[Congressional Record Volume 144, Number 149 (Monday, October 19, 1998)]
[Extensions of Remarks]
[Page E2233]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

[[Page E2233]]



        CLINTON AFFAIR WITH LEWINSKY NOT SUBJECT TO IMPEACHMENT

                                 ______
                                 

                           HON. CHAKA FATTAH

                            of pennsylvania

                    in the house of representatives

                        Monday, October 19, 1998

  Mr. FATTAH. Mr. Speaker, I submit the following speech for the 
Record.

        CLINTON AFFAIR WITH LEWINSKY NOT SUBJECT TO IMPEACHMENT

                         (By Burton Caine) \1\
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     \1\ Professor of Law, Temple Law School, and Past President 
     American Civil Liberties Union, Greater Philadelphia Chapter.
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       Debate on the meaning of impeachable offenses must start 
     with the wording of Article II, Section 4 of the 
     Constitution, which provides:
       ``The President, Vice President and all Civil Officers of 
     the United States, shall be removed from Office on 
     Impeachment for, and Conviction of, Treason, Bribery, or 
     other high Crimes and Misdemeanors.''
       The word ``other'' before ``high Crimes and 
     Misdemeanors''--often overlooked--is important, for it serves 
     to define impeachable offenses: first, by listing treason and 
     bribery as primary illustrations. Secondly, by demonstrating 
     that only serious derelictions of comparable gravity in the 
     performance of the duties of office are grounds for 
     impeachment. Treason, obviously, is the ultimate betrayal of 
     official duty. And bribery has been condemned as least as far 
     back as the Biblical injunction against judicial bribe-taking 
     in Deuteronomy, Chapter 16:19.
       Article I, Section 3, of the Constitution provides that 
     upon conviction, removal from office is the sole remedy, and 
     there is no immunity from subsequent criminal punishment. 
     Reading the two impeachment clauses together, it is clear 
     that their only purpose is to protect the nation, not to 
     punish the offender.
       For this reason, articles of impeachment against President 
     Nixon all related to grave and corrupt misuse of the powers 
     of government, including conspiracies to deprive individuals 
     of their civil rights guaranteed under the Constitution. In 
     contrast, the House Judiciary Committee refused to impeach 
     Nixon for fraudulent evasion of $576,000 in income taxes, 
     unlawfully using government funds to renovate private 
     residences, and even lying to Congress about bombing 
     Cambodia.
       The assertion of then Representative Gerald Ford, and now 
     Senator Trent Lott, that an impeachable offense is whatever 
     the House of Representatives says it is, is contradicted by 
     the debates at the Constitutional Convention which made clear 
     that Congressional disapproval of the President could not 
     serve as the basis for impeachment. Ford and Lott seem to be 
     confusing the standard for impeachment with the lesser 
     standard of ``disorderly Behaviour'' for which a member of 
     Congress may be expelled, as provided in Article I, Sec. 5. 
     There is no trial and a two-thirds vote is required. The 
     House attempted to exclude Adam Clayton Powell on grounds of 
     misconduct but the Supreme Court reversed on grounds that he 
     met the qualifications of age and residency, the 
     Constitutional criteria. One wonders whether the result would 
     be the same had the House admitted Powell, then expelled him 
     for ``disorderly Behaviour.''
       Kenneth Starr's view of impeachment also contradicts the 
     language of the Constitution. In arguing before the Supreme 
     Court in the impeachment of federal Judge Walter Nixon, Starr 
     told the justices that one could even be impeached for 
     poisoning the neighbor's cat, advice the Supreme Court 
     ignored.
       From Starr's chamber also came the preposterous claim that 
     the President could be impeached for asserting executive 
     privilege later rejected by lower courts. On that basis, 
     Starr himself could be impeached for asserting in court that 
     the lawyer-client privilege of Vincent Foster expired upon 
     the death of the client. That claim was rejected by the 
     Supreme Court. More serious grounds of impeachment against 
     Starr arise from his official conduct as so-called 
     Independent Counsel, a badly disguised campaign to remove 
     President Clinton and reverse the process of election by the 
     people in two national elections. Most egregiously, perhaps, 
     is his wiring Linda Tripp to record Monica Lewinsky in 
     violation of the law of Maryland. This was precisely what 
     Justice Louis Brandeis condemned in his historic rebuke of 
     the overzealous prosecutor:
       ``Our government is the potent, the omnipresent teacher. 
     For good or for ill, it teaches the whole people by its 
     example. . . . If the government becomes a lawbreaker, it 
     breeds contempt for law, it invites every man to become a law 
     unto himself; it invites anarchy.''
       At best, the notion that anything can be an impeachable 
     offense and that Congress can act as outrageously as politics 
     permits, is idle talk based upon the prediction that the 
     Supreme Court could never review a Congressional impeachment 
     or conviction. Since the issue has never come up, one is free 
     to wonder. The only President who was impeached was Andrew 
     Johnson. Since he was not convicted, there could be no 
     judicial ruling on whether it was an impeachable offense to 
     disobey a law of Congress the President believed was 
     unconstitutional. Judges have been convicted upon 
     impeachment, but never for personal misconduct unrelated to 
     the conduct of their offices.
       The last impeachment case to come before the Supreme Court 
     involved Judge Walter Nixon who complained that the Senate 
     did not ``try'' him, as required by the Constitution, because 
     it delegated the gathering of evidence to a committee of 
     senators, upon which the Senate convicted him. He lost on the 
     ground that that was all the trial the Constitution required. 
     Some cite the case for the proposition that the Senate is 
     free to conduct any type of trial it wants. That is doubtful 
     because the Court considered the trial fair. Justice Souter 
     made it clear that the Senate had no right to decide ``upon a 
     coin-toss'' or a summary determination that defendant ``was 
     simply `a bad guy' ''
       Those who would rely upon the Walter Nixon Case for the 
     proposition that Congress can impeach for any reason at all 
     are really contending that Congress may totally and blatantly 
     ignore their sworn oath to obey the Constitution.
       Never in the history of the republic, has Congress ever 
     dared to take that route. In the case of President Richard 
     Nixon, all articles of impeachment related to substantial and 
     corrupt misuse of the powers of government, including 
     conspiracies to deprive individuals of their rights 
     guaranteed under the Constitution. The House Judiciary 
     Committee refused to impeach Nixon for evading $576,000 in 
     federal income taxes, unlawfully using government funds to 
     renovate private residences and even lying to Congress about 
     the bombing of Cambodia.
       There was no move to impeach President Reagan for violating 
     an act of Congress and then lying about it both to Congress 
     and the public in the Iran-Contra affair. And no President--
     Thomas Jefferson, Franklin Roosevelt, Warren Harding, and 
     John Kennedy, included--has been impeached for adultery in 
     office. Nor was Alexander Hamilton, President George 
     Washington's Secretary of the Treasury, impeached by the 
     Founding Fathers themselves for carrying on an adulterous 
     affair with the wife of a convicted securities swindler and 
     making secret payments to cover it up. The matter was deemed 
     private.
       There is a mischievous irony in the zealous pursuit by 
     Congressional leaders to impeach the President. Even under 
     the relaxed standard of ``disorderly Behaviour'' for 
     expelling members of Congress--far less demanding than ``high 
     Crimes and Misdemeanors''--admitted adulterers, including 
     Rep. Henry J. Hyde, Chair of the Judiciary Committee, and 
     fellow Republicans critical of the President's marital 
     infidelity, have not been expelled, or rebuked, or punished 
     in any way
       And in the case of Newt Gingrich, Speaker of the House and 
     third in line for the presidency, lying to Congress and the 
     American people on matters of official duties, and ethical 
     transgressions, did not prompt the House to expel, or even 
     demote him from leadership. A fine with extended payment 
     terms was considered enough. Nor does history record the 
     expulsion of a single member of Congress for extra-marital 
     sex, even with the prevarioation that goes with concealment.
       Kenneth Starr himself, as a ``Civil Officer of the United 
     States,'' is also subject to impeachment for numerous acts--
     in addition to illegal wiretapping. Under the Ford-Trent Lott 
     standard of impeaching for whatever displeases Congress, why 
     has not Starr been impeached, for example, for the many leaks 
     of grand jury testimony for which he was admonished by the 
     district court? Or issuing a subpoena to a book seller to 
     ascertain what books Monica Lewinsky purchased. This 
     evidences a contempt for First Amendment liberties of the 
     people reminiscent of Richard Nixon, and for which that 
     President faced impeachment.
       The devastation that Starr has inflicted upon our 
     Constitutional democracy is in marked contrast to Clinton's 
     private sexual trysts with all the lying that marked the 
     cover-up. None of our rights under the Charter of Liberty 
     were eviscerated.
       The Constitution, history, and common sense teach the same 
     lesson. Impeachable offenses are limited to the serious 
     corrupt misuse of the powers of government, that is, grave 
     derelictions of official duty. That excludes private 
     adulterous affairs even if the President lies about them and 
     urges others to do likewise. Punishment for sin--and even 
     crime--belongs elsewhere, and are not subject to impeachment 
     under the Constitution of the United States.



     

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