[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.

                          ____________________