[Impeachment of President William Jefferson Clinton - The Evidentiary Record Pursuant to S. Res. 16 - Index to Senate Document 106-3, Vols. I-XXIV]
[Volume XVIII - "Constitutional Grounds for Presidential Impeachment: Modern Precedents, Minority Views" Committee Print, Ser. No. 17, December 1998]
[From the U.S. Government Publishing Office, www.gpo.gov]

106th Congress                                                 Document
1st Session                                                       106-3


                       IMPEACHMENT OF PRESIDENT
                       WILLIAM JEFFERSON CLINTON


                         THE EVIDENTIARY RECORD
                         PURSUANT TO S. RES. 16
                              VOLUME XVIII

     ``Constitutional Grounds for Presidential Impeachment: Modern 
  Precedents, Minority Views'' Committee Print, Ser. No. 17, December 


   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


                      U.S. GOVERNMENT PRINTING OFFICE
53-457                        WASHINGTON : 1999

105th Congress                                              Ser. No. 17
2d Session                  COMMITTEE PRINT                            



                           MODERN PRECEDENTS

                             MINORITY VIEWS




                       COMMITTEE ON THE JUDICIARY

                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED FIFTH CONGRESS

                        Henry J. Hyde, Chairman

               John Conyers, Jr., Ranking Minority Member



                                DECEMBER 1998


                        U.S. GOVERNMENT PRINTING OFFICE
53-457                          WASHINGTON : 1998

                       COMMITTEE ON THE JUDICIARY

                   HENRY J. HYDE, Illinois, Chairman
    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
ELTON GALLEGLY, California           ROBERT C. SCOTT, Virginia
CHARLES T. CANADY, Florida           MELVIN L. WATT, North Carolina
BOB INGLIS, South Carolina           ZOE LOFGREN, California
BOB GOODLATTE, Virginia              SHEILA JACKSON LEE, Texas
STEPHEN E. BUYER, Indiana            MAXINE WATERS, California
ED BRYANT, Tennessee                 MARTIN T. MEEHAN, Massachusetts
STEVE CHABOT, Ohio                   WILLIAM D. DELAHUNT, Massachusetts
BOB BARR, Georgia                    ROBERT WEXLER, Florida
WILLIAM L. JENKINS, Tennessee        STEVEN R. ROTHMAN, New Jersey
ASA HUTCHINSON, Arkansas             THOMAS BARRETT, Wisconsin
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
MARY BONO, California

                             Majority Staff

         Thomas E. Mooney, Sr., General Counsel-Chief of Staff
          Jon W. Dudas, Deputy General Counsel-Staff Director
         Diana L. Schacht, Deputy Staff Director-Chief Counsel
               Daniel M. Freeman, Parliamentarian-Counsel
       Paul J. McNulty, Director of Communications-Chief Counsel
                    Joseph H. Gibson, Chief Counsel
                         Rick Filkins, Counsel
                       Sharee M. Freeman, Counsel
                       Peter J. Levinson, Counsel
                       John F. Mautz, IV, Counsel
                     William E. Moschella, Counsel
                        Stephen Pinkos, Counsel

George M. Fishman, Chief Counsel     David P. Schippers, Chief 
Mitch Glazier, Chief Counsel             Investigative Counsel
John H. Ladd, Chief Counsel            
Raymond V. Smietanka, Chief Counsel  Susan Bogart, Investigative 
Laura Ann Baxter, Counsel                Counsel
Daniel J. Bryant, Counsel            John C. Kocoras, Counsel
Cathleen A. Cleaver, Counsel         Berle S. Littmann, Investigator
Vince Garlock, Counsel               Stephen P. Lynch, Professional 
James W. Harper, Counsel                 Staff Member
Susan Jensen-Conklin, Counsel        Charles F. Marino, Counsel
Debra K. Laman, Counsel              Jeffery J. Pavletic, Investigative 
Blaine S. Merritt, Counsel               Counsel
Nicole R. Nason, Counsel             Thomas M. Schippers, Investigative 
Glenn R. Schmitt, Counsel                Counsel
Jim Y. Wilon, Counsel                Albert F. Tracy, Investigator
                                     Peter J. Wacks, Investigator
                                     Diana L. Woznicki, Investigator

                             Minority Staff

         Julian Epstein, Minority Chief Counsel-Staff Director
Perry H. Apelbaum, Minority General  Abbe D. Lowell, Minority Chief 
    Counsel                              Investigative Counsel
David G. Lachman, Counsel            Sampak P. Garg, Investigative 
Henry T.A. Moniz, Counsel                Counsel
Cynthia A. R. Martin, Counsel        Steven F. Reich, Investigative 
Stephanie J. Peters, Counsel             Counsel
Samara T. Ryder, Counsel             Deborah L. Rhode, Investigative 
Brian P. Woolfolk, Counsel               Counsel
                                     Kevin M. Simpson, Investigative 
                                     Lis W. Wiehl, Investigative 


 I. Introduction......................................................1
II. Historical Precedent Establishes that Impeachable Offenses Should 
    be Closely Tied to Official, not Private Misconduct...............2
        A. Intent of the Framers.................................     3
        B. Watergate Staff Report................................     6
        C. Presidential Impeachments.............................     7
        D. Views of the Scholars.................................    11
III.Past Judicial Impeachments Do Not Serve as Precedent for Impeaching 
    a President based on Private Misconduct..........................16
        A. General Distinctions Between Judicial and Presidential 
          Impeachments...........................................    17
        B. Specific Distinctions Between The Conduct That Formed 
          The Basis For the Impeachments of Judges Claiborne, 
          Nixon and Hastings and the President's Alleged 
          Misconduct.............................................    19
            1. Judge Harry Claiborne.............................    20
            2. Judge Walter Nixon................................    21
            3. Judge Alcee Hastings..............................    22
IV. Conclusion.......................................................23

                            I. Introduction

    This report has been prepared by the Minority Staff and 
Minority Investigative Staff of the Committee on the Judiciary 
to address the constitutional standards for impeachment that 
should govern the inquiry resulting from the September 9, 1998 
Referral by the Office of Independent Counsel Kenneth W. Starr 
(hereinafter the ``OIC'').
    The Majority's Report, entitled Constitutional Grounds for 
Presidential Impeachment: Modern Precedents (hereinafter 
``Majority Staff Report''), attempts to update the report on 
impeachment standards prepared by Committee staff during the 
Watergate proceedings.\1\ However, in our view, this affirms 
the emphasis that the Minority has always placed on a threshold 
inquiry into the proper constitutional understanding of ``other 
high Crimes and Misdemeanors.'' During debate in the Committee 
and on the floor of the House on H. Res. 581,\2\ Minority 
Members offered alternative impeachment inquiry resolutions 
that would have commenced the instant inquiry with a detailed 
consideration of the constitutional standards governing removal 
of a president.\3\ Minority Members explained that such a 
thorough review might well lead to the conclusion that none of 
the allegations contained in the Referral, even if taken as 
true, would rise to the level of an impeachable offense, 
thereby eliminating the need for further inquiry. In this 
regard, therefore, we would have hoped that any effort to 
update the Watergate Staff Report would have been undertaken in 
a bipartisan and serious manner.
    \1\ Staff of House Comm. on the Judiciary, 93rd Cong., 2d Sess. 
(Comm. Print 1974) Constitutional Grounds For Presidential Impeachment 
(``Watergate Staff Report'').
    \2\ On September 11, 1998, the House of Representatives passed H. 
Res 525, which directed the Committee to receive and review the OIC's 
Referral, and to ``determine whether sufficient grounds exist to 
recommend to the House that an impeachment inquiry be commenced.'' On 
October 8, 1998, the House passed H. Res. 581, which directed the 
Committee to ``investigate fully and completely whether sufficient 
grounds exist for the House of Representatives to exercise its 
constitutional power to impeach William Jefferson Clinton, President of 
the United States of America.'' The resolution further instructed the 
Committee to ``report to the House of Representatives such resolutions, 
articles of impeachment, or other recommendations as it deems proper.''
    \3\ On November 11, 1998, Representatives Conyers and Scott, the 
Ranking Members on the Committee and the Subcommittee on the 
Constitution, asked that this issue be resolved before the Committee 
moved on into what could be a drawn out and polarizing factual inquiry. 
Letter from John Conyers, Jr., Ranking Minority Member, House Committee 
on the Judiciary, and Robert C. Scott, Ranking Minority Member, 
Subcommittee on the Constitution, to Henry H. Hyde, Chairman, House 
Committee on the Judiciary (Nov. 11, 1998). Chairman Hyde rejected that 
request by letter dated November 13, 1998.
    Unfortunately, the Majority Staff Report--rather than 
providing an ``update'' of the Watergate Staff Report--attempts 
to re-write more than two hundred years of history without any 
input from the Minority \4\ in a transparent effort to broaden 
the historically accepted standards for presidential 
impeachment. The mere fact that the Majority Staff Report was 
released before the November 9 hearing on impeachment standards 
indicates that the Majority is more interested in reaching a 
pre-set conclusion than in engaging a more contemplative 
consideration of relevant precedent.
    \4\ The Minority was first formally notified about this undertaking 
on November 5, when a draft copy of the Majority Staff Report was 
presented to the Minority staff. The Minority was not asked to 
contribute to or participate in the drafting process. The following 
day, November 6, the Majority Staff Report was published as a Committee 
print and posted on the Internet.
    The Majority Staff Report reaches four conclusions: (1) 
since 1974, making false and misleading statements under oath 
has been the most common basis for impeachment; (2) the 
standard for impeachable offenses is the same for federal 
judges as it is for presidents; (3) impeachable offenses can 
involve both personal and professional misconduct; and (4) 
impeachable offenses do not have to be federal or state 
crimes.\5\ Other than the fourth finding, which was a 
conclusion of the Watergate Staff, the Majority's conclusions 
are misleading if not outright false. Contrary to the positions 
taken in the Majority Staff Report, this report will show that 
historical precedent establishes that impeachable offenses 
should be closely tied to official, not private misconduct 
unrelated to office; and past judicial impeachments do not 
serve as precedent for impeaching a president based on private 
    \5\ Majority Staff Report, supra at 16-17.

 II. Historical Precedent Establishes that Impeachable Offenses Should 
          be Closely Tied to Official, not Private Misconduct

    The Majority Staff Report attempts an ``end run'' around 
the constitutional requirement that there be a substantial 
nexus between alleged misconduct by a chief executive and his 
official duties before such misconduct can rise to the level of 
an impeachable offense. Although there are no judicial 
precedents which spell out the meaning of the Constitution's 
impeachment clause, an examination of the historical 
precedents, including the Watergate Staff Report and 
impeachment proceedings against President Nixon, clearly 
establishes that a president should only be impeached for 
conduct which constitutes an abuse or subversion of the powers 
of the executive office.
    Under Article II, Section 4 of the Constitution, 
impeachment is only warranted for conduct which falls within 
the constitutional parameters of ``Treason, Bribery, or other 
high Crimes and Misdemeanors.'' \6\ As an initial matter, it is 
important to note that the juxtaposition of such serious 
offenses of Treason and Bribery with the phrase ``other high 
Crimes and Misdemeanors'' serves as an important indicator of 
how the latter term should be defined. In other words, it seems 
clear that the Framers intended that such ``other high Crimes 
and Misdemeanors'' must be in the nature of large scale abuses 
of public office--similar to treason and bribery.\7\ Indeed a 
review by the Congressional Research Service of nearly 700 
years of precedent from English and American impeachment 
precedent was unable to reveal a single impeachment case based 
solely on private misconduct.
    \6\ Treason is defined in the Constitution, art. III, Sec. 3, cl. 
1, and in statute, 18 U.S.C. Sec. 2381, to mean levying war against the 
United States or adhering to their enemies, giving them aid and 
comfort. Bribery is not defined in the Constitution, although it was an 
offense at common law. The First Congress enacted a bribery statute, 
the Act of April 30, 1790, 1 Stat. 112, 117, which, with some 
amendment, is now codified at 18 U.S.C. Sec. 201.
    \7\ This reading is an example of the standard rule of construction 
known in Latin as ``eiusdem generis,'' or ``of the same kind.'' It 
basically provides that when a general word occurs after a number of 
specific words, the meaning of the general word is limited to the kind 
or class of things in which the specific words fall.
    It is also important to note that the word ``high'' 
modifies both ``Crimes'' and ``Misdemeanors.'' As the history 
of that term makes clear, the Framers did not entrust Congress 
with the power to impeach a popularly elected President simply 
upon a showing that the executive committed a ``misdemeanor'' 
crime as we now understand the term--as a minor offense usually 
punishable by a fine or brief period of incarceration. Instead, 
an examination of the relevant historical precedents indicates 
that a president may only be impeached for conduct which 
constitutes an egregious abuse or subversion of the powers of 
the executive office.

                        A. Intent of the Framers

    A historical review indicates that the Framers intended the 
operation of the impeachment clause to be premised on grave 
abuse of executive authority. This is evident by the use of the 
terms ``other high Crimes and Misdemeanors'' in English 
Parliamentary history, its actual drafting at the 
Constitutional Convention, the ratification debates in the 
states, and subsequent comments and actions by the Framers.
    At the time of the Constitutional Convention, the phrase 
``high Crimes and Misdemeanors'' had been in use for over 400 
years in impeachment proceedings in the English parliament. The 
phrase was a term of art in English parliamentary practice and 
had a special historical meaning different from the ordinary 
meaning of the discrete terms ``crimes'' and ``misdemeanors.'' 
In particular, ``high misdemeanors'' referred to a category of 
offenses that subverted the system of government.\8\
    \8\ Historians have traced the earliest use of the terms ``high 
Crimes and Misdemeanors'' to the impeachment of the Earl of Suffolk in 
1386. See Raoul Berger, Impeachment: The Constitutional Problems, 59 
(1973) (``Berger'').
    In its report on the historical roots of the impeachment 
process, the staff of the Watergate impeachment inquiry offered 
the following summary of these English historical precedents:

          First, the particular allegations of misconduct 
        alleged damage to the state in such forms as 
        misapplication of funds, abuse of official power, 
        neglect of duty, encroachment on Parliament's 
        prerogatives, corruptions and betrayal of trust. 
        Second, the phrase ``high Crimes and Misdemeanors'' was 
        confined to parliamentary impeachments, it had no roots 
        in the ordinary criminal law, and the particular 
        allegations of misconduct under that heading were not 
        necessarily limited to common law or statutory 
        derelictions or crimes.\9\
    \9\ Watergate Staff Report, supra note 1, at 7.

    With regard to the actual drafting of the Constitution's 
impeachment clause, it is clear the Framers intended 
impeachment to be a very limited remedy, reserved for the most 
egregious misconduct subversive of government. This is why at 
the outset, delegates such as Gouvernor Morris and James 
Madison objected to the use of broad impeachment language. 
Morris argued that ``corruption & some few other offences to be 
such as ought to be impeachable; but thought the cases ought to 
be enumerated & defined,'' \10\ while Madison noted that 
impeachment was only necessary to be used to ``defend[] the 
Community against the incapacity, negligence or perfidy of the 
chief Magistrate.'' \11\
    \10\ Berger, supra note 8, at 65.
    \11\ Id. (emphasis added).
    The critical drafting occurred on September 8, 1787, and is 
described in the Watergate Staff Report:

    Briefly, and late in the Convention, the framers addressed 
the question how to describe the grounds for impeachment 
consistent with its intended function. They did so only after 
the mode of the President's election was settled in a way that 
did not make him (in the words of James Wilson) ``the Minion of 
the Senate.''
    The draft of the Constitution then before the Convention 
provided for his removal upon impeachment and conviction for 
``treason or bribery.'' George Mason objected that these 
grounds were too limited:

          Why is the provision restrained to Treason & bribery 
        only? Treason as defined in the Constitution will not 
        reach many great and dangerous offenses. Hastings [an 
        English official being impeached in India] 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.

    Mason then moved to add the word ``maladministration'' to 
the other two grounds. Maladministration was a term in use in 
six of the thirteen state constitutions as a ground for 
impeachment, including Mason's home state of Virginia.
    When James Madison objected that ``so vague a term will be 
equivalent to a tenure during pleasure of the Senate,'' Mason 
withdrew ``maladministration'' and substituted ``high crimes 
and misdemeanors agst. the State,'' which was adopted eight 
states to three. . . .\12\
    \12\ Watergate Staff Report, supra note 1, at 11-12 (citations 

    It is important to emphasize the narrowness of the phrase 
``other high Crimes and Misdemeanors'' was confirmed by the 
addition of the language ``against the State.'' Madison wrote 
that the delegates revised the phrase to ``other high Crimes 
and Misdemeanors against the United States'' in order to 
``remove ambiguity.'' \13\ This language reflects the 
Convention's view that only offenses against the political 
order should provide a basis for impeachment. Although the 
phrase ``against the United States'' was eventually deleted by 
the Committee of Style that produced the final 
Constitution,\14\ the Committee of Style was directed not to 
change the meaning of any provision.\15\ It is therefore clear 
that the phrase was dropped as a redundancy and its deletion 
was not intended to have any substantive impact.\16\
    \13\ 2 Max Farrand, The Records of the Federal Convention of 1781, 
551 (Rev. ed. 1967) (emphasis added).
    \14\ Id. at 600
    \15\ Id. at 553.
    \16\ See Fenton, The Scope of the Impeachment Power, 65 N. W. L. 
Rev. 719, 740 (1970). See also summary of impeachment precedents 
prepared by David Overlock Stewart, Peter K. Levitt, and Marc L. 
Kesselman of Ropes & Gray, Sept. 29, 1998 (on file with Minority Staff) 
(``Ropes & Gray Memorandum'').
    The ratification debates in the states also serve to 
highlight the narrow purpose and scope of the impeachment 
clause. For example, the Virginia ratifiers believed that 
possible impeachment counts would lie against the president 
where he had received ``emoluments'' from a foreign power,\17\ 
pardoned his own crimes or crimes he advised,\18\ or had 
summoned the representatives of only a few states to ratify a 
treaty.\19\ Likewise, the North Carolina Assembly thought that 
concealing or giving false information to the Senate in order 
to bring about legislation harmful to the country could 
constitute an impeachable offense.\20\
    \17\ Edmund Randolph, 3 J. Elliot, The Debate in the Several State 
Conventions on the Adoption of the Federal Constitution 486 (reprint of 
2d ed.) (Virginia Convention).
    \18\ George Mason, 3 Elliot 497-98 (Virginia Convention).
    \19\ James Madison, 3 Elliot 500 (Virginia Convention).
    \20\ James Iredell, 4 Elliot 127 (North Carolina Convention).
    The construction that ``other high Crimes and 
Misdemeanors'' should be limited to serious abuses of official 
power is further confirmed by the commentary of prominent 
Framers and early constitutional commentators. Supreme Court 
Justice James Wilson, who played a major role at the 
Constitutional Convention, wrote: ``[I]mpeachments are 
proceedings of a political nature . . . confined to political 
characters charging only political crimes and misdemeanors and 
culminating only in political punishments.'' \21\
    \21\ James Wilson, The Works of James Wilson 426 (R. McCloskey, 
ed., 1967).
    Significantly, Alexander Hamilton, another leading Framer, 
wrote in Federalist No. 65 that impeachable offenses ``proceed 
from the misconduct of public men, or in other words from the 
abuse or violation of some public trust.'' He stressed that 
those offenses ``may with peculiar propriety be denominated 
POLITICAL, as they relate chiefly to injuries done immediately 
to the society itself.'' \22\
    \22\ Alexander Hamilton, The Federalist Papers, 65 (C. Rossiter, 
ed., 1991).
    Hamilton's view was endorsed a generation later by Justice 
Joseph Story in his Commentaries on the Constitution when he 
wrote, ``[impeachable offenses] are committed by public men in 
violation of their public trust and duties. . . . Strictly 
speaking, then, the impeachment power partakes of a political 
character, as it respects injuries to the society in its 
political character.'' \23\ Justice Story added that 
impeachable offenses ``peculiarly injure the commonwealth by 
the abuse of high offices of trust.'' \24\
    \23\ 2 Joseph Story, Commentaries on the Constitution Sec. 744 (1st 
ed. 1833).
    \24\ Id.
    The improprieties of Alexander Hamilton and Congress' 
reaction, shortly after the adoption of the Constitution, serve 
to illuminate further the Framers' narrow intent. During the 
winter of 1792-1793, while Congress was investigating the 
alleged financial misdealings of then Secretary of Treasury 
Alexander Hamilton, he was forced to admit that he had made 
improper payments to James Reynolds in order to prevent public 
disclosure of an adulterous relationship Hamilton had engaged 
in with Reynolds' wife. Hamilton even went to the length of 
having Mrs. Reynolds burn incriminating correspondence and 
promised to pay for the Reynolds' travel costs to leave town. 
When Congress learned of this course of events, they decided 
the matter was private, not public, and did not pursue any 
impeachment proceedings.\25\
    \25\ Richard N. Rosenfield, Founding Fathers Didn't Flinch--
Alexander Hamilton's Misstep was Deemed a Private Matter that didn't 
Affect his Service to the Nation, L.A. Times, Sept. 18, 1998, at B9. 
See also The Papers of Alexander Hamilton (Harold C. Syrett, ed. 1974).

                       B. Watergate Staff Report

    Contrary to the position taken in the Majority Staff 
Report, a fair reading of the Watergate Staff Report does not 
support equating impeachable offenses with personal misconduct 
unrelated to public office.\26\ We do agree that it is clear--
as the Majority Staff Report states--that one of the principal 
conclusions of the Watergate Staff Report is that a violation 
of the criminal laws is not a prerequisite for impeachment.\27\ 
Far more significant for purposes of the OIC Referral, however, 
is that the Watergate Staff Report went on to conclude that the 
mere occurrence of criminal misconduct does not necessarily 
support a charge of impeachment. Instead, the Watergate Staff 
Report asserts that in order to justify presidential 
impeachment, it is necessary to establish that the misconduct 
is so grave as to threaten our constitutional form of 
government or the president's duties thereunder:
    \26\ Majority Staff Report, supra at 16.
    \27\ See, e.g., Watergate Staff Report, supra note 1, at 24.

          Not all presidential misconduct is sufficient to 
        constitute grounds for impeachment. There is a further 
        requirement--substantiality. In deciding whether this 
        further requirement has been met, the facts must be 
        considered as a whole in the context of the office, not 
        in terms of separate or isolated events. 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 
        performance of constitutional duties of the 
        presidential office. \28\
    \28\ Id. at 27 (emphasis added).

    It is also important to note that during the Watergate 
inquiry, the Republican Minority did not disagree with this 
latter contention. Although the Republicans unsuccessfully 
argued that criminal misconduct should be a prerequisite to 
impeachment, they did not challenge the proposition that the 
misconduct must rise to constitutional proportions to warrant 
impeachment. In their separate views prepared to the 
Committee's Report on the final articles of impeachment, 
Minority members wrote: ``[I]t is our judgment, based upon . . 
. constitutional history that the framers . . . intended that 
the President should be removable by the legislative branch 
only for serious misconduct dangerous to the system of 
government established by the Constitution.'' \29\
    \29\ Impeachment of Richard M. Nixon, President of the United 
States, H.R. Rep. No. 93-1305, 93rd Cong., 2d Sess. 10, at 365 (1974) 
(``Watergate Committee Report'') (citations omitted) (emphasis added).
    Similarly, during the Committee debate voting out articles 
of impeachment, the Republican Ranking Member, Rep. Hutchinson 
(R-MI), explicitly embraced a similar definition of 
``impeachable offenses'' by arguing that ``a president can be 
impeached for the commission of crimes and misdemeanors, which 
like other crimes to which they are linked in the Constitution, 
treason and bribery, are high in the sense that they are crimes 
directed against or having great impact upon the system of 
government itself.'' \30\
    \30\ Howard Fields, High Crimes and Misdemeanors 120 (1978) 
(emphasis added).

                      C. Presidential Impeachments

    Historical presidential impeachment precedent also 
demonstrates that, for offenses to be impeachable, they must 
arise out of a president's public, not private, conduct. As an 
initial matter, it is instructive to consider the 1868 
impeachment of President Andrew Johnson, a Democrat who arose 
to the presidency after President Lincoln's assassination. He 
was impeached by the House Republicans because he had removed 
the Secretary of War, Edwin M. Stanton, who had disagreed with 
his post-Civil War reconstruction policies. Stanton's removal 
was said to be inconsistent with the Tenure in Office Act, 
requiring Senate approval for removal of certain officers.\31\
    \31\ Act of March 2, 1867, ch. 154, Sec. 6, 14 Stat. 430. See also 
William H. Rehnquist, Grand Inquests 212-16 (1992).
    Although the impeachment of President Andrew Johnson failed 
in the Senate, it is informative to note that all of the 
impeachment articles related to alleged public misconduct. The 
eleven articles of impeachment related to Johnson's removal of 
Stanton, the impact of that removal on Congressional 
prerogatives, and its impact on post-Civil War Reconstruction. 
Accordingly, it is fair to state that although motivated by 
politics, the impeachment was nonetheless premised on official 
presidential conduct and alleged harms to the system of 
    \32\ Cong. Globe Supp., 40th Cong. 2d Sess., 3-5 (1868). See also 
Michael Les Benedict, The Impeachment and Trial of Andrew Johnson 114-
15 (1973); Ropes & Gray Memorandum, supra note 16.
    During the Senate trial, the President's defenders argued 
that impeachment could only be based on ``a criminal act 
directly subversive of fundamental principles of government or 
the public interest.'' \33\ President Johnson was acquitted on 
May 16, 1868 by a one vote margin. Of particular note, William 
Pitt Fessenden, a senior Republican, warned of the dangers that 
a weakly grounded impeachment could have on the Nation:
    \33\ Cong. Globe Supp., 40th Cong. 2d Sess. V. II, at 139-40 (April 
23, 1868) and 286-89 (April 29, 1868). See also Cong. Globe Supp., 40th 
Cong. 2d. Sess., at 286-310 (1868).

          [T]he offence for which a Chief Magistrate is removed 
        from office, . . . should be of such a character to 
        commend itself at once to the minds of all right 
        thinking men as, beyond all question, an adequate 
        cause. It should be free from the taint of party; leave 
        no reasonable ground of suspicion upon the motives of 
        those who inflict the penalty, and address itself to 
        the country and the civilized world as a measure justly 
        called for by the gravity of the crime and the 
        necessity for its punishment. Anything less [would] 
        shake the faith of the friends of constitutional 
        liberty in the permanency of our free institutions and 
        the capacity of man for self-government.\34\
    \34\ Id. at 30.

    The circumstances surrounding the proposed impeachment of 
President Nixon also support the view that impeachment should 
be limited to threats that undermine the Constitution, not 
ordinary criminal misbehavior unrelated to a president's 
official duties. All three of the articles of impeachment 
approved by the House Judiciary Committee involved misuse of 
the President's official duties. The First Article--alleging 
that President Nixon coordinated a cover-up of the Watergate 
break-in by interfering with numerous government 
investigations, using the CIA to aid the cover-up, approving 
the payment of money and offering clemency to obtain false 
testimony--qualified as a high Crime and Misdemeanor, because 
``[the President used] the powers of his high office [to] 
engage . . . in a course of conduct or plan designed to delay, 
impede, and obstruct [the Watergate investigation].'' \35\ The 
Second Article--alleging that the President used the IRS as a 
means of political intimidation and directed illegal 
wiretapping and other secret surveillance for political 
purposes--described ``a repeated and continuing abuse of the 
powers of the Presidency in disregard of the fundamental 
principle of the rule of law in our system of government.'' 
\36\ The Third Article--alleging that President Nixon refused 
to comply with subpoenas issued by the Judiciary Committee in 
its impeachment inquiry--was considered impeachable because 
such subpoena power was essential to ``Congress' [ability] to 
act as the ultimate safeguard against improper presidential 
conduct.'' \37\
    \35\ Watergate Committee Report, supra note 29, at 133 (emphasis 
    \36\ Id. at 180 (emphasis added).
    \37\ Id. at 213. A fourth proposed article citing the covert use of 
the military in Cambodia was rejected ``because Nixon was performing 
his constitutional duty'' as Commander-in-Chief, because ``Congress had 
been given sufficient warning of the bombings,'' and ``because the 
passage of the War Powers Resolution mooted the question raised by the 
Article.'' Id. at 219.
    Even more telling are the circumstances by which the 
Committee rejected articles of impeachment against President 
Nixon relating to allegations of income tax evasion. The 
Majority Staff Report contains no detailed discussion of the 
debate on this proposed article of impeachment. This omission 
is surprising considering the Majority's public pronouncements 
on this issue. For example, a Judiciary Committee spokesman for 
the Majority recently took issue with an assertion by White 
House counsel that Judiciary Committee Democrats involved in 
the Watergate impeachment inquiry voted against including tax 
evasion charges in the articles of impeachment on the grounds 
that it involved private, rather than official, misconduct:

          The problem with [Counsel to the President's] 
        statement is that there is absolutely no discussion in 
        the historical record of the Watergate proceedings to 
        support that assertion. In fact, the record indicates 
        that most members voted against the article, not 
        because they considered it private conduct and 
        therefore unimpeachable, but because there was 
        insufficient evidence for the charge or they preferred 
        to focus on the core charges against President 
    \38\ Legal Times, Craig is ``Rewriting History'' On Impeachment 
Issues (Nov. 2, 1998) at 27.

    In point of fact, the historical record of the Watergate 
proceedings demonstrates that the lack of a nexus between the 
tax evasion charges and President Nixon's official duties 
played an important role in the Committee's ultimate rejection 
of this proposed article of impeachment. On July 30, 1974, the 
Judiciary Committee debated a proposed article of impeachment 
alleging that President Nixon had committed tax fraud when 
filing his federal income tax returns for the years 1969 
through 1972 (tax returns are filed under penalty of perjury). 
All seventeen Republican members of the Committee joined with 
nine Democratic members to defeat this proposed article by a 
vote of 26-12.\39\ The primary ground for rejection was that 
the Article related to the President's private conduct, not an 
abuse of his authority as President.
    \39\ Hearings Before the House Comm. on the Judiciary Pursuant to 
H. Res. 803, 93d Cong. 2d. Sess. 527 (1974) (``Debate on Articles of 
    The crux of the impeachment article related to allegations 
that the President understated his income and overstated his 
deductions for the years 1969 through 1972.\40\ In examining 
the President's tax returns for those four years, the IRS found 
that he had underreported his taxable income by $796,000; in 
doing its own calculations, Congress's Joint Committee on 
Internal Revenue Taxation put the figure at $960,000.\41\ The 
underreporting derived from a $576,000 tax deduction the 
President had claimed during those years for a gift of his 
papers to the National Archives.\42\
    \40\ The second article of impeachment provided: ``[President 
Nixon] knowingly and fraudulently failed to report certain income and 
claimed deductions in the years 1969, 1970, 1971, and 1972 on his 
Federal income tax returns which were not authorized by law, including 
deductions for a gift of papers to the United States valued at 
approximately $576,000.'' Watergate Committee Report, supra note 29, at 
    \41\ Id.
    \42\ Id.
    In the ensuing debate on the article of impeachment 
concerning this issue, one of the most important themes leading 
to its rejection was the lack of any sufficient connection 
between these charges of alleged criminal conduct and the 
President's official duties. Opponents of this article raised 
three primary objections: (1) there was no evidence the 
President had committed tax evasion; (2) tax evasion should be 
addressed through the criminal law, not impeachment; and (3) 
tax evasion was not an impeachable offense.\43\
    \43\ Id.
    The first argument against the article was that there was 
no clear and convincing evidence that the President had 
committed tax fraud.\44\ Because the President had relied upon 
his attorneys and agents in determining his tax 
responsibilities, he was said to have not fraudulently filed a 
false tax return and had not committed a criminal act.\45\ Only 
Republican members of the Committee (and only eleven of the 
seventeen Republicans at that), spoke against the article on 
the grounds that there was insufficient evidence of tax 
evasion.\46\ This group constituted only eleven of the twenty-
six votes against the proposed article; therefore, it is not 
possible to say that a majority of the votes against the 
Article opposed it for insufficiency of evidence.\47\
    \44\ Id.
    \45\ Debate on Articles of Impeachment, supra note 39, at 522, 532.
    \46\ See id. at 517-60.
    \47\ At the time it considered articles of impeachment, the 
Committee was aware that according to the former Chief of the Criminal 
Tax Section at the Department of Justice ``in the case of an ordinary 
taxpayer, on the facts as we know them in this instance, the case would 
be referred to a Grand Jury for prosecution.'' Id. In fact, the 
President's advisers were criminally prosecuted for their roles in 
Nixon's tax evasion. United States v. DeMarco, 394 F. Supp. 611, 614 
(D.D.C. 1975).
    The opponents also maintained that because tax evasion 
could be addressed through the criminal law, it was an 
inappropriate vehicle for determining the President's 
culpability.\48\ As Democratic Member Ray Thornton (D-AR) 
acknowledged, ``there [had] been a breach of faith with the 
American people with regard to incorrect income tax returns. . 
. . But . . . these charges may be reached in due course in the 
regular process of law. This committee is not a tax court nor 
criminal court nor should it endeavor to become one.'' \49\
    \48\ Watergate Committee Report, supra note 29, at 222.
    \49\ Debate on Articles of Impeachment, supra note 39, at 549.
    The opponents' final and ultimately most compelling reason 
for rejecting this article was that tax fraud was not an abuse 
of power that impeachment was designed to remedy.\50\ 
Republican congressmen explicitly emphasized that personal 
misconduct could not give rise to an impeachable offense. 
Congressman Tom Railsback (R-IL) noted that there was ``a 
serious question as to whether something involving [the 
President's] personal tax liability has anything to do with his 
conduct of the office of the President.'' \51\ Congressman 
Lawrence J. Hogan (R-MD), quoted from the impeachment inquiry 
staff report:
    \50\ Watergate Committee Report, supra note 29, at 222.
    \51\ Debate on Articles of Impeachment, supra note 39, at 524.

          As a technical term, high crime signified a crime 
        against the system of government, not merely a serious 
        crime. This element of injury to the commonwealth, that 
        is, to the state itself and to the Constitution, was 
        historically the criteria for distinguishing a high 
        crime or misdemeanor from an ordinary one.\52\
    \52\ Id. at 541 (emphasis added).

Also, Congressman Wiley Mayne (R-IA) reasoned:

          Now, even if criminal fraud had been proved, . . . 
        then we would still have the question whether it is a 
        high crime or misdemeanor sufficient to impeach under 
        the Constitution, because that is why we are here, 
        ladies and gentlemen, to determine whether the 
        President should be impeached, not to comb through 
        every minute detail of his personal taxes for the past 
        6 years, raking up every possible minutia which could 
        prejudice the President on national television.\53\
    \53\ Id. at 545 (emphasis added).

    Similarly, Democratic Congressman Jerome Waldie (D-CA) 
echoed the Republican distinction between public and private 
conduct,\54\ and opposed the proposed article because ``the 
impeachment process is a process designed to redefine 
Presidential powers in cases where there has been enormous 
abuse of those powers and then to limit the powers as a 
concluding result of the impeachment process.'' \55\
    \54\ Id. at 548.
    \55\ Id.
    It is also informative to consider the various incidents 
over the last 50 years involving alleged presidential 
impropriety for which impeachment proceedings were not brought 
or considered. This is not to say that impeachment should have 
been initiated in these cases, merely that the Congress showed 
restraint in failing to pursue these lines by way of 
impeachment inquiry. These incidents include the following:
     With regard to Iran-Contra, President Reagan 
initially declared on national television that there was no 
arms for hostages transfer. Subsequently, in a January 1987 
interview with the Tower Commission, pursuant to the 
Commission's Iran-Contra investigation, President Reagan stated 
that he approved an August shipment of arms by Israel to Iran. 
Then, in a February 1987 interview with the Commission, he 
recanted his prior statements and said he did not approve the 
shipment. He also said, contrary to his January statements, 
that he was surprised when he learned Israel had shipped arms 
to Iran. Finally, when questioned by Walsh in February, 1990, 
President Reagan denied any detailed knowledge of the Iran-
Contra matter.
     In a deposition with the Office of Independent 
Counsel Lawrence Walsh, then-Vice President George Bush denied 
knowledge of the diversion of Iranian arms-sale proceeds to the 
Contras and denied knowledge of Lieutenant Colonel Oliver 
North's secret Contra-supply operation. The OIC subsequently 
found evidence contradicting the Vice President's statements, 
but he refused to submit to further interviews. Moreover, on 
December 24, 1992, President Bush pardoned (1) former Defense 
Secretary Caspar Weinberger; (2) former CIA official Duane R. 
Clarridge; (3) former National Security Adviser Robert 
McFarlane; (4) former CIA official Alan D. Fiers, Jr; (5) 
former State Department official Elliott Abrams; and (6) former 
CIA official Clair George even though they had all either been 
indicted or pled guilty pursuant to Lawrence Walsh's Iran-
Contra investigation.
     There were widespread claims of a secret ``deal'' 
between President Ford and President Nixon, culminating in the 
pardon received by President Nixon.
     It was widely believed that President Kennedy was 
involved in a series of illicit sexual relationships while in 
office, including an illicit sexual relationship with a woman 
simultaneously associated with a member involved in organized 
crime. Some have suggested that this relationship could have 
potentially compromised Department of Justice law enforcement 
     Before passage of the Lend-Lease 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 
    \56\ The Background and History of Impeachment: Hearing on H. Res. 
581 Before the Subcomm. On the Constitution, 105th Cong., 2d Sess. 
(1998) (Nov. 9, 1998) (forthcoming) (``Subcommittee Hearing'') (Written 
testimony of Professor Cass Sunstein at 9-10) (citations omitted).

                        D. Views of the Scholars

    A review of the writings by prominent scholars concerning 
the issue of impeachment further confirms that for presidential 
wrongdoing to rise to the level of an impeachable offense, it 
should stem from serious official misconduct against the 
government. At the outset, it is interesting to note that the 
question of whether private presidential misconduct could be 
impeachable was presaged twenty-five years ago by Professor 
Charles Black, in his seminal work, Impeachment: A Handbook, 
when he posited the following hypothetical:

          Suppose a President transported a woman across a 
        state line or even (as the Mann Act reads) from one 
        point to another within the District of Columbia, for 
        what is quaintly called an ``immoral purpose.''. . . Or 
        suppose the president actively assisted a young White 
        House intern in concealing the latter's possession of 
        three ounces of marijuana--thus himself becoming guilty 
        of ``obstruction of justice.'' 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? \57\
    \57\ Charles L. Black, Impeachment: A Handbook 35-36 (1974) 

    In a similar vein, Professor Black addresses the question 
of whether obstruction of justice will always constitute an 
impeachable offense:

          Here the question has to be whether the obstruction 
        of justice has to do with public affairs and the 
        political system; I would not think impeachable a 
        president's act in helping a child or a friend of his 
        to conceal misdeeds, unless the action were so gross as 
        to make the president unviable as a leader. In many 
        cases his failure to protect some people at some times 
        might result in his being held in contempt by the 
        public. I would have to say the protection of their own 
        people is in all leaders, up to a point, a forgivable 
        sin, and perhaps, even an expectable one; this 
        consideration may go to the issue of 
        ``substantiality.'' \58\
    \58\ Id. at 45-46.

    More recently, a large group of legal scholars and 
academics have offered their views regarding the impeachability 
of the misconduct alleged by the OIC. On November 6, four 
hundred thirty Constitutional law professors wrote: ``Did 
President Clinton commit `high Crimes and Misdemeanors' 
warranting impeachment under the Constitution? We . . . believe 
that the misconduct alleged in the report of the Independent 
Counsel . . . does not cross that threshold. . . . [I]t is 
clear that Members of Congress would violate their 
constitutional responsibilities if they sought to impeach and 
remove the President for misconduct, even criminal misconduct, 
that fell short of the high constitutional standard required 
for impeachment.'' \59\
    \59\ Letter from more than 400 Constitutional law professors (Nov. 
6, 1998) (submitted as part of the Subcommittee Hearing Record).
    One week earlier, four hundred historians issued a joint 
statement warning that because impeachment has traditionally 
been reserved for high crimes and misdemeanors in the exercise 
of executive power, impeachment, based on the facts alleged in 
the OIC Referral, would set a dangerous precedent. ``If carried 
forward, they will leave the Presidency permanently disfigured 
and diminished, at the mercy as never before of caprices of any 
Congress. The Presidency, historically the center of leadership 
during our great national ordeals, will be crippled in meeting 
the inevitable challenges of the future.'' \60\
    \60\ Statement Against the Impeachment Inquiry, submitted to the 
Committee by more than 400 historians (Oct. 28, 1998) (submitted as 
part of the Subcommittee Hearing Record).
    Finally, the weight of credible evidence offered at the 
November 9 hearing on the Background and History of Impeachment 
also supports the view that impeachment should be limited to 
abuse of public office, not private misconduct. This point was 
made by several of the witnesses. For example, Chicago Law 
Professor Cass Sunstein summarized the standard as follows: 
``[w]ith 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.'' \61\ Professor 
Sunstein went on to review English Parliamentary precedent, the 
intent of the Framers and subsequent impeachment practice as 
all supporting this bedrock principle. In his view, the only 
exception where purely private conduct would be implicated was 
in the case of a heinous crime, such as murder or rape:
    \61\ Subcommittee Hearing, supra note 56 (Written Testimony of 
Professor Cass Sunstein at 2) (emphasis in original).

          [B]oth 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 such extraordinary (and 
        unprecedented and most unlikely) cases, impeachment is 
    \62\ Id. at 5,7, 8, 11, 12 (emphasis in original).

    Father Drinan, a former House Judiciary Committee Member 
who participated in the Watergate impeachment process, and now 
a Professor of Law at Georgetown University, reached the same 
conclusion, testifying 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.' '' \63\ Eminent 
historian Arthur Schlesinger made the same basic distinction 
between private and public misconduct:
    \63\ Id. (Written Testimony of Robert F. Drinan, S.J. at 3-7).

          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 
    \64\ Id. (Written Statement of Arthur Schlesinger, Jr. at 2).

    Of course, the Majority will argue that these conclusions 
are not surprising since they were provided by witnesses called 
by Democratic Members. Aside from the fact that the conclusions 
of these witnesses are borne out by the great weight of the 
evidence as detailed above, this argument does not take account 
of the fact that the one witness jointly selected by the 
Majority and the Minority--William & Mary Law Professor Michael 
Gearhardt--concurred in the assessment offered by the 
Democratic witnesses. That is to say, Professor Gearhardt also 
testified that impeachment should principally be limited to 
abuse of public office:

          [There is a] 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 with peculiar propriety be 
        denominated POLITICAL, as they relate chiefly to 
        injuries done immediately to the society itself. This 
        paradigm is also implicit in the founders' many 
        references to abuses of power as constituting political 
        crimes or impeachable offenses.\65\
    \65\ Id. (Written Testimony of Professor Michael Gearhardt at 13-
14) (footnotes omitted) (emphasis added).

    Even to the extent other Republican witnesses testified 
that private misconduct could be impeachable, some cautioned 
that discretion should be applied before applying this power in 
all situations. For example, Duke Law Professor William Van 
Alstyne stated that the allegations by Mr. Starr constituted 
``low crimes and misdemeanors'' and that ``[t]he further 
impeachment pursuit of Mr. Clinton may well not now be 
particularly worthwhile.'' \66\
    \66\ Id. (Written Testimony of Professor William Van Alstyne at 6).
    The Constitution Subcommittee hearing also served to expose 
a number of the fallacies in the Republican arguments calling 
for a more expansive view of impeachment. For example, 
Professor McDonald sought to convince the Members that the term 
``Misdemeanor'' in the phrase ``high Crimes and Misdemeanors'' 
was intended to incorporate ``all indictable offenses which do 
not amount to a felony [including] perjury.'' \67\ This 
contention can not only be rebutted by the absurd breadth of 
the resulting scope of the impeachment clause, but by specific 
reference to English Parliamentary use as outlined in the 
Watergate Staff Report:
    \67\ Id. (Written Testimony of Professor Forrest McDonald at 7).

          Blackstone's Commentaries on the Laws of England--a 
        work cited by delegates in other portions of the 
        Convention's deliberations and which Madison later 
        described (in the Virginia ratifying convention) as ``a 
        book which is in every man's hand''--included ``high 
        misdemeanors'' as one term for positive offenses 
        ``against the king and government.'' . . . ``High 
        Crimes and Misdemeanors'' has traditionally been 
        considered a ``term of art,'' like such other 
        constitutional phrases as ``levying war'' and ``due 
        process.'' \68\
    \68\ Watergate Staff Report, supra note 1, at 12 (footnotes 

    Another claim made by Majority witness Charles Cooper and 
Professors Parker and McDonald was that perjury must be 
considered a public impeachable offense because it is 
tantamount to bribery of the court, an offense so public in 
nature as to obviously be impeachable. Professor Tribe 
responded by clearly differentiating between the two offenses: 
``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 
    Another argument trotted out by the Republicans was that if 
the Committee fails to impeach the President for alleged 
private misconduct, they will be endorsing his actions and 
sending a signal that the President is ``above the law.'' This 
is incorrect as a factual matter, as all of the witnesses 
agreed that the President would be subject to civil sanction 
while he is in office and criminal prosecution once he left 
office.\69\ Mr. Starr acknowledged that he agreed with this 
legal interpretation when he testified at the full committee's 
November 19, 1998 hearing.\70\
    \69\ See also Arlen Specter, Instead of Impeachment, N. Y. Times, 
Nov. 11, 1998, at A27.
    \70\ Minority Panel on Constitutional Issues Concerning Impeachment 
Before the House Judiciary Committee, 105th Cong. 2d Sess. (October 15, 
    Perhaps the response to this argument was most well put by 
Professor Schlesinger, in responding to a claim by Rep. Inglis 
(R-SC) that the Professor's view of the scope of impeachment 
would encourage presidents to lie:

          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.

    Finally, the argument has been made by Charles Cooper that 
the President's alleged misconduct, no matter how private in 
nature, should be treated as an impeachable offense because it 
violates the president's oath of office to uphold the 
Constitution and take care that the laws are faithfully 
executed. As Professor Tribe observed, this argument proves far 
too much:

          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.

    It is also important to recognize that the President's oath 
of office (I do solemnly swear . . . 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 \71\) does not address his 
responsibilities as a private litigant. The commitment 
memorialized by the oath of office is quite different from the 
generalized duty of each citizen to obey the law; rather it is 
an oath to discharge the constitutional responsibilities of the 
    \71\ U.S. Const., art. II, sec. 1 (emphasis added).
    \72\ In 1866, the Supreme Court described the legal significance of 
the presidential oath of office as follows:

        [The President] is to ``take care that the laws be 
      faithfully executed.'' He is to execute the laws by the 
      means and in the manner which the laws themselves 
      prescribe. The oath of office cannot be considered as a 
      grant of power. Its effect, is merely to superadd a 
      religious sanction to what would otherwise be his official 
      duty, and to bind his conscience against any attempt to 
      usurp power or overthrow the Constitution. Ex Parte 
      Milligan, 71 U.S. 2, 50-51 (1866) (emphasis added).

     III. Past Judicial Impeachments Do Not Serve as Precedent for 
           Impeaching a President Based on Private Misconduct

    The Majority Staff Report attempts to cite selectively the 
three most recent judicial impeachments as a rationale for 
permitting the impeachment of a president for purely private 
misconduct. There are two major problems with the Majority's 
approach. First, as a general matter, it ignores the fact that 
the bases for and standards applicable to presidential 
impeachments are not the same as judicial impeachment. Judicial 
impeachment has a different pedigree and takes account of 
differing roles and responsibilities. Second, the Majority's 
approach mischaracterizes the factual history and context of 
judicial impeachments as being principally premised on perjury 
charges. In point of fact, there is nothing in the 1974 
Watergate Staff Report which refers to perjury as constituting 
a stand-alone basis for impeachment, and a careful review of 
the more recent judicial impeachment cases reveals that they 
implicated more pervasive public misconduct than perjury.

 A. General Distinctions Between Judicial and Presidential Impeachments

    A review of the historical record and consideration of the 
differing responsibilities and roles of presidents and judges 
under the Constitution make it clear that the positions are and 
should be subject to differing impeachment considerations. As 
Professor Sunstein observes in his testimony, ``historical 
practice suggests a broader power to impeach judges than 
Presidents, and indeed it suggests a special congressional 
reluctance to proceed against the President.'' \73\
    \73\ Id. at 12.
    This is true for several reasons. First, almost all of the 
debate during the Constitutional Convention concerning 
impeachment focused on the power to remove the President. 
Judges and other civil officers were included as possible 
subjects of impeachment only near the end of the debate. 
According to noted impeachment scholar Raoul Berger:

          One thing is clear: in the impeachment debate the 
        Convention was almost exclusively concerned with the 
        President. The extent to which the President occupied 
        center stage can be gathered from the fact that the 
        addition to the impeachment clause of the ``Vice 
        president and all civil officers'' only took place on 
        September 8, shortly before the Convention 
    \74\ Berger, supra note 8 at 100.

The absence of extended discussion makes clear that the 
historical debates on how to define impeachable offenses did 
not have judges in mind.
    Second, the duties of the judicial office entail differing 
responsibilities than the president, which must be taken into 
account in developing impeachment standards. Although we would 
not go as far as to assert that judges are necessarily subject 
to a higher standard of impeachment by virtue of Article III's 
``good behavior'' requirement \75\--as some have done \76\--it 
seems clear that the differing responsibilities attendant on 
the federal bench entail a different approach to impeachment. 
Likewise, constitutional scholars have long recognized that the 
nature of the responsibilities of the official facing 
impeachment play a crucial role in determining whether 
particular conduct may rise to the level of an impeachable 
offense. In his textbook on impeachment, Professor Gearhardt 
    \75\ Article III, Sec. 1 of the Constitution provides that judges 
``Shall hold their Offices during good Behaviour. . . .''
    \76\ For example, in proposing articles of impeachment against 
Supreme Court Justice William Douglas, then Minority Leader Gerald Ford 
maintained that, for members of the judicial branch, ``an additional 
and much stricter requirement [than high crimes and misdemeanors] is 
imposed . . ., namely, ``good behavior.'' See 3 Deschler's Precedents 
of the House of Representatives, H. Doc. 94-661, ch. 14, Sec. 2.11, at 
452-55 (1974) (citing 116 Cong. Rec. 11912-14, 91st Cong. 2d Sess. 
(Sept. 17, 1970)). See also Subcommittee Hearing, supra note 56 
(Written Testimony of Griffin B. Bell at 15-16) (``[the view] 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'' . . . appears to me to be the only one that 
makes sense.'').

          [t]he different duties or circumstances of 
        impeachable officials might justify different bases for 
        their respective impeachments. In the case of federal 
        judges, the good behavior clause is meant to guarantee 
        not that they may be impeached on the basis of a looser 
        standard than the president or other impeachable 
        officials, but rather that they may be impeached on a 
        basis that takes into account their special duties or 
    \77\ Michael Gerhardt, The Federal Impeachment Process, 106-107 

The important role played by a federal district court judge, 
therefore, in administering oaths, sitting in judgment, and 
wielding the power to deprive citizens of their liberty or even 
their life make it especially appropriate that offenses against 
the judicial system or related offenses not directly tied to 
official acts may merit impeachment.
    These same distinctions were at issue during the Watergate 
era. When the prospect of impeachment proceedings against 
President Nixon arose, one of the crucial questions was whether 
a President could be impeached for conduct that did not 
constitute a violation of criminal laws. Although judges had 
previously been impeached for non-criminal conduct, these 
precedents were of little relevance to the persons wrestling 
with the appropriate standards for presidential impeachments. 
According to John Labovitz, one of the principal drafters of 
the Watergate Staff Report:

          For both practical and legal reasons, however, these 
        cases [involving the impeachment of judges] did not 
        necessarily affect the grounds for impeachment of a 
        president. The practical reason was that it seemed 
        inappropriate to determine the fate of an elected chief 
        executive on the basis of law developed in proceedings 
        aimed at petty misconduct by obscure judges. The legal 
        reason was that the Constitution provides that judges 
        shall serve during good behavior. This clause could be 
        interpreted as a separate standard for the impeachment 
        of judges or it could be interpreted as an aid in 
        applying the term ``high crimes and misdemeanors'' to 
        judges. Whichever interpretation was adopted, it was 
        clear that the clause made a difference in judicial 
        impeachments, confounding the application of these 
        cases to presidential impeachments.\78\
    \78\ John R. Labovitz, Presidential Impeachment 92-93 (1978). See 
also Minority Views to Watergate Committee Report, supra note 29, at 
370. (concluding that judicial impeachments ``resting upon `general 
misbehavior,'' in whatever degree, cannot be an appropriate guide for 
impeachment of an elected officer serving for a fixed term. The 
impeachments of federal judges are also different from the case of a 
President. . . .'' )

    Third, the removal of an inferior federal judge does not 
involve the titanic confrontation between coordinate branches 
of government that arises in a presidential impeachment. The 
anti-democratic consequences of removing a popularly-elected 
president are not raised by removing an appointed federal 
judge. As Professor Tribe explained:

          [t]here is the brute fact that when we put the 
        President on trial we are 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 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 
    \79\ Subcommittee Hearing, supra note 56 (Written Testimony of 
Professor Laurence H. Tribe at 14).

    As is accurately detailed in the Watergate Staff Report, 
one of the concerns voiced by the Framers in defining 
impeachable offenses was that if the definition was too 
expansive, then the balance of powers between the Executive and 
the Legislative branches of government would be tipped in favor 
of Congress, with disastrous results for the strong, 
centralized leadership that they envisioned.\80\ Again, 
according to Professor Berger:
    \80\ See, e.g., Watergate Staff Report, supra note 1, at 26.

          [T]he framers did not adopt ``misconduct in office'' 
        or ``maladministration.'' ``Maladministration'' was in 
        fact rejected on Madison's suggestion, and ``high 
        crimes and misdemeanors'' was adopted in its place. 
        True, the rejection was grounded on Madison's protest 
        that ``maladministration'' would place tenure at ``the 
        pleasure of the Senate,'' as well it might if all petty 
        misconduct in office were impeachable. But this 
        interchange, it will be recalled, had reference to 
        removal of the President, which poses quite different 
        problems from removal of judges. \81\
    \81\ Berger, supra note 8, at 206 (emphasis added).

    These ``balance of power'' concerns, of course, are not in 
play to nearly the same degree when Congress is confronted with 
the question of judicial impeachments. It is not surprising, 
therefore, that such impeachments have been far more common in 
our history and have been triggered by misconduct that in some 
instances could not have justified presidential impeachments. 
There are some 900 federal judges, but only one president. 
Federal judges are appointed for life and cannot be removed by 
any alternative method apart from impeachment. Presidents serve 
at most for two fixed terms, and can be removed after one term 
by the will of the people.\82\ No such accountability exists in 
cases involving judicial misconduct. Thus, for Congress to 
reverse the choice of the electorate and remove the nation's 
leader raises concerns of a wholly different magnitude than are 
at issue in judicial proceedings.
    \82\ As Gouvernor Morris assured his fellow delegates at the 
Constitutional Convention in Philadelphia, ``an election every four 
years will prevent maladministration.'' Farrand, supra note 13, at 550.

B. Specific Distinctions Between the Conduct That Formed the Basis for 
   the Impeachments of Judges Claiborne, Nixon and Hastings and the 
                     President's Alleged Misconduct

    Despite the best efforts of the Majority Staff Report to 
recast the entire nature of impeachment as rising or falling on 
perjury in the three judicial impeachment cases that have 
occurred since 1974, a close review of the facts of these cases 
indicates that official misconduct remains the touchstone of 
judicial impeachment, and the recent judicial cases do not 
support the notion that a president may be impeached for 
private misconduct. Judge Claiborne was impeached, while he was 
in prison and collecting his judicial salary, for income tax 
evasion (which was specifically rejected as a ground for 
impeachment of President Nixon), and had previously been 
charged with illegally soliciting a bribe. Judge Alcee Hastings 
and Walter Nixon committed perjury in connection with criminal 
proceedings concerning their public and official duties, not 
civil depositions into their private conduct. The statements by 
both Hastings and Nixon were directly material to the 
proceedings and to the underlying criminal charges against 
1. Judge Harry Claiborne
    After being convicted and sentenced to prison for filing 
false federal income tax returns, Judge Claiborne was impeached 
and removed from office in 1986. Judge Claiborne had signed 
written declarations that the returns were made under penalty 
of perjury. In addition to two articles charging him with 
filing false tax returns, Judge Claiborne was found guilty on 
an article of impeachment alleging that his willful tax evasion 
had ``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.'' \83\ At the time 
of his impeachment, Judge Claiborne was serving time in federal 
prison while continuing to collect his annual judicial salary 
of $78,700.
    \83\ Majority Staff Report, supra at 22 (citing 132 Cong. Rec. 
S15,760-61 (Oct. 9, 1986)).
    Significantly, the Majority Staff Report completely fails 
to note that Judge Claiborne had also been prosecuted for 
bribery. Namely, he had allegedly received $30,000 from a Las 
Vegas brothel owner in return for being influenced in the 
performance of his official acts--i.e., decisions regarding 
motions in a case pending before him.\84\ Although a trial on 
this charge resulted in a hung jury, it is difficult to deny 
that evidence of serious public corruption informed the 
government's ultimate ability to prosecute and convict, and the 
Judiciary's and Congress' decision to seek and achieve Judge 
Claiborne's impeachment and removal from office.
    \84\ See United States v. Claiborne, 727 F.2d 842, 843.
    Moreover, the debate on the House floor in the Claiborne 
case made it clear that the conduct justifying impeachment was 
closely linked to the special duties and responsibilities of a 
federal judge. The former chairman of the Judiciary Committee, 
Peter Rodino (D-NJ), summarized these sentiments in his 
statement on the House floor:
          As Members of this body have recognized in prior 
        judicial impeachments, the judges of our Federal courts 
        of law occupy a unique position of trust and 
        responsibility in our system of government: They are 
        the only members of any branch that hold their office 
        for life; they are purposely insulated from the 
        immediate pressures and shifting currents of the body 
        politic. But with the special prerogative of judicial 
        independence comes the most exacting standard of public 
        and private conduct. . . . The high standard of 
        behavior for judges is inscribed in article III of the 
        Constitution, which provides that judges ``shall hold 
        their Offices during good behavior . . .'' \85\
    \85\ 132 Cong. Rec. H4712 (July 22, 1986). The Committee Report 
also observed that ``Good behavior, as that phrase is used in the 
Constitution, exacts of a judge the highest standards of public and 
private rectitude. Those entrusted with the duties of judicial office 
have the high responsibility of ensuring the fair and impartial 
administration of justice, which in large part rest on the public 
confidence and respect for the judicial process.'' H. Rep. No. 99-688, 
at 23 (1986).

    Another recurring argument during the impeachment debate on 
the House floor was the impossibility of removing a federal 
judge, who serves a life term, without resort to the 
impeachment process. Several congressmen expressed special 
outrage that Judge Claiborne, while serving a prison term, was 
continuing to receive his full salary and would be entitled to 
return to the federal bench upon completing his prison 
    \86\ See generally, id. (statements of Rep. Fish, Rep. Moorhead, 
Rep. Glickman, Rep. Mazzoli, Rep. DeWine, Rep. Rudd, Rep. Vucanovich).
    Under these circumstances, it is clear that Judge Claiborne 
would have been unable to discharge credibly his judicial 
responsibilities upon his release from prison. It does not 
follow, however, that any income tax evasion by a future 
president would inevitably merit the drastic remedy of 
impeachment, which President Nixon's case powerfully confirms. 
As Professor Tribe observed at the Subcommittee hearing: ``The 
theme of [Judge Claiborne's] 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.''
2. Judge Walter Nixon
    The 1989 impeachment proceedings involving Walter Nixon of 
the Southern District of Mississippi are distinguishable on 
similar grounds. Like Judge Claiborne, he had already been 
convicted and sentenced to prison for perjury before his 
impeachment.\87\ The underlying facts concerned Nixon's 
intervention with a local prosecutor to obtain favorable 
treatment for a drug case involving the son of one of Nixon's 
partners in lucrative oil and mineral investments. After 
investigation by the FBI, Judge Nixon appeared before a grand 
jury and denied any discussion of the drug charges with the 
prosecutor. Testimony by the prosecutor, as well as the 
business partner, was to the contrary. On these facts, Nixon 
was convicted on two counts of perjury, which formed the basis 
for his impeachment.
    \87\ See Majority Staff Report, supra at 24 (discussing the 
articles and votes) (citations omitted).
    In sharp contrast to the false statements being alleged by 
the OIC, Judge Nixon's perjury was undoubtedly material to a 
criminal proceeding directed against him and his false 
statements were offered in direct rebuttal to charges that he 
had misused the powers of his office. The debate on Judge 
Nixon's articles of impeachment emphasized that his criminal 
misconduct was fundamentally inconsistent with his judicial 
responsibilities. Rep. Sensenbrenner (R-WI), in calling for 
Judge Nixon's impeachment, noted that ``A Federal judge must 
decide the credibility of witnesses, and find the truth in 
cases that come before him.'' \88\ Senator Grassley (R-IA) made 
a similar point during the impeachment debate:
    \88\ 135 Cong. Rec. S14493, S14499 (Nov. 1, 1989).

          To be entrusted with a lifetime office that has the 
        potential power of depriving individuals of their 
        liberty and property, is, indeed, a very great 
        responsibility. Consequently, a Federal judge must 
        subscribe to the highest ethical and moral standards. 
        At a minimum, in their words and deeds, judges must be 
        beyond reproach or suspicion in order for there to be 
        integrity and impartiality in the administration of 
        justice and independence in the operation of our 
        judicial system.\89\
    \89\ 135 Cong. Rec. S14633, S14638 (Nov. 3, 1989) (statement of 
Sen. Charles E. Grassley).
            3. Judge Alcee Hastings
    In 1981, Federal District Judge Alcee Hastings of the 
Southern District of Florida was tried and acquitted on charges 
of conspiracy to solicit and accept a bribe.\90\ Several years 
later, on recommendation of the Judicial Conference of the 
United States, the House of Representatives adopted seventeen 
articles of impeachment charging Hastings with conspiracy, 
perjury, and fabrication of evidence. The Senate convened an 
impeachment trial committee to take evidence and then, after 
hearings in 1989, voted to convict on eight articles of 
    \90\ See Majority Staff Report, supra at 25 (discussing the 
articles and votes) (citations omitted). A challenge to the Senate 
procedure and a review of the impeachment history appear in Hastings v. 
United States, 802 F. Supp. 490 (D.D.C. 1992).
    The charges involved a conspiracy between Judge Hastings 
and a District of Columbia lawyer, William Borders, to obtain 
$150,000 from defendants convicted of racketeering and related 
offenses in exchange for sentences that did not require 
incarceration. The government's case at trial indicated that 
Borders had approached the defendants through an intermediary 
and had offered to be ``helpful'' with his friend Judge 
Hastings, who was presiding over the case. The intermediary 
informed the FBI, which subsequently obtained evidence through 
an undercover operation.
    At his trial, Hastings claimed that his frequent 
conversations with Borders during the period in question 
related to other matters. The Committee found that claim to 
lack credibility under the circumstances. Because Hastings' 
perjury was found to have assisted his acquittal, it was the 
basis for his subsequent impeachment. A post-trial memorandum 
by the House of Representatives Judiciary Committee 
investigative staff concerning Judge Hastings emphasized that 
``[i]n each instance [of false testimony, Judge Hastings] was 
addressing a critical part of the case. In each instance, he 
needed to explain away incriminating evidence.'' \91\
    \91\ United States House of Representatives, In re Impeachment of 
Judge Alcee Hastings, Post Trial Memorandum of the House Judiciary 
Investigative Staff, Sept. 25, 1989, at 95-96 (on file with Committee 
Staff). See also Ed Henry, Top Dem Wants New Look at Hastings 
Impeachment, Roll Call, May 19, 1997 (Discussing claim by a 
whistleblower that FBI agent may have lied in order to seek Hastings' 
    As with Judge Nixon, the context of the Judge Hastings' 
alleged perjury was crucial. It concerned a defense to criminal 
charges alleging that he had sold his office for money. The 
central underlying allegation of bribery is, of course, one of 
the few impeachable offenses specifically designated in the 
language of the Constitution. There was little doubt, 
therefore, that false statements designed to conceal such an 
offense qualified as grounds for impeachment when commited by a 
federal district court judge.

                             IV. Conclusion

    Is the country now prepared to pursue the first ever 
impeachment of a president based on private misconduct 
unrelated to the powers of public office?
    The very text of the Constitution provides most of the 
answer--simply put, it is difficult to argue credibly that the 
offenses alleged by the OIC can in any way be likened to the 
very public and very corrupt offenses of Treason and Bribery. 
The history and background of impeachment further confirm that 
if we are to remain true to the intent of the Framers, the 1974 
Watergate Report, and our specific experiences with 
impeachment, Congress will not choose to take the Nation down 
the treacherous course of impeachment in a case where only non-
official misconduct is alleged.
    Efforts by the Majority to construe the OIC Referral as 
constituting an ever expanding series of statutory legal 
violations so that the President's conduct appears to pose a 
threat to our constitutional form of government are neither 
credible nor compelling. Nor do the facts alleged by the OIC 
approximate in scope or magnitude the very public wrongdoing 
alleged during Watergate.
    Resort to judicial impeachment precedents does not take the 
OIC Referral any further as a constitutional matter. No amount 
of sophistry can detract from the historical fact, as the 
Watergate Staff Report concluded, that judicial impeachments 
are premised on misconduct which exceeds constitutional 
constraints, are grossly incompatible with office or constitute 
abuse of official power. And nothing in the three post-
Watergate judicial impeachments contradicts these fundamental 
touchstones of impeachment.
    Impeachment has been variously referred to as an ``atom 
bomb'' and a ``caged lion.'' Now is not the time to unleash 
that lion's rage on an already weary nation, to alter 
fundamentally the balance of power between the executive and 
legislative branches, or to turn more than 200 years of 
impeachment precedent on its head.