Congressional Record, Volume 144 Issue 136 (Friday, October 2, 1998)

[Congressional Record Volume 144, Number 136 (Friday, October 2, 1998)]
[Senate]
[Pages S11333-S11338]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

THE IMPEACHMENT PROCESS

Mr. BIDEN. Mr. President, during the past 26 years as a U.S. Senator,
I, like all who sit here, have been confronted with some of the most
significant issues that have faced our Nation in the last quarter
century--issues ranging from who sits on the highest court of the land,
the Supreme Court, to whether or not we should go to war. These and
others are, obviously, weighty issues. But none of the decisions has
been more awesome, or more daunting, or more compelling than the issue
of whether to impeach a sitting President of the United States of
America, a responsibility that no Senator will take lightly.
As imposing as this undertaking is, I am sad to say that I have had
to contemplate this issue twice during my service as a U.S. Senator--
once during the term of President Richard Milhous Nixon, and now.
While the circumstances surrounding these two events are starkly
different, the consequences are starkly the same. The gravity of
removing a sitting President from office is the same today as it was 26
years ago. And 26 years ago as a much younger U.S. Senator, I took to
the floor on April 10, 1974, and said the following:

In the case of an impeachment trial, the emotions of the
American people would be strummed, as a guitar, with every
newscast and each edition of the daily paper in communities
throughout the country. The incessant demand for news or
rumors of news--whatever its basis of legitimacy--would be
overwhelming. The consequential impact on the Federal
institutions of government would be intense--and not
necessarily beneficial. This is why my plea today [that was
1974] is for restraint on the part of all parties involved in
the affair.

It is somewhat presumptuous for any Senator to quote himself. But I
cite it to point out that my views then with a Republican President are
the same as my views today with the Democratic U.S. President. It is
time for all parties involved in this affair to show restraint.
I rise today because I believe that we are not exercising the
restraint as we should. Those words that I said 24 years ago have an
uncanny ring to them. Furthermore, in 1974, I urged my colleagues in
the U.S. Senate during the Watergate period to learn from the story of
Alice in Wonderland. I cautioned then that they remember Alice's plight
when the Queen declared, ``Sentence first and verdict afterwards.'' But
the need for restraint then is even greater now than it was in 1974.
The impeachment question then was not as politically charged as it is
today. In 1974, we were willing to hear all the evidence before we made
any decision. We had men like Howard Baker and Sam Ervin. We had men
like Chairman Peter Rodino. We had Democrats and Republicans. I
remember a brilliant young Senator from Maine, who was then a
Congressman named William Cohen, a Republican, and now our Secretary of
Defense. He was a Congressman from Maine. I remember how serious they
took the process, how much restraint they showed, and how bipartisan
their actions were.
Today, I hope for our Nation's sake--not the President's, but for our
Nation's sake--that we don't follow the Queen's directive in Alice in
Wonderland to ``sentence first and verdict afterwards,'' and that we
will make a wise judgment about the fate of the President after
deliberate consideration.
My legal training combined with more than a quarter of century of
experience in the U.S. Senate, a significant part of that as chairman
of the Judiciary Committee, has taught me several important lessons.
Two of these are lessons that I believe are appropriate now. First is
that an orderly society must first care about justice; and, second, all
that is constitutionally permissible may not be just or wise.
Let me repeat the latter. All that is constitutionally permissible to
do may be not wise to do, or may not be just in the doing.
It is with these two very important lessons guiding me that I embark
upon a very important decision involving our country, our Constitution
and our President. The power to overturn and undo a popular election by
the people for the first time in our Nation's history must be exercised
with great care and with sober deliberation.
We should not forget that 47.4 million Americans voted for our
President in 1996, and 8.2 million voted for the President's opponent.
We should also not forget, as I tell my students in the constitutional
law class I teach on separation of powers, that the entire essence of
our constitutional system is built upon the notion of the consent of
the governed, and when we deign to overturn a decision of the governed,
we are on very thin ice.
I believe Members of Congress should begin their deliberation with a
thorough understanding of the impeachment process. They should
understand what the framers of the Constitution intended the standard
of impeachment to be. I have heard no discussion of that issue thus
far. And, further, how the framers of the Constitution intended the
process to work; again, I have heard no discussion of that thus far.
Let me say at the outset that what President Clinton did and
acknowledged to have done is reprehensible. It was, at a minimum, a
horrible lapse in judgment, and it has brought shame upon him
personally. It has brought shame upon the Office of the Presidency, and
his actions have hurt his family, his friends, his supporters, the
causes for which he fights, and the country as a whole. I am confident
that he fully understands the gravity of what he has done now.
Let me also say that I have made no judgment. I have not made any
decision on what I think should happen. I have not come to any
conclusion as to consequences the President should face for his
shameful behavior, because I believe the oath of office that I have
taken on five solemn occasions--four which were right here in the well,
and one which was in a hospital in Wilmington, DE--on those five
occasions, the oath that I took I believe precludes me, and I will
respectfully suggest any other Senator, from prejudging, as I and all
other Senators may be required to serve as the Constitution dictates,
as judge and juror in what may become the trial of this century. I can
only make--and I would respectfully suggest

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all of us can only make--an assessment after hearing all the evidence,
evidence against the President and evidence in support of the
President. No one knows, to the best of my knowledge, but the Lord
Almighty, how all this will turn out. However, because this is the
second time in my career I have had to face this awesome
responsibility, I have given this topic a great deal of thought and
consideration and would like to explore, with the indulgence of the
Presiding Officer, some of the issues that I believe will surely
confront responsible Members of Congress and all Americans as we enter
this difficult period in our history.

Mr. President, the framers of the Constitution who met in
Philadelphia in the summer of 1787 considered--and this is a fact
little known, at least little spoken to--offering this country a
Constitution that did not include the power to impeach the President.
Let me reemphasize that. The founders considered not including in our
Constitution the power to remove the President from office. After all,
they reasoned, any wrongs against the public would be dealt with by
turning the President out in the next election. To overturn an
election, which I will speak to in a moment, would lend itself to
political chicanery.
One delegate to the Constitutional Convention, Charles Pinckney of
South Carolina, worried that the threat of impeachment would place the
President under the thumb of a hostile Congress, thereby weakening the
independence of the office and threatening the doctrine upon which our
Constitution was built--the separation of powers. According to James
Madison's notes, Pinckney called impeachment a ``rod'' that Congress
would hold over the President.
In being reluctant to include any impeachment power, the framers were
not trying to create an imperial Presidency. In fact, what they were
worried about was protecting all American citizens against the tyranny
of a select group. In their view, the separation of powers constituted
one of the most powerful means for protecting individual liberty,
because it prevented Government power from being concentrated in any
single branch of Government. To make the separation of powers work
properly, they reasoned, each branch must be sufficiently strong and
independent from the other so that the power of one branch could not be
encroached upon by the other.
The framers were concerned that any process whereby the legislative
branch, the branch they deemed ``the most dangerous,'' could sit in
judgment of a President who would be vulnerable to the abuse of
partisan faction which, as my friend and Presiding Officer and gifted
lawyer knows, was one of the overwhelming, recurring concerns of the
founders--partisan politics. They feared that this most dangerous
branch could sit in judgment of a President who would be vulnerable to
abuse by partisan factions.
Federalist No. 65 begins its defense of the impeachment process which
ultimately was included by warning of the dangers of the abuse--of the
abuse--of the power. It argues, Federalist 65, that is, that
impeachment:

. . . will seldom fail to agitate the passions of the whole
community, and to divide them 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, particularities, 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 demonstration of guilt or innocence.

Don't you find it kind of fascinating that the Federalist Papers,
which were the 1787-1788-1789 version of advertising to sell the
Constitution, don't you think it fascinating, instead of them writing
about, warning about the abuse of power by the President requiring
impeachment, they wrote about and were concerned about and more debate
was conducted about the abuse of power by political factions in the
legislative branch to overturn the will of the American people?
So the framers were fully aware that the impeachment process could
become partisan attacks on the President--charged with animosities
generated by all manner of trials, prior struggles and disagreements
over executive branch decisions, over policy disputes, over resentment
at losing the prior election, and God only knows what else.
Federalist No. 65 expresses the view that the use of impeachment to
vindicate any of these animosities would actually be an abuse of power.
So the power that they were at least equally in part worried about
being abused was the partisan power of a legislative body to overturn a
decision of the American people--giving too much power to the
legislative branch at the expense of the executive branch, thereby
diluting the separation of powers doctrine, concentrating it too much
in one place and thereby jeopardizing the liberty and freedom of
individual Americans.
This sentiment that I referred to about the abuse of power by this
body and the House is as true today as it was when the Constitution was
being written. It was also true when Richard Nixon faced impeachment in
1974. In fact, it would have been wrong for Richard Nixon to have been
removed from office based upon a purely partisan vote. No President
should be removed from office merely because one party enjoys a
commanding lead in either House of Congress. And I would remind my
colleagues that when I arrived here in 1973, and when the Nixon
hearings were going on in 1974, the Democratic Party--and he was
obviously a Republican--enjoyed an overwhelming, commanding plurality
of votes. My recollection is there were roughly 64 Democratic Members
of the Senate at the time, and a prohibitively large plurality of
Democrats in the House of Representatives. In fact, it would have been
wrong then, as it would be wrong now, to have removed him based upon
the power that was in the hands of one party. No President should be
removed merely because one party enjoys a commanding lead in either
House of Congress.

Yet, while the framers knew that the impeachment process could become
partisan, they needed to deal with the strong anti-Federalist factions
that jeopardized the possibility of the Constitution being ratified by
the requisite number of States. The anti-Federalists strenuously argued
that the Federal Government would quickly get out of step with the
sentiments of the people and become vulnerable to corruption and
intrigue, arrogance and tyranny. These charges proved close to fatal as
the ratifying conventions in the States took up the proposed
Constitution.
It was with this looming danger in mind, of losing the ratification
fight, that the Federalists decided to include the impeachment
provision in the Constitution. The framers of the Constitution knew
that the Constitution would have been even more vulnerable to charges
of establishing a government remote from the people if the President
were not subject to removal except at the next election.
James Madison's notes, again, of the Philadelphia Constitutional
Convention, record his observations of the debate, where he 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, [that is, the
President]. The limitation of the period of his service was
not a sufficient security. He might lose his capacity after
his appointment. He might pervert his administration into a
scheme of speculation or oppression. He might betray his
trust to foreign powers.

So, those concerns, those concerns expressed by Madison about whether
or not the President might lose his ability to lead, might ``pervert
his administration to a scheme of speculation or oppression, might
betray his trust to a foreign power''--they were thought to be
sufficient reason to include the power of impeachment in the
Constitution. So, in the end, the framers of the Constitution risked
the abuse of power by the Congress to gain the advantages of
impeachment.
Once the decision to include the power of impeachment had been made,
the remainder of the debate on the impeachment clause focused on two
issues. The first debate, which we do not even talk about, was whether
or not to give the power to the Congress to impeach, and weighed the
advantages and disadvantages. The disadvantage was, it would lead to
partisan bickering and abuse of power by the Congress. But that was
outweighed, ultimately, in their minds, by the process that a President
could and might subvert the interests of this country to a foreign
power or subvert the office to

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oppress the people or to take advantage of the office in a way that was
inappropriate in the minds of the American people.
Once that decision was made, though, they then focused on, OK, we are
going to include it, but--but--what was supposed to constitute an
impeachable offense? Put another way, what was the standard going to be
that they expected the Congress to use? And then they said: After we
decide that, we have to decide how is impeachment to work? How is the
process to be undertaken? And what were the procedures that should be
set down as to how to approach such an awesome undertaking?
As we shall see, the framers proved unable to separate these two
issues entirely. Understanding how they are entwined, however--that is,
the question of what constitutes an impeachable offense and how is the
mechanism to work--understanding how these two issues are intertwined,
I believe, will help us to understand the full implications of the
power that the Constitution gives those of us who serve in the
Congress. The Constitution provides that the House of Representatives
shall have the power to impeach--article I, section 2, clause 5.
The framers' decision that the House of Representatives would
initiate the charges of impeachment follows the pattern of the English
Parliament, where the House of Lords initiates charges of impeachment.
Beyond this, the choice--the choice of the House being given this
power--must have seemed fairly compelled by two related considerations.
The first, already mentioned, was the need to provide the people as a
whole with assurances that the Government they were being asked to
create would be responsive to the interests and concerns of the people
themselves. So what better place to go than the people's house, the
House of Representatives?
The second reason for the House being given this power to initiate
was the framers' substantive understanding of the impeachment power. It
was a power to hold accountable Government officers who had, in
Hamilton's terms, committed ``an abuse or violation of some public
trust,'' thereby committing an injury ``done immediately to the society
itself.''
Keep in mind what they are talking about here--at least what Hamilton
was talking about--as to what constituted the kind of offense that was
contemplated to be impeachable: Something that was an abuse or
violation of the public trust and done immediately to the society
itself.
If the gravamen of an impeachment is the breach of public trust, no
branch of the Federal Government could have seemed more appropriate to
initiate such a proceeding than the House of Representatives, which was
conceived and defended as the Chamber most in tune with the people's
sympathies and hence most appropriate to reflect the people's views as
to whether the society itself was done immediate harm.
The Constitution further provides that the President shall be
``removed from Office on Impeachment for, and Conviction of, Treason,
Bribery, or other high Crimes and Misdemeanors.'' Article 2, section 4
of the U.S. Constitution.
The Constitution provides that ``the House of Representatives shall .
. . have the . . . Power of Impeachment.'' Article I, section 2, clause
5. And the Senate shall remove from office on ``Impeachment for, and
Conviction of, Treason, Bribery, or other high Crimes and
Misdemeanors.''
This language, the language about what he should be removed for, went
through several changes during the summer of 1787. In the initial
drafts, the grounds for impeachment--once the debate was over as to
whether or not to include impeachment as a power--the initial drafts,
the grounds for impeachment, were restricted to treason and bribery
alone, period; nothing else--not another single thing.
I remind my friends who call themselves strict constructionists--I
have run into them over my 26-year career and, as chairman of the
Judiciary Committee, have had numerous debates with now Supreme Court
Justices, and some who are not Supreme Court Justices, on what is the
proper methodology for interpreting the Constitution. Those who view
themselves as strict constructionists say the words, if their plain
meaning is clear, control.
Initially this debate, once impeachment was decided upon as a power
that would be granted to the Congress, included impeachable offenses
for only two purposes: Treason or bribery.
When the matter was brought up on September 8, 1787, George Mason, of
Virginia, inquired as to why the grounds should be restricted only to
those two provisions. He reasoned that there are other ways the public
trust in government can be abused, so why only these two? He argued:

Attempts to subvert the Constitution may not be treason as
above defined.

So, accordingly, he moved to add the word ``maladministration'' as a
third ground for impeachment.
James Madison objected to Mason's motion, contending that to add ``so
vague a term''--the term being maladministration--to add ``so vague a
term will be equivalent to a tenure during the pleasure of the
Senate.''
Or put another way, if you said ``maladministration,'' the majority
party in the House and the Senate could at any time overturn an
election by alleging maladministration. So Madison came along and said,
``I understand what you are trying to do, old George, to Mason''--my
words, not theirs--``I understand what you are trying to do here; we
acknowledge that you can violate the public trust and abuse the office
to do injury to the American people other than by treason and
bribery.'' But if you read Madison's notes, if you read the debate, as
I have, I challenge you to find an interpretation other than
essentially what I am giving you here, which is this: ``But, George, if
you put maladministration on, it will be subject to too much--too
much--abuse. And, George, I acknowledge that something beyond treason
and bribery can do harm. But, George, let's be careful what we add.''
They debated it. James Madison objected to the motion, as I said,
because it was vague and here, again, we see the worry that impeachment
would be misused by the Congress to reduce the independence of the
President, allowing partisan factions to interfere at the expense of
the larger public good and overturning the election or the consent of
the governed being attacked because separation of powers had been
reduced.
The objection on the part of Madison proved effective, because Mason
subsequently withdrew the motion and came up with another phrase, and
you know what the phrase was. It said: ''. . .or other high crimes and
misdemeanors.''
Obviously, the context in which ``high crimes and misdemeanors'' was
entered was to be something a heck of a lot more than maladministration
and less than treason or bribery, or at least equal to.
What does this phrase mean? It is clear the framers thought it to be
limited in scope, but beyond this, constitutional scholars of whom I
have inquired and read have been debating the meaning of this phrase
from the very early days of the Republic, and there is not a clear
consensus. Despite this ongoing dialog and disagreement, though, I
believe there are two important points of agreement in the minds of
almost all constitutional scholars as to the original understanding of
the phrase.
The PRESIDING OFFICER. The Chair informs the Senator that his 30
minutes have expired.
Mr. BIDEN. I ask unanimous consent to proceed for another 15 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BIDEN. Mr. President, despite this dialog, as I indicated,
scholars agree on two important points and a third issue where the
weight of history suggests subtle practice. Let me speak to that.
As we already have seen, the framers did not intend that the
President could be impeached for maladministration alone. Second, a
great deal of evidence from outside the convention shows that both the
framers and the ratifiers saw ``high crimes and misdemeanors'' as
pointing to offenses that are serious, not petty, offenses that are
public or political, not private or personal.
In 1829, William Rawle authored one of the early commentaries on the
Constitution of the United States. In it, Rawle states that ``the
legitimate causes of impeachment . . . can only have reference to
public character and official duty.

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He went on to say:

In general, those offences which may be committed equally
by a private person as a public officer are not--

Emphasis, not--

the subjects of impeachment.

In addition, more than 150 years ago, Joseph Story, as my learned
colleague who is presiding knows was a lawyer, Joseph Story and his
influential commentaries on the Constitution stated that impeachment is
``ordinarily'' a remedy for offenses ``of a political character,''
``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.''
The public character of the impeachment offense is further reinforced
by the limited nature of the remedy for the offense. In the English
tradition, which we rejected, impeachments were punishable by fines,
imprisonment or even death.
In contrast, the American Constitution completely separates the issue
of criminal sanctions from the issue of removal from office.
Our Constitution states that, ``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. * * * '' Article I, section 3, clause
7.
The remedy for violations of the public's trust in the performance of
one's official duties, in other words, is limited to removal from that
office and disqualification from holding further office; remedies that,
I might add, correspond nicely to the public nature of the offenses in
the first instance.
Additional support comes from another commentator, James Wilson, a
delegate to the Convention from Pennsylvania. In his lectures on the
Constitution, Wilson wrote:

In the United States and Pennsylvania, impeachments are
confined to political characters, to political crimes and
misdemeanors, and to political punishments.

All in all, the evidence is quite strong that impeachment was
understood as a remedy for abuse of official power, breaches of public
trust, or other derelictions of the duties of office.
The third point to make about the scope of the impeachment power is
this: To be impeachable, an offense does not have to be a breach of the
criminal law.
The renowned constitutional scholar and personal friend and adviser,
the late Phillip Kurland, the leading constitutional scholar of this
century, I argue, wrote that:

At both the convention that framed the Constitution and at
the conventions that ratified it, the essence of an
impeachable offense was thought to be breach of trust and not
violation of criminal law. And this was in keeping with the
primary function of impeachment, removal from office.

If you put the notion that an impeachable offense must be a serious
breach of an official trust or duty, together with the point that it
does not have to be a criminal violation, you reach the conclusion that
not all crimes are impeachable, and not every impeachable offense need
be a crime.
These points provide important anchors for any impeachment inquiry,
but they do not resolve all the questions of scope that may arise. Much
remains to be worked out, and only to be worked out, in the context of
particular circumstances and allegations. As Hamilton explained in
Federalist 65 impeachment ``can never be tied down by * * * strict
rules, either in the delineation of the offense by the prosecutors or
in the construction of it by the judges. * * *''
After all the legal research, we are still left with the realization
that the power to convict for impeachment constitutes an ``awful
discretion.''
This brings us directly to the Senate's role. To state it bluntly, I
believe the role of the U.S. Senate is to resolve all the remaining
questions. Let me elaborate.
The Senate's role as final interpreter of impeachments was recognized
from the beginning of the Republic. For example, to refer again to
Joseph Story, after he devoted almost 50 sections of his commentaries
to various disputed questions about the impeachment power, he concluded
that the final decision on the unresolved issues relating to
impeachment ``may be reasonably left to the high tribunal, constituting
the court of impeachment.''
I.e., the U.S. Senate, the floor upon which I stand.
The court of impeachment, the Senate, similarly was viewed in the
Federalist Papers and referred to Senators as the judges of
impeachment. Speaking of the Senate as the jury in impeachment trials
is perhaps a more common analogy these days as you turn on your
television and hear many of us speak. But the judge analogy is a more
accurate analogy than the juror analogy.
In impeachment trials, the Senate certainly does sit as a finder of
fact, as a jury does. But it also sits as a definer of the acceptable
standards upon which the President is being judged, as a judge would
do. The Senate, in other words, determines not only whether the accused
has performed the acts that form the basis for the House of
Representatives' articles of impeachment but also whether those actions
justify removal from office.
So let's lay to rest this idea that if the President--any President--
is impeached by the House of Representatives, and specific articles are
alleged of violations, and we find the President violated the very
charge that the House has made--that does not mean we must vote for
impeachment, for we can reject the grounds upon which the House
impeached in the first instance as being not sufficiently sound to meet
``high crimes and misdemeanors.'' There is no question about that, and
yet it seems to be a question in the minds of the press. There is no
question about that.
Once again, we find support for this view from our country's history.
In two of the first three impeachments brought forward from the House
to the U.S. Senate, the Senate acquitted the accused. In each of the
two acquittals, however, the Senate did not disagree with the House on
the facts.
One case involved a Senator, William Blount, the other an Associate
Justice of the Supreme Court, Samuel Chase. In neither one was there
any question that the individual had done the deeds that formed the
basis of the House's articles of impeachment. Yet in each case the
Senate concluded that the deeds were not sufficient to constitute valid
grounds for impeachment, and so they acquitted.
Eventually then, if the current impeachment proceeds, it will fall to
the Senate to decide not only the facts but the law and to evaluate
whether or not the specific actions of the President are sufficiently
serious to warrant being thrown out of office--being convicted.
The framers intended that the Senate have as its objective doing what
was best for the country, taking context and circumstances fully into
account.
I should try to be as clear as I can about this point because the
media discussions have come close to missing it. It seems to be widely
assumed that if the President committed perjury, for example, then he
must be impeached, and he must be convicted if the Senate concludes he
perjured himself. Conversely, you may think that unless it can be
proven that the President committed perjury, or violated some other
criminal statute, that impeachment cannot occur. Both sentiments and
statements are wrong.
Recall what I said earlier: Not all crimes are impeachable offenses
and not every impeachable offense need be a crime to throw a President
out of office.
The Senate, for example, could decline to convict, even if the
President had committed perjury, if it concluded that under the
circumstances this perjury did not constitute a sufficiently serious
breach of duty toward removal of the President. There is no question
about that either.
On the other hand, the Senate could convict a President of an
impeachable offense even if it were not a violation of the criminal
law. For instance, if the Senate concluded that the President had
committed abuses of power sufficiently grave, it need not find any
action to amount to a violation of some criminal statute.
Let me give you an example. If there was overwhelming proof that
every day the President came to his office, the Oval Office, drunk,
that is not a crime, but it is impeachable--it is impeachable--
committing no crime, but is impeachable. Conversely, if the Senate can
conclude that the President lied

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about whether or not he had an affair, they could conclude that did not
constitute an impeachable offense warranting expulsion. Now, again I am
not prejudging what we should decide, but I think it is very important
we understand what latitude and obligations we have.
Let me now stand back from the issue of substance and procedure and
look at the impeachment mechanism as it has actually functioned in our
country's history. The proof of the framers' design, after all, will be
in how the mechanism has worked in practice.
I am almost finished, Mr. President.
As we have seen, the framers worried that impeaching a sitting
President would most likely be highly charged with partisan politics
and preexisting factions, enlisting, as they said, all of the
``animosities, partialities, and influence and interest'' that
inevitably swirl around a sitting President. History shows, Mr.
President, they had it right from the get-go. They had it right. And
they were right to worry about it.
Prior to the case of President Nixon, Presidential impeachment had
only been used for partisan purposes. History tells us that John Tyler
was an enormously unpopular President, facing a hostile Congress
dominated by his arch political enemy, Henry Clay--one of the several
people younger than me when he got here. He was an amazing guy. Here he
was, a leader in the House of Representatives before he was 25, and he
became a U.S. Senator before he was 30.
During the impeachment effort of John Tyler, what he was facing,
Tyler, was a hostile Congress dominated by the young Henry Clay. After
several years of continual clashes, numerous Presidential vetoes, and
divisive conflicts with the Senate over appointments, a select
committee of the House issued a report recommending a formal
impeachment inquiry.
President Tyler, not being as dumb as everyone thought, reached out
to his political enemies. How did he do that? He signed an important
bill raising tariffs, which had been one of the reasons that there was
such animosity between him and Henry Clay and his friends. He raised
tariffs which he had formerly opposed. And he found other means of
cooperation with Congress.
In the end, even Henry Clay, speaking from the floor of the U.S.
Senate, urged the slowdown on the impeachment proceedings that he had
moved to initiate, suggesting instead a lesser action of a ``want of
confidence.'' ``Want of confidence''--does it sound familiar? Does it
sound at all like the idea of having the President sanctioned in some
way other than impeachment? Does it sound like censuring the President?
``Want of confidence.''
So Clay suggested that a ``want of confidence'' vote, rather than a
formal impeachment proceeding, might be better. So in early 1843, the
resolution to proceed with an impeachment--whether to proceed with the
impeachment inquiry, was defeated on the House floor, 127-83. They had
already begun the process of inquiry, and along came Tyler, and he
said, ``I'll make peace with you.''
In 1868, Andrew Johnson came much closer to conviction on charges of
serious misconduct. No southerner will be unaware of--I ask unanimous
consent that I be able to proceed for another 10 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BIDEN. As every southern Senator knows, Andrew Johnson came much
closer to conviction on the charges of serious misconduct. Although
Johnson's impeachment proceedings ostensibly focused on his
disregarding the Tenure in Office Act, historians--and not a single
southerner does not understand--but historians uniformly agree that the
true sources of opposition to President Johnson were policy
disagreements and personal animosity.
The conflict this time was between Johnson's moderate post-Civil War
policies toward the Southern States and the overwhelming Republican
majorities in both Chambers. The Republicans feared dilution of their
voting strength if the southerners were seated.
Johnson's defenders in the Senate were eventually able to hold on to
barely enough votes to prevent his conviction. In Professor Raoul
Berger's view, ``Johnson's trial serves as a frightening reminder that
in the hands of a passion-driven Congress, the process may bring down
the very pillars of our constitutional system.''
Yet, if the cases of Tyler and Johnson substantiate the framers'
fears, the Nixon situation vindicates the utility of the impeachment
procedures. Notice how different the Nixon proceedings were from
Tyler's and Johnson's. As the Nixon impeachment process unfolded, there
was broad bipartisan consensus each step of the way. I was there at the
time.
While it would have been foolish to believe that Members of Congress
did not worry about the partisan political repercussions of their
actions, such factional considerations did not dominate decision
making.
Political friends and foes of the President agreed that the charges
against the President were serious, that they warranted further inquiry
and, once there was definitive evidence of serious complicity and
wrongdoing, a consensus emerged that impeachment should be invoked. The
President resigned after the House Judiciary Committee voted out
articles of impeachment by a 28-10 vote.
For me, several lessons stand out from our constitutional
understanding of the impeachment process and our historical experience
with it. Furthermore, I believe that a consensus has developed on
several important points.
While the founders included impeachment powers in the Constitution,
they were concerned by the potential partisan abuse. We should be no
less aware of the dangers of partisanship. As we have seen, the process
functions best when there is a broad bipartisan consensus behind moving
ahead. The country is never well served when either policy
disagreements or personal animosities drive the process.
Many scholars who have studied the Constitution have concluded that
it should be reserved for offenses that are abuses of the public trust
or abuses that relate to the public nature of the President's duties.
Remember, what is impeachable is not necessarily criminal and what is
criminal is not necessarily impeachable.
The Senate in particular has wide latitude in determining the outcome
of this constitutional process. Just because the House may initiate an
impeachment process does not mean that the Senate will conclude that
the process with a vote on articles of impeachment was a correct
process. It is well within our constitutional responsibilities to
consider alternatives to impeachment if we find that circumstances
warrant these alternatives.
I don't know that they will and I don't know that we will get there,
but again, the debate is being waged as to whether or not it is in our
constitutional power to consider alternatives. Remember Senator Henry
Clay's ``want of confidence.''
There is no one-size-fits-all definition of impeachable offenses,
divorced from such practical considerations. The Senate in particular,
has an obligation to consider the full range of consequences of
removing the President from Office.
In recent days, some have suggested that because the Starr Report
provides a prima facie case and prima facie evidence of what are
arguably impeachable offenses, the House and the Senate have a
constitutional responsibility to see the impeachment process through to
its conclusion.
In my view, the constitutional history that I have sketched here and
more shows this position is entirely mistaken. Indeed, if anything,
history shows a thoroughly understandable reluctance to have the
procedure invoked in the first place.
Stopping short of impeachment would not be reaching a solution
``outside the Constitution.'' It would be entirely compatible and
consistent with what the Founders contemplated, if that is what we
decide. Again, I am not prejudging what we should decide.
The 28th Congress hardly violated its constitutional duty when the
House decided that, all things considered, terminating impeachment
proceedings after cooperation between the Congress and the President
improved was a better course of action than proceeding with impeachment
based on his past actions, even though it apparently did so for reasons
no more laudable than those that initiated the process in the first
place.

[[Page S11338]]

Impeachment was and remains an inherently political process, with all
the pitfalls and promises that are thus put into play by politics.
Nothing in the document precludes the Congress from seeking means to
resolve this or any other putative breach of duty short of removing him
from office. In fact, the risky and potentially divisive nature of the
impeachment process may counsel in favor of utilizing it only as an
absolute last resort where there is no shadow of a doubt that it meets,
the criteria of treason, bribery, or other high crimes and
misdeameanors.
Of course, impeachment ought to be used if the breach of duty is
serious enough--what the Congress was prepared to do in the case of
Richard Nixon was the correct course of action. However, nothing in the
constitution precludes the Congress from resolving this conflict in a
manner short of impeachment.
The critical question--the question with which the country is
currently struggling--is whether the President's breaches of conduct
and shameful activity, which are now well known and which have been
universally condemned, warrant the ultimate political sanction. Are
they serious enough to warrant removal from office?
In answering that, we need to ask ourselves, What is in the best
interests of the United States of America? That is something that the
founders contemplated us asking ourselves if and when faced with this
question.
While I have not decided ultimately what should happen, I do want to
suggest that it certainly is constitutionally permissible to consider a
middle ground as a resolution of this matter. Such an approach might
bring together those of the President's detractors who believe there is
a need for some sanction, but are willing to stop short of impeachment,
as well as those of the President's supporters who reject impeachment,
but are willing to consider that some sanction ought to be implemented.
As a country, Mr. President, we have not often faced decisions as
stark and potentially momentous as the impeachment of a President of
the United States. On the other hand, we would be wise not to overstate
such claims. Surely we have faced some moments as stark and serious as
this one. We have survived those moments and we will survive this one
no matter how we handle it. As my dad always says, and he is going on
85 years of age, I remember over the last 26 years going home and
saying, ``Dad, this is a catastrophe,'' and he would look at me and
say, ``Joe, this country is so good, it is so strong, it is so solid,
that it can stand 4 or 8 years of anybody or anything.'' And he is
right. He is right. So I don't want to exaggerate this.

Whatever the outcome of the present situation, I'm confident that our
form of government and the strength of our country present us not with
a constitutional crisis but rather with a constitutional framework and
flexibility to deal responsibly with the decisions we face in the
coming months. My purpose in rising today is to remind all of us of
what that constitutional framework and flexibility mean, what they are.
In my closing plea I begin where I started, as a young Senator in
April of 1974. This is a time for us to be cautious. This is a time for
Members of this body to hold our fire. This is the time to be prepared
to exercise our responsibility to be judge and jury after, and only
after, all of the facts are presented to us. This is not a
constitutional crisis but it is a serious, serious business.
I yield the floor.

____________________