a United States official 
occurred in 1797, against a Tennessee Senator named William Blount. He 
was accused of secretly conspiring with British forces to liberate 
Spanish-controlled Louisiana.\21\ The impeachment went on for eighteen 
months before its final resolution.\22\ The House impeached Blount, but 
the Senate dismissed the charges on the grounds that it did not have 
jurisdiction over the impeachment.\23\
---------------------------------------------------------------------------
    \21\ Buckner F. Melton, Jr., Federal Impeachment and Criminal 
Procedure: The Farmers' Intent, 52 Md. L. Rev. 437, 433 (1993).
    \22\ Id. at 444.
    \23\ Melton, supra note 14, at 232; See Steven W. Fitschen, 
Impeaching Federal Judges: A Covenantal and Constitutional Response to 
Judicial Tyranny, 10 Regent U. L. Rev. 111, 125 (1998).
---------------------------------------------------------------------------
    Since that time, no Senator or Representative has been 
impeached.\24\
---------------------------------------------------------------------------
    \24\ See Harold Baer, Jr., How Serious is the Threat of 
Impeachment? and to Whom?, 96 Mich. L. Rev. 1598 (1998) (stating that 
the Constitutional language targets the Executive Branch and the 
Judicial Branch but not the Legislative Branch while reviewing 
Gerhardt's book).
---------------------------------------------------------------------------
IV. Historical Impeachment Proceedings against Judges
    The next impeachment proceedings were brought six years later, in 
1803, against Judge John Pickering, a U.S. District Court Judge for the 
District of New Hampshire. His articles of impeachment listed issuing 
an order in violation of a Congressional act, refusing to allow 
witnesses to testify in a case, refusing to allow an appeal of a case, 
as well as drunkenness and blasphemy.\25\ It is commonly understood by 
historians that Pickering was ``frequently drunk and mentally 
deranged.'' \26\ This is clearly impeachable conduct on the part of a 
federal judge. Pickering was convicted by a vote of 19 to seven, and 
removed from office by a vote of 20 to six.\27\ This was the beginning 
of an expansive reading of the standard for the impeachment of federal 
judges.\28\
---------------------------------------------------------------------------
    \25\ Fitschen, supra note 23, at 125 (citing 8 Annals of Cong. 319-
22 (1803-1804)).
    \26\ Barry Friedman, ``Things Forgotten'' in the Debate Over 
Judicial Independence, 14 Ga. St. U. L. Rev. 737, 740 (1998).
    \27\ Baer, supra note 24; 8 Annals of Cong. 367 (1803-1804).
    \28\ Baer, supra note 24.
---------------------------------------------------------------------------
    One year later, in 1804, Samuel Chase, an associate justice of the 
U.S. Supreme Court, was tried under eight articles. He was accused of 
inappropriate treatment of attorneys, grand juries, juries, and 
witnesses, as well as violating the trial rights of defendants.\29\ 
History tells us that Chase was roundly disliked,\30\ and yet he was 
ultimately acquitted by the Senate.\31\ As one scholar has noted, ``the 
Senate balked at using impeachment as a tool to control judges who were 
merely errant, rather than criminal, corrupt, or incompetent.'' \32\ 
This indicates that impeachment proceedings are not a tool to be used 
when Congress merely dislikes a particular judge; rather, impeachment 
and conviction should be used only for serious misbehavior or actual 
criminal activity.
---------------------------------------------------------------------------
    \29\ Fitschen, supra note 23, at 125 (citing 5 Annals of Congress 
728-31 (1804)); see Rehnquist, supra note 17, at 15-113 (comprising a 
recent history of the Chase impeachment).
    \30\ See Susanna Sherry, Judicial Independence: Playing Politics 
with the Constitution, 14 Ga. St. U. L. Rev. 795, 805 (1998).
    \31\ Id.
    \32\ Id.
---------------------------------------------------------------------------
    Things were quiet for several years, until 1830 when Judge James H. 
Peck, U.S. District Court Judge for the District of Missouri, was 
brought up on charges of arbitrarily holding an attorney in contempt of 
court.\33\ On January 31, 1831, Judge Peck was acquitted of the charges 
brought against him.\34\ Here again, the Senate believed that judicial 
conduct did not warrant conviction.
---------------------------------------------------------------------------
    \33\ Fitschen, supra note 23, at 125.
    \34\ Arthur J. Stansbury, Report of the Trial of James H. Peck 474 
(Hilliard, Gray and Co., 1833).
---------------------------------------------------------------------------
    In 1862, West H. Humphreys, U.S. District Judge for the Eastern, 
Middle, and Western Districts of Tennessee, had seven articles of 
impeachment brought against him for supporting secession and acting as 
a judge for the Confederacy.\35\ These articles are clearly aimed at 
behavior contrary to what is acceptable for a federal judge. He was 
acquitted on one sub-part, but he was convicted on all other 
articles.\36\ He was ousted from his office and prohibited from holding 
office again.\37\
---------------------------------------------------------------------------
    \35\ Fitschen, supra note 23, at 125; see Gerhardt, supra note 20, 
at 53.
    \36\ Fitschen, supra note 23, at 125.
    \37\ Id.
---------------------------------------------------------------------------
    Eleven years later, in 1873, Mark W. Delahay, U.S. District Judge 
for the District of Kansas, was almost impeached for ``unsuitable 
personal habits'' as well as drunkenness and questionable financial 
dealings.\38\ Delahay resigned, however, before the articles could be 
drafted, so the House took no further action.\39\
---------------------------------------------------------------------------
    \38\ Gerhardt, supra note 20, at 53.
    \39\ Fitschen, supra note 23, at 125.
---------------------------------------------------------------------------
    In 1904, U.S. District Judge for the Northern District of Florida, 
Charles Swayne, was accused of submitting false expense accounts, using 
a railroad car in the possession of a receiver appointed by him without 
permission, residing outside of his district, and holding attorneys in 
contempt unlawfully.\40\ He was acquitted of all charges.\41\
---------------------------------------------------------------------------
    \40\ Id. (citing 39 Cong. Rec. 214-49 (1904-1905)).
    \41\ Id. (citing 39 Cong. Rec. 3,468-72 (1905)).
---------------------------------------------------------------------------
    In 1912, Commerce Court Judge Robert W. Archbald was brought up on 
13 articles involving ``influence peddling'' with litigants.\42\ He was 
acquitted on eight articles, convicted on five articles, removed from 
office and disqualified from ever holding office again.\43\ Some have 
argued that while these offenses rise to the level of impeachment for 
Federal judges, they would not for the President.\44\
---------------------------------------------------------------------------
    \42\ Fitschen, supra note 23, at 125 (citing 48 Cong. Rec. 8,904-34 
(1912)); see Gerhardt, supra note 20, at 53.
    \43\ Id.
    \44\ See Berger, supra note 9, at 93; see infra notes 68-75 and 
accompanying text (discussing different standards of impeachment for 
executive officers than for judges).
---------------------------------------------------------------------------
    The next impeachment of a federal judge occurred in 1926 when U.S. 
District Judge for the Eastern District of Illinois, George W. English, 
was brought up on five articles of impeachment involving disbarring 
lawyers, summoning members of the press and state officials to court 
inappropriately, issuing threats to jurors, favoring bankruptcy 
referees for appointment, permitting referees also to act as attorneys 
in their cases, benefitting personally from collusion with referees, 
and using profanity.\45\ English resigned before the Senate trial 
began. The House requested that the Senate put an end to the 
proceedings, and the Senate agreed.\46\
---------------------------------------------------------------------------
    \45\ Fitschen, supra note 23, at 125 (citing 67 Cong. Rec. 6,283-87 
(1926)); see Gerhardt, supra note 20, at 24.
    \46\ Fitschen, supra note 23, at 125 (citing 68 Cong. Rec. 302, 348 
(1926)).
---------------------------------------------------------------------------
    Seven years later, in 1933, U.S. District Judge Harold Louderback, 
for the Northern District of California, was brought up on charges of 
setting up a false residence in anticipation of his wife seeking a 
divorce, and improper conduct with regard to bankruptcy receiver.\47\ 
He was acquitted of the charges.\48\
---------------------------------------------------------------------------
    \47\ Fitschen, supra note 23, at 125 (citing 76 Cong. Rec. 4,914-16 
(1933)).
    \48\ Id. (citing 77 Cong. Rec. 4,088 (1933)).
---------------------------------------------------------------------------
    In 1936, Halstead L. Ritter, U.S. District Court Judge for the 
Southern District of Florida, was brought up on seven articles 
involving corruption, acting as a lawyer while serving as a federal 
judge, and income tax evasion.\49\ He was acquitted of the first six 
articles which contained the specific allegations, but the story was 
different with the seventh.\50\ The last article charged that the 
consequence of his conduct as spelled out in the first six articles was 
``to bring his court into scandal and disrepute, to the prejudice of 
said court and public confidence in the administration of justice. . . 
.'' \51\ He was removed from office.\52\ As stated by one scholar, 
``Thus misconduct which fell short of a specific criminal offense (for 
so the specific acquittals are to be understood) could yet constitute a 
`high Crime and Misdemeanor' [for a judge] because it degraded the 
court.'' \53\
---------------------------------------------------------------------------
    \49\ Id. (citing 80 Cong. Rec. 3,066-69 (1936)).
    \50\ Berger, supra note 9, at 56.
    \51\ Id. (quoting the article of impeachment); see Gerhardt, supra 
note 20, at 53.
    \52\ Fitschen, supra note 23, at 125 (citing 80 Cong. Rec. 5,602 
(1936)); see Gerhardt, supra note 20, at 53.
    \53\ Berger, supra note 9, at 56. Ritter was convicted of bringing 
his court ``into scandal and disrepute'' partly because he accepted 
substantial gifts from wealthy residents of his district. Id. at 92-93.
---------------------------------------------------------------------------
    In 1986, four articles of impeachment were drafted against Judge 
Harry E. Claiborne, U.S. District Court Judge for the District of 
Nevada.\54\ The judge had been convicted by a court of income tax 
evasion, but he refused to resign from his judgeship.\55\ He was 
convicted on three articles, and then removed from office.\56\
---------------------------------------------------------------------------
    \54\ Fitschen, supra note 23, at 125 (citing 132 Cong. Rec. 17,294-
95 (1986)).
    \55\ Id.; see Gerhardt, supra note 20, at 53.
    \56\ Fitschen, supra note 23, at 125 (citing 132 Cong. Rec. 15,759-
64 (1986)).
---------------------------------------------------------------------------
    In 1988, Alcee L. Hastings, U.S. District Court Judge for the 
Southern District of Florida, had 17 articles of impeachment drafted 
against him.\57\ He was accused of accepting a bribe, telling lies and 
submitting untrue evidence during his criminal trial, and divulging 
wire tap information. He was acquitted on three of the articles, 
convicted on eight of the articles, and the Senate chose not to vote on 
six of the articles.\58\ He was removed from office. He was not 
prohibited from ever holding future office, however, and he was elected 
to the House of Representatives in 1992.\59\
---------------------------------------------------------------------------
    \57\ Id. (citing 134 Cong. Rec. 20,206-07 (1988)).
    \58\ Id. (citing 134 Cong. Rec. 25,330-35 (1989)).
    \59\ Baer, supra note 24.
---------------------------------------------------------------------------
    In 1989, U.S. District Court Judge Walter L. Nixon, Jr., for the 
Southern District of Mississippi, had three articles of impeachment 
drafted against him, for perjuring himself before a grand jury, a crime 
for which he had previously been convicted at trial.\60\ He was 
acquitted by the Senate on one article, convicted on two of the perjury 
counts by votes of 89 to eight and 78 to 19,\61\ and removed from 
office.
---------------------------------------------------------------------------
    \60\ Fitschen, supra note 23, at 125 (citing 135 Cong. Rec. 8,814-
15 (1989)).
    \61\ Robert S. Peck, Jurist Before the Bench, 79 A.B.A. J. 56 
(1993).
---------------------------------------------------------------------------
    More recently, a District Judge for the Eastern District of 
Louisiana, Robert Collins, was convicted in a jury trial for bribery, 
obstruction of justice, and conspiracy to defraud the United 
States.\62\ In late June of 1993, the United States Judicial Conference 
voted to issue a formal impeachment certificate to the House.\63\ House 
impeachment resolutions were introduced against Judge Collins both 
before and after the House received the Judicial Conference 
certificate.\64\ In that same month, the Speaker of the House, Tom 
Foley, officially recommended that the House Judiciary Committee begin 
an impeachment inquiry against Judge Collins.\65\ Judge Collins 
resigned, in September 1993, from his federal prison cell in 
Florida.\66\
---------------------------------------------------------------------------
    \62\ Victor Williams, Third Branch Independence and Integrity 
Threatened by Political Branch Irresponsibility: Reviewing the Report 
of the National Commission on Judicial Discipline and Removal, 5 Seton 
Hall Const. L.J. 851, 913 (1995).
    \63\ Id. at 915.
    \64\ Id.
    \65\ Id.
    \66\ Id. Even more recently district Judge Robert Aguilar of the 
Northern District of California tried to influence a fellow judge's 
decision on behalf of a relative, informed a relative of an FBI 
wiretap, and was recorded telling a lawyer the way to lie to a grand 
jury to cover up his relationship with the judge. ``After being 
convicted for illegally disclosing a wiretap and attempting to obstruct 
a grand jury investigation, an en banc appeal reversed the conviction 
on the grounds that the wiretap had already expired when Judge Aguilar 
had disclosed its existence to his relative. Judge Aguilar remained on 
the bench, although his case load did not include criminal matters or 
civil matters involving the government, until he retired (with full 
benefits) in 1996, seven years after his indictment.'' Hon. Leif M. 
Clark and Douglas E. Deutsch, The Delaware Gap: Exposing New Flaws in 
the Scheme of Bankruptcy Referrals, 5 Am. Bankr. Inst. L. Rev. 257, 
n.235 (1997).
---------------------------------------------------------------------------
    What does this list of impeachments tell us? It's hard to say.\67\ 
One thing that it tells us is that only seven federal judges have 
actually been convicted. It also tells us that for a judge to be 
convicted requires serious misconduct, which can be anything from 
chronic drunkenness to conviction for criminal offenses.
---------------------------------------------------------------------------
    \67\ See 67 Cong. Rec. 6,283 (March 25, 1926) where the House of 
Representatives stated, ``Each case of impeachment must necessarily 
stand upon its own facts. It can not, therefore, become a precedent or 
be on all fours with every other case.''
---------------------------------------------------------------------------
    The conclusion that one draws from the impeachment history of 
judges is that allegations of felonious conduct warrant impeachment and 
conviction while allegations of lesser conduct, termed lack of good 
behavior, have not always been found sufficient. I lean to limiting 
impeachment of judges to the concept developed in the last half of this 
century of requiring proof of a conduct tantamount to a serious crime 
as a basis for impeachment.\68\ Behavioral excesses can generally be 
left to the several federal judicial councils under Title 29 of the 
United States Code.
---------------------------------------------------------------------------
    \68\ See Gerhardt, supra note 20, at 53.
---------------------------------------------------------------------------
    While these cases involving federal judges give some guidance, they 
don't clearly delineate a path for Presidential impeachment 
proceedings.
    Article III, Section 1 of the Constitution states in part, ``The 
Judges, both of the supreme and inferior Courts, shall hold their 
Offices during good Behaviour. . . .'' \69\ Many questions arise 
regarding how to read this clause in connection with the impeachment 
clause in Article II. Some commentators maintain that the good behavior 
clause does not create a basis for removal other than those specified 
in the impeachment clauses.\70\ These commentators believe that the 
good behavior clause merely provides federal judges with the special 
status of life tenure,\71\ in contrast to the President or Vice 
President, who are elected for terms of years. They read the 
impeachment clause as adding that the life tenure of a federal judge 
may be interrupted or ended prematurely only by removal for an 
impeachable offense, not general ``misbehavior.'' \72\ In contrast, 
other commentators argue that the good behavior and impeachment clauses 
only make sense if they are read together as providing that federal 
judges have life tenure, subject to removal for an impeachable misdeed 
or for having engaged in misbehavior.\73\ ``Essentially, these 
commentators maintain that federal judges are subject to a loose 
impeachment standard because they are removable for misbehavior while 
all other impeachable officials are removable--by impeachment--only for 
`Treason, Bribery, or other high Crimes and Misdemeanors.' '' \74\
---------------------------------------------------------------------------
    \69\ U.S. Const. art. III, Sec. 1.
    \70\ See Gerhardt, supra note 1, at 65.
    \71\ See id.
    \72\ See id.
    \73\ See id. at 66.
    \74\ Id.
---------------------------------------------------------------------------
    This second view appears to me to be the only one that makes 
sense.\75\ Judges have life tenure; this is one thing that 
distinguishes them from the President, Vice President, and other civil 
officers. Since they are not subject to elections, their behavioral 
standards while in office are more strict than those of the President, 
the Vice President, and other civil officers. Judges are removable for 
``misbehavior'' as well as treason, bribery, or other high crimes and 
misdemeanors, whereas those who serve for limited terms are removable 
only for treason, bribery, or other high crimes and misdemeanors. It is 
clear that some federal judges have been removed for misbehavior--
Pickering for drunkenness, Ritter for bringing the court into scandal. 
It is to be noted that more recently, it seems that Congress is only 
willing to bring impeachment proceedings against judges if there has 
been a conviction for a crime, as in the cases of Claiborne, Collins, 
and Walter Nixon.\76\ In the case of Judge Hastings, he was acquitted 
by a jury, but impeached by the Senate for the same conduct.\77\
---------------------------------------------------------------------------
    \75\ It is interesting to note that frequently the House 
resolutions for impeachment say that a judge should be ``impeached for 
misbehavior and for high crimes and misdemeanors.'' See, e.g., 48 Cong. 
Rec. 8,904 (July 12, 1912) (emphasis added).
    \76\See Gerhardt, supra note 20, at 53.
    \77\ See id. at 60-62.
---------------------------------------------------------------------------
    Because the standards for federal judges and the President are not 
the same, however, the articles of impeachment against federal judges 
don't tell us all we need to know about Presidential impeachment 
proceedings. We must therefore look to the only precedents that we have 
regarding Presidential impeachments to see if they enlighten us any 
further.
V. Historical Impeachment Proceedings against Members of the Executive 
        Branch \78\
---------------------------------------------------------------------------
    \78\ In 1876, William W. Belknap, Secretary of War, became the 
second executive official to be brought up on articles of impeachment. 
He was accused of bribery. He was never convicted, however, because he 
resigned, and the Senate acquitted him for that reason. Fitschen, supra 
note 23, at 125.
---------------------------------------------------------------------------
    It is important to remember that no President has ever been 
convicted by the Senate and removed from office. In 1868, however, 
President Andrew Johnson had the dubious honor of coming very close. At 
that time, President Johnson was impeached by the House for the removal 
of his Secretary of War, Edwin M. Stanton, in violation of the Tenure 
of Office Act, which sought to make removal of the Secretary of War 
dependent upon the Senate's consent.\79\ President Johnson believed 
that the Tenure of Office Act was unconstitutional with regard to the 
removal provision in that it invaded Presidential constitutional 
prerogatives.\80\ He was also charged with attempting to bring into 
``disgrace, ridicule, hatred, contempt, and reproach the Congress of 
the United States'' and making and delivering ``with a loud voice 
certain intemperate, inflammatory and scandalous harangues . . . amid 
the cries, jeers and laughter of the multitudes then assembled.'' \81\
---------------------------------------------------------------------------
    \79\ Fitschen, supra note 23, at 125; Berger, supra note 9, at 260. 
Within 24 hours of the firing of Stanton, the House of Representatives 
had passed a resolution of impeachment against President Johnson. Jack 
Beaudon, The Impeachment of a President, 131 Scholastic Update 18 
(1998); see generally Michael Les Benedict, The Impeachment and Trial 
of Andrew Johnson (W.W. Norton & Co., 1973).
    \80\ See Berger, supra note 9, at 252.
    \81\ Beaudon, supra note 79 (quoting 10th article of impeachment 
against President Andrew Johnson).
---------------------------------------------------------------------------
    At the time that the articles of impeachment were drafted against 
him, President Johnson had fallen out of favor with Congress: ``When 
the impeachment finally arrived, every one accepted the fact that the 
breach of the Tenure of Office Act was not the real cause of the 
impeachment; it was necessary to prove a specific breach of the law but 
the reason was the need to demonstrate that a President could not 
pursue a policy rejected by the legislature.'' \82\ As one commentator 
noted, in light of the bias against President Johnson, ``the proceeding 
reeked with unfairness, with palpable prejudgment of guilt.'' \83\
---------------------------------------------------------------------------
    \82\ Berger, supra note 9, at 262-63 (quoting W.R. Brock, An 
American Crisis: Congress and Reconstruction (Macmillan, 1963)).
    \83\ Berger, supra note 9, at 264.
---------------------------------------------------------------------------
    The House of Representatives agreed to the articles of impeachment 
on March 3, 1868, and presented them to the Senate on March 5th. The 
court was convened on March 13th.\84\ President Johnson was not allowed 
the time that he requested to prepare, and was not given the time he 
requested when one of his defense counsel got sick.\85\ Some have 
argued that the evidentiary rulings during the trial were biased 
against the President.\86\ Ultimately, President Johnson escaped 
conviction when the Senate fell short of the two-thirds required by the 
Constitution by only one vote.\87\ ``Had [the impeachment] succeeded, 
no President, in the words of Senator Trumbull, would `be safe who 
happens to differ' with the Congress `on any measure deemed by them 
important.' '' \88\ Clearly, that is not what the Framers intended.
---------------------------------------------------------------------------
    \84\ Id. at 267.
    \85\ Id. at 267-68.
    \86\ Id. at 268.
    \87\ Id. at 252.
    \88\ Id. at 295.
---------------------------------------------------------------------------
    Perhaps the most famous of all impeachment proceedings are those 
against President Richard Nixon in 1974. The House Judiciary Committee 
approved three articles of impeachment against President Nixon on July 
27, 1974, for obstructing justice, abusing his executive power, and 
refusing to comply with House Judiciary Committee subpoenas.\89\ On 
August 8, 1974, however, President Nixon resigned. As a result, the 
impeachment inquiry ended.\90\
---------------------------------------------------------------------------
    \89\ Donald C. Smaltz, The Independent Counsel: A View From Inside, 
86 Geo. L.J. 2307, 2319 (1998).
    \90\ Id. at 2320.
---------------------------------------------------------------------------
    What do these Presidential impeachment inquiries tell us? They tell 
us that no President has ever been convicted. They tell us that 
impeachment inquiries are so serious that they've only been instituted 
twice against the Executive since the ratification of the Constitution. 
Clearly, this is not a process to be entered into lightly.
    As I said when I reviewed Dr. Melton's recent book, The First 
Impeachment: The Constitution's Framers and the Case of Senator William 
Blount, unlike most other types of proceedings, there are no legal 
precedents as such for impeachment inquiries because the impeachment 
power is congressional and sui generis. The federal law of impeachment 
is all history, and with regard to the impeachment of presidents, the 
Johnson and Nixon cases are the only history that we have.
    President Johnson was charged with overtly violating a specific 
statute, among other things. He was not convicted. President Nixon was 
charged with obstruction of justice, abuse of power, and refusal to 
comply with Committee subpoenas. He resigned before the Senate heard 
his case.
    The charges against these Presidents were very serious in nature, 
and they related directly to these Presidents' exercise of executive 
power.\91\ That is as it should be. ``[T]he Founders were but 
reflecting English sentiment, as was well put by Solicitor General, 
later Lord Chancellor, Somers, who stated in Parliament in 1691 that 
`the power of impeachment ought to be, like Goliath's sword, kept in 
the temple, and not used but on great occasions.' '' \92\ An 
impeachment inquiry should be used rarely, and when it is used, it 
should be limited to indictable crimes that relate to a President's 
ability to carry out his duties effectively. If the Framers had wanted 
to limit a President's term to ``good behavior,'' they could have done 
so. That is the standard they imposed for judges, but it is not the 
standard they imposed for the President. To allow the impeachment of a 
President for ``misbehavior'' is to do exactly what the Framers feared: 
create an impeachment process that essentially amounts to ``a tenure 
during the pleasure of the Senate.'' \93\ Trying a President for 
misbehavior diminishes the gravity of the impeachment process, and 
opens the impeaching body up to criticism that it is biased and 
partisan. A President must only be impeached for treason, bribery, or 
other high crimes and misdemeanors. I believe that the best way to 
define ``high crimes'' is activity that is indictable as a felony.
---------------------------------------------------------------------------
    \91\ See John F. Harris, 400 Historians Denounce Impeachment, 
Washington Post, October 29, 1998, at A4 (quoting an open letter from 
400 historians to say, ``Although we do not condone President Clinton's 
private behavior or his subsequent attempts to deceive, the current 
charges against him depart from what the Framers saw as grounds for 
impeachment.'' The letter goes on to say that the drafters of the 
Constitution ``explicitly reserved'' impeachment for ``high Crimes and 
Misdemeanors in the exercise of executive power.'').
    \92\ Berger, supra note 9, at 88 (quoting 5 New Parl. Hist. 678 
(1691)).
    \93\ See Farrand, supra note 12, at 550.
---------------------------------------------------------------------------
VI. Conclusion
    If the President were indicted and convicted of a felony, such as 
perjury or obstruction of justice or witness tampering, before 
impeachment proceedings began, would anyone argue that he should 
continue to be President? I don't think so. If the President were 
subsequently indicted and convicted of a felony, which the Constitution 
clearly allows, would anyone argue that he should continue to be 
President? I don't think so. A President cannot faithfully execute the 
laws if he himself is breaking them. Since this is such a fundamental 
concept, an impeaching body might well limit itself to inquiring into 
allegations of conduct that clearly constitutes a high crime. Without 
this limitation on the inquiry, the process could be viewed as 
politically driven and arguably outside the bounds of the Constitution. 
Congress should be at pains to spare the nation a debate over 
partisanship in assessing the validity of charges involving felonious 
conduct by the President.
    The statutes against perjury, obstruction of justice and witness 
tampering rest on vouchsafing the element of truth in judicial 
proceedings--civil and criminal and particularly in the grand jury. 
Allegations of this kind are grave indeed. The nation will be well 
served if the proceedings in the House to determine whether there is a 
basis for trial of one or more of such allegations by the Senate can be 
conducted with the same solemnity that the founding fathers foresaw in 
the constitutional requirement that the Chief Justice of the United 
States preside at the trial in the Senate if the President is charged.

    Mr. Canady. Thank you, Judge Bell.
    Professor Pollitt.

 STATEMENT OF DANIEL H. POLLITT, GRAHAM KENAN PROFESSOR OF LAW 
      EMERITUS, UNIVERSITY OF NORTH CAROLINA SCHOOL OF LAW

    Mr. Pollitt. Thank you very much. I would like to thank----
    Mr. Canady. I think your microphone is not on. At the base 
there there is a switch.
    Mr. Pollitt. Thank you. I would like to thank Mr. Hyde for 
the kind invitation to come here today, and I would like to 
thank Mr. Watt for making it possible. I had the best seat in 
the House for the earlier go-round and enjoyed listening to it 
very much. I submitted a 32-page statement, and as I listened, 
practically every sentence in my statement was stolen by 
somebody else. So I don't have much to add, so I am going to be 
short. I am doing that even though my wife and family are home 
expecting to watch as I pontificate.
    I would just like to emphasize a few points. I do think 
that the concept of high Crimes and Misdemeanors has a meaning, 
has a meaning in the Constitution. It is not something, as 
Gerald Ford said, that depends upon the individual. And the 
meaning comes from the constitutional history, which started in 
1776 when the colonies got their independence, and they had 
experienced imperial governors who sometimes were hostile. So 
they wrote into their early constitutions clauses similar to 
that of Virginia, which authorized the impeachment of the 
governor and those offending against the state by which the 
safety of the state may be endangered.
    So the offense in the early 1776 constitutions consisted of 
offenses against the state, jeopardizing the safety of the 
state.
    Then we move on to the Constitutional Convention where 
there were three disparate theories about impeachment. There 
were those who thought that the President should be impeachable 
by the Senate, willy-nilly. One thought was upon a petition of 
the executive, majority of the executives of the States. A 
similar one, but slightly different, was upon a petition by the 
legislative bodies of a majority of the States, and the third 
one in that was whenever the Senate wants to.
    Well, this was abhorrent to some of the framers because 
this would make the executive a creature of the Senate. So they 
were against impeachment for any reason. Their theory was that 
the President will be in office for 4 years; let the political 
process save us from any tyrants. And then there was a middle 
body which said, if the President really does something vicious 
and mean and endangers the safety of the state, he should be 
impeachable. And that was the ground which won out. The vote, 
the final vote, was 8-to-3 in favor of the language that the 
President and other civil officers shall be impeachable for 
treason, bribery and other high Crimes and Misdemeanors against 
the state. The words ``against the state'' were in the 
proposition which was adopted by the States. Then it went to 
the committee on style, and the committee on style was 
authorized to change the style, but not to change the 
substance. So the committee on style eliminated the phrase 
``against the state'' believing that the substance still was 
there.
    And then the third step was the ratification debate, and in 
the ratification, and in North Carolina, it was explained that 
again where treason, treachery, treachery and bribery was 
referred to in the debate in terms of Louis XIV of France 
putting Charles II of England on his payroll, and that was the 
treachery and that was the bribery that they were talking about 
at the Constitutional Convention.
    But it was mentioned--in the North Carolina ratification 
debate, falsehoods was mentioned, and they said the President 
should be impeached if he deliberately misleads the Senate into 
action which is detrimental to the country. Now, that is the 
closest anybody came to perjury, but they talked about 
falsehoods, the President deliberately lying to the Senate to 
induce the Senate into conduct which is detrimental to the 
country.
    Well, that's the background, and the impeachment is like 
the atom bomb. It is there, but it shouldn't be used very 
often, and as Judge Bell just indicated, it has not been used 
very often. And ever since 1808, it has only been used, except 
in the one case of treason, when there is easy money involved, 
somebody succumbs to the lure of easy money. That is when we 
impeach.
    For example, we had two judges. One of them was indebted to 
a Senator, and he appointed the Senator's son to the lucrative 
bankruptcy posts. The other Senator gave the good bankruptcy 
assignments to his old law firm. The one who gave them to the 
Senator's son did not get any kickbacks, and he was not 
convicted. The one who gave it to his old law firm got 
kickbacks, and he was convicted. So money and bribery has been 
the root, the lure of money has been the root of all of our 
impeachments.
    So to conclude this little section, an impeachable offense 
is a serious offense against the state. There are a few other 
things which were not mentioned, probably rightly so, but 
nobody has talked about sex yet, and I will just briefly.
    Briefly, sexual impropriety is not an impeachable offense. 
We learned that very early on in the case of Alexander 
Hamilton. Alexander Hamilton was the Secretary of the Treasury. 
There were suggestions that he and a Mr. Reynolds were into 
some shenanigans involving money, because Hamilton had gotten 
Reynolds out of jail and had given him money. So it was 
suspicious. But Hamilton explained, no, no, no, nothing wrong, 
I am sleeping with his wife, and she told him about it, and I 
have to give him hush money to shut him up. And they went to 
Washington and Vice President Adams and Secretary of State 
Jefferson, and they all agreed, let's hush it up. It has 
nothing to do with affairs--damages to the state.
    Then we had Jefferson, and everybody now knows about Sally 
Hemings, but very few people know about the Walker affair. 
Jefferson tried to make out with Mrs. Walker, who was the wife 
of his best friend, and she told her husband, and Walker wrote 
to their mutual friends saying that Jefferson had sent notes to 
his wife suggesting, there is nothing wrong with a little 
dalliance, and waited for her in her bed chamber; and the 
accusations came to Jefferson, and he wrote, when young and 
single, I offered love to a handsome lady; I acknowledge its 
incorrectness.
    And I think that is enough. Although I just found out in an 
obituary of Woodrow Wilson's doctor that he had had an 
extramarital affair with a lady named Mary Peck while he was 
the President. So it is not unique in our history.
    The question was asked of the earlier panel, don't we need 
to know some more facts? And I think we do need to know some 
more facts. It has been assumed, I believe, in the questioning 
that we don't have sex here, we have perjury, perjury, perjury. 
Well, do we have perjury?
    Perjury has been on the books since the 16th century under 
the Supreme Court who has said, the law has built a fence 
around the law of perjury to protect from vicious prosecutions. 
And one of the requirements, one of the parts of the fence we 
have is that there must be precise questioning. Precise 
questioning is imperative as a predicate for the offense of 
perjury.
    Now, Clinton was asked, did you ever have sexual relations 
with Monica Lewinsky?
    What do we mean by ``sexual relations''? Is that a definite 
question? Could it include relations without sexual 
intercourse? So it is a little vague here.
    Now, when you look at the answer, you must be willfully 
false, and there is no perjury when the witness, quote, ``spoke 
his true belief.''
    Now, if Clinton interpreted sexual relations to include 
sexual contact, then he spoke his true belief when he said 
there was no perjury, and it must be material. And as indicated 
earlier, Judge Wright in Arkansas has ruled that the 
questioning about Monica Lewinsky was inadmissible because 
dalliance with other women was not material to the allegations 
of Paula Jones. Paula Jones alleged that she had been the 
victim of a quid pro quo, that she had been subjected to 
serious and erroneous and pervasive hostile conditions, and 
that she had suffered tremendous emotional disturbances as a 
consequence. And Judge Wright ruled that whatever the President 
did with Monica Lewinsky was totally irrelevant to what was 
going on with Paula Jones.
    [The prepared statement of Mr. Pollitt follows:]
Prepared Statement of Daniel H. Pollitt, Graham Kenan Professor of Law 
          Emeritus, University of North Carolina School of Law
    On September 17,1998 President Clinton admitted on nationwide 
television to a ``relationship with Ms. Lewinsky, that was not 
appropriate. In fact, it was wrong.'' He thereby gainsaid earlier 
statements to the contrary, a denial of an affair when deposed in the 
Paula Jones lawsuit, on January 17, and a subsequent denial on 
television (``I did not have an affair with that woman'').
    Special Counsel Kenneth Starr reported to Congress that the 
President committed impeachable offenses for perjury in the Paula Jones 
deposition, and for ``obstructing justice'' when he concealed his 
sexual relationship with Ms. Lewinsky for this six month period.
    Did Clinton commit an impeachable offense (``treason, bribery and 
other high Crimes and Misdemeanors'') when he cheated on his wife and 
lied under oath about it?
    Not if we follow our history.
The Early State Constitutions
    The story begins in 1776 when the colonies declared their 
independence from Great Britain. They had felt the wrath of Imperial 
Royal Governors, and they wanted no more of it. They wrote impeachment 
clauses into their new constitutions authorizing the removal of 
officials for weighty crimes on high. Virginia provided that ``The 
Governor and others offending against the state . . . by which the 
safety of the state may be endangered,'' shall be impeachable by the 
House of Delegates. Delaware authorized impeachment of high officials 
``offending against the state either by maladministration, corruption, 
or other means by which the safety of the Commonwealth may be 
endangered.''
    So it went, up and down the eastern seaboard. Massachusetts 
authorized the removal of officers ``to prevent those who are vested 
with authority from becoming oppressors''; and North Carolina 
authorized impeachment of officials ``offending against the state by 
violating any part of this Constitution, maladministration or 
corruption.''
    The common theme of the colonial impeachment clauses was grave 
abuse of official authority against the state, all to the detriment of 
the public peace and security.
The Constitutional Convention
    This theme was continued when the Framers of our Constitution met 
in Philadelphia in the summer of 1787. The delegates argued fiercely 
whether the President should be impeachable at all, and if so, by what 
means and for what reasons.
    Debate began on these issues on June 2, shortly after agreement 
that there should be one President (rather than three; one from the 
North, one from the South, and the third from the middle states) 
elected by the National Assembly.
    John Dickenson (Delaware) opened the debate with the motion that 
the Executive be removable by the National Legislature on the request 
of ``a majority of the legislatures of the Individual states.'' Roger 
Sherman (Connecticut) countered that the National Legislature should 
have authority to remove the President ``at its pleasure.''
    George Mason (Virginia) was shocked at this proposal to make the 
``Executive the mere creature of the Legislature''; and Hugh Williamson 
(North Carolina) supported Mason with the proposal that the President 
be impeachable ``only on conviction of mal-practice or neglect of 
duty.''
    Debate continued on June 15 on William Paterson's (New Jersey) 
proposal that the National executive be removable ``on application by a 
majority of the Executives of the several states.'' Alexander Hamilton 
(New York) objected to this ``rudderless'' method of ousting a 
president and insisted on suitable grounds. He suggested ``mal corrupt 
conduct'' and a trial by a ``court consisting of the Chief Judge of 
each State.''
    Debate continued on July 20 on the proposal that the Chief 
Executive be removable on ``conviction for mal-practice or neglect of 
duty.''
    Charles Pinckey (South Carolina), Gouverneur Morris (Pennsylvania) 
and Rufus King (Massachusetts) objected to any impeachment clause 
whatsoever ``fearing from the independence of the executive.''
    William Davie (North Carolina), James Wilson (Pennsylvania) and 
George Mason (Virginia) disagreed entirely, and spoke for the necessity 
of impeachment ``when great crimes were committed.'' James Madison 
(Virginia) though it indispensable for some provision for ``defending 
the Community against the perfidy of the Chief Magistrate.'' Gouverneur 
Morris (Pennsylvania) was swayed by these arguments and became 
``sensible of the necessity of impeachments.'' He recalled that 
``Charles II (of England) was bribed by Louis XIV (of France)'' and 
concluded that the ``Executive ought therefore to be Impeachable for 
treachery.''
    There was one last debate on this issue. On September 8 the 
Committee of Eleven (one from each State) recommended that the 
President be impeachable ``for treason or bribery.'' George Mason 
(Virginia) thought this did not go far enough as ``treason will not 
reach many great and dangerous offenses.'' Primed by James Madison, 
Mason agreed to offer as a substitute for his initial, overly-vague 
suggestion of ``maladministration'' the phrase ``Treason, bribery and 
other high Crimes and Misdemeanors against the state.''
    The delegates adopted this proposal by vote of 8 to 3, and sent it 
to the Committee on Style and Arrangements. That committee had no 
authority to alter the substance of the agreement; and the deletion of 
the clause ``against the state'' can only mean that the Framers thought 
it redundant.
The Ratification Debates
    The Constitution was then sent to the states for ratification or 
rejection. In North Carolina, James Iredall told the convention that 
the Impeachment Clause was meant to guard against ``tyranny and 
oppression.'' He ``supposed that the only instances in which the 
president would be liable to impeachment would be where he had received 
a bribe'' or gave ``false information to the Senate to induce them to 
enter into measures injurious to their Country.''
    Alexander Hamilton echoed this theme in New York. He explained that 
impeachable offenses are those ``which proceed from abuse or violation 
of some public trust. They are of a nature'' he said ``which may with 
propriety be denominated POLITICAL.''
Impeachment In Practice
    Impeachment, like the atom bomb, is a weapon to be used only on 
very rare and very special occasions. The House has impeached a public 
official on only thirteen occasions, and the Senate has voted to 
convict only five.
    Senator William Blount of Tennessee was impeached in 1797 by the 
House for violation of the Neutrality Act when he organized an army of 
frontiersmen and Creek Indians to drive the Spanish out of Florida. The 
Senate dismissed the impeachment, probably because it thought a Senator 
not to be a ``civil officer,'' hence, not subject to impeachment 
proceedings. It had earlier expelled Blount pursuant to its authority 
to ``punish its members for disorderly behaviour.''
    Secretary of War William Belknap was impeached by the House in 1876 
for selling lucrative ``post-trader'' positions at Army Posts. He 
resigned hours after the impeachment vote. The Senate tried him anyway 
and voted to acquit. Many among those voting doubted the Senate's 
jurisdiction, Belknap no longer being a ``civil officer.''
    The House has impeached eleven federal judges. The first, John 
Pickering in 1804, resulted from political spleen. He had used his 
position on the Bench to hurry the conviction under the Sedition Act of 
1798 (which made it a crime to criticize a public official) of 
Jeffersonian office-seekers. When Jeffersonians won control of the 
House, the Senate, and the Presidency, it was pay back time. The Senate 
convicted him on the impeachment charge that he ``acted contrary to his 
trust and duty'' when he appeared on the Bench ``in a state of 
intoxication and in a most profane and indecent manner invoked the name 
of the Supreme Being.''
    Not since 1804, not since the Pickering impeachment, has the Senate 
convicted a federal judge on charges ranging from ``unjust, oppressive, 
and ``arbitrary rulings'' to ``gross abuse of power''; see, e.g. Samuel 
Chase, 1804; James H. Peck, 1831; Charles Swayne, 1904; and Harold 
Louderback, 1932. Louderback, for example, owed his appointment to 
Senator Samuel Shortridge, and saw to it that the son of his benefactor 
got more then his share of the lucrative bankruptcy receiverships. The 
impeachment charged that he had brought the ``administration of justice 
into disrepute'' with ``exorbitant allowances to personal and political 
friends.'' The Senator voted to acquit.
    The situation differs when the impeachment charges ``treason'' 
(West H. Humphreys was removed from his federal judgeship in 1862 when 
he abandoned his federal post, without resigning it, to accept a 
similar position under the Confederacy). And the Senate is quick to 
convict when ``bribery'' goes to the heart of the matter, when federal 
judges succumb to the lure of easy money: Robert W. Archbald (1912) was 
charged by the House and convicted by the Senate when he used his 
judicial office ``for his personal financial gain.'' A railroad 
currently in litigation before his court had financed a grand tour of 
Europe for the entire Archbald family. The judge subsequently approved 
the costs of the trip as part of the necessary expenses of operating 
the railroad. Halsted Ritter, 1936 (failed to report ``kick backs'' on 
his income tax return); Alcee Hastings (1989) (conspired to solicit a 
bribe); and Walter L. Nixon, 1989 (made false statement to a grand jury 
concealing a bribe). Andrew Johnson is the only President to have been 
impeached by the House and tried by the Senate. The Republicans 
selected him as the running mate for Lincoln in 1864, in the 
expectation that his being a Democrat from Tennessee would pull 
electoral votes. With Lincoln's assassination and war's end, the 
Reconstruction Congress and Reconciliation President were at 
loggerheads. Congress passed civil rights laws; Johnson vetoed them. 
Matters boiled over when Johnson sought to replace Secretary of War 
Edwin Stanton (tough on the South) with Lorenzo Thomas (forgiving of 
the South). It was a critical choice as the South was under military 
occupation. The House immediately impeached Johnson, alleging that he 
had violated the Tenure of Office Act, passed the previous year, which 
required enate approval for the removal of various executive officials. 
The House also charged Johnson with ``failing to execute the laws'' as 
required by the Constitution. The Senate voted to acquit, one vote 
short of the required two thirds majority to convict.
    The Republicans selected Grant as their next Presidential nominee 
(not the incumbent Johnson), but Tennessee returned him to the Senate. 
When he died, pursuant to his orders, he was buried wrapped in the 
American flag and his head put to rest on the Constitution.
    Clinton's enemies often draw a parallel between Nixon and Clinton. 
Each lied to the American people, and each stonewalled the lie. But 
here the parallel ends.
    President Nixon resigned after the House Judiciary Committee voted 
articles of impeachment against him: these alleged that he acted in a 
manner ``subversive of constitutional government''; that he had 
``repeatedly engaged in conduct violating the constitutional rights of 
citizens''; that he had impaired ``the due and the proper 
administration of justice''; and that he had contravened ``the laws 
governing agencies of the executive branch.'' In simple language, he 
burglarized, he wire tapped, he turned the IRS loose on political 
enemies, he misused the CIA and misled the FBI.
    In contrast, Clinton cheated on his wife, lied about it; and did 
his best for six months to cover it up. Certainly, as even he admits, 
not an honorable course of conduct. Adultery, yes, possibly even 
perjury. But impeachable offenses?
    Not if we recall the spirit that in 1776 motivated Virginia and the 
other states to authorize impeachment of those ``offending against the 
state by which the safety of the state may be endangered.''
    Not if we recall the Constitutional Convention where our 
forefathers authorized impeachment when ``great crimes were committed 
against the state.''
    Not if we recall the Ratification Debates where impeachable crimes 
were described as those ``which may with propriety be denominated 
POLITICAL.''
    Not unless we overlook consistent practice wherein the Senate has 
refused to convict absent the clearest cases of treason and bribery.
    Where, as in the Nixon Impeachment, is there conduct ``subversive 
of constitutional government?''
    Impeachment of President Clinton, simply put, would turn two 
hundred years of constitutional history on end.
Illicit Sex and Lying About It
    The Framers of our Constitution, many of whom sat in the early 
Congressional bodies, did not consider illicit sex, or even lying about 
it, an impeachable offense.
    The ink was hardly dry on the Constitution when the Congress, in 
1792, investigated allegations that Alexander Hamilton, the Secretary 
of the Treasury, had engaged in ``improper speculation'' with one James 
Reynolds. The Treasury Department had authorized his release from 
prison, and Hamilton had doled out periodic payments to him.
    Hamilton explained to the Investigating Committee (Representative 
Abraham Venable, Speaker Frederick Muhlenberg, and Senator James 
Monroe) that he had an on-going affair with Mrs. Reynolds, and was 
paying hush money to her husband. Hamilton's Confession of Adultery is 
in the current (November 1998) issue of Harper's Magazine.
    The Investigating Committee concluded that the matter was private, 
not public, and should best be kept secret. President Washington, Vice 
President Adams and Secretary of State Jefferson agreed.
    Some five years later James Callender, a muckraking journalist, got 
wind of the affair, and wrote that Hamilton's story was a lie, meant to 
cover up a darker entanglement. Hamilton responded with the ``Reynolds 
Pamphlet'' wherein he emphasized that there was ``no darker 
entanglement,'' that the entire episode concerned only his illicit 
sexual affair.
    There was no talk of impeachment, and his subsequent appointment to 
a high command post in the United States Army was speedily confirmed by 
the Senate.
    Thomas Jefferson was the next notable target of James Callender. In 
1802 Callender wrote in the Richmond, Virginia Recorder that ``the 
President has kept, as his concubine one of his own slaves'' and ``by 
this wench Sally (Hemings) our president has had several children.''
    There was no impeachment, and Jefferson was reselected 
overwhelmingly in 1804. William Safire, Spinning Jefferson in His 
Grave, Raleigh (N.C.) News and Observer, Nov. 3, 1998 p. 13.
    The subsequent Walker Affair outdid the Sally Hemings story in the 
way of a public scandal. John Walker and Thomas Jefferson were school 
mates, college chums, and best of friends, at least early on. But 
Jefferson made eyes at Mrs. Walker. She told her husband, who wrote a 
number of people that while he was away helping to negotiate a treaty 
with some Indians, Jefferson's conduct toward his wife was ``entirely 
improper.'' ``Jefferson,'' wrote Walker, tried to convince his wife 
``of the innocence of promiscuous love''; and on one occasion stole 
into her bedroom ``where my wife was undressing or in bed.'' On another 
occasion Jefferson lay in wait in the passage way outside her bedroom 
``ready to seize her on her way from her chamber indecent in manner.''
    The Walker correspondence fell into the hands of James Callender 
who, in 1802, gave the story wide currency. Jefferson admitted ``that 
when young and single I offered love to a handsome lady. I acknowledge 
its incorrectness.''
    That Jefferson made improper advance to his best friend's wife did 
not stand in his way to reselection. See Dumas Malone, Jefferson and 
His Time (Little Brown and Co., 1948, pp. 447 If.).
    Some early Vice Presidents shocked Washington society with their 
illicit affairs.
    Richard Mento Johnson (1837-41) of Kentucky was a ``war hawk'' 
during the war of 1812. He left his seat in Congress to lead a regiment 
of Kentucky back-woodsmen to battle the British and their Indian 
allies. He personally killed the famed Indian chief Tecumseh at the 
Battle of Detroit. This won him the admiration of the nation, and 
Andrew Jackson picked him as the running mate for Martin Van Buren in 
1833.
    But there was a dark side.
    Johnson took a slave woman named Julia Chinn as his common-law 
wife. When she died, he took another slave as his next wife. She ran 
away. Johnson tracked her down, and sold her at auction on the slave 
block. He then took her sister at his next wife.
    This did not sit well with Washington society, or with the 
electorate. Van Buren won the election hands down, but his running mate 
Johnson failed to garner a majority. Even his home state Kentucky 
failed to support him. For the only time in history the election of the 
vice president was decided in the Senate.
    Johnson won the election, but barely. Shunned by Washington 
society, he spent most of the next four years in Kentucky operating a 
spa and hotel. The Democrats dropped him from the ticket in 1840, 
leaving the spot blank. They chose not to nominate anyone. See Steve 
Tally, Bland Ambition. (Harcourt Brace Javanovich 1992, pp. 71 ff.).
    There is William Rufus De Vane King, the only bachelor Vice 
President. The Democrats in 1852 nominated Frankling Pierce of New 
Hampshire. They balanced the ticket with a southern slave holder. They 
hit upon King, the Senator from Alabama.
    He was an unlikely choice; an alcoholic dying of tuberculosis, and 
thought to be a homosexual. There was continued rumors of sexual 
liaisons with male slaves on his plantation, and for years he shared 
quarters with future president James Buchanan. Andrew Jackson called 
him ``Miss Nancy,'' his fellow senators ``Aunt Fancy.''
    He died after six weeks in office. No one thought to fill the 
vacancy. See Bland Ambition, p. 101.
    There is no need to continue through the decades.
    Those we elect to office are not gods or saints, but flesh-and-
blood humans. We do not think in terms of impeachment when they err; in 
their private sex lives for they are more to be pitied then censured.
Was It Perjury?
    The constant refrain from Clinton baiters is perjury, perjury, 
perjury. Why? Because history demands it. To cheat on one's spouse is 
not an impeachable offense (a high Crime and Misdemeanor). Not since 
1804 has the Senate upheld an impeachment charge absent violation of 
the criminal law, and a serious violation to boot. For example, the 
Nixon Impeachment Committee, under Chairman Rodino, was satisfied that 
Nixon had cheated on his income tax (by backdating a return to take 
advantage of an expired loophole), but concluded that criminal 
misconduct of a personal nature was not grounds for impeachment.
    Impeachment must be predicated on conduct totally incompatible with 
the constitutional obligations of the Presidential Office; and it is 
doubtful that perjury in a civil suit reaches the onerous requirements 
of an impeachable offense. Moreover, there even is doubt that Clinton 
is guilty of perjury.
    Detractors accuse President Clinton of hunkering down behind 
legalisms. Perhaps so. But if America is to comprehend the Presidential 
impeachment investigation (the third in our history), it is necessary 
to have a complete understanding of the commonly used legal 
terminology. The word ``perjury'' is at the top of this list.
    Perjury law has roots going back to the Perjury Statute of 1503, 
United States v. Dunnigan, 507 U.S. 87, 94 (1993) and, as the Supreme 
Court noted, ``has thrown a fence around a witness'' to protect from 
``hasty and spiteful retaliation.'' Bronston v. United States, 409 U.S. 
352, 359 (1973).
    Let's examine some of the parameters and contours of the law in the 
Clinton situation.
    Did he commit perjury on January 17, 1998 in the Paula Jones case 
when he answered ``No'' to the question, ``Did you ever have sexual 
relations with Monica Lewinsky?'' This negative response was not 
perjury for several overlapping reasons.
    First, the question asked must be unambiguous. Witnesses simply 
cannot be left to guess at what the questioner has in mind. Thus, Owen 
Lattimore could not be convicted of perjury when he denied to the 
Senate Internal Security Committee that he had not been ``a promoter of 
Communist interests,'' ``a follower of the Communist line.'' These 
questions, like the questions asked Clinton, failed the first 
requirement that ``precise questioning is imperative as a predicate for 
the offense of perjury.''
    Second, the testimony must not only be false, it must be wilfully 
false. There can be no perjury, wrote the Supreme Court, when the 
witness ``spoke his true belief.'' Bronston v. United States, 409 U.S. 
352, 355 Clinton asserts that in his mind, to have a ``sexual 
relationship,'' a ``sexual affair,'' one must have sexual intercourse, 
which was absent in the Clinton-Lewinsky relationship. With this 
understanding, Clinton ``spoke his true belief'' when he denied a 
``sexual affair.''
    Third, the falsehood must concern a ``material'' matter. Bronston 
v. United States, 409 U.S. 352, 357 In the Paula Jones case, Judge 
Wright ruled that the President's testimony regarding affairs with Ms. 
Lewinsky (or any other than Paula Jones) was ``inadmissible.'' It 
simply was not ``material,'' she wrote, to the core issues ``whether 
plaintiff herself was the victim of alleged quid pro quo or hostile 
work environment sexual harassment, or whether she suffered emotional 
distress so severe that no reasonable person could be expected to 
endure it.''
    Did the President, later, on January 27 commit perjury when he 
assured a nation-wide TV audience that he never had ``sexual relations 
with that woman, Ms. Lewinsky.'' Again, we must return to the 
President's ``true belief, that a ``sexual affair'' includes sexual 
intercourse. Moreover, perjury requires a false statement under oath, 
and the President was not under oath when he spoke to the nation.
    Finally, was there perjury when the President testified to the 
grand jury on August 17, and was asked a number of questions.
    First, the President was asked if he had committed perjury in his 
deposition in the Paula Jones case, and replied he had not. But if 
there was no perjury in the Jones case, as shown above, there was no 
perjury on this ground before the grand jury.
    Second, the President was asked ``whether Monica Lewinsky had 
performed oral sex on him.'' He replied: ``I did have a relationship 
with Ms. Lewinsky that was not appropriate. In fact, it was wrong.''
    The perjury statute does not reach an answer that is literally true 
``even if it might be considered ``unresponsive'' and even if it might 
be ``false by negative implication.'' Bronston v. United States, 409 
U.S. 352, 360 (1973) Here, of course, the President's answer was 
``literally true.'' It also could well be considered ``responsive,'' 
and certainly it was not ``false by implication.''
    Third and Fourth, the Special Counsel thinks the president should 
be impeached from office because (1) Lewinsky said the President 
touched her breasts and the President said he didn't; and (2) Lewinsky 
said the affair began in November of 1995 and the President said it did 
not begin until 1996.
    Were the President's answers ``designed to substantially affect the 
outcome,'' as required by perjury law? See United States v. Dunnigan, 
507 U.S. 87, at 95 (1993) One would not think so. In any event, the 
Special Counsel purports to forget the two witness rule, ``deeply 
rooted in past centuries,'' that a conviction for perjury ought not to 
rest entirely upon an ``oath against an oath.'' This special rule, 
which bars conviction for perjury solely upon the evidence of a single 
witness, rests on the fear that innocent witnesses might be ``harassed 
or convicted'' if a less stringent rule were adopted. Weller v. United 
States, 323 U.S. 606, 609 (1945)
    Special Counsel Kenneth Starr seems to agree. Nowhere does he use 
the word ``perjury'' when he lists the ``acts that may constitute 
grounds for impeachment.'' He contents himself with the allegation that 
President Clinton ``lied under oath.''
    Why this lollygagging? Why not come straight out and first hand 
accuse the President of ``perjury?'' One probable answer: Starr knows 
there was no perjury and hopes that a non-felonious ``lie under oath'' 
will suffice to unseat a president. This would create a novel 
``impeachable Offense'' and hopefully will not win the day.
    Clinton betrayed his wife, betrayed his friends, misled us all. But 
he did not commit perjury, did not violate the law, and above all, did 
not betray the Constitution.
The Twenty-Fifth Amendment
    Professor Black, in his book on impeachment, suggests that 
impeachable acts need not be criminal acts, so long as they are public 
acts having public consequences. He gives as an illustration a 
situation where the President moves to Saudi Arabia ``so he could have 
four wives,'' proposing ``to conduct the Presidency by mail.''
    Others ask: suppose the President murders his wife; should he not 
be impeachable for this?
    The complicated process of impeachment is not necessary to cope 
with such unlikely situations. There is a simpler and more direct 
constitutional route to handle such unlikely hypothetical. The Twenty-
Fifth Amendment provides in pertinent part:

          Section 4. Whenever the Vice President and a majority of 
        either the principal officers of the executive department or of 
        such other body as Congress may be law provide, transmit to the 
        President pro tempore of the Senate and the Speaker of the 
        House of Representative their written declaration that the 
        President is unable to discharge the powers and duties of his 
        office, the Vice President shall immediately assume the powers 
        and duties of the office as Acting President.

    Thank you very much. I hope I left some time.
    Mr. Canady. Well, as a matter of fact, you didn't. The red 
light has been on for several minutes there. But that's quite 
all right. We will now go to Professor McDonald.

  STATEMENT OF FORREST MCDONALD, HISTORIAN AND DISTINGUISHED 
      UNIVERSITY RESEARCH PROFESSOR, UNIVERSITY OF ALABAMA

    Mr. McDonald. Thank you. I can believe that Professor 
Pollitt in his written statement covered all the bases, because 
he covered an awful lot of them there, but as a biographer of 
Alexander Hamilton, there is something I can't let go.
    Hamilton did not get James Reynolds out of jail, all right, 
number one. Number two, when they took the evidence to 
somebody, they did not take it to George Washington or John 
Adams or Thomas Jefferson; they took it to three Congressmen--a 
Congressman Venable from Virginia, a Congressman named 
Muhlenberg, who was the Speaker of the House, from 
Pennsylvania, and a Congressman named James Monroe, who would 
appear on the pages of history later.
    At the outset, let me say that I shall offer here no policy 
recommendations. Unlike the 400 historians who signed a recent 
statement in The New York Times and which we have heard about 
today, I recognize that historians have no more qualifications 
for advising statesmen on current issues than do, say, plumbers 
or radiologists. Our province is the past, not the present, and 
the past is what I, for one, am qualified to talk about.
    I have been studying the origins and early evolution of the 
Constitution for half a century. I will have, as of next 
January, and on the basis of that study, I may be able to tell 
you something about the original understanding of the 
impeachment process that is not readily available in the 
published scholarship.
    Let me begin, as Professor Pollitt did, with 1776. 
Americans were so dismayed by what they considered as betrayal 
by King George III that, in forming their new governments, they 
established almost no executive branches at all. The Congress 
of the Confederation had no executive arm, and though most of 
the State constitutions provided for a governor or a president, 
none except New York vested him with substantive power, and 
most provided for impeachment for misconduct in several States; 
maladministration, several other States; corruption, other 
States; or any misdemeanor, the State of Pennsylvania. By the 
time the Federal Convention gathered in Philadelphia in 1787, 
they then had come to realize that government without an 
executive branch is no government at all. But their mistrust 
lingered, as is attested by the fact that a quarter to a third 
of the delegates supported a plural executive. The two most 
formidable obstacles to creating a viable executive were 
closely related: how to elect the President and how to get rid 
of him if he turned out badly.
    Now, from our perspective, the question of how to choose 
the President might seem obvious: Have popular elections. Given 
the size of the country and the state of transportation and 
communication, however, that would have been impracticable. 
Election by the State legislatures or by the governors, both of 
which were proposed, was also generally regarded as 
unsatisfactory. That left some kind of centralized election 
which came down to a choice by Congress.
    But if Congress elected the President, the executive would 
be dependent upon the legislative, and thus, a system of checks 
and balances would be impossible unless he was made ineligible 
for reelection; but if he cannot stand for reelection, he would 
have to be chosen for a long term, which the delegates thought 
would be dangerous.
    The greatest danger posed by congressional election, 
however, was suggested by a recent horrible example of which 
the delegates were acutely aware. The only elected monarchy in 
Europe was that of Poland where the nobles chose the king, and 
the centralized electoral system there had enabled the crowned 
heads of Prussia, Russia and Austria to buy a king of their 
choice. Thereafter, they partitioned the country by dividing 
its territory among themselves. The prospect that that could 
happen in America was chilling.
    So unsatisfactory were the options that the delegates were 
loathe to invest the executive with any genuine power. As late 
as the first week of September, that is, 2 weeks before the 
Convention adjourned, what had been agreed to was a government 
that would be entirely dominated by Congress, the President 
being little more than a figurehead.
    The limited nature of presidential authority at that stage 
of the proceedings had a direct bearing on the impeachment 
process at that stage of the proceedings. It had been agreed at 
the outset that the executive was to be removable, and they 
soon settled on--I am sorry, removable upon impeachment and 
conviction.
    The grounds for impeachment were two, treason and bribery. 
Including treason was a reflex action; treason had been 
involved in almost all the impeachments by the English from 
whom Americans derived the idea, though Americans guarded 
against their abuse by narrowly defining what constituted 
treason.
    Providing for impeachment for bribery was another matter of 
the delegates' having in mind a horrible example. King Charles 
II of England had been bribed by Louis XIV of France, among the 
fruits of which was France's acquisition of Dunkirk, which had 
long been an English possession. That was the way things stood 
at the beginning of September.
    But then, on Tuesday, September the 4th, a catchall 
committee proposed a resolution, the brainchild of Pierce 
Butler of South Carolina, to establish the Electoral College. 
The system was cumbersome, even cockamamie, but it overcame 
every objection that had been raised to every other proposed 
method of choosing a President.
    Now, having devised a decentralized method that would make 
it difficult, if not impossible, for foreign governments to 
sway American presidential elections by influence or money, the 
delegates were willing to endow the office with considerably 
more power. In the next few days, they did so.
    Increasing the duties, responsibilities and powers of the 
presidency necessitated an enlargement of the grounds for 
impeachment, for treason and bribery no longer covered all the 
President's constitutional activities. It is a fundamental 
principle of the Constitution that to ensure balances and 
checks, the greater the power given, the greater the mechanism 
needed for enforcing accountability.
    Accordingly, on September 8, George Mason of Virginia moved 
to add the words, ``or maladministration.'' James Madison, as 
referred to several times today, objected that the term was too 
vague, so Mason withdrew his motion and substituted ``other 
crimes and misdemeanors against the state.'' The words 
``against the state'' were subsequently changed to ``against 
the United States,'' but in the final draft, those words were 
dropped. The deletion was significant, for had that qualifier 
been retained, impeachable offenses would have been limited to 
actions taken in the performance of public duties.
    We have heard several people comment that the Committee on 
Style would not have taken liberties with the resolutions to 
the Convention. They don't understand Gouverneur Morris, who 
wrote the final Constitution. He took a number of liberties 
with the resolutions to the Convention, and when he took too 
great a liberty, they checked him. In this instance, they said, 
okay, we will go along with it.
    That left the grounds for impeachment as treason, bribery 
or other high Crimes and Misdemeanors. The phrase ``high Crimes 
and Misdemeanors'' had been the standard wording of English 
impeachments since the first such took place against the Earl 
of Suffolk in 1386, and that is doubtless why it came readily 
to mind. As for the word ``misdemeanor,'' Raoul Berger had 
pointed out that at the time it was first used, it was not a 
legal term; as the Oxford English dictionary makes clear, it 
simply signified evil conduct or misbehavior.
    Now, it is sometimes said that ``high Crimes and 
Misdemeanors'' was a term of art, but that is not so. A term of 
art is a phrase that, whatever it may mean to laymen, has a 
precise meaning to specialists. But ``high Crimes and 
Misdemeanors'' had, according to the leading commentators of 
the day, at least three different meanings. One was suggested 
by Sir William Blackstone's successor as the Viner lecturer at 
Oxford, Sir Richard Wooddeson, in his lengthy analysis of 
impeachment, namely that ``high'' in that phrase meant crimes 
or misdemeanors of whatever seriousness committed by persons of 
high station. If a file clerk in the White House steals 
something, you don't impeach him, you just get rid of him.
    The other readings turn upon whether the adjective ``high'' 
is meant to refer to both crimes and misdemeanors, or whether 
``high crimes'' is one thing and ``misdemeanor'' is another, or 
``impeachable.'' In Federalist 69, indeed, ``high crimes'' are 
``misdemeanors,'' and that is the language used in the State 
constitutions adopted shortly after the United States 
Constitution was ratified.
    Moreover, in the very first instance of impeachment, 
conviction and removal from office under the Constitution of 
the United States, that of District Judge John Pickering of New 
Hampshire in 1803, the high crimes and/or misdemeanors of which 
he was found guilty consisted of drunkenness in the courtroom.
    The term ``high misdemeanor'' did exist, and it was, in 
fact, a term of art. For enlightenment, we turn to Blackstone's 
Commentaries, a work, as Madison said, was in every man's hand, 
and the one the framers documentably turned to when determining 
what legal phrases meant. Blackstone considers ``high 
misdemeanors'' in book IV, chapter 9, ``of misprisons and 
contempt.'' The word ``misprison'' derives from the old French 
word, ``mespris,'' meaning neglect or contempt. A 
``misprison,'' Blackstone tells us, was a neglect or contempt 
against the state; a ``high misdemeanor'' was a ``positive 
misprison''. He ranks the changes on what these were, such as 
displays of violence in the courtroom, and he closes by 
describing a ``high misdemeanor'' as an ``endeavor to dissuade 
a witness from giving evidence or to advise a prisoner to stand 
mute.''
    Except in that restricted sense, a ``high misdemeanor'' is 
an oxymoron, for the definition of a ``misdemeanor'' is 
concerned with its minor quality. Again, we consult Blackstone. 
In chapter 1 of book IV he tells us that, properly speaking, 
``crimes'' and ``misdemeanors'' are mere synonymous terms, but 
it goes on to say that in common usage, the word ``crime'' is 
made to denote such offenses as of a deeper and more atrocious 
dye, while smaller faults and omissions of less consequence are 
comprised under the gentler name of ``misdemeanor'' only.
    The annotator of my 1793 edition of Blackstone, Edward 
Christian, adds the following note: ``In the English law, 
misdemeanor is generally used in contradistinction to felony, 
and misdemeanors comprehend all indictable offenses which do 
not amount to felony.'' The first example he gives is perjury.
    Thank you.
    Mr. Canady. Thank you.
    [The prepared statement of Mr. McDonald follows:]
  Prepared Statement of Forrest McDonald, Historian and Distinguished 
          University Research Professor, University of Alabama
    Until September 8, 1787--little more than a week before the 
Constitutional Convention adjourned--the only grounds that had been 
provided for impeaching the president were treason and bribery. Nothing 
more seemed necessary, for the delegates had entrusted few powers to 
the office. But then the invention of the electoral college emboldened 
the Framers to give the president a great deal of additional power, 
which in turn necessitated additional precautions to prevent abuse. 
Accordingly, the words ``and other high Crimes & Misdemeanors'' were 
added.
    The language could, according to contemporary authorities, be 
interpreted in three ways. The adjective ``high'' can be read as 
meaning high crimes and high misdemeanors. High misdemeanor was a term 
of art, referring (according to Blackstone) to neglects or contempts 
against the dignity of the state; examples of contempt were ``to 
endeavour to dissuade a witness from giving evidence . . . or, to 
advise a prisoner to stand mute.'' Secondly, high crimes and 
misdemeanors can be read as meaning crimes or misdemeanors. Again, 
according to Blackstone, crimes were offences ``of a deeper and more 
atrocious dye,'' whereas misdemeanors were ``smaller faults, and 
omissions of less consequence.'' The annotator of the Commentaries adds 
some examples, including perjury. The third possible reading, suggested 
by Richard Wooddeson, Blackstone's successor as the Viner lecturer at 
Oxford, is that ``high'' refers only to people in high office: any 
crime or misdemeanor committed by such people.
    In preparing myself to testify before this committee, I surveyed 
the literature on impeachment and was a bit surprised at the quantity 
and quality of it. In addition to numerous articles in law reviews and 
scholarly journals, there are Raoul Berger's Impeachment: The 
Constitutional Problems, a magisterial survey published in 1973, the 
book High Crimes and Misdemeanors: Selected Materials on Impeachment, 
compiled by the House Judiciary Committee with a Foreword by Chairman 
Peter W. Rodino, also in 1973, and John R. Labovitz' Presidential 
Impeachment, a 1978 book that grew out of the author's participation as 
a staffer on the Nixon hearings. Taken together, these sources, which 
are readily available to the committee and its staff, answer most of 
the questions that can be asked about the origin and development of the 
impeachment process.
    Accordingly, I shall confine my observations largely to matters 
that are not covered in the published scholarship and are drawn from 
such understanding of the subject as I have been able to obtain during 
the half century I have been studying the Founding and early evolution 
of the Constitution.
    Let me begin with 1776. Americans were so dismayed by what they 
considered as betrayal by King George III that, in forming their new 
governments, they established almost no executive branches at all. The 
Congress of the Confederation had no executive arm, and though most of 
the state constitutions provided for a governor or a president, none 
except New York vested him with substantive power, and most provided 
for impeachment for ``misconduct or mal-administration'' (Massachusetts 
1780, New Hampshire 1784) or ``mal- and corrupt conduct'' (New York 
1777, South Carolina 1778) or ``maladministration or corruption'' 
(Virginia and North Carolina, 1776), or simply ``any misdemeanor'' 
(Pennsylvania, 1790).
    By the time the Federal Convention gathered in Philadelphia in 
1787, most thinking men had come to realize that government without an 
executive branch is no government at all, but their mistrust lingered, 
as is attested by the fact that a quarter to a third of the delegates 
supported a plural executive. The most formidable obstacles to creating 
a viable executive were two: how to elect the president and how to get 
rid of him if he turned out badly. The two were closely related, as 
will become evident. From our perspective, the question of how to 
choose the president might seem obvious: simply have popular elections. 
Given the size of the country and the difficulties of transportation 
and communication, however, that would have been impracticable. Indeed, 
common Americans would have been hard-pressed even to name someone from 
another state, apart from Washington, Franklin, and possibly John Adams 
and Thomas Jefferson. For other reasons, election by the state 
legislatures or the governors, both of which were proposed, was 
generally regarded as unsatisfactory.
    But that left some kind of centralized election, which came down to 
a choice by Congress, which in turn was fraught with problems. If 
Congress elected the president, the executive would be dependent upon 
the legislative, and thus a system of check and balances would be 
impossible--unless he was made ineligible for reelection, but if he 
could not stand for reelection, he would have to be chosen for a long 
term, say six or seven years, which delegates thought would be 
dangerous. The greatest danger of all posed by congressional election, 
however, was suggested by a recent horrible example from Europe of 
which the delegates were acutely aware. The only elective monarchy in 
Europe was that of Poland, where the nobles chose the king, and the 
centralized electoral system there had made it possible for the crowned 
heads of Prussia, Russia, and Austria to use their wealth to buy a king 
of their choice. Thereafter, they partitioned the country--divided its 
territory among themselves in--1773. The prospect that that could 
happen to America was chilling, to put it mildly.
    So unsatisfactory were the options that the delegates were loath to 
invest the executive with genuine powers. As late as the first week in 
September two weeks before the Convention adjourned what had been 
agreed to was a government that would be entirely dominated by 
Congress. The Senate, whose members would be elected by the state 
legislatures, would have most of what were called the federative 
powers--the conduct of foreign relations--including the sending of 
ambassadors and the negotiation of treaties. The other great federative 
power, the waging of war, was to be shared with the lower house, as 
were other traditional executive powers. The president was to be 
elected by the Congress in joint session, serving a seven-year term 
unless removed on impeachment by the House and conviction by the 
Supreme Court. He was to be ineligible for reelection and had virtually 
no power of appointment and none of removal. He was commander-in-chief, 
had a conditional veto of legislation, and had power to grant pardons 
and reprieves. Otherwise, he was to be little more than a figurehead.
    The limited nature of presidential authority at that stage of the 
proceedings had a direct bearing on the impeachment process at that 
stage of the proceedings. It had been agreed at the outset that the 
executive and only the executive was to be removable upon impeachment 
and conviction. It was agreed early on that the grounds were to be two: 
treason and bribery. Providing for impeachment on the ground of treason 
was pretty much a reflex action, for treason had been involved in 
almost all the impeachments by the English, from whom Americans had 
derived the idea; though the Americans guarded against abuse by 
carefully and narrowly defining what constituted treason. Providing for 
impeachment on the ground of bribery was another matter of the 
delegates' having in mind a horrible example from history: as they were 
well aware, King Charles II of England had been bribed by Louis XIV of 
France, among the fruits of which was France's acquisition of Dunkirk, 
long an English possession.
    As indicated, that was the way things stood at the beginning of 
September; but then, on Tuesday, September 4, a catch-all committee 
proposed a resolution, the brainchild of Pierce Butler of South 
Carolina, to establish the electoral college system. The scheme was 
cumbersome, even cockamamie, and it was greeted as such; but as the 
idea soaked in, the delegates came to realize that it overcame every 
objection that had been raised to every other proposed method of 
election, and with modification it was soon adopted.
    Now, having devised a decentralized method of electing a president 
that they believed would make it difficult if not impossible for 
foreign governments to sway American presidential elections by 
influence or money, the delegates were willing to endow the office with 
considerably more power than before. In the next few days they did so.
    Increasing the duties, responsibilities, and powers of the 
presidency necessitated an enlargement of the grounds for impeachment, 
for treason and bribery no longer covered all the president's 
constitutional activities. It is a fundamental principle of the 
Constitution, as articulated in Federalist 51, that to ensure balance 
and counterbalance, the greater the power given, the greater the 
mechanism needed for enforcing accountability. Accordingly, on 
September 8 George Mason of Virginia moved to add after ``bribery'' the 
words ``or maladministration.'' Madison objected that the term was too 
vague, so Mason withdrew his motion and substituted ``other crimes & 
misdemeanors against the state.'' The words ``against the state'' were 
subsequently changed to ``against the United States,'' but in the final 
draft of the Constitution as drawn by the Committee of Style, those 
words were dropped entirely. That was a significant deletion, for had 
those qualifiers been retained, all impeachable offenses would have 
been limited to actions taken in the performance of public duties.
    That left the grounds for impeachment as ``Treason, Bribery, or 
other high Crimes and Misdemeanors.'' The phrase ``high Crimes and 
Misdemeanors'' had been the standard wording of English impeachments 
since the first such proceeding took place against the Earl of Suffolk 
in 1386, and that is doubtless why it readily came to Mason's mind on 
September 8, without thinking through precisely what it meant. As for 
the word misdemeanor, Raoul Berger had pointed out that at the time it 
was first used and for nearly a century thereafter, it was not a legal 
term: as the Oxford English Dictionary makes clear, it simply signified 
evil conduct or misbehavior.
    It is sometimes said that ``high Crimes and Misdemeanors'' was a 
term of art, but that is not so. A term of art is a phrase that, 
whatever it may mean to laymen, has a precise and well understood 
meaning to practitioners of a particular art. By contrast, high crimes 
and misdemeanors had, according to the leading commentators, at least 
three different meanings. One was suggested by Sir William Blackstone's 
successor to the Viner lecturer at Oxford, Sir Richard Wooddeson, in 
his lengthy analysis of impeachment, namely that ``high'' meant crimes 
or misdemeanors of whatever seriousness committed by persons of a high 
station. The other readings turn upon whether the adjective ``high'' is 
meant to refer to both crimes and misdemeanors, or whether ``high 
crimes'' is one thing and ``misdemeanors'' is another. If the latter is 
to be understood, then the sense of the clause is that the president is 
impeachable for Treason, Bribery, or other high crimes, as well as for 
misdemeanors. In Federalist 69, indeed, that is Hamilton's reading--he 
says high crimes or misdemeanors. That is also the reading I would give 
it, and my view seems to have been that of Americans in general at the 
time, as is attested by the fact that Delaware, which adopted a new 
constitution shortly after the United States Constitution was ratified, 
used the phrase high crimes or misdemeanors, and the new states that 
were soon admitted to the Union provided for impeachments for ``any 
misdemeanor.'' Moreover, in the very first instance of impeachment, 
conviction, and removal from office of a federal official under the 
Constitution of the United States, that of District Judge John 
Pickering of New Hampshire in 1803, the high crimes and/or misdemeanors 
of which he was found guilty consisted of drunkenness in the courtroom.
    But let us consider the matter more closely. The term High 
Misdemeanors did exist, and was in fact a term of art with a specific 
meaning. For enlightenment we must turn to Blackstone's Commentaries on 
the Laws of England, a work which as Madison said was ``in every man's 
hand'' and the one the Framers turned to when determining just what 
legal phrases meant. (Next to the Bible and Montesquieu, Blackstone was 
the most frequently quoted source in American political writing from 
1760 to 1800.) Blackstone considers High Misdemeanor in Book IV, 
Chapter 9, ``Of Misprisons and contempts.'' The word misprison derives 
from the Old French word mespris, meaning neglect or contempt; a 
misprison, Blackstone tells us, was a neglect or contempt against the 
state; a high misdemeanor was a positive misprison. He rings the 
changes on what these were, such as displays of violence in a 
courtroom, and he closes his chapter by describing a high misdemeanor 
as an ``endeavor to dissuade a witness from giving evidence . . . or, 
to advise a prisoner to stand mute.'' At one point during the 
Convention in a different connection, it had been proposed to use the 
phrase high misdemeanor, but according to Madison's notes the words 
were struck out, ``it being doubtful whether `high misdemeanor' had not 
a technical meaning too limited.''
    Except in that restricted sense, to speak of a ``high misdemeanor'' 
is to speak nonsense: it is an oxymoron, for the definition of a 
misdemeanor is concerned with its minor quality. Again we may consult 
Blackstone. In Chapter 1 of Book IV he tells us that, ``properly 
speaking,'' crimes and misdemeanors are ``mere synonymous terms,'' but 
he goes on to say that ``in common usage, the word `crimes' is made to 
denote such offenses as are of a deeper and more atrocious dye; while 
smaller faults, and omissions of less consequence, are comprized under 
the gentler names of `misdemeanors' only.'' The annotator of my 1793 
edition of Blackstone, Edward Christian, adds the following note: ``In 
the English law misdemeanour is generally used in contradistinction to 
felony, and misdemeanours comprehend all indictable offences, which do 
not amount to felony''; the first example he gives is perjury.
    James Wilson, one of the Framers and a learned jurist, echoed 
Blackstone's definition. ``A crime,'' he wrote in his Lectures on Law, 
1790-1791, ``is an injury, so atrocious in nature, or so dangerous in 
its example, that, besides the loss which it occasions to the 
individual who suffers by it, it affects, in its immediate operation or 
in its consequences, the interest, the peace, the dignity, or the 
security of the publick. Offences and misdemeanors denote inferiour 
crimes.''
    The eminent Supreme Court Justice Joseph Story, in his Commentaries 
on the Constitution of the United States (1833), went a step further, 
saying that impeachment ``has a more enlarged operation'' than merely 
high crimes and misdemeanors, ``and reaches, what are aptly termed, 
political offences, growing out of personal misconduct.''
    Let me conclude with references to the observations of James 
Madison and Alexander Hamilton on the subject. Madison did not, of 
course, write of impeachment in the Federalist Papers; he left that to 
Hamilton. But Madison did speak to the subject in the First Congress, 
and his reading tends to bear out my own that high crimes was one thing 
and misdemeanors quite another. The context was a debate concerning the 
question, whether the approval of the Senate would be necessary for 
presidential removal of his appointees, as it was for their 
confirmation. Madison said on May 19, 1789, that ``it was absolutely 
necessary that the President should have the power of removing from 
office: it will make him, in a peculiar manner, responsible for their 
conduct, and subject him to impeachment himself, if he suffers them to 
perpetrate with impunity high crimes or [notice: or, not and] 
misdemeanors against the United States, or neglects to superintend 
their conduct, so as to check their excesses.'' This also seems to 
broaden the grounds for impeachment to include misdeeds of one's 
subordinates.
    As for Hamilton, his comments especially in Federalist 65 have been 
widely cited in the media and I shall not presume to recapitulate them 
here. But I would call your attention to one passage. Impeachment, he 
wrote, was a political affair which ``will seldom fail to agitate the 
passions of the whole community, and to divide it into parties more or 
less friendly or inimical to the accused. In many cases it will connect 
itself with the preexisting factions, and will enlist all their 
animosities, partialities, influence, and interest on one side or on 
the other; and in such cases there will always be the greatest danger 
that the decision will be regulated more by the comparative strength of 
the parties, than by the real demonstrations of innocence or guilt.''
    Hamilton's words were prophetic, but in reviewing the impeachments 
that have actually occurred, I have been struck by how often large 
numbers of congressmen have been able to rise above partisanship and 
follow the dictates of reason and conscience. I pray that this 
committee and the House as a whole will follow that noble example.

    Mr. Canady. Professor Tribe.

      STATEMENT OF LAURENCE H. TRIBE, TYLER PROFESSOR OF 
       CONSTITUTIONAL LAW, HARVARD UNIVERSITY LAW SCHOOL

    Mr. Tribe. Thank you, Mr. Chairman, members of the 
subcommittee and committee. I certainly appreciate your 
invitation to testify, although I find this duty no more 
pleasurable than my friend Chuck Cooper does, given the 
subject.
    Let me say, as a prefatory matter, that nothing I say here 
ought to be construed to reject the appropriateness of steps 
short of impeachment such as censure, about which I would be 
happy to answer any questions.
    Nearly everyone who has studied the impeachment clause and 
its history, including, I think, every witness you have heard 
today, has concluded that criminal acts are neither necessary 
nor sufficient for impeachment, whose central purpose is not to 
punish, but to protect the functioning of our constitutional 
system from injury at the hands of Federal officials who turn 
against the Nation or who corrupt its processes. I think that 
much is clear from the constitutional text itself, ``treason, 
bribery, or other high Crimes and Misdemeanors.''
    The decision to exemplify impeachable acts with two of the 
offenses most threatening to our system of government, treason 
and bribery, identifies the three great accuracies of 
impeachable conduct. The high level to which it must rise, and 
either the end, grave damage to the Nation, or the means, 
serious corruption of office and abuse of power, that it must 
entail.
    I would like to digress just for a moment to address a 
beguiling, but I think fallacious, argument made by several 
witnesses today, including Richard Parker, Chuck McGinnis and 
Chuck Cooper. The argument was that if bribery is impeachable 
even when the official who made the bribe wasn't acting in an 
official capacity, as with an imaginary bribe paid by President 
Clinton to the judge presiding over the Paula Jones trial or 
made to Independent Counsel Starr, if you can imagine it, then 
perjury, for the same private purpose, should be impeachable, 
even when it occurs in an unofficial capacity.
    The fallacy, I think, is that bribery always, by 
definition, involves the corrupt use of official government 
powers, the powers of whoever is getting bribed. The fact that 
the officer being impeached acted privately as the briber, and 
not publicly as the bribee, is irrelevant, because the person 
who bribes is a full partner in a grave corruption and abuse of 
government power.
    I don't think that can be said of perjury, however serious. 
And I certainly think it is a serious offense, because if 
perjury succeeds, an indictable wrong has occurred, but it has 
occurred by concealing the truth from another government body 
and not by co-opting that body in a scheme to abuse power.
    Now, returning to the impeachment clause itself, others 
have described how high crimes and misdemeanors entered the 
Constitution. The key point never to forget, I think, is that 
Delegate Mason offered that language specifically to meet James 
Madison's objection to the earlier proposal of Mason, the 
proposal to add ``maladministration'' to ``treason'' and 
``bribery. '' And we shouldn't forget why he thought it 
necessary to add something; it was to reach what he called 
other attempts to subvert the Constitution. And Madison agreed 
that there were such other attempts, but objected that 
``maladministration'' was too broad, too vague, and would make 
the President too much the creature of Congress.
    Now, imagine how James Madison would have reacted to the 
brave new world of impeachment urged by Professors Parker, 
McGinnis and Presser. Treason, bribery, or conduct bearing 
negatively on the President's general fitness, his honor or his 
virtue. Those are wonderful aspirations; I share them. But to 
make them the basis for bringing down a President is to do 
exactly what the great Founder, James Madison, warned against.
    Professor Parker urged you earlier today to be flexible, 
not to freeze-dry the impeachment standard into the mold of 
history. That may be wise advice when we are talking about 
broad limits on government power to protect private citizens 
like due process and equal protection. Many of you, I know, 
don't share my fidelity to an evolving, living Constitution 
even in that area, but surely, surely when that sort of laid-
back jurisprudence of an amorphous Constitution is applied to 
the basic architecture of our government, it is a siren song 
for playing Russian roulette that protects us all from the 
perils of an enfeebled presidency. In that spirit, I don't 
think we can ignore what Professor Sunstein called ``all the 
dogs that didn't bark,'' the things the House didn't impeach 
Presidents like Lincoln, Roosevelt, Truman, Johnson, Reagan and 
Bush for doing.
    I also don't think we can ignore the pattern of 
impeachments voted by the House of Representatives from 1797 to 
the present. It is not hard to summarize them. There were only 
15. One of a President, one of a Senator, one of a Secretary of 
War, 12 judges. Fourteen of those 15 cases involved either the 
gravest abuses of official power, like taking a bribe to use 
that power for personal benefit, or the most obscene attacks on 
our Nation and its system of government, like armed rebellion 
against the United States or military assault upon our allies. 
There were two cases of the 14 that involved perjury, but they 
actually dealt with perjury to cover up taking a bribe in a 
judge's official capacity.
    The fifteenth case is the odd man out, I admit it. It 
involved Judge Claiborne's impeachment for perjury of the IRS--
no bribery behind that one, no abuse of power, no demonstrable, 
wide-ranging attack on the country; but I think we have to 
listen to what Professor Gerhardt explained in the first panel.
    The theme of that impeachment, its whole theory, was not 
that private improprieties can lead to impeachment whenever 
they cast a general cloud over the individual's fitness and 
virtue; it was that private improprieties can justify 
impeachment when it renders the individual fundamentally unable 
to carry out his or her official duties. It is not too hard to 
see, without opening a Pandora's box, that a judge convicted of 
perjury could not credibly preside over trials for the rest of 
his life, swearing in witnesses, imprisoning or sentencing to 
death some that he finds guilty.
    Now, keep in mind, even if, as several have argued today, 
the standard for impeachment is the same for judges and for 
Presidents, and I believe it is, high crimes and misdemeanors, 
one form of which is gross abuse of power--even if the standard 
is the same, what constitutes an abuse of official power and 
what conduct cripples the officeholder's ability to discharge 
the duties and responsibilities of his or her office 
necessarily depends on what the office is. Letting partisan 
considerations affect one's decisions, for example, is always 
an impeachable abuse of power in a judge. Almost never would it 
be in a President.
    So it is quite remarkable to me that after citing Judge 
Claiborne's impeachment for perjury before the IRS as a 
precedent for impeaching a President for perjury before a grand 
jury, the staff report makes only passing mention of the fact 
that the vote not to impeach President Nixon for perjury with 
the IRS included at least four votes by Members who reasoned 
that even if he were guilty of that felony, it wouldn't be 
impeachable because it did not involve an abuse of presidential 
power, grave injury to the Nation, or demonstrable obstruction 
of the President's ability to discharge the duties of his 
office. It would impair, surely, and shed negative light on his 
integrity, his believability, his virtue, but it would not make 
it impossible, the way it would have been for Judge Claiborne, 
for him to execute his office.
    Now, of course, I will concede private offenses like murder 
would make continuation in office unthinkable for any official. 
But perjury unrelated to official duties isn't in that 
category.
    Now, I take very seriously the President's oath to take 
care that the laws be faithfully executed. But that does not 
involve the hands-on presiding at trials where telling the 
truth under oath is the whole point. We have to remember that 
the President is unlike a judge who serves for life, but wields 
an authority that evaporates once his veracity can no longer be 
accepted. The President derives his legitimacy and his capacity 
to govern 4 years at a time from the electorate, and yes, some 
people did predict some months ago that a President could no 
longer lead the Nation or even govern if he had been caught 
lying under oath. Who would believe him? Knowing that he might, 
when he leaves office, be subject to prosecution for perjury, 
how could we govern?
    The prediction seems to have been wrong, and I think that 
the American people, sophisticated or not, do compartmentalize 
lies about sex affairs and do not equate them with lies about 
affairs of state. The whole argument about the presidential 
oath and the Take-Care Clause of the rule of law which Chairman 
Hyde spoke about so eloquently a while ago, ultimately comes 
down to the proposition that if we let the Nation's chief law 
enforcer get away with breaking the law, we will be unable to 
justify enforcing that law against anyone, and our whole legal 
system will break down. I call that, with all respect, the 
``chicken little'' argument, ``the sky is falling.'' I don't 
think any of us really believes it.
    Keep in mind, as Representative Scott implied in 
questioning the first panel, everyone here agrees that not all 
felonies are impeachable. So it follows that the President's 
immunity from criminal prosecution while in office, if he is 
immune, would present the very same rule of law and take-care 
problems whether perjury and obstruction of justice by the 
President are deemed impeachable or not. And I don't think 
there is any basis to assume that the President would get away 
with it, that no one would bother to prosecute him at the end 
of his term. Even Judge Starr's jurisdiction would not 
necessarily have expired.
    The idea, too, that what President Clinton has gone through 
could possibly inspire a rash of copycat perjuries seems wildly 
implausible to me, and if you buy that line of argument, let me 
underscore this. It would follow, since the theory would be 
that any law violation by a sitting President is a violation of 
his oath and of the take-care clause, it would follow that you 
can impeach the President of the United States more easily than 
any other civil officer of the government. And making the 
President uniquely vulnerable to removal, especially on a fuzzy 
standard like virtue, seems to me to be profoundly unwise. We 
have only one President at a time; we have 1,200 or 1,300 
judges.
    Removing a President, even just impeaching him, paralyzes 
the country. Removing him decapitates a coordinate branch. And 
remember that the President's limited term provides a kind of 
check, and if the check fails, he can be prosecuted when he 
leaves.
    To impeach on the novel basis suggested here when we have 
impeached only one President in our history, and we have lived 
to see that action universally condemned; and when we have the 
wisdom not to impeach Presidents Reagan or Bush over Iran-
Contra; and when we have come close to impeaching only one 
other President for the most wide-ranging abuse of presidential 
power subversive of the Constitution would lower the bar 
dramatically, would trivialize a vital check. It may be a caged 
lion, but it will lose its fangs if we use it too promiscuously 
and would permanently weaken the President and the Nation, 
leaving a legacy all of us in time would come to regret deeply.
    And I apologize for not having quite managed the red light.
    [The prepared statement of Mr. Tribe follows:]
      Prepared Statement of Laurence H. Tribe, Tyler Professor of 
         Constitutional Law, Harvard University Law School \1\
---------------------------------------------------------------------------
    \1\ For identification purposes only.
---------------------------------------------------------------------------
      defining ``high crimes and misdemeanors'': basic principles
    I am honored to have been invited to appear before this 
Subcommittee of the House Judiciary Committee to shed whatever light I 
can on the vitally important topic of ``The Background and History of 
Impeachment.'' Although I will of course be willing to address whatever 
questions members may have regarding the application of my testimony to 
the particular case of President Clinton, I have understood my 
assignment to be a broader and antecedent one: to analyze how the 
Constitution requires Congress to approach the threshold issue of 
deciding what constitutes an ``impeachable'' offense. Because so much 
has been written, and so much more has been said, about this topic, I 
have chosen to focus my comments on the basic principles that I believe 
should guide us in this endeavor, rather than to essay yet another 
detailed compilation of excerpts from the records of the 1787 
Constitutional Convention, from accounts of the state ratification 
debates, from The Federalist Papers, from the commentaries of 
Blackstone and Story, from the 1974 Staff Report of the House Judiciary 
Committee on ``Constitutional Grounds for Presidential Impeachment,'' 
and the like.
    I begin with this historical note: Nearly a quarter of a century 
ago, the work of the House Judiciary Committee under the leadership of 
Representative Peter Rodino, in seeking to define impeachable offenses 
when dealing with a Republican President, set the stage on which the 
House Judiciary Committee under the leadership of Representative Henry 
Hyde plays out today's sober drama in dealing with a Democratic 
President. So too, what the Judiciary Committee does today in 
attempting to define impeachable offenses will set the stage on which 
future struggles over the possible impeachment of presidents to come, 
including presidents yet unborn, will be waged. Indeed, how this 
Subcommittee and ultimately the House of Representatives (and possibly 
the Senate) define impeachable offenses in this proceeding will play an 
important role not only on those occasions, hopefully rare, when the 
nation again focuses its energies and its attention on the possible 
impeachment and removal of a sitting president, but in the day-to-day 
life of the republic, shaped as it is by the strength or weakness of 
the presidential office, by the relationship between the executive and 
legislative branches, and by the kinds of people who feel called to 
public service and are willing to endure its rigors in whatever 
atmosphere of oversight--from the most positive to the most poisonous--
awaits our public servants, including our presidents.
    For this reason, it would be short-sighted indeed for any witness 
before this body, or for any member of Congress, to approach the task 
of defining ``high crimes and misdemeanors'' from a narrowly result-
oriented perspective. To put it bluntly, anyone who would raise the bar 
on what constitutes an impeachable offense simply in an effort to save 
President Clinton, whether for partisan reasons or in a spirit of 
genuine patriotism, may live to regret the abuses by future presidents 
that might be unleashed were we to establish a precedent making it too 
difficult--more difficult than the Constitution, rightly understood, 
contemplated--to remove a president whose misuse of the awesome powers 
of that office endangers the republic. And, conversely, anyone who 
lowers the bar on what constitutes an impeachable offense simply in an 
effort to ``get'' President Clinton, whether for partisan reasons or in 
a spirit of equally genuine patriotism, may live to regret the abuses 
by future congresses, and the resulting incapacity of future 
presidents, that might just as easily be unleashed were we to establish 
a precedent making it too easy--easier than the Constitution 
contemplated--to remove a president simply because, as in a 
parliamentary system, the legislature has come to disagree profoundly 
with his or her public policies or personal proclivities and has thus 
lost confidence in the President's leadership.
    For these reasons, and because I--like many others who have 
expressed grave doubts about the propriety of using the impeachment 
device to deal with what President Clinton is alleged to have done--
hold no brief for the President's behavior and regard it as both 
inexcusable and worthy of condemnation, I believe the situation in 
which we find ourselves contains powerful, built-in safeguards--
safeguards that ought to function well to prevent all people of good 
will from artificially making the category of impeachable offenses too 
narrow or too broad. Not knowing whose ox might be gored in the long 
run by an error in either direction, anyone who takes the task ahead 
with the seriousness its nature demands will necessarily proceed under 
what the philosopher John Rawls famously described as a veil of 
ignorance \2\ that can help us all go forward in a manner sufficiently 
focused on the long run and insulated against the temptations of short-
term rewards and punishments.
---------------------------------------------------------------------------
    \2\ See John Rawls, A Theory of Justice 12 (1971).
---------------------------------------------------------------------------
    With that preface, I turn to the principles that I believe ought to 
guide the search for the appropriate definition of impeachable 
offenses.
1. Because Congress has the last word in defining what constitutes an 
        impeachable offense, it is more important, not less, that 
        Congress get it right
    It appears to be common ground that judicial review would be 
unavailable to check the House or the Senate in their definitions of 
high crimes and misdemeanors under Article II, Section 4 of the 
Constitution. The Supreme Court held in Nixon v. United States, 506 
U.S. 224 (1993)--in a case involving former federal judge Walter 
Nixon--that Article I, Section 3, clause 6, which says ``[t]he Senate 
shall have the sole Power to try all Impeachments,'' precludes Supreme 
Court review of whether the Senate, rather than sitting as a jury of 
100, may instead delegate the task of hearing and reporting evidence to 
a committee. It would almost surely follow that Article I, Section 2, 
clause 5, which says ``[t]he House of Representatives . . . shall have 
the sole Power of Impeachment,'' precludes Supreme Court review of 
whether the House has proceeded on a definition of impeachable offenses 
that is too lax or too strict. Nor is it at all plausible that the 
Chief Justice, who under Article I, Section 3, clause 6, ``shall 
preside'' when the ``President of the United States is tried,'' would 
control the Senate's definition of an impeachable offense.
    Thus, Congress is essentially on its own in this vital realm. But 
that is not to say that the deliberately political process of 
impeachment that the framers left unpoliced by judicial overseers is 
not bound by the Constitution--by what it says as to impeachable 
offenses, and by what it means by what it says. Article VI provides 
that all Senators and Representatives ``shall be bound by Oath or 
Affirmation, to support this Constitution.'' That duty is not relaxed 
whenever the judiciary is not on guard; it is heightened. Any solace 
that members of either the House or the Senate may sometimes take, in 
voting for a measure of contested constitutionality, that the Supreme 
Court will step in and save them from constitutional error if they are 
wrong--solace that I have elsewhere argued is inappropriate even when 
judicial review is in fact available to conduct just such a rescue 
mission \3\--is manifestly unavailable here. Err here, and live forever 
with the consequences, for no judge will appear as a deus ex machina to 
set the constitutional system straight. Thus, the statements sometimes 
heard to the effect that an impeachable offense is whatever the House 
and Senate say it is \4\ are true only in the most cynical and 
constitutionally faithless sense. If those statements mean that 
Congress can ``get away with murder'' in this sphere, they are 
literally correct. But there are consequences to be suffered from 
defying the Constitution, even if those consequences do not include 
being reversed by judges. And if those statements about impeachable 
offenses being a content-less category, a mere mirror for the 
preferences of members of the House and Senate, mean that Congress 
simply is not constrained by the Constitution in this matter, then 
those statements are flatly false. Congress is indeed constrained, even 
if the only enforcer of that constraint is its own conscience.
---------------------------------------------------------------------------
    \3\ See, e.g., Laurence H. Tribe, American Constitutional Law 16 
(2d ed. 1988).
    \4\ See, e.g., 116 Cong. Rec. H11913 (daily ed. Apr. 15, 1970) 
(statement of Rep. Gerald Ford). But four years later, Gerald Ford, as 
Vice President, said he could find no valid grounds to impeach 
President Richard Nixon. See Philip Shabecoff, N.Y. Times, at 1 (Jan. 
16, 1974).
---------------------------------------------------------------------------
    This first principle has one significant corollary. When we say it 
is important that Congress get it right, and even more important 
because no court stands guard to keep the balance true, we should 
realize that we are speaking not simply of the Senate, whose task it is 
to try impeachments brought to it by this body, but of the House as 
well. Some have suggested that, because it will fall to the Senate, in 
any case where this body returns a bill of impeachment, to make a final 
judgment as to whether something the House deems impeachable is in fact 
impeachable, the House is somehow relieved of the full burden of having 
to decide the issue for itself. Passing the buck to the Senate--
impeaching because one thinks what the accused official did might well 
be deemed impeachable--would be a profoundly irresponsible breach of 
the duty laid upon this body by Article I.
    The prospect of a trial in the United States Senate, regardless of 
which federal officer is in the dock, cannot be equated with the 
prospect of an ordinary trial, civil or criminal, in the courts of law. 
When the Senate is enlisted to perform this unique task, not even 
delegating part of its work to a committee can obscure the inevitable 
distraction from the Senate's normal and proper functions in the 
lawmaking process. And when the Senate is asked to perform this task in 
the special case of a sitting president, both the distractions from its 
legislative role and the consequences for the nation as a whole, 
internationally as well as domestically, are monumental. The one 
occasion on which the Senate sat in judgment on a president, in the 
trial of Andrew Johnson,\5\ provided just a foretaste of the far 
greater distractions and divisions that such a trial in the modern era 
would entail, whatever its outcome.
---------------------------------------------------------------------------
    \5\ See generally William H. Rehnquist, Grand Inquests 143-274 
(1992).
---------------------------------------------------------------------------
    This is not to say that the House should shrink from impeaching a 
president where impeachment is called for; it is to say, however, that 
the consequences of passing the matter off to the Senate in order to 
send a message of disapproval or otherwise to avoid seeming to condone 
presidential misbehavior are far too grave to make that an acceptable 
option. If members of this body believe the President should be 
censured, mechanisms to achieve that end are available. If members 
believe the President should be criminally prosecuted, that remains an 
option after he leaves office. But allowing uncertainty over whether 
these other modes of accountability will be brought to bear in a timely 
and effective way to tempt one into voting to impeach where there has 
been no high crime or misdemeanor, taking refuge in the confidence that 
the Senate will not muster the requisite two-thirds vote to convict, 
would set a horrific precedent--and would punish the entire nation in 
order to administer punishment to the President. I would urge every 
member to focus not on what we should do to Bill Clinton but on what 
impeaching Bill Clinton would do to the country--and to the 
Constitution. To that end, it is vital that the House get it right, and 
not rely on the Senate to come to the rescue.
2. Getting it right means taking seriously exactly what the 
        Constitution says on the subject, as well as the context in 
        which the Constitution says it
    When we look at the words of Article II, Section 4, telling us that 
the offenses for which presidents or any other civil officers of the 
United States may be impeached and, on conviction, removed from office, 
we encounter the curious phrase--familiar today only because we have 
all been steeped in this business for some time--``high Crimes and 
Misdemeanors.'' To take those words and their context seriously, it is 
essential that we not stop with the easy observation that they are 
theoretically capable of various definitions, that they have fuzzy 
boundaries, that not everybody agrees exactly on what they mean, and 
that they might indeed mean big crimes and little ones. Neither writing 
a constitution nor reading and applying one is a merely theoretical 
exercise. Yes, those words could mean any of a number of things, but 
the fact that this is the case with many, perhaps all, constitutional 
provisions does not give us license simply to fill in the meanings we 
find most pleasing.
    We deal in the Impeachment Clause with one of the Constitution's 
architectural cornerstones. It identifies a key feature of the 
Constitution's structure, and of the form of government the 
Constitution created. As I, and many others, have argued in other 
settings, constitutional provisions of this structural sort are the 
least likely candidates for translation into open-textured, highly 
fluid, norms and ideals.\6\ Unlike the Constitution's command that no 
state deprive anyone of ``liberty'' without ``due process of law,'' for 
example--a command that is famously flexible and whose content has 
evolved, many of us think quite properly, with the changing times--the 
provision stating the circumstances in which federal officials, 
including presidents, may be impeached, convicted, and removed from 
office ought to be given as fixed and firm a reading as the logic of 
the situation permits. The basic criteria for what makes something a 
``high crime'' or ``misdemeanor'' in the impeachment context should not 
be permitted to ``morph'' with the ebb and flow of attitude and 
opinion--although, of course, as times change the set of acts that 
might represent abuses of power or assaults upon the state might change 
as well.
---------------------------------------------------------------------------
    \6\ See Laurence H. Tribe, Taking Text And Structure Seriously: 
Reflections On Free-Form Method In Constitutional Interpretation, 108 
Harv. L. Rev. 1221, 1245-1248 (1995).
---------------------------------------------------------------------------
    Some, though not I, think that at least the criteria for what makes 
something fit into a given constitutional category should be constant 
over time for every part of the Constitution, properly construed;\7\ 
for them, it should be true a fortiori for the Impeachment Clause. For 
the rest of us, the important point is that the clause defines not 
simply the rights of individuals but the very design of the government 
on which we must, in the end, rely to defend those rights. To raise or 
to lower the impeachment bar as time goes on is to move the nation 
closer to an imperial presidency or to a parliamentary system, 
depending entirely on which way the impeachment winds are blowing. But 
those are not changes we should make casually or as the accidental 
byproducts of steps taken for entirely different reasons. If it is a 
parliamentary system people want, or something closer to such a system 
than we have had for two centuries, then amending the Constitution to 
achieve such a system or an approximation thereto is the only 
constitutionally proper course. Weakening the presidency through 
watering down the basic meaning of ``high Crimes and Misdemeanors'' 
seems a singularly ill-conceived, even a somnambulistic, way of backing 
into a new--and, for us at least, untested--form of government.
---------------------------------------------------------------------------
    \7\ See, e.g., Antonin Scalia, A Matter of Interpretation: Federal 
Courts and the Law 38-47, 133-43 (1997)(dialogue with L. Tribe).
---------------------------------------------------------------------------
    What, then, did ``high Crimes and Misdemeanors'' mean when those 
words were inserted into the Constitution? The surrounding text gives 
us more than a slight clue, for the words are embedded in the larger 
phrase, ``Treason, Bribery, or other high Crimes and Misdemeanors.'' 
The word ``other'' is a dead giveaway: high crimes and misdemeanors are 
offenses that bear some strong resemblance to the flagship offenses 
listed by the framers--treason and bribery. That the framers' choice of 
words here was entirely deliberate is most clearly shown by the fact 
that, when it came to the very different question of which offenses 
would be subject to interstate extradition, the framers began with the 
categories ``treason, felony, or high misdemeanor,'' \8\ but ended by 
replacing the phrase ``high misdemeanor'' with the phrase ``other 
crime,'' \9\ which evidently seemed more appropriate in a 
constitutional provision--Article IV, Section 2, clause 2--dealing not 
with abuse of power or subversion of the constitutional order but with 
ordinary common-law or statutory crime. That alone should tell us that 
reading Article II's reference to ``high Crimes and Misdemeanors'' as 
some sort of shorthand for major and minor criminal offenses, or even 
as shorthand for felonies--that is, for the most serious crimes--would 
be a mistake. When the Constitution's authors meant to identify a 
particularly serious category of crime, they knew just how to do it. 
Thus, not only does the Interstate Extradition Clause speak of persons 
``charged in any State with Treason, Felony, or other Crime,'' but the 
Privilege from Arrest Clause speaks of congressional immunity from 
arrest during attendance of a congressional session ``in all Cases, 
except Treason, Felony and Breach of the Peace.'' Article I, Section 6, 
clause 1. And the Grand Jury Clause of Amendment V guarantees ``a 
presentment or indictment of a Grand Jury,'' with certain military 
exceptions, whenever a person is ``held to answer for a capital, or 
otherwise infamous crime.''
---------------------------------------------------------------------------
    \8\ 2 Max Farrand, The Records of the Constitutional Convention of 
1787 174 (1911).
    \9\ See id. at 2:443.
---------------------------------------------------------------------------
    It follows that ``high Crimes and Misdemeanors'' cannot be equated 
with mere crimes, however serious. Indeed, it appears to be all but 
universally agreed that an offense need not be a violation of criminal 
law at all in order for it to be impeachable as a high crime or 
misdemeanor. A president who completely neglects his duties by showing 
up at work intoxicated every day, or by lounging on the beach rather 
than signing bills or delivering a State of the Union address, would be 
guilty of no crime but would certainly have committed an impeachable 
offense. Similarly, a president who had oral sex with his or her spouse 
in the Lincoln Bedroom prior to May 23, 1995 (the date on which D.C. 
Code Ann. 22-3502 was repealed),\10\ or in a hotel room in Georgia,\11\ 
Louisiana,\12\ or Virginia \13\ at any time, would be guilty of a 
felony but surely would have committed no impeachable offense.
---------------------------------------------------------------------------
    \10\ See D.C. Law 10-257, Sec.  501(b), 42 DCR 53.
    \11\ See Ga. Code Ann. Sec.  16-6-2 (criminalizing oral sex and 
expressly excluding marriage as a defense).
    \12\ See La. Rev. Stat. Ann. Sec.  14:89 (criminalizing ``unnatural 
carnal copulation'' and making no exception for married couples); State 
v. Phillips, 365, So.2d 1304, 1308 (La. 1978) (holding that the statute 
includes oral sex).
    \13\ See Va. Code Ann. Sec.  18.2-361 (criminalizing oral sex and 
making no exception for married couples).
---------------------------------------------------------------------------
    And that brings us back to the word ``other.'' What distinguishes 
certain offenses as ``high Crimes and Misdemeanors'' must be not the 
fact that serious crimes are involved but the fact that those offenses 
are similar, in ways relevant to what the devices of impeachment and 
removal are for, to treason and bribery. But that in turn means that, 
like treason and bribery, high crimes and misdemeanors, as terms of 
art, must refer to major offenses against our very system of 
government, or serious abuses of the governmental power with which a 
public official has been entrusted (as in the case of a public official 
who accepts a bribe in order to turn his official powers to personal or 
otherwise corrupt ends), or grave wrongs in pursuit of governmental 
power (as in the case of someone who subverts democracy by using 
bribery or other nefarious means in order to secure government office 
and its powers, or in order to hold onto such office once attained). 
And, sure enough, even a cursory examination of the precise history of 
the phrase ``high Crimes and Misdemeanors,'' and of the path that 
phrase took as it found its way from 14th century England into the 
Constitution of the United States in the summer of 1787, confirms that 
understanding of what the words meant.
3. Getting it right requires paying close attention to the historic 
        evolution of the Impeachment Clause
    The story is a lengthy one, but its relevant elements can be set 
forth briefly. The Constitutional Convention wrestled with various 
formulations of the grounds for impeaching and removing federal 
officials, starting out with phrases that focused on the abuse or non-
use of official power--phrases like ``malpractice and neglect of duty'' 
\14\ and oscillating between variants that would have precluded 
impeachment and removal altogether in the case of the president, \15\ 
and variants that leading delegates such as James Madison feared would 
reduce the president to a creature of the legislature.\16\
---------------------------------------------------------------------------
    \14\ 1 Max Farrand, The Records of the Constitutional Convention of 
1787 78 (1911).
    \15\ Although no surviving draft would have eliminated presidential 
impeachment altogether, that option was favored by Charles Pinckney of 
South Carolina, among other delegates. See id. at 2:64-69.
    \16\ See id. at 2:550.
---------------------------------------------------------------------------
    By late July 1787, the Committee of Detail had settled on 
``treason, bribery, or corruption'' instead of ``malpractice and 
neglect of duty,'' \17\ and shortly thereafter the reference to 
``corruption'' was dropped.\18\ On September 8, George Mason of 
Virginia objected that ``treason and bribery'' was too narrow.\19\ That 
pair of words nicely captured the possibility that sufficiently grave 
assaults on the state, like high treason, might be carried out by a 
public official not through misuse of his official powers but in a 
traitorous sort of moonlighting--shades of Aaron Burr come to mind, and 
of Jonathan Fassett, the Vermont assemblyman impeached by a state 
legislature in the colonial period for leading a mob that attempted to 
shut down a county court.\20\ What, then, was missing? Not, apparently, 
room to multiply the examples of conduct injurious to the state but not 
involving abuse of official power. For Mason's proposed remedy for the 
narrowness he perceived was the addition of the term 
``maladministration,'' \21\ a term clearly limited to conduct involving 
improper use of the powers entrusted to a public official. Mason's 
argument for adding maladministration to treason and bribery was 
straightforward: There might be ``attempts to subvert the 
Constitution'' that would not fit the definitions of treason or of 
bribery but would nonetheless imperil the republic.\22\
---------------------------------------------------------------------------
    \17\ See id. at 2:172.
    \18\ See id. at 2:495.
    \19\ See id. at 2:550.
    \20\ See Peter Charles Hoffer and N.E.H. Hull, Impeachment in 
America, 1635-1805 84-85 (1984).
    \21\ See 2 Max Farrand, The Records of the Constitutional 
Convention of 1787 550 (1911).
    \22\ Id.
---------------------------------------------------------------------------
    James Madison did not disagree with Mason's reason for going beyond 
treason and bribery; he objected only to Mason's proposed solution in 
the notion of maladministration. And he objected not because he thought 
that notion too narrow, believing that conduct other than abuse of 
power should be impeachable, but because he feared that the breadth and 
vagueness of Mason's proposed addition would reduce the Executive to 
serving ``during the pleasure of the Senate.'' \23\ Mason then 
countered with an alternative borrowed directly from 14th century 
England: ``other high crimes and misdemeanors against the State,'' 
which passed without debate (at least without debate recorded by 
Madison) by a vote of 8-3.\24\ Immediately thereafter, ``State'' was 
replaced by ``United States,'' \25\ which was in turn dropped without 
explanation by the Committee of Style when, on September 12, it 
reported the final language of the Impeachment Clause: ``Treason, 
Bribery, or other high Crimes and Misdemeanors.'' \26\
---------------------------------------------------------------------------
    \23\ Id.
    \24\ Id.
    \25\ See id. at 2:545.
    \26\ Id. at 2:600.
---------------------------------------------------------------------------
    There is no evidence that the deletion of the phrase ``against the 
United States'' was meant to do anything but eliminate a redundancy; 
the deletion appears to have been not substantive but stylistic, 
inasmuch as the very concept of ``high Crimes and Misdemeanors,'' which 
when first used as early as 1386 \27\ denoted political crimes against 
the state, contained within its four corners the requirement that the 
system of government itself be the target of the wrong. Blackstone 
notes that the use of the word ``high'' in the context of treason 
implied not simply a more significant offense--as in the notion of a 
major rather than a minor crime--but, rather, an injury to the crown, 
distinguishing it from ``petit treason,'' which involved betrayal of a 
private person.\28\ For sufficiently grave abuses of official power--
abuses entailing encroachment on the prerogatives of another branch of 
government or usurpations of the power of popular consent and 
representation--serious injury to the state seems implicit in the 
abuses themselves. But such injury to the state or, what amounts to the 
same thing, to the constitutional structure, may in exceptional cases 
be brought about by means other than an abuse of power entrusted to a 
public official. The judge or private citizen who lends support to an 
enemy engaged in an attack on the nation, or who leads a private mob in 
an attempted coup, does not abuse official power but threatens grave 
injury to the state, either in an act of treason or in what is surely 
``[an]other high Crime[] and Misdemeanor[].''
---------------------------------------------------------------------------
    \27\ See 1 Cobbett's Complete Collection of State Trials 89-91 
(1809).
    \28\ See 4 Sir William Blackstone, Commentaries on the Laws of 
England 75 (15th ed. 1809).
---------------------------------------------------------------------------
    Although in the English practice impeachment was not even 
restricted to officeholders, much less to official misdeeds, and 
although the English practice did not limit penalties to removal from 
office and disqualification from further officeholding,\29\ the 
American colonies, and later states, reacted against the enormous 
concentration of power in the legislature that borrowing these features 
of parliament's impeachment authority would entail. Influenced by the 
writings of John Adams and others, American states transformed 
impeachment by restricting it to officeholders, limiting it essentially 
to official misdeeds, and confining the punishment to removal and 
disqualification.\30\
---------------------------------------------------------------------------
    \29\ See Peter Charles Hoffer and N.E.H. Hull, Impeachment in 
America, 1635-1805 67 (1984).
    \30\ See id. at 64-67.
---------------------------------------------------------------------------
    Against this background, it apparently did not occur to the framers 
or ratifiers that some sufficiently monstrous but purely private crimes 
against individuals might require impeachment and removal of the 
criminal in order to safeguard the government and the people it serves. 
The ratification debates, like the debates at the Constitutional 
Convention, focused solely on high offenses against the state and on 
grave abuses of--or gravely culpable failures to use--official power. 
Thus, when Vice President Aaron Burr killed Alexander Hamilton in a 
duel in July 1804, leading to Burr's indictment for murder in New York 
and New Jersey,\31\ Burr served out his term, which ended in early 
1805, without any inquiry in the House of Representatives as to whether 
his murder of Hamilton might be an impeachable offense! Indeed, rather 
than urging their colleagues in the House to consider returning a bill 
of impeachment, eleven U.S. Senators wrote to the governor of New 
Jersey asking him to end the prosecution of the flamboyant Vice 
President, so as ``to facilitate the public business by relieving the 
President of the Senate from the peculiar embarrassments of his present 
situation, and the Senate from the distressing imputation thrown on it, 
by holding up its President to the world as a common murderer.\32\
---------------------------------------------------------------------------
    \31\ See 1 Milton Lomask, Aaron Burr: The Years from Princeton to 
Vice President, 1756-1805 353-361 (1979). The New York murder 
indictment was quickly replaced, for want of jurisdiction, with the 
misdemeanor of uttering and sending a challenge. See id. at 357-58.
    \32\ Charles Biddle, Autobiography of Charles Biddle 308 (1883) 
(quoting the letter).
---------------------------------------------------------------------------
    Today, I would suppose, the specter of being governed by ``a common 
murderer''--and of the United States being held up to the world as a 
nation so governed--would lead at least some students of the English 
and colonial history to question whether the remedy of impeachment and 
removal must be withheld even from the most heinous of crimes, at least 
when committed by a sitting president, simply because the crime in 
question involved no abuse of presidential power and did not in itself 
endanger the nation as a polity. There may well be room to argue that 
the very continuation in office of a president who has committed a 
crime as heinous as murder, and who under widely accepted practice is 
deemed immune to criminal prosecution and incarceration as long as he 
holds that office, would itself so gravely injure the nation and its 
government that such a president's decision not to resign under the 
circumstances amounts to a culpable omission and thus an abuse of power 
and that, in any event, the fact that such a president's continuation 
in office was itself gravely injurious to the nation would transform 
his remaining in office, if not the murder he committed, into an 
impeachable offense.\33\
---------------------------------------------------------------------------
    \33\ See Charles L. Black, Impeachment: A Handbook 39 (1974) 
(advancing a similar argument).
---------------------------------------------------------------------------
4. Exceptions to the general rule that an impeachable offense must 
        itself severely threaten the system of government or constitute 
        a grievous abuse of official power or both must not be 
        permitted to swallow that rule
    Both the text and the context we have examined, and the history of 
the phrase the framers used, preclude any casual movement from 
something like the example of murder committed by a sitting president 
to any broad notion that all serious crimes--say, felonies involving 
the administration of justice--are impeachable even if they are not 
committed through an abuse of the official powers entrusted to the 
alleged criminal, and even if their commission does not genuinely 
threaten the nation and its system of government.
    It is always possible to argue, when confronted by a serious crime, 
that the system would crumble if everyone followed the wrongdoer's 
example. If everyone took President Richard Nixon's allegedly false 
filing of tax returns under oath, including backdating of documents, as 
a model to emulate, the nation's tax system, and thus its defenses, 
would crumble. Yet there was no realistic basis to suppose that the 
Nixon example would start any such stampede, and the simple proposition 
that, if all did as Nixon had done, the consequences would be 
catastrophic did not mislead the House Judiciary Committee into 
treating the President's alleged tax evasion as an impeachable offense: 
By a vote of 26-12, the Committee soundly declined to treat it as 
such.\34\ Similarly, it is important to see the fallacy in the alluring 
argument that every instance of perjury, or of witness tampering, or of 
conspiracy to suppress evidence relevant to a civil proceeding or to a 
grand jury, significantly injures the legal system itself and thus the 
nation because, if everyone did it, the system obviously could not 
function. It is no doubt true that, if perjury and witness tampering 
became the order of the day, our government would be severely hurt. But 
if that were the test--if an offense became impeachable even when it 
entailed no abuse of the offender's official position and caused no 
grave injury to the nation provided one could argue that such injury 
would ultimately occur if the offense became not exceptional but 
universal--then the carefully crafted safeguards against legislative 
hegemony and presidential weakness hammered out at the Constitutional 
Convention would amount to nothing. Find a sitting president guilty of 
some offense that, if universalized, would bring down the system--or 
maneuver the president into committing some such offense--and one 
would, under the hypothesized test, have a solid basis for removing 
that president from office. These ``sky is falling'' arguments 
disrespect not only the Constitution's text and history; they 
disrespect common sense.
---------------------------------------------------------------------------
    \34\ See Sam J. Ervin, Jr., The Whole Truth: The Watergate 
Conspiracy 282 (1980).
---------------------------------------------------------------------------
5. The Take Care Clause and the Presidential Oath of Office cannot 
        properly be invoked so as to make the President of the United 
        States more vulnerable to impeachment, conviction, and removal 
        from office than other federal officials
    We have already seen that the commission of a crime, whether state 
or federal, is neither a sufficient nor a necessary element of an 
impeachable offense. Indeed, the words ``high Crimes and Misdemeanors'' 
had little or nothing to do with the criminal law at the time they were 
incorporated into Article II of our Constitution; the term 
``misdemeanor'' was not even employed in the criminal context, where it 
now connotes a minor offense, until centuries after the English period 
from which the framers borrowed it.\35\
---------------------------------------------------------------------------
    \35\ See 2 Sir William Holdsworth, A History of English Law 357, 
365 (4th ed. 1982).
---------------------------------------------------------------------------
    All of that is true, some say, but the presidency is unique. The 
President alone takes a special oath whose every word is prescribed by 
the Constitution, an oath ``faithfully to execute the Office of 
President of the United States and . . . to the best of [his or her] 
Ability, preserve, protect and defend the Constitution of the United 
States.'' Article II, Section 1, clause 8. Beyond that oath, the 
President is enjoined by Article II, Section 3, clause 1 to ``take Care 
that the Laws be faithfully executed.'' Thus, if the President should 
commit a federal crime--not, it might be noted, a crime like murder, 
which typically violates only state law--he or she will have failed to 
carry out the duty imposed by the Take Care Clause and, in a sense, 
will have violated his or her oath ``faithfully to execute'' the 
office.
    Candor requires the concession that, for anyone who has not thought 
carefully about the Impeachment Clause and the consequences of this way 
of reading it, this line of argument has a beguiling simplicity and a 
down-to-earth appeal. But if this argument were to carry the day, it 
would follow that President Nixon should indeed have been impeached for 
filing a false tax return, and that presidents generally are in the 
unique position of being subject to impeachment and removal whenever it 
becomes possible to pin a federal offense--any federal offense--on 
them. Yet it simply cannot be the case under our Constitution that 
removing a sitting president should be easier, not harder, than 
removing a vice president, a cabinet officer, or a sitting federal 
judge. After all, the Constitution itself expressly recognizes the 
special gravity of what we do when we even try, much less remove, a 
president: It puts the Chief Justice of the United States in the chair 
to preside over the trial, something it does not do when any other 
federal officer, including the Vice President, is impeached and put on 
trial in the Senate. And, beyond this express recognition of how much 
is at stake, there is the brute fact that only when we put the 
President on trial are we placing one federal branch in a position to 
sit in judgment on another, empowering the Congress essentially to 
decapitate the Executive Branch in a single stroke--and without the 
safeguards of judicial review. Neither of the other two branches of the 
national government is embodied in a single individual, so the 
application of the Impeachment Clause to the President of the United 
States involves the uniquely solemn act of having one branch 
essentially overthrow another. Moreover, in doing so, the legislative 
branch essentially cancels the results of the most solemn collective 
act of which we as a constitutional democracy are capable: the national 
election of a president. To suggest that, having deliberately rejected 
parliamentary supremacy at the founding of our republic, we should now 
embrace a theory that would make the President the most vulnerable of 
all federal officials to the drastic remedy of impeachment and 
removal--truly the political equivalent of capital punishment--is 
preposterous.
    None of this is to say that the Take Care Clause is unimportant, or 
that presidential abuse that rises to an impeachable level might not 
take the form of a violation of that clause. Of course it might. 
Certainly, a president who ordered the IRS to stop collecting federal 
income taxes for six months as part of his reelection campaign, or the 
FDA to stop enforcing the laws against marijuana use because he was 
philosophically opposed to the regulation of marijuana or because he 
was widely known to have used it as a youth and feared accusations of 
hypocrisy, would have committed an impeachable high crime or 
misdemeanor of the most dramatic sort by shredding his obligation to 
execute the laws of the country. But that is a far cry from what occurs 
if a president personally violates several related federal criminal 
laws in the course of trying to cover up an embarrassing sexual affair, 
without turning any executive agency into an instrument of the 
president's wrongful conduct or otherwise abusing the powers of the 
presidency or working grave injury to the nation and its government.
                       applying these principles
    It may be useful to contrast the conclusion that presidential 
misconduct even involving such offenses as perjury may, depending upon 
the circumstances, involve no abuse of official power and no serious 
harm to the system of government and hence no impeachable offense, with 
the potentially impeachable offenses that might have been uncovered--
and might yet be uncovered--in the areas of inquiry with which the 
Office of Independent Counsel began its investigations of President 
Clinton more than four years ago. Thus, it remains theoretically 
possible that the President might be found to have committed 
impeachable offenses if there were convincing proof that he was 
personally connected to the allegations involved in ``Filegate,'' where 
it is said that the White House procured some 400 FBI files on members 
of the Reagan and Bush administrations.\36\ Clearly, a president who 
deliberately uses an executive agency to seek ``dirt'' on political 
opponents is abusing presidential power to undermine the political 
processes established by the Constitution and thereby cause the most 
serious injury to our constitutional system. There might even be 
circumstances in which a president, by deliberately looking the other 
way with a wink and a nod while lower executive officials performed 
such nefarious work while maintaining maximum plausible deniability for 
their chief, would have committed an impeachable violation of the Take 
Care Clause.
---------------------------------------------------------------------------
    \36\ See John F. Harris & George Lardner, Jr., Key White House 
Figure in FBI Files Case on Leave, Wash. Post, at A1 (June 16, 1996).
---------------------------------------------------------------------------
    Similarly, if President Clinton were responsible for the abuses 
alleged in Travelgate, in which seven members of the White House travel 
office were fired in 1993 apparently to make room for a distant cousin 
of the President,\37\ one might at least make a forceful argument that, 
despite the absence of serious harm to the nation as a whole, such 
corrupt misuse of presidential power would be so close to bribery that 
it too should qualify as a high crime and misdemeanor. So too if 
President Clinton had induced the Pentagon or The White House to break 
the ordinary hiring rules for that agency in order to find a sinecure 
for a young intern in exchange for her willingness to file a false 
affidavit.
---------------------------------------------------------------------------
    \37\ See Ann Devroy & Micheal Isikoff, Clinton Staff Went Past Reno 
to FBI, Wash. Post, at A1 (May 25, 1993).
---------------------------------------------------------------------------
    But none of these things, and nothing truly comparable, has been 
alleged against President Clinton. Even if, for example, he arranged a 
job for the young woman in question at a private firm in the 
expectation that she would then be less likely to contradict his denial 
of any improper sexual affair, neither an abuse of presidential power 
as such, nor conduct demonstrably injurious to the nation, would have 
occurred, and impeachment would accordingly be improper.
    The strongest case for identifying an impeachable offense in the 
allegations currently pending against the President is probably to be 
found in the claim that he committed perjury before the grand jury or 
obstructed its work not simply to avoid personal embarrassment and 
indictment for a private wrong (in the form of prior false statements 
under oath in a civil deposition into which the President felt he had 
been trapped), but to avoid a constitutional check by staving off 
impeachment--even if the impeachment he sought to avoid would in fact 
have been unwarranted. If it could be shown that President Clinton 
deliberately sought to usurp the impeachment power of Congress--part of 
which had been delegated through the Independent Counsel Act to the 
grand jury in this matter--by preventing the referral called for in 
that Act from containing a full account of his own prior conduct, then 
at least the outlines of a high crime or misdemeanor might be 
visible.\38\ But attributing to the President such a constitution-
subverting program, rather than the more straightforward effort to 
minimize embarrassment and reduce the risk of criminal indictment, 
seems implausible and indeed unfair.\39\ And, even assuming such an 
impeachment-triggering scheme, the threat of substantial harm to the 
nation that would be required to establish a high crime or misdemeanor 
is nowhere to be found.
---------------------------------------------------------------------------
    \38\ See Report of the House Judiciary Committee, Impeachment of 
Richard M. Nixon, President of the United States, Report No. 93-1305, 
at 188 (Aug. 20, 1974) (third article of impeachment) (alleging that 
Nixon had assumed ``to himself functions and judgments necessary to the 
exercise of the sole power of impeachment vested by the Constitution in 
the House of Representatives'').
    \39\ President Nixon's conduct in thwarting the work of the House 
Judiciary Committee involved efforts to conceal his own involvement in 
``actions demonstrated by other evidence to be substantial grounds for 
impeachment of the President,'' id., something that could not be said 
of any possible thwarting of the grand jury's inquiry by President 
Clinton, and something for which no explanation extrinsic to the 
Executive-Legislative clash could be offered.
---------------------------------------------------------------------------
    Applying the principles set forth in this statement, therefore, I 
would be hard pressed to find in anything that has been alleged against 
President Clinton thus far a defensible basis to impeach and remove a 
president from office. What other options might be available to 
Congress in these circumstances, where the President himself has 
conceded that he behaved indefensibly, is beyond the scope of this 
statement. So too is the question whether, if indeed the public is 
tired of this whole matter and believes that the President has been 
made to suffer enough for his sins, Congress has some sort of 
obligation to let the matter rest.
    One thing is clear in the latter regard: Anyone who insists that 
Congress has the converse obligation--an obligation, having taken up 
the impeachment cudgels and begun to wield them in a setting that might 
on reflection prove ill-suited to such drastic remedies, to pursue this 
course to the bitter end--is mistaken. Just as ordinary prosecutors 
have discretion not to push their power to the outer limits, and not to 
take to trial someone they believe it would serve no useful purpose to 
pursue further, so too the House of Representatives, entrusted by 
Article I, Section 2, clause 5, with the ``sole Power of Impeachment,'' 
has discretion--even more clearly than does the average prosecutor--to 
cease and desist rather than pressing on. Article II, Section 4 
contains only one mandatory provision: It mandates that the President 
or any other federal officer ``shall be removed from Office on 
Impeachment for, and Conviction of, Treason, Bribery, or other high 
Crimes and Misdemeanors.'' If the Senate convicts, there is no room for 
clemency; the convicted offender must be removed. But that is the only 
``must'' in the picture.
    Some argue that, at least if something that might technically fit 
the definition of a high crime or misdemeanor is believed to have been 
committed by the President, the House has a ``duty'' under the 
Constitution to impeach the president and hand him over to the Senate 
for trial. But there is no more in the Constitution to support that 
argument than there is to support the argument that, having begun a 
formal impeachment inquiry, the House must see the matter through. The 
Constitution, in this matter as in many others, leaves ample room for 
judgment, even for wisdom, in the deployment of power. What it leaves 
no room for is the impeachment of a president who has not committed 
``Treason, Bribery, or other high Crimes and Misdemeanors.''

    Mr. Canady. Professor Bloch.

STATEMENT OF SUSAN LOW BLOCH, PROFESSOR OF CONSTITUTIONAL LAW, 
                GEORGETOWN UNIVERSITY LAW CENTER

    Ms. Bloch. I want to start by thanking you for the 
privilege of being here on a very serious and solemn occasion, 
deciding on what basis the House of Representatives can impeach 
the President of the United States. In addressing this 
question, I think there are several fundamental principles on 
which I believe most constitutional scholars agree.
    First, as has been stated, we obviously start with the 
Constitution, and I don't think that the phrase, what is a high 
crime and misdemeanor is whatever a majority of the House 
thinks it is, notwithstanding Gerald Ford's famous statement 
when he was in the House. The framers of the Constitution, as 
has been indicated, spent a considerable amount of time 
debating and formulating the standard for impeachment and met 
the standard. They chose to have a limiting effect on the scope 
of impeachable conduct.
    Before a Representative votes to impeach, he or she must 
determine whether the alleged misconduct in fact constitutes 
treason, bribery or other high crimes and misdemeanors. That 
does not mean that I believe the court will or should review 
the House's decision. I don't think courts would, or should, 
but I do think that the Members of the House, if they are 
acting constitutionally and conscientiously, should impeach not 
merely if they are offended by the President's conduct, but 
only if they conclude that, in fact, his actions constitute 
treason, bribery or high crimes and misdemeanors, and therefore 
warrant potential removal from office.
    It seems to me clearly wrong to ask that the inquiry is not 
whether the President is fit or unfit for office. It is clearly 
not the terminology adopted by the Constitution, it is much too 
broad and amorphous. I agree that a President who does commit 
treason, bribery or other high crimes and misdemeanors is unfit 
for office, but those are the only actions for which he can be 
impeached and removed by the Congress. Any other transgressions 
which some believe might make him unfit for office are to be 
judged not by the Congress, but by the electorate.
    I cannot stress enough the fact that the framers 
deliberately rejected a parliamentary system and that if we 
lower the bar of what constitutes and warrants impeachment, we 
will be moving unconstitutionally toward a parliamentary 
system. Obviously, if the country wants to move in that 
direction, it can do so, but only by a constitutional 
amendment, not by transforming the remedy of impeachment.
    Second, I believe the decision to impeach that you are 
making here is enormous, and the precedential effects of 
whatever you do will be felt forever. For this reason, in 
deciding whether or not to vote out articles of impeachment, it 
is not enough for you to say, well, it is a close question, and 
let's just send it to the Senate and see if they decide to 
convict and remove the President. In my opinion, that would be 
an irresponsible vote.
    Impeachment, as you know, is a monumental event. The vote 
to decide to impeach starts us down a track, the end result of 
which can be the removal of the President, the democratically 
elected head of one-third of the Federal Government. By giving 
the House the sole power to impeach, the Constitution 
anticipates not only that the House has discretion to decide 
whether to impeach, but that it will exercise that discretion 
responsibly, will exercise that responsibility carefully and 
conscientiously.
    Third, in deciding whether particular actions constitute 
high crimes and misdemeanors, we have to pay close attention to 
the text, and you have heard a lot about that, and I will just 
summarize briefly. The fact that the Constitution specifically 
enumerates treason and bribery as the quintessential 
impeachable offenses suggests that impeachable wrongs are those 
that undermine the state or our constitutional system. As 
others have indicated, it is acts by which the President or 
another civil officer misuses his office to undermine the state 
or otherwise acts in a way to threaten the constitutional 
scheme that are the principal subjects of impeachment.
    Fourth, I cannot emphasize enough how important it is to 
distinguish impeachment from criminal prosecution. I think that 
got a little lost sometimes this morning. The Constitution 
clearly distinguishes the two remedies. Article I, section 3, 
provides, ``Judgment in cases of impeachment shall not extend 
further than to removal from office and disqualification to 
hold and enjoy any office of honor'' later: ``but the party 
convicted shall nevertheless be liable and subject to 
indictment, trial, judgment and punishment, according to law.''
    Now, criminal prosecution is the means by which we punish 
someone who has committed a crime, and President Clinton may, 
when he is out of office, face such punishment. Impeachment, by 
contrast, is not designed to be punishment. It is the means by 
which the American people can remove from office someone who, 
by his actions, can no longer serve. Impeachment, especially of 
the President, is a grave event and should be reserved for only 
the most serious misdeeds that in fact undermine the country.
    In terms of procedure, I would suggest that before the 
House Judiciary Committee gets embroiled in trying to sort out 
the facts, that it make a threshold determination of whether 
the allegations in the Starr referral rise to the level of an 
impeachable offense and warrant impeachment. While I have 
substantial questions about the constitutionality of the 
referral provision in the Independent Counsel statute, the one 
good thing about the fact that the referral exists at this 
point is that it can allow the Judiciary Committee to, in 
essence, rule as a court would on a motion for summary 
judgment. Only if the committee concludes that the facts, as 
alleged--and I can't emphasize enough that they are still 
allegations--only if they conclude that the facts, as alleged, 
warrant going forward with impeachment should they embark on 
what is likely to be a prolonged and very unattractive search 
for the facts.
    With that in mind, let me tell you that I believe the facts 
as alleged in the Starr referral do not warrant impeachment. 
Let me address briefly the arguments most frequently put forth 
by those who disagree with me. First, some argue that since we 
can and do impeach Federal judges for lying under oath or 
committing perjury, we should do the same for the President. I 
disagree. I agree that both are subjected to the same terms, 
``treason, bribery and other high crimes and misdemeanors,'' 
but it does not necessarily mean that the conduct that fits a 
high crime and misdemeanor for a judge should dictate that that 
fits for the President.
    The distinctions between judges and Presidents are 
significant. Judges are appointed for good behavior; that means 
that unless they are impeached, they can serve for life. 
Presidents obviously have no such textural constraint and can 
serve only if the electorate supports them; they are 
accountable to the electorate. Moreover, if the quintessential 
offense is abuse of office or undermining the constitutional 
scheme, it makes sense that the ways in which judges can misuse 
their office can be different from how a President might do so.
    In addition, judges accused of crimes can be criminally 
prosecuted while they are on the bench and that means we can, 
and have had, the spectacle of judges committed of a crime 
sitting in jail while collecting a paycheck as a Federal judge. 
It is important that there is a way to remove such judges from 
office and the only way is impeachment; otherwise we will have 
convicted felons, both in jail and out, serving as Federal 
judges for life.
    Finally, there are hundreds of Federal judges, and in 
impeaching and removing one or two now and then, while 
unfortunate, is not at all comparable to the wrenching effect 
of removing the President of the United States. Enduring such a 
wrenching effect is not necessary unless the misconduct 
undermines the constitutional scheme. Whoever the President is, 
we know under the Constitution that he will either be subject 
to the judgment of the electoral process or, given term limits, 
will be out of office shortly.
    I think it is too simplistic that conduct that warrants 
impeaching a Federal judge necessarily warrants impeaching a 
President. Such a conclusion, in my opinion, ignores the text, 
the structure of the Constitution.
    The second argument that we heard today, I think a few 
times, is that by failing to impeach the President for 
allegedly lying under oath will set a bad example and suggest 
that the President is above the law. Further, they argue that 
because he takes an oath to faithfully execute the Office of 
the President, including his responsibility to take care that 
the laws are faithfully executed, it follows that a crime 
committed by the President undermines the constitutional 
scheme.
    Two responses to that argument: One, deciding not to 
impeach the President for lying under oath does not put him 
above the law. If he lied under oath in the Paula Jones case, 
he can be subjected to sanctions by Judge Wright. If he 
committed any crimes in the deposition or grand jury, he can 
face criminal prosecution when he is out of office. It is 
important to distinguish punishment, criminal punishment from 
impeachment.
    Third, I think it just goes too far, too much of a 
bootstrap to say that any crime by a President as a violation 
of his oath will trigger others to violate the law and, 
therefore, undermines the law central to our constitutional 
scheme. Accepting such an argument makes every single potential 
crime that a President might commit an impeachable offense, and 
I think that goes too far.
    In conclusion, I just wanted to emphasize that powers to 
write out articles of impeachment and possibly impeach, like a 
decision whether to indict, is discretionary; and it seems to 
me most of the comments I have heard today, I think agree with 
me on both sides. I can recommend that even if you believe that 
some of the allegations come close to being impeachable 
offenses or even are impeachable, that you exercise your 
discretion in this case to decide to terminate this proceeding 
without voting out any articles of impeachment. The reason I 
urge that is because I fear very dangerous consequences for 
proceeding with an impeachment on the facts as alleged so far.
    In summarizing briefly, the consequences that I fear are, I 
fear the development of sexual witch-hunts in the future, 
subjecting other political figures to close examination of his 
or her sexual relations, which I would think would be a very 
unfortunate event and one that we should do whatever we can to 
avoid.
    Second, if the House invokes the impeachment clause to 
readily lower the threshold and move us much closer to a 
parliamentary system--and this danger is particularly 
aggravated if the process is partisan or perceived as too 
partisan--a weak President subject to recall by the Congress is 
not how our system of separation of powers is supposed to work, 
and we should do everything in our power to avoid that.
    Finally, it is important to remember that even if President 
Clinton is impeached, and--but survives a trial in the Senate, 
merely subjecting the presidency to such a process weakens the 
office. When Andrew Johnson was impeached for what most 
scholars now believe were inappropriate charges, the fact that 
he was ultimately convicted by the Senate did not prevent the 
weakening of the office. On the contrary, most scholars believe 
that the process itself significantly weakened the office of 
the presidency for the rest of the century. That process should 
scare us, especially in our era. A weak President is a 
dangerous and frightening prospect.
    Thank you. I am sorry I went a little over.
    Mr. Canady. Thank you, Professor Bloch.
    [The statement of Ms. Bloch follows:]
Prepared Statement of Susan Low Bloch, Professor of Constitutional Law, 
                    Georgetown University Law Center
    Obviously, we should start with the text of the Constitution. 
According to Article II, section 2, the President can be impeached, for 
``Treason, Bribery, or other high Crimes and Misdemeanors.'' Thus, we 
must ask two questions:

          First, what does the phrase mean?
          Second, does President Clinton's alleged conduct fall within 
        that category?

    I won't go through the entire history, but let me briefly summarize 
the events leading to adoption of the existing phrase. The question of 
whether the president should be removable during his term was carefully 
debated by the framers of the Constitution. Some of those at the 
Constitutional Convention thought the president should not be 
impeachable at all: He should be able to serve out his four-year term 
and be accountable only to the electorate. There was no reason to make 
him removable during his term. Others thought he should be removable by 
the Legislature at will, much as in a parliamentary system. Finally, 
there was a compromise position that ultimately carried the day: the 
President could be removed from office but only for a narrow category 
of offenses.
    Those who believed there should be some grounds for impeachment and 
removal were worried about some extreme possibilities. What if the 
President had bribed electors to get into office? Shouldn't he be 
removable for that? Or what if we were at war, and he gave secret 
information to our enemy, would we have to wait until the end of his 
term to remove him? To deal with these egregious possibilities, the 
framers decided to provide for impeachment and removal for ``treason or 
bribery.''
    But then some asked what if the president totally undermines the 
constitutional order by some other means; would we have to endure that 
for 4 years? So James Mason suggested adding as an additional 
impeachable offense the term ``maladministration.'' But James Madison 
was concerned that the term was too vague. In response, Mason 
thereafter substituted the term ``maladministration'' with the phrase 
``or other high Crimes and Misdemeanors,'' a term taken from English 
law that appears to have referred to political offenses against the 
state.
    Based on the text as well as its history, I think we can make 
several observations.
    First, the question of what is a high crime and misdemeanor is not 
whatever a majority of the House thinks it is. Notwithstanding Gerald 
Ford's statement--when he was still in the House and before he became 
president--that the phrase means whatever a majority of the House 
thinks it means, he was wrong. Constitutionally, the House can only 
impeach for treason, bribery, or other high crimes and misdemeanors and 
the framers meant that phrase to have a limiting effect on the scope of 
impeachable conduct. The House must try to see whether the alleged 
action in fact falls within the category of treason, bribery, or other 
high crimes and misdemeanor.
    That does not mean I believe the courts will or should review the 
House's decision. I do not think the courts would or should. But I do 
think that House members, if they are acting constitutionally and 
conscientiously, should impeach not merely if they are offended by the 
President's conduct, but only if they conclude the actions, in fact, 
constitute treason, bribery, or other high crimes and misdemeanors.
    In that connection, let me clarify a common misconception. The term 
``misdemeanors'' as used in the Constitution does not mean what we 
think of as a misdemeanor today. It does not mean a minor crime such as 
jaywalking or speeding. It is an old English term that means serious 
offenses against the state.
    Second, the fact that the Constitution specifically identifies 
treason and bribery as the quintessential impeachable offenses suggests 
that impeachable wrongs are those that undermine the state or our 
constitutional system. In particular, it is acts in which the president 
uses his office to undermine the state that are the principal subject 
of impeachment.
    Third, it is important to distinguish impeachment from criminal 
prosecution. The Constitution clearly distinguishes the two remedies. 
Article I, Section 3 provides: ``Judgment in Cases of Impeachment shall 
not extend further than to removal from Office, and disqualification to 
hold and enjoy any Office of honor, Trust, or Profit under the United 
States; but the Party convicted shall nevertheless be liable and 
subject to Indictment, Trial, Judgment, and Punishment, according to 
Law.'' Criminal prosecution is the means by which we punish someone who 
has committed a crime. President Clinton may, when he is out of office, 
face such punishment. Impeachment is not a punishment. It is a means by 
which the American people can remove from office someone who by his 
actions can no longer serve; in the case of the president, impeachment 
is designed to remove someone who can no longer be commander in chief 
and chief executive. Impeachment of the president is a grave event. It 
undoes a national election, removes the embodiment of one of the three 
branches of government and therefore should be reserved for only the 
most serious misdeeds.
    Fourth, simple crimes that ordinary people can commit should not be 
grounds for impeachment. The best evidence of that is that during 
Watergate, the Judiciary Committee refused to adopted an article of 
impeachment for Nixon's alleged tax fraud because tax fraud could be 
committed by anyone and was not considered an abuse of the president's 
office.
    But, notwithstanding my understanding that the remedy of 
impeachment was designed principally to deal with serious abuses of 
office, I believe that very serious personal misconduct such as murder 
can also be grounds for impeachment. If the crime is so heinous that a 
person cannot be allowed to walk the streets, we do not have to wait 
until the next election to make him leave the White House.
    Fifth, I want to emphasize that the House has discretion in 
deciding whether or not to impeach. Like a prosecutor's decision 
whether or not to indict, the House has discretion to decide, even if 
it believes the alleged conduct might be an impeachable offense, 
whether or not it should impeach. If you doubt that, ask yourself 
whether you think the House would be required to impeach a president in 
the middle of a war.
    With this understanding of the constitutional phrase, let me 
address the various allegations raised against President Clinton. 
Different people have identified the allegations against President 
Clinton in different ways. The Independent Counsel identified eleven 
possible counts. Counsel Schippers alleged fifteen different counts. 
Chairman Hyde has suggested there might be two or three.
    I see essentially three different possible allegations:

          --Perjury or lying under oath
          --Obstructing justice by getting others, including staff 
        members, to lie to the public and maybe to the grand jury
          --Invoking privileges and having staff members invoke 
        privileges before the grand jury
1. Regarding perjury or lying under oath
    To begin with, I would note that neither Starr nor Schippers 
alleges perjury. I suspect that is because perjury is difficult to 
prove and there are reasonable arguments that President Clinton did 
not, in fact, commit perjury.
    But we still need to discuss whether perjury or lying under oath 
about a consensual sexual affair constitutes ground for impeachment. I 
do not believe it does. Some have argued that judges have been 
impeached and removed from office for perjury, but I would caution you 
not to equate what is an impeachable offense for a president with what 
is impeachable conduct for a judge.
    While both judges and presidents are subject to the same provision 
of Article II regarding impeachment for treason, bribery or other high 
crimes and misdemeanors, judges are, in addition, governed by section 1 
of Article III which provides that federal judges serve ``during good 
Behaviour.'' We often say federal judges are appointed for life, but 
more accurately, they are appointed only during good behavior. 
Moreover, judges never face the electorate, either to obtain their 
office initially or to retain their position. They are therefore very 
differently situated than presidents. The text of the Constitution does 
not provide that presidents serve only ``during good behavior.'' The 
Constitution assumes that, in general, the electorate, not the 
Congress, will decide whether the president's behavior is acceptable. 
Thus, the fact that judges have been impeached for perjury does not 
tell us that presidents should also be removable for such behavior. 
While it makes sense to impeach and remove a ``life-tenured'' judge who 
commits perjury--who without impeachment will serve for life, it does 
not necessarily follow that we should remove a democratically elected 
president who is subject to electoral accountability and a fixed term 
for allegedly lying, even under oath, about a consensual sexual affair.
    Some have argued that for the President to lie to the American 
people for 7 months should be an impeachable offense. Some lies, such 
as lying about whether or not we are bombing another country, could 
constitute a serious abuse of office. But if covering up a consensual 
sexual relation and pretending to the public that no such activity took 
place is an impeachable offense, I think we will be impeaching 
presidents and other officials much too often and too easily. Such 
conduct, while unfortunate, does not undermine our constitutional 
system and therefore should not be grounds for removing from office a 
democratically elected president.
2. Is obstructing justice impeachable, especially when it involves the 
        arguable use of government officials to lie to the American 
        people and maybe to the grand jury?
    This is one of the more difficult questions. There clearly are 
situations where a president's using government officials to impede an 
investigation is an abuse of office that can undermine our 
constitutional scheme. I think the allegations that President Nixon 
tried to get the CIA to stop the FBI from investigating Watergate was 
an abuse of office that appropriately constituted one of the articles 
of impeachment by the Judiciary Committee in 1974.
    But I believe what Clinton is alleged to have done does not 
constitute an abuse of office. Failing to confess to your staff that 
you had an inappropriate liaison with an intern is not an abuse of 
presidential power and does not undermine the constitutional scheme; it 
is an understandable reluctance to confess embarrassing personal 
misconduct.
    Moreover, even if this allegation gets close to what is 
impeachable, I think the House in its discretion should decide that 
impeaching the President for this conduct is overkill and a bad 
precedent. I believe that impeaching the President for this conduct 
will provoke future, and I submit dangerous, sexual witch-hunts not 
only against future presidents but public officials generally.
3. Regarding the President's invocation of privileges, I think 
        impeaching a president for invoking lawful privileges is a 
        dangerous and ominous precedent.
    When President Clinton invoked executive privilege and attorney 
client privilege, neither claim was frivolous. In both cases, some of 
the judges agreed with at least some of his reasoning. When President 
Clinton ultimately lost his argument, he complied with the judicial 
decision. Merely asking the judiciary to rule should not be an 
impeachable offense. When President Nixon invoked executive privilege 
in 1974, he did a great service for the office of the presidency. While 
Nixon ultimately was ordered to turn over his tapes, in the course of 
his argument he got the Supreme Court to assert that there was a 
constitutionally protected executive privilege. Asserting such a 
privilege was not an abuse. In fact, Nixon's argument strengthened the 
office of the presidency and that is something I think we want our 
presidents to do.
    Finally, I would like to say a word about the importance of every 
step the House takes. In the same way that we today look back to the 
Watergate proceedings for precedent, future generations will look back 
on what you do for guidance and precedence. And I see several possible 
dangerous consequences in deciding to impeach President Clinton for 
what has been alleged so far.
    First, as I suggested earlier, I fear the development of sexual 
witch-hunts in the future, subjecting every political figure to close 
examination of their sexual relations. I think such a development would 
be very unfortunate and I don't understand why politicians are not more 
worried about that.
    Second, if we use impeachment too readily, we will lower the 
threshold and move us much closer to a parliamentary system where the 
president serves at the pleasure of the Congress. This danger is 
aggravated if the process is too partisan or perceived as too partisan. 
A weak president subject to recall by the Congress is not how our 
system of separation of powers is supposed to work and we should do 
everything in our power to avoid such a result.
    Finally, it is important to remember that even if President Clinton 
is impeached by the House but survives a trial in the Senate, the mere 
fact of having subjected the president to such a trial can weaken the 
office. When President Andrew Johnson was impeached for what most 
scholars now believe were inappropriate charges, the fact that he was 
ultimately not convicted by the Senate did not prevent the weakening of 
the office. On the contrary, most scholars believe that the process 
itself significantly weakened the office of the Presidency for the next 
40-50 years. That possibility should scare us and make the House think 
twice: a weak president in this modern era is a dangerous and 
frightening prospect.
    I will be glad to answer any questions.

    Mr. Canady. Professor Van Alstyne.

STATEMENT OF WILLIAM VAN ALSTYNE, DUKE UNIVERSITY SCHOOL OF LAW

    Mr. Van Alstyne. Mr. Chairman, you have heard from so many, 
I hardly have a prepared statement, and I find myself actually 
almost midway in this panel now, having been educated by my 
colleagues. So I shall have remarks under 10 minutes to share. 
I think I can deliver them quite briefly.
    First, I utterly disagree with those of my colleagues who 
would take the view that if the President of the United States 
commits the felony crime of perjury, as many as three times in 
his deposition in the civil proceeding, as was alleged to have 
done, and twice again later after 6 months' opportunity to 
soberly consider these matters before the grand jury for his 
appearing publicly indeed as President; and if this committee 
were likewise to believe that the Federal crime of tampering 
with a witness for which there was substantial and credible 
information in the 425-page report, a Federal crime currently 
punishable by 10 years in the Federal penitentiary; and if 
separately, you thought that if the President, in fact, 
committed a separate crime of obstructing justice, it is a 
separate statute with a separate 5-year penalty; and still 
another, a Federal statute making a 5-year term of 
imprisonment, so far as one even files false affidavits in 
Federal court; if you collectively concluded that though there 
were clear and substantial evidence of those crimes in the 
aggregate, overtly committed by the President, constantly 
denied, and using the power of his office to collude with 
others while President in concealing evidence and making false 
statements to induce even members of his cabinet to make false 
statements before a Federal grand jury, if you concluded that 
those added up to something less than that which could 
withstand scrutiny as articles of impeachment within the 
definition of high crimes and misdemeanors, then I would be 
both astonished and profoundly disappointed with each of you.
    I cannot believe that that would be so.
    It seems to me the presentation you have heard from Forrest 
McDonald, as well as many others, and by your own reading of 
Blackstone's Commentaries and a common understanding of high 
crimes and misdemeanors, that these multiple forms of serious 
criminal misconduct, while in office, and linked to his 
activities while President, linked to his lascivious conduct 
thought to be concealed in the Oval Office and in an attempt 
even to persuade his secretary probably to retrieve the 
evidence which would finally force his own acknowledgment in 
public of these disreputable activities, if you saw no 
connection with these, his malperformance in office or the 
abuse of his office, and you thought that there is nothing here 
whatever that could colorably turn the color of legal litmus in 
Article I, Section 4, as high crimes and misdemeanors, then I 
would be very disappointed and quite surprised.
    I think it is simply not so.
    I think the combination of medically proven ingredients 
that the sum is indeed at least the total of the parts and not 
the parts dismembered and isolated one from another, 
collectively add up to a shabby treatment of the American 
judicial system in an effort to try to deprive a litigant of 
her civil rights by acts of perjury in the Federal courts, and 
then to attempt to cover it up even subsequently, then these 
are serious matters.
    As I say, my one concern is not that you go forward 
necessarily to impeach this President. You may very well leave 
him to the judgment of the American people, such as it may be, 
for better or worse. But I would gravely regret a collective 
decision on your part that this combination of reprehensible 
behavior by the incumbent President of the United States could 
not possibly outfit a cause to have him removed from office for 
high crimes and misdemeanors.
    I simply have no doubt that if you stack the evidence of 
one felony on top of another, and indeed do relate it to his 
conduct while President of the United States in order to 
deprive a person of a fair litigative opportunity under the 
civil rights laws of this country, having incidentally failed 
to claim absolute immunity from being sued at all, a position 
incidentally he was supported in by the preceding immediate 
witnesses and, they claim, where he found not a single vote of 
support in the Supreme Court of the United States on his 
exaggerated claim of immunity and specialness.
    So my primary concern then is that you not reach that kind 
of conclusion and not feel the least bit that it has been a 
mistake or premature to invoke these hearings for this kind of 
review.
    On the other hand, events have now so far transpired, I 
think that you and we as witnesses face a common dilemma as to 
how best to proceed. For in my own judgment, in all frankness, 
it is as though the nature of the wrongs that the President has 
committed, which I have no doubt technically will outfit the 
kind of articles of impeachment, Congressman Barr, that you had 
earlier sketched, but to a certain extent, the behavior in the 
aggregate now has struck me in retrospect as low crimes indeed. 
That is to say, behavior which in retrospect which is 
pusillanimous and reprehensible and hardly worth the time of 
the Nation to forward to the Senate for trial for the outcome 
would be very doubtful. Indeed, I think hardly any member of 
this committee, or among those sitting here as witnesses, 
expects the result in conviction rather than some kind of 
desultory process that will run a sad end.
    So my counsel to you is twofold. First, please avoid the 
sort of arid advice I hear being given here as though you are 
now to set a precedent that the combination of Federal felonies 
of which there is substantial evidence involving the President 
of the United States should nonetheless be resolved by you as 
excluded by the Constitution as suitable grounds to remove the 
President who commits them. Please do not reach that conclusion 
at all.
    On the other hand, to the extent that you can struggle to 
find a suitable means to express a sense of disappointment, if 
not despair or contempt for a President who, in my opinion, has 
compromised the integrity of his office in the manner in which 
he has lied to the public, disparaged other people and 
attempted to frustrate the processes of justice of this 
country, if you can find some other measure by means of which 
of acquitting yourself of your own sense of dignity and 
propriety, then I would urge you to that course--not being 
invited to advise you on how to do that, but I have no doubt at 
all, incidentally, that insofar as you could find a device to 
do so, you ought not then be cozened out of it on some rhetoric 
that that too is beyond your constitutional prerogative.
    The prerogative of this Congress to express its dismay or 
despair or, indeed, condemnation of the contemptible conduct 
that has characterized Mr. Clinton's backing and filling in 
many ways is surely within your constitutional discretion, and 
I hope, by all means, you will find a suitable vehicle to 
manage to do it.
    Thank you for your time.
    Mr. Canady. Thank you, Professor Van Alstyne.
    [The statement of Mr. Van Alstyne follows:]
 Prepared Statement of William Van Alstyne, Duke University School of 
                                  Law
                                   i
    Article 1, Sec. 2, of the Constitution provides that ``The House of 
Representatives . . . shall have the sole Power of Impeachment.'' In 
turn, Article 1, Sec. 3, of the Constitution next provides that ``The 
Senate shall have the sole Power to try all Impeachments.'' And Article 
II, Sec. 4, in turn, provides: ``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.'' Thus the division of responsibility is fixed 
in the Constitution between the House and the Senate, in respect to 
impeachment (by the House) and trial (by the Senate), of every civil 
officer of the United States (including the President), with respect to 
whom impeachment proceedings may be brought. Thus, also, is the 
President, just as any other civil officer, made answerable in the 
manner described in Article II, Sec. 4.
                                   ii
    That the President and Vice President are encompassed by these 
provisions of the Constitution, and that they are encompassed in the 
same manner (and not in some different manner) as each other ``civil 
officer'' similarly subject to these same clauses,\1\ moreover, is also 
equally clear simply from the respective clauses on their face. Thus, 
for example, whether it were acceptance of a bribe by or on behalf of 
the President (e.g., to grant a reprieve or pardon), rather than 
acceptance of a bribe by or on behalf of a federal judge (e.g., to 
suspend sentence of one convicted in a jury trial in his court), the 
difference would offer no distinction whatever respecting whether the 
one civil officer (the federal judge) but somehow not the other (the 
President) has brought himself within the impeachment clause, such as 
it is. The offense, that of ``bribery,'' \2\ is obviously not treated 
differently (i.e., less consequentially) under the clause because of 
the ``higher'' or ``lesser'' status of the person holding federal civil 
office. That he or she may be elected (as may assuredly be true of the 
President or Vice President) rather than appointed to office (as may be 
true of a federal judge or a member of the President's cabinet), 
moreover, is likewise neither here nor there.
---------------------------------------------------------------------------
    \1\ The sole uncertainty, in respect to ``civil officers,'' 
involves Members of Congress. (In respect to Members of Congress, 
though they are certainly civil officers (as distinct from those in 
military service), the express provision in Article I, Sec. 5 (that 
``Each House may determine the Rules of its Proceedings, punish its 
Members for disorderly Behaviour, and, with the Concurrence of two 
thirds, expel a Member'') may establish an exclusivity of removal-from-
office power respectively in each house.)
    \2\ [A term that plainly means to include ``acceptance of a 
bribe,'' and not merely ``payment of a bribe.'']
---------------------------------------------------------------------------
                                  iii
    Indeed, insofar as there are considerations that were felt 
sufficient to provide cause to identify the office of the President as 
different from any other civil office in respect to the impeachment 
provisions of the Constitution, such as they are, these provisions are 
easily discovered (e.g., in the provision describing who presides 
during an impeachment trial \3\). And quite expressly, none of these 
(there is really only one--the one just noted) presume in any manner 
whatever to modify or qualify the character or range of offenses 
encompassed by Article I, Sec. 4, so to exempt a President for 
offenses, or make him less subject to impeachment and trial for those 
offenses, than others, merely on account of who he is or on account of 
the nature of the office he holds.
---------------------------------------------------------------------------
    \3\ See the provision in Article I, Sec. 3 (though the Vice 
President ``shall be President of the Senate,'' and thus will 
ordinarily preside (unless he is absent in which case an elected pro 
tempore President shall preside), if and only ``when the President is 
tried, the Chief Justice shall preside'').
---------------------------------------------------------------------------
    Nor in this regard is it of any constitutional consequence 
that he--the President--is elected, moreover, while other civil 
officers subject to the clause (cabinet members, federal court 
judges), happen not to be elected but instead hold provisional 
tenure by some other means. Indeed, that the fact that he is 
elected, but despite being elected brings himself to commit 
serious crimes,\4\ shall in no respect affect some special 
release, much less some exemption, or lesser degree of 
accountability of one who is President, under the impeachment 
clauses, is reflected by the special precaution explicit on the 
face of the impeachment clause itself. For it is, first of all, 
as the clause itself declares, precisely the ``President, `` 
and then, also, the ``Vice President,'' and only then, as well, 
any other ``civil officer'' of the United States, who ``shall 
be removed from Office'' on determination of Congress, ``on 
Impeachment for, and Conviction of, Treason, Bribery, or other 
high Crimes and Misdemeanors.'' \5\ And it is noteworthy, too, 
consistent with this merely equal accountability in the 
President, that there likewise is no requirement or provision 
requiring a more substantial vote in the Senate, or any other 
procedural requirement respecting conviction in the case of a 
President, than that required in respect to any other civil 
officers subject to impeachment and to trial.\6\ Pleas 
suggesting somehow that the President is ``different'' (i.e., 
meaning ``not as answerable'' in the same way, or to the same 
offenses,\7\ or to the same degree as others subject to 
impeachment under the Constitution), ought not be readily 
entertained in this Congress. The President is not different, 
whether as to what constitutes an impeachable offense or as to 
whether it is to be passed over; nor does the distinction that 
he is elected (rather than appointed), grant him a latitude to 
engage in acts of perjury or other federal crimes, such as they 
may be, in proceedings pending in our courts of law.
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    \4\ By ``serious crimes,'' one might suggest a crime so regarded at 
common law and currently carrying a term of imprisonment up to five 
years (as perjury in any federal court proceeding does, including 
perjury by deposition); or another carrying a term of imprisonment even 
of ten years (as engaging in misleading conduct toward another with 
intent to influence their testimony in any official federal proceeding 
does); these would assuredly appear to qualify. See also ftnote 5, 
infra. When linked to one's behavior in office, moreover, the notion 
that neither perjury nor tampering with a witness nor subornation of 
perjury is any sort of ``high crime [or] misdemeanor,'' when engaged in 
by the President of the United States, is, well, facetious at best.
    \5\ See, e.g., as pertinent examples of ``other high crimes and 
misdemeanors, `` each of the following (and see discussion supra ftnote 
4):

      18 U.S.C. Sec.  1621. Perjury
        Whoever--
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                  (1) having taken an oath before a competent 
                tribunal, officer, or person, in any case in 
                which a law of the United States authorizes an 
                oath to be administered, that he will testify, 
                declare, depose, or certify truly, or that any 
                written testimony, declaration, deposition, or 
                certificate by him subscribed, is true, 
                willfully and contrary to such oath states or 
                subscribes any material matter which he does 
                not believe to be true . . . is guilty of 
                perjury and shall, except as otherwise 
                expressly provided by law, be fined not more 
                than $2,000 or imprisoned not more than five 
                years or both.
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      18 U.S.C. Sec.  1622. Subornation of Perjury
        Whoever procures another to commit any perjury is guilty 
      of subordination of perjury, and shall be fined not more 
      than $2,000 or imprisoned not more than five years, or 
      both.

      18 U.S.C. Sec.  1623. False declarations before grand jury 
      or court.
        (a) Whoever under oath (or in any declaration . . . or