[Congressional Record Volume 144, Number 138 (Tuesday, October 6, 1998)]
[House]
[Pages H9649-H9650]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SHOULD PRESIDENT CLINTON BE IMPEACHED?
The SPEAKER pro tempore. Under a previous order of the House, the
gentlewoman from Oregon (Ms. Hooley) is recognized for 5 minutes.
Ms. HOOLEY of Oregon. Mr. Speaker, I yield to the gentlewoman from
Oregon (Ms. Furse).
Ms. FURSE. Mr. Speaker, the letter goes on to say:
``It goes without saying that lying under oath is a serious
offense. But even if the House of Representatives had the
constitutional authority to impeach for any instance of
perjury or obstruction of justice, a responsible House would
not exercise this awesome power on the facts alleged in this
case. The House's power to impeach, like a prosecutor's power
to indict, is discretionary. This power must be exercised not
for partisan advantage, but only when circumstances genuinely
justify the enormous price the nation will pay in governance
and stature if its President is put through a long, public,
voyeuristic trial. The American people understand this price.
They demonstrate the political wisdom that has held the
Constitution in place for two centuries when, even after the
publication of Mr. Starr's report, with all its extraordinary
revelations, they oppose impeachment for the offenses alleged
therein.
We do not say that a `private' crime could never be so
heinous as to warrant impeachment. Thus Congress might
responsibly determine that a President who had committed
murder must be in prison, not in office. An individual who by
the law of the land cannot be permitted to remain at large,
need not be permitted to remain President. But if certain
crimes demand immediate removal of a President from office
because of their unspeakable heinousness, the offenses
alleged against the President in the Independent Counsel's
referral are not among them. Short of heinous criminality,
impeachment demands convincing evidence of grossly derelict
exercise of official authority. In our judgment, Mr. Starr's
report contains no such evidence.
Mr. Speaker, I include the following letter for the record:
October 2, 1998.
Hon. Newt Gingrich,
Speaker, U.S. House of Representatives.
Dear Mr. Speaker: Did President Clinton commit ``high
Crimes and Misdemeanors'' for which he may properly be
impeached? We, the undersigned professors of law, believe
that the misconduct alleged in the Independent Counsel's
report does not cross that threshold.
We write neither as Democrats nor as Republicans. Some of
us believe that the President has acted disgracefully, some
that the Independent Counsel has. This letter has nothing to
do with any such judgments. Rather, it expresses the one
judgment on which we all agree: that the Independent
Counsel's report does not make a case for presidential
impeachment.
No existing judicial precedents bind Congress's
determination of the meaning of ``high Crimes and
Misdemeanors.'' But it is clear that Members of Congress
would violate their constitutional responsibilities if they
sought to impeach and remove the President merely for conduct
of which they disapproved.
The President's independence from Congress is fundamental
to the American structure of government. It is essential to
the separation of powers. It is essential to the President's
ability to discharge such constitutional duties as vetoing
legislation that he considers contrary to the nation's
interests. And it is essential to governance whenever the
White House belongs to a party different from that which
controls the Capitol. The lower the threshold for
impeachment, the weaker the President. If the President could
be removed for any conduct of which Congress disapproved,
this fundamental element of our democracy--the President's
independence from Congress--would be destroyed.
It is not enough, therefore, that Congress strongly
disapprove of the President's conduct. Under the
Constitution, the President cannot be impeached unless he has
committed ``Treason, Bribery, or other high Crimes and
Misdemeanors.''
Some of the charges laid out in the Independent Counsel's
report fall so far short of this high standard that they
strain good sense: for example, the charge that the President
repeatedly declined to testify voluntarily or pressed a
debatable privilege claim that was later judicially rejected.
These ``offenses'' are not remotely impeachable. With
respect, however, to other allegations, the report requires
careful consideration of the kind of misconduct that renders
a President constitutionally unfit to remain in office.
Neither history nor legal definitions provide a precise
list of high crimes and misdemeanors. Reasonable people have
differed in interpreting these words. We believe that the
proper interpretation of the Impeachment Clause must begin by
recognizing treason and bribery as core or paradigmatic
instances, from which the meaning of ``other high Crimes and
Misdemeanors'' is to be extrapolated. The constitutional
standard for impeachment would be very different if, instead
of treason and bribery, different offenses had been
specified. The clause does not read, ``Arson, Larceny, or
other high Crimes and Misdemeanors,'' implying that any
significant crime might be an impeachable offense. Nor does
it read, ``misleading the People, Breach of Campaign
Promises, or other high Crimes and Misdemeanors,'' implying
that any serious violation of public confidence might be
impeachable. Nor does it read, ``Adultery, Fornication, or
other high Crimes and Misdemeanors,'' implying that any
conduct deemed to reveal serious moral lapses might be an
impeachable offense.
When a President commits treason, he exercises his
executive powers, or uses information obtained by virtue of
his executive powers, deliberately to aid an enemy. When a
President is bribed, he exercises or offers to exercise his
executive powers in exchange for corrupt gain. Both acts
involve the criminal exercise of presidential powers,
converting those awful powers into an instrument either of
enemy interests or of purely personal gain. We believe that
the critical, distinctive feature of treason and bribery is
grossly derelict exercise of official power (or, in the case
of bribery to obtain or retain office, gross criminality in
the pursuit of official power). Nonindictable conduct might
rise to this level. For example, a President might be
properly impeached if, as a result of drunkenness, he
recklessly and repeatedly misused executive authority.
The misconduct of which the President is accused does not
involve the derelict exercise of executive powers. Most of
this misconduct does not involve the exercise of executive
powers at all. If the President committed perjury regarding
his sexual conduct, this perjury involved no exercise of
presidential power as such. If he concealed evidence, this
misdeed too involved no exercise of executive authority. By
contrast, if he sought wrongfully to place someone in a job
at the Pentagon, or lied to subordinates hoping they would
repeat his false statements, these acts could have involved a
wrongful due of presidential influence, but we cannot believe
that the President's alleged conduct
[[Page H9650]]
of this nature amounts to the grossly derelict exercise of
executive power sufficient for impeachment.
Perjury and obstructing justice can without doubt be
impeachable offenses. A President who corruptly used the
Federal Bureau of Investigation to obstruct an investigation
would have criminally exercised his presidential powers.
Moreover, covering up a crime furthers or aids the underlying
crime. Thus a President who committed perjury to cover up his
subordinates' criminal exercise of executive authority would
also have committed an impeachable offense. But if the
underlying offense were adultery, calling the President to
testify could not create an offense justifying impeachment
where there was none before.
It goes without saying that lying under oath is a serious
offense. But even if the House of Representatives had the
constitutional authority to impeach for any instance of
perjury or obstruction of justice, a responsible House would
not exercise this awesome power on the facts alleged in
this case. The House's power to impeach, like a
prosecutor's power to indict, is discretionary. This power
must be exercised not for partisan advantage, but only
when circumstances genuinely justify the enormous price
the nation will pay in governance and stature if its
President is put through a long, public, voyeuristic
trial. The American people understand this price. They
demonstrate the political wisdom that has held the
Constitution in place for two centuries when, even after
the publication of Mr. Starr's report, with all its
extraordinary revelations, they oppose impeachment for the
offenses alleged therein.
We do not say that a ``private'' crime could never be so
heinous as to warrant impeachment. Thus Congress might
responsibly determine that a President who had committed
murder must be in prison, not in office. An individual who by
the law of the land cannot be permitted to remain at large,
need not be permitted to remain President. But if certain
crimes demand immediate removal of a President from office
because of their unspeakable heinousness, the offenses
alleged against the President in the Independent Counsel's
referral are not among them. Short of heinous criminality,
impeachment demands convincing evidence of grossly derelict
exercise of official authority. In our judgment, Mr. Starr's
report contains no such evidence.
Sincerely,
Jed Rubenfeld, Professor of Law, Yale University.
Bruce Ackerman, Sterling Professor of Law and Political
Science, Yale University.
Akhil Reed Amar, Southmayd Professor of Law, Yale
University.
Susan Bloch, Professor of Law, Georgetown University Law
Center.
Paul D. Carrington, Harry R. Chadwick Sr. Professor of Law,
Duke University School of Law.
John Hart Ely, Richard A. Hausler Professor of Law,
University of Miami School of Law.
Susan Estrich, Robert Kingsley Professor of Law and
Political Science, University of Southern California.
John E. Nowak, David C. Baum Professor of Law, University
of Illinois College of Law.
Judith Resnik, Arthur L. Liman Professor, Yale Law School.
Christopher Schroeder, Professor of Law, Duke University
School of Law.
Suzanne Sherry, Earl R. Larson Professor of Law, University
of Minnesota law School.
Geoffrey R. Stone, Harry Kalven, Jr. Dist. Serv. Professor
& Provost, University of Chicago Law School.
Laurence H. Tribe, Tyler Professor of Constitution Law,
Harvard University Law School.
Note: Institutional affiliations for purposes of
identification only.
____________________