[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\
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\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.
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\50\ The Federalist No. 65 (A. Hamilton), supra note 31, at 365.
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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.
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\51\ P. Hoffer & N.E.H. Hull, supra note 18, at 101.
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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.
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\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.
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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.
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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\
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\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.
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\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.
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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\
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\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.
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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.
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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.
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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.
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\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\
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\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.
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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.
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\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.
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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\
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\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\
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\19\ Elliot's Debates, Vol. V. 528.
\20\ Elliot's Debates, Vol. V (September 8, 1787), 528.
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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.
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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.
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\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.
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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.
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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\
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\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.
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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.
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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:
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\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\
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\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.
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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\
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\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
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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\
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\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\
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\56\ Elliot's Debates, Volume 4, p. 32-5.
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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
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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\
---------------------------------------------------------------------------
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.
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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.
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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).
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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.
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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.
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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.
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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.
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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.
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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).
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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.
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\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.'']
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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.
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\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