[Impeachment of President William Jefferson Clinton - The Evidentiary Record Pursuant to S. Res. 16 - Index to Senate Document 106-3, Vols. I-XXIV]
[Volume XVIII - "Constitutional Grounds for Presidential Impeachment: Modern Precedents, Minority Views" Committee Print, Ser. No. 17, December 1998]
[From the U.S. Government Publishing Office, www.gpo.gov]
106th Congress Document
SENATE
1st Session 106-3
_______________________________________________________________________
IMPEACHMENT OF PRESIDENT
WILLIAM JEFFERSON CLINTON
__________
THE EVIDENTIARY RECORD
PURSUANT TO S. RES. 16
VOLUME XVIII
``Constitutional Grounds for Presidential Impeachment: Modern
Precedents, Minority Views'' Committee Print, Ser. No. 17, December
1998
[GRAPHIC] [TIFF OMITTED] CONGRESS.#13
Printed at the direction of Gary Sisco, Secretary of the Senate,
pursuant to S. Res. 16, 106th Cong., 1st Sess. (1999)
January 8, 1999.--Ordered to be printed
-------------------
U.S. GOVERNMENT PRINTING OFFICE
53-457 WASHINGTON : 1999
105th Congress Ser. No. 17
2d Session COMMITTEE PRINT
_______________________________________________________________________
CONSTITUTIONAL GROUNDS FOR PRESIDENTIAL IMPEACHMENT:
MODERN PRECEDENTS
MINORITY VIEWS
__________
REPORT BY THE MINORITY STAFF OF THE IMPEACHMENT INQUIRY
__________
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
Henry J. Hyde, Chairman
John Conyers, Jr., Ranking Minority Member
DECEMBER 1998
-----------------------
U.S. GOVERNMENT PRINTING OFFICE
53-457 WASHINGTON : 1998
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin BARNEY FRANK, Massachusetts
BILL McCOLLUM, Florida CHARLES E. SCHUMER, New York
GEORGE W. GEKAS, Pennsylvania HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina RICK BOUCHER, Virginia
LAMAR SMITH, Texas JERROLD NADLER, New York
ELTON GALLEGLY, California ROBERT C. SCOTT, Virginia
CHARLES T. CANADY, Florida MELVIN L. WATT, North Carolina
BOB INGLIS, South Carolina ZOE LOFGREN, California
BOB GOODLATTE, Virginia SHEILA JACKSON LEE, Texas
STEPHEN E. BUYER, Indiana MAXINE WATERS, California
ED BRYANT, Tennessee MARTIN T. MEEHAN, Massachusetts
STEVE CHABOT, Ohio WILLIAM D. DELAHUNT, Massachusetts
BOB BARR, Georgia ROBERT WEXLER, Florida
WILLIAM L. JENKINS, Tennessee STEVEN R. ROTHMAN, New Jersey
ASA HUTCHINSON, Arkansas THOMAS BARRETT, Wisconsin
EDWARD A. PEASE, Indiana
CHRISTOPHER B. CANNON, Utah
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
MARY BONO, California
Majority Staff
Thomas E. Mooney, Sr., General Counsel-Chief of Staff
Jon W. Dudas, Deputy General Counsel-Staff Director
Diana L. Schacht, Deputy Staff Director-Chief Counsel
Daniel M. Freeman, Parliamentarian-Counsel
Paul J. McNulty, Director of Communications-Chief Counsel
Joseph H. Gibson, Chief Counsel
Rick Filkins, Counsel
Sharee M. Freeman, Counsel
Peter J. Levinson, Counsel
John F. Mautz, IV, Counsel
William E. Moschella, Counsel
Stephen Pinkos, Counsel
George M. Fishman, Chief Counsel David P. Schippers, Chief
Mitch Glazier, Chief Counsel Investigative Counsel
John H. Ladd, Chief Counsel
Raymond V. Smietanka, Chief Counsel Susan Bogart, Investigative
Laura Ann Baxter, Counsel Counsel
Daniel J. Bryant, Counsel John C. Kocoras, Counsel
Cathleen A. Cleaver, Counsel Berle S. Littmann, Investigator
Vince Garlock, Counsel Stephen P. Lynch, Professional
James W. Harper, Counsel Staff Member
Susan Jensen-Conklin, Counsel Charles F. Marino, Counsel
Debra K. Laman, Counsel Jeffery J. Pavletic, Investigative
Blaine S. Merritt, Counsel Counsel
Nicole R. Nason, Counsel Thomas M. Schippers, Investigative
Glenn R. Schmitt, Counsel Counsel
Jim Y. Wilon, Counsel Albert F. Tracy, Investigator
Peter J. Wacks, Investigator
Diana L. Woznicki, Investigator
Minority Staff
Julian Epstein, Minority Chief Counsel-Staff Director
Perry H. Apelbaum, Minority General Abbe D. Lowell, Minority Chief
Counsel Investigative Counsel
David G. Lachman, Counsel Sampak P. Garg, Investigative
Henry T.A. Moniz, Counsel Counsel
Cynthia A. R. Martin, Counsel Steven F. Reich, Investigative
Stephanie J. Peters, Counsel Counsel
Samara T. Ryder, Counsel Deborah L. Rhode, Investigative
Brian P. Woolfolk, Counsel Counsel
Kevin M. Simpson, Investigative
Counsel
Lis W. Wiehl, Investigative
Counsel
CONTENTS
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Page
I. Introduction......................................................1
II. Historical Precedent Establishes that Impeachable Offenses Should
be Closely Tied to Official, not Private Misconduct...............2
A. Intent of the Framers................................. 3
B. Watergate Staff Report................................ 6
C. Presidential Impeachments............................. 7
D. Views of the Scholars................................. 11
III.Past Judicial Impeachments Do Not Serve as Precedent for Impeaching
a President based on Private Misconduct..........................16
A. General Distinctions Between Judicial and Presidential
Impeachments........................................... 17
B. Specific Distinctions Between The Conduct That Formed
The Basis For the Impeachments of Judges Claiborne,
Nixon and Hastings and the President's Alleged
Misconduct............................................. 19
1. Judge Harry Claiborne............................. 20
2. Judge Walter Nixon................................ 21
3. Judge Alcee Hastings.............................. 22
IV. Conclusion.......................................................23
I. Introduction
This report has been prepared by the Minority Staff and
Minority Investigative Staff of the Committee on the Judiciary
to address the constitutional standards for impeachment that
should govern the inquiry resulting from the September 9, 1998
Referral by the Office of Independent Counsel Kenneth W. Starr
(hereinafter the ``OIC'').
The Majority's Report, entitled Constitutional Grounds for
Presidential Impeachment: Modern Precedents (hereinafter
``Majority Staff Report''), attempts to update the report on
impeachment standards prepared by Committee staff during the
Watergate proceedings.\1\ However, in our view, this affirms
the emphasis that the Minority has always placed on a threshold
inquiry into the proper constitutional understanding of ``other
high Crimes and Misdemeanors.'' During debate in the Committee
and on the floor of the House on H. Res. 581,\2\ Minority
Members offered alternative impeachment inquiry resolutions
that would have commenced the instant inquiry with a detailed
consideration of the constitutional standards governing removal
of a president.\3\ Minority Members explained that such a
thorough review might well lead to the conclusion that none of
the allegations contained in the Referral, even if taken as
true, would rise to the level of an impeachable offense,
thereby eliminating the need for further inquiry. In this
regard, therefore, we would have hoped that any effort to
update the Watergate Staff Report would have been undertaken in
a bipartisan and serious manner.
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\1\ Staff of House Comm. on the Judiciary, 93rd Cong., 2d Sess.
(Comm. Print 1974) Constitutional Grounds For Presidential Impeachment
(``Watergate Staff Report'').
\2\ On September 11, 1998, the House of Representatives passed H.
Res 525, which directed the Committee to receive and review the OIC's
Referral, and to ``determine whether sufficient grounds exist to
recommend to the House that an impeachment inquiry be commenced.'' On
October 8, 1998, the House passed H. Res. 581, which directed the
Committee to ``investigate fully and completely whether sufficient
grounds exist for the House of Representatives to exercise its
constitutional power to impeach William Jefferson Clinton, President of
the United States of America.'' The resolution further instructed the
Committee to ``report to the House of Representatives such resolutions,
articles of impeachment, or other recommendations as it deems proper.''
\3\ On November 11, 1998, Representatives Conyers and Scott, the
Ranking Members on the Committee and the Subcommittee on the
Constitution, asked that this issue be resolved before the Committee
moved on into what could be a drawn out and polarizing factual inquiry.
Letter from John Conyers, Jr., Ranking Minority Member, House Committee
on the Judiciary, and Robert C. Scott, Ranking Minority Member,
Subcommittee on the Constitution, to Henry H. Hyde, Chairman, House
Committee on the Judiciary (Nov. 11, 1998). Chairman Hyde rejected that
request by letter dated November 13, 1998.
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Unfortunately, the Majority Staff Report--rather than
providing an ``update'' of the Watergate Staff Report--attempts
to re-write more than two hundred years of history without any
input from the Minority \4\ in a transparent effort to broaden
the historically accepted standards for presidential
impeachment. The mere fact that the Majority Staff Report was
released before the November 9 hearing on impeachment standards
indicates that the Majority is more interested in reaching a
pre-set conclusion than in engaging a more contemplative
consideration of relevant precedent.
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\4\ The Minority was first formally notified about this undertaking
on November 5, when a draft copy of the Majority Staff Report was
presented to the Minority staff. The Minority was not asked to
contribute to or participate in the drafting process. The following
day, November 6, the Majority Staff Report was published as a Committee
print and posted on the Internet.
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The Majority Staff Report reaches four conclusions: (1)
since 1974, making false and misleading statements under oath
has been the most common basis for impeachment; (2) the
standard for impeachable offenses is the same for federal
judges as it is for presidents; (3) impeachable offenses can
involve both personal and professional misconduct; and (4)
impeachable offenses do not have to be federal or state
crimes.\5\ Other than the fourth finding, which was a
conclusion of the Watergate Staff, the Majority's conclusions
are misleading if not outright false. Contrary to the positions
taken in the Majority Staff Report, this report will show that
historical precedent establishes that impeachable offenses
should be closely tied to official, not private misconduct
unrelated to office; and past judicial impeachments do not
serve as precedent for impeaching a president based on private
misconduct.
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\5\ Majority Staff Report, supra at 16-17.
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II. Historical Precedent Establishes that Impeachable Offenses Should
be Closely Tied to Official, not Private Misconduct
The Majority Staff Report attempts an ``end run'' around
the constitutional requirement that there be a substantial
nexus between alleged misconduct by a chief executive and his
official duties before such misconduct can rise to the level of
an impeachable offense. Although there are no judicial
precedents which spell out the meaning of the Constitution's
impeachment clause, an examination of the historical
precedents, including the Watergate Staff Report and
impeachment proceedings against President Nixon, clearly
establishes that a president should only be impeached for
conduct which constitutes an abuse or subversion of the powers
of the executive office.
Under Article II, Section 4 of the Constitution,
impeachment is only warranted for conduct which falls within
the constitutional parameters of ``Treason, Bribery, or other
high Crimes and Misdemeanors.'' \6\ As an initial matter, it is
important to note that the juxtaposition of such serious
offenses of Treason and Bribery with the phrase ``other high
Crimes and Misdemeanors'' serves as an important indicator of
how the latter term should be defined. In other words, it seems
clear that the Framers intended that such ``other high Crimes
and Misdemeanors'' must be in the nature of large scale abuses
of public office--similar to treason and bribery.\7\ Indeed a
review by the Congressional Research Service of nearly 700
years of precedent from English and American impeachment
precedent was unable to reveal a single impeachment case based
solely on private misconduct.
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\6\ Treason is defined in the Constitution, art. III, Sec. 3, cl.
1, and in statute, 18 U.S.C. Sec. 2381, to mean levying war against the
United States or adhering to their enemies, giving them aid and
comfort. Bribery is not defined in the Constitution, although it was an
offense at common law. The First Congress enacted a bribery statute,
the Act of April 30, 1790, 1 Stat. 112, 117, which, with some
amendment, is now codified at 18 U.S.C. Sec. 201.
\7\ This reading is an example of the standard rule of construction
known in Latin as ``eiusdem generis,'' or ``of the same kind.'' It
basically provides that when a general word occurs after a number of
specific words, the meaning of the general word is limited to the kind
or class of things in which the specific words fall.
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It is also important to note that the word ``high''
modifies both ``Crimes'' and ``Misdemeanors.'' As the history
of that term makes clear, the Framers did not entrust Congress
with the power to impeach a popularly elected President simply
upon a showing that the executive committed a ``misdemeanor''
crime as we now understand the term--as a minor offense usually
punishable by a fine or brief period of incarceration. Instead,
an examination of the relevant historical precedents indicates
that a president may only be impeached for conduct which
constitutes an egregious abuse or subversion of the powers of
the executive office.
A. Intent of the Framers
A historical review indicates that the Framers intended the
operation of the impeachment clause to be premised on grave
abuse of executive authority. This is evident by the use of the
terms ``other high Crimes and Misdemeanors'' in English
Parliamentary history, its actual drafting at the
Constitutional Convention, the ratification debates in the
states, and subsequent comments and actions by the Framers.
At the time of the Constitutional Convention, the phrase
``high Crimes and Misdemeanors'' had been in use for over 400
years in impeachment proceedings in the English parliament. The
phrase was a term of art in English parliamentary practice and
had a special historical meaning different from the ordinary
meaning of the discrete terms ``crimes'' and ``misdemeanors.''
In particular, ``high misdemeanors'' referred to a category of
offenses that subverted the system of government.\8\
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\8\ Historians have traced the earliest use of the terms ``high
Crimes and Misdemeanors'' to the impeachment of the Earl of Suffolk in
1386. See Raoul Berger, Impeachment: The Constitutional Problems, 59
(1973) (``Berger'').
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In its report on the historical roots of the impeachment
process, the staff of the Watergate impeachment inquiry offered
the following summary of these English historical precedents:
First, the particular allegations of misconduct
alleged damage to the state in such forms as
misapplication of funds, abuse of official power,
neglect of duty, encroachment on Parliament's
prerogatives, corruptions and betrayal of trust.
Second, the phrase ``high Crimes and Misdemeanors'' was
confined to parliamentary impeachments, it had no roots
in the ordinary criminal law, and the particular
allegations of misconduct under that heading were not
necessarily limited to common law or statutory
derelictions or crimes.\9\
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\9\ Watergate Staff Report, supra note 1, at 7.
With regard to the actual drafting of the Constitution's
impeachment clause, it is clear the Framers intended
impeachment to be a very limited remedy, reserved for the most
egregious misconduct subversive of government. This is why at
the outset, delegates such as Gouvernor Morris and James
Madison objected to the use of broad impeachment language.
Morris argued that ``corruption & some few other offences to be
such as ought to be impeachable; but thought the cases ought to
be enumerated & defined,'' \10\ while Madison noted that
impeachment was only necessary to be used to ``defend[] the
Community against the incapacity, negligence or perfidy of the
chief Magistrate.'' \11\
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\10\ Berger, supra note 8, at 65.
\11\ Id. (emphasis added).
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The critical drafting occurred on September 8, 1787, and is
described in the Watergate Staff Report:
Briefly, and late in the Convention, the framers addressed
the question how to describe the grounds for impeachment
consistent with its intended function. They did so only after
the mode of the President's election was settled in a way that
did not make him (in the words of James Wilson) ``the Minion of
the Senate.''
The draft of the Constitution then before the Convention
provided for his removal upon impeachment and conviction for
``treason or bribery.'' George Mason objected that these
grounds were too limited:
Why is the provision restrained to Treason & bribery
only? Treason as defined in the Constitution will not
reach many great and dangerous offenses. Hastings [an
English official being impeached in India] is not
guilty of Treason. Attempts to subvert the Constitution
may not be Treason as above defined--As bills of
attainder which have saved the British Constitution are
forbidden, it is the more necessary to extend: the
power of impeachments.
Mason then moved to add the word ``maladministration'' to
the other two grounds. Maladministration was a term in use in
six of the thirteen state constitutions as a ground for
impeachment, including Mason's home state of Virginia.
When James Madison objected that ``so vague a term will be
equivalent to a tenure during pleasure of the Senate,'' Mason
withdrew ``maladministration'' and substituted ``high crimes
and misdemeanors agst. the State,'' which was adopted eight
states to three. . . .\12\
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\12\ Watergate Staff Report, supra note 1, at 11-12 (citations
omitted).
It is important to emphasize the narrowness of the phrase
``other high Crimes and Misdemeanors'' was confirmed by the
addition of the language ``against the State.'' Madison wrote
that the delegates revised the phrase to ``other high Crimes
and Misdemeanors against the United States'' in order to
``remove ambiguity.'' \13\ This language reflects the
Convention's view that only offenses against the political
order should provide a basis for impeachment. Although the
phrase ``against the United States'' was eventually deleted by
the Committee of Style that produced the final
Constitution,\14\ the Committee of Style was directed not to
change the meaning of any provision.\15\ It is therefore clear
that the phrase was dropped as a redundancy and its deletion
was not intended to have any substantive impact.\16\
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\13\ 2 Max Farrand, The Records of the Federal Convention of 1781,
551 (Rev. ed. 1967) (emphasis added).
\14\ Id. at 600
\15\ Id. at 553.
\16\ See Fenton, The Scope of the Impeachment Power, 65 N. W. L.
Rev. 719, 740 (1970). See also summary of impeachment precedents
prepared by David Overlock Stewart, Peter K. Levitt, and Marc L.
Kesselman of Ropes & Gray, Sept. 29, 1998 (on file with Minority Staff)
(``Ropes & Gray Memorandum'').
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The ratification debates in the states also serve to
highlight the narrow purpose and scope of the impeachment
clause. For example, the Virginia ratifiers believed that
possible impeachment counts would lie against the president
where he had received ``emoluments'' from a foreign power,\17\
pardoned his own crimes or crimes he advised,\18\ or had
summoned the representatives of only a few states to ratify a
treaty.\19\ Likewise, the North Carolina Assembly thought that
concealing or giving false information to the Senate in order
to bring about legislation harmful to the country could
constitute an impeachable offense.\20\
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\17\ Edmund Randolph, 3 J. Elliot, The Debate in the Several State
Conventions on the Adoption of the Federal Constitution 486 (reprint of
2d ed.) (Virginia Convention).
\18\ George Mason, 3 Elliot 497-98 (Virginia Convention).
\19\ James Madison, 3 Elliot 500 (Virginia Convention).
\20\ James Iredell, 4 Elliot 127 (North Carolina Convention).
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The construction that ``other high Crimes and
Misdemeanors'' should be limited to serious abuses of official
power is further confirmed by the commentary of prominent
Framers and early constitutional commentators. Supreme Court
Justice James Wilson, who played a major role at the
Constitutional Convention, wrote: ``[I]mpeachments are
proceedings of a political nature . . . confined to political
characters charging only political crimes and misdemeanors and
culminating only in political punishments.'' \21\
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\21\ James Wilson, The Works of James Wilson 426 (R. McCloskey,
ed., 1967).
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Significantly, Alexander Hamilton, another leading Framer,
wrote in Federalist No. 65 that impeachable offenses ``proceed
from the misconduct of public men, or in other words from the
abuse or violation of some public trust.'' He stressed that
those offenses ``may with peculiar propriety be denominated
POLITICAL, as they relate chiefly to injuries done immediately
to the society itself.'' \22\
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\22\ Alexander Hamilton, The Federalist Papers, 65 (C. Rossiter,
ed., 1991).
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Hamilton's view was endorsed a generation later by Justice
Joseph Story in his Commentaries on the Constitution when he
wrote, ``[impeachable offenses] are committed by public men in
violation of their public trust and duties. . . . Strictly
speaking, then, the impeachment power partakes of a political
character, as it respects injuries to the society in its
political character.'' \23\ Justice Story added that
impeachable offenses ``peculiarly injure the commonwealth by
the abuse of high offices of trust.'' \24\
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\23\ 2 Joseph Story, Commentaries on the Constitution Sec. 744 (1st
ed. 1833).
\24\ Id.
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The improprieties of Alexander Hamilton and Congress'
reaction, shortly after the adoption of the Constitution, serve
to illuminate further the Framers' narrow intent. During the
winter of 1792-1793, while Congress was investigating the
alleged financial misdealings of then Secretary of Treasury
Alexander Hamilton, he was forced to admit that he had made
improper payments to James Reynolds in order to prevent public
disclosure of an adulterous relationship Hamilton had engaged
in with Reynolds' wife. Hamilton even went to the length of
having Mrs. Reynolds burn incriminating correspondence and
promised to pay for the Reynolds' travel costs to leave town.
When Congress learned of this course of events, they decided
the matter was private, not public, and did not pursue any
impeachment proceedings.\25\
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\25\ Richard N. Rosenfield, Founding Fathers Didn't Flinch--
Alexander Hamilton's Misstep was Deemed a Private Matter that didn't
Affect his Service to the Nation, L.A. Times, Sept. 18, 1998, at B9.
See also The Papers of Alexander Hamilton (Harold C. Syrett, ed. 1974).
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B. Watergate Staff Report
Contrary to the position taken in the Majority Staff
Report, a fair reading of the Watergate Staff Report does not
support equating impeachable offenses with personal misconduct
unrelated to public office.\26\ We do agree that it is clear--
as the Majority Staff Report states--that one of the principal
conclusions of the Watergate Staff Report is that a violation
of the criminal laws is not a prerequisite for impeachment.\27\
Far more significant for purposes of the OIC Referral, however,
is that the Watergate Staff Report went on to conclude that the
mere occurrence of criminal misconduct does not necessarily
support a charge of impeachment. Instead, the Watergate Staff
Report asserts that in order to justify presidential
impeachment, it is necessary to establish that the misconduct
is so grave as to threaten our constitutional form of
government or the president's duties thereunder:
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\26\ Majority Staff Report, supra at 16.
\27\ See, e.g., Watergate Staff Report, supra note 1, at 24.
Not all presidential misconduct is sufficient to
constitute grounds for impeachment. There is a further
requirement--substantiality. In deciding whether this
further requirement has been met, the facts must be
considered as a whole in the context of the office, not
in terms of separate or isolated events. Because
impeachment of a President is a grave step for the
nation, it is to be predicated only upon conduct
seriously incompatible with either the constitutional
form and principles of our government or the proper
performance of constitutional duties of the
presidential office. \28\
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\28\ Id. at 27 (emphasis added).
It is also important to note that during the Watergate
inquiry, the Republican Minority did not disagree with this
latter contention. Although the Republicans unsuccessfully
argued that criminal misconduct should be a prerequisite to
impeachment, they did not challenge the proposition that the
misconduct must rise to constitutional proportions to warrant
impeachment. In their separate views prepared to the
Committee's Report on the final articles of impeachment,
Minority members wrote: ``[I]t is our judgment, based upon . .
. constitutional history that the framers . . . intended that
the President should be removable by the legislative branch
only for serious misconduct dangerous to the system of
government established by the Constitution.'' \29\
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\29\ Impeachment of Richard M. Nixon, President of the United
States, H.R. Rep. No. 93-1305, 93rd Cong., 2d Sess. 10, at 365 (1974)
(``Watergate Committee Report'') (citations omitted) (emphasis added).
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Similarly, during the Committee debate voting out articles
of impeachment, the Republican Ranking Member, Rep. Hutchinson
(R-MI), explicitly embraced a similar definition of
``impeachable offenses'' by arguing that ``a president can be
impeached for the commission of crimes and misdemeanors, which
like other crimes to which they are linked in the Constitution,
treason and bribery, are high in the sense that they are crimes
directed against or having great impact upon the system of
government itself.'' \30\
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\30\ Howard Fields, High Crimes and Misdemeanors 120 (1978)
(emphasis added).
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C. Presidential Impeachments
Historical presidential impeachment precedent also
demonstrates that, for offenses to be impeachable, they must
arise out of a president's public, not private, conduct. As an
initial matter, it is instructive to consider the 1868
impeachment of President Andrew Johnson, a Democrat who arose
to the presidency after President Lincoln's assassination. He
was impeached by the House Republicans because he had removed
the Secretary of War, Edwin M. Stanton, who had disagreed with
his post-Civil War reconstruction policies. Stanton's removal
was said to be inconsistent with the Tenure in Office Act,
requiring Senate approval for removal of certain officers.\31\
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\31\ Act of March 2, 1867, ch. 154, Sec. 6, 14 Stat. 430. See also
William H. Rehnquist, Grand Inquests 212-16 (1992).
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Although the impeachment of President Andrew Johnson failed
in the Senate, it is informative to note that all of the
impeachment articles related to alleged public misconduct. The
eleven articles of impeachment related to Johnson's removal of
Stanton, the impact of that removal on Congressional
prerogatives, and its impact on post-Civil War Reconstruction.
Accordingly, it is fair to state that although motivated by
politics, the impeachment was nonetheless premised on official
presidential conduct and alleged harms to the system of
government.\32\
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\32\ Cong. Globe Supp., 40th Cong. 2d Sess., 3-5 (1868). See also
Michael Les Benedict, The Impeachment and Trial of Andrew Johnson 114-
15 (1973); Ropes & Gray Memorandum, supra note 16.
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During the Senate trial, the President's defenders argued
that impeachment could only be based on ``a criminal act
directly subversive of fundamental principles of government or
the public interest.'' \33\ President Johnson was acquitted on
May 16, 1868 by a one vote margin. Of particular note, William
Pitt Fessenden, a senior Republican, warned of the dangers that
a weakly grounded impeachment could have on the Nation:
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\33\ Cong. Globe Supp., 40th Cong. 2d Sess. V. II, at 139-40 (April
23, 1868) and 286-89 (April 29, 1868). See also Cong. Globe Supp., 40th
Cong. 2d. Sess., at 286-310 (1868).
[T]he offence for which a Chief Magistrate is removed
from office, . . . should be of such a character to
commend itself at once to the minds of all right
thinking men as, beyond all question, an adequate
cause. It should be free from the taint of party; leave
no reasonable ground of suspicion upon the motives of
those who inflict the penalty, and address itself to
the country and the civilized world as a measure justly
called for by the gravity of the crime and the
necessity for its punishment. Anything less [would]
shake the faith of the friends of constitutional
liberty in the permanency of our free institutions and
the capacity of man for self-government.\34\
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\34\ Id. at 30.
The circumstances surrounding the proposed impeachment of
President Nixon also support the view that impeachment should
be limited to threats that undermine the Constitution, not
ordinary criminal misbehavior unrelated to a president's
official duties. All three of the articles of impeachment
approved by the House Judiciary Committee involved misuse of
the President's official duties. The First Article--alleging
that President Nixon coordinated a cover-up of the Watergate
break-in by interfering with numerous government
investigations, using the CIA to aid the cover-up, approving
the payment of money and offering clemency to obtain false
testimony--qualified as a high Crime and Misdemeanor, because
``[the President used] the powers of his high office [to]
engage . . . in a course of conduct or plan designed to delay,
impede, and obstruct [the Watergate investigation].'' \35\ The
Second Article--alleging that the President used the IRS as a
means of political intimidation and directed illegal
wiretapping and other secret surveillance for political
purposes--described ``a repeated and continuing abuse of the
powers of the Presidency in disregard of the fundamental
principle of the rule of law in our system of government.''
\36\ The Third Article--alleging that President Nixon refused
to comply with subpoenas issued by the Judiciary Committee in
its impeachment inquiry--was considered impeachable because
such subpoena power was essential to ``Congress' [ability] to
act as the ultimate safeguard against improper presidential
conduct.'' \37\
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\35\ Watergate Committee Report, supra note 29, at 133 (emphasis
added).
\36\ Id. at 180 (emphasis added).
\37\ Id. at 213. A fourth proposed article citing the covert use of
the military in Cambodia was rejected ``because Nixon was performing
his constitutional duty'' as Commander-in-Chief, because ``Congress had
been given sufficient warning of the bombings,'' and ``because the
passage of the War Powers Resolution mooted the question raised by the
Article.'' Id. at 219.
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Even more telling are the circumstances by which the
Committee rejected articles of impeachment against President
Nixon relating to allegations of income tax evasion. The
Majority Staff Report contains no detailed discussion of the
debate on this proposed article of impeachment. This omission
is surprising considering the Majority's public pronouncements
on this issue. For example, a Judiciary Committee spokesman for
the Majority recently took issue with an assertion by White
House counsel that Judiciary Committee Democrats involved in
the Watergate impeachment inquiry voted against including tax
evasion charges in the articles of impeachment on the grounds
that it involved private, rather than official, misconduct:
The problem with [Counsel to the President's]
statement is that there is absolutely no discussion in
the historical record of the Watergate proceedings to
support that assertion. In fact, the record indicates
that most members voted against the article, not
because they considered it private conduct and
therefore unimpeachable, but because there was
insufficient evidence for the charge or they preferred
to focus on the core charges against President
Nixon.\38\
---------------------------------------------------------------------------
\38\ Legal Times, Craig is ``Rewriting History'' On Impeachment
Issues (Nov. 2, 1998) at 27.
In point of fact, the historical record of the Watergate
proceedings demonstrates that the lack of a nexus between the
tax evasion charges and President Nixon's official duties
played an important role in the Committee's ultimate rejection
of this proposed article of impeachment. On July 30, 1974, the
Judiciary Committee debated a proposed article of impeachment
alleging that President Nixon had committed tax fraud when
filing his federal income tax returns for the years 1969
through 1972 (tax returns are filed under penalty of perjury).
All seventeen Republican members of the Committee joined with
nine Democratic members to defeat this proposed article by a
vote of 26-12.\39\ The primary ground for rejection was that
the Article related to the President's private conduct, not an
abuse of his authority as President.
---------------------------------------------------------------------------
\39\ Hearings Before the House Comm. on the Judiciary Pursuant to
H. Res. 803, 93d Cong. 2d. Sess. 527 (1974) (``Debate on Articles of
Impeachment'').
---------------------------------------------------------------------------
The crux of the impeachment article related to allegations
that the President understated his income and overstated his
deductions for the years 1969 through 1972.\40\ In examining
the President's tax returns for those four years, the IRS found
that he had underreported his taxable income by $796,000; in
doing its own calculations, Congress's Joint Committee on
Internal Revenue Taxation put the figure at $960,000.\41\ The
underreporting derived from a $576,000 tax deduction the
President had claimed during those years for a gift of his
papers to the National Archives.\42\
---------------------------------------------------------------------------
\40\ The second article of impeachment provided: ``[President
Nixon] knowingly and fraudulently failed to report certain income and
claimed deductions in the years 1969, 1970, 1971, and 1972 on his
Federal income tax returns which were not authorized by law, including
deductions for a gift of papers to the United States valued at
approximately $576,000.'' Watergate Committee Report, supra note 29, at
220.
\41\ Id.
\42\ Id.
---------------------------------------------------------------------------
In the ensuing debate on the article of impeachment
concerning this issue, one of the most important themes leading
to its rejection was the lack of any sufficient connection
between these charges of alleged criminal conduct and the
President's official duties. Opponents of this article raised
three primary objections: (1) there was no evidence the
President had committed tax evasion; (2) tax evasion should be
addressed through the criminal law, not impeachment; and (3)
tax evasion was not an impeachable offense.\43\
---------------------------------------------------------------------------
\43\ Id.
---------------------------------------------------------------------------
The first argument against the article was that there was
no clear and convincing evidence that the President had
committed tax fraud.\44\ Because the President had relied upon
his attorneys and agents in determining his tax
responsibilities, he was said to have not fraudulently filed a
false tax return and had not committed a criminal act.\45\ Only
Republican members of the Committee (and only eleven of the
seventeen Republicans at that), spoke against the article on
the grounds that there was insufficient evidence of tax
evasion.\46\ This group constituted only eleven of the twenty-
six votes against the proposed article; therefore, it is not
possible to say that a majority of the votes against the
Article opposed it for insufficiency of evidence.\47\
---------------------------------------------------------------------------
\44\ Id.
\45\ Debate on Articles of Impeachment, supra note 39, at 522, 532.
\46\ See id. at 517-60.
\47\ At the time it considered articles of impeachment, the
Committee was aware that according to the former Chief of the Criminal
Tax Section at the Department of Justice ``in the case of an ordinary
taxpayer, on the facts as we know them in this instance, the case would
be referred to a Grand Jury for prosecution.'' Id. In fact, the
President's advisers were criminally prosecuted for their roles in
Nixon's tax evasion. United States v. DeMarco, 394 F. Supp. 611, 614
(D.D.C. 1975).
---------------------------------------------------------------------------
The opponents also maintained that because tax evasion
could be addressed through the criminal law, it was an
inappropriate vehicle for determining the President's
culpability.\48\ As Democratic Member Ray Thornton (D-AR)
acknowledged, ``there [had] been a breach of faith with the
American people with regard to incorrect income tax returns. .
. . But . . . these charges may be reached in due course in the
regular process of law. This committee is not a tax court nor
criminal court nor should it endeavor to become one.'' \49\
---------------------------------------------------------------------------
\48\ Watergate Committee Report, supra note 29, at 222.
\49\ Debate on Articles of Impeachment, supra note 39, at 549.
---------------------------------------------------------------------------
The opponents' final and ultimately most compelling reason
for rejecting this article was that tax fraud was not an abuse
of power that impeachment was designed to remedy.\50\
Republican congressmen explicitly emphasized that personal
misconduct could not give rise to an impeachable offense.
Congressman Tom Railsback (R-IL) noted that there was ``a
serious question as to whether something involving [the
President's] personal tax liability has anything to do with his
conduct of the office of the President.'' \51\ Congressman
Lawrence J. Hogan (R-MD), quoted from the impeachment inquiry
staff report:
---------------------------------------------------------------------------
\50\ Watergate Committee Report, supra note 29, at 222.
\51\ Debate on Articles of Impeachment, supra note 39, at 524.
As a technical term, high crime signified a crime
against the system of government, not merely a serious
crime. This element of injury to the commonwealth, that
is, to the state itself and to the Constitution, was
historically the criteria for distinguishing a high
crime or misdemeanor from an ordinary one.\52\
---------------------------------------------------------------------------
\52\ Id. at 541 (emphasis added).
---------------------------------------------------------------------------
Also, Congressman Wiley Mayne (R-IA) reasoned:
Now, even if criminal fraud had been proved, . . .
then we would still have the question whether it is a
high crime or misdemeanor sufficient to impeach under
the Constitution, because that is why we are here,
ladies and gentlemen, to determine whether the
President should be impeached, not to comb through
every minute detail of his personal taxes for the past
6 years, raking up every possible minutia which could
prejudice the President on national television.\53\
---------------------------------------------------------------------------
\53\ Id. at 545 (emphasis added).
Similarly, Democratic Congressman Jerome Waldie (D-CA)
echoed the Republican distinction between public and private
conduct,\54\ and opposed the proposed article because ``the
impeachment process is a process designed to redefine
Presidential powers in cases where there has been enormous
abuse of those powers and then to limit the powers as a
concluding result of the impeachment process.'' \55\
---------------------------------------------------------------------------
\54\ Id. at 548.
\55\ Id.
---------------------------------------------------------------------------
It is also informative to consider the various incidents
over the last 50 years involving alleged presidential
impropriety for which impeachment proceedings were not brought
or considered. This is not to say that impeachment should have
been initiated in these cases, merely that the Congress showed
restraint in failing to pursue these lines by way of
impeachment inquiry. These incidents include the following:
With regard to Iran-Contra, President Reagan
initially declared on national television that there was no
arms for hostages transfer. Subsequently, in a January 1987
interview with the Tower Commission, pursuant to the
Commission's Iran-Contra investigation, President Reagan stated
that he approved an August shipment of arms by Israel to Iran.
Then, in a February 1987 interview with the Commission, he
recanted his prior statements and said he did not approve the
shipment. He also said, contrary to his January statements,
that he was surprised when he learned Israel had shipped arms
to Iran. Finally, when questioned by Walsh in February, 1990,
President Reagan denied any detailed knowledge of the Iran-
Contra matter.
In a deposition with the Office of Independent
Counsel Lawrence Walsh, then-Vice President George Bush denied
knowledge of the diversion of Iranian arms-sale proceeds to the
Contras and denied knowledge of Lieutenant Colonel Oliver
North's secret Contra-supply operation. The OIC subsequently
found evidence contradicting the Vice President's statements,
but he refused to submit to further interviews. Moreover, on
December 24, 1992, President Bush pardoned (1) former Defense
Secretary Caspar Weinberger; (2) former CIA official Duane R.
Clarridge; (3) former National Security Adviser Robert
McFarlane; (4) former CIA official Alan D. Fiers, Jr; (5)
former State Department official Elliott Abrams; and (6) former
CIA official Clair George even though they had all either been
indicted or pled guilty pursuant to Lawrence Walsh's Iran-
Contra investigation.
There were widespread claims of a secret ``deal''
between President Ford and President Nixon, culminating in the
pardon received by President Nixon.
It was widely believed that President Kennedy was
involved in a series of illicit sexual relationships while in
office, including an illicit sexual relationship with a woman
simultaneously associated with a member involved in organized
crime. Some have suggested that this relationship could have
potentially compromised Department of Justice law enforcement
activities.
Before passage of the Lend-Lease Act, the sale of
arms to other nations, including Britain, was prohibited by
law. Nonetheless, it is generally agreed that President
Roosevelt was secretly and unlawfully transferring arms--
including over 20,000 airplanes, rifles, and ammunition--to
England.\56\
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\56\ The Background and History of Impeachment: Hearing on H. Res.
581 Before the Subcomm. On the Constitution, 105th Cong., 2d Sess.
(1998) (Nov. 9, 1998) (forthcoming) (``Subcommittee Hearing'') (Written
testimony of Professor Cass Sunstein at 9-10) (citations omitted).
---------------------------------------------------------------------------
D. Views of the Scholars
A review of the writings by prominent scholars concerning
the issue of impeachment further confirms that for presidential
wrongdoing to rise to the level of an impeachable offense, it
should stem from serious official misconduct against the
government. At the outset, it is interesting to note that the
question of whether private presidential misconduct could be
impeachable was presaged twenty-five years ago by Professor
Charles Black, in his seminal work, Impeachment: A Handbook,
when he posited the following hypothetical:
Suppose a President transported a woman across a
state line or even (as the Mann Act reads) from one
point to another within the District of Columbia, for
what is quaintly called an ``immoral purpose.''. . . Or
suppose the president actively assisted a young White
House intern in concealing the latter's possession of
three ounces of marijuana--thus himself becoming guilty
of ``obstruction of justice.'' Would it not be
preposterous to think that any of this is what the
Framers meant when they referred to ``Treason, Bribery,
and other high Crimes and Misdemeanors,'' or that any
sensible constitutional plan would make a president
removable on such grounds? \57\
---------------------------------------------------------------------------
\57\ Charles L. Black, Impeachment: A Handbook 35-36 (1974)
(``Black'').
In a similar vein, Professor Black addresses the question
of whether obstruction of justice will always constitute an
---------------------------------------------------------------------------
impeachable offense:
Here the question has to be whether the obstruction
of justice has to do with public affairs and the
political system; I would not think impeachable a
president's act in helping a child or a friend of his
to conceal misdeeds, unless the action were so gross as
to make the president unviable as a leader. In many
cases his failure to protect some people at some times
might result in his being held in contempt by the
public. I would have to say the protection of their own
people is in all leaders, up to a point, a forgivable
sin, and perhaps, even an expectable one; this
consideration may go to the issue of
``substantiality.'' \58\
---------------------------------------------------------------------------
\58\ Id. at 45-46.
More recently, a large group of legal scholars and
academics have offered their views regarding the impeachability
of the misconduct alleged by the OIC. On November 6, four
hundred thirty Constitutional law professors wrote: ``Did
President Clinton commit `high Crimes and Misdemeanors'
warranting impeachment under the Constitution? We . . . believe
that the misconduct alleged in the report of the Independent
Counsel . . . does not cross that threshold. . . . [I]t is
clear that Members of Congress would violate their
constitutional responsibilities if they sought to impeach and
remove the President for misconduct, even criminal misconduct,
that fell short of the high constitutional standard required
for impeachment.'' \59\
---------------------------------------------------------------------------
\59\ Letter from more than 400 Constitutional law professors (Nov.
6, 1998) (submitted as part of the Subcommittee Hearing Record).
---------------------------------------------------------------------------
One week earlier, four hundred historians issued a joint
statement warning that because impeachment has traditionally
been reserved for high crimes and misdemeanors in the exercise
of executive power, impeachment, based on the facts alleged in
the OIC Referral, would set a dangerous precedent. ``If carried
forward, they will leave the Presidency permanently disfigured
and diminished, at the mercy as never before of caprices of any
Congress. The Presidency, historically the center of leadership
during our great national ordeals, will be crippled in meeting
the inevitable challenges of the future.'' \60\
---------------------------------------------------------------------------
\60\ Statement Against the Impeachment Inquiry, submitted to the
Committee by more than 400 historians (Oct. 28, 1998) (submitted as
part of the Subcommittee Hearing Record).
---------------------------------------------------------------------------
Finally, the weight of credible evidence offered at the
November 9 hearing on the Background and History of Impeachment
also supports the view that impeachment should be limited to
abuse of public office, not private misconduct. This point was
made by several of the witnesses. For example, Chicago Law
Professor Cass Sunstein summarized the standard as follows:
``[w]ith respect to the President, the principal goal of the
impeachment clause is to allow impeachment for a narrow
category of large-scale abuses of authority that come from the
exercise of distinctly presidential powers. Outside of that
category of cases, impeachment is generally foreign to our
traditions and prohibited by the Constitution.'' \61\ Professor
Sunstein went on to review English Parliamentary precedent, the
intent of the Framers and subsequent impeachment practice as
all supporting this bedrock principle. In his view, the only
exception where purely private conduct would be implicated was
in the case of a heinous crime, such as murder or rape:
---------------------------------------------------------------------------
\61\ Subcommittee Hearing, supra note 56 (Written Testimony of
Professor Cass Sunstein at 2) (emphasis in original).
[B]oth the original understanding and historical
practice converge on a simple principle. The basic
point of the impeachment provision is to allow the
House of Representatives to impeach the President of
the United States for egregious misconduct that amounts
to the abusive misuse of the authority of his office.
This principle does not exclude the possibility that a
president would be impeachable for an extremely heinous
``private'' crime, such as murder or rape. But it
suggests that outside such extraordinary (and
unprecedented and most unlikely) cases, impeachment is
unacceptable.\62\
---------------------------------------------------------------------------
\62\ Id. at 5,7, 8, 11, 12 (emphasis in original).
Father Drinan, a former House Judiciary Committee Member
who participated in the Watergate impeachment process, and now
a Professor of Law at Georgetown University, reached the same
conclusion, testifying that, ``the impeachment of a president
must relate to some reprehensible exercise of official
authority. If a president commits treason he has abused his
executive powers. Likewise a president who accepts bribes has
abused his official powers. The same misuse of official powers
must be present in any consideration of a president's engaging
in `other high crimes and misdemeanors.' '' \63\ Eminent
historian Arthur Schlesinger made the same basic distinction
between private and public misconduct:
---------------------------------------------------------------------------
\63\ Id. (Written Testimony of Robert F. Drinan, S.J. at 3-7).
The question we confront today is whether it is a
good idea to lower the bar to impeachment. The charges
levied against the President by the Independent Counsel
plainly do not rise to the level of treason and
bribery. They do not apply to acts committed by a
President in his role of public official. They arise
from instances of private misbehavior. All the
Independent Counsel's charges thus far derive entirely
from a President's lies about his own sex life. His
attempts to hide personal misbehavior are certainly
disgraceful; but if they are to be deemed impeachable,
then we reject the standards laid down by the Framers
in the Constitution and trivialize the process of
impeachment.\64\
---------------------------------------------------------------------------
\64\ Id. (Written Statement of Arthur Schlesinger, Jr. at 2).
Of course, the Majority will argue that these conclusions
are not surprising since they were provided by witnesses called
by Democratic Members. Aside from the fact that the conclusions
of these witnesses are borne out by the great weight of the
evidence as detailed above, this argument does not take account
of the fact that the one witness jointly selected by the
Majority and the Minority--William & Mary Law Professor Michael
Gearhardt--concurred in the assessment offered by the
Democratic witnesses. That is to say, Professor Gearhardt also
testified that impeachment should principally be limited to
---------------------------------------------------------------------------
abuse of public office:
[There is a] widespread recognition that there is a
paradigmatic case for impeachment consisting of the
abuse of power. In the paradigmatic case, there must be
a nexus between the misconduct of an impeachable
official and the latter's official duties. It is this
paradigm that Hamilton captured so dramatically in his
suggestion that impeachable offenses derive from ``the
abuse or violation of some public trust'' and are ``of
a nature which may with peculiar propriety be
denominated POLITICAL, as they relate chiefly to
injuries done immediately to the society itself. This
paradigm is also implicit in the founders' many
references to abuses of power as constituting political
crimes or impeachable offenses.\65\
---------------------------------------------------------------------------
\65\ Id. (Written Testimony of Professor Michael Gearhardt at 13-
14) (footnotes omitted) (emphasis added).
Even to the extent other Republican witnesses testified
that private misconduct could be impeachable, some cautioned
that discretion should be applied before applying this power in
all situations. For example, Duke Law Professor William Van
Alstyne stated that the allegations by Mr. Starr constituted
``low crimes and misdemeanors'' and that ``[t]he further
impeachment pursuit of Mr. Clinton may well not now be
particularly worthwhile.'' \66\
---------------------------------------------------------------------------
\66\ Id. (Written Testimony of Professor William Van Alstyne at 6).
---------------------------------------------------------------------------
The Constitution Subcommittee hearing also served to expose
a number of the fallacies in the Republican arguments calling
for a more expansive view of impeachment. For example,
Professor McDonald sought to convince the Members that the term
``Misdemeanor'' in the phrase ``high Crimes and Misdemeanors''
was intended to incorporate ``all indictable offenses which do
not amount to a felony [including] perjury.'' \67\ This
contention can not only be rebutted by the absurd breadth of
the resulting scope of the impeachment clause, but by specific
reference to English Parliamentary use as outlined in the
Watergate Staff Report:
---------------------------------------------------------------------------
\67\ Id. (Written Testimony of Professor Forrest McDonald at 7).
Blackstone's Commentaries on the Laws of England--a
work cited by delegates in other portions of the
Convention's deliberations and which Madison later
described (in the Virginia ratifying convention) as ``a
book which is in every man's hand''--included ``high
misdemeanors'' as one term for positive offenses
``against the king and government.'' . . . ``High
Crimes and Misdemeanors'' has traditionally been
considered a ``term of art,'' like such other
constitutional phrases as ``levying war'' and ``due
process.'' \68\
---------------------------------------------------------------------------
\68\ Watergate Staff Report, supra note 1, at 12 (footnotes
omitted).
Another claim made by Majority witness Charles Cooper and
Professors Parker and McDonald was that perjury must be
considered a public impeachable offense because it is
tantamount to bribery of the court, an offense so public in
nature as to obviously be impeachable. Professor Tribe
responded by clearly differentiating between the two offenses:
``The fallacy, I think, is that bribery always, by definition,
involves the corrupt use of official government powers, the
powers of whoever is getting bribed. The fact that the officer
being impeached acted privately as the briber, and not publicly
as the bribee, is irrelevant, because the person who bribes is
a full partner in a grave corruption and abuse of government
power.''
Another argument trotted out by the Republicans was that if
the Committee fails to impeach the President for alleged
private misconduct, they will be endorsing his actions and
sending a signal that the President is ``above the law.'' This
is incorrect as a factual matter, as all of the witnesses
agreed that the President would be subject to civil sanction
while he is in office and criminal prosecution once he left
office.\69\ Mr. Starr acknowledged that he agreed with this
legal interpretation when he testified at the full committee's
November 19, 1998 hearing.\70\
---------------------------------------------------------------------------
\69\ See also Arlen Specter, Instead of Impeachment, N. Y. Times,
Nov. 11, 1998, at A27.
\70\ Minority Panel on Constitutional Issues Concerning Impeachment
Before the House Judiciary Committee, 105th Cong. 2d Sess. (October 15,
l998).
---------------------------------------------------------------------------
Perhaps the response to this argument was most well put by
Professor Schlesinger, in responding to a claim by Rep. Inglis
(R-SC) that the Professor's view of the scope of impeachment
would encourage presidents to lie:
Far from advocating lying, I think lying is
reprehensible. If you would bother to listen to my
remarks or read my testimony, I say President Clinton's
attempts to hide personal behavior are certainly
disgraceful, but if they are deemed impeachable, then
we reject a standard laid down by the Framers of the
Constitution. That seems to be the nub of the case.
Finally, the argument has been made by Charles Cooper that
the President's alleged misconduct, no matter how private in
nature, should be treated as an impeachable offense because it
violates the president's oath of office to uphold the
Constitution and take care that the laws are faithfully
executed. As Professor Tribe observed, this argument proves far
too much:
It would follow, since the theory would be that any
law violation by a sitting President is a violation of
his oath and of the take-care clause, it would follow
that you can impeach the President of the United States
more easily than any other civil officer of the
government. And making the President uniquely
vulnerable to removal, especially on a fuzzy standard
like virtue, seems to me to be profoundly unwise.
It is also important to recognize that the President's oath
of office (I do solemnly swear . . . that I will faithfully
execute the Office of President of the United States, and will
to the best of my Ability, preserve, protect and defend the
Constitution of the United States \71\) does not address his
responsibilities as a private litigant. The commitment
memorialized by the oath of office is quite different from the
generalized duty of each citizen to obey the law; rather it is
an oath to discharge the constitutional responsibilities of the
office.\72\
---------------------------------------------------------------------------
\71\ U.S. Const., art. II, sec. 1 (emphasis added).
\72\ In 1866, the Supreme Court described the legal significance of
the presidential oath of office as follows:
[The President] is to ``take care that the laws be
faithfully executed.'' He is to execute the laws by the
means and in the manner which the laws themselves
prescribe. The oath of office cannot be considered as a
grant of power. Its effect, is merely to superadd a
religious sanction to what would otherwise be his official
duty, and to bind his conscience against any attempt to
usurp power or overthrow the Constitution. Ex Parte
Milligan, 71 U.S. 2, 50-51 (1866) (emphasis added).
III. Past Judicial Impeachments Do Not Serve as Precedent for
Impeaching a President Based on Private Misconduct
The Majority Staff Report attempts to cite selectively the
three most recent judicial impeachments as a rationale for
permitting the impeachment of a president for purely private
misconduct. There are two major problems with the Majority's
approach. First, as a general matter, it ignores the fact that
the bases for and standards applicable to presidential
impeachments are not the same as judicial impeachment. Judicial
impeachment has a different pedigree and takes account of
differing roles and responsibilities. Second, the Majority's
approach mischaracterizes the factual history and context of
judicial impeachments as being principally premised on perjury
charges. In point of fact, there is nothing in the 1974
Watergate Staff Report which refers to perjury as constituting
a stand-alone basis for impeachment, and a careful review of
the more recent judicial impeachment cases reveals that they
implicated more pervasive public misconduct than perjury.
A. General Distinctions Between Judicial and Presidential Impeachments
A review of the historical record and consideration of the
differing responsibilities and roles of presidents and judges
under the Constitution make it clear that the positions are and
should be subject to differing impeachment considerations. As
Professor Sunstein observes in his testimony, ``historical
practice suggests a broader power to impeach judges than
Presidents, and indeed it suggests a special congressional
reluctance to proceed against the President.'' \73\
---------------------------------------------------------------------------
\73\ Id. at 12.
---------------------------------------------------------------------------
This is true for several reasons. First, almost all of the
debate during the Constitutional Convention concerning
impeachment focused on the power to remove the President.
Judges and other civil officers were included as possible
subjects of impeachment only near the end of the debate.
According to noted impeachment scholar Raoul Berger:
One thing is clear: in the impeachment debate the
Convention was almost exclusively concerned with the
President. The extent to which the President occupied
center stage can be gathered from the fact that the
addition to the impeachment clause of the ``Vice
president and all civil officers'' only took place on
September 8, shortly before the Convention
adjourned.\74\
---------------------------------------------------------------------------
\74\ Berger, supra note 8 at 100.
The absence of extended discussion makes clear that the
historical debates on how to define impeachable offenses did
not have judges in mind.
Second, the duties of the judicial office entail differing
responsibilities than the president, which must be taken into
account in developing impeachment standards. Although we would
not go as far as to assert that judges are necessarily subject
to a higher standard of impeachment by virtue of Article III's
``good behavior'' requirement \75\--as some have done \76\--it
seems clear that the differing responsibilities attendant on
the federal bench entail a different approach to impeachment.
Likewise, constitutional scholars have long recognized that the
nature of the responsibilities of the official facing
impeachment play a crucial role in determining whether
particular conduct may rise to the level of an impeachable
offense. In his textbook on impeachment, Professor Gearhardt
writes:
---------------------------------------------------------------------------
\75\ Article III, Sec. 1 of the Constitution provides that judges
``Shall hold their Offices during good Behaviour. . . .''
\76\ For example, in proposing articles of impeachment against
Supreme Court Justice William Douglas, then Minority Leader Gerald Ford
maintained that, for members of the judicial branch, ``an additional
and much stricter requirement [than high crimes and misdemeanors] is
imposed . . ., namely, ``good behavior.'' See 3 Deschler's Precedents
of the House of Representatives, H. Doc. 94-661, ch. 14, Sec. 2.11, at
452-55 (1974) (citing 116 Cong. Rec. 11912-14, 91st Cong. 2d Sess.
(Sept. 17, 1970)). See also Subcommittee Hearing, supra note 56
(Written Testimony of Griffin B. Bell at 15-16) (``[the view] that
federal judges are subject to a loose impeachment standard because they
are removable for misbehavior while all other impeachable officials are
removable--by impeachment--only for ``Treason, Bribery, or other high
Crimes and Misdemeanors'' . . . appears to me to be the only one that
makes sense.'').
[t]he different duties or circumstances of
impeachable officials might justify different bases for
their respective impeachments. In the case of federal
judges, the good behavior clause is meant to guarantee
not that they may be impeached on the basis of a looser
standard than the president or other impeachable
officials, but rather that they may be impeached on a
basis that takes into account their special duties or
functions.\77\
---------------------------------------------------------------------------
\77\ Michael Gerhardt, The Federal Impeachment Process, 106-107
(1996).
The important role played by a federal district court judge,
therefore, in administering oaths, sitting in judgment, and
wielding the power to deprive citizens of their liberty or even
their life make it especially appropriate that offenses against
the judicial system or related offenses not directly tied to
official acts may merit impeachment.
These same distinctions were at issue during the Watergate
era. When the prospect of impeachment proceedings against
President Nixon arose, one of the crucial questions was whether
a President could be impeached for conduct that did not
constitute a violation of criminal laws. Although judges had
previously been impeached for non-criminal conduct, these
precedents were of little relevance to the persons wrestling
with the appropriate standards for presidential impeachments.
According to John Labovitz, one of the principal drafters of
the Watergate Staff Report:
For both practical and legal reasons, however, these
cases [involving the impeachment of judges] did not
necessarily affect the grounds for impeachment of a
president. The practical reason was that it seemed
inappropriate to determine the fate of an elected chief
executive on the basis of law developed in proceedings
aimed at petty misconduct by obscure judges. The legal
reason was that the Constitution provides that judges
shall serve during good behavior. This clause could be
interpreted as a separate standard for the impeachment
of judges or it could be interpreted as an aid in
applying the term ``high crimes and misdemeanors'' to
judges. Whichever interpretation was adopted, it was
clear that the clause made a difference in judicial
impeachments, confounding the application of these
cases to presidential impeachments.\78\
---------------------------------------------------------------------------
\78\ John R. Labovitz, Presidential Impeachment 92-93 (1978). See
also Minority Views to Watergate Committee Report, supra note 29, at
370. (concluding that judicial impeachments ``resting upon `general
misbehavior,'' in whatever degree, cannot be an appropriate guide for
impeachment of an elected officer serving for a fixed term. The
impeachments of federal judges are also different from the case of a
President. . . .'' )
Third, the removal of an inferior federal judge does not
involve the titanic confrontation between coordinate branches
of government that arises in a presidential impeachment. The
anti-democratic consequences of removing a popularly-elected
president are not raised by removing an appointed federal
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judge. As Professor Tribe explained:
[t]here is the brute fact that when we put the
President on trial we are placing one federal branch in
a position to sit in judgment on another, empowering
the Congress essentially to decapitate the Executive
Branch in a single stroke--and without the safeguards
of judicial review. Neither of the other two branches
of government is embodied in a single individual, so
the application of the Impeachment Clause to the
President of the United States involves the uniquely
solemn act of having one branch essentially overthrow
another. Moreover, in doing so, the legislative branch
essentially cancels the results of the most solemn
collective act of which we as a constitutional
democracy are capable: the national election of a
president.\79\
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\79\ Subcommittee Hearing, supra note 56 (Written Testimony of
Professor Laurence H. Tribe at 14).
As is accurately detailed in the Watergate Staff Report,
one of the concerns voiced by the Framers in defining
impeachable offenses was that if the definition was too
expansive, then the balance of powers between the Executive and
the Legislative branches of government would be tipped in favor
of Congress, with disastrous results for the strong,
centralized leadership that they envisioned.\80\ Again,
according to Professor Berger:
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\80\ See, e.g., Watergate Staff Report, supra note 1, at 26.
[T]he framers did not adopt ``misconduct in office''
or ``maladministration.'' ``Maladministration'' was in
fact rejected on Madison's suggestion, and ``high
crimes and misdemeanors'' was adopted in its place.
True, the rejection was grounded on Madison's protest
that ``maladministration'' would place tenure at ``the
pleasure of the Senate,'' as well it might if all petty
misconduct in office were impeachable. But this
interchange, it will be recalled, had reference to
removal of the President, which poses quite different
problems from removal of judges. \81\
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\81\ Berger, supra note 8, at 206 (emphasis added).
These ``balance of power'' concerns, of course, are not in
play to nearly the same degree when Congress is confronted with
the question of judicial impeachments. It is not surprising,
therefore, that such impeachments have been far more common in
our history and have been triggered by misconduct that in some
instances could not have justified presidential impeachments.
There are some 900 federal judges, but only one president.
Federal judges are appointed for life and cannot be removed by
any alternative method apart from impeachment. Presidents serve
at most for two fixed terms, and can be removed after one term
by the will of the people.\82\ No such accountability exists in
cases involving judicial misconduct. Thus, for Congress to
reverse the choice of the electorate and remove the nation's
leader raises concerns of a wholly different magnitude than are
at issue in judicial proceedings.
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\82\ As Gouvernor Morris assured his fellow delegates at the
Constitutional Convention in Philadelphia, ``an election every four
years will prevent maladministration.'' Farrand, supra note 13, at 550.
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B. Specific Distinctions Between the Conduct That Formed the Basis for
the Impeachments of Judges Claiborne, Nixon and Hastings and the
President's Alleged Misconduct
Despite the best efforts of the Majority Staff Report to
recast the entire nature of impeachment as rising or falling on
perjury in the three judicial impeachment cases that have
occurred since 1974, a close review of the facts of these cases
indicates that official misconduct remains the touchstone of
judicial impeachment, and the recent judicial cases do not
support the notion that a president may be impeached for
private misconduct. Judge Claiborne was impeached, while he was
in prison and collecting his judicial salary, for income tax
evasion (which was specifically rejected as a ground for
impeachment of President Nixon), and had previously been
charged with illegally soliciting a bribe. Judge Alcee Hastings
and Walter Nixon committed perjury in connection with criminal
proceedings concerning their public and official duties, not
civil depositions into their private conduct. The statements by
both Hastings and Nixon were directly material to the
proceedings and to the underlying criminal charges against
them.
1. Judge Harry Claiborne
After being convicted and sentenced to prison for filing
false federal income tax returns, Judge Claiborne was impeached
and removed from office in 1986. Judge Claiborne had signed
written declarations that the returns were made under penalty
of perjury. In addition to two articles charging him with
filing false tax returns, Judge Claiborne was found guilty on
an article of impeachment alleging that his willful tax evasion
had ``betrayed the trust of the people of the United States and
reduced confidence in the integrity and impartiality of the
judiciary, thereby bringing disrepute on the Federal courts and
the administration of justice by the courts.'' \83\ At the time
of his impeachment, Judge Claiborne was serving time in federal
prison while continuing to collect his annual judicial salary
of $78,700.
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\83\ Majority Staff Report, supra at 22 (citing 132 Cong. Rec.
S15,760-61 (Oct. 9, 1986)).
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Significantly, the Majority Staff Report completely fails
to note that Judge Claiborne had also been prosecuted for
bribery. Namely, he had allegedly received $30,000 from a Las
Vegas brothel owner in return for being influenced in the
performance of his official acts--i.e., decisions regarding
motions in a case pending before him.\84\ Although a trial on
this charge resulted in a hung jury, it is difficult to deny
that evidence of serious public corruption informed the
government's ultimate ability to prosecute and convict, and the
Judiciary's and Congress' decision to seek and achieve Judge
Claiborne's impeachment and removal from office.
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\84\ See United States v. Claiborne, 727 F.2d 842, 843.
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Moreover, the debate on the House floor in the Claiborne
case made it clear that the conduct justifying impeachment was
closely linked to the special duties and responsibilities of a
federal judge. The former chairman of the Judiciary Committee,
Peter Rodino (D-NJ), summarized these sentiments in his
statement on the House floor:
As Members of this body have recognized in prior
judicial impeachments, the judges of our Federal courts
of law occupy a unique position of trust and
responsibility in our system of government: They are
the only members of any branch that hold their office
for life; they are purposely insulated from the
immediate pressures and shifting currents of the body
politic. But with the special prerogative of judicial
independence comes the most exacting standard of public
and private conduct. . . . The high standard of
behavior for judges is inscribed in article III of the
Constitution, which provides that judges ``shall hold
their Offices during good behavior . . .'' \85\
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\85\ 132 Cong. Rec. H4712 (July 22, 1986). The Committee Report
also observed that ``Good behavior, as that phrase is used in the
Constitution, exacts of a judge the highest standards of public and
private rectitude. Those entrusted with the duties of judicial office
have the high responsibility of ensuring the fair and impartial
administration of justice, which in large part rest on the public
confidence and respect for the judicial process.'' H. Rep. No. 99-688,
at 23 (1986).
Another recurring argument during the impeachment debate on
the House floor was the impossibility of removing a federal
judge, who serves a life term, without resort to the
impeachment process. Several congressmen expressed special
outrage that Judge Claiborne, while serving a prison term, was
continuing to receive his full salary and would be entitled to
return to the federal bench upon completing his prison
term.\86\
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\86\ See generally, id. (statements of Rep. Fish, Rep. Moorhead,
Rep. Glickman, Rep. Mazzoli, Rep. DeWine, Rep. Rudd, Rep. Vucanovich).
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Under these circumstances, it is clear that Judge Claiborne
would have been unable to discharge credibly his judicial
responsibilities upon his release from prison. It does not
follow, however, that any income tax evasion by a future
president would inevitably merit the drastic remedy of
impeachment, which President Nixon's case powerfully confirms.
As Professor Tribe observed at the Subcommittee hearing: ``The
theme of [Judge Claiborne's] impeachment, its whole theory, was
not that private improprieties can lead to impeachment whenever
they cast a general cloud over the individual's fitness and
virtue; it was that private improprieties can justify
impeachment when it renders the individual fundamentally unable
to carry out his or her official duties. It is not too hard to
see, without opening a Pandora's box, that a judge convicted of
perjury could not credibly preside over trials for the rest of
his life, swearing in witnesses, imprisoning or sentencing to
death some that he finds guilty.''
2. Judge Walter Nixon
The 1989 impeachment proceedings involving Walter Nixon of
the Southern District of Mississippi are distinguishable on
similar grounds. Like Judge Claiborne, he had already been
convicted and sentenced to prison for perjury before his
impeachment.\87\ The underlying facts concerned Nixon's
intervention with a local prosecutor to obtain favorable
treatment for a drug case involving the son of one of Nixon's
partners in lucrative oil and mineral investments. After
investigation by the FBI, Judge Nixon appeared before a grand
jury and denied any discussion of the drug charges with the
prosecutor. Testimony by the prosecutor, as well as the
business partner, was to the contrary. On these facts, Nixon
was convicted on two counts of perjury, which formed the basis
for his impeachment.
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\87\ See Majority Staff Report, supra at 24 (discussing the
articles and votes) (citations omitted).
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In sharp contrast to the false statements being alleged by
the OIC, Judge Nixon's perjury was undoubtedly material to a
criminal proceeding directed against him and his false
statements were offered in direct rebuttal to charges that he
had misused the powers of his office. The debate on Judge
Nixon's articles of impeachment emphasized that his criminal
misconduct was fundamentally inconsistent with his judicial
responsibilities. Rep. Sensenbrenner (R-WI), in calling for
Judge Nixon's impeachment, noted that ``A Federal judge must
decide the credibility of witnesses, and find the truth in
cases that come before him.'' \88\ Senator Grassley (R-IA) made
a similar point during the impeachment debate:
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\88\ 135 Cong. Rec. S14493, S14499 (Nov. 1, 1989).
To be entrusted with a lifetime office that has the
potential power of depriving individuals of their
liberty and property, is, indeed, a very great
responsibility. Consequently, a Federal judge must
subscribe to the highest ethical and moral standards.
At a minimum, in their words and deeds, judges must be
beyond reproach or suspicion in order for there to be
integrity and impartiality in the administration of
justice and independence in the operation of our
judicial system.\89\
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\89\ 135 Cong. Rec. S14633, S14638 (Nov. 3, 1989) (statement of
Sen. Charles E. Grassley).
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3. Judge Alcee Hastings
In 1981, Federal District Judge Alcee Hastings of the
Southern District of Florida was tried and acquitted on charges
of conspiracy to solicit and accept a bribe.\90\ Several years
later, on recommendation of the Judicial Conference of the
United States, the House of Representatives adopted seventeen
articles of impeachment charging Hastings with conspiracy,
perjury, and fabrication of evidence. The Senate convened an
impeachment trial committee to take evidence and then, after
hearings in 1989, voted to convict on eight articles of
impeachment.
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\90\ See Majority Staff Report, supra at 25 (discussing the
articles and votes) (citations omitted). A challenge to the Senate
procedure and a review of the impeachment history appear in Hastings v.
United States, 802 F. Supp. 490 (D.D.C. 1992).
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The charges involved a conspiracy between Judge Hastings
and a District of Columbia lawyer, William Borders, to obtain
$150,000 from defendants convicted of racketeering and related
offenses in exchange for sentences that did not require
incarceration. The government's case at trial indicated that
Borders had approached the defendants through an intermediary
and had offered to be ``helpful'' with his friend Judge
Hastings, who was presiding over the case. The intermediary
informed the FBI, which subsequently obtained evidence through
an undercover operation.
At his trial, Hastings claimed that his frequent
conversations with Borders during the period in question
related to other matters. The Committee found that claim to
lack credibility under the circumstances. Because Hastings'
perjury was found to have assisted his acquittal, it was the
basis for his subsequent impeachment. A post-trial memorandum
by the House of Representatives Judiciary Committee
investigative staff concerning Judge Hastings emphasized that
``[i]n each instance [of false testimony, Judge Hastings] was
addressing a critical part of the case. In each instance, he
needed to explain away incriminating evidence.'' \91\
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\91\ United States House of Representatives, In re Impeachment of
Judge Alcee Hastings, Post Trial Memorandum of the House Judiciary
Investigative Staff, Sept. 25, 1989, at 95-96 (on file with Committee
Staff). See also Ed Henry, Top Dem Wants New Look at Hastings
Impeachment, Roll Call, May 19, 1997 (Discussing claim by a
whistleblower that FBI agent may have lied in order to seek Hastings'
conviction).
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As with Judge Nixon, the context of the Judge Hastings'
alleged perjury was crucial. It concerned a defense to criminal
charges alleging that he had sold his office for money. The
central underlying allegation of bribery is, of course, one of
the few impeachable offenses specifically designated in the
language of the Constitution. There was little doubt,
therefore, that false statements designed to conceal such an
offense qualified as grounds for impeachment when commited by a
federal district court judge.
IV. Conclusion
Is the country now prepared to pursue the first ever
impeachment of a president based on private misconduct
unrelated to the powers of public office?
The very text of the Constitution provides most of the
answer--simply put, it is difficult to argue credibly that the
offenses alleged by the OIC can in any way be likened to the
very public and very corrupt offenses of Treason and Bribery.
The history and background of impeachment further confirm that
if we are to remain true to the intent of the Framers, the 1974
Watergate Report, and our specific experiences with
impeachment, Congress will not choose to take the Nation down
the treacherous course of impeachment in a case where only non-
official misconduct is alleged.
Efforts by the Majority to construe the OIC Referral as
constituting an ever expanding series of statutory legal
violations so that the President's conduct appears to pose a
threat to our constitutional form of government are neither
credible nor compelling. Nor do the facts alleged by the OIC
approximate in scope or magnitude the very public wrongdoing
alleged during Watergate.
Resort to judicial impeachment precedents does not take the
OIC Referral any further as a constitutional matter. No amount
of sophistry can detract from the historical fact, as the
Watergate Staff Report concluded, that judicial impeachments
are premised on misconduct which exceeds constitutional
constraints, are grossly incompatible with office or constitute
abuse of official power. And nothing in the three post-
Watergate judicial impeachments contradicts these fundamental
touchstones of impeachment.
Impeachment has been variously referred to as an ``atom
bomb'' and a ``caged lion.'' Now is not the time to unleash
that lion's rage on an already weary nation, to alter
fundamentally the balance of power between the executive and
legislative branches, or to turn more than 200 years of
impeachment precedent on its head.