[Congressional Record Volume 163, Number 155 (Wednesday, September 27, 2017)]
[House]
[Pages H7573-H7575]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       REQUISITES FOR IMPEACHMENT

  The SPEAKER pro tempore. Under the Speaker's announced policy of 
January 3, 2017, the Chair recognizes the gentleman from Texas (Mr. Al 
Green) for 30 minutes.
  Mr. AL GREEN of Texas. Mr. Speaker, I rise tonight to make one point. 
That one point is that a President need not be convicted of a criminal 
offense to be impeached; in fact, need not be charged with a criminal 
offense; need not be charged with a statutory offense; need not be 
charged with a codified offense to be impeached.
  But before I make this point, Mr. Speaker, I have to acknowledge that 
I am always in awe of this well, and I don't take for granted this 
great opportunity that has been accorded me to stand in the well of the 
Congress of the United States of America. I believe that those of us 
who have been so blessed should acknowledge our blessings. This is a 
blessing.
  Mr. Speaker, there are many people who don't have this opportunity, 
so I am going to take one liberty before going into my message. I just 
want people to know what I see as I stand here in the well of the 
Congress of the United States of America.
  As I look forward, Mr. Speaker, I would have those who have not had 
the opportunity to stand here to know that there is above the doors at 
the second level a depiction of Moses the Lawgiver.
  I would have people know, Mr. Speaker, that behind me, of course, is 
the flag of the United States of America.
  And I would have persons know, Mr. Speaker, that we have these two 
podiums, and that, typically, Democrats

[[Page H7574]]

will occupy this side and Republicans the other. We can go to either 
side. There is no requirement that I stand where I am standing. I can 
stand at many other places in this room.
  But, Mr. Speaker, I want people to know that this is a special place, 
and I am honored to have the opportunity to stand here tonight and to 
speak to the issue of a President not having the necessity of 
committing a crime to be impeached. There is no requirement that a 
crime be committed. There is no requirement that a statutory offense be 
violated.
  Let's take, for a moment, a look through the vista of time. Let us go 
back to the Constitutional Convention, and let us hear now the words of 
George Mason. George Mason reminded his colleagues that no one should 
be above justice. His words were: ``Shall any man be above justice?''
  These words were put before his colleagues because, at the time, they 
were considering what they could do to deal with the possibility of a 
runaway Presidency. What could they do? How could they stop it? What 
would be the methodology by which a President could be extricated from 
his position?
  And they had good reason to give consideration to this, Mr. Speaker. 
They had good reason because the President was probably the most 
powerful person in the country. The President would be the most 
powerful person in the country. The President is the Commander in Chief 
of the military. The President has the awesome power to pardon anyone, 
saving himself.
  So the question becomes: How do you remove a President from office?
  This is what they had to grapple with. And, of course, they 
considered a judicial process. They considered persons who might be a 
part of a jury. They considered these things.
  The Federalist Papers, if you would care to read, will give you a 
rendition of what their thoughts were. Start with Federalist Paper No. 
65.
  But they considered these things, and they concluded that the process 
should not be judicial. They concluded that if a President is to be 
removed from office, it should be by persons who are in the political 
arena. They concluded that this should be something that would be, in 
fact, political, not judicial. They concluded that a President need not 
commit a crime to be removed from office.
  I am emphasizing this, my dear friends, because there is a lot of 
confusion about this question. And if you would care to read something 
that could summarize what I am saying, you might look at an article 
that was written by a person with the Cato Institute, Gene Healy, 
August 7, 2017, styled ``The Overcriminalization of Impeachment.'' I 
would commend it to you. Please read it if you want to read a good 
summary of what impeachment is all about.
  So they had to grapple with this question, and they concluded that it 
would be a political one, not a judicial question. And in so doing, in 
concluding that it would be a political one, they incorporated into the 
Constitution Article II, section 4--Article II, section 4 of the 
Constitution--that addresses the question of impeachment.
  And in so doing, at some point after the codification and 
ratification of the Constitution, there was a person to be impeached. 
The first person was a Federal judge, Judge John Pickering. Judge 
Pickering was not accused of committing a crime. There was not an 
allegation that he committed a crime.
  If you read the Articles of Impeachment, you will find that Judge 
Pickering, once he was convicted, was convicted, generally speaking, 
for having loose morals and intemperate habits, not a crime. But the 
questions did deal with morality.
  Shall any man be above justice?
  Not above the law. The law codified. Justice carries with it a 
certain amount of morality.
  Shall any man--and today I would say ``any person''--be above 
justice? Shall any person be above justice?
  The Framers of the Constitution concluded that Article II, section 4 
would address it, and they, themselves--a good many of them--were there 
when the first person was impeached in 1804, Judge John Pickering.
  So for those of you who are believers in the original intent, the 
best way to ascertain the original intent of the Framers would be to 
look at what the Framers did when they had the opportunity.
  What did Madison do?
  Madison, the father of the Constitution, it is said, and other 
Framers who were actually there when Article II, section 4 was put in 
place, found that Judge Pickering, who committed no crime or no 
allegation of a crime being committed, with reference to his 
impeachment, should be impeached because of moral reasons and an 
intemperate habit or habits.
  Mr. Speaker, I mention these things because it is important for us to 
understand that we have made a mistake. We have made a mistake in that 
we have outsourced--this is from Gene Healy, by the way--the 
responsibility of investigating the acts of a President to the 
executive branch itself.
  Think for just a moment, dear friends. The Justice Department is an 
arm of the executive branch. We in Congress have outsourced the 
investigation to the executive branch by and through the Justice 
Department.
  Mr. Speaker, that can give the appearance of impropriety. We live in 
a world where it is not enough for things to be right; they must also 
look right. It could look to some like that outsourcing has created a 
circumstance by which the chief executive, the President, could 
influence the Attorney General. That is the way it could look.
  But, Mr. Speaker, that is not what the intent is that we have in the 
Constitution, Article II, section 4. That is not the intent. The intent 
was for the Judiciary Committee in the Congress of the United States of 
America to investigate. That is where the power to investigate lies, 
because it is for impeachment.
  By outsourcing it to the executive branch, such that the Justice 
Department might perform dysfunction, we give the appearance that 
impeachment requires the commission of a crime, because that is what 
the Justice Department is looking for, criminality, not morality. The 
Justice Department wants to know what crime was committed, under what 
circumstances.
  And too many people believe that if the Justice Department does not 
find that a crime was committed, then there is no impeachable offense. 
Nothing could be further from the truth, Mr. Speaker.
  Regardless as to what a Justice Department concludes, regardless as 
to whether a good lawyer would bring charges by way of something from 
what the Justice Department concludes, the Congress of the United 
States of America still has the power, the prowess, the potency, if you 
will, to impeach, notwithstanding any finding of a Justice Department, 
notwithstanding any conclusions of the Justice Department, because it 
is not the responsibility of the Justice Department to investigate and 
then pass it on to the Congress with some recommendation. That is not 
their responsibility. That is the Judiciary Committee and the Congress 
of the United States of America.
  So, Mr. Speaker, we have given this false impression that somehow 
there must be an offense committed. But, Mr. Speaker, I assure you that 
it is not the case, and the evidence is there for those who care to 
read the article that I have called to your attention. It is a short 
read.
  Or if you care to read the Federalist Papers, Federalist Paper No. 
65, you can read some of the conclusions that Madison and others have 
presented.

                              {time}  2000

  This is something that is important to this country. So I am standing 
here in the well of the House tonight to make one point, a place that I 
am in great awe of, a place that I consider sacred. I am standing here 
in the well of the House tonight to make the point that a President 
need not commit a crime, a statutory offense, to be impeached. 
Impeachment belongs in one place, and one place only, and that is right 
here where I stand now, in the House of Representatives.
  If the House of Representatives, upon receiving articles of 
impeachment, should vote to impeach, that means that a President would 
be indicted. It does not mean that the President--the 218 votes, 
assuming all persons in the House are present. It doesn't mean that the 
President is going to be removed from office.
  Impeachment does not mean removal from office. Impeachment means that

[[Page H7575]]

the President must now face a trial in the Senate, to be presided over 
by the Chief Justice of the Supreme Court of the United States of 
America. That is what impeachment does. It moves it along.
  And, by the way, there is no requirement that you assure anyone that 
you can get the votes necessary to impeach to bring an impeachment 
before the House. A privileged resolution to impeach does not 
necessitate your being able to prove before you present it that you are 
going to prevail with it. That is not the case.
  If you can think of it in terms of the real world, while this is 
real--we say that term loosely, I assure you. If you think in terms of 
the world beyond these walls where a person might be indicted, in this 
country, every day, people are indicted who are not convicted. So 
impeachment is not tantamount to conviction. Impeachment merely means 
that there is reason now for the Senate to take up this cause.
  The Senate, upon taking up the cause, can find the President not 
guilty or guilty. If the President is found guilty, the President is 
removed from office. There is no other punishment. The President is 
removed from office. After the President is removed from office, if the 
Justice Department or some other agency, some other arm of the 
government concludes that the President has committed a criminal 
offense, then a President would be prosecuted.
  Now, there is some debate amongst some constitutional scholars as to 
whether or not a President can be prosecuted while the President still 
holds office. I think most of them would agree that it would happen 
after the President leaves office, but that is a debate that I don't 
care to enter.
  My point is the President would be removed from office. Now, that is 
important to consider because removal from office is not punishment. 
Criminal acts have punishment upon conviction. The President is not 
punished. The President is removed from office. That is not considered 
punishment. The President does not face punishment upon being convicted 
of impeachment. The President is removed from office.
  Now, that, in and of itself, is not something that I believe we 
should take lightly. I think it is serious, but it is not tantamount to 
punishment.
  For those of you who may just be joining us for this statement that I 
am making tonight, I have taken this position tonight in the well of 
the Congress of the United States of America for one reason: to make 
the point that a President need not be charged with a criminal offense 
to face impeachment in the Congress of the United States of America. 
The Constitution doesn't require it. The Framers did not make that an 
issue when they impeached the first person, Judge Pickering, and it is 
not an issue to the extent that most of the people who have been 
impeached have not been charged with a criminal offense--not, N-O-T, 
charged with a criminal offense.
  I close with this. The Framers, very much concerned about a runaway 
President, runaway Presidency, very much concerned about the awesome 
amount of power that they were according one person: the power to be 
commander of all of the Armed Forces; the power to send persons into 
battle; the power to send people, literally, in harm's way such that 
many might not return; the power to impeach, nearly with impunity--not 
with absolute impunity, but nearly with impunity. There are some 
opportunities for the President to provide a person not with 
impeachment, but with exoneration for a crime, and that President could 
be impeached for the way that exoneration took place, depending on the 
relationship that the person had with the President.
  But the point is impeachment is there because it is an awesome power 
that we have given the President; and because we have given the 
President this awesome power, it is important that we have a check on 
the President that does not require the commission of a crime.
  Mr. Speaker, I thank you for the generosity of this Special Order. I 
thank the leadership as much, and I yield back the balance of my time.

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