[Congressional Record Volume 144, Number 139 (Wednesday, October 7, 1998)]
[Senate]
[Pages S11649-S11651]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          IMPEACHMENT INQUIRY

  Mr. LEAHY. Mr. President, as we wind down this session, certainly 
this body and the other body have much on their mind regarding the 
actions of the House Judiciary Committee and the whole area of an 
impeachment inquiry. Every Member will have to speak for himself or 
herself in both bodies in deciding what they believe is or is not an 
impeachable offense.
  Many times we speak about what is an impeachable offense without 
discussing what it is not. I ask unanimous consent to have printed in 
the Record an excellent article written in Sunday's Washington Post by 
Professor Sunstein, entitled ``Impeachment?'' I feel it will be 
helpful, as his writings usually are, on this issue.
  There being no objection, the article was ordered to be printed in 
the Record, as follows:

                [From the Washington Post, Oct. 4, 1998]

                        Impeachment? The Framers

                           (By Cass Sunstein)

       We all now know that, under the Constitution, the president 
     can be impeached for ``Treason, Bribery, or other high Crimes 
     and Misdemeanors.'' But what did the framers intend us to 
     understand with these words? Evidence of the phrase's 
     evolution is extensive--and it strongly suggests that, if we 
     could solicit the views of the Constitution's authors, the 
     current allegations against President Clinton would not be 
     impeachable offenses.
       When the framers met in Philadelphia during the stifling 
     summer of 1787, they were seeking not only to design a new 
     form of government, but to outline the responsibilities of 
     the president who would head the new nation. They shared a 
     commitment to disciplining public officials through a system 
     of checks and balances. But they disagreed about the precise 
     extent of presidential power and, in particular, about how, 
     if at all, the president might be removed from office. If we 
     judge by James Madison's characteristically detailed accounts 
     of the debates, this question troubled and divided the 
     members of the Constitutional Convention.
       The initial draft of the Constitution took the form of 
     resolutions presented before the 30-odd members on June 13. 
     One read that the president could be impeached for 
     ``malpractice, or neglect of duty,'' and, on July 20, this 
     provision provoked extensive debate. The notes of Madison, 
     who was representing Virginia, show that three distinct 
     positions dominated the day's discussion. One extreme view, 
     represented by Roger Sherman of Connecticut, was that ``the 
     National Legislature should have the power to remove the 
     Executive at pleasure.'' Charles Pinckney of South Carolina, 
     Rufus King of Massachusetts and Gouvernor Morris of 
     Pennsylvania opposed, with Pinckney arguing that the 
     president ``ought not to be impeachable whilst in office.'' 
     The third position, which ultimately carried the day, was 
     that the president should be impeachable, but only for a 
     narrow category of abuses of the public trust.
       It was George Mason of Virginia who took a lead role in 
     promoting this more moderate course. He argued that it would 
     be necessary to counter the risk that the president might 
     obtain his office by corrupting his electors. ``Shall that 
     man be above'' justice, he asked, ``who can commit the most 
     extensive injustice?'' The possibility of the new president 
     becoming a near-monarch led the key votes--above all, 
     Morris--to agree that impeachment might be permitted for (in 
     Morris's words) ``corruption & some few other offences.'' 
     Madison concurred, and Edmund Randolph of Virginia captured 
     the emerging consensus, favoring impeachment on the grounds 
     that the executive ``will have great opportunitys of abusing 
     his power; particularly in time of war when the military 
     force, and in some respects the public money, will be in his 
     hands.'' The clear trend of the discussion was toward 
     allowing a narrow impeachment power by which the president 
     could be removed only for gross abuses of public authority.
       To Pinckney's continued protest that the separation of 
     powers should be paramount, Morris argued that ``no one would 
     say that we ought to expose ourselves to the danger of seeing 
     the first-Magistrate in foreign pay without being able to 
     guard against it by displacing him.'' At the same time, 
     Morris insisted, ``we should take care to provide some mode 
     that will not make him dependent on the Legislature.'' Thus, 
     led by Morris, the framers moved toward a position that would 
     maintain the separation between president and Congress, but 
     permit the president to be removed in extreme situations.
       A fresh draft of the Constitution's impeachment clause, 
     which emerged two weeks later on Aug. 6, permitted the 
     president to be impeached, but only for treason, bribery and 
     corruption (exemplified by the president's securing his 
     office by unlawful means). With little additional debate, 
     this provision was narrowed on Sept. 4 to ``treason and 
     bribery.'' But a short time later, the delegates took up the 
     impeachment clause anew. Mason complained that the provision 
     was too narrow, that ``maladministration'' should be added, 
     so as to include ``attempts to subvert the Constitution'' 
     that would not count as treason or bribery.
       But Madison, the convention's most careful lawyer, insisted 
     that the term ``maladministration'' was ``so vague'' that it 
     would ``be equivalent to a tenure during pleasure of the 
     Senate,'' which is exactly what the framers were attempting 
     to avoid. Hence, Mason withdrew ``maladministration'' and 
     added the new terms ``other high Crimes and Misdemeanors 
     against the State''--later unanimously changed to, according 
     to Madison, ``against the United States'' to ``remove 
     ambiguity.'' The phrase itself was taken from English law, 
     where it referred to a category of distinctly political 
     offenses against the state.
       There is a further wrinkle in the clause's history. On 
     Sept. 10, the entire Constitution was referred to the 
     Committee on Style and Arrangement. When that committee's 
     version appeared two days later, the words ``against the 
     United States'' had been dropped, probably on the theory that 
     they were redundant, although we have no direct evidence. It 
     would be astonishing if this change were intended to have a 
     substantive effect, for the committee had no authority to

[[Page S11650]]

     change the meaning of any provision, let alone the 
     impeachment clause on which the framers had converged. The 
     Constitution as a whole, including the impeachment provision, 
     was signed by the delegates and offered to the nation on 
     Sept. 17.
       These debates support a narrow understanding of ``high 
     Crimes and Misdemeanors,'' founded on the central notions of 
     bribery and treason. The early history tends in the same 
     direction. The Virginia and Delaware constitutions, providing 
     a background for the founders' work, generally allowed 
     impeachment for acts ``by which the safety of the State may 
     be endangered.'' And considered the words of the highly 
     respected (and later Supreme Court Justice) James Iredell, 
     speaking in the North Carolina ratifying convention: ``I 
     suppose the only instances, in which the President would be 
     liable to impeachment, would be where he had received a 
     bribe, or had acted from some corrupt motive or other.'' By 
     way of explanation, Iredell referred to a situation in which 
     ``the President had received a bribe . . . from a foreign 
     power, and under the influence of that bribe, had address 
     enough with the Senate, by artifices and misrepresentations, 
     to seduce their consent of pernicious treaty.''
       James Wilson, a convention delegate from Pennsylvania, 
     wrote similarly in his 1791 ``Lectures on Law'': ``In the 
     United States and in Pennsylvania, impeachments are confined 
     to political characters, to political crimes and 
     misdemeanors, and to political punishments.'' Another early 
     commentator went so far as to say that ``the legitimate 
     causes of impeachment . . . can have referenced only to 
     public character, and official duty . . . In general, those 
     offenses, which may be committed equally by a private person, 
     as a public officer, are not the subjects of impeachment.''
       This history casts new light on the famous 1970 statement 
     by Gerald Ford, then a representative from Michigan, that a 
     high crime and misdemeanor ``is whatever a majority of the 
     House of Representatives considers it to be.'' In a practical 
     sense, of course, Ford was right; no court would review a 
     decision to impeach. But in a constitutional sense, he was 
     quite wrong, the framers were careful to circumscribe the 
     power of the House of Representatives by sharply limiting the 
     category of legitimately impeachable offenses.
       The Constitution is not always read to mean what the 
     founders intended it to mean, and Madison's notes hardly 
     answer every question. But under any reasonable theory of 
     constitutional interpretation, the current allegations 
     against Clinton fall far short of the permissible grounds for 
     removing a president from office. Of course, perjury and 
     obstruction of justice could be impeachable offenses if they 
     involved, for example, lies about unlawful manipulation of 
     elections. It might even be possible to count as impeachable 
     ``corruption'' the extraction of sexual favors in return for 
     public benefits of some kind. But nothing of this kind has 
     been alleged thus far. A decision to impeach President 
     Clinton would not and should not be subject to judicial 
     review. But for those who care about the Constitution's 
     words, and the judgment of its authors, there is a good 
     argument that it would nonetheless be unconstitutional.

  Mr. LEAHY. Mr. President, I urge all Members to keep in mind the 
necessity to have a strong sense of history in whatever position they 
take on this matter. It is not something that is done for a 30-second 
spot on an ad, nor is it something that is done to determine the fate 
of any one of us in an election whether this year or subsequent years. 
Whatever we do affects the history and the course of the greatest 
democracy history has ever known.
  In that regard, I believe Members will be wise to take the time to 
read an op-ed piece written by former President Gerald Ford from the 
New York Times on Sunday, October 4. After reading it, I was impressed 
enough to pick up the phone and call President Ford and speak to him at 
some length.
  I had the privilege, when I was first a Member of the Senate, of 
serving with President Ford. I got to know him then. On many occasions 
in the 20 or so years since, I have been able to be with him or talk 
with him or seek his advice. I think what he says here is, again, very 
worthwhile. It may not be something that each Member would agree with. 
I find a great deal of merit in it. Again, President Ford speaks not 
only of the history involved, but of the country and of his own long 
experiences as a Member of the House. I commend every one of us to read 
President Ford's op-ed piece.
  I ask unanimous consent that article be printed in the Record.
  There being no objection, the article was ordered to be printed in 
the Record, as follows:

                [From the New York Times, Oct. 4, 1998]

                        The Path Back to Dignity

                          (By Gerald R. Ford)

       Grand Rapids, Mich.--Almost exactly 25 years have passed 
     since Richard Nixon nominated me to replace the disgraced 
     Spiro Agnew as Vice President. In the contentious days of 
     autumn 1973, my confirmation was by no means assured. Indeed, 
     a small group of House Democrats, led by Bella Abzug, risked 
     a constitutional crisis in order to pursue their own agenda. 
     ``We can get control and keep control,'' Ms. Abzug told the 
     Speaker of the House, Carl Albert. The group hoped, 
     eventually, to replace Nixon himself with Mr. Albert.
       The Speaker, true to form, refused to have anything to do 
     with the scheme. And so on Dec. 6, 1973, the House voted 387 
     to 35 to confirm my nomination in accordance with the 25th 
     Amendment to the Constitution.
       When I succeeded to the Presidency, in August 1974, my 
     immediate and overriding priority was to draw off the poison 
     that had seeped into the nation's bloodstream during two 
     years of scandal and sometimes ugly partisanship. Some 
     Americans have yet to forgive me for pardoning my 
     predecessor. In the days leading up to the hugely 
     controversial action, I didn't take a poll for guidance, but 
     I did say more than a few prayers. In the end I listened to 
     only one voice, that of my conscience. I didn't issue the 
     pardon for Nixon's sake, but for the country's.
       A generation later, Americans once again confront the 
     specter of impeachment. From the day, last January, when the 
     Monica Lewinsky story first came to light, I have refrained 
     publicly from making any substantive comments. I have done so 
     because I haven't known enough of the facts--and because I 
     know all too well that a President's responsibilities are, at 
     the best of times, onerous. In common with the other former 
     Presidents, I have had no wish to increase those burdens. 
     Moreover, I resolved to say nothing unless my words added 
     constructively to the national discussion.
       This much now seems clear: whether or not President Clinton 
     has broken any laws, he has broken faith with those who 
     elected him. A leader of rare gifts, one who set out to 
     change history by convincing the electorate that he and his 
     party wore the mantle of individual responsibility and 
     personal accountability, the President has since been forced 
     to take refuge in legalistic evasions, while his defenders 
     resort to the insulting mantra that ``everybody does it.''
       The best evidence that everybody doesn't do it is the 
     genuine outrage occasioned by the President's conduct and by 
     the efforts of some White House surrogates to minimize its 
     significance or savage his critics.
       The question confronting us, then, is not whether the 
     President has done wrong, but rather, what is an appropriate 
     form of punishment for his wrongdoing. A simple apology is 
     inadequate, and a fine would trivialize his misconduct by 
     treating it as a more question of monetary restitution.
       At the same time, the President is not the only one who 
     stands before the bar of judgment. It has been said that 
     Washington is a town of marble and mud. Often in these past 
     few months it has seemed that we were all in danger of 
     sinking into the mire.
       Twenty-five years after leaving it, I still consider myself 
     a man of the House. I never forget that my elevation to the 
     Presidency came about through Congressional as well as 
     constitutional mandate. My years in the White House were 
     devoted to restoring public confidence in institutions of 
     popular governance. Now as then, I care more about preserving 
     respect for those institutions than I do about the fate of 
     any individual temporarily entrusted with office.
       This is why I think the time has come to pause and consider 
     the long-term consequences of removing this President from 
     office based on the evidence at hand. The President's 
     harisplitting legialisms, objectionable as they may be, are 
     but the foretaste of a protracted and increasingly divisive 
     debate over those deliberately imprecise words ``high crimes 
     and misdemeanors.'' The Framers, after all, dealt in eternal 
     truths, not glossy, deceit.
       Moving with dispatch, the House Judiciary Committee should 
     be able to conclude a preliminary inquiry into possible 
     grounds for impeachment before the end of the year. Once that 
     process is completed, and barring unexpected new revelations, 
     the full House might then consider the following resolution 
     to the crisis.
       Each year it is customary for a President to journey down 
     Pennsylvania Avenue and appear before a joint session of 
     Congress to deliver his State of the Union address. One of 
     the binding rituals of our democracy, it takes on added 
     grandeur from its surroundings--there, in that chamber where 
     so much of the American story has been written, and where the 
     ghosts of Woodrow Wilson, Franklin Roosevelt and Dwight 
     Eisenhower call succeeding generations to account.
       Imagine a very different kind of Presidential appearance in 
     the closing days of this year, not at the rostrum familiar to 
     viewers from moments of triumph, but in the well of the 
     House. Imagine a President receiving not an ovation from the 
     people's representatives, but a harshly worded rebuke as 
     rendered by members of both parties. I emphasize: this would 
     be a rebuke, not a rebutal by the President.
       On the contrary, by his appearance the President would 
     accept full responsibility for his actions, as well as for 
     his subsequent efforts to delay or impede the investigation 
     of them. No spinning, no semantics, no evasiveness or blaming 
     others for his plight.
       Let all this be done without partisan exploitation or mean-
     spiritedness. Let it be dignified, honest and, above all, 
     cleansing. The result, I believe, would be the first moment 
     of majesty in an otherwise squalid year.

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       Anyone who confuses this scenario with a slap on the wrist, 
     or a censure written in disappearing ink, underestimates the 
     historic impact of such a pronouncement. Nor should anyone 
     forget the power of television to foster indelible images in 
     the national memory--not unlike what happened on the solemn 
     August noontime in 1974 when I stood in the East-Room and 
     declared our long national nightmare to be over.
       At 85, I have no personal or political agenda, nor do I 
     have any interest in ``rescuing'' Bill Clinton. But I do 
     care, passionately, about rescuing the country I love from 
     further turmoil or uncertainty.
       More than a way out of the current mess, most. Americans 
     want a way up to something better. In the midst of a far 
     graver national crisis, Lincoln observed, ``The occasion is 
     piled high with difficulty, and we must rise with the 
     occasion.'' We should remember those words in the days ahead. 
     Better yet, we should be guided by them.

  Ms. LANDRIEU. Mr. President, I ask unanimous consent to speak in 
morning business for the next 20 minutes for the purpose of introducing 
a piece of legislation.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Ms. Landrieu and Mr. Breaux pertaining to the 
introduction of S. 2566 are located in today's Record under 
``Statements on Introduced Bills and Joint Resolutions.'')

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